RULING
1. Before this court for determination is the Chamber Summons dated 22nd June, 2023. The Application is brought under Article 10, 22, 23, 25, 27, 47, 48, 159 (2)(d) and 232 of the Constitution; Section 4 & 11 of the Fair Administrative Action Act, 2015; Order 53 Rule 1 (3) (4) of the Civil Procedure Rules, 2010; and Section 8 & 9 of the Law Reform Act, Cap 26 of the Laws of Kenya.
2. The Applicant seeks for the following Orders:
1) THAT Ex-parte this Application be certified as urgent and apt for hearing on priority and leave be granted to the Applicants to Apply for the following Judicial Review orders:
a. An order of CERTIORARI does issue for the purpose of quashing the decision to charge the Applicants herein with the offence of Murder.
b. An order of PROHIBITION does issue prohibiting the Respondents from interfering directly and/or indirectly with the discharge of mandate of the Applicants and/ or further charges in relation to the Gikomba incident.
2) THAT the leave so granted do act as a stay of the warrants issued and the decision to charge the Applicants with the offence of murder made vide a letter dated 19th June 2023.
3) THAT costs of this Application be provided for.
4) THAT any other order that this Honorable Court will be pleased to issue in the circumstances.
3. The Application was accompanied by a Statutory Statement, and a Verifying Affidavit of Tom Mbuku, all evenly dated. The Application is based on the grounds of unreasonableness, and legitimate expectation.
4. On unreasonableness, the Applicants averred that the Respondents’ actions against them are unreasonable as they [Applicants] were fulfilling their lawful mandates; and that Applicants took reasonable actions to preserve life before shooting the deceased.
5. As to Legitimate Expectation, it is contended that the Applicants are expected to be appropriately armed and use reasonable force. Thus, the Respondents should protect the Applicants from unreasonable prosecutions due to lawful actions in their ordinary duty.
6. The Chamber Summons Application is opposed through the 2nd Respondent’s Replying Affidavit of Evans Kipsang dated 10th July, 2023; and the 1st and 3rd Respondent’s Grounds of Opposition dated 17th October, 2023.
7. The Chamber Summons Application was canvassed by way of written submissions. In support of the Application, the Applicants filed their submissions dated 19th July, 2023; and a Supplementary Submissions dated 22nd December, 2023.
8. In opposition to the Application, the 1st Respondent filed their written submissions dated 1st December, 2023; while the 2nd Respondent’s written submissions are dated 24th August, 2023.
9. After a careful consideration of the Application, Responses, annexures thereto, and the submissions; the main issues for determination are: Whether the Application for leave to commence judicial review proceedings is merited; and if so, Whether the leave so granted merit to operate as a stay.
Analysis and Determination
10. On the issue of leave, it is a requirement of the law under Order 53 Rule 1 of the Civil Procedure Rules 2010, that an Applicant must seek leave to institute judicial review proceedings.
11. Leave is meant to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless; to ensure that the Applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration; to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error; and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.
12. In the case of Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996.
13. The Learned Judge, in County Council of Kwale & Another Ex-Parte Kondo & 57 Others (supra) case, further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.
14. From the foregoing, in an Application for leave, such as the instant one, this court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave.
15. Also, in Republic v National Transport & Safety Authority & 10 others [2014] eKLR, the court held that in judicial review, the threshold for obtaining leave to commence judicial review proceedings is low, and obtaining leave is not in itself evidence of a strong case. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case.
16. In the instant matter, the gist of the Application before this court is that the Applicants are seeking leave to commence judicial review proceedings for orders of certiorari, and prohibition.
17. Having invoked the judicial review jurisdiction of this court, it was upon the Applicants to demonstrate an arguable case that requires ventilation at a substantive hearing. I have carefully perused through the record and submissions. A prima facie case is established to warrant the grant of the leave sought.
18. Nevertheless, it is worth noting that the parties delved into the substantive issues of the case, prematurely; which to my mind, are best fit for substantive stage of the case. In the end, I find that the Application for leave before this court is merited.
19. On the second issue for stay, this court by a ruling dated 24th June, 2023 and amended on 27th June, 2023 had ordered that leave shall operate as a stay in terms of prayer 2 of the Application which shall remain in force.
20. The upshot is that the Chamber Summon dated 22nd June, 2023 succeeds to the extent that:
(1) The Applicants are granted leave to apply for an order of certiorari in terms of prayer 1(a).
(2) The Applicants are granted leave to apply for an order of prohibition in terms of prayer 1(b).
(3) The leave so granted to operate as a stay pending the hearing and determination of the substantive suit.
(4) The cost shall be in the cause.
(5) The Applicants shall file and serve the substantive motion within 7 days of today’s date.
(6) The Application shall be canvassed by way of written submissions.
(7) The Respondents shall file and serve their responses to the substantive Application within 7 days of service.
(8) The Applicant shall thereafter file and serve its submissions within 7 days.
(9) The Respondent shall thereafter file and serve their submissions within 7 days of service.
(10) The Submissions shall be limited to 5 pages each.
(11) The matter shall be mentioned on 10th July 2024 with a view to reporting compliance.
It is so ordered.
1. Before this court for determination is the Chamber Summons dated 22nd June, 2023. The Application is brought under Article 10, 22, 23, 25, 27, 47, 48, 159 (2)(d) and 232 of the Constitution; Section 4 & 11 of the Fair Administrative Action Act, 2015; Order 53 Rule 1 (3) (4) of the Civil Procedure Rules, 2010; and Section 8 & 9 of the Law Reform Act, Cap 26 of the Laws of Kenya.
2. The Applicant seeks for the following Orders:
1) THAT Ex-parte this Application be certified as urgent and apt for hearing on priority and leave be granted to the Applicants to Apply for the following Judicial Review orders:
a. An order of CERTIORARI does issue for the purpose of quashing the decision to charge the Applicants herein with the offence of Murder.
b. An order of PROHIBITION does issue prohibiting the Respondents from interfering directly and/or indirectly with the discharge of mandate of the Applicants and/ or further charges in relation to the Gikomba incident.
2) THAT the leave so granted do act as a stay of the warrants issued and the decision to charge the Applicants with the offence of murder made vide a letter dated 19th June 2023.
3) THAT costs of this Application be provided for.
4) THAT any other order that this Honorable Court will be pleased to issue in the circumstances.
3. The Application was accompanied by a Statutory Statement, and a Verifying Affidavit of Tom Mbuku, all evenly dated. The Application is based on the grounds of unreasonableness, and legitimate expectation.
4. On unreasonableness, the Applicants averred that the Respondents’ actions against them are unreasonable as they [Applicants] were fulfilling their lawful mandates; and that Applicants took reasonable actions to preserve life before shooting the deceased.
5. As to Legitimate Expectation, it is contended that the Applicants are expected to be appropriately armed and use reasonable force. Thus, the Respondents should protect the Applicants from unreasonable prosecutions due to lawful actions in their ordinary duty.
6. The Chamber Summons Application is opposed through the 2nd Respondent’s Replying Affidavit of Evans Kipsang dated 10th July, 2023; and the 1st and 3rd Respondent’s Grounds of Opposition dated 17th October, 2023.
7. The Chamber Summons Application was canvassed by way of written submissions. In support of the Application, the Applicants filed their submissions dated 19th July, 2023; and a Supplementary Submissions dated 22nd December, 2023.
8. In opposition to the Application, the 1st Respondent filed their written submissions dated 1st December, 2023; while the 2nd Respondent’s written submissions are dated 24th August, 2023.
9. After a careful consideration of the Application, Responses, annexures thereto, and the submissions; the main issues for determination are: Whether the Application for leave to commence judicial review proceedings is merited; and if so, Whether the leave so granted merit to operate as a stay.
Analysis and Determination
10. On the issue of leave, it is a requirement of the law under Order 53 Rule 1 of the Civil Procedure Rules 2010, that an Applicant must seek leave to institute judicial review proceedings.
11. Leave is meant to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless; to ensure that the Applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration; to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error; and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.
12. In the case of Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996.
13. The Learned Judge, in County Council of Kwale & Another Ex-Parte Kondo & 57 Others (supra) case, further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.
14. From the foregoing, in an Application for leave, such as the instant one, this court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave.
15. Also, in Republic v National Transport & Safety Authority & 10 others [2014] eKLR, the court held that in judicial review, the threshold for obtaining leave to commence judicial review proceedings is low, and obtaining leave is not in itself evidence of a strong case. In order to obtain leave to commence judicial review proceedings, an applicant only needs to show that he has an arguable case.
16. In the instant matter, the gist of the Application before this court is that the Applicants are seeking leave to commence judicial review proceedings for orders of certiorari, and prohibition.
17. Having invoked the judicial review jurisdiction of this court, it was upon the Applicants to demonstrate an arguable case that requires ventilation at a substantive hearing. I have carefully perused through the record and submissions. A prima facie case is established to warrant the grant of the leave sought.
18. Nevertheless, it is worth noting that the parties delved into the substantive issues of the case, prematurely; which to my mind, are best fit for substantive stage of the case. In the end, I find that the Application for leave before this court is merited.
19. On the second issue for stay, this court by a ruling dated 24th June, 2023 and amended on 27th June, 2023 had ordered that leave shall operate as a stay in terms of prayer 2 of the Application which shall remain in force.
20. The upshot is that the Chamber Summon dated 22nd June, 2023 succeeds to the extent that:
(1) The Applicants are granted leave to apply for an order of certiorari in terms of prayer 1(a).
(2) The Applicants are granted leave to apply for an order of prohibition in terms of prayer 1(b).
(3) The leave so granted to operate as a stay pending the hearing and determination of the substantive suit.
(4) The cost shall be in the cause.
(5) The Applicants shall file and serve the substantive motion within 7 days of today’s date.
(6) The Application shall be canvassed by way of written submissions.
(7) The Respondents shall file and serve their responses to the substantive Application within 7 days of service.
(8) The Applicant shall thereafter file and serve its submissions within 7 days.
(9) The Respondent shall thereafter file and serve their submissions within 7 days of service.
(10) The Submissions shall be limited to 5 pages each.
(11) The matter shall be mentioned on 10th July 2024 with a view to reporting compliance.
It is so ordered.