Background;
1. The Application before this Court is the Notice of Motion application dated 25th June, 2024 wherein The applicant is seeks the following orders;
“
1. AN ORDER OF CERTIORARI to quash all proceedings currently subsisting before the Chief Magistrate’s Court at Milimani in NRM MCCC MISC APP. NO. E1042 of 2024 Manchester Outfitters Limited Vs Diamond Trust Bank.
2. AN ORDER OF CERTIORARI to quash the Orders of the Chief Magistrate’s Court at Milimani issued on 12th June 2024 and 19th June 2024 and all subsequent orders in NRB MCCC MISC APP. NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank.
3. AN ORDER OF PROHIBITION preventing the Respondents from continuing with NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank.
4. AN ORDER OF MANDAMUS directed to the 1st Respondent to strike out with costs NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank for being an abuse of process.
5. Such any other or further relief that the honourable court may deem just fit.
6. Costs of this matter to be borne by the 2nd Respondent.
2. The Application is supported by a Statutory Statement dated 21st June, 2024 and Supporting Affidavit and Supplementary Affidavit sworn by Lwanga Mwangi on 25th June,2024 and 20th August, 2024 respectively.
3. The Applicant’s case is that it was served with injunctive orders dated 12th June, 2024 by the 1st Respondent obtained through a miscellaneous application to wit NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank on 13th June, 2024.
4. The applicant deponed that the injunctive orders dated 12th June, 2024 were issued devoid jurisdiction and contrary to Section 19 of the Civil Procedure Act as the 2nd Respondent did not file a substantive suit but a Miscellaneous Application that is not anchored to any suit.
5. It is also the Applicant’s case that the Miscellaneous application is violation of Section 5 and 7 of the Civil Procedure Act as there are a multitude of matters in the High Court relating to the 2nd Respondents.
6. The applicant also state that the Miscellaneous application is in breach of court orders granted in NRB HCCC NO 430 OF 2012 Galot Limited & 4 Others vs Pravin Galot & 2 Others dated 10th July, 2012, orders which state: -
“2. THAT the operations of the 2nd plaintiff Manchester Outfitters Limited should continue as usual. That includes procurement and signing of cheques to effect various official transactions. The 1st (Pravin Galot) and 2nd Defendants (Rajesh Galot) shall continue to run the said company.
3. THAT there should be no filing of any suit or application except with leave of the court.”
7. The Ex- Parte Applicant further states that no leave was obtained by the 2nd Respondent to file any suit or application and neither were the orders in no 7 above set aside and any violation of the said orders are a gross violation and abuse of process as was held in judgements in rem in the following court cases: -
a. NRB HCJR MISC APP NO. 275 OF 2013 Galot Industries Limited Vs Registrar of Companies & Attorney General
b. Mohan Galot vs Registrar of Companies & another; Manchester Outfitters Limited & another (Interested Party) (2019) eKLR
c. Republic vs Chief Magistrate’s Court at Milimani Law Courts, Director of Public Prosecutions & 2 others (Interested Parties); Ex-Parte Applicant: Pravin Galot (2020) eKLR
8. The Ex- Parte avers that it filed an application on 13th June, 2024 under Certificate of Urgency in NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank to set aside the orders ex debito justitiae however the 1st Respondent failed to promptly consider the application thus denying the EX- Parte Applicant a right to fair hearing and also preventing it to exercise a right of appeal or review.
9. The Ex- Applicant deponed that in a bid to sanctify the impropriety started manipulating the court record, and once again minuted that on 14th June 2024, the 1st Respondent considered the 2nd Respondent’s Notice of Motion dated 18th June 2024 which is an impossibility to consider a Notice of Motion dated 18th June 2024, four (4) days earlier on 14th June 2024.
10. It is also the Ex-Parte’s case that inexplicably the court record was also manipulated to reflect that a Certificate of Urgency was filed on 13th June 2024, which is also an impossibility because the Bank’s Notice of Motion dated 13th June 2024 was filed on 14th June 2024.
