https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8176

Ochieng v Diamond Trust Bank Kenya Limited (Judicial Review E041 of 2026) [2026] KEHC 8176 (KLR) (Judicial Review) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8176 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E041 of 2026 WM Musyoka, J June 11, 2026 Between Judith Akoth Ochieng Applicant and Diamond Trust Bank Kenya Limited Respondent Ruling 1.Before me is a Motion, dated 23rd February 2026. It seeks leave to apply for the Judicial Review orders of mandamus, with respect to the respondent furnishing the applicant with written reasons for the refusal of her application for a loan, and to be supplied with a bundle of documents relating to that loan application. The ex parte applicant has also filed the statutory statement, an affidavit to verify it, a substantive motion and an affidavit supporting the motion, all of them, dated 23rd February 2026. 2.The background is set out in the grounds on the face of the motion application, as well as in the statutory statement and the affidavit. The ex parte applicant claims that she operated an account with the respondent, and, based on that account, she applied for a loan, which was declined. Her complaint is that no reasons were given to her, for the turning down of her application for a loan. She argues that the decision to decline to give her a loan constituted an administrative action, under Article 47 of the Constitution and section 2 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, as it adversely affected her legitimate expectation of fair consideration and access to financial services. 3.The ex parte applicant avers that after the rejection of her loan application, she made formal written requests, on 30th October 2025 and 11th November 2025, seeking to be furnished with written reasons for the rejection of the loan application, and to be furnished with certified copies of various documents, which included statements on her account with the respondent, the loan application records and all other documents relating to her account and the loan application. Those requests were not acceded to, nor responded to. She escalated the matter to the Central Bank of Kenya, vide a letter dated 26th November 2025, but no corrective action was forthcoming. 4.She asserts that the failure, by the respondent, to give reasons, violated Articles 35 and 47 of the Constitution and sections 4(2) and 6 of the Fair Administrative Action Act. She further asserts that there is clear public duty to act fairly reasonably lawfully and transparently, and to supply reasons and information upon request. It is further averred that the continued failure to act is arbitrary, unreasonable, procedurally unfair and unlawful, warranting intervention by the court. It is further argued that there is no alternative adequate or effective remedy, and the order of mandamus is the only relief capable of compelling the respondent to perform its statutory and constitutional duties. It is submitted that the judicial review application raises serious and arguable issues of law deserving interrogation by the court. 5.No documents are attached to the verifying affidavit, to support the averments made in the statutory statement. 6.The ex parte chamber summons was placed before the Judge, on 23rd February 2026, and it was directed that the same be served, for consideration inter partes, on 20th April 2026. It was directed that, upon service, the respondent do file and serve a response, within 10 days, and the hearing, slated for 20th April 2026, be by way of oral submissions. 7.Come 20th April 2026, the matter was placed before me, for my colleague Judge had by then been transferred to a different Division. The parties proposed to have the matter determined by way of written submissions. 8.Upon coming on record, by way of a notice of appointment of Advocates, dated 17th April 2026, the respondent filed grounds of opposition. The grounds are that the application is premature, for the ex parte applicant has neglected to utilise the statutory resolution mechanism provided under sections 14 and 22 of the Access to Information Act, Cap. 7M of the Laws of Kenya, as read with Regulations 25 and 26 of the Access to Information (General) Regulations, 2023; the decision to decline the loan application is a commercial and contractual determination, made within the ordinary course of banking business, and does not amount to administrative action within the meaning of Article 47 of the Constitution or the provisions of the Fair Administrative Action Act; the jurisdiction of the court has been improperly invoked to constitutionalise and elevate a purely commercial dispute into a judicial review matter; and an arguable case has not been disclosed to warrant grant of leave. 9.Both sides have filed written submissions. 10.Those by the ex parte applicant are dated 11th May 2026. She identifies 2 issues, around jurisdiction, under section 14 and 22 of the Access to Information Act; and whether leave ought to be granted. It is submitted that the provisions of the Access to Information Act do not oust the jurisdiction of the court, and the definition of administrative action, in the Fair Administrative Action Act, covered any act, omission or decision of any person, body or authority that affects legal rights or interests of any person to whom such action relates. That includes, according to her, decisions in the context of contractual arrangements. On the second issue, Order 53 rule 1 of the Civil Procedure Rules, Republic vs. County Council of Kwale & another ex parte Kondo & 17 others Mombasa MCA No. 384/1996, Galot & another vs. Commissioner of KRA & 4 others [2022] KEHC 12682 (KLR) and Patel Ravji Lalji & another vs. Attorney General [2021] eKLR are cited, for the submission that leave would be granted where the ex parte applicant has an arguable case, warranting grant of the relief sought, and there is such a case herein. 