'1. Through the application dated 15.8.2025 the Applicant seeks the following order:
1) Spent.
2) That leave be granted to the Respondent/Applicant to have its application dated 11th August 2025 for a stay of execution and proceedings pending appeal heard during the court vacation period.
3) That this Honourable Court be pleased to issue any further or other orders to facilitate the hearing of the application dated 11th August 2025.
4) That the costs of this application be provided for.
The Applicant''s Case:
2. It is its case that on 11th July 2025, this Court delivered a ruling that dismissed the Respondent/Applicant''s Preliminary Objection dated 13th June 20251 which challenged the Court''s jurisdiction under Section 9(2) of the Fair Administrative Action Act and Section 35A of the Capital Markets Act for want of exhaustion of statutory dispute resolution mechanisms.
3. The Respondent/Applicant filed an application dated 11th August 2025 under a certificate of urgency seeking a stay of execution and proceedings pending appeal of the Ruling of this Court dated 11th July 2025.
4. On 13th August 2025 this Court issued directions that the said Respondent/Applicant’s application did not comply with the High court Vacation Rules, and thus, the court lacked capacity to attend to it during the recess.
5. The Respondent/Applicant has filed this Application to rectify this procedural deficiency.
6. Unless a stay of execution and stay of further proceedings is urgently granted, the Respondent/Applicant stands exposed to imminent contempt proceedings scheduled for 29th October 20251 arising from orders whose legal foundation is under serious challenge, and which compel action beyond the Respondent/Applicant''s statutory remit.
7. The impugned orders not only undermine the lawful exercise of the Respondent/Applicant''s regulatory and enforcement mandate under the Capital Markets Act but also interfere with an ongoing criminal prosecution instituted by the Director of Public Prosecutions pursuant to Article 157 of the Constitution
8. The continued subsistence of these orders gravely prejudices the investing public, distorts market integrity, and risks establishing a precedent where regulated entities evade statutory processes by prematurely resorting to judicial review, contrary to binding authority and the doctrine of exhaustion as affirmed in, inter alia, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR.
9. The Respondent/Applicant has lodged a Notice of Appeal against the said ruling, the intended appeal raising questions of law going to the root of jurisdiction, which, if successful will render the impugned orders incompetent ab initio.
10. The Applicant argues that prejudice to the Respondent/Applicant and the public interest is immediate, substantial, and irreparable, whereas the Exparte Applicants/Respondents have not demonstrated any exceptional urgency or prejudice to justify the continuation of Exparte relief in the face of an arguable appeal.
11. It argues that this matter raises weighty constitutional and statutory questions on jurisdiction, mootness, and the integrity of the judicial review process, warranting priority hearing during the High Court Vacation.
The Respondent''s Case:
12. In opposing the application, it raises the following grounds:
1) That the Application is misnomer, bad in law in situ, as the Applicant is seeking to challenge the Orders of the Honourable Court which Orders the Applicant has rejected to obey, and as such, it amounts to furtherance of the Applicants disdain disobedience of valid court orders.
2) That the Applicant has refused and continues in the said brazen refusal to purge the contempt of court as ordered by the Honorable Court vide the Ruling and Orders of the Honourable Court of 11th July 2025which Ruling found the Applicant in contempt of the Court Orders which the Applicant seeks to have them stayed and/or set aside, and as such, the Honourable Court ordered the Applicant to appear before it on 29th October 2025 for purposes of showing cause why the Applicant’s directors and/or officer(s) cannot be punished.
3) That instead of complying with the Court Orders aforesaid, the Applicant has preferred to bring the instant application seeking to challenge this Honourable Court’s subsisting valid Orders and as such, the Application is a guise meant to circumvent valid Court orders in place and a wanton abuse of the Honourable Court’s judicial process.
4) That the Application is otherwise frivolous, vexatious, and a fishing expedition, an attempt to arm twist the Honourable Court into exonerating the Applicants disobedience of the Court Orders, a waste of the Honourable Court’s time and as such, the same should be dismissed.
5) That the law mandates that those who come to Court must come with clean hands, the Applicant cannot now be seen to seek equitable reliefs with undue disregard to the Honourable Courts subsisting Orders.
6) That the Orders sought to be stayed by the Applicant cannot be stayed unless the Applicant demonstrates first which prejudice will be visited upon them if stay is not granted.
