[2023] KEHC 25373 (KLR)

Republic v Auctioneers Licensing Board; Barasa (Interested Party); Robert Waweru Maina t/a Antique Auctions Agencies (Exparte Applicant) (Judicial Review Miscellaneous Application E066 of 2023) [2023] KEHC 25373 (KLR) (Judicial Review) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25373 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E066 of 2023

JM Chigiti, J

November 16, 2023

Between

Republic

Applicant

and

Auctioneers Licensing Board

Respondent

and

Dickson Silomeloh Barasa

Interested Party

and

Robert Waweru Maina t/a Antique Auctions Agencies

Exparte Applicant

Judgment

1. The application before this Court is dated 30th June,2023 and it seeks the following orders;1. That this Honorable Court be pleased to make a declaration that the Respondent’s complaint, proceedings and Decision taken in Disciplinary Cause Number 26 of 2022 between Dickson Silomeloh Barasa and Robert Waweru Maina T/A Antique Auctions Agencies and Orders of the Auctioneers Licensing Board embodied in a Letter dated 5th June, 2023 as well as the Notices issued therewith and flowing from that were done in excess of jurisdiction and are consequently null and void.2. That this Honorable Court be pleased to grant an Order of certiorari to remove into the High Court the entire proceedings conducted by the Auctioneers Licensing Board the Respondent herein in Disciplinary Cause Number 26 of 2022 between Dickson Silomeloh Barasa and Robert Waweru Maina T/A Antique Auctions Agencies and quash those proceedings along with the Respondent’s Decision dated 5th June 2023. 3.That costs of this Application be borne by the Respondent.

2. The application is supported by the Statutory Statement dated 30th June,2023 and the Affidavit of Robert Waweru Maina who claims to trade in the name and style of Antique Auctions Agencies sworn on even date.

3. The Interested Party herein is said to have lodged a complaint on 28th April, 2022 against the Ex parte Applicant before the Auctioneers Licensing Board. This is after the Applicant had repossessed motor vehicle registration number KCE 134G (hereinafter referred to as the ‘motor vehicle’) on 31st October, 2020 as the Interested Party had defaulted on his loan facility with Financier, Momentum Credit Limited. The Applicant argues that the repossession had been preceded by service of a proclamation notice on 12th October, 2020.

4. The complaint is said to have been registered as Auctioneer’s Licensing Board Disciplinary Cause Number 26 of 2022 between Dickson Silomeloh Barasa and Robert Waweru Maina T/A Antique Auctions Agencies.

5. The Applicant is said to have raised a Preliminary Objection before the Respondent challenging its jurisdiction to entertain the complaint as it was premised on events that had occurred close to two(2) years after the events that had occasioned the complaint, in contravention of Section 24 (1) of the Auctioneers Act.

6. It is the Applicant’s case that by a Ruling embodied in the Respondent’s letter dated 1st November, 2022, the Board assumed and conferred on itself jurisdiction over the complaint that was statutorily time-barred and proceeded to set it down for hearing. The complaint was canvassed by way of written submissions and upon compliance by all parties a judgment date set for 18th May, 2023.

7. The Board is said to have failed to deliver the said Judgment and instead advised parties that the date for delivery of the Decision would be communicated to them by way of an advance notice to the parties which notice according to the Applicant was never forthcoming.

8. The Applicant’s case is that on 2nd June, 2023 while at Auctioneer’s Conference in Mombasa a colleague whispered to him that the Respondent had suspended his licence, and therefore that his attendance at the conference was questionable given that he stood suspended. No formal notice had been issued to him or his advocates.

9. The Ex-parte Applicant’s Advocates, are said to have by a letter dated 2nd June, 2023 and received by the Respondent Board on 5th June, 2023, formally inquired as to when the Respondent would deliver its Decision on the complaint but the Respondent never responded to the Letter until 8th June, 2023 that the Respondent invited the Ex Parte Applicant to its offices for purposes of collecting its Decision in Disciplinary Cause Number 26 of 2023.

