1. The Republic through the Office of the Director of Public Prosecutions filed a Notice Of Motion dated 31 st May 2022 seeking the following orders;-
i. THAT this Honorable Court be pleased to certify this Application as urgent, dispense with service in the first instance and the same be heard ex parte in the first instance . (spent)
ii. THAT this Honourable Court be pleased to call for the record in Milimani Chief Magistrates Miscelleanous Criminal Application Case No E001 of 2022 for purposes of reviewing the rulings of Honorable R.K Ondieki SPM issued on 30th May,2022.
iii. THAT this Honourable Court be pleased to issue orders staying the Order of the Chief Magistrate Court in Milimani (Honourable R.K Ondieki SPM) dated 30th May,2022 granting leave to the Respondent to institute private prosecution.
iv. THAT the Honorable Court be pleased to review and set aside the rulings of Honorable R.K Ondieki SPM issued on 30th May,2022.
v). THAT this Honourable Court be pleased to review the ruling of Honorable R.K Ondieki SPM issued on 30th May,2022 granting leave to the respondent herein to institute private prosecutions against the 1st and the 2nd interested parties.
vi) THAT the Court be pleased to grant any other order in the circumstances to protect the Constitutional mandate of the Applicant.
2. In support of the application the applicant contended that on 24th February 2022, the Respondent filed an application in Miscellaneous Criminal Application No. E001 of 2022 seeking leave to institute private prosecution.
3. The Applicant contends that despite its express constitutional mandate as the Director of Public Prosecutions, it was not named as a party and was neither notified nor served with the application.
4. On 11th May 2022, the Respondent sought summons for service upon the Respondents, to which the Applicant’s representative in Court had no objection.
5. The Applicant maintained that it is a requirement of law that a person seeking leave to institute a private prosecution must first notify the Director of Public Prosecutions.
6. The applicant contended that the failure to notify or serve the Applicant rendered the proceedings before the trial court procedurally defective.
7. The Applicant cited Article 157 of the Constitution which spells out the mandate of the DPP and empowers the office to independently consider inquiry files and determine whether or not there is sufficient evidence to warrant a charge.
8. In exercising that mandate, the Applicant is required under Article 157(11) 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.
9. The Applicant stated that this mandate is further guided by the ODPP Act and the Decision to Charge Guidelines, 2019, which require the evidentiary and public interest tests to be satisfied before criminal proceedings are instituted.
10. It was the Applicant’s further contention that a private prosecution may only be pursued where the prosecutorial authority has failed or neglected to act.
11. In the present case, however, the Applicant stated that it was already seized of the matter and was in the process of independently determining whether there was sufficient evidence to charge the Interested Parties. The Respondent’s move to institute private prosecution was therefore, in the Applicant’s view, premature.
12. The Applicant further contended that on 30th May 2022, counsel for the Respondent admitted before the trial court that service had not been effected upon the Respondents.
13. The prosecutor who was present in Court similarly informed the Court that the application had not been served. Despite this position, the learned trial magistrate proceeded to grant the Respondent leave to institute private prosecution.
14. The Applicant argued that the decision was made in violation of the principles of natural justice and the right to a fair hearing under Article 50 of the Constitution, as the Applicant was not afforded an opportunity to participate in or respond to the application before the orders were issued.
15. The Applicant further contended that the Respondent failed to demonstrate that it had deliberately or wilfully failed to exercise its prosecutorial mandate under Article 157(6) of the Constitution.
16. In the Applicant’s view, the Respondent’s application was therefore brought in bad faith and amounted to an abuse of the court process.
17. The Applicant thus maintained that the orders issued by the learned trial magistrate on 30th May 2022 were patently and latently illegal, and prejudiced the Applicant’s independent constitutional mandate to institute and undertake criminal proceedings.
18. The applicant urged that the impugned orders be reviewed and set aside, and that the Application be heard urgently before the private prosecution proceedings commence, in the interests of justice.
19. In support of the grounds set on the face of the application, the applicant filed a supporting affidavit sworn by Ms Dorcas Rugut prosecution counsel who deposed that the Respondent moved the trial court ex parte in Milimani Chief Magistrate’s Miscellaneous Application No. E001 of 2022, alleging that the Applicant had failed and/or refused to prosecute the case against the Interested Parties.
