1. The application that is before this court for determination is the Originating Motion dated 2nd October 2025 wherein the applicants are seeking the following reliefs:
1) THAT this application be certified urgent and service thereof be dispensed with and the application herein be heard Ex-parte and in the first instance.
2) THAT an order of PROHIBITION do issue directed at the 1st Respondent, the Chief Licensing Officer, Firearms Licensing Bureau, prohibiting him whether by himself, his servants, officers or agents from revoking, cancelling, suspending or in any manner whatsoever interfering with the Applicants’ duly issued firearm certificates, including Firearm Certificate No. 007204, pending the hearing and determination of this Application.
3) THAT an order of CERTIORARI do issue to remove into this Honourable Court and quash the decision, actions, and directives of the respondents leading to the unlawful confiscation and continuation detention of the applicant’s firearms, firearm certificates, and ammunition.
4) THAT an order of MANDAMUS do issue compelling the 1st Respondent to forthwith reinstate the Applicants’ firearm certificates, including Firearm Certificate No. 007204, and to return to the Applicants the firearms unlawfully seized and withheld.
5) THAT pending the hearing and determination of the substantive Originating Motion Application, that this Honourable court be pleased to issue AN INTERIM ORDER FOR STAY, restraining the Respondents, their servants, officers or agents from in any way dealing adversely with, interfering with, or continuing to withhold the Applicants’ firearm certificates and firearms.
6) THAT the costs of these proceedings be provided for.
7) Such other, further, incidental and/or alternative relief(s) as this honourable court may deem just and expedient.
The Applicants’ case;
2. The applicants case is advanced through the affidavit of AARIF IBRAHIM GANI who argues that he and the co applicant are the holders of firearm certificate No. 007204 and Certificate No. 003005 issued under the Firearms Act respectfully.
3. It is their case that on or about 24th March 2025, they were summoned to the offices of the Director of Criminal Investigations without disclosure of the reasons in writing.
4. Before they could attend to the said summons, officers of the 2nd Respondent, including officers from the Operations Support Unit (OSU), acting under the command of the 4th Respondent and on the instructions of the 3rd Respondent, unlawfully raided The applicant’s business premises.
5. The 1st applicant argues that during the raid he was subjected to a rough and aggressive interrogation in the presence of his staff and business associates.
6. He argues that the officers searched his person and his business premises without producing any warrant or lawful authority.
7. The said officers confiscated from the applicants’ firearms and ammunition as well as his Firearm Certificates.
8. He argues that an inventory of recoveries was prepared by the officers under the command of the 4th Respondent recording the items seized.
9. It is his case that the 4th Respondent issued him with a written Notice compelling his attendance at their offices.
10. The 1st applicant thereafter attended at the offices of the 4th Respondent where he recorded a formal statement and was thereafter released.
11. To date, they have not been furnished with any further communication or updates on the matter, nor has any lawful explanation been provided regarding the continued detention of the seized firearms, firearm certificates and ammunition.
12. It is their case that letters from their lawyers seeking clarification and the immediate return of the seized property have elicited no substantive response has been provided.
13. In compliance with the Fair Administrative Action Rules, 2024 (Legal Notice No. 165 of 2024), Rule 5, the Applicants issued the Respondents with a Notice of Intention to Sue.
14. The applicants argue that the continued unlawful detention of their firearms and licences has caused the Applicants grave prejudice, including deprivation the applicants of the use of property lawfully acquired and duly licensed, exposure to insecurity by denying us the lawful means of self-protection, which was the very purpose of applying for the firearms licences, violation of our constitutional rights, including property (Article 40), and fair administrative action (Article 47).
The applicant’s submissions;
15. They submit that both the applicants were duly licensed to have firearms and that they lawfully possessed firearms as civilians being License Certificate No 007204 and Certificate No. 003005 respectfully.
