JOSEPH GITONGA VS THE OCS CENTRAL POLICE STATION MOMBASA AND THE DIRECTOR OF PUBLIC PROSCECUTION

1. The Applicant sought leave to apply for orders of prohibition and mandatory injunction. The orders that can be issued under Article 23(2) of the Constitution include: -
(i) A declaration of rights.
(ii)  An injunction.
(iii)  Conservatory order
(iv)  A declaration of invalidity of any law.
(v)  Order of compensation.
(vi)  An order of Judicial Review.

2. An order of Judicial Review is not defined. However, Order 53 Rule 1 provides for the orders of mandamus, prohibition and certiorari. Though Order 53 Rule 1 requires leave, this is anathema to good order and having been elected to constitutional status, there is no need for leave. Indeed, Article 23 is explicit. Kenya no longer has a duo/way of challenging unconstitutional matters.

3. It is one united way for which the Court, can be approached. The applicant as such does not need leave to file for Judicial Review.

4. Further in order to seek for a mandatory injunction there has never been a requirement for leave. In the circumstances the applicant is free to file for Judicial Review, for certiorari, mandamus and prohibition without the need for leave. If leave was needed I will have issued prayer (2). In the circumstances I find the application unnecessary. Let the applicant proceed and file for Judicial Review in the manner and style he may wish. If he needed conservatory orders the same should be sought within the purview of the Judicial Review that he is now entitled to file without the necessity for leave.

5. It is my finding that Order 53 Rule 1 is superfluous in view of the right to accept justice. The court can no longer be the gate keeper.

6. If the application were to be frivolous it will be dismissed as used on merit. The file is closed.

Determination
(a) The application for leave to institute Judicial Review proceedings is unnecessary.
(b) The Applicant is at liberty to institute Judicial Review proceedings or   a constitutional Petition without leave.
(c) Order 53 Rule 1 of the Civil Procedures Rules is superfluous on the face of Article 23 (1) of the Constitution.
(d) This file is closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 11th day of December, 2023. Judgment delivered through Microsoft Teams Online Platform.

In the presence of:
Mr. Makuto for the Respondent
No appearance for the Applicant
Court Assistant - Brian