' R
1. By a motion dated 18 June 2025 expressed to be brought under section 7(1) (a)(2)(a) (v) and 9(4) of the Fair Administrative Action Act No.4 of 2015 and Order 53 rules 2 and 3 of the Civil Procedure Rules. The applicant has sought for the following orders:
“a. An Order of Prohibition directed against the 2nd and 4th Respondents prohibiting them from instituting any further execution of the 1st Respondent’s Warrants of Arrest in Execution of a Decree dated 13th December 2024 issued by the 1st Respondent in Chief Magistrates Court (Mombasa) Civil Case No. 2090 of 2018 Anke Jenkins -v- Osman Erdinc Elsek.
b. An Order of Prohibition prohibiting .my further execution of Clause 2 of an Order dated 15th February 2022 issued in Chief Magistrates Court (Mombasa) Civil Case No. 2090 of 2018 Anke Jenkins -v- Osman Erdinc Elsek
c. An Order of Certiorari to bring into this Court for the purpose of quashing the 1st Respondent''s Warrants of Arrest in Execution of a Decree dated 13111 December 2024 issued by the 1st Respondent in Chief Magistrates Court (Mombasa) Civil Case No. 2090 of 2018 Anke Jenkins -v- Osman Erdinc Elsek”.
The applicant has also asked for costs.
2. The application is based on a statutory statement dated 9 May 2025 and an affidavit sworn by the applicant on even date verifying the facts relied upon.
3. According to the applicant, Anke Jenkins, the 4th respondent in this application, instituted proceedings against him for a liquidated claim in Mombasa Chief Magistrates Court Civil Suit No. 2090 of 2018. By a letter of consent dated 14 February 2022, the applicant agreed to settle the total sum of Kshs. 9,560,939.50 by way of instalments. There was, in agreement, a default clause to the effect that if the applicant defaulted in any one instalment, the entire outstanding balance would become due and payable and the applicant would be committed to civil jail.
4. A decree was extracted and subsequently, the 4th respondent applied for and was granted warrants of arrest of the applicant in execution of the decree. The warrants directed the 2nd respondent to arrest and commit the applicant to civil jail because he had failed to settle the decree.
5. It is the applicant’s case that the warrants are illegal and in breach of the provisions of Article 11 of the International Covenant on Civil and Political Rights, 1966 as applied under the provisions of Article 2 (6) of the Constitution of Kenya because the committal of a person to civil jail for the non-payment of a contractual debt is against the aforementioned Convention.
6. According to the applicant, the 1st respondent committed an illegality in issuing the warrants of arrest because parties could not, by way of a consent, purport to confer jurisdiction to a court to assent to an illegality.
7. Only the 4th respondent responded to the application and, in that regard, filed a notice of preliminary objection dated 22 May 2025. The objection is on the grounds that the applicant’s firm of advocates, Messrs. Khaminwa & Khaminwa& Company Advocates, is not properly on record for the applicant because the said firm of advocates has neither obtained leave to come on record nor a consent from the applicant’s previous advocates to come on record. Under Order 9 rules 9 and 10 of the Civil Procedure Rules, such leave or consent is necessary considering that the firm of Messrs. Khaminwa & Khaminwa Advocates is purporting to come on record after judgment had been obtained against the applicant.
8. The 4th respondent has also urged that the applicant filed an appeal in this Honourable Court against the same judgement and decree that he is seeking to impeach in this application. To be precise, the appeal has been filed as High Court Appeal No. 142 of 2025 and the applicant has, in fact, applied for stay of execution of the judgment and decree in the same appeal. The appeal is pending determination. Accordingly, this application offends the doctrine of exhaustion of remedies under section 9(2) (4) of the Fair Administrative Actions Act and is an abuse of the due process.
9. In addition to these grounds, it has been urged in submissions filed on the 4th respondent’s behalf that the substantive motion for judicial review reliefs was filed outside the time prescribed by the court upon grant of leave.
10. The 4th respondent’s preliminary objection aside, this particular question of whether the motion before court was filed within time and as directed by this Honourable Court deserves immediate attention.
11. The record shows that leave to file the substantive motion was given on 12 May 2025 and, while granting leave, I directed that the substantive motion be filed and served within 21 days from 12 May 2025. Accordingly, the substantive motion ought to have been filed by 3 June 2025.
12. But the motion is dated 18 June 2025 and, therefore, it is beyond doubt that it was filed outside the twenty-one-day period within which it ought to have been filed.
