[2022] KEHC 11432 (KLR)

Republic v Deputy Chairman of the Rent Restriction Tribunal at Nairobi; Theuri (Exparte Applicant); Ogola (Interested Party) (Miscellaneous Civil Application E097 of 2021) [2022] KEHC 11432 (KLR) (Judicial Review) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11432 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application E097 of 2021

AK Ndung'u, J

May 12, 2022

Between

Republic

Applicant

and

Deputy Chairman of the Rent Restriction Tribunal at Nairobi

Respondent

and

Benson Theuri

Exparte Applicant

and

Geofrey Ogola

Interested Party

Judgment

1. Pursuant to leave of this court dated June 23, 2021, the applicant moved this court vide a Notice of motion dated July 2, 2021for orders;i.An order of Certiorari to remove into this Honourable Court and squash the Orders of the Deputy Chairman of the Rent Restriction Tribunal issued on June 18, 2021in the Rent Restriction Tribunal Case No. E107 OF 2021. ii.An order of Prohibition to prohibit the Respondent from proceeding in any manner whatsoever with Rent Restriction Tribunal Case No. E107 OF 2021. iii.An order for the costs of this application to be awarded to the Applicant.

2. The application is premised on the statutory statement dated June 22, 2021and the affidavit of Benson Theuri, (the applicant) and a further affidavit sworn by him on the August 12, 2021the gist of which is that the respondent acted without jurisdiction as the rent payable by the Interested Party was Ksh. 50,000 which was beyond the respondent’s pecuniary jurisdiction. The respondent is also accused of denying the applicant a hearing contrary to the principles of natural justice. It is the applicant’s case that the respondent misinterpreted the law.

3. The application is opposed. The 1st respondents case is set out in the replying affidavit sworn by Beatrice Wambui Mathenge sworn on the November 26, 2021. She urges that the application is prematurely before the court since judicial review is a remedy of last resort after exhaustion of all internal mechanisms and other remedies provided in law. It is added that the applicant failed to prosecute a preliminary objection filed in the impugned proceedings and that the standard rent was not known at the time.

4. The Interested Party’s response is found in his replying affidavit sworn on July 23, 2021. He avers that that the applicant has not exhausted all the available remedies before resulting to judicial review. The applicant thus offends the Fair Administrative Action Act.

5. The application was canvassed through written submissions which submissions I have considered including the ones not specifically mentioned in my analysis.

6. I have applied my mind to the application the statutory statement, the supporting affidavit, the replying affidavits and submissions by learned counsel. Of determination is whether the applicant has established a case for the grant of judicial review orders sought.

7. The Rent Restriction Tribunal is a quasi-judicial body which is subject to the supervision of this court under the court’s judicial review jurisdiction. The question begging an answer, then, is what is the scope of judicial review? In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 the Court of Appeal expressed itself as follows:“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision…It is the duty of the decision maker to comply with the law in coming to its decision, and common sense and fairness demands that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorised by the statute creating it and in the manner authorised by statute.”

8. In the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. It was held while citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 that;“In order to succeed in an application for judicial review, the applicant has to show that the decision or 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 a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. 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 our instant suit, by his own averments before the Tribunal the Interested Party confirms that the rent payable in respect of the rented premises was Ksh 50,000. In the supporting affidavit sworn on the May 5, 2021he states at paragraph 2;“2).That I have been occupying the suit premises located at Golden Mile Apartment Ruaraka since the year 2013 to March 2021 and currently paying a rent of Ksh 50,000. ’’

10. It is plain and obvious that the question of the rent payable in respect of the premises was not in doubt. Section 2 of the Rent Restriction Act states that its provisions extend to all dwelling houses other than;a)Excepted dwelling houseb)Dwelling house let on service tenanciesc)Dwelling houses which have a standard rent exceeding two thousand five hundred per month, furnished or unfurnished.

11. The rent payable in our case was agreed at a figure way above the Ksh 2,500 envisioned under the Act. The matter was thus beyond the jurisdiction of the tribunal. The tribunals jurisdiction is granted by statute and it would not confer upon itself Jurisdiction other than as provided in the relevant Act. By entertaining the matter, the tribunal acted without jurisdiction, thus ultra vires and the decision reached is tainted with illegality.

12. The Respondent and the Interested Party have taken the position that the suit herein is premature as the applicant has not exhausted other available remedies as per the dictates of Section 9(2) of the Fair Administrative Action Act.

13. True, a party is bound to exhaust other available remedies before resulting to judicial review. I hasten to add that such exhaustion will be within the context of bodies or forums seized of jurisdiction. Where there is no jurisdiction, a court or tribunal should not move a single step. Where the question of jurisdiction is raised, nothing in my view, stops a party approaching this court under judicial review even before a tribunal pronounces itself on the matter before it. In our case, even before the impugned orders were issued.

14. In the premises, am satisfied that the applicant has established a founded case for the grant of the review orders sought. I find the Notice of Motion dated 2nd July 2021 meritable and I allow it in its entirety. I make the following orders;i.An order of Certiorari be and is hereby issued to remove into this Honourable Court and squash the Orders of the Deputy Chairman of the Rent Restriction Tribunal issued on June 18, 2021in the Rent Restriction Tribunal Case No. E107 of 2021. ii.An order of Prohibition be and is hereby issued to prohibit the Respondent from proceeding in any manner whatsoever with Rent Restriction Tribunal Case No. E107 of 2021. iii.Costs to the Applicant.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2022. ..........................A. K. NDUNGUJUDGE