Davi Ndolo Ngiali, James Kituku Munguti & Leonard Kyania Kitua v Director of Criminal Investigations, Director of Public Prosecutions, Attorney General, O.C.S. Muthaiga Police Station & Chief Magistrate’s Court At Milimani Law Courts [2014] KEHC 2856 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR MISC. CIVIL APPLICATION NO. 333 OF 2014

IN THE MATTER OF ARTICLE 47 OF THE CONSTITUTION, SECTIONS 8 AND 9 OF THE LAW REFORM ACT AND ORDER 53 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF AN INQUIRY INTO ALLEGATIONS BY THE SHAREHOLDERS OF MALILI RANCH LIMITED THAT KSHS 1. BILLION PAID BY GOVERNMENT OF KENYA FOR PURCHASE OF THEIR PORTIONS OF LAND THAT TOTALED TO 5000 ACRES TO SET UP THE ICT KONZA CITY WAS MISAPPROPRIATED

AND

IN THE MATTER OF NAIROBI CHIEF MAGISTRATE’S COURT AT MILIMANI LAW COURTS ACC CASE NUMBER 19 OF 2014

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW AGAINST THE DECISION TO CHARGE AND PROSECUTE DAVID NDOLO NGILAI, JAMES KITUKU MUNGUTI AND LEONARD

KYANIA KITUA

BETWEEN

DAVI NDOLO NGIALI…………...…………………………..1ST APPLICANT

JAMES KITUKU MUNGUTI..….………………….…………2ND APPLICANT

LEONARD KYANIA KITUA…..………..…….……..………..3RD APPLICANT

VERSUS

THE DIRECTOR

OF CRIMINAL INVESTIGATIONS………....……………1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS…....… .……...2ND RESPONDENT

THE HON. ATTORNEY GENERAL.….……..….…...……3RD RESPONDENT

THE O.C.S. MUTHAIGA POLICE STATION.…........….…4TH RESPONDEN T

THE CHIEF MAGISTRATE’S COURT AT

MILIMANI LAW COURTS…………...…...………..……….5TH RESPONDENT

RULING

1.  By a Chamber Summons dated 3rd September, 2014 the ex parte applicants herein sought the following orders:

THAT this application be certified urgent and service thereof be dispensed with in the first instance

THAT leave be and is hereby granted to the Applicants to commence proceedings in the nature of Judicial Review for the following orders:

(a)   An order of Certiorari to remove into this honourable court and quash the decision of the 1st, 2nd and 4th Respondents contained in the charge sheet presented to court on 27th August 2014 to prosecute the Applicants for the offences of stealing contrary to Section 268 as read with Section 275 of the Penal Code and Conspiracy to Commit a Felony contrary to Section 393 of the Penal Code.

(b)   An order of Certiorari to remove into this honourable court and quash the decision of the 5th Respondent dated 29th August 2014 commanding the Applicants to appear before the 5th Respondent on 5th September 2014 to take plea in Chief Magistrates Court at Milimani ACC Case Number 19 of 2014.

(c)   An order of Prohibition to prohibit the Respondents jointly and or severally from prosecuting and or conducting proceedings including but not limited to the court appearance, taking of plea and taking of evidence in Nairobi Chief Magistrate’s court at Milimani ACC No. 19 of 2014 or any other court proceedings based on the same factual and evidentiary basis as Nairobi Chief Magistrate’s Court at Milimani ACC No. 19 of 2014.

THAT the grant of leave herein does operate as a stay of all prosecution and all proceedings including but not limited to the court appearance, taking plea and taking of evidence in Nairobi Chief Magistrate’s Court at Milimani ACC No. 19 of 2014 or any other court proceedings based on the same factual and evidentiary basis as Nairobi Chief Magistrate’s Court at Milimani ACC 19 of 2014.

THAT the costs of this application be provided for.

2.  After hearing the application, this Court on 3rd September 2014 certified the matter urgent and admitted the same to hearing during the vacation. The Court then granted leave as sought and directed that with respect to the prayer for the direction that the leave do operate as a stay, the application be served for inter partes hearing. The Court then in the exercise of its inherent powers granted a temporary stay in terms of prayer 3 above and fixed the matter for hearing inter partes on 29th September, 2014.

