Esther Victoria Wanjiku Mahoro v Mary Wambui Githinji, Lucy Wangari Githika, Richard Makara Gitau & Chairman, Rent Restriction Tribunal [2021] KEELC 1650 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

JUDICIAL REVIEW CASE NO. 6 OF 2020

IN THE MATTER  OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA

AND

IN THE MATTER OF THE CIVIL PROCEDURE ACT ( CAP 21) & THE CIVIL  PROCEDURE RULES 2010

AND

IN THE MATTER OF  RENT RESTRICTIONS ACT, CAP 296 LAWS OF KENYA

AND

IN THE MATTER OF THE RENT RESTRICTION TRIBUNAL  CASE NO. 1132 OF 2020

AND

IN THE MATTER  OF AN ORDER  ISSUED ON THE 6TH AUGUST  2020, BY THE  CHAIRMAN RENT RESTRICTION  TRIBUNAL

AND

IN THE MATTER  OF AN APPLICATION FOR LEAVE  TO APPLY FOR  JUDICIAL  REVIEW  ORDERS OF CERTIORARI , PROHIBITION AND MANDAMUS

BETWEEN

ESTHER VICTORIA WANJIKU MAHORO...............................................APPLICANT

AND

MARY WAMBUI GITHINJI...............................................................1ST RESPONDENT

LUCY WANGARI GITHIKA..............................................................2ND RESPONDENT

RICHARD MAKARA GITAU............................................................3RD RESPONDENT

THE CHAIRMAN,RENT RESTRICTION TRIBUNAL................4TH  RESPONDENT

JUDGMENT

By a Chamber Summons Application dated 16th October 2020, by the Ex Parte Applicant she seeks for orders that;

a) An order of Certiorari to remove into this Honourable  Court  and quash the order dated 6th August  2020, issued by the Chairman,  Rent Restriction  Tribunal, Nairobi.

b)  An order of prohibition  against the Respondents  from proceedings and pursuing  the realization  and implementation  of the  impugned  court order issued on the 6th August 2020.

c)  An order of prohibition against the 4th Respondent from collecting any rents and or  making any determination of the impugned Application by the 1st, 2nd &  3rd Respondents.

d) An order of mandamus directed to the Respondents to withdraw / and or cancel the  order and its consequences thereto  until the disputed issues are agreed  upon.

e)  Any other orders  deemed expedient and just in the circumstances.

In her Supporting Affidavit, Esther Victoria Wanjiku  Mahuro averred that  she is the bonafide wife of the late Joseph Mahuro Maina. That a Succession Cause is yet to be filed with regards   to the Estate of the Deceased, so that whoever has a claim can justify his/ her entitlement. That the 1st to 3rd Respondents filed an Application at the Rent Restriction Tribunal, being Case No. 1132 of 2020,and obtained an Order that her authorized agent namely Pause Shelter Ltd,  should remit the rent collected  to the Tribunal,  until the Application is heard and determined. That the   said rents are in reference to  a house that stands  on Juja Kalimoni  10/92, whereby  there are several  rooms, whose rents  are about Kshs.4,000/- and above. That the  4th Respondent  gave  an order that the said rent should be deposited to the tribunal until the matter is heard and determined.

Further, that since her husband passed on, she has been fully dependent on the rents collected from the property  as her only source of income in taking care  of  the family’s day to day  needs. That the said Order meant that she is deprived off her  only source of livelihood and thereby  exposing her family to hardship, especially during the hard economic times. That there is a pending matter at the Chief Magistrates Court at Muranga, being CMCC No. 118 of 2020,between the Applicant and the 1st to 3rd Respondents and a Court Order issued to that effect and the Respondents have intentionally refused to raise their grievance  if any through that pending Court case. That she has been advised by her Advocate which advice believes to be true, that the Rent Restriction Tribunal, has no jurisdiction to hear and entertain the Respondents Application and or to issue the said order. Further that she is greatly aggrieved and overly prejudiced by the action taken by the 4th Respondent in issuing orders which are in contravention of the  Fair Administrative  Act and natural justice.

That she is apprehensive that the Application and the orders issued are meant to punish her and her family and the Respondents have no claim to the Applicant’s property and neither does it  form part  of the Estate of the Deceased. That if the orders sought are not granted, the Applicant  will be exposed to  unnecessary hardship, strenuous life and loss of a lifetime investment.

In her Statutory Statement dated 16th October 2020, the Ex Parte

Applicant averred that the exercise of power by the 4th Respondent  was ultra vires, since  the tribunal cannot determine  succession matters of an estate of the Deceased, under Cap 160 Laws of Kenya. That the 1st to 3rd Respondents have no legal capacity to file  the Application that  gave rise to the Ordersissued at the Tribunal . Further that the monthly rents collected prohibit the tribunal from issuing such Orders, rendering the tribunal incapacitated and the property  L.R Juja /Kalimoni, is exclusively registered in the Applicant name, and her son and does not from part  of the estate of  the  Deceased. That unless the Court intervenes, the Applicant would suffer irreparable harm

The Judicial Review Application was not opposed as the Respondents failed to file any documents in opposition. However, this being a Judicial Review Application, the Ex Parte Applicant is required to prove her case on the required standard of balance of probabilities, even though her evidence remains uncontroverted.