13. As noted at the beginning of this judgment, the applicant invoked order 53 rules 2 and 3 of the Civil Procedure Rules. Rule 3(1) thereof speaks to the time when the substantive motion ought to be filed once leave has been granted. The rule reads as follows:
3. Application to be by notice of motion [Order 53, rule 3]
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing. (Emphasis added).
14. The rule is clear that once leave has been granted, the substantive motion must be filed within a period of twenty-one days from the date of the order granting leave. What this means is that leave to file the substantive motion does not have an indefinite lifespan; rather, it is time bound and lapses after 21 days or such other time, within the 21 day period, that the court has directed, upon granting leave.
15. The logical conclusion that can be drawn from the timing of the applicant’s substantive motion is that, as much as the applicant invoked order 53 of the Civil Procedure Rules in seeking leave to filing the substantive motion, and even in the motion itself, the motion was eventually filed without leave and, thus, in breach of the very same rule which the applicant invoked. The tenor of order 53 Rules 3(1) is in mandatory terms and, thus, its breach renders the application fatal.
16. The other ground of preliminary objection which, in my humble view, carries as much substance if not more than the one I have just disposed of, is that even if the applicant’s motion had been filed within time, it would be tantamount to abuse of the due court process since it constitutes parallel proceedings to an application for stay or appeal that the applicant has filed arising from the same judgment and decree impugned in his application.
17. I managed to access the online record in the magistrates’ court civil case no. 2090 of 2018 on the Case Tracking System portal. Among the pleadings filed on that record is an application by the applicant seeking, among other prayers, stay of execution of warrants of arrest of the applicant, which warrants have been issued in execution of the impugned judgment and decree. The application is dated 6 March 2025 and the prayer for stay of execution has been couched as follows:
“2. That this Honourable Court be pleased to order stay of execution of the warrants of arrest against the Judgement Debtor/ Applicant on the Notice to Show Cause and Decree issued on 13th December, 2024 pending the hearing and determination of this Application and/or further directions of this Honourable Court.”
18. The record further shows that this application was dismissed on 8 May 2025 and that the applicant has appealed against it in this Honourable Court Civil Appeal No. E142 of 2025. Indeed, there is a memorandum of appeal on the Case Tracking System portal showing that the applicant has filed a memorandum of appeal against the decision of the magistrates’ court dismissing his application for stay. In its pertinent part, the memorandum of appeal reads as follows:
“The appellant being aggrieved by the ruling of Hon. J.B. Kalo (CM) delivered electronically on 8th May, 2025 in Mombasa/MCCC/2090/2018 between Anke Jenkins (Plaintiff) versus Erdink Elsek (defendant) now appeals against the whole ruling on the following grounds:”.
19. That the applicant has invoked other stay or appeal mechanisms against the impugned judgment and decree goes to show that there is not only an alternative avenue for challenging the judgment and decree and subsequent orders or processes in the magistrates’ court Case No. 2090 of 2018 but also that the applicant has embraced and adopted that avenue for the appropriate remedy or remedies. That being the case, the judicial review remedies would not be available to him.
20. I am minded that the existence of an alternative remedy is never enough to oust jurisdiction in judicial review (see Leech versus Deputy Governor of Parkhurst Prison (1988) AC 533 per Lord Bridge at 562D). However, it has been held in R versus Inland Review Commissioners, ex p Preston (1985) AC 835 that:
“A remedy by way of judicial review is not to be made available where an alternative remedy exists…Judicial review is a collateral challenge: it is not an appeal. Where parliament has provided by statute appeal procedures… it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision…”
21. Addressing the same issue in R versus Peterkin, ex p Soni (1972) Imm AR 253 Lord Widgery CJ had this to say:
“Where Parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the applicant complains this court should in my judgement as a rule allow the appellate machinery to take its course. The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice were no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere.”
22. The Court of Appeal held in Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 OF 1992 that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
23. Thus, where, as in the applicant’s case, Parliament has enacted a statutory scheme for appeals in respect of certain decisions, an appeal will in ordinary circumstances be regarded as a suitable alternative remedy in relation to such decisions which ought to be pursued rather than having resort to judicial review.
