1. The applicant’s application is a motion dated 29 February 2024 expressed to be filed under Order 53 of the Civil Procedure Rules. The applicant seeks the following orders:
“i) An order of certiorari to remove into this Honourable court for the purposes of being quashed, all criminal proceedings instituted against the exparte applicant in Milimani Chief Magistrates Criminal Case No. MCCR E1134 of 2023; Republic vs JOY KARWITHA KAARIA
ii) An order of prohibition do (sic) issue directed at the Respondents prohibiting further proceedings in Milimani Chief Magistrates Criminal Case No. MCCR E1134 of 2023; Republic vs JOY KARWITHA KAARIA and further prohibiting them or any of their agents or persons acting through or under them from instituting any future charges against the exparte applicant in respect to the subject matter.”
The applicant has also sought costs of the application.
2. The application is based on a statutory statement dated 21 February 2024 and an affidavit verifying the facts relied upon sworn on even date by the applicant. According to the applicant, by an agreement dated 20 April 2023, she purchased a motor vehicle registration No. KCX 783E Range Rover from a company called LUXURY VEHICLE IMPORTS LIMITED. The execution of the agreement was witnessed by the 4th respondent who is the sole director of the 5th respondent. At the time of the purchase of the vehicle, the applicant was an employee of the 5th respondent where she was engaged as “the head of technical sales”. However, even after payment of the full purchase price, the vehicle was not transferred to the applicant owing to what she has described as “criminal intimidation of agents of the vendors by the 4th respondent.”
3. On 23 October 2023, the applicant filed a civil suit against the vendors and the 4th respondent, being Milimani Commercial Case No. E 889 of 2023 seeking, inter alia, a declaration that she is the bona fide purchaser of the motor vehicle. Notwithstanding the pending civil suit, it is alleged that the 4th respondent, in collusion with the 1st respondent’s officers, transferred the motor vehicle to the 5th respondent. On 14 November 2023, the applicant obtained an injunction against the transfer of the motor vehicle pending the hearing and determination of the suit.
4. The 4th respondent is said to have further colluded with the 1st respondent and had the applicant arrested and arraigned on 22 December 2023 on charges of stealing by servant contrary to section 281 of the Penal Code, cap. 63. The applicant is alleged to have stolen the motor vehicle. It is the applicant’s case that the criminal case is meant to intimidate the applicant and pre-empt the outcome of the civil suit. Accordingly, it is alleged that the criminal case is an abuse of the court process. In what the applicant claims to be further abuse of the court process, the 1st and 2nd respondents filed an application dated 15 January 2024 seeking orders that the vehicle be released to the 5th respondent with a view to subvert the interim orders obtained by the applicant.
5. Corporal Julius Ng’etich swore a replying affidavit for the 1st and 2nd respondents opposing the application. He has sworn that he is an investigations officer attached to the Directorate of Criminal Investigations at Kilimani police station. He conducted investigations that lead to criminal case against the applicant, being Milimani Chief Magistrates Court Criminal Case Case No. 1134 of 2023.
6. According to corporal Ng’etich, the complainant Ajay Jawla Kumar, named as 4th respondent in this case, reported that Revere Technologies Limited, a company in which he is the sole director, purchased a motor vehicle for use by the applicant as the sales manager of the company. The investigations revealed that the applicant was the sales manager of the 4th respondent’s company from October 2018 to 30 September 2023 when her services were terminated. The purchase price for the vehicle was Kshs. 3,200,000/= which the 4th respondent and the 5th respondents duly paid. He has exhibited on his affidavit evidence of payment by the 4th and 5th respondents.
7. Upon payment of the full purchase price, the vehicle was transferred to the 5th respondent’s name on 25 October 2023. When the 4th respondent lodged the complaint to the police that the vehicle had been stolen, it was impounded and detained at Kilimani police station. After conclusion of the investigations, the police file was forwarded to the 2ⁿᵈ respondent with the recommendation that the applicant be charged with the offence of stealing by servant contrary to section 281 of the Penal Code. The 2ⁿᵈ respondent established that the file met the threshold for prosecution and, therefore, a decision to charge the applicant made.
