Shuhan Limited v Chief Magistrate’s Court, Thika & Birmingham Hotel Suites Limited [2017] KEHC 8034 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. 3 OF 2017

IN THE MATTER OF A JUDICIAL REVIEW APPLICATION FOR ORDERS OF CERTIORARIAND

PROHIBITION UNDER SECTION 8 AND 9 OF THE LAW REFORM ACT CHAPTER 26

LAWS OF KENYA AND ORDER 53 OF TH CIVIL PROCEDURE RULES, 2010

AND

IN THE MATTER OF ARTICLES 23, 40, 50(1) AND 165 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE ORDER OF THE COURT (HON BJ BARTOO R.M.)  ISSUEDON 7/11/2016

IN THE CHIEF MAGISTRATE’S COURT CIVIL CASE NO. 1161 OF 2016(THIKA)

BIRMINGHAM HOTEL SUITES LIMITED VERSUS SHUHAN LIMITED

BETWEEN

SHUHAN LIMITED.......................................................APPLICANT

VERSUS

THE CHIEF MAGISTRATE’S COURT, THIKA.........RESPONDENT

BIRMINGHAM HOTEL SUITES LIMITED...INTERESTED PARTY

JUDGMENT

A. INTRODUCTION

1. It is undisputed that the Ex Parte Applicant here (“Shuhan Limited” or “Shuhan” or “Ex Parte Applicant”) had a tenancy relationship with the Interested Party (“Birmingham Hotel Suites Limited” or, hereafter, “Birmingham” or “Interested Party”) since April, 2015. The parcel of land is Thika Municipality Block 9/247 on which stands shops and a hotel constructed by Shuhan. It would appear that the nature of the tenancy and the terms of the tenancy agreement are disputed – but the fact of the tenancy relationship is common to both parties.

2. It is also common to both Shuhan and Birmingham that a rent dispute arose at some point. Consequently, Shuhan, vide Ideal Auctioneers issued a proclamation on Birmingham dated 03/10/2016 for the sum of Kshs. 15,728,207. This was followed by a Notification of Sale by auction issued by the auctioneers on 25/10/2016. By virtue of this Notification, the auction was to take place at the premises on 08/11/2016.

3. To ward off the sale and auction, Birmingham, through their lawyers, approached the Chief Magistrate?s Court on 07/11/2016 with a suit seeking, among other things, an injunction restraining Shuhan and the auctioneers from disposing the proclaimed goods – and for an order restricting Shuhan from levying distress for rent from March, 2016 when, ostensibly, a dispute as to the rental terms became apparent.

4. As would be expected, Birmingham coupled its Plaint with a Notice of Motion filed contemporaneously with the Plaint seeking temporary relief – chiefly an order restricting Shuhan from disposing Birmingham?s goods as per the Proclamation of Attachment dated 3rd October, 2016 and Notification of Sale dated October 25th 2016.

5. Birmingham?s attorneys appeared ex parte in the first instance before the Honourable B.J. Bartoo, Resident Magistrate, on 07/11/2016, the same day that the suit and Notice of Motion were filed. The Honourable B.J. Bartoo, upon hearing Counsel for Birmingham ex parte, issued an order as follows:

1. THAT this application be and is hereby certified as urgent.

2. THAT pending the hearing of this application interpartes a temporary order of injunction be and is hereby issued restricting the respondents by themselves, their servants, agents or otherwise howsoever form disposing of the Plaintiff?s goods as per the proclamation of attachment dated October 3rd 2016 and Notification of Notice of Sale dated October, 25th 2016.

3. THAT interpartes hearing on 23rd November, 2016.

6. Naturally, when Shuhan and its attorneys got wind of the ex parteorders, they were incenced. Of Shuhan?s principal concern was the pecuniary jurisdiction of the Learned B.J. Bartoo: As a Resident Magistrate, her pecuniary jurisdiction is Kshs. 5,000,000 yet by Birmingham?s own pleadings, the value of the subject matter was at least Kshs. 15,728,207 which is the amount proclaimed.

