Ecosee Mwananchi Limited & another v Chairperson, Business Premises Rent Tribunal, Nairobi & another (Environment and Land Judicial Review Case E021 of 2025) [2026] KEELC 1283 (KLR)

The 2nd Respondent objected that the judicial review was a disguised appeal. Relying on the settled test for preliminary objections (Mukisa Biscuits, Oraro v Mbaja) and the principle that jurisdiction is foundational (Owners of the Motor Vessel 'Lilian S'), the Court held that the sole question raised — whether the Tribunal had jurisdiction — goes to the legality of the proceedings rather than inviting a re-evaluation of evidence or substitution of findings on the merits. The objection therefore failed and was dismissed.

Section 2 of Cap 301 defines a controlled tenancy as one not in writing, or in writing for a period not exceeding five years, or containing a termination provision within five years otherwise than for breach, or relating to specified premises. The lease on the face of the record was in writing, executed by both parties, for a fixed term of five years and three months, and no evidence showed a termination clause or specified-class premises. The tenancy therefore fell outside the statutory definition.

Applying the Pastoli framework (illegality, irrationality, procedural impropriety) and the principle that a decision made in excess of statutory power may be quashed, the Court found that the Tribunal's entertaining of a reference outside its statutory mandate was illegal and ultra vires. Since the jurisdictional fact was absent, the decision was void and unenforceable. Certiorari issued to quash the entire proceedings and decision; Prohibition issued to restrain implementation, as the Tribunal would otherwise continue acting unlawfully.