https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3295

Republic v Business Premises Rent Tribunal & another; Acacia Supermarket Limited & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E080 of 2025) [2026] KEELC 3295 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3295 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Judicial Review Case E080 of 2025 CG Mbogo, J June 2, 2026 (FORMERLY KAJIADO ELCLJR NO. E020 OF 2025) (FORMERLY NAIROBI ELCLJR NO. E078 OF 2025) IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF: THE ILLEGAL ORDERS ISSUED BY THE BUSINESS PREMISES RENT TRIBUNAL (HON. JAMES NDEGWA, HON. JOYCE MURIGI & HON. PATRICK KITUR) AND IN THE MATTER OF: NAIROBI BUSINESS PREMISES RENT TRIBUNAL REFERENCE CASE NO. E1240 OF 2025 DALTON SAITOTI VS JOHN WAINAINA THUO T/A ACACIA SUPERMARKET LIMITED & JENNIFER WANGONDO AND IN THE MATTER OF: SECTIONS 2, 3, 6, 9, 12, 13, & 15 OF THE LANDLORD TENANT (SHOPS, HOTELS AND CATERING ESTABLISHMENTS) ACT, Cap 301, LAWS OF KENYA Between Republic Applicant and The Business Premises Rent Tribunal Respondent and Dalton Saitoti Interested Party and Acacia Supermarket Limited Ex parte Applicant John Wainaina Thuo Ex parte Applicant Jennifer Wangondo Ex parte Applicant Ruling 1.Before this court for determination is the notice of preliminary objection dated 23rd December, 2025 filed by the 1st to 3rd exparte applicants challenging the interested party’s notice of motion applications dated 11th December, 2025, 15th December, 2025 and 22nd December, 2025 on the following grounds:-i.That this honourable court sitting as a judicial review court lacks the requisite jurisdiction to hear and determine the said interested party’s applications;a.The orders sought by the interested party in the said applications, whether for status quo or for injunctive relief restraining eviction or for a mandatory injunction restoring quiet possession and/or break-in orders cannot be granted by this court in judicial review. Determining whether such orders could issue would require the court to delve into the merits of the dispute between the parties herein, which lies beyond the scope of judicial review.b.In any event, the subject matter before this court in this matter is not the performance and/or enforcement of the lease agreement between the parties herein but rather whether the business premises rent tribunal (BPRT) had jurisdiction to entertain and/or issue orders in Nairobi BPRT Reference no. E1240 of 2025, a reference that the interested party had filed against the 2nd and 3rd ex parte applicants herein before the BPRT.ii.That the said interested party’s applications are otherwise an abuse of this honourable court’s process. In the event, the 1st to 3rd exparte applicants shall urge the honourable court to dismiss with costs the said interested party’s applications dated 11th December, 2025, 15th December, 2025 and 22nd December, 2025 in limine. 2.The notice of preliminary objection was canvassed through written submissions. The 1st to 3rd exparte applicants filed their written submissions dated 21st April, 2026. The interested party did not file any submissions. Be that as it may, I have considered the preliminary objection and the written submissions filed. The issue for determination is whether this court has the jurisdiction to hear and determine the applications filed by the interested party. 3.Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 stated as follows:-“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 4.Also, in the case of John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, it was held that:-“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.” 5.From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from and not outside of pleadings. 6.From the above, I am satisfied that the preliminary objection raises a pure point of law as it challenges the jurisdiction of this court to hear and determine the three chamber summons applications filed by the interested party. Indeed, it is trite that the jurisdiction of any court provides the foundation for its exercise of judicial authority. As a general principle, where a court has no jurisdiction, it has no basis to proceed with judicial proceedings. 7.The Court of Appeal in The Owners of Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] KLR 1 stated:-“Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.” 8.The interested party filed three applications. The first chamber summons dated 11th December, 2025 seeks the following orders:-1.That this honourable court be pleased to certify this application as urgent and admit it for hearing in priority given the imminent risk of enforcement of the notice dated 5th December, 2025 served upon the 1st interested party.2.That pending the hearing and determination of the substantive judicial review application and/or pending the court’s directions on 22nd January, 2026, this honourable court be pleased to order that the status quo regarding occupation, possession and quiet enjoyment of the premises situated on the 1st and 2nd floors of Acacia Pavilion by the 1st interested party be maintained.3.That this honourable court be pleased to stay, suspend and bar any re-entry, eviction, repossession, distress for rent, forfeiture or any coercive action arising from or pursuant to the notice dated 5th December, 2025 issued under clause 5.1 of the lease agreement.4.That this honourable court be pleased to issue such further order as may be necessary for the preservation of the subject matter pending the determination of the substantive judicial review.5.That costs of this application be provided for. 9.The second chamber summons is dated 15th December, 2025 and filed by the interested party. He sought the following orders:-1.That this honourable court be pleased to certify this application as urgent and admit it for hearing in priority given the imminent risk of enforcement action by the landlord and the unlawful closure of the demised premised.2.That pending the hearing and determination of the substantive judicial review application and/or pending the court’s directions scheduled for 22nd January, 2026, this honourable court be pleased to order that the status quo regarding occupation, possession, access and quiet enjoyment of the premises situate on the 1st and 2nd floors of Acacia Pavilion by the 1st interested party be maintained.3.That this honourable court be pleased to order that the landlord do forthwith re-open the demised premises, which were unlawfully closed on or about 12th December, 2025 and that the status quo ante closure be reinstated and preserved pending the hearing and determination of the substantive judicial review application.4.That pending the hearing and determination of the substantive judicial review application, this honourable court be pleased to stay, suspend and bar re-entry, eviction, repossession, distress for rent, forfeiture, closure or any other coercive action, whether arising from the notice dated 