FRANCIS MUTISO MUTUNYA VS

a) That this honorable court be pleased to issue a conservatory order staying any further proceedings in Criminal Case numbers E1000, E237 and E262 of 2023 and E305 of 2022 in the Senior Principal Magistrate’s Court at Makindu.

b) That this Honorable court be pleased to issue a declaration that the Respondents have contravened the Petitioners’ rights under Articles 24, 27, 29, 31, 35, 40, 47, 48, 49 157/6 (1) and 244 of the Constitution of Kenya 2010.

c) That this Honorable court be pleased to issue a declaration that the Petitioners’ fundamental rights of protection from torture, inhuman and/or degrading treatment as provided for under Article 29 of the Constitution has been contravened by the Respondents.

d) That this Honorable court be pleased to issue a declaration that the Petitioners’ right to freedom and security as provided for under Article 29 of the Constitution has been violated by the Petitioners.

e) That this Honorable court be pleased to issue a declaration that the 3rd Respondent has abdicated his statutory, legal and constitutional duty and oath of office by failing to restrain police officers from Emali Police station from colluding, conniving and abetting the blatant violation of the Petitioners’ fundamental rights and freedoms aforesaid by the 1st and 2nd Respondents herein.

f) That this Honorable court be pleased to issue an order directing those criminal proceedings in Makindu SPMCC numbers E1000, E237 and E262 of 2023 and E305 of 2022 be stayed permanently.

g) That this Honorable court be pleased to issue an order of prohibition stopping the prosecution of criminal case numbers E1000, E237 and E262 of 2023 and E305 of 2022 in the Senior Principal Magistrate’s Court at Makindu.

h) That alternatively, this Honorable court be pleased to issue an order of certiorari to remove from the Senior Principal Magistrate’s Court at Makindu criminal case numbers E1000, E237 and E262 of 2023 and E305 of 2022 to bring them before this honorable court for quashing the charges preferred against the Petitioners.

i) That an order of prohibition does issue stopping the prosecution of criminal case numbers E1000, E237 and E262 of 2023 and E305 of 2022 aforesaid.

j) That a permanent injunction do issue restraining the criminal investigations department, police officers in Emali police station or any other police officer from arresting, incarcerating, harassing or carrying out further prosecutions against the Petitioners arising from or relating to land reference number Makueni/Nguu Ranch/1046 or any other matter incidental thereto.

k) That a declaration do issue that the 3rd Respondent and his agents are in breach of their constitutional mandate and oath of office and ought to be interdicted and charged for violation of law particularly Articles 25, 28 and 29 of the Constitution as read together with section 95(1), (2) and (3) of the National Police Service Act number 11A of 2011.

l) An order directing the 4th, 5th and 6th Respondents to cause investigations into the unlawful conduct of the agents of the 3rd Respondent particularly one Kennedy Nkonge, a police officer currently posted at Emali Police Station and take the requisite steps towards prosecution of the said officer in accordance with S.95 (1), (2) and (3) of the National Police Service Act aforesaid.

m) An order does issue that the Respondents jointly and severally do pay the Petitioners general damages at the discretion of this honorable court.

n) An order that Respondents do jointly and severally pay the Petitioners vindicatory/exemplary damages at the discretion of this honorable court.

o) That the Respondents be condemned to pay the costs hereof.

p) Any other orders that this honorable court may deem fit to grant.

The Preliminary Objection

2. The 1st and 2nd Respondents raised a P.O dated 01/03/2024 grounded as follows;

a) That the Petition offends the provisions of Order 53 rule 1 of the Civil Procedure Rules (CPR) 2010 for want of leave.

b) That the Petition offends the provisions of Order 53 rule 2 in regard to proceedings in Makindu CR 305 of 2022, CR 237 of 2023 and CR 262 of 2023.

c) That the 1st and 2nd Respondents are not state or non- state agencies performing any judicial or quasi-judicial functions under the constitution of Kenya or any written law as provided for in section 3(1) of the fair administration Action Act.

3. The Petitioners did not file any response to the P.O.

4. The P.O was canvassed through written submissions.

Submissions by the 1st and 2nd Respondents

5. The Respondents submitted that by the nature of remedies sought in this Petition, this is a case of Judicial Review under Article 47 of the Constitution. Reference was made to the Black’s Law Dictionary where ‘Judicial Review’ is defined as “the doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the Judiciary”

6. They submitted that they do not have power or authority under any written law to take any legislative or executive actions that can be subjected to judicial review. Further reference was made to the Black’s Law Dictionary at page 852 where Judicial Review is defined as “a court’s power to review the actions of other branches or levels of government especially the court’s power to invalidate legislative and executive actions as being unconstitutional. Secondly, a court’s review of a lower courts or administrative body’s factual or legal findings.”

7. The Respondents relied on the English case of Council of Civil Service Unions and Others -vs- Minister for the Civil Service (1983) UKHL6 (1984) 3 ALL E.R 935 where the House of Lords held that;

“An aggrieved person was entitled to invoke judicial review if he showed that a decision of a public authority affected him by depriving of some benefit or advantage which in the past he had been permitted to continue to enjoy and which he could legitimately expect to be permitted to continue to enjoy either until he was given reasons for its withdrawal and the opportunity to comment on those reasons or because he had received an assurance that it would not be withdrawn before he had been given the opportunity of making representations against the withdrawal.”

8. They submitted that they are not public authorities and were not involved in the decision to charge or not to charge the Petitioners.

9. They submitted that they did not exercise any administrative authority /action as provided for in the Fair Administrative Act and Article 47 of the Constitution or in regard to any claims by the Petitioners in this case.

10. Referring to the definition of a ‘respondent’ in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, they submitted that they are unsuited in so far as the remedies sought in the petition are concerned.

11. They submitted that the 1st Respondent only lodged a complaint in regard to the activities of the Petitioners, which he believed were criminal, and he left the decision on whether or not to charge in the dockets of the 3rd and 5th Respondents.

12. They submitted that this court lacks jurisdiction to grant any reprieves in regard to Makueni/Nguu Ranch/1046 as the parcel is the subject matter in Makindu ELC Case No. E038 and the case is pending hearing before a court of competent jurisdiction. That there are several mechanisms for addressing grievances within the Environment and Land Court system which are available to the Petitioners.

13. Relying on Order 53 rule 1, they submitted that it is compulsory to seek leave of court when seeking orders of mandamus, prohibition and certiorari. That the use of the word ‘only’ in the provision means that there is no other way to make such an application except with leave of court.

14. Referring to Order 53 rule 2 of the CPR and Sections 9(2) & (3) of the Law Reform Act, they submitted that the orders of certiorari are sought outside statutory timelines which should be within 6 months of the decision or proceedings sought to be quashed. They also submitted that the Petitioners have taken inordinate delay in seeking for orders of mandamus and prohibition in regard to the proceedings in Makindu CR 305/2022, CR E237 of 2023 and CR E262 of 2023. They relied on John Peter Mureithi & 2 Others -vs- Attorney General & 4 others [2006] eKLR where it was held that;

“As stated herein it is a requirement of the rule of law that law must be certain and predictable.  In the same way a respectable and reliable land tenure system must have the same traits of certainty, predictability and in addition stability…..I believe one of the pillars of the rule of law which the court should always uphold is the predictability of law so that individuals and other juristic persons can plan their lives and affairs on the basis of certainty of the applicable law.  On this ground also I would not exercise my discretion to grant the relief sought even if it was properly sought and properly grounded because the delay even by the known judicial review standards is inordinate. Limitation in judicial review actions is that of a reasonable time (except as regards certiorari orders and proceedings set out in Order 53 rule 2, which is six months).  Reasonable time will in my view vary depending on the reasons for the delay.  Where the decision being impugned has been implemented and third parties have come onto the scene the court should not intervene because speed and promptness are the hallmarks of judicial review.  Hardship to third parties should keep the court away.”

15. Reliance was also placed on Republic -vs- Kenya National Examinations Council ex parte Gathenji & Others (1997) eKLR where the Court of Appeal stated;

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision….. It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings….. Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

16. Further, they submitted that the Petition is an abuse of the court process because the litigants are not using the process for purposes of agitating for a right but for other extraneous reasons. They contended that the intention of the proceedings is to settle personal scores between the Petitioners and individual police officers from Emali police station who have been specifically named in the proceedings. Further, they contended that the proceedings are intended to distract, embarrass and confuse the 1st respondent with many court proceedings so that he gets discouraged in pursuing his rights over ownership of Makueni/ Nguu Ranch/1046 in the Environment and Land Court.

17. They submitted that there are no pending proceedings in Makindu CR E237 of 2023 and CR 262 of 2023 hence seeking any orders of stay, prohibition and/or certiorari is an abuse of court process. That this Petition has been filed to prejudice or delay the fair trial in Makindu Criminal proceedings 322 of 2022 and E1000 of 2023.

18. They submitted that the Petition offends the provisions of Order 2 rule 15 sub-rule (c) & (d) of the CPR and should be struck out with costs. They relied on County Council of Nandi -vs- Ezekiel Kibet Rutto & 6 Others (2013) eKLR where the court stated;

“A scandalous pleading in my view is a pleading that attempts to put the other party into bad light. It attempts disparage the other party to the proceedings. Such pleadings border on defamation. However, such disparaging words attributed to the other party must not be in issue in the suit. If they are in issue in the suit, then of course the words cannot be scandalous. They must be disparaging pleadings which are completely irrelevant to the proceedings in issue.

A frivolous pleading in my view is a pleading that completely lacks a legal foundation. It is a pleading that discloses no cause of action and serves no purpose at all. For example, if a litigant founds his cause of action on a law that has been repealed, then such pleading obviously lacks legal foundation and can be said to be frivolous.

A vexatious pleading in my view is a pleading whose only purpose is to annoy or irritate the other party to the suit. It may be, though not necessarily, a frivolous pleading or a scandalous pleading. Its main quality is that it stands out as a pleading only aimed at harassing the other party.

A pleading that is an abuse of the process of court in my view encompasses scandalous, frivolous, or vexatious pleadings but goes a little further to take care of situations that may not otherwise be encapsulated in the definition of the three preceding words. They can encompass situations where a litigant is using the process of court in the wrong way, not for purposes of agitating a right, but for other extraneous reasons.”

19. It was also their submissions that the Petitioners did not file any document in court to prove that the 2nd Petitioner had authority to act or swear documents on behalf of the other Petitioners. They urged the court to allow the preliminary objection.

Submissions by the Petitioners

20. They identified the following as the issues for determination;

a) Whether the application by the Respondents meets the threshold to qualify as a preliminary objection.

b) Whether generally the 1st and 2nd Respondents are properly enjoined and/or proper and necessary parties to the cause of action herein.

c) Whether the Petitioners’ case is predicated on order 53 of the Civil Procedure Rules.

d) Whether grant of leave was necessary before the Petitioners could originate this petition.

e) Whether the Petition offends the provisions of order 53 rule 2 with regard to proceedings in Makindu Cr 305 of 2022, Cr 237 and 262 of 2023.

21. As to whether the application meets the threshold of a P.O, they relied on Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 and Quick Enterprises Ltd -vs- Kenya Railways Corporation; Kisumu High Court Civil Case No. 22 of 2019 for the submission that a P.O is a pure point of law and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

22. They submitted that the P.O seeks the removal of the 1st and 2nd Respondents but contended that the orders cannot be granted because the two parties are crucial and necessary parties. That it was the complaints by the two Respondents which caused all the other actions by the other Respondents resulting in the injury/violations in the Petition.

23. They submitted that the actions of all Respondents are intrinsically and seamlessly bound such that removing the two Respondents from the proceedings will break the chain of causation and introduce the necessity of calling them as witnesses. That the effect of that will be unnecessary delays, expenses and inconvenience to the parties thus defeating the overriding objective in the Civil Procedure Rules as read together with Article 159 of the Constitution.

24. As to whether the 1st and 2nd Respondents are proper parties to the cause of action herein, they relied on Departed Asians Properties -vs- Jaffer Brothers Ltd (199) E.A for the submission that a party may be joined to a suit, not because there is a cause of action against it but because the party’s presence is necessary to enable the court to effectively and completely adjudicate upon and settle all the questions involving the cause or matter.