7. When  the  matter  came  up  for  inter  partes  hearing  on 23/11/2016 before the Honourable V. K?Achuodho, also a Resident Magistrate, Shuhan?s attorney immediately took up a Preliminary Objection on the issue of jurisdiction. It would appear that Hon. K?Achuodho concurred and referred the matter to the Chief Magistrate for directions. Through some logistical or administrative mishaps (though Shuhan?s lawyers uncharitably call it “corrupt conniving and scheming”), the matter was, again, incorrectly listed before the Honourable K?Achuodho on 02/12/2016 and again on 09/12/2016. On the latter date, Honourable K?Achuodho referred it to the Honourable B.J. Bartoo so that she could give directions on what to do with her orders of 07/11/2016.

8. Honourable B.J. Bartoo responded by sending the matter to the Chief Magistrate, the Honourable T.W. Murigi. The file was finally placed before the Chief Magistrate on 15/12/2016. The Honourable Chief Magistrate was stumped by the unusual situation: she had a case where there were subsisting orders of the Magistrate?s Court which were admittedly issued by a Court which lacked jurisdiction to grant them. Feeling unable to revise or review the orders, the Honourable Murigi referred the matter to this Court. When the file was brought to this Court by way of a reference by the Honourable Chief Magistrate, however, this Court was of the view that there was a fatal procedural infirmity in the way the file had been brought to the High Court. I therefore send the file back to the Magistrate?s Court and advised counsels for both parties who were before me to find a procedurally acceptable way to place the matter before this Court.

9. Suhan ultimately elected to bring the matter to the attention of this Court by way of Judicial Review. They approached the Court vide a Chamber Summons dated 23/01/2017 seeking leave to bring Judicial Review Proceedings to:

a. THAT, an order of Certiorari to remove to the High Court and quashing the decision by Hon. B.J. Bartoo R.M issuing a temporary order of injunction restricting the ex parte Applicant by itself, its servants, agents or otherwise howsoever form disposing of the Interested Party?s goods as per the proclamation of attachment dated October, 3rd 2016 and Notification of sale dated October 25th 2016 and this Honourable court be pleased to expeditiously proceed to hear and determine the said suit.

b. THAT, an order of Prohibition be issued by this Honourable and/or any other Magistrate at the Chief Magistrate?s  court  at  Thika  from  presiding  over  the proceedings or  trial,  taking evidence,  issuing  orders and or determining the Chief Magistrate?s Civil case No. 1161 of 2016 -  Thika.

c. THAT, The Interested Party be ordered to furnish security for the suit it filed and to remit all outstanding rent pending the hearing and determination of the suit.

d. THAT, costs of this application be provided for.

10. On 24/01/2017, I permitted Suhan to bring the present Judicial Review Proceedings.

11. The Notice of Motion was eventually filed and attorneys for both Suhan and Birmingham appeared before me on 07/02/2017 for arguments. Mr. Mwaura urged the Application on behalf of Suhan and Ms. Nderu did so for Birmingham. The arguments were oral.

12. Mr. Mwaura made four main arguments in favour of the Application while Ms. Nderu, in addition to contesting each of the four grounds raised by Mr. Mwaura raised two issues in Preliminary Objection and, following my directions, argued it together with the Applications. I will briefly treat each of the six (four arguments by Mr. Mwaura and two objections raised preliminarily by Ms. Nderu) as a separate issues below. They are as follows:

a. Whether the orders by the Learned Magistrate B.J. Bartoo issued on 07/11/2016 are spent and therefore incapable of being quashed.

b. Whether orders for Judicial Review are available here given the fact that the Ex Parte Applicant had alternative avenues to seek redress of its grievances.

c. Whether the orders by the Learned Magistrate B.J. Bartoo issued on 07/11/2016 are susceptible to being quashed for violating the terms of Order 40, Rule 4(2) of the Civil Procedure Rules.

d. Whether the orders by the Learned Magistrate B.J. Bartoo issued on 07/11/2016 are susceptible to being quashed because the Learned Magistrate had no pecuniary jurisdiction to issue them.

e. Whether the Magistrates? Court has jurisdiction to hear and determine Thika CMCC No. 1161 of 2016 or whether jurisdiction is ousted by virtue of the tenancy agreement between Shuhan and Birmingham being a protected tenancy.

f.  Whether the orders by the Learned Magistrate B.J. Bartoo issued on 07/11/2016 should be reviewed for being Wednesbury unreasonable that is so unreasonable or irrational that no reasonable person acting reasonably would have issued it.

13. I will analyse each of the six issues in seriatim below.

B. ARE THE IMPUGNED ORDERS SPENT?

14. Ms. Nderu argues that the orders of the Learned B.J. Bartoo expired on 23/11/2016 as soon as the parties appeared inter partes before the Learned V. K?Achuodho.

