1. The applicant’s application is a motion dated 21 September 2023 filed under section 8 of the Law Reform Act, cap. 26 and Order 53 of the Civil Procedure Rules. The prayers are as follows:
“1.THAT, the Honourable court be pleased to issue an order of CERTIORARI, to remove and bring to the Honourable Court for purposes of quashing the decision of the 1st and 2nd Respondents to charge and prosecute HARUN OSORO NYAMBOKI, the Ex Parte Applicant in the Chief Magistrate\'s Court at MAKADARA MCCR NO. E5054 OF 2023.
2. THAT, the Honourable Court be pleased to issue an order of PROHIBITION, directed at the 1st, 2nd and 3rd respondents prohibiting any further proceedings in the Chief Magistrate\'s Court at MAKADARA MCCR NO. E5054 OF 2023 and further prohibiting the 1st and 2nd Respondents from instituting any further charges against the Ex Parte Applicant based on the complaint, facts and circumstances the subject of the Criminal charges in the said case or similar complaints.”
The application is based on an affidavit sworn by the applicant on 15 September 2023 verifying the facts relied upon and a statutory statement of even date.
2. According to the applicant, sometimes in the month of October 2022, his youngest brother whom he has named as Shadrack Bogonko Nyamboki threatened to kill him over as a result of a dispute over an ancestral land in Kisii County. Alarmed by the threat, the applicant informed all the members of the Nyamboki family including Shadrack Bogonko Nyamboki’s wife, Alice Mokaya Bogonko and his son, Hezron Nyamboki Bogonko.
3. In March 2023, the applicant shared a clip on the family’s whatsapp group platform of a couple that had been murdered in Kisii as the couple visited their from United States. This clip, the applicant has sworn, was in the public domain. The applicant’s sister-in-law Alice Bogonko and her son were offended by the clip and, therefore, they lodged a complaint against the applicant with the police at Makadara Divisional Directorate of Criminal Investigations (DCI) offices.
4. Towards the end of March 2023, the applicant received a phone call from a Police officer who identified herself as Mrs. Caroline Mutiso summoning him to Makadara Directorate of Criminal Investigation premises to record a statement with respect to the complaint. However, on the 4 April 2023, the Police officer called the applicant and informed him that he need not honour the summons as the complainant, had requested the matter to be settled through a family reconciliation.
5. Before the conclusion of the alternative dispute resolution process, and more particularly on 11 April 2023, the police officer called the applicant to record the statement. The applicant was concerned that the matter was being investigated by Makadara Directorate of investigations yet both the applicant and the complainant were outside the geographical jurisdiction of Makadara and, for this reason, he complained to Director of Criminal Investigations. Nonetheless, the applicant presented himself to Makadara Directorate of Criminal Investigations and recorded the statement. He also supplied printed copies of the WhatsApp messages exchanged between him and Alice Mokaya Bogonko since October 2022. The applicant’s cell phone was then confiscated by the police for the reason that it was to undergo digital forensic examination at Cyber Crime Forensic Laboratory.
6. On 17 August 2023, the applicant was informed by his advocates that they had received a call from Makadara Divisional CID office that he was to appear in court the following day at Makadara Law Courts to answer to criminal charges which had been approved by the 1st Respondent. The applicant presented himself in court on 18 August 2023 when he was charged with the offence of Cyber Harassment Contrary to Section 27 (l)(a) of the Computer Misuse and Cybercrime Act No. 5 of 2018.
7. The applicant has sworn that he has been advised my counsel, which advice he verily believes to be true, that the particulars of the offence either do not disclose, or cannot sustain, the offence with which he has been charged or any offence at all. In the circumstances, the applicant has been advised by his counsel, which advice he believes to be true, that in charging him, the 1st Respondent abused his powers and discretion. Further, the 1st Respondent is said to have disregarded its National Prosecution Policy and, as such, the decision to charge the applicant is unreasonable. The decision to charge the applicant, it is sworn, was made in bad faith and to serve other improper and extraneous motives.
8. Senior Sergeant Caroline Mutiso swore a replying affidavit on behalf of the 1st and 2nd respondents. She has introduced herself in the affidavit as “a police officer attached to the Directorate of Criminal Investigations at Makadara” and that she is the investigation officer in respect to criminal case number E5054 of 2023 before Makadara Chief Magistrate Court.
9. According to sergeant Mutiso, on 23 March, 2023, the complainant Alice Mokaya reported a complaint of cyber harassment at Industrial Police Station. The complaint was entered in Occurrence Book as OB number 81/23a/3/2023. She, together with police constables John Paul and Baya were assigned the complaint for investigations by the DCI Makadara. In the process of investigations, statements were recorded from the complainant, the 1st interested party, 2nd interested party and the applicant. The complainant, the 1st interested party and 2nd interested party are said to run a number of businesses and work along Jirore road off Enterprises Road in Industrial Area.
10. After the complaint was received, the applicant requested for time to explore reconciliation with the complainant. However, after two weeks, both the complainant and the applicant reported back to the police that the reconciliation had failed and, therefore, they would pursue the matter in court.
11. During the investigations, the petitioner and the 1st interested party\'s mobile phones were forwarded to DCI forensic lab for digital forensic examination on 17 May 2013 and on 2 June, 2023, the officers received the forensic report and phones from the DCI forensic laboratory. After the investigations, the police file was compiled and forwarded to Office of the Director Public Prosecutions for perusal and directions.