20. The deponent reiterated that the Director of Public Prosecutions was not named as a party to the proceedings and was not notified or served with the application.
21. She further averred that on 11th May 2022, the Respondent sought summons to serve the Respondents, and that the Applicant, through its representative in Court, did not object to the application being served.
22. Despite the order, the Applicant was never served with or notified of the application.
23. The deponent further stated stated that on 30th May 2022, the trial court proceeded to issue an order granting the Respondent leave to institute private prosecution.
24. According to the deponent, the order was issued without affording the Applicant and the Interested Parties an opportunity to participate in the proceedings or to be heard thus their constitutional right to a fair hearing was violated.
25. The deponent further stated that the Respondent failed to demonstrate before the trial court that the Applicant had failed and/or refused to prosecute the case against the Interested Parties.
26. She maintained that the Respondent also failed to comply with the requisite procedure for instituting private prosecution because the Applicant was not notified of the intended proceedings.
27. According to counsel the trial court acted contrary to law by granting leave to institute private prosecution without first affording the Applicant an opportunity to participate in the proceedings.
28. In her view, the procedure adopted by the trial court was therefore illegal.
29. The deponent further drew the court’s attention to Article 157(11) of the Constitution, which requires the Applicant, in exercising its prosecutorial mandate, 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.
30. The prosecution further posited that the impugned orders continue to occasion prejudice to the Applicant and create a substantial risk that a fair trial of the matter may become impossible.
31. The respondent did not participate at the hearing of this Revision despite repeated orders of service to them.
32. The jurisdiction of this court in hearing a Revision can be exercised by a court suo moto or upon being moved by a party. The court is under no duty to hear parties before considering a revision unless of course if the orders sought are likely to prejudice the accused in matter. The court exercises its discretion depending on the nature of the matter under consideration and the likely consequence of the orders it may issue.
33. The Criminal Procedure Code under Section 365 provides; - Discretion of court as to hearing parties
“No party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision:Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect section 364 ( 2)”’.
34. It follows therefore that where a party is served with a revision application does not appear at the hearing of the same, the court can lawfully proceed to determine the matter on it’s merits notwithstanding the absence of the parties provided that the court does not convert an acquittal order into a conviction in the absence of the party which would be against the letter and spirit of Section 364(2) of the Criminal Procedure Code as well as Articles 25 and 50(1) of the Constitution.
35. In this matter the court is called upon to interrogate the order issued by the learned Honorable Magistrate and determine its regularity, legality and correctness.
36. This court in exercise of its power under Section 362 of the Criminal Procedure Code called for the lower court record and has scrutinized the same to ascertain whether indeed the trial court before granting the leave to initiate private prosecution followed the procedure laid out under section 88 of the Criminal Procedure code.
37. The conditions to be met by a party who seeks to be permitted to carry out a private prosecution are settled through various decisions of the courts. The failure to meet such conditions would invalidate the order granting leave to institute private prosecutions.
38. It should be recalled that the Constitution by design created the Office of the Director of Public Prosecutions and reposited in it powers under Article 157 of the Constitution to cushion Kenyans from unmeritorious criminal prosecutions.
39. The power to prosecute is awesome and must be exercised with caution for it has the potential of wrecking the lives of individuals and can at times end careers of flourishing professionals and business moguls. It must be deployed only in appropriate case and not in a willy nilly manner.
40. To grant private persons the authority to initiate private prosecutions the court must be satisfied that the DPP is unwilling or unable to prosecute the matter and that the office has had prior notice of the matter and failed to act either deliberately or through the exercise of a rigid policy that does not advance the public interest and the interests of the administration of justice.
41. The party seeking leave to commence private prosecution must convincingly demonstrate such reluctance or refusal to act by the DPP. The court has a duty to satisfy itself that that is indeed the case and not to simply grant the orders without interrogating the circumstances leading to the party moving the court.
42. In The High Court Of Kenya At Kisii Criminal Application No.48 Of 2017 Frandik Nyamwaro Ogora......Applicant Versus Elkanah Obwaya Nyandika Ocs Itumbe Police Station Dpp..............................Respondents The court held;- “ The law with regard to the procedure to be adopted by a private citizen who desires to initiate private prosecution against another citizen, as is the case in the instant application, is contained in section 88 of the Criminal Procedure Code which requires that the party should approach the Magistrates Court to permit him to carry out the prosecution. I however do not believe that the intention of the said section was to give parties a blank cheque to unilaterally decide that an offence has been committed and to initiate private prosecution against another citizen without reference to the police or the office of the DPP.’’
