1. The ex parte Applicants moved the Court by Chamber Summons dated 10th October 2025 under Order 53 Rule 1 of the Civil Procedure Rules, Articles 10, 47, 50 and 165 of the Constitution, and all enabling provisions of the law. The application invokes this Court’s supervisory jurisdiction under Article 165 and the statutory framework for judicial review under Order 53 as read with sections 8 and 9 of the Law Reform Act. The Applicants seek the remedies of declaration, certiorari and prohibition in respect of the orders issued on 27th August 2025 by in Nyamira MCCC E196 of 2025.
Background
2. According to the Statutory Statement dated 11th September 2025 and the Verifying Affidavits sworn on the same date, the Applicants state that the subordinate court issued orders restraining them from dealing with the motor vehicle, a Mitsubishi Tipper, and directed that it be impounded and kept at the Nyamira Police Station. They contend that these orders were made ex parte, without notice, without reasons, and without affording them a hearing or an opportunity to respond to allegations made by the Interested Party. They further assert that the magistrate acted irrationally, unreasonably, and in excess of jurisdiction, and that the decision rested upon what they describe as falsehoods and misrepresentations. They maintain that they are the lawful possessors of the motor vehicle and hold what they describe as the full suite of ownership and financing documents, whereas the Interested Party allegedly has none. They aver that unless the leave already granted operates as a stay, they stand to suffer prejudice, as law enforcement authorities have already taken further steps to enforce the impugned orders, thereby disrupting their use of the vehicle and their business operations.
3. The application is opposed through a Replying Affidavit sworn on 31st October 2025 by Pamella Maosa, the Interested Party. In that affidavit, she sets out the historical and factual context of the dispute. She deposes that she and the 1st Applicant jointly invested in two commercial motor vehicles, including the Mitsubishi Tipper, pursuant to contribution agreements executed on 28th November 2017 and 30th May 2019. She annexes copies of those agreements, together with bank statements, mobile money transaction records, and a letter from the lending institution confirming the joint nature of the loan facility used to finance the purchase of the vehicles. It is her case that although the parties initially operated the business jointly, the Applicants thereafter excluded her from management of the vehicles and from the proceeds generated by their commercial use. She states that the Applicants failed to account for the income arising from the venture and unilaterally took control of the property to the detriment of her financial interest.
4. The Interested Party avers that her efforts to resolve these grievances amicably were unsuccessful, prompting her to approach the subordinate court in Nyamira MCCC E196 of 2025 for interim relief to preserve the subject motor vehicle pending determination of the substantive civil dispute. According to her, the magistrate was persuaded that the dispute raised genuine concerns as to the ownership, financing, and commercial use of the vehicle, and that interim preservatory orders were necessary to prevent its dissipation or further contention pending the hearing of the main suit. She denies having presented falsehoods, denies that the subordinate court lacked jurisdiction, and asserts that the orders were not only lawful but necessary in the circumstances.
5. She further contends that the present judicial review proceedings amount to an attempt by the Applicants to convert what is essentially a private civil dispute into a public law challenge, and to overturn a judicial order through a process that is not designed for that purpose. She argues that the Applicants had recourse to appropriate remedies before the trial court—such as an application to set aside, vary, or stay the ex parte orders under the Civil Procedure Rules, or by way of an appeal—but chose not to pursue those avenues.
6. The Applicants filed written submissions dated 21st November 2025 in which they reiterate the grounds in their Statutory Statement and Verifying Affidavits. They submit that the ex parte orders issued on 27th August 2025, and subsequently extended, were unlawful, irrational, and tainted with procedural impropriety because they were granted without notice, without reasons, and without affording them an opportunity to be heard. They argue that the magistrate relied on misrepresentations by the Interested Party and failed to consider material documents demonstrating their lawful possession and financial contribution toward purchase of the Mitsubishi Tipper. They also submit that the continued impoundment of the vehicle has caused them severe economic loss, inability to service loans, disruption of business operations, and violation of their legitimate expectation that the trial court would accord them an opportunity to be heard.