3.  When the matter came before me for hearing inter partes on that day Mr. Muema, learned Counsel for the ex parte applicant indicated that he would be applying for adjournment. Hon. Muite, learned Senior Counsel for the 1st, 2nd and 4th Respondents while not opposing the application for adjournment indicated to the Court that he would be seeking the Court’s directions on two issues. The first issue was a clarification from the Court as to whether the orders of stay which this Court granted on 3rd September, 2014 on the application by the 3 applicants herein were intended to extend and apply to individuals beyond the said applicants. The second issue was that the 1st, 2nd and 4th Respondents would wish to urge the Court that there was no basis for extending the orders which were due to expire on the said date. Learned Senior Counsel was of the view that since there was a pending Petition No. 436 of 2014 filed by one of the accused persons the subject of the criminal case which is coming up on 27th October, 2014, it was only sensible that this application and the said Petition be heard concurrently.

4.  Having so submitted, Mr. Muema proceeded to make his application. While making it clear that he had no objection to the interested parties being joined to these proceedings, Mr. Muema sought for more time to file further affidavit in response to the issues which were raised in the affidavit of the 2nd Respondent which was served on him on 24th September, 2014 and whose contents he had not had an opportunity to share with his clients. Apart from the said affidavit he submitted that he had been served with a voluminous list of authorities and he needed time to file in his own words a similarly voluminous list. He also sought directions on the filing of skeleton submissions.

5.  According to Mr. Muema, the order which was granted herein stated that it would act as a stay of even future charges arising from the same facts. However following the amendment of the charge sheet in the criminal case, he would have happily withdrawn the application had the replying affidavit filed herein not evinced an intention to bring other charges. In his view, as the Criminal Case is due for mention in December, 2014 there was no prejudice if the adjournment sought for 2 weeks was granted.

6.  On the issue of the lifting of the stay, learned counsel submitted that the Respondents ought to have made a substantive application. In his view his application was merited in order to enable the Court fairly adjudicate the matter.

7.  On behalf of Zablon Mabeya, an Interested Party, it was submitted by Mr. Okongo Omogeni, learned Senior Counsel that his understanding of Order 53 rule 1(4) of the Civil Procedure Rules is that when it is sought that the leave do operate as a stay the Judge has two options. The first option is to order that the leave do operate as a stay of the proceedings in question and that that is what the Court did in this case. The second option is for the Court to direct that the application be served for hearing inter partes before the order of stay is granted. In learned Senior Counsel’s view, the Court did not exercise this second option.

8.  The Court having done that the best way, it was submitted would be to deal with the hearing of the Motion. However, the respondents had the option of filing an application seeking to discharge the leave operating as a stay which application had not been made.

9.  It was further submitted that under Order 53 rule 3, it was mandatory that the parties directly affected by the application be served and hence the application ought to have been served on the criminal Court and the parties thereto. It was therefore submitted that the Court ought to direct that the said parties be served so that they can respond to the application and the Court can then proceed to hear the application.

10.  In learned counsel’s view, there was no basis either by way of an a application or otherwise as to why the Court should disturb the orders granted to the effect that the leave operate as a stay and it would be premature to address the Court on the issue before all the parties have come on board. Since the criminal case is fixed for mention in December, 2014 it was submitted that there is ample time for the hearing of the application.

11.  On the part of Senator Johnson Muthama, an interested party, Dr. Khaminwa, learned Senior Counsel while associating himself with the submissions made by Mr. Omogeni, submitted that the orders granted by the Court herein not only touched on the applicants but also on those persons who were not before the Court. While conceding that when he appeared before the criminal court his client had no idea what had transpired in these proceedings, learned Senior Counsel submitted that when Hon. Muite applied to amend the charge sheet in order to exclude the 3 applicants herein which application on the face of it appeared reasonable and was not opposed because at that time they did not know that the proceedings in question had been stayed and the plea taking was not supposed to take place. Dr Khaminwa therefore took issue with the conduct of Hon. Muite in the said proceedings which according to him led the learned trial magistrate to make orders which she ought not to have made.

12.  While submitting that the only forum in which his client can ventilate his grievances is this Court he urged the Court to afford him an opportunity to participate in these proceedings fully. According to Dr Khaminwa the Constitution of Kenya has pushed Kenya into a community of civilized nations of the Word hence we need to conduct ourselves with dignity and ought not to be overzealous in achieving certain ends.

13.  Mr. Adere, learned counsel for Julius Kilonzo Maweu, similarly an interested party was however more cautious in his approach.  He admitted that having made an application before the Criminal Court, his position was rather precarious. He informed the Court that after being served with the documents filed herein and upon consultation with his client he would be in a better position to decide on how to proceed.

14.  Mr. Mutinda, learned counsel for Mr. Julius Mbau, on his part associated himself with the submissions made on behalf of the other interested parties  and informed the Court that he would like to be heard in the substantive application after filing an affidavit upon being served.