16. They submit that by dint of the licenses, the applicants lawfully had several firearms during the material times.
17. On or about the 24th of March 2025, the 1st applicant was summoned by the 1st Respondent to proceed to his office.
18. They further submit that even before he could do so, officers from the 1st Respondent accompanied by what the Respondent came to learn were officers from the Operations Support Unit raided his premises at Westlands on the 26th of March 2925 wherein they haphazardly ransacked the entire premises after brutally interrogating the Applicants.
19. It is submitted that upon enquiry and demand from the Applicant the officers did not show any search warrant and consequently the entire search was unlawful.
20. The officers also refused to introduce themselves and merely insisted that they were police officers.
21. They submit that the officers confiscated and seized the applicant’s properties including the firearms and ammunition.
22. The applicants submit that after several visits to the Unit and also the Firearms Bureau the applicants recorded statements and were apparently absolved.
23. They submit that the applicants are seized of the fact that with regard to the impugned document, the investigating team interrogated one ABDIKANI HASSAN DAHIR who gave details on the origin of the alleged forged letter and his detailed statement on the matter fully exonerated the applicants.
24. Subsequently the matter was escalated to the office of the Odpp and that it is within the knowledge of the applicant that the Odpp vide their letter of 16th July 2025, fully considered the matter and gave its recommendation.
25. According to the direction of the Odpp, culpability was established as against specific individuals other than the applicants and recommendation made to charge them.
26. The 1st Respondent are inexplicable in that the 1st Respondent has fully ignored the recommendations by the Odpp who is the proper authority and instead shielded the named persons.
27. Further they submit that pursuant to the finding of the Odpp which found no fault on the part of the applicants and having further regard to the confession by ABDIKANI HASSAN, the Respondents had no further justification to pursue the applicants on the subject nor did they have any reason to continue holding on the firearms and ammunition subject to this application.
28. They submit that the 1st Respondent is a Public Organ established under the Firearms Act Cap 114 Laws of Kenya by dint of an amendment to the Act in 2015 which provided:
……… there is established a Board to be known as the Firearms Licensing Board. It is clear that it is established as a legal entity with a common seal, capable of suing or being sued in that name. The main and basic role of the Board to regulate and control firearm licensing processes as more particularized in the Act. The Act donates powers to the Board under S 5 to grant firearm certificates. Under S 6 the Board is vested with powers to revoke firearm licenses under specified conditions especially where a holder breaches conditions of the license but such revocation are subject the Board giving notice…..
29. They further submit that the servants and/or agents of all the Respondents carried out an illegal search on the applicants premises on the dates stated.
30. Upon carrying out the search the officers then unlawfully seized the firearms and ammunition stated. Because the search was without a warrant, the applicants contend that the seizure of the firearms and ammunition was also illegal and in blatant violation of the applicant’s constitutional rights enshrined under article 40.
31. The applicants argue that the unlawful actions by the Respondents amount to unlawful deprivation of Private Property.
32. It has been demonstrated that at the time the 1st Respondent did not give any notice and indeed as of to date the Respondents have not given notice nor have they even given any reasons for the seizure.
33. They submit that the 1st Respondent’s act is capricious and arbitrary in the extreme and the same ought to be prohibited by action of this Honorable Court.
34. The entry and search of the applicant's premises without a search warrant was a blatant violation of Article 31, which guarantees the person’s right to privacy and protection against arbitrary search.
35. The Respondents have not shown that they satisfied the conditions that would have justified a search without a warrant.
36. Under Section 5 of Cap 114 the 1st Respondent can vary the conditions of a firearms certificate and may even revoke the certificate. But the Act specifically provides that even such action can only be taken after the giving of notice.
37. In this case the applicants lawfully held firearms were seized without their being given any notice whatsoever which actions constitute unacceptable violations of the provisions under the Firearms act. This makes the actions complained of unjust and illegal and this are further reasons making the grant of prerogative orders imperative.
38. The Respondents did not accord the applicants a hearing with regard to the issues.
39. There was no suggestion whatsoever that they had committed any offenses under the Firearms Act such as would have justified the seizure of the firearms.