7. The Applicants further contend that the subordinate court acted in excess of jurisdiction by ordering impoundment instead of resorting to less intrusive remedies such as directions, summons for inter partes hearing, or issuance of conservatory orders pending hearing. They emphasise alleged breaches of Articles 10, 47 and 50 of the Constitution and argue that the magistrate’s conduct amounted to illegality, irrationality, and procedural impropriety. They rely on authorities listed in their List of Authorities dated 28th November 2025 including Republic v Law Society of Kenya & Another; Irungu (Ex Parte Applicant) [2024] KEHC 1489 (KLR), and Pastoli v Kabale District Local Government Council [2008] EA 300, to submit that the impugned orders meet the threshold for quashing.
8. The Interested Party filed submissions dated 01st December 2025 arguing that judicial review is unavailable because the dispute is a private commercial matter concerning joint ownership, contribution, loan repayment, and business proceeds. The Interested Party submits that the Applicants are attempting to convert a civil dispute into a public law grievance and to overturn interlocutory judicial orders through an improper avenue. The Interested Party also argues that the magistrate acted within jurisdiction under the Civil Procedure Act and Magistrates’ Courts Act, and that the impugned orders merely preserved the subject property pending adjudication. The Interested Party additionally submits that judicial review cannot interrogate contested facts or the merits of interim civil orders, relying on Republic v Kenya Revenue Authority ex parte Yaya Towers Ltd [2008] eKLR, Kenya Power & Lighting Co. Ltd v Ariya [2011] eKLR, and Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR.
9. According to the Interested Party, the Applicants have not demonstrated illegality, irrationality, or procedural impropriety, and have come to court with unclean hands because they excluded her from the business, diverted revenue, and failed to account for proceeds. She also submits that judicial review is discretionary and should not be granted where the Applicants have alternative remedies, including applying before the trial court to set aside the ex parte orders, or appealing.
Issues for Determination
10. I have considered the pleadings and affidavits filed, and the submissions of the parties and the issues that arise for determination are:
1) Whether the subordinate court, in issuing the ex parte orders of 27th August 2025, acted without jurisdiction or committed an illegality warranting the intervention of this Court.
2) Whether the impugned orders were tainted by procedural impropriety, including breach of the right to be heard or the constitutional right to fair administrative action.
3) Whether the subordinate court’s decision was irrational or unreasonable in the public-law sense.
4) Whether the evolving jurisprudence on merit-based review under Article 47 and the Fair Administrative Action Act applies to this case.
11. The Court now turns to consider each of these issues. These issues require careful evaluation of both the Applicants’ affidavits and the Interested Party’s Replying Affidavit sworn on 31st October 2025, as well as the established jurisprudence defining the scope of judicial review.
Analysis
1) Whether the Subordinate Court Acted Without Jurisdiction
12. The Applicants argue that the magistrate lacked jurisdiction to issue orders impounding the Mitsubishi Tipper because, in their view, the Interested Party had no documentary proof of ownership. The Interested Party’s Replying Affidavit sworn on 31st October 2025, however, annexes contribution agreements dated 28th November 2017 and 30th May 2019, bank statements, mobile money records, and loan correspondence demonstrating a joint financial arrangement regarding the acquisition and operation of the motor vehicle.
13. The dispute before the subordinate court was therefore civil and proprietary in nature. Once properly seized of such a claim, a subordinate court is clothed with jurisdiction to grant interim preservatory orders to protect the subject matter in dispute pending the determination of the suit, provided the legal threshold for such relief is met on the facts.
14. In Commissioner of Lands v Hotel Kunste Ltd [1997] eKLR, the Court of Appeal described judicial review as concerned with administrative or quasi-judicial acts, not the merits of judicial decisions. A judicial act undertaken within the lawful jurisdiction of a court is not amenable to an order of certiorari merely because it is alleged that the court reached an erroneous conclusion. Any dissatisfaction with the merits of that decision lies in appeal, not in judicial review. The allegation of illegality is therefore without merit.