15.  Mr. Haroun Ndubi, although appearing with Dr Khaminwa for Senator Muthama reiterated that the clarification being sought ought to be by way of a formal application in order to enable them respond thereto. In his view the clarification seemed to be a way of avoiding the intended contempt of court proceedings. According to him the Respondent cannot choose which part of the orders granted by the Court they like to the prejudice of the interested parties.

16.  Ms Julie Soweto, learned counsel though appearing together with Dr Khaminwa, as a friend of the Court sought to clarify that the impression created that Ronald Musengi, a co-accused in the criminal case was a party to these proceedings was incorrect and as the said accused was not in court no aspersions ought to be cast on him.

17.  Hon. Muite, learned Senior Counsel on his part submitted that the impression created by the learned counsel for the interested parties that theirs is the only interpretation that this Court ought to adopt was incorrect. According to Senior Counsel, there were three individuals before this Court on 3rd September, 2014 when the Court issued the orders it did in their favour based on the material before the Court. However the said orders were only temporarily granted up to 29th September, 2014.

18.  Nevertheless the Court did not and could not have bound parties beyond the three applicants since the Court did not know the potential accused persons save for the applicants who were before the Court. To support the view that the orders granted were confined to the 3 applicants, learned counsel relied on the fact that in Petition No. 436 of 2014 the Court declined to grant conservatory orders. In his view, it would be an absurdity for the Court to stop the prosecution of individuals who have not sought to stop their prosecution. He therefore contended that it was this scenario that informed the application to amend the charge sheet to exclude the three applicants and that the reasons for the amendments were disclosed to the criminal court though he was not part of the defence team.

19.  Hon Muite’s view was that there was no need to make a formal application since what is sought is not the vacation of the orders but simply an order not to extend the temporary orders granted herein.

20.  Learned counsel however informed the Court that based on the fact that it would make sense to have this application and Petition No. 436 of 2014 heard together he was not opposed to the adjournment of these proceedings. In learned counsel’s view, based on the material disclosed by the applicants, there is a prima facie case disclosed hence the Court ought not to interfere with the discretion to charge the applicants. Accordingly there would be no basis for the extension of the stay orders granted herein.

21.  While not objecting to the filing of supplementary affidavit by the applicant learned Senior Counsel sought for corresponding leave to file further affidavit.

22.  On behalf of the 3rd Respondent, Miss Odhiambo informed the Court that having filed their grounds they were ready to take directions.

23.  In a rejoinder, Mr. Muema urged the Court in determining the issues raised herein not to allow the applicants’ case to be lost in the battle between the Respondents and the interested parties. Similarly, the seriousness of the averments made by the applicants in various affidavits ought not to be lost in the expediency of rushing up the matter to hearing. According to him the decision to take plea in the criminal case was an individual decision and the applicants had not even alluded to any party when they came before this Court and the Court looked at the merits of the applicants’ case hence they deserve extension of the orders of stay otherwise the application would be rendered nugatory as the orders would be in vain.

24.   I have listened to the submissions made by counsel for the parties herein. It was contended that the Court in granting leave has only two options. Either to direct that the leave operate as a stay or to direct that the application be served for hearing and that stay having been granted the next course of action is to proceed with the Motion. Although not expressly stated, the implication was that this Court cannot grant a temporary stay pending hearing inter partes.

25.  When this Court granted leave in this matter, the Court was very clear in its mind that the stay was being granted in the exercise of the Court’s inherent jurisdiction. Accordingly the Court was very alive to the fact that temporary orders of stay can only be granted in the exercise of the Court’s inherent jurisdiction. It has not been contended that in judicial review the Court has no jurisdiction to invoke its inherent jurisdiction. In fact the course suggested by the interested parties that the Respondents ought to apply for setting aside of the leave and stay can only be resorted by the invocation of the Court’s inherent jurisdiction. In taking this view, I do not pretend to be breaking new ground and mine is not a lone voice shouting in the wilderness. The Court of Appeal in R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Televisions Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199held that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave. The appropriate procedure for challenging such leave subsequently is by an application by the Respondent under the inherent jurisdiction of the Court, to the Judge who granted leave to set it aside. A similar view was adopted by the same Court in Njuguna vs. Minister for Agriculture Civil Appeal No. 144 of 2000 [2000] 1 EA 184, Judicial Commission of Inquiry Into The Goldenberg Affair & 3 Others vs. Job Kilach Civil Application No. Nai. 77 of 2003 [2003] KLR 249 as well as Aga Khan Education Service Kenya vs. Republic Civil Appeal No. 257 of 2003 [2004] 1 EA 1.

