THE UNIVERSITY OF NAIROBI

SCHOOL OF LAW
MODULE 1

Business Premises Rent Tribunal

GROUP 1
INSTRUCTOR: KOKI MBULU

THE BUSINESS PREMISES RENT TRIBUNAL

Landlord and Tenant (Shops, Hotels and Catering establishments) Act Chapter 301 of The Laws of Kenya.

Business Premises Rent Tribunal 2013

1.0 Background
1.1 Distinction between a Tribunal and a Court.
Oxford dictionary of Law, 2002 edition defines tribunal as a body established under an Act
of Parliament to decide claims and disputes arising in connection with the administration of
legislative schemes, normally of a welfare or regulatory nature1 Examples are employment
and Labour Tribunals and rent assessment committees. They exist outside the ordinary courts
of law but their decisions are subject to judicial control by means of the doctrine of ultravires
and in cases of error of law on the face of records.
The aforesaid distinction was made in John Nyawira Kiama and three others v Nanyuki Equator
Sacco Limited2 where the applicant sought to rely on the then Section 18 of the Civil Procedure
Act which stated that the High Court could transfer a case to a subordinate court and hence
the Business Premises Rent Tribunal. The court held that a tribunal did not fall under the
definition in Section 2 of the Civil Procedure but that a tribunal is; sought because they have the
advantages of speed, cheapness, informality and expertise.3

2.0 Establishment
The Business Premises Rent Tribunal is established by Section 11 of the Landlord and Tenant
(shops, hotels and catering establishments) Act of 1965, Chapter 301 of The Laws of Kenya with
the primary prerogative of adjudicating disputes between landlords and tenants in controlled
tenancies.
Section 2(1) of the Act4 defines controlled tenancy to include the tenancy of a shop, hotel or
catering establishment which has not or has been reduced to writing, is for a period not
exceeding five years and contains provisions for termination and that it excludes tenancies to
which the government, community or local authority is a party, whether as landlord or tenant.

3.0 Composition:
The Tribunal comprises person or persons appointed by the Cabinet Secretary (an equivalent of
a Minister under the Act) 5and is headed by a chairperson who must be an advocate of the High
Court of Kenya of not less than five years standing. It is however notable that those
appointments shall take into consideration the regional, ethnic, religious and cultural diversity

Oxford Dictionary, 2002 edition, Oxford University Press.

John Nyawira Kiama and three others v Nanyuku Equator Sacco Limited [2006] eKLR.
3 P.P. Creig Administrative Law, 5th Edition 2003, 253.
4 Landlord and Tenant (Shops, hotels and catering establishments) Act of 1965 Chapter 301 of the Laws of
Kenya.
5
Ibid, Section 11
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of the people of Kenya and that the persons appointed must meet all the requirements of
Chapter six of the Constitution.6

4.0 Powers and functions of the Tribunal:

The Tribunal can only hear and determine civil disputes arising from controlled tenancies and
cannot exercise jurisdiction in criminal matters.7 Section 12 of the Landlord and Tenant (Shops,
hotels and catering establishments) Act outlines the functions and the powers of the tribunal to
include:8
a)
b)
c)
d)
e)
f)
g)
h)
i)

j)
k)
l)
m)
n)
o)

To determine whether a tenancy is controlled or not.

To determine the rent payable in respect of a controlled tenancy upon application.
To permit the levy for distress for rent.
To fix the amount of the service charge payable where the rent includes such charges.
To make orders for recovery of possessions and payment of rent areas or mesne profits.
To vary or rescind any order or decision it has made.
To award compensation for any loss incurred by a tenant on termination of tenancy in
respect of goodwill.
To enter and inspect premises in respect of which a reference has been made to it.
To administer oaths and other discovery and production of documents in like manner as
civil proceedings before the High Court; to require any landlord or tenant to disclose
any information or evidence which it (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.
To authorize tenants to carry out repairs and deduct such costs from the rent payable.
Award costs in respect of references made to it especially where it is satisfied that the
reference was frivolous or vexatious.
To apportion rent payable among tenants sharing occupation of a premise.
To make orders permitting landlords to exercise vacant land out for the purposes of
additional buildings being erected.
To investigate any complaint relating to controlled tenancy and make orders it deems fit.
To employ other staff to facilitate delivery of its mandate.

5.0 Reference to the Tribunal.

A tenant may upon notifying the landlord that he disagrees with the tenancy notice and before
the date that the notice is to take effect, refer the matter to the tribunal and such notice shall not

6The

Constitution of Kenya 2010.

n1(Section 12(2))
8
n1(Section 12(1))
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Business Premises Rent Tribunal 2013

be of any consequence or effect until the determination of the tribunal.9 The law requires the
tribunal to notify the landlord within seven days of receipt of the reference.10
The Tribunal will then hear the parties involved in the reference and in its determination, may:
Approve the terms of the tenancy notice in its entirety or may even make amendments it
deems fit in the circumstances.
Order that the tenancy notice be of no effect and any such orders as it thinks just.
Terminate the terms and conditions of the controlled tenancy or rights or services
enjoyed by the tenant on such conditions it deems appropriate.
Determine the rent payable having regard to the terms thereof and the rent at which
would be paid in open market.
Thereafter, no further tenancy notice shall be given based on any of the matters affected by the
determination. It is however notable that where the tenant fails to notify the landlord of
intention to refer the matter to the tribunal or non-compliance with the tenancy notice, such
notice shall have effect from the date therein specified.
Section 16(1) of the Landlord and Tenant (Shops, hotels and catering establishments) Act
mandates the Minister (now Cabinet Secretary) to make regulations for the better execution of
the tribunals mandate. These regulations include:

The manner in which the tribunal conducts its business.