7) That unless the Applicant purges the contempt of court, this Honourable Court should not grant them any audience as doing so will amount to further undermining the legitimate powers of this Honourable Court as well as the entire judicial system.
8) That the Applicant has not met the threshold for a grant of the orders sought and as such, the Applicant’s Application is unmerited and ought to be dismissed with costs.
Analysis and Determination:
The issue for determination is whether the application has merit.
13. In determining the application, the court is guided by the locus classicus case of Hadkinson –V- Hadkinson 91952) 2 All E.R.567, At Page 575 Lord Denning made the following observation:
“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck –vs- Cremer (1) (1 Coop. temp.Cott 342):
“A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.
14. In the present case, there is evidence to show that the Respondents did not only participate in the proceedings that gave rise to the orders in question but has also been reminded including in the present proceedings to purge the contempt.
15. The terms of the order were clear. The Respondents’ decision to ignore compliance with the order was therefore willful having been notified of the terms of the order.
16. In the case of Econet Wireless Kenya Limited vs Minister for Information & Communication of Kenya & Another (2005) eKLR as follows: -
“It is my view that due to the gravity with which the law and the court is deem any contempt of court or allegations thereof, the court usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. This is in particular where the alleged contemnor is a party in proceedings and is affected by the orders granted by the court. Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.” (emphasis mine)
17. The law is clear, that the orders of the court must be obeyed and a party seeking audience of the court must purge that contempt before being heard.
18. Through its Ruling and Orders of the Honourable Court of 11th July 2025 this court found the Applicant in contempt of the Court Orders.
19. In the application dated 11th August 2025 the Applicant is seeking for an order of stay of execution and proceedings pending appeal.
20. The Court ordered the Applicant to appear before it on 29th October 2025 for purposes of showing cause why the Applicant’s directors and/or officer(s) cannot be punished.
21. The Applicant boldly advances the argument that unless a stay of execution and stay of further proceedings is urgently granted, the Respondent/Applicant stands exposed to imminent contempt proceedings scheduled for 29th October 2025 arising from orders whose legal foundation is under serious challenge.
22. According to the Applicant, the impugned orders not only undermine the lawful exercise of the Respondent/Applicant''s regulatory and enforcement mandate under the Capital Markets Act but also interfere with an ongoing criminal prosecution instituted by the Director of Public Prosecutions pursuant to Article 157 of the Constitution.
23. It argues that the continued subsistence of these orders gravely prejudices the investing public, distorts market integrity, and risks establishing a precedent where regulated entities evade statutory processes by prematurely resorting to judicial review, contrary to binding authority and the doctrine of exhaustion as affirmed in, inter alia, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR.
24. The Respondent/Applicant has lodged a Notice of Appeal against the said ruling, the intended appeal raising questions of law going to the root of jurisdiction, which, if successful will render the impugned orders incompetent ab initio.
25. It is clear that the Applicant is dissatisfied with the said order given that it opted to lodged an appeal to challenge the said order.
26. Though the application dated 11th August 2025 for a stay of execution and proceedings pending appeal is not what is before this court for determination. In order to arrest further attack on its dignity, The court finds it imperative to deny the Applicant audience this early.
27. This court’s finding that even if a party believes that the court’s order is irregular or void, the party must first of all comply before seeking the intervention of the court.
28. The order of this court remains uncomplied with. It is very unfortunate not withstanding full knowledge of the court order The Applicant intentionally elected to disregard the order and at the same time decided not to make any effort to purge the contempt.
29. The court will not countenance its dignity being eroded through the impunity that is manifested by the Applicant. If the orders sought are granted, then the court will have lost its authority.
30. The Applicant has not explained to the satisfaction of the court why it is refusing to obey the court orders.
Determination:
31. The Applicant has not made out a case that would persuade this court to give it room to prosecute the application dated 11th August 2025.
32. The application is disallowed.
Order:
The application is dismissed with costs.
Dated, signed and delivered at Nairobi this 28th day of October, 2025.
'
1) Spent.
2) That leave be granted to the Respondent/Applicant to have its application dated 11th August 2025 for a stay of execution and proceedings pending appeal heard during the court vacation period.
3) That this Honourable Court be pleased to issue any further or other orders to facilitate the hearing of the application dated 11th August 2025.
