1. The matter that is before this court for determination is the Exparte Applicant’s Chamber Summons dated 19th July 2024 wherein the applicant seeks the following orders:
1) ..spent.
2) ..spent.
3) That the Applicant be granted leave to seek by way of Judicial Review for an Order of Certiorari to issue to remove to this Honourable Court for purposes of being quashed and forthwith quash the 1st Respondent's decision to withdraw Milimani Criminal Case Number 1274 of 2021 which decision is contained in the letter dated 5th February, 2024.
4) That leave be granted to the Applicant to seek by way of Judicial Review for an Order of Prohibition, prohibiting the 3rd Respondent from withdrawing Milimani Criminal Case Number 1274 of 2021 on the basis of the reasons contained in the letter dated 5th February, 2024.
5) That the leave so granted do operate as a stay prohibiting the release of the Interested Parties securities deposited in court in form of Cash Bail and the 1st and 2nd Interested Parties Passports, until the hearing and determination of the substantive application or further orders of this Honourable Court.
6) That costs of this application be provided for.
The Applicant's case;
2. In the year 2015, the 3rd Interested Party requested the Ex parte Applicant to advance it an overdraft facility of Kenya Shillings Ten Million (Kshs. 10,000,000/=) for its working capital requirements and a guarantee facility of Kenya Shillings Five Million (Kshs. 5,000,000/=).
3. In the year 2016 the 3rd Interested Party secured an additional facility and renewed the existing facilities that were secured by:
a) Pledge of Shares from I & M Holdings Ltd held in the names of the ex-parte applicants.
b) Debenture for Kenya Shillings Three Hundred and Fifty Million (Kshs. 350,000,000/=).
c) Supplemental Charge over L.R. No. 5934/2 Nairobi for Kenya Shillings Three Hundred and Fifty Million (Kshs. 350,000,000/=)
d) Further debenture for Kenya Shillings Fifty Million (Kshs. 50,000,000/=)
e) Further supplemental charge over L.R. No. 5934/2 Nairobi for Kenya Shillings Fifty Million (Kshs. 50,000,000/=)
f) Second Further debenture for Kenya Shillings Four Hundred and Twenty Million (Kshs. 420,000,000/=)
g) Second further supplemental charge over L.R. No. 5934/2 Nairobi for Kenya Shillings Four Hundred and Twenty Million (Kshs. 420,000,000/=)
h) Third Party charge over Apartment Number B2. on LR No. 1870/11/253, Nairobi for Kenya Shillings Four Hundred and Twenty Million (Kshs. 420,000,000/=)
i) Personal guarantees of the Ex parte applicants and any other facility that the company would require from time to time.
4. These additional facilities were disburse pending perfection of the securities because according to the 3rd Interested Party the securitization process would take time hence impacting the 3rd Interested Party's immediate need for funds of the basis of a "Special Clause" in the offer letter that would enable it to disburse part of the funds to ensure the 3rd Interested Party's business needs are met as the perfection of the securities was ongoing.
5. It is the Applicant’s case that prior to the perfection of the securities, the 3rd Interested Party requested additional facilities and hence another offer letter dated 26th March, 2019 availing an overdraft facility of Kenya Shillings One Hundred Million (Kshs. 100,000,000/=) and a term loan of Kenya Shillings Seven Hundred and Ten Million (Kshs. 710,000,000/=), was prepared and executed.
6. The facilities were to be secured by the existing securities and the third-party first legal charge over Apartment Number B2. on LR No. 1870/11/253, Nairobi.
7. The Ex parte Applicant appointed Advocates to prepare the required facilities including the third legal charge over Apartment which was sent to the 3rd Interested Parties for execution.
8. In order to enable its Advocates to Proceed with the registration of the charge at the relevant land registry the 1st and 2nd Interested Parties were required and thus requested to provide the original sublease over said Apartment.
9. The Interested Parties claimed that the original sublease was with the firm of Raffman Dhanji Elms & Virdee Advocates who on their part maintained the position that the sublease had been released to the 1st and 2nd Interested Parties through their agent, a Mr. Enoch Shilaho on 1st November, 2016.
10. To the Ex-parte applicant, this meant that by the time the 3rd Interested Party was seeking additional facilities from the Exparte Applicant in the year 2018 and 2019, the 1st and 2nd Interested Parties had the original sublease and the 1st and 2nd Interested parties had used fraudulent means to get additional funds from it by requesting for additional fund.
11. This prompted the Ex parte Applicant to report the matter to the 2nd Respondent and who upon extensive investigations sent its recommendations to the 1st Respondent to have charges preferred against the Interested Parties Culminating in the Interested Parties being charged with the offence of obtaining of a security by false pretenses in Milimani Chief Magistrate's Court Criminal Case No. E1274 of 2021- Republic -vs- Jayesh Umedlal Shanghavi and Nina Jayesh Shangahavi.
