1. The Application that is before this court for determination is the Notice of Motion Application dated 4th September 2025 wherein in the Applicant seeks the following orders;
1) That this Honourable Court be pleased to certify this Application as extremely urgent and deserving of priority hearing and determination during this court vacation given the gravity of the matters in contention and the imminent risk of irreparable prejudice to the Applicant.
2) That this Honourable Court be pleased to issue an Order of Mandamus compelling the 1st and 2nd Respondents to immediately obtain, and thereafter serve upon the Applicant, full and complete disclosure of all evidence in their possession and power, and in particular, all commission approval documents held by the 3rd Respondent for the period between 27th December 2023 and 18th July 2025.
3) That in the alternative, and without prejudice to Prayer 2 hereinabove, this Honourable Court be pleased to issue an Order of Mandamus compelling the 3rd Respondent to produce, file, and serve upon the Applicant and the 1st and 2nd Respondents, all commission approval documents in its possession, custody, or control for the period between 2023 and 18th July, 2025.
4) That the costs of this Application be provided for.
5) That the Applicant is facing a serious criminal charge which carries a custodial sentence, and his Constitutional right to a fair trial under Article 50, including the right to be informed of the evidence against him and to have adequate facilities to prepare his defence, is being violated.
6) It is his case that the 1st and 2nd Respondents, in breach of their constitutional and statutory duties under Article 157(11), have failed and/or neglected to provide full disclosure of all material evidence, specifically the Commission Approval Documents central to the allegations.
7) The 3rd Respondent, being the complainant and the creator and custodian of the said documents, has failed and/or neglected to provide the said documents to the prosecution or the Applicant, thereby obstructing the course of justice and the Applicant's right to a fair trial.
8) That the documents sought are specific, uniquely within the knowledge and possession of the 3rd Respondent, and are essential for the Applicant to prepare his defence, as the prosecution's case is entirely predicated on financial transactions within that period.
9) That the continued prosecution of the Applicant in the subordinate court without the benefit of this critical evidence is prejudicial, oppressive, and amounts to an abuse of the court process, and will lead to a miscarriage of justice.
2. He is inviting this Court to intervene by way of an order of Mandamus.
3. That it is in the interest of justice that the proceedings in the criminal case be stayed to preserve the substratum of the case and to prevent the violation of the Applicant's fundamental rights and freedoms.
4. This suit was initiated in the Commercial Division of the High Court through a notice of motion dated….
5. The Application is opposed.
6. It was subsequently transferred to this division for hearing and determination.
The 1st & 2nd Respondent’s Case:
7. The 1st Respondent's opposed the Application on the following grounds:
1) That the Application is misconceived, frivolous, premature, and an abuse of the process of the Court. The Applicant seeks to invoke the supervisory jurisdiction of this Honourable Court in a matter properly within the competence of the subordinate criminal court seized of the proceedings.
2) The Applicant has not demonstrated any refusal or failure by the D.P.P. to perform a public duty as would warrant an order of mandamus. The D.P.P. has no legal obligation to compel third parties to produce documents outside the scope of prosecutorial evidence.
3) That the Applicant has failed to demonstrate any violation of his constitutional rights to a fair trial under article 50 of the Constitution, as he retains the opportunity to seek disclosure orders before the trial court or cross-examine witnesses regarding the alleged missing documents.
4) The relief sought is premature and speculative, as the Applicant’s criminal case is still at the pretrial stages, and no prejudice has been occasioned that cannot be remedied within the trial process. The Applicant has improperly invoked the High Court Judicial Review jurisdiction to challenge evidentiary and procedural aspects of an ongoing criminal trial.
5) That the Applicant has not demonstrated that the intended trial is malicious, oppressive, or without foundation. His allegations are directed at evidentiary sufficiency rather than the legality of the prosecution.
The 3rd Respondent’s Case;
8. It is its case that the Application is an abuse of the court process because section 9(2) of the Fair Administrative Actions Act stipulates that the Court shall not review an administrative action or decision under that Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
9. As conceded by the Applicant, the matter is before the magistrate court, and the Applicant has failed to explain why this Application was not filed, in the first instance, before the trial court; yet section 9(2) of the Fair Administrative Actions Act envisages that Judicial Review Applications may be filed before subordinate courts.
