1. The Applicant that is before this court for determination is dated 30th January, 2024 wherein the Applicant seeks orders that: -
a) …spent.
b) Notice to the Registrar be dispensed with owing to the urgency of the application.
c) The Exparte Applicant Haren Kumar Damji Mandavia be granted leave to apply for: -
i. An Order of Prohibition to issue against the Inspector General of Police or any other or officers serving under the Inspector General of Police or under instructions of the Inspector General whether in Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Spring Valley Police Station, Kitengela Police Station, Parklands Police Station or any other unit/station/ post/ officer of the National Police Service and any manner whatsoever on account of any matters pertaining the trade debts by the 1st Interested Party, Pafro Impex Trading Co.(k) Ltd to any one or all of the Interested Parties herein
ii. An Order of Prohibition to issue against the Inspector General of Police or any other or officers serving under the Inspector General of Police or under instructions of the Inspector General whether in DCI Headquarters, Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Sporing Valley Police Station, Kitengela Police Station, Parklands Police Station or any other unit/ station/ post/ officer of the National Police Service and any manner whatsoever on account of any matters pertaining the trade debts by the Applicant, Haren Kumar Damji Mandavia in his capacity as a director of the 1st Interested Party herein
iii. An Order of Mandamus compelling the 1st Respondent to cease the constant harassment by officers serving under the 1st Respondent or under instructions of the 1st Respondent, whether at the DCI Headquarters, Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Spring Valley Police Station, Kitengela Police Station, or Parklands Police Station.
d) The costs of this application be provided for.
2. The application is anchored on the grounds that are on the face of it and supported by a Supporting Affidavit of Haren Kumar Mandavia sworn on 30th January, 2024 where in the Ex –Parte Applicant deponed that he is a director in the Pafro Impex Trading Limited the 1st Interested Party (IP) in this matter. The company trades in various commodities and has had business transactions with the 10th, 12th 13th, 14th, 15th, 16th, 17th and 20th Respondents.
3. The Ex–Parte avers that the 1st Interested Party has entered into various agreements with the Respondents for provision of goods and services as follows:
i. Car purchasing agreement with the 4th, 5th and 8threspondents of Kshs. 6,927,000.00 leaving a balance of 5,305,500.00
ii. Supply of firewood agreement with the 10threspondent of Kshs. 1,250,000.00 where the IP has made a payment of Kshs 125,000.00 and also issued postdated cheques.
iii. Rehabilitation of a bore hole in Isinya with the 13threspondent
iv. Supply of poles with 15th and 16th Respondents and the IP has paid a total amount of Ksh. 22,800.00
v. Car hire agreement with the 20th Respondent for Kshs2,300,000.00 where the IP has made a total payment of Kshs 1,100,000.00 leaving a balance of Ksh. 1,200,000.00
4. It is the Ex-Parte Applicant’s case that he entered into debt repayment plans with the Respondents as follows: -
i. Repayment of Kshs. 1,500,000.00 with the 14threspondent on 30th October, 2023 and he has made progressive payments of KSHS. 60,000.00 and intends to make full payments in due time.
ii. With the 17th Respondent for motor vehicle hiring services from Premium Tours Kenya registration numbers KDM828N, KCV444, KDH274M settlement of Kshs. 645,000.00 where a total of 285,000.00 has been made by the IP.
5. The Ex- Parte Applicant argues that the 1st Interested Party has also issued Postdated cheques to the 16th Respondent that are yet to be banked.
6. The Ex Parte Applicant argues that his efforts to pay the outstanding debt have faced challenged owing to the financial constraints and challenges being faced by the Interested Party in its trade activities thus it is not able to meet its trade obligations.
7. It is also his case that the agreements were not entered into by himself in his but the agreements were entered into by the 1st Interested Party and the 4th, 5th, 8th, 10th, 15th, 16th, 17th and 20thRespondents.
8. The Ex-Parte states that despite the efforts to settle the debts the 4th, 5th and 8th Respondents engaged the 6th and 7th Respondents who in turn engaged the 9th Respondent; a DCI officer. The 10th Respondent reported their breach of contract to DCI Kiambu and the 11th Respondent took it up as a Police Officer. The 15th and 16th Respondents have also reported the breach of agreement to supply poles to the police. The 17th Respondent has also reported the breach of their agreement with Ex-Parte applicant to Spring Valley Police Station and to the DCI Headquarters. The 20th Respondent also reported to Karen Police Station that his vehicle was stolen me after which the Ex-Parte Applicant states that he returned the vehicle to one Mr. Mutura of Karen Police Station.
9. It is his case that the police from the DCI Headquarters, Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Spring Valley Police Station, Kitengela Police Station, Parklands Police Station have abused their power and authority under the law in seeking to settle trade debts and or disputes between the 1st Interested Party and 4th, 5th, 6th, 7th, 8th, 10th, 12th, 13th, 14th, 15th, 16th 17th and 20th Respondents by seeking, threatening to arrest, arresting and generally harassing and commencing criminal proceedings against him.
10. It is further the Ex-Parte Applicants case that Inspector General, National Police Service more particularly officers of the above mentioned police stations have abused their powers and the authority under the law and not within the mandate to settle and or involve themselves in an attempt to resolve issues pertaining to trade debts between private individuals or entities or to use its powers under the criminal jurisdiction to enforce, interpret and or resolve contracts and or contractual disputes.
11. The Ex-Parte Applicant thus prays that this court grants him leave to seek Judicial Relief.
The 4th, 5th, 6th, 7th, 8th Respondent’s case;
12. In opposition to the Application, the Respondents filed a Replying Affidavit dated 9th February, 202 sworn by Dilip Patel who as a director for the 8th Respondent.
13. The Respondents deponed that the 8th Respondent entered into a Hire Purchase Finance Facility Agreement with the 1st Interested Party on 10th May 2022 for the financing of a motor vehicle make Toyota Prado registration KDH 686N on hire purchase terms for the amount of Kshs. 6, 394,000.
14. The 1st IP defaulted on payment of monthly installments several times which prompted the 5th Respondent (Operation & Finance Manager of the 8th Respondent) to issue notice for repossession vide letter dated 20th February 2023.
15. The Respondents aver that the 1st Interested Party has issued the 8th Respondent with bouncing cheques and the outstanding amount as admitted by the Ex-Parte Applicant in their Supporting Affidavit stands at Kshs. 5,305,50.
16. The Respondents further aver that by dint of their Company Policy and terms of the Hire Purchase Agreement, they engaged an Auctioneer, the 6th and 7th Respondents to repossess and dispose the motor vehicle with registration number KDH 686N held as security to recover the outstanding debt owed to the 8th Respondent. A proclamation notice for repossession was issued dated 18thDecember, 2023 in accordance with the Auctioneers Act no. 5 of 1996.
17. The Respondents deponed that the Ex-Parte Applicant has hidden the motor vehicle making it difficult to repossess and dispose it.
The 14th Respondent’s case;
18. In opposition to the Applicants’ Application, the 14thRespondent filed a Replying Affidavit dated 20thFebruary, 202 sworn by Stephen Santamo Moiko and submissions dated 24th September 2024.
19. The 14th Respondent deponed that the Ex parte Applicant requested him to supply the Interested Party with timber worth Kshs.1,265,500 and on delivery of timber the Ex-parte Applicant issued him with two postdated Cheques as payment which he was requested not to bank the same on several occasions but when he noted that the cheques were about to go stale, he proceeded to bank them on 9th June 2023.
20. The cheques were not honoured which prompted the 14th Respondent to inquire the reason why and the reason given by his bank is that the banks were fraudulently issued.
21. It is the 14th Respondent’s case that he then approached the Ex- Parte applicant to resolve the outstanding payment and they entered an agreement where the Ex- Parte was to set up a standing order however to date he has only made a payment of Kshs. 60,000.
22. The 14th Respondent avers that he has not reported the issue of the outstanding debt to the police yet and he is aware that issuance of bouncing cheques is an offence under Section 316 (A) (1)(a)(4) of the Penal Code.
23. The 14th Respondent submit that Ex- Parte Applicant seeks to bar the police from conducting it duties granted by statutes and rely on the case of Republic V County Council of Kwale & Another Ex- Parte Kondo & 57 Others (1998) 1 KLR (e&l), Shish Vendors & 3 Others V Officer Commanding Police Station Kwale & Another and Postal Corporation of Kenya & Another (2024) KEELC 1192 (KLR)
24. It further submits that the Ex-parte Applicant does not demonstrate that he has an arguable case with reasonable chance of success and that the Application is frivolous, vexatious, hopeless and there is no case for consideration and should the Application should be dismissed with costs to the 14th Respondent.
Analysis and Determination;
Upon application and the responses thereto, the issue that stands out for determination is whether the Applicant is entitled to leave to institute Judicial Review proceedings or not.
25. The requirement that leave must be obtained before making an application for judicial review under Order 53 of The Civil Procedure Rules was 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.
26. Leave will only be granted if from 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 review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.
27. In the case of Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 Waki J. (as he then was) made the following findings:
“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.”
28. Article 245 (1) of the Constitution provides that; “There is established the office of the Inspector-General of the National Police Service. (b) shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
29. Section 24 and 35 of the National Police Service Act outlines the duties of the Kenya Police Service and Directorate of Criminal Investigations respectively which include maintaining law and order, protecting people and property, investigating crimes, collecting information on criminals, preventing and detecting crime, arresting offenders, enforcing laws, and carrying out any other tasks assigned by the Inspector General or other laws.
30. The Ex-Parte Applicant seeks to pursue an order prohibiting the said statutory offices from harassing, threatening, arresting, apprehending, detaining, commencing suit or proceedings against the Applicant herein in any manner whatsoever. This will amount to granting him an open-ended kind of immunity from the criminal justice system which offends Article 245 of the Constitution and Section 24 and 35 of the National Police Service Act.
31. Seeking leave to institute judicial review proceedings on account of any matters pertaining to the trade debts owed by first interested party Pafro Impex Trading Company Ltd to the 4th, 5th, 6th, 7th, 8th, 10th, 12th 13th, 14th, 15th, 16th, 17th and 20th Respondents herein and any other creditor of Pafro Impex Trading Company Limited of whatever description amounts to an abuse of the criminal justice system. Granting an order targeting to prohibiting matters of’ whatever description’ will give an unfair advantage to the Applicant against other citizens who might do business with the interested parties. The Judicial review court cannot countenance that.
Disposition;
32. The Applicant has not a case fit for the hearing of the substantive made out a case that is fit for judicial review.
Order;
The Application dated 30th day of January 2024 is dismissed with costs.
a) …spent.
b) Notice to the Registrar be dispensed with owing to the urgency of the application.
c) The Exparte Applicant Haren Kumar Damji Mandavia be granted leave to apply for: -
i. An Order of Prohibition to issue against the Inspector General of Police or any other or officers serving under the Inspector General of Police or under instructions of the Inspector General whether in Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Spring Valley Police Station, Kitengela Police Station, Parklands Police Station or any other unit/station/ post/ officer of the National Police Service and any manner whatsoever on account of any matters pertaining the trade debts by the 1st Interested Party, Pafro Impex Trading Co.(k) Ltd to any one or all of the Interested Parties herein
ii. An Order of Prohibition to issue against the Inspector General of Police or any other or officers serving under the Inspector General of Police or under instructions of the Inspector General whether in DCI Headquarters, Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Sporing Valley Police Station, Kitengela Police Station, Parklands Police Station or any other unit/ station/ post/ officer of the National Police Service and any manner whatsoever on account of any matters pertaining the trade debts by the Applicant, Haren Kumar Damji Mandavia in his capacity as a director of the 1st Interested Party herein
iii. An Order of Mandamus compelling the 1st Respondent to cease the constant harassment by officers serving under the 1st Respondent or under instructions of the 1st Respondent, whether at the DCI Headquarters, Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Spring Valley Police Station, Kitengela Police Station, or Parklands Police Station.
d) The costs of this application be provided for.
2. The application is anchored on the grounds that are on the face of it and supported by a Supporting Affidavit of Haren Kumar Mandavia sworn on 30th January, 2024 where in the Ex –Parte Applicant deponed that he is a director in the Pafro Impex Trading Limited the 1st Interested Party (IP) in this matter. The company trades in various commodities and has had business transactions with the 10th, 12th 13th, 14th, 15th, 16th, 17th and 20th Respondents.
