Vincent Meroka Nyasani & 2 others v The Chief Magistrate's Court At Keroka

2. The applicants argue that the order is ultra vires, unlawful, irrational, biased, procedurally improper, and in violation of constitutional rights, including fair hearing, liberty, and protection from arbitrary detention. 3. The Application is supported by the affidavit sworn by Vincent Meroka Nyasani who narrates the details of the events leading to the order, including a contempt application by the 3rd Interested Party, court summons, and testimony showing that no election was conducted. The Applicants’ deponent avers that despite the said detailed explanation, the court ordered their immediate arrest, detention, and police investigations. The Applicants contend that they were neither parties to the original suit nor accorded a hearing, thereby rendering the arrest order illegal, punitive and without lawful basis. 4. They further assert the court exceeded its powers under Section 10 of the Magistrates Court Act, abused its discretion, and infringed constitutional provisions under Articles 10, 25, 27, 28, 29, 38, 39, 47, and 50. They maintain that the order amounts to civil jail without trial, violates their human dignity, and exposes them to the risks of loss of livelihood. The Applicants seek urgent judicial review to nullify the impugned order, prevent further detention, and protect their rights. 5. The Respondent did not enter appearance or file any response to the application. 6. The Interested Parties, on their part, opposed the application through the replying affidavit of the 1st Interested Party’s Chief Executive Officer and General Secretary, Mr. Harold Ndege, who outlined his familiarity with the matter owing to its connection to a related case, being Nyamira HCJR/E008/2024, concerning the disputed FKF Nyamira County elections allegedly held on 14th November 2024. 7. Mr. Ndege states that the Applicants previously sought judicial review orders in the said related case in order to validate the same elections that they now deny in the present proceedings, thus giving rise to contradictory positions and an abuse of court process. He highlights that affidavits from two Applicants confirm their participation in the contested elections, thus contradicting their current stance, and urges the court to note these inconsistencies under Section 60 of the Evidence Act. 8. He stresses that contempt of court is a serious matter and that arrest warrants were procedural to facilitate investigations, not findings of guilt, and further, that portraying the process as unconstitutional is misleading and is aimed at pre-empting lawful proceedings. Mr. Ndege affirms that the 2nd Respondent in the related case complied with all court orders and did not conduct the elections in question. He states that using judicial review to evade accountability undermines judicial authority and public confidence. 9. The Application was canvassed by way of written submissions which I have considered. 10. The ex-parte Applicants’ submitted that they were not parties to the case but were merely cited as “persons of interest,” and were neither heard nor given notice before the arrest orders were issued. They contend that the impugned orders are unlawful, irrational, ultra vires, procedurally unfair, and without jurisdiction thus violating the provisions of Articles 25, 47, 50, and 157(4) of the Constitution, as well as Sections 4 and 5 of the Fair Administrative Action Act, and lack support under Section 5 of the Judicature Act or Section 10 of the Magistrates Court Act. 11. The Applicants maintained that the trial court ignored a pending Preliminary Objection dated 15th November 2024 challenging jurisdiction under the exhaustion doctrine, and improperly extended interim orders. Citing the case of Pastoli vs. Kabale District Local Government Council & Others (2008) 2 EA 300, they argued that the decision was tainted with illegality, irrationality, and procedural impropriety. They further relied on the case of Githiga & 5 Others vs. Kiru Tea Factory Company Ltd https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19375/eng@2025-10-30 2