10. The Ex parte Applicant is said to have attended the Respondent’s office on 8th June,2023 where he received a Letter dated 5th June, 2023, together with copies of four Letters all dated 5th June, 2023, addressed to the Deputy Registrar, Milimani Law, Courts, the Chief Magistrate Milimani Commercial Courts, the Chief Magistrate, Kiambu Law Courts and the Chief Magistrate, Kajiado Law Courts, forwarding to the said officers, a Suspension Notice also dated 5th June, 2023.

11. Although the decision, Letters and Suspension Notice were all dated 5th June,2023 the Suspension Notice indicated that the Ex parte Applicant was suspended retrospectively from holding a Licence on 31st May, 2023, seven (7) days prior to the date when the Ex parte Applicant was served with the Decision. It is contended that in doing so the Respondent contravened Section 19 of the Auctioneers Act.

12. The Respondent’s orders that (1) The Respondent to return the subject motor vehicle to the complainant forthwith, (2) The Auctioneer is fined Kshs. 100,000/=and costs of Kshs. 100,000/= and (3) The Board proceeds to suspend his licence for six months are said to be unmerited and draconian for the following reasons.

13. That the subject Motor Vehicle has already been sold 17th November, 2020 by the financier Momentum Credit Limited to a Third party, and both the Financier and the Third-Party Purchaser were neither party to nor privy to the disciplinary proceedings. The Order compelling the Ex parte Applicant to return the said motor vehicle according to the Applicant was also unreasonable, irrational and also ultra vires the mandate of the Respondent as established under Section 4 of the Auctioneers Act.

14. The Applicant’s case is also that the order suspending his licence was indeed unmerited, excessive in the circumstances and grossly disproportionate to the interests and rights of both the complainant and the him. The Respondent is also accused of failing to take into account relevant considerations on the actual complaint made before it.

15. The decision is also said to have only been signed by the Secretary which is contrary to Rule 11 of the Schedule to the Auctioneers Act that mandatorily requires that the decision of the Board be signed by the Chairman and the Secretary of the Board.

Respondent’s Case 16. The Respondent in response filed Grounds of Opposition dated 12th September,2023.

17. The Respondent raises several grounds of opposition as I will summarize herein. That the instant application is premature and lacks merit and that it is based on a misconception of the law. The application as filed is also said to offend the provisions of section 9(2) of the Fair Administrative Action Act and Section 25 of the Auctioneers Act.

18. The Respondent also contends that the application before this Honourable Court is an Appeal disguised as a Judicial Review application and that the same seeks to curtail the statutory mandate of the Respondent which does not within the jurisdiction of Judicial Review. The application is also said to be an abuse of this court’s due process.

Interested Party’s Case 19. The Interested party in his response sworn on 24th July,2023 contends that the Respondent has such powers as are necessary or expedient for the proper discharge of its functions under the Auctioneers Act which includes the power to inquire into complaints made against auctioneers.

20. Further that the Respondent is at liberty to explore discretion on application of Section 24 (1) of the Auctioneers Act considering that the law uses a discretionary term "may" as compared to conditional term "shall" or "will" and such in its own assessment of the case, determined to entertain the Interested Party’s complain as the time limitation under section 24 (1) of the Auctioneers Act is not mandatory.

21. The Interested Party argues that all parties were heard even on the issue of jurisdiction to wit the Respondent made an impartial decision which the Ex parte Applicant never challenged but went ahead to take part in the hearing of the matter on merit. It is argued that the current Judicial Review application by the Applicant is an abuse of court process and intended to skip the provisions of Section 25 of the Auctioneers Act.

22. The mandatory injunction according to the Interested Party was within the Respondent's powers as there was evidence that the said motor vehicle had not been sold to anyone as it was still in his name as per a recent NTSA search that was conducted. This is said to have been the position at the time of lodging the Complaint.

Parties Submissions 23. The application was canvassed by way of written submissions.

24. The Ex parte Applicant filed written submissions dated 21st July,2023 together with Further written submissions dated 2nd October,2023.

25. The Ex parte Applicant submits that the actions of the Respondent, starting with the leaking of the outcome of the proceedings before the Respondent had put pen to paper, confirmed his fears that there was unfairness and impropriety to be perceived from the conduct of the Respondent in irregularly leaking the outcome of the proceedings several days prior to making any formal determination of the dispute.

