The Plaintiff has filed the Originating Summons dated 03.07.2023 invoking the Supervisory jurisdiction of this court under Articles 165(6) and (7) of the Constitution. The thrust of the application is that the Subordinate Court in Mavoko has failed to deal with an application for Anton Pillar orders which was filed Mavoko Magistrates Court Civil Suit No. 869 of 2021, Superior Home (K) Ltd and Another v Diamond Academy and 2 Others which was filed under certificate of urgency on or about 06.06.2023. That despite several reminders the Subordinate Court has not dealt with it to date thereby causing prejudice to the Plaintiffs. The Plaintiffs seek an order that the court call for the record of the Subordinate Court and give directions by granting the orders sought in the application before that court. The application has been opposed by the Defendants.
I have considered the brief oral arguments made by the respective counsel. It is common ground that the High Court has supervisory jurisdiction over Subordinate Courts and Tribunal and in that regard may call for the records of any proceedings and make such orders that may be necessary for the fair administration of justice. In my view, the powers of the High Court under Article 165(6) and (7) of the Constitution are residual in nature and should only be exercised sparingly where the court considers that justice has failed. This jurisdiction is not intended to supplant the ordinary jurisdiction of the courts hear and determine cases.
I consider that the suit is still pending before the Subordinate Court and as counsel for the Defendants informed the court, the matter has a hearing date where the court can be addressed on the matter in issue. Moreover, the Plaintiffs still have the opportunity to move the court under certificate of urgency to determine the matter rather than by letters.
While I observe that it is the duty of the trial court to deal with matter expeditiously and address any concerns raised by counsel for the parties, I am not satisfied that it would be proper, at least in this case, to grant Anton Pillar orders in exercise of supervisory jurisdiction while the suit is still pending before the trial court.
The Originating Summons dated 03.07.2023 is dismissed with no order as to costs.
DATED and DELIVERED at NAIROBI this 13th October 2023
D. S. MAJANJA
JUDGE