8. Once the applicant was arraigned, the court issued a court order releasing the motor vehicle to the complainant after photographs were taken by the scene of crime personnel. Corporal Ng’etich has sworn that as a police officer, he has a duty to investigate any complaint once it is made and that, in this particular case, the investigations were commenced as a result of the 4th respondent’s complaint. Thus, the investigations were not malicious or meant to harass, intimidate or embarrass the applicant.
9. The 4th and 5th respondents filed grounds of objection and replying affidavits opposing the application. In the grounds of objection, the 4th and 5th respondents have pleaded that the application is fatally defective, manifestly incompetent, an abuse of the Court process and that this Honourable Court does not have jurisdiction to issue the orders sought against them. It is urged that the prerogative writ of prohibition cannot be granted against the 4th and 5th respondents because they do not and were not exercising a quasi-judicial mandate in the impugned decision. The impugned decision cannot be attributed to them as theirs is not a public duty and neither do they exercise quasi- judicial mandate.
10. The 4th and 5th respondents have also urged that while the applicants seek to prohibit an administrative action, they had no role in the administrative action taken by the 1st and 2nd respondents. Accordingly, it has been urged, this Honorable Court does not have jurisdiction to issue any of the orders sought against the 4th and 5th respondents.
11. Further, section 2 of the Fair Administrative Action Act, 2015, defines an “administrative action” to include “the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.” And section 3 of the Fair Administrative Action Act provides for the applicability of the Act in the following terms: -
“This Act applies to all state and non-state agencies, including any person–
(a) exercising administrative authority;
(b) performing a judicial or quasi-judicial function under the Constitution or any written law; or
(c) whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.
12. Section 2 of the Fair Administrative Action Act defines a “decision” to mean-
“any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be”. In this case, the applicant has not challenged any “decision” or “administrative action” of the 4th and 5th respondents in their private capacities to bring them within the province of section 3 of the Fair Administrative Action Act. It, therefore, follows that the 4th and 5th respondents in this suit are not subject to the remedies of judicial review.
13. It has also been urged that the 5th respondent was not involved in the civil proceedings, and it is misleading and inappropriate to claim that there is an interlocutory order against it. The applicant, it is pleaded, cannot disregard the separate legal personality of the 5th respondent. The 4th and 5th respondents, cannot be treated as one and the same entity because this would violate the doctrine of corporate personality.
14. The 4th and 5th respondents have also posited that the applicant’s application is wholly premised on an application, in the criminal proceedings, for the release of a motor vehicle to the 5th Respondent, which is the complainant and the owner of the motor vehicle. According to the 4th and 5th respondents, by applying for the release of the vehicle, the latter was simply exercising its rights under the law, and that cannot be deemed to be a collusion of the 1st, 2nd, and 4th respondents, as suggested by the applicant. It is averred that the law allows release of a complainant’s goods and items pending the hearing and determination of the criminal proceedings under section 177 of the Criminal Procedure Code, cap. 75. This provision reads as follows:-
“Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—
(a) that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or
(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.”
15. In the same vein, section16 of the Victim Protection Act, 2014 also provides for release of property to the victim who, in this case would be the complainant. It provides as follows:
“Where a law enforcement agency is in possession of any property of a victim, the head of the law enforcement agency shall, where the agency is satisfied that the property is no longer needed as evidence for an investigation or prosecution, ensure that the property is returned to the victim promptly.”
16. According to the 4th and 5th respondents, the latter, being the registered proprietor of the motor vehicle was entitled, as a matter of right, to have its motor vehicle returned to it by dint of the above provisions of law. Therefore, it is urged, it is unreasonable and sheer ignorance of the law to infer collusion between the 1st, 2nd, and 4th respondents simply because the 5th respondent exercised its legal rights.