12. Upon review of the evidence in the investigation file, the 1st respondent established that the file met the evidential threshold for prosecution and, therefore, a decision was reached to charge the applicant with the offence of cyber harassment contrary to section 27(1) of the Computer Misuse and Cyber Crime Act.
13. Sergeant Mutiso has been informed by the prosecution counsel, which information she believes to be true, that the decision to charge was based on Article 157 of the Constitution, the Office of the Director of Public Prosecutions Act and the National Prosecution Policy. Thus, in charging the applicant, the Director of Public Prosecutions did not abuse his Office, breach or infringe on any provision of the Constitution or any human and fundamental rights of the applicant.
14. The 2nd and 3rd respondents filed grounds of objection in which they pleaded that the application is an abuse of the due process of the Court and that it is only intended to curtail the statutory obligations and duties of the 3rd Respondent. The other ground is that the application is frivolous and vexatious because it does not disclose how the 3rd Respondent has acted outside his mandate and, in any event, the application does not disclose any illegality on the part of the 3rd Respondent.
15. It is the 3rd and 4th respondent’s case that the orders sought will undermine the investigatory functions of the 2nd Respondent which functions are stipulated in Section 24(e) of the National Police Service Act, No. 11A of 2011, thereby crippling the criminal justice system. Again, it is pleaded that if the orders are granted, the Honorable Court would be usurping the statutory mandate of the 3rd Respondent. It is also contended that the court cannot direct a public officer, including the respondents, to exercise their powers in any particular manner.
16. Finally, it has been urged that the applicant has failed to show how the acts complained of and the proceedings in MAKADARA MCCR NO. E5054 OF 2023 are tainted with illegality, irrationality and procedural impropriety.
17. The 1st interested party swore a replying affidavit opposing the applicant’s application. She has stated that the Applicant has not provided any evidence in proof of the fact that Shadrack Bogonko Nyamboki threatened to kill the Applicant. In any event, the said Shadrack Bogonko Nyamboki is not named as a party in these proceedings.
18. According to the 1st interested party, the clip sent to her by the applicant had the words which read as follows: \"Never take threats to life, especially from family members lightly. It is regrettable and unfortunate that some in pour family do not take seriously the predatory tendencies as exhibited by some of our siblings.\"
19. The 1st interested party has also sworn that the applicant declined any reconciliatory attempts to resolve the dispute. Contrary to the applicant’s allegations, the 1st interested party states that she works in Industrial Area Nairobi, Jirore Road off Enterprise Road and that was where the impugned message from the Applicant was received. She, therefore, reported the incident to the nearest police station.
20. It is the 1st interested party’s position that whether the words in the clip sent to her constituted an offence is an issue for determination by the trial court and not this Honourable Court. The 2nd interested party also swore a replying affidavit opposing the application. He has largely adopted the 1st respondent’s depositions.
21. As far as I understand the applicant, his case turns on whether a text message he sent to the 1st interested party constitute an offence under the Computer Misuse and Cybercrime Act No. 5 of 2018. In the applicant’s view, the text message cannot give rise to an offence under this provision of the law or any other law for that matter. The applicant’s position is clear from paragraphs 29 to 31 of the affidavit verifying the facts relied upon. They read as follows:
“29.THAT. I have been advised by my advocates on record which advice I verily believe to be true and correct that from a cursory perusal of the particulars of the offence the same do not support the charge and/or disclose any offence contrary to the provisions of section 134 and 137 of the criminal procedure code.
30.THAT, I aver that my words as captured in the particulars could not and cannot convey any threatening message to anyone leave alone Mrs Alice Mokaya Bogonko and Mr Hezron Nyamboki Bogonko with whom I had been engaged in amicable WhatsApp chats in which I pleaded for their help in persuading Mr Shadrack Bogonko Nyamboki not to cause any harm to me as earlier threatened.
31. THAT, I have been advised by my advocates on record which advice I verily believe to be true and correct that the 1st Respondent abused his power and discretion in preferring charges against me.”
22. And in submissions filed on the applicant’s behalf, it has been submitted that:
“3. The Ex Parte Applicant’s case is anchored on the grounds that from the face of the charge information to wit, the charge and particulars of the offence disclose no offence to sustain a criminal proceedings. The Charge sheet is annexed as annexture “HON4” in the Ex Parte Applicant’s Verifying Affidavit…”
23. A copy of the charge sheet exhibited to the applicant’s affidavit and in which the impugned words have been encapsulated reads, in its relevant part, as follows:
“CHARGE:
HARUN OSORO CYBER HARASSMENT CONTRARY TO SECTION 27(1)(a) OF THE COMPUTER MISUSE AND CYBERCRIME ACT NO.5 OF
2018.
PARTICULARS OF OFFENCE:
HARUN OSORO NYAMBOKI. On the 23rd day of June,2023 at unknown place within the Republic of Kenya, you willfully communicated directly to ALICE MOKAYA through WhatsApp by sending her a video with a threatening message caption to wit\" Never take threats to life, especially from family members lightly. It is regrettable and unfortunate that some in our family do not take seriously the predatory tendencies as exhibited by some of our siblings\", while you knew or ought to have known that your conduct was likely to cause apprehension or fear of violence to the said ALICE MOKAYA.
24. While the applicant is of the view that the impugned words cannot found a criminal offence either as alleged or at all, the 1st respondent is of a contrary opinion. They are of the firm view that these words constitute an offence for which their author, the applicant in these proceedings, is criminally liable. The applicant wants this Honourable Court to uphold his view and come to the conclusion that these words are not offensive and to the extent that he was charged for communicating what he believes to be innocent words, the 1st respondent abused his powers.