11. The Ex – Parte Applicant avers that it filed an application in NRB HCCC No. 149 of 2010 however it withdrew the said application and thus the principle of sub-judice does not apply.
12. It further argues that the 2nd Respondent is aware that its own shareholders and interested parties of MOL have written to the them through letters dated 12th April 2024, 15th April 2024, 18th April 2024 and 22nd April 2024 contesting the internal dynamics of MOL
13. It is the Ex- Parte’s case that the 2nd Respondent filed an application in NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank on 18th June, 2024 seeking contempt of court orders against the Ex-Parte’s Managing Director where on 19th June, 2024, the 1st Respondent granted the prayer b) of the said application summoning the Ex-Parte’s Managing Director on 3rd July, 2024 to answer to the contempt allegations.
14. Ex Parte Applicant filed written submissions dated 28th August, 2024 in which four issues were raised for determination and these are: -
i) whether the 1st Respondent acted without jurisdiction?
ii) Whether the Orders of 12th June 2024 and subsequent proceedings void?
iii) Whether the Respondents bound by the Orders in NRB HCCC No. 430 of 2012
iv) Whether there an abuse of process?
15. The Ex parte Applicant on the first issue rely on Republic v Magistrates court, Mombasa, Absin Synegy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR), Justice Mativo (as he was then) held:
“34. I now address the question whether the learned Magistrate assumed jurisdiction he/she does not possess is ground for this court to exercise its judicial review jurisdiction or supervisory jurisdiction to remedy the situation. The Respondent’s argument as I understood it is that the applicant’s grounds are essentially grounds of appeal and therefore the applicant ought to have appealed against the decision. The said argument is attractive. However, the said argument ignores the fact that there is a clear distinction between the “supervisory jurisdiction” and “judicial review jurisdiction”. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs.”
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37. The power conferred to this court under Article 165(6) of the Constitution is used sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction which is the case here. However, the High Court under the guise of Article 165(6) cannot assume unlimited prerogative to correct all species of hardships of wrong decisions. For it to interfere, there must be a case of flagrant abuse of fundamental principles of law or it can interfere where the order has resulted in grave injustice. The fact that the learned Magistrate assumed jurisdiction not expressly conferred upon him by the law and in blatant breach of section 14 of the CPA is itself a proper case for this court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law
38. Judicial review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction – reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. The role of the court in judicial review is supervisory. It is not an appeal and the court should not attempt to adopt the forbidden appellate approach. In the instant case, the impugned decision is a judicial function, arrived outside the confines of the jurisdiction conferred to the court by the law, which to me is amenable to both judicial review and supervisory jurisdiction.”
16. The Ex parte Applicant also state that the 1st Respondent did act without jurisdiction and as such this Honourable Court has the requisite jurisdiction to take the necessary measures to remedy the injustice and illegalities that are being occasioned.
17. It is the Ex parte Applicant’s submission on the second issue that by dint of section 19 Civil Procedure Act the Respondents’ actions were improper and/or illegal and warrant the intervention from this Honourable Court. The cite the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, where the Court held:
“1. At the heart of this appeal is the issue of jurisdiction. It is a truism jurisdiction is everything and is what gives a court or tribunal power, authority and legitimacy to entertain any matter before it. What is jurisdiction.”
2. In common English parlance, ‘Jurisdiction’ denotes that authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such a court will be amenable to being set aside ex debito justitiae. [emphasis added]
18. The EX- Parte Applicant also relies on the case of Republic v Magistrates court, Mombasa, Absin Synegy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR)¸where the court exercised jurisdiction when there was none and it was appropriate to invoke this Court’s jurisdiction.
