Republic v Inspector General of Police & 2 others; Machage & another (Exparte Applicants); Kiruri (Interested Party) [2023] KEHC 19492 (KLR)

Republic v Inspector General of Police & 2 others; Machage & another (Exparte Applicants); Kiruri (Interested Party) (Judicial Review E019 of 2021) [2023] KEHC 19492 (KLR) (5 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19492 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review E019 of 2021

SM Mohochi, J

July 5, 2023

Between

Republic

Applicant

and

The Inspector General of Police

1st Respondent

The Director of Public Prosecutions

2nd Respondent

The Chief Magistrate'S Court at Nakuru

3rd Respondent

and

Douglas Musa Machage

Exparte Applicant

George Gisore Mboga

Exparte Applicant

and

Samuel Ngigi Kiruri

Interested Party

Judgment

1. By Notice of Motion dated October 29, 2021, brought under Order 53 Rule 3(1) of the Civil Procedure Rules 2010 filed pursuant to leave granted by Honorable, Mr Justice Hillary Chemitei, on the August 30, 2021 and an Order of Honorable, Lady Justice Rachel Ngetich, on October 28, 2021 enlarging the time for filing the substantive motion was made.

2. The ex-parte Applicants pray for judicial review orders;a)That this Honorable Court be pleased to issue an Order of Certiorari to remove into the High Court for quashing and to quash the decision of the Director of Public Prosecutions made on July 9, 2020 and August 9, 2021 and all subsequent decisions based thereon to charge the ex-parte Applicants over the sale agreement dated March 12, 2011 that is the subject of Nakuru ELC Civil Case No 43B of 2016: Douglas Musa Machage v Samuel Ngigi Kiruri & Another;b)Thất this Honourable Court be pleased to issue an Order of prohibition to prohibit the prosecution of the ex-parte Applicants over the sale agreement dated March 12, 2011 that is the subject of Nakuru ELC Civil Case No 43B of 2016: Douglas Musa Machage v Samuel Ngigi Kiruri & Another;c)That the costs of this application be provided for.

Ex-Parte Applicant’s Case 3. The Ex-parte Applicants’ application is based on the twelve (12) grounds contained in the Notice of Motion dated set out in a statutory statement dated August 26, 2021 and the verifying affidavits of the ex-parte Applicant’s, sworn on August 26, 2021 accompanying the application for leave.

4. In summary form, the grounds are that;i.That,on March 3, 2011, the 1st ex-parte Applicant, purchased two parcels of land measuring 5 acres each at Kshs 600,000/= per acre from one Samwel Ngigi Kiruri the Interested Party herein, to be excised from that land Comprised in title No 49110 otherwise known as Land Reference Number 4815/3 measuring 70. 65 hectares.ii.That, It was agreed between the 1st ex-parte Applicant and the Interested Party that the purchase price would be deposited in the Interested Party's bank account with a formal sale agreement to be subsequently drawn and executed by them.iii.That, Pursuant to the said agreement, the 1st ex-parte Applicant, paid the full purchase price for one of the properties in the sum of Kshs 3,000,000/= into the Interested Party's bank account by way of two cash transfers of Kshs 2,300,000/= and Kshs 700,000/=;iv.That, the 1st ex-parte Applicant, took possession of the two parcels of land that after survey were now known as LR No 4 LR No 4815/6 and commenced developments thereon.v.That, on March 12, 2011, the 1st ex-parte Applicant, and the Interested Party executed a sale agreement at the Chambers of the 2nd ex-parte Applicant, an advocate of the High Court of Kenya practising as such in the name and style of M/s Mboga GG & Company Advocates.vi.That, Despite the 1st ex-parte Applicant, having paid the purchase price for the two parcels of land and outgoings in full into the Interested Party's bank account, the Interested Party did not transfer the properties to the 1st ex-parte Applicant, but instead wrote to the 1st ex-parte Applicant, demanding for an additional Kshs 1,600,000 alleged to be outgoings and intimated that without payment he would not transfer the properties to the 1st ex-parte Applicant,vii.That, the 1st ex parte Applicant, refused to pay the sum of Kshs 1,600,000/= whereupon the Interested Party informed the 1st ex-parte Applicant, that he had rescinded the sale.viii.That, The 1st ex-parte Applicant, instituted Nakuru ELC No 43B of 2016 against the Interested Party and his wife and during the hearing of the said suit, in which both ex-parte Applicants testified, the ex-parte Applicants learnt that the Interested Party had made a criminal complaint against them where he had alleged that they had forged his signature on the sale agreement dated March 12, 2011 and that they were due to be arrested.ix.That, the 2nd ex-parte Applicant wrote to the 2nd Respondent notifying it of the pending proceedings in Nakuru ELC Civil Case No 43B of 2016. While the 2nd Respondent had directed that the ex-parte Applicants arrest await the outcome of the said civil Suit,x.That, despite there being no change of circumstances, it had directed that the ex- parte applicants be arrested and charged; and the ex-parte Applicants were so arrested and released on bail pending their arraignment in court to take plea on August 31, 2021. xi.That, the criminal prosecution engendered by the Interested Party is aimed at achieving a collateral purpose being to steal a match on the 1st ex-parte Applicant, and bring pressure to bear on him to either pay the Kshs 1,600,000/= lawfully not due to the Interested Party or abandon his claim which is the subject of Nakuru ELC No 43B of 2016. xii.That, the criminal prosecution engendered by the Interested Party is being used to settle a civil dispute which is pending before a Competent superior Court and the same is not in the public interest, it is an abuse of the Court process and an affront to the administration of justice.