25. The trouble with the applicant’s quest is that I have to evaluate the prosecution evidence in order to come to the conclusion that either the words complained of do not form an offence under section 27(1)(a) of the Computer Misuse and Cybercrimes Act, as the applicant suggests or that indeed they constitute an offence as alleged by the prosecution.
26. The task of evaluating the evidence and determining whether a crime has been committed, and therefore, whether the Director of Public Prosecutions came to the correct decision is a task for the trial court and not a judicial review court.
27. Whether a judicial review court can delve into and interrogate evidence on a decision brought before it for determination of whether the decision is tainted on any of the grounds of judicial review is a question that was considered in R versus Secretary of State for the Home Department, ex p Khawaja (1984) AC 74 where the court noted as follows:
“The migration officer, whether at this stage of entry or at that of removal, as to consider a complex of statutory rules and non-statutory guidelines. He has to act upon documentary evidence and such other evidence as inquiries may provide. Often there will be documents was genuineness is doubtful, statements which cannot be verified, misunderstandings as to what was said, practices and attitudes in a foreign state which have to be estimated. There is room for appreciation, even for discretion. The Divisional Court, on the other hand, on judicial review of a decision to remove and detain, is very different situated. It considers the case on affidavit evidence, as to which cross-examination, though available, does not take place in practice. It is, as this case well exemplifies, not in a position to find out the truth between conflicting statements-did the applicant receive notes, did he read them, was he incapable of misunderstanding them, what exactly took place at the point of entry$1 Nor is it in a position to weigh the materiality of personal or other factors present, or not present or partially present, to the mind of the immigration authorities. It cannot possibly act as, in effect, a court of appeal as to the facts on which the migration officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the immigration officer, acting reasonably, would decide as he did. (Per Lord Wilberforce at p. 949B-D). (Emphasis added).
28. Though this case concerned immigration and the questions posed were pertinent to the issues of immigration, the principle applied as to the limits of a judicial review court entertaining disputes on factual issues would be as much applicable in the instant case. The evidence placed before court is evidence that is, more or less, conflicting and the truth of which may only be determined after it has been subjected to cross-examination in a trial court. A judicial review court cannot assume appellate jurisdiction and interrogate the evidence afresh so as to come to its own conclusion as to whether the Director of Public Prosecutions properly exercised his discretion in charging the applicant.
29. Lord Woolf was more apt in R versus Derbyshire County Council, ex p Noble (1990) ICR at p. 813C-D where he stated:
“The present application is one which is unsuitable for disposal on an application for judicial review-unsuitable because it clearly involves a conflict of fact and conflict of evidence which would require investigation and would involve discovery and cross examination. Cross-examination and discovery can take place on application for judicial review, but in the ordinary way judicial review is designed to deal with matters which can be resolved without resorting to those procedures.”
30. On the same point Lord Diplock at p.316G in Hoffmann-La-Roche (F) & Co AG versus Secretary of State for Trade and Industry (1975) AC 295 was of the view that the procedure on a judicial review motion is unsuited to enquiries into disputed facts. Oral evidence and discovery, although catered for by the rules are not part of the ordinary stock in trade of the prerogative jurisdiction.
31. The Supreme Court of Kenya addressed this same point in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) where it was held:
“[76] Be that as it may, it is the Court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in Section 11 (1) and (2) of the Fair Administrative Actions Act. Third, the Court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in Section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this Court held in the case of Kenya Vision 2030 Delivery Board v. The Commission on Administrative Justice, the Attorney General and Eng. Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.” (Emphasis added).
32. One other important point to consider is that it is left to the discretion of the Director of Public Prosecutions to charge or not to charge if, in his view, any particular conduct constitutes an offence. The discretion to charge has a constitutional underpinning in Article 157(6)(a) of the Constitution which states as follows:
157.(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(Emphasis added).
33. The discretion to charge or not to charge is, of course not to be exercised at the whim of the Director of Public Prosecutions but it is subject to the supervisory jurisdiction of this Honourable Court. This point was taken as early as 1969 in Inspector Shaaban bin Hussien and others versus Chong Fook Kam and another (1969) 3 ALL ER 1626 where the Privy Council noted as follows:
“It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion… There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control.”
34. Perhaps, I need to add that in Kenya, over and above the common law principles, the Constitution is the benchmark upon which the exercise of the discretion by the Director of Public Prosecutions is weighted. This why it is expressly stated in Article 157(11) of the Constitution that in exercising the powers conferred by Article 157 the Director of Public Prosecutions is enjoined to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. On this point I agree with the applicant’s submissions that:
“…on whether the Court has jurisdiction to interfere with the 1st Respondent’s discretion and constitutional mandate to charge and prosecute, we submit in the affirmative. We submit that the 1st Respondent is not above the law nor does he have carte blanche to do as he/she pleases but to conduct his/her mandate within the convenes of the law.”
35. Indeed whenever an application such as the instant one is lodged before court, it is incumbent upon court to check whether in exercise of his discretion, the Director of Public Prosecutions has given due regard to public interest, the administration of justice and the due process.
36. That notwithstanding and, to his credit, the applicant acknowledges the powers and discretion with which the Director of Public Prosecutions is vested under Article 157 of the Constitution and submitted that:
“First, we must concede that the Office of the Director of Public Prosecution is an independent office established under Article 157 of the Constitution of Kenya, 2010. Pursuant to Article 157 (6) the Director of Public Prosecution is given the mandate to exercise the state’s prosecution power, meaning, the holder of the office can institute and undertake criminal proceedings against any person before any court including the Ex-parte Applicant.