40. Reliance is placed in the decision in Republic Vs Firearms Licensing Board Ex Parte Jj Okwaro where this court had opportunity to consider several issues related to actions by the Firearms Licensing Board as pertains to the Firearms Act. The Court granted prerogative orders upon being satisfied that the Board had violated the provisions of the Act, had acted in arbitrary manner and had also violated the provisions of the Fair Administrative Actions Act. It is submitted that the complaints herein are at all fours with the decision and that on the lines of the decision, the action herein should succeed.
41. In a similar decision in the case of Jimi Wanjigi Vs Firearms Licensing Board & 2 Others, the Petitioner had filed petition after the Respondents revoked his license without Notice. The Petitioner contended violation of his constitutional rights under Articles 10,35,47 and 232 of the Constitution.
42. The court held among other issues that the Firearms Licensing Board had acted arbitrarily in a manner that was procedurally unfair and without justification in the process whereof the Respondent had violated the rights of the applicant under Articles 40, 47 and 50 of the constitution And the court granted prerogative Orders.
43. At the time of the seizure the Respondents did not tender any reasons and / or justification for their actions.
44. The applicants submit that they have demonstrated in this matter that they had valid firearms certificates that allowed them to hold the firearms and the ammunition and that all the items were private properties within the meaning of Article 40 of the constitution.
45. The Applicant wrote to the Respondents with requests to release the properties on the 15th of April, 2024 and again on the 11th day of August 2025 Yet the Respondents have studiously ignored all the requests.
46. The licences for the various firearms and ammunition had been applied for and been possessed for reasons of personal security and the applicants feel aggrieved by the acts of deprivation.
The Respondent’s case;
47. The respondent relies on the Grounds Of Opposition
opposing the application. It raises the following grounds:
1) THAT the application is premature has no merit and is based on a misconception of the law.
2) THAT 1st Respondent is not a legal entity known in Law thus no orders can issue.
3) THAT the application as filed offends the provision of section 9 (2) of the Fair Administrative Action Act.
4) THAT the application as filed offends the provision of sections 23 of the Firearms Act.
5) THAT the Application offends the provisions of section 36 (2) of the Firearms Act.
6) THAT there are no orders sought against the 2nd to respondents and as such ought to be struck out of these proceedings.
The respondents submissions;
48. The Attorney-General respectfully submits that there is no legal entity capable of the being sued by the name “the Chief Licensing Officer, Firearms Licensing Bureau” thus the application is fatally defective on this front.
49. It is submitted that The Firearms Act Cap 114 Laws of Kenya Section 3 establishes the Firearm Licensing Board with mandate of: to certify suitability of applicants and periodically assess proficiency of firearms holders; issue, cancel, terminate or vary any licence or permit issued under the act; register civilian firearm holders, dealers and manufactures of firearms under the act; register, supervise and control all shooting ranges registered under the act among other duties.
50. According to the Respondent,The proper entity to have been sued is the Firearms Licensing Board.
51. Reliance is placed in the case of Janto Construction Company Ltd v Enock Sikolia & 2 others [2020] eKLR where the court held;
“A claimant has a duty of ascertaining the legal status of a party intended to be sued. The reason being that it is only those entities which are either natural or legal persons which can Successfully sue or be sued. Instituting legal proceedings against a non-legal entity renders the suit a non-starter”.
52. The Attorney-General also submits that the Applicant has failed to exhaust the remedies available to them under the Firearms Act Cap 114 Laws of Kenya and therefore this court should not issue the orders prayed for.
53. Section 23 of the Act provides:
“Any person aggrieved by a refusal of a licensing officer to grant him a firearm certificate under section 5 or to vary or renew a firearm certificate, or by the revocation of a firearm certificate, or by a refusal of a licensing officer to grant him a permit under subsection (12) of section 7, or by the revocation of such a permit, or by a refusal of a licensing officer to grant him a permit under subsection (13) of section 7 or to renew such a permit, or by the revocation of such a permit, or by the refusal of a licensing officer to register him as a firearms dealer, or by the removal of his name from the register of firearms dealers by a licensing officer, or by the refusal of a licensing officer to enter a place of business in the register of firearms dealers under section 15 or by the removal of any such place of business from the register, may appeal to the Minister, whose decision shall be final.”
54. The Applicant has not lodged an appeal against the alleged decision with the Minister.
55. It submits that in the circumstances , an application for judicial review to this court is barred by Section 9 (2) and (3) of the Fair Administrative Action Act , 2015 which provides :
(2)… shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
56. It relies in the case of Republic v Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] eKLR held as follows:
“Section 9 (2) of the Fair Administrative action Act provides that the High Court or a subordinate court under subsection (1)shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). The use of the word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.
57. It is the duty of Courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered.
58. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.
59. The word "shall" when used in a statutory provision imports a form of command or mandate.
60. A proper construction of section 9 (2) & (3) above leads to the conclusion that they are couched in mandatory terms.
61. The only way out is the exception provided by 9 (4) which provides that:- "Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice it is submitted.
62. The Respondent argues that the applicants must demonstrate exceptional circumstances. Second, on application by the applicants, the Court may exempt the person from the obligation.
63. The ex parte applicants counsel made a statement that there are exceptional circumstances in this case after the Court drew his attention to the above sections.
64. They however did not provide specific cases that bring this case under the exceptions, except stating that the applicants are young which does not fit into the definition of "exceptional circumstances" discussed below.
65. It is settled that the impugned decision constitutes administrative action as defined in section 2 of the Fair Administrative Action Act.
66. Therefore, it submits that an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.
67. The factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate.
68. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct. An internal remedy is adequate if it is capable of redressing the complaint.
69. Reliance is placed in Republic v Firearms Licensing Board & another Ex Parte Stephen Vincent Jobling [2019] eKLRin similar ca se held as follows:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks Judicial Review of that action without pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly vs Karume cited by the Respondents counsel in the following words:-
"Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."
70. The Respondents submit that the above case was decided before the promulgation of the Constitution of Kenya. However, many cases in the Post-2010 era have not only found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution, but have adopted the said reasoning. For example, the Court of Appeal provided the constitutional rationale and basis for the doctrine in Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others, where it stated that:-
"It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."
71. The High Court in the Matter of the Mui Coal Basin Local Community, stated:-
"The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."
72. Two principles can be discerned from the above jurisprudence. First, while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. The High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
73. Section 9 (2) of the FAA Act, provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under the Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is subsection (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that an applicant shall first exhaust such remedy before instituting proceedings under subsection (1).
74. The above provisions warrants scrutiny and interpretation. The use of the word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory.
75. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done.
76. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.
77. It is the duty of courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered.
78. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed.
79. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.
80. Reliance is placed in The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory. Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory.
81. As stated earlier, the applicant’s counsel in his replying submissions submitted that there are exceptional circumstances in this case in that the board is under the control of the same Minister, and argued that there is confusion whether the decision of the Board can be considered to be a decision of the Chief licensing Officer.
82. Article 47 of the Constitution and the FAA Act are heavily borrowed the South African Constitution and their equivalent legislation, hence, jurisprudence from South African Courts interpreting similar circumstances and provisions may offer useful guidance. The following points from the judgment of Thring J are relevant:- "
i. What is ordinarily contemplated by the words “exceptional circumstances' is something out of the ordinary and of an unusual nature; something which is accepted in the sense that the general rule does not apply to it; something uncommon, rare or different . . . .” ii. To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.
ii. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the court must decide accordingly.
iii. Depending on the context in which it is used, the word “exceptional” has two shades of meaning: the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.
iv. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally speaking, best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional.? In a nutshell the context is essential in the process of considering what constitutes exceptional circumstances.
83. It is submitted that there is no definition of ‘exceptional circumstances’ in the FAA Act, but this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies.
84. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.
85. It submits that where Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.
86. In yet another South Africa decision the court said the following about what constitutes exceptional circumstances:-
"What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile."
87. The Respondent submits a second ground upon which the applicants' reasoning and r
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1) THAT this application be certified urgent and service thereof be dispensed with and the application herein be heard Ex-parte and in the first instance.
2) THAT an order of PROHIBITION do issue directed at the 1st Respondent, the Chief Licensing Officer, Firearms Licensing Bureau, prohibiting him whether by himself, his servants, officers or agents from revoking, cancelling, suspending or in any manner whatsoever interfering with the Applicants’ duly issued firearm certificates, including Firearm Certificate No. 007204, pending the hearing and determination of this Application.
3) THAT an order of CERTIORARI do issue to remove into this Honourable Court and quash the decision, actions, and directives of the respondents leading to the unlawful confiscation and continuation detention of the applicant’s firearms, firearm certificates, and ammunition.
4) THAT an order of MANDAMUS do issue compelling the 1st Respondent to forthwith reinstate the Applicants’ firearm certificates, including Firearm Certificate No. 007204, and to return to the Applicants the firearms unlawfully seized and withheld.
5) THAT pending the hearing and determination of the substantive Originating Motion Application, that this Honourable court be pleased to issue AN INTERIM ORDER FOR STAY, restraining the Respondents, their servants, officers or agents from in any way dealing adversely with, interfering with, or continuing to withhold the Applicants’ firearm certificates and firearms.
6) THAT the costs of these proceedings be provided for.
7) Such other, further, incidental and/or alternative relief(s) as this honourable court may deem just and expedient.
The Applicants’ case;
2. The applicants case is advanced through the affidavit of AARIF IBRAHIM GANI who argues that he and the co applicant are the holders of firearm certificate No. 007204 and Certificate No. 003005 issued under the Firearms Act respectfully.
3. It is their case that on or about 24th March 2025, they were summoned to the offices of the Director of Criminal Investigations without disclosure of the reasons in writing.
4. Before they could attend to the said summons, officers of the 2nd Respondent, including officers from the Operations Support Unit (OSU), acting under the command of the 4th Respondent and on the instructions of the 3rd Respondent, unlawfully raided The applicant’s business premises.
5. The 1st applicant argues that during the raid he was subjected to a rough and aggressive interrogation in the presence of his staff and business associates.
6. He argues that the officers searched his person and his business premises without producing any warrant or lawful authority.
7. The said officers confiscated from the applicants’ firearms and ammunition as well as his Firearm Certificates.
8. He argues that an inventory of recoveries was prepared by the officers under the command of the 4th Respondent recording the items seized.
9. It is his case that the 4th Respondent issued him with a written Notice compelling his attendance at their offices.
10. The 1st applicant thereafter attended at the offices of the 4th Respondent where he recorded a formal statement and was thereafter released.
11. To date, they have not been furnished with any further communication or updates on the matter, nor has any lawful explanation been provided regarding the continued detention of the seized firearms, firearm certificates and ammunition.
12. It is their case that letters from their lawyers seeking clarification and the immediate return of the seized property have elicited no substantive response has been provided.
13. In compliance with the Fair Administrative Action Rules, 2024 (Legal Notice No. 165 of 2024), Rule 5, the Applicants issued the Respondents with a Notice of Intention to Sue.
14. The applicants argue that the continued unlawful detention of their firearms and licences has caused the Applicants grave prejudice, including deprivation the applicants of the use of property lawfully acquired and duly licensed, exposure to insecurity by denying us the lawful means of self-protection, which was the very purpose of applying for the firearms licences, violation of our constitutional rights, including property (Article 40), and fair administrative action (Article 47).
The applicant’s submissions;
15. They submit that both the applicants were duly licensed to have firearms and that they lawfully possessed firearms as civilians being License Certificate No 007204 and Certificate No. 003005 respectfully.
16. They submit that by dint of the licenses, the applicants lawfully had several firearms during the material times.
17. On or about the 24th of March 2025, the 1st applicant was summoned by the 1st Respondent to proceed to his office.
18. They further submit that even before he could do so, officers from the 1st Respondent accompanied by what the Respondent came to learn were officers from the Operations Support Unit raided his premises at Westlands on the 26th of March 2925 wherein they haphazardly ransacked the entire premises after brutally interrogating the Applicants.
