Edwin Harold Dayan Dande, Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama & Shiv Anoop Arora v Director of Public Prosecutions [2017] KEHC 5858 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW NO.  8 OF 2017

IN THE MATTER OF AN APPLICATION BY EDWIN HAROLD DAYAN DANDE, ELIZABETH NAILANTEI NKUKUU, PATRICIA NJERI WANJAMA AND SHIV   ANOOP ARORA FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS AGAINST THE CHIEF MAGISTRATE’S COURT AT NAIROBI AND THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015

AND

IN THE MATTER OF NAIROBI CHIEF MAGISTRATE CRIMINAL CAUSE NO.  1735   OF 2016

BETWEEN

EDWIN HAROLD DAYAN DANDE……………....…………….1ST APPLICANT

ELIZABETH NAILANTEI NKUKUU……………......……….....2ND APPLICANT

PATRICIA NJERI WANJAMA ……………….……..……...…3RD APPLICANT

SHIV ANOOP ARORA……………………….…………...…...4TH APPLICANT

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS …….......1ST RESPONDENT

THE CHIEF MAGISTRATE’S COURT AT NAIROBI..........2ND RESPONDENT

RULING ON LEAVE AND STAY

1. By  a chamber summons  dated 16th January 2017, the applicants Edwin Harold  Dayan  Dande, Elizabeth  Nkukuu, Shiv Anoop Arora and Patricia Njeri Wanjama seek from this court  orders that:

a) Leave be granted to the applicant  to  apply for  and order of certiorari to remove  into this court  and  quash  the decision  of  the Director of Public  Prosecutions, the first  respondent herein, made  on or about  4th November  2016  to institute criminal  proceedings against the  applicants  in criminal cause No.1735 of 2016 before the Chief  Magistrate’s Court  at Nairobi.

b) Leave be  granted to the applicants  to apply for  an order  of certiorari  to remove  into this court  and  quash  the proceedings in criminal  cause No.  1735 of 2016.

c) Leave  be granted to the applicants to  apply for an order of  prohibition to prohibit the Chief Magistrate’s court from  hearing  and determining  the matter in  criminal cause  No. 1735  of 2016

d) The grant of leave herein does operate as a stayof the impugned proceedings pending the hearing and determination of this matter.

e) Costs of this application be provided   for.

2. The application  is  predicated  on  11 grounds  on the face  of  the application, the  statutory  statement, verifying  affidavit  and a bundle  of annextures  in  support  thereof.  The verifying  affidavit  is sworn  by the  1st Applicant  Edwin Harold  Dayan Dande  on his  own behalf  and on behalf  of his  co-applicants.

3. The first applicant is the Chief Executive Officer of Cytonn Investments Management Ltd. All the  applicants  are former  employees  of British American  Asset  Manager  Ltd (‘BAAM’) currently  known as BRITAMAssets  Manager (K) Limited, which is  a  subsidiary  company  of British American Investments  Company Limited (BRITAM).  The  first  applicant  Edwin  Dande was the Chief Executive Officer, the  2nd applicant Elizabeth Nkukuu  was the Senior  Portfolio Manager,  the 3rd  applicant  Patricia Wanjama  was the Assistant Company Secretary and Head of Legal  whereas the 4th applicant Shiv Arora was an Investments  Analyst.

4. The four applicants then resigned  from BRITAM Assets  Manager (K) Limited following  a dispute   arising  from a tripartite  joint  venture arrangement  for the identification  and  development  of real estate  which had  gone  sour with parties suing one  another  and blaming  one  another  for  failure  and  trading   accusations of impropriety leading  to  five  civil suits  instituted by  BRITAM Assets Manager (K) Limited.  After the applicants resigned from BRITAM Assets Manager (K) Limited, they formed a rival company Cytonn Investments Ltd.

5. BRITAM Assets Manager (K) Limited, former employer of the  applicants moved in and  engaged  Cytonn in litigation  accusing  it of  fraud  with  regard  to sums invested  in real estate  deals  as part of the partnership between BRITAM, BAAM AND ACORN Group Limited ( AGL).

6. At the  heart  of the  various  suits are  allegations that  the applicants  herein  defrauded  BRITAM for between  8. 1  billion  and  9. 7 billion shillings transferred  by the applicants  to various other  persons, as summarized  in the verifying  affidavit  at paragraph 7a,b,c,d,e.