Further, the 1st Respondent pursuant to Article 157 (10) of the Constitution does not require the consent of any person and/or authority to commence any criminal proceedings. The 1st Respondent in exercise of his or her powers will not be under the direction or control of any person or authority.”
37. If a judicial review court has to disturb the exercise of discretion by the Director of Public Prosecutions, or any other public authority for that matter, it must bear in mind that:
“The very concept of administrative discretion involves a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred.”
These are the words of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan BC [1976] 3 All ER 665 at 695, [1977] AC 1014 at 1064.
38. In the case against the applicant, investigations were undertaken and these included taking statements from witnesses and the applicant. Exhibits were collected and subjected to forensic analysis. Upon conclusion of the investigations, the police compiled their investigations file and forwarded it to the Director of Public Prosecutions who, after considering the evidence, was of the opinion that an offence had been committed and, therefore, the applicant ought to be charged. I cannot find anything, in the material presented before court, to suggest that, in reaching the decision to charge the applicant, the Director of Public Prosecutions did not exercise his discretion properly.
39. In any event, the Director of Public Prosecutions will have opportunity to present his case before the trial court based on the evidence he has gathered. No doubt, this evidence will be tested when the applicant is given the opportunity to cross-examine the prosecution witnesses and if, in the process, he succeeds in raising a reasonable doubt on, among other things, the weight or value of the impugned evidence, he will be acquitted.
40. A judicial review court cannot assume the Director of Public Prosecution’s duty and direct the Director of Public Prosecution to exercise his discretion in a particular way and neither can it purport to substitute its own decision for that of the Director of Public Prosecutions. Similarly, it cannot assume the jurisdiction of the trial court and decide whether offences alleged to have been committed were indeed committed.
All the court would be concerned about is the process by which the decision to prosecute the applicant was reached.
41. In Energy Regulatory Commission v S G S Kenya Limited & 2 others (2018) eKLR Civil Appeal No. 341 of 2017 the Court of Appeal faulted the this Honourable Court for determining a judicial review matter as if it was an appeal, and for going into the merits of a decision already taken. The Appellate Court held it to be improper for the High Court to make value judgment regarding the evidence; to weigh the same, and to minutely examine it, to determine whether it reached a certain standard of acceptance. The Court found that the High Court had occasioned room for abuse of its power, by usurping the competences of the Public Procurement Administrative Review Board.
It was held that in a judicial review matter, the Court’s mandate is limited to procedural improprieties, and extends not to the merits of a decision.
42. And in OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others [2017] eKLR Civil Appeal No. 28 of 2016 it was held that:
“Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question. See Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited (2008) Misc. Civil Appl. No. 374 of 2006. In judicial review proceedings, the mere fact that the public body’s decision was based on insufficient evidence, or on misapplication of evidence, cannot be a ground granting judicial review remedies. Whether that decision was right or not, the affected party ought to challenge it on appeal. In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review. See East African Railways Corp. vs. Anthony Sefu Far-Es-Salaam (1973) EA 327.”
43. Courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness in the purported exercise of the power be such as to amount to an abuse of the power. See Preston v IRC [1985] 2 All ER 327, [1985] AC 835, per Lord Templeman.
44. And in Chief Constable of the North West Police vs Evans (1982) 3 ALL ER 141 at 154 it was held that:
“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”
It was held further in this case that:
“The remedy by way of judicial review under RSC…, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and …administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner…and not to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.” (Per Lord Hailsham at 1160E-H).
45. These authorities together with the Supreme Court’s decision in Saisi & 7 others v Director of Public Prosecutions & 2 others (supra) point to the conclusion that a judicial review court should not supplant a public authority’s decision with its own decision. I need not belabour the point that judicial review is concerned more with the process by which a decision is arrived at than with the merits of that decision unless, of course, the decision is so irrational or unreasonable that no reasonable tribunal could have reached it.
46. As far as I can see, there is no basis upon which the process by which the Director of Public Prosecution reached the decision to charge the applicant can be faulted. He was presented with evidence which, upon consideration, he suspected the applicant to have committed a crime. It is not in dispute that before he was charged, the applicant was given opportunity to be heard and, in that regard, his statement was recorded. He remains innocent until he is proved guilty. No doubt, he has been charged only because he is suspected to have committed the offence with which he has been charged.
47. For the foregoing reasons I do not agree with the applicant’s counsel’s submissions that the charges against him constitute an abuse of the 1st respondent’s prosecutorial powers or the exercise of his discretion.
48. Accordingly, I am not satisfied that the judicial review ground of illegality which, apparently, is the sole ground upon which the application is based or any of the other judicial review grounds have been proved to exist. Taking cue from Lord Diplock in Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 where the learned judge defined the grounds for judicial review, I am not persuaded that the 2nd respondent’s decision can be regarded illegal since there is no proof that, in charging the applicant, the 1st respondent did not correctly understand his powers under the constitution or any other written law that regulates his decision-making power.
49. The 1st respondent’s decision is also not so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question at hand under the same set of circumstances would have arrived at the same decision.
50. Finally, there is no basis for the ground of procedural impropriety since the applicant was given opportunity to tell his side of the story before he was arraigned. The trial court should be competent enough to determine the question whether the evidence gathered by the 2nd respondent and which the 1st respondent intends to use against the applicant is, among other things, admissible and whether it does carry, for instance, any probative value.
In the ultimate, I hold the applicant’s application as lacking in merit and it is hereby dismissed. Parties will bear their respective costs. It is so ordered.
“1.THAT, the Honourable court be pleased to issue an order of CERTIORARI, to remove and bring to the Honourable Court for purposes of quashing the decision of the 1st and 2nd Respondents to charge and prosecute HARUN OSORO NYAMBOKI, the Ex Parte Applicant in the Chief Magistrate\'s Court at MAKADARA MCCR NO. E5054 OF 2023.
2. THAT, the Honourable Court be pleased to issue an order of PROHIBITION, directed at the 1st, 2nd and 3rd respondents prohibiting any further proceedings in the Chief Magistrate\'s Court at MAKADARA MCCR NO. E5054 OF 2023 and further prohibiting the 1st and 2nd Respondents from instituting any further charges against the Ex Parte Applicant based on the complaint, facts and circumstances the subject of the Criminal charges in the said case or similar complaints.”
The application is based on an affidavit sworn by the applicant on 15 September 2023 verifying the facts relied upon and a statutory statement of even date.
2. According to the applicant, sometimes in the month of October 2022, his youngest brother whom he has named as Shadrack Bogonko Nyamboki threatened to kill him over as a result of a dispute over an ancestral land in Kisii County. Alarmed by the threat, the applicant informed all the members of the Nyamboki family including Shadrack Bogonko Nyamboki’s wife, Alice Mokaya Bogonko and his son, Hezron Nyamboki Bogonko.
3. In March 2023, the applicant shared a clip on the family’s whatsapp group platform of a couple that had been murdered in Kisii as the couple visited their from United States. This clip, the applicant has sworn, was in the public domain. The applicant’s sister-in-law Alice Bogonko and her son were offended by the clip and, therefore, they lodged a complaint against the applicant with the police at Makadara Divisional Directorate of Criminal Investigations (DCI) offices.
4. Towards the end of March 2023, the applicant received a phone call from a Police officer who identified herself as Mrs. Caroline Mutiso summoning him to Makadara Directorate of Criminal Investigation premises to record a statement with respect to the complaint. However, on the 4 April 2023, the Police officer called the applicant and informed him that he need not honour the summons as the complainant, had requested the matter to be settled through a family reconciliation.
5. Before the conclusion of the alternative dispute resolution process, and more particularly on 11 April 2023, the police officer called the applicant to record the statement. The applicant was concerned that the matter was being investigated by Makadara Directorate of investigations yet both the applicant and the complainant were outside the geographical jurisdiction of Makadara and, for this reason, he complained to Director of Criminal Investigations. Nonetheless, the applicant presented himself to Makadara Directorate of Criminal Investigations and recorded the statement. He also supplied printed copies of the WhatsApp messages exchanged between him and Alice Mokaya Bogonko since October 2022. The applicant’s cell phone was then confiscated by the police for the reason that it was to undergo digital forensic examination at Cyber Crime Forensic Laboratory.
6. On 17 August 2023, the applicant was informed by his advocates that they had received a call from Makadara Divisional CID office that he was to appear in court the following day at Makadara Law Courts to answer to criminal charges which had been approved by the 1st Respondent. The applicant presented himself in court on 18 August 2023 when he was charged with the offence of Cyber Harassment Contrary to Section 27 (l)(a) of the Computer Misuse and Cybercrime Act No. 5 of 2018.
7. The applicant has sworn that he has been advised my counsel, which advice he verily believes to be true, that the particulars of the offence either do not disclose, or cannot sustain, the offence with which he has been charged or any offence at all. In the circumstances, the applicant has been advised by his counsel, which advice he believes to be true, that in charging him, the 1st Respondent abused his powers and discretion. Further, the 1st Respondent is said to have disregarded its National Prosecution Policy and, as such, the decision to charge the applicant is unreasonable. The decision to charge the applicant, it is sworn, was made in bad faith and to serve other improper and extraneous motives.
8. Senior Sergeant Caroline Mutiso swore a replying affidavit on behalf of the 1st and 2nd respondents. She has introduced herself in the affidavit as “a police officer attached to the Directorate of Criminal Investigations at Makadara” and that she is the investigation officer in respect to criminal case number E5054 of 2023 before Makadara Chief Magistrate Court.
9. According to sergeant Mutiso, on 23 March, 2023, the complainant Alice Mokaya reported a complaint of cyber harassment at Industrial Police Station. The complaint was entered in Occurrence Book as OB number 81/23a/3/2023. She, together with police constables John Paul and Baya were assigned the complaint for investigations by the DCI Makadara. In the process of investigations, statements were recorded from the complainant, the 1st interested party, 2nd interested party and the applicant. The complainant, the 1st interested party and 2nd interested party are said to run a number of businesses and work along Jirore road off Enterprises Road in Industrial Area.
10. After the complaint was received, the applicant requested for time to explore reconciliation with the complainant. However, after two weeks, both the complainant and the applicant reported back to the police that the reconciliation had failed and, therefore, they would pursue the matter in court.
11. During the investigations, the petitioner and the 1st interested party\'s mobile phones were forwarded to DCI forensic lab for digital forensic examination on 17 May 2013 and on 2 June, 2023, the officers received the forensic report and phones from the DCI forensic laboratory. After the investigations, the police file was compiled and forwarded to Office of the Director Public Prosecutions for perusal and directions.
12. Upon review of the evidence in the investigation file, the 1st respondent established that the file met the evidential threshold for prosecution and, therefore, a decision was reached to charge the applicant with the offence of cyber harassment contrary to section 27(1) of the Computer Misuse and Cyber Crime Act.
13. Sergeant Mutiso has been informed by the prosecution counsel, which information she believes to be true, that the decision to charge was based on Article 157 of the Constitution, the Office of the Director of Public Prosecutions Act and the National Prosecution Policy. Thus, in charging the applicant, the Director of Public Prosecutions did not abuse his Office, breach or infringe on any provision of the Constitution or any human and fundamental rights of the applicant.
14. The 2nd and 3rd respondents filed grounds of objection in which they pleaded that the application is an abuse of the due process of the Court and that it is only intended to curtail the statutory obligations and duties of the 3rd Respondent. The other ground is that the application is frivolous and vexatious because it does not disclose how the 3rd Respondent has acted outside his mandate and, in any event, the application does not disclose any illegality on the part of the 3rd Respondent.
15. It is the 3rd and 4th respondent’s case that the orders sought will undermine the investigatory functions of the 2nd Respondent which functions are stipulated in Section 24(e) of the National Police Service Act, No. 11A of 2011, thereby crippling the criminal justice system. Again, it is pleaded that if the orders are granted, the Honorable Court would be usurping the statutory mandate of the 3rd Respondent. It is also contended that the court cannot direct a public officer, including the respondents, to exercise their powers in any particular manner.
16. Finally, it has been urged that the applicant has failed to show how the acts complained of and the proceedings in MAKADARA MCCR NO. E5054 OF 2023 are tainted with illegality, irrationality and procedural impropriety.
17. The 1st interested party swore a replying affidavit opposing the applicant’s application. She has stated that the Applicant has not provided any evidence in proof of the fact that Shadrack Bogonko Nyamboki threatened to kill the Applicant. In any event, the said Shadrack Bogonko Nyamboki is not named as a party in these proceedings.
18. According to the 1st interested party, the clip sent to her by the applicant had the words which read as follows: \"Never take threats to life, especially from family members lightly. It is regrettable and unfortunate that some in pour family do not take seriously the predatory tendencies as exhibited by some of our siblings.\"
19. The 1st interested party has also sworn that the applicant declined any reconciliatory attempts to resolve the dispute. Contrary to the applicant’s allegations, the 1st interested party states that she works in Industrial Area Nairobi, Jirore Road off Enterprise Road and that was where the impugned message from the Applicant was received. She, therefore, reported the incident to the nearest police station.
20. It is the 1st interested party’s position that whether the words in the clip sent to her constituted an offence is an issue for determination by the trial court and not this Honourable Court. The 2nd interested party also swore a replying affidavit opposing the application. He has largely adopted the 1st respondent’s depositions.
21. As far as I understand the applicant, his case turns on whether a text message he sent to the 1st interested party constitute an offence under the Computer Misuse and Cybercrime Act No. 5 of 2018. In the applicant’s view, the text message cannot give rise to an offence under this provision of the law or any other law for that matter. The applicant’s position is clear from paragraphs 29 to 31 of the affidavit verifying the facts relied upon. They read as follows:
“29.THAT. I have been advised by my advocates on record which advice I verily believe to be true and correct that from a cursory perusal of the particulars of the offence the same do not support the charge and/or disclose any offence contrary to the provisions of section 134 and 137 of the criminal procedure code.
30.THAT, I aver that my words as captured in the particulars could not and cannot convey any threatening message to anyone leave alone Mrs Alice Mokaya Bogonko and Mr Hezron Nyamboki Bogonko with whom I had been engaged in amicable WhatsApp chats in which I pleaded for their help in persuading Mr Shadrack Bogonko Nyamboki not to cause any harm to me as earlier threatened.
31. THAT, I have been advised by my advocates on record which advice I verily believe to be true and correct that the 1st Respondent abused his power and discretion in preferring charges against me.”
22. And in submissions filed on the applicant’s behalf, it has been submitted that:
“3. The Ex Parte Applicant’s case is anchored on the grounds that from the face of the charge information to wit, the charge and particulars of the offence disclose no offence to sustain a criminal proceedings. The Charge sheet is annexed as annexture “HON4” in the Ex Parte Applicant’s Verifying Affidavit…”
23. A copy of the charge sheet exhibited to the applicant’s affidavit and in which the impugned words have been encapsulated reads, in its relevant part, as follows:
“CHARGE:
HARUN OSORO CYBER HARASSMENT CONTRARY TO SECTION 27(1)(a) OF THE COMPUTER MISUSE AND CYBERCRIME ACT NO.5 OF
2018.
PARTICULARS OF OFFENCE:
HARUN OSORO NYAMBOKI. On the 23rd day of June,2023 at unknown place within the Republic of Kenya, you willfully communicated directly to ALICE MOKAYA through WhatsApp by sending her a video with a threatening message caption to wit\" Never take threats to life, especially from family members lightly. It is regrettable and unfortunate that some in our family do not take seriously the predatory tendencies as exhibited by some of our siblings\", while you knew or ought to have known that your conduct was likely to cause apprehension or fear of violence to the said ALICE MOKAYA.
24. While the applicant is of the view that the impugned words cannot found a criminal offence either as alleged or at all, the 1st respondent is of a contrary opinion. They are of the firm view that these words constitute an offence for which their author, the applicant in these proceedings, is criminally liable. The applicant wants this Honourable Court to uphold his view and come to the conclusion that these words are not offensive and to the extent that he was charged for communicating what he believes to be innocent words, the 1st respondent abused his powers.
