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ELCDismissedJudicial Review application dated 21/2/25 (re Nairobi BPRT No E095 of 2024)· [2025] KEELC 6095 (KLR)

Suriya & 3 others v Tribunal & another; Iqbaal (Interested Party) (Judicial Review Application E006 of 2025) [2025] KEELC 6095 (KLR)

Environment and Land Court
19 September 2025
3,476 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 dismissed landlords' attempt to overturn a rent tribunal decision through judicial review, saying their appeal is the proper route.

What this practically means

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Executive summary

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The ex parte applicants (landlords) and an interested party sought judicial review orders of certiorari to quash the entire proceedings and judgment of 20/1/25 in Nairobi BPRT No E095 of 2024, and prohibition to stop further proceedings before the Business Premises Rent Tribunal. They contended that the tribunal exceeded its jurisdiction under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act by treating their tenancy as a controlled tenancy, awarded the tenant ownership of the premises on unpleaded issues, ignored evidence of rent arrears, and acted irrationally, illegally and procedurally unfairly. The 2nd Respondent/tenant raised a preliminary objection arguing that the application improperly challenged the merits of the tribunal decision, for which an appeal, not judicial review, is the proper avenue, and that prohibition was unavailable as no proceedings remained before the tribunal. After considering written submissions and the authorities on the scope of judicial review, the court held that judicial review examines the decision-making process, not the merits, and that the applicants' grievances required a deeper re-examination of evidence best pursued through the pending appeal, which the interested party had already filed. Judicial review remedies would serve no effective purpose. Prohibition was futile since the tribunal had rendered its judgment and there were no live proceedings to prohibit. The court upheld the preliminary objection, dismissed the judicial review application dated 21/2/25, and ordered each party to bear their own costs.

Key legal issues

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01

Scope of judicial review versus appeal

Holding

The applicants' complaints require re-examination of the merits and are best pursued on appeal, not judicial review

Reasoning

The court examined the record and found both parties participated in the hearing before the tribunal, including on the jurisdictional objection which the tribunal dismissed on 18/7/24 as raising questions of fact. The grievances about evidence and jurisdiction require in-depth re-examination of proceedings, for which the pending appeal provides a broader remedy. Judicial review being discretionary, it will not issue where it serves no useful purpose.

p. 7
02

Availability of prohibition

Holding

Prohibition is unavailable because the tribunal has delivered its judgment and there are no ongoing proceedings

Reasoning

Relying on the Gathenji decision, the court held that prohibition looks to the future and cannot quash a decision already made. Since the impugned judgment of 20/1/25 concluded the tribunal proceedings, an order of prohibition would be futile.

p. 7

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; where an appeal is pending, judicial review may be declined as an ineffective discretionary remedy
  • Prohibition cannot quash a decision already made; it only prevents a contemplated decision

Court orders

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  1. 1.The preliminary objection dated 7/4/25 is merited
  2. 2.The judicial review application dated 21/2/25 is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1, 2 and 4
  • Law Reform ActSections 8 and 9(3)
  • Constitution of KenyaArticles 23, 40 and 43
  • Environment & Land Court ActSection 13(7)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actnull

Cases cited (6)

  • The Commissioner of Lands v Hotel Kunste
    Civil Appeal No. 234 of 1995 [1995-1998] 1 EA 1
  • Captain Geoffrey Kujoga Murungi v Attorney General
    Misc Civil Application No. 293 of 1993
  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • Municipal Council of Mombasa v Republic and Another
    2002 EKLR 223 CA No 185 of 2001
  • Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996 (CAK) [1997] eKLR
  • Sanghani Investments Limited v Officer in charge of Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
Jurisdiction invoked
Section 13(7)(b) of the Environment and Land Court Act; Order 53 CPR and Sections 8 and 9 of the Law Reform Act; Article 23 of the Constitution

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, "Suriya & 3 others v Tribunal & another; Iqbaal (Interested Party) (Judicial Review Application E006 of 2025) [2025] KEELC 6095 (KLR)", Case Analysis (2025). Judicial Review application dated 21/2/25 (re Nairobi BPRT No E095 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6095/eng@2025-09-19

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