25. They submitted that orders of court cannot be issued against a person who was not a party and who did not actively and substantially participate in the proceedings. They relied inter alia on Civicon Limited -vs- Kivuwatt Limited & 2 others [2015] eKLR where the court stated;

“Again the power given under the Rules is discretionary which discretion must of necessity be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings.  Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined.  In the same vein, a party seeking joinder who fails to establish any right over or interest in the subject matter cannot be enjoined………………

From the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”

26. Further, they cited the Code of Civil Procedure by Mullah, 12th Edn at pages 497 and 549 where it is stated that;

“As a general rule, where claims against different parties involve or may involve a common question of fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matter be disposed off at the same time, the court will allow the joinder of the defendants subject to its discretion as to how the action is to be tried.”

27. The Petitioners also relied on Pizza Harvest Ltd -vs- Felix Midigo (2013) eKLR which cited Amon -vs-Raphael Tuck and Sons 1956 1ARE 273 where Lord Devlin J held at page 286-287;

“What makes a person a necessary party is not of course merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness…the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore must be a question in the action which cannot be effectually and completely be settled unless he is a party.”

28. They submitted that the tenets of natural justice and the spirit of the Constitution of Kenya demands a right to fair hearing of all parties and it does not aid the course of justice to lock out any party or issues on mere technicalities.

As to whether the Petitioner’s case is predicated on order 53 of the CPR, they faulted the Respondents’ submission to the effect that the Petition is a Judicial Review application.  They cited Chief of the North Wades Police -vs- Evans (Lord Brightman)  1982 1 WLR 1155 (CITATION)where the court held that;

“Judicial Review relates to decision making process…Judicial Review as the words imply is concerned not with the merits of the decision but the decision-making process.”

29. They submitted that in this case, no decision has been made by any court and there is nothing to be reviewed under Order 53 of the CPR. They contended that the Respondents have neither appraised themselves to the clear provisions of the law under which the Petition is filed nor the legal and factual foundations thereof.

30. They submitted that the Petition has been filed under section 3(2) of the High Court (Protection of fundamental rights and freedoms) Practice Directions 2013 which spells out the overriding objective of the rules as; ‘to facilitate access to justice for all persons required under Article 48 of the Constitution.’ They contended that the cause of action herein is a Constitutional Petition which does not require leave to originate.

31. They submitted that the Petition is grounded on Article 22 of the Constitution which states that every person has the right to institute court proceedings claiming that a fundamental freedom in the bill of rights has been denied, violated or threatened. They relied on Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the court stated that;

“(28)   It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history.  Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, …. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing.  Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons.”

32. As to whether grant of leave was necessary before filing suit, they relied on The National Social Security Ltd -vs- Sokomanja Ltd (2021) eKLR where the court stated;

“Judicial review as a relief is provided for in among others; Article 23 (3) of the Constitution of Kenya 2010, section 8 of the Law Reform Act Chapter 26 Laws of Kenya, section 13(7) of the Environment and Land Court Act 2011, section 7 of the Fair Administrative Action Act 2015 and the Common law.  In my view, no leave is required to seek judicial review as a relief under Article 23(3) of the Constitution where proceedings are instituted to enforce the Bill of Rights under Article 22 of the Constitution or where proceedings have been brought under section 7 of the Fair Administrative Action Act, 2015 for the review of an administrative action. Such leave is also not required under the Environment and Land Court Act 2011 before such relief is sought.

Leave is however still required in my view where an applicant for judicial review moves the court under the Law Reform Act Chapter 26 Laws of Kenya and Order 53 of the Civil Procedure Rules. Following the promulgation of the Constitution of Kenya, 2010 and Fair Administrative Action Act, 2015, applicants for judicial review orders have a choice. They can anchor their judicial review applications under the Constitution of Kenya 2010 and/or the Fair Administrative Action Act, 2015 in which case they will not need leave of the court or go for the same relief under the Law Reform Act Chapter 26 Laws of Kenya and Order 53 of the Civil Procedure Rules like in the present case and be bound to seek leave of the court.”