19. The Ex parte Applicant also submits on the third issue that 2nd Respondent’s explanation for bypassing and/or ignoring the Orders in NRB HCCC No. 430 of 2012 cannot suffice and that the court in NRB H.C. J.R. MISC. APP. NO. 275 of 2013 Galot Industries Limited -vs- Registrar of Companies & the Attorney General and Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR, held that the 2nd Respondent had no right to file an application or a suit while the orders in NRB HCCC No. 430 of 2012 were still subsisting. That the court on those occasions exercised its prerogative and supervisory jurisdiction to ensure that proceedings that were an illegality or an abuse of process were not continued.
20. The Applicant’s submission on the fourth issue is that undisputed that the Court Orders are yet to be set aside and that the manipulation of proceedings, the irregularities and absurdities clearly point to an abuse of process, one that goes to the very core of the judicial process. They rely on the case of Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR held that abuse of process could not be comprehensively listed but each matter is to be consider independently to identify abuse of process and the South African Court of Appeal decision in BEINOSI v WIYLEY 1973 SA 721 [SCA] which set out the applicable principle as follows:
“What does constitute an abuse of process of the court is a matter which needs to be determined by circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective”
21. The Ex – Parte Applicant further submits that the High Court on three (3) occasions in the following matters: NRB H.C. J.R. MISC. APP. NO. 275 of 2013 Galot Industries Limited -vs- Registrar of Companies & the Attorney General and Republic Vs Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR, has interpreted the import of the orders of 10th July 2012 and extended on 8th October 2012 respectively.
22. The Ex - Parte further submits that the said judgements are Judgments in rem as set out in Section 44 of the Evidence Act and rely on the case of Court of Appeal in National Land Commission Vs Registered Trustee of the Arya Pratinidhi Sabha, Eastern Africa & another [2019] eKLR where the court held:
The Black’s Law Dictionary, 9th Edition defines a judgment in rem as;
“Any action in rem is one in which the judgment of the Court determines the title to the property and the rights of the parties, not merely as between themselves, but also as against all persons at any time dealing with them or with the property upon which the court had adjudicated.”
To expound further, a decision in rem was discussed in Kamunyu & Others v Attorney General & Others (2007) EA 116 as follows;
In a suit seeking judgment in rem, that is a judgment applicable to the whole world, an individual does not sue on behalf of the whole world, but sues for judgment which is effective against the whole world. In other words, in the present case, the appellants when successful in the suit obtain judgement, which is effective against the whole world but does not confer benefits upon the whole world.”
23. It is thus the Ex-Parte’s submission that the Notice of Motion dated 25th June 2024 is meritorious and that Orders of Certiorari, Prohibition and Mandamus in relation to NRB MCCC MISC APP. NO. E1042 OF 2024 Manchester Outfitters Limited -vs- Diamond Trust Bank should be issued as prayed.
24. With respect to costs, the Ex- Parte Applicant submits that they should be borne by the 2nd Respondent.
The 2nd Respondent’s case;
25. In opposition to the Applicants’ Application, the Respondents filed a Replying Affidavit dated 12th July, 2024 sworn by Mohan Galot and written submissions dated 16th September, 2024.
26. The 2nd Respondent is the founding subscriber and member of the Governing Director of Manchester Outfitters (hereinafter MOL) who states that the Ex – Parte Applicant has not exhibited nor demonstrated any grounds for Judicial Review to show any impropriety, irrationality, jurisdictional issue of illegality meted against it.
27. The 2nd Respondent deponed that the Ex- Parte Applicant has copy pasted an application from a matter wherein it was a party that is HCCC NO 149 OF 2010, case which has the same facts as the one before this court which amounts to an abuse of court process.
28. The 2nd Respondent avers that sometime in 2007 it came to his attention that persons employed by MOL by the name of Pravin Galot and Rajesh Galot fraudulently and illegally amended the Company’s documents to reflect them as shareholders and also set up a parallel competing company using MOL resources which cause him to fire the said person and on their refusal to leave he filed the suit HCCC 55 OF 2012 (formerly HCCC 63 OF 2009) Manchester Outfitters Limited vs Pravin Galot, Rajesh Galot & others which matter was to be heard by a three-judge bench appointed by the Honourable Chief Justice of Kenya. The court while dealing with the issue of stay directed that the issue of shareholding and directors shall also apply in HCCC 430 OF 2012 and any other similar case. The three Judge bench on 11.04.2024 delivered their ruling that Pravin Galot and Rajesh Galot are not directors nor shareholders of MOL thus making the issue around Directors and Shareholding of MOL res judicata.