12. The 1st and 2nd Interested Parties then filed judicial review applications, being JR Misc E184/2021 and JR Misc E050/2022, challenging the decision of the 1st Respondent to charge them with the said offence.
13. The applications were vehemently opposed by the Respondents, who extraneously defended their decision to investigate and charge the Interested Parties arguing that the investigations established that the original sublease in respect of apartment B2 erected on Land reference number 1870/11/253, Nairobi (Crystal Edge Apartment) was in the custody of the 1st and 2nd Interested Parties and not their advocates as they had initially indicated.
14. The 1st and 2nd Interested Parties fraudulently obtained a credit facility from the Ex parte Applicant by failing to disclose the true location of the original sub lease in respect of apartment B2 erected on Land reference number 1870/11/253, Nairobi (Crystal Edge Apartment).
15. The Interested Parties were summoned and given an opportunity to be heard and upon completion of the investigation, the file was forwarded to the 1st Respondent for perusal and upon the 1st Respondent independently reviewing the file, he formed an opinion that the evidence on record was sufficient to sustain a charge of obtaining credit by false pretenses.
16. The 1st Respondent made an observation that the Ex parte Applicant is a custodian of monies of depositors and the amounts involved in the matter were colossal.
17. It further noted that the credit facility was obtained through misrepresentation and thus it was in the public interest and the interest of justice to safeguard the monies of the depositors.
18. The respondents also argued that Section 193(A) of the Criminal Procedure Code Chapter 75 Laws of Kenya provides that 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 civil proceedings shall not be a ground for any stay, prohibition or delay in criminal cases.
19. Judgment was delivered on 26th October, 2022 wherein both applications were dismissed setting the stage for Milimani Criminal Case Number E1274 of 2021 to proceed.
20. On 11th July, 2024 the 1st Respondent made an application for the matter to be withdrawn against the Interested Parties.
21. The grounds upon which the 1st Respondent made the application were twofold, firstly according to the 1st Respondent the parties ought to pursue their issues before a civil court.
22. According to the 1st Respondent there existed two cases being High Court Civil Case Number 127 of 2021 and Judicial Review Misc E184 of 2021 involving the same parties.
23. Secondly the 1st Respondent contended that the pending charges against the Interested Parties do not meet the threshold set by the ODPP Act and guidelines of 2019 because, allegedly, the evidence is insufficient to support the charges for a conviction because the requisite mens rea was lacking as the Interested Parties had provided securities for the loans.
24. It is their case that when the application to withdraw the criminal case was made, counsel watching brief for the Ex parte Applicant was not in court and the counsel holding his brief requested the court to place the file aside for the counsel watching brief to come and address the court on the application for withdrawal.
25. The court declined this request and proceeded to withdraw the matter under section 87 (A) of the Criminal Procedure Code and the Applicant believes that this contravenes the principles of natural justice and was unlawful, unreasonable, procedurally unfair, in bad faith and fallacious.
26. The Applicant is also troubled by the fact that the 1st Respondent did not demonstrate any change of circumstances and/or existence of new facts that informed its decision to withdraw the case.
27. It argues that the decision of the 1st Respondent in this matter is vitiated by unreasonableness and illegality as it is designed to aid the Interested Parties to escape criminal culpability.
28. Thus, the 1st Respondent's conduct and decision herein fundamentally offends the basic tenets of justice and good public policy.
The 1st Respondent’s case;
29. The 1st Respondent opposes the application by way of a Notice of Preliminary Objection and Grounds of opposition wherein they advanced the argument that the instant application is an appeal against the order of the 3rd Respondent.
30. The 1st respondent's notice of preliminary objection arguing that the Application dated 19th July 2024, be struck out in limine on the grounds:
1. That the instant Application is fatally defective as the Applicant has not annexed the 1st Respondent's impugned decision dated 5th February 2024 to the Application leaving the court with no decision to review.
2. This Honorable Court lacks jurisdiction to grant the leave sought in terms of prayer 4 of the instant application for leave to seek an order of prohibition as the impugned decision had had already been made and acted upon by way of the withdrawal, while the order of prohibition cannot issue against a decision already made and implemented.
31. It is its case that allowing the withdrawal of Republic v. Jayesh Umedlal Shanghavi & 2 Others (Milimani Criminal Case No. 1274 of 2024), the criminal case the basis of the instant application, (hereinafter, the subject criminal case) camouflaged as an application to file for judicial review orders.
32. It is its case that the application for leave is founded on a misapprehension of the law as relates the 1st Respondent’s powers of prosecution including the power to review cases, which power is continuous and exercisable at any time depending on the circumstances of the case.