7. According  to the applicants  depositions, the  said  suits have   since been  settled  as between Acorn Group Limited (AGL) and BRITAM  via  various  consents  and the suits  withdrawn  against the applicants  as shown by annexture EHDD3 copies  of the said  orders.  That  besides the civil suits, the BAAM/BRITAM also lodged  two criminal cases against the applicants, and also lodged a complaint against the 3rd applicant with the advocates Disciplinary Committee. As  against  the  2nd  and  4th   applicants  a joint complaint was lodged with the Certified Financial Analyst  Institute(CFA1)whereas as against the 2nd applicant, a complaint   was lodged  with the Institute  of Certified   Public Accountants  of Kenya (ICPAK).

8. That following  incessant  harassments,  the applicants  lodged  Judicial Review   proceedings against  the Inspector General  of Police complaining  that the (IG)  was at the instigation of BAAM abusing  their statutory powers and that their investigations  were tainted not with vindictiveness of criminal law but  elimination of potential  business  competitors; that  there  was  no reasonable basis for investigating  the applicants over matters  which had  been settled.

9. The proceedings for Judicial Review were vide JR 435 of 2014 but that on 14th September 2016 Honourable   Odunga J  declined   to grant  reliefs   as sought  by the applicants in the substantive motion on the basis that the court  would be  usurping   the powers of the Director of Public Prosecutions.  However, the learned  judge granted   prohibition against  the  respondents  from arresting the applicants   pending  the decision of Director of Public Prosecutions  on whether  or not to  charge the  applicants with any criminal  offences.  That the said judge also granted a temporary stay pending the filing of an appeal against   his decision to the Court of Appeal.

10. That the complainants have orchestrated a campaign in the media  to try  the applicants and that it is  clear that  the Director of Public Prosecutions is now being prevailed upon by the complainants  to charge the  applicants with  offences   related to  claims which are long settled in civil suits and which settlements  were by consent  of all the parties.

11. That it   was  while the stay orders  of Honourable Odunga  J were still  in force  that  the  Director of Public Prosecutions and the Director of Criminal Investigations Department instituted criminal proceedings against the  applicants before Resident Magistrates Court at  Nairobi  vide criminal case No. 1735  of 2016.

12. That when  the matter came up for plea taking before the Resident Magistrate, the applicants produced copy of the stay order and with the concurrence of the prosecutor, the trial  court adjourned  the matter.

13. That the amounts contained  in the charge sheets  is  the amounts  that  were  settled  vide the  various consents  filed  in the civil court and  that none of the applicants  personally  benefited  from any  payment or transfer  of the said funds  and that neither was there any loss of money belonging to BAAM/BRITAM hence there  was no reasonable factual basis  upon which the Director of Public Prosecutions could  conclude that charges of theft by servant should be made against the applicants hence the prosecution  of the applicants  is motivated  by ulterior  motives including the frustration of the applicant’s  investment company.

14. The application by the applicants was seriously opposed by the respondent Director of Public Prosecutions who filed grounds of opposition dated 23rd January 2017 on 24th January 2017 contending that:

1. The application is an abuse of the court process and  Resjudicata  as the  same has  been conclusively  determined  in JR 435 of 2014  by Odunga J with the last ruling  having been given  on  20th December  2016  and that there  is  a pending  appeal and therefore  this  application ought to be  filed in  the Court of Appeal  for stay pending appeal.

2. That in any event the applicant has not demonstrated a prima facie case for stay of proceedings pending the hearing and determination of either this application or the appeal and the application for leave is opposed as the application is an abuse of the court process as leave cannot be granted in the same matter twice.

3. That the respondents   were acting  within the law in that:

a) respondents are mandated to investigate all possible criminal offences and  an attempt to stop such execution  of mandate would  result  to an attempt  to stop such execution  of mandate  and  result to an even greater  injustice   in the criminal justice  system;

b) That if at all that any matter in issue in any criminal proceedings  is also  directly or substantially in issue  in any  pending civil proceedings shall not be  a ground for any  stay, prohibition  or delay of the criminal  proceedings;

c) That the applicants have not adduced sufficient evidence   before the court on merit to show that prejudice has been occasioned;

d) That the respondents do not require the consent of any person or authority for the commencement of criminal proceedings;

e) That the respondents are not acting under the direction of control of any person or authority;

f) That the applicants have not demonstrated that in executing  their mandate, the respondents have acted without  or in   excess  of the powers as conferred  by the law or acted  maliciously, infringed,  violated, contravened  or any  other   manner  failed to comply with or respect and  observe  the foregoing provision of the Constitution or any other provision of thereof.