11.There are written submissions by the respondent, dated 11th May 2026, and 4 issues are identified for determination, turning around whether jurisdiction of the court has been constitutionalised in a purely private commercial dispute; whether the decision to decline the loan application was a purely commercial and contractual matter, which was not an administrative action, within the meaning of Article 47 of the Constitution and the Fair Administrative Action Act; whether the ex parte applicant should have sought to utilize the dispute resolution mechanism provided under sections 14 and 22 of the Access to Information Act, Regulations 25 and 26 of the Access to Information (General) Regulations), 2023, and section 9 of the Fair Administrative Action Act; and whether a negative decision, being the denial of a loan, can be stayed. 12.On the first issue, it is submitted that there is abuse of court, for the dispute at hand is purely a civil, commercial and contractual dispute, which should have been pursued as an ordinary civil or commercial case, on the basis of a banker-customer relationship. Ann Njoki Kinyanjui vs. Barclays Bank of Kenya Limited [2015] eKLR and David Kenyanya Magare & another vs. Luthafal Jiwa Ranjwani & 4 others; Diamond Trust Bank Limited (Interested Party) [2019] eKLR are cited. 13.On the second issue, it is submitted that an arguable case for leave has not been presented, for the dispute relates to a loan application matter that was purely for commercial and contractual determination, within the ordinary course of banking business, which could not be subjected to judicial review. It is submitted that, whereas Articles 35 and 47 of the Constitution are related, and reliefs arising relating to them are available to the ex parte applicant, there are certain limitations or conditions to be met, under Articles 24 and 31 of the Constitution, and section 6 of the Access to Information Act. Dande & 3 others vs. Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) is cited. 14.On the third issue, around exhaustion of internal resolution mechanisms, it is submitted that sections 14 and 22 of the Access to Information Act and Regulations 25 and 26 of the Access to Information (General) Regulations, 2023, provide for such mechanisms, which were not exhausted, yet section 9(2)(3) of the Fair Administrative Action Act envisions such exhaustion. Speaker of the National Assembly vs. Karume [1992] KECA 42 (KLR), Martin Kabubii Mwangi vs. County Government of Laikipia [2019] eKLR, Geoffrey Muthinja Kabiru & 2 others vs. Samuel Munga Henry & 1756 others [2015] eKLR, Commissioner for Human Rights & Justice (CHRJ) & another vs. Chief Officer, Medical Services County Government of Mombasa & 3 others [2022] KEHC 12994 (KLR) and Charles Apudo Obare & another vs. Clerk, County Assembly of Siaya & another [2020] eKLR are relied upon. 15.On the last issue, around stay of the decision to deny the loan, it is submitted that the same was incapable of being granted, as it was a negative decision, which did not require the respondent to do anything. It is also argued that the stay order is discretionary, and it is not to be granted as a matter of course. It is submitted that granting the order would amount to compelling the respondent to grant the loan, even before the instant application is heard on the merits. Mary Jane Kemunto vs. Director of Cid & another [2016] KEHC 939 (KLR) is cited in support. 16.I would start with stating that, traditionally, judicial review orders, inclusive of that for mandamus, are only available through judicial review proceedings, mounted on the basis of the English Common Law, the Judicature Act, Cap. 8, Laws of Kenya, sections 8 and 9 of the Law Reform Act, Cap 26, Laws of Kenya and Order 53 of the Civil Procedure Rules, and they are grantable against public entities. Judicial review, at Common Law, is seen as a remedy in public law, governing administrative action within the public governance space. 17.The reliefs of judicial review have since been expanded beyond public law, and the narrow confines of the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. This has been done through the Constitution of Kenya, 2010. Judicial review is now one of the constitutional remedies, available in proceedings predicated on the Constitution, with respect to violation of constitutional rights. The Constitution has also identified violations with respect to administrative action, and proposed remedies, for unfair administrative action, which fall short of the constitutional standards under the Bill of Rights. Judicial review has been identified as one of the reliefs available to address such violations. Under the Constitution, the remedy has been extended into the private space, and made available against actions or omissions of private entities and persons. 18.The enactment of the Constitution has come together with its own processes, through which disputes around constitutional and fair administrative action violations are to be litigated. There is the process under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, often referred to as the Mutunga Rules, for constitutional litigation on protection of fundamental rights and freedoms; and the process under the Fair Administrative Action Act, for fair administrative action violations. The 2 new processes are provided for, without replacing the process envisaged under the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, and, therefore, they are parallel to it. 19.What ought to be deduced from that is that the 3 processes are distinct. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules is dedicated to cases where the applicant alleges violation of the Constitution, and in particular the Bill of Rights, and the litigation is by way of constitutional petition. The Fair Administrative Action Act, and the Rules made under it, is dedicated to the violations identified in Article 47 of the Constitution, relating to fair administrative action, and it is initiated by way of an originating motion. The process, envisaged under the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, is dedicated to the traditional judicial review remedies, and it is commenced by way of a statutory statement, prosecuted with leave of court. The processes under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and the Fair Administrative Action Act are broader, while that under the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules is narrow, indeed, so narrow that only the traditional reliefs of certiorari, mandamus and prohibition are available. 20.Whereas all 3 processes avail the traditional judicial review reliefs, the same are grantable under different contexts. In short, the said reliefs are not obtainable under either of the 3 processes. Whether they would be available under either of the 3 processes would depend on the peculiar facts and circumstances of each case. The said remedies would not be available under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, unless the cause relates to violation of constitutional rights and freedoms; neither under the Fair Administrative Action Act, if the cause is not about fair administrative action; nor under the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, if the cause does not fall squarely within the narrow confines for those remedies under that process. There are reasons for the law providing for the 3 separate pathways. 21.What then that means is that a party, coming to court for redress, by way of judicial review, who chooses the wrong pathway, risks being turned away, for each case is to be considered within the parameters set out in the law governing it. Parties must, therefore, be very clear, in their minds, on the nature and circumstances of their case, for that would set them on the proper pathway, which would accommodate the peculiar nature and facts of their individual circumstances. That is so, as the failure to direct the cause to the right pathway, could get the party entangled in jurisdictional questions. That appears to be what has happened in this case. 22.The principal claim, by the ex parte applicant, is for access to information, held by the respondent. There are 2 issues. The first is about access to information. It is a right stated in the Constitution, at Article 35, and legislation has been passed to facilitate enjoyment of that right. That legislation, the Access to Information Act, does provide for how a person, seeking such information, should approach it, and the remedies or reliefs available, in the event there is recalcitrancy. The issue then would be whether the ex parte applicant herein has sought to comply with the Access to Information Act, and to fully exploit the remedies it provides, in the event she faces obstacles. If internal mechanisms are provided in that law, to resolve any bottlenecks in access to information, then those internal mechanisms must be explored and exhausted before court action is resorted to. The question would then be whether there has been exploration and exhaustion of those mechanisms, if they exist, before court action was resorted to. 23.The second is about the respondent. The question would be whether the ex parte applicant would be entitled to access the information in question from the respondent, under the relevant law, that is Article 35 and the Access to Information Act, and if she would be, what options would be open to her, by way of pathways to justice, to enforce that access, if the respondent has become recalcitrant. 24.Article 35(1) of the Constitution, provides for the right of access to information. The right of access to information is one of those falling under the Bill of Rights, in Chapter Four, of the Constitution of Kenya, listed under Part 2, on rights and fundamental freedoms. That provision states as follows:“ 35.Access to information (1)Every citizen has the right of access to—(a)information held by the State; and(b)information held by another person and required for the exercise or protection of any right or fundamental freedom.” 25.The right under Article 35 is to access information that is in the possession of the State and in private hands. The information held by the State should be accessible by a citizen, without any restrictions, for it is held in public trust, and should be made available to the citizen as a matter of right. See M&G Media Ltd and others vs. 2010 FIFA World Cup Organising Committee South Africa Ltd and another 2011 (5) SA 163 (GSJ). It is for this reason that the State is under an obligation, under Article 35(3), to “publish and publicise any important information affecting the nation.” The information held privately, by “another person,” is not so easily accessible, for it is subject to a limitation, that it is “required for the exercise or protection of any right or fundamental freedom.” The information, from a private person or entity, is available only where it is established or shown that it is required to exercise or protect a right or freedom. See M&G Media Ltd and others vs. 2010 FIFA World Cup Organising Committee South Africa Ltd and another 2011 (5) SA 163 (GSJ) and Dande & 3 others vs. Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR). 26.There are other limitations on the right of access to information, under Article 35(1), apart from that stated in Article 35(1)(b). It is subject to the general limitations, to constitutional rights and freedoms, set out in Article 24 of the Constitution, for its enjoyment is subject to being balanced against other protected rights, and it is not one of the rights, set out in Article 25, which cannot be derogated from. It is also subject to Article 31(c) of the Constitution, on “the right to privacy, which includes the right not to have … information relating to … family or private affairs unnecessarily required or revealed …” 27.The legislation that has been passed, to give effect to Article 35 of the Constitution, is the Access to Information Act. Section 4 of the Access to Information Act mirrors Article 35(1), in terms of the right of access to information being available against both the State and private entities, and the right of access to information from the private entity being limited to the purpose of it being required for exercise or protection of any right or fundamental freedom. 28.In its own words, section 4(1) of the Access to Information Act, says:“ 4.Right to Information1.Subject to this Act and any other written law, every citizen has the right of access to information held by –a.The State; andb.Another person where that information is required for the exercise or protection of any right or fundamental freedom.” 29.There is linkage, in the Access to Information Act, to Article 47 of the Constitution, vide section 4(3), with respect to fair administrative action, by stating that “access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.” 30.Section 4 also makes it clear that disclosure of the information sought would not necessarily be mandatory or as a matter of course, the provisions of the Access to Information Act is to “be interpreted and applied on the basis of a duty to disclose …” Non-disclosure is permitted under the Access to Information Act, and the parameters for that are set out in section 6. The limitations include, which could be relevant to the context herein, under section 6(1)(e), information that would “substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom the information was obtained.” 31.Sections 8 and 9 of the Access to Information Act carry elaborate provisions on the process of applying for information from both public and private entities or persons, and the processes through which these entities or persons are to handle the applications for information. Where the application or request for access to information is rejected or ignored, remedies are provided for, under sections 14 and 22 of the Access to Information Act. The applicant or person seeking the information could escalate the matter to the Commission on Administrative Justice, which is established under Chapter 15 of the Constitution and section 3 of the Commission on Administrative Justice Act, Cap 7J, Laws of Kenya. The detailed procedure, for the mechanisms under sections 14 and 22 of the Access to Information Act, is elaborated in Regulations 25 and 26 of the Access to Information (General) Regulations, 2023. 32.Clearly, therefore, the Access to Information Act, under sections 14 and 22, and Regulations 25 and 26 of the Access to Information (General) Regulations, 2023, provide for mechanisms for resolving disputes around failure or refusal by entities and persons to allow access to information, alternative to resort to court action. It is with respect to such alternative and often internal dispute resolution mechanisms that the courts have repeatedly held that there ought to be exhaustion, before resort to court, and the courts would be entitled to avoid assuming jurisdiction, particularly in constitutional matters, before the alternative mechanisms are exhausted. See Speaker of the National Assembly vs. Karume [1992] KLR 21 [1992] KECA 42 (KLR). 33.The doctrine of exhaustion has a statutory and constitutional imperative. It is grounded on Article 159(2)(c) of the Constitution, which promotes alternative dispute resolution. It is given legal force by section 9(2)(3) of the Fair Administrative Action Act, which provides that the court should not review administrative action unless internal remedies are exhausted first. The requirement is mandatory, and suits have been struck out for non-compliance. See Talanta Institute vs. Office of the Data Protection Commissioner; Muhuga (Interested Party) [2025] KEHC 8530 (KLR), Republic vs. Kenya Revenue Authority & another; Bonuke (Ex parte Applicant) [2025] KEHC 13867 (KLR) and Hassan vs. County Government of Wajir & another [2025] KEELRC 1120 (KLR). 34.For avoidance of doubt, section 9(2)(3) of the Fair Administrative Action Act provides:“ 9.Procedure for judicial review(1)…(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).” 35.The courts, however, have identified circumstances where a party may bypass the internal dispute resolution mechanism or process. In Republic vs. Independent Electoral and Boundaries Commission (IEBC); Al Ghurair Printing and Publishing LLC & 5 others (Interested Parties); The National Super Alliance (NASA) Kenya (Ex parte Applicant) [2017] eKLR [2017] KEHC 4663 (KLR), the High Court identifies 2 main exceptions to the exhaustion doctrine, being that where pursuing the internal remedy would not serve constitutional values or where an important constitutional value is at stake, and where the statutory forum lacks the capacity to grant a party adequate remedy. There is application of that exception principle in Kenya Ports Authority vs. Ramogi & 8 others [2019] eKLR [2019] KECA 305 (KLR), to effect that where a cause primarily seeks enforcement of fundamental rights, and the claimed rights are not mere bootstraps, the jurisdiction of the High Court, under Article 165(3) of the Constitution cannot be ousted, for it is automatic. 36.However, the exception principle, stated above, would appear to apply to constitutional petitions only, premised on the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. 37.There is some room for manoeuvre, under section 9(4) of the Fair Administrative Action Act, for proceedings anchored on that law, where the court may exempt a person from the obligation to exhaust other remedies or mechanisms before moving to court, in exceptional circumstances and in the interests of justice. That wriggle room is subject to a party applying for exemption, and demonstrating that their case falls within the exemption, by proving both the exceptional circumstances and that the exemption is in the interests of justice. See Hassan vs. County Government of Wajir & another [2025] KEELRC 1120 (KLR). 38.Section 9(4) of the Fair Administrative Action Act, for avoidance of any doubt, provides:“Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.” 39.The ex parte applicant has not established that she has taken advantage of the alternative dispute resolution mechanisms available under the Access to Information Act. She has also not sought to demonstrate that her case falls within the exceptions, for her case is not a constitutional petition, where a party may take advantage of Article 165(3) of the Constitution, to move the High Court directly. She has not sought to be exempted under section 9(4) of the Fair Administrative Action Act, from strict adherence to it, if she meant to anchor her case on the Fair Administrative Action Act. 40.So, it has been established that there is a constitutional and statutory right of access to information, whether held by the State or a private entity or person. It has also been established that judicial redress is available, and the pathways for seeking it have been identified. Access to justice is a constitutional right, under Article 35 of the Constitution, constitutional proceedings, by way of constitutional petition, would be available, to redress the same, through the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, initiable against both the State and private entities. Provision of access to information is also subject to Article 47 of the Constitution and section 4(3) of the Fair Administrative Action Act, with respect to how, those who have a duty to provide the access, are expected to handle the requests for it, and there is a process for redressing unfair administrative action, by way of originating motion, under the Fair Administrative Action Act and the Fair Administrative Action Rules, maintainable against both the State and private entities. The traditional approach to judicial review, under the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, is limited to public bodies, except for private clubs, and an action against a commercial entity would not lie. 41.In view of the above, an application, against a private commercial entity, such as the respondent, premised on the English Common Law, the Judicature Act, sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, would be misconceived, and leave would not be available for granting, to initiate judicial review proceedings for the order of mandamus, to compel such an entity to discharge some duty, which has accrued. A bank customer, aggrieved by the failure by a bank to allow access to information, is better of moving the court under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, or under the Fair Administrative Action Act and the Fair Administrative Action Rules, subject to exhaustion of the mechanisms under sections 14 and 22 of the Access to Information Act, as elaborated in Regulations 25 and 26 of the Access to Information (General) Regulations, 2023. 42.There is the second layer, in Article 35(1)(b) of the Constitution and section 4(1) of the Access to Information Act, where the information sought is held by a person, other than the State, then there is the condition about that information being required for the exercise or protection of any right or fundamental freedom. There is no indication, in this matter, as to why the ex parte applicant desires to access the information sought. There is no indication whether she requires it for exercise or protection of a right or fundamental freedom. It would appear such a disclosure would be what ought to trigger compliance, and upon which the duty to allow access would accrue. 43.There is the issue of stay, consequent upon grant of leave. I have already ruled that leave is not available, for the reasons advanced above, and, therefore, the issue of stay is now moot. However, since the parties have raised it, I shall have to deal with it. 44.If I were to grant leave in this case, which I will not, would I consider granting stay? 45.I believe I would start with what ought to be stayed, according to Order 53 of the Civil Procedure Rules. The court is being invited to stay the refusal to grant the loan, yet the mandamus sought is not about the refusal to accept the loan application, but about access to information. The stay, contemplated under Order 53 rule 1(4), is of the decision the subject of the judicial review application, and not any other. These proceedings relate to refusal to allow access to information. That refusal, by the respondent, to allow the ex parte applicant access information on the denial of a loan, is the decision that is the subject of these proceedings. It is what is being targeted in these proceedings. If any stay order is available, it can only be with respect to the refusal to allow access to information, rather than the rejection of the loan application. 46.For avoidance of doubt, Prayers 1 and 2 of the Motion, dated 23rd February 2026, are framed as follows:“ 1.That the Applicant be granted LEAVE to apply for an order of MANDAMUS compelling Diamond Trust Bank Kenya limited to furnish the Applicant with written reasons for the refusal of the Applicant’s loan application at DTB Wabera Street Branch. 2.That the Applicant be granted LEAVE to apply for an order of MANDAMUS compelling the Respondent to supply the Applicant with certified copies of bank statements, loan application records and all documents relating to the Applicant’s account and loan application.” 47.Prayer 3, on the grant of leave operating as a stay, is worded as follows:“That the grant of leave do operate as a STAY of the Respondent’s decision refusing the loan pending the hearing and determination of the substantive application.” 48.There is an intimate connection or linkage between the leave granted and the stay sought. The stay must be directly related to the leave. The activity, sought to be stayed, must be related to the judicial review order, for which the leave is sought and granted. It cannot relate to an activity remote to what the judicial review order, whose leave is sought, is targeted at or is about. So that if the mandamus order is with relation to access to information, and not rejection of the loan application, then the stay must be in connection with the access to information, and not the turning down of the request for a loan. 49.Stay, in proceedings under Order 53 of the Civil Procedure Rules, is nothing akin to or compared with an injunction, to restrain any activity that would destroy the substratum of the suit. Neither is it comparable to a stay of execution pending appeal, which is designed to prevent the subject-matter of the decree being removed, permanently, from the reach of the judgement-debtor. It is a different kind of stay. It should not be granted on the same principles as an injunction or stay of execution. It does not preserve property, but decisions. 50.Secondly, stay is only available with respect to the judicial review orders of certiorari and prohibition, according to Order 53 rule 1(4) of the Civil Procedure Rules, which provides that the “grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise …” There is, therefore, a statutory foundation for grant of stay. It is not statutorily available with respect to the mandamus order. 51.There is a logical basis for Order 53 rule 1(4) of the Civil Procedure Rules. Certiorari is about a decision that has been made, and which is likely to be implemented or carried through. Prohibition is about either on-going proceedings where a decision is likely to be made, or projected proceedings were a decision would be made. The target of the stay order would be, in the case of certiorari, to stop the implementation of the decision, for where it is implemented, before the matter is heard and determined, there would be nothing to quash, should the ex parte applicant establish its case. With respect to prohibition, the objective would be to stop the proceedings, before the respondent, where the decision or action targeted by the order is likely to be made or taken, before the court proceedings for judicial review are concluded. In both cases, the objective would be to preserve the status quo or the substratum of the proceedings, before the respondent, to obviate the court proceedings for judicial review being rendered moot. 52.A mandamus order has nothing to do with an existing decision awaiting implementation, or a prospective decision likely to be made, pending conclusion of the proceedings before the respondent. It is about an existing legal or statutory duty, and a failure to discharge that duty. The mandamus order is designed to compel action, by the duty-bearer, in discharge of that duty, where there has been refusal or neglect to discharge the duty. In such a situation, there would be nothing to stay. It would be a conceptual illogicality to seek and obtain stay, with respect to court proceedings for a mandamus order, in the circumstances. 53.In any event, the decision sought to be stayed is a negative decision, that is rejection of the loan application. That decision requires no follow up action, which can be stopped by way of a stay order. The decision to reject the application brought the proceedings, relating to the loan application, to an end. There was nothing pending on it, to be done or actioned by the respondent. Effectively, there would be nothing to be stayed, in the circumstances. 54.Should I convert or deem the judicial review application, under Order 53, into or to be either a constitutional petition, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, or into an originating motion, under the Fair Administrative Action Act and the Fair Administrative Action Rules, and proceed as if it has been commenced as either of those 2. I do not think that I should. Pleadings, for each of the 3 pathways, are tailored to fit into the provisions of the law under which the substance of the claim is premised, and the prayers sought are dependent. It would most likely cause injustice, to use pleadings filed under Order 53 of the Civil Procedure Rules, to evaluate a cause that ought to have been founded on the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, or the Fair Administrative Action Act and the Rules made under it. 55.The final orders are that the ex parte application, by way of Notice of Motion, dated 23rd February 2026, is hereby disallowed, and dismissed. The effect shall be that the prayers for leave and stay are declined. Each party shall bear its own costs. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 11TH DAY OF JUNE 2026.WM MUSYOKAJUDGEMr. B. Rinkanya, Court Assistant.AdvocatesMs. Oriedo, instructed by EA Ochieng & Company, Advocates for the ex parte applicant.Mr. Kisinga, instructed by Madhani Advocates LLP, for the respondent.