33. It is its case that the 1st Respondent’s exercise of the forgoing power of review may, was merited as is in the instant case, lead to the discontinuance of such criminal proceedings.
34. The decision of this Honorable Court in Republic v. The Director of Public Prosecution & 3 Others (Judicial Review Miscellaneous Application No. E184 of 2021 consolidated with Misc. Application No. E050 of 2022) was not a bar to the 1st Respondent’s continuous review of the investigation and case files.
35. The withdrawal of the criminal case was done in strict compliance and conformity to, the Constitution of Kenya, 2010, relevant Statutes and the Office of the Director of Public Prosecutions (ODPP) Decision to Charge Guidelines, 2019, and was sanctioned by the trial court.
36. It is its case that a grant of the prayers sought would amount to an unjustified interference in the 1st Respondents’ exercise his constitutional mandate given that the decision to withdraw the criminal case was made in good faith on the grounds inter alia that the dispute between the Ex parte Applicant and the Interested Parties was primarily civil in nature best suited for resolution outside the criminal justice system.
37. In its submissions, The 1st Respondent submitted that The letter dated 5th February 2024 is not annexed to the application with the result that the application is fatally defective as there is nothing for this Honorable Court to quash nor prohibit the implementation thereof and that the application is fatally defective and is for nothing than dismissal.
38. Reliance is placed in Civil Appeal No. E176 of 2022, paraphrased by the
Supreme Court of Kenya in Isaac Aluoch Polo Aluochier v. Independent Electoral and Boundaries Commission as follows:
191 Agreeing with the conclusion of the High Court, the Court of Appeal (Kantai, Mumbi Ngugi & Laibuta JJ.A) dismissed the appeal with costs noting that, in the absence of specific rules tailored to suit applications for judicial review orders brought pursuant to Article 47 of the Constitution as read with Section 10 of the Fair Administrative Actions Act, Order 53 of the Civil Procedure Rules necessarily applies; and in view of the fact that the prescriptive provisions of Order 53 Rule 1 are mandatory, failure to comply with them rendered the appellant's application incompetent. The court also agreed that failure to annex the decision of the Committee sought to be reviewed was equally fatal, as it denied the High Court the chance to interrogate the impugned decision. There was nothing to be reviewed and the procedural defects could not be cured by Article 159(2)
(d) of the Constitution.
39. It further submits that this Honorable Court lacks jurisdiction to grant the leave sought in terms of prayer 4 of the instant application as the impugned decision had already been made and acted upon by way of the withdrawal, while the order of prohibition cannot issue against a decision already made and implemented.
40. To buttress this argument, reliance is placed in Court of Appeal at Nairobi (Hon. R. S. C. Omolo, P. K. Tunoi and A.B. Shah, JJA) in Kenya National Examination Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others, in which the court decreed as follows with regards to the efficacy and scope of an order of prohibition:
..The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition…
41. It submits that The 1st Respondent's impugned decision was already made and implemented with the subject criminal case already withdrawn.
42. It is also submitted that the instant application for leave is an appeal against the order of the 3d Respondent and the decision was susceptible to appeal, and not an administrative action susceptible to judicial review.
43. It relies in Regina v. Inland Review Commissioners, ex parte Preston cited with approval by the High Court of Kenya at Nairobi (Hon. J. Ngaah, J in Nelson Andavi Havi v. KRA, the House of Lords (Lord Scarman) held inter alia that:
... a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision...
The Queen's Bench Division (Lord Widgery CJ similarly addressed the issue in R v.Peterkin, ex parte Soni similarly cited with approval in Nelson Andayi Havi v. KRA (supra):
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 applicant complains this court should in my judgement 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 were 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 other and adequate jurisdiction exists elsewhere.
44. The Court in Nelson Andayi Havi v. KRA (supra) also cited the decision of Lord Fraser in R v. Entry Clearance Officer, Bombay ex parte Amin' to the effect that judicial review is entirely different from an ordinary appeal, and that it (judicial review) is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.
45. The same point was emphasised by Lord Brightman in Chief Constable of North Wales Police v. Evans, also cited with approval in Nelson Andayi Havi v. KRA (supra), where the Lord Justice said inter alia that:
Judicial review is concerned, not with the decision, but with the decision-making process.
46. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power...Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
47. Lord Hailsham in the in Chief Constable of North Wales Police v. Evans (supra), in adding his voice to the subject, stated inter alia that:
The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.'
48. Finally, in R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Limited'® Lord Roskill stated in the relevant part that:
The court must not cross that boundary between administration whether good or bad which is lawful and what is unlawful performance of a statutory duty.
49. It submits that The 1stRespondent is vested with State powers of prosecution including the power to institute criminal proceedings from which flows the power to make the decision to charge, and to continuously review the said decision depending on the circumstances of the case, in accordance with the Constitution," the Office of the Director of Public Prosecutions Act, 2 and the Office of the Director of Public Prosecutions Decision to Charge Guidelines.
