INTRODUCTION
1. The applicant in this matter Michael Mungai by way of a letter dated 01/09/2025 addressed to the honorable Deputy Registrar Criminal division (Milimani) moved this court for action against the respondents and interested party whom he accuses of the unlawful takeover of his premises.
2. To contextualize the matter I have elected to reproduce the contents of the letter hereof for purposes of distilling the issues that it raises.
3. The letter reads:
RE: HCCR MISC 196/2018 AND HC CR REV 131/2019 AT MILIMANI NAIROBI FORCEFUL BREAK INTO MICHAEL MUNGAI'S SUIT HOME (HOUSE NO.283, KOMAROCK ESTATE SECTOR 3A, PHASE ONE, RUTI COURT NAIROBI ON LR. NAIROBI BLOCK 111/530 BELONGING TO MICHAEL MUNGAI BY THE INTRUDERS CM CR MISC.1882/2018 OF MILIMANI
The above problem precipitated the house breaking and theft therefrom intrusion and forceful displacement of Michael Mungai and his family from their matrimonial home (Hse. No. 283 on LR. Nairobi Block 111/530 since 2001/2002, 2007/2011 to date 15/4/2025. Despite the registered High Court orders Judgement, Decrees, Directions, opinions etc. (Please see the annexed letter to the Office of the Ombudsman Nairobi) dated 15/4/2025 for more details.
We pleaded in 2019/2020 (before the Covid crises) that since the problems that led us to approaching you (Hon. Deputy Registrar) and Judges at Milimani Criminal Division Nairobi have not ended, we pleaded, applied and prayed, that the two files (No. HCCR 196/2018 and HCCR REV 131 2019, together with CMCR Misc 1882/2018 at Milimani Criminal Division Nairobi, be reopened, reinstated, restored, updated and granted etc. as pleaded by Michael Mungai the complainant applicant. Please expedite that matter.
Please note that in addition to disobeying the High Court decrees, orders, rulings, opinions, summons, Directions etc. The accused intruders also ignored, disobeyed, prevented and ridiculed etc. The High Court decrees orders, rulings, cautions, summons etc. (in HCCA 335/97). They were also insisting on disobeying, ignoring, perverting and ridiculed etc. High Court Decrees, orders, rulings, judgements and summons etc. (in HCCC 17/2001 (OS) HCCC 1026/2001 and the others) etc. In short, the accused said intruders have occupied Mungai's home by force.
Since the problems that precipitated the three suits HCCR Misc. 196 of 2018, HCCR REV 131/2019 and relative CMCR Misc. 1882/2018 at Milimani Nairobi, have not been resolved to date 15/4/2025. These 2(two) High Court criminal Division files (before the court) be re-opened, reinstated, restored, updated and finalized etc.
As pleaded by the complainant/Applicant Michael Mungai. Kindly expedite that matter of reopening, the files rather than opening another file at the criminal division Nairobi. Noting that closing the files by the courts is a miscarriage of justice and an abuse of the court powers, authority and process etc. Kindly rectify, correct that mistake urgently please. Kindly note that the accused intruders caused a dispute using unsigned documents.
Meanwhile please note that we are seeking your help to have the accused intruders arrested, presented to the court, convicted and punished for disobeying High Court orders, judgement, decrees, rulings and summons etc.
We applied that this matter (CM CR Misc. 1882/2018), be committed to a Higher Court. Kindly note we pleaded that this file be re-opened, restored, reinstated and updated as Hon. Shikwe (PM) and Hon. Ndungi (PM), had no jurisdiction, capacity, locus, competence, status etc. to deal with a matter that already had been handled by Hon. Riany (SRM) and reviewed, revised, corrected, rectified and nullified, overruled by Justice Lessit and Justice Ngenye (then in 2019, in HCREV 131/2019.
