' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO.E304 OF 2025
REPUBLIC………………………………………………………….APPLICANT
VERSUS
TRANSPORT LICENSING APPEALS BOARD……………...RESPONDENT
AND
KANGEMI CLASSIC SHUTTLE LIMITED…..1 ST EX PARTE APPLICANT
NICHOLAS NDAMBUKI MUTINDA &
10 OTHERS………………………………………2 ND EX PARTE APPLICANT
AND
DIGITAL LUXURY TRAVELLERS LIMITED…1 ST INTERESTED PARTY
NATIONAL TRANSPORT & SAFETY
AUTHORITY……………………………………….2 ND INTERESTED PARTY
CHIEF OFFICER MOBILITY,
NAIROBI CITY COUNTY GOVERNMENT……3 RD INTERESTED PARTY
NAIROBI CITY COUNTY GOVERNMENT……4 TH INTERESTED PARTY
KANGEMI MATATU OWNERS SAVINGS AND CREDIT
CO-OPERATIVE SOCIETY (KMO)……………..5 TH INTERESTED PARTY
RULING
This ruling determines the 1 st interested party’s Notice of motion application dated 26 th September 2025 , supported by the affidavit sworn by Stanley Ngugi Gacheru on the even dat. The application is brought pursuant to Article 25 (c) and 50(1) of the Constitution and Rule 35(2) and (4) of the Fair Administrative Action Rules,2024 to have the orders made by this court on 25 th September 2025 ( the orders were made on 24 th September 2025 and uploaded on the CTS on 25 th September, 2025) vacated and set aside in toto , and that such appropriate directions be issued by the court on the matter. The 1 st interested party also seeks costs of the application and of the entire proceedings dated 23rd September, 2025 (there were no proceedings conducted on 23 rd September, 2025).
The 1 st interested party/applicant’s case is that counsel representing it during a Transport Licensing Appeals Board hearing on 25 th September 2025 , was shocked to learn from counsel for the 1 st ex parte applicant, Kangemi Classic Shuttle Ltd, that the High Court had issued an order that morning suspending the Board’s earlier order of 16 th September 2025 in TLAB Appeal No. E031 of 2025. The 1 st interested party claims that it had not been served with the said order, and only accessed it later through the Court’s online system.
It is asserted that the application giving rise to the impugned order was fatally defective , having been filed in the name of the Republic , which was never an actual applicant or client of the advocate on record, thus amounting to misrepresentation .
The 1 st interested party states that the Fair Administrative Action Rules, 2024 require judicial review proceedings to be initiated by an originating motion in Form JR2 , not by a chamber summons citing the Republic, and that Rule 5(1) and other mandatory provisions were not complied with.
According to the 1 st interested party, the ex parte orders were issued without hearing the interested parties, contrary to Article 50(1) and Article 25(c) of the Constitution, thereby violating the right to be heard. The 1 st interested party also states in deposition that the same plea had already been made before the Transport Licensing Appeals Board and was scheduled for inter partes hearing later that same day, meaning the High Court’s order undermined the Tribunal’s ongoing proceedings and allowed the ex parte applicants to gain unfair advantage.
The 1 st interested party further avers that the court acted outside the law by summarily granting orders not contemplated under the Fair Administrative Action Act or Rules, contrary to Rules 11, 19(2), and 27(3) , which require judicial review proceedings to follow due process and guard against orders that cause hardship, prejudice, or harm to good administration . It is also asserted that the orders of 25 th September 2025 were unlawful, procedurally defective, and unjust, and that they ought to be set aside immediately as they were obtained through non-disclosure, misrepresentation and denial of the right to be heard.
It is also alleged that the High Court’s order of 25 th September 2025 improperly assumed jurisdiction on merit , which a judicial review court does not have. The 1 st interested party relies on a precedent by this court Resolution Insurance Ltd v The HIV & Aids Tribunal & Others (HCJR No. 89 of 2018) , where the court is said to have held that judicial review is limited to procedural issues, not the merits of a dispute, and that parties must first exhaust available statutory mechanisms.
The 1 st interested party asserts further that the ex parte applicants were engaging in forum shopping , suing a weakened respondent without involving the Attorney General, which was unjust and procedurally irregular . Further, that the Civil Procedure Rules, 2010 do not apply to judicial review proceedings and that the Fair Administrative Action Rules, 2024 enacted under Section 13 of the Fair Administrative Action Act provide the mandatory procedure for instituting judicial review proceedings. It is also the 1 st interested party’s case that the ex parte applicants failed to comply with these Fair Administrative Action Rules, rendering their proceedings incompetent from the outset .
The 1 st interested party also accuses the ex parte applicants of deliberate misrepresentation and concealment of material facts, including falsely claiming that Kangemi Classic Shuttle Ltd held a PSV licence issued on 18 th March 2024, while in fact no such licence existed and purporting to rely on a letter dated 13 th October 2023, a year before the company was incorporated. The deponent describes this as perjury and deception, which misled this Court and pre-empted the Transport Licensing Appeal Board’s scheduled hearing.
It is also contended that the orders of this Court were issued without any supporting evidence, as the applicants’ affidavits contained blank or unsealed exhibits , contrary to the Oaths and Statutory Declarations Act and Rule 9 of the Commissioners for Oaths (Fees on Affidavits) Rules , rendering them legally invalid . Consequently, that the court’s orders were issued without evidentiary basis and in breach of the principle of rule of law under Article 10(2)(a) of the Constitution.
The deponent further claims that the High Court’s order allowed Kangemi Classic Shuttle Ltd to violate Regulation 5(1)(a) of the NTSA (Operation of Public Service Vehicles) Regulations, 2014, which requires any person desirous or operating public service vehicles to be licensed only if they are a member body corporate which owns a minimum of thirty serviceable vehicles registered as public service vehicles.
The 1 st interested party claims that the order of 25 th September, 2025 has caused chaos. Further, that that the ex parte applicants moved to the High Court to evade contempt proceedings lodged against them.
Responses
The 1 st ex parte applicant filed a replying affidavit sworn on 6 th October 2025 by John Ndungu Njuguna who introduces himself as a director of the 1 st ex parte applicant. He contends in deposition that the application dated 26 th September 2025 is frivolous, vexatious and an abuse of the court process as to begin with, Rule 5(1) of the Fair Administrative Action Rules, 2024 which the ex parte applicants are accused to have violated was stayed vide a conservatory order issued by the High Court on 28 th March, 2025, In HCCRPET E168 of 2025; Katiba Institute versus the State Law Office and others .
According to the 1 st ex parte applicant, the law applicable for leave to institute Judicial review proceeding is Order 53 of the Civil Procedure Rules but not the Fair Administrative Action Rules, and that the said Order 53 of the Civil Procedure Rules same permits the court to entertain application for leave ex parte and in chambers.
The ex parte applicants contends that the Fair Administrative Action Act and the Rules made thereunder did not repeal the Civil Procedure Rules. Further, that Order 53 Rule 1(4) permits the court to order that leave granted does operate to stay the impugned decision.
Similarly, that the application has been overtaken by events given that, in compliance with the court’s orders, a substantive notice of motion for Judicial review orders being HCJR/E310/2025 Kangemi Classic Shuttle Limited and Nicholas Ndambuki Mutinda vs. Digital Luxury Travelers Limited and National Transport and Safety Authority and 4 Others was filed, and directions issued by the court.
It is further contended that the 1 st interested party has not demonstrated any loss that it will suffer if the application is not allowed. That on the contrary, the impugned decision stayed operations of the ex parte applicants without hearing them; that the decision of the Transport Licensing Appeals Board (TLAB) had severely curtailed its operations and pre-disposed its members and franchisees to great hardships. It is stated that the 1 st interested party is just but a bitter competitor out to stifle competition through unjust means.
The 5 th interested party also filed a replying affidavit sworn on 20 th October 2025 by Stephen Kariuki Gachau who introduces himself as the chairman of the 5 th interested party.
According to the 5 th interested party, the 1 st interested party via a Memorandum of Appeal dated 11 th September 2025, appealed against the decision of the National Transport and Safety Authority issuing a Road Service License to the ex parte applicants herein.
That together with the aforementioned memorandum of appeal was a certificate of urgency calling into urgent action, exercise of the Tribunal/TLABS’s powers to the issues raised in the said memorandum of appeal, particularly the issue that the operations of the 1 st ex parte applicant were against the law as the license allowing such operations was obtained fraudulently and in consequence calling for stay of its operations pending the hearing and determination of the appeal.
The Tribunal is said to have issued interim orders on 16 th September 2025 staying the operations of the 1 st ex parte applicant pending the hearing and determination of the appeal with the hearing set down for 25 th September 2025.
The 1 st ex parte applicant is said to have filed an application dated 19 th September 2025, praying for vacation of the orders staying the operation and while at the hearing on 25 th September 2025 of the said application, counsel for the 1 st ex parte applicant made known to the Tribunal and the other parties, the orders of the court issued on 25 th September 2025 in respect of the chamber summons application for leave to apply for judicial review orders dated 23 rd September 2025. According to the 5 th interested party, this is a classic example of forum shopping.
It is contended that the Court in exercising its jurisdiction over a matter that was alive at the Transport Licensing Appeals Board, contravened sacred provisions of the Constitution including Article 10 and 159(1) , Sections 6 and 11 of the Civil Procedure Act and Section 38 of the National Transport and Safety Authority Act.
It is also the 5 th interested party’s case that the application is by way of chamber summons while the Fair Administrative Action Rules dictate that the same ought to be by way of originating notice of motion. Further, that the chamber summons were instituted in the name of the Republic as an applicant while the Republic cannot be an applicant at the leave stage of judicial review application.
The 5 th interested party further claims that the orders of 25 th September 2025 were obtained through concealment of facts including but not limited to the fact that the 1 st ex parte applicant had lodged a similar application at the Transport Licensing Appeals Board; that the orders of the Tribunal/Board were interim orders and thus the 1 st ex parte applicant’s application before this Court was unripe for exercise of supervisory powers of this Honourable Court.
According to the 5 th interested party, the 1 st ex parte applicant had the opportunity to ventilate their issues contesting the orders of the TLAB at the hearing and that the said orders of the Tribunal were subject to review, affirmation or variation after the hearing of the matter and that therefore, by lodging the application before this Court, the 1 st ex parte applicant breached the doctrine of procedural exclusivity.
The 5 th interested party also contends that the aforementioned flaws are so grave to be cured by the provisions of Articles 50 and 159(2)(d) of the Constitution of Kenya, 2010, and Sections 3 and 3A of the Civil Procedure Act, which provisions cannot be a panacea to reckless, ignorant and blatant breach and disregard for rules of procedure.
The 5 th interested party asserts that by allowing the 1 st ex parte applicant to continue operating under a contested licence while the dispute was pending before the competent tribunal, the High Court acted in excess of its powers and undermined the tribunal’s authority. It is alleged that this court’s orders prompted the lifting of the tribunal’s suspension, thereby enabling the 1 st ex parte applicant to unjustly benefit from the 5 th interested party’s resources.
The 5 th interested party further states that the vehicles in question were financed and managed under its schemes, from which it earned management fees and built financial capacity to assist its members and that the transfer of those vehicles to the 1 st ex parte applicant amounted to unjust enrichment at its expense.
Submissions
The application was canvassed by way of oral submissions.
During the oral highlights Mr. Harrison Kinyanjui counsel representing the 1 st interested party reiterated that the order given in favour of the ex parte applicants was not in conformity with the law hence it ought to be vacated. He further submitted the Constitutional Petition did not stay Rule 35(4) and (5) of the Fair Administrative Action Rules.
Counsel submitted that the chamber summons invoked the Fair Administrative Action Act and Rules of 2024. However, that it also invoked Sections 8 and 9 of Law Reforms Act and Order 53 of the Civil Procedure Rules, which was erroneous and fatal to these proceedings.
Further submission was that the applicant must move the court and that it cannot be the Republic as the Republic never instructed the advocate to file the application for leave. It was his submission that the Republic only comes in at the notice of motion stage. This according to Mr. Kinyanjui, renders the application fatally defective.
Further, he submitted that the ex parte applicants having invoked Rule 5 of the Fair Administrative Action Rules which was stayed, is fatal because no leave was required under the Fair Administrative Action Rules. That the applicants ought to have stuck on one lane. He relied on the case of Matagei vs. Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) where Korir J is said to have set out 3 jurisdictional frameworks of judicial review.
It was also submitted that once a party invokes the Fair Administrative Action, then no leave is necessary. That rules 19 and 27 were not adhered to, which, according to counsel, violated the audi alteram partem rule . Mr Kinyanjui also submitted that the judicial review application was filed without material disclosure that the dispute was pending adjudication before the Transport Licensing Appeals Board and therefore, an abuse of court process.
Counsel also submitted that the exhibits were not marked hence the law was violated. He argued that the Tribunal/TLAB had not yet heard the dispute and that the orders issued by this Court brought chaos.
Mr. Mugo, counsel for the ex parte applicant submitted that Rule 35 of the Fair Administrative Action Rules was not applicable as the judicial review application was filed under Order 53 of the Civil Procedure Rules. He also submitted that the Fair Administrative Action Rules cannot be invoked where the application is brought under Order 53 of the Civil procedure Rules.
Counsel for the ex parte applicant submitted that the Fair Administrative Action Act and its Rules did not repeal Order 53 of the Civil Procedure Rules or Sections 8 and 9 of the Law Reform Act, and therefore leave remains a legal requirement for judicial review applications. He argued that while the Fair Administrative Action Act refers to the application of the Civil Procedure Rules, it does not itself provide for or abolish the requirement for leave.
Counsel further submitted in contention that citing the Republic is a common law practice and that the orders issued by this Court were lawful , as Order 53 of the Civil procedure Rules expressly empowers the court to grant stay. Finally, counsel maintained that the present application is moot since leave was already granted and a substantive motion filed. He urged this Court to dismiss the application with costs .
Mr. Paul Isaac counsel for the 5 th interested party submitted that the dispute over illegal motor vehicle transfers and licensing lay within the TLAB’s jurisdiction, which Tribunal had already granted interim relief . He contended that the High Court application was defective and amounted to forum shopping , as the orders issued were orders that the Tribunal could lawfully grant. The effect, it was submitted, was to unjustly deprive his client of its vehicles and violate its property rights .
Counsel maintained that leave should not have been granted since the matter was already before the Tribunal, and that the applicants relied improperly on the Fair Administrative Action Act . Counsel also submitted that there were procedural breaches , including violation of Rule 9 of the Oaths and Statutory Declarations Rules and Regulation 15 of the Transport and Licensing Appeals Board Regulations , and argued that there was no evidence or disclosure justifying the court’s orders. Counsel concluded that the application was baseless and urged this court to grant the orders sought .
Analysis and Determination
I have carefully considered the application, the grounds, supporting affidavit, annextures and replying affidavits for and against the prayers sought. I have also considered the oral arguments made by the respective participating parties’ counsel on record and find the following issues arising for determination:
Whether the procedure adopted by the ex parte applicants in filing the application for leave under Order 53 of the Civil Procedure Rules and at the same time citing the Fair Administrative Action Act and Rules, while naming the Republic as the applicant renders the judicial review proceedings incompetent;
Whether the Court had power to issue the ex parte orders for leave and stay at the leave stage;
Whether the ex parte applicants were guilty of material non-disclosure and misrepresentation warranting the setting aside of the ex parte orders
What orders should this Court make?
Whether the procedure adopted by the ex parte applicants in filing the application for leave under Order 53 of the Civil Procedure Rules and at the same time citing the Fair Administrative Action Act and Rules, while naming the Republic as the applicant renders the judicial review proceedings incompetent;
There are other ancillary questions that this Court will answer alongside the main issues.
On the 1 st issue ,the 1 st interested party in its application for setting aside the orders of 25 th September, 2025 argues that the chamber summons application giving rise to the impugned orders was fatally defective, as the Fair Administrative Action Rules, 2024 requires judicial review proceedings to be initiated by an originating motion in Form JR2, not by a chamber summons, and that the ex parte applicants failed to comply with Rules 5(1), 11, 19(2), and 27(3) of the Fair Administrative Action Rules, 2024. The 1 st interested party also argues that the application is incompetent as it was brought in the name of Republic, which is not an actual party or client of the advocate on record.
The 5 th interested party supports this argument, contending that the application was procedurally defective for being brought by way of a chamber summons and for naming the Republic as the applicant, contrary to the Fair Administrative Action Act and Rules made thereunder.
Additionally, that the court’s orders were issued in disregard of procedural exclusivity, as the matter was still live before the Transport Licensing Appeals Board, and that the High Court therefore acted in excess of jurisdiction. It submits that such defects are too fundamental to be cured by Articles 50 and 159(2)(d) of the Constitution or Sections 3 and 3A of the Civil Procedure Act.
In response, the 1 st ex parte applicant contends that Order 53 of the Civil Procedure Rules remains the applicable procedure for judicial review and was not repealed by the Fair Administrative Action Act or the Rules. It contends that the High Court in Katiba Institute v State Law Office & Others HCCRPET E168 of 2025 issued conservatory orders on 28 th March 2025 staying the operation of Rule 5(1) of the Fair Administrative Action Rules,2024 the very provision that the interested parties rely on hence there was no procedural violation.
The 1 st exparte applicant maintains that the 1 st interested party’s application is frivolous and vexatious and that a substantive motion HCJR/E310/2025 Kangemi Classic Shuttle and Nicholas Ndambuki Mutinda vs. Digital Luxury Travelers Limited and National Transport and Safety Authority & 4 Others has already been filed pursuant to the leave granted, rendering the application overtaken by events.
In resolving this issue which is twinned, it is acknowledged that the Fair Administrative Action Rules, 2024 were promulgated to streamline the procedure for matters arising under the Fair Administrative Action Act and to facilitate and enforce the right to fair administrative action. While the Rules prescribe the procedure for instituting such proceedings commenced under the Act, neither the Act nor the Rules repealed the provisions of Order 53 of the Civil Procedure nor sections 8 and 9 of the Law Reform Act, in so far as they relate to judicial review.
It is important to note that the jurisdiction of this Court to entertain judicial review proceedings arises under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules as well as the Fair Administrative Action Act and Rules, 2024, implementing Article 47 and 23 of the Constitution see this Court’s decision in Charity Wanja Ndambiri vs. The Hon.Deputy Registrar, High Court of Kenya At Milimani Family Division; Judicial Review Misc. Application No. 140 of 2025.
Additionally, this court exercises supervisory jurisdiction over bodies, tribunals, persons and authorities exercising judicial and quasi-judicial functions. This jurisdiction is donated by Article 165(6) and (7) of the Constitution.it is for this reason that this Court does not fathom how it can be said to have violated the Constitutional values and or usurped powers and jurisdiction of the Tribunal by exercising jurisdiction that none other than the Constitution itself confers or vests in it.
The 1 st and 5 th interested parties contend that the chamber summons application referred to Republic as the applicant yet the Republic only becomes an applicant in the substantive notice of motion and not before leave has been granted.
While it is true that in judicial review proceedings, the name of the applicant ought to be indicated as the applicant in an application for leave, the question is whether such a misdescription is fatal to the proceedings, as contended by the 1 st interested party’s counsel, Mr. Harrison Kinyanjui.
The courts exist with the objective of deciding cases on their merits rather than to punish parties for procedural mistakes. Moreover, the primary test applied by courts is whether a reasonable person, having knowledge of the facts and reading the pleadings as a whole, would know that the claim was intended for them, despite the incorrect names included therein. Thus, if the litigating finger clearly points to the actual party, the error of misdescription is considered a mere misnomer, with Courts focusing more on the substance of the case and the rights of the parties, rather than technicalities and procedural traps.
In this case, I find that the fact of the applicant including the Republic in the pleadings as Applicant, which inclusion should have been in the substantive notice of motion, is not fatal to these proceedings as there is no prejudice that such an inclusion has caused or is likely to cause to any party. More so, anybody reading the pleadings clearly understands who the person applying for the reliefs is, and against who.
Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. Accordingly, such an omission or misdescription is in my view, a self-curable defect that does not invalidate otherwise competent proceedings, since from the pleadings as a whole, the intention of the pleadings is clear and the respondents and interested parties have not been misled.
The Court of Appeal addressed this issue of misdescription of parties in the case of Republic v Charles Lutta Kasamani & another ex parte Minister for Finance & Commissioner of Insurance as Licencing and Regulating Officers [2006] KECA 179 (KLR) as follows:
“As correctly submitted by Mr. Ombwayo, the problems of intitulment of pleadings in judicial review matters is as old and intractable as the law that provides for that remedy. Indeed, the predecessor of this Court was grappling with similar problems in the East African region half a century ago on matters of form in intituling proceedings under the Law Reform Ordinance, as it then was by name, and has since remained in substance. The two cases which illustrate the historical foundation of the problem are Mohamed Ahmed vs. R [1957] EA 523 and Farmers Bus Service & Others vs. Transport Licensing Appeal Tribunal [1957] EA 779. The court also gave guidelines on the proper form to be adopted in such proceedings and the decisions have been cited with approval on many occasions by this Court. It is evident however that the problem still persists in our courts fifty years after a solution was made available but it is not for want of authoritative precedent. Perhaps it is a matter that might have to be revisited by the Rules Committee to iron out the creases for the benefit of legal practitioners. Suffice it to say that a defect in form in the title or heading of an appeal, or a misjoinder or non-joinder of parties are irregularities that do not go to the substance of the appeal and are curable by amendment. This Court said so in Dipak Panachod Shah & Another Vs. The Resident Magistrate Nairobi and the Attorney General - Civil Application NAI. 81/00 (UR).”
Similarly, the Court of Appeal in Boya Rural Nursing Home Ltd v National Hospital Insurance Fund Board of Management [2005] KECA 39 (KLR) declined to dismiss an appeal on account of the recital of the forms of heading being incorrect and held thus:
“It is also argued by the Mr. Wasuna that the recital of the forms of heading is incorrect and the appeal should be struck out. Though the form of the proceedings and the heading of the application before the superior court and the appeal lodged do not exactly follow the format prescribed in Farmers Bus Service & Others v Transport Licensing Appeal Tribuna l [1959] EA 779, we do not think that the omission can be a ground to strike out the appeal, the objection having been belatedly raised. Moreover, the objection goes only on the want of form rather than on the substance.”
In a much earlier case of Microsoft Corporation vs. Mitsumi Computer Garage Ltd (2001) 2 E.A. 460 at page 467, Ringera J. (as he then was) stated as follows concerning deviations from or lapses in form or procedure:
“...Rules of procedure are handmaidens and not mistresses of justice and should not be elevated to a fetish as theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not fetter or choke it and where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form or procedure, which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect, ought not be treated as nullifying the legal instruments thus affected and the Court should rise to its higher calling to do justice by saving the proceedings in issue… ”
Again, in Isaac Wetosi v Commissioner of Cooperative Development, Bungoma HC MISC Appl 72 of 2001, Onyancha J (as he then was) faced with the same argument as the one herein that the applicant had instituted the chamber summons for leave to apply for judicial review orders under Order 53 of the Civil Procedure Rules in the name of the Republic instead of his own name, the learned Judge had this to say and I concur that:
“I will first deal with the Respondent’s first ground of objection – that the Ex Parte Applicant’s Notice of Motion for a judicial review order is incorrectly instituted, incurably defective, bad in law and incompetent for seeking leave and obtaining the leave in the name of the “Republic” instead of its own name. Mr Kiraido made reference to the cases of Farmers Bus Services and others v Transport Licensing Appeal Tribunal (1957) 1 EA, 779 and Mohamed Ahmed v R (1959) 1 EA, 523, to demonstrate his point. I have carefully perused the case reports above.
What I gather from Mr. Kiraido ‘s argument is that the applicant obtained leave through an application showing the “Republic” when at that stage the ex parte applicant should have shown himself as the applicant. Effectively therefore, Mr. Ki
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO.E304 OF 2025
REPUBLIC………………………………………………………….APPLICANT
VERSUS
TRANSPORT LICENSING APPEALS BOARD……………...RESPONDENT
AND
KANGEMI CLASSIC SHUTTLE LIMITED…..1 ST EX PARTE APPLICANT
NICHOLAS NDAMBUKI MUTINDA &
10 OTHERS………………………………………2 ND EX PARTE APPLICANT
AND
DIGITAL LUXURY TRAVELLERS LIMITED…1 ST INTERESTED PARTY
NATIONAL TRANSPORT & SAFETY
AUTHORITY……………………………………….2 ND INTERESTED PARTY
CHIEF OFFICER MOBILITY,
NAIROBI CITY COUNTY GOVERNMENT……3 RD INTERESTED PARTY
NAIROBI CITY COUNTY GOVERNMENT……4 TH INTERESTED PARTY
KANGEMI MATATU OWNERS SAVINGS AND CREDIT
CO-OPERATIVE SOCIETY (KMO)……………..5 TH INTERESTED PARTY
RULING
This ruling determines the 1 st interested party’s Notice of motion application dated 26 th September 2025 , supported by the affidavit sworn by Stanley Ngugi Gacheru on the even dat. The application is brought pursuant to Article 25 (c) and 50(1) of the Constitution and Rule 35(2) and (4) of the Fair Administrative Action Rules,2024 to have the orders made by this court on 25 th September 2025 ( the orders were made on 24 th September 2025 and uploaded on the CTS on 25 th September, 2025) vacated and set aside in toto , and that such appropriate directions be issued by the court on the matter. The 1 st interested party also seeks costs of the application and of the entire proceedings dated 23rd September, 2025 (there were no proceedings conducted on 23 rd September, 2025).
The 1 st interested party/applicant’s case is that counsel representing it during a Transport Licensing Appeals Board hearing on 25 th September 2025 , was shocked to learn from counsel for the 1 st ex parte applicant, Kangemi Classic Shuttle Ltd, that the High Court had issued an order that morning suspending the Board’s earlier order of 16 th September 2025 in TLAB Appeal No. E031 of 2025. The 1 st interested party claims that it had not been served with the said order, and only accessed it later through the Court’s online system.
It is asserted that the application giving rise to the impugned order was fatally defective , having been filed in the name of the Republic , which was never an actual applicant or client of the advocate on record, thus amounting to misrepresentation .
The 1 st interested party states that the Fair Administrative Action Rules, 2024 require judicial review proceedings to be initiated by an originating motion in Form JR2 , not by a chamber summons citing the Republic, and that Rule 5(1) and other mandatory provisions were not complied with.
According to the 1 st interested party, the ex parte orders were issued without hearing the interested parties, contrary to Article 50(1) and Article 25(c) of the Constitution, thereby violating the right to be heard. The 1 st interested party also states in deposition that the same plea had already been made before the Transport Licensing Appeals Board and was scheduled for inter partes hearing later that same day, meaning the High Court’s order undermined the Tribunal’s ongoing proceedings and allowed the ex parte applicants to gain unfair advantage.
The 1 st interested party further avers that the court acted outside the law by summarily granting orders not contemplated under the Fair Administrative Action Act or Rules, contrary to Rules 11, 19(2), and 27(3) , which require judicial review proceedings to follow due process and guard against orders that cause hardship, prejudice, or harm to good administration . It is also asserted that the orders of 25 th September 2025 were unlawful, procedurally defective, and unjust, and that they ought to be set aside immediately as they were obtained through non-disclosure, misrepresentation and denial of the right to be heard.
It is also alleged that the High Court’s order of 25 th September 2025 improperly assumed jurisdiction on merit , which a judicial review court does not have. The 1 st interested party relies on a precedent by this court Resolution Insurance Ltd v The HIV & Aids Tribunal & Others (HCJR No. 89 of 2018) , where the court is said to have held that judicial review is limited to procedural issues, not the merits of a dispute, and that parties must first exhaust available statutory mechanisms.
The 1 st interested party asserts further that the ex parte applicants were engaging in forum shopping , suing a weakened respondent without involving the Attorney General, which was unjust and procedurally irregular . Further, that the Civil Procedure Rules, 2010 do not apply to judicial review proceedings and that the Fair Administrative Action Rules, 2024 enacted under Section 13 of the Fair Administrative Action Act provide the mandatory procedure for instituting judicial review proceedings. It is also the 1 st interested party’s case that the ex parte applicants failed to comply with these Fair Administrative Action Rules, rendering their proceedings incompetent from the outset .
The 1 st interested party also accuses the ex parte applicants of deliberate misrepresentation and concealment of material facts, including falsely claiming that Kangemi Classic Shuttle Ltd held a PSV licence issued on 18 th March 2024, while in fact no such licence existed and purporting to rely on a letter dated 13 th October 2023, a year before the company was incorporated. The deponent describes this as perjury and deception, which misled this Court and pre-empted the Transport Licensing Appeal Board’s scheduled hearing.
It is also contended that the orders of this Court were issued without any supporting evidence, as the applicants’ affidavits contained blank or unsealed exhibits , contrary to the Oaths and Statutory Declarations Act and Rule 9 of the Commissioners for Oaths (Fees on Affidavits) Rules , rendering them legally invalid . Consequently, that the court’s orders were issued without evidentiary basis and in breach of the principle of rule of law under Article 10(2)(a) of the Constitution.
The deponent further claims that the High Court’s order allowed Kangemi Classic Shuttle Ltd to violate Regulation 5(1)(a) of the NTSA (Operation of Public Service Vehicles) Regulations, 2014, which requires any person desirous or operating public service vehicles to be licensed only if they are a member body corporate which owns a minimum of thirty serviceable vehicles registered as public service vehicles.
The 1 st interested party claims that the order of 25 th September, 2025 has caused chaos. Further, that that the ex parte applicants moved to the High Court to evade contempt proceedings lodged against them.
Responses
The 1 st ex parte applicant filed a replying affidavit sworn on 6 th October 2025 by John Ndungu Njuguna who introduces himself as a director of the 1 st ex parte applicant. He contends in deposition that the application dated 26 th September 2025 is frivolous, vexatious and an abuse of the court process as to begin with, Rule 5(1) of the Fair Administrative Action Rules, 2024 which the ex parte applicants are accused to have violated was stayed vide a conservatory order issued by the High Court on 28 th March, 2025, In HCCRPET E168 of 2025; Katiba Institute versus the State Law Office and others .
According to the 1 st ex parte applicant, the law applicable for leave to institute Judicial review proceeding is Order 53 of the Civil Procedure Rules but not the Fair Administrative Action Rules, and that the said Order 53 of the Civil Procedure Rules same permits the court to entertain application for leave ex parte and in chambers.
The ex parte applicants contends that the Fair Administrative Action Act and the Rules made thereunder did not repeal the Civil Procedure Rules. Further, that Order 53 Rule 1(4) permits the court to order that leave granted does operate to stay the impugned decision.
Similarly, that the application has been overtaken by events given that, in compliance with the court’s orders, a substantive notice of motion for Judicial review orders being HCJR/E310/2025 Kangemi Classic Shuttle Limited and Nicholas Ndambuki Mutinda vs. Digital Luxury Travelers Limited and National Transport and Safety Authority and 4 Others was filed, and directions issued by the court.
It is further contended that the 1 st interested party has not demonstrated any loss that it will suffer if the application is not allowed. That on the contrary, the impugned decision stayed operations of the ex parte applicants without hearing them; that the decision of the Transport Licensing Appeals Board (TLAB) had severely curtailed its operations and pre-disposed its members and franchisees to great hardships. It is stated that the 1 st interested party is just but a bitter competitor out to stifle competition through unjust means.
The 5 th interested party also filed a replying affidavit sworn on 20 th October 2025 by Stephen Kariuki Gachau who introduces himself as the chairman of the 5 th interested party.
According to the 5 th interested party, the 1 st interested party via a Memorandum of Appeal dated 11 th September 2025, appealed against the decision of the National Transport and Safety Authority issuing a Road Service License to the ex parte applicants herein.
That together with the aforementioned memorandum of appeal was a certificate of urgency calling into urgent action, exercise of the Tribunal/TLABS’s powers to the issues raised in the said memorandum of appeal, particularly the issue that the operations of the 1 st ex parte applicant were against the law as the license allowing such operations was obtained fraudulently and in consequence calling for stay of its operations pending the hearing and determination of the appeal.
The Tribunal is said to have issued interim orders on 16 th September 2025 staying the operations of the 1 st ex parte applicant pending the hearing and determination of the appeal with the hearing set down for 25 th September 2025.
The 1 st ex parte applicant is said to have filed an application dated 19 th September 2025, praying for vacation of the orders staying the operation and while at the hearing on 25 th September 2025 of the said application, counsel for the 1 st ex parte applicant made known to the Tribunal and the other parties, the orders of the court issued on 25 th September 2025 in respect of the chamber summons application for leave to apply for judicial review orders dated 23 rd September 2025. According to the 5 th interested party, this is a classic example of forum shopping.
It is contended that the Court in exercising its jurisdiction over a matter that was alive at the Transport Licensing Appeals Board, contravened sacred provisions of the Constitution including Article 10 and 159(1) , Sections 6 and 11 of the Civil Procedure Act and Section 38 of the National Transport and Safety Authority Act.
It is also the 5 th interested party’s case that the application is by way of chamber summons while the Fair Administrative Action Rules dictate that the same ought to be by way of originating notice of motion. Further, that the chamber summons were instituted in the name of the Republic as an applicant while the Republic cannot be an applicant at the leave stage of judicial review application.
The 5 th interested party further claims that the orders of 25 th September 2025 were obtained through concealment of facts including but not limited to the fact that the 1 st ex parte applicant had lodged a similar application at the Transport Licensing Appeals Board; that the orders of the Tribunal/Board were interim orders and thus the 1 st ex parte applicant’s application before this Court was unripe for exercise of supervisory powers of this Honourable Court.
According to the 5 th interested party, the 1 st ex parte applicant had the opportunity to ventilate their issues contesting the orders of the TLAB at the hearing and that the said orders of the Tribunal were subject to review, affirmation or variation after the hearing of the matter and that therefore, by lodging the application before this Court, the 1 st ex parte applicant breached the doctrine of procedural exclusivity.
The 5 th interested party also contends that the aforementioned flaws are so grave to be cured by the provisions of Articles 50 and 159(2)(d) of the Constitution of Kenya, 2010, and Sections 3 and 3A of the Civil Procedure Act, which provisions cannot be a panacea to reckless, ignorant and blatant breach and disregard for rules of procedure.
The 5 th interested party asserts that by allowing the 1 st ex parte applicant to continue operating under a contested licence while the dispute was pending before the competent tribunal, the High Court acted in excess of its powers and undermined the tribunal’s authority. It is alleged that this court’s orders prompted the lifting of the tribunal’s suspension, thereby enabling the 1 st ex parte applicant to unjustly benefit from the 5 th interested party’s resources.
The 5 th interested party further states that the vehicles in question were financed and managed under its schemes, from which it earned management fees and built financial capacity to assist its members and that the transfer of those vehicles to the 1 st ex parte applicant amounted to unjust enrichment at its expense.
Submissions
The application was canvassed by way of oral submissions.
During the oral highlights Mr. Harrison Kinyanjui counsel representing the 1 st interested party reiterated that the order given in favour of the ex parte applicants was not in conformity with the law hence it ought to be vacated. He further submitted the Constitutional Petition did not stay Rule 35(4) and (5) of the Fair Administrative Action Rules.
Counsel submitted that the chamber summons invoked the Fair Administrative Action Act and Rules of 2024. However, that it also invoked Sections 8 and 9 of Law Reforms Act and Order 53 of the Civil Procedure Rules, which was erroneous and fatal to these proceedings.
Further submission was that the applicant must move the court and that it cannot be the Republic as the Republic never instructed the advocate to file the application for leave. It was his submission that the Republic only comes in at the notice of motion stage. This according to Mr. Kinyanjui, renders the application fatally defective.
Further, he submitted that the ex parte applicants having invoked Rule 5 of the Fair Administrative Action Rules which was stayed, is fatal because no leave was required under the Fair Administrative Action Rules. That the applicants ought to have stuck on one lane. He relied on the case of Matagei vs. Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) where Korir J is said to have set out 3 jurisdictional frameworks of judicial review.
It was also submitted that once a party invokes the Fair Administrative Action, then no leave is necessary. That rules 19 and 27 were not adhered to, which, according to counsel, violated the audi alteram partem rule . Mr Kinyanjui also submitted that the judicial review application was filed without material disclosure that the dispute was pending adjudication before the Transport Licensing Appeals Board and therefore, an abuse of court process.
Counsel also submitted that the exhibits were not marked hence the law was violated. He argued that the Tribunal/TLAB had not yet heard the dispute and that the orders issued by this Court brought chaos.
Mr. Mugo, counsel for the ex parte applicant submitted that Rule 35 of the Fair Administrative Action Rules was not applicable as the judicial review application was filed under Order 53 of the Civil Procedure Rules. He also submitted that the Fair Administrative Action Rules cannot be invoked where the application is brought under Order 53 of the Civil procedure Rules.
Counsel for the ex parte applicant submitted that the Fair Administrative Action Act and its Rules did not repeal Order 53 of the Civil Procedure Rules or Sections 8 and 9 of the Law Reform Act, and therefore leave remains a legal requirement for judicial review applications. He argued that while the Fair Administrative Action Act refers to the application of the Civil Procedure Rules, it does not itself provide for or abolish the requirement for leave.
Counsel further submitted in contention that citing the Republic is a common law practice and that the orders issued by this Court were lawful , as Order 53 of the Civil procedure Rules expressly empowers the court to grant stay. Finally, counsel maintained that the present application is moot since leave was already granted and a substantive motion filed. He urged this Court to dismiss the application with costs .
Mr. Paul Isaac counsel for the 5 th interested party submitted that the dispute over illegal motor vehicle transfers and licensing lay within the TLAB’s jurisdiction, which Tribunal had already granted interim relief . He contended that the High Court application was defective and amounted to forum shopping , as the orders issued were orders that the Tribunal could lawfully grant. The effect, it was submitted, was to unjustly deprive his client of its vehicles and violate its property rights .
Counsel maintained that leave should not have been granted since the matter was already before the Tribunal, and that the applicants relied improperly on the Fair Administrative Action Act . Counsel also submitted that there were procedural breaches , including violation of Rule 9 of the Oaths and Statutory Declarations Rules and Regulation 15 of the Transport and Licensing Appeals Board Regulations , and argued that there was no evidence or disclosure justifying the court’s orders. Counsel concluded that the application was baseless and urged this court to grant the orders sought .
Analysis and Determination
I have carefully considered the application, the grounds, supporting affidavit, annextures and replying affidavits for and against the prayers sought. I have also considered the oral arguments made by the respective participating parties’ counsel on record and find the following issues arising for determination:
Whether the procedure adopted by the ex parte applicants in filing the application for leave under Order 53 of the Civil Procedure Rules and at the same time citing the Fair Administrative Action Act and Rules, while naming the Republic as the applicant renders the judicial review proceedings incompetent;
Whether the Court had power to issue the ex parte orders for leave and stay at the leave stage;
Whether the ex parte applicants were guilty of material non-disclosure and misrepresentation warranting the setting aside of the ex parte orders
What orders should this Court make?
Whether the procedure adopted by the ex parte applicants in filing the application for leave under Order 53 of the Civil Procedure Rules and at the same time citing the Fair Administrative Action Act and Rules, while naming the Republic as the applicant renders the judicial review proceedings incompetent;
There are other ancillary questions that this Court will answer alongside the main issues.
On the 1 st issue ,the 1 st interested party in its application for setting aside the orders of 25 th September, 2025 argues that the chamber summons application giving rise to the impugned orders was fatally defective, as the Fair Administrative Action Rules, 2024 requires judicial review proceedings to be initiated by an originating motion in Form JR2, not by a chamber summons, and that the ex parte applicants failed to comply with Rules 5(1), 11, 19(2), and 27(3) of the Fair Administrative Action Rules, 2024. The 1 st interested party also argues that the application is incompetent as it was brought in the name of Republic, which is not an actual party or client of the advocate on record.
The 5 th interested party supports this argument, contending that the application was procedurally defective for being brought by way of a chamber summons and for naming the Republic as the applicant, contrary to the Fair Administrative Action Act and Rules made thereunder.
Additionally, that the court’s orders were issued in disregard of procedural exclusivity, as the matter was still live before the Transport Licensing Appeals Board, and that the High Court therefore acted in excess of jurisdiction. It submits that such defects are too fundamental to be cured by Articles 50 and 159(2)(d) of the Constitution or Sections 3 and 3A of the Civil Procedure Act.
In response, the 1 st ex parte applicant contends that Order 53 of the Civil Procedure Rules remains the applicable procedure for judicial review and was not repealed by the Fair Administrative Action Act or the Rules. It contends that the High Court in Katiba Institute v State Law Office & Others HCCRPET E168 of 2025 issued conservatory orders on 28 th March 2025 staying the operation of Rule 5(1) of the Fair Administrative Action Rules,2024 the very provision that the interested parties rely on hence there was no procedural violation.
The 1 st exparte applicant maintains that the 1 st interested party’s application is frivolous and vexatious and that a substantive motion HCJR/E310/2025 Kangemi Classic Shuttle and Nicholas Ndambuki Mutinda vs. Digital Luxury Travelers Limited and National Transport and Safety Authority & 4 Others has already been filed pursuant to the leave granted, rendering the application overtaken by events.
In resolving this issue which is twinned, it is acknowledged that the Fair Administrative Action Rules, 2024 were promulgated to streamline the procedure for matters arising under the Fair Administrative Action Act and to facilitate and enforce the right to fair administrative action. While the Rules prescribe the procedure for instituting such proceedings commenced under the Act, neither the Act nor the Rules repealed the provisions of Order 53 of the Civil Procedure nor sections 8 and 9 of the Law Reform Act, in so far as they relate to judicial review.