29. It is its case that The 2nd Respondent later discovered that the same illegality metered against MOL was meted against 5 other companies which resulted in the filing of another suit HCCC 430 OF 2012 where interim orders were granted pending hearing and determination of the suit which were extended by consent by the parties to the suit that Pravin Galot and Rajesh Galot should continue running the company, doing procurement and signing of cheques.
30. The 2nd Respondent further argues that Pravin Galot and Rajesh Galot acting as directors of MOL opened bank accounts with the Ex- Parte Applicant and upon the court ruling dated 11.04.2024 they ceased being Directors and Shareholders in MOL leaving only the 2nd Respondent (Mohan Galot) as the sole Director but the Ex-Parte Applicant has denied the 2nd Respondent access to the bank accounts but grants the same to Pravin and Rajesh Galot.
31. The 2nd Respondent deponed that pursuant to the court order in HCCC NO 55 OF 2012 he wrote to the Ex-Parte Applicant to change the signatories to the bank accounts which it ignored which led to MOL filing of MISC NO. E1042 OF 2024 which suit cannot form subject for Judicial Review.
32. The 2nd Respondent further argues that the Ex-Parte Applicant on filing an unsuccessful application to set out the orders of the three Judge bench proceeded to file an appeal in HCCC NO 149 OF 2010 MOHAN GALOT & 2 OTHERS VS DTB where the court declined to grant interim orders sought by the Ex-Parte Applicant in the matter before this court.
33. This is the third suit by the Ex-Parte Applicant to stop the 2nd Respondent from accessing its bank accounts.
34. It was the 2nd Respondent’s submission that the Ex- Parte Applicant filed a supplementary affidavit without seeking leave from this honourable court and it therefore a nullity, of no consequence and must be struck out and expunged from records together with any submissions associated with it. By dint of Order 51 rule 14(3) of the Civil Procedure Rules, provides that “Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under sub rule (1) may, with the leave of the court, file a supplementary affidavit and site the case of Nickson v Collins & 3 others (Environment & Land Case 1 of 2024) [2024] KEELC 1797 (KLR) (12 April 2024) (Ruling) where the Court cited the decision of Supreme Court of Kenya of Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR which held as follows:
“That said, guided by the decision in the Salat case (supra) it is clear that where a document required to be filed within a certain period is not filed within that time, or where a document that ought not to be filed with leave of the court is filed without it, it is a nullity: it is of no consequence and its place is nowhere than being expunged from the record.”
35. The 2nd Respondent further submits that Article 165(6) provides for the hierarchy of Courts and that the High Court cannot supervise another High Court. That After failing to obtain Interim Orders before the 1st Respondent, the Applicant has now filed a third case in classical abuse of the Court process.
36. In Anthony Ntutu v Saiyalel Ololoso [2016] eKLR, the court held:
“The only conclusion I can reach is that the plaintiff, after failing to get interim orders in this case, decided to try his luck in the Narok Magistrate's Court, and see if he can get orders which he was unable to get before me. If ever one needs an example of abuse of court process, this is the classical case.”
37. The 2nd Respondent rely on the case of GRAHAM RIOBA SAGWE & 2 OTHERS VS FINA BANK LIMITED & 5 OTHERS [2017], PETITION NO. 82 OF 2016 eKLR the Court expounded on what constitutes an abuse of court process. The Learned Judge stated thus:
“Looking at the petition no before me, the application referred to above and the said ruling, it is clear that the issues now raised in this petition are substantially similar to the issues raised in the said application made in the Criminal Revision file. This court cannot revisit the same issues nor can I purport to sit on appeal against the decision of the learned judge. The orders sought are in my view aimed at circumventing the above orders and also aimed at delaying or defeating justice and to me amount to abuse of court process.
