Republic v Chief Magistrate’s Court at Milimani Law Courts, Director of Public Prosecution, Mohan Galot Ex-Parte Pravin Galot & Rajesh Galot [2017] KEHC 8982 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COURTS

MISCELLANEOUS CIVIL APPLICATION NO. 651 OF 2016

REPUBLIC……………………………………………………….. APPLICANT

VERSUS

THE CHIEF MAGISTRATE’S COURT AT MILIMANI

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

DIRECTOR OF PUBLIC

PROSECUTION………….……....………..…….. 1ST INTERESTED PARTY

MOHAN GALOT…..…………….….....………….2ND INTERESTED PARTY

EX-PARTE APPLICANTS:-

PRAVIN GALOT......…..…...................…..………….………1ST APPLICANT

RAJESH GALOT………………...........…………………... 2ND APPLICANT

JUDGEMENT

Introduction

1. The ex parte applicants herein, Pravin Galot and Rajesh Galot, moved this Court by way of a Notice of Motion dated 23rd December, 2017, seeking:

1. THAT this Court do issue an Order of Certiorari to move into this Honourable Court and Quash all the proceedings and decisions made in the Nairobi Chief Magistrate’s Court at Milimani Law Courts in Private Prosecution Case Number 1 of 2013.

2. THAT this Court do issue an Order of Prohibition restraining Respondent and 2nd Interested Party from proceeding with the Prosecution of the ex-parte applicants in private prosecution case Number 1 of 2013 at the Chief Magistrate’s Court at Milimani Law Courts.

3. THAT the Costs of this Application be provided for.

Applicants’ Case

2. According to the ex parte applicants, on 28th September, 2013 the 2nd interested party filed an application for leave to institute private prosecution against the Applicants which application was heard ex parte on 17th December, 2014 since the Advocates for the applicants did not attend court for reasons that the trial Court was not forming part of the cause list.

3. It was averred that at the time of hearing the Applicants had filed their Replying Affidavit together with all relevant documents showing that the application for private prosecution was not merited. However on or about the 25th November, 2016 Hon Magistrate J. M. Omido (PM) granted the 2nd interested party herein leave to commence private Prosecution against the Applicants over an alleged forgery of minutes, resolutions, letters and filing of parallel returns. The said ruling, it was averred was delivered without a notice to the Applicants herein and upon perusal of the Ruling when Summons were issued for the Applicants to appear in Court on 19th January, 2017, the applicants found out that there was a letter addressed to their previous Advocates but it was not clear whether this letter was ever sent or not since it was bearing the 2nd interested party’s Advocates stamp only.

4. It was averred that by the time the letter was being written the record was clear that Henia Anzala & Associates was no longer acting for the Applicants and the Advocate on record was Kaka Kamau & Co. Advocates which firm was never served with notice.

5. It was contended that at the time the 2nd interested party filed an application for private prosecution he knew that there were other matters pending in Court and Hon. Mr. Justice Musinga as he then was had made an Order in Civil Case Number 430 of 2012 that the Applicants should continue to run the Company and there should be no filing of any other suit. These orders, it was averred were extended by a three judge bench and the same were extended by consent till the determination of the case.

6. It was the applicants’ case that by filing an application for private prosecution when the same issues had not been fully resolved by the High Court and in the light of Court Order of 10thJuly, 2012 the Chief Magistrate had no jurisdiction to entertain the application for private prosecution and in any event the 2nd interested party was in violation of a Court Order.

7. The applicants contended that the mere fact that a Complaint was lodged by the 2nd interested party does not mean that the applicants must be prosecuted since the Police and the Office of the Director of Prosecution also must analyze the Complaint and see whether the same has some merit or not. To them, criminal investigation department must be left to conduct their work independently and cannot be coerced to take action against innocent people especially when there is a Court order for the records to remain as they are.

