Promitto Limited v Capital Market Authority & 2 others (Appeal E004 of 2024) [2025] KECMT 8 (KLR) (6 March 2025) (Ruling)
Neutral citation:
[2025] KECMT 8 (KLR)
Republic of Kenya
Appeal E004 of 2024
P Lilan, Chair, G Wangong’u, C Gikonyo, P.Wanga & J Eboko, Members
March 6, 2025
Between
Promitto Limited
Applicant
and
Capital Market Authority
1st Respondent
Trade Sense Limited
2nd Respondent
Amana Capital Limited
3rd Respondent
Ruling
1.Promitto Limited, the applicant herein moved the tribunal by way of a Notice of Motion dated 23rd September 2024 seeking an order that the Capital Markets Authority (the 1st respondent) be required to show cause for its failure to investigate Trade Sense Limited as well as Amana Capital Limited, the 2nd and 3rd respondents respectively. As an alternative relief, the applicant also sought an order by the tribunal to direct the 1st respondent to investigate the conduct of the two other respondents and to suspend their licenses forthwith.
2.It is relevant to point that the application was lodged pursuant to Articles 47,50,159(1) & (2) of the Constitution of Kenya 2010, sections 11(h),13,26(8), 35, 35A (4), (16), (17) and (19) of the Capital Markets Act, Rule 4 of the Capital Market Tribunal Rules,2002 and enabling provisions of the law.
Background Facts
3.The applicant through its director James Benson Kagoni, avers that it held meetings with the 2nd & 3rd respondents and subsequently invested Kshs. 62,000,000.00 and USD 122,710 into the 3rd Respondent’s investment product that was created in partnership with the 2nd respondent. The Applicant stated that it held meetings the two respondents presented themselves as entities possessing the necessary statutory capacity, professional skills and expertise to enable the applicant invest in different market portfolios that would boost the applicant’s capital requirements. The two respondents were to invest the funds through the 3rd Respondent in portfolios that would yield an interest of 20% per month. Indeed, the Applicant was issued with an engagement letter dated 23rd October 2023. The Applicant subsequently opened an account with the 3rd respondent and on separate dates between October 2023 and May 2024, deposited an amount in excess Kshs. 62,000,000.00 and USD 122,710.
4.It is the applicant’s position that the two respondents invested the monies in different portfolios and as a result of their negligence, the Applicant incurred loss which was in excess of the amount set as the maximum drawdown i.e 25% of the total amount invested an equivalent of USD 73,431,27.The applicant avers that it tried to withdraw the principal balances but the two respondents declined to approve the same stating that the balance was depleted as a result of trading losses.
5.On account of the foregoing, the applicant through its advocates wrote a letter dated 1st August 2024 to the two respondents demanding payment of an accumulated sum of USD 1,298,639.21 within 24 hours, and default of which the applicant would take action not just to recover the amount but to also enforce sanctions which include revocation of their licenses for what was considered by the applicant to be a blatant violation of the law. The two respondents also instructed advocates who wrote back through a letter dated 5th August 2023 and requested for an additional five days to enable them to obtain further instructions and respond substantively to the issues raised in the demand letter. In the meantime, they also requested the Applicant’s advocates to hold onto any further adverse action.
6.According to the applicant, the two respondents did not respond to the demand within the five days’ reprieve as was sought by their advocates. Consequently, the applicant escalated the matter to the 1st Respondent by lodging a complaint through a letter dated 15th August 2024. In its letter of complaint, the Applicant, categorically stated that the two respondents who are also licensees of the 1st respondent were conducting their business affairs contrary to the Capital Markets Act, sector law and applicable license terms. Citing section 13 of the Capital markets Act, the Applicant through its advocates sought to have the two licensees investigated as per the law and that they be directed to immediately pay all the outstanding dues to the applicant. According to the Applicant, the two respondents also posed phenomenal danger to public interest through their conduct, and to preserve the integrity of the market, the applicant sought to have their licenses suspended forthwith.
7.No action appears to have been taken by the 1st respondent as was expected by the applicant. Consequently, vide an application dated 23rd September 2024, the applicant moved the tribunal to hear the matter and to direct the 1st respondent to show cause for its action or alternatively direct that it take action against the two licensees.
8.The 1st respondent lodged Grounds of Opposition dated 3rd October 2024 stating that the Applicant’s application is defective in form and substance for failure to comply with the provisions of the law. Besides the Grounds of Opposition, the 1st Respondent also filed a Replying Affidavit sworn on the 3rd October 2024 by Esther Manthi, a Senior Manager, Investigations & Enforcement in the Directorate of Market Operations at the Capital Markets Authority.