The Judicial Review application was canvassed by way of written submissions, which the Court has carefully read and considered. The Court too has also read and considered the Chamber Summons, the Verifying Affidavit and finds that the issue for determination is whether the  Ex Parte Applicant is entitled to the Judicial Review Orders sought .

The Purpose of Judicial Review was set out in the case of  Municipal Council of Mombasa…Vs…Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where 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 make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made.  In making the decision, did  the decision maker take into account relevant matters or did they 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”.

Further, circumstances under which orders of Judicial Review can be issued were elaborated byJustice Kasule in the Uganda case of Pastoli …Vs..Kabale District Local Government Canal & Others (2008) 2EA 300 at pages 300-304.

“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 the decision or making the act, the subject of the complaint.  Acting without jurisdiction or ultra vires or contrary to the provision of a 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, 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 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 to act 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 legislature instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehidswi…Vs…Secretary of State for the Housing Department (1990) AC 876”.

What Judicial Review Orders entails was elaborated in the case of Kenya National Examination Council…Vs…Republic Exparte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No.266 of 1996, where the Court held that: -

“That now bring us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case.  What does an Order of Prohibition do and when will it issue?  It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules or natural justice.  It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4th Edition vol.1 at Pg.37 paragraph 128. ”

From the foregoing cases, the applicable law in cases of Judicial review have already been established and this Court will now consider the above applicable law and further consider the available facts to determine whether the Exparte Applicantis deserving of the orders sought.

The Applicant has sought for orders of Certiorari to quash the decision of the 4th Respondent in that the said decision was made ultra vires.   An order of Certiorari can be made if the Court is satisfied that a tribunal made a decision in excess of its jurisdiction, and further the Court can also issue an order of prohibition prohibiting the said tribunal from proceedings with the such proceedings.

The Court had already noted that the Applicant’s contention remains uncontroverted. The Applicant contended that she was served with an Orderfrom the Rent Restriction Tribunal, Ordering her and/or her agents to remit the rents for the houses in the suit property to the tribunal. However, the rent of the said properties are about Kshs.4,000/= and that the said rent is way beyond the pecuniary jurisdiction of the Rent Restriction Tribunal. As the allegations remain uncontroverted and in the absence of any other contrary assertion, the Court has no option but to believe  that the rent of the said property was Kshs.4,000/= and above per house.

The Jurisdiction of the Rent Restriction Tribunal, to hear and determine matters that relate to dwelling houses   is to be found under the provisions of  Section 2(1) of the  Rent Restriction Act, Chapter 296 Laws of Kenya, which provides that

2. (1) This Act shall apply to all dwelling-houses, other than -    (a) excepted dwelling-houses;

(b) dwelling-house let on service tenancies;

(c) dwelling-houses which have a standard rent exceeding two thousand five hundred shillings per month, furnished or unfurnished.

The Court has already  held that the  dwelling houses in question have a standard rent of Kshs. 4,000/=and above. The provisions of Law are clear that the  said tribunal does not have jurisdiction, to deal with rent beyond Kshs. 2500/= per month. Therefore, it follows that in adjudicating over a matter which is in excess of its jurisdiction, the tribunal acted  ultra vires. See  the case of Johakim Abayo …Vs…Mokua Damacline Nyamoita [2021] eKLR where the Court held that

“21. This court has in the past pronounced itself on how the Tribunal should proceed whenever it is faced with a dispute where the agreed or prevailing monthly rent is more than Kshs 2,500. [see Republic v Chairman Rent Restriction Tribunal; Samuel Joel Kibe & another (interested parties) Exparte Charles Macharia Mugo [2019] eKLR. For the umpteenth time, it is emphasized that the first business of the Tribunal in such circumstances is to assess standard rentwith a view to establishing whether it has jurisdiction or not.  Unless and until standard rent is ascertained, the Tribunal has no jurisdiction to entertain or issue orders in a dispute where the agreed or prevailing rent is more than Ksh 2,500 per month.  It is not lost to this court that it is with this in mind that Parliament, through the Act, gave the Tribunal powers to assess rent on its own motion or upon application whenever it is seized of a dispute.  The Tribunal assumes adjudicatory jurisdiction in such circumstances only when it has ascertained that the standard rent falls within the limits set by the statute.  It ought to be understood that the Constitution has established other relevant adjudicatory bodies where tenancy disputes involving higher monthly rents are to be adjudicated.

22. Arising from the foregoing, I find that the Tribunal erred in holding that it had jurisdiction to entertain the claim in the suit before it in a context where the parties had agreed on a monthly rent of Kshs 20,000/= during the subsistence of the tenancy.”

From the foregoing, the Court finds and holds that the 4th Respondent had no jurisdictions to hear and determine the matter before it involving the suit property. Having found that the 4th Respondent acted in excess of its jurisdiction, then any orders that was made ought to be quashed and the proceedings struck out. Further, the 4th Respondent is hereby prohibited from proceeding with the matter.

Having carefully read and considered this Judicial Review Application together with   Affidavits and Written Submissions, the Court finds that the said Judicial Review Application is merited and the same is allowed entirely with costs to the Ex Parte Applicant.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 8TH DAY OF OCTOBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Lucy