3. The Ex–Parte avers that the 1st Interested Party has entered into various agreements with the Respondents for provision of goods and services as follows:
i. Car purchasing agreement with the 4th, 5th and 8threspondents of Kshs. 6,927,000.00 leaving a balance of 5,305,500.00
ii. Supply of firewood agreement with the 10threspondent of Kshs. 1,250,000.00 where the IP has made a payment of Kshs 125,000.00 and also issued postdated cheques.
iii. Rehabilitation of a bore hole in Isinya with the 13threspondent
iv. Supply of poles with 15th and 16th Respondents and the IP has paid a total amount of Ksh. 22,800.00
v. Car hire agreement with the 20th Respondent for Kshs2,300,000.00 where the IP has made a total payment of Kshs 1,100,000.00 leaving a balance of Ksh. 1,200,000.00
4. It is the Ex-Parte Applicant’s case that he entered into debt repayment plans with the Respondents as follows: -
i. Repayment of Kshs. 1,500,000.00 with the 14threspondent on 30th October, 2023 and he has made progressive payments of KSHS. 60,000.00 and intends to make full payments in due time.
ii. With the 17th Respondent for motor vehicle hiring services from Premium Tours Kenya registration numbers KDM828N, KCV444, KDH274M settlement of Kshs. 645,000.00 where a total of 285,000.00 has been made by the IP.
5. The Ex- Parte Applicant argues that the 1st Interested Party has also issued Postdated cheques to the 16th Respondent that are yet to be banked.
6. The Ex Parte Applicant argues that his efforts to pay the outstanding debt have faced challenged owing to the financial constraints and challenges being faced by the Interested Party in its trade activities thus it is not able to meet its trade obligations.
7. It is also his case that the agreements were not entered into by himself in his but the agreements were entered into by the 1st Interested Party and the 4th, 5th, 8th, 10th, 15th, 16th, 17th and 20thRespondents.
8. The Ex-Parte states that despite the efforts to settle the debts the 4th, 5th and 8th Respondents engaged the 6th and 7th Respondents who in turn engaged the 9th Respondent; a DCI officer. The 10th Respondent reported their breach of contract to DCI Kiambu and the 11th Respondent took it up as a Police Officer. The 15th and 16th Respondents have also reported the breach of agreement to supply poles to the police. The 17th Respondent has also reported the breach of their agreement with Ex-Parte applicant to Spring Valley Police Station and to the DCI Headquarters. The 20th Respondent also reported to Karen Police Station that his vehicle was stolen me after which the Ex-Parte Applicant states that he returned the vehicle to one Mr. Mutura of Karen Police Station.
9. It is his case that the police from the DCI Headquarters, Industrial Area Police Station, Kiambu Police Station, Kajiado Police Station, Isinya Police Station, Karen Police Station, Spring Valley Police Station, Kitengela Police Station, Parklands Police Station have abused their power and authority under the law in seeking to settle trade debts and or disputes between the 1st Interested Party and 4th, 5th, 6th, 7th, 8th, 10th, 12th, 13th, 14th, 15th, 16th 17th and 20th Respondents by seeking, threatening to arrest, arresting and generally harassing and commencing criminal proceedings against him.
10. It is further the Ex-Parte Applicants case that Inspector General, National Police Service more particularly officers of the above mentioned police stations have abused their powers and the authority under the law and not within the mandate to settle and or involve themselves in an attempt to resolve issues pertaining to trade debts between private individuals or entities or to use its powers under the criminal jurisdiction to enforce, interpret and or resolve contracts and or contractual disputes.
11. The Ex-Parte Applicant thus prays that this court grants him leave to seek Judicial Relief.
The 4th, 5th, 6th, 7th, 8th Respondent’s case;
12. In opposition to the Application, the Respondents filed a Replying Affidavit dated 9th February, 202 sworn by Dilip Patel who as a director for the 8th Respondent.
13. The Respondents deponed that the 8th Respondent entered into a Hire Purchase Finance Facility Agreement with the 1st Interested Party on 10th May 2022 for the financing of a motor vehicle make Toyota Prado registration KDH 686N on hire purchase terms for the amount of Kshs. 6, 394,000.
14. The 1st IP defaulted on payment of monthly installments several times which prompted the 5th Respondent (Operation & Finance Manager of the 8th Respondent) to issue notice for repossession vide letter dated 20th February 2023.
15. The Respondents aver that the 1st Interested Party has issued the 8th Respondent with bouncing cheques and the outstanding amount as admitted by the Ex-Parte Applicant in their Supporting Affidavit stands at Kshs. 5,305,50.