9.On the part of the objection dealing with form, the 1st respondent averred that the Application offends Rule 4 of the capital Markets Tribunal Rules, 2002 which expressly makes provisions that an appeal to the tribunal be lodged by way of a Memorandum of Appeal, accompanied by a statement of facts and that a Notice of Motion was a preserve for interim orders.
10.In terms of substance, it is the 1st respondent’s objection that the cause of action on alleged act of the omission on its part is not within the purview of the tribunal’s jurisdiction as envisaged under section 35 of the Act. It is also the 1st respondent’s position that it will be extremely unrealistic to demand the 1st respondent to take drastic action against the two licensees as sought by the applicant because under section 26(8) of the Act they have to be accorded a hearing before adverse action is taken.
11.Furthermore, the 1st respondent stated that this appeal was lodged within the 120 days, a period within which its Service Charter makes a provision to enable it review and investigate complaint.
12.Trade Sense Limited, the 2nd respondent herein did not participate in the proceedings despite having been served.
The Application dated 14th October 2024
13.In response to the Promitto’s application, the 3rd respondent, Amana Capital Limited objected to the jurisdiction of the tribunal through a Notice of Motion dated 14th October 2024 supported by the Affidavit of Selina Kulthum, the 3rd Respondent’s Chief Executive Officer. According to the 3d respondent, the tribunal lacked jurisdiction to hear the matter. The 3rd respondent averred that the miscellaneous application lodged by the Applicant is defective in substance and form and should be struck out with costs.
14.Going by the depositions in the supporting affidavit, the 3rd respondent up to being served with the demand letter not only sought for more time to respond to the issues raised but also lodged a separate complaint against the 2nd respondent through a letter dated 19th August 2024.
15.The 3rd respondent through its application therefore raised an objection to the tribunal’s jurisdiction on the ground that the matter is still pending active investigations by the 1st respondent and that the said alternative remedy provided by law ought to be exhausted before lodging an appeal to the tribunal.
16.Through a Replying Affidavit and Further Affidavit both sworn by James Benson Kagoni on the 22nd October 2024, the Applicant reiterated that the tribunal has the original jurisdiction to hear his motion and that this was pursuant to section 35(2) of the Act. According to the deponent the 1st respondent having failed to address his complaint, the Tribunal should exercise its mandate under the said provision and direct the Authority to show cause why action or decision to investigate its two licensees.
17.On 7th November 2024, and upon considering the jurisdictional questions raised the tribunal directed the parties to exchange written submissions on the 3rd respondent’s Notice of Motion dated 14th October 2024 and the matter was subsequently reserved for ruling on the 6th February 2025.
The Application dated 13th January 2025
18.In an interesting turn of events, as the matter was pending delivery of the ruling on the objections raised by the respondents, the Applicant moved the tribunal vide another Notice of Motion dated 13th January,2025 filed under a Certificate of Urgency seeking orders to arrest the delivery of the ruling slated for 6th February 2025 and to strike out the Application dated 14th October 2024, which was to be the subject of the ruling to be delivered.
19.The applicant in what appears to be a further response to the 3rd Respondent’s application of 14th October 2024 averred that the said application was premised on the provisions of the Capital Markets Tribunal Rules,2002 which came into operation on the 22nd November 2002. According to the Applicant, pursuant to section 2 of the Statutory Instruments Act, Chapter 2A Laws of Kenya, the CMT rules are statutory instruments. The Applicant therefore pleaded that section 21 of the Statutory Instruments Act provided for an automatic revocation of a statutory instrument ten years after the making of the statutory instrument.
20.Considering that the CMT rules were enacted on the 22nd November 2002, it is the Applicant’s position that they were operational until 23rd November 2012 when they stood revoked and the 3rd respondent cannot therefore rely on the same in support of its application to strike out the applicant’s case before the tribunal.
21.In buttressing its position further, the application made reference to sections of the Finance Act, 2023 which sought to repeal section 21 of the Statutory Instruments Act. However, it noted that in a judgment delivered by the High Court on the 28th November 2023 and later upheld by the Court of Appeal and Supreme Court, section 89 of the Finance Act was declared as unconstitutional, null and void.
22.The applicant therefore sought to have the 3rd Respondent’s application of 14th October 2024 to be struck out for being vexatious and a downright abuse of the court process.