50. Not even the decision of this Honorable Court in Republic v. The Director of Public Prosecution & 3 Others was a bar to the 1 Respondent's review of the criminal case.
51. It is submitted that the Honorable Court cannot direct the 15t Respondent to charge where the decision not to charge has been made whether as the initial decision or upon review as was in this case.
52. The remedy for a person unhappy with the 1st Respondent's decision not to charge, or to withdraw, does not lie in an order for judicial review, but in an appeal against the order of the court allowing the withdrawal, or in an application for private prosecution.
The 1st, 2nd, and 3rd Interested Parties case
53. The Interested Parties oppose the application by way of ground of opposition. It is their case that the application does not meet the threshold for the grant of leave to apply for judicial review and for the orders of certiorari and prohibition.
54. Under Article 157(6)(c) of The Constitution of Kenya the Director of Public Prosecutions has constitutional powers to discontinue at any stage before judgement is delivered, any criminal proceedings instituted by the Director of Public Prosecutions.
55. Article 157(10) of The Constitution of Kenya stipulates that in the exercise of his powers the Director of Public Prosecutions shall not require the consent or authority of any person; and shall not be under the direction of control of any person or authority.
56. By virtue of Article 157(11) of The Constitution of Kenya the Director of Public Prosecutions has a mandatory duty 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.
57. They also argue that the Director of Public Prosecutions’ Operational Guidelines and Policies dictate that the decision to charge is subject to continuous and regular review, which is necessary as circumstances of the case may change.
58. It is their case that the Applicant has not demonstrated how the Respondents violated any law and/or exercised its powers and discretion unprocedurally and/or illegally and/or unlawfully.
59. It is further their case that the Applicant was represented by Counsel in Court before the 3rd Respondent and was afforded an opportunity to be heard and did in fact make representations on the 1st Respondent’s application to discontinue the criminal proceedings.
60. They believe that the Applicant is looking for a second bite at the cherry having failed to give convincing and/or meritorious reasons why the 1st Respondent should not be allowed to exercise its powers and discretion given by The Constitution and the Law.
61. In the submissions, it is submitted that the letter dated 5th February 2024 is not annexed to the application with the result that the application is fatally defective as there is nothing for this Honorable Court to quash nor prohibit the implementation thereof and that the application is fatally defective and is for nothing than dismissal.
62. Reliance is placed in Civil Appeal No. E176 of 2022, paraphrased by the Supreme Court of Kenya in Isaac Aluoch Polo Aluochier v. Independent Electoral and Boundaries Commission as follows:
“Agreeing with the conclusion of the High Court, the Court of Appeal (Kantai, Mumbi Ngugi & Laibuta JJ.A) dismissed the appeal with costs noting that, in the absence of specific rules tailored to suit applications for judicial review orders brought pursuant to Article 47 of the Constitution as read with Section 10 of the Fair Administrative Actions Act, Order 53 of the Civil Procedure Rules necessarily applies; and in view of the fact that the prescriptive provisions of Order 53 Rule 1 are mandatory, failure to comply with them rendered the appellant's application incompetent. The court also agreed that failure to annex the decision of the Committee sought to be reviewed was equally fatal, as it denied the High Court the chance to interrogate the impugned decision. There was nothing to be reviewed and the procedural defects could not be cured by Article 159(2)(d) of the Constitution.
63. It is further submitted that this Honorable Court lacks jurisdiction to grant the leave sought in terms of prayer 4 of the instant application as the impugned decision had already been made and acted upon by way of the withdrawal, while the order of prohibition cannot issue against a decision already made and implemented.
64. To buttress this argument, reliance is placed in Court of Appeal at Nairobi (Hon. R. S. C. Omolo, P. K. Tunoi and A.B. Shah, JJA) in Kenya National Examination Council v. Republic ex parte Geoffrey Gathenji Njoroge & 9 Others, in which the court decreed as follows with regards to the efficacy and scope of an order of prohibition:
...The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition…
65. It submitted that the 1st Respondent's impugned decision was already made and implemented with the subject criminal case already withdrawn.
66. It is also submitted that the instant application for leave is an appeal against the order of the 3rd Respondent and the decision was susceptible to appeal, and not an administrative action susceptible to judicial review.
67. Reliance is placed in Regina v. Inland Review Commissioners, ex parte Preston cited with approval by the High Court of Kenya at Nairobi (Hon. J. Ngaah, J in Nelson Andavi Havi v. KRA, the House of Lords (Lord Scarman) held inter alia that:
... a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision...
68. The Queen's Bench Division (Lord Widgery CJ similarly addressed the issue in R v. Peterkin, ex parte Soni similarly cited with approval in Nelson Andayi Havi v. KRA (supra):
“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 applicant complains this court should in my judgement 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 were 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 other and adequate jurisdiction exists elsewhere.”
