1. The application that is before this court for determination is the one dated 5th of November 2022 wherein the Applicant is seeking the courts leave to apply for:-
An ORDER OF PROHIBITION directed to the Attorney General, the Director of Public Prosecutions and the Inspector General of Police or any other officer or officers serving under the inspector general office whether in Nairobi, Nairobi's DCI, and more specifically Officers in Charge of the following Police Stations hereunder listed: Nairobi Area Police Station, Isinya Police Station, Industrial Area Police Station Nairobi, DCI Headquarters, Parklands Police Station, or any other police station within the Republic of Kenya from harassing, threatening, arresting, apprehending, detaining, commencing suit or proceedings against the Applicant herein in any manner whatsoever on account of any matters pertaining to the trade debts owed by first interested party PAFRO IMPEX TRADING COMPANY LTD to the 2nd and 3rd Interested Parties herein and any other creditor of Pafro Impex Trading Company Limited of whatever description and costs.
The application is vehemently opposed.
2. The applicant is a Director of the first interested party and it is his case that on various dates, his company and the interested parties entered into business.
3. He admits that he was supplied with various commodities and he owes the interested parties money.
4. He admits that the company fell into arrears for the goods supplied to the company.
5. This has not sat well with the creditors being the interested parties who have engaged the services of the police to recover the debt.
6. The applicant is troubled because of the manner in which the authorities, including the police, are being used to recover debt, which is business.
7. The applicant argues that he has made an attempt to settle the debt. This has not gone well with their creditors who remain disgruntled and very dissatisfied.
8. The interested parties have repeatedly deployed the police to his premises in Kisaju to recover the debt.
9. In the process of attempting to recover the debt they have gone beyond their statutory mandate by carting away some of his goods unprocedurally.
10. He is also in trouble because the police are using unorthodox methods that are causing damage to his business reputation.
11. At one point, police caused personal injuries to an employee of the first interest party.
12. The applicant argues that he has made numerous Mpesa payments and bankers payments to the interested parties.
13. He has reached out to the interested parties who belong to his community in an attempt to settle the matter out of court to no avail.
14. The foregoing informs the need to seek for orders of prohibition.
The 3rd interested party’ ’case:
15. The third interested party opposes the case vehemently.
16. The 3rd party supplied goods worth over Kshs.15 million to the first interested party who has refused to pay for the same.
17. The third party argues that it used to get the goods from the sixth interested party, on an arrangement that it would supply the same goods to the 1st interested party.
18. It would then pay the 6th interest party using the money received from the first interested party.
19. It is its case that 3rd interested party that the applicant has failed to pay, and the amount remains outstanding, since the 1st interested party only made small initial payments and then started issuing bouncing cheques.
20. The 3rd interested party is in a predicament since it has issued bouncing cheques to the sixth interested party who has since lodged a complaint with the police against it.
21. According to the 3rd interested party, the Application and frivolous and that the same should be disallowed.
The 5th and the 6th interested parties case:
22. They oppose the application and argue that their Respondent statutory outfits with the mandate to do the arrest investigation and the prosecution, and they should not be stopped by the applicant.
23. It is that office of the director of public prosecution is an independent office with a mandate to take appropriate action towards sharing that crime is prosecuted in the law.
24. It argues that they argue that the police have a duty to arrest, and they’re doing their work and they should not be stopped by the applicant.
25. Reliance is placed on the case of Republic v Chief Magistrate Milimani Commercial Courts & 2 Others Ex Parte Fredrick Bett [2022] eKLR, the court referenced a previous judgment by Ngaah J in a different case, HCJR Case No. E087 of 2021, AAR Insurance vs Public Procurement Administrative Review Board, Secretary IEBC and Zamara Risk and Insurance Brokers Limited Interested Parties (unreported). In that case, Ngaah J stated that judicial review remedies are discretionary and that the court has the discretion to examine the intended application for prerogative orders. He further stated. the court must weigh the need for public authorities to perform their functions with the rights and interests of individuals. If the court finds that the rights and interests of individuals may have been violated, it will grant leave to proceed with a substantive motion for judicial review.
26. Article 157(10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act, the Director of Public Prosecutions has the power to initiate criminal proceedings without needing consent from anyone else. He is expected to act independently and should not be seen as being influenced by anyone else.
27. Article 245(4)(a) of the Constitution states that no one can tell the Inspector General how to investigate crimes. Section 24 and 35 of the National Police Service Act outline 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.