We were dealing with the execution of, the already tried matter (By Hon. Riany- (SRM). Thus, it was a "RES JUDICATA" matter. And, that has left the charges by Hon. Ooko (PM) and the applications by Michael Mungai together with the other outstanding matters, hanging in CM CR Misc 1882/2018 (hanging) at Milimani Court Nairobi
ISSUES FOR DETERMINATION
i. Whether this court has jurisdiction to punish the respondents and interested parties for contempt of court.
ii. Whether this court has the power to order the eviction of occupants in house No. 288 on LR NO. 111/530.
iii. Whether this court can interfere with matters pending before other courts of concurrent jurisdiction
SUBMISSIONS BY APPLICANT
4. On 1 st December 2025 the applicant appeared before this court and submitted orally that he hgas previously heard High Court Commercial Division Case No.226 of 2001, Family Division High Court Civil Case 17 of 2001 Origination Summons, High Court Civil Case No. 335 of 1997 and all those matters were in relation to house No. 283/Komarock Estate/ Sector 3a on LR Nairobi Block 111/530. The applicant went on to state that he is the registered principal owner of the house together with his estranged wife.
5. According to him High Court Civil Appeal No. 335 of 1997 and the High Court Civil Case No. 17 of 2001 (O.S) were determined. He went further to submit that he has High Court Civil Case No. 1026 of 2001 still pending before the Commercial Division of the High Court. Further, Mr. Mungai informed the court that he still has High Court Civil Case Misc. No 339 of 2018 before the Civil Division of the High court and that the matter has no date for hearing.
6. The applicant further informed the court that he has been to the Supreme Court in Petition No.9 of 2015 which was determined. When this court inquired from the applicant his reason for approaching the Criminal Division of the High Court he said he came following and order by the learned Honorable Justice Mabeya which according to him directed that the criminal elements of his dispute be handled by a court of concurrent jurisdiction thus the criminal courts.
7. The applicant stated that he reported his complaint at Buruburu Police station and later Kayole Police station and OB entries were made. He also went to Nairobi Area and Vigilance house to make similar reports. The applicant informed this court that he recorded statements with the police regarding the matter and that the matter went to the DPP who did not prefer charged against anyone. According to Mr.Mungai the learned Honorable Lady Justice Ngenye in High Court Criminal Revision No. 196 marked the revision as withdrawn and ordered to pursue private prosecution before the Chief Magistrates Court.
8. Further the applicant submitted that the matter is currently before Honorable Ooko Principal Magistrate and he was ordered to serve the respondents and interested party so that they could appear before the court and answer the charges.
9. In the applicant’s view the advocate appearing before this matter has simply engaged in delaying the matter and that his property was sold through a decree that was unlawfully obtained and that he believes the persons involved ought to have been charged with criminal offence over the disposal of his property.
10. In conclusion, Mr.Mungai urged the court to order the respondents to appear in court and take plea.
RESPONSE BY 1 ST DEFENDANT
11. Mr. Mugambi advocate appeared for the 1 st defendant and submitted that the Supreme Court in Civil Application No. 9 of 2015 made a decision which should guide this court in dealing with this matter.
12. Counsel submitted High Court No. 1026 of 2001 which the applicants says it is “hanging” in court was determined and that prompted him to move to the Supreme Court. According to the 1 st defendant there is no private prosecution that was commenced by the applicant even though he claims to have been given the leave to do so. In Mr. Mugambi’s view the applicant should go back to he court that he says issued the ordered he seeks to enforce and initiate contempt proceedings.
13. Counsel further submitted that this court has no jurisdiction to entertain matters pending before other court of concurrent jurisdiction the applicant’s application should be dismissed.
14. The third party was represented by Mr. Sigoma who adopted the submissions by counsel for the 1 st defendant and urged the court to dismiss the application.
15. In a quick rejoinder Mr. Mungai maintained that this court has the jurisdiction to entertain the criminal aspects of this case and punish the contemnors.
ANALYSIS AND DETERMINATION
16. The jurisdiction of the High court in revisions is well set out under Section 362 and 364 of the Criminal Procedure Code. The High Court while exercising its powers of revision inquires into the regularity, legality, correctness and propriety of a decision made by a court subordinate to it. The High court calls for the record of that court in order to review the decision in issue and make a determination based on the complaint raised before it.
