1. Through the Application dated 22nd May 2925, the Exparte Applicant sought several reliefs including;
a. ..Spent.
b. That, the Honourable court be pleased to grant the Applicants herein leave to apply for an order of judicial review in the nature of certiorari against the decision of the Respondent herein compelling the Respondent to remove into this Honourable Court for purposes of being quashed the decision of the Respondent contained in the Respondent's letter dated 28th February 2025, suspending the 1st Applicant's license to undertake Money Manager activities for a period of three months.
c. That, Leave be granted to the Applicants to apply for an order of certiorari to remove into this Honourable Court and quash the criminal proceedings instituted against the 2nd Exparte Applicant herein in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh); including the charge sheet dated 3rd February 2025, on grounds that the charges are premised on an unlawful administrative decision.
d. That, leave be granted to the Applicants to apply for an order of prohibition restraining the Respondent, its officers, agents, or any person acting under its instructions from further implementing, enforcing, or acting upon the decision dated 28th February 2025, or taking any further regulatory action against the 1st Applicant based on the same decision.
e. That leave be granted to the Applicants to apply for an order of mandamus compelling the Capital Markets Authority to reinstate the 1st Applicant's license to undertake Money Manager activities and to provide the Applicants with the full unredacted investigation report referenced in the Notice to Show Cause dated 23rd May 2024.
f. That a declaration does issue that the Respondent's decision dated 28th February 2025 and the criminal proceedings in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh) against the 2nd Applicant violate Articles, 35, 47 and 50 of the Constitution of Kenya, 2010, and Sections 4 and 7 of the Fair Administrative Action Act, 2015, and thus illegal, null and void.
g. THAT, leave so granted herein does operate as stay Orders restraining the Capital Markets Authority, the Director of Public Prosecutions, or any other authority from proceeding with the criminal prosecution of the 2nd Applicant in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh) and/or taking further actions founded upon the decision of the Respondent contained in the Respondent's letter dated 28th February 2025 pending the hearing and determination of the judicial review application.
h. ) THAT the grant of leave to operate as a stay of the Respondent's decision dated 28 February 2025 and the criminal proceedings in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh) pending the hearing and determination of the substantive judicial review application.
i. )THAT costs of this application be provided for.
2. Upon considering the application ,the court granted prayers B, C,D,E,G and H on 26.5.26.
3. During one of the mention sessions, The exparte Applicant raised an issue to the effect that the Respondent was in contempt of the said orders. In a gesture that was tailored towards demonstrating compliance with the said directions, Wyckliffe Shamiah swore an affidavit indicating that contrary to the applicants sentiments,the Respondent had complied with the court order through the affidavit of compliance dated 3rd November,2025.
4. Being dissatisfied with The said affidavit, the Exparte Applicant filed the Notice to Cross examine Wyckliffe Shamiah dated 17th of November 2025 on it’s contents. The issue for determination is whether or not Wyckliffe Shamiah should be cross examined.
5. Judicial Review proceedings are not prosecuted through viva voce evidence. However, in situations like the one before the court, where the court has issued a ruling or directions, which become the subject of contempt proceedings, the court can allow for the cross examination of witnesses limited to and for purposes of giving the person facing an allegation of contempt of court an opportunity of showing cause why they should not be committed to jail.
6. This court is of the view that the notice to cross examine witnesses accords with Article 50(2) of the Constitution of Kenya. The right to fair hearing, in situations where the court is conducting an inquiry as to whether or not a deponent of an affidavit is in contempt of court is very imperative.
7. Article 47 of the constitution indeed provides that no one should be condemned without given our subjected to the provisions that guide fair action process. There is a need to avail that to the parties herein.
8. The court has perused the affidavit of compliance and noted that the affidavit contains some content that does not belong to the question of compliance with the court order. It is introducing content that belongs elsewhere.
9. In the circumstances, the court does not find any harm in the allowing a limited cross examination of the deponent of the affidavit.
Order:
1) Wyckliffe Shamiah shall appear court at 11 AM on 20th February 2026 for purposes of being cross examined on the contents of the affidavit of compliance dated 3rd November, 2025.
2) The cross examination shall be limited to paragraphs 2a, 3a, c, d, e, 4, 5, 6, 7 and 8 of the Affidavit of Compliance of Wyckliffe Shamiah dated 3rd November, 2025.