8. It was the applicants’ case that they had raised several issues in their Replying Affidavit and the same were not considered by the Court yet the interested party was guilty of non disclosure of material facts which would have not been ignored by the Learned Magistrate. In their view, had the Magistrate considered the Replying Affidavit he would have appreciated that the 2nd interested party misled the Court and therefore did not deserve the Orders since there was no factual foundation to commence private prosecution. However, the Learned Magistrate failed to appreciate that Criminal Prosecution could only be commenced when it can lead to conviction and allowed the interested party to commence private prosecution knowing very well that with the evidence on record there would be no likelihood of conviction.

9. The applicants charged that from the way the Court has been conducting its business it was apparent that the Court was not ready to follow the law hence the fear that there was no way the same Court as it is composed can administer justice when it had failed to make decision on simple issues as to whether it had jurisdiction in the first instance.

10. The applicants therefore lamented that their rights were being violated hence the need for this Court to intervene by granting Orders sought to enable the Applicants live a normal life hence the orders sought herein.

11. In response to the replying affidavit, the applicant averred that in 1994 the Governing Director of Galot Industries Limited was Lalchand Galot and not the 2nd interested party and that the appointment of the applicant as directors of the company was done by the Board of Directors of the Company and NOT by the 2nd interested party. Though the 2nd interested party claims he removed the applicants as directors using his powers as Governing Director the Notification of Change of Directors clearly states that the applicants themselves resigned as Directors on the 4th of January, 2001. According to the applicants, under the Companies Act and Regulations a director’s resignation has to be made in writing with an authenticated signature on it, otherwise such resignation would be null and void. The applicants averred that though demands had been made for the 2nd interested party to produce any resignation letters, he was unable to do so as they do not exist. The applicants therefore denied that they had ever resigned as directors.

12. It was the applicants’ case that the glaring contradiction in terms on this issue by the 2nd interested party makes his assertion inadmissible and unacceptable more so as the Registrar of Companies has consistently confirmed from the records at the registry that the applicants are directors of Galot Industries Limited. It was disclosed that the Registrar of Companies clearly stated in his letter dated the 14th of March, 2016 that in obedience to the Court Order in HCC 430/12, his office had not varied or altered the position of directorship and shareholdings of Galot Industries Limited amongst other companies.

13. The applicants averred that the contention by the 2nd interested party that he sought leave to file private prosecution against the applicants because the applicants filed “illegal parallel annual returns and that irregular CR 12 certificates were issued particularly one dated 16th February, 2012, were all allegations false. To the contrary:

i. The applicants filed Annual Returns regularly and lawfully. It is the 2nd interested party who has been filing not only parallel returns, but illegal and false returns, exhibiting illegal changes in the companies shareholdings and directorships as proved by the institution of HCJR 275/13 by the 2nd interested party allegedly on behalf of Galot Industries Limited seeking to compel the Registrar to issue a CR 12 according to his irregular Annual Return which suit was struck out with costs. Similarly this Court in HJRC 275/13 found that Mohan Galot had filed the suit without seeking leave of the court as ordered in HCC 430/12

ii. The Registrar of Companies filed a Replying Affidavit sworn on the 19th of December, 2013 by one Francis Ndirangu which affidavit scathingly exposed the criminal activities of the 2nd interested party in so far as the filing of parallel returns by him go.

iii. The 2nd interested party is minded of removing the applicants as directors of the companies but has never taken any step as provided by the law to do so. He only perpetuates declarations that the applicants have ceased to be directors which declarations are not only meaningless, ineffective and a nullity but are also only of nuisance value.

iv. The accusation the 2nd interested party makes against the applicants are all false and are motivated by malice and ill will the fear that the truth about his schemes would be exposed.

14. It was averred that through his illegal parallel returns the 2nd interested party acquired CR 12s showing changes in directorship and shareholding of the company and excluding the applicants which he filed in court proceedings HCC 2054/93 and Supreme Court Petition No 6 of 2016 but which on enquiry the Registrar of Companies confirmed were forgeries.

15. The applicants averred that the assertion by the 2nd interested party that the Court, in HCC number 430/12 ordered the applicants to run the company Manchester Outfitters Limited “as managers” is absolutely not true.