69. The Court is said to have in Nelson Andayi Havi v. KRA (supra) also cited the decision of Lord Fraser in R v. Entry Clearance Officer, Bombay ex parte Amin to the effect that judicial review is entirely different from an ordinary appeal, and that it (judicial review) is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.
70. The same point was emphasised by Lord Brightman in Chief Constable of North Wales Police v. Evans, also cited with approval in Nelson Andayi Havi v. KRA (supra), where the Lord Justice said inter alia that: “Judicial review is concerned, not with the decision, but with the decision-making process.”
71. It is submitted that unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
72. It is further submitted that Lord Hailsham in Chief Constable of North Wales Police v. Evans (supra), in adding his voice to the subject, stated inter alia that:
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.”
73. Finally, that in R v Inland Revenue Commissioners exparte National Federation of Self-Employed and Small Businesses Limited' Lord Roskill stated in the relevant part that:
“The court must not cross that boundary between administration whether good or bad which is lawful and what is unlawful performance of a statutory duty.”
74. It is submitted that the 1st Respondent is vested with State powers of prosecution including the power to institute criminal proceedings from which flows the power to make the decision to charge, and to continuously review the said decision depending on the circumstances of the case, in accordance with the Constitution, “the Office of the Director of Public Prosecutions Act, and the Office of the Director of Public Prosecutions Decision to Charge Guidelines.”
75. It is submitted that the Honorable Court cannot direct the 1st Respondent to charge where the decision not to charge has been made whether as the initial decision or upon review as was in this case.
76. The remedy for a person unhappy with the 1st Respondent's decision not to charge, or to withdraw, does not lie in an order for judicial review, but in an appeal against the order of the court allowing the withdrawal, or in an application for private prosecution.
77. It is their submission that, the Applicant is required to demonstrate a prima facie case with the principles as enunciated in the case of Republic v County Council of Kwale & Another; Kondo & 57 Others (Exparte) (Miscellaneous Civil Application 384 of 1996) [1998] KEHC 2 (KLR) (2 February 1998) where he stated:
“Having determined the issues arising on the Notice, it remains for the applicant to satisfy me that the leave sought should issue. The purpose of the application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly 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. As was pointed out by Lord Diplock in Republic -vs- Inland Revenue Commissioners ex p National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, the requirement that leave must be obtained before making an application for judicial review is designed 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.”
78. The learned Judge in the authority cited above went on further to hold that:
Leave may only be granted therefore 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 partes hearing of the substantive application for judicial review. It is an exercise of the courts discretion but as always it has to be exercised judicially.
“The above position was affirmed in the Supreme Court case of Republic v Retirement Benefits Appeals Tribunal & 2 others; Alice Anyona Mumo & 168 others (Exparte) (Judicial Review E157 of 2021) [2023] KEHC 766 (KLR) (Judicial Review) (9 February 2023) (Ruling) Neutral citation: [2023] KEHC 766 (KLR) wherein Justice Njoki Ndungu stated:
“25.The requirement to seek leave is provided for under Order 53 Rule 1 of the Civil Procedure Rules 2010, which stipulates that an Applicant must seek leave to institute judicial review proceedings.
26. The purpose of this is so as 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 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 were actually pending even though misconceived.
27. These reasons for leave were discussed at length in the case of Republic v County Council of Kwale & Another ExParte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996.
79. Leave as was held by the Learned Judge in R v County Council of Kwale Ex Parte Kondo and 57 Others (supra) may only be granted if on the material available, the court is of the view that, without going into the matter in depth, the Applicant has an arguable case for the grant of the relief sought.
“It is their submission that this Court is not required to engage in a detailed examination of the parties' arguments. Instead, it should conduct a brief review of the materials before it and determine whether the applicant has an arguable case that is sufficiently meritorious to warrant granting leave.
While the Applicant has sought, under Prayer 3 of its Chamber Summons Application, leave to institute Judicial Review proceedings for an Order of Certiorari to quash the 1st Respondent’s decision to withdraw the Criminal Case, which decision is contained in the letter dated 5th February 2024, that decision has not been exhibited.
80. It is submitted that in an application for leave, it is not the role of the Court to fill in gaps in the Applicant’s case or to guess what evidence the Applicant is relying upon. Without prejudice it their submission that for the Applicant to establish an arguable case, they must demonstrate that the application is based on one or more of the following grounds for judicial review:
a) Illegality: That the 1st Respondent lacked the legal authority to make the decision being challenged;
b) Irrationality: That the decision exhibits Wednesbury unreasonableness;
c) Procedural Impropriety: That the decision was made in violation of the rules of natural justice or without following the required procedure.