15. The respondents therefore prayed that the application for leave and stay be struck out or be dismissed with costs.

16. The parties’ counsels urged the application orally  before me  on 24th January 2017 with Mr Amoko advocate representing  all the applicants and Mr Ashimosi Assistant Director of Public Prosecutions representing  the respondents.

17. According  to Mr Amoko, the Director of Public Prosecutions in  preferring  charges  against the  applicants  as per the  annexed charge sheet did not take  into account  the fact that  the dispute  between the applicants  and the complainants  had been resolved vide several  civil suits which were settled by consents  and with  the applicants herein accounting for every cent of how the money they allegedly stole was spent in the name of the complainant.

18. That the  dispute involved investments done  in the  name of the  complainant  and therefore  the only  question  was whether  the investment  as such  was prudent, which  in itself cannot be criminal.  Further that the evidence availed shows at page 911 of the bundle of documents filed by the applicants herein together with the application that the expenditure for shs 10 million was utilized for the  launch  of a fund  for the  complainant  yet the Director of Public Prosecutions wants not to  hear of that  and is not even  interested  in looking at the materials before  preferring   the charges.

19. It  was  further  submitted that the complainant   has recovered  all  monies  from the several  entities vide HCC  352/2014 hence  there can be no  theft  by servant as the money  was  recovered by a consent  order  of  23rd  October  2015.

20. Concerning   the  1. 5  billion, it  was  submitted by Mr  Amoko  that the property purchased was retransferred to the  complainant  hence  no action  of theft  by servant  can be  sustained  as the applicants  never stole  nor benefit   from the alleged loss which was no loss or at all  hence it is  unreasonable   to charge the applicants with theft.  Mr Amoko further submitted that powers of the Director of Public Prosecutions have been abused as shown in the filed authorities and that on the facts, there is an arguable case for entitlement to Judicial Review orders.

21. On the issue of stay, Mr Amoko submitted  that there  are 2  aspects in that the Director of Public Prosecutions has been  communicating with the press yet the applicants are in competition with the complainants  who are  hell bent  to tarnish  the  business  reputation  of the applicants, which is  a clear sign  of bad faith.  Further that should the criminal proceedings   proceed as intended, the purpose of this case will be defeated unless stay of prosecution is granted.  Reliance was placed on Republic vs Director of Public Prosecution exparte Senator Muthama case where the court held that stay is intended to preserve the subject matter.  Further reliance was placed on a similar holding made in Exparte Njuguna Ndungu vs Ethic and Anti Corruption Commission.

22. Mr Amoko also submitted that his clients  had disclosed  that there  were  previous Judicial Review  proceedings  which  were  unsuccessful(as shown by page 201 of the bundle of annextures) but  that  Honourable  Odunga J  made it  clear that  the Director of Public Prosecutions had not   made any  decision  to charge the applicants.  That these proceedings are challenging the Director of Public Prosecution’s decision to charge the applicants and that their complaint is that the decision to charge the applicants  was made  when the order  of stay  by Honourable  Odunga  J was still in force  and  which only  lapsed  on 20th January 2017. Counsel prayed for  the orders  sought.

23. In opposition, Mr Ashimosi the Assistant Director of Public Prosecutions submitted wholly replying on his grounds of opposition  which I  have entirely  reproduced  in this ruling  and  maintained that the application herein is Resjudicata JR 435/2014   which  was determined on  14th September  2016 by Hon Odunga J.  That the applicants had  enjoyed  an interim stay of  their arrest   and  prosecution until 20th January  2017 hence the Director of Public Prosecutions could only have  charged  them after  20th January  2017.

24. Further, that it was after the dismissal of JR 435/2014   on 14th September 2016 that the Director of Public Prosecutions made a decision to charge the applicants herein.

25. That after the said  dismissal of JR  435/2014,  the applicants  obtained stay pending appeal which was also dismissed by  Odunga J and  that the learned judge  only granted  a temporary  stay in view  of the vacation.