Since then, she argues, the Learned Magistrates have merely been making orders that “status quo be maintained.”

As such, there is really nothing to quash. Instead, Shuhan should perfect the Notice of Motion dated 06/11/2016 for hearing and appear before the Honourable Chief Magistrate who has requisite pecuniary jurisdiction and argue it.

15. This is a clever argument – but, with respect, it is a specious one. The truth of the matter is that it is the impugned order of the Learned B.J. Bartoo issued on 07/11/2016 that established the status quo which Birmingham is happy to have maintained at present. The status quo ante was that goods of Birmingham had been proclaimed and were due for sale on 07/11/2016. The Orders of the Learned B.J. Bartoo restrained the sale thereby establishing a new status quo. Subsequent orders of the various magistrates who have handled the file have simply extended orders maintaining the new status quo established by the orders of the Learned B.J. Bartoo.

16. It therefore follows that each of the subsequent orders issued in Thika CMCC No. 1161 of 2016 has, inbuilt as part of its genetic make-up, part of the impugned orders by the Learned B.J. Bartoo. Consequently, in my view, it would be disingenuous to now argue that those orders have now lapsed since the only extant orders are the last ones ordering that status quo be maintained. The orders by the Learned B.J. Bartoo maintains their vitality and force through the subsequent orders to maintain the status quo they established: if those orders were in fact taken without jurisdiction and stand to be quashed, then, all subsequent orders based on them will fall with them. For this reason, it is simply not true that the impugned orders are spent and unavailable for quashing.

C. IS JUDICIAL REVIEW REMEDY AVAILABLE TO THE EX PARTEAPPLICANT?

17. Ms. Nderu?s second salvo is also a technical one: she argues that judicial review is only open to an aggrieved party where there is no other remedy. During the hearing I challenged Ms. Nderu to support her argument with authority – and she said that that position is trite – and that there are legion authorities establishing this but that she could not cite any off-head. Neither had she filed or brought any to court.

18. I am unaware of the doctrine Ms. Nderu was propounding. I am aware, though, of the iconic remarks by Nyamu, J. (as he then was) in Republic vs. TheCommissioner of Lands Ex Parte Lake Flowers Limited Nairobi HCMISC. Application No. 1235 of 1998:

Availability of other remedies is no bar to the granting of the judicial review relief but can however be an important factor in exercising the discretion whether or not to grant the relief.....The High Court has the same power as the High Court in England up to 1977 and much more because it has the exceptional heritage of a written Constitution and the doctrines of the common law and equity in so far as they are applicable and the Courts must resist the temptation to try and contain judicial review in a strait jacket.......Although judicial review has been bequeathed to us with defined interventions namely illegality, irrationality and impropriety of procedure the intervention has been extended using the principle of proportionality.....The court will be called upon to intervene in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations.......Even on the important principle of establishing standing for the purposes of judicial review the Courts must resist being rigidly chained to the past defined situations of standing and look at the  nature of the matter before  them.........Judicial  review is a tool of justice, which can be made to serve the needs of a growing society on a case-to-case basis......The court envisions a future growth of judicial review in the human rights arena where it is becoming crystal clear that human rights will evolve and grow with the society.

19. My suspicion, though, is that Ms. Nderu was referring to the now established position in our law that an applicant is required to first exhaust any administrative avenues of possible relief before seeking judicial review of administrative action. A related doctrine in our law is that where the law provides specific mechanisms for resolution of disputes, then the Courts will insist that those be exhausted first before resort to court is permitted. This rule is now codified in section 9 of the Fair Administrative Action Act, No. 4 of 2015. This position was adopted in Republic vs. National Environmental Management Authority CivilAppeal No. 84 of 2010)where the Court of Appeal held that:

...where there was an alternative remedy and especially where Parliament had 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 was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. – see for example R v BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD case. The Learned judge , in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute with respect we agree with the judge.”

20. Similarly, Abdallah Abubakar Miraj & Another v Kenya Ferry Services Ltd [2015] eKLRis in accord. In pertinent part, it states that:

“The Public Procurement and Disposal act 2005 contains very clear provisions with regard to public procurement. Should there be violation of its provisions...Once a claim is based on the Public Procurement and Disposal Act, one brings oneself within its provisions and any dispute pertaining to procurement must go before the Public Procurement Administrative Board; the law being that once a procedure is prescribed by law, one should use that procedure unless there are special circumstances to show that the matter is best dealt with in the High Court.

