Republic v Makori Member – Business Premises Rent Tribunal; Pan Auto Equipment Limited & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E020 of 2024) [2026] KEELC 1505 (KLR)
The bottom line
#Kenya's High Court allowed a judicial review challenge to a BPRT decision to proceed, but struck out the individual tribunal member named as respondent.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
Parts of the objection (exhaustion and abuse of process) required factual inquiry and were not pure points of law, but the joinder issue was properly before the court
The court applied the Mukisa Biscuits and Oraro v Mbaja tests: a preliminary objection must rest on matters not blurred with factual details requiring proof. The Applicants' complaints of denial of a fair hearing were to be established through affidavit evidence, so exhaustion and abuse-of-process grounds could not be determined as pure points of law at that stage.
Whether the judicial review application was incompetent for want of exhaustion of remedies under Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
The exhaustion doctrine did not bar the judicial review application because the Applicants alleged breach of natural justice and denial of a fair hearing, which go to the legality of the decision-making process
While the doctrine of exhaustion, as stated in Speaker of National Assembly v Karume, requires statutory procedures to be strictly followed, it admits exceptions where the decision is made without jurisdiction or tainted by procedural impropriety. The Applicants' complaint was not mere dissatisfaction with the Tribunal's outcome but a claim that final orders were issued without a hearing, raising arguable questions of procedural illegality within the Court's supervisory jurisdiction.
Whether the Respondent, an individual member of the BPRT, was properly joined in the judicial review proceedings
The Respondent was improperly joined; judicial review is directed at the tribunal as an institution, not its individual members
The impugned proceedings emanated from the BPRT, a statutory body. Judicial review ordinarily targets the decision-making body or public authority. A member issuing a decision acts on behalf of the tribunal, so the institution, not the individual, should be the proper respondent. The court therefore struck out the Respondent while declining to strike out the application itself.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
- Where a statute prescribes a procedure for redress, that procedure must be strictly followed before recourse to the court, unless exceptional circumstances exist
- The exhaustion doctrine is not absolute; it does not bar judicial review where the impugned decision was made without jurisdiction, in breach of natural justice, or with procedural impropriety
- Judicial review proceedings are directed at the decision-making body; a tribunal member who issues a decision does so on behalf of the tribunal, and the member individually is improperly joined
Court orders
#- 1.The Respondent is struck out from the proceedings
- 2.The preliminary objection succeeds only to the extent that the Respondent is struck out; it otherwise fails (the judicial review application is not struck out)
- Jurisdiction invoked
- Supervisory/judicial review jurisdiction of the High Court over tribunals (Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Business Premises Rent Tribunal); no specific constitutional article stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Makori Member – Business Premises Rent Tribunal; Pan Auto Equipment Limited & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E020 of 2024) [2026] KEELC 1505 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1505/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.