33. As to whether the Petition offends the provisions of order 53 rule 2 with regard to proceedings in Makindu Cr 305 of 2022, Cr 237 and 262 of 2023, they submitted that the 1st and 2nd Respondents are not state or agencies performing any quasi-judicial functions under the Constitution of Kenya or any written law as provided for in section 3(1) of the Fair Administration Act.

Analysis

34. Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 is the locus classicus on the threshold of a P.O. The Court of Appeal stated that;

“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit…..

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. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”

35. It is therefore well settled that a P.O must not be blurred with factual details needing to be established through the process of evidence.

36. The 1st and 2nd Respondents contended that the petition has offended the provisions of Order 53 of the CPR for want of leave. They submitted that the nature of remedies sought in the Petition shows that this is a case of judicial review under Article 47 of the Constitution.

37. Article 22 of the Constitution of Kenya provides that; ‘every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.’ Article 23(3) provides that; ‘in any proceedings brought under Article 22, a court may grant appropriate relief including …..an order for judicial review.’ Needless to say, the orders of judicial review include certiorari, prohibition and mandamus.

38. Evidently therefore, it is proper to seek an order for judicial review in a Constitutional Petition and no leave is required to institute such proceedings unless there is an express provision to the contrary in what is now known as ‘doctrine of exhaustion of remedies.’ In Bethwell Allan Omondi Okal -vs- Telkom (K) Ltd (Founder) & 9 others [2017] eKLR the Court of Appeal stated:

“The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established, before moving to the High court by way of constitutional petitions.”

39. In  Speaker of the National Assembly -vs- James Njenga Karume [1992] eKLR, the Court of Appeal had this to say on bypassing a statutory procedural provision:

“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

40. In this  case, there is no evidence or even a suggestion that the Petitioners have failed to exhaust others processes availed by other statutory dispute resolution mechanisms. Further, even if the petition is hinged on Article 47 of the Constitution, our courts have held that there is no need to seek leave in such instances; see the Sokomanja Ltd case (supra).

41. Secondly, the Respondents argued that the Petition offends the provisions of Order 53 rule 2 in regard to proceedings in Makindu CR 305 of 2022, CR 237 of 2023 and CR 262 of 2023.

42. Order 53 rule 2 of the CPR provides that;

Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

43. Going by the above discussion, the six-month requirement is only enforceable when the application for judicial review is made under order 53 of the CPR. It is my view that the condition is not applicable to constitutional petitions.

44. The third ground in the P.O was that the 1st and 2nd Respondents are not state or non- state agencies performing any judicial or quasi-judicial functions under the Constitution of Kenya or any written law as provided for in section 3(1) of the Fair Administration Action Act.

45. Having opined that the case before court is a Constitutional Petition and not a Judicial Review application under Order 53 of the CPR, Article 20(1) of the Constitution provides that ‘The Bill of Rights applies to all law and binds all State organs and all persons.’ Consequently, a Constitutional Petition can be filed against individual persons by someone claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. It therefore follows that to be a respondent in a Constitutional Petition, one does not have to be a state or non- state agency performing any judicial or quasi-judicial functions under the Constitution of Kenya or any written law as provided for in section 3(1) of the Fair Administration Action Act.

46. Additionally, the Respondents submitted that this court lacks jurisdiction to grant any reprieves in regard to Makueni/Nguu Ranch/1046 as the parcel is the subject matter in Makindu ELC Case No. E038 and the case is pending hearing before a court of competent jurisdiction. The prayer in the petition is for a permanent injunction to restrain the criminal investigations department, police officers in Emali police station or any other police officer from arresting, incarcerating, harassing or carrying out further prosecutions against the Petitioners arising from or relating to land reference number Makueni/Nguu Ranch/1046 or any other matter incidental thereto.

47. Evidently, the prayer relates to the criminal issues. I have not seen anywhere , this court has been invited to make determinations on matters which are the preserve of the Environment and Land Court.

48. In the circumstances I find that the P.O is not sustainable and is dismissed with costs.

49. Parties have been notified

Dated signed and delivered via CTS this 14th April 2025

Mumbua T Matheka

Judge

Court Assistant Chrispol