26. That the criminal proceedings   were mentioned on 21st December 2016   and plea was or is scheduled to be taken on 2nd February 2017 before the magistrate’s court.

27. In addition, it was submitted by Mr Ashimosi that there is an application pending before the Court of Appeal for stay hence this court cannot grant leave and stay over the same proceedings.

28. Further, that the issue of how the money allegedly lost was spent by the applicants was raised before Honourable Odunga J in JR 435/2014 hence this application is an abuse of court process as Odunga J considered   all the issues concerning the settled civil disputes.

29. Mr Ashimosi  submitted that this  application ought to have been filed before  the Court of Appeal  under Rule  5(2)  (b)  of the Court of Appeal  Rules  since this court  is functus  officio.

30. Further, that the applicant  has not  established   a prima facie  case to  warrant  leave  and  stay since the  allegations  against the Director of Public Prosecutions have not been  substantiated  as there is no  breach  of the Constitution, law  or abuse of  power.  Counsel urged the court to strike out or dismiss the application as filed.

31. In a brief rejoinder, Mr Amoko submitted that in the application at (page 125) before Honourable Justice Odunga, the   Director of Public Prosecutions was  not a party  thereto at that  time; as he had not made his decision  to charge  the applicants  with the offence   and that therefore the application is  merited; and that  Resjudicata  does apply  only to private  law and not public law.

32. Counsel   for the applicants maintained that his clients had an arguable   case and that stay is necessary.

DETERMINATION

33. I have  carefully  considered the  applicant’s  application dated   16th January  2017  the grounds, statutory  statement, verifying   affidavit  and the annextures  thereto.  I have also considered the respondent’s grounds of opposition and the respective parties’ oral submissions supported by the authorities   relied   on by Mr Amoko counsel for the applicants as filed on 24th January 2017.

34. The applicant’s application is expressly brought under  the  provisions of Section 11  of Fair Administrative  Action Act, the  Section  8 and 9 of the Law Reform  Act Cap  26 Laws of Kenya and Order  53   Rule, 1 ,2 and   4  of the Civil  Procedure  Rules, 2010.

35. From the material placed before me, the issues for determination are

1) Whether Resjudicata is applicable in these proceedings and therefore whether the court is functus officio JR 435/2014.

2) Whether the application for leave and stay are merited.

3) What orders   should this court make?

36. On whether Resjudicata is applicable in public law matters, Mr Amoko submitted that it does not.  Mr Ashimosi  did not pick up that theory and only submitted that this matter is  Resjudicata JR 435/2014 which was fully determined by Honourable Justice Odunga J.

37. It is important to first dispose of the applicability of the doctrine of Resjudicata to public law matters. In Kenya, the law in Resjudicata is engrained in Section 7 of the Civil Procedure Act, Cap 21 Laws  of Kenya  which stipulates that:

“ No  court shall try any suit or  issue in which the  matter directly and substantially in issue has been directly and substantially in issue  in  a former suit between the same  parties, or  between parties under  whom they  or any  of them claim, litigating  under the same  title, in a  court competent  to try such  subsequent suit or the suit in which such she has been  subsequently  raised and has  been heard and  finally  decided   by such  court.

38. The doctrine  of Resjudicata is founded on public policy and  is  aimed  at achieving   two purposes  namely, that there must  be finality  to litigation and that persons  should  not be bogged  down  with  the same  account of  litigation.

39. A final  decree of a court  or  judgment  or ruling of a court of competent jurisdiction  once becomes  absolute, puts  to rest  and  entombs  in eternal quiescence  every adjudicated  as well as  justiciable issue  between two or  more   parties  to a dispute  (See  J.L. Onguto J in Eliud  Nyauma  Omwoyo  V Kenyatta University  & 3 Others  [2016]  e KLR  citing with   approval  several  decisions  including  KCB Ltd  v Muiri Coffee Estate  Ltd  & Another  [2016]  e KLR, Nicholas  Njeru V Attorney General  & 8 Others [2013] e KLR and  Gordon V Gordon [1952] 59 so 2d 40 & Grown Estate Commissioners V Dorset County Council [1990] 1ALL ER  1923.

