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ELCPartially AllowedChamber Summons application dated 17th July, 2023 (Judicial Review)· [2024] KEELC 1748 (KLR)

Lake Naivasha Crescent Camp Limited v Chairman, Business Premises Rent Tribunal; Bark and Associates Limited (Interested Party) (Environment and Land Miscellaneous Application E003 of 2023) [2024] KEELC 1748 (KLR)

Environment and Land Court
11 April 2024
1,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kericho paused a Nakuru rent tribunal case because the person who issued the termination notice was not named in the lease.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo J) determined an ex-parte Chamber Summons dated 17th July 2023 brought under Order 53 Rules 1(1), 2 and 4 of the Civil Procedure Rules, 2010 and Part VI of the Law Reform Act. The Applicant sought leave to apply for judicial review by way of an order of prohibition against the Chairman of the Business Premises Rent Tribunal, Nakuru, to bar him from hearing Tribunal Case No. E104 of 2023, contending there was no landlord-tenant relationship conferring jurisdiction on the Tribunal, and sought that leave operate as a stay. The Applicant held a 15-year lease commencing 1st January 2012 with Wagiciengo Holdings Limited and Anastacia Wariara Wagiciengo over LR Nos 396/9 and 396/10. In April 2023 a stranger claimed ownership of the premises and on 11th May 2023 the interested party issued a termination notice, later accepted by the Tribunal. The Applicant argued the interested party, being a stranger to the lease and a purchaser without privity, lacked locus to issue the notice, so the Tribunal had no jurisdiction. The Respondent and interested party filed no response. The court framed three issues: leave, stay, and costs. Finding the lease and the 2023 purchase established prima facie, the judge granted leave to institute judicial review, directed that leave operate as a stay of the Tribunal proceedings pending the substantive motion, ordered the substantive motion to be filed within 21 days and served within 14 days thereafter, and reserved costs to the substantive motion. The application therefore succeeded.

Key legal issues

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01

Whether leave to commence judicial review for an order of prohibition against the BPRT should issue

Holding

Leave was granted on the basis that a prima facie case was established that the interested party was a stranger to the 15-year lease and therefore there was no landlord-tenant relationship conferring jurisdiction on the Tribunal.

Reasoning

The court examined the lease dated 2nd December 2011 between Wagiciengo Holdings Limited, Anastacia Wariara Wagiciengo and the Applicant for 15 years. The interested party allegedly purchased the suit property in 2023, twelve years after the lease commenced. On that basis the court was satisfied prima facie that the applicant was entitled to the orders sought, warranting leave and stay.

p. 4
02

Whether leave should operate as stay of the Tribunal proceedings

Holding

The court directed that the leave granted operate as a stay of Tribunal Case No. E104 of 2023 pending determination of the substantive motion, pursuant to Order 53 rule 1(4).

Reasoning

Order 53 rule 1(4) permits leave for prohibition or certiorari to operate as a stay where the judge so directs. The court invoked this provision in its disposition, staying the BPRT proceedings pending the substantive motion or further order.

p. 4

Legal principles established

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  • Leave to apply for an order of prohibition or certiorari may, if the judge so directs, operate as a stay of the proceedings in question until determination of the application or until the judge orders otherwise.

Court orders

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  1. 1.Leave is granted to the Applicant to institute Judicial review proceedings for an order of prohibition prohibiting the chairman, Business Premises Rent Tribunal, Nakuru from entertaining and hearing or continuing to hear and determine Tribunal Case No. E104 of 2023.
  2. 2.Leave granted shall operate as a stay of the proceedings at the Business Premises Rent Tribunal relating to Tribunal Case No. E104 of 2023 pending the hearing and determination of the substantive motion or until the Judge orders otherwise.
  3. 3.The ex-parte applicant shall file the substantive motion within 21 days from the date hereof and serve the same upon the Respondent, the Interested Party and any other person as are affected by it within 14 days of filing.
  4. 4.Costs shall be in the substantive Motion.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rules 1(1), 2 and 4; Order 53 Rules 3(1) and (2)
  • Law Reform ActPart VI (Cap 26)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments Act), Cap 301Sections 6 and 10

Cases cited (5)

  • Saheb v Hassanally
    [1981] eKLR
  • Nur Sheikh Mohammed v Mohammed Imani
    [2021] eKLR
  • Edward Murimi t/a Edd Enterprises v Kenya Scouts Council
    [2014] eKLR
  • New Soita Ltd v Naivasha Southlake Sacco
    [2021] eKLR
  • Hurlingham Grocers Limited v APA Insurance Ltd
    [2021] eKLR
Jurisdiction invoked
Order 53 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010 and Part VI of the Law Reform Act (Cap 26)

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, "Lake Naivasha Crescent Camp Limited v Chairman, Business Premises Rent Tribunal; Bark and Associates Limited (Interested Party) (Environment and Land Miscellaneous Application E003 of 2023) [2024] KEELC 1748 (KLR)", Case Analysis (2024). Chamber Summons application dated 17th July, 2023 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1748/eng@2024-04-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.