5. That despite having been served with the application, neither the Respondents nor the Interested Party filed a response.

6. Ex-parte Applicants have framed a single issue for this Court's determination as whether the orders sought herein should issue?

7. That on October 22, 2022, the Interested Party served Ex-parte Applicants with an unstamped copy of a replying affidavit to the application for leave dated August 26, 2021 which had already been allowed ex-parte by Honorable Mr Justice Hillary Chemitei. The record shows that on October 28, 2021, Honourable Lady Justice Rachel Ngetich made an order enlarging the time within which the substantive motion was to be filed by 14 days.

8. Subsequently, Ex-parte Applicants filed the Notice of Motion dated October 29, 2021 on November 3, 2021. The same was served upon the Respondents and the Interested Party on November 9, 2021. No response was filed and served by the Respondents and the Interested Party in respect of the Notice of Motion. What, then, is the effect of failing to file a replying affidavit?

9. It is submitted that In John Ogendo Anyona v Chief of Kenya Defence Forces & 2 others [2014] eKLR, the Court held that: -'That the Respondents did not file any response to the Notice of Motion and the grounds set out therein. Similarly, there is no substantive response by the Respondents to the statutory statement and the reliefs sought therein. The matters set out in the verifying affidavit have not been controverted in a replying affidavit.'In law the averments in the supporting affidavit in particular, having remained unchallenged to date, stand proven on a balance of probability and the Court proceeds to apply the law applicable in matters of this nature based on the proven facts.

10. The Ex-parte-Applicants further contend in submissions that In Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR, the Supreme Court held as follows: -'A Replying Affidavit is the principal document wherein a respondent's reply is set and the basis of any submissions and/or List of Authorities that may be subsequently filed. Absence this foundational pleading the Replying Affidavit, it follows that even the Written Submissions purportedly filed by the 1st Respondent on August 17, 2018 are of no effect. The upshot is that as the 2nd and 3rd Respondents had categorically stated that they do not oppose the application, the Court Will be excused for therefore deeming the application as being unopposed entirely',

11. Further, in Car Importer Mombasa Association of Kenya v County Government of [2021] eKLR, the Court held as follows: -'Similarly, in Phillip Tirop Kitur vs Attorney General [2018] ekLR, the Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the Petitioner's evidence stood unchallenged. In addition, the High Court rejected the Attorney General's contention that the delay in filing the Petition had cause Replying Affidavit or oral evidence, the Court had no facts upon which aused it prejudice, ruling that in the absence of a it could make such a finding. Therefore, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted.'

12. In the instant application, the Respondents and the Interested Party having any response to the application, all the factual depositions made by Applicants have not been rebutted. The application is unopposed.

13. That the above notwithstanding, our submissions on the merits of the application are that the instant application is not novel at all. It its trite law that judicial review is the process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals, statutory bodies or persons who carry out judicial or quasi-judicial functions or who are charged with the performance of public duties. It is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made but with the decision-making process.

