R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is a locus classicus on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It also brought into common parlance the oft-quoted aphorism “Not only must Justice be done; it must also be seen to be done.” This leads us to the curious case of the Business Premises Rent Tribunal (the Tribunal).

Established under Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, (Revised 2015), the tribunal seats at View Park Towers in Nairobi, with regional offices and has jurisdiction over controlled tenancies. Section 2 of the Act defines a controlled tenancy as a tenancy of a shop, hotel or catering establishment which;

  1. Has not been reduced into writing; or
  2. In the event that it has been reduced into writing and which;
  • Is for a period not exceeding five years; or
  • Contains a provision for termination, other than for breach of covenant, within five years from the commencement thereof; or
  • Relates to premises of a class specified by notice in the Gazette by reference to rent paid or rateable value entered in valuation for Rating Act (Cap 266), classes of shops, hotels or catering establishments tenancies of which shall be regarded as controlled tenancies regardless of the form or period of such tenancies.

Drawing from the above jurisdiction, it is evident that thousands of parties seek redress at the tribunal. The only exception to the above provision is in relation to controlled tenancies in which the government, community, or local authority is a party either as a landlord or tenant. While the number of persons appointed to the tribunal has not been specified under section 11, the common practice sees one chairperson who seats both at the Nairobi office and at the regional offices on a revolving basis.

Suppose a case emerges (and they have) where a party has no faith in the chair person, or the subject matter to be adjudicated upon raises conflict of interests concerns? What then becomes of the basic doctrine of access to justice that has been boisterously enshrined under Article 48 of the Constitution? Needless to say, an application for recusal on any ground would, matter-of-factly, be a waste of time. Recusal, therefore, being coronary to the constitutional right of access to justice, the tribunal crumbles upon its own foundation leaving litigants and other interested parties at its mercy.

Prima facie, it seems that the most logical alternative to circumventing the tribunals “judge-jury-executioner” status would be by way of judicial review. Interestingly, further exposing its curiosity, should a litigant successfully challenge a decision of the tribunal by way of judicial review proceedings, the same matter will still be referred to the tribunal for determination. There are a number of decided cases in this regard. However, the judgment in Republic v Chairman Business Premises Rent Tribunal & 2 others Ex-Parte Abdulkadir Hubess [2017] eKLR distinguishes itself in demonstrating the self-inflicted curiosity apparent in the tribunal.

Section 15 of the Act provides that “any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court”. Ordinarily, the urgency of the subject matter in a majority of tribunal causes dissuades parties from preferring appeals. Coupled with the fact that the Environment and Land Court is one of the most diary-congested in Kenya, the uptake of appeals based on records at the judiciary from the tribunal remain minimal.

We propose a number of solutions to the above challenges. First and most apparent, Section 16 provides to the minister, minister being the “minister for the time being responsible for matters relating to commerce”, the power to from time to time make regulations for the better carrying out of the provisions of the Act. Second, an amendment to the Act specifying the number of persons appointed under Section 11 of the Act, especially with regard to the regional offices.