23.The 3rd Respondent opposed this application by way of a replying affidavit sworn on the 5th Febraury,2025 by its Chief Executive Officer, Selina Kulthum, the 3rd Respondent’s Chief Executive Officer. The deponent reiterated their position that the Act establishes a clear dispute resolution mechanism in including an appellant process on point of law and that a party aggrieved by the decision of the 1st respondent only appeals to the tribunal once the decision is rendered by the 1st Respondent. The 3rd respondent also characterized the applicant’s new application as a diversionary tactic to deviate the tribunal’s attention from the issues raised in the application dated 14th October 2024 in which they sought to have the main application struck out for want of jurisdiction.
24.On the issue of the Statutory Instruments Act, the 3rd respondent deposed that courts have time and again held that Section 27 of the Act preserves the existing subsidiary legislation passed before the Act came into force and doses not therefore, apply to the CMT rules,2002. In any event Section 88 and 89 of the Finance Act, 2023 repealed Section 21 of the Statutory Instruments Act, thus the new application is anchored on a misapprehension of the law.
25.It was deposed further by the 3rd respondent that the applicant’s averments that the Supreme Court judgment invalidated the Finance Act is false and misleading. This it clarified to be so, because the Supreme Court’s decision set aside the orders of stay of execution issued on the 20th August, 2024 and effectively restored the provisions of the Act that had been declared unconstitutional. Consequently, Section 21 of the Statutory Instruments Act stands repealed by section 88 and 89 of the Finance Act,2023.
26.The 1st respondent stated further that Statutory Instruments (Exemption from Expiry) Regulations,2022 extend the validity of all statutory instruments made under the Acts of Parliament set out in its Schedule to have continuing purpose for a period of twelve months with effect from the 25th January 2023. Among these instruments are the Rules made pursuant to the Capital Markets Act.
27.Nevertheless, the 3rd respondent reiterated that reliance on the provisions of the Statutory Instruments Act does go into the issues raised in its application which was not only premised on the CMT rules but also anchored on the provisions of the Capital Markets Act as well as the Constitution.
Submissions filed by the _ Parties
28.The tribunal had previously issued directions that the 3rd respondent’s Notice of Motion dated 14th October 2024 be heard and determined on priority and that parties should file and exchange their submission on the same. However, the new application dated 13th January 2025 by the applicant, in our considered view, challenged the legal foundation of the 3rd respondent’s application dated 14th October 2024 and sought to have it struck out. Accordingly, the tribunal reviewed its earlier directions to the effect that the two applications be canvassed together by way of written submissions which the parties filed.
29.The applicant filed three sets of submissions, dated 22nd October,2024, 21st November 2024 and 5th Febraury,2025 in which it addressed both the issues raised in the 3rd respondent’s application dated 14th October 2024 as well as its own application of 13th January,2025. The 3rd respondent also filed two sets of submissions, for the application dated 14th November 2024 and 3rd March,2025. The 1st respondent also filed its submissions dated 22nd October 2024 in support of its Grounds of Opposition as well as the Replying Affidavit dated 3rd October 2024. For avoidance of doubt, the 1st Respondent told the tribunal that it is not opposing the Application dated 14th October 2024.
30.The tribunal has considered the arguments by the parties as contained in their submissions and supported by the authorities cited. In our considered view, the two competing applications as well as the Grounds of Objection raise two key questions;a.Whether section 21 of the Statutory Instruments Act,2023 is operational and consequently whether the Capital Markets Tribunal Rules 2002 are still operational;b.Whether the tribunal has jurisdiction to hear and determine the Application 23rd September 2024.c.Who should bear the costs of the two applications?
Determination of the Tribunal
Issue No.1: Whether the section 21 of the Statutory Instruments Act,2023 is operational and consequently, whether the Capital Markets Tribunal Rules 2002 are still operational
31.When the applicant lodged the new application under a Certificate of Urgency seeking to arrest the ruling that was pending before the tribunal. It is the Applicant’s case that by virtue of section 21 of the Statutory Instruments Act, the Capital Markets Tribunal Rules, 2002 are no more because they had been revoked automatically.
32.When Parliament enacted the Statutory Instruments Act (No.23 of 2013), the commencement date was stated to be 25th January,2013. Section 21 thereafter provided for an automatic revocation of statutory instruments as follows:
33.It is not disputed that by virtue of Section 2 of the Statutory Instruments Act, the Capital Markets Rules,2002 fall within the definition of statutory instruments.
34.The Applicant who is the originator of the main application before the tribunal ought to have been well aware of this position and the applicability of the said provision to the Capital Markets Rules,2002. We have noted from the record that indeed their own application is also filed under some of the provisions of the said rules as captured in the introductory part of this ruling.
35.However, we have also noted that in its application and the supporting affidavit, the Applicant explained that at the time of filing the matter, the Supreme Court was yet to deliver its judgment in a matter relevant to this issue in the case of Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR). (the Supreme Court judgment). Part of the issues the apex court was expected to address in that case was whether or not the Section 89 of the Finance Act,2023, which had repealed the section 21 of the Statutory Instruments Act, would remain declared as unconstitutional, null and void as per the previous judgments of the High Court and the Court of Appeal and which led to the Supreme Court case.
36.We have noted that the Supreme Court Judgment was delivered on the 29th October 2024 after the filing of this matter.
37.According to the Applicant, the Supreme Court judgment upheld the decisions of both the Court of Appeal and the High Court of Kenya to the effect that Section 89 of the Finance Act,2023 which had repealed section 21 of the Statutory Instruments Act was upheld to be unconstitutional, null and void. Consequently, the Applicant boldly asserted that Section 21 of the Statutory Instruments Act is still operational and the automatic revocation of the statutory instruments after 10 years also still applicable.
38.We have gone through the Supreme Court judgment as well as the judgments of the High Court and the Court of Appeal in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) [2023] KEHC 25872 (KLR) and National Assembly & another v Okoiti & 55 others [2024] KECA 876 (KLR).
39.As captured in the Supreme Court Judgment in the High Court [in its judgment delivered on November 28, 2023], issued orders declaring several sections of the Finance Act, 2023 including Section 89 as unconstitutional. At paragraph 14 the Supreme Captured this in part as follows:
40.On appeal, the Court of Appeal [in its judgment delivered on 31st July,2024], declared the entire Finance Act,2023 as unconstitutional. The court also dismissed the relevant appeals that had challenged the High Court’s declaration that sections 88 and 89 of the Finance Act,2023 are unconstitutional. Instead, the court held that the issues raised therein had been caught up by the doctrine of mootness following the introduction of Statutory Instruments(Amendment) Bill,2024, a Bill whose principle object was to amend the Statutory Instruments Act, Cap 2A.
41.The Supreme Court [in its judgment delivered on 29th October 2024] set aside the decision of the Court of Appeal that declared the entire Finance Act as unconstitutional. However, it affirmed the Court of Appeal’s finding that the questions relating to Section 89 of the Finance Act did not present any live controversies.
42.It is therefore clear to us that the contention by the Applicant that all decisions of the three superior court in effect declared Section 88 and 89 as unconstitutional is a misapprehension of the judgments.
43.We agree with the position taken by the 3rd respondent that the Supreme Court Judgment restored the provisions of the Finance Act,2023 [including sections 88 and 89 thereof] that had been declared as unconstitutional. Consequently, section 21 of the Statutory Instruments Act stands repealed by virtue of section 89 of the Finance Act,2023. This position is captured by the National Council for Law Reporting, the body charged with the authority to revise and publishes the Laws of Kenya from time to time. Among the Acts and subsidiary legislations in force as published by the Council on its website https://new.kenyalaw.org/legislation/ is Statutory Instruments Act, the Act was assented to on 14th January 2013 and commenced on 25th January 2013 and the latest amendments provisions s are captured as Amended by Finance Act, 2023 (Act No. 4 of 2023) on 1 July 2023; and Amended by Statutory Instruments (Amendment) Act, 2024 (Act No. 17 of 2024) on 27 December 2024.
44.The Applicant also advanced an argument that the Capital Markets Tribunal Rules 2002 having commenced operations on 22nd November 2002 stood automatically revoked on 22nd August,2020, (which is 10 years after the Statutory Instruments Act became effective on the 27th August 2010.
45.However, this issue has previously been determined by the courts and from the decisions we have seen, there has been a consistent finding of the High Court that Section 27 of the Statutory Instruments Act,2013 preserves the existing subsidiary legislation passed before it came into force by precluding automatic renovation as provided for under section 21(now repealed). We are seen the previous decisions of the court cited by the 3rd respondent in Vipul Kakad T/A Kavico Auto Spares & 328 others v Kenya Bureau of Standards [2017] KEHC 7370 (KLR), Richard Dickson Ogendo & 2 others v Attorney General & 5 others [2014] KEHC 7504 (KLR).
