Fortune Sacco Ltd v Principal Magisrate Court – Wang’uru & 2 others (Judicial Review E002 of 2025) [2026] KEHC 13194 (KLR) (31 August 2026) (Ruling)

Fortune Sacco Ltd v Principal Magisrate Court – Wang’uru & 2 others (Judicial Review E002 of 2025) [2026] KEHC 13194 (KLR) (31 August 2026) (Ruling) Neutral citation: [2026] KEHC 13194 (KLR) Republic of Kenya In the High Court at Kerugoya Judicial Review E002 of 2025 EM Muriithi, J August 31, 2026 Between Fortune Sacco Ltd Applicant and The Principal Magisrate Court – Wang’Uru 1st Respondent Agnes Waeni 2nd Respondent Philip Kamuya T/A Crater View Auctioneers 3rd Respondent Ruling 1.By a Notice of Motion dated 19/2/2026, under Article 159 (2) (d) of the Constitution, the Applicant seeks that: 1.Spent. 2.This Honourable Court be pleased to issue an injunction compelling the 2nd Respondent to unconditionally release the Applicant’s motor vehicle registration number KBX 093 B to the Applicant pending the hearing and determination of this substantive judicial review application. 3.Costs of this Application be borne by the Respondents. 2.The application is premised on the grounds on the face of it and the supporting affidavit of Amos Kimotho Njeru, the Chief Executive Officer of the Applicant, sworn on even date. On 21/9/2023, the 2nd Respondent filed Wang’uru CMCC No. E136/2023 wherein the Applicant was the Defendant. The Applicant raised a Preliminary Objection on the grounds that the court lacked jurisdiction to entertain that matter as the cause of action arose from a sacco-member relationship contrary to Section 76 of Cooperative Societies Act, which was dismissed on 27/2/2024. On 18/6/2024, an interlocutory judgment was entered against the Applicant, and on 21/8/2024 the Applicant sought the setting aside of the interlocutory judgment and an opportunity to file its defence. Upon the dismissal of the application for want of merit, the 3rd Respondent, acting on instructions from the 2nd Respondent, sent a proclamation notice to the Applicant listing the subject vehicle. On 24/4/2025, the Applicant subsequently obtained leave to commence judicial review proceedings for certiorari and prohibition, to quash the entire proceedings and judgment of Wang’uru Magistrate MCCC E136/2023, and stay. Unfortunately, the Applicant was unable to file a substantive motion by the end of the requisite 21 days, and the 3rd Respondent attached the subject motor vehicle, as the initial stay orders had lapsed. The Applicant successfully sought extension of time to file the motion, which was duly filed on 19/12/2025. It is in the interest of justice that this application be allowed as it is unjust that the 2nd and 3rd Respondents detain the subject vehicle in execution of a decree issued by a court without jurisdiction. 3.The Applicant swore a further affidavit on 2/4/2026 in support of the application. 4.The 2nd Respondent opposed the application by a replying affidavit sworn on 10/3/2026. She avers that the attachment of the Applicant’s vehicle was stayed by this court for only 14 days and the Applicant never sought for the extension of those orders. The orders issued by this court on 24/4/2025 lapsed and therefore, in the absence of any orders staying execution of the decree of the judgment of the lower court, her advocate instructed the 3rd Respondent to proceed and re-attach the Applicant’s movable properties. On 3/6/2025, the 3rd Respondent issued a notification of sale of the motor vehicle number KBZ 093 B Nissan Pickup which is being stored at an Auction Yard in Embu town. The Applicant has admitted that its vehicle was attached in a proper manner because the initial stay orders had lapsed and therefore the 3rd Respondent cannot be faulted for executing a lawful court order. She is amenable to the release of the vehicle to the Applicant upon payment of the Auctioneer’s charges amounting to Ksh.463,180. 5.The 3rd Respondent swore a replying affidavit on 7/4/2026 in opposition to the application. He avers that the Applicant is undeserving of the orders sought, because in the rulings of 24/4/2025 and 16/12/2025, the court did not declare the attachment and the re-attachment illegal or irregular. He executed a lawful decree of the court, and he therefore humbly requests the court to invoke Rule 7 of the Auctioneers (Practice) Rules to order the Applicant to pay him his charges totalling Ksh. 463,180. Since there was no order preventing him from executing the decree, he proceeded to re-attach the Applicant’s motor vehicle, number KBZ 093 B, Nissan Pickup, on 3/6/2025, after which he has been storing it at an auction yard in Embu town. Submissions 6.The Applicant urges that the grant of leave shows that it has established a prima facie case in line with Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) and Giella v Cassman Brown & Co. Ltd (1973) EA 358. It asserts that the balance of convenience lies on its side as the attachment of its vehicle was in execution of a decree emanating from a court without jurisdiction. It urges that its vehicle is at risk of being wasted and damaged while in the custody of the 3rd Respondent, which will occasion loss from non-usage and potential repair costs. It urges that the attachment was improper, as the warrants of attachment dated 19/2/2025 had expired on 19/5/2025 before the attachment took place on 3/6/2025. It urges that the Auctioneer’s charges of Ksh. 463,180 exceed the value of the motor vehicle, which is Ksh. 400,000, and the payment of these fees would render the current judicial review proceedings nugatory. It urges the court to grant the prayers sought and thereafter allow the 3rd Respondent to tax his bill, so that it can object to it. 7.The 2nd Respondent faults the Applicant for failing to present any evidence showing that the 3rd Respondent violated any of the Sections of the Auctioneers Act or the Rules thereunder. She urges that the attachment of the Applicant’s motor vehicle by the 3rd Respondent was proper and therefore legal. She urges the court to direct the Applicant to pay the 3rd Respondent the Auctioneer’s charges as per the invoice dated 10/3/2025 before releasing the motor vehicle to it. 8.The 3rd Respondent urges that the Applicant was advised to collect its vehicle 3 months ago upon payment of the Auctioneer’s fees, which it adamantly failed to, and cites Co-operative Bank of Kenya Ltd v Jeofrick N. Muinde t/a Kimu Auctioneers (2019) eKLR, Nashon Kerati Muriri v Chacha Mwita Muchuni (2014) eKLR and Oduor & 3 Others v Magistrates and Judges Vetting Board & Another (Civil Appeal 457, 458, 466 & 475 (Consolidated) of 2018) (2021) KECA 92 (KLR. He urges the court to direct the Applicant to collect its motor vehicle upon payment of the Auctioneer’s charges as contained in the invoice dated 10/3/2025. Analysis and Determination 9.The Respondents do not oppose the order for release of the motor vehicle and only seek payment of auctioneer’s charges before the release. 10.Although the issue was not taken up by the parties, the Court understands the prayer for an injunction in the Judicial Review proceedings as justified as a supplemental proceeding in terms of section 63 of the Civil Procedure Act, which provides that:“63.Supplemental proceedingsIn order to prevent the ends of justice from being defeated, the court may, if it is so prescribed—(a)issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to prison;(b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;(c)grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold;(d)appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;(e)make such other interlocutory orders as may appear to the court to be just and convenient.” 11.The application for injunctive relief in this case is a supplemental proceeding rather than a substantive relief in the judicial review proceedings, which may not be in the form of an injunction. See Cortec Mining Kenya Limited v Cabinet Secretary, Attorney General & 8 others [2015] KECA 138 (KLR) at paragraphs 33 & 34 that:“33.There is considerable merit in the argument that judicial review proceedings are sui generis; that they are not criminal or civil in nature, and that they are not intended to deal with private rights. The erstwhile distinction between judicial and administration acts in the realm of judicial review no longer holds true. In general, where a matter of public law as opposed to private law is directly involved, proceedings for orders of certiorari, mandamus, and prohibition may be resorted to. It is important to appreciate that these orders are public law remedies. They issue against public officers or public bodies performing public duties. Certiorari issues to quash decisions for errors of law in making such decisions or for failure to act fairly towards the person who may be adversely affected by such decision. Prohibition is directed to an inferior tribunal or body and forbids such tribunal or body from continuing proceedings in excess of its jurisdiction or in contravention of the laws of the land. It lies not only for lack of jurisdiction or excess of it, but also for departure from rules of natural justice. The order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same (see Kenya National Examination Council [C.A.266/1996]).34.Can this court grant an order of injunction in a judicial review matter such as this one? For starters, to grant an injunction would amount to giving a relief or remedy that was not even sought in the High Court in the first place.The High Court could only grant these three prerogative orders. It could not in the judicial review under Section 8 of the Law Reform Act grant an order of injunction such as is sought in the motion before us for the simple reason that injunction is not authorized by and falls outside the amplitude of the reliefs available under Section 8 of the Law Reform Act. An injunction is also not exclusively within the amplitude of public law remedies. But even more compelling is the fact that subsection (3) of Section 3 of the Appellate Jurisdiction Act requires this court –“in the hearing of an appeal in exercise of the jurisdiction conferred by the said Act to apply the law applicable to the case in the High Court.”It is plain to see that in judicial review, the Court is concerned with public law remedies. An injunction is a private law remedy, and it can also serve as a public law remedy. However, in the context of judicial review, it is not available either in the High Court or in this Court on appeal under the Law Reform Act.” 12.After considering the application, the replying affidavit and the submissions on record together with the authorities relied on, this court discerns the issue for determination to be whether the injunction sought should issue. 13.The conditions for grant of temporary injunction were set out in the locus classicus case of Giella v Cassman Brown [1973] EA 358 as follows: “An applicant must show a prima facie case with probability of success, an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, when the court is in doubt, it will decide the application on the balance of convenience.” 14.The Applicant contends that the attachment of its motor vehicle was unlawful on the ground that the 3rd Respondent failed to extend and/or renew the warrants of attachment issued on 19/2/2025, while the 2nd and 3rd Respondents maintain that the attachment was lawful, there having been no order of stay in force restraining the execution of the warrants. 15.Whether the attachment was lawful or otherwise, however, is a substantive question that can only be determined upon the full hearing and final determination of the judicial review application, and not at this interlocutory stage. 16.It was urged that the motor vehicle is stored at a yard in Embu, and the Applicant may secure its release upon payment of Auctioneer’s charges of Ksh.463,180, which far exceed the value of the vehicle stated to be Ksh.400,000. 17.This court considers that if the injunction is denied, the Applicant will be compelled to continue incurring Auctioneer’s charges which are said to have already surpassed the alleged value of the vehicle. That prejudice, in this court’s considered view, may be incapable of adequate recompense, particularly if it is ultimately established that the warrants had lapsed and/or had not been validly renewed or extended, or that the attachment was otherwise unlawful. 18.The Court further considers that the balance of convenience tilts in favour of granting the injunction sought, to meet the ends of justice. Besides, the 2nd and 3rd Respondents will not suffer any irreparable loss, as they can recover any charges found to have been lawfully incurred once the application is heard and determined. 19.The Court is satisfied that the Applicant has, on the test of Giella v Cassman Brown (1973) EA 358, established a prima facie case with probability of success and that damages would be inadequate compensation. 20.There is no prejudice on the Respondents as the question as to who bears the Auctioneer’s charges will be settled upon determination of the validity of the proceedings leading to the attachment. This must await the hearing of the substantive case. Consequently, it would be an injustice to condition the release of the vehicle to payment of auctioneer’s charges which are under challenge or to continue to hold the motor vehicle at the auctioneer’s yard where it may continue to suffer damage and incur storage charges such as to outstrip the value of the vehicle. The Court shall upon full hearing of the dispute direct by whom the auctioneer’s charges are to be paid. Orders 21.Accordingly, for the reasons set out above, the Court finds that the application dated 19/2/2026 is merited, and it is allowed in terms of prayer 2 thereof. 22.The costs of the application shall be in the cause. Order accordingly. DATED AND DELIVERED THIS 31ST DAY OF AUGUST 2026.EDWARD M. MURIITHIJUDGE