REPUBLIC OF KENYA IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA MISC APPL. NO. E359 OF 2025 UNITED ARYAN EPZ LIMITED.……………………………………………….… APPLICANT VERSUS NATIONAL TRANSPORT & SAFETY AUTHORITY………………………… RESPONDENT RULING 1. This ruling determines the Applicant’s Notice of Motion under Certificate of Urgency dated 07th November 2025, expressed to be brought under section 3A of the Civil Procedure Act, Section 5 of the Judicature Act, and all enabling provisions of the law. 2. The Applicant seeks the following orders: (a) Spent (b)That pending the hearing and determination of this Application, this Honourable Court be pleased to issue an order directing the National Transport and Safety Authority (NTSA) to transfer ownership of motor vehicle registration number KBV 556 Y to the Applicant (c) That this Honourable Court do issue an order compelling the National Transport and Safety Authority to effect the transfer of motor vehicle registration number KBV 556 Y previously registered in the name of Geoffrey Gitonga Theuri to the Applicant (d)That costs of this Application be provided for 3. The instant Application is grounded on the grounds on its face and the grounds set out in the Supporting Affidavit sworn by Amit Abedi on 07 th Kitale CMC Civil Suit No. E434 of 2022 Page 1 of 4 Ruling
page 1 of 4
November 2025. The gist of the Application is that the Respondent has declined to do a forced transfer of the suit motor vehicle despite the Applicant having complied with all the requirements for a forced transfer. 4. Despite the Respondent having been duly served with the instant Application, they did not respond to the instant Application. Be that as it may, this court still bears the duty of determining this matter. 5. This court has duly considered the material placed before it by the Applicant. It is this court’s considered view that the issues which commend to this court for determination are:a) Whether the instant Application is properly before this court b) Whether the instant Application is merited Whether the instant Application is properly before this court 6. In the course of writing this ruling, it came to the attention of this court that the substance of the instant Application is that the Applicant was seeking this court to order a public body (the Respondent) to perform a public duty which the Respondent had reportedly declined to perform. 7. The concern above was brought to the attention of the Applicant’s counsel; Mr. Olonyi, in open court on 15 th January 2026. Mr. Olonyi conceded that the Applicant was seeking an order of mandamus against a public body. 8. The law in this jurisdiction is that an order of mandamus is sought through a Judicial Review Application before the High Court, not through a Miscellaneous Application in the Magistrates Court. 9. The manner of instituting a suit or moving a court is not a procedural infraction capable of being cured under Article 159 (2) (d) of the Constitution or the Oxygen Principles under the Civil Procedure Act. This court finds support in Scope Telematics International Sales Ltd. -vsStoic Company Ltd & Another [2017] eKLR, where the Court of Appeal held that: Kitale CMC Civil Suit No. E434 of 2022 Page 2 of 4 Ruling
page 2 of 4
“The manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction. Obviously, overlooking a statutory imperative and the above authorities, the learned judge cannot be said to have exercised his discretion properly. There can be no other interpretation of rule 2. The application should have been anchored as a suit. It was not about what prejudice the appellant or and 2nd Respondent would suffer or what purpose the suit would have served. The discretion cannot be used to override a mandatory statutory provision. For these reasons, we are in agreement with the submissions of the appellant that the application was totally incurably defective.” 10. In any event, even if this court had the jurisdiction to issue the orders sought, it is noteworthy that hearing and determining the dispute between the parties herein will involve determining the parties’ substantive rights with the consequence that upon making a finding that the Respondent did not perform its public duty, a substantive order requiring the Respondent to perform the public duty it has reportedly failed to perform will issue. 11. Substantive orders are not issued in Miscellaneous Applications, as held in Rockland Kenya Ltd –vs- Commissioner General of KRA & Another (2020) eKLR. This position was also taken in Witmore Investment Ltd –vs- County Government of Kirinyaga & 3 Others (2016) eKLR, Limo J stated that; “……where a party such as an applicant herein seeks an order that in effect appears to resolve with finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy, raised in the application, it should have moved this court properly in the manner provided by the law.” Kitale CMC Civil Suit No. E434 of 2022 Page 3 of 4 Ruling
page 3 of 4
12. Similarly, in Nairobi West Hospital Ltd -vs- Joseph Karina & Another (2018) eKLR, the court held that a substantive order cannot be issued through a miscellaneous application. 13. The foregoing shows that the instant Application is not properly before this court for want of jurisdiction. Whether the instant Application is merited 14. Having already made a finding that the instant Application is not properly before this court for want of jurisdiction, this issue is moot. DETERMINATION 15. For the reasons above, the instant Application is struck out with no order as to costs READ, SIGNED, and DELIVERED in open court at Bungoma this 15 th day of January 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Olonyi h/b for Mr. Musundi for the Applicant C/A: Mr. Rioba DETERMINES Kitale CMC Civil Suit No. E434 of 2022 Page 4 of 4 Ruling
page 4 of 4