Automated Summary
Key Facts
The case centers on a dispute over a tenancy agreement between Carrington Complex Ltd (Ex-parte Applicant) and David Wakahu Ng'ang'a (2nd Respondent). The Ex-parte Applicant sought to quash an ex-parte order issued by the Business Premises Rent Tribunal on October 15, 2018, arguing that the 2nd Respondent's lease to occupy the property expired on June 1, 2018, and no valid landlord-tenant relationship existed at the time of the tribunal's order. The court determined that the 2nd Respondent's ten-year agreement with the Kenya Railways Staff Benefits Scheme (expired May 31, 2018) did not qualify as a controlled tenancy under the Landlord and Tenant Act, as such tenancies cannot exceed five years. The tribunal's order was deemed ultra vires due to lack of jurisdiction.
Issues
- The court considered whether to issue an order of Certiorari to quash the proceedings and orders made by the Business Premises Rent Tribunal in Case No. 826 of 2018, determining they were made without jurisdiction.
- The court examined the Tribunal's authority to issue injunctive orders, concluding that the agreement in question was not a controlled tenancy as defined by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, thus the Tribunal acted ultra vires.
Holdings
The court found that there was no landlord-tenant relationship when the Tribunal issued the ex-parte orders on 15th October 2018. Therefore, the Tribunal lacked jurisdiction, and its actions were ultra vires.
Remedies
- The 2nd Respondent was ordered to pay the costs of the application following the court's determination that the Tribunal acted ultra vires.
- An order of Certiorari was issued to call up and quash the entire proceedings of Business Premises Rent Tribunal Nairobi BPRT Case NO. 826 of 2018, including the tribunal order of 15 October 2015 made by the Chairman, Business Premises Rent Tribunal, Nairobi.
Legal Principles
The Environment and Land Court determined that the Business Premises Rent Tribunal's ex-parte orders were ultra vires, as there was no valid controlled tenancy or landlord-tenant relationship at the time. The decision relied on Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, which defines controlled tenancies, and prior case law affirming jurisdictional limits. The court emphasized that the Tribunal exceeded its authority by granting injunctive relief in circumstances lacking a statutory basis.
Precedent Name
- Municipal Council of Mombasa v Republic & Another
- Republic vs Business Premises Rent Tribunal & Another Ex parte Albert Kigera Karume
- Melas vs. New Carlton Hotel Limited
- John Mugo Ngunga v Margaret M. Murangi
- Republic v Chairman Business Premises Rent Tribunal & 2 Others Ex-Parte Abdulkadir Hubess
- Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge & 9 Others
- Republic v Chairman, Business Premises Rent Tribunal & another; Carrington Complex Ltd (Exparte Applicant) (Environment and Land Judicial Review Case 29 of 2019)
- Khalif Jele Mohamed & another vs Republic & another
Cited Statute
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
Judge Name
O. A. Angote
Passage Text
- The agreement that the 2nd Respondent is seeking to rely upon to legitimize the landlord-tenant relationship was for the period 1st June 2008 to 31st May 2018. The 2nd Respondent has not put forth any evidence to show that the same was renewed on 15th October 2018 when the orders were made by the Tribunal. Although the 2nd Respondent has stated that he was in occupation of the suit property, that is not enough proof of a landlord-tenant relationship in the absence of a renewed and legitimate agreement.
- In view of the foregoing, it is the finding of this court that there was no landlord-tenant relationship when the Tribunal issued the ex-parte orders of 15th October 2018. Consequently, there is nothing that clothed the tribunal with jurisdiction, and its actions were ultra vires.
- 'controlled tenancy' means a tenancy of a shop, hotel or catering establishment— (a) which has not been reduced into writing; or (b) which has been reduced into writing and which i. is for a period not exceeding five years; or ii. contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof'