The applicant’s application is a motion dated 8 March 2021. It is brought under order 53 rule (1) of the Civil Procedure Rules. The applicant seeks one prerogative order of mandamus; the prayer for this order has been couched as follows:
“1. That by way of judicial review, an order of mandamus do (sic) issue compelling the respondents to unconditionally release motor vehicle registration number KCZ 755J and certificate of title L.R. 12458/8 to the applicant and/or his lawful agents.”
The application is based on a statutory statement dated 1 March 2021 and an affidavit verifying facts relied upon sworn by the applicant on even date.
It is the applicant’s case that he is the registered owner of motor vehicle registration number KCZ 755J. He purchased this motor vehicle from a company called Pearl Motors Limited,
On 27 November 2020, he was arrested and charged with various offences including those of making a false document, forgery of documents and obtaining money by false pretences in Milimani Chief Magistrates Court Criminal Case No. 4398 of 2020. At the time of swearing his affidavit, this case against was set for hearing on 4 May 2021.
At the time of the applicant’s arrest, the respondents seized the applicant’s motor vehicle and also confiscated his original certificate of title in respect of the land referred to as title number LR. 12458/8. The motor vehicle, according to the applicant, has remained in the police custody and, in his view, it is not necessary for investigations and neither does it serve any useful purpose at the police station in which it is kept. As far as the certificate of title to his land is concerned, the applicant has sworn that a civil case he has filed, apparently in respect of ownership of the land, will be prejudiced if the police continue to retain this document.
It is his evidence that his motor vehicle was impounded on instructions of One Mr. Kinyua and Brendah Omwenga.
Brenda Omwenga is, of course, the 3rd respondent in these proceedings. She swore a replying affidavit in which she has identified herself as No. 236873 Chief Inspector. She has also sworn that she is an investigator and at the time of swearing her affidavit, she was attached to the Directorate of Criminal Investigations Land Fraud Unit.
According to chief inspector Omwenga, on 24 September 2020, a report was lodged at the Directorate of Criminal Investigations (DCI) headquarters by one Davinder Singh Virdi. The complaint was minuted to chief inspector Omwenga and Sergeant Nickson Sauroki for investigations.
Mr. Virdi’s complaint was that he was one of the four tenants in common of the parcel of land referred to as LR. 209/12458/5 located in industrial area within Nairobi. Sometimes early September 2020, he learnt that the applicant in these proceedings was erecting a perimeter wall around this parcel of land. He reported the matter to the DCI.
In the course of the investigations, it was established that the land was owned by 4 tenants in common and these were, Jaspal Singh Virdi, Gurdip Singh Virdi, Davinder Singh Virdi and Jasminder Singh Virdi.
Gurdip Singh Virdi (deceased) was the father of Jaspal Singh Virdi while Davinder Singh Virdi and jasminder Singh Virdi are brothers. They are also cousins to Jaspal Singh Virdi.
Jaspal Singh Virdi and Girdip Singh Virdi purported to subdivide LR. No. 209/12458/5 into two portions, LR. No. 209/12458/8 and LR. No. 209/12458/9. Davinder Singh Virdi and Jasminder Singh Virdi opposed the subdivision because they deemed the parcels were not equally distributed.
The dispute ended up in Environment and Land Court at Kajiado. The court revoked the subdivision and ordered Jaspal Singh Birdi to subdivide LR. No. 209/12458/5 equally among the four tenants in common.
On 24 September 2020 the investigators wrote to the principal secretary Ministry of Lands and Physical Planning requesting for the particulars of LR No. 209/12458/5, IR 35 789. On 30 September 2020, they received a response from the Ministry of Lands and Physical Planning forwarding certified copies of the requested documents. On the same date, they received from the same Ministry, a certificate of search which showed that Jaspal Singh Virdi, Gurdip Singh Virdi, Davinder Singh Virdi and Jasminder Singh Virdi were the proprietors of LR. No. 12458/5.
The investigators visited LR. No. 12458/5 sometimes in October 2020. They met one Alio Abdi Liban who informed them that a portion of this land had been sold to a company called Asahabito Enterprise Limited by the applicant. Based on this information, the investigators wrote to the Ministry of Lands and Physical Planning on 13 October 2020 to confirm whether there was any sale of land and/or transfer to Asahabito Enterprise Limited by the applicant.
