Introduction
1. Before the Court is the Notice of Motion dated 22nd June 2026 brought under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and all other enabling provisions of the law. By the Motion, the Applicants seek, inter alia, orders compelling the National Registration Bureau to furnish information relating to the Respondent's National Identity Card, directing the Registrar of Companies to remove the Respondent as a director of the 2nd Applicant and transfer his shares to the 1st Applicant and restraining the Respondent from participating in the management and affairs of the 2nd Applicant pending the determination of the application.
2. The application is supported by the affidavit of the 1st Applicant sworn on 22nd June 2026. The Applicants contend that the Respondent was unlawfully registered as a director and shareholder of the 2nd Applicant through the use of an irregular National Identity Card and that the orders sought are necessary to safeguard the affairs of the company pending the resolution of the dispute.
3. The Respondent opposed the application through Grounds of Opposition dated 6th July 2026 and written submissions dated 22nd July 2026. The Respondent's objection is threefold.
4. First, that the proceedings are incompetent for having been commenced by way of a Notice of Motion in a miscellaneous application without a substantive suit.
5. Secondly, that the Court cannot grant substantive orders against the National Registration Bureau and the Registrar of Companies, neither of whom has been joined as parties to these proceedings.
6. Thirdly, that the application amounts to an abuse of the court process.
Analysis and Determination
7. I have considered the application, the supporting affidavit together with the annexures thereto, the Grounds of Opposition and the Respondent's written submissions. In my view, the following issues arise for determination:
a) Whether the present proceedings were competently instituted;
b) Whether the Court can grant the substantive reliefs sought against persons who are not parties to these proceedings; and
c) Depending on the determination of the foregoing issues, whether it is necessary for the Court to consider the merits of the application.
Whether the present proceedings were competently instituted
8. The Respondent's principal objection is that the present proceedings are incompetent for having been commenced by way of a Notice of Motion in a miscellaneous application without an originating suit. This is a jurisdictional issue requiring determination at the outset.
9. It is now settled that jurisdiction is the lifeblood of every judicial proceeding. In Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR), the Court of Appeal held that jurisdiction is everything and that, without it, a court has no option but to down its tools.
10. The manner in which civil proceedings are instituted is prescribed by law. Order 3 Rule 1 of the Civil Procedure Rules provides that every suit shall be instituted by presenting a plaint or in such other manner as may be prescribed. The recognised modes of commencing civil proceedings include a plaint, an originating summons and, where the law so provides, a constitutional petition or judicial review proceedings. A Notice of Motion is not an originating process. Rather, it is an interlocutory application through which relief is sought within proceedings that have already been validly instituted.
11. The Court of Appeal affirmed this position in Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR) where it held that the mode of instituting proceedings is not a mere procedural technicality but a substantive requirement of the law. The Court further held that Article 159(2)(d) of the Constitution cannot be invoked to validate proceedings commenced in a manner not recognised by the Civil Procedure Act and the Civil Procedure Rules.
12. The record before the Court shows that the Applicants commenced these proceedings solely by way of a Notice of Motion filed in a miscellaneous application. There is neither a plaint nor any other recognised originating process anchoring the substantive reliefs sought. The orders sought are not merely ancillary or preservatory. They include orders compelling the National Registration Bureau to disclose information relating to the Respondent's identity, directing the Registrar of Companies to remove the Respondent as a director of the 2nd Applicant and to alter the company's shareholding. Those are substantive remedies affecting legal rights and obligations and, in my view, ought to be pursued in properly instituted proceedings.
13. The Applicants' invocation of Sections 1A, 1B and 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution is not helpful to their case. These provisions do not confer jurisdiction where none exists; they simply embody the overriding objective of the civil process and enjoin courts to administer justice without undue regard to procedural technicalities. To hold otherwise would be to elevate procedural flexibility above the rule of law.
14. Applying the foregoing principles, I am persuaded that in the present case, the Notice of Motion before the Court is not anchored upon any recognised originating process.
15. Accordingly, I find and hold that the present proceedings were not competently instituted.
Whether the court can grant the reliefs sought against persons who are not parties to the proceedings
16. Having found that the present proceedings were not competently instituted, the foregoing finding is sufficient to dispose of the application. However, as the parties addressed the substantive issues, and in the event that I am wrong on the first issue, I consider it appropriate to determine whether the substantive orders sought can issue against the National Registration Bureau and the Registrar of Companies, neither of whom is a party to these proceedings.