16. To the applicants, the contention that the only available forum for the applicant was appeal or revision is mistaken since judicial review orders are available for certiorari, mandamus, and prohibition, whether originating from a civil or criminal action hence this application is valid and this court has jurisdiction to certainly hear and determine it as judicial review is not concerned with the merits of the case but procedural and jurisdiction.

17. It was the applicants’ case that the view adopted by the 2nd interested party that the order in HCC 430/12 that the parties should not file any suit or application without leave “was specific to civil proceedings” was a creation of the 2nd interested party as there was no order limiting the orders to civil proceedings but the orders touched on the parties.

18. It was reiterated that the proceedings in the criminal court and the ruling made were all done ex parte hence the applicants were denied an opportunity of being heard hence the rules of natural justice were infringed and violated as against the applicants contrary to Article 50 of the Constitution.

19. The deponent of the replying affidavit was accused of being guilty of concealment of material facts. The truth, according to them is that Galot Industries Limited sought and obtained an interim court injunctive order against the 2nd interested party restraining him and his wife amongst others from interfering with the assets of Galot Industries Limited which order was given in 2009 and is still in force. Moreover, Galot Industries Limited accused the 2nd interested party and caused him to face several criminal charges in court. Despite the injunctive orders made in HCC number 298/2009 the 2nd interested party proceeded to transfer permanent assets belonging to Galot Industries Limited to a company called MG Park Limited owned by him and his wife without recourse to the bona fide board of directors.

20. It was disclosed that the 2nd interested party had similarly purported to change shareholders and directors of Galot Industries Limited.

21. The applicants asserted:

a. THAT Mohan Galot was trying to use the criminal courts to determine the legitimate directors of Galot Industries Ltd, a matter that is yet to be determined in Hcc 430/12. Mohan Galot, Pravin Galot and Rajesh Galot along with Galot Industries are the parties in Hcc 430/12. The CM’s court cannot take over a matter that is before the superior court.

b. THAT Mohan Galot is attempting to mislead this Court by misinterpreting the orders in HCCC 430/12 by stating that they only pertain to civil matters. He fails to mention that the ruling in Hcc 430/12 by the three judge bench, and not the CM’s court, will eventually determine who are the legitimate directors of Galot Industries Ltd.

c. THAT Mohan Galot is trying to steal a march by attempting to determine the directorship of Galot Industries Ltd, a matter that is before the High Court, using the Chief Magistrate’s court.

d. THAT Mohan Galot has no powers, whatsoever, to remove any Directors of the company. Section 185 of the Companies Act clearly details the mode of removing a Director not withstanding anything in the Memorandum of Articles. The Registrar of Companies clearly stated this is his affidavit in JR275/13 and also mentioned that Mohan Galot is abusing his position as a Director of the company to steal the shares of the company from his fellow shareholders and they, the Registrar of Companies, will not rubber stamp his illegal activities.

e. THAT Mohan Galot is guilty of material non-disclosure as he has failed to inform the CM’s court that he sued the Registrar of Companies to remove both Pravin Galot and Rajesh Galot as Directors of Galot Industries Ltd. He lost the case and was also condemned by the Judge to pay the costs.

f. THAT Mohan Galot filed a Form 203A with the Registrar of Companies, without the knowledge of both Pravin and Rajesh Galot, stating that they had resigned as Directors of the Galot Industries Ltd. He knowingly uttered a document that he knew to be false in a public office. This is a criminal offence.

g. THAT Mohan Galot, when challenged by the Registrar of Companies, failed to produce those alleged ‘resignation letters’ as they simply did not exist!

h. THAT Mohan Galot is attempting to mislead the Court that the letter dated the 29th of January, 2016 by the Registrar of Companies, was a final determination on the Directorship and Shareholding of Galot Industries Ltd. The truth is that this letter asked for evidence to the contrary to be submitted to the Registrar within 30 days. After the information was submitted to the Registrar of Companies they issued a letter and a search on Galot Industries Ltd dated the 14th of March, 2016 and 16th of March, 2016 respectively clearly confirming that both Pravin Galot and Rajesh Galot are indeed Directors of the company. They even confirmed that there is a court order in Hcc 430/12 that specifically stops any varying of the records of the company.

