Republic v Deputy Chairman, Rent Restriction Tribunal; Omondi (Exparte Applicant); Mburu (Interested Party) (Environment and Land Judicial Review Case E010 of 2023) [2024] KEELC 1420 (KLR)

Section 2(1)(c) of the Rent Restriction Act limits the Tribunal to dwelling houses with a standard rent not exceeding Kshs 2,500 per month. The written tenancy agreement fixed rent at Kshs 130,000, which the Interested Party admitted before the Tribunal. Following the Supreme Court's pronouncements in R v. Karisa Chengo and Samuel Kamau Macharia, a tribunal cannot arrogate itself jurisdiction beyond statute, and the Tribunal should first have ascertained standard rent. Its decision therefore amounts to nothing and is a nullity.

The Applicant argued that by granting ex parte orders amounting to a determination of the entire suit, the Tribunal decided the matter without affording him a hearing, contrary to natural justice and Section 4(3) of the Fair Administrative Action Act. The court's decision, however, rested principally on lack of jurisdiction, which alone rendered the orders void.

The Interested Party filed a similar suit with a similar application before the Milimani Chief Magistrate's Court, failed to secure interim orders there, and moved to the Tribunal without withdrawing the first suit. The court held that under Section 6 of the Civil Procedure Act the Tribunal was barred from entertaining a matter directly and substantially in issue between the same parties litigating under the same title.

Applying Dande & 3 others v Inspector General, National Police Service and SGS Kenya Ltd v Energy Regulation Commission, the court distinguished between constitutional petitions, which invite merit review, and Order 53 judicial review applications, which are confined to illegality, irrationality and procedural impropriety. Since the Applicant invoked Order 53, the court reviewed only the process by which the Tribunal's decision was reached.