40. The learned judge also observed that “24. caution must however always be taken in the application of the doctrine of Resjudicata as it has been the potential locking out even deserved litigants  from the doors  of justice.  In constitutional litigation the caution  must be extra  as there  is the chance  that  a violation  may occur severally. The doctrine  however  applied in constitutional  cases  with equal  measure, the question  as to whether  the doctrine applies  to constitutional  petitions  having been   settled   by the Supreme Court  in the  case of  KCB  Ltd  V Muiri Coffee Estate  Ltd  & Another  [2016]  e KLR, where  the Senior  Counsel  observed:

“ Resjudicata  is a doctrine  of substantive  law, its  essence  being that once the legal rights of parties having been  judicially determined, such edit stands as a conclusive   statement  as to those  rights.  It would appear that the doctrine of Resjudicata is to apply in respect of all categories, including issues of constitutional rights.  Such a perception has a basis  in comparative jurisprudence; in the Ugandan case of  Honourable Norbert  Mao V Attorney  General, Constitutional  Petition  No. 9/2002  [2003] UG CC 3 the  petitioner  brought  an action on behalf  of 21 persons from his  constituency, for  declarations under Article  137  of the Uganda  Constitution,and for  redress  under Article  50 of the Constitution.  The matter arose from an accident   in which officers of Uganda Peoples Defence Forces attacked prison, and abducted 20 prisoners, killing one of them.  Unknown  to the petitioner, another  action had already  been filed  under Article  50,  seeking  similar  relief; and  judgment   had been  given  in Honourable  Ronald  Reagan Okumu V Attorney General Miscellaneous Application  No. 0063  of 2002, HCT 02 CV MA 063  of 2002. The Constitutional court dismissed  the  petition, on  a plea of  Resjudicata declining  the petitioner’s  pleas  that  certain  important  constitution  now  sought, had not been accommodated in  the earlier  judgment.”

41. From the above decisions, it is clear that the doctrine of Resjudicata  is applicable in public law litigation and even if Section 7 of the Civil Procedure Act would be  inapplicable  to proceedings under the Law Reform Act or the Fair Administrative Action Act, it is clear  that  a court  of law  would not  hesitate  to find,  under the same  circumstances  that the doctrine of Resjudicata would be applicable, under its  inherent jurisdiction, that the subsequent application is an  abuse of  court process since a  litigant  cannot  be  allowed  to litigate  under the same  title for  reliefs  claimed in a  previous  proceedings between the same parties and over the same subject matter.

42. In other  words, once  a litigant’s legal  rights  are judicially  determined  and settled  by a court  of competent  jurisdiction, such determination stands  as  conclusive  statement  of those rights.

43. Judicial Review remedy is now a  constitutionally embedded remedy  as espoused  in Articles  22 and  23 of  the Constitution, for enforcement  of fundamental  rights and  freedoms  and with  regard  to the  fair administrative  action right, it is a  right  enshrined  in Article  47 of  the Constitution as implemented  by the Fair  administrative  Action Act  No. 4  of 2015.  It therefore follows  that where a litigant  seeks to relitigate over matters which have been fully determined by a court of competent  jurisdiction, this court would not hesitate to find that subsequent proceedings  are Resjudicata  the earlier  proceedings  and therefore  an abuse  of court process.

44. Lenaola J in Okiya Omtata Okoiti & another V Attorney   General & 6 others [2014] e KLR added his voice to the debate   and observed that:

“Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of Resjudicata can and should only be invoked in constitutional matters  in the clearest  of cases and where a party is re-litigating the same matter before  the constitutional court  and where  the court is  called upon to re- determine  an  issue  between the same parties  and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore, it must be sparingly invoked in rights based litigation and the reason is obvious.”

45. Therefore, the question is whether these proceedings are Resjudicata JR 435/2014. At page 125 of the  applicant’s bundle  of exhibits  is a chamber summons  dated  13th November  2014  by the same  applicants  herein against  the Inspector of Police  and the  Directorate  of Criminal Investigations  Department, seeking for leave  to apply for Judicial Review  orders  to prohibit  them from investigating, arresting, harassing  and  or in any  other manner  interfering  with the liberty  and or property  of the applicants; and leave  be granted to apply for  an order of  mandamus  compelling  the  Inspector General  of the National Police Service and the Directorate of Criminal Investigation  Department to  return  the Cell phones impounded  from the applicants; and that leave  granted  do operate as stay  of the actions  complained  in prayer (1)  of the chamber summons.