24. To this end Section 65 (1) (b) of the Civil Procedure Act states as follows:
65. Appeal from other courts
(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court—
(b) from any original decree or part of a decree of a subordinate court, on a question of law or fact;
25. Subject to section 67(2) of the Civil Procedure Act which bars appeals against from a decree passed by the court with the consent of parties, it is apparent that the applicant has invoked the Civil Procedure Act filed an application for stay of execution of the impugned warrants and also an appeal for the appropriate remedy. Whether the appeal will succeed or not is not a question for this court to determine; for purposes of determination of the preliminary objection, it is sufficient that the applicant has embraced alternative means for the appropriate reliefs against the decision or the appurtenant execution processes that have impugned in these proceedings.
26. To sum up on this issue, I need not belabour the point that it is trite that the forms of relief available in a claim for judicial review are discretionary. The availability of the judicial review procedure is likewise discretionary. A court may refuse to grant leave to apply for judicial review or, like in this case where leave has been granted, refuse a remedy at the substantive hearing if a suitable alternative remedy exists, but the claimant has failed to use it. In this case, it has been demonstrated that an alternative remedy not only exists but also the applicant has adopted it and filed an application for stay and, subsequently, an appeal.
27. In these circumstances, it is an abuse of due process of this Honourable Court for the applicant to seek to institute judicial review reliefs against the same decree or processes that have been challenged elsewhere.
28. The other reason why the applicant’s application ought to fail in limine is that he suppressed these material facts from the court. When making the application for leave, the applicant did not disclose that the 4th respondent’s quest to execute the impugned judgment and decree have been challenged elsewhere by way of an application for stay or an appeal and that the appeal is awaiting determination. This information only came to light in the 4th respondent’s submissions.
29. It has been held that in an application for leave for judicial review, uberrimae fides is required and leave will not be granted, or may be later set aside, if there has been deliberate misrepresentation or concealment of material facts in the applicant’s affidavit or affidavits.
30. In R versus Kensington Income Tax Commissioner, ex parte Princess Edmond De Polignac (1917) 1KB 495, Viscount LJ addressed this point and stated as follows:
“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion, a careful examination will be made of the facts as they are and as they have been stated in the applicant''s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”
31. Having chosen to suppress facts material to his application, the applicant ought not to have been granted leave in the first place. For reasons I have given, the applicant’s application is struck out with costs to the 4th respondents. It is so ordered.
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1. By a motion dated 18 June 2025 expressed to be brought under section 7(1) (a)(2)(a) (v) and 9(4) of the Fair Administrative Action Act No.4 of 2015 and Order 53 rules 2 and 3 of the Civil Procedure Rules. The applicant has sought for the following orders:
“a. An Order of Prohibition directed against the 2nd and 4th Respondents prohibiting them from instituting any further execution of the 1st Respondent’s Warrants of Arrest in Execution of a Decree dated 13th December 2024 issued by the 1st Respondent in Chief Magistrates Court (Mombasa) Civil Case No. 2090 of 2018 Anke Jenkins -v- Osman Erdinc Elsek.
b. An Order of Prohibition prohibiting .my further execution of Clause 2 of an Order dated 15th February 2022 issued in Chief Magistrates Court (Mombasa) Civil Case No. 2090 of 2018 Anke Jenkins -v- Osman Erdinc Elsek
c. An Order of Certiorari to bring into this Court for the purpose of quashing the 1st Respondent''s Warrants of Arrest in Execution of a Decree dated 13111 December 2024 issued by the 1st Respondent in Chief Magistrates Court (Mombasa) Civil Case No. 2090 of 2018 Anke Jenkins -v- Osman Erdinc Elsek”.
The applicant has also asked for costs.
2. The application is based on a statutory statement dated 9 May 2025 and an affidavit sworn by the applicant on even date verifying the facts relied upon.
3. According to the applicant, Anke Jenkins, the 4th respondent in this application, instituted proceedings against him for a liquidated claim in Mombasa Chief Magistrates Court Civil Suit No. 2090 of 2018. By a letter of consent dated 14 February 2022, the applicant agreed to settle the total sum of Kshs. 9,560,939.50 by way of instalments. There was, in agreement, a default clause to the effect that if the applicant defaulted in any one instalment, the entire outstanding balance would become due and payable and the applicant would be committed to civil jail.
4. A decree was extracted and subsequently, the 4th respondent applied for and was granted warrants of arrest of the applicant in execution of the decree. The warrants directed the 2nd respondent to arrest and commit the applicant to civil jail because he had failed to settle the decree.
