Bikeri v Office of the Director of Public Prosecutions & another; Institute of Certified Public Accountants of Kenya (ICPAK) & 2 others (Interested Parties) [2022] KEHC 468 (KLR)

Bikeri v Office of the Director of Public Prosecutions & another; Institute of Certified Public Accountants of Kenya (ICPAK) & 2 others (Interested Party) (Constitutional Petition E165 of 2022) [2022] KEHC 468 (KLR) (Constitutional and Human Rights) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 468 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E165 of 2022

AC Mrima, J

May 11, 2022

Between

Fredrick Bikeri

Petitioner

and

Office of the Director of Public Prosecutions

1st Respondent

Attorney General

2nd Respondent

and

Institute of Certified Public Accountants of Kenya (ICPAK)

Interested Party

Capital Market Authority (CMA) Kenya

Interested Party

Nairobi Security Exchange

Interested Party

Ruling

1. This matter was instituted under certificate of urgency and was dealt with by the Duty Court on 20th April, 2022.

2. The Court gave directions on service of the pleadings and set the matter for directions on 10th May, 2022.

3. When the matter came up for directions as scheduled, Counsel for the Petitioner urged the Court to consider granting some interim reliefs in terms of the Notice of Motion dated 20th April, 2022. Counsel made concerted efforts in persuading the Court to grant the orders sought.

4. This Court was also urged to expedite the hearing and disposal of the Petition.

5. The request for the interim reliefs was vehemently opposed by the 1st Respondent whereas the 2nd Respondent sought to exit the proceedings on the basis that there was no cause of action that was disclosed against the Hon. Attorney General.

6. One of the issues raised by the 1st Respondent and duly supported by the 2nd Respondent was that since the matter was scheduled for directions, no interim reliefs can be granted until the Notice of Motion is heard inter partes.

7. The Petitioner opposed the Respondents’ position and submitted that the Court has the jurisdiction to grant any interim relief at directions hearing.

8. This Court finds no difficulty in resolving the above issue. I say so because when a matter is slated for directions, that is a hearing. It is sometimes referred to as Directions hearing. Such is different from when a matter is slated for a Mention.

9. When a matter comes up for a Mention before Court, there is always a specific purpose to be dealt with. It may be, for instance, to confirm whether parties have complied with some orders of the Court. There is nothing much a Court can do when a matter is slated for a Mention other than just addressing the purpose of the Mention.

10. The position is, however, different when a matter comes up for directions. At directions’ stage, the Court has a wider latitude over the matter. The Court is to address any issue with a view of chatting the best way forward in the matter. In doing so, the Court grants audience to the parties in the matter to address several issues and the Court remains under a duty to deal with all requests and applications made. Such may include requests for interim reliefs.

11. The position taken by the Respondents over the powers of the Court at a Directions’ hearing is, hence, misconceived. It is for rejection.

12. Having said so, this Court has carefully considered the parties’ submissions on the way forward. It is to be noted that the request for interim orders is based on an interpretation of some provisions of the Constitution. Both the Petitioner and the 1st Respondent have different positions and interpretations over the same constitutional provisions.

13. As the matter hinges on inter alia whether the Constitution is infringed and the constitutionality of some provisions of the Office of Public Prosecutions Act, No. 2 of 2013, this Court is of the considered position, and so finds, that it is prudent that the Notice of Motion is substantively heard before it expresses its mind over the prayers sought in the application.

14. On whether the Hon. Attorney General ought to be allowed to exit the proceedings and whether some parties ought to be enjoined as interested parties, the Court takes the view that formal applications be made.

15. In the end, the Court makes the following orders: -a.The Petitioner shall, within 14 days of this order, file and serve the application(s) for joinder of more interested parties.b.The 2nd Respondent shall, within 14 days of this order, file and serve a formal application seeking to exit the proceedings.c.Given the nature of the applications to be filed, further directions to be issued on a later date.

Orders accordingly.

DELIVERED, DATED andSIGNED atNAIROBI this11th day ofMay, 2022. A. C. MRIMAJUDGE