2) Whether procedural impropriety has been established
15. The Applicants contend that the impugned orders violated Articles 47 and 50 of the Constitution because they were issued ex parte without giving them an opportunity to be heard. While fair hearing principles are foundational, the Civil Procedure Rules expressly allow courts to issue ex parte interim orders where circumstances require urgent intervention.
16. This Court notes the Applicants’ contention that the magistrate allegedly declined to hear their application dated 09th September 2025 seeking to set aside the ex parte orders, thereby breaching their legitimate expectation to be accorded audience. However, save for assertions made in submissions, no proceedings, rulings, or orders from the trial court have been placed before this Court to demonstrate that the subordinate court refused to entertain that application or otherwise denied the Applicants a hearing. Judicial review cannot be founded on allegations that are unsupported by the record.
17. Further, the Applicants have not placed before the Court any material showing that they invoked, or were prevented from invoking, the statutory procedures available before the trial court to challenge, vary, or set aside the impugned orders. That omission is material. Judicial review is a remedy of last resort, and the Court will not intervene where parties have not demonstrated that they pursued, or were denied, the ordinary remedies available within the proceedings giving rise to the complaint.
18. Although the Applicants invoked Article 47 of the Constitution, the impugned decision was not an administrative action. In Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR, the Court clarified that Article 47 governs administrative processes and does not extend to the exercise of judicial power.
19. A magistrate issuing interim orders in a civil suit acts in the exercise of judicial authority under Article 159 of the Constitution, not administrative authority within the meaning of Article 47. It therefore follows that the impugned decision does not fall within the constitutional or statutory framework governing administrative action to warrant the intervention of this Court.
3) Whether the impugned decision was irrational or unreasonable
20. The standard for irrationality is stringent. A decision must be so devoid of logic that no reasonable tribunal could have reached it. The Applicants’ argument that the order lacked basis ignores the material before the magistrate, including joint loan documentation, contribution agreements, and financial records annexed to the Replying Affidavit of 31st October 2025.
21. The dispute presented to the subordinate court was genuine, involving complex issues of joint ownership, commercial use, and accountability for business proceeds. In such circumstances, an order preserving the subject vehicle pending the hearing of the suit is not unreasonable.
22. As the Court of Appeal stated in Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, judicial review is not an avenue for re-litigating the merits of a dispute where alternative remedies such as appeal are available. No irrationality in the public-law sense has been demonstrated.
23. The Applicants submitted that the continued impoundment of the vehicle caused severe economic hardship, including inability to repay loans and loss of business income. While such consequences may be relevant in an application for variation or discharge before the trial court, they do not establish irrationality in the Wednesbury sense. Judicial review concerns itself with the legality of the decision-making process, not the desirability, proportionality, or economic impact of an interlocutory order issued within jurisdiction. Hardship alone does not render a judicial decision irrational or amenable to review.
4) Whether the evolving jurisprudence on merits review applies
24. The Court acknowledges the post-2010 jurisprudence recognising a limited expansion of judicial review toward merit-based scrutiny of administrative action, as reflected in authorities such as Keroche Industries Ltd v KRA [2007] eKLR, Suchan Investment Ltd v Ministry of National Heritage & Culture [2016] eKLR, and Judicial Service Commission & Another v Lucy Muthoni Njora [2021] eKLR.
25. That expanded approach, however, applies only to administrative or executive decisions. The order challenged in this matter was an interlocutory judicial decision made in the exercise of judicial authority under Article 159 of the Constitution and the Civil Procedure Act. It does not constitute administrative action within the meaning of Article 47 or the Fair Administrative Action Act. Consequently, the merit-based review contemplated under that evolving jurisprudence is inapplicable, and any challenge to the correctness of the magistrate’s order lies by way of appeal or review before the trial court.
26. From the foregoing analysis, the Court finds that the Chamber Summons dated 10th October 2025 is devoid of merit. Consequently, the Court makes the following orders:
1) The ex parte orders issued on 27th August 2025 in Nyamira MCCC E196 of 2025 are not amenable to quashing or prohibition as no illegality, procedural impropriety, irrationality, or other public-law error having been established.
2) For the avoidance of doubt, the dispute between the parties is a private civil matter properly falling for determination before the subordinate court on the merits of the pending suit, through the mechanisms provided under the Civil Procedure Act.