43. In the case of Otieno Clifford Richard vs Republic High Court at Nairobi (Nairobi Law Courts) Misc Civil Suit No. 720 of 2005 , the High Court (Nyamu, Emukule and Wendoh, JJ), observed as follows with regard to the circumstances under which a party could be permitted to carry out a private prosecution: “Section 85 to Section 88 of the Criminal Procedure Code deal with “Appointment of Public Prosecutors and conduct of prosecutions”. On the other hand, Section 89 to Section 90 of Criminal Procedure Code deal with the “Institution of proceedings and making of complaint”. We think that in the case of a private prosecution an application must first be made under Section 88(1) of the Criminal Procedure Code for the Magistrate trying the case to grant or refuse to grant permission to the Plaintiff to conduct a private prosecution. It is after permission has been granted for the private prosecution to be conducted that Section 89 and Section 90 of the Criminal Procedure Code can be brought into effect and the criminal proceedings instituted. We believe that the principles set out in the KAHARA CASE at page 89 are good law and provide guidance to a subordinate court when determining the question whether to allow a private prosecution since it spells out certain issues which must be addressed by the court when considering the application for permission to private prosecute before granting it.”
44. In Floriculture International Limited and Others High Court Misc. Civil Application No 114 of 1997 the Court set out six principles that the Magistrate’s Court should consider before granting a party leave to carry out a private prosecution. The Court stated as follows: “For all these reasons criminal proceedings at the instance of a private person shall be allowed to start or to be maintained to the end only where it is shown by the private prosecutor;
1. that a report of the alleged offence was made to the Attorney General or the Police or other appropriate public prosecutor, to accord either of them a reasonable opportunity to commence or take over the criminal process, or to raise objection (if any) against prosecuting; that is to say, the complainant must firstly exhaust the public machinery of prosecution before embarking on it himself; and
2. that the Attorney General or other public prosecutor seized of the complaint has taken a decision on the report and declined to institute or conduct the criminal proceedings; or that he has maintained a more than usual and reasonable reticence; and either the decision or reticence must be clearly demonstrated; and
3. that the failure or refusal by the State agencies to prosecute is culpable and, in the circumstances, without reasonable cause, and that there is no good reason why a prosecution should not be undertaken or pursued; and 4. that unless the suspect is prosecuted and prosecuted at the given point of time, there is a clear likelihood of a failure of public and private justice; and
5. the basis for the locus standi, such as, that he has suffered special and exceptional and substantial injury or damage, peculiarly personal to him, and that he is not motivated by, malice, politics, or some ulterior considerations devoid of good faith, and
6. that demonstrable grounds exist for believing that a grave social evil is being allowed to flourish unchecked because of the inaction of a pusillanimous Attorney General or police force guilty of a capricious, corrupt or biased failure to prosecute, and that the private prosecution is an initiative to counter act the culpable refusal or failure to prosecute or to neutralize the attempts of crooked people to stifle criminal justice”.
45. I have taken the trouble to review the lower court proceedings to ascertain whether these conditions were met before the court granted leave to initiate private prosecution.
46. The record does not contain anything that would demonstrate the efforts made by the applicant to move the DPP prior to seeking leave from court.
47. In fact, the learned Honorable Magistrate in granting the leave stated “Leave is granted to prosecute as prayed and if there are issues, the DPP can apply to discharge the Order. Warrants to issue to the respondents to be served by the DCI HQ.”
48. The order with tremendous respect was irregular and improper because the DPP ought to have been heard as well as the respondents before the adverse orders were granted.
49. Accordingly, this court finds that the order for leave to commence private prosecution was irregularly issued thus the same is hereby quashed for violating the provisions of Articles 25, 50 and 157 of the Constitution.
50. The application is allowed and the order set aside.
51. The application for leave may be heard before another magistrate of competent jurisdiction should the applicants be desirous of pursuing the same.
52. The lower court file shall immediately be returned to the lower court and mentioned before the Chief Magistrate for allocation to a new court.