46. The Honourable  Odunga J  did grant  leave  as well as  stay and   upon fully  hearing  the  notice of  motion  which  was filed  on 19th November  2014, vide his  judgment  found at pages  137-210 of the bundle, containing  74 pages, the learned  judge  dismissed the  notice of motion in the manner sought but issued a  prohibition  against the respondents  therein prohibiting them from taking any action in the nature of criminal proceedings   until the Director of Public Prosecutions makes  a determination on the matters. The learned Judge also found that the police acted hastily and so he declined to make an order for costs.

47. The  learned judge  was clear that no  decision had been taken  by the Director of Public Prosecutions to prosecute the applicants hence some of the issues raised in the proceedings were speculative.

48. In the present  case, it is  not denied  that the Director of Public Prosecutions has  now  taken an administrative decision  as contemplated  in Section 2 of the  Fair Administrative  Action Act, 2015, to prefer  charges  against the  applicants and  even drawn a charge sheet  which  is due for  plea on  2nd February 2017.

49. It is also not  in dispute  that the Director of Public Prosecutions was never  a party  to the JR  435/2014  and therefore  there is no way  these  proceedings  which seek to quash  the decision  of the Director of Public Prosecutions to prosecute  the applicants  and to stop the Chief Magistrate’s court from proceeding with the impending trial can be  Resjudicata  JR  435/2014. To hold   otherwise  will as correctly stated by  Honourable  Onguto J in the  Eliud  Nyauma case and  Lenaola J in the Okiya  Omtata  case, be  stretching  the doctrine   of Resjudicata too far and especially in rights-based  litigation in a matter  which is not  that clear.

50. As at the time of JR 435/2014,the Director of Public Prosecutions had  not made  any decision  to prosecute  the applicants  and it is  for  that reason  that Honourable  Odunga  J  made it  crystal clear that  it  was  speculative  as to what  would be  the next   cause   of action  after  the Inspector General and  Director of Criminal Investigations have investigated the alleged  commission of the  offences.

51. The  powers of the Director of Public Prosecution which are  being challenged  are quite  distinct  from those  of the Inspector General and  Director of Criminal Investigations pursuant  to Article  157 of the Constitution and  Section 24  of the National  Police  Service  Act respectively.

52. Accordingly, I find that the plea of Resjudicata is not well taken in this matter and I disallow it.

53. On whether  the application  for leave  to institute  Judicial Review  proceedings  and  for  stay is  warranted in the instant proceedings, it is important to  appreciate  the  purpose for  leave  and stay in Judicial Review  matters. In Republic vs county Council of Kwale  & Another  Exparte  Kondo  & 57 others Mombasa  HC MCA No. 384/1996,Waki J (as he then was) made it clear  that:

“ the purpose for  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 is 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 complainants  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.

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 parties  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.”

54. The yardstick for the grant of leave was set by the Court of Appeal in Mirugi Kariuki Vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:

“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”

55. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Like the Biblical mustard seed which a man took and sowed in his field and which the smallest of all seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air came and sheltered in its branches, judicial review stemmed from the doctrine of ultra vires and the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. One can safely state that the growth of judicial review can only be compared to the never-ending categories of negligence after the celebrated case of Donoghue vs. Stephensonin the last century. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

56. From the above decisions, it is clear that grant of leave to commence Judicial Review proceeding is not a mere formality nor a practice of magic.  Leave is not to be granted   as a matter of course.  It is upon the applicant to demonstrate to the court that he or she has a prima facie case which is available for grant of leave.

57. However, the applicant is not expected to delve into the depths of the merits of the case but he must show that the proceedings are not statute barred and that he should be granted an opportunity to be heard at the substantive stage.

58. In the instant  case, it is  conceded that the decision  to charge the  applicants  with criminal offences  of stealing  by servant   was made after 14th September 2016, the date when the applicants  lost their  bid to  prohibit   the Inspector General  and  Director of Criminal Investigation from investigating, arresting  or harassing  them until the Director of Public Prosecutions makes  a decision to  charge them as per the  judgment  of Odunga J.  The applicants then filed notice of appeal to challenge   that decision of Odunga J, and which appeal is yet to be considered.  In the ensuing period, the applicants had a temporary reprieve and it was within that stay period  that the  Director of Public Prosecutions made  a  determination  to prefer  criminal charges  against the  applicants  as  contained  in the annexed  charge sheet.