14. Ex-parte Applicants, submit that the High Court's authority to exercise supervisory powers over subordinate courts and persons exercising administrative authority is a creature of Articles 10, 47, 165(6) and (7) and 232 of theConstitution and the provisions of the Fair Administrative Actions Act, 2015. Article 10 of theConstitution sets out the National Values and Principles of Governance that bind all state officers, state organs, public officers, and all persons whenever they apply or interpret theConstitution, enact, apply or interpret any law, make or implement public policy decisions. The National Values and Principles of Governance include the rule of law, equity, inclusiveness, equality, human rights, non-discrimination, good governance, transparency, accountability, democracy, and participation of the people.

15. Under Article 47(1) of theConstitution, 'every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.' The essence of the right to fair administrative action is to ensure administrative. processes meet constitutional standards, the element that administrative act must be 'lawful encapsulates the principle of legality and the fact its administrative action must be located in the law and must not be arbitrary.

16. In James Opiyo Wandayi v Kenya National Assembly &2 others [2016] eKLR this Court, Odunga J, opined as follows: -'In my view, Article 47 of theConstitution is now emphatic on the fairness of administrative action. The purpose of judicial review 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 civilized 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 individualized discretion; from social controversy to commercial self- policy to 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.'

17. Ex-parte Applicants, submit that Article 165(6) provides as follows: -'The high court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising judicial or quasi-judicial function, but not over a superior court'.

18. Sub Article 7 goes further to provide that: -'For purposes of Clause 6, the High Court may call for the record of any proceedings before subordinate court or person, body or authority referred to in Clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice'.

19. That Article 232(1) lays down the values and principles of public service which include high standards of professional ethics; efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable provision of services; accountability for administrative acts and transparency and provision to the public of timely, accurate information.

20. The mandate donated to the Court by the aforesaid provisions to oversee operations of administrative authorities in the course of discharging their constitutional and statutory functions is intended to restore consistency.

21. In a nutshell the Ex-parte Applicants are determined to conclude their motion on the basis that the prayers sought should be granted however, for there being no response, the claim being undefended the Ex-parte Applicants, urge the Court to grant the orders sought.

Respondent’s Case 22. The Respondents failed to comply with the directions of the Court dated May 19, 2022, by filing a response and or written submissions which failure the ex-parte Applicants urge would qualify them for grant of the Orders Sought.

23. The Court shall consider the consequence and effect of the same bearing in mind that the instant motion is a writ jurisdiction motion.

Interested Party’s Case 24. Interested Party has had bitter running with the Ex Parte Applicant and this was a new platform and the interested party engages in an argument on filing or not filing of response. He then goes on a long tirade of facts offering blow-by-blow his predicaments with the 1st Ex Parte Applicant.

25. Interested Party has delineated the following as issues for determination:a)Whether the 1st and 2nd Respondents executed their mandate constitutionally and within the law in recommending the prosecution of the ex-parte Applicants?b)Whether the Ex-parte applicant have satisfied the law that the intended criminal proceedings be halted?c)Whether the applicant is entitled to orders of judicial review sought.?d)Who to bear the costs of the suit.

26. The Interested Party submits that the law governing judicial review proceedings is anchored under Order 53 of the Civil Procedure Rules, Cap 21 Laws of Kenya and principally based on the Common law principles in which Court or Judicial Review proceedings are concerned only with the decision-making process as opposed to the merits of decision.

27. Reliance is sought on the case of R v Kenya Revenue Authority Exparte Yaya Towers Ltd [2008] eKLR, the Court enlisted grounds for Judicial Review as abuse of discretion irrationally, excess of jurisdiction, improper motives, failure to exercise discretion, abuse of the rules of natural justice, fettering of discretion or error of the law.

28. The Interested Party contends and submits that the High Court has powers to exercise supervisory powers over the Respondents who are Public Statutory bodies to exercise certain administrative functions and attract Judicial Review Orders from the High Court. This can be achieved through Order 53 of the Civil Procedure Rules or Articles 22,23 and 47 of theConstitution as well as the Fair Administrative Action Act.

29. That for the Court to issue a writ remedy it must be satisfied that the act or omission complained of was arrived at illegally, unreasonably, improperly, irrationally, biased, in bad faith, or otherwise ultra vires hence a breach of the principles of natural justice.

