Republic v Director of Public Prosecution Investigations, National Police Service & Chief Magistrate’s Court, Nairobi Ex-parte Charles Mwiti Mugambi [2018] KEHC 8019 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  156 OF 2017

IN THE MATTER OF: AN APPLICATION BY CHARLES MWITI MUGAMBI FOR JUDICIAL REVIEW AND ORDERS OF CERTIORARI AND PROHIBITION..

AND

IN THE MATTER OF ARTICLE 10,47,50,73 AND 157 OF THE CONSTITUTION OF THE  REPUBLIC  OF KENYA

AND

IN THE MATTER OF  SECTIONS 6(a)  &(b), 16(1),(2)&(3), 29, (1),(2) &(3) 30(1) & (2) AND  34 (1) (a),(b) &(c ) OF THE OFFICE  OF THE DIRECTOR  OF PUBLIC  PROSECUTION ACT, 2013

BETWEEN

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

VERSUS

THE DIRECTOR  OF PUBLIC  PROSECUTION..............1ST RESPONDENT

THE DIRECTOR  OF CRIMINAL

INVESTIGATIONS………………………..……….………2ND RESPONDENT

THE NATIONAL POLICE SERVICE.................................3RD RESPONDENT

THE CHIEF MAGISTRATE’S COURT, NAIROBI..........4TH RESPONDENT

EX-PARTE

CHARLES MWITI MUGAMBI

RULING RECALLING JUDGMENT

1. As I was perusing this file for purposes of writing a judgment  due for delivery on 6th March 2018, and after the  parties had all filed and exchanged written submissions, I noticed  that one key party  who ought to  have been  enjoined  to these proceedings or who the court ought to have directed  that the motion be served  upon, was not served  or included  as a party to these proceedings.  The party in question is the complainant in the impugned criminal proceedings.  This is a very important party to these proceedings because it was upon his complaint lodged  with the police that investigations  were carried  out and a decision reached by the Director of Public Prosecution to charge  the exparte  applicant  with the relevant  offences, which charges  the  exparte  applicant  is resisting.

2. These  are not civil  proceedings  where  the  defendant  would be  expected  to enjoin a third  party.  The law under Order 53 of the Civil Procedure Rules clearly stipulate that persons who would be directly affected by the decision of the court in judicial review proceedings should be served with the application.

3. This is in recognition of the fact that  the court is likely to make  adverse orders against a person who is not a party to proceedings therefore it is important that before such a situation occurs, such person must be made a party and accorded  an opportunity  to be heard.

4. The proceedings which are sought to be quashed were initiated at the behest of the complainant, who, regrettably, the applicant did not enjoin to these proceedings as an interested party as required by law.  The court also did not order that such complainant be served with the application.

5. Due to  that critical  omission, and  this court having discovered  such an omission before writing and or rendering the decision on the substantive motion, it is  unable  to write and  deliver a  judgment  that is devoid of such a crucial party being accorded an opportunity  to be  heard  in this matter.  The right to be heard is a constitutional imperative  espoused in Article 50 (1) of the Constitution which  should never  be denied  to a person  who deserves  to be heard and who is known to the party applying.  To do otherwise would be violating the principles of natural justice especially where the court would make orders which are adverse to the person who initiated the complaint subject of the impugned criminal charges.

6. For the  above reasons, I hereby  on my own motion  recall  the judgment  which  was to be  delivered  on  6th March  2018  in this matter and direct the exparte applicant to serve all pleadings, affidavits and submissions  so far  filed by the applicant  and the  respondents, upon the complainant in Milimani CM criminal case No. 451  of  2017  Mr Eric  Mwenda Kanyuuru within  the next 7 days of todate, upon which the said Eric Mwenda Kanyuuru  will have  10 days  from the date of  service  to file  and  serve  his replying  affidavit.

7. The applicants  shall have 7  days  of service  to file  a further  affidavit  if need  be together  with brief  further submissions and  serve  upon the interested  party Mr  Eric  Mwenda  Kanyuuru who will  have 7  days  of service  to  file  and  serve  written submissions.  The matter shall be mentioned on 20th April 2018 for further directions by the presiding judge.

8. Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 6th day of March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Ombwayo h/b for Mr Eric Mutua for the applicant

Miss Ochieng h/b for Mr Makori for the 1st Respondent

CA: Kombo