17. It is also pleaded that although the applicant has made what the 4th and 5th respondents have described as “disparaging, thoughtless, and libelous remarks” against the 1st, 2nd, 4th and 5th respondents, by accusing them of collusion, she has not presented any evidence to demonstrate malice, bad faith, or an abuse of the court process. It is urged that the Court in Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR held that:
“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”
18. It is also contended that the applicant cannot halt her criminal prosecution solely because she has initiated a civil suit because, according to section 193A of the Criminal Procedure Code, both civil and criminal proceedings may proceed at the same time. The section reads as follows:
“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”
19. The 4th and 5th respondents have also cited Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69 where the court held that:
“A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution...In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution...There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. In absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the applicants might not get affair trial as protected in the Constitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts.”
20. It is the 4th and 5th respondents’ position that besides casting aspersions and deliberate misrepresentation of facts, the applicant has not presented any material before court to show ulterior motive or anything illegal to interfere with the criminal proceedings which had already been scheduled for hearing. The applicant is alleged to be misusing the current judicial review proceedings to stop her prosecution for stealing the 5th respondent’s motor vehicle.
21. In their replying affidavits, the 4th and 5th respondents have reiterated the depositions made by corporal Ng’etich. As far as the transfer of the vehicle is concerned, the 4th respondent has deposed that the motor vehicle was transferred on 25 October 2024 but that he was served with the court pleadings on 26 October 2024.In any event the transfer was to the 5th respondent.
22. The 4th respondent has also sworn that the complaint against the applicant was made way before she filed her civil suit. In any event, the 5th respondent was not party to the civil proceedings. He has sworn further that copies of the pleadings in the civil suit exhibited to the applicant’s affidavit in this application are different from the pleadings filed in the civil court.
23. I have had the opportunity to consider the parties’ written submissions. In a judicial review application such as the one before court, it is the grounds on which judicial review reliefs are sought that are of immediate interest to the court. The grounds constitute the first hurdle which an applicant must surmount because without them, an application for judicial review would be non-starter. Needless to say, the point of entry for a judicial review court to intervene and check the powers of subordinate courts or tribunals or such other bodies whose powers are subject to supervisory jurisdiction of this Honourable Court is the grounds upon which the application is made.
24. This is obvious from Order 53 Rule 1(2) of the Civil Procedure Rules which states in rather peremptory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
25. And Order 53 Rule 4(1) states, also unambiguously, that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
26. The grounds to which reference has been made in these provisions of the law have not been left to speculation or conjecture. They were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety.
27. These grounds are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and may grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed. Since they form the foundation upon which the application for judicial review is based, these grounds must be stated in precise, clear and unambiguous terms in the statement accompanying the application for leave.
28. Turning to the applicant’s application, I have perused the statement accompanying the application for leave in search of the grounds of judicial review upon which the applicant’s application is founded. I must confess that it has been difficult to decipher which, if any, of these grounds the applicant has adopted. It is only in paragraphs 16 and 17 in the statement, accompanying the application for leave, that the applicant has come closest to hinting of what could be the grounds upon which her application is founded; in those paragraphs, she has pleaded as follows:
“16) That in an obvious demonstration of abuse of the court process, the 4th and 5th respondents in collusion with the 1st and 2nd respondents have filed an application dated 15th January 2024 seeking orders that the Subject motor vehicle be released to the 5th respondent with a view to subvert the ruling of the commercial court (prior to production of the vehicle as an exhibit) in clear demonstration of the intention to defeat the interlocutory orders. enjoyed by the ex parte applicant.
17) That the Ex-parte applicant seeks to stay the proceedings on the grounds that the Criminal proceedings aforesaid are an offspring of malice, bad faith and an abuse of the court process aimed at subverting the interlocutory orders issued by the Civil Court.”
29. At a first glance, I thought paragraph 16 could be referring to procedural impropriety but again the applicant refers to “abuse of the court process” which is not necessarily synonymous with the judicial review ground of procedural impropriety. In paragraph 17, malice and bad faith would be aspects of the ground of illegality. The difficulty the applicant has put the court in is quite apparent. She has “thrown everything”, so to speak, to court for the court to make out which of the grounds of judicial review her application is founded.
