Pravin Galot v Chief Magistrates Court at Milimani Law Courts [2017] KEHC 2105 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  622 OF 2017

IN  THE MATTER  OF AN APPLICATION   BY PRAVIN  GALOT  FOR GRANT  OF LEAVE  TO APPLY FOR JUDICIAL  REVIEW  AND  ORDERS  OF CERTIORARI AND  PROHIBITION

AND

IN THE MATTER  OF THE CHIEF  MAGISTRATES COURT , PRIVATE PROSECUTION   NO. 2  OF  2017

BETWEEN

PRAVIN  GALOT……………………..……..............…………......…APPLICANT

VERSUS

THE CHIEF MAGISTRATES COURT  AT

MILIMANI  LAW COURTS..…..…………....…………….......…RESPONDENT

THE DIRECTOR OF PUBLIC

PROSECUTIONS..…….…………………...………..1ST INTERESTED PARTY

MOHAN GOLAT……...………………………...…....2ND  INTERESTED PARTY

RAJECH GOLAT ….………………..………...……...3RD INTERESTED PARTY

RULING ON LEAVE AND STAY

1. The exparte applicant in this case is Mr Pravin Galot a male adult of sound mind. By his  chamber summons  dated  9th October  2017, he seeks  from this court  leave to commence  Judicial Review  proceedings seeking orders  of:

a) Certiorari to move into this court and quash all the proceedings, decisions and or ruling made in the Chief Magistrate’s Court at Milimani Law Courts in Private Prosecution  case No. 2 of  2017.

b) Prohibition restraining the respondent and the 2nd interested  party from  proceeding  with the prosecution  of the exparte  applicants  in private prosecution  case No. 2/2017  at the  Chief Magistrate’s Court at Milimani Law Courts  pending the  hearing  and  determination  of HCC No. 430 of  2012.

c) That the leave granted do operate as stay of  any further  hearing of private prosecution Case  No. 2/2017  pending the hearing  and  determination of the  substantive motion.

d) Costs of the application be provided for.

2. The chamber summons  is predicated  on the statutory  statement  and  verifying  affidavit  of the  exparte  applicant  Pravin Galot   and  supported by  a bundle of   annextures  hereto.

3. The  exparte applicant’s case as contained  in the statutory statement  and  verifying  affidavit  and  as submitted  by his counsel Mr Were  advocate  is that the  2nd interested  party did, vide private prosecution case No. 2 of 2017 file an application for leave to  institute  private prosecution proceedings against the applicant  upon which the applicant filed a preliminary objection  thereto contending  that the proceedings  before the Chief  Magistrate’s  court  were  without  jurisdiction  and  that they   were in violation of the orders of  Musinga J( as  he then was) in HCC 430 of 2012 wherein the learned  judge  prohibited  the  parties herein who  are parties to that case  from filing  any other  suit or  application until the  hearing and  determination of that suit, except  with  leave of court.

4. On the part of the 2nd interested party opposing these proceedings, he filed a replying affidavit and a preliminary objection on 31st October, 2017 contending among others, that this matter is Resjudicata JR 651 of 2016 between the same parties wherein Hon Justice Odunga J determined the matter in favour of the 2nd interested party herein. Further, that this court has no jurisdiction to hear and determine the application herein and that the application is an abuse of the court process.

5. It was contended that the decision of Odunga J made on 12th July, 2017 dismissing the exparte applicant’s application which sought to prohibit private prosecution proceedings was never appealed against and that as this matter raises similar issues as those in the JR 651 of 2016, this matter is Resjudicata.

6. In addition, it was contended that Hon Odunga J made it clear that the 2nd interested party could commence private prosecutions against the exparte applicant herein denovo.

7. It was further contended that the Magistrates court whose proceedings and decision granting leave to commence private prosecution proceedings against the exparte applicant were never appealed from and neither did the applicant herein seek revision of that ruling made on 4th October, 2017 as stipulated in the Criminal Procedure Code.