17. The applicant in this matter has alluded to quite a number of matters pending before different Divisions of the High court. The High court cannot exercise its powers on revision on a matter pending before the High court.
18. The court before which a matter is pending retains the power to punish for contempt if at all its orders are disobeyed as alleged by the applicant.
19. The criminal Division can only call for records of lower courts exercising Criminal Jurisdiction to inquire into the same within the scope of revisionary jurisdiction. The revisionary power of the High Court is drawn from Article 167(6)&(7) of the Constitution which provides: “(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
20. Section 362 of the Criminal Procedure Code provides as follows on the High Court’s supervisory jurisdiction: “The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
21. The provisions leave no room for the High court to extend its jurisdiction to matters pending before other courts of concurrent jurisdiction. No doubt therefore as submitted by counsel for the 1 st defendant the applicant should consider moving the courts that are currently handling the dispute relating to his house to deal with those persons that he accuses of disobeying court orders.
22. It is trite that Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated: ‘’A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
23. This Court derives its jurisdiction principally form Article 165(3) of the Constitution which confers upon this Court unlimited original jurisdiction in criminal and civil matters, the provision clearly delineates and demarcates what the Court can and cannot do. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
24. In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice. The applicant has not referred this court to any particular matter before the lower court that he believes this court should exercise supervisory jurisdiction over.
25. If as alleged there is a matter before Hon. Ooko P.M and the applicant has been ordered to serve the parties, the proper thing to do would be to serve the parties as ordered by the Learned Hon. Magistrate and if at all they do not appear proceed to invoke the coercive power of the court to issue warrants of arrest against them.
26. It is thus premature for the applicant to move this court to have the alleged contemnors compelled by this court to appear before the learned honorable magistrate to cite any of them for contempt at this stage.
27. Jurisdiction is everything and without it a court cannot take any one more step in a matter. See Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989]KECA 48 (KLR) . This court’s jurisdiction has been improperly invoked and therefore the court cannot issue any of the orders sought by the applicant. As stated earlier on, the applicant has the option of returning to the Civil and Commercial Divisions of the High court where he says his matters are pending as well as the Chief Magistrates Court before Hon. Ooko for further processing of his intended private prosecution against the defendants and interested party.
28. The applicant is also aggrieved by the decision of the DPP not to charge the defendants and interested party. What essentially the applicant is asking the court to do though not in very express terms is to issue an order of mandamus. However, the Director of Public Prosecutions has been enjoined in this matter and in any event a prayer for a mandamus order would be properly canvassed before the judicial review division of the High court in an appropriate judicial review application.
29. The Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 states thus in relation to an order of mandamus:- “The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
30. The applicant if desirous to pursue that course nothing prevents him from initiating the necessary proceedings before the appropriate forum.
31. The procedure in such matters was dealt with extensively in Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where the court held, inter alia, as follows: “Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel theperformance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance,especially when the obligation arises out of the official status of the respondent.
Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable incertain cases when a duty is imposed by Act of Parliament for the benefit of an individual…In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some otherperson has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has beenrendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act.
It is perhaps hardly necessary to add that the applicant hasvery much of an interest in the fulfilment of that duty…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply inhis capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile…It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government…Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done…’’
32. The applicant in this case has not made a case for the exercise of the supervisory jurisdiction of this court as well as invoke the jurisdiction of this court to cite any party for contempt or issue an order of mandamus. The upshot of the above is that the instant revision application is dismissed and the applicant is directed to file appropriate proceedings before the respective divisions of the High court where his matters are pending and return to the Chief Magistrates Court before Honorable Ooko or any other magistrate handling his matter to engage the criminal justice process in the appropriate manner.
33. Lastly, the applicant may also petition the Director of Public Prosecutions to call for all police files he has in different police stations and have the same reviewed with a view to giving appropriate directions in line with his mandate under Article 157 of the Constitution.
