1. The Exparte Applicants filed Judicial Review proceedings on 22nd May 2025 seeking leave and substantive reliefs against the Respondent’s decision suspending their trading license and instituting criminal charges against the 2nd Applicant (Michael Gitonga) in MCCC Criminal Case No. E058 of 2025.
2. On 26th May 2025, this Court granted leave and issued stay orders, including lifting the suspension and halting further proceedings against the Applicants pending determination of the judicial review.
3. Despite personal service of the said orders on 28th May 2025 and their publication in the Business Daily on 3rd June 2025, the Respondent allegedly continued to defy the Court’s orders.
4. This prompted the Applicants to file the contempt application dated 12th June 2025 which comes up for determination.
5. In response to the Application, the Respondent filed a Notice of Preliminary Objection dated 18th June 2025 challenging this Court’s jurisdiction on the following grounds:
1) That the Court lacks jurisdiction due to the Applicants' failure to exhaust statutory remedies available under the Capital Markets Act.
2) That the orders of 26th May 2025 are null and void ab initio.
3) That it is an abuse of court process to seek enforcement when jurisdictional objections regarding the orders remain unresolved.
6. The Applicants strongly oppose the PO, arguing;
1) That the High Court has jurisdiction under Articles 165(3)(b) and 165(6) of the Constitution, as well as the Law Reform Act and the Fair Administrative Action Act.
2) That the exhaustion doctrine does not apply where constitutional rights are under threat or where the alternative forum lacks jurisdiction over the specific reliefs sought (stay of criminal prosecution, constitutional review, etc.).
3) That the Respondent is estopped from challenging jurisdiction at this stage having submitted to the Court’s authority earlier and acknowledging receipt of the orders and;
4) That until the Court’s orders are set aside, they remain binding and must be obeyed.
Analysis and Determination:
Issues for determination;
1) Whether this Court has jurisdiction over the judicial review proceedings and the contempt application.
2) Whether the doctrine of exhaustion bars these proceedings.
3) Whether the orders of 26th May 2025 are null and void ab initio.
4) Whether the Preliminary Objection meets the legal threshold for a valid PO.
(1) Jurisdiction of the High Court:
7. Article 165(3)(b) and (6) of the Constitution gives this Court supervisory jurisdiction over subordinate courts, tribunals, and public bodies. Judicial review is a constitutionally recognized remedy to check administrative power.
8. The Applicants' grievances relate to the legality, procedural fairness, and constitutionality of administrative and criminal actions taken by the Respondent, matters that fall squarely within this Court’s jurisdiction and in Republic v. Kenya Revenue Authority, Exparte Yaya Towers Ltd [2008] eKLR, the Court affirmed that judicial review challenges the decision-making process, not the merits of the decision.
(2) Doctrine of Exhaustion:
9. The Respondent relies on Section 35A of the Capital Markets Act, which provides for appeals to the Capital Markets Tribunal. However, the Court takes judicial notice that the Tribunal's jurisdiction is limited to certain administrative decisions and does not extend to constitutional violations, judicial review remedies, or the power to stay criminal prosecutions.
10. In Republic v. Capital Markets Authority, Ex Parte Joseph Mbalu Mutava [2017] eKLR, the Court held that judicial review remains available where the statutory remedy is inadequate or inappropriate. Furthermore, the Applicants' complaints relate to both administrative sanctions and criminal proceedings an area the Tribunal cannot address. The doctrine of exhaustion, therefore, does not come out in this Court’s jurisdiction in this case.
11. A Preliminary Objection, as defined in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, must raise a pure point of law.
12. The Respondent’s PO raises jurisdictional points but also delves into factual issues requiring examination (e.g., whether the exhaustion doctrine applies in these particular facts, whether the orders were properly obtained, etc.)
13. The question of whether alternative remedies are adequate or effective often requires factual analysis and cannot always be determined through a bare P.O. Additionally, the P.O. improperly seeks to impeach substantive orders through a collateral process rather than through appeal or formal application to set aside.
Validity of the Orders of 26th May 2025:
14. The Respondent contends that the stay orders issued on 26th May 2025 are null and void ab initio. The law is clear that orders of a competent court remain valid and binding until set aside on appeal or review.
15. Court's orders remain binding. The Respondent's failure to comply while simultaneously challenging jurisdiction is legally untenable. As held in Rose Detho v. Ratilal Automobiles & Others [2007] eKLR, parties in contempt cannot seek audience until they purge their contempt.