21. The situation in this case is clearly distinguishable from the situations in the two cited cases. The two cases dealt with situations where a statutory framework provides a dispute resolution mechanism and a party bypasses it and files for Judicial Review. Such is not the case here. Here, the primary claim is based on the argument that the court did not have jurisdiction. The Ex Parte applicants had a choice to either file and appeal or proceed by way of Judicial Review. They determined that Judicial Review was the more appropriate one because of the speed with which the issues could be placed before the High Court. I find no fault in that course of action.

D. ARE THE IMPUGNED ORDERS REVIEWABLE FOR VIOLATING ORDER 40 RULE 4(2) OF THE CIVIL PROCEDURE RULES

22. The  first  argument  by  Shuhan  is  that  the  Learned Bartoo?s impugned orders should be reviewed for the straightforward reason that being ex parte orders they impermissibly exceeded the time assigned in Order 40 Rule 4(2) namely fourteen days. Mr. Mwaura argued that the orders are therefore illegal and irregular and should be quashed on this score alone.

23. Order 40 Rule 4 is entitled “Notice of Application.” It provides as follows:

4. (1) Where the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated by the delay, it may hear the application ex parte.

2. An ex parte injunction may be granted only once for not more than fourteen days and shall not be extended thereafter except once by consent of parties or by the order of the court for a period not exceeding fourteen days.

3. In any case where the court grants an ex parteinjunction the applicant shall within three days from the date of issue of the order serve the order, the application and pleading on the party sought to be restrained. In default of service of any of the documents specified under this rule, the injunction shall automatically lapse.

24. In  this  case,  the  Learned  Magistrate  entertained Birmingham?s  application  for  injunction  ex  parte  on 07/11/2016. She then gave ex parte orders until 23/11/2016. This was seventeen (17) days away as opposed to the fourteen days prescribed by Order 40 Rule 4(2). The reason the Learned Magistrate gave the date 3 days beyond the allowed 14 was because that was the first date available when the Honourable Chief Magistrate would have been available to deal with the matter. This was due to the realization that she had no pecuniary jurisdiction to deal with the matter.

25. The reasons for the Learned Magistrate assigning a date beyond the fourteen-day regulatory period in Order 40 Rule 4(2) are certainly benign. Perhaps, however, it would have been more appropriate and more in keeping with due process if she had assigned a mention date within the fourteen days even if the court would not be in a position to hear arguments from the parties. This way, she would have had an opportunity to hear, at the earliest opportunity, the Ex ParteApplicant?s side of the story. To this extent, the orders by the Learned Magistrate were irregular.

26. However, I do not think that this, alone, would provide a reason to bring up to this Court and to quash the orders of the Trial Court without more. It would, probably, be a ground for appeal – and even then the appellate court may demand to see demonstration of harm but it does not form a substantive ground to seek judicial review of the Learned Magistrate?s orders.

E. ARE THE IMPUGNED ORDERS REVIEWABLE BECAUSE THE LEARNED MAGISTRATE EXISTED HER PECUNIARY JURISDICTION?

27. It is common between the parties that the claim in Thika CMCC No. 1161 of 2016 was for at least Kshs. 15,728,207 – the amount computed in the proclamation dated 03/10/2016. It is also common between them that the Learned B.J. Bartoo is a Resident Magistrate whose pecuniary jurisdiction is no more than Kshs. 5,000,000 by dint of section 8(1)(e) of the Magistrates? Court Act of 2015.

28. It therefore follows that the Learned Magistrate did not have the pecuniary jurisdiction to hear and determine Thika CMCC No. 1161 of 2016. If that is the case, then, she also did not have jurisdiction to give the orders that she gave on 07/11/2016.

29. Ms. Nderu did not try too hard to defend the orders of the Learned B.J. Bartoo only arguing that they had lapsed anyway. One can imagine, though, that one response to this argument would be that the Learned Magistrate took jurisdiction as a matter of necessity in order to prevent great danger, in other words, as an emergency measure to protect Birmingham from great danger. This would be a possibly plausible argument if the Learned Magistrate had then, immediately, sought to place the matter before the Magistrate with requisite jurisdiction the following day in keeping with the nature of the “emergency.” One can imagine that a magistrate conscientiously acting in such emergent situations would, then, record the reasons for the emergency and satisfy herself on the record that the only course of action open to her is the one she had taken and that it was taken as a last resort and in the interests of justice. Such an emergency would, also, call for the Learned Magistrate to direct the party benefitting from the orders to serve the adversary immediately and then have the matters placed before the court with the requisite jurisdiction with unmatched alacrity.