26.  On Inherent jurisdiction, Ouko, J (as he then was) in The Matter of The Estate of George M’mboroki Meru HCSC No. 357 of 2004,expressed himself as follows:

“It is therefore accepted that the court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent abuse of its process, to do justice between the parties and to secure a fair trial between them.”

27.  Inherent power, it must be stressed is not donated by legislation. In Ryan Investments Ltd & Another vs. The United States of America [1970] EA 675 it was held that section 3A of the Civil Procedure Act is not a provision that confers jurisdiction on the court but simply reserves the jurisdiction which inheres in every court. The court has inherent jurisdiction not created by legal provisions, but which only manifests the existence of such powers.

28.  Dealing the same issue it was held in Republic vs. The Public Procurement Complaints, Review and Appeals Board & Another Ex Parte Jacorossi Impresse Spa Mombasa HCMA No. 365 of 2006 that the Court has power under its inherent jurisdiction to make orders that may be necessary for the ends of justice and to enable the Court maintain its character as a court of justice and that this repository power is necessary to be there in appreciation of the fact that the law cannot make express provisions against all inconveniences.

29.  In my order of 3rd September, 2014 I made it clear that the limb for stay was to heard inter partes and the stay that was granted was a temporary one pending the said inter partes hearing. Accordingly it is incorrect to contend that the issue of stay is nolonger alive. This position is appreciated under Order 53 rule 1(4) of the Civil Procedure Rules under which it is provided that:

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.

30.  In my view the Court has wide powers under Order 53 rule 1(4) of the Civil Procedure Rules in granting direction relating to stay to do so for such time as it may deem appropriate and in my view to grant a stay pending inter partes hearing is one of powers contemplated under the phrase “until the judge orders otherwise.” In Republic vs. Kenya Revenue Authority & Another ex parte Romageco J R Misc. Application No. 58 of 2013, this Court held that whereas Order 53 rule 1(4) of the Civil Procedure Rules does not, strictly speaking, provide for the grant of a temporary stay pending inter partes hearing, in deserving cases the Court may grant a temporary stay in the exercise of its inherent jurisdiction pending inter partes hearing. This Court has similarly held that as opposed to the grant of leave which a party is entitled once a prima facie case disclosing grounds for judicial review are established, the grant of direction that the leave operate as a stay is an exercise of judicial discretion which must be based on the prevailing circumstances. It may be granted at any stage of the proceedings and may similarly be varied, set aside or vacated all together depending on the circumstances of the case.

31.  It is therefore my view that as opposed to where a person seeks to set aside leave in which case a formal application would be necessary, where the Court grants temporary orders pending hearing inter partes, the Court is still seised of the application and may decline to extend the same at any stage of the proceedings. The decision by the Court not to extend the same cannot however in my view be interpreted to mean the same thing as vacating the orders since the former occurs by effluxion of time unless otherwise directed.

32.  The next issue has to do with the binding effect of Court orders on non-parties. That the interested parties were not the applicants in these proceedings is not in doubt. In fact from the submissions made by their counsel, the interested parties were not even aware that orders of stay had been granted in these proceedings. In Commercial Bank of Africa Ltd. vs. Isaac KamauNdirangu Civil Appeal No. 157 of 1995 [1990-1994] EA 69, Muli, JA was of the view that a person who is not a party to legal proceedings cannot reap benefits thereof. In Ernest Orwa Mwai vs. Abdul S Hashid & Another Civil Appeal No. 39 of 1995, the Court of Appeal was of the view that an order made in proceedings to which the appellant was not a party could not bind the appellant.  That parties not before the Court may not be bound by orders granted therein was also the position taken by a majority in The Town Council of Ol’kalouvs. Ng’ang’a General Store Civil Appeal No. 269 of 1997.

33.  In this case however, though leave was only expressly granted to the applicants herein, the order for stay as was framed by the applicants and granted by this Court on the face of it stayed the proceedings in the said Criminal Case. The events subsequent to the grant of leave herein however have brought to light the untidy situation caused by the applicants of not disclosing to the Court that there were other parties to the criminal case whose stay was being sought.  The charge sheet in the criminal case was however amended and for all intents and purposes the applicants are nolonger parties to the said criminal trial. Yet the interested parties to whom leave was neither sought nor granted insist that the stay granted at the instance of the applicants who are not parties to the said proceedings ought to remain in force in their favour. In fact the applicants herein have submitted before this Court that were it not for the fact that the respondents have intimated that the applicants may be charged in future they would have had no problem withdrawing the application. In the event that the application is withdrawn would the interested parties still insist that the stay would remain in force? If the Court were to accede to that position it would with due respect turn this Court and its proceedings into a theatre of the absurd.