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Petition No. 13 of 2019, where the Supreme Court emphasized the non-derogable right to a fair trial and the requirement for procedural fairness while condemning “trial by ambush.” 12. They asserted that the magistrate acted irrationally by ordering arrest and investigations while at the same time holding them in custody for days before determining contempt, and failing to prioritize jurisdictional issues. They submited that the orders deprived them of liberty without due process, amounted to an egregious assault on their right to be heard, and were procedurally unfair, unreasonable, and unlawful. Accordingly, they prayed that the orders of 27th November 2024 be set aside and the prayers in their Notice of Motion dated 6th December 2024 be allowed as framed. 13. The Interested Parties, on their part, isolated the issues for determination to be; whether the Applicants approached the court with clean hands; whether the Respondent acted ultra vires or violated their rights, and whether judicial review orders could issue in the circumstances of the case. 14. They argued that the Applicants misrepresented facts by claiming that no elections occurred on 14th November 2024 while simultaneously seeking recognition of those elections in a related case, being Nyamira HCJR/E008/2024, thus amounting to approbation and reprobation. They noted that affidavits from Ednah Kerubo Ombati and Gabriel Oluoch confirmed the elections and the Applicants’ involvement thereby contradicting their stance. 15. It was submitted that the Keroka court acted within its powers in CMCC No. E201 of 2024 by issuing warrants of arrest for investigation into contempt of court, and that the FKF Board was not involved in the Nyamira elections and could not recognize them as they violated a court order of 8th November 2024. Reference was made to the decision in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR, for the position that judicial review examines procedure, not the merits. It was further submitted that the Applicants had not demonstrated any illegality, irrationality, or procedural impropriety by the court or Interested Parties. 16. The Interested Parties maintained that the Applicants’ conduct, including inconsistent affidavits and concealment of material facts, warranted censure. For this argument, reference was made to the decision in Shimmers Plaza Ltd vs. National Bank of Kenya Ltd [2015] eKLR on the obligation to obey court orders. It was the Interested Parties’ case that the Applicants failed to meet the threshold set for judicial review. They urged this court to dismiss the application with costs. 17. Vincent Meroka Nyasani, the 1st Ex Parte Applicant, filed a supplementary affidavit in response to the Interested Parties’ submissions, which he termed false, misleading, and made in bad faith. He maintained that no FKF elections took place in Nyamira County on 9th November 2024 due to a High Court order from Kitui, but after the order was vacated on 12th November 2024 and elections called for 14th November 2024. He annexed evidence such as circulars, press releases, and the winner’s declaration certificate to show the elections were authorized, overseen by FKF officials, and that he won the chairmanship. 18. He denied ever receiving any court order barring him from participating in the said elections and claimed none of the delegates or candidates were served with such orders. Nyasani described the elections as peaceful, with over 50 delegates and a high voter turnout. He argued that the FKF CEO Harold Ndege had no direct role in the elections and thus lacked standing to comment on them. 19. He stated that he was among the people who lodged an appeal (FKF Appeal Petition No. 16 of 2024) challenging alleged illegal actions by the FKF board, and in a related High Court case (JR/E008/2024) sought ratification of the elections. He recounted being unexpectedly called to the dock at Keroka on 27th November 2024 without a hearing, terming it illegal, unconstitutional, and a violation of his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19375/eng@2025-10-30 3