34. It is so ordered.
1. The applicant in this matter Michael Mungai by way of a letter dated 01/09/2025 addressed to the honorable Deputy Registrar Criminal division (Milimani) moved this court for action against the respondents and interested party whom he accuses of the unlawful takeover of his premises.
2. To contextualize the matter I have elected to reproduce the contents of the letter hereof for purposes of distilling the issues that it raises.
3. The letter reads:
RE: HCCR MISC 196/2018 AND HC CR REV 131/2019 AT MILIMANI NAIROBI FORCEFUL BREAK INTO MICHAEL MUNGAI'S SUIT HOME (HOUSE NO.283, KOMAROCK ESTATE SECTOR 3A, PHASE ONE, RUTI COURT NAIROBI ON LR. NAIROBI BLOCK 111/530 BELONGING TO MICHAEL MUNGAI BY THE INTRUDERS CM CR MISC.1882/2018 OF MILIMANI
The above problem precipitated the house breaking and theft therefrom intrusion and forceful displacement of Michael Mungai and his family from their matrimonial home (Hse. No. 283 on LR. Nairobi Block 111/530 since 2001/2002, 2007/2011 to date 15/4/2025. Despite the registered High Court orders Judgement, Decrees, Directions, opinions etc. (Please see the annexed letter to the Office of the Ombudsman Nairobi) dated 15/4/2025 for more details.
We pleaded in 2019/2020 (before the Covid crises) that since the problems that led us to approaching you (Hon. Deputy Registrar) and Judges at Milimani Criminal Division Nairobi have not ended, we pleaded, applied and prayed, that the two files (No. HCCR 196/2018 and HCCR REV 131 2019, together with CMCR Misc 1882/2018 at Milimani Criminal Division Nairobi, be reopened, reinstated, restored, updated and granted etc. as pleaded by Michael Mungai the complainant applicant. Please expedite that matter.
Please note that in addition to disobeying the High Court decrees, orders, rulings, opinions, summons, Directions etc. The accused intruders also ignored, disobeyed, prevented and ridiculed etc. The High Court decrees orders, rulings, cautions, summons etc. (in HCCA 335/97). They were also insisting on disobeying, ignoring, perverting and ridiculed etc. High Court Decrees, orders, rulings, judgements and summons etc. (in HCCC 17/2001 (OS) HCCC 1026/2001 and the others) etc. In short, the accused said intruders have occupied Mungai's home by force.
Since the problems that precipitated the three suits HCCR Misc. 196 of 2018, HCCR REV 131/2019 and relative CMCR Misc. 1882/2018 at Milimani Nairobi, have not been resolved to date 15/4/2025. These 2(two) High Court criminal Division files (before the court) be re-opened, reinstated, restored, updated and finalized etc.
As pleaded by the complainant/Applicant Michael Mungai. Kindly expedite that matter of reopening, the files rather than opening another file at the criminal division Nairobi. Noting that closing the files by the courts is a miscarriage of justice and an abuse of the court powers, authority and process etc. Kindly rectify, correct that mistake urgently please. Kindly note that the accused intruders caused a dispute using unsigned documents.
Meanwhile please note that we are seeking your help to have the accused intruders arrested, presented to the court, convicted and punished for disobeying High Court orders, judgement, decrees, rulings and summons etc.
We applied that this matter (CM CR Misc. 1882/2018), be committed to a Higher Court. Kindly note we pleaded that this file be re-opened, restored, reinstated and updated as Hon. Shikwe (PM) and Hon. Ndungi (PM), had no jurisdiction, capacity, locus, competence, status etc. to deal with a matter that already had been handled by Hon. Riany (SRM) and reviewed, revised, corrected, rectified and nullified, overruled by Justice Lessit and Justice Ngenye (then in 2019, in HCREV 131/2019.