8. It was further contended that this judicial review court cannot sit as an appellate court over the decision of Odunga J and the chief Magistrate’s decision and that the remedy for the applicant lies elsewhere.

9. The 2nd interested party urged the court to dismiss the exparte applicant’s application for leave and stay.

10. The respondent Chief Magistrate’s Court at Milimani Law Courts did not make any appearance despite service of the application.

11. The 3rd interested party who was joined to these proceedings later appeared and filed a replying affidavit wholly supporting the exparte applicant’s application and urging this court to allow the application as prayed.

12. The parties’ advocates urged the application orally, as discussed below.

13. In opposing the chamber summons for leave and stay, Mr Oonge counsel for the 2nd interested party argued that  jurisdiction is everything, without which  a court of law  must down  its tools  and   do no more.

14. And whereas  the  2nd interested  party’s counsel submitted orally that he had no  objection to this court  granting  leave to  the exparte applicant to apply, counsel nonetheless maintained that  the  matters  subject of this  application  were the same matters which were considered by Honourable Odunga J in JR 651 of  2016  between the  same parties.  Accordingly, it was contended that this matter  is resjudicata  JR  651  of  2016.

15. The reason for  asserting  so is  that in JR  651/2016 Honourable Odunga  J made it  clear that  the  prosecution   against the exparte applicant could commence  denovo.  In other   words, that  if the  2nd  interested  party herein and another, wished to  prosecute  the exparte  applicant, he could  do so  denovo.  The learned judge also held that  in such a case, the Director of Public Prosecution should be made a party to those proceedings.

16. It was therefore contended that the learned judge having determined the issue of  whether  or not the  exparte applicant could be prosecuted, the applicant cannot challenge that  decision through  these Judicial  Review proceedings  as to do so would be  tantamount to sitting on the appeal of  the decision of Hon Odunga J.

17. It was further submitted by the  2nd interested party  that in any case, the decision  which is being   challenged  was an  order  made by  the Chief  Magistrate’s  Court  in private prosecution case No.  2/2017  dismissing  a preliminary objection  raised by  the exparte  applicant  herein who had claimed that the proceedings  before the Chief Magistrate’s court were made without   jurisdiction because  Honourable   Musinga  J in  HCC  430 of 2012   had made  it clear that there should be no filing of  any other suit or  application except  with leave  of the Court” which  order  was  made on  10th July  2012  and  extended  on  8th October  2012   and that it was  to  remain  inforce until  that suit  between  these   same parties  is  heard and  determined.

18. Accordingly, it  was argued  that the  exparte  applicant herein   should have filed for revision of that order of the Chief Magistrate  rejecting  the  preliminary  objection  raised by  the  exparte applicant, or that  in the alternative,  he  should  have challenged  the order  by way  of an appeal  and  not by  way of Judicial Review. It was contended that the Criminal Procedure Code has safeguards/ procedures for challenging orders made in a private prosecution proceedings.

19. It  was also contended that Honourable Mumbi J in Petition No. 539/2012 had dismissed  the application where exparte applicant had challenged  his private prosecution by the 2nd interested party herein.

20. On  the part of the  exparte applicant  and  the  3rd interested  party and the 1st interested party Director of Public Prosecutions  who are not opposed to the  application, but  who opposed the  preliminary  objection, it was  contended  that  the order of Honourable Justice  Odunga J  did not  authorize  the filing  of fresh  proceedings  in contravention or violation of the orders  of Musinga  J in HCC 430/2012, which  latter orders expressly barred  parties to that dispute, who  are also parties  to this dispute, from filing  any other  suit  or application  until HCC 430/12  was heard and  determined.

21. It  was  submitted that  as the orders  in HCC 430/12  are still in force, the  2nd interested  party herein  or any party to those proceedings could not  file any  other proceedings  as that would  be  contemptuous of court  orders  made by a court of competent  jurisdiction.