26. The Respondent is also said to have acted in excess of its powers by purporting to issue a mandatory injunction compelling the Ex-parte Applicant, to return to the Interested Party the vehicle sold to a 3rd Party who was not privy to the Disciplinary proceedings.

27. It is also submitted that the Respondent’s decision having only been signed by the Secretary contrary to the mandatory requirement of the law is a nullity and to support this argument the cases of Manuel Ominde T/A Kuronya Auctioneers V Auctioneers License Board [2009] eKLR and Nathan Mwema Amkoa T/A Ongumwe Auctioneers V Auctioneers Licensing Board [2010] eKLR are cited where the Courts found decisions that were not signed by the Chairman of the Board to be a nullity.

28. The Applicant also contends that pursuant to Section 19(3) of the Auctioneers Act a suspension order takes effect from the date of personal service of the Order by the Respondent.

29. The Court is said to have power to look into whether the Respondent has stepped outside the boundaries as was held in the case of East Africa Railways Corp vs Anthony Sefu Dar es Saalam HCCA no. 19 of 1971 [1973] EA 327.

30. It is also submitted that from the wording of Section 24(1) of the Auctioneers Act the Respondent Board did not have any jurisdiction at all to entertain any complaint made to it by any aggrieved person outside the period of one year after the occurrence of the event giving rise to the complaint. It is also argued that there is no jurisdiction provided under Section 24(4) and (5) of the Act for the Respondent to issue a mandatory injunction.

31. The case of Republic Versus Business Premises Tribunal & Another Exparte Davies Motor Corporation Limited [2013] is cited where the Court found that the Business Premises Rent Tribunal was not empowered by statute to grant injunctive relief. On the purpose of judicial review, the Applicant refers to the case of Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary, Ministry of Nairobi Metropolitan Development & Another [2014] eKLR.

32. The Ex parte Applicant argues that he has satisfied the grant of the substantive order of Judicial Review and that the Court ought to be guided by the Court’s decision in Republic vs. County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya [2014} eKLR where it was held that “There can never be public interest in breach of the law and the decision of the respondent is indefensible in public interest because public interest must accord to the constitution and the law as the rule of law is one of national value of the constitution under article 10 of the Constitution”.

33. The case of Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge & 9 Others [1997] is cited on when an Order of Certiorari will issue.

34. The Applicant also submits that he was well within his rights to prefer the judicial review proceedings herein. He further submits that there lay no legal obligation on his part to exhaust the appeal mechanism proposed under section 25 of the Auctioneers Act. He also argues that he did not require to apply for an exemption under Section 9(2) of the Fair Administrative Action Act.

35. It is also argued that Section 25 of the Auctioneers Act is not couched in mandatory terms and as such it was not necessary for the Applicant to prefer an appeal or apply for exemption. The use of the word ‘may’ under the said Section is said to be directory and not mandatory. The Applicant cites the case of Republic v Firearms Licensing Board & another Ex Parte Boniface Mwaura [2019] eKLR, where the Court found that section 23 of the Fire Arms Act which uses the terms “may appeal to the minister whose decision is final” is not couched on mandatory terms, and that it was not necessary for the Ex Parte Applicant therein to apply for an exemption under section 9(4) of the Fair Administrative Action Act before approaching it. The Court observed that may is permissive.

36. The Applicant argues that lodging an appeal against the Decision of the Respondent would have amounted to admission/submission to the jurisdiction the Respondent, and to this extent negated his primary contention that the Respondent lacked jurisdiction to handle the complaint at all and to buttress this argument the Applicant cites the case of Republic v Senior Resident Magistrate Mombasa Ex Parte H L & Another [2016] eKLR.

37. It is submitted that the appeal mechanism proposed under the Auctioneers Act was not appropriate in the circumstances of his case and reliance is placed on the case of Republic v Secretary of the Firearms Licensing Board & 2 others Ex -parte Senator Johnson Muthama [2018] eKLR where the court considered circumstances where a mechanism for dispute resolution may not be appropriate.

38. It is also the Applicant’s case that the reliefs sought by the Ex Parte Applicant are within the sole purview of the Judicial review Court, and further that the remedies cannot be granted by an appellate court.

