Republic v Registrar of Companies & 1 other

b. AN ORDER OF MANDAMUS does issue for the purposes of compelling the 1st Respondent herein, the Registrar of Companies to reinstate 400 ordinary shares in the 2nd Respondent, RNR Developers Limited to the ex– parte applicant herein. c. Pending the hearing and determination of this application and the substantive motion herein, temporary orders of injunction do issue barring the Respondents, their agents or any other persons acting on their behalf from transferring shares, disposing off property or otherwise interfering with the 2 nd Respondents shares and assets. 2. The Application was supported by a Statutory Statement and verifying affidavit of even date by Ramesh Devshi Varsani. 3. It is deponed that on 3rd March 2020 the 2nd Respondents unilaterally passed a resolution to remove the Applicant as a Director of the company and that his ordinary shares in the company be forfeited despite the fact that the shares were paid up at all times and therefore the option to forfeit did not avail to the company or other shareholders. 4. The Applicant contested his removal vide a complaint filed with the Registrar of companies against the unlawful forfeiture of the shares culminating to the Registrars decision dated 7th August 2020 directing reinstatement of the shares. 5. An appeal was lodged by the 2 nd Respondent in the High court Misc. E547 of 2022 challenging the decision of the 1 st Respondent. In its decision dated 30 th June 2023, the court upheld the decision of the Registrar. 6. The Applicant however claims that, that notwithstanding, his shares were removed from the company records contravening both the Registrars and Court decision. HCJR NO. E040 OF 2026 2|Page

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7. The matter was canvassed by way of written submissions where the parties have reiterated their positions in the pleadings. 8. The 2nd Respondents thereafter filed a Preliminary Objection on the grounds that the application is fatally defective and bad in law as it offends the provisions of Section 9 of the Law Reforms Act, cap 26 and Order 53 Rule 2 of the civil Procedure Rules, 2010. 9. Further to this, the 2nd Respondent avers that the application has been filed outside the mandatory six months period, contrary so Section 9 of the Law Reform Act. 10. In his sworn Affidavit, Rajesh Patel, the Director of the 2 nd Respondent, avers that the Application has failed to disclose to the court that the shares were indeed reinstated after the High Court Ruling of 30th June 2023 and that the said ruling also held and directed that the 2 nd Respondent, was free to reconsider its decision of forfeiting unpaid shares back to the company afresh and make a properly guided decision following due process. 11. That upon the 2nd Respondent restructuring its shareholding afresh, an audit revealed that the Applicant had indeed not paid up for shares and such shares originally allotted to the Applicant were forfeited upon following due process and the changes effected on the register. 12. Going by the record, only the Ex-parte applicant filed submissions while the respondents did not file. On the last mention date in court, the parties sought instead for a ruling date. 13. In his written submissions, the Ex-parte Applicant further supported his claim for leave by stating that leave is intended to sieve out trivial applications being brought before court for consideration. He relied on the case of HCJR NO. E040 OF 2026 3|Page

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Republic v County Council of Kwale & another; Kondo & 57 others (ex parte ) (miscellaneous civil application 384 of 1996) [1998] KEHC (KLR) (2 February 1998 (Ruling) where it was held: “the purpose of the 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, vexatious 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.” 14. The Applicant submits that there is a clear case of infringement of right and interest by the registrar of companies in refusing or neglecting to implement its decision. He submitted further that on the matter of temporary injunction issued barring transfer of shares and assets of the 2nd Respondent. The CR – 12 annexed indicate that changes are ongoing in the shareholding of the 2 nd Respondents without the Applicants consensus. 15. Lastly, the Applicant submits that the assets of the 2 nd Respondents are being disposed of without the involvement of the Applicant who is similarly a rightful owner. 16. The Applicant supported his argument by depending on the decision in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) emphasizing the three classic requirements of order of injunction that the court acts to preserve property in status quo. The Applicant therefore maintains that failure to grant orders may lead to more people being involved with the 2nd Respondent and operating without authority. 17. Having carefully considered the parties pleadings and submissions, I have isolated the following issues for determination: HCJR NO. E040 OF 2026 4|Page

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a. Whether the Preliminary objection raised by the 2 nd Respondent is merited b. Whether the Applicant has made a case to warrant the reliefs sought. c. Whether a temporary injunction should issue barring transfer of shares. d. Who should bear the costs 18. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted. 19. At this stage of the court process the court is only obligated to establish whether the application meets the threshold to warrant a Judicial Review. The court is not mandated to determine the merit of the parties’ positions. As it was held in Independent Electoral and Boundaries Commission (IEBC) vs National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, a decision by a 5-judge bench of the Court of Appeal it 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 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 HCJR NO. E040 OF 2026 5|Page

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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.” 20. The reason for the leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows: “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, vexatious 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 administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave may only be granted therefore if on the material available 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 HCJR NO. E040 OF 2026 6|Page