17. The law is settled that a court only exercises its adjudicative authority over parties properly before it. Equally settled is the principle that no person should be condemned unheard. Article 50(1) of the Constitution guarantees every person the right to a fair hearing whenever a dispute affecting his or her rights or obligations falls for determination. That constitutional guarantee is reinforced by the rules of natural justice and the provisions on joinder of parties under Order 1 Rule 10 of the Civil Procedure Rules, which empower the Court to add any person whose presence is necessary to enable it effectually and completely adjudicate upon and settle all the questions in controversy.
18. The importance of according every affected person an opportunity to be heard was underscored by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C, 14A, 14B & 14C of 2014 (Consolidated)) [2015] KESC 14 (KLR), where it observed that the right to a fair hearing is a fundamental pillar of the administration of justice and cannot be sacrificed at the altar of convenience or procedural expediency.
19. In the present application, the Applicants seek orders compelling the National Registration Bureau to furnish information relating to the Respondent's National Identity Card and directing the Registrar of Companies to remove the Respondent as a director of the 2nd Applicant and alter the company's shareholding. Those orders are directed at statutory offices established under law and charged with distinct statutory mandates. Yet, neither the National Registration Bureau nor the Registrar of Companies has been joined as a party to these proceedings.
20. It would, in my view, be contrary to the rules of natural justice and the constitutional guarantee of a fair hearing to issue coercive orders against them in a matter they are not parties.
21. . As was stated in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR), jurisdiction is everything and, without it, a court must down its tools. It follows that once a court concludes that proceedings have not been properly invoked, it ought not to proceed to determine the substantive rights of the parties.
22. In any event, the reliefs sought by the Applicants invite the Court to make definitive findings regarding the Respondent's identity, directorship and shareholding in the 2nd Applicant. Those are matters which are plainly contested on the material before the Court and are incapable of being conclusively determined within the confines of the present miscellaneous application. To pronounce myself on those issues would not only be unnecessary but may also prejudice any properly constituted proceedings that the parties may institute in the future.
23. Accordingly, I decline to consider the merits of the application. My determination is confined to the threshold issues addressed above, which are sufficient to dispose of the Notice of Motion.
Disposition
24. Consequently, the Notice of Motion dated 22nd June 2026 is incompetent for having been commenced without a recognized originating process.
25. Accordingly, I make the following orders:
a) The Notice of Motion dated 22nd June 2026 is hereby struck out.
b) The Applicants shall bear the costs of the application.
26. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 1Tth DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before the Court is the Notice of Motion dated 22nd June 2026 brought under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 40 of the Civil Procedure Rules and all other enabling provisions of the law. By the Motion, the Applicants seek, inter alia, orders compelling the National Registration Bureau to furnish information relating to the Respondent's National Identity Card, directing the Registrar of Companies to remove the Respondent as a director of the 2nd Applicant and transfer his shares to the 1st Applicant and restraining the Respondent from participating in the management and affairs of the 2nd Applicant pending the determination of the application.
2. The application is supported by the affidavit of the 1st Applicant sworn on 22nd June 2026. The Applicants contend that the Respondent was unlawfully registered as a director and shareholder of the 2nd Applicant through the use of an irregular National Identity Card and that the orders sought are necessary to safeguard the affairs of the company pending the resolution of the dispute.
3. The Respondent opposed the application through Grounds of Opposition dated 6th July 2026 and written submissions dated 22nd July 2026. The Respondent's objection is threefold.
4. First, that the proceedings are incompetent for having been commenced by way of a Notice of Motion in a miscellaneous application without a substantive suit.
5. Secondly, that the Court cannot grant substantive orders against the National Registration Bureau and the Registrar of Companies, neither of whom has been joined as parties to these proceedings.
6. Thirdly, that the application amounts to an abuse of the court process.
Analysis and Determination
7. I have considered the application, the supporting affidavit together with the annexures thereto, the Grounds of Opposition and the Respondent's written submissions. In my view, the following issues arise for determination:
a) Whether the present proceedings were competently instituted;
b) Whether the Court can grant the substantive reliefs sought against persons who are not parties to these proceedings; and
c) Depending on the determination of the foregoing issues, whether it is necessary for the Court to consider the merits of the application.
Whether the present proceedings were competently instituted
8. The Respondent's principal objection is that the present proceedings are incompetent for having been commenced by way of a Notice of Motion in a miscellaneous application without an originating suit. This is a jurisdictional issue requiring determination at the outset.
9. It is now settled that jurisdiction is the lifeblood of every judicial proceeding. In Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR), the Court of Appeal held that jurisdiction is everything and that, without it, a court has no option but to down its tools.