i. THAT considering that the Registrar of Companies, a custodian of all the records, has confirmed that we are the legitimate Directors of Galot Industries Ltd, it is absurd that Mohan Galot now wants us charged in a criminal court for impersonating directors! The case is a sham, a creation of Mohan Galot’s dented ego, to settle personal scores.

j. THAT we simply cannot litigate a matter which is before the High Court in the Chief Magistrate ’s court.

k. THAT Mohan Galot must obey the orders given by the High Court in HCCC 430/12 and seek leave before he files any suit or application involving Galot Industries Ltd. Thus, it is safe to conclude, that considering the orders of the Superior Court, this entire suit is in contempt of the High Court’s orders in HCC 430/12 and should be quashed accordingly.

i. THAT Mohan Galot and his wife are trying to use the Chief Magistrate’s Criminal court to remove the applicants as Directors so that they can win the criminal and civil cases preferred against them by Galot Industries Limited and also use the same to remove the injunctive orders issued against them in HCC No. 298/09.

1st Interested Party’s Case

22. According to the 1st interested party, it is evident from the annextures and material assembled in the application that the Chief Magistrates Court Private Prosecution No. 1 of 2013 is frivolous, vexatious, incompetent and tainted with irregularities and illegalities that amount to abuse of due process, for the following reasons, inter alia:

a. The 2nd interested party filed the application in the Chief Magistrate’s Court for leave to institute private prosecution in blatant violation of an order of the High Court made on 10th July, 2012 in HCC 430/12 requiring prior leave of the High Court,

b. The High Court Order related to Galot Industries Limited and other companies.

c. The intended Private Prosecution is related to Galot Industries Limited.

d. Under Article 157 of the Constitution, the Director of Public Prosecutions is the institution mandated to exercise state powers of all prosecutions. The 2nd interested party ignored the constitutional provision and failed to adequately consult the DPP’s office before he filed his application for private prosecution.

e. The 2nd interested party precipitately rushed to file his application for private prosecution before the Director of Public Prosecution had given the matter the consideration as to whether it would serve public interest, interest of administration of justice and need to prevent and avoid abuse of the legal process.

f. After looking at the proposed charges it is abundantly clear that the charges would all fail the test of legal credibility. The proposed charges related to matters and issues that are pending in High Court for determination. The subordinate Court had no jurisdiction to determine such matters as they are pending before the superior Courts for determination.

g. The record shows that the 2nd interested application for private prosecution was heard ex-parte. The proposed accused persons representative on record were not served with the ruling notice. The case was not listed for hearing on 17th December, 2014 when it came up for hearing. The rules of natural Justice were accordingly abused.

23. It was its case that the intended criminal charges are devoid of any factual or legal foundation. Though it was not made a party to the application for private prosecution, its position was that the same does not satisfy the conditions under which such an application maybe made.

24. It was therefore of the view that in view of the orders of the High Court made on 24th July 2013 in High Court Civil Case No. 430 of 2012, the orders prayed for in this application should be granted and all legal proceedings held in abeyance pending the outcome of the determination of the directorship of company in question.

2nd interested party’s case

25. The 2nd interested party on the other hand opposed the application.

26. According to him, the applicants herein are not Directors of Galot Industries.

27. To him the correct position about the proceedings of 17th December, 2014 is that the Applicants or their advocates did not attend court despite Notices to appear and that if indeed the Applicants changed their advocates, this should have been evidenced by a Notice of change of Advocates filed in court and served on all parties. However, there is no evidence that this was done by the applicant, there is nothing on record to support the allegation that the Applicants changed their advocates.

28. While admitting that there existed an order that parties should not file any other suit, his position was that this order was specific to civil proceedings and the commercial court and not criminal complaints such as the one sought to be challenged and therefore did not prevent the Magistrates Court from receiving and entertaining criminal complaints against parties hence the proceedings in the Chief Magistrates court are not without jurisdiction.

29. In the 2nd interested party’s view, if the Applicants feel or are aggrieved by the decision of the court they have an option of preferring an appeal or a revision all which are provided for in the Criminal Procedure Act. He therefore took the view that the Applicant want the Judicial Review Court to sit on an appeal on an issue which the remedy lies elsewhere and has been provided by law.

30. It was contended that as the Respondent has only granted leave, the issue as to whether the prosecution can or will lead to conviction is a matter of trial which could not be addressed at the leave stage. While adopting his averment in the Magistrate’s Court, the 2nd interested party averred that the contents of paragraph 2 of the Verifying Affidavit of Rajesh Galot are not true or correct for the following reasons:-

a) The Ex-parte Applicants are not directors of Galot Industries Limited or other companies as alleged in the Statutory Statement.

b) That he appointed and removed the Ex-parte Applicants from Galot Industries Limited on 1st March, 1994 and 4th January, 2001 respectively by the exclusive powers bestowed upon me by clause 5 of Memorandum of Association and article 10 of the Articles of Association as the Governing Director.

c) The filing of application for leave to institute private prosecution was necessitated by the filing of illegal parallel annual returns by the Ex-parte Applicants and issuance of irregular CR 12 Certificates which were later used as exhibits in court and other Government Agencies. The parallel annual return where CR 12 Certificates originated from were never made available.

d) court order in HCCC. No. 430 of 2012 obtained by the 2nd interested party to run the company of Manchester Outfitters Limited, to restrain the Ex-parte Applicants from interfering with the affairs of my companies of Galot Industries Limited, Galot Limited, King Woollen Mills Limited and Manchester Outfitters Limited. The court varied this order to allow the Ex-parte Applicants as managers and not as directors to run the affairs of Manchester Outfitters Limited only pending hearing and determination and not any other companies where they are also not directors namely; Galot Industries Limited, Galot Limited and King Woollen Mills Limited.

e) Their involvement in other companies and forgeries of documents at the Company Registry is what necessitated the filing of application for leave to institute private prosecution.

31. It was therefore contended that the applicants had not placed any material before the court to support the allegations being made against a judicial officer exercising his powers as provided under the law. To the 2nd interested party, the provisions of private prosecution is in our laws for a good reason, if the DPP fails to act independently and apply his mind independently on the issues before him, he has a remedy to privately prosecute the Applicant.

32. It was averred that the Office of the Director of Public Prosecutions refused and/or failed to take steps against the Ex-parte Applicants despite numerous complaints made to them; that the Office of the Director of Public Prosecutions decided to play partisan role instead of being an independent office; that the Ex-parte Applicants compromised the officers namely; Nicholas Mutuku and Victor Mule of the Office of the Director of Public Prosecutions in order to ensure that the 2nd Interested Party’s complaints did not reach the Director; that because of the failure of the Office of the Director of Public Prosecutions to take action against the Ex-parte Applicants he lodged another complaint at the Commission of Administrative Justice “Office of Ombudsman” who later confirmed in their determination report dated 2nd October, 2015 that the Office of Director of Public Prosecutions failed to investigate his officers in relation to the complaints; that further complaints against the Office of the Director of Public Prosecutions were also made at Ethics & Anti-Corruption Commission for investigation; that Victor Mule whom complaints are made against on 6th February, 2017 appeared in court on behalf of the 1st Interested Party despite complaints made on him; that all the complaints made to Office of the Director of Public Prosecutions, the Inspector General of Police and the Solicitor General were not taken care of and yet they were aware of the complaints and no investigation was undertaken.

33. The 2nd interested party therefore contended that the DPP or his office is protecting the Applicant herein but denied that he has acted maliciously in prosecuting the case as his desire desire is that truth comes out and the guilty parties face the full face of the law.

34. According to the interested party the Ex-parte Applicants:-

a) in the proceedings of the court and cannot now claim that their previous advocate received the notice and the current one did not know.

b) The application for leave was against the Ex-parte Applicants and there was no way the Office of the Director of Public Prosecutions could have been involved since he refused to take action despite several complaints made.

c) The letter dated 20th December, 2016 together with annextures thereto marked ‘SG 7’ are brought into:-

(i) Confuse the court of real issues.

(ii) The so called recent search at the Company Registry which revealed that there is an order in HCCC. No. 430 of 2012 and no changes have been effected is not true because the same Company Registry by its letter dated 29th January, 2016 held that the valid directors of these companies are shown in the respective letters all dated 29th January, 2016.

35. The Court was therefore urged to dismiss the application with costs.

Determination

36. I have considered the issues raised in this application.

37. The purpose of judicial review, it has been held, is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilised governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems. The focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualised discretion; from social controversy to commercial self-interest; and anything in between. As a result, judicial review has significantly improved the quality of decision making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.

38. Judicial review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through the taking into account of an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See Reid vs. Secretary of State for Scotland [1999] 2 AC 512.

39. It is therefore my view that what this Court ought to determine in these proceedings is not the merit of the decision by the Respondent to permit the 2nd interested party to commence private prosecution but whether the applicants were treated fairly. That the proceedings before the Magistrate’s Court were quasi-criminal in nature is not in doubt. It is however contended that on the day when the said order was issued ex parte, the cause list did not include that the particular judicial officer was hearing the matter. It was however contended that there was a letter in the file purporting that the applicants’ former advocates were notified yet here was no evidence that the said advocates were in fact so notified.

40. In effect what the applicants are contending is that they were unaware of the proceedings that led to the issuance of the impugned decision. They have however presented material which according to them would have disentitled the 2nd interested party to the grant of the said orders.

41. In Egal Mohamed Osman vs. Inspector General of Police & 3 others [2015] eKLR the Court referred to The Management of Committee of Makondo Primary School and Another vs. Uganda National Examination Board, HC Civil Misc Application No.18 of 2010, where the Ugandan Supreme Court expressed itself as follows:

“It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.”

42. In this case it would seem that the Respondent treated the proceedings before him as if he was dealing with a civil matter which was not the case. In the premises I find that the proceedings as conducted were tainted with procedural impropriety.

43. Section 11 of the Fair Administrative Action Act, 2015 provides as follows:

(1) In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order-

(a) declaring the rights of the parties in respect of any matter to which the administrative action relates;

(b) restraining the administrator from acting or continuing to act in breach of duty imposed upon the administrator under any written law or from acting or continuing to act in any manner that is prejudicial to the legal rights of an applicant;

(d) prohibiting the administrator from acting in a particular manner;

(e) setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions;

(f) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;

(g) prohibiting the administrator from acting in a particular manner;

(h) setting aside the administrative action and remitting the matter for reconsideration by the administrator, with or without directions;

(i) granting a temporary interdict or other temporary relief; or

(j) for the award of costs or other pecuniary compensation in appropriate cases.

44. It may be argued that the proceedings before the Respondent were not “administrative” in nature. However, section 2 thereof defines “administrative action” to include:

(i) the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or

(ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

45. In this case it is clear that the decision of the Respondent affects the applicants’ legal rights and interests.

46. In the foregoing premises the order which commends itself to me and which I hereby grant is an order of an Order of Certiorari removing into this Court and quashing all the proceedings and decisions made in the Nairobi Chief Magistrate’s Court at Milimani Law Courts in Private Prosecution Case Number 1 of 2013. I hereby direct that if the 2nd interested party is still desirous of proceeding with the said proceedings the same be commenced de novo before any other Magistrate other than Hon J. M. Omido. I further direct that the Director of Public Prosecutions be made a party to the said proceedings.

47. Each party will bear own costs of these proceedings.

48. Orders accordingly.

Dated at Nairobi this 12th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Were for the applicants

Mr Muruingi with Mr Wachira for Mr Wandugi and Mr Oonge for the 2nd Interested Party

CA Mwangi