19. It is submitted that upon enquiry and demand from the Applicant the officers did not show any search warrant and consequently the entire search was unlawful.
20. The officers also refused to introduce themselves and merely insisted that they were police officers.
21. They submit that the officers confiscated and seized the applicant’s properties including the firearms and ammunition.
22. The applicants submit that after several visits to the Unit and also the Firearms Bureau the applicants recorded statements and were apparently absolved.
23. They submit that the applicants are seized of the fact that with regard to the impugned document, the investigating team interrogated one ABDIKANI HASSAN DAHIR who gave details on the origin of the alleged forged letter and his detailed statement on the matter fully exonerated the applicants.
24. Subsequently the matter was escalated to the office of the Odpp and that it is within the knowledge of the applicant that the Odpp vide their letter of 16th July 2025, fully considered the matter and gave its recommendation.
25. According to the direction of the Odpp, culpability was established as against specific individuals other than the applicants and recommendation made to charge them.
26. The 1st Respondent are inexplicable in that the 1st Respondent has fully ignored the recommendations by the Odpp who is the proper authority and instead shielded the named persons.
27. Further they submit that pursuant to the finding of the Odpp which found no fault on the part of the applicants and having further regard to the confession by ABDIKANI HASSAN, the Respondents had no further justification to pursue the applicants on the subject nor did they have any reason to continue holding on the firearms and ammunition subject to this application.
28. They submit that the 1st Respondent is a Public Organ established under the Firearms Act Cap 114 Laws of Kenya by dint of an amendment to the Act in 2015 which provided:
……… there is established a Board to be known as the Firearms Licensing Board. It is clear that it is established as a legal entity with a common seal, capable of suing or being sued in that name. The main and basic role of the Board to regulate and control firearm licensing processes as more particularized in the Act. The Act donates powers to the Board under S 5 to grant firearm certificates. Under S 6 the Board is vested with powers to revoke firearm licenses under specified conditions especially where a holder breaches conditions of the license but such revocation are subject the Board giving notice…..
29. They further submit that the servants and/or agents of all the Respondents carried out an illegal search on the applicants premises on the dates stated.
30. Upon carrying out the search the officers then unlawfully seized the firearms and ammunition stated. Because the search was without a warrant, the applicants contend that the seizure of the firearms and ammunition was also illegal and in blatant violation of the applicant’s constitutional rights enshrined under article 40.
31. The applicants argue that the unlawful actions by the Respondents amount to unlawful deprivation of Private Property.
32. It has been demonstrated that at the time the 1st Respondent did not give any notice and indeed as of to date the Respondents have not given notice nor have they even given any reasons for the seizure.
33. They submit that the 1st Respondent’s act is capricious and arbitrary in the extreme and the same ought to be prohibited by action of this Honorable Court.
34. The entry and search of the applicant's premises without a search warrant was a blatant violation of Article 31, which guarantees the person’s right to privacy and protection against arbitrary search.
35. The Respondents have not shown that they satisfied the conditions that would have justified a search without a warrant.
36. Under Section 5 of Cap 114 the 1st Respondent can vary the conditions of a firearms certificate and may even revoke the certificate. But the Act specifically provides that even such action can only be taken after the giving of notice.
37. In this case the applicants lawfully held firearms were seized without their being given any notice whatsoever which actions constitute unacceptable violations of the provisions under the Firearms act. This makes the actions complained of unjust and illegal and this are further reasons making the grant of prerogative orders imperative.
38. The Respondents did not accord the applicants a hearing with regard to the issues.
39. There was no suggestion whatsoever that they had committed any offenses under the Firearms Act such as would have justified the seizure of the firearms.