We were dealing with the execution of, the already tried matter (By Hon. Riany- (SRM). Thus, it was a "RES JUDICATA" matter. And, that has left the charges by Hon. Ooko (PM) and the applications by Michael Mungai together with the other outstanding matters, hanging in CM CR Misc 1882/2018 (hanging) at Milimani Court Nairobi
ISSUES FOR DETERMINATION
i. Whether this court has jurisdiction to punish the respondents and interested parties for contempt of court.
ii. Whether this court has the power to order the eviction of occupants in house No. 288 on LR NO. 111/530.
iii. Whether this court can interfere with matters pending before other courts of concurrent jurisdiction
SUBMISSIONS BY APPLICANT
4. On 1 st December 2025 the applicant appeared before this court and submitted orally that he hgas previously heard High Court Commercial Division Case No.226 of 2001, Family Division High Court Civil Case 17 of 2001 Origination Summons, High Court Civil Case No. 335 of 1997 and all those matters were in relation to house No. 283/Komarock Estate/ Sector 3a on LR Nairobi Block 111/530. The applicant went on to state that he is the registered principal owner of the house together with his estranged wife.
5. According to him High Court Civil Appeal No. 335 of 1997 and the High Court Civil Case No. 17 of 2001 (O.S) were determined. He went further to submit that he has High Court Civil Case No. 1026 of 2001 still pending before the Commercial Division of the High Court. Further, Mr. Mungai informed the court that he still has High Court Civil Case Misc. No 339 of 2018 before the Civil Division of the High court and that the matter has no date for hearing.
6. The applicant further informed the court that he has been to the Supreme Court in Petition No.9 of 2015 which was determined. When this court inquired from the applicant his reason for approaching the Criminal Division of the High Court he said he came following and order by the learned Honorable Justice Mabeya which according to him directed that the criminal elements of his dispute be handled by a court of concurrent jurisdiction thus the criminal courts.
7. The applicant stated that he reported his complaint at Buruburu Police station and later Kayole Police station and OB entries were made. He also went to Nairobi Area and Vigilance house to make similar reports. The applicant informed this court that he recorded statements with the police regarding the matter and that the matter went to the DPP who did not prefer charged against anyone. According to Mr.Mungai the learned Honorable Lady Justice Ngenye in High Court Criminal Revision No. 196 marked the revision as withdrawn and ordered to pursue private prosecution before the Chief Magistrates Court.
8. Further the applicant submitted that the matter is currently before Honorable Ooko Principal Magistrate and he was ordered to serve the respondents and interested party so that they could appear before the court and answer the charges.
9. In the applicant’s view the advocate appearing before this matter has simply engaged in delaying the matter and that his property was sold through a decree that was unlawfully obtained and that he believes the persons involved ought to have been charged with criminal offence over the disposal of his property.
10. In conclusion, Mr.Mungai urged the court to order the respondents to appear in court and take plea.
RESPONSE BY 1 ST DEFENDANT
11. Mr. Mugambi advocate appeared for the 1 st defendant and submitted that the Supreme Court in Civil Application No. 9 of 2015 made a decision which should guide this court in dealing with this matter.
12. Counsel submitted High Court No. 1026 of 2001 which the applicants says it is “hanging” in court was determined and that prompted him to move to the Supreme Court. According to the 1 st defendant there is no private prosecution that was commenced by the applicant even though he claims to have been given the leave to do so. In Mr. Mugambi’s view the applicant should go back to he court that he says issued the ordered he seeks to enforce and initiate contempt proceedings.
13. Counsel further submitted that this court has no jurisdiction to entertain matters pending before other court of concurrent jurisdiction the applicant’s application should be dismissed.
14. The third party was represented by Mr. Sigoma who adopted the submissions by counsel for the 1 st defendant and urged the court to dismiss the application.
15. In a quick rejoinder Mr. Mungai maintained that this court has the jurisdiction to entertain the criminal aspects of this case and punish the contemnors.
ANALYSIS AND DETERMINATION
16. The jurisdiction of the High court in revisions is well set out under Section 362 and 364 of the Criminal Procedure Code. The High Court while exercising its powers of revision inquires into the regularity, legality, correctness and propriety of a decision made by a court subordinate to it. The High court calls for the record of that court in order to review the decision in issue and make a determination based on the complaint raised before it.
