https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3645

Republic v Business Premises RentTribunal & 2 others; SBS Dubhill Group (EA) Ltd (Ex parte Applicant) (Environment and Land Judicial Review Case E059 of 2025) [2026] KEELC 3645 (KLR) (15 June 2026) (Judgment) Neutral citation: [2026] KEELC 3645 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Judicial Review Case E059 of 2025 CG Mbogo, J June 15, 2026 IN THE MATTER OF: ARTICLES 1 , 2, 6, 19, 20, 21, 22, 23, 27, 35, 47, 48, 201, 206, 233 & 234 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT AND IN THE MATTER OF: INJUNCTIVE ORDERS ISSUED BY THE BUSINESS PREMISES RENT TRIBUNAL Between Republic Applicant and Business Premises Rent Tribunal 1st Respondent Martin Nyongesa 2nd Respondent Ajeetkumar C. Shah & others 3rd Respondent and SBS Dubhill Group (EA) Limited Ex parte Applicant Judgment 1.Pursuant to leave granted on 4th August, 2025 the ex-parte applicant filed the substantive notice of motion dated 8th August, 2025 seeking the following orders:-1.That this honourable court be pleased to grant judicial review orders, to wit:a.An order of certiorari to bring to this honourable court for purposes quashing the orders of the 1st respondent issued on 24th June, 2025 in Nairobi BPRT Case No. E711 2025: Martin Nyongesa v Ajetkumar C. Shah & Others and SBS Dunhill Group (E.A) Limited.b.An order of certiorari to bring to this honourable court for purposes of being quashed the proceedings in Nairobi BPRT Case No. E711 of 2025: Martin Nyongesa v Ajetkumar C. Shah & Others and SBS Dunhill Group (E.A) Limited.2.That this honourable court be and is hereby pleased to issue any other or further orders it may deem fir in the interest of justice.3.That the costs of this application be provided for. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of Geoffrey Somoni, Birundu the chief executive officer of the ex parte applicant sworn on even date, and the statutory statement dated 31st July, 2025. In its application, the ex-parte applicant deposed that upon hearing the parties on merit in Nairobi BPRT Case No. E178 of 2025, the tribunal returned a verdict that the eviction orders were obtained irregularly and dismissed them on 27th June, 2025. Further, that on 28th July, 2025 the tribunal ordered that the tenancy of the 2nd respondent in the suit property be reinstated forthwith. 3.The ex-parte applicant deposed that on 28th July 2025, it was served with court papers in Nairobi BPRT Case No. E711 of 2025 Martin Nyongesa v Ajetkumar C. Shah & Others & SBS Dunhill Group (EA) Ltd which had orders purportedly issued on 24th June, 2025 barring the respondents from attempting to evict or further interfering with the quiet enjoyment of the 2nd respondent on the suit property. 4.The ex-parte applicant deposed that the 2nd and 3rd respondents’ actions were mala fides and in disregard of the obtaining status quo, more so, it was never served with the pleadings or the orders dated 24th June, 2025. Thus, the ex parte applicant questions how the purported lease agreement dated 17th May, 2025 was signed a day after it was irregularly evicted, whether the tribunal acted irregularly in granting interim injunction orders to the 2nd respondent on account of the purported 5 years lease, and whether the tribunal acted ultra vires in issuance of the orders on 24th June, 2025. 5.The 3rd respondent opposed the motion through the replying affidavit of Pankaj Chhaganlal Shah sworn on 11th August, 2025. Based on the orders issued by the 1st respondent on 30th July, 2025 the 3rd respondent presumed that the leave granted by the court challenges the orders of 30th July, 2025. For this reason, the 3rd respondent contended that no leave was granted by the applicant to institute judicial review proceedings against the decision of the 1st respondent made on 24th June, 2025. In response to the application, the 3rd respondent deposed that there is no minimum number of pages prescribed for a tenancy agreement, and that the same was signed when the tribunal had already issued orders of status quo to preserve the property. 6.With regard to proceedings in E711 of 2025, the 3rd respondent deposed that after signing the tenancy agreement with the 2nd respondent, the ex parte applicant continued to harass the 2nd respondent, and it is aware that on 24th June, 2025 the tribunal issued orders in favour of the 2nd respondent restraining eviction and interference with the suit property. However, in a ruling delivered on 27th June, 2025 the 1st respondent directed the 3rd respondent to indefinitely maintain status quo in the premises. Further, that the ex-parte applicant has not demonstrated any invalidity on the tenancy agreement currently existing between the 2nd and 3rd respondents, and there is no reason to discharge or quash any orders of the tribunal issued to protect the 2nd respondent’s tenancy. 