39. The purpose of the exhaustion doctrine it is submitted is to ensure that dispute resolution mechanisms outside of courts are first exhausted, and that courts are a fora of last resort. This purpose however is not sought to be achieved, in the context of the Auctioneers Act, as the Auctioneers Act does not prescribe any dispute resolution mechanism outside of courts.

40. The Respondent is said to be a quasi-judicial body subject to supervision by the Judicial Review court, pursuant to the provisions of section 3 a, b and c of the Fair Administrative Action Act.

41. In its written submissions dated 12th September,2023 the Respondent submits that the Ex parte Applicant herein has failed to exhaust the remedies available to him the Auctioneers Act and to further buttress this argument the Respondent reproduces section 25(1) of the Auctioneers Act.

42. The Respondent also submits that the Applicant has not lodged an appeal against the alleged decision as is required under the Act and that in the circumstances , an application for judicial review to this court is barred by Section 9 (2) and (3) of the Fair Administrative Action Act , 2015. The Respondent’s argument is that use of the word ‘SHALL’ in the above sections connotes the mandatory intention of the drafters. In support of this argument the Respondent cites the case of Republic v Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] eKLR where Mativo J(as he then was) held that “The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory”.

43. The Court also went ahead to state as follows; “It is settled that the impugned decision constitutes administrative action as defined under section 2 of the Fair Administrative Action Act. Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.

44. The court similarly in the case of Republic v Firearms Licensing Board & another Ex Parte Stephen Vincent Jobling [2019] eKLR addressed at length the question of exhaustion of administrative remedies and exceptional circumstances upon which a party maybe exempt for exhaustion of the said remedies.

45. The Respondent submits that courts must not be burdened with matters where the law has provided alternative mechanisms for dispute resolution. Further that the court should satisfy itself that such mechanisms have been tried and failed and that only then can a party be justified in bringing a Judicial Review application.

46. The Ex parte Applicant is said to have failed to appeal to the Minister as required under Section 25(1) of the Auctioneers Act and also failed to move the court for an exemption if the said Appeal was not a viable option. It is also submitted that Courts ought not be used to curtail the statutory duties of Statutory bodies as is the case herein and in order to support this argument the Respondent cites the case of Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR where the Court held as follows;“It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question.”

47. In conclusion it is submitted that the respondents carried out their statutory duties in accordance with the law and in line with the Auctioneers Act.

48. The Interested Party also filed written submissions which are dated 29th Auguust,2023 and which raise several issues for determination and these are whether the Respondent assumed jurisdiction, whether the Respondent was irrational, unreasonable or took into account irrelevant matters, whether the Respondent’s Procedure was unfair and whether failure of the Chairman to sign the decision of the Respondent renders it null.

49. It is the Interested Party’s submission that the use of the word “may” in section 24(1) ,does not oust the jurisdiction of the Respondent as it is only directory and permissive and not compulsory. Further that if the drafters of the said provision had intended that all complaints must be filed within one year, then they would have used the word “shall” instead of “may” to make it a compulsory requirement.

50. The drafters of the said provision are said to have been alive to factors such as when does time start running and when did the material facts come to the Complainant’s knowledge. These two factors it is submitted informed the framing of Section 24(1) as it is to permit and actualize the Constitutional requirements in Article 48 on Access to justice.

51. The cases of Karaini Investments v National Land Commission & another [2018] eKLR and Republic v Non-Governmental Organizations Ex parte Linda Bonyo & 4 others; Philip Opiyo Sadjah & 5 Others (Interested Parties) [2020] e KLR are cited where the courts have resoundingly held that the word "shall" when used in a statutory provision imports a form of command or mandate while the word “may” is directory.

52. It is the Interested Party’s position that immediately a complainant becomes aware of the facts in issue, then time starts to run. Further that in our instant case it is important to note at what point did the Interested Party get to know of the ex-parte applicant’s Misconduct? And at what point did the interested party realize that the motor vehicle allegedly sold through public auction still exists in his name? These questions according to the Interested Party are important to put the issue of the jurisdiction of the Respondent into context.