53. It is so ordered.
i. THAT this Honorable Court be pleased to certify this Application as urgent, dispense with service in the first instance and the same be heard ex parte in the first instance . (spent)
ii. THAT this Honourable Court be pleased to call for the record in Milimani Chief Magistrates Miscelleanous Criminal Application Case No E001 of 2022 for purposes of reviewing the rulings of Honorable R.K Ondieki SPM issued on 30th May,2022.
iii. THAT this Honourable Court be pleased to issue orders staying the Order of the Chief Magistrate Court in Milimani (Honourable R.K Ondieki SPM) dated 30th May,2022 granting leave to the Respondent to institute private prosecution.
iv. THAT the Honorable Court be pleased to review and set aside the rulings of Honorable R.K Ondieki SPM issued on 30th May,2022.
v). THAT this Honourable Court be pleased to review the ruling of Honorable R.K Ondieki SPM issued on 30th May,2022 granting leave to the respondent herein to institute private prosecutions against the 1st and the 2nd interested parties.
vi) THAT the Court be pleased to grant any other order in the circumstances to protect the Constitutional mandate of the Applicant.
2. In support of the application the applicant contended that on 24th February 2022, the Respondent filed an application in Miscellaneous Criminal Application No. E001 of 2022 seeking leave to institute private prosecution.
3. The Applicant contends that despite its express constitutional mandate as the Director of Public Prosecutions, it was not named as a party and was neither notified nor served with the application.
4. On 11th May 2022, the Respondent sought summons for service upon the Respondents, to which the Applicant’s representative in Court had no objection.
5. The Applicant maintained that it is a requirement of law that a person seeking leave to institute a private prosecution must first notify the Director of Public Prosecutions.
6. The applicant contended that the failure to notify or serve the Applicant rendered the proceedings before the trial court procedurally defective.
7. The Applicant cited Article 157 of the Constitution which spells out the mandate of the DPP and empowers the office to independently consider inquiry files and determine whether or not there is sufficient evidence to warrant a charge.
8. In exercising that mandate, the Applicant is required under Article 157(11) 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.
9. The Applicant stated that this mandate is further guided by the ODPP Act and the Decision to Charge Guidelines, 2019, which require the evidentiary and public interest tests to be satisfied before criminal proceedings are instituted.
10. It was the Applicant’s further contention that a private prosecution may only be pursued where the prosecutorial authority has failed or neglected to act.
11. In the present case, however, the Applicant stated that it was already seized of the matter and was in the process of independently determining whether there was sufficient evidence to charge the Interested Parties. The Respondent’s move to institute private prosecution was therefore, in the Applicant’s view, premature.
12. The Applicant further contended that on 30th May 2022, counsel for the Respondent admitted before the trial court that service had not been effected upon the Respondents.
13. The prosecutor who was present in Court similarly informed the Court that the application had not been served. Despite this position, the learned trial magistrate proceeded to grant the Respondent leave to institute private prosecution.
14. The Applicant argued that the decision was made in violation of the principles of natural justice and the right to a fair hearing under Article 50 of the Constitution, as the Applicant was not afforded an opportunity to participate in or respond to the application before the orders were issued.
15. The Applicant further contended that the Respondent failed to demonstrate that it had deliberately or wilfully failed to exercise its prosecutorial mandate under Article 157(6) of the Constitution.
16. In the Applicant’s view, the Respondent’s application was therefore brought in bad faith and amounted to an abuse of the court process.
17. The Applicant thus maintained that the orders issued by the learned trial magistrate on 30th May 2022 were patently and latently illegal, and prejudiced the Applicant’s independent constitutional mandate to institute and undertake criminal proceedings.
18. The applicant urged that the impugned orders be reviewed and set aside, and that the Application be heard urgently before the private prosecution proceedings commence, in the interests of justice.
19. In support of the grounds set on the face of the application, the applicant filed a supporting affidavit sworn by Ms Dorcas Rugut prosecution counsel who deposed that the Respondent moved the trial court ex parte in Milimani Chief Magistrate’s Miscellaneous Application No. E001 of 2022, alleging that the Applicant had failed and/or refused to prosecute the case against the Interested Parties.
20. The deponent reiterated that the Director of Public Prosecutions was not named as a party to the proceedings and was not notified or served with the application.
