https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3664

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLJR NO. E057 OF 2025** **IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION** **AND** **IN THE MATTER OF: SECTION 8 & 9 OF TH LAW REFORM ACT (CAP 26, LAWS OF KENYA)** **AND** **IN THE MATTER OF: ORDER 53 RULES 1 & 2 OF THE CIVIL PROCEDURE RULES** **AND** **IN THE MATTER OF: THE DECISION AND PROCEEDINGS OF THE BUSINESS PREMISES RENT TRIBUNAL DELIVERED ON 27TH JUNE 2025 AND 28TH JULY 2025 IN BPRT CASE NO. E178 OF 2025, BPRT CASE NO. E553 OF 2025 AND BPRT CASE NO. E1071 OF 2024** **BETWEEN** **REPUBLIC....….…................……….............................................APPLICANT** **–VERSUS-** **THE CHAIRPERSON,** **BUSINESS PREMISES RENT TRIBUNAL….......................1ST RESPONDENT** **SBS DUNHILL GROUP (EA) LIMITED……...................….2ND RESPONDENT** **AND** **AJEETKUMAR C. SHAH & OTHERS** **(Also known as KAMALKUMAR C.** **SHAH & OTHERS)……………………..............….……….EX-PARTE APPLICANT** **JUDGMENT** 1. Pursuant to leave granted on 28th July, 2025 the ex-parte applicant filed the substantive notice of motion dated 5th August, 2025 expressed to be brought under **Order 53 Rules 1,2** and **3** of the **Civil Procedure Rules**, and **Articles 47,48,50 (1)** and **159** of the **Constitution** seeking the following orders:- 2. ***This honourable court be pleased to issue an order of mandamus compelling the 1st respondent to avail to the parties certified copies of the rulings delivered on 28th July, 2025 in BPRT E178 of 2025 and E553 of 2025.*** 3. ***This honourable court be pleased to issue an order of certiorari to remove into this court and quash the decision of the Business Premises Rent Tribunal delivered on 27th June, 2025 in BPRT Case No. E178 of 2025 and the further rulings and orders issued on 28th July, 2028 (sic) in BPRT E178 of 2025 and E553 of 2025.*** 4. ***This honourable court be pleased to issue an order of prohibition restraining the Business Premises Rent Tribunal from proceeding with entertaining, hearing or making any further orders in BPRT Case No. E178 of 2025, BPRT Case No. E1071 of 2024 and BPRT Case No. E553 of 2025 or any other related matter involving the applicants and the interested party concerning the suit premises known as LR. No. 1/373 (Original No. 1/989/990), Senteu Plaza Kilimani.*** 5. ***The costs of this application be borne by the 2nd respondent.*** 6. The motion is premised on the grounds on its face and further supported by the affidavit of Pankaj Chhaganlal Shah sworn on even date. The ex parte applicant deposed that following the ruling delivered on 24th April, 2024 by Mbugua J, they levied distress for accrued rent against the 2nd respondent. Subsequently, the 2nd respondent filed a suit before the 1st respondent being Case No. E1071 of 2024 where it obtained orders granting continued occupation of the premises without paying rent. As a result, the ex parte applicant filed BPRT Case No. E178 of 2025 seeking orders of eviction against the 2nd respondent which were issued on 27th February, 2025. Further, that the 2nd respondent filed an application dated 8th May, 2025 within this particular file and instituted another application in BPRT Case No. E553 of 2025. In a ruling delivered on 27th June, 2025 filed within BPRT Case No. E553 of 2025, the tribunal found that it had jurisdiction to entertain the application, and gave orders granting status quo indefinitely. 1. The ex-parte applicant averred that three days before the date of the ruling i.e. 24th June 2025, Martin Nyongesa obtained orders restraining his eviction from the suit premises. They averred that they believe that the tribunal acted in excess of its powers especially the fact that the orders were uploaded on the CTS without the actual rulings. Further, the rulings were delivered more than 2 months after the 2nd respondent had been evicted. Moreover, the rulings were delivered more than one month after the tribunal had issued orders on 24th June, 2025. 2. The ex-parte applicant deposed that the tribunal ceased to have jurisdiction upon eviction of the 2nd respondent, and neither does it have jurisdiction to reinstate a tenant back into possession. 3. There was no response filed challenging the instant application. The notice of motion was canvassed through written submissions. The ex-parte applicants filed their submissions dated 28th January, 2026. The 2nd respondent filed its submissions dated 2nd March, 2026. I have considered the pleadings on record, and the issue for determination is *whether the 1st respondent acted in excess of its powers in BPRT Case No. E178 of 2025 and BPRT Case No. E553 of 2025.* 4. **Section 12** of the **Landlord And Tenant (Shops, Hotels And Catering Establishments) Act** states as follows:- ***“(1) A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—*** 1. ***to determine whether or not any tenancy is a controlled tenancy;*** 2. ***to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances thereof;*** 3. ***to apportion the payment of rent payable under a controlled tenancy among tenants sharing the occupation of the premises comprised in the controlled tenancy;*** 4. ***where the rent chargeable in respect of any controlled tenancy includes a payment by way of service charge, to fix the amount of such service charge;*** 5. ***to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;*** 6. ***for the purpose of enabling additional buildings to be erected, to make orders permitting landlords to excise vacant land out of premises of which, but for the provisions of this Act, the landlord could have recovered possession;*** 7. ***where the landlord