Njuguna & another v Business Premises Ren Tribunal & 3 others; Maunji (Interested Party) (Miscellaneous Civil Application 1 of 2023) [2024] KEELC 656 (KLR)
The bottom line
#Kenya's High Court dismissed tenants' bid to overturn a rent tribunal eviction order, confirming judicial review cannot be used to relitigate tenancy disputes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Ex Parte Applicants' case merits orders for judicial review
- 2.Who should bear the costs of the suit
Key legal issues
#Whether the Tribunal acted in excess of jurisdiction or contrary to statute in vacating injunctive orders and allowing the notice to terminate on 12/10/2022
The Tribunal acted within its jurisdiction; no procedural impropriety was established
The Court evaluated the uncontested record: the landlord's termination notice was dated 20/07/2022, and the tenants failed to file references opposing it within the appropriate time under Section 10 of Cap 301. The tenant-landlord relationship had not been terminated as at 12/10/2022 when the order was made, so the Tribunal was entitled to grant vacant possession orders.
Whether declaratory and compensatory orders can be granted in judicial review proceedings
No; declarations and compensation are outside the judicial review jurisdiction under Section 8 of the Law Reform Act
Relying on the Odunga exposition in Khobesh Agencies and Sanghani Investment, the Court held that judicial review is a special jurisdiction confined to certiorari, mandamus and prohibition. Declarations require viva voce evidence on the merits, which judicial review on affidavits cannot accommodate; such claims belong in civil or constitutional proceedings.
Whether judicial review is the appropriate remedy where facts are in dispute
Where facts are in dispute, judicial review may not be an appropriate remedy
The Court noted that the Applicants contested service of the notice to vacate and their eviction. Such contested factual matters require viva voce evidence and cannot be resolved on affidavit material in supervisory judicial review proceedings, which examine only the legality, irrationality and procedural propriety of the decision-making process.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- Judicial review jurisdiction under Section 8 of the Law Reform Act extends only to mandamus, certiorari and prohibition; declarations do not fall within it
- Under Section 9(2) of the Fair Administrative Action Act, internal appeal or review mechanisms must first be exhausted before a court reviews an administrative action
Court orders
#- 1.The Ex Parte Applicants' Notice of Motion dated 18/04/2023 and the prayers made for declaratory orders is unmerited and is hereby dismissed
- 2.No orders as to costs since the Respondents did not enter appearance
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap 26), Order 53 of the Civil Procedure Rules, Articles 22, 23, 25, 26, 43, 29, 47 & 50 of the Constitution, Sections 7-12 of the Fair Administrative Action Act
Relief refused
#Certiorari to quash the Tribunal's orders of 12/10/2022
The Court found the Tribunal acted within its jurisdiction and that the proceedings were not vitiated by procedural impropriety
Prohibition and mandamus orders
No judicial review merits established; remedies were found to lie on appeal, not in judicial review
Declarations regarding tenancy, validity of termination notices, and compensation
Declarations fall outside the judicial review jurisdiction under Section 8 of the Law Reform Act and would require viva voce evidence
Costs
No orders as to costs since the Respondents did not enter appearance
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the Ex Parte Applicants' Notice of Motion dated 18/04/2023 and the prayers made for declaratory orders is unmerited and is hereby dismissed and since the Respondents did not enter appearance I will not make any orders as to costs. It is so ordered.
the Court finds that the Ex Parte Applicants have not made out a case of the grant of judicial review orders sought.
it is my holding that the Applicants' application for declaratory orders within the present judicial review proceedings is misconceived and incompetent and cannot be granted.
Judicial review is concerned with the decision making process, not with the merits of the decision
Issues in the judgment
#Internal inconsistency in dates: the judgment elsewhere records the decision under challenge as made on 12/10/2022, but paragraph 18 states the Tribunal vacated the orders on 12/10/2023
The affidavit is described inconsistently as sworn on 30/10/2023 although the statement is dated 1/11/2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna & another v Business Premises Ren Tribunal & 3 others; Maunji (Interested Party) (Miscellaneous Civil Application 1 of 2023) [2024] KEELC 656 (KLR)", Case Analysis (2024). Notice of Motion dated 18/04/2023 (Ex Parte Judicial Review Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/656/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.