30. While reiterating the importance of stating grounds for judicial review in concise and precise terms, Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”
31. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.
32. But even if the applicant was to be given the benefit of doubt, I am unable to fault the decision to charge and prosecute her on all or any of the grounds of judicial review. I say so because although the thrust of the applicant’s application is the ownership of motor vehicle registration no. KCX 783E and the applicant is categorical that she purchased this motor vehicle “vide a Motor Vehicle Sale Agreement dated 20th April 2023”, there is no evidence that she paid for it. To the contrary, the only evidence of payment is from the 5th respondent in whose name the vehicle was eventually registered and the 4th respondent, who is the sole director of the 5th respondent.
33. Based on the material before court, this evidence is uncontroverted. The question that this court cannot determine and which would properly be left for the trial courts to decide is why the applicant would be indicated in the sale agreement as the purchaser of the vehicle when the vehicle belonged to and was paid for by the 5th respondent. Of course, there is evidence that the 4th respondent also made some payments as well towards settlement of the purchase price.
34. I am persuaded that, based on the material before court, I wouldn’t fault the 1st and 2nd respondents’ decision if they proceeded on the assumption that the vehicle belonged to the 5th respondent and, therefore, the applicant is deemed to have stolen it if she took the vehicle without the 5th respondent’s authority or consent. This, however, should not be taken to pre-empt the outcome of both the civil and criminal cases. The courts in those cases will come to their own conclusions based on the evidence presented before them and, of course, the parties’ respective cases will be subjected to the requisite standard of proof.
35. If, based on the evidence gathered by the 1st respondent, the 2nd respondent is of the opinion that a charge of theft by servant is sustainable, then it will be left for the trial court to determine whether that charge has been proved at the closure of the trial. It is sufficient that the applicant is reasonably suspected to have committed a crime defined in law. It is trite that reasonable suspicion is not synonymous with a prima facie case and neither does it mean that the 1st respondent had to prove the complaint against the applicant at the investigation stage. The Privy Council in Inspector Shaaban bin Hussien and others versus Chong Fook Kam and another (1969 3 ALL ER 1626, defined suspicion in this context as follows:
“Suspicion in its ordinary meaning is state of conjunctive or surmise where proof is lacking. ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete, it is ready for trial and passes on to its next stage. 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.”
36. If, in the opinion of the 2nd respondent, he has sufficient evidence upon which he can mount a criminal case against the applicant, a judicial review court cannot, and should not stand in his way to do so.
37. It is also important to be mindful of the discretion with which the 2nd respondent has been clothed in taking the decision to prosecute or not to prosecute. This concept was also explained in the above decision as a common law principle but, in Kenya, it also has a constitutional underpinning in Article 157(6)(a) of the Constitution; this Article reads 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).
38. 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. Again, this point was taken in Inspector Shaaban bin Hussien and others versus Chong Fook Kam and another (supra)where the Privy Council noted: “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.”
39. It has been noted 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.
40. Taking all these factors into consideration, 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.
41. Against this background, I do not see anything, in the material presented before court, to suggest that, in reaching the decision to charge the applicant, the 2nd respondent did not exercise his discretion properly. As I have noted, the 2nd respondent will have opportunity to present his case before the trial court based on the evidence he has gathered. There is also no doubt, that the prosecution evidence will be tested when the applicant is given the opportunity to cross-examine the prosecution witnesses and if, in the process, she succeeds in raising a reasonable doubt on the cogency or the weight of that evidence, she will certainly be acquitted.
42. As I have noted in my previous decisions in cases similar to the one before court, 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 any particular way; 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.
43. As far as I can see, there is no basis upon which the process employed by the 2nd respondent to reach his decision can be faulted. He has been presented with evidence which, upon consideration, he suspects the applicant to have committed a crime. Like the rest of the respondents upon whom the Constitution has placed a duty and the mandate to undertake their constitutional and statutory duties, the 2nd respondent ought to be allowed to proceed and exercise his powers to prosecute.
44. For these reasons, I do not find any merit in the applicant’s application. It is hereby dismissed with costs. Orders accordingly.