81. Article 157(6)(c) of The Constitution of Kenya provides:
“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;
take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).” [Emphasis added]
82. Article 157(10) of The Constitution of Kenya further stipulates that in the exercise of its powers, the 3rd Respondent shall not be under the direction or control of any person or authority.
83. They submit that the 1st Respondent’s decision to charge is not static; and the Office of the Director of Public Prosecutions’ Guidelines on the Decision to Charge dictate that the decision to charge is subject to continuous and regular review, which is necessary as circumstances of the case may change.
84. They submit that in conducting a continuous and regular review, the 1st Respondent has a discretionary duty and authority to assess whether the evidence it intends to rely on is sufficient to sustain a conviction.
85. If the 1st Respondent, in the exercise of its constitutional and statutory powers, concludes that it cannot prove both elements of the criminal offence, it should refrain from continuing the prosecution, as doing so would amount to a waste of resources better directed toward other matters.
86. It is their case that the Applicant’s assertion that mens rea is a matter for the Trial Court to determine is irrelevant and further underscores the frivolous nature of the present application.
87. They further submit that the Applicant has neither claimed nor demonstrated how, if at all, the 1st Respondent has committed any crime, violated any law, exercised its powers and discretion improperly, unlawfully, or in excess of its jurisdiction.
88. They rely on Republic v Director of Public Prosecution & another; Ex Parte Ense Ltd; David Gikaria (Interested Party) [2021] eKLR held that:
“21. In asking the Court to re-evaluate the reasons given by the DPP in the present case and re-weigh them, the Applicant is asking the Court to perform a merits review not a judicial review. A merits review is wider than correcting legal error. It extends to a reconsideration of discretionary matters – of the merits of the original decision. To undertake this reconsideration would be to undermine the constitutionally protected independence of the DPP. This Court must decline that invitation.”
89. Fourthly, the Applicant’s allegation that it was not afforded an opportunity to be heard on the 1st Respondent’s application before the 3rd Respondent is both disingenuous and legally unfounded, as there is no legal requirement for the DPP to consult a complainant before deciding to prosecute or withdraw a trial.
90. In Republic v Chief Magistrate, Milimani Criminal Division & 4 others Ex-Parte John Wachira Wambugu & Another [2018] eKLR:
“64. The Ex parte applicant states that he was not consulted prior to the decision to terminate the criminal case being made. There is no requirement under the law that the DPP consults a complainant before deciding to prosecute or withdrawal a trial.
More significant is the fact that an official who has discretionary powers must, naturally exercise them ix) within the limits of the Constitution and the authorizing statute, read in the light of the Bill of Rights. Rights here will include the rights of the Exparte applicant and the accused persons. The DPP is required to balance the two and make the right decision. No material has been presented before me to show that the DPP failed to exercise his functions or abused his discretion in making the decision. The enquiry is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated, conducted or terminated. No such illegality or irregularity has been established.”
91. They refer the court further to the case of John Wachira Wambugu case (supra) when he held that:
“56. Resources should not be wasted pursuing inappropriate cases, but must be used to act vigorously in those cases worthy of prosecution. In deciding whether or not to institute criminal proceedings against an accused person, prosecutors must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued.
This assessment may be difficult, because it is never certain whether or not a prosecution will succeed.
This test of a reasonable prospect must be applied objectively after careful deliberation, to avoid an unjustified prosecution. The review of a case is a continuing process. Prosecutors must take into account changing circumstances and fresh facts, which may come to light after an initial decision to prosecute or not to prosecute has been made. This may occur after having heard and considered the version of the accused person and representations made on his or her behalf. Prosecutors may therefore withdraw charges before the accused person has pleaded or in the course of the trial in spite of an initial decision to institute a prosecution.”
92. They submit that the Applicant has not established that it has an arguable case. In reaction to Prayer 4 of the Application, they submit that it is trite law that an order of prohibition cannot quash what has already been done. The Court of Appeal in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR held as follows in this regard:
“What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY’S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128. When those principles are applied to the present case, the Council obviously has the power or jurisdiction to cancel the results of an examination. The question is how, not whether, that power is to be exercised. If the Council of prohibition would be ineffectual against the conviction because such an order would not quash the conviction. The conviction could be quashed either on an appeal or by an order of certiorari. The point we are making is that an order of prohibition is powerless against a decision which has already been made before such an order is issued. Such an order can only prevent the making of a decision. That, in our understanding, is the efficacy and scope of an order of prohibition.”
93. They submit that the leave sought under Prayer 4 is equally frivolous, vexatious, and devoid of merit. This is because the decision by the 3rd Respondent to withdraw the criminal case was made prior to the filing of the present application.
94. Furthermore, and without prejudice to the preceding submissions they submit that the Court has no power or authority to 1) direct the 1st Respondent on how to exercise its constitutional powers; or 2) prohibit the 1st Respondent from exercising its constitutional powers.