5th December, 2025 or otherwise.5.That the Officer Commanding Station (OCS) having jurisdiction over the area be and is hereby directed to supervise and ensure peaceful re-opening, re-entry and continued occupation of the said premises by the 1st interested party and to prevent any breach of peace.6.That for avoidance of doubt, the orders of status quo herein shall mean the continued occupation, possession, access and quiet enjoyment of the premises by the 1st interested party as existed immediately prior to the unlawful closure of 12th December, 2025.7.That failure to grant foregoing orders shall render the pending judicial review proceedings nugatory, the substratum thereof having been destroyed by the unlawful closure and denial of access to the premises.8.That this honourable court be pleased to issue such further or consequential orders as may be necessary for the preservation of the subject matter pending determination of the substantive judicial review.9.That costs of this application be provided for. 10.The third chamber summons dated 22nd December, 2025 is seeking the following orders:-1.That this application be certified as urgent and be heard ex parte in the first instance.2.That pending the hearing and determination of this application inter partes, this honourable court be pleased to issue a mandatory injunction compelling the respondent, whether by itself, its agents, servants, caretakers or auctioneers, to forthwith reopen the premises known as Acacia Supermarket and restore the applicant into quiet possession, occupation and access thereto.3.That pending the hearing and determination of this application inter partes, this honourable court be pleased to issue a temporary injunction restraining the respondent, whether by itself, its agents, servants, caretakers or auctioneers, from:-a.Evicting or attempting to evict the applicant.b.Locking or re-locking the premises.c.Re-entering or repossessing the premises.d.Levying distress for rent.e.Removing, attaching, forfeiting or selling the applicant’s goods.f.Or otherwise interfering with the applicant’s possession and occupation of the premises, otherwise than through due process and with the leave of this honourable court.4.That pending the hearing and determination of the substantive judicial review proceedings herein, the status quo ante as at 4th December, 2025 be maintained.5.That the Officer Commanding Station (OCS) Kitengela Police Station be directed to ensure compliance with and enforcement of the orders of this honourable court strictly for purposes of law, order and obedience to court authority and not to adjudicate or determine the rights of the parties herein.6.That costs of this application be in the cause. 11.Pursuant to leave granted on 4th December, 2025 the 1st to 3rd exparte applicants filed the substantive notice of motion dated 8th December, 2025 seeking orders of certiorari and prohibition. The leave granted on the said date further operated as stay of all proceedings and orders emanating from the Business Premises Rent Tribunal. 12.The orders issued by the court, in my view, may have precipitated the three applications filed by the interested party as he moved the court seeking orders of status quo to issue pending the determination of the substantive application. He also seeks temporary and mandatory orders of injunction. Judicial review proceedings are sui generis in nature. They constitute neither ordinary civil proceedings nor criminal proceedings. They are public law remedies through which the high court exercises supervisory jurisdiction over subordinate courts, tribunals, public bodies and persons exercising public authority. 13.I take note that the interested party did not file his written submissions opposing the instant preliminary objection. A reading of the three applications is plainly clear that the interested party seeks the intervention of this court to prevent the exparte applicants from interfering with the operations of Acacia Supermarket Limited. The remedies sought are against individuals and not public bodies. From the record, heavy reliance has been placed on the lease dated 18th April, 2025 that cemented the relationship between these parties. As it is, these remedies are available and can only be pursued through a civil claim and not through judicial review proceedings. I say so for the reason that the substantive motion challenges the decision making process of the Business Premises Rent Tribunal. 14.In the case of Republic v Minister for Information and Communications & 5 others Ex-parte Econet Wireless Kenya Limited [2006] KEHC 2647 (KLR), it was held:-“I am of the view that the Law Reform Act and Order 53 of the Civil Procedure Rules of Kenya do not provide for the grant of Injunctions, whether of a temporary or final nature.” 15.Also, in Cortec Mining Kenya Limited v Cabinet Secretary, Attorney General & 8 others [2015] KECA 138 (KLR), relied on by the exparte applicants, the Court of Appeal observed as follows:-“34.Can this court grant an order of injunction in a judicial review matter such as this one? For starters, to grant an injunction would amount to giving a relief or remedy that was not even sought in the high court in the first place.The high court could only grant these three prerogative orders. It could not in the judicial review under Section 8 of the Law Reform Act grant an order of injunction such as is sought in the motion before us for the simple reason that injunction is not authorized by and falls outside the amplitude of the reliefs available under Section 8 of the Law Reform Act. An injunction is also not exclusively within the amplitude of public law remedies. But even more compelling is the fact that subsection (3) of Section 3 of the Appellate Jurisdiction Act requires this court –“in the hearing of an appeal in exercise of the jurisdiction conferred by the said Act to apply the law applicable to the case in the high court.”It is plain to see that in judicial review, the court is concerned with public law remedies. An injunction is a private law remedy, and it can also serve as a public law remedy. However, in the context of judicial review, it is not available either in the high court or in this court on appeal under the Law Reform Act.” 16.While I place reliance on the above cited authorities, I am in agreement with the exparte applicants that this court does not have the jurisdiction to grant the orders of injunction as sought in the three applications owing to the nature of judicial review proceedings before this court. For this reason, the chamber summons dated 11th December, 2025, 15th December, 2025 and 22nd December, 2025 are hereby dismissed with costs to the 1st to 3rd exparte applicants.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 2ND DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE02/06/2026.In the presence of:Ms. Vena Atieno - Court assistantMr. Jepher Kere for the Ex-parte ApplicantsInterested Party – present in person