The Ministry responded and forwarded documents showing that the applicant had lodged a transfer of LR. No. 12458/8 to Asahabito Enterprises Limited for a consideration of Kshs. 30,000,000/=. The directors of Asahabito Enterprises Limited were established to be Noor Mohammed, Hassan and Aden Noor Mohammed.
The investigations also revealed that Noor Mohammed Hassan had made several payments on diverse dates to the applicant in settlement of the purchase price of the land. Apart from these payments, the applicant had also asked Noor Mohamed Hassan through his company, Asahabito Enterprises Limited, to purchase a vehicle for the applicant in lieu of settlement of part of the purchase price.
Noor Mohamed Hassan acceded to the applicant’s request and on 23 July 2020, he deposited a cheque of Kshs. 500,000/= into the account of Pearl Motors Limited which had an account name Canon Motors Limited at Equity Bank Moi Avenue branch in Mombasa for the purchase of the motor vehicle for the applicant.
Noor Mohamed Hassan provided investigators with the sale agreement dated 5 August 2020 between Pearl Motors Limited and the applicant for purchase of motor vehicle registration number KCZ 755 J (Toyota Rectis). A further sum of Kshs. 300,000/= was deposited into the account of Pearl Motors Limited in settlement of the purchase price of the motor vehicle.
A document examiner’s report established that the certificate of title in respect of the land in issue had been forged.
Based on the investigations, the investigators were satisfied that there was sufficient evidence to charge the applicant with the offence of making a false document contrary to section 357 (a) of the Penal Code; forgery of a document of certificate of title to land contrary to section 351 of the Penal Code; conspiracy to defraud contrary to section 317 of the Penal Code; and, obtaining money by false pretences contrary to section 320 of the Penal Code.
When the applicant was arrested on 26 November 2020, he was in possession of motor vehicle registration number KCZ 755J. The vehicle was seized because, considering the circumstances under which the applicant acquired it, it was considered a necessary exhibit in the criminal case against the applicant.
I have carefully considered the applicant’s application and the written submissions filed by both the counsel for the applicant and the respondents.
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 judicial review is the grounds upon which the application is made.
Order 53 Rule 1(2) states in mandatory terms that the statement accompanying the application for leave 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).
And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
The grounds to which reference has been made in these provisions of the law have not been left to speculation. 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. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and 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.
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.”
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, however, is 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.
It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built.
Turning back to the applicant’s application, it is not apparent from the statement accompanying the application which of the grounds of judicial review the application is based. What has been presented as the grounds upon which relief is sought is as follows:
“1. That the applicant is the registered owner of motor vehicle registration number KCZ 755 J.
2. That on 30 October 2020, the applicant instituted a case in the environment and land Court at Milimani being Milimani ELC case No. 228 of 2020: Peter Mwangi Kanee versus Jaspal Singh and 2 Others seeking orders of eviction among others and the case is scheduled for mention on 13th April 2021.
3. That sometime in November 2020, the applicant was arrested and charged with making a false document namely a certificate of title for LR. 12458/8 Milimani Criminal Case Number 4398/2020: Republic versus Peter Mwangi Kanee and upon his arrest, the 3rd respondent seized his private motor vehicle without a court order.
4. That the 3rd respondent also broke into the applicant’s home and confiscated his original title deed for the parcel of land known as LR. 12458/8 without a court order.
5. That the motor vehicle and the title deed have remained in police custody for a period of over 3 months and they are not serving any purpose of investigations and if the vehicle is allowed to remain in police custody indefinitely, there is every apprehension of its damage due to the vagaries of weather and rusting.
6. That is the applicant’s title deed remains in police custody, there is every likelihood that his case in the Environment and Land Court will be prejudiced.
7. That the applicant’s advocates have made numerous subsequent follow-ups for the release of the motor vehicle but have all been met with resolute muteness by the respondents.
8. That photographs of the vehicle and photocopies of the title deed are sufficient and the applicant will avail the vehicle during trial.
9. That unless this court intervenes, the car will continue remaining in the custody of the respondents thereby perpetuating further violation of the applicant’s fundamental rights.”
These are nothing more than the depositions made in the affidavit verifying the facts relied upon. And being such depositions, they certainly do not bear the character of judicial review grounds as known in law. To assume that they are grounds of illegality, irrationality, procedural impropriety or even proportionality would be mere speculation. Yet the court need not speculate since it behoves the applicant for any of the judicial review orders to come out clearly and state the ground or grounds upon the application is based. In my humble view, the applicant has not discharged this burden in this application and on this score alone the application should fail.