It is important to note that the jurisdiction of this Court to entertain judicial review proceedings arises under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules as well as the Fair Administrative Action Act and Rules, 2024, implementing Article 47 and 23 of the Constitution see this Court’s decision in Charity Wanja Ndambiri vs. The Hon.Deputy Registrar, High Court of Kenya At Milimani Family Division; Judicial Review Misc. Application No. 140 of 2025.
Additionally, this court exercises supervisory jurisdiction over bodies, tribunals, persons and authorities exercising judicial and quasi-judicial functions. This jurisdiction is donated by Article 165(6) and (7) of the Constitution.it is for this reason that this Court does not fathom how it can be said to have violated the Constitutional values and or usurped powers and jurisdiction of the Tribunal by exercising jurisdiction that none other than the Constitution itself confers or vests in it.
The 1 st and 5 th interested parties contend that the chamber summons application referred to Republic as the applicant yet the Republic only becomes an applicant in the substantive notice of motion and not before leave has been granted.
While it is true that in judicial review proceedings, the name of the applicant ought to be indicated as the applicant in an application for leave, the question is whether such a misdescription is fatal to the proceedings, as contended by the 1 st interested party’s counsel, Mr. Harrison Kinyanjui.
The courts exist with the objective of deciding cases on their merits rather than to punish parties for procedural mistakes. Moreover, the primary test applied by courts is whether a reasonable person, having knowledge of the facts and reading the pleadings as a whole, would know that the claim was intended for them, despite the incorrect names included therein. Thus, if the litigating finger clearly points to the actual party, the error of misdescription is considered a mere misnomer, with Courts focusing more on the substance of the case and the rights of the parties, rather than technicalities and procedural traps.
In this case, I find that the fact of the applicant including the Republic in the pleadings as Applicant, which inclusion should have been in the substantive notice of motion, is not fatal to these proceedings as there is no prejudice that such an inclusion has caused or is likely to cause to any party. More so, anybody reading the pleadings clearly understands who the person applying for the reliefs is, and against who.
Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. Accordingly, such an omission or misdescription is in my view, a self-curable defect that does not invalidate otherwise competent proceedings, since from the pleadings as a whole, the intention of the pleadings is clear and the respondents and interested parties have not been misled.
The Court of Appeal addressed this issue of misdescription of parties in the case of Republic v Charles Lutta Kasamani & another ex parte Minister for Finance & Commissioner of Insurance as Licencing and Regulating Officers [2006] KECA 179 (KLR) as follows:
“As correctly submitted by Mr. Ombwayo, the problems of intitulment of pleadings in judicial review matters is as old and intractable as the law that provides for that remedy. Indeed, the predecessor of this Court was grappling with similar problems in the East African region half a century ago on matters of form in intituling proceedings under the Law Reform Ordinance, as it then was by name, and has since remained in substance. The two cases which illustrate the historical foundation of the problem are Mohamed Ahmed vs. R [1957] EA 523 and Farmers Bus Service & Others vs. Transport Licensing Appeal Tribunal [1957] EA 779. The court also gave guidelines on the proper form to be adopted in such proceedings and the decisions have been cited with approval on many occasions by this Court. It is evident however that the problem still persists in our courts fifty years after a solution was made available but it is not for want of authoritative precedent. Perhaps it is a matter that might have to be revisited by the Rules Committee to iron out the creases for the benefit of legal practitioners. Suffice it to say that a defect in form in the title or heading of an appeal, or a misjoinder or non-joinder of parties are irregularities that do not go to the substance of the appeal and are curable by amendment. This Court said so in Dipak Panachod Shah & Another Vs. The Resident Magistrate Nairobi and the Attorney General - Civil Application NAI. 81/00 (UR).”
Similarly, the Court of Appeal in Boya Rural Nursing Home Ltd v National Hospital Insurance Fund Board of Management [2005] KECA 39 (KLR) declined to dismiss an appeal on account of the recital of the forms of heading being incorrect and held thus:
“It is also argued by the Mr. Wasuna that the recital of the forms of heading is incorrect and the appeal should be struck out. Though the form of the proceedings and the heading of the application before the superior court and the appeal lodged do not exactly follow the format prescribed in Farmers Bus Service & Others v Transport Licensing Appeal Tribuna l [1959] EA 779, we do not think that the omission can be a ground to strike out the appeal, the objection having been belatedly raised. Moreover, the objection goes only on the want of form rather than on the substance.”
In a much earlier case of Microsoft Corporation vs. Mitsumi Computer Garage Ltd (2001) 2 E.A. 460 at page 467, Ringera J. (as he then was) stated as follows concerning deviations from or lapses in form or procedure:
“...Rules of procedure are handmaidens and not mistresses of justice and should not be elevated to a fetish as theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not fetter or choke it and where it is evident that the plaintiff has attempted to comply with the rule requiring verification of a plaint but he has fallen short of the prescribed standards, it would be to elevate form and procedure to a fetish to strike out the suit. Deviations from or lapses in form or procedure, which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect, ought not be treated as nullifying the legal instruments thus affected and the Court should rise to its higher calling to do justice by saving the proceedings in issue… ”
Again, in Isaac Wetosi v Commissioner of Cooperative Development, Bungoma HC MISC Appl 72 of 2001, Onyancha J (as he then was) faced with the same argument as the one herein that the applicant had instituted the chamber summons for leave to apply for judicial review orders under Order 53 of the Civil Procedure Rules in the name of the Republic instead of his own name, the learned Judge had this to say and I concur that:
“I will first deal with the Respondent’s first ground of objection – that the Ex Parte Applicant’s Notice of Motion for a judicial review order is incorrectly instituted, incurably defective, bad in law and incompetent for seeking leave and obtaining the leave in the name of the “Republic” instead of its own name. Mr Kiraido made reference to the cases of Farmers Bus Services and others v Transport Licensing Appeal Tribunal (1957) 1 EA, 779 and Mohamed Ahmed v R (1959) 1 EA, 523, to demonstrate his point. I have carefully perused the case reports above.
What I gather from Mr. Kiraido ‘s argument is that the applicant obtained leave through an application showing the “Republic” when at that stage the ex parte applicant should have shown himself as the applicant. Effectively therefore, Mr. Ki
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