95. Without prejudice to foregoing submissions they submit that the Applicant has also sought orders that leave so granted do operate as a stay prohibiting the release of the Interested Parties’ securities deposited in court in form of cash bail and the 1st and 2nd Interested Parties’ passports.
96. The applicable principle on whether leave to institute judicial review proceedings can operate as stay was explained by Nyamweya J (as she then was) in Lemeiguran v Building Bridges Initiative Taskforce & 4 others; Odinga (Interested Party) (Judicial Review Application E1157 of 2020) [2020] KEHC 510 (KLR) (Judicial Review) (22 December 2020) (Ruling) as follows:
“8. On the question of whether the said leave can operate as a stay of the impugned report, the applicable principle is that the grant of such leave is discretionary, but the court should exercise such discretion judiciously. Order 53 rule 1(4) of the Civil Procedure Rules provides as follows in this respect:
“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.”
97. In R (H). v Ashworth Special Hospital Authority (2003) 1 WLR 127, it was held that such a stay halts or suspends proceedings that are challenged by a claim for judicial review, and the purpose of a stay is to preserve the status quo pending the final determination of the claim for judicial review. The circumstances under which a court may grant a direction that the grant of leave do operate as a stay of proceedings or of a decision, and the factors to be taken into account by the courts in this regard were laid down in the said decision, and in various decisions by Kenyan Courts.
98. The main factor is whether or not the decision or action sought to be stayed has been fully implemented. It was thus held in Jared Benson Kangwana vs Attorney General, Nairobi HCCC No. 446 of 1995 that stay of proceedings should be granted where the situation may result in a decision which ought not to have been made being concluded. A similar decision was made by Maraga J. (as he then was) in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006.
99. This factor was also discussed in R (H). v Ashworth Special Hospital Authority (supra) where Dyson L.J. held as follows:
“As I have said, the essential effect of a stay of proceedings is to suspend them. What this means in practice will depend on the context and the stage that has been reached in the proceedings. If the inferior court or administrative body has not yet made a final decision, then the effect of the stay will be to prevent the taking of the steps that are required for the decision to be made. If a final decision has been made, but it has not been implemented, then the effect of the stay will be to prevent its implementation. In each of these situations, so long as the stay remains in force, no further steps can be taken in the proceedings, and any decision taken will cease to have effect: it is suspended for the time being.”
100. It therefore follows that were the action or decision is yet to be implemented, a stay order can normally be granted in such circumstances. Where the action or decision is implemented, then the court needs to consider the completeness or continuing nature of such implementation. If it is a continuing nature, then it is still possible to suspend the implementation.
101. They submit that the Interested Parties’ securities which were deposited in court in the form of cash bail and the 1st and 2nd Interested Parties’ passports’ have been returned to the 1st and 2nd Interested Parties therefore there is nothing capable of being stayed nor is it possible to suspend the implementation of the action sought to be stayed.
Analysis and determination
102. I have considered the Chamber Summons, Verifying Affidavit, the Statutory Statement, responses, the Preliminary Objection and the rival submissions. From the foregoing, the issue for determination is whether the Application is merited.
103. At the leave stage all the applicant has to show is that it has a prima facie case or a case that might turn out to be, an arguable case.
104. In exercise of its discretion, this court has the duty to determine whether or not the Applicant has made out a case that has the potential of fitting into a case that is within the Fair Administrative Action Act framework.
105. The Applicant has to invite and satisfy the court that there is a need to delve deeper into its case so as to establish that the respondent has acted ultra vires, irregularly or through procedural impropriety.
106. An Applicant who wants the court to grant them leave so as to advance into the substantive phase of their case must demonstrate that they have a case that falls within the remit if Article 47 of The Constitution.
107. The standards and the burden of proof at the leave stage is not the same as what presents at the substantive hearing phase. All the court has to do at the leave phase is to do an initial assessment of what the Applicant presents before it.
108. No doubt, an Applicant who misleads the court and or fails to disclose to the court the truth simply exposes their case to the calamity of a dismissal when the truth comes out. The Applicant at this phase owes the court a duty of candid disclosure and presentation of the facts. The days of an Applicant who steals a match during the leave stage through material none disclosure plants a rotten seed that will poison their case.
109. The requirement to seek for leave to file for judicial review orders is provided for under Order 53 Rule 1 of the Civil Procedure Rules.
110. In IRC V National Federation of Self-Employed and Small Businesses Ltd (1982) 617, (1981) 2 ALL ER 93 Lord Diplock explained the need for leave as follows:
“Its purpose is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
111. It would therefore appear that the reasons for leave are therefore two-fold and that is number one to save the court’s time and, two, so as not to leave public authorities in a state of uncertainty as to whether they can safely proceed with their operations.