16. The Respondents further aver that by dint of their Company Policy and terms of the Hire Purchase Agreement, they engaged an Auctioneer, the 6th and 7th Respondents to repossess and dispose the motor vehicle with registration number KDH 686N held as security to recover the outstanding debt owed to the 8th Respondent. A proclamation notice for repossession was issued dated 18thDecember, 2023 in accordance with the Auctioneers Act no. 5 of 1996.
17. The Respondents deponed that the Ex-Parte Applicant has hidden the motor vehicle making it difficult to repossess and dispose it.
The 14th Respondent’s case;
18. In opposition to the Applicants’ Application, the 14thRespondent filed a Replying Affidavit dated 20thFebruary, 202 sworn by Stephen Santamo Moiko and submissions dated 24th September 2024.
19. The 14th Respondent deponed that the Ex parte Applicant requested him to supply the Interested Party with timber worth Kshs.1,265,500 and on delivery of timber the Ex-parte Applicant issued him with two postdated Cheques as payment which he was requested not to bank the same on several occasions but when he noted that the cheques were about to go stale, he proceeded to bank them on 9th June 2023.
20. The cheques were not honoured which prompted the 14th Respondent to inquire the reason why and the reason given by his bank is that the banks were fraudulently issued.
21. It is the 14th Respondent’s case that he then approached the Ex- Parte applicant to resolve the outstanding payment and they entered an agreement where the Ex- Parte was to set up a standing order however to date he has only made a payment of Kshs. 60,000.
22. The 14th Respondent avers that he has not reported the issue of the outstanding debt to the police yet and he is aware that issuance of bouncing cheques is an offence under Section 316 (A) (1)(a)(4) of the Penal Code.
23. The 14th Respondent submit that Ex- Parte Applicant seeks to bar the police from conducting it duties granted by statutes and rely on the case of Republic V County Council of Kwale & Another Ex- Parte Kondo & 57 Others (1998) 1 KLR (e&l), Shish Vendors & 3 Others V Officer Commanding Police Station Kwale & Another and Postal Corporation of Kenya & Another (2024) KEELC 1192 (KLR)
24. It further submits that the Ex-parte Applicant does not demonstrate that he has an arguable case with reasonable chance of success and that the Application is frivolous, vexatious, hopeless and there is no case for consideration and should the Application should be dismissed with costs to the 14th Respondent.
Analysis and Determination;
Upon application and the responses thereto, the issue that stands out for determination is whether the Applicant is entitled to leave to institute Judicial Review proceedings or not.
25. The requirement that leave must be obtained before making an application for judicial review under Order 53 of The Civil Procedure Rules was 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.
26. Leave will only be granted if from 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 review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.
27. In the case of Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 Waki J. (as he then was) made the following findings:
“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.”
28. Article 245 (1) of the Constitution provides that; “There is established the office of the Inspector-General of the National Police Service. (b) shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
29. Section 24 and 35 of the National Police Service Act outlines the duties of the Kenya Police Service and Directorate of Criminal Investigations respectively which include maintaining law and order, protecting people and property, investigating crimes, collecting information on criminals, preventing and detecting crime, arresting offenders, enforcing laws, and carrying out any other tasks assigned by the Inspector General or other laws.
30. The Ex-Parte Applicant seeks to pursue an order prohibiting the said statutory offices from harassing, threatening, arresting, apprehending, detaining, commencing suit or proceedings against the Applicant herein in any manner whatsoever. This will amount to granting him an open-ended kind of immunity from the criminal justice system which offends Article 245 of the Constitution and Section 24 and 35 of the National Police Service Act.
31. Seeking leave to institute judicial review proceedings on account of any matters pertaining to the trade debts owed by first interested party Pafro Impex Trading Company Ltd to the 4th, 5th, 6th, 7th, 8th, 10th, 12th 13th, 14th, 15th, 16th, 17th and 20th Respondents herein and any other creditor of Pafro Impex Trading Company Limited of whatever description amounts to an abuse of the criminal justice system. Granting an order targeting to prohibiting matters of’ whatever description’ will give an unfair advantage to the Applicant against other citizens who might do business with the interested parties. The Judicial review court cannot countenance that.
Disposition;
32. The Applicant has not a case fit for the hearing of the substantive made out a case that is fit for judicial review.
Order;
The Application dated 30th day of January 2024 is dismissed with costs.