30. In this case, none of these steps were taken. It would appear that the Learned Magistrate, though aware of the limits of her jurisdiction, merely tried to give a date for the hearing inter partes which would have been convenient to the Chief Magistrate. The reasons for her need to take “incidental” jurisdiction to prevent great harm – if any – were not recorded or given. Instead, the Learned Magistrate proceeded as though she had jurisdiction and gave substantive ex parte orders which were to last for seventeen days. As it turns out, they have now lasted about ninety five (95) days as of today.

31. Nyarangi J. in In Owners of the Motor Vessel LilianS” vs. Caltex Oil (Kenya) Limited [1989] KLR 1stated this regarding jurisdiction:

Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…..

If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction….

32. Our  Supreme  Court  decision  In  the  Matter  ofAdvisory Opinions of the Supreme Court under Article 163 (3) of the Constitution – Constitutional Application No. 2 of 2011in citing with approval theLilian S Case has also stated:

The Lilian „S? case [[1989]KLR 1] establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity.

33. Lack of jurisdiction is, thus, one of the core reasons this Court can review the decision of a lower court or tribunal. One reminder of this is given in MunicipalCouncil of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001where the court of Appeal held:

Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…

34. Here, there is no doubt that the orders given by the Learned B.J. Bartoo on 07/11/2017 were given in excess of jurisdiction. As such, they cannot stand. The Learned Magistrate was acting on a matter on which the value of the subject matter exceeded the pecuniary jurisdiction permitted to her. Any orders she issued were, therefore, null and void. On this score, I would bring up her decision and orders dated 07/11/2016 to this Court for purposes of issuing an order of certiorari quashing them.

F. IS THE TENANCY AGREEMENT BETWEEN SHUHAN AND BIRMINGHAM A PROTECTED TENANCY?

35. Shuhan also argues that in its pleadings – and specifically in paragraph 6 of its Plaint – the Interested Party pleaded that it “has never been issued with a signed and/or registered tenancy agreement by the [Ex Parte Applicant] as required by law.” Given the contents of this paragraph, Shuhan argues, the Interested Party pleaded themselves out of the Court?s jurisdiction.  This is because, if true, as it might  be  taken  at  this  moment,  the  Interested  Party  is basically alleging that it is a protected tenant. If so, the Ex ParteApplicant argues, the matter should have been filed at the Business Premises Tribunal in the first place and not at the Chief Magistrate?s Court. Since parties must be bound by their pleadings, Shuhan therefore argues that the Interested Party has ousted the jurisdiction of the Court by its pleadings. The Court ought, then, to down its tools and let the matter proceed at the Tribunal.

36. The Interested Party concedes that paragraph 6 is in the terms submitted by Shuhan but denies the legal effect of the paragraph. Ms. Nderu argued that the Court is obligated to take into account the intentions of the parties before deciding whether the tenancy relationship anticipated by the parties is a protected one. What Ms. Nderu means is that here the parties intended that the lease agreement would be registered and that their relationship would not be a protected tenancy but that the tenancy agreement was not formally registered by Shuhan. What matters, then, for purposes of jurisdiction and forum for dispute resolution is the intention of the parties: that the parties intended to register the lease and that it was the Ex Parte Applicant?s omission that thwarted the plans.

37. For my part, I am happy to let this aspect of the case be litigated at the Chief Magistrate?s Court after the full development of pleadings. I say this in part because it would appear that Shuhan is not committed to that argument: in several parts of its application and in oral arguments before me, Mr. Mwaura has urged the Court to set down the matter for hearing in the High Court as it is the Court with the requisite pecuniary jurisdiction. Indeed, the Ex Parte Applicant in its first prayer to the Court urges the Court to “expeditiously proceed to hear and determine the said suit.”