The procedure in connection with any reference to the tribunal.
The determination of matters by the tribunal.
The fees payable in respect of any matter or thing to be done under the Act.
The scale and taxation of costs and expenses of witnesses in proceedings before a
tribunal.

The Chief Justice can however, make other rules prescribing the procedure, fees payable or
costs in any proceedings in the High Court or any other court under the Act.11

6.0 Judicial Review of the Tribunals decisions.

Any party not satisfied with the determination of the tribunal can lodge an appeal at the High
Court within thirty days from the date of that determination12 and the decision of the High
Court shall be final.

9n1

(Section 6)
Ibid.
11
n1 (Section 16(2))
12 n1(Section 15(1))
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The High Court can however, extend the appeal window period when it is sufficiently
convinced that the denial of such extension would not be just and fair.13
High Court in hearing the appeals lying from the tribunal, assumes the powers of the tribunal
in addition to those conferred upon it by the law.14
There are several grounds for judicial review of the determinations of the tribunal including but
not limited to reasons that the decisions of the Tribunal were;
a)
b)
c)
d)
e)
f)

Irrational
Unproportional.
Procedurally unfair.
Made in bad faith.
Unreasonable.
Took into consideration irrelevant factors.

In Omar Mohamed Abdalla v Shaffa Khamis Shafi15 the appellant appealed the decision of the
tribunal on grounds that its determination to grant vacation orders was bad in law and
unreasonable since the vacation notice gave the tenant less than thirty days; that there was no
evidence adduced on claims of non-payment of rent by the tenant and that such order was
based on non-existent fact or evidence.
The High Court upheld the decision of the tribunal and indicated that the tribunals
determination was not only lawful but also reasonable since the relationship between the
landlord and tenant was commercial in nature and that unless otherwise agreed, the rent was
payable on monthly basis and that there was thus a sufficient ground to seek orders for vacation
of property.
In R v Chairperson Business Premises Rent Tribunal Ex-parte Samuel Kariuki and others,16 the
applicant sought orders certiorari quashing the decision of the tribunal ordering levying of
distress with regard to premises known as Basement floor for failure to pay rent. The applicant
argued the decision of the tribunal was against the rules of natural justice as the matter was
heard and determined without them being afforded an opportunity to respond to the
substantive matter. Justice Weldon Korir said thus:
The right to a fair hearing is a cardinal principle of the rules of natural justice. A
party cannot be condemned unheard. The 2nd interested party is the owner of the
premises in question and the respondent was wrong in ordering the ex-parte
applicants to pay rent to the 1 st interested party without hearing the 2 nd interested

13

Ibid.

14Ibid,

subsection 2
[2006] eKLR.
16 J.R 165/2011 [2013]eKLR
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party. The ex-parte applicants were also entitled to be heard before being ordered to
pay rent to the 1st interested party. They were never heard on the substantive
application that was before respondent.

It was held that the tribunal acted in bad faith and unreasonably in giving orders against the
applicants without affording them a hearing and that its(tribunals) total disregard of the other
proceedings on the same matter before it was not only careless but also reckless.
It is notable however, that the Courts are always reluctant to give stay orders or any other
orders prayed for by applicants or even the respondents in circumstances where parties try to
circumvent the entire reference process. In Augustus Muli t/a Fun & Joy Co. & Another v
Chemusian Co Ltd & Another, a Notice of Motion Application was filed by the applicant under
Order 41 Rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for the
order that there be a stay of execution of orders made by the Business Premises Rent Tribunal
pending the hearing and determination of the appeal. The applicants counsel told the Court
that the Business Premises Rent Tribunal had dismissed the appellants application seeking
injunction to restrain the landlord from proceeding with the distress for rent against him and
that if the stay was not granted, the applicant would be exposed to all manner of exploitation,
harassment and even eviction.
The Court dismissed the application. The Appellants conduct of going to court for protective
orders, losing the prayers; then going to the tribunal for the same orders sounded mischievous.
It was held that giving the stay would amount to travesty of justice.
In Hannah Wanjiku t/a Guthera Provision Store v Jowell T. Kamano17 the Respondent, a landlord
gave a notice under Sec 4(2) of Cap 301 to the applicant, his tenant, for the termination of the
tenancy on grounds that he wanted to occupy the premises to operate a hardware business. The
appellant opposed the notice and filed a reference to the Business Premises Rent Tribunal. This
was dismissed by the Chairman. Aggrieved by the decision of the chairman, the appellant filed
an appeal on grounds that the tribunal erred in law and that its determination was
unreasonable.
It was held that the notice of termination contained all the ingredients required under the act
and it was clear the tenant knew exactly why the tenancy was terminated and that the tribunal
did not err in law and neither was its determination unreasonable.

17

[2004] eKLR.

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