3) Nothing in this judgment shall be construed as determining the substantive civil rights of the parties, which remain for adjudication before the trial court.
4) Costs of these judicial review proceedings shall be borne by the Applicants.
Background
2. According to the Statutory Statement dated 11th September 2025 and the Verifying Affidavits sworn on the same date, the Applicants state that the subordinate court issued orders restraining them from dealing with the motor vehicle, a Mitsubishi Tipper, and directed that it be impounded and kept at the Nyamira Police Station. They contend that these orders were made ex parte, without notice, without reasons, and without affording them a hearing or an opportunity to respond to allegations made by the Interested Party. They further assert that the magistrate acted irrationally, unreasonably, and in excess of jurisdiction, and that the decision rested upon what they describe as falsehoods and misrepresentations. They maintain that they are the lawful possessors of the motor vehicle and hold what they describe as the full suite of ownership and financing documents, whereas the Interested Party allegedly has none. They aver that unless the leave already granted operates as a stay, they stand to suffer prejudice, as law enforcement authorities have already taken further steps to enforce the impugned orders, thereby disrupting their use of the vehicle and their business operations.
3. The application is opposed through a Replying Affidavit sworn on 31st October 2025 by Pamella Maosa, the Interested Party. In that affidavit, she sets out the historical and factual context of the dispute. She deposes that she and the 1st Applicant jointly invested in two commercial motor vehicles, including the Mitsubishi Tipper, pursuant to contribution agreements executed on 28th November 2017 and 30th May 2019. She annexes copies of those agreements, together with bank statements, mobile money transaction records, and a letter from the lending institution confirming the joint nature of the loan facility used to finance the purchase of the vehicles. It is her case that although the parties initially operated the business jointly, the Applicants thereafter excluded her from management of the vehicles and from the proceeds generated by their commercial use. She states that the Applicants failed to account for the income arising from the venture and unilaterally took control of the property to the detriment of her financial interest.
4. The Interested Party avers that her efforts to resolve these grievances amicably were unsuccessful, prompting her to approach the subordinate court in Nyamira MCCC E196 of 2025 for interim relief to preserve the subject motor vehicle pending determination of the substantive civil dispute. According to her, the magistrate was persuaded that the dispute raised genuine concerns as to the ownership, financing, and commercial use of the vehicle, and that interim preservatory orders were necessary to prevent its dissipation or further contention pending the hearing of the main suit. She denies having presented falsehoods, denies that the subordinate court lacked jurisdiction, and asserts that the orders were not only lawful but necessary in the circumstances.
5. She further contends that the present judicial review proceedings amount to an attempt by the Applicants to convert what is essentially a private civil dispute into a public law challenge, and to overturn a judicial order through a process that is not designed for that purpose. She argues that the Applicants had recourse to appropriate remedies before the trial court—such as an application to set aside, vary, or stay the ex parte orders under the Civil Procedure Rules, or by way of an appeal—but chose not to pursue those avenues.
6. The Applicants filed written submissions dated 21st November 2025 in which they reiterate the grounds in their Statutory Statement and Verifying Affidavits. They submit that the ex parte orders issued on 27th August 2025, and subsequently extended, were unlawful, irrational, and tainted with procedural impropriety because they were granted without notice, without reasons, and without affording them an opportunity to be heard. They argue that the magistrate relied on misrepresentations by the Interested Party and failed to consider material documents demonstrating their lawful possession and financial contribution toward purchase of the Mitsubishi Tipper. They also submit that the continued impoundment of the vehicle has caused them severe economic loss, inability to service loans, disruption of business operations, and violation of their legitimate expectation that the trial court would accord them an opportunity to be heard.