30. That, an order of certiorari was designed to prevent an abuse of power and was intended to ensure that an individual is given fair treatment by the authority which he is subjected.

31. The Interested Party submitted while placing reliance on the case of Captain Geoffrey Kuguya Murungi vs AG Misc Civil Application No 293 of 1993, the Court stated that: -'Certiorari deals with the decision already made such an order (certiorari) can only be issued where the court considers that the decision under attack was reached without or in excess of jurisdiction or in breach of the rules of natural l justice or contrary to law. Thus, an order of Certiorari is not a restraining order'.

32. That on the other hand, an order for prohibition is that which is prospective in character and is intended to restrain an inferior tribunal body or authority from assuming jurisdiction where there is none or from doing what it is not authorized to do. Its mandate is not a basis for reviewing errors or to have already taken place or occurred.

33. Reliance is placed in the case of Kenya Examination Council v R Exparte Geoffrey Gathenji Njoroge and 9 Others [1997] eKLR the Court held that: -'Where a decision has been made, whether in excess or lack of Jurisdiction or whether in violation of the rules of natural justice, an order of prohibition will not be efficacious against the decision so made. Prohibition cannot quash a decision that has already been made; it can only prevent the making of a contemplated decision'.

Does the proposed prosecution meet the constitutional threshold? 34. That the Interested Party in his replying affidavit dated October 21, 2021 and filed on the October 27, 2021 contended that the 1' Ex-parte applicant filed Nakuru ELC No 43 of 2016 and annexed a copy of sale agreement dated March 12, 2011 claiming that he had executed the same before the firm of M/s Mboga GG & Co Advocates and sold to him IR NO 4815/5 and 4815/6 measuring ten (10) acres at a sum of Kshs 6,000,000/.

35. lt was the Interested Party's contention that he did not execute the alleged agreement dated March 12, 2011, and as a such he made a complaint at DCI on October 2, 2008 which complaint was entered in OB/No 109/02/10/2018.

36. The Interested Party submits that the 2nd Respondent is at this juncture subject to judicial review jurisdiction while exercising his powers under Article 157 of theConstitution while relying in the Case of Kenya Commercial Bank Ltd and 2 Others v Commissioner of Police and Another Nairobi Petition No 218/2012[2013] eKLR Justice Majanja held that: -'The office of DPP and Inspector General of the National Police Service are independent offices and the court would not interfere in the running of their offices and exercise of their discretion within the limits provided by the law unless the facts disclose a violation of the rights and fundamental freedoms guaranteed under theConstitution'.

37. That it is the work of the police to investigate and where there is a prima facie evidence, they can recommend prosecution and the rest is left to evidence and the trial court to analyze and determine. The Interested Party submitted while placing reliance on the case of Republic v Commissioner of Police and Another Ex-parte Michael Monari and Another [2012] eKLR the court held that the analysis of evidence should be done before the trial court and not the constitutional court.

38. The Interested Party submitted that the intended criminal proceedings is both a matter of public and private interest as it involves forgery of signature of the Interested Party by the Ex-parte Applicants as demonstrated by the Forensic Examination Report dated December 28, 2018 which was in a bid to fraudulently obtain the Interested party's land measuring ten (10) acres.

39. The Interested Party submit that, the 1st and 2nd Respondents have acted within their constitutional mandate and/or jurisdiction and thus there is no evidence by the Ex-parte Applicants, that the Respondent’s had acted in excess of their constitutional powers or jurisdiction. The Interested Party cites the case of Reg vs DPP EX P Kabilence (2000) 2AC 36 the Court held that: -'In a case where it is obvious that the director wishes a charge to go to trial, I think the court should be very slow to allow review of a consent to be used a device for resolving points which otherwise can be dealt with in the ordinary course of the criminal proceedings. As general rule, proceedings on indictment should not be delayed by collateral challenges'

40. The Interested Party submitted that this Honorable Court should let the prosecution take its full course and the ex-parte Applicants shall have an opportunity before the trial court to ventilate their case.

41. The Interested Party submitted that there is no proof of abuse, bad faith, illegality, irrationally, or ulterior motive that has been demonstrated against the Respondents in their decision to investigate and charge the ex-parte Applicants.

42. The Interested Party submitted that Section 193A of the Criminal Procedure Codes provides: -'Notwithstanding the provisions of any of the written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in any issue in any pending Civil Proceedings shall not be a ground for any stay, prohibition or delay criminal proceedings.'