“i) An order of certiorari to remove into this Honourable court for the purposes of being quashed, all criminal proceedings instituted against the exparte applicant in Milimani Chief Magistrates Criminal Case No. MCCR E1134 of 2023; Republic vs JOY KARWITHA KAARIA
ii) An order of prohibition do (sic) issue directed at the Respondents prohibiting further proceedings in Milimani Chief Magistrates Criminal Case No. MCCR E1134 of 2023; Republic vs JOY KARWITHA KAARIA and further prohibiting them or any of their agents or persons acting through or under them from instituting any future charges against the exparte applicant in respect to the subject matter.”
The applicant has also sought costs of the application.
2. The application is based on a statutory statement dated 21 February 2024 and an affidavit verifying the facts relied upon sworn on even date by the applicant. According to the applicant, by an agreement dated 20 April 2023, she purchased a motor vehicle registration No. KCX 783E Range Rover from a company called LUXURY VEHICLE IMPORTS LIMITED. The execution of the agreement was witnessed by the 4th respondent who is the sole director of the 5th respondent. At the time of the purchase of the vehicle, the applicant was an employee of the 5th respondent where she was engaged as “the head of technical sales”. However, even after payment of the full purchase price, the vehicle was not transferred to the applicant owing to what she has described as “criminal intimidation of agents of the vendors by the 4th respondent.”
3. On 23 October 2023, the applicant filed a civil suit against the vendors and the 4th respondent, being Milimani Commercial Case No. E 889 of 2023 seeking, inter alia, a declaration that she is the bona fide purchaser of the motor vehicle. Notwithstanding the pending civil suit, it is alleged that the 4th respondent, in collusion with the 1st respondent’s officers, transferred the motor vehicle to the 5th respondent. On 14 November 2023, the applicant obtained an injunction against the transfer of the motor vehicle pending the hearing and determination of the suit.
4. The 4th respondent is said to have further colluded with the 1st respondent and had the applicant arrested and arraigned on 22 December 2023 on charges of stealing by servant contrary to section 281 of the Penal Code, cap. 63. The applicant is alleged to have stolen the motor vehicle. It is the applicant’s case that the criminal case is meant to intimidate the applicant and pre-empt the outcome of the civil suit. Accordingly, it is alleged that the criminal case is an abuse of the court process. In what the applicant claims to be further abuse of the court process, the 1st and 2nd respondents filed an application dated 15 January 2024 seeking orders that the vehicle be released to the 5th respondent with a view to subvert the interim orders obtained by the applicant.
5. Corporal Julius Ng’etich swore a replying affidavit for the 1st and 2nd respondents opposing the application. He has sworn that he is an investigations officer attached to the Directorate of Criminal Investigations at Kilimani police station. He conducted investigations that lead to criminal case against the applicant, being Milimani Chief Magistrates Court Criminal Case Case No. 1134 of 2023.
6. According to corporal Ng’etich, the complainant Ajay Jawla Kumar, named as 4th respondent in this case, reported that Revere Technologies Limited, a company in which he is the sole director, purchased a motor vehicle for use by the applicant as the sales manager of the company. The investigations revealed that the applicant was the sales manager of the 4th respondent’s company from October 2018 to 30 September 2023 when her services were terminated. The purchase price for the vehicle was Kshs. 3,200,000/= which the 4th respondent and the 5th respondents duly paid. He has exhibited on his affidavit evidence of payment by the 4th and 5th respondents.
7. Upon payment of the full purchase price, the vehicle was transferred to the 5th respondent’s name on 25 October 2023. When the 4th respondent lodged the complaint to the police that the vehicle had been stolen, it was impounded and detained at Kilimani police station. After conclusion of the investigations, the police file was forwarded to the 2ⁿᵈ respondent with the recommendation that the applicant be charged with the offence of stealing by servant contrary to section 281 of the Penal Code. The 2ⁿᵈ respondent established that the file met the threshold for prosecution and, therefore, a decision to charge the applicant made.
