Kamau v Ohayo-Mitoko & another (Miscellaneous Civil Application E174 of 2025) [2026] KEHC 8427 (KLR) (Civ) (11 June 2026) (Ruling)

Kamau v Ohayo-Mitoko & another (Miscellaneous Civil Application E174 of 2025) [2026] KEHC 8427 (KLR) (Civ) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8427 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E174 of 2025 WA Okwany, J June 11, 2026 Between Angela Njeri Kamau Applicant and Grace Jane Ohayo-Mitoko 1st Respondent Micah Haydn Mitoko 2nd Respondent Ruling Background 1.The Applicant herein was the claimant before the Small Claims Court in a suit that arose from a tenancy relationship between herself and the Respondents concerning residential premises known as Horizon Flats Apartment A-3, Kilimani. 2.The Applicant sought refund of tenancy deposit, prorated rent, utility reimbursements and other sums allegedly due following termination of the tenancy. 3.When the matter came before the Small Claims Court, the Adjudicator declined to assume jurisdiction on the basis that the dispute arose from a landlord-tenant relationship and therefore fell outside the jurisdiction of the Small Claims Court. 4.The Applicant contended that the refusal amounted to an unlawful abdication of jurisdiction and a jurisdictional error amenable to judicial review. 5.The Respondents, on the other hand, maintained that the Applicant voluntarily withdrew her claim before any ruling or determination was rendered and that there exists no decision capable of being quashed by certiorari. 6.This ruling is therefore in respect to the application dated 11th August 2025 wherein the Applicant seeks, inter alia:a.An order of certiorari to quash the decision of the Adjudicator in Small Claims Court Case No. SCCCOMM/E87600/2025 declining jurisdiction over the Applicant's claim;b.A declaration that claims for refund of tenancy deposits and related reimbursements fall within the jurisdiction of the Small Claims Court under Section 12 of the Small Claims Court Act;c.An order of mandamus compelling the Small Claims Court to hear and determine the Applicant's claim on the merits before a different Adjudicator; andd.Costs of the application. 7.The Respondents opposed the application through a Replying Affidavit and a Notice of Preliminary Objection dated 8th October 2025. 8.The Court directed that both the substantive application and the Preliminary Objection be canvassed by way of written submissions. The Applicant's Submissions 9.The Applicant submitted that the dispute before the Small Claims Court concerned purely monetary claims arising after termination of the tenancy and therefore fell squarely within Section 12(1) of the Small Claims Court Act which grants jurisdiction over contractual claims involving money held and received. 10.The Applicant contended that claims relating to refund of tenancy deposits, overpaid rent, utility reimbursements and post-tenancy financial claims are are contractual claims for money paid and received. Reliance was placed on the decisions in Muhanda vs. V.P Holdings Ltd [2025] eKLR (Civil Appeal E256 of 2023); David Kimani Njoroge vs. Small Claims Court & Another [2023] eKLR and Linet Nyambura vs. Sandeep Singh & Another [2022] eKLR for the proposition that refund claims arising after termination of a tenancy fall within the jurisdiction of the Small Claims Court. 11.The Applicant submitted that the Adjudicator unlawfully declined to exercise jurisdiction vested by statute. Reliance was placed on Pastoli vs. Kabale District Local Government Council & Others [2008] 2 EA 300 where the court stated that judicial review lies where a public decision is tainted by illegality, irrationality or procedural impropriety. 12.The Applicant invoked Article 165(6) of the Constitution and submitted that supervisory jurisdiction enables the High Court to intervene whenever a subordinate court refuses to exercise jurisdiction lawfully conferred upon it. Reliance was placed on several cases including Republic vs. Karisa Chengo & 2 Others [2017] eKLR and Republic vs. Chief Magistrate's Court, Mombasa Ex Parte Ganijee & Another [2002] eKLR. 13.It was submitted that the application does not challenge the merits of a judicial determination but seeks correction of a jurisdictional failure. 14.The Applicant argued that the Preliminary Objection raises contested factual matters requiring examination of proceedings and evidence and therefore fails the test established in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 on what constitutes a preliminary objection. The Respondents' Submissions 15.The Respondents, on the other hand, opposed the application and supported the Preliminary Objection. They maintained that the record shows that the Applicant voluntarily withdrew her entire claim before the Small Claims Court on 4th July 2025 thereby terminating the proceedings and rendering the said court functus officio. According to the Respondents, no ruling or decision was rendered by the Small Claims Court and therefore no order capable of appeal, review or quashing exists. 16.The Respondents relied on the decision in Bawan Limited v County Council of Kwale & Another [2024] KEELC 13488 (KLR) where the Court held that once a suit is withdrawn it ceases to exist and cannot be revived. 17.It was submitted that the Application does not comply with the procedure prescribed for judicial review proceedings which are governed by Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules that require an Applicant to seek leave, file a Statement of Facts and file a Verifying Affidavit. 18.It was the Respondents’ case that a miscellaneous application cannot substitute the procedure established under law. 19.The Respondents relied on Section 38 of the Small Claims Court Act which provides for a right of appeal to the High Court on matters of law. Reliance was placed on Speaker of the National Assembly vs. Karume [1992] KLR 21 for the proposition that where a statute provides a procedure for redress, that procedure must be strictly followed. 20.The Respondents contended that the preliminary objection concerns jurisdiction and competence of the proceedings. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 and Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] KLR 1. Issues for Determination 21.Having considered the pleadings, affidavits, submissions and authorities cited, I find that the following issues arise for my determination: -a.Whether the Preliminary Objection raises a proper point of law.b.Whether the Applicant's Motion is competently before the Court.c.Whether there exists a decision capable of being quashed by certiorari.d.Whether the Court should grant the judicial review remedies sought. Analysis and Determination 22.The principles governing preliminary objections are settled. In Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (supra) Law JA stated that a preliminary objection consists of a pure point of law which, if argued successfully, may dispose of the entire suit. 23.In the instant case, I note that the Respondents' objection challenges the competence of the proceedings, the jurisdiction of the Court, the availability of judicial review remedies and the existence of a decision capable of review. 24.I find that these questions are legal in nature and go to the root of the Court's authority. I am therefore satisfied that the Preliminary Objection raises proper points of law. 25.Turning to the competence of the motion, I have carefully considered the record and the parties' submissions and I note that the Applicant invoked the Court's supervisory jurisdiction under Article 165(6) of the Constitution. 26.It is not disputed that the High Court possesses supervisory jurisdiction over subordinate courts. It is however trite that supervisory jurisdiction is not exercised in a vacuum and that judicial review proceedings remain subject to the procedural framework established under Articles 22, 23 and 165 of the Constitution, Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules and The Fair Administrative Action Act where applicable. 27.The Respondents argued that the Applicant neither sought leave nor commenced proceedings in the manner contemplated by law. The most fundamental issue however, is whether there exists a decision capable of being reviewed in light of the Respondents’ contention that the Applicant voluntarily withdrew her claim before the Small Claims Court on 4th July 2025. 28.Judicial review remedies of certiorari and mandamus presuppose the existence of an identifiable act, omission, determination or decision. Certiorari lies to quash an existing decision while mandamus compels performance of a public duty where there has been a refusal to perform. 29.In the present case, the Applicant has not satisfactorily demonstrated that the Adjudicator rendered any formal ruling, determination, order or judgment after the withdrawal of the claim. A perusal of the trial court’s ruling of 4th July 2025 reveals that the said court rendered itself as follows:“Claim is withdrawn with no orders as to costs and the file is marked as closed.” 30.My take is that if indeed the claim was voluntarily withdrawn before any ruling was rendered, there would be no decision capable of being quashed. I am guided by the reasoning in Bawan Limited vs. County Council of Kwale & Another [2024] KEELC 13488 (KLR) where it was held that once a suit is withdrawn it ceases to exist. 31.My finding is that the withdrawal extinguished the proceedings thus leaving no substantive decision for appellate or supervisory intervention. Accordingly, I find that no decision capable of being quashed by certiorari has been demonstrated. 32.My above finding on the viability of orders of judicial review also settles the issue of whether this court should exercise supervisory jurisdiction in this matter. My view is that the Applicant correctly submitted that supervisory jurisdiction enables the High Court to intervene where a subordinate court refuses to exercise jurisdiction. However, supervisory jurisdiction is intended to correct existing jurisdictional errors which means that the court must first identify an act, decision or omission capable of correction. 33.In the present case, the Applicant seeks to challenge what is described as a refusal to assume jurisdiction yet the evidence before this Court demonstrates that the claim was withdrawn before any adjudicative determination was made. I find that there is no jurisdictional decision presently available for supervisory correction. As stated in Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd [1989] KLR 1: "Jurisdiction is everything. Without it, a court has no power to make one more step." 34.Having found that there is no decision capable of being quashed as the claim before the Small Claims Court was withdrawn and no ruling or determination exists, I find that the instant proceedings are incompetent and that the Preliminary Objection is merited. 35.I hasten to add that had the Court reached the merits, it would have found considerable force in the Applicant's argument that post-tenancy claims for refund of tenancy deposits and related reimbursements constitute contractual claims for money had and received and may, depending on the circumstances of each case, fall within Section 12 of the Small Claims Court Act as recognized in Muhanda vs. V.P Holdings Ltd [2025] eKLR, David Kimani Njoroge vs. Small Claims Court & Another [2023] eKLR, and Linet Nyambura vs. Sandeep Singh & Another [2022] eKLR. However, given the finding that there is no extant decision amenable to judicial review, the Court refrains from making a definitive pronouncement on that issue. 36.In the end, I make the following final orders: -a.The Respondents' Preliminary Objection dated 8th October 2025 is hereby upheld.b.The Applicant's Notice of Motion dated 11th August 2025 is incompetent and is hereby struck out.c.The prayers for certiorari, mandamus and declaratory relief are declined.d.For avoidance of doubt, this Court makes no determination on the substantive question whether claims for refund of tenancy deposits generally fall within the jurisdiction of the Small Claims Court, that issue not being properly before the Court in the circumstances of this case.e.The Applicant shall bear the costs of both the Preliminary Objection and the Motion.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026.W. A. OKWANYJUDGEIn the presence of:No appearance for ApplicantKairu for Waithaka for RespondentAbdirizak – Court Assistant