10. Further still, there is no evidence that the information and/or documents have been formally requested and that the Respondents have declined to avail the same.
11. There is no evidence that the Applicant raised his issues before the trial court and that the trial court declined to issue orders and if it did issue orders – the orders were detrimental to him.
12. The Applicant at paragraph 11 of the supporting affidavit claims that even the trial magistrate allegedly issued a directive ordering the prosecution to provide full disclosure – an averment made without any evidence.
13. The remedy does not lie with filing of Judicial Review proceedings before this Honourable Court.
14. Without prejudice to the foregoing, the 3rd Respondent being the complainant, has availed all relevant records/documents to the 1st & 2nd Respondents and is in no way obligated to avail any (further) documents to the Applicant directly, as the procedure is that the same be shared through the 1st & 2nd Respondents – and all documents were availed to the police during investigation.
15. By faulting the 3rd Respondent for alleged failure to provide certain documents and seeking a prerogative order against the 3rd Respondent, the Applicant’s cause of action changes from that against a public body (as envisaged by the Fair Administrative Actions Act) to against a private entity – his Application is therefore unmaintainable against the 3rd Respondent.
16. The Application is devoid of merit, premature, a usurpation of the jurisdiction of the trial court, a fishing expedition and an attempt to use these proceedings to turn a criminal matter before a court of competent jurisdiction into a civil discovery process – which amounts to an abuse of court process
Analysis and determination;
The court finds the following to be the issue for determination;
1) Whether the court has jurisdiction.
2) Whether the orders sought can be granted.
3) Who shall be the costs?
Whether the court has jurisdiction.
17. Supreme Court in the case of Nasra Ibrahim Ibren V. Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No. 19 of 2018, where that court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said:
“40 A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:
“25. What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…” (Emphasis supplied)
18. In the instant case, the court notes that the Applicant filed a Supporting Affidavit to accompany the Notice of Motion that forms the subject of this Application.
19. In Meshack Aluvaale –vs- Attorney General and 3 Others 1 [2013] eKLR, the Court stated: -
“In a Judicial Review Application, it is the affidavit that is of circumstantial value but not the statement of facts. In the instant case, the verifying affidavit comprises only three short paragraphs, which are introductory in nature. The facts and annexures relevant to the Application are all contained in the statement of facts which is offensive to Order 53, Rule (1) (2) Civil Procedure Rules – without facts in the verifying affidavit which is filed with the Chamber Summons, the Judicial Review Application is naked and cannot be sustained. I do agree with the Respondent that without evidence in support of the Application, the same is incompetent and fatally defective and must be struck out.”
20. Supporting Affidavits have no place in the Judicial Review proceedings. However, the court notes that the Application that is before it was a Suit that was transferred from another court, where the proceedings allow the filing of Applications with supporting affidavits. The only way that the court can be moved in other divisions of the High Court is through a plaint.
21. In Civil or Commercial cases, an aggrieved litigant can move the court by invoking;
(1) The plaint shall contain the following particulars—
a) the name of the court in which the suit is brought;
b) the name, description and place of residence of the plaintiff, and an address for service;
c) the name, description and place of residence of the defendant, so far as they can be ascertained;
d) the place where the cause of action arose;
e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and
f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.
22. A suit which does not comply with these strict provisions is exposed to Order 4 Rule (6) which stipulates that the court may of its own motion or on the Application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.
23. In the Application before me, the court notes that the Applicant did not file a Plaint or a Verifying Affidavit. The transfer of the suit to this court cannot sanitize nor cure a fatal drafting departure.
24. An Applicant seeking to move the Judicial Review Court can do so, through the Fair Administrative Action Act. Such an Applicant can do so through an Originating Motion accompanied by a supporting Affidavit. That is not what is before this court. A suit that is instituted through a Notice of Motion is incurable under Article 159 of the Constitution. It takes away the court’s jurisdiction.
Costs;
25. The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that;
“In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…”
26. The Respondents are entitled to costs.
27. Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019 eKLR/36) wherein it was observed that,
"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" Caltex Oil, (Kenya) Ltd [1989) KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step."
Disposition:
28. The court is bereft of jurisdiction and it cannot determine the 2nd issue.
Order;
The Application is struck out with costs.
Dated, signed and delivered at Nairobi this 19th day of March, 2026.
1) That this Honourable Court be pleased to certify this Application as extremely urgent and deserving of priority hearing and determination during this court vacation given the gravity of the matters in contention and the imminent risk of irreparable prejudice to the Applicant.
2) That this Honourable Court be pleased to issue an Order of Mandamus compelling the 1st and 2nd Respondents to immediately obtain, and thereafter serve upon the Applicant, full and complete disclosure of all evidence in their possession and power, and in particular, all commission approval documents held by the 3rd Respondent for the period between 27th December 2023 and 18th July 2025.
3) That in the alternative, and without prejudice to Prayer 2 hereinabove, this Honourable Court be pleased to issue an Order of Mandamus compelling the 3rd Respondent to produce, file, and serve upon the Applicant and the 1st and 2nd Respondents, all commission approval documents in its possession, custody, or control for the period between 2023 and 18th July, 2025.
4) That the costs of this Application be provided for.
5) That the Applicant is facing a serious criminal charge which carries a custodial sentence, and his Constitutional right to a fair trial under Article 50, including the right to be informed of the evidence against him and to have adequate facilities to prepare his defence, is being violated.
6) It is his case that the 1st and 2nd Respondents, in breach of their constitutional and statutory duties under Article 157(11), have failed and/or neglected to provide full disclosure of all material evidence, specifically the Commission Approval Documents central to the allegations.
7) The 3rd Respondent, being the complainant and the creator and custodian of the said documents, has failed and/or neglected to provide the said documents to the prosecution or the Applicant, thereby obstructing the course of justice and the Applicant's right to a fair trial.
8) That the documents sought are specific, uniquely within the knowledge and possession of the 3rd Respondent, and are essential for the Applicant to prepare his defence, as the prosecution's case is entirely predicated on financial transactions within that period.
9) That the continued prosecution of the Applicant in the subordinate court without the benefit of this critical evidence is prejudicial, oppressive, and amounts to an abuse of the court process, and will lead to a miscarriage of justice.
2. He is inviting this Court to intervene by way of an order of Mandamus.
3. That it is in the interest of justice that the proceedings in the criminal case be stayed to preserve the substratum of the case and to prevent the violation of the Applicant's fundamental rights and freedoms.
4. This suit was initiated in the Commercial Division of the High Court through a notice of motion dated….
5. The Application is opposed.
6. It was subsequently transferred to this division for hearing and determination.
The 1st & 2nd Respondent’s Case:
7. The 1st Respondent's opposed the Application on the following grounds:
1) That the Application is misconceived, frivolous, premature, and an abuse of the process of the Court. The Applicant seeks to invoke the supervisory jurisdiction of this Honourable Court in a matter properly within the competence of the subordinate criminal court seized of the proceedings.
2) The Applicant has not demonstrated any refusal or failure by the D.P.P. to perform a public duty as would warrant an order of mandamus. The D.P.P. has no legal obligation to compel third parties to produce documents outside the scope of prosecutorial evidence.
3) That the Applicant has failed to demonstrate any violation of his constitutional rights to a fair trial under article 50 of the Constitution, as he retains the opportunity to seek disclosure orders before the trial court or cross-examine witnesses regarding the alleged missing documents.
4) The relief sought is premature and speculative, as the Applicant’s criminal case is still at the pretrial stages, and no prejudice has been occasioned that cannot be remedied within the trial process. The Applicant has improperly invoked the High Court Judicial Review jurisdiction to challenge evidentiary and procedural aspects of an ongoing criminal trial.
5) That the Applicant has not demonstrated that the intended trial is malicious, oppressive, or without foundation. His allegations are directed at evidentiary sufficiency rather than the legality of the prosecution.
The 3rd Respondent’s Case;
8. It is its case that the Application is an abuse of the court process because section 9(2) of the Fair Administrative Actions Act stipulates that the Court shall not review an administrative action or decision under that Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
9. As conceded by the Applicant, the matter is before the magistrate court, and the Applicant has failed to explain why this Application was not filed, in the first instance, before the trial court; yet section 9(2) of the Fair Administrative Actions Act envisages that Judicial Review Applications may be filed before subordinate courts.
10. Further still, there is no evidence that the information and/or documents have been formally requested and that the Respondents have declined to avail the same.
11. There is no evidence that the Applicant raised his issues before the trial court and that the trial court declined to issue orders and if it did issue orders – the orders were detrimental to him.
12. The Applicant at paragraph 11 of the supporting affidavit claims that even the trial magistrate allegedly issued a directive ordering the prosecution to provide full disclosure – an averment made without any evidence.
13. The remedy does not lie with filing of Judicial Review proceedings before this Honourable Court.
14. Without prejudice to the foregoing, the 3rd Respondent being the complainant, has availed all relevant records/documents to the 1st & 2nd Respondents and is in no way obligated to avail any (further) documents to the Applicant directly, as the procedure is that the same be shared through the 1st & 2nd Respondents – and all documents were availed to the police during investigation.
15. By faulting the 3rd Respondent for alleged failure to provide certain documents and seeking a prerogative order against the 3rd Respondent, the Applicant’s cause of action changes from that against a public body (as envisaged by the Fair Administrative Actions Act) to against a private entity – his Application is therefore unmaintainable against the 3rd Respondent.
16. The Application is devoid of merit, premature, a usurpation of the jurisdiction of the trial court, a fishing expedition and an attempt to use these proceedings to turn a criminal matter before a court of competent jurisdiction into a civil discovery process – which amounts to an abuse of court process
Analysis and determination;
The court finds the following to be the issue for determination;
1) Whether the court has jurisdiction.
2) Whether the orders sought can be granted.
3) Who shall be the costs?
Whether the court has jurisdiction.
17. Supreme Court in the case of Nasra Ibrahim Ibren V. Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No. 19 of 2018, where that court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said:
“40 A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” vs. Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:
“25. What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…” (Emphasis supplied)
18. In the instant case, the court notes that the Applicant filed a Supporting Affidavit to accompany the Notice of Motion that forms the subject of this Application.
19. In Meshack Aluvaale –vs- Attorney General and 3 Others 1 [2013] eKLR, the Court stated: -
“In a Judicial Review Application, it is the affidavit that is of circumstantial value but not the statement of facts. In the instant case, the verifying affidavit comprises only three short paragraphs, which are introductory in nature. The facts and annexures relevant to the Application are all contained in the statement of facts which is offensive to Order 53, Rule (1) (2) Civil Procedure Rules – without facts in the verifying affidavit which is filed with the Chamber Summons, the Judicial Review Application is naked and cannot be sustained. I do agree with the Respondent that without evidence in support of the Application, the same is incompetent and fatally defective and must be struck out.”
20. Supporting Affidavits have no place in the Judicial Review proceedings. However, the court notes that the Application that is before it was a Suit that was transferred from another court, where the proceedings allow the filing of Applications with supporting affidavits. The only way that the court can be moved in other divisions of the High Court is through a plaint.
21. In Civil or Commercial cases, an aggrieved litigant can move the court by invoking;
(1) The plaint shall contain the following particulars—
a) the name of the court in which the suit is brought;
b) the name, description and place of residence of the plaintiff, and an address for service;
c) the name, description and place of residence of the defendant, so far as they can be ascertained;
d) the place where the cause of action arose;
e) where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and
f) an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.
(2) The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.
22. A suit which does not comply with these strict provisions is exposed to Order 4 Rule (6) which stipulates that the court may of its own motion or on the Application by the plaintiff or the defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2) (3), (4) and (5) of this rule.
23. In the Application before me, the court notes that the Applicant did not file a Plaint or a Verifying Affidavit. The transfer of the suit to this court cannot sanitize nor cure a fatal drafting departure.
24. An Applicant seeking to move the Judicial Review Court can do so, through the Fair Administrative Action Act. Such an Applicant can do so through an Originating Motion accompanied by a supporting Affidavit. That is not what is before this court. A suit that is instituted through a Notice of Motion is incurable under Article 159 of the Constitution. It takes away the court’s jurisdiction.
Costs;
25. The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that;
“In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…”
26. The Respondents are entitled to costs.
27. Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019 eKLR/36) wherein it was observed that,
"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" Caltex Oil, (Kenya) Ltd [1989) KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step."
Disposition:
28. The court is bereft of jurisdiction and it cannot determine the 2nd issue.
Order;
The Application is struck out with costs.
Dated, signed and delivered at Nairobi this 19th day of March, 2026.