8. Once the applicant was arraigned, the court issued a court order releasing the motor vehicle to the complainant after photographs were taken by the scene of crime personnel. Corporal Ng’etich has sworn that as a police officer, he has a duty to investigate any complaint once it is made and that, in this particular case, the investigations were commenced as a result of the 4th respondent’s complaint. Thus, the investigations were not malicious or meant to harass, intimidate or embarrass the applicant.
9. The 4th and 5th respondents filed grounds of objection and replying affidavits opposing the application. In the grounds of objection, the 4th and 5th respondents have pleaded that the application is fatally defective, manifestly incompetent, an abuse of the Court process and that this Honourable Court does not have jurisdiction to issue the orders sought against them. It is urged that the prerogative writ of prohibition cannot be granted against the 4th and 5th respondents because they do not and were not exercising a quasi-judicial mandate in the impugned decision. The impugned decision cannot be attributed to them as theirs is not a public duty and neither do they exercise quasi- judicial mandate.
10. The 4th and 5th respondents have also urged that while the applicants seek to prohibit an administrative action, they had no role in the administrative action taken by the 1st and 2nd respondents. Accordingly, it has been urged, this Honorable Court does not have jurisdiction to issue any of the orders sought against the 4th and 5th respondents.
11. Further, section 2 of the Fair Administrative Action Act, 2015, defines an “administrative action” to include “the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.” And section 3 of the Fair Administrative Action Act provides for the applicability of the Act in the following terms: -
“This Act applies to all state and non-state agencies, including any person–
(a) exercising administrative authority;
(b) performing a judicial or quasi-judicial function under the Constitution or any written law; or
(c) whose action, omission or decision affects the legal rights or interests of any person to whom such action, omission or decision relates.
12. Section 2 of the Fair Administrative Action Act defines a “decision” to mean-
“any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be”. In this case, the applicant has not challenged any “decision” or “administrative action” of the 4th and 5th respondents in their private capacities to bring them within the province of section 3 of the Fair Administrative Action Act. It, therefore, follows that the 4th and 5th respondents in this suit are not subject to the remedies of judicial review.
13. It has also been urged that the 5th respondent was not involved in the civil proceedings, and it is misleading and inappropriate to claim that there is an interlocutory order against it. The applicant, it is pleaded, cannot disregard the separate legal personality of the 5th respondent. The 4th and 5th respondents, cannot be treated as one and the same entity because this would violate the doctrine of corporate personality.
14. The 4th and 5th respondents have also posited that the applicant’s application is wholly premised on an application, in the criminal proceedings, for the release of a motor vehicle to the 5th Respondent, which is the complainant and the owner of the motor vehicle. According to the 4th and 5th respondents, by applying for the release of the vehicle, the latter was simply exercising its rights under the law, and that cannot be deemed to be a collusion of the 1st, 2nd, and 4th respondents, as suggested by the applicant. It is averred that the law allows release of a complainant’s goods and items pending the hearing and determination of the criminal proceedings under section 177 of the Criminal Procedure Code, cap. 75. This provision reads as follows:-
“Where, upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—
(a) that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or
(b) that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.”
15. In the same vein, section16 of the Victim Protection Act, 2014 also provides for release of property to the victim who, in this case would be the complainant. It provides as follows:
“Where a law enforcement agency is in possession of any property of a victim, the head of the law enforcement agency shall, where the agency is satisfied that the property is no longer needed as evidence for an investigation or prosecution, ensure that the property is returned to the victim promptly.”
16. According to the 4th and 5th respondents, the latter, being the registered proprietor of the motor vehicle was entitled, as a matter of right, to have its motor vehicle returned to it by dint of the above provisions of law. Therefore, it is urged, it is unreasonable and sheer ignorance of the law to infer collusion between the 1st, 2nd, and 4th respondents simply because the 5th respondent exercised its legal rights.