Dated, signed and delivered at Nairobi this 16th day of February, 2026.
a. ..Spent.
b. That, the Honourable court be pleased to grant the Applicants herein leave to apply for an order of judicial review in the nature of certiorari against the decision of the Respondent herein compelling the Respondent to remove into this Honourable Court for purposes of being quashed the decision of the Respondent contained in the Respondent's letter dated 28th February 2025, suspending the 1st Applicant's license to undertake Money Manager activities for a period of three months.
c. That, Leave be granted to the Applicants to apply for an order of certiorari to remove into this Honourable Court and quash the criminal proceedings instituted against the 2nd Exparte Applicant herein in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh); including the charge sheet dated 3rd February 2025, on grounds that the charges are premised on an unlawful administrative decision.
d. That, leave be granted to the Applicants to apply for an order of prohibition restraining the Respondent, its officers, agents, or any person acting under its instructions from further implementing, enforcing, or acting upon the decision dated 28th February 2025, or taking any further regulatory action against the 1st Applicant based on the same decision.
e. That leave be granted to the Applicants to apply for an order of mandamus compelling the Capital Markets Authority to reinstate the 1st Applicant's license to undertake Money Manager activities and to provide the Applicants with the full unredacted investigation report referenced in the Notice to Show Cause dated 23rd May 2024.
f. That a declaration does issue that the Respondent's decision dated 28th February 2025 and the criminal proceedings in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh) against the 2nd Applicant violate Articles, 35, 47 and 50 of the Constitution of Kenya, 2010, and Sections 4 and 7 of the Fair Administrative Action Act, 2015, and thus illegal, null and void.
g. THAT, leave so granted herein does operate as stay Orders restraining the Capital Markets Authority, the Director of Public Prosecutions, or any other authority from proceeding with the criminal prosecution of the 2nd Applicant in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh) and/or taking further actions founded upon the decision of the Respondent contained in the Respondent's letter dated 28th February 2025 pending the hearing and determination of the judicial review application.
h. ) THAT the grant of leave to operate as a stay of the Respondent's decision dated 28 February 2025 and the criminal proceedings in Milimani Magistrate Court Criminal Case No. E058 of 2025 (Republic Versus Michael Gitonga alias Tosh) pending the hearing and determination of the substantive judicial review application.
i. )THAT costs of this application be provided for.
2. Upon considering the application ,the court granted prayers B, C,D,E,G and H on 26.5.26.
3. During one of the mention sessions, The exparte Applicant raised an issue to the effect that the Respondent was in contempt of the said orders. In a gesture that was tailored towards demonstrating compliance with the said directions, Wyckliffe Shamiah swore an affidavit indicating that contrary to the applicants sentiments,the Respondent had complied with the court order through the affidavit of compliance dated 3rd November,2025.
4. Being dissatisfied with The said affidavit, the Exparte Applicant filed the Notice to Cross examine Wyckliffe Shamiah dated 17th of November 2025 on it’s contents. The issue for determination is whether or not Wyckliffe Shamiah should be cross examined.
5. Judicial Review proceedings are not prosecuted through viva voce evidence. However, in situations like the one before the court, where the court has issued a ruling or directions, which become the subject of contempt proceedings, the court can allow for the cross examination of witnesses limited to and for purposes of giving the person facing an allegation of contempt of court an opportunity of showing cause why they should not be committed to jail.
6. This court is of the view that the notice to cross examine witnesses accords with Article 50(2) of the Constitution of Kenya. The right to fair hearing, in situations where the court is conducting an inquiry as to whether or not a deponent of an affidavit is in contempt of court is very imperative.
7. Article 47 of the constitution indeed provides that no one should be condemned without given our subjected to the provisions that guide fair action process. There is a need to avail that to the parties herein.
8. The court has perused the affidavit of compliance and noted that the affidavit contains some content that does not belong to the question of compliance with the court order. It is introducing content that belongs elsewhere.
9. In the circumstances, the court does not find any harm in the allowing a limited cross examination of the deponent of the affidavit.
Order:
1) Wyckliffe Shamiah shall appear court at 11 AM on 20th February 2026 for purposes of being cross examined on the contents of the affidavit of compliance dated 3rd November, 2025.
2) The cross examination shall be limited to paragraphs 2a, 3a, c, d, e, 4, 5, 6, 7 and 8 of the Affidavit of Compliance of Wyckliffe Shamiah dated 3rd November, 2025.
Dated, signed and delivered at Nairobi this 16th day of February, 2026.