Anjum Shah,Jinit M. Shah, Mayur M.Shah, Neel J. Shah, Vikesh J. Shah, Niraj A. Shah & Rohin Chandaria v Capital Markets Authority; BOC Holdings, BOC Kenya PLC,Carbacid Investments PLC & Aksaya Investments LLP [2021] KEHC 6436 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E066 OF 2021

BETWEEN

ANJUM SHAH...........................................................................1ST APPLICANT

JINIT  M.  SHAH.......................................................................2ND APPLICANT

MAYUR  M.  SHAH..................................................................3RD APPLICANT

NEEL  J. SHAH..........................................................................4TH APPLICANT

VIKESH J. SHAH......................................................................5TH APPLICANT

NIRAJ   A.  SHAH.....................................................................6TH APPLICANT

ROHIN  CHANDARIA.............................................................7TH APPLICANT

VERSUS

THE  CAPITAL  MARKETS   AUTHORITY............................RESPONDENT

AND

BOC HOLDINGS.....................................................1ST INTERESTED PARTY

BOC KENYA  PLC..................................................2NDINTERESTED PARTY

CARBACID INVESTMENTS PLC......................3RD INTERESTED PARTY

AKSAYA INVESTMENTS LLP............................4TH INTERESTED PARTY

RULING

1. The Applicants herein state that they are shareholders of  BOC Kenya PLC, the 2nd Interested Party herein, and they have filed an application by way of a Chamber Summons dated 17th May 2021, in which they are seeking the following orders :

i. THAT this matter be certified as urgent and heard ex parte  in the first instance.

ii. THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an order under section 9(4) of the Fair Administrative Action Act, 2015 for the Applicants to be exempted from exhausting the remedy under section 35A of the Capital Markets Act (Cap 485A), Laws of Kenya in view of the exceptional circumstances  herein.

iii.  THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an order of CERTIORARI to remove into the High Court for the purposes of quashing the Respondent's decision to stay and/or otherwise suspend the transaction related to the Proposed Take Over made by Carbacid Investments PLC and Aksaya Investments LLP to acquire up to 100% of the Issued Ordinary Shares of BOC Kenya Plc ("the Transaction").

iv.  THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an order of CERTIORARI to remove into the High Court, for the purposes of quashing, the Respondent's action and/or decision of 12 March 2021, enforcing, seeking and/or purporting to enforce, section 35A of the Capital Markets Act (Cap 485A), Laws of Kenya in relation to the Transaction.

v.  THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an  order of PROHIBITION preventing the Respondent from enforcing, seeking  to enforce and/or relying on section 35A of the Capital Markets Act (Cap 485A), Laws of Kenya in relation to the Transaction, howsoever arising.

vi.  THAT this Honourable Court be pleased to grant leave to the Applicants to apply for an order of MANDAMUS pursuant Article 165 of the Constitution for the court to exercise its supervisory jurisdiction and call for the entire record and proceedings in Capital Markets Tribunal Appeal No. 2 of 2021- Kiuna Ngugi Kiuna v. The Capital Markets Authority & 2 Others and hear and determine the aforementioned Appeal to ensure the fair administration of justice.

vii.  THAT this Honourable Court be pleased to grant leave the Applicants to apply for a DECLARATION that reliance and/or enforcement of section 35A of the Capital Markets Act (Cap 485A), Laws of Kenya by any persons is unconstitutional and contrary to the principles of fair administrative action as enshrined in the Constitution and Fair Administrative Action Act, 2015 in view of the Capital Markets Tribunal not being properly constituted as contemplated in section 35A of the Act.

viii.  THAT the costs of this Application be provided for.

2. The said application is supported by a statutory statement dated 17th May 2021, and a verifying affidavit sworn on the same date by the 1st Applicant. I note that the Applicants are inter aliaseeking to be exempted from exhausting the remedy under section 35A of the Capital Markets Act, pursuant to Section (9)(4) of the Fair Administrative Actions Act. Section 35A of the Capital Markets Act establishes, and provides for the duties and powers of the Capital Markets Tribunal, to hear appeals from decisions made by the Capital Markets Authority, which is the Respondent herein.

3. It is consequently my view that arising from the provisions of Section 35A of the Capital Markets Act, the provisions on exhaustion of internal remedies of appeal and review in section 9 of the Fair Administrative Action Act, and the pending appeal before the Capital Markets Tribunal, the questions of exemption from the remedy provided by the said Tribunal, and of leave to commence judicial review proceedings requires to be canvassed inter partes.

4. In the circumstances, I hereby direct and order as follows:

I.The Applicants shall serve the Respondent and Interested Parties with theChamber Summons dated 17th May 2021, (ii) skeletal submissions on the said Chamber Summons (iii) a copy of this ruling and (iv) a hearing notice with fourteen (14) days of today’s date.

II.The Respondent and Interested Parties are granted leave to file and serve their responses to theChamber Summons dated 17th May 2021and skeletal submissions thereon within fourteen (14) days of service by the Applicant.

III.The Chamber Summons dated 17th May 2021 shall be heard virtually  on28th June2021 at 3 p.m.

IV.  In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the Applicant’s Chamber Summons dated 17th May 2021 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

V.All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to  the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comandasunachristine51@gmail.com.

VI.  The service of pleadings and documents directed by the Court shall be by way of personal service and electronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division at judicialreview48@gmail.com with copies to asunachristine51@gmail.com.

VII. The parties shall also be required to file their respective affidavits evidencing service in the Judiciary’s e-filing system

VIII.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for a virtual hearing on28th June2021 at 3 p.m.,and shall avail the parties the electronic link for the hearing.

IX.The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the Applicants by electronic mail by close of business on Thursday, 20th May 2021.

X.  Parties shall be at liberty to apply.

5. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  17TH  DAY OF MAY 2021

P. NYAMWEYA

JUDGE