34.  Whereas the Court may perfectly grant an order staying proceedings whose effect would be to benefit non-parties, the Court ought to be cautious in order not to grant orders which may affect parties who may not be interested in having their criminal case delayed. Therefore for the Court to stay proceedings generally rather than the proceedings affecting the parties before it, the Court ought to be satisfied that all the parties were aware of the application for relief for stay and had no objection to the same being granted.

35.  In this case, it is clear that the interested parties herein not only did not seek orders for stay of the proceedings herein but in fact were unaware that such orders were being sought. In other words the interested parties never expected to reap the benefits of the stay orders which the applicants herein sought and obtained. As a result, no objection was taken to the amendment of the charge sheet whose effect was that the applicants were excluded from the criminal proceedings. The applicants sought inter alia an order prohibiting them from taking pleas in the criminal proceedings. The interested parties on the other hand have already taken the plea. Accordingly, the applicants’ position cannot be said to be exactly the same as that of the interested parties.

36.  Having considered the submissions made herein I have no doubt in mind that even going by the submissions made on behalf of the interested parties the stay granted herein was never intended to benefit the interested parties but were solely meant to protect the applicants to whom leave had been granted to commence judicial review proceedings. In other words the interested parties cannot be expected to take a free ride on the wings of the applicants’ claims, claims which they never instituted and were unaware of.

37.  Apart from that, without casting aspersion on the petitioner in Petition No. 436 of 2014, whose application for conservatory orders was disallowed, by holding that the stay granted herein was for the benefit of all the accused in the subject criminal case, this Court would have in effect overturned its decision in the said Petition without an application to do so having been made. That in my view would not only bring these proceedings into disrepute but would turn this Court into a circus.

38.  That now brings me to the issue whether the orders granted herein on 3rd September, 2014 ought to be extended. As already stated hereinabove this Court was satisfied that the applicants deserved some measure of protection albeit temporarily. I am not convinced at this stage that the circumstances have materially changed since as contended on behalf of the applicants the Respondents may still charge the applicants. Therefore unless the orders granted herein are extend there is a probability that the inter partes hearing of the application may well be overtaken by events taking into account the fact that the very process of taking plea is being challenged by the applicants.

39.  In the premises I am satisfied that the orders of stay granted herein on 3rd September, 2014 ought to be and are hereby extended in so far as the proceedings against the applicants are concerned.

40.  It was contended that since the interested parties and the Court have not been served this Court ought not to grant the clarification sought by the Respondents until such time that the interested parties are served and have responded to the application. Order 53 rule 3 of the Civil Procedure Rules provides as follows:

(1)   When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.

(2)   The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.

(3)   An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.

(4)   If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct.

41.  Ordinarily therefore service on the persons directly affected or interested parties as they are normally called in these proceedings comes on the filing of the Motion and that obviously is the duty of the ex parte applicant. That however is not to say that the Court cannot direct that the said parties be heard on the issue of stay whether in support of or in opposition to the grant thereof. However that is a matter for the Court based on the facts of the case.

42.  Having arrived at the said decisions the orders which commend themselves to me and which I hereby make are as follows:

That leave is hereby granted to Zablon Mabeya, Senator Johnston Muthama, Julius Kilonzo Maweu and Julius Mbau to be joined to these proceedings as such interested parties.

That leave is hereby granted to the ex parte applicants to file supplementary affidavit(s) within 7 days and serve the same together with the previously filed documents on all the parties to these proceedings within 3 days of filing thereof.

That the interested parties shall file their responses to the application within 3 days of service thereof.

That the Respondents will be at liberty to file and serve their further affidavits if need be within 7 days of service of the interested parties’ responses.

That the matter be placed before the Judge hearing petition No. 436 of 2014 on 27th October, 2014 for directions and/or further orders.

That the interim orders granted herein on 3rd September, 2014 in so far as the proceedings against the applicants are concerned are herein extended until 27th October, 2014 or until further orders of the Court.

Dated at Nairobi this 30th September, 2014

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Muema Kitulu for the ex parte applicants

Mr Ondimu for Hon. Muite for the 1st , 2nd and 4th Respondents.

Mr Odhiambo for Miss Odhiambo for the 3rd Respondent

Dr Khaminwa, Mr Haroun Ndubi, Mr Mbugua Murethi, Mr Antony Oluoch, Ms Kethi Kilonzo and Ms Julie Soweto for Senator Johnston Muthama

Mr Okongo Omogeni with Mr Nyawara for Zablon Mabeya

Mr Ndege for Mr Adere for Julius Kilonzo

Mr Mutinda Alphonse for Julius Mbau

Cc Patricia