17. It is also pleaded that although the applicant has made what the 4th and 5th respondents have described as “disparaging, thoughtless, and libelous remarks” against the 1st, 2nd, 4th and 5th respondents, by accusing them of collusion, she has not presented any evidence to demonstrate malice, bad faith, or an abuse of the court process. It is urged that the Court in Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR held that:
“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”
18. It is also contended that the applicant cannot halt her criminal prosecution solely because she has initiated a civil suit because, according to section 193A of the Criminal Procedure Code, both civil and criminal proceedings may proceed at the same time. The section reads as follows:
“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”
19. The 4th and 5th respondents have also cited Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69 where the court held that:
“A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution...In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution...There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. In absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the applicants might not get affair trial as protected in the Constitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts.”
20. It is the 4th and 5th respondents’ position that besides casting aspersions and deliberate misrepresentation of facts, the applicant has not presented any material before court to show ulterior motive or anything illegal to interfere with the criminal proceedings which had already been scheduled for hearing. The applicant is alleged to be misusing the current judicial review proceedings to stop her prosecution for stealing the 5th respondent’s motor vehicle.
21. In their replying affidavits, the 4th and 5th respondents have reiterated the depositions made by corporal Ng’etich. As far as the transfer of the vehicle is concerned, the 4th respondent has deposed that the motor vehicle was transferred on 25 October 2024 but that he was served with the court pleadings on 26 October 2024.In any event the transfer was to the 5th respondent.
22. The 4th respondent has also sworn that the complaint against the applicant was made way before she filed her civil suit. In any event, the 5th respondent was not party to the civil proceedings. He has sworn further that copies of the pleadings in the civil suit exhibited to the applicant’s affidavit in this application are different from the pleadings filed in the civil court.
23. I have had the opportunity to consider the parties’ written submissions. In a judicial review application such as the one before court, it is the grounds on which judicial review reliefs are sought that are of immediate interest to the court. The grounds constitute the first hurdle which an applicant must surmount because without them, an application for judicial review would be non-starter. Needless to say, the point of entry for a judicial review court to intervene and check the powers of subordinate courts or tribunals or such other bodies whose powers are subject to supervisory jurisdiction of this Honourable Court is the grounds upon which the application is made.
24. This is obvious from Order 53 Rule 1(2) of the Civil Procedure Rules which states in rather peremptory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
25. And Order 53 Rule 4(1) states, also unambiguously, that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
26. The grounds to which reference has been made in these provisions of the law have not been left to speculation or conjecture. They were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety.
27. These grounds are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and may grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed. Since they form the foundation upon which the application for judicial review is based, these grounds must be stated in precise, clear and unambiguous terms in the statement accompanying the application for leave.
28. Turning to the applicant’s application, I have perused the statement accompanying the application for leave in search of the grounds of judicial review upon which the applicant’s application is founded. I must confess that it has been difficult to decipher which, if any, of these grounds the applicant has adopted. It is only in paragraphs 16 and 17 in the statement, accompanying the application for leave, that the applicant has come closest to hinting of what could be the grounds upon which her application is founded; in those paragraphs, she has pleaded as follows:
“16) That in an obvious demonstration of abuse of the court process, the 4th and 5th respondents in collusion with the 1st and 2nd respondents have filed an application dated 15th January 2024 seeking orders that the Subject motor vehicle be released to the 5th respondent with a view to subvert the ruling of the commercial court (prior to production of the vehicle as an exhibit) in clear demonstration of the intention to defeat the interlocutory orders. enjoyed by the ex parte applicant.
17) That the Ex-parte applicant seeks to stay the proceedings on the grounds that the Criminal proceedings aforesaid are an offspring of malice, bad faith and an abuse of the court process aimed at subverting the interlocutory orders issued by the Civil Court.”
29. At a first glance, I thought paragraph 16 could be referring to procedural impropriety but again the applicant refers to “abuse of the court process” which is not necessarily synonymous with the judicial review ground of procedural impropriety. In paragraph 17, malice and bad faith would be aspects of the ground of illegality. The difficulty the applicant has put the court in is quite apparent. She has “thrown everything”, so to speak, to court for the court to make out which of the grounds of judicial review her application is founded.