22. In a rejoinder  Mr Were  counsel  for the exparte  applicant  also  maintained that they could not appeal against the order dismissing their preliminary objection by the Chief  Magistrate’s   Court because  they did  not admit  jurisdiction of the Chief Magistrate’s  Court  and that it is  this court  that has jurisdiction  to check on the  usurpation  of jurisdiction by the subordinate  court  especially where  the  subordinate  court decides  to  ignore  orders of the High Court  barring  any proceedings, by purporting  to continue  with private  prosecution of the  exparte  applicant.

23.  It  was submitted that the threshold for a preliminary objection  had not  been met  by the  2nd  interested party and that the exparte applicant had demonstrated that he has a prima facie arguable case.

24. The 3rd  interested  party  who is s also a  respondent  in the  proceedings  before the  subordinate  court added  his voice  to the matter, while supporting  the  exparte  applicant’s  case and  contended  in submission by his counsel Mr Kenyatta that  Resjudicata  does not  arise or  at all because the  orders in HCC 430/2012  are binding  on all the parties  who were  parties to that suit  and  who were barred  from  filing any other proceedings until that  suit is heard and  determined.  Further, that as no leave of the High Court  was sought  to file  the  private  prosecution  proceedings, in compliance with that order, the  subordinate  court had  flouted  and  or violated  the  order of the  High Court in HCC 430 of 2012 by entertaining the private prosecution proceedings.

25. Mr Kenyatta maintained  that the issue of  leave to file the  private  prosecutions matter was  never canvassed  in JR  651/2016   before  Honourable  Odunga J  and  that  Honourable  Odunga  J quashed  the  decision on account that  the applicants  therein were not accorded  an opportunity to be heard in the matter  of  the private prosecution.

26. It was further maintained that all new proceedings filed  challenge the directorship of the companies  which  Musinga J in HCC  430/2012  forbade  hence  this court  has jurisdiction to determine the issues  raised herein and  to stop the  lower court from  continuing  with hearing  the private prosecution until the  substantive motion if filed  is heard  and  determined , because  the said motion if  successful shall be  rendered nugatory as the prosecution  will have  been conducted  fully.

DETERMINATION

27. I have considered all the foregoing in my humble view, the main issues in this matter for determination are:

1) Whether this court has jurisdiction to entertain these proceedings.

2) Whether the court should grant  leave to  apply for  Judicial Review  and if  so, whether  such grant  of leave  should  operate as stay of proceedings pending before the  subordinate  court.

3) What orders should this court make.

4) Who should  bear costs of  these proceedings.

28. On whether the court  has  jurisdiction to hear and  determine these proceedings, the court notes that  the  respondent  and   1st and 3rd interested  parties  did not  oppose  the application for  leave  to apply  and therefore  the only  contentious  issue  as far as these parties, other than the 2nd interested party are concerned, is whether  the  court should stay the proceedings pending before the subordinate court, which proceedings relate to private  prosecution  of the exparte applicant  herein.

29. However, as the 2nd interested party raised the issue of jurisdiction as a preliminary issue, this court must first determine that issue before delving into whether or not leave and stay are available to the exparte applicant.

30. In addition, as the power to grant leave is a discretionary one, and as the 2nd interested party has dwelt on the issue of jurisdiction of this court which then negates the concession that leave can be granted but not to operate as stay, and as jurisdiction cannot be conferred by consent, I must determine that jurisdictional question.

31. I have examined the issues raised in the preliminary objection. In deciding whether to uphold the preliminary objections the court is guided by the land mark decision of Mukisa Biscuits Manufacturing Ltd Vs. West End Distributors Ltd (1969) E.A 696 where the court held that preliminary objection consists of point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary objection may dispose of the suit. The court further held that a preliminary objection would normally be argued on the assumption that all facts pleaded by the other side are correct and cannot be raised if any facts have to be ascertained or if what is sought is judicial discretion.

32. Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiorithe Court can suo moturaise it. It is desirable that Preliminary Objection be raised early on the issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. See (Belgore J.S.C. See Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd, (1992) 5 NWLR (Pt. 244) 675 at 693 8).

33. The locus classicusdecision in Kenya on jurisdiction is the celebrated case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd{1989} KLR 1where Justice Nyarangi  JJA (as he then was) held:

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

34. John Beecroftin a Treatise headed “Words and Phrases Legally Defined” 14 Volume 3:1-N, at Page 113  states the following about jurisdiction:-

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and maters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the fact exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”

35. A Court’s jurisdiction flows from either the Constitution or statute or both or and by principles laid out in judicial precedent.

36. Chief Justice Marshall of the U.S.A, in Cohens vs. Virginia 17 19 U.S. 264 (1821)stated that:

“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty.”

37. The 2nd interested party has argued the issue of jurisdiction from many angles focusing on the doctrine of Resjudicata and that this court cannot quash the proceedings and orders of the Chief Magistrate’s Court which dismissed a preliminary objection, which ruling was never appealed against or reviewed. On the other hand, the Director of Public Prosecution and the 3rd interested party concede to the application  as a whole, and support  the exparte  applicant’s version.

38. From the serious submissions placed before this court by both sides,  I find that there are  seriously contested  matters  as to whether or not these proceeding  are Resjudicata any other proceedings or whether the exparte applicant should have appealed against the ruling of the Chief Magistrate’s court wherein  he granted leave to apply for commencement of private prosecutions of the exparte applicant by the 2nd interested party herein.

39. For Resjudicata to be determined as a preliminary issue, the facts must be very clear and the parties and the court need not probe into the facts of the earlier cases in depth- touching on the merits of the suits/proceedings.

40. In this case, it is indeed arguable as to whether this matter is Resjudicata HC 651 of 2016 or whether this court can exercise jurisdiction over the Chief Magistrate’s Court proceedings.

41. This court’s jurisdiction over the subordinate Courts and Tribunals is espoused in Article 165(6) & (7) of the Constitution. That jurisdiction is supervisory jurisdiction.

42. But as to whether this matter is Resjudicata HCC 651 of 2016 is debatable in view of the emerging allegations that the High Court in HCC 430 of 2012 had prohibited the parties disputing therein from filing any other suit or application touching on the subject matter of the dispute until that suit was heard and determined or with leave of court.

43. In view of the above, therefore, I find that the preliminary objection to jurisdiction is not merited. I decline to uphold it and dismiss it.

THEREFORE, SHOULD LEAVE TO APPLY BE GRANTED?

44. Having found and overruled the preliminary objection to these proceedings, the next question is whether the court should grant to the exparte applicant leave to institute judicial review proceedings.

45. The rationale for the requirement that leave be sought and obtained is to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the Court or those applications which are statute barred. However, 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.

46. Leave stage is thus a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralyzed for months because of pending court action which might turn out to be unmeritorious. See Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993, Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321, Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.

47. As was held byWaki, J (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996:

“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, 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. 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… 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 court’s discretion but as always it has to be exercised judicially.”

48. The yardstick for the grant of leave was however 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.”

49. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Television Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal was of the view 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.

50. 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.”

51.  What emerges from the foregoing is that the grant of leave to commence judicial review proceeding is neither a mere formality nor a practice of magic. It is not to be granted as a matter of course. Delay is one of the factors which a Court often considers in deciding whether or not to grant leave. The applicant for leave is under an obligation to show to the court that he or she has a prima facie arguable case for grant of leave. Therefore whereas he is not required at that stage to go into the depth of the application, he has to show that he has not come to court after an inordinate delay and that the application is not frivolous, malicious and futile.

52. At this  stage the court  is  therefore only concerned with whether  the applicant   has demonstrated that he  has a prima  facie  arguable  case for  consideration  at the substantive  stage  and  therefore  whether he  should be accorded  an opportunity  to ventilate  his grievances.