46.In another recent decision delivered on the 4th April,2023, the High Court (P.Mulwa,J.)in Geonet Communications Ltd v Communications Authority of Kenya; Safaricom PLC & another (Interested Parties) (Petition E368 of 2022) [2023] KEHC 3038 (KLR) also declined to uphold a similar argument that section 21,9 as read with section 27(2)] of the Statutory Instruments Act, automatically revoked the Kenya Information and Communications (Interconnection and Provision of Fixed Links, Access, and Facilities) Regulations, 2010. The judge held that the said regulations which had been in place for three years before the commencement of the Statutory Instruments Act could not be said to have been in place immediately before the enactment of the Act with consequent application of section 21 on automatic revocation. The words ‘immediately before’, therefore, connoted those events which happened just before the issue at hand.
47.Guided by the foregoing decisions, the tribunal therefore makes a finding that the Capital Markets Tribunal Rules 2002 are still valid and were not automatically revoked on 22nd August,2020 as argued by the Applicant. Consequently, the 3rd respondent’s application dated 14th October,2024 was properly filed properly before the tribunal.
Issue No. 2: Whether the tribunal has jurisdiction to hear and determine the Application 23rd September 2024.
48.A Jurisdictional issue has been raised by the 1st and 3rd respondents regarding the Applicant’s Notice of Motion 23rd September 2024. Before delving into the merits of that application, the tribunal therefore has to dispose of the jurisdictional issue. We follow the decision of the Supreme Court of Kenya in Civil Application No. 2 of 2012 (SK Macharia & Another Versus KCB & 2 Others which gave guidance on the area of Jurisdiction in the following words:
49.The common position in the depositions by both the 1st and the 3rd respondents is as captured in application dated 14th October,2024 and the Grounds of Opposition dated 3rd October 2024 is an objection to the tribunal’s jurisdiction on the ground that the subject matter is still pending active investigations by the 1st respondent and that that is an alternative remedy provided by law ought to be exhausted before lodging an appeal to the tribunal.
50.Jurisdictional issues as to when to approach the Capital Markets Authority, the Capital Markets Tribunal or the courts particularly on disputes arising under the Capital Markets Act have now been clarified in a number of previous court decisions. In the case Coffee Management Services Ltd v Exchange & another (Application E094 of 2024) [2024] KEHC 6269 (KLR), the High Court (Hon. Mr. Justice Ngaah) clarified the mechanisms available in law and in particular that there existed a three-tier appellate process to a person aggrieved by the decision of the Capital Markets Authority. The first tier of appeal is to the Authority. The second tier of appeal is the Capital Markets Tribunal and the jurisdiction of the court is invoked as an appeal in the third tier. The learned judged was persuaded that the applicant was well aware of other mechanisms for appeal or review.
51.The Applicant submitted that the Tribunal is established under Section 35A of the Capital Markets Act to exercise the jurisdiction under section 35 of the said Act. That we find to be partly the position but the jurisdiction of the tribunal is both original and appellate. In Alnashir Popat & 8 others v Captial Markets Authority [2016] KEHC 8398 (KLR) the High Court clarified that the Capital Markets Tribunal has both original and appellate jurisdictions under sections 35 and 35A of the Act. The Court relevantly stated as follows:
76.On closer review of the provisions of Section 35(1) above, I tend to agree with the Petitioners. That provision deals with matters of licensing and or trading of securities. However, the Tribunal has further functions as can be gleaned under Section 35A (4) of the Act. It states as follows;35A (4)The Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Authority or by any committee or officer of the Authority, on any matter relating to this Act, inquire into the matter and make an award thereon, and every award made shall be notified by the Tribunal to the parties concerned, the Authority or any committee or officer thereof, as the case may be. (emphasis)
76.In my understanding, firstly, a person may appeal to the Tribunal in regard to any decision made by the CMA in relation to any matter relating to the Capital Markets Act.
77.As I found elsewhere above, the Authority has the power to inquire into the affairs of any company that it has approved to trade its securities in NSE. In my understanding, that matter falls within the provisions of the Capital Markets Act and any person aggrieved by its decision may appeal to the Tribunal in accordance with the provision of section 35 A (4) of the Act. Likewise, the CMA could itself prompt the Capital Markets Tribunal on the same matter and without dealing with it, and it would still not amount, in my view, to an abdication of duty.
