[2024] KEHC 10976 (KLR)

Milhan Access Capital Ltd & another v Ochola & another (Judicial Review Miscellaneous Application E023 of 2024) [2024] KEHC 10976 (KLR) (12 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10976 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review Miscellaneous Application E023 of 2024

AC Bett, J

September 12, 2024

Between

Milhan Access Capital Ltd

1st Applicant

Foresight Auctioneers

2nd Applicant

and

Maxwell Omondi Ochola

1st Respondent

Senior Principal Magistrates Court Winam

2nd Respondent

Ruling

1. The applicant approached this Court vide a Chamber Summons application dated 6th September, 2024 seeking an order that the Honourable Court hears the applicant’s application dated 28th August, 2024 during its vacation.

2. The Court has perused the application dated 28th August, 2024 which basically seeks orders to have the application for leave to institute judicial review proceedings admitted for hearing during this court’s recess and finds that the same is merited and is hereby allowed in its entirety.

3. I have considered the grounds advanced by the applicant and I am satisfied that the application is urgent and ought to be dealt with immediately. The Chamber Summons dated 28th August, 2024 brought under Order 53 Rule 1 (1), (2) and (4) of the Civil Procedure Rules and Section 8 and 9 of the Law Reform Act, is thus hereby admitted for hearing.

4. I note that the instant application seeks the following reliefs:a.That the application be certified urgent and service be dispensed with in the first instance.b.That leave be granted to the Applicants to apply for judicial review orders of Certiorari to bring to this Honourable Court for purposes of quashing all proceedings currently subsisting before the Senior Principal Magistrates Court at Winam Civil Case No. E024 of 2024, Maxwell Omondi Ochola v Milhan Acess Capital Ltd & Foresight Auctioneers.c.That leave be granted to quash the orders and ruling issued in the Senior Principal Magistrates Court at Winam Civil Case No. E024 of 2024, Maxwell Omondi Ochola v Milhan Acess Capital Ltd & Foresight Auctioneers on 2nd February, 7th February, 2024 and 10th July, 2024 by Hon. D. Ogal (P.M) and all subsequent and consequential orders and proceedings therein.d.That leave be granted to the Applicants to apply for judicial review orders of Prohibition directed at the 2nd Respondent whether by itself, its agents and/or its servants or otherwise howsoever from proceeding with, hearing, investigating and adjudicating proceedings in the Senior Principal Magistrates Court at Winam Civil Case No. E024 of 2024, Maxwell Omondi Ochola v Milhan Acess Capital Ltd & Foresight Auctioneers.e.That the grant of leave aforesaid do operate as stay for enforcement and/or execution of the interlocutory orders of the Senior Principal Magistrates Court Civil case at Winam Civil Case No. E024 of 2024, Maxwell Omondi Ochola v Milhan Acess Capital Ltd & Foresight Auctioneers issued on 2nd February and 10th July, 2024 and/or any consequential proceedings founded thereon until the determination of the Application herein.f.That the costs of the application be in the cause.

5. The application is founded on grounds advanced in the verifying affidavits of Gibson Monari and Dickson Aika. The applicants aver that there are two conflicting orders issued in Kisumu Chief Magistrates Court Miscellaneous Civil Application No. 277 of 2023 between Foresight Interiors and Milhan Access Capital Exparte Maxwell Omondi Ocholla, and Winam Senior Principal Magistrate Court Civil Case No. E024 of 2024 between Maxwell Omondi Ochola v Milhan Access Capital Ltd. & Foresight Auctioneers issued by the 2nd respondent herein.

6. Having read the application, verifying affidavits thereof and the annextures thereto, the court notes that indeed there may be conflicting orders issued by the aforesaid courts pertaining to Motor Vehicle registration number KCS 777 G.

7. In the case of Njuguna v Minister for Agriculture [2000] 1 E.A 184, the test as to whether leave should be granted to an applicant for judicial review is whether, without examining the matter in any depth, there is an arguable case, that the reliefs might be granted on the hearing of the substantive application.

8. It is also well established that judicial review is a discretional remedy which would not be granted where there exists an alternative remedy. This position was underscored in the case of Speaker of the National Assembly v Karume (Civil Appication 92 of 1992) [1992] KECA 42 (KLR)(29 May 1992)(Ruling) where the Court of Appeal stated that:“In our view there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”

9. Upon consideration of the application before me, it is clear that the impugned orders of the 2nd respondent were made in exercise of its judicial function, as conferred by law.

10. This court also notes that the court did not render the impugned orders in an administrative capacity, and ordinarily, they should not be subject to judicial review.

11. In the circumstances, assuming all factors remain constant, the appropriate course of action would have been an appeal rather than judicial review.

12. It is however apparent that the applicants seek to challenge the legality of the 2nd respondent’s decisions in the subsequent matter that is, Winam Senior Principal Magistrate Court Civil Case No. E024 of 2024 which may well be within the purview of judicial review as this court would then be urged to consider whether the said proceedings were ultra-vires.

13. The applicants have characterized the impugned proceedings as an abuse of the court’s process, particularly given the conflicting nature of the orders granted in different matters involving the same subject matter and the same parties.

14. Notably, the 1strespondent’s suit in the Winam Law Courts sought principally to retain possession of the subject motor vehicle. Interestingly, the said suit was filed by the 1st respondent after the court in the Kisumu Chief Magistrate Kisumu Miscellaneous Civil Application No. 277 of 2024 had made its determination and given contrary orders.

15. The court in Kisumu Chief Magistrates Court Miscellaneous Civil Application No. 277 of 2023 ordered the 1st respondent to hand over possession of the subject motor vehicle. Conversely, 2nd respondent later issued an order restraining the applicant from taking possession of the suit property which in effect overturns the earlier order of the court in in Kisumu Chief Magistrates Court Miscellaneous Civil Application No. 277 of 2023.

16. The prevailing situation now is that the applicant is claiming possession of the suit property pursuant to a lawful order of the court while the 1st respondent is similarly claiming possession of the suit property pursuant to an order of the 2nd respondent.

17. This unsavory situation should not be condoned. This court thus finds that this court in exercise of its supervisory jurisdiction under Article 165(6) of the Constitution is perfectly entitled to consider the present application and issue such orders as may be necessary to ensure proper administration of justice. In Alice Sisina v Land Registrar Kajiado & another [2015] eKLR the court stated as follows:“10. The orders issued by the trial court were in clear contravention of the statutory and legal requirements on framing, registration and filing of civil suits in our courts. The criteria and standard is provided for in the Civil Procedure Act and Rules.11. I am of the considered view that this is a proper case in which the High Court is under duty in its oversight role to correct the error, mistake or legality of the proceedings and subsequent orders. The purpose is to ensure the ends of justice are met and to prevent abuse of the process of the court by the litigant.13. In exercising inherent supervisory powers under Article 165 (6) and (7) of the Constitution. The proceedings and orders granted cannot be allowed to stand the test of legality and propriety. There is therefore constitutional and statutory necessity to set aside the orders against the respondent.”

18. It cannot be gainsaid that this court has a duty to avert chaos that are likely to result from the enforcement of the conflicting orders by the parties. Since the orders made by the court in Kisumu Chief Magistrates Court Miscellaneous Civil Application No. 277 of 2023 were the first in time, I am of the view that this court would be abetting an injustice against the applicant and undermining proper administration of justice if it fails to grant leave to the applicant to institute judicial review proceedings.

19. Accordingly find that the applicant has established an arguable case, which meets the threshold for granting of leave to apply for judicial review.

20. This court is also mindful of the overriding objective as enshrined in Article 159 of the Constitution of Kenya, 2010, and Sections 1A and 1B of the Judicature Act. I associate with the findings of the court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & Others [2013] eKLR where the Court of Appeal held;The principle confers on the courts considerable latitude in the exercise of its discretion in the interpretation of the law and rules made thereunder. (See the case of City Chemist (NB1) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli versus Orient Commercial Bank Limited Civil Application No. Nai 302 of 2008 (UR.199/2008); The aim of the overriding objective principle is to enable the Court achieve fair, just, speedy, proportionate, time and cost saving disposal of cases before it. (See the case of Kariuki Network Limited & Another versus Daly & Figgis Advocates Civil Application No. Nai 293 of 2009); that the application of the overriding objective principle does not operate to uproot established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness (See the case of Kariuki (Supra); that in applying or interpreting the law or rules made thereunder, the Court is under a duty to ensure that the application or interpretation being given to any rule will facilitate the just, expeditious, proportionate and affordable resolution of appeals (See the case of Deepak Manlal Kamani and another versus Kenya Anti-Corruption and 3 others Civil Application No. 152 of 2009);

21. In order to give meaning to the overriding principle this court is not constrained and, where circumstances so demand (as they do in the instant case), this court is can and will invoke Section 3A of the Civil Procedure Act as well as Article 159 of the Constitution to ensure that justice is duly served.

22. Further, given the inseparability of the proceedings and the orders of the 2nd respondent, I am inclined to grant leave to the applicant. It is also my finding that in view of the fact that there is a pending application seeking to punish the applicants for contempt of court, a compelling case has been made for the leave so granted to operate as stay.

23. In the upshot, I hereby make the following orders;a.The Chamber Summons application dated 28th August, 2024 is allowed in terms of prayers a, b, c, d & e, thereof.b.The substantive motion shall be filed and served within 21 days from the date hereof.c.The costs of the application shall abide the outcome of the Judicial Review application.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 12TH DAY OF SEPTEMBER, 2024. A. C. BETTJUDGE