28. In this case, the police are investigating a crime where the Applicant obtained credit through false pretence as stated in section 316 of the Penal Code, and also issued bad cheques, as stated in section 316A of the Penal Code.
29. It is undisputed that police investigations are a lawful process supported by statutes, as stated in sections 24 and 35 of the National Police Service Act cited above. As a result, the police are obligated to investigate the complaints made by the 2nd to 6th Interested Parties, and if they determine there is enough evidence for charge, they may proceed accordingly.
30. In the instant case, the Applicant has failed to prove any violation of his rights or breach of the Constitution or police powers. It appears that he has given up on his Application as he has not appeared in court or filed his written submissions, despite being directed to do so. Consequently, the Court should decline to grant him the leave sought, dismiss his Application and award costs to the Respondents and the 2nd to 6th Interested Parties.
The 1st Respondents case;
31. The investigating officer attached to the Directorate of Criminal Investigations, Nairobi Area, County Headquarters has opposed the application.
32. He argues that on 3rdNovember, 2022 one Mr. Patel Shailesh, the Operations manager at Thames Express Limited wrote to the Directorate of Criminal Investigations Nairobi requesting intervention of the Police for a case of fraud involving Thames Express Ltd, GZEP Electricals Ltd and PAFRO Impex Trading Company Ltd.
33. THAT upon receiving the Local Purchase Order (LPO) the following day (on 18th October, 2022) Thames Express Limited dispatched the goods since they had been dealing with GZEP for the past 3 years.
34. In the course of business between Thames Express Limited and GZEP Electricals Limited. Zach Disanjo introduced him to Haren Kumar Damji Mandavia; the owner of PAFRO Impex Trading Company Ltd.
35. Thames Express Limited supplied GZEP Electricals Limited with goods worth Kshs. 9,674,0l0/=which were later delivered to the management of PAFRO Impex Trading Company Ltd by GZEP Electricals Ltd.
36. The proprietor of the company of PAFRO Impex Trading Company Ltd failed to honour payment to the supplier; GZEP Electricals Limited
37. The investigations team later proceeded to PAFRO Impex Trading Company Ltd on the 4th of November, 2022 within Isinya subcounty, Kajiado County where the proprietor of the company was found. The officers formally introduced themselves and requested Mr, Haren Kumar Damji Mandavia to accompany them to Nairobi Area DCI offices. He agreed and used his personal car as he promised to link with the Police Officers later in the Office.
38. He failed to reach the DCI Nairobi Area Office as had been agreed.
39. On the 5th of November, 2022, the DCI Nairobi Area officers went back to PAFRO Impex Trading Company Ltd in the company of the complainants from Thames Express KLtd and GZEP Electricals Limited. Upon arrival Haren Kumar Damji Mandavia (the Applicant herein) was not present but his staff were. They later called Haren Kumar and informed him of the presence of the Police Officers from Nairobi Area.
40. The officers requested to have the materials that were supplied to PAFRO Impex Trading Company Ltd by the Complainants to be released to the police for custody awaiting a full investigation of the complaint.
41. The exparte Applicant herein was again called and he authorised his staff to open the store where the materials had been stored so that the police could collect them.
42. Upon getting access to the materials, an inventory was prepared of all materials that were collected after identification by the complainants.
43. The inventory was later on counter signed by all witnesses’ present including the company staff and a duplicate copy handed over to them. The materials were later ferried to Nairobi Area I) CI regional headquarters where they were kept in the store awaiting further investigation and final disposal.
44. It was after this that the exparte Applicant (Haren Kumar Mandavia) went into hiding and started accusing the Police of harassment which is not true as the police acted upon a filed complaint by the Complainants against him.
45. He has so many reported cases against him all over the country and nms to court to hide seeking favourable orders in order to defeat justice for the complainants. For Instance, he has filed Milimani HCJR No. 187 of 2022 seeking Orders of Prohibition and Mandamus against various Officers.
46. He also has filed Mombasa HCJR. NO. E028 OF 2022 seeking Orders of Prohibition against the Police after being charged with various offences before Shanzu Law Courts.
47. The Applicant has several criminal cases across various courts around the Country e.g. Criminal case no. 1872 of 2017 on going before City Law Courts, Criminal Case Nos. 660 of 2018, No. 662 of 2018, No. 1632 of 2019 and No. 1853 of 2019 currently ongoing at Makadara Law Courts
48. Milimani Criminal Case No. 570 of 2019 and 157 of 2018 et all. These are just a few of the matters in which he is an accused person among others.
49. There are more cases against him which if given time can all be presented before the Court so that the Court can get to understand the Ex-parte Applicant's character.
50. The Applicant alleges that the dispute between the 1'4 Interested Party and the other Interested Parties is a trade dispute brought about when goods and services were supplied to the 1st Interested Party in the ordinary course of business.
51. He further alleges that it is not within the mandate of the Police to involve themselves in an attempt to resolve issues pertaining to trade debts between the 1st Interested Party and other interested parties.
52. In response, we wish to reiterate that the Applicant herein did not intend to pay the Interested Party for the goods supplied.
53. For that reason, as much as the dispute is civil nature, obtaining goods with no intention to pay becomes a criminal matter and that's where the police come in.
54. It is not in dispute that the suspect (Haren Kumar Damji Mandavia) was supplied with assorted electrical materials from GZEP Electricals Company Limited who procured them from Thames Express Limited. It is also a fact that the suspect acknowledged receipt of the goods by stamping all the LPOs with his official PAMFRO Impex Trading Company Limited.
55. The suspect made a commitment guarantee to pay GZEP Electricals Company Limited through its letter dated 27th October, 2022 but never honoured it.
The police are mandated by law to maintain law and order and prevent crimes and as such, the Court should not interfere with powers of a body that has been conferred to it slatute. As such, the Court should not grant leave to the Applicant.
56. The Applicant has not made out an arguable case to merit being granted leave to seek substantive Judicial Review Orders of Prohibition. The ex-parte applicant has not made out a strong case that exceeds mere arguability.
Analysis and determination:
57. In 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:
i. “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.”
58. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter-partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.
59. It is also trite that in an application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave. In the present application, the Applicant has filed a chamber summons application seeking judicial review orders instead of one seeking leave to institute judicial review orders.
60. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive application for Judicial Review with a view to filtering out frivolous applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage."
61. The Applicant seeks leave to pursue orders of prohibition in a blanket form against entities that are not definable Any other officer or officers serving under the inspector general office in any other police station within the Republic of Kenya.
62. He 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 the rule of law.
63. 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 2nd and 3rd Interested Parties 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:
64. 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 5th of November 2022 is dismissed with costs.
An ORDER OF PROHIBITION directed to the Attorney General, the Director of Public Prosecutions and the Inspector General of Police or any other officer or officers serving under the inspector general office whether in Nairobi, Nairobi's DCI, and more specifically Officers in Charge of the following Police Stations hereunder listed: Nairobi Area Police Station, Isinya Police Station, Industrial Area Police Station Nairobi, DCI Headquarters, Parklands Police Station, or any other police station within the Republic of Kenya from harassing, threatening, arresting, apprehending, detaining, commencing suit or proceedings against the Applicant herein in any manner whatsoever on account of any matters pertaining to the trade debts owed by first interested party PAFRO IMPEX TRADING COMPANY LTD to the 2nd and 3rd Interested Parties herein and any other creditor of Pafro Impex Trading Company Limited of whatever description and costs.
The application is vehemently opposed.
2. The applicant is a Director of the first interested party and it is his case that on various dates, his company and the interested parties entered into business.
3. He admits that he was supplied with various commodities and he owes the interested parties money.
4. He admits that the company fell into arrears for the goods supplied to the company.
5. This has not sat well with the creditors being the interested parties who have engaged the services of the police to recover the debt.
6. The applicant is troubled because of the manner in which the authorities, including the police, are being used to recover debt, which is business.
7. The applicant argues that he has made an attempt to settle the debt. This has not gone well with their creditors who remain disgruntled and very dissatisfied.
8. The interested parties have repeatedly deployed the police to his premises in Kisaju to recover the debt.
9. In the process of attempting to recover the debt they have gone beyond their statutory mandate by carting away some of his goods unprocedurally.
10. He is also in trouble because the police are using unorthodox methods that are causing damage to his business reputation.
11. At one point, police caused personal injuries to an employee of the first interest party.
12. The applicant argues that he has made numerous Mpesa payments and bankers payments to the interested parties.
13. He has reached out to the interested parties who belong to his community in an attempt to settle the matter out of court to no avail.
14. The foregoing informs the need to seek for orders of prohibition.
The 3rd interested party’ ’case:
15. The third interested party opposes the case vehemently.
16. The 3rd party supplied goods worth over Kshs.15 million to the first interested party who has refused to pay for the same.
17. The third party argues that it used to get the goods from the sixth interested party, on an arrangement that it would supply the same goods to the 1st interested party.
18. It would then pay the 6th interest party using the money received from the first interested party.
19. It is its case that 3rd interested party that the applicant has failed to pay, and the amount remains outstanding, since the 1st interested party only made small initial payments and then started issuing bouncing cheques.
20. The 3rd interested party is in a predicament since it has issued bouncing cheques to the sixth interested party who has since lodged a complaint with the police against it.
21. According to the 3rd interested party, the Application and frivolous and that the same should be disallowed.
The 5th and the 6th interested parties case:
22. They oppose the application and argue that their Respondent statutory outfits with the mandate to do the arrest investigation and the prosecution, and they should not be stopped by the applicant.
23. It is that office of the director of public prosecution is an independent office with a mandate to take appropriate action towards sharing that crime is prosecuted in the law.
24. It argues that they argue that the police have a duty to arrest, and they’re doing their work and they should not be stopped by the applicant.
25. Reliance is placed on the case of Republic v Chief Magistrate Milimani Commercial Courts & 2 Others Ex Parte Fredrick Bett [2022] eKLR, the court referenced a previous judgment by Ngaah J in a different case, HCJR Case No. E087 of 2021, AAR Insurance vs Public Procurement Administrative Review Board, Secretary IEBC and Zamara Risk and Insurance Brokers Limited Interested Parties (unreported). In that case, Ngaah J stated that judicial review remedies are discretionary and that the court has the discretion to examine the intended application for prerogative orders. He further stated. the court must weigh the need for public authorities to perform their functions with the rights and interests of individuals. If the court finds that the rights and interests of individuals may have been violated, it will grant leave to proceed with a substantive motion for judicial review.
26. Article 157(10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act, the Director of Public Prosecutions has the power to initiate criminal proceedings without needing consent from anyone else. He is expected to act independently and should not be seen as being influenced by anyone else.
27. Article 245(4)(a) of the Constitution states that no one can tell the Inspector General how to investigate crimes. Section 24 and 35 of the National Police Service Act outline 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.
28. In this case, the police are investigating a crime where the Applicant obtained credit through false pretence as stated in section 316 of the Penal Code, and also issued bad cheques, as stated in section 316A of the Penal Code.
29. It is undisputed that police investigations are a lawful process supported by statutes, as stated in sections 24 and 35 of the National Police Service Act cited above. As a result, the police are obligated to investigate the complaints made by the 2nd to 6th Interested Parties, and if they determine there is enough evidence for charge, they may proceed accordingly.
30. In the instant case, the Applicant has failed to prove any violation of his rights or breach of the Constitution or police powers. It appears that he has given up on his Application as he has not appeared in court or filed his written submissions, despite being directed to do so. Consequently, the Court should decline to grant him the leave sought, dismiss his Application and award costs to the Respondents and the 2nd to 6th Interested Parties.
The 1st Respondents case;
31. The investigating officer attached to the Directorate of Criminal Investigations, Nairobi Area, County Headquarters has opposed the application.
32. He argues that on 3rdNovember, 2022 one Mr. Patel Shailesh, the Operations manager at Thames Express Limited wrote to the Directorate of Criminal Investigations Nairobi requesting intervention of the Police for a case of fraud involving Thames Express Ltd, GZEP Electricals Ltd and PAFRO Impex Trading Company Ltd.
33. THAT upon receiving the Local Purchase Order (LPO) the following day (on 18th October, 2022) Thames Express Limited dispatched the goods since they had been dealing with GZEP for the past 3 years.
34. In the course of business between Thames Express Limited and GZEP Electricals Limited. Zach Disanjo introduced him to Haren Kumar Damji Mandavia; the owner of PAFRO Impex Trading Company Ltd.
35. Thames Express Limited supplied GZEP Electricals Limited with goods worth Kshs. 9,674,0l0/=which were later delivered to the management of PAFRO Impex Trading Company Ltd by GZEP Electricals Ltd.
36. The proprietor of the company of PAFRO Impex Trading Company Ltd failed to honour payment to the supplier; GZEP Electricals Limited
37. The investigations team later proceeded to PAFRO Impex Trading Company Ltd on the 4th of November, 2022 within Isinya subcounty, Kajiado County where the proprietor of the company was found. The officers formally introduced themselves and requested Mr, Haren Kumar Damji Mandavia to accompany them to Nairobi Area DCI offices. He agreed and used his personal car as he promised to link with the Police Officers later in the Office.
38. He failed to reach the DCI Nairobi Area Office as had been agreed.
39. On the 5th of November, 2022, the DCI Nairobi Area officers went back to PAFRO Impex Trading Company Ltd in the company of the complainants from Thames Express KLtd and GZEP Electricals Limited. Upon arrival Haren Kumar Damji Mandavia (the Applicant herein) was not present but his staff were. They later called Haren Kumar and informed him of the presence of the Police Officers from Nairobi Area.
40. The officers requested to have the materials that were supplied to PAFRO Impex Trading Company Ltd by the Complainants to be released to the police for custody awaiting a full investigation of the complaint.
41. The exparte Applicant herein was again called and he authorised his staff to open the store where the materials had been stored so that the police could collect them.
42. Upon getting access to the materials, an inventory was prepared of all materials that were collected after identification by the complainants.
43. The inventory was later on counter signed by all witnesses’ present including the company staff and a duplicate copy handed over to them. The materials were later ferried to Nairobi Area I) CI regional headquarters where they were kept in the store awaiting further investigation and final disposal.
44. It was after this that the exparte Applicant (Haren Kumar Mandavia) went into hiding and started accusing the Police of harassment which is not true as the police acted upon a filed complaint by the Complainants against him.
45. He has so many reported cases against him all over the country and nms to court to hide seeking favourable orders in order to defeat justice for the complainants. For Instance, he has filed Milimani HCJR No. 187 of 2022 seeking Orders of Prohibition and Mandamus against various Officers.
46. He also has filed Mombasa HCJR. NO. E028 OF 2022 seeking Orders of Prohibition against the Police after being charged with various offences before Shanzu Law Courts.
47. The Applicant has several criminal cases across various courts around the Country e.g. Criminal case no. 1872 of 2017 on going before City Law Courts, Criminal Case Nos. 660 of 2018, No. 662 of 2018, No. 1632 of 2019 and No. 1853 of 2019 currently ongoing at Makadara Law Courts
48. Milimani Criminal Case No. 570 of 2019 and 157 of 2018 et all. These are just a few of the matters in which he is an accused person among others.
49. There are more cases against him which if given time can all be presented before the Court so that the Court can get to understand the Ex-parte Applicant's character.
50. The Applicant alleges that the dispute between the 1'4 Interested Party and the other Interested Parties is a trade dispute brought about when goods and services were supplied to the 1st Interested Party in the ordinary course of business.
51. He further alleges that it is not within the mandate of the Police to involve themselves in an attempt to resolve issues pertaining to trade debts between the 1st Interested Party and other interested parties.
52. In response, we wish to reiterate that the Applicant herein did not intend to pay the Interested Party for the goods supplied.
53. For that reason, as much as the dispute is civil nature, obtaining goods with no intention to pay becomes a criminal matter and that's where the police come in.
54. It is not in dispute that the suspect (Haren Kumar Damji Mandavia) was supplied with assorted electrical materials from GZEP Electricals Company Limited who procured them from Thames Express Limited. It is also a fact that the suspect acknowledged receipt of the goods by stamping all the LPOs with his official PAMFRO Impex Trading Company Limited.
55. The suspect made a commitment guarantee to pay GZEP Electricals Company Limited through its letter dated 27th October, 2022 but never honoured it.
The police are mandated by law to maintain law and order and prevent crimes and as such, the Court should not interfere with powers of a body that has been conferred to it slatute. As such, the Court should not grant leave to the Applicant.
56. The Applicant has not made out an arguable case to merit being granted leave to seek substantive Judicial Review Orders of Prohibition. The ex-parte applicant has not made out a strong case that exceeds mere arguability.
Analysis and determination:
57. In 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:
i. “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.”
58. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter-partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.
59. It is also trite that in an application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave. In the present application, the Applicant has filed a chamber summons application seeking judicial review orders instead of one seeking leave to institute judicial review orders.
60. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive application for Judicial Review with a view to filtering out frivolous applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage."
61. The Applicant seeks leave to pursue orders of prohibition in a blanket form against entities that are not definable Any other officer or officers serving under the inspector general office in any other police station within the Republic of Kenya.
62. He 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 the rule of law.
63. 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 2nd and 3rd Interested Parties 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:
64. 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 5th of November 2022 is dismissed with costs.