53. The Interested Party also submits that pursuant to the provisions of Rule 50 of the Auctioneers Rules and the Court’s finding in Abdinur Hassan Adan v County Criminal investigation office, Marsabit County & 2 Others (2019) eKLR where the court cited the case of Mwangi v Kenya Airways Ltd (2003) KLR where it was held that in order to extend time the court must consider the length of the delay, the reason for the delay, the possibility of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted the Board had discretion to extend time in the matter as the interest of justice demands that substantive justice should not be sacrificed.

54. The case of Trinity Broadcasting (Ciskei) v ICA of SA 2004(3) SA 346 (SCA) at 354H-355A is cited by the Interested Party where Howie P held that in applying the test of rationality, the reviewing Court will ask whether there is a rational objective basis justifying the connection made by the administrative decision-maker between the material made available and the conclusion arrived at.

55. On the test of unreasonableness, the case of Prasad v Minister for Immigration, (1985) 6 FCR 155 cited with approval in Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR is refered to.

56. It is the Interested Party’s case that contrary to Rule 12 (1) (b) of the Auctioneers Rules (1997) neither was he served with a proclamation notice nor did he sign the inventory. The Interested Party also contends that as is evidenced by annexure ‘RMW-1’ the Ex parte Applicant was instructed to attach and sell the said motor vehicle by public auction but instead opted to surrender the motor vehicle to a firm of Advocates who advertised and sold it in clear contravention of the instructions by the Financier and contrary to the Auctioneers Act and Rules .

57. The Ex parte Applicant is said to have acted in contravention of Section 23 of the Auctioneers Act which provides the duty of auctioneers to act in accordance with such rules as may be prescribed when repossessing, attaching, storing or selling any property pursuant to the provisions of any written law or contract.

58. It is the Interested Party’s case that as was held by the court in Jones Makau Nthenya & another v Principal Magistrate Court Mavoko & another [2017] eKLR a fundamental aspect of fairness is that powers should be exercised in accordance with the rules of natural justice, which entail two procedural requirements, namely the right to be heard and the rule against bias.

59. The Interested Party submits that the Applicant has not produced evidence that the Respondent was biased when making its decision nor has it produced evidence that the Respondent’s decision was not based on evidence material. He is also accused of failing to demonstrate unfairness in the decision-making process.

60. It is also the Interested Party’s submission that the requirement that the decision of the Auctioneers Board has to be signed by both the Chairperson and the Secretary in accordance with Rule 11 of the Schedule of the Auctioneers Act is a mere procedural technicality capable of being cured by Article 159 of the Constitution and/or the oxygen Principal. The Rule is said to comprise of such legitimate technicalities. The case of James Mangeli Musoo v Ezeetec Limited [2014] eKLR is cited on what constitutes a technicality and what undue regard to technicalities means.

61. The case of Gitau v Kenya Methodist University (Kemu) [2021] eKLR is also cited where the court quoted the case of The House of Lords in Henry JB Kendall & Others v Peter Hamilton (1878) 4 AC 504 where it was observed that procedure is but the machinery of the law after all, the channel and means whereby law is administered and justice reached. Further that it strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to sub serve.

62. In conclusion it is submitted that the administrative action that was taken was reasonable and justifiable based on the evidence presented and the allegations of the Respondent being unfair are unfounded and untrue as mere rumors do not render the decision of the Respondent unfair.

Analysis and Determination 63. I have carefully considered the Application, the statutory statement, the verifying affidavit, the replying affidavits, and respective submissions and authorities of the rival parties’ and the following are the issues for determination;i.Whether the doctrine of exhaustion applies to this case?ii.Whether the Orders sought are merited?

64. The Respondent and Interested Party challenge the competency of the Ex parte Applicant’s submissions on the ground that the same ought to be struck out as the Ex parte Applicant has failed to exhaust the dispute mechanism provided under Section 25(1) of the Auctioneers Act which provides as herein below;25. Appeals1. A person aggrieved by a decision of the Board under this Act may, within thirty days after receipt by him of written notice of such decision, appeal against the decision to the High Court by giving notice of appeal to the Registrar thereof setting out the grounds of appeal within thirty days after giving him of the notice.