…. It is trite law that the court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The black law dictionary defines abuse as “Everything which is contrary to good order established by usage that is a complete departure from reasonable use "An abuse is done when one makes an excessive or improper use of a thing or to employ such thing in a manner contrary to the natural legal rules for its use".
The concept of abuse of court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents. The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: -
(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.
(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.
(e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.
(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.
(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.
38. It is the 2nd Respondents submission that the Ex-Parte Applicant is abusing the court process vexatious and scandalous. They also submit that the Ex-Parte’s application is illegal and sub judice and they cite the case of GRAHAM RIOBA SAGWE (supra) which cited the Nigerian case of Agwusin V Ojichie. Justice Niki Tobi JSC: where the court held: -
‘It’s settled law that a litigant has no right to purse paripasua two processes which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In my humble view, the two processes are in law not available to the petitioners. They ought to have appealed against the above mentioned decision if they were dissatisfied. The petitioners cannot lawfully file this petitions and seek similar reliefs relying on substantially the same grounds as the application referred to above. The pursuit of the second process, that is this petition constitutes and amounts to abuse of court/legal process."
39. It is also submitted that the Ex- Parte Applicant was aware of the orders of the three judge bench of the High Court in HCCC No. 55 of 2012 on who are the directors and shareholders of MOL are but failed to make the disclosures in the instant Application. In the case of Sceneries Limited Vs National Land Commission, Miscellaneous Constitution Application No 1 Of 2016, [2017] eKLR the court held that: -
“I am fully aware in exercising judicial review powers, I am not sitting on appeal and my role is to examine the legality or propriety of the challenged decision. Talking about propriety, I would be failing in my solemn duty if I do not mention that it is settled law that a person who approaches the Court or a Tribunal for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts/documents which have a bearing on the adjudication of the issues raised in the case. In other words, he/she owes a duty to the court or the Tribunal to bring out all the facts and refrain from concealing/suppressing any material facts within his/her knowledge or which he/she could have known by exercising diligence expected of a person of ordinary prudence. If he/she is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person.”
40. The 2nd Respondent further submits that the Ex- Parte Applicants has anchored its case of this court’s jurisdiction on section 19 of the CPA. Section 19 of the CPA provides that every suit shall be instituted in such manner as may be prescribed by rules. This section does not mention anything about the nature of the suit filed as a Miscellaneous Application. Jurisdiction flows from the law and therefore only from the Constitution or statues and thus this Court as currently constituted lacks jurisdiction to sit on an appeal over the decision of the 1st Respondent. This Court is currently constituted as a Judicial Review Court and not an Appellate Court. The 2nd Respondent cites the case of Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, where the Court of Appeal stated thus;
“Judicial review is concerned with the decision making process, not with the merit itself; the court would concern itself with such issues as to whether the decision makers had the jurisdiction…The Court should not act as a court of appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision”.
42. It is also the 2nd Respondent’s submission that a violation of section 6 and 7 of the CPA cannot form a ground for Judicial Review but for a suit to be struck out and which Application can only be made at the trial court with an option for appeal.
43. The 2nd Respondent submits that violation of Court Orders cannot form a subject of judicial review but a subject of contempt proceedings which can only be determined in the same court that issued the orders purported to have been violated.
44. The 2nd Respondents also submit that should it be that the records in the Court Management System are being manipulated and interfered with as alluded to by the Ex- Parte Applicant then the said complaints are within the reign of criminal law and it ought to start with a complaint, investigations and potentially prosecution but not seek redress in a Judicial Review court.