21. She further averred that on 11th May 2022, the Respondent sought summons to serve the Respondents, and that the Applicant, through its representative in Court, did not object to the application being served.
22. Despite the order, the Applicant was never served with or notified of the application.
23. The deponent further stated stated that on 30th May 2022, the trial court proceeded to issue an order granting the Respondent leave to institute private prosecution.
24. According to the deponent, the order was issued without affording the Applicant and the Interested Parties an opportunity to participate in the proceedings or to be heard thus their constitutional right to a fair hearing was violated.
25. The deponent further stated that the Respondent failed to demonstrate before the trial court that the Applicant had failed and/or refused to prosecute the case against the Interested Parties.
26. She maintained that the Respondent also failed to comply with the requisite procedure for instituting private prosecution because the Applicant was not notified of the intended proceedings.
27. According to counsel the trial court acted contrary to law by granting leave to institute private prosecution without first affording the Applicant an opportunity to participate in the proceedings.
28. In her view, the procedure adopted by the trial court was therefore illegal.
29. The deponent further drew the court’s attention to Article 157(11) of the Constitution, which requires the Applicant, in exercising its prosecutorial mandate, 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.
30. The prosecution further posited that the impugned orders continue to occasion prejudice to the Applicant and create a substantial risk that a fair trial of the matter may become impossible.
31. The respondent did not participate at the hearing of this Revision despite repeated orders of service to them.
32. The jurisdiction of this court in hearing a Revision can be exercised by a court suo moto or upon being moved by a party. The court is under no duty to hear parties before considering a revision unless of course if the orders sought are likely to prejudice the accused in matter. The court exercises its discretion depending on the nature of the matter under consideration and the likely consequence of the orders it may issue.
33. The Criminal Procedure Code under Section 365 provides; - Discretion of court as to hearing parties
“No party has a right to be heard either personally or by an advocate before the High Court when exercising its powers of revision:Provided that the court may, when exercising those powers, hear any party either personally or by an advocate, and nothing in this section shall affect section 364 ( 2)”’.
34. It follows therefore that where a party is served with a revision application does not appear at the hearing of the same, the court can lawfully proceed to determine the matter on it’s merits notwithstanding the absence of the parties provided that the court does not convert an acquittal order into a conviction in the absence of the party which would be against the letter and spirit of Section 364(2) of the Criminal Procedure Code as well as Articles 25 and 50(1) of the Constitution.
35. In this matter the court is called upon to interrogate the order issued by the learned Honorable Magistrate and determine its regularity, legality and correctness.
36. This court in exercise of its power under Section 362 of the Criminal Procedure Code called for the lower court record and has scrutinized the same to ascertain whether indeed the trial court before granting the leave to initiate private prosecution followed the procedure laid out under section 88 of the Criminal Procedure code.
37. The conditions to be met by a party who seeks to be permitted to carry out a private prosecution are settled through various decisions of the courts. The failure to meet such conditions would invalidate the order granting leave to institute private prosecutions.
38. It should be recalled that the Constitution by design created the Office of the Director of Public Prosecutions and reposited in it powers under Article 157 of the Constitution to cushion Kenyans from unmeritorious criminal prosecutions.
39. The power to prosecute is awesome and must be exercised with caution for it has the potential of wrecking the lives of individuals and can at times end careers of flourishing professionals and business moguls. It must be deployed only in appropriate case and not in a willy nilly manner.
40. To grant private persons the authority to initiate private prosecutions the court must be satisfied that the DPP is unwilling or unable to prosecute the matter and that the office has had prior notice of the matter and failed to act either deliberately or through the exercise of a rigid policy that does not advance the public interest and the interests of the administration of justice.
41. The party seeking leave to commence private prosecution must convincingly demonstrate such reluctance or refusal to act by the DPP. The court has a duty to satisfy itself that that is indeed the case and not to simply grant the orders without interrogating the circumstances leading to the party moving the court.
42. In The High Court Of Kenya At Kisii Criminal Application No.48 Of 2017 Frandik Nyamwaro Ogora......Applicant Versus Elkanah Obwaya Nyandika Ocs Itumbe Police Station Dpp..............................Respondents The court held;- “ The law with regard to the procedure to be adopted by a private citizen who desires to initiate private prosecution against another citizen, as is the case in the instant application, is contained in section 88 of the Criminal Procedure Code which requires that the party should approach the Magistrates Court to permit him to carry out the prosecution. I however do not believe that the intention of the said section was to give parties a blank cheque to unilaterally decide that an offence has been committed and to initiate private prosecution against another citizen without reference to the police or the office of the DPP.’’
