'1. The application that comes up for determination is the one dated 24.10.25 wherein the applicant seeks the following orders:
i) A declaration that the Interlocutory Judgment, Consequent Orders and Decree of the 1st Respondent in Small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru Vs. Anthony Maingi Koomu were nullity ab initio having been delivered and or issued without the requisite jurisdiction.
ii) That an Order of Certiorari, do issue calling to this Court for purposes of quashing the Interlocutory Judgment and Consequent Decree and Orders of the Small Claims Court at Milimani, in small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru vs. Anthony Maingi Koomu, for being an Illegality, null and void ab initio.
iii) That the costs of this Application be provided for.
The Applicants Case:
2. It is the Applicants’ case that he was sued by the 2nd Respondent vide Milimani Small Claims Court E1253/2023. Consequently, an interlocutory judgment and decree was entered against me on 23rd June 2023.
3. On 16th August 2024 he was served with a Proclamation Notice and a Warrant of Attachment of Movable Property as well as a Warrant of Sale of Movable Property in Execution of Decree.
4. On 22nd August 2024, the 1st Respondent granted an Order staying Execution of the Interlocutory Judgment and the Decree arising therefrom pending the hearing of the Substantive Application.
5. The court made remarks that owing to the intricacies surrounding the issue of Jurisdiction of the Small Claims Court over personal injuries arising from road traffic accidents, he invited parties to appear before him to take directions on the matter on 26th September 2024.
6. On 26th September 2024 when the matter came up for directions on hearing of the Application, the 1st Respondent vide a brief downed its tools citing the conflicting High Court decisions on the jurisdiction of the Small Claims Court over personal injury claims specifically citing the cases of Ogwari vs. Hersi (Civil Appeal 223 of 2022); Naomi Wanjiru Irungu vs. Francis Kimani Karanja (Civil Appeal No E037 of 2024) and (Florence Murigi Gichovi vs. Adams MwitiKilem).
7. That the 1st Respondent upon downing its tools nevertheless extended the Orders staying execution of the Interlocutory Judgment up to the 28th October 2024.
Analysis and determination:
Upon perusing the application and the Applicant’s submissions this court, finds the following to be the issues for determination;
1) Whether or not the applicant is entitled to the reliefs sought.
2) Whether or not this court has jurisdiction.
8. In determining the 1st issue, I am guided by the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1;
“jurisdiction is everything. Without it, a court has no power to make one more step”. [37] It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated.
9. In the instant suit, it is not in dispute that on 22nd August 2024, the 1st Respondent granted an Order staying Execution of the Interlocutory Judgment and the Decree arising therefrom pending the hearing of the substantive Application.
10. The court made remarks that owing to the intricacies surrounding the issue of Jurisdiction of the Small Claims Court over personal injuries arising from road traffic accidents, he invited parties to appear before him to take directions on the matter on 26th September 2024.
11. On 26th September 2024 when the matter came up for directions on hearing of the Application, the 1st Respondent vide a brief downed its tools citing the conflicting High Court decisions on the jurisdiction of the Small Claims Court over personal injury claims specifically citing the cases of Ogwari vs. Hersi (Civil Appeal 223 of 2022); Naomi Wanjiru Irungu vs. Francis Kimani Karanja (Civil Appeal No E037 of 2024) and (Florence Murigi Gichovi vs. Adams mwitikilem).
12. That the 1st Respondent upon downing its tools nevertheless extended the Orders staying execution of the Interlocutory Judgment up to the 28th October 2024.
13. In the case of Council of Civil Service Unions vs Minister for the Civil Service (1985) A.C. 374,410 which has now become a reference point in the issuance of judicial review orders, Lord Diplock held as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognized in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court''s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe''s ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court''s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
14. Article 165(6) stipulates that The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
15. It is this court’s finding that the 1st Respondent acted ultra vires in extending the Orders staying execution of the Interlocutory Judgment up to the 28th October 2024 notwithstanding the fact that it had made a finding that it lacked jurisdiction.
16. Having found that the respondent acted ultra vires, this court shall in exercise of its jurisdiction under Article 165 (6) of The Constitution declare the Respondents acted ultra vires.
Costs;
17. In determining the issue of costs, this court is guided by the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR [13] where it was held, to the same intent Mr. Justice (Rtd.) Kuloba thus writes in his work, Judicial Hints on Civil Procedure, 2nd ed. (Nairobi: LawAfrica, 2011), p. 94:
“Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise: Chamilabs v. LaljiBhimjiandShamji Jinabhai Patel, High Court of Kenya, Civil Case No. 1062 of 1973.”
18. Costs shall follow the event. The Respondents shall shoulder the costs of this suit.
19. In the instant suit, the court finds that the applicant is entitled to costs.
Disposition:
20. The application is meritorious and the same is allowed.
Order;
1) A Declaration is hereby issued that the Interlocutory Judgment, Consequent Orders and Decree of the 1st Respondent in Small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru vs. Anthony Maingi Koomu were a nullity ab initio having been delivered and or issued without the requisite jurisdiction.
2) An Order of Certiorari, is hereby issued calling to this Court quashing the Interlocutory Judgment and Consequent Decree and Orders of the Small Claims Court at Milimani, in small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru vs. Anthony Maingi Koomu, for being an illegality, null and void ab initio.
3) Costs to the applicant.