But even if the court was to give the applicant the benefit of doubt and proceed on the assumption that the applicant is entitled to make the application, I would still conclude that the application is misconceived and an abuse of the process of the court. I say so because, going by the uncontroverted depositions made by chief inspector Omwenga in her affidavit and, considering the charges preferred against the applicant, the certificate of title and the motor vehicle for which the applicant seeks a mandamus order to compel the respondents to release them are at the centre of the criminal trial against the applicant. As a matter of fact, the applicant has himself admitted as much in his statement where he has stated, inter alia, as follows:
“3. That sometime in November 2020, the applicant was arrested and charged with making a false document namely a certificate of title for LR. 12458/8 Milimani Criminal Case Number 4398/2020: Republic versus Peter Mwangi Kanee and upon his arrest, the 3rd respondent seized his private motor vehicle without a court order.”
As far as the motor vehicle is concerned, the proceeds out of which it was purchased is alleged to be part of the amount the applicant is alleged to have received by false pretences except that it was paid for directly by the supposed purchaser of LR. 12458/8. In other words, apart from cash payments, the applicant also asked to be paid and indeed he was paid in kind. It is quite possible the vehicle will part of the evidence that the prosecution will produce in support of count 4 of the charge sheet which reads as follows:
“Obtaining by false pretences contrary to section 313 of the Penal Code:
Peter Mwangi Kanee: on diverse dates between 24/3/2020 and 4/8/2020 at industrial area within Nairobi County, with intent to defraud, obtained Kshs. 21,640,000/= (twenty one million, six hundred and forty thousand shillings) from Noor Mohamed Hassan by falsely pretending that you were in a position to sell him parcel of land LR 12458/8 measuring approximately 0.3520 hectares a fact you knew to be false.”
If the Directorate of Criminal Investigations is of the view that the certificate of title and the motor vehicle are material exhibits in the prosecution of the applicant’s case, it is not for the applicant, and neither is it within the remit of this Honourable Court to decide whether any of these items will serve any useful purpose in the applicant’s trial. That is a decision that will be made, and ought to be made by the trial court.
It is trite that in a criminally trial where exhibits are a necessary element in proof of any particular fact, they have to be formally produced in court. Where any item or property is central to a particular charge, failure to produce it as an exhibit in support of that charge is, no doubt, fatal to the prosecution case.
But where, for one reason or the other, an accused person, or any other person for that matter, will want to retain the custody of any particular item or property marked for production as an exhibit, the trial court will make release order, at any stage of the trial, upon a proper application being made before it.
In this case, there is no evidence, and neither has it even been suggested that the applicant has made any application in the trial court for release of the items for which he is now seeking an order for their release in this Honourable Court.
It is even more curious that the trial court seized of the criminal proceedings against the applicant and the Director of Public Prosecutions who would ordinarily be in charge of the prosecution have not been made parties to these proceedings. No doubt, if the order sought was granted, it will certainly affect the conduct of the proceedings and, in particular, the prosecution of the case. Considering that the trial court and the Director of Prosecutions would, in one way or the other, be affected by the order for release of the specified exhibits, they ought to have been joined to these proceedings.
Be that as it may, judicial review is a residual jurisdiction and where a remedy exists that is equally convenient and effectual, judicial review orders will not be available. The point was well articulated by Lord Widgery CJ in R vs Peterkin, ex parte Soni, 18 (1972) Imm AR 253 where he noted as follows:
“Where parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the complaint complains this court should in my judgment as a rule allow the appellate machinery to take its course. The prerogative orders form the general residual jurisdiction of this Court whereby the court supervises the work of inferior tribunals and seeks to correct injustice where no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when and adequate jurisdiction exists elsewhere.” (Emphasis added).
I will take cue from this statement and conclude that I will not purport micromanage the applicant’s trial and assume jurisdiction that is bound to be properly be exercised by the trial court. I will also not pre-empt the appurtenant available appellate mechanisms to the applicant or any other person in the event they would be dissatisfied with the order the order the trial court is bound to make on whether or not the exhibits ought to the applicant.
For these reasons, I hereby dismiss the applicant’s application with costs. It is so ordered.
Signed, dated and delivered on 9 December 2022