17. The applicant in this matter has alluded to quite a number of matters pending before different Divisions of the High court. The High court cannot exercise its powers on revision on a matter pending before the High court.
18. The court before which a matter is pending retains the power to punish for contempt if at all its orders are disobeyed as alleged by the applicant.
19. The criminal Division can only call for records of lower courts exercising Criminal Jurisdiction to inquire into the same within the scope of revisionary jurisdiction. The revisionary power of the High Court is drawn from Article 167(6)&(7) of the Constitution which provides: “(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
20. Section 362 of the Criminal Procedure Code provides as follows on the High Court’s supervisory jurisdiction: “The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”
21. The provisions leave no room for the High court to extend its jurisdiction to matters pending before other courts of concurrent jurisdiction. No doubt therefore as submitted by counsel for the 1 st defendant the applicant should consider moving the courts that are currently handling the dispute relating to his house to deal with those persons that he accuses of disobeying court orders.
22. It is trite that Court may only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated: ‘’A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
23. This Court derives its jurisdiction principally form Article 165(3) of the Constitution which confers upon this Court unlimited original jurisdiction in criminal and civil matters, the provision clearly delineates and demarcates what the Court can and cannot do. The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
24. In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice. The applicant has not referred this court to any particular matter before the lower court that he believes this court should exercise supervisory jurisdiction over.
25. If as alleged there is a matter before Hon. Ooko P.M and the applicant has been ordered to serve the parties, the proper thing to do would be to serve the parties as ordered by the Learned Hon. Magistrate and if at all they do not appear proceed to invoke the coercive power of the court to issue warrants of arrest against them.
26. It is thus premature for the applicant to move this court to have the alleged contemnors compelled by this court to appear before the learned honorable magistrate to cite any of them for contempt at this stage.
27. Jurisdiction is everything and without it a court cannot take any one more step in a matter. See Owners of Motor Vessel Lillian “S”Vs Caltex Oil (K) Ltd (Civil Appeal 50 of 1989) [1989]KECA 48 (KLR) . This court’s jurisdiction has been improperly invoked and therefore the court cannot issue any of the orders sought by the applicant. As stated earlier on, the applicant has the option of returning to the Civil and Commercial Divisions of the High court where he says his matters are pending as well as the Chief Magistrates Court before Hon. Ooko for further processing of his intended private prosecution against the defendants and interested party.
28. The applicant is also aggrieved by the decision of the DPP not to charge the defendants and interested party. What essentially the applicant is asking the court to do though not in very express terms is to issue an order of mandamus. However, the Director of Public Prosecutions has been enjoined in this matter and in any event a prayer for a mandamus order would be properly canvassed before the judicial review division of the High court in an appropriate judicial review application.
29. The Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 states thus in relation to an order of mandamus:- “The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
30. The applicant if desirous to pursue that course nothing prevents him from initiating the necessary proceedings before the appropriate forum.
31. The procedure in such matters was dealt with extensively in Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 where the court held, inter alia, as follows: “Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel theperformance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance,especially when the obligation arises out of the official status of the respondent.
Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable incertain cases when a duty is imposed by Act of Parliament for the benefit of an individual…In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some otherperson has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has beenrendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act.
It is perhaps hardly necessary to add that the applicant hasvery much of an interest in the fulfilment of that duty…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply inhis capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile…It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government…Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done…’’
32. The applicant in this case has not made a case for the exercise of the supervisory jurisdiction of this court as well as invoke the jurisdiction of this court to cite any party for contempt or issue an order of mandamus. The upshot of the above is that the instant revision application is dismissed and the applicant is directed to file appropriate proceedings before the respective divisions of the High court where his matters are pending and return to the Chief Magistrates Court before Honorable Ooko or any other magistrate handling his matter to engage the criminal justice process in the appropriate manner.
33. Lastly, the applicant may also petition the Director of Public Prosecutions to call for all police files he has in different police stations and have the same reviewed with a view to giving appropriate directions in line with his mandate under Article 157 of the Constitution.
34. It is so ordered.