53. As a fundamental right and portion of the rule of law, the right to access justice demands that all state organs and other justice sector institutions should be open to all persons who allege that their rights have been violated, or who are in search of a form of justice. The right entails the ability of aggrieved subjects to access such fora and services devoid of undue roadblocks, which tend to defeat the ends of justice. The right is also inseparably interlinked with the availability of meaningful and reasonable remedy and equal treatment.[1]

54. Although the  2nd  interested  party and the  3rd interested party have  raised  very serious  issues of jurisdiction of this court  and  the court  below  whose proceedings  are impugned herein, the issues  raised  are hotly  contested by either side with each party  relying on the proceedings  of the superior court  in different  cases  and therefore  what I gather  is that  each party  has an arguable   point  which this  court will  have  an opportunity  to determine  indepth  at the substantive  stage, with all the relevant material and detailed arguments  placed before it. Delving into the substantive matters at this stage will no doubt prejudice the outcome of the intended proceedings and embarrass the judicial process.

55. Matters  which are raised  as preliminary  objections but  which  are  argumentative and contentious  as  was in this case, though  raising  issues  of jurisdiction on the basis of Resjudicata which is not clear from the pleadings and affidavits and submissions, and  where there is no express ouster of jurisdiction of the court by statute or by the Constitution  are   matters which cannot   be disposed  of at this stage  as the issues  which   were raised  were conclusions  of law  and  inferences  construed by  parties from the proceedings  of the  superior  court and of the subordinate court.

56. Furthermore, the exparte applicant is challenging jurisdiction of the subordinate court to hear and determine the private prosecution case which in itself raises a prima facie arguable case for consideration by this court.

57. For instance, on whether  the applicant  should have appealed  or sought  to review the  decision of the subordinate court which is also impugned   in these  proceedings  is an  arguable  issue since the  applicant  is claiming  that the subordinate  court had  in the first place,  no  jurisdiction  to hear the application for  leave to institute  private  prosecution as do so was in violation of the orders of  Musinga J in  HCC  430/2012  which  were to the effect  that  no party  should file any suit  or application  without  leave of the High Court.

58. In my humble  view, therefore, bearing in mind all  the above, I am satisfied  that the applicant  has established an arguable   prima facie   case for  indepth  inquiry  into the issues  raised by  both parties.

59. It is for  that reason  that I find that the threshold  for leave has been met and  therefore I have no hesitation in granting  leave  to the exparte  applicant  to institute  Judicial Review proceedings  as sought  in the chamber summons  dated  9th October  2017.

60. The substantive notice of motion to be filed and served with 10 days from the date  hereof, together with skeletal submissions.  The respondent  and  interested  parties  to file  and serve  their  responses within  10 days  from date of service  together with skeletal submissions.  The matter shall be  mentioned on 29TH November, 2017 to confirm compliance and for further  directions  on the  mode of hearing.

SHOULD THIS COURT GRANT STAY?

61. The decision whether or not to grant a stay pursuant to leave is no doubt an exercise of judicial discretion and that discretion like any other judicial discretion must be exercised judicially. The circumstances under which the Court may grant an order that the grant of leave do operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise  is now settled. Where the decision sought to be quashed has been implemented leave ought not to operate as a stay, as was held in George Philip M Wekulo vs. The Law Society of Kenya & Another Kakamega HCMISCA No. 29 of 2005.

62. In Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 Maraga, J (as he then was) 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.”

63. The  2nd interested  party vehemently  opposed that prayer for stay contending  that as  the court  herein  has no jurisdiction  to hear  and  determine the  matter, it  will prejudice  the  2nd  interested  party if stay  of private prosecution proceedings  is granted.

64. Having  considered  the arguments  of the  participating  parties  to these  proceedings, in line  with the provisions of Order  53  Rule (1) (4)  of the Civil Procedure  Rules  on stay, I note  that there is no real or imagined prejudice which  will be  occasioned to the 2nd interested party if the private  prosecution  proceedings  are  stayed to await  the  outcome  of these proceedings  which can be fast tracked  as the applicant and the  rest of the parties have demonstrated that they are eager to have this  matter which was filed under extreme urgency heard and  determined expeditiously.

65. The power to grant stay is  a discretionary  one and  may be issued in deserving cases  in the exercise  of the court’s  inherent jurisdiction, having regard to the prevailing  circumstances  (See R vs DPP& Another exparte Patrick Onyango Ogola [2016] e KLR.

66. Order 53 Rule (1) (4) permits  this court to  allow  stay of the implementation of the impugned  decision or proceedings which are impugned until the substantive  notice of motion is heard and  determined or until  further orders  of the  court. Where the  applicant  in the application for leave seeks for certiorari  or prohibition, like in the instant case.

67. This court is ready, able  and willing  to expedite the hearing and determination of these proceedings once commenced and once the directions as given are adhered to.

68. The  subject matter  to be  preserved  at this stage  is the  private prosecution  proceedings pending   before the subordinate  court, which proceedings, in my humble view, and  as  submitted by the  exparte  applicant, if allowed to continue, will, at the end  of it all be a waste of judicial time and  resources  not only on the part of the  court but also on the parties if at  the end of  the  whole trial, this court finds   that the proceedings  ought  not to  have been  commenced  in the first instance.

69. Therefore, albeit  stay is not a matter of course, I am  satisfied  in these proceedings   that  unless  stay is granted, the exparte  applicant, if   successful , would be  rendered  a pious  explorer  in the judicial process. See Republic vs  Anti Counterfeit  Agency  &  2 Others Exparte FRM(EA) Packers Ltd  & Another [2017]  e KLR; in R.H. Ashfoth  Hospital Authority [2003] WLR  127  at 138, Lord  Dyson LY started inter alia that:

“ the  purpose of  stay in judicial  Review proceedings  is to suspend  the proceedings that are under challenge  pending  determination  of the challenge.  It preserves the status quo. This will and the judicial process and make it more effective.  It  will ensure that  so far as  possible if a party is  ultimately  successful in his challenge, he will not  be denied the full benefit of  his success…….The  administrative  court routinely  grants  stay to  prevent  the implementation of  a decision that  has been  made  but not yet carried  out in effect or fully  carried into effect.”

70. The applicant approached this court expeditiously.  He has been vigilant.  It follows that  a little waiting  to enable  the parties ventilate  their  grievances  in this forum cannot be  said to be  abuse of court  process or prejudicial to the 2nd interested party as no such prejudice has been demonstrated by affidavit evidence.

71. As was held  in the Anti Counterfeit Agency Case( supra)  citing Econet  Wireless  Ltd vs  Econet Wireless Nigeria  Ltd & Another [FHD/KD/CS/39/208 that:

“…….parties who have  invited  the  court to  adjudicate on a matter  which they  are disputing  over ought  not to create  a situation  whereby  the decision  to be made by  the  court would be of no use.”

72. In this case, I find that the need to good administration  requires  that I grant  stay so as not to foist  upon the  court a situation of complete  hopelessness  or render  nugatory  the  judgment  or  order of the  court because courts  of law ought not to  act in vain.

73. Accordingly, I hereby  order that  the leave  herein  granted  shall operate  as a stay  of any  further  proceedings  or hearing   of  private  prosecution  case No. 2  of  2017  pending  before Chief Magistrate’s  Court  at  Milimani Law Courts, until further  orders  of this  court.

74. Costs shall be in the cause.

Dated, signed and delivered in open court at Nairobi this 3rd day of November 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Were advocate for the exparte applicant

Miss Spira for the 1st interested party

N/A for the Respondent

Mr Wandungi  and MR Oonge for the 2nd interested party

Mr Kenyatta for the 3rd interested party

Court Assistant: George

[1] Article 159 (2) (d) of the Constitution.