30. While reiterating the importance of stating grounds for judicial review in concise and precise terms, Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”
31. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.
32. But even if the applicant was to be given the benefit of doubt, I am unable to fault the decision to charge and prosecute her on all or any of the grounds of judicial review. I say so because although the thrust of the applicant’s application is the ownership of motor vehicle registration no. KCX 783E and the applicant is categorical that she purchased this motor vehicle “vide a Motor Vehicle Sale Agreement dated 20th April 2023”, there is no evidence that she paid for it. To the contrary, the only evidence of payment is from the 5th respondent in whose name the vehicle was eventually registered and the 4th respondent, who is the sole director of the 5th respondent.
33. Based on the material before court, this evidence is uncontroverted. The question that this court cannot determine and which would properly be left for the trial courts to decide is why the applicant would be indicated in the sale agreement as the purchaser of the vehicle when the vehicle belonged to and was paid for by the 5th respondent. Of course, there is evidence that the 4th respondent also made some payments as well towards settlement of the purchase price.
34. I am persuaded that, based on the material before court, I wouldn’t fault the 1st and 2nd respondents’ decision if they proceeded on the assumption that the vehicle belonged to the 5th respondent and, therefore, the applicant is deemed to have stolen it if she took the vehicle without the 5th respondent’s authority or consent. This, however, should not be taken to pre-empt the outcome of both the civil and criminal cases. The courts in those cases will come to their own conclusions based on the evidence presented before them and, of course, the parties’ respective cases will be subjected to the requisite standard of proof.
35. If, based on the evidence gathered by the 1st respondent, the 2nd respondent is of the opinion that a charge of theft by servant is sustainable, then it will be left for the trial court to determine whether that charge has been proved at the closure of the trial. It is sufficient that the applicant is reasonably suspected to have committed a crime defined in law. It is trite that reasonable suspicion is not synonymous with a prima facie case and neither does it mean that the 1st respondent had to prove the complaint against the applicant at the investigation stage. The Privy Council in Inspector Shaaban bin Hussien and others versus Chong Fook Kam and another (1969 3 ALL ER 1626, defined suspicion in this context as follows:
“Suspicion in its ordinary meaning is state of conjunctive or surmise where proof is lacking. ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete, it is ready for trial and passes on to its next stage. 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.”
36. If, in the opinion of the 2nd respondent, he has sufficient evidence upon which he can mount a criminal case against the applicant, a judicial review court cannot, and should not stand in his way to do so.
37. It is also important to be mindful of the discretion with which the 2nd respondent has been clothed in taking the decision to prosecute or not to prosecute. This concept was also explained in the above decision as a common law principle but, in Kenya, it also has a constitutional underpinning in Article 157(6)(a) of the Constitution; this Article reads 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).
38. 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. Again, this point was taken in Inspector Shaaban bin Hussien and others versus Chong Fook Kam and another (supra)where the Privy Council noted: “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.”
39. It has been noted 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.
40. Taking all these factors into consideration, 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.
41. Against this background, I do not see anything, in the material presented before court, to suggest that, in reaching the decision to charge the applicant, the 2nd respondent did not exercise his discretion properly. As I have noted, the 2nd respondent will have opportunity to present his case before the trial court based on the evidence he has gathered. There is also no doubt, that the prosecution evidence will be tested when the applicant is given the opportunity to cross-examine the prosecution witnesses and if, in the process, she succeeds in raising a reasonable doubt on the cogency or the weight of that evidence, she will certainly be acquitted.
42. As I have noted in my previous decisions in cases similar to the one before court, 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 any particular way; 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.
43. As far as I can see, there is no basis upon which the process employed by the 2nd respondent to reach his decision can be faulted. He has been presented with evidence which, upon consideration, he suspects the applicant to have committed a crime. Like the rest of the respondents upon whom the Constitution has placed a duty and the mandate to undertake their constitutional and statutory duties, the 2nd respondent ought to be allowed to proceed and exercise his powers to prosecute.
44. For these reasons, I do not find any merit in the applicant’s application. It is hereby dismissed with costs. Orders accordingly.