25. The trouble with the applicant’s quest is that I have to evaluate the prosecution evidence in order to come to the conclusion that either the words complained of do not form an offence under section 27(1)(a) of the Computer Misuse and Cybercrimes Act, as the applicant suggests or that indeed they constitute an offence as alleged by the prosecution.
26. The task of evaluating the evidence and determining whether a crime has been committed, and therefore, whether the Director of Public Prosecutions came to the correct decision is a task for the trial court and not a judicial review court.
27. Whether a judicial review court can delve into and interrogate evidence on a decision brought before it for determination of whether the decision is tainted on any of the grounds of judicial review is a question that was considered in R versus Secretary of State for the Home Department, ex p Khawaja (1984) AC 74 where the court noted as follows:
“The migration officer, whether at this stage of entry or at that of removal, as to consider a complex of statutory rules and non-statutory guidelines. He has to act upon documentary evidence and such other evidence as inquiries may provide. Often there will be documents was genuineness is doubtful, statements which cannot be verified, misunderstandings as to what was said, practices and attitudes in a foreign state which have to be estimated. There is room for appreciation, even for discretion. The Divisional Court, on the other hand, on judicial review of a decision to remove and detain, is very different situated. It considers the case on affidavit evidence, as to which cross-examination, though available, does not take place in practice. It is, as this case well exemplifies, not in a position to find out the truth between conflicting statements-did the applicant receive notes, did he read them, was he incapable of misunderstanding them, what exactly took place at the point of entry$1 Nor is it in a position to weigh the materiality of personal or other factors present, or not present or partially present, to the mind of the immigration authorities. It cannot possibly act as, in effect, a court of appeal as to the facts on which the migration officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the immigration officer, acting reasonably, would decide as he did. (Per Lord Wilberforce at p. 949B-D). (Emphasis added).
28. Though this case concerned immigration and the questions posed were pertinent to the issues of immigration, the principle applied as to the limits of a judicial review court entertaining disputes on factual issues would be as much applicable in the instant case. The evidence placed before court is evidence that is, more or less, conflicting and the truth of which may only be determined after it has been subjected to cross-examination in a trial court. A judicial review court cannot assume appellate jurisdiction and interrogate the evidence afresh so as to come to its own conclusion as to whether the Director of Public Prosecutions properly exercised his discretion in charging the applicant.
29. Lord Woolf was more apt in R versus Derbyshire County Council, ex p Noble (1990) ICR at p. 813C-D where he stated:
“The present application is one which is unsuitable for disposal on an application for judicial review-unsuitable because it clearly involves a conflict of fact and conflict of evidence which would require investigation and would involve discovery and cross examination. Cross-examination and discovery can take place on application for judicial review, but in the ordinary way judicial review is designed to deal with matters which can be resolved without resorting to those procedures.”
30. On the same point Lord Diplock at p.316G in Hoffmann-La-Roche (F) & Co AG versus Secretary of State for Trade and Industry (1975) AC 295 was of the view that the procedure on a judicial review motion is unsuited to enquiries into disputed facts. Oral evidence and discovery, although catered for by the rules are not part of the ordinary stock in trade of the prerogative jurisdiction.
31. The Supreme Court of Kenya addressed this same point in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) where it was held:
“[76] Be that as it may, it is the Court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in Section 11 (1) and (2) of the Fair Administrative Actions Act. Third, the Court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in Section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this Court held in the case of Kenya Vision 2030 Delivery Board v. The Commission on Administrative Justice, the Attorney General and Eng. Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.” (Emphasis added).
32. One other important point to consider is that it is left to the discretion of the Director of Public Prosecutions to charge or not to charge if, in his view, any particular conduct constitutes an offence. The discretion to charge has a constitutional underpinning in Article 157(6)(a) of the Constitution which states as follows:
157.(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(Emphasis added).
33. The discretion to charge or not to charge is, of course not to be exercised at the whim of the Director of Public Prosecutions but it is subject to the supervisory jurisdiction of this Honourable Court. This point was taken as early as 1969 in Inspector Shaaban bin Hussien and others versus Chong Fook Kam and another (1969) 3 ALL ER 1626 where the Privy Council noted as follows:
“It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion… There is no serious danger in a large measure of executive discretion in the first instance because in countries where common law principles prevail the discretion is subject indirectly to judicial control.”
34. Perhaps, I need to add that in Kenya, over and above the common law principles, the Constitution is the benchmark upon which the exercise of the discretion by the Director of Public Prosecutions is weighted. This why it is expressly stated in Article 157(11) of the Constitution that in exercising the powers conferred by Article 157 the Director of Public Prosecutions is enjoined to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. On this point I agree with the applicant’s submissions that:
“…on whether the Court has jurisdiction to interfere with the 1st Respondent’s discretion and constitutional mandate to charge and prosecute, we submit in the affirmative. We submit that the 1st Respondent is not above the law nor does he have carte blanche to do as he/she pleases but to conduct his/her mandate within the convenes of the law.”
35. Indeed whenever an application such as the instant one is lodged before court, it is incumbent upon court to check whether in exercise of his discretion, the Director of Public Prosecutions has given due regard to public interest, the administration of justice and the due process.
36. That notwithstanding and, to his credit, the applicant acknowledges the powers and discretion with which the Director of Public Prosecutions is vested under Article 157 of the Constitution and submitted that:
“First, we must concede that the Office of the Director of Public Prosecution is an independent office established under Article 157 of the Constitution of Kenya, 2010. Pursuant to Article 157 (6) the Director of Public Prosecution is given the mandate to exercise the state’s prosecution power, meaning, the holder of the office can institute and undertake criminal proceedings against any person before any court including the Ex-parte Applicant.