4) That the costs of this application be provided for.
The Applicant''s Case:
2. It is its case that on 11th July 2025, this Court delivered a ruling that dismissed the Respondent/Applicant''s Preliminary Objection dated 13th June 20251 which challenged the Court''s jurisdiction under Section 9(2) of the Fair Administrative Action Act and Section 35A of the Capital Markets Act for want of exhaustion of statutory dispute resolution mechanisms.
3. The Respondent/Applicant filed an application dated 11th August 2025 under a certificate of urgency seeking a stay of execution and proceedings pending appeal of the Ruling of this Court dated 11th July 2025.
4. On 13th August 2025 this Court issued directions that the said Respondent/Applicant’s application did not comply with the High court Vacation Rules, and thus, the court lacked capacity to attend to it during the recess.
5. The Respondent/Applicant has filed this Application to rectify this procedural deficiency.
6. Unless a stay of execution and stay of further proceedings is urgently granted, the Respondent/Applicant stands exposed to imminent contempt proceedings scheduled for 29th October 20251 arising from orders whose legal foundation is under serious challenge, and which compel action beyond the Respondent/Applicant''s statutory remit.
7. The impugned orders not only undermine the lawful exercise of the Respondent/Applicant''s regulatory and enforcement mandate under the Capital Markets Act but also interfere with an ongoing criminal prosecution instituted by the Director of Public Prosecutions pursuant to Article 157 of the Constitution
8. The continued subsistence of these orders gravely prejudices the investing public, distorts market integrity, and risks establishing a precedent where regulated entities evade statutory processes by prematurely resorting to judicial review, contrary to binding authority and the doctrine of exhaustion as affirmed in, inter alia, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR.
9. The Respondent/Applicant has lodged a Notice of Appeal against the said ruling, the intended appeal raising questions of law going to the root of jurisdiction, which, if successful will render the impugned orders incompetent ab initio.
10. The Applicant argues that prejudice to the Respondent/Applicant and the public interest is immediate, substantial, and irreparable, whereas the Exparte Applicants/Respondents have not demonstrated any exceptional urgency or prejudice to justify the continuation of Exparte relief in the face of an arguable appeal.
11. It argues that this matter raises weighty constitutional and statutory questions on jurisdiction, mootness, and the integrity of the judicial review process, warranting priority hearing during the High Court Vacation.
The Respondent''s Case:
12. In opposing the application, it raises the following grounds:
1) That the Application is misnomer, bad in law in situ, as the Applicant is seeking to challenge the Orders of the Honourable Court which Orders the Applicant has rejected to obey, and as such, it amounts to furtherance of the Applicants disdain disobedience of valid court orders.
2) That the Applicant has refused and continues in the said brazen refusal to purge the contempt of court as ordered by the Honorable Court vide the Ruling and Orders of the Honourable Court of 11th July 2025which Ruling found the Applicant in contempt of the Court Orders which the Applicant seeks to have them stayed and/or set aside, and as such, the Honourable Court ordered the Applicant to appear before it on 29th October 2025 for purposes of showing cause why the Applicant’s directors and/or officer(s) cannot be punished.
3) That instead of complying with the Court Orders aforesaid, the Applicant has preferred to bring the instant application seeking to challenge this Honourable Court’s subsisting valid Orders and as such, the Application is a guise meant to circumvent valid Court orders in place and a wanton abuse of the Honourable Court’s judicial process.
4) That the Application is otherwise frivolous, vexatious, and a fishing expedition, an attempt to arm twist the Honourable Court into exonerating the Applicants disobedience of the Court Orders, a waste of the Honourable Court’s time and as such, the same should be dismissed.
5) That the law mandates that those who come to Court must come with clean hands, the Applicant cannot now be seen to seek equitable reliefs with undue disregard to the Honourable Courts subsisting Orders.
6) That the Orders sought to be stayed by the Applicant cannot be stayed unless the Applicant demonstrates first which prejudice will be visited upon them if stay is not granted.
7) That unless the Applicant purges the contempt of court, this Honourable Court should not grant them any audience as doing so will amount to further undermining the legitimate powers of this Honourable Court as well as the entire judicial system.
8) That the Applicant has not met the threshold for a grant of the orders sought and as such, the Applicant’s Application is unmerited and ought to be dismissed with costs.