45. The 2nd Respondent thus prays that the Ex- Parte’s Application be therefore dismissed with costs.
Analysis and determination;
46. Upon perusing the pleadings and the rival submissions of parties alongside the authorities cited, this court finds the following to be the issue for determination:
Whether or not the Applicant is entitled to the orders sought;
47. In the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 where the learned Judge stated 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 recognised 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.”
48. It is not in dispute that on 10thJuly, 2012, an order was issued in NRB HCCC NO 430 OF 2012 Galot Limited & 4 Others vs Pravin Galot & 2 Others in the following terms: -
“2. THAT the operations of the 2ndplaintiff Manchester Outfitters Limited should continue as usual. That includes procurement and signing of cheques to effect various official transactions. The 1st Defendant (Pravin Galot) and 2nd Defendants (Rajesh Galot) shall continue to run the said company.
3. THAT there should be no filing of any suit or application except with leave of the court.”
49. The Respondent has not countered the applicants’ argument that Miscellaneous application NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank was filed without the leave of the court in breach of court orders granted in NRB HCCC NO 430 OF 2012 Galot Limited & 4 Others vs Pravin Galot & 2 Others.
50. This court arrives at a conclusion that no leave was obtained by the 2nd Respondent to file any suit and in particular NRB MCCC MISC APP NO. E1042 OF 2024 Manchester Outfitters Limited Vs Diamond Trust Bank.
51. The filing of the suit without leave amounts to a fundamental illegality within the principles as enunciated in the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410(supra).
52. This court is under a perpetual duty to protect and preserve its dignity. Orders that are issued by a court with competent jurisdiction must be respected and obeyed at all times.
53. There being an illegality, the court's power under the Judicial Review jurisdiction is hereby invoked.
54. In so doing, the orders of the High Court NRB HCCC NO 430 OF 2012 Galot Limited & 4 Others vs Pravin Galot & 2 Others shall be preserved.
55. Moving to another front, the Respondent raises concerns that the Ex- Parte Applicant filed a supplementary affidavit without seeking leave from this honourable court.
56.Order 51 rule 14(3) of the Civil Procedure Rules, provides that “Any applicant upon whom a replying affidavit or statement of grounds of opposition has been served under sub rule (1) may, with the leave of the court, file a supplementary affidavit and site the case of Nickson v Collins & 3 others (Environment & Land Case 1 of 2024) [2024] KEELC 1797 (KLR) (12 April 2024) (Ruling) where the Court cited the decision of Supreme Court of Kenya of Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR which held as follows:
“That said, guided by the decision in the Salat case (supra) it is clear that where a document required to be filed within a certain period is not filed within that time, or where a document that ought not to be filed with leave of the court is filed without it, it is a nullity: it is of no consequence and its place is nowhere than being expunged from the record.”
57. The Supplementary Affidavit is hereby expunged.
58. The Respondent made heavy arguments and submissions on diverse issues inter alia touching on the directorship, management and shareholding of the company that is at the heart of the dispute herein.
59. The issues transcend many courts where there has been active litigation. Disputes around the directorship, management and shareholding of the company that is at the heart of the dispute and cannot be resolved by the judicial review court. There is a competent court that has the statutory machinery to deal with such disputes.
60. This court lacks the jurisdiction to deal with the aforementioned issues. These are Company Law matters that can only be heard and conclusively determined under the Companies Act as is going on in the different courts.
61. Section 11(1) of the High Court (Organization and Administration) Act provides that for purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance, the Chief Justice may, where the workload and the number of judges in a station permit, establish any of the following divisions—
a) the Family and Children Division;
b) the Commercial Division;
c) the Admiralty Division;
d) the Civil Division;
e) the Criminal Division;
f) the Constitutional and Human Rights Division;
g) the Judicial Review Division; and
h) any other division as the Chief Justice may, on the advice of the Principal Judge determine.
62. This court lacks jurisdiction to preside over such company questions or issues since they revolve around the provisions of The Companies Act No 17 of 2015 (herein after referred to as the act) and the practice directions issued by the Chief Justice on the 18th November, 1997 (herein after referred to as the directions).