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review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.” 21. From the material before Court there is evidence of a statutory obligation imposed upon the Respondent as there are correspondences demonstrating demand and nonperformance. The claim raises issues of failure to act, which properly fall within the scope of mandamus. An order of mandamus issues to compel performance of a public duty imposed by statute where there is refusal or neglect. Accordingly, I am of the opinion that the Applicant has demonstrated a prima facie case deserving further interrogation. 22. On the matter of seeking an order of certiorari quashing the decisions by the 1st Respondent, Registrar of Companies to effect the forfeiture of 400 ordinary shares in RNR Developers Limited belonging to the ex – parte applicant. To award such orders and grant Judicial Review, the Applicant has to show that indeed there was an illegality, irrationality and impropriety. 23. As well established in Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300, the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held: “In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, HCJR NO. E040 OF 2026 7|Page

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where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in nonobservance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.” 24. Based on available court documents the 1 st Respondent went back on their previous decisions where they had upheld the requests of the applicant and instead did not act on those decisions. In My opinion the matter seems to raise a point of contention and is therefore open for debate. 25. In Meixner & Another vs. Attorney General [2005] 2 KLR 189, the Court expressed itself as hereunder: “A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power.” 26. The 2nd Respondent raised a preliminary objection to Application on the basis that it was filed outside the mandatory six months period contrary to section 9 of the Law Reform Act. According to the court records, the HCJR NO. E040 OF 2026 8|Page

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application for leave was filed on 16 th February 2026 and yet the decisions to expunge the Applicant as a shareholder was made on 25th October 2024. Indicating a delay of nearly one and a half years. 27. The circumstances in which a preliminary objection may be raised was explained by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, as follows: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 28. As Lord President Rodger put it in Swan v Secretary of State for Scotland 1998 SC 479, 487: “It is, of course, the case that judicial review proceedings ought normally to be raised promptly and it is also undeniable that the petitioners let some months pass without starting these proceedings. None the less, in considering whether the delay was such that the petitioners should not be allowed to proceed, we take into account the situation which time was allowed to pass”. 29. Under Section 7(3) of the Fair Administrative Actions Act, this Honorable Court is vested with the absolute judicial discretion to enlarge time in the interest of justice. Summarily dismissing this application on a timeline technicality, the Respondent is erroneously asking this Court to abdicate its discretionary powers, which is a clear misapplication of the law regarding preliminary objections." 30. Having considered the evidence placed before the court in this application, I am in agreement that the said delay was HCJR NO. E040 OF 2026 9|Page

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not sufficiently accounted for. However, based on the above reasoning, I am of the considered view that the delay nonetheless should not use be against the applicant or to deny him the redress sought. 31. As was held by Justice C.W Githua in Nasieku Tarayia v the Board of Directors Agriculture Finance Corporation & Agriculture Finance Corporation Judicial Review 248 of 2012: “It is worth pointing out at this juncture that even where leave is granted, the court at the end of the substantive proceedings for judicial review is entitled in the exercise of its discretion to refuse to grant judicial review remedies where there is evidence to show that the applicant sat on his/her rights and failed to seek relief in good time and with due diligence.” 32. As to whether leave should operate as stay, I have taken into account the position taken in Taib A Taib V The Minister for Local Government & Others Mombasa HCMISCA No. 158 of 2006 that: “The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken.” 33. The Applicants have demonstrated that the Respondents have made or intend to make decisions that would warrant an order of stay. The Applicants have shown that the 2 nd Respondents has continuously made changes in the HCJR NO. E040 OF 2026 10 | P a g e

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shareholding as is established in the annexed CR – 12 without the Applicants consensus. I therefore grant the order that the leave granted herein do operate as stay. 34. Based on the foregoing I dispose of the application dated 16th February 2026 as follows: a. The Preliminary Objection is found to be unmerited and therefore dismissed in exercise of the court’s discretionary powers on the matter. b. The Applicants are hereby granted leave to apply for an Order of MANDAMUS issue for the purposes of compelling the 1st Respondent herein, the Registrar of Companies to reinstate 400 ordinary shares in the 2nd Respondent, RNR Developers Limited to the ex-parte applicant herein. c. Leave is granted for an Order of CERTIORARI quashing the decisions by the 1st Respondent, Registrar of Companies to effect the forfeiture of 400 ordinary shares in RNR Developers Limited belonging to the ex – parte applicant d. Pending the hearing and determination of this application and the substantive motion herein, temporary stay do issue barring the Respondents, their agents or any other persons acting on their behalf from transferring shares, disposing off property or otherwise interfering with the 2 nd Respondents shares and assets. e. The substantive motion to be filed within 14 days from the date of this motion HCJR NO. E040 OF 2026 11 | P a g e

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f. The costs of this Application to abide in the outcome of the main motion. Dated, Signed and Delivered Virtually on this 2 nd day of July, 2026. HON. T. W. OUYA, OGW JUDGE In the presence of: Aira Godfrey for Exparte Applicant Wambugu for Ms. Owuor for 2nd Respondent Nyabuto – Court Assistant HCJR NO. E040 OF 2026 12 | P a g e

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