7. The Applicants further contend that the subordinate court acted in excess of jurisdiction by ordering impoundment instead of resorting to less intrusive remedies such as directions, summons for inter partes hearing, or issuance of conservatory orders pending hearing. They emphasise alleged breaches of Articles 10, 47 and 50 of the Constitution and argue that the magistrate’s conduct amounted to illegality, irrationality, and procedural impropriety. They rely on authorities listed in their List of Authorities dated 28th November 2025 including Republic v Law Society of Kenya & Another; Irungu (Ex Parte Applicant) [2024] KEHC 1489 (KLR), and Pastoli v Kabale District Local Government Council [2008] EA 300, to submit that the impugned orders meet the threshold for quashing.
8. The Interested Party filed submissions dated 01st December 2025 arguing that judicial review is unavailable because the dispute is a private commercial matter concerning joint ownership, contribution, loan repayment, and business proceeds. The Interested Party submits that the Applicants are attempting to convert a civil dispute into a public law grievance and to overturn interlocutory judicial orders through an improper avenue. The Interested Party also argues that the magistrate acted within jurisdiction under the Civil Procedure Act and Magistrates’ Courts Act, and that the impugned orders merely preserved the subject property pending adjudication. The Interested Party additionally submits that judicial review cannot interrogate contested facts or the merits of interim civil orders, relying on Republic v Kenya Revenue Authority ex parte Yaya Towers Ltd [2008] eKLR, Kenya Power & Lighting Co. Ltd v Ariya [2011] eKLR, and Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR.
9. According to the Interested Party, the Applicants have not demonstrated illegality, irrationality, or procedural impropriety, and have come to court with unclean hands because they excluded her from the business, diverted revenue, and failed to account for proceeds. She also submits that judicial review is discretionary and should not be granted where the Applicants have alternative remedies, including applying before the trial court to set aside the ex parte orders, or appealing.
Issues for Determination
10. I have considered the pleadings and affidavits filed, and the submissions of the parties and the issues that arise for determination are:
1) Whether the subordinate court, in issuing the ex parte orders of 27th August 2025, acted without jurisdiction or committed an illegality warranting the intervention of this Court.
2) Whether the impugned orders were tainted by procedural impropriety, including breach of the right to be heard or the constitutional right to fair administrative action.
3) Whether the subordinate court’s decision was irrational or unreasonable in the public-law sense.
4) Whether the evolving jurisprudence on merit-based review under Article 47 and the Fair Administrative Action Act applies to this case.
11. The Court now turns to consider each of these issues. These issues require careful evaluation of both the Applicants’ affidavits and the Interested Party’s Replying Affidavit sworn on 31st October 2025, as well as the established jurisprudence defining the scope of judicial review.
Analysis
1) Whether the Subordinate Court Acted Without Jurisdiction
12. The Applicants argue that the magistrate lacked jurisdiction to issue orders impounding the Mitsubishi Tipper because, in their view, the Interested Party had no documentary proof of ownership. The Interested Party’s Replying Affidavit sworn on 31st October 2025, however, annexes contribution agreements dated 28th November 2017 and 30th May 2019, bank statements, mobile money records, and loan correspondence demonstrating a joint financial arrangement regarding the acquisition and operation of the motor vehicle.
13. The dispute before the subordinate court was therefore civil and proprietary in nature. Once properly seized of such a claim, a subordinate court is clothed with jurisdiction to grant interim preservatory orders to protect the subject matter in dispute pending the determination of the suit, provided the legal threshold for such relief is met on the facts.
14. In Commissioner of Lands v Hotel Kunste Ltd [1997] eKLR, the Court of Appeal described judicial review as concerned with administrative or quasi-judicial acts, not the merits of judicial decisions. A judicial act undertaken within the lawful jurisdiction of a court is not amenable to an order of certiorari merely because it is alleged that the court reached an erroneous conclusion. Any dissatisfaction with the merits of that decision lies in appeal, not in judicial review. The allegation of illegality is therefore without merit.
2) Whether procedural impropriety has been established
15. The Applicants contend that the impugned orders violated Articles 47 and 50 of the Constitution because they were issued ex parte without giving them an opportunity to be heard. While fair hearing principles are foundational, the Civil Procedure Rules expressly allow courts to issue ex parte interim orders where circumstances require urgent intervention.
