High Court of Kenya v Assets Recovery Agency & 1 other

i). Spent ii). That this Honourable Court be pleased to grant the Ex-parte applicant leave to apply for an Order of MANDAMUS directed to the Director General of Assets Recovery Agency (ARA) compelling him/her to lift the caveats placed against Motor Vehicles Registration Nos. Nos. KCN 772X and KCA 604Y both registered in the Ex-parte Applicant/s names. iii). That this Honourable Court be pleased to grant the Ex-parte applicant leave to apply for an Order of MANDAMUS directed to the Director General of National Transport and Authority (NTSA) compelling him caveats placed against Motor to Safety lift the Vehicles Registration Nos. Nos. KCN 772X and KCA 604Y both registered in the Ex-parte Applicants names. iv). That this Honourable Court be pleased to grant the Ex-parte applicant leave to apply for an Order of Prohibition directed to the Respondents ACEC JR NO. E005 OF 2025- RULING 2

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by themselves, their servants and/or agents and be barred from further interference with the Exparte Applicant’s ownership possession and use of his Motor Vehicles Registration Nos. KCN 772X and KCA 604Y. v). That the cost of this application be provided. 3. The application is anchored in the Supporting Affidavit sworn by Francis Gachanja Mwangi on 7/10/2025 as well as the Statutory Statement of the even date. 4. The Ex-Parte Applicant averred that he is the registered owner of the motor vehicles KCN 772X and KCA 604Y. During a routine search of his assets, he discovered that caveats had been placed against both vehicles. Upon inquiry, the National Transport and Safety Authority (NTSA) informed him that the caveats had been lodged by the Assets Recovery Agency (ARA) under Reference No. ARA/INV/SEC/4/4/1/VOL/224. 5. The Ex-Parte Applicant further averred that he has never been served with any notice of investigation, has no unresolved disputes or debts relating to the vehicles, and did not acquire them as proceeds of crime. Despite instructing his advocates to ACEC JR NO. E005 OF 2025- RULING 3

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seek clarification from ARA, no explanation or response has been provided. 6. The Ex-Parte Applicant contends that the caveats were registered without notice or an opportunity to be heard, thereby violating his constitutional rights to fair administrative action (Article 47) and to protection of property (Article 40). He further argues that the Respondents acted contrary to the rules of natural justice, irrationally and in abuse of their statutory powers. 7. The caveats have prevented him from dealing freely with his vehicles, causing him financial hardship, loss, and mental anguish. He maintains that the Respondents have no legitimate interest in the vehicles and that no prejudice would be caused to them if the court grants the orders sought. Accordingly, he prays for orders compelling the removal of the caveats and restraining the Respondents from any further interference with his ownership and use of the vehicles. 8. The application is unopposed. This is so because, prior to the orders of Aburili J transferring this matter from the Judicial Review Division to this court, vide the ruling of 10/11/2025, the ACEC JR NO. E005 OF 2025- RULING 4

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1st respondent successfully moved court to withdraw its replying affidavit sworn on 4/11/2025. The 1st respondent indicated that it would file a new replying affidavit, but as at the date of this Ruling, none is on record. Consequently, the submissions filed by the 1st respondent are invalid, as they are not founded on any pleadings. In any event, submissions are suggestions that are neither persuasive nor binding on a court. 10. I have careful consideration to the Chamber Summons dated 7/10/2025 and the accompanying submissions filed by the ExParte Applicant. 11. At this point, the Court is not required to determine the merits of the parties’ respective positions, but simply to establish that the threshold for judicial Independent Electoral and review has Boundaries been met. In Commission (IEBC) vs National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, a decision of a 5-judge bench of the Court of Appeal was held: “In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and ACEC JR NO. E005 OF 2025- RULING 5

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as operationalized through the provisions of the Fair Administrative Action Act. The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both. We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non- exclusive judicial review approaches.” ACEC JR NO. E005 OF 2025- RULING 6

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12. The purpose of the leave requirement was aptly explained by the Court in Mombasa HCMCA No 384 of 1996: Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others thus: “The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though ACEC JR NO. E005 OF 2025- RULING 7

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misconceived. Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially.” 13. Considering the foregoing principles, and having considered the application for leave and the accompanying statement in light of the provisions of Order 53 of the Civil Procedure Rules and the fact that the application remains unopposed. 14. I reiterate that, at this stage, the Court is not concerned with determining the merits of the dispute. Rather, its task is confined to considering whether the Ex-parte Applicant has established an arguable case warranting the grant of leave. The applicable test is whether the application discloses a case ACEC JR NO. E005 OF 2025- RULING 8

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suitable for further investigation at the substantive inter partes hearing of the judicial review proceedings. 15. The complaint in the Ex-parte Applicant's case is that the caveats registered against his motor vehicles were entered without prior notice or an opportunity to be heard, thereby violating his constitutional rights to fair administrative action and to the protection of property. In my view, this is an arguable case warranting further investigation at the substantive hearing. 16. In the circumstances, and without making any definitive findings on the merits of the parties' respective positions, I am persuaded that the Ex-parte Applicant has demonstrated an arguable case that warrants the grant of leave. I therefore find that the threshold for the grant of leave has been met. 17. Accordingly, I to allow the application dated 7/10/2025. Costs shall be in the cause. It is so ordered. Dated, signed and delivered virtually this 30 th Day of June 2026. ACEC JR NO. E005 OF 2025- RULING 9

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R.E OUGO JUDGE In the presence of: For the Ex-parte Applicant Mr. Githinji 2nd Respondent Adan / Minah - Absent -For the 1st Respondent - Absent - C/As ACEC JR NO. E005 OF 2025- RULING 1 0

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