Osman Erdinc Elsek v Inspector General of National Police Service, Director of Public Prosecutions, Chief Magistrate Mombasa Law Courts & Attorney General [2016] KEHC 2875 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

JUDICIAL REVIEW NO. 61 OF 2016

OSMAN ERDINC ELSEK -------------------------------- APPLICANT

VERSUS

INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE

DIRECTOR OF PUBLIC PROSECUTIONS

CHIEF MAGISTRATE MOMBASA LAW COURTS

ATTORNEY GENERAL ------------------------------RESPONDENTS

R U L I N G

1.     On the 19/8/2016 when this matter came before the court the   court made orders as follows:-

“Matter stood over to 31/8/2016 for mention to confirm filing of notice of motion and for further directions.”

2.    Pursuant to those orders it is apparent that the exparte applicant  filed the Notice of Motion dated 24th August 2016 seeking orders   of Judicial Review.

3. Today when the matter was called out as order by the court, Mr. Miyare for the exparte applicant brought to the attention of the court the fact that in the intervening period between 19/8/2016 and today, there have occurred developments in that the prosecution went before the trial court and applied to amend  the charge sheet by introducing count No. 2 which has direct   relation to the exparte applicants' prayer 3 in the application seeking leave to apply for judicial review.  He   contended that   development points to unfair criminal prosecution and that it portends the litigation before the court being rendered nugatory in that the ruling on whether that amendment ought   to be allowed is due for the 2/9/2015.  He thus sought for stay of further proceedings in terms of prayer c in the exparte     Chamber Summons.

4. On his part Mr. Makuto who appeared for the Respondents opposed the application and grant of orders of stay while contending that the court having considered the exparte chamber summons and made determination, that application is spent and the court is functus officio on it.  He further pointed  out that the hearing of the criminal case before the lower court is slated for the 14th and 15th November 2016 and that what the court needs to do is to fast tract this application rather than  injuncting the criminal process before the trial court.  He   proposed that the respondents be given a limited time within  which to respond to the application so that it could be dealt with and determined prior to the date set for hearing of the criminal   case.

5.    The parties in effect are asking the court to deliver itself and determine whether or not to order that the leave granted by Njoki Mwangi Judge, on the 12/8/2016 should operate as stay of the further  proceedings before the magistrate at Shanzu.

I have perused the record of the court and proceedings before  Judge Njoki Mwangi  on 12/8/2016 and it is apparent to me   that   the court made the following orders:-

i) Application dated 11/8/2016 is certified asurgent.

ii) Leave is granted to the exparte applicant toapply for order of judicial review in the nature of certiorari, prohibition and mandamus.

iii) The substantive application Notice of Motionto be filed and served within 21 days.

iv)  Upon filing a date be taken at the registry.

v)   Costs in the cause.

6.     To this court the prayer for stay was not granted nor was its  consideration reserved for another date. It therefore follows by dint of Section 7, explanation(5) of the Civil Procedure Act thats   that prayer was not granted but deemed refused. Section 7  explanation 5 provides;

“Any relief claimed in a suit, which is not expressly granted  by the decree shall for the purposes of this section be   deemed to have been refused.”

7.  To this court therefore Judge Njoki Mwangi in failing to  expressly  order that the leave granted to operate as stay of further proceeding did refuse that prayer.  It is therefore spent or  rather dealt with and not available to be revisited unless as may   be permissible under the law.  No provision has been cited to me   to merit me revising that prayer and I see no reason that would  judiciously merit a revisit.

Equally on the 19/8/16 when the matter was placed before the   court for the purposes of taking a hearing date for the notice of   motion; it turned out that due to the bereavement on Mr. Miyare, the notice of motion had not been filed and time was    thus sought to enable filing.

8.    The court, without setting time-lines, granted the adjournment and stood over this matter to today to confirm filing of the    motion and for further direction.  It seems to this court that the   exparte applicant has interpreted the expression 'further directions' to open a window for reurging the prayer for stay.  To this court and on the basis of what I have said over the status   of that prayer, the expression 'further direction' must been seen in the light of the purposes for which the matter was in court  when the order was made.  It was the purposes of taking a date  for the notice of motion, if filed and not to consider a prayer in   the application which had been dealt with.

9.   In the circumstances I am in no doubt that the plea by Mr.  Miyare for stay of further proceedings before the trial court has not been properly taken and thus cannot be granted.  In his  submissions Mr. Miyare has stressed the point that if stay is not granted his clients matter in this file will be rendered nugatory in that proceedings have taken place and will take place  between now and the hearing date in November 2016.

10    Without seeking to delve so much on the merits of the matter pending before this court I take the view that the trial will only commence as set by the trial court in November.  The only other    proceedings that can be reasonably anticipated from the   submissions by the parties is the delivery of the ruling on 2/9/2016. That ruling will merely determine whether or not   the charge sheet should be amended as purported and maybe   ask the accused/exparte applicant, to plead to the amended   charge.  That in the view of this court is a preliminary stage in setting the stage for trial and will not have determined any   rights of the accused. All the rights the accused seek protects, in    the opinion of the court, will be decided at trial, if that time comes.

11.    In the circumstances therefore I agree with Mr. Makuto's   proposal that this matter be fast-tracked so that if  circumstances of all allow, it is determined before the date set for hearing. I agree with the proposal fully taking into account that the exparte applicant approached this court citing urgency and the court has certified the matter urgent.

I therefore make the following orders:-

i. The prayer for stay was declined by the court on 12/8/2016.  It cannot be revived in the manner sought by Mr. Miyare.

ii. This matter needs to be fast tracked so that the exparte applicant knows his fate whether or not he shall stand trial before the trial court.  I order that it shall be heard on the 21/9/2016.

12.   To enable that hearing to take place, the Respondents are ordered to file and serve the responses as well as submissions within 10 days from today.  Upon service the exparte applicant shall equally file and serve submissions within 10 days from the date of service.  Time shall be of essence.

Dated and delivered this 31st day of August 2016.

P.J.O. OTIENO

JUDGE

In presence of Mr. Miyare for the exparte applicant, Ms Mutua for the 1st and 2nd Respondents and Mr Makuto for the 3rd and 4th Respondents

P.J.O. OTIENO

JUDGE

Mr. Miyare:  I apply for leave to appeal against the ruling of the court. I also pray that having filed the substantive motion I get leave to amend the substantive Notice of Motion.

Ms Mutua:  No objection to the prayers.

Mr. Makuto:  I equally have no objection to the two prayers by Mr. Miyare.

COURT – Leave is granted to the exparte applicant to appeal against the ruling made today.  Leave is also granted to the exparte applicant to amend the Notice of Motion on or before 6/9/2016.

P.J.O. OTIENO

JUDGE