https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7596

Matu (Suing as guardian ad litem James Gichane Mbuthia) v Registrar of Companies & another (Judicial Review E049 of 2026) [2026] KEHC 7596 (KLR) (Judicial Review) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7596 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E049 of 2026 WM Musyoka, J June 2, 2026 Between Agnes Muthoni Matu (Suing as guardian ad litem James Gichane Mbuthia) Applicant and Registrar Of Companies 1st Respondent Ruth Kithei David 2nd Respondent Ruling 1.This matter was initially filed at the Commercial Division of the High Court at Milimani Law Courts, Nairobi. It was placed before Njoki Mwangi J, on 21st March 2026, and it was, suo motu, ordered that the same be transferred to the Judicial Review Division. That is how it has found its way before me. 2.After the transfer, it was initially placed before Aburili J, on 27th March 2026, directions were given, relating to service, and it was fixed for oral hearing on 22nd April 2026. When the same came up, on 22nd April 2026, it was placed before me. I was informed that the applicant wished to have the matter transferred back to the Commercial Division. I directed that a formal application be filed. Such an application was filed, and on 5th May 2026 I was informed that it had not been served yet. 3.A notice of withdrawal of the said application of 5th May 2026 was filed, dated 8th May 2026. When the matter came up again, on 12th May 2026, Mr. Michuki, Advocate, who appeared for the applicant, orally withdrew the notice of withdrawal of the application, dated 8th May 2026, and opted to argue the application. 4.Mr. Michuki argued that jurisdiction over disputes on companies in Kenya lies with the Commercial Division of the High Court. He urged that the Judicial Review Division would have no jurisdiction over the matter, and that the matter herein ought to be transferred back to the Commercial Division. 2 decisions were cited, being R. vs. Registrar of Companies & 2 others Ex parte RNR Developers Limited [2023] KEHC 19417 (KLR) and R. Registrar of Companies & another ex parte Music Copyright Society of Kenya [2024] KEHC 14418 (KLR). 5.Contests of this nature have become fairly common these days. They underline the overlap between the administrative jurisdiction of the Commercial and the Judicial Review Divisions of the High Court, where such divisions exist, typically in the larger stations. 6.The High Court is established under Article 165 of the Constitution. Article 165(3)(6) confers a wide jurisdiction, on the High Court, over any person body or authority exercising a judicial or quasi-judicial authority or function. Such would include the regular court, tribunals and administrative entities. The Registrar of Companies is a public office, established under the Companies Act, Cap. 486, Laws of Kenya, and the occupant of that office exercises a quasi-judicial function, with respect to matters around registration of companies, which brings that office under the supervisory authority of the High Court. 7.For the bigger High Court stations, the business of the High Court is organised around Divisions, for ease of administration. The Chief Justice created specialised divisions of the High Court, in 1997, for efficient case management. These divisions, taking the form of practice directions, were concretised in the High Court (Organization and Administration) Act, Cap 8C, Laws of Kenya. 8.Section 11 of the High Court (Organization and Administration) Act establishes Divisions in the following terms:“11.Establishment of Divisions(1)For purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance, the Chief Justice may, where the workload and the number of judges in a station permit, establish any of the following divisions—(a)the Family and Children Division;(b)the Commercial Division;(c)the Admiralty Division;(d)the Civil Division;(e)the Criminal Division;(f)the Constitutional and Human Rights Division;(g)the Judicial Review Division; and(h)any other division as the Chief Justice may, on the advice of the Principal Judge determine.” 9.The High Court (Organization and Administration) Act does not define the business of each of the Divisions. However, the 1997 Practice Directions defined commercial matters as including all company matters and applications. An overlap arises where the dispute relates to a company matter challenging the decision of the Registrar of Companies. Where such an overlap emerges, and jurisdictional questions are raised, the court would have to examine the true nature of the dispute. 10.Where the dispute is around company matters, on such issues as winding-up, disputes among shareholders and directors, and interpretation of the provisions of the Companies Act, then the appropriate forum would be the Commercial Division. Why? Because those would be disputes on substance, over matters around ownership of shares, validity of director appointments, or internal governance of a company, which would require adducing of evidence by the parties, for evaluation by the court. 11.Where the dispute concerns supervision of a public body or entity, with respect to a process that it has undertaken, to arrive at an impugned decision, and the evaluation calls for considering the legality, rationality and fairness of that decision, then the appropriate forum ought to be the Judicial Review Division. Why? Because the challenge would be on the process rather than substance of the decision, which can be evaluated based on documentary material, without having to conduct a full-blown trial, where witnesses would be presented. It would, essentially, be a public law challenge regarding the procedure of a decision of a public body, rather than the merits of the decision. 12.The Judicial Review Division is the primary court, with original jurisdiction to hear and determine challenges against the 1st respondent. The 1st respondent is a public office, whose decisions are bound by public law principles. Any administrative challenges, relating to its decisions, must be brought to the High Court. If they are premised on the fair Administrative Action Act, Cap 7L, Laws of Kenya, they would seek judicial review remedies on grounds of illegality, irrationality and procedural impropriety. If premised under Order 53 of the Civil Procedure Rules, they would target the traditional judicial review orders of certiorari, mandamus and prohibition. 13.However, judicial review proceedings lie against the 1st respondent only where an impugned decision is being challenged on the premises of public law. Nothing prevents the filing of an ordinary suit against the 1st respondent, where public law issues do not arise, from the actions of the 1st respondent, with respect to registration processes at the Companies Registry, which strike at the core of a shareholding or directorship, which would be purely company law issues, for resolution as a commercial or company law dispute, before the Commercial Division of the High Court. 14.A distinction ought to be made between administrative actions and substantive company law disputes. Where the disputes involve internal corporate governance, shareholder conflicts and compliances under the Companies Act, and disputes concerning substantive company law, around such matters as rectification of the register or resolution of ownership, the appropriate forum would be the Commercial Division. See Republic vs. Registrar of Companies & 5 others Ex parte Midlands Company Limited [2019] eKLR. Where the matter turns on public law, around procedures adopted or followed to arrive at a decision, the appropriate forum would be the Judicial Review Division. 15.I reiterate that, the office of the Registrar of Companies being a public office, any challenge to the decisions emanating from that office, revolving around the procedure of arriving at them, would be amenable to judicial review, at the Judicial Review Division. However, where the matter is about the actions of the Registrar being at the centre of determining private commercial rights, then the appropriate forum ought to be the Commercial Division. See Republic vs. Registrar of Companies Ex parte Shopping Guide Limited [2012] eKLR. 16.So, what was the issue here? The judicial review order sought is for rectification of a register of a company, to restore the name of a director and shareholder, one James Gichane Mbuthia, hereafter Mr. Mbuthia, who had ostensibly been removed from that register. There are allegations of fraud in causing transfer of shares belonging to the said Mr. Mbuthia, at an alleged consideration, which was never paid. There are equally allegations of fraudulent lodging of forms at the Companies Registry to effect changes of directorship, on a forged signature of Mr. Mbuthia. 17.It is asserted that there were demands, to the 1st respondent, requesting rectification of the register, to restore the name of Mr. Mbuthia, to no avail. The 2nd respondent is accused of attempting, in her purported capacity as a director of the ex parte applicant, to sell the stake of the ex parte applicant, in another company, and to have the dividends paid out to her. She is also accused of misrepresenting herself to various stakeholders as acting for both the ex parte applicant and the other company. She is also accused of having had initiated a civil suit, in her purported capacity as director of the ex parte applicant, which was dismissed. 18.The dispute herein is largely on shareholding and directorship, where it is alleged that a fraudster has forged documents and used them at the Companies Registry to cause change of ownership and directorship of the ex parte applicant. The principal target of the allegations of wrong doing is not the Registrar/1st respondent, but the alleged fraudster/2nd respondent. The dispute is a largely commercial/company law dispute, which has nothing to do with any action or inaction by the 1st respondent. 19.The ideal thing would have been to initiate a proper suit against the 2nd respondent, by way of plaint, naming the 2nd respondent as the principal party, with the 1st respondent as a secondary party, to provide evidence of the registration done at the behest of the 2nd respondent. Much of what is alleged here would then be for proof, viva voce, in the civil suit. Mandamus could only logically be sought after a civil court has ruled that the said registration was fraudulent, and an order made for restoration of Mr. Mbuthia to the register. This case is not ripe for judicial review, in the circumstances. 20.The framing of the cause as a judicial review matter is unfortunate. See Republic vs. Registrar of Companies & another; Lubeto & 9 others (Interested Parties); Music Copyright Society of Kenya (Ex parte) [2024] KEHC 14418 (KLR). Certainly, a Judge, sitting at the Commercial Division of the High Court, would decline to handle any matter that is placed before them framed as such, when there is a full-fledged Division of the court dedicated to Judicial Review causes. I would, as I hereby, decline to grant the transfer order sought. 21.The matter is at the very initial stage of leave; hence it is ex parte. As I have ruled above, that the same is in the nature of a pure commercial/company law dispute, where the 1st respondent would only be required in court to help determine private commercial rights, and noting that viva voce evidence may be required to establish the alleged fraudulent activity, in ordinary civil proceedings, I hereby decline to grant the leave sought, in the ex parte chamber summons, dated 16th March 2026. The said application is accordingly dismissed. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 2ND DAY OF JUNE 2026.W MUSYOKAJUDGEMr. Brian, Court Assistant.AdvocatesMr. Michuki, instructed by K. Michuki Law Advocates, Advocates for the ex parte applicant.