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ELCDismissedNotice of Motion dated 18/04/2023 (Ex Parte Judicial Review Application)

Njuguna & another v Business Premises Ren Tribunal & 3 others; Maunji (Interested Party) (Miscellaneous Civil Application 1 of 2023) [2024] KEELC 656 (KLR)

High Court of Kenya
15 February 2024
5,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ex Parte Applicants, sub-tenants of Shops A1 and A3 on L.R. 36/11/13, Eastleigh, Nairobi, sought judicial review orders of certiorari, prohibition and mandamus against the Business Premises Rent Tribunal and its Vice Chairperson, Hon. Gakuhi Chege, arising from orders made on 12/10/2022 in BPRT Cases E730 and E732 of 2022, which vacated earlier injunctive orders and allowed the landlord's notice to terminate tenancy. They also sought multiple declarations that they were the lawful tenants, that the termination notices were defective, and compensation for loss. The application was unopposed; the Respondents filed no reply or submissions. The Court, applying the settled scope of judicial review as concerned with the decision-making process rather than merits, held that the Tribunal acted within its jurisdiction since the tenant-landlord relationship had not terminated as at 12/10/2022, the tenants having failed to file references opposing the termination notice as required by Section 10 of Cap 301. No procedural impropriety was established. Further, following the exposition in Khobesh Agencies and Sanghani Investment, the Court held that declaratory and compensatory reliefs fall outside the judicial review jurisdiction under Section 8 of the Law Reform Act, which is confined to certiorari, mandamus and prohibition, and that contested factual issues require viva voce evidence in civil proceedings. The Notice of Motion was dismissed, with no orders as to costs given the Respondents' non-appearance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Ex Parte Applicants' case merits orders for judicial review
  2. 2.Who should bear the costs of the suit

Key legal issues

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01

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

Holding

The Tribunal acted within its jurisdiction; no procedural impropriety was established

Reasoning

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.

p. 8
02

Whether declaratory and compensatory orders can be granted in judicial review proceedings

Holding

No; declarations and compensation are outside the judicial review jurisdiction under Section 8 of the Law Reform Act

Reasoning

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.

p. 10
03

Whether judicial review is the appropriate remedy where facts are in dispute

Holding

Where facts are in dispute, judicial review may not be an appropriate remedy

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.No orders as to costs since the Respondents did not enter appearance

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 8

Prohibition and mandamus orders

No judicial review merits established; remedies were found to lie on appeal, not in judicial review

p. 8

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

p. 10

Costs

No orders as to costs since the Respondents did not enter appearance

Quotable passages

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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.
p. 10Final orders - dismissal
the Court finds that the Ex Parte Applicants have not made out a case of the grant of judicial review orders sought.
p. 8Failure to establish judicial review grounds
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.
p. 10Declarations outside judicial review jurisdiction
Judicial review is concerned with the decision making process, not with the merits of the decision
p. 4Scope of judicial review

Issues in the judgment

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minor

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

minor

The affidavit is described inconsistently as sworn on 30/10/2023 although the statement is dated 1/11/2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.