Analysis and Determination:
The issue for determination is whether the application has merit.
13. In determining the application, the court is guided by the locus classicus case of Hadkinson –V- Hadkinson 91952) 2 All E.R.567, At Page 575 Lord Denning made the following observation:
“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, L.C., said in Chuck –vs- Cremer (1) (1 Coop. temp.Cott 342):
“A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it exists it must not be disobeyed.
14. In the present case, there is evidence to show that the Respondents did not only participate in the proceedings that gave rise to the orders in question but has also been reminded including in the present proceedings to purge the contempt.
15. The terms of the order were clear. The Respondents’ decision to ignore compliance with the order was therefore willful having been notified of the terms of the order.
16. In the case of Econet Wireless Kenya Limited vs Minister for Information & Communication of Kenya & Another (2005) eKLR as follows: -
“It is my view that due to the gravity with which the law and the court is deem any contempt of court or allegations thereof, the court usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. This is in particular where the alleged contemnor is a party in proceedings and is affected by the orders granted by the court. Where an application for committal for contempt of court orders are made the court will treat the same with a lot of seriousness and urgency and more often will suspend any other proceedings until the matter is dealt with and if the contempt is proven to punish the contemnor or demand that it is purged or both. For instance, an alleged contemnor will not be allowed to prosecute any application to set aside orders or take any other step until the application for contempt is heard. The reasons for this approach are obvious – a contemnor would have no right of audience in any court of law unless he is punished or he purges the contempt. So, the court is obliged to hear the application for committal first before any other matter. This is a general rule which must be applied strictly.” (emphasis mine)
17. The law is clear, that the orders of the court must be obeyed and a party seeking audience of the court must purge that contempt before being heard.
18. Through its Ruling and Orders of the Honourable Court of 11th July 2025 this court found the Applicant in contempt of the Court Orders.
19. In the application dated 11th August 2025 the Applicant is seeking for an order of stay of execution and proceedings pending appeal.
20. The Court ordered the Applicant to appear before it on 29th October 2025 for purposes of showing cause why the Applicant’s directors and/or officer(s) cannot be punished.
21. The Applicant boldly advances the argument that unless a stay of execution and stay of further proceedings is urgently granted, the Respondent/Applicant stands exposed to imminent contempt proceedings scheduled for 29th October 2025 arising from orders whose legal foundation is under serious challenge.
22. According to the Applicant, the impugned orders not only undermine the lawful exercise of the Respondent/Applicant''s regulatory and enforcement mandate under the Capital Markets Act but also interfere with an ongoing criminal prosecution instituted by the Director of Public Prosecutions pursuant to Article 157 of the Constitution.
23. It argues that the continued subsistence of these orders gravely prejudices the investing public, distorts market integrity, and risks establishing a precedent where regulated entities evade statutory processes by prematurely resorting to judicial review, contrary to binding authority and the doctrine of exhaustion as affirmed in, inter alia, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR.
24. The Respondent/Applicant has lodged a Notice of Appeal against the said ruling, the intended appeal raising questions of law going to the root of jurisdiction, which, if successful will render the impugned orders incompetent ab initio.
25. It is clear that the Applicant is dissatisfied with the said order given that it opted to lodged an appeal to challenge the said order.
26. Though the application dated 11th August 2025 for a stay of execution and proceedings pending appeal is not what is before this court for determination. In order to arrest further attack on its dignity, The court finds it imperative to deny the Applicant audience this early.
27. This court’s finding that even if a party believes that the court’s order is irregular or void, the party must first of all comply before seeking the intervention of the court.
28. The order of this court remains uncomplied with. It is very unfortunate not withstanding full knowledge of the court order The Applicant intentionally elected to disregard the order and at the same time decided not to make any effort to purge the contempt.
29. The court will not countenance its dignity being eroded through the impunity that is manifested by the Applicant. If the orders sought are granted, then the court will have lost its authority.
30. The Applicant has not explained to the satisfaction of the court why it is refusing to obey the court orders.
Determination:
31. The Applicant has not made out a case that would persuade this court to give it room to prosecute the application dated 11th August 2025.
32. The application is disallowed.
Order:
The application is dismissed with costs.
Dated, signed and delivered at Nairobi this 28th day of October, 2025.
'