112. In the same case, Lord Scarman saw the need for leave as ‘an essential protection against abuse of legal process’. In his words, “it enables the court to prevent abuse by busybodies, cranks and other mischief makers”. (see pages 653 and 113).
113. On his part, Woolf LJ referred to the need for leave, in the same case, as ‘the unique statutory means by which the court can protect itself against abuse of judicial review’.
114. In order to avoid from delving into the merits of the case, Lord Diplock, in IRC V National Federation of Self-Employed and Small Businesses Ltd (supra) suggested the following approach.
“If, on a quick perusal of the material then available, the court thinks the application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”
115. The question of whether a case is arguable or not may occasionally require some questioning on the case's merits, but this type of questioning won't go far enough to determine whether the case will win or fail. The questioning will be severely constrained or limited, only going as far as is required to decide whether the matter can be argued, and nothing beyond. It is from this perspective that I will consider the applicant’s application.
116. In Mombasa HCMCA No. 384 of 1996 Republic v County Council of Kwale & Another, Exparte Kondo and 57 others it was held that:
“The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly 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. The requirement that leave must be obtained before making an application for Judicial Review is designed 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 the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court 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 partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.
117. In Republic v Simon Okoth (2017) eKLR Prosecution sought to have the matter withdrawn under Article 157(6)(c) of the Constitution and section 87(a) of the CPC after a review of the evidence. The Complainant objected to the withdrawal of the matter. The Trial Magistrate declined to allow the withdrawal thus leading the prosecution to seek a revision of the matter at the High Court, an application which was allowed and the matter was withdrawn. Hon. Justice Prof. Joel Ngugi (as he then was) held that;
“14. … in determining whether to permit the DPP to discontinue charges, the Court will test the decision against public interest; interests in the administration of justice and the need to avoid abuse of the legal process.
This tripartite test stipulated in Article 157(11) must be viewed together with the other principles laid out in Article 157. …
118. The Director of Public Prosecutions, the DPP has the legal and constitutional mandate to withdraw criminal cases instituted by itself or taken over by itself, but must obtain permission of the court by offering justifiable reasons for such withdrawal. It is upon the provision of such justifiable reasons that the court would proceed to allow the withdrawal.
119. The Constitution (at sub-Article 11) gives the guiding principles that the DPP shall consider in determining whether to withdraw. The 3 guiding principles are public interest, interests of administration of justice and the need to avoid abuse of the legal process. These 3 elements put a responsibility on the DPP to ensure that such withdrawal is done in good faith and pursuit of the fairness and justice. If the process is tainted by elements of unfairness or injustice, then the DPP would be failing in upholding these constitutional principles. The court would then be reluctant to allow the intended withdrawal.
120. Section 87 of the criminal procedure code provides as follows;
“In a trial before a subordinate court, a public prosecutor may, with the consent of the court or on the instructions of the DPP, at any time before judgment is pronounced withdraw from the prosecution of any person….”
121. Again, the element of consent of the court is noted regarding applications for withdrawal under Section 87 of the Criminal Procedure Code. This means that for the court to allow withdrawal, the prosecution must convince the court by giving good reasons that would justify the action. A denial of the consent would properly ensue if no good reason has been given.
122. In the Republic Versus Leonard Date Seketo (2019) eKLR case as cited to me by the prosecution, the Hon Justice Nyakundi, observed that;
“An important element of the power to initiate, undertake or withdraw any criminal proceedings by the prosecutions is to ensure justice is not only seen to be done but that justice is done in the matter.”
123. It is not clear to the court whether the interested parties were released or not and whether their bail was refunded and their passports released to them. This will no doubt be clearer when the substantive suit is filed informing the prayer for the order of prohibition.
124. The court has looked at the circumstances and the impugned decision to withdraw the criminal case and the court is of the opinion that the Applicant has made out a case that informs the need to delve deeper into the procedure and the legality of the withdrawal.
125. This court is satisfied that the existence of the decision to withdraw Milimani Criminal Case Number 1274 of 2021 is not in dispute and the Notice of Preliminary Objection is misplaced. All the parties have referred to the said judgment that forms the basis of the Application before this court.
126. This court is of the considered view that the Applicant has made out a prima facie case for the grant of leave to institute judicial review proceedings.
Orders:
The Application is allowed in the Following terms:
1) The applicant shall file and serve its substantial notice of motion within seven days of today’s date. The Respondents and the Interested Parties shall file and serve their responses within 14 days of service.
2) The Applicant shall thereafter file and serve its submissions within 7 days of service.
3) The Respondents and the Interested Parties shall thereafter file and serve their submissions within 7 days of service.
4) The matter shall be mentioned on 18.6.25 for further directions.
5) Costs in the cause.