https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9371

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **MISC. CIVIL APPLICATION NO. E002 OF 2023** **MINISTRY OF TRADE, INDUSTRIALIZATION, KAKAMEGA COUNTY…………………………………………………………...APPLICANT/RESPONDENT** **VERSUS** **OMAR OSORE WAMBUA…………………......…………….1ST RESPONDENT/APPLICANT** **MALACK MISIKO ANAGWE…………..…..……………….2ND RESPONDENT/APPLICANT** **GABRIEL OSUNDWA EKAYA…………………….…………3RD RESPONDENT/APPLICANT** **RULING** 1. Before this Court is the Notice of Motion dated 6th October 2024 in which the Applicants seek orders: 2. That there be a stay of implementation of the orders allegedly arising from Kakamega MCELRC E016 of 2023; 3. That the lower court file be availed before the Registrar for purposes of reopening and re-registration as a civil matter in compliance with this Court’s orders issued on 21st February 2024; 4. That the matter be allocated to a different judicial officer for hearing and determination; 5. Costs of the application. 6. The application is supported by the affidavits sworn by the Applicants and opposed through the Replying Affidavit sworn by Daniel Musita on behalf of the Respondent. **Issues for determination** 1. Having considered the application, affidavits and submissions filed by the parties, the following issues arise for determination: 2. Whether the orders issued by this Court on 21st February 2024 were complied with; 3. Whether the Applicants are entitled to the supervisory orders sought; 4. Whether the Respondent’s Replying Affidavit is incompetent; 5. Who should bear the costs of the application **Analysis and determination** * 1. **Whether the orders of 21st February 2024 were complied with** 1. The record demonstrates that in its ruling delivered on 21st February 2024, this Court found that Kakamega MCELRC E016 of 2023 had been improperly filed as an Employment and Labour Relations Court matter whereas the dispute concerned allocation of market stalls and therefore fell within the jurisdiction of the ordinary civil courts. 2. The Court consequently directed that the matter be removed from the ELRC register and be dealt with as a civil matter before the Magistrate’s Court and further ordered that the matter be handled by a different judicial officer. 3. The Applicants contend that instead of implementing those directions, the lower court file was closed. The Respondent on the other hand argues that the Applicants failed to attend court and the matter was dismissed for non-attendance and want of prosecution. 4. The Court has considered both positions. Compliance with a court order must be exact and complete. **In the case of Teachers Service Commission v Kenya National Union of Teachers** the Court emphasized that court orders are binding and must be obeyed unless varied or set aside by a competent court. 5. Similarly, in **Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya** the Court held that obedience of court orders is not optional and is fundamental to the rule of law. 6. If indeed the file was merely closed without effecting the re-registration directed by this Court, then the substantive directions contained in the ruling of 21st February 2024 were not fully implemented. However, the Court must equally consider whether the Applicants took any steps before the subordinate court to revive the matter after it was closed or dismissed. 7. **Whether the applicants are entitled to the orders sought** 8. Article 165(6) of the Constitution grants the High Court supervisory jurisdiction over subordinate courts while Article 165(7) empowers the Court to call for records and issue directions to ensure the fair administration of justice. 9. In **Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another**the Court observed that supervisory jurisdiction exists to ensure subordinate courts act within the law and according to established procedure. 10. The Applicants seek intervention on the basis that the lower court failed to implement the High Court’s directions. However, the Respondent correctly points out that if the file was dismissed or closed for non-attendance, the Applicants had available remedies before the trial court, including an application to set aside such orders. 11. The Court is guided by the principle that supervisory jurisdiction should not ordinarily be invoked where adequate alternative remedies exist and have not been exhausted. 12. Nevertheless, where a subordinate court has not implemented express directions issued by the High Court, this Court retains jurisdiction to ensure compliance with its orders. 13. Accordingly, it is appropriate that the lower court record be called for to ascertain: 14. Whether the matter was re-registered as directed; 15. Whether the file was closed or dismissed and the reasons thereof; 16. Whether the matter was allocated to a different judicial officer. 17. **Whether the replying affidavit is incompetent** 18. The Applicants challenge the Replying Affidavit on grounds that the deponent is allegedly not an official of the Respondent. 19. The law is settled that an affidavit is not rendered incompetent merely because the deponent is not an employee or office holder, provided the deponent has knowledge of the facts deponed to or authority to swear the affidavit, **In Microsoft Corporation v Mitsumi Computer Garage Ltd** the Court held that affidavits may be sworn by persons with knowledge of the relevant facts even where they are not the principal parties. 20. Allegations of impersonation and perjury are serious allegations requiring cogent evidence. Such allegations cannot be determined merely through submissions. 21. The Applicants have not placed sufficient material before this Court to warrant striking out the Replying Affidavit or initiating contempt or perjury proceedings at this stage. 22. This ground therefore fails 23. **Who should bear the costs of the application** 24. Under Section 27 of the Civil Procedure Act, costs follow the event unless the Court for good reason orders otherwise, given that the dispute primarily concerns implementation of previous court directions and bearing in mind that both parties bear some responsibility for the present procedural confusion, the interests of justice would be served by directing that costs abide the outcome of the substantive proceedings. 25. Accordingly, the Court makes the following orders: 26. The Deputy Registrar shall forthwith call for and place before this Court the original record in Kakamega MCELRC E016 of 2023. 27. Upon receipt of the record, the Court shall ascertain whether the directions issued on 21st February 2024 were fully implemented. 28. Pending such examination, no further action shall be taken in respect of the closure, archiving or disposal of the lower court file. 29. The prayer seeking to strike out the Respondent’s Replying Affidavit is declined. 30. Each party to bear its own costs of the Application. 31. Mention 10.7.2026 for further directions after reviewing the lower court file. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 25H DAY OF JUNE, 2026.** **S.MBUNGI** **JUDGE** **In the presence of:-** **CA:** Velma/Zilda. Ms. Odek for the Respondent present online. Mr. Shaka for the Applicant on the platform but not audible.