https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10106

Republic v Capital Markets Authority; Trade Sense Ltd & another (Ex parte Applicants) (Judicial Review E141 of 2025) [2026] KEHC 10106 (KLR) (Judicial Review) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 10106 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E141 of 2025 TW Ouya, J July 2, 2026 Between Republic Applicant and Capital Markets Authority Respondent and Trade Sense Limited Ex parte Applicant Michael Gitonga Ex parte Applicant Ruling 1.The Ex parte Applicants filed Judicial Review proceedings on 22nd May 2025 seeking leave and substantive reliefs against the Respondent’s decision suspending their trading license and instituting criminal charges against the 2nd Applicant (Michael Gitonga) in MCCC Criminal Case No. E058 of 2025. 2.On 26th May 2025, this Court granted leave and issued stay orders, including lifting the suspension and halting further proceedings against the Applicants pending determination of the judicial review. 3.Despite personal service of the said orders on 28th May 2025 and their publication in the Business Daily on 3rd June 2025, the Respondent allegedly continued to defy the Court’s orders. 4.This prompted the Ex-Parte Applicant to file the contempt application dated 12th June 2025 whereby the Respondent was found in contempt of court and barred from seeking audience of court before purging the contempt. 5.The court stated thus:“Court's orders remain binding. The Respondent's failure to comply while simultaneously challenging jurisdiction is legally untenable. As held in Rose Detho v. Ratilal Automobiles & Others [2007] eKLR, parties in contempt cannot seek audience until they purge their contempt.” 6.Accordingly, the matter was set down for mention for purposes of showing cause on 29.10.25. 7.In compliance with the foregoing directions, the Respondent filed an Affidavit of compliance sworn by Wycliffe Shamia, CEO of the Respondent, in response/mitigation to the Notice to Show Cause. The gist of the affidavit is that the Respondent was not in contempt as the order was not served with a notice of penal consequences. The Respondent also stated that he did not knowingly defy the orders of the court as the suspension order issued against the ex-parte Applicant had lapsed due to effluxion of time, by the time the court order was served. The Respondent further explained that it does not, as a matter of practice, publish suspension notices to other stakeholders. Hence there was no need to issue formal notice of lifting of suspicion, instead the Applicants’ name was published on the Respondent’s website as one of the licensed service providers. 8.The Respondent went ahead to depose that the requirement to disclose information was actively before the Commission of Administrative Justice and therefore the Respondent could not disclose it as such disclosure might amount to violation of the Data Protection Act, Cap 411C. 9.Notwithstanding the Affidavit sworn by the Respondent, the Applicants applied for cross examination of the deponent of the Respondent’s affidavit. During the cross examination, the Respondent reiterated the contents of the Affidavit of Mr. Wycliffe Shamia. 10.Odunga, J (as he then was) in Miguna Miguna v Fred Matiang’i, Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 8 others [2018] eKLR rightly observed that;-“ 8.Contempt of court is no doubt an affront to judicial authority and therefore is not a remedy chosen by a party but is invoked to uphold the dignity of the court… I reiterate what I said in the earlier ruling that those who disobey Court orders risk being declared by the Court to have breached Article 10 of the Constitution which prescribes national values and principles of governance with the attendant consequences among other appropriate sanctions…….. 9.In deciding what sanction to mete this Court must reflect on the need to maintain the rule of law and to ensure that the authority and the dignity of our Courts are upheld at all times and to stamp the Court’s authority and uphold the values and principles of governance enshrined in Article 10 of the Constitution.” 11.The sanction provided for contemptuous conduct is intended to uphold the sanctity or dignity of the court and the rule of law. Ojwang, J (as he then was) fittingly stated in B v Attorney General [2004] 1 KLR 431 that:“The Court does not, and ought not to be seen to, make orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.” 12.There is no prescribed punishment for contempt of court, save that judicial discretion is donated to the High Court by dint of Section 5 of the Judicature Act. See: Court of Appeal in Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others [2014] eKLR and Alfred Mutua v Boniface Mwangi [2022] eKLR). The lacuna resulted from the fact that the Contempt of Court Act which provided for the mode of punishment for contempt was declared unconstitutional in Kenya Human Rights Commission v Attorney General & another [2018] eKLR. Therefore, presently the punishment of contempt remains in the realm of judicial discretion, which however ought to be exercised judicially, cautiously, depending on the circumstances obtaining and hence, on a case-by-case basis. See: Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui [2021] eKLR. 13.I have considered the justification-cum-mitigation advanced by the Respondent against the contempt application. Reading through the affidavit of compliance sworn by the Respondent, it is evident that the Respondent demonstrated with sufficiency the reason for not lifting the suspension or publishing the notice to other stakeholders. 14.While addressing the issue of contempt of court the Supreme Court in Petition No. 32 of 2014 Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR stated:“Be it restated that the Court’s word is the people’s solemn edict calling for obedience; but it is precisely the sanctity of that word, that dictates utmost care, focus and assiduity, in the Judge’s undertaking. The context is set out in the Judgment of Romer LJ in Hadkinson v. Hadkinson [1952] 2 All ER 567:It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.” 15.Although the reason advanced by the Respondent appears plausible, obedience to court orders is an obligation regardless of whether the person affected by the order finds it irregular or even void. Considering all the relevant matters the Court is persuaded that in this instance, a warning would adequately vindicate the rule of law while addressing the Contemnor’s conduct. 16.In the result the Court hereby issues a warning to the Respondent to henceforth cease and desist from any further acts of contempt in relation to the orders issued herein on 26th May 2025, pending the determination of this case. 17.This matter will be mentioned for further directions on 13th October 2026 DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Kobia for RespondentOuko for Exparte ApplicantsNyabuto – Court Assistant