https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7751

Wangithi v Business Registration Service (BRS) (Judicial Review E074 of 2026) [2026] KEHC 7751 (KLR) (Judicial Review) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7751 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E074 of 2026 TW Ouya, J June 4, 2026 Between Purity Wangithi Applicant and Business Registration Service (Brs) Respondent Judgment 1.By an Originating Motion dated 16th March 2026, the Applicant moved this honourable Court seeking among others orders that:i.An order of certiorari be issued by this Honourable Court and quash the decision of the Registrar of Companies made on 15th December 2025, whereby the Registrar purported to rectify the register of BMK Cranes Limited by reappointing a director/shareholder Daniel Muriuki and reinstating shares without consultation or prior notice to the applicant.ii.Interim orders be issued pending the hearing and determination of this application, this Honourable Court be pleased to grant an order of stay preserving the status quo of the company as it was prior to the 15th December 2025 decision. 2.The Application was supported by the affidavit of Purity Wangithi, the Applicant herein on grounds that the Respondent wrongfully rectified the register of BMK Cranes Limited by assigning 10% shareholding to one Daniel Muriuki. Thus, reinstating him as a director of the Company. 3.The Applicant further contended that although the said Daniel Muriuki was previously a director at the said Company, he had voluntarily resigned and relinquished his shares to the company on 16th May 2019. There was therefore no reason for reinstating the said Daniel Muriuki to the company. 4.It was the Applicant’s position that the Respondent neglected her explanation on the shareholding of the company thus leading to the erroneous act of reinstating Daniel Muriuki to the directorship of the Company without adhering to due process. 5.The Applicant maintains that the Respondent decided to rectify the register without adequately considering the contradictory evidence by both parties. The Respondent's decision was therefore ultra vires. 6.The Applicant also filed written submissions dated 13th April 2026 where she submitted that the Respondent’s actions were illegal and marred with procedural impropriety. 7.The Respondent did not file any responses to the Application. 8.Upon perusing the Application, supporting affidavit and submissions, this court finds the following to be the issues for determination:a.Whether or not this court has Jurisdiction to hear and determine this suit; andb.Whether the Applicant is entitled to the orders sought. 9.The main reason why the order of certiorari is sought is premised on the alleged illegality and procedural impropriety in the manner in which the Respondent rectified the register of BMK Cranes Limited. 10.Before addressing myself to the issues in the submissions, it is clear that the instant case is in respect of a Company BMK Cranes Limited. 11.Section 11(1) of the High Court (Organization and Administration) Act, hereinafter referred to as the Act, provides that for purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance, the Chief Justice may, where the workload and the number of judges in a station permit, establish any of the following divisions—a.the Family and Children Division;b.the Commercial Division;c.the Admiralty Division;d.the Civil Division;e.the Criminal Division;f.the Constitutional and Human Rights Division;g.the Judicial Review Division; andh.any other division as the Chief Justice may, on the advice of the Principal Judge determine 12.While Article 165 confers original unlimited jurisdiction on this honourable Court, Section 3 of the Companies Act vests jurisdiction on the High Court to determine disputes relating to Companies. When read alongside Section 11 (1) of the High Court Organization and Administration Act, it is evident that the Commercial Division of the High Court is vested with jurisdiction over all applications pertaining to companies. 13.The jurisdiction over company law matters is donated to the High Court and specifically to the commercial division of that court by dint of the Hon Chief Justice’s practice directions. It is the ex parte applicant’s position that this instant application was solely triggered by the impugned decision, in the letter dated 15th December 2025, of the registrar of companies and that the impugned decision is illegal, ultra-vires, violates the Fair Administrative Action Act, is irrational, unreasonable, and, a violation of the applicant's fundamental rights and freedoms guaranteed in the Constitution; due process was not followed; and that the impugned decisions were made in an opaque manner and without any explanation of the criteria used. 14.It is very clear to this honourable court that the dispute herein relates to a company and the legality of the rectification of the register and change of directorship. These are company matters that are best solved at the Commercial division of the High Court. 15.Suffice to note that even with the expanded scope of judicial review under the new constitutional dispensation, judicial review still remains a special jurisdiction that is majorly restricted to examination of whether an administrative decision conforms to the requirements of legality, rationality and procedural propriety. It is opportune to add that the judicial review process cannot be a substitute to statutorily provided for jurisdiction of other courts or bodies and the judicial review court cannot and should not assume jurisdiction where statute clearly places jurisdiction at the door of another court or body. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. 16.It is common ground that the respondent’s powers to take the impugned action are derived from the Companies Act (the Act). Section 3 of the act defines the court in which disputes arising from the operations of the act fall as “the court” means (unless some other court is specified) the High court. In practice directions dated November 18, 1997, the Hon the Chief Justice set out matters that shall be deemed to be commercial matters suitable for trial at the commercial division of the High Court and such matters include ‘’all company matters and applications including winding-up, excluding cases in which a company is suing or being sued as an entity. 17.I am fortified in this finding by the holding of this court (Professor Ngugi J, as he then was) in Republic v Resident Magistrate’s Court at Kiambu ex parte Geoffrey Kariuki Njuguna and 19 0thers [2017} eKLR where he held;“It is common among all the parties that only the High Court has jurisdiction to hear and determine any disputes touching on company law matters by virtue of section 3 of the Companies Act, 2015. That position is so self-evident that no further analysis and comment is required. 18.Further, it flows from the facts of the case that the application naturally invites the court to venture into a merit review of the decision of the registrar of companies. The exercise would of necessity involve an analysis of whether the registrar complied with the provisions of the Companies Act. The judicial review court, is restricted in so far as merit review is concerned and the court with the necessary wherewithal under the Act and the Hon Chief Justice’ practice directions is the commercial division of the High Court. 19.The Court in Republic v Registrar of Companies & 5 others Ex-Parte Midlands Company Limited [2019] eKLR stated that:“There are alternative fora that are more appropriate to resolve the factual disputes raised in this application, such as the Civil or Commercial Division of the High Court, where no restrictions or limitations exist as those that arise in judicial review.” 20.It is trite law that jurisdiction is the authority of the court to decide matters that are litigated before it. Such authority is conferred by the Constitution or statute. In our instant suit section 3 of the Act confers jurisdiction to the High Court and the practice directions state the commercial division of that court to be the appropriate court to handle disputes under the Act. 21.In determining the dispute, and in view of the expanded space in the new constitutional dispensation, the commercial division, in addition to resolving issues under the Act would, if it finds any element amenable to judicial review in the matter, have the necessary power and jurisdiction to grant an order of judicial review under article 22, 23 and 47 of the Constitution. 22.The upshot of the matter is that the suit herein is struck out for want of jurisdiction with Costs to the Respondent. 23.Final Orders: Application struck out. Costs to the Respondent. Dated, Signed and Delivered Virtually on this 4th day of June, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Mureithi for PetitionerNo appearance for RespondentNyabuto – Court AssistantJR. NO. E074 OF 2026 3 | Page