5. It is the applicant’s case that the warrants are illegal and in breach of the provisions of Article 11 of the International Covenant on Civil and Political Rights, 1966 as applied under the provisions of Article 2 (6) of the Constitution of Kenya because the committal of a person to civil jail for the non-payment of a contractual debt is against the aforementioned Convention.
6. According to the applicant, the 1st respondent committed an illegality in issuing the warrants of arrest because parties could not, by way of a consent, purport to confer jurisdiction to a court to assent to an illegality.
7. Only the 4th respondent responded to the application and, in that regard, filed a notice of preliminary objection dated 22 May 2025. The objection is on the grounds that the applicant’s firm of advocates, Messrs. Khaminwa & Khaminwa& Company Advocates, is not properly on record for the applicant because the said firm of advocates has neither obtained leave to come on record nor a consent from the applicant’s previous advocates to come on record. Under Order 9 rules 9 and 10 of the Civil Procedure Rules, such leave or consent is necessary considering that the firm of Messrs. Khaminwa & Khaminwa Advocates is purporting to come on record after judgment had been obtained against the applicant.
8. The 4th respondent has also urged that the applicant filed an appeal in this Honourable Court against the same judgement and decree that he is seeking to impeach in this application. To be precise, the appeal has been filed as High Court Appeal No. 142 of 2025 and the applicant has, in fact, applied for stay of execution of the judgment and decree in the same appeal. The appeal is pending determination. Accordingly, this application offends the doctrine of exhaustion of remedies under section 9(2) (4) of the Fair Administrative Actions Act and is an abuse of the due process.
9. In addition to these grounds, it has been urged in submissions filed on the 4th respondent’s behalf that the substantive motion for judicial review reliefs was filed outside the time prescribed by the court upon grant of leave.
10. The 4th respondent’s preliminary objection aside, this particular question of whether the motion before court was filed within time and as directed by this Honourable Court deserves immediate attention.
11. The record shows that leave to file the substantive motion was given on 12 May 2025 and, while granting leave, I directed that the substantive motion be filed and served within 21 days from 12 May 2025. Accordingly, the substantive motion ought to have been filed by 3 June 2025.
12. But the motion is dated 18 June 2025 and, therefore, it is beyond doubt that it was filed outside the twenty-one-day period within which it ought to have been filed.
13. As noted at the beginning of this judgment, the applicant invoked order 53 rules 2 and 3 of the Civil Procedure Rules. Rule 3(1) thereof speaks to the time when the substantive motion ought to be filed once leave has been granted. The rule reads as follows:
3. Application to be by notice of motion [Order 53, rule 3]
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing. (Emphasis added).
14. The rule is clear that once leave has been granted, the substantive motion must be filed within a period of twenty-one days from the date of the order granting leave. What this means is that leave to file the substantive motion does not have an indefinite lifespan; rather, it is time bound and lapses after 21 days or such other time, within the 21 day period, that the court has directed, upon granting leave.
15. The logical conclusion that can be drawn from the timing of the applicant’s substantive motion is that, as much as the applicant invoked order 53 of the Civil Procedure Rules in seeking leave to filing the substantive motion, and even in the motion itself, the motion was eventually filed without leave and, thus, in breach of the very same rule which the applicant invoked. The tenor of order 53 Rules 3(1) is in mandatory terms and, thus, its breach renders the application fatal.
16. The other ground of preliminary objection which, in my humble view, carries as much substance if not more than the one I have just disposed of, is that even if the applicant’s motion had been filed within time, it would be tantamount to abuse of the due court process since it constitutes parallel proceedings to an application for stay or appeal that the applicant has filed arising from the same judgment and decree impugned in his application.
17. I managed to access the online record in the magistrates’ court civil case no. 2090 of 2018 on the Case Tracking System portal. Among the pleadings filed on that record is an application by the applicant seeking, among other prayers, stay of execution of warrants of arrest of the applicant, which warrants have been issued in execution of the impugned judgment and decree. The application is dated 6 March 2025 and the prayer for stay of execution has been couched as follows:
“2. That this Honourable Court be pleased to order stay of execution of the warrants of arrest against the Judgement Debtor/ Applicant on the Notice to Show Cause and Decree issued on 13th December, 2024 pending the hearing and determination of this Application and/or further directions of this Honourable Court.”