Order:
1. The Notice of Preliminary Objection dated 18th June 2025 is dismissed.
2. The Order of 26th May2025 shall remain in force.
3. Prayer 5 and 6 are allowed.
4. The matter shall be mentioned for purposes of showing cause on 29.10.25.
5. The rest of the prayers shall abide the outcome of direction 4 above.
6. Costs in the cause.
2. On 26th May 2025, this Court granted leave and issued stay orders, including lifting the suspension and halting further proceedings against the Applicants pending determination of the judicial review.
3. Despite personal service of the said orders on 28th May 2025 and their publication in the Business Daily on 3rd June 2025, the Respondent allegedly continued to defy the Court’s orders.
4. This prompted the Applicants to file the contempt application dated 12th June 2025 which comes up for determination.
5. In response to the Application, the Respondent filed a Notice of Preliminary Objection dated 18th June 2025 challenging this Court’s jurisdiction on the following grounds:
1) That the Court lacks jurisdiction due to the Applicants' failure to exhaust statutory remedies available under the Capital Markets Act.
2) That the orders of 26th May 2025 are null and void ab initio.
3) That it is an abuse of court process to seek enforcement when jurisdictional objections regarding the orders remain unresolved.
6. The Applicants strongly oppose the PO, arguing;
1) That the High Court has jurisdiction under Articles 165(3)(b) and 165(6) of the Constitution, as well as the Law Reform Act and the Fair Administrative Action Act.
2) That the exhaustion doctrine does not apply where constitutional rights are under threat or where the alternative forum lacks jurisdiction over the specific reliefs sought (stay of criminal prosecution, constitutional review, etc.).
3) That the Respondent is estopped from challenging jurisdiction at this stage having submitted to the Court’s authority earlier and acknowledging receipt of the orders and;
4) That until the Court’s orders are set aside, they remain binding and must be obeyed.
Analysis and Determination:
Issues for determination;
1) Whether this Court has jurisdiction over the judicial review proceedings and the contempt application.
2) Whether the doctrine of exhaustion bars these proceedings.
3) Whether the orders of 26th May 2025 are null and void ab initio.
4) Whether the Preliminary Objection meets the legal threshold for a valid PO.
(1) Jurisdiction of the High Court:
7. Article 165(3)(b) and (6) of the Constitution gives this Court supervisory jurisdiction over subordinate courts, tribunals, and public bodies. Judicial review is a constitutionally recognized remedy to check administrative power.
8. The Applicants' grievances relate to the legality, procedural fairness, and constitutionality of administrative and criminal actions taken by the Respondent, matters that fall squarely within this Court’s jurisdiction and in Republic v. Kenya Revenue Authority, Exparte Yaya Towers Ltd [2008] eKLR, the Court affirmed that judicial review challenges the decision-making process, not the merits of the decision.
(2) Doctrine of Exhaustion:
9. The Respondent relies on Section 35A of the Capital Markets Act, which provides for appeals to the Capital Markets Tribunal. However, the Court takes judicial notice that the Tribunal's jurisdiction is limited to certain administrative decisions and does not extend to constitutional violations, judicial review remedies, or the power to stay criminal prosecutions.
10. In Republic v. Capital Markets Authority, Ex Parte Joseph Mbalu Mutava [2017] eKLR, the Court held that judicial review remains available where the statutory remedy is inadequate or inappropriate. Furthermore, the Applicants' complaints relate to both administrative sanctions and criminal proceedings an area the Tribunal cannot address. The doctrine of exhaustion, therefore, does not come out in this Court’s jurisdiction in this case.
11. A Preliminary Objection, as defined in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, must raise a pure point of law.
12. The Respondent’s PO raises jurisdictional points but also delves into factual issues requiring examination (e.g., whether the exhaustion doctrine applies in these particular facts, whether the orders were properly obtained, etc.)
13. The question of whether alternative remedies are adequate or effective often requires factual analysis and cannot always be determined through a bare P.O. Additionally, the P.O. improperly seeks to impeach substantive orders through a collateral process rather than through appeal or formal application to set aside.
Validity of the Orders of 26th May 2025:
14. The Respondent contends that the stay orders issued on 26th May 2025 are null and void ab initio. The law is clear that orders of a competent court remain valid and binding until set aside on appeal or review.
15. Court's orders remain binding. The Respondent's failure to comply while simultaneously challenging jurisdiction is legally untenable. As held in Rose Detho v. Ratilal Automobiles & Others [2007] eKLR, parties in contempt cannot seek audience until they purge their contempt.
Order:
1. The Notice of Preliminary Objection dated 18th June 2025 is dismissed.
2. The Order of 26th May2025 shall remain in force.
3. Prayer 5 and 6 are allowed.
4. The matter shall be mentioned for purposes of showing cause on 29.10.25.
5. The rest of the prayers shall abide the outcome of direction 4 above.
6. Costs in the cause.