'
i) A declaration that the Interlocutory Judgment, Consequent Orders and Decree of the 1st Respondent in Small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru Vs. Anthony Maingi Koomu were nullity ab initio having been delivered and or issued without the requisite jurisdiction.
ii) That an Order of Certiorari, do issue calling to this Court for purposes of quashing the Interlocutory Judgment and Consequent Decree and Orders of the Small Claims Court at Milimani, in small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru vs. Anthony Maingi Koomu, for being an Illegality, null and void ab initio.
iii) That the costs of this Application be provided for.
The Applicants Case:
2. It is the Applicants’ case that he was sued by the 2nd Respondent vide Milimani Small Claims Court E1253/2023. Consequently, an interlocutory judgment and decree was entered against me on 23rd June 2023.
3. On 16th August 2024 he was served with a Proclamation Notice and a Warrant of Attachment of Movable Property as well as a Warrant of Sale of Movable Property in Execution of Decree.
4. On 22nd August 2024, the 1st Respondent granted an Order staying Execution of the Interlocutory Judgment and the Decree arising therefrom pending the hearing of the Substantive Application.
5. The court made remarks that owing to the intricacies surrounding the issue of Jurisdiction of the Small Claims Court over personal injuries arising from road traffic accidents, he invited parties to appear before him to take directions on the matter on 26th September 2024.
6. On 26th September 2024 when the matter came up for directions on hearing of the Application, the 1st Respondent vide a brief downed its tools citing the conflicting High Court decisions on the jurisdiction of the Small Claims Court over personal injury claims specifically citing the cases of Ogwari vs. Hersi (Civil Appeal 223 of 2022); Naomi Wanjiru Irungu vs. Francis Kimani Karanja (Civil Appeal No E037 of 2024) and (Florence Murigi Gichovi vs. Adams MwitiKilem).
7. That the 1st Respondent upon downing its tools nevertheless extended the Orders staying execution of the Interlocutory Judgment up to the 28th October 2024.
Analysis and determination:
Upon perusing the application and the Applicant’s submissions this court, finds the following to be the issues for determination;
1) Whether or not the applicant is entitled to the reliefs sought.
2) Whether or not this court has jurisdiction.
8. In determining the 1st issue, I am guided by the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1;
“jurisdiction is everything. Without it, a court has no power to make one more step”. [37] It is, therefore a basic rule of procedure that jurisdiction must exist when the proceedings are initiated.
9. In the instant suit, it is not in dispute that on 22nd August 2024, the 1st Respondent granted an Order staying Execution of the Interlocutory Judgment and the Decree arising therefrom pending the hearing of the substantive Application.
10. The court made remarks that owing to the intricacies surrounding the issue of Jurisdiction of the Small Claims Court over personal injuries arising from road traffic accidents, he invited parties to appear before him to take directions on the matter on 26th September 2024.
11. On 26th September 2024 when the matter came up for directions on hearing of the Application, the 1st Respondent vide a brief downed its tools citing the conflicting High Court decisions on the jurisdiction of the Small Claims Court over personal injury claims specifically citing the cases of Ogwari vs. Hersi (Civil Appeal 223 of 2022); Naomi Wanjiru Irungu vs. Francis Kimani Karanja (Civil Appeal No E037 of 2024) and (Florence Murigi Gichovi vs. Adams mwitikilem).
12. That the 1st Respondent upon downing its tools nevertheless extended the Orders staying execution of the Interlocutory Judgment up to the 28th October 2024.
13. In the case of Council of Civil Service Unions vs Minister for the Civil Service (1985) A.C. 374,410 which has now become a reference point in the issuance of judicial review orders, Lord Diplock held as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognized in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court''s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe''s ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court''s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
14. Article 165(6) stipulates that The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
15. It is this court’s finding that the 1st Respondent acted ultra vires in extending the Orders staying execution of the Interlocutory Judgment up to the 28th October 2024 notwithstanding the fact that it had made a finding that it lacked jurisdiction.
16. Having found that the respondent acted ultra vires, this court shall in exercise of its jurisdiction under Article 165 (6) of The Constitution declare the Respondents acted ultra vires.
Costs;
17. In determining the issue of costs, this court is guided by the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR [13] where it was held, to the same intent Mr. Justice (Rtd.) Kuloba thus writes in his work, Judicial Hints on Civil Procedure, 2nd ed. (Nairobi: LawAfrica, 2011), p. 94:
“Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise: Chamilabs v. LaljiBhimjiandShamji Jinabhai Patel, High Court of Kenya, Civil Case No. 1062 of 1973.”
18. Costs shall follow the event. The Respondents shall shoulder the costs of this suit.
19. In the instant suit, the court finds that the applicant is entitled to costs.
Disposition:
20. The application is meritorious and the same is allowed.
Order;
1) A Declaration is hereby issued that the Interlocutory Judgment, Consequent Orders and Decree of the 1st Respondent in Small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru vs. Anthony Maingi Koomu were a nullity ab initio having been delivered and or issued without the requisite jurisdiction.
2) An Order of Certiorari, is hereby issued calling to this Court quashing the Interlocutory Judgment and Consequent Decree and Orders of the Small Claims Court at Milimani, in small Claims Civil Case No. SCCC/E1253/2023 Robert Maina Wanjiru vs. Anthony Maingi Koomu, for being an illegality, null and void ab initio.
3) Costs to the applicant.
'