40. Reliance is placed in the decision in Republic Vs Firearms Licensing Board Ex Parte Jj Okwaro where this court had opportunity to consider several issues related to actions by the Firearms Licensing Board as pertains to the Firearms Act. The Court granted prerogative orders upon being satisfied that the Board had violated the provisions of the Act, had acted in arbitrary manner and had also violated the provisions of the Fair Administrative Actions Act. It is submitted that the complaints herein are at all fours with the decision and that on the lines of the decision, the action herein should succeed.
41. In a similar decision in the case of Jimi Wanjigi Vs Firearms Licensing Board & 2 Others, the Petitioner had filed petition after the Respondents revoked his license without Notice. The Petitioner contended violation of his constitutional rights under Articles 10,35,47 and 232 of the Constitution.
42. The court held among other issues that the Firearms Licensing Board had acted arbitrarily in a manner that was procedurally unfair and without justification in the process whereof the Respondent had violated the rights of the applicant under Articles 40, 47 and 50 of the constitution And the court granted prerogative Orders.
43. At the time of the seizure the Respondents did not tender any reasons and / or justification for their actions.
44. The applicants submit that they have demonstrated in this matter that they had valid firearms certificates that allowed them to hold the firearms and the ammunition and that all the items were private properties within the meaning of Article 40 of the constitution.
45. The Applicant wrote to the Respondents with requests to release the properties on the 15th of April, 2024 and again on the 11th day of August 2025 Yet the Respondents have studiously ignored all the requests.
46. The licences for the various firearms and ammunition had been applied for and been possessed for reasons of personal security and the applicants feel aggrieved by the acts of deprivation.
The Respondent’s case;
47. The respondent relies on the Grounds Of Opposition
opposing the application. It raises the following grounds:
1) THAT the application is premature has no merit and is based on a misconception of the law.
2) THAT 1st Respondent is not a legal entity known in Law thus no orders can issue.
3) THAT the application as filed offends the provision of section 9 (2) of the Fair Administrative Action Act.
4) THAT the application as filed offends the provision of sections 23 of the Firearms Act.
5) THAT the Application offends the provisions of section 36 (2) of the Firearms Act.
6) THAT there are no orders sought against the 2nd to respondents and as such ought to be struck out of these proceedings.
The respondents submissions;
48. The Attorney-General respectfully submits that there is no legal entity capable of the being sued by the name “the Chief Licensing Officer, Firearms Licensing Bureau” thus the application is fatally defective on this front.
49. It is submitted that The Firearms Act Cap 114 Laws of Kenya Section 3 establishes the Firearm Licensing Board with mandate of: to certify suitability of applicants and periodically assess proficiency of firearms holders; issue, cancel, terminate or vary any licence or permit issued under the act; register civilian firearm holders, dealers and manufactures of firearms under the act; register, supervise and control all shooting ranges registered under the act among other duties.
50. According to the Respondent,The proper entity to have been sued is the Firearms Licensing Board.
51. Reliance is placed in the case of Janto Construction Company Ltd v Enock Sikolia & 2 others [2020] eKLR where the court held;
“A claimant has a duty of ascertaining the legal status of a party intended to be sued. The reason being that it is only those entities which are either natural or legal persons which can Successfully sue or be sued. Instituting legal proceedings against a non-legal entity renders the suit a non-starter”.
52. The Attorney-General also submits that the Applicant has failed to exhaust the remedies available to them under the Firearms Act Cap 114 Laws of Kenya and therefore this court should not issue the orders prayed for.
53. Section 23 of the Act provides:
“Any person aggrieved by a refusal of a licensing officer to grant him a firearm certificate under section 5 or to vary or renew a firearm certificate, or by the revocation of a firearm certificate, or by a refusal of a licensing officer to grant him a permit under subsection (12) of section 7, or by the revocation of such a permit, or by a refusal of a licensing officer to grant him a permit under subsection (13) of section 7 or to renew such a permit, or by the revocation of such a permit, or by the refusal of a licensing officer to register him as a firearms dealer, or by the removal of his name from the register of firearms dealers by a licensing officer, or by the refusal of a licensing officer to enter a place of business in the register of firearms dealers under section 15 or by the removal of any such place of business from the register, may appeal to the Minister, whose decision shall be final.”