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rights. He emphasized lack of service or knowledge of the 8th November 2024 orders, asserting they were unenforceable. He denied the allegation that he had approached the court with unclean hands. 20. The 2nd and 3rd ex-parte applicants, Ednah Kerubo Ombati and Gabriel Oluoch, filed further written submissions in response to affidavits by the 1st interested party, the FKF Electoral Board, and its CEO, Harold Ndege, terming them false, misleading, and intended to misguide the court. They stated that Kerubo was the duly appointed and gazetted returning officer for FKF Nyamira County elections, while Oluoch was the presiding officer, both acting under FKF board authority. 21. They confirmed service with the Kitui High Court orders of 8th November 2024 halting the elections scheduled for 9th November, and affirmed that no such elections took place. They however stated that after the orders were vacated on 12th November and that the FKF board authorized them to proceed with Nyamira elections on 14th November 2024 by sending election materials, funds for facilitation, and clear instructions. They confirmed that elections were conducted successfully, results submitted to FKF, and that both applicants were paid for their services. 22. They clarified that they are also interested parties in JR/E008/2024, fully associating themselves with related affidavits, and accused the FKF board of attempting to shift blame for a contempt case filed on 19th November 2024. They emphasized that the current CEO lacked standing to comment on the elections as he was not part of the board at the time in question. They also claimed they were not parties to the Keroka proceedings, were not served with court orders or warrants, and were denied a hearing, resulting in the board using them as scapegoats. They maintained that the elections on 14th November 2024 were lawfully conducted under FKF board authority and in full compliance with its directives. A. Issues for Determination 23. Having considered the pleadings, affidavits and submissions, the following issues arise for determination: a. Whether the subordinate court in Keroka CMCC No. E201 of 2024 had the jurisdiction to issue the impugned orders of 27th November 2024 (directing the Applicants’ arrest, ordering investigations, and extending earlier orders) in the manner that it did. b. Whether the process leading to the impugned orders met the constitutional and statutory thresholds of procedural fairness and due process under Articles 25, 47 and 50 of the Constitution and sections 4–5 of the Fair Administrative Action Act. c. Whether the Applicants are disentitled to relief for want of candour/clean hands on account of the Interested Parties’ complaint of approbation and reprobation regarding the elections of 14 November 2024. d. Whether, in the circumstances, the public‑law remedies of certiorari and prohibition are available and appropriate; and e. Who should bear the costs of the proceedings. B. Analysis and Determination Issue 1: Jurisdiction to issue the impugned orders 24. It is trite that jurisdiction is foundational; without it a court must “down its tools” as any orders issued without jurisdiction are a nullity. (See Owners of Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1. Contempt of court proceedings are quasi‑criminal in nature and therefore attract https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19375/eng@2025-10-30 4

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strict procedural safeguards. Even though subordinate courts have limited statutory power regarding contempt proceedings, Section 10 of the Magistrates’ Courts Act requires an applicant to establish the following conditions: i. The existence of a clear and unambiguous court order; ii. Knowledge of that order by the contemnor; iii. Deliberate breach of disobedience of the order; and iv. Observance of fair process before punitive steps are taken. (See Samuel M.N. Mweru & others vs. National Land Commission & 2 others [2020] eKLR; Shimmers Plaza Ltd vs. National Bank of Kenya Ltd [2015] eKLR). 25. In the instant case, the record placed before this Court shows that on 27th November 2024 the trial court, in contempt proceedings to which the Applicants were not parties, ordered their immediate arrest and directed police investigations on the premise that they were “persons of interest,” and simultaneously extended earlier ex parte orders. I note that no application naming the Applicants as contemnors, no charge, and no prior notice to them was shown. 26. My finding is that by purporting to direct investigative steps against non‑parties, while contempt proceedings were pending, the trial court arrogated a power not sourced in section 10 of the Magistrates’ Courts Act, the Judicature Act, or any procedural rule placed before this Court. I find that the trial court’s action was a jurisdictional error and an illegality within the meaning of Pastoli vs. Kabale District Local Government Council & Others (2008) 2 EA 300 wherein it was held that illegality, irrationality and procedural impropriety are grounds of judicial review. On this ground alone, the impugned orders cannot stand. Issue 2: Procedural fairness and due process 27. Procedural fairness is entrenched by Articles 47 and 50 of the Constitution and implemented by sections 4 and 5 of the Fair Administrative Action Act. Courts have taken the position that courts and tribunals must not ambush persons with adverse orders without notice and a fair opportunity to be heard. This is the position that was stated in Githiga & 5 Others vs. Kiru Tea Factory Company Ltd, SC Petition No. 13 of 2019 where it was held that the right to a fair trial is non‑derogable and that there should be no “trial by ambush”. 28. In the classic formulation in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR the court observed that judicial review scrutinises the decision‑making process. 29. In the present case, it was not disputed that the Applicants were not named as parties before the trial court and were not served with any allegation of contempt, and further, that save for the 1st Applicant who happened to be present in court at the time the impugned orders were given, no notice was sent to the applicants to notify them that orders affecting their liberty would be sought. They were however arrested ostensibly “for investigations” without being heard. I find that such a course offends Articles 25(c), 47 and 50(1) of the Constitution, and fails the Pastoli case (supra) standard for procedural propriety. It equally falls afoul of the dictum that reasons and notice are integral to legality when rights are at stake. Issue 3: Whether “unclean hands” bars relief 30. The Interested Parties urged that the Applicants blow hot and cold by on one hand contending in these proceedings that elections were not held while at the same time seeking validation in Nyamira HCJR/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19375/eng@2025-10-30 5