7.The notice of motion was canvassed through written submissions. The exparte applicant filed its submissions dated 2nd March, 2026. The 3rd respondent filed its submissions dated 12th March, 2026. I have considered the application, the reply thereof and the written submissions filed by the respective parties. The issue for determination is whether the ex-parte application is entitled to the orders of certiorari. 8.In the case of Pastoli versus Kabale District & Others (2008) 2 E.A. 300 the court set out the duty of a court in judicial review applications as follows:-“In order to succeed in an application for judicial review, the applicant has to show that the decision or the act complained of is tainted with illegality, irrationality and procedural impropriety……Illegality is when the decision making authority commits an error of law in the process of taking or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles are instances of illegality…….irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority would have made such a decision is usually in defiance of logic and acceptable moral standards……Procedural impropriety is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non -observance of the rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.” 9.In the case of Municipal Council of Mombasa versus Republic Umoja Consultants Ltd Civil Appeal No. 185 of 2007 (2002) eKLR the Court of Appeal held that:-“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who made the decision have power i.e. jurisdiction to make it. Were the provisions affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did the take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a court of appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself – such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of judicial review.” 10.In applying the principles set out in the above authorities to the circumstances of this case, the ex parte applicant questions the manner in which the 1st respondent issued orders on 24th June, 2025 in BPRT Case No. E711 of 2025 in addition to the fact that it was never served with the pleadings or the orders dated 24th June, 2025. The signing of a lease agreement a day after it was irregularly evicted, and whether the tribunal acted ultra vires and irregularly in issuance of the orders on 24th June, 2025 was also raised. In challenging this argument, the 3rd respondent maintained that there is no law that prescribes the minimum pages of an agreement, and that in fact no leave was granted against the orders issued on 24th June, 2025 since there is none in place. 11.I will reiterate that judicial review proceedings are concerned with the process leading up to the determination of a matter. First, it is neither upon the tribunal to determine how soon or fast an agreement should be entered into. That is a contract between parties and negotiations surrounding the same are unknown to the court or the tribunal. Secondly, while the 3rd respondent maintains that no orders were issued in this matter on 24th June, 2025 neither of the parties supplied evidence to prove or disprove the same. Third, and in a bid to establish whether the 1st respondent acted ultra vires or irregularly in the process leading to the grant of these orders, one can only do so through a reading of the proceedings before the tribunal. Finally, and particularly on service of the pleadings, the ex-parte applicant has not availed the alleged orders said to be issued on 24th June, 2025. 12.In my analysis, a lot of emphasis has been placed on the outcome of the matter before the 1st respondent and its implication thereof leaving out the process of decision making. The court is not aware of what transpired before the tribunal in E711 of 2025. Without these proceedings, it is easy for the court to assume an appellate role while trying to discern what may have led the tribunal to arrive at the conclusions that it made. The court cannot proceed to determine issues based on presumptions without the evidence to support the same. 13.From the above, it is my finding that the ex-parte applicant has not established proof to warrant judicial review orders of certiorari. The notice of motion dated 8th August, 2025 lacks merit and it is hereby dismissed. Each party to bear its own costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 15TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE15/06/2026.In the presence of:Mr. Benson Agunga - Court assistantMr. Messo for the Exparte applicant.Mr. Ashioya holding brief for Mr. Havi Nelson senior counsel for the 2nd Respondent.Mr. Andiwo for the 3rd Respondent.