18. The record further shows that this application was dismissed on 8 May 2025 and that the applicant has appealed against it in this Honourable Court Civil Appeal No. E142 of 2025. Indeed, there is a memorandum of appeal on the Case Tracking System portal showing that the applicant has filed a memorandum of appeal against the decision of the magistrates’ court dismissing his application for stay. In its pertinent part, the memorandum of appeal reads as follows:
“The appellant being aggrieved by the ruling of Hon. J.B. Kalo (CM) delivered electronically on 8th May, 2025 in Mombasa/MCCC/2090/2018 between Anke Jenkins (Plaintiff) versus Erdink Elsek (defendant) now appeals against the whole ruling on the following grounds:”.
19. That the applicant has invoked other stay or appeal mechanisms against the impugned judgment and decree goes to show that there is not only an alternative avenue for challenging the judgment and decree and subsequent orders or processes in the magistrates’ court Case No. 2090 of 2018 but also that the applicant has embraced and adopted that avenue for the appropriate remedy or remedies. That being the case, the judicial review remedies would not be available to him.
20. I am minded that the existence of an alternative remedy is never enough to oust jurisdiction in judicial review (see Leech versus Deputy Governor of Parkhurst Prison (1988) AC 533 per Lord Bridge at 562D). However, it has been held in R versus Inland Review Commissioners, ex p Preston (1985) AC 835 that:
“A remedy by way of judicial review is not to be made available where an alternative remedy exists…Judicial review is a collateral challenge: it is not an appeal. Where parliament has provided by statute appeal procedures… it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision…”
21. Addressing the same issue in R versus Peterkin, ex p Soni (1972) Imm AR 253 Lord Widgery CJ had this to say:
“Where Parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the applicant complains this court should in my judgement as a rule allow the appellate machinery to take its course. The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice were no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere.”
22. The Court of Appeal held in Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 OF 1992 that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
23. Thus, where, as in the applicant’s case, Parliament has enacted a statutory scheme for appeals in respect of certain decisions, an appeal will in ordinary circumstances be regarded as a suitable alternative remedy in relation to such decisions which ought to be pursued rather than having resort to judicial review.
24. To this end Section 65 (1) (b) of the Civil Procedure Act states as follows:
65. Appeal from other courts
(1) Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court—
(b) from any original decree or part of a decree of a subordinate court, on a question of law or fact;
25. Subject to section 67(2) of the Civil Procedure Act which bars appeals against from a decree passed by the court with the consent of parties, it is apparent that the applicant has invoked the Civil Procedure Act filed an application for stay of execution of the impugned warrants and also an appeal for the appropriate remedy. Whether the appeal will succeed or not is not a question for this court to determine; for purposes of determination of the preliminary objection, it is sufficient that the applicant has embraced alternative means for the appropriate reliefs against the decision or the appurtenant execution processes that have impugned in these proceedings.
26. To sum up on this issue, I need not belabour the point that it is trite that the forms of relief available in a claim for judicial review are discretionary. The availability of the judicial review procedure is likewise discretionary. A court may refuse to grant leave to apply for judicial review or, like in this case where leave has been granted, refuse a remedy at the substantive hearing if a suitable alternative remedy exists, but the claimant has failed to use it. In this case, it has been demonstrated that an alternative remedy not only exists but also the applicant has adopted it and filed an application for stay and, subsequently, an appeal.
27. In these circumstances, it is an abuse of due process of this Honourable Court for the applicant to seek to institute judicial review reliefs against the same decree or processes that have been challenged elsewhere.
28. The other reason why the applicant’s application ought to fail in limine is that he suppressed these material facts from the court. When making the application for leave, the applicant did not disclose that the 4th respondent’s quest to execute the impugned judgment and decree have been challenged elsewhere by way of an application for stay or an appeal and that the appeal is awaiting determination. This information only came to light in the 4th respondent’s submissions.
29. It has been held that in an application for leave for judicial review, uberrimae fides is required and leave will not be granted, or may be later set aside, if there has been deliberate misrepresentation or concealment of material facts in the applicant’s affidavit or affidavits.
30. In R versus Kensington Income Tax Commissioner, ex parte Princess Edmond De Polignac (1917) 1KB 495, Viscount LJ addressed this point and stated as follows:
“Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion, a careful examination will be made of the facts as they are and as they have been stated in the applicant''s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”
31. Having chosen to suppress facts material to his application, the applicant ought not to have been granted leave in the first place. For reasons I have given, the applicant’s application is struck out with costs to the 4th respondents. It is so ordered.
'