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E008/2024. From the affidavits as finally joined, the Applicants’ consistent position is that no elections were held on 9th November 2024 (owing to Kitui High Court orders), but elections were held on 14th November 2024 under FKF Board oversight. It is instructive to note that this Court is not sitting to determine the merits of the FKF electoral contest but the lawfulness of the Keroka court’s process. 31. As the Court of Appeal stated in Municipal Council of Mombasa (supra), judicial review is concerned with how the decision was made, not whether it was correct on the merits. I find that the “clean hands” objection therefore does not defeat public‑law relief where, as in this case, there are established breaches of jurisdiction and fair process. Issue 4: Availability and suitability of certiorari and prohibition 32. In Republic vs. Kenya National Examinations Council ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR it was held that certiorari lies to quash a decision made without jurisdiction or in breach of the rules of natural justice. Prohibition, on the other hand is prospective as it restrains a tribunal or court from continuing to act unlawfully, but does not quash what is already done. 33. In the present case, I have already found that the impugned orders of 27th November 2024 were issued ultra vires and in breach of due process. I find that certiorari is appropriate to remove and quash the said order. Prohibition is likewise apt to restrain any further enforcement or continuation of contempt steps founded on those void orders or undertaken against the Applicants without due process. This accords with the principle that public power must be exercised fairly and within the four corners of the law. 34. I have also considered the principle in Shimmers Plaza (supra) on obedience to court orders and I find that the principle does not salvage orders made without jurisdiction or obtained in a manner that violates non‑derogable fair‑trial guarantees; rather, it governs parties’ conduct once valid orders exist. I further find that on the facts presented, the Keroka court’s approach did not meet the threshold set in Mweru case (supra) for clarity, notice and hearing in contempt processes. Issue 5: Costs 35. Costs follow the event. The Respondent (the trial court) filed no response and, in principle, costs are seldom visited upon a subordinate court acting judicially. The 1st Interested Party opposed the application and invited the Court to uphold the impugned process. In the circumstances, the Applicants shall have the costs of the motion as against the 1st Interested Party. There will be no order as to costs against the Respondent. C. Disposition a. b. An order of certiorari is hereby issued removing into this Court and quashing in entirety the orders made on 27 November 2024 in Keroka CMCC No. E201 of 2024, including (a) the direction for the immediate arrest and detention of the Applicants; (b) the direction to the OCS Gachuba Police Station and DCIO Keroka to conduct investigations into the Applicants’ alleged involvement in elections “contrary to court orders”; and (c) the extension of the orders of 8 November 2024 insofar as the same targeted or affected the Applicants without notice and hearing. An order of prohibition is hereby issued restraining the Chief Magistrate’s Court at Keroka, the Interested Parties, and/or the police from enforcing or acting upon the quashed orders of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19375/eng@2025-10-30 6

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27 November 2024 or from commencing or continuing any contempt proceedings or arrest/ investigative steps against the Applicants founded on those orders, unless commenced afresh in strict compliance with the Constitution, the Magistrates’ Courts Act, the Judicature Act, and the requirements set out in Mweru (supra) and Githiga (supra) regarding clarity of order, notice, service/knowledge, and an opportunity to be heard. 36. c. For avoidance of doubt, nothing in this judgment determines the merits of any dispute about the conduct or validity of FKF elections; it addresses only the lawfulness of the Keroka court’s decision‑making process. d. Costs of the application are awarded to the Ex‑parte Applicants as against the 1st Interested Party; no order as to costs against the Respondent. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19375/eng@2025-10-30 7

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