54. The Applicant has not lodged an appeal against the alleged decision with the Minister.
55. It submits that in the circumstances , an application for judicial review to this court is barred by Section 9 (2) and (3) of the Fair Administrative Action Act , 2015 which provides :
(2)… shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
56. It relies in the case of Republic v Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] eKLR held as follows:
“Section 9 (2) of the Fair Administrative action Act provides that the High Court or a subordinate court under subsection (1)shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). The use of the word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.
57. It is the duty of Courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered.
58. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.
59. The word "shall" when used in a statutory provision imports a form of command or mandate.
60. A proper construction of section 9 (2) & (3) above leads to the conclusion that they are couched in mandatory terms.
61. The only way out is the exception provided by 9 (4) which provides that:- "Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice it is submitted.
62. The Respondent argues that the applicants must demonstrate exceptional circumstances. Second, on application by the applicants, the Court may exempt the person from the obligation.
63. The ex parte applicants counsel made a statement that there are exceptional circumstances in this case after the Court drew his attention to the above sections.
64. They however did not provide specific cases that bring this case under the exceptions, except stating that the applicants are young which does not fit into the definition of "exceptional circumstances" discussed below.
65. It is settled that the impugned decision constitutes administrative action as defined in section 2 of the Fair Administrative Action Act.
66. Therefore, it submits that an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.
67. The factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate.
68. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct. An internal remedy is adequate if it is capable of redressing the complaint.
69. Reliance is placed in Republic v Firearms Licensing Board & another Ex Parte Stephen Vincent Jobling [2019] eKLRin similar ca se held as follows:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks Judicial Review of that action without pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly vs Karume cited by the Respondents counsel in the following words:-
"Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."
70. The Respondents submit that the above case was decided before the promulgation of the Constitution of Kenya. However, many cases in the Post-2010 era have not only found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution, but have adopted the said reasoning. For example, the Court of Appeal provided the constitutional rationale and basis for the doctrine in Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others, where it stated that:-
"It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."
71. The High Court in the Matter of the Mui Coal Basin Local Community, stated:-
"The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."
72. Two principles can be discerned from the above jurisprudence. First, while, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. The High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
73. Section 9 (2) of the FAA Act, provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under the Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is subsection (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that an applicant shall first exhaust such remedy before instituting proceedings under subsection (1).
74. The above provisions warrants scrutiny and interpretation. The use of the word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory.
75. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done.
76. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.
77. It is the duty of courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered.
78. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed.
79. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.
80. Reliance is placed in The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory. Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory.
81. As stated earlier, the applicant’s counsel in his replying submissions submitted that there are exceptional circumstances in this case in that the board is under the control of the same Minister, and argued that there is confusion whether the decision of the Board can be considered to be a decision of the Chief licensing Officer.
82. Article 47 of the Constitution and the FAA Act are heavily borrowed the South African Constitution and their equivalent legislation, hence, jurisprudence from South African Courts interpreting similar circumstances and provisions may offer useful guidance. The following points from the judgment of Thring J are relevant:- "
i. What is ordinarily contemplated by the words “exceptional circumstances' is something out of the ordinary and of an unusual nature; something which is accepted in the sense that the general rule does not apply to it; something uncommon, rare or different . . . .” ii. To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.
ii. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the court must decide accordingly.
iii. Depending on the context in which it is used, the word “exceptional” has two shades of meaning: the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.
iv. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally speaking, best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional.? In a nutshell the context is essential in the process of considering what constitutes exceptional circumstances.
83. It is submitted that there is no definition of ‘exceptional circumstances’ in the FAA Act, but this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies.
84. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.
85. It submits that where Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.
86. In yet another South Africa decision the court said the following about what constitutes exceptional circumstances:-
"What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile."
87. The Respondent submits a second ground upon which the applicants' reasoning and r
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