63. Section 3 of The Companies Act defines court as "the Court" means (unless some other court is are reproduced hereunder provide as follows;
The following matters shall be deemed to be Commercial matters, suitable for trial Courts, Upper Hill Nairobi.
1….
2. All company matters and applications including winding-up, excluding cases in which a Company is suing or being sued as an entity.
64. I take the humble view that the Commercial division of the High Court is best suited in the circumstances to hear the said issues as raised herein.
65. In so finding, I am guided by the finding in Republic v Registrar of Companies & 5 others Ex-Parte Midlands Company Limited [2019] eKLR the court while faced with a similar matter and in dismissing the application held that;
“38. Secondly, there are alternative fora that are more appropriate to resolve the factual disputes raised in this application, such as the Civil or Commercial Division of the High Court, where no restrictions or limitations exist as those that arise in judicial review.”
66. This court is further guided by the finding in Republic v Registrar of Companies & 2 others; Waterfront Outlet Limited (C.147966) (Interested Party); Waterfront Outlets Limited (CPR/2015/214503) (Exparte) (Miscellaneous Application E059 of 2022) [2023] KEHC 227 (KLR) (Judicial Review) (19 January 2023) (Ruling) wherein the court held;
“Suffice to note that even with the expanded scope of judicial review under the new constitutional dispensation, judicial review still remains a special jurisdiction that is majorly restricted to examination of whether an administrative decision conforms to the requirements of legality, rationality and procedural propriety. It is opportune to add that the judicial review process cannot be a substitute to statutorily provided for jurisdiction of other courts or bodies and the judicial review court cannot and should not assume jurisdiction where statute clearly places jurisdiction at the door of another court or body. To echo the words of the Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others (supra), ‘’ A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”
67. The upshot of the foregoing is that the applicant's case succeeds on the basis of the fact that on 10thJuly, 2012, an order was issued in NRB HCCC NO 430 OF 2012 Galot Limited & 4 Others vs Pravin Galot & 2 Others in the following terms: -
“2. THAT the operations of the 2ndplaintiff Manchester Outfitters Limited should continue as usual. That includes procurement and signing of cheques to effect various official transactions. The 1stDefendant (Pravin Galot) and 2nd Defendants (Rajesh Galot) shall continue to run the said company.
3. THAT there should be no filing of any suit or application except with leave of the court.”
Costs;
68. In Petition No. 4 of 2012 Jasbir Singh Rai & 3 others Tarlochan Singh Rai & 4 others; [2014] eKLR where the Supreme Court stated:
“It emerges that the award of costs would normally be guided by the principle that "costs follow the event": the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs.”
69. The applicant is successful and the applicant is entitled to cost and I so hold.
Disposition;
70. The applicant has made out of case that warrants the issuance of the orders sought and I so hold.
Order;
i. An Order of Certiorari bringing into this court quashing all proceedings currently subsisting before the Chief Magistrate’s Court at Milimani in NRB MCCC MISC APP. NO. E1042 OF 2024 Manchester Outfitters Limited -vs- Diamond Trust Bank is hereby issued.
ii. An Order of Certiorari to bring into this court quashing the Orders of the Chief Magistrate’s Court at Milimani issued on 12th June 2024 and 19th June 2024 and all subsequent orders in NRB MCCC MISC APP. NO. E1042 OF 2024 Manchester Outfitters Limited -vs- Diamond Trust Bank is hereby issued.
iii. An Order of Prohibition preventing the Respondents from continuing with NRB MCCC MISC APP. NO. E1042 OF 2024 Manchester Outfitters Limited -vs- Diamond Trust Bank is hereby issued.
iv. An Order of Mandamus directed at the 1st Respondent to strike out with costs NRB MCCC MISC APP. NO. E1042 OF 2024 Manchester Outfitters Limited -vs- Diamond Trust Bank for being an abuse of process is hereby issued.
v. Costs to the Applicant.