38. Additionally, it would appear that there is factual dispute on who failed to act to perfect the tenancy agreement for registration. The Ex Parte Applicant alleges that it is the Interested Party who has refused to return the executed agreement while the Interested Party claims that it is the Ex Parte Applicant who has refused to have it registered. Whatever the case, it would appear that neither party desires, and, it is in the interests of neither party for the court to precipitately declare their relationship as a protected tenancy.

G. WAS THE IMPUGNED ORDER WEDNESBURY UNREASONABLE?

39. Shuhan also urged me to quash the impugned orders for being Wednesbury-unreasonable. A decision of an inferior tribunal or court is Wednesday-unreasonable (or irrational) when it is so unreasonable that no reasonable person acting reasonably could have made it (AssociatedProvincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). It is not enough that it is wrong or “merely” or seemingly unreasonable; it must be "so absurd that no sensible person could ever dream that it lay within the powers of the authority" (supra).

40. Can one really say, in the circumstances, that the decision and substantive orders of the Learned B.J. Bartoo (if the question of jurisdiction is bracketed) are so unreasonable that no Judicial Officer acting reasonably would issue them in the circumstances? Having looked at the record and the pleadings in the case, I must answer that question with an emphatic no. Another Judicial Officer might disagree that the orders were merited in the circumstances and an appellate court may well find the orders were wrongly issued but the orders are certainly not Wednesday-unreasonable. The Interested Party approached the Court facing imminent sale of its property and presented a plausible argument why such a sale would irredeemably injure them if an injunction was not issued temporarily. It was not irrational for the Learned Magistrate to conclude that interim ex parte orders were merited in the circumstances.

H. CONCLUSIONS AND DISPOSITION

41. In the end, therefore, the Court has reached the following findings:

a. The Orders of the Learned Honourable B.J. Bartoo issued on 07/11/2016 are not spent as they still have vitality through the extant status quo orders through which the effect of the original orders has been sustained. As such those orders are amenable to Judicial Review.

b. Judicial Review is an appropriate remedy in the circumstances of this case and is not barred by any judicial or statutory doctrines of exhaustion or any other doctrines barring availability of the remedy to the Ex ParteApplicant.

c. While the issuance of the impugned Orders ex parte for a period exceeding fourteen days was irregular, that would not warrant their quashing by way of Judicial Review.

d. The Learned Magistrate B.J. Bartoo acted in excess of her pecuniary jurisdiction when she issued the impugned orders. As such those orders are null and void and are amenable to Judicial Review.

e. The Court has made no finding on whether the business relationship between the Ex Parte Applicant and the Interested Party is a protected tenancy. The same will need to be determined a preliminary issue in the suit after full development of the pleadings.

f.  The decision and orders of the Learned B.J. Bartoo was not Wednesbury-unreasonable.

42. Consequently, the orders that recommend themselves to this Court are as follows:

a. An order for certiorari is issued removing to this Court and quashing the decision and orders by Honourable B.J. Bartoo issuing a temporary order of injunction restricting the ex parte Applicant by itself, its servants, agents or otherwise howsoever from disposing of the Interested  Party?s goods as  per the proclamation of attachment dated 03/10/2016 and Notification of Sale dated 25/10/2016.

b. An order of prohibition inhibiting the Learned Honourable B.J. Bartoo from presiding over the proceedings or trial, taking evidence, issuing orders and/or determining Thika CMCC No. 1161 of 2016.

c. The parties shall appear before the Learned Chief Magistrate, Thika Law Courts on 13/02/2017 to take directions on the hearing of the Interested Party?s Notice of Motion dated 06/11/2016.

d. By dint of Order (c) above, the requested order prohibiting all other magistrates at Thika Law Courts from presiding over the proceedings or trial, taking evidence, issuing orders and/or determining Thika CMCC No.1161 of 2016 is declined. Instead, the Chief Magistrate is specifically directed to preside over the suit and deal with any preliminary issues that may be raised before her including the issue of pecuniary jurisdiction.

e. In the interests of justice, the parties are directed to maintain the status quo until they appear before the Honourable Chief  Magistrate on 13/02/2016.  For avoidance of doubt this temporary relief shall automatically expire on 13/02/2016 and the Learned Chief Magistrate will be at liberty to give orders on the Notice of Motion dated 06/11/2016 as though it was being presented afresh on that day.

f.  The Interested Party shall pay the costs of this Application.

43. Orders accordingly.

Dated and delivered at Kiambu this 10thday of February, 2017.

........................

JOEL NGUGI

JUDGE