16. This Court notes the Applicants’ contention that the magistrate allegedly declined to hear their application dated 09th September 2025 seeking to set aside the ex parte orders, thereby breaching their legitimate expectation to be accorded audience. However, save for assertions made in submissions, no proceedings, rulings, or orders from the trial court have been placed before this Court to demonstrate that the subordinate court refused to entertain that application or otherwise denied the Applicants a hearing. Judicial review cannot be founded on allegations that are unsupported by the record.
17. Further, the Applicants have not placed before the Court any material showing that they invoked, or were prevented from invoking, the statutory procedures available before the trial court to challenge, vary, or set aside the impugned orders. That omission is material. Judicial review is a remedy of last resort, and the Court will not intervene where parties have not demonstrated that they pursued, or were denied, the ordinary remedies available within the proceedings giving rise to the complaint.
18. Although the Applicants invoked Article 47 of the Constitution, the impugned decision was not an administrative action. In Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR, the Court clarified that Article 47 governs administrative processes and does not extend to the exercise of judicial power.
19. A magistrate issuing interim orders in a civil suit acts in the exercise of judicial authority under Article 159 of the Constitution, not administrative authority within the meaning of Article 47. It therefore follows that the impugned decision does not fall within the constitutional or statutory framework governing administrative action to warrant the intervention of this Court.
3) Whether the impugned decision was irrational or unreasonable
20. The standard for irrationality is stringent. A decision must be so devoid of logic that no reasonable tribunal could have reached it. The Applicants’ argument that the order lacked basis ignores the material before the magistrate, including joint loan documentation, contribution agreements, and financial records annexed to the Replying Affidavit of 31st October 2025.
21. The dispute presented to the subordinate court was genuine, involving complex issues of joint ownership, commercial use, and accountability for business proceeds. In such circumstances, an order preserving the subject vehicle pending the hearing of the suit is not unreasonable.
22. As the Court of Appeal stated in Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, judicial review is not an avenue for re-litigating the merits of a dispute where alternative remedies such as appeal are available. No irrationality in the public-law sense has been demonstrated.
23. The Applicants submitted that the continued impoundment of the vehicle caused severe economic hardship, including inability to repay loans and loss of business income. While such consequences may be relevant in an application for variation or discharge before the trial court, they do not establish irrationality in the Wednesbury sense. Judicial review concerns itself with the legality of the decision-making process, not the desirability, proportionality, or economic impact of an interlocutory order issued within jurisdiction. Hardship alone does not render a judicial decision irrational or amenable to review.
4) Whether the evolving jurisprudence on merits review applies
24. The Court acknowledges the post-2010 jurisprudence recognising a limited expansion of judicial review toward merit-based scrutiny of administrative action, as reflected in authorities such as Keroche Industries Ltd v KRA [2007] eKLR, Suchan Investment Ltd v Ministry of National Heritage & Culture [2016] eKLR, and Judicial Service Commission & Another v Lucy Muthoni Njora [2021] eKLR.
25. That expanded approach, however, applies only to administrative or executive decisions. The order challenged in this matter was an interlocutory judicial decision made in the exercise of judicial authority under Article 159 of the Constitution and the Civil Procedure Act. It does not constitute administrative action within the meaning of Article 47 or the Fair Administrative Action Act. Consequently, the merit-based review contemplated under that evolving jurisprudence is inapplicable, and any challenge to the correctness of the magistrate’s order lies by way of appeal or review before the trial court.
26. From the foregoing analysis, the Court finds that the Chamber Summons dated 10th October 2025 is devoid of merit. Consequently, the Court makes the following orders:
1) The ex parte orders issued on 27th August 2025 in Nyamira MCCC E196 of 2025 are not amenable to quashing or prohibition as no illegality, procedural impropriety, irrationality, or other public-law error having been established.
2) For the avoidance of doubt, the dispute between the parties is a private civil matter properly falling for determination before the subordinate court on the merits of the pending suit, through the mechanisms provided under the Civil Procedure Act.
3) Nothing in this judgment shall be construed as determining the substantive civil rights of the parties, which remain for adjudication before the trial court.
4) Costs of these judicial review proceedings shall be borne by the Applicants.