78.Secondly, and more importantly, the Tribunal has an original jurisdiction. The original jurisdiction may however only be prompted by the CMA or by any of its ad hoc committees or any other person who exercises delegated authority for and on behalf of CMA by way of a reference. Once again such reference may relate to any matter under the Capital Markets Act. To my mind therefore, the Tribunal has both appellate and original jurisdictions. The appellate jurisdiction is triggered by way of an appeal by any aggrieved person. The original jurisdiction is triggered by the Authority, its ad hoc committee or any person exercising delegated authority for and on behalf of the Authority through a reference.”
52.In light of the authority above, it is clear to us that the Applicant does not fall into any of the categories of the persons who can move the tribunal to exercise its original jurisdiction through a reference.
53.Although lodged as a miscellaneous application, the case by the Applicant is premised on the complaint lodged at the Authority through the letter dated 15th August 2024. In its letter of complaint, the Applicant, categorically stated that the two respondents who are also licensees of the 1st respondent were conducting their business affairs contrary to the Capital Markets Act, sector law and applicable license terms.
54.The Applicant’s case is captured in paragraph 13 where he states that the 1st Respondent has failed, neglected and or refused to initiate the process of investigating the 2nd and 3rd respondents, make a decision and/or suspend the 2nd and 3rd respondents’ licenses even after being petitioned by the Applicant. Clearly the Applicant is aggrieved by what they consider to be the 1st Respondent’s failure or neglect to initiate the investigations as per the complaint it lodged. The case is clearly an appeal lodged as a miscellaneous application before the tribunal. The primary question, however, remains whether the Applicant allowed the 1st respondent to investigate, and resolve the complaint it lodged before lodging a case at the tribunal.
55.From replying affidavits filed, the tribunal has noted that Applicant lodged the complaint on 15th August,2024 and subsequently filed the Application on 24th September 2024. At the time of filing the application dated 23rd September 2025 the 1st Respondent had both the Applicant’s Complaint letter dated 15th August 2024 as well a separate complaint through a letter dated 19th August 2024 by the 3rd Respondent against the 2nd respondent. The tribunal is cautious not to delve into the substance of the complaints, but we can clearly see that they both touch on the investment balances arising from the Applicant’s trading Activities with the 3rd Respondent and the 2nd Respondent.
56.Going by the foregoing undisputed facts, the tribunal is persuaded that the Applicant lodged the Application dated 23rd September 2024 when the 1st Respondent was still actively handling the subject matter of the complaints both from the Applicant as well as the 3rd respondent.
57.The 1st respondent has deposed in its replying affidavit that its Service Charter provides a period of 120 days within which to review and investigate a complaint. That period was far from being exhausted when the Application was lodged before the tribunal.
58.Needless to emphasise, that under Section 11(3) of the Act the 1st Respondent has the power to inquire, either on its own motion or at the request of any other person, into the affairs of any person which the Authority has approved or to which it has granted a license and any public company the securities of which are publicly offered or traded on an approved securities exchange or on an over the counter market.
59.We follow with the findings of the High Court in Cementia Holding Ag & Another v Capital Markets Authority & 3 Others [2014] KEHC 8066 (KLR) and agree with the position taken by both the 1st and 3rd respondents that only CMA can properly resolve the Applicant’s complaint/grievance at the first instance under the Capital Markets Act and then this tribunal can thereafter be properly seized of the dispute on appeal as is provided for under Capital Markets Act. To do otherwise would be to usurp the statutory mandate of 1st respondent and delve into a dispute that has not properly matured.
60.Having stated as above, it follows that this tribunal is not ready to assume jurisdiction at this stage and there is nothing more to say on the substance of the main Application dated 23rd September 2024 so as not to prejudice the 1st respondent’s investigations and inquiry.
Disposition
61.In the upshot, the tribunal makes the following orders: -a.the applicant’s Notice of Motion dated 13th January,2025 is dismissed for lack of merit and the 3rd respondent’s Notice of Motion dated 14th October,2024 is allowed.b.Arising from the order above, the applicant’s Notice of Motion date 23rd September,2024 is hereby struck out.c.The Applicant shall bear the costs of both the 1st and the 3rd respondents.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF MARCH 20251. HON. PAUL LILAN, MBS (CHAIRMAN) 2. HON. GODWIN WANGONG’U3. }HON. DR. CONSTANCE GIKONYO, PHD (MEMBER)4. HON. PAUL WANGA (MEMBER)5. HON. JOSEPHINE EBOKO (MEMBER)