Further, the 1st Respondent pursuant to Article 157 (10) of the Constitution does not require the consent of any person and/or authority to commence any criminal proceedings. The 1st Respondent in exercise of his or her powers will not be under the direction or control of any person or authority.”
37. If a judicial review court has to disturb the exercise of discretion by the Director of Public Prosecutions, or any other public authority for that matter, it must bear in mind that:
“The very concept of administrative discretion involves a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred.”
These are the words of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan BC [1976] 3 All ER 665 at 695, [1977] AC 1014 at 1064.
38. In the case against the applicant, investigations were undertaken and these included taking statements from witnesses and the applicant. Exhibits were collected and subjected to forensic analysis. Upon conclusion of the investigations, the police compiled their investigations file and forwarded it to the Director of Public Prosecutions who, after considering the evidence, was of the opinion that an offence had been committed and, therefore, the applicant ought to be charged. I cannot find anything, in the material presented before court, to suggest that, in reaching the decision to charge the applicant, the Director of Public Prosecutions did not exercise his discretion properly.
39. In any event, the Director of Public Prosecutions will have opportunity to present his case before the trial court based on the evidence he has gathered. No doubt, this evidence will be tested when the applicant is given the opportunity to cross-examine the prosecution witnesses and if, in the process, he succeeds in raising a reasonable doubt on, among other things, the weight or value of the impugned evidence, he will be acquitted.
40. A judicial review court cannot assume the Director of Public Prosecution’s duty and direct the Director of Public Prosecution to exercise his discretion in a particular way and neither can it purport to substitute its own decision for that of the Director of Public Prosecutions. Similarly, it cannot assume the jurisdiction of the trial court and decide whether offences alleged to have been committed were indeed committed.
All the court would be concerned about is the process by which the decision to prosecute the applicant was reached.
41. In Energy Regulatory Commission v S G S Kenya Limited & 2 others (2018) eKLR Civil Appeal No. 341 of 2017 the Court of Appeal faulted the this Honourable Court for determining a judicial review matter as if it was an appeal, and for going into the merits of a decision already taken. The Appellate Court held it to be improper for the High Court to make value judgment regarding the evidence; to weigh the same, and to minutely examine it, to determine whether it reached a certain standard of acceptance. The Court found that the High Court had occasioned room for abuse of its power, by usurping the competences of the Public Procurement Administrative Review Board.
It was held that in a judicial review matter, the Court’s mandate is limited to procedural improprieties, and extends not to the merits of a decision.
42. And in OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others [2017] eKLR Civil Appeal No. 28 of 2016 it was held that:
“Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question. See Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited (2008) Misc. Civil Appl. No. 374 of 2006. In judicial review proceedings, the mere fact that the public body’s decision was based on insufficient evidence, or on misapplication of evidence, cannot be a ground granting judicial review remedies. Whether that decision was right or not, the affected party ought to challenge it on appeal. In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review. See East African Railways Corp. vs. Anthony Sefu Far-Es-Salaam (1973) EA 327.”
43. Courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness in the purported exercise of the power be such as to amount to an abuse of the power. See Preston v IRC [1985] 2 All ER 327, [1985] AC 835, per Lord Templeman.
44. And in Chief Constable of the North West Police vs Evans (1982) 3 ALL ER 141 at 154 it was held that:
“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”
It was held further in this case that:
“The remedy by way of judicial review under RSC…, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and …administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner…and not to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.” (Per Lord Hailsham at 1160E-H).
45. These authorities together with the Supreme Court’s decision in Saisi & 7 others v Director of Public Prosecutions & 2 others (supra) point to the conclusion that a judicial review court should not supplant a public authority’s decision with its own decision. I need not belabour the point that judicial review is concerned more with the process by which a decision is arrived at than with the merits of that decision unless, of course, the decision is so irrational or unreasonable that no reasonable tribunal could have reached it.
46. As far as I can see, there is no basis upon which the process by which the Director of Public Prosecution reached the decision to charge the applicant can be faulted. He was presented with evidence which, upon consideration, he suspected the applicant to have committed a crime. It is not in dispute that before he was charged, the applicant was given opportunity to be heard and, in that regard, his statement was recorded. He remains innocent until he is proved guilty. No doubt, he has been charged only because he is suspected to have committed the offence with which he has been charged.
47. For the foregoing reasons I do not agree with the applicant’s counsel’s submissions that the charges against him constitute an abuse of the 1st respondent’s prosecutorial powers or the exercise of his discretion.
48. Accordingly, I am not satisfied that the judicial review ground of illegality which, apparently, is the sole ground upon which the application is based or any of the other judicial review grounds have been proved to exist. Taking cue from Lord Diplock in Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 where the learned judge defined the grounds for judicial review, I am not persuaded that the 2nd respondent’s decision can be regarded illegal since there is no proof that, in charging the applicant, the 1st respondent did not correctly understand his powers under the constitution or any other written law that regulates his decision-making power.
49. The 1st respondent’s decision is also not so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question at hand under the same set of circumstances would have arrived at the same decision.
50. Finally, there is no basis for the ground of procedural impropriety since the applicant was given opportunity to tell his side of the story before he was arraigned. The trial court should be competent enough to determine the question whether the evidence gathered by the 2nd respondent and which the 1st respondent intends to use against the applicant is, among other things, admissible and whether it does carry, for instance, any probative value.
In the ultimate, I hold the applicant’s application as lacking in merit and it is hereby dismissed. Parties will bear their respective costs. It is so ordered.