fails to carry out any repairs for which he is liable—*** 8. ***to have the required repairs carried out at the cost of the landlord and, if the landlord fails to pay the cost of such repairs, to recover the cost thereof by requiring the tenant to pay rent to the tribunal for such period as may be required to defray the cost of such repairs, and so that the receipt of the tribunal shall be a good discharge for any rent so paid;*** ***(ii) to authorize the tenant to carry out the required repairs, and to deduct the cost of such repairs from the rent payable to the landlord;*** ***(h) to permit the levy of distress for rent;*** 1. ***to vary or rescind any order made by the tribunal under the provisions of this Act;*** ***(j) to administer oaths and order discovery and production of documents in like manner as in civil proceedings before the high court, to require any landlord or tenant to disclose any information or evidence which the tribunal considers relevant regarding rents and terms or conditions of tenancies, and to issue summons for the attendance of witnesses to give evidence or produce documents, or both, before the tribunal;*** ***(k) to award costs in respect of references made to it, which costs may be exemplary costs where the tribunal is satisfied that a reference to it is frivolous or vexatious;*** ***(l) to award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent;*** ***(m) to require a tenant or landlord to attend before the tribunal at a time and place specified by it, and if such tenant or landlord fails to attend, the tribunal may investigate or determine the matter before it in the absence of such tenant or landlord;*** ***(n) to enter and inspect premises comprised in a controlled tenancy in respect of which a reference has been made to the tribunal.*** ***(2) A tribunal shall not have or exercise any jurisdiction in any criminal matter, or entertain any criminal proceedings for any offence whether under this Act or otherwise.*** ***(3) A tribunal may employ officers, valuers, inspectors, clerks and other staff for the better carrying out of the purposes of this Act; Provided that, where a tribunal has deputed a valuer, inspector, officer, or other person to inspect or view any premises, any report made in that behalf shall be communicated to the landlord or tenant or both.*** ***(4) In addition to any other powers specifically conferred on it by or under this Act, a tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.*** ***(5) No matter or thing done by a tribunal, or any officer, valuer or inspector or other person deputed by the tribunal shall, if done bona fide in the execution or purported execution of the provisions of this Act or any subsidiary legislation made thereunder, subject such tribunal, officer, valuer, inspector or other person to any action, liability, claim or demand whatsoever.*** ***(6) Any person who, without lawful excuse, fails to comply with any order, requirement or summons given or issued under paragraph (j) of subsection (1) of this section, or who, having attended as a witness under summons, departs without the permission of the tribunal or fails to attend after any adjournment after being ordered to attend, shall be guilty of an offence and liable to a fine not exceeding one thousand shillings.”*** 1. 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.”*** 1. The jurisdiction invoked by the ex-parte applicant gives this court the power to check whether the 1st respondent acted in excess of its powers pursuant to **Section 13 (5)** of the **Environment and Land Court Act**. In applying the principles set out in the above authority to the circumstances of this case, the ex parte applicant is displeased with the manner in which the 1st respondent issued orders on 27th June, 2025 in BPRT Case No. E553 of 2025,and further rulings and orders delivered and issued on 28th July, 2025 in BPRT Case No. E178 of 2025 and E553 of 2025. Looking at the tendered evidence, I note that the ex parte applicant while arguing that the 1st respondent acted in excess of its powers, placed no material before the court to demonstrate such excesses. 2. Judicial review proceedings are concerned with the process leading up to the determination of the matter. The evidence in this case as demonstrated by the ex-parte applicant presents a completely different view of the nature of what is claimed. The evidence relied on seems to bear witness to the outcome of what transpired before the 1st respondent. The only way that the court can assess whether there was any excess could be through a perusal of the respective proceedings in the different matters before the 1st respondent. If I was to overlook this fundamental aspect, and decide the matter based on the material presented before me, it will be very easy for the court to assume an appellate jurisdiction. 3. It is my finding that in the absence of such critical documentation being typed proceedings in the respective files, the court is unable to determine whether the 1st respondent acted in excess of its powers. The typed proceedings would disclose better particulars of whether or not there were any omissions and commissions by the 1st respondent, whether there was fair hearing and whether sufficient notices were issued or otherwise. For this reason, I find that the ex-parte applicant has failed to sufficiently demonstrate the above. Thus, I find no merit in the notice of motion dated 5th August 2025, the same 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.** **JUDGE** **15/06/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Andiwo for the Exparte/applicant* *Mr. Messo holding brief for Prof. Lumumba for the 2nd respondent.*