43. In the case of Otieno Clifford Richard vs Republic High Court at Nairobi (Nairobi Law Courts) Misc Civil Suit No. 720 of 2005 , the High Court (Nyamu, Emukule and Wendoh, JJ), observed as follows with regard to the circumstances under which a party could be permitted to carry out a private prosecution: “Section 85 to Section 88 of the Criminal Procedure Code deal with “Appointment of Public Prosecutors and conduct of prosecutions”. On the other hand, Section 89 to Section 90 of Criminal Procedure Code deal with the “Institution of proceedings and making of complaint”. We think that in the case of a private prosecution an application must first be made under Section 88(1) of the Criminal Procedure Code for the Magistrate trying the case to grant or refuse to grant permission to the Plaintiff to conduct a private prosecution. It is after permission has been granted for the private prosecution to be conducted that Section 89 and Section 90 of the Criminal Procedure Code can be brought into effect and the criminal proceedings instituted. We believe that the principles set out in the KAHARA CASE at page 89 are good law and provide guidance to a subordinate court when determining the question whether to allow a private prosecution since it spells out certain issues which must be addressed by the court when considering the application for permission to private prosecute before granting it.”
44. In Floriculture International Limited and Others High Court Misc. Civil Application No 114 of 1997 the Court set out six principles that the Magistrate’s Court should consider before granting a party leave to carry out a private prosecution. The Court stated as follows: “For all these reasons criminal proceedings at the instance of a private person shall be allowed to start or to be maintained to the end only where it is shown by the private prosecutor;
1. that a report of the alleged offence was made to the Attorney General or the Police or other appropriate public prosecutor, to accord either of them a reasonable opportunity to commence or take over the criminal process, or to raise objection (if any) against prosecuting; that is to say, the complainant must firstly exhaust the public machinery of prosecution before embarking on it himself; and
2. that the Attorney General or other public prosecutor seized of the complaint has taken a decision on the report and declined to institute or conduct the criminal proceedings; or that he has maintained a more than usual and reasonable reticence; and either the decision or reticence must be clearly demonstrated; and
3. that the failure or refusal by the State agencies to prosecute is culpable and, in the circumstances, without reasonable cause, and that there is no good reason why a prosecution should not be undertaken or pursued; and 4. that unless the suspect is prosecuted and prosecuted at the given point of time, there is a clear likelihood of a failure of public and private justice; and
5. the basis for the locus standi, such as, that he has suffered special and exceptional and substantial injury or damage, peculiarly personal to him, and that he is not motivated by, malice, politics, or some ulterior considerations devoid of good faith, and
6. that demonstrable grounds exist for believing that a grave social evil is being allowed to flourish unchecked because of the inaction of a pusillanimous Attorney General or police force guilty of a capricious, corrupt or biased failure to prosecute, and that the private prosecution is an initiative to counter act the culpable refusal or failure to prosecute or to neutralize the attempts of crooked people to stifle criminal justice”.
45. I have taken the trouble to review the lower court proceedings to ascertain whether these conditions were met before the court granted leave to initiate private prosecution.
46. The record does not contain anything that would demonstrate the efforts made by the applicant to move the DPP prior to seeking leave from court.
47. In fact, the learned Honorable Magistrate in granting the leave stated “Leave is granted to prosecute as prayed and if there are issues, the DPP can apply to discharge the Order. Warrants to issue to the respondents to be served by the DCI HQ.”
48. The order with tremendous respect was irregular and improper because the DPP ought to have been heard as well as the respondents before the adverse orders were granted.
49. Accordingly, this court finds that the order for leave to commence private prosecution was irregularly issued thus the same is hereby quashed for violating the provisions of Articles 25, 50 and 157 of the Constitution.
50. The application is allowed and the order set aside.
51. The application for leave may be heard before another magistrate of competent jurisdiction should the applicants be desirous of pursuing the same.
52. The lower court file shall immediately be returned to the lower court and mentioned before the Chief Magistrate for allocation to a new court.
53. It is so ordered.