10. The manner in which civil proceedings are instituted is prescribed by law. Order 3 Rule 1 of the Civil Procedure Rules provides that every suit shall be instituted by presenting a plaint or in such other manner as may be prescribed. The recognised modes of commencing civil proceedings include a plaint, an originating summons and, where the law so provides, a constitutional petition or judicial review proceedings. A Notice of Motion is not an originating process. Rather, it is an interlocutory application through which relief is sought within proceedings that have already been validly instituted.
11. The Court of Appeal affirmed this position in Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR) where it held that the mode of instituting proceedings is not a mere procedural technicality but a substantive requirement of the law. The Court further held that Article 159(2)(d) of the Constitution cannot be invoked to validate proceedings commenced in a manner not recognised by the Civil Procedure Act and the Civil Procedure Rules.
12. The record before the Court shows that the Applicants commenced these proceedings solely by way of a Notice of Motion filed in a miscellaneous application. There is neither a plaint nor any other recognised originating process anchoring the substantive reliefs sought. The orders sought are not merely ancillary or preservatory. They include orders compelling the National Registration Bureau to disclose information relating to the Respondent's identity, directing the Registrar of Companies to remove the Respondent as a director of the 2nd Applicant and to alter the company's shareholding. Those are substantive remedies affecting legal rights and obligations and, in my view, ought to be pursued in properly instituted proceedings.
13. The Applicants' invocation of Sections 1A, 1B and 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution is not helpful to their case. These provisions do not confer jurisdiction where none exists; they simply embody the overriding objective of the civil process and enjoin courts to administer justice without undue regard to procedural technicalities. To hold otherwise would be to elevate procedural flexibility above the rule of law.
14. Applying the foregoing principles, I am persuaded that in the present case, the Notice of Motion before the Court is not anchored upon any recognised originating process.
15. Accordingly, I find and hold that the present proceedings were not competently instituted.
Whether the court can grant the reliefs sought against persons who are not parties to the proceedings
16. Having found that the present proceedings were not competently instituted, the foregoing finding is sufficient to dispose of the application. However, as the parties addressed the substantive issues, and in the event that I am wrong on the first issue, I consider it appropriate to determine whether the substantive orders sought can issue against the National Registration Bureau and the Registrar of Companies, neither of whom is a party to these proceedings.
17. The law is settled that a court only exercises its adjudicative authority over parties properly before it. Equally settled is the principle that no person should be condemned unheard. Article 50(1) of the Constitution guarantees every person the right to a fair hearing whenever a dispute affecting his or her rights or obligations falls for determination. That constitutional guarantee is reinforced by the rules of natural justice and the provisions on joinder of parties under Order 1 Rule 10 of the Civil Procedure Rules, which empower the Court to add any person whose presence is necessary to enable it effectually and completely adjudicate upon and settle all the questions in controversy.
18. The importance of according every affected person an opportunity to be heard was underscored by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C, 14A, 14B & 14C of 2014 (Consolidated)) [2015] KESC 14 (KLR), where it observed that the right to a fair hearing is a fundamental pillar of the administration of justice and cannot be sacrificed at the altar of convenience or procedural expediency.
19. In the present application, the Applicants seek orders compelling the National Registration Bureau to furnish information relating to the Respondent's National Identity Card and directing the Registrar of Companies to remove the Respondent as a director of the 2nd Applicant and alter the company's shareholding. Those orders are directed at statutory offices established under law and charged with distinct statutory mandates. Yet, neither the National Registration Bureau nor the Registrar of Companies has been joined as a party to these proceedings.
20. It would, in my view, be contrary to the rules of natural justice and the constitutional guarantee of a fair hearing to issue coercive orders against them in a matter they are not parties.
21. . As was stated in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR), jurisdiction is everything and, without it, a court must down its tools. It follows that once a court concludes that proceedings have not been properly invoked, it ought not to proceed to determine the substantive rights of the parties.
22. In any event, the reliefs sought by the Applicants invite the Court to make definitive findings regarding the Respondent's identity, directorship and shareholding in the 2nd Applicant. Those are matters which are plainly contested on the material before the Court and are incapable of being conclusively determined within the confines of the present miscellaneous application. To pronounce myself on those issues would not only be unnecessary but may also prejudice any properly constituted proceedings that the parties may institute in the future.
23. Accordingly, I decline to consider the merits of the application. My determination is confined to the threshold issues addressed above, which are sufficient to dispose of the Notice of Motion.
Disposition
24. Consequently, the Notice of Motion dated 22nd June 2026 is incompetent for having been commenced without a recognized originating process.
25. Accordingly, I make the following orders:
a) The Notice of Motion dated 22nd June 2026 is hereby struck out.
b) The Applicants shall bear the costs of the application.
26. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 1Tth DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent