https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13094

Prime Bank Ltd & another v Principal Kadhi & 2 others (Constitutional Petition E029 of 2024) [2026] KEHC 13094 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 13094 (KLR) Republic of Kenya In the High Court at Mombasa Constitutional Petition E029 of 2024 J Ngaah, J July 15, 2026 Between Prime Bank Limited 1st Petitioner Hasu Silveira 2nd Petitioner and Principal Kadhi 1st Respondent Ali Gora Omar 2nd Respondent Marende Necheza & Co Marende Necheza & Co 3rd Respondent Judgment 1.Before this Court is a constitutional petition seeking to quash the decisions and proceedings of the Principal Kadhi in Mombasa Kadhi's Court Succession Cause No. E82 of 2014, specifically the contempt of court proceedings initiated against the petitioners. The Petitioners seek declarations that their fundamental rights to fair administrative action and a fair hearing under Articles 47 and 50 of the Constitution of Kenya have been violated, alleging they were condemned unheard. 2.The 1st petitioner is a bank while the 2nd petitioner is the bank’s Mombasa branch manager. According to the petitioners, on 31st January 2024, the Bank was served with a letter from the Mombasa Law Courts requesting the reversal of Kshs. 1,524,812.00, which had been remitted into the account of the 3rd Respondent, M/s Marende Necheza & Company Advocates. The Petitioners contend that the monies were not remitted to Prime Bank in its personal capacity but to the firm's account, over which the Bank has no control. 3.Subsequently, the 1st Respondent issued an ex-parte order on 5th February 2024 directing the 2nd Petitioner to reverse the said monies back to the Judiciary Deposit Account. The Petitioners state that at the time the ex-parte order was made, they were not parties to the succession proceedings. Following their failure to comply, contempt of court proceedings were instituted, and a summons was issued requiring the 2nd Petitioner to show cause why she should not be committed to civil jail. The Petitioners argue that these actions amount to condemning them unheard and violate their right to a fair hearing and fair administrative action. They, therefore, seek conservatory orders and an order of certiorari to quash the decisions of the Kadhi's court. 4.The 1st Respondent opposed the Petition by filing Grounds of Opposition dated 21st June 2024. The 1st Respondent argues that the Petition is bad in law as it fails to state with exactitude the constitutional rights violated and the manner of their violation, relying on the threshold established in Anarita Karimi Njeru v. Republic [1979] KLR 154. The 1st Respondent further contends that the application is an appeal disguised as a Constitutional Petition, and seeks to review the Kadhi's orders without following the proper judicial review process. It has also been pleaded on behalf of the 1st respondent that the Kadhi's Court possesses the requisite jurisdiction to prosecute contempt matters under Rule 120 of the Kadhi's Courts (Procedure and Practice) Rules, Legal Notice No. 203 of 2020. 5.The 2nd Respondent, Ali Gora Omar, vehemently opposes the petition through a replying affidavit. He deposes that the 3rd respondent, his former advocates, forged his signature, misled the Kadhi, and duped the Judiciary Accounts Officer into releasing the succession funds to the 3rd respondent’s account held at Prime Bank. Upon discovery, the Judiciary staff notified the Petitioners on 31st January 2024 to reverse the transaction, but the petitioners ignored the communication. The Kadhi then issued the order of 5 February 2024 directing the reversal, which the Petitioners also ignored. 6.The 2nd Respondent avers that the Petitioners voluntarily applied to be enjoined in the suit as an Interested Party, which was allowed. When the petitioners still failed to comply with the reversal order, the 2nd Respondent filed an application for contempt. The Petitioners were served but chose to file a preliminary objection challenging the Kadhi's jurisdiction, which was dismissed. The Kadhi then issued a notice to show cause to the second petitioner. The 2nd Respondent contends that no one was condemned unheard, as the Notice to Show Cause was precisely an opportunity for the Petitioners to be heard and explain their non-compliance. 7.The petitioners submit that their right to a fair hearing was breached because the order made on 5th February 2024 was made ex-parte when the petitioners were not parties to the dispute. Relying on the Court of Appeal decision in Merry Beach Limited v Attorney General and 18 Others [2018] eKLR, they argue that while a court may join a party to a suit after judgment, it must set aside the judgment to give the newly admitted party an opportunity to be heard. They claim the Kadhi's Court failed to do this, rendering the proceedings fatally irregular and void ab initio. 8.The 2nd Respondent submits that the Petition is a non-starter that falls short of the constitutional threshold of specificity required by Anarita Karimi Njeru v Republic [1979] KLR 154. Merely citing articles of the Constitution without particularising the infringement is insufficient. On the merits, the 2nd Respondent submits that court orders must be obeyed, whether regular or irregular, null or void, until they are discharged or set aside. Relying on Chuck v Cremer (1 Coop. Temp. 342) and Hadkinson v Hadkinson [1952] 2 All ER 567, the 2nd Respondent argues that the Petitioners cannot take it upon themselves to judge the validity of the order but must obey it. Furthermore, citing Econet Wireless Kenya Limited v The Minister for Information & Communication of Kenya & Another, Miscellaneous Application No. 1640 of 2003, the 2nd Respondent submits that the Petitioners have not purged their contempt and, therefore, do not deserve an audience of this Honourable Court. The 2nd Respondent reiterates that the issuance of a Notice to Show Cause by the Kadhi proves that the Petitioners were invited to be heard. 9.A preliminary issue on which the fate of the petitioners’ petition turns is whether it is misconceived and an abuse of the process of this Honourable Court on the basis of the doctrine of constitutional avoidance. Since this doctrine goes to the question of whether this Court ought to determine the petition as a constitutional matter at all, it is necessary that I address it in limine, as a preliminary issue. 10.The doctrine of constitutional avoidance entails that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. Where there is a specific mechanism of dispute resolution established by ordinary law, then such a process ought to be pursued, and not every wrong attracts constitutional relief. In Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] KESC 53 (KLR), the Supreme Court adopted the principle enunciated in S v Mhlungu 1995 (3) SA 867 (CC):“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” 11.The sanctity of constitutional petitions must be jealously guarded and not misused as a general substitute for normal proceedings. As the Privy Council authoritatively held in Harrikissoon v Attorney General of Trinidad and Tobago [1979] 3 WLR 62:“The notion that wherever there is a failure by an organ of the Government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious… its value will be diminished if it is allowed to be misused as a general substitute for normal proceedings for invoking judicial control of administrative action.” 12.The dispute herein stems from an order of the Kadhi's Court. Being aggrieved by the order the petitioners were enjoined to appeal to the High Court through the ordinary appellate process. In particular, Regulation 86 of the Kadhi's Courts (Procedure and Practice) Rules, Legal Notice No. 203 of 2020, expressly provides for such an appeal:86.(1)An appeal against the decision of the Kadhi's court shall be made to the High Court and against the decision of the High Court to the Court of Appeal. 13.Regulation 86(2) goes further to say that the appeal shall be by way of a notice of appeal, and regulation 86(3) grants the appellant the right to appeal against the whole or any part of a decision. Under regulation 86(4), the appeal must be filed within thirty days from the date the impugned decision was made. 14.Thus, the petitioners had a clear, prescribed avenue of appeal to this Court. Instead, they chose to file a constitutional petition, improperly elevating an ordinary legal dispute over the reversal of funds into a constitutional grievance. The Petitioners' approach runs afoul of the doctrine of constitutional avoidance, and this finding alone is sufficient to dispose of the Petition. 15.A supplementary affidavit sworn by the 2nd petitioner shows that, at the instance of the petitioners, the petitioners were not only joined to the impugned proceedings but also that when the application out of which the impugned order was drawn was filed, they were parties to the suit, albeit in their capacity as interested parties. To quote the 2nd petitioner:12.(a)(iii) [iii] I am informed by my advocate that the Petitioners' application to be enjoined as an interested party was filed on 21st March 2024 and allowed on the 15th April 2024 when it was set down for hearing.(iv)I am further informed that my advocates requested for time to peruse the court file and respond to the pending application that necessitated the issuance of the order of 5th February 2024. The First Respondent granted my advocates leave to respond and file submissions within 14 days to the said Third Respondent's application and the matter was thereafter fixed for mention to take a ruling date on 29th April 2024.(v)On 29th April 2024, my advocates informed the court that they had perused the Court file and noted that the order issued on 5th February 2024 was issued suo-moto and what was before the first respondent was the third respondent’s preliminary objection challenging the appointment of the firm of Wafula Wanjala & Company Advocates by the second respondent as its legal representative.(vii)I am advised by my advocates that it is at this juncture that they made an oral application to set aside the order of 5th February 2024, but the same was opposed by the Second Respondent's advocates and the First Respondent directed that a formal application be made and filed in court.(viii)I am further advised that on the said 29th April 2024, after the Second Respondent proceeded to file an application under a certificate of urgency dated 29th April 2024 seeking for the First Respondent to be cited for contempt which application was allowed contrary to the inalienable right to be heard.(x)The Notice of Motion Application to set aside the ruling of 5th February 2024 was filed on the 15th May 2024 on the grounds that at the time the First Petitioner was served with the Order of 5th February 2024, when it was neither a party to the proceedings, the third respondent had already withdrawn virtually all the monies and as such the Order was incapable of being complied with. 16.It is clear from the foregoing petitioners’ own depositions that by the time the application to cite the petitioners for contempt was made, the petitioners were parties to the suit in the Kadhis court. As a matter of fact, before the application for contempt was made, the petitioners sought to have the order they are alleged to be in contempt of vacated. In short, the petitioners participated in the contempt of court proceedings, in which the 2nd petitioner was cited for contempt. The appropriate action they ought to have taken if they were dissatisfied with the order was to appeal against the order and not to file a constitutional petition. 17.For the reasons I have given, I hold that the petition before court is an abuse of the due process of this Honourable Court; it is struck out with costs to the 2nd respondent. SIGNED, DATED AND DELIVERED ON 15 JULY 2026NGAAH JAIRUSJUDGE