65. In response the Applicant argues that the said section is not couched in mandatory terms and therefore that he was not obligated to file an appeal. He also argues that the same would not have been an effective remedy for in the circumstances of this case, as the he is challenging the legality of the proceedings and Decision of the Respondent. The Applicant states that the Respondent lacked jurisdiction to hear and determine a stale and time barred complaint and that it exceeded its mandate in hearing and determining the complaint and granting the remedies given particularly a mandatory injunction for the return of a vehicle and thus purporting to set aside a sale by private treaty effected by the Ex Parte Applicant’s instructing client, a financier.

66. Authorities on the doctrine of exhaustion are mammoth. One good example is the case of Khalifa Mohamed vs PS Transport where the court had the following to say;“Section 9 (1) Fair Administrative Action Act, 2015 provides an avenue for a party aggrieved by an administrative action to without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. This, is subject to exhausting all other available remedies. Thus, Section (9) (2) provides in mandatory terms that;““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.”““Under Section 9 (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 sub-section (1).”

67. The court in Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR held thus;“The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law.”

68. The Court in the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR held thus;“The principle running through decided cases is that where there is an alternative remedy or where Parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it. In the case before me, no argument was advanced that the mechanism under the act was not adequate nor do I find any reason to find or hold so.”

69. In our instant case the Ex parte Applicant argues that he seeks to challenge the proceedings and decision of the Respondent and therefore filing an appeal would not have adequately addressed his grievances. I note that the Ex parte Applicant seeks to challenge the jurisdiction of the Respondent to hear a complaint that was filed out of time an issue that was raised during the Preliminary stages of the proceedings before the Respondent as is evidenced by the Respondent’s letter dated 1st November,2022 which letter was in regard to a preliminary objection that was filed.

70. In the letter the Respondent states that the Act does not provide for time within which to file a complaint and therefore an issue that is contested cannot form a pure point of law. The Applicant does not provide before this court any valid reason why he did not Appeal the said decision to the High Court as is envisioned under Section 25 of the Auctioneers Act yet the issue of the Respondent’s jurisdiction seems to be at the heart of his dispute.

71. The Applicant has also not demonstrated before this Court that the High Court to which the Appeal would be lodged would be incapable of determining the issues now raised before this court. It is absurd that the Applicant contends that he opted not to lodge an appeal as the same would amount to submitting to the Respondent’s jurisdiction yet he goes ahead to present his case by filing a response and submissions before the very Board that he vehemently claims has no jurisdiction and even awaits a determination from a body that from the very beginning he claims had no power or authority to hear the said complaint.

72. The court in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others (supra) continues to state that;“36. The question that begs for an answer is whether the dispute resolution mechanism established under the Act and the Regulations is competent to resolve the issues raised in this application. Except the submission that there is no alternative remedy, no argument was presented before me that the mechanism is not competent to resolve the dispute.37. Our jurisprudential policy is to encourage parties to exhaust and honour alternative forums of dispute resolution where they are provided for by statute.[30] It is also settled that the exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.[31]38. Having fully considering the dispute disclosed in this Petition and the Regulations, I am clear in my mind that the mechanism established under the Act and the Regulations can afford the ex parte applicant an effective remedy. In any event, the ex parte applicant has not demonstrated that it cannot get an effective remedy under the dispute resolution mechanism established under the statute. A remedy will be effective if it is objectively implemented, taking into account the relevant principles and values of administrative justice present in the Constitution and our law. The “deepest norms” of the Constitution should determine whether the dispute involves explicit constitutional adjudication, or whether it could safely be left to the statutory provisions. In this regard, I am persuaded beyond doubt that the adjudication of the issues complained herein can safely be left to the statutory provisions.”

73. This court is persuaded beyond doubt that the adjudication of the issues complained of herein can safely be left to the statutory provisions. In this court’s opinion and analysis herein above, the ex parte applicant has not satisfied the exceptional circumstances requirement. He ought to have exhausted the available mechanisms before approaching this court. The application before this Court therefore offends Section 9 (2) of the Fair Administrative Action Act and also the doctrine of exhaustion.

74. Having established as herein above the Order of Certiorari sought by the Ex parte Applicant is therefore unmerited.

OrdersThe upshot of the above is that the application dated 30th June, 2023 is hereby dismissed. The costs shall be in the cause. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF NOVEMBER, 2023. J. CHIGITI (SC)JUDGE