59. According to the applicants, there is abuse of power from the conduct   of the respondents and that the charges are intended to eliminate them as potential business competitors of the complainants.

60. Further, that there is no foundation or reasonable basis for  charging  them and  prosecuting  them for  stealing by servant  when all the  allegedly stolen money  was recovered  vide civil  suits  and consents recorded  and that neither were the applicants  found to have benefited from the alleged  loss hence the criminal  prosecution  is  laced with malice and  ulterior  motive.

61. As earlier indicated, this court cannot be tempted to delve into the merits of the matter on the authorities cited. However, I find that on the material placed before the court, allegations of unreasonableness, abuse of power and ulterior motive, this court  finds that  those are  issues  which are  arguable  and  therefore   the applicants  ought to be  granted an opportunity  to ventilate  their grievances fully before this court for, that is their inalienable  right to accessing  justice, as the application, on the face of  it  is not frivolous.

62. The court will also determine whether the applicants are seeking to interfere with the constitutional mandate of the respondent and hence the need to venture into that issue based on the materials place before the court; at the substantive stage.

63. It is for that reason that I would exercise my unfettered  discretion  and  grant   the applicants  leave to  institute  Judicial Review  proceedings as sought  in the chamber summons   dated  16th January  2017.  The substantive motion shall be filed and served within 7 days from the date hereof, not only upon the respondents but also upon the complainants in the criminal case.

64. On whether the leave granted  shall  operate  as stay of the  decision  and  proceedings filed  before the Chief  Magistrate’s court Nairobi  in criminal case  No. 1735 of 2016, I note that the decision to charge  the applicants  has already been reached  by the Director of Public Prosecutions hence until  it is quashed  vide substantive  proceedings, the DPP cannot be prohibited.

65. However, the decision as to whether or not to grant   a stay is an exercise of judicial discretion which discretion must be exercised judiciously.  The circumstances  under which stay  can be  made in Judicial  Review  proceedings  until hearing  and determination of the those proceedings  or until the court orders   otherwise were well  set out  in the case of Taib A. Taib  Vs The  Minister for Local  Government  & Others  Mombasa   HC Miscellaneous Application No. 158/2006 where by Maraga  J ( as he then  was)

66. expressed himself as follows:

“As injunctions are not available against the Government and public officers, stay is a very important aspect of the judicial review jurisdiction… In judicial review applications the Court should always ensure that the ex parte applicant’s application is not rendered nugatory by the acts of the Respondent during the pendency of the application and therefore where the order is efficacious the Court should not hesitate to grant it though it must never be forgotten that the stay orders are discretionary and their scope and purpose is limited… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is however not appropriate to compel a public body to act… A stay order framed in such a way as to compel the Respondents to reinstate the applicant before hearing the Respondent cannot be granted.”

67. In the instant case, it is clear that the applicants are due to take plea in the Chief Magistrate’s Court at Nairobi on 2nd February 2017.  The question is whether the application herein shall be rendered nugatory if stay   is not granted and the applicants at the end of the day, are successful litigants.

68. Stay is  intended  to preserve  the  status quo so that should these  proceedings  be successful, the applicants   should not be  found to  have been  merely  pious  explorers in the judicial  process.  That should never be the intention of any court of law.  Although  the burden of proving the  success  of the application to be filed  lies  on the applicants, in  my humble   view, if the prosecution  of the applicants  proceeds  as scheduled, and  their motion  is successful, then the  leave  herein granted  shall serve   no useful  purpose.

69. Court orders are never made in vain.  It is  for that reason that  I would allow   the prayer 4  of the chamber summons  that leave  hereby granted do operate   as stay  of the impugned  criminal proceedings  vide criminal  case No.1735  of 2016 before  the Chief Magistrate’s court at  Nairobi until the motion is  heard and determined, which hearing shall be fast tracked  and  determined  with expedition.

70. And in order to  ensure that the court retains   the supervision  of the process of hearing  and  determination  of these proceedings, I order that the respondents  shall file   and  serve the applicant’s  counsel with  replying affidavit  to the main motion   once filed  and  served, within 7 days  of the  date of service.

71. This matter shall be mentioned on 15th February 2017 for directions on the hearing. Each party to bear their own costs of these proceedings.

Dated, signed and delivered   at Nairobi this 1st day of February 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Amoko for the exparte applicants

Mr Ashimosi for the 1st respondents

CA: Gitonga