43. The Interested Party submits that, the proceedings before Court do not prohibit the prosecution from instituting criminal proceedings against the Ex-parte Applicants That in the Case of Alfred Lumiti Lusibav Pethad Ranik Shantilal & 2 others [2016] eKLR, Ngaah J opined as follows with respect to the applicability of Section 193 A of the Criminal Procedure Code: -'But even so, the viability of a cause of action in a civil clam does not necessarily stem from the conviction of a defendant in a criminal trial. Further still, the success or failure of a civil suit based on facts similar to those that a criminal prosecution is mounted does not necessarily depend 0n the conviction or acquittal of the defendant in the criminal trial; the outcome of a civil suit is independent from that of a criminal trial largely because the standard of proof required of a prosecutor in criminal prosecution is higher than that required of a claimant in a civil suit. To Sustain a conviction, the prosecution must discharge the burden of proof beyond all reasonable doubt that the accused committed the offence with which he is charged. On the other hand, the claimant in a civil suit will only need to demonstrate on a balance of probability that the defendant is the tortfeasor and as a result of his tortious act or omission, the claimant suffered some sort of loss or damage that would warrant a remedy. The law is clear that the pendency of a civil suit is not a bar to criminal proceedings; it acknowledges the fact that the trial of the tortfeasor in a criminal prosecution need not be affected by the pending civil action against him. It is implied, therefore, that a civil suit cannot be stayed because of the prosecution of the tortfeasor for the obvious reason that the cause of actio1 is neither rooted in the prosecution of the tortfeasor nor in his subsequent conviction the conclusion that one can draw from Section 193A of the Criminal Procedure Code together with the decisions of the learned judges in aforementioned cases is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner.

44. The Interested Party submits that both criminal and civil proceedings can run concurrently and thus the Respondents had no ulterior motive to charge the Ex-Parte Applicants after investigation of the forgery claim in the sale agreement dated March 12, 2011.

45. The interested Party submits that judgment has since been delivered in Nakuru ELC 43B of 2016 where the Court did not address the issue of forgery and/or execution of the said sale agreement dated March 12, 2011 by the Interested Party.

46. That at paragraph 36 of the said judgment, the Court stated as follows: -'I will not pre-occupy myself with deciding whether or not the first Defendant did indeed sign the agreement since as will be manifested later in the judgement, it does not matter whether he in fact signed it.'

47. The interested Party submits that the criminal court will be at best to determine the question of forgery of the Interested Party's signature in the agreement and it is proper for this Court to let the issue be tried based on the evidence by the 1st and 2nd Respondents herein.

48. The interested Party urges this Court to dismiss the ex-parte Applicants case with costs to the Interested Party.

Determination 49. Having considered the motion, the pleadings for and against the application, the submissions for and against the grant of the orders sought and the authorities cited on behalf of the parties thereto, the Court has formed its views as follows: -

50. The interested Party was introduced by the Ex-Parte Applicants without the leave of the Court. This in my estimation was irregular especially in light of the motion at hand and that further it is imperative that the Court provides specific directions relating to the scope of participation by the Interested party.

51. While in this instant the interested party has posed as a substantive party, and filed affidavits and motions including comprehensive written submissions the same shall be considered for its persuasive import.

52. The interested Party is an individual involved in a private contractual wrangle with the 1st Ex-Parte Applicant and is enjoined by virtue of being a complainant in a criminal investigation and possible prosecution of the Ex-Parte Applicants in consequence.

53. The Court reiterates that once leave to file the motion for judicial review orders is granted, the Applicant becomes the Republic, and as such the substantive parties remain the Republic and the named Respondents.

54. The Interested Party ought to have been limited to making submissions limited to his interest, that notwithstanding the Court shall consider the same without being drawn to the private individualized dispute amongst them.

55. The principles for the grant of the orders in the nature sought herein are well crystalized in this jurisdiction. What is important is the application of the same to the facts of each case. It was well put by Professor Wade in a passage in his treatise on Administrative Law, 5th Edition at page 362, and approved in the case of the Boundary Commission [1983] 2 WLR 458, 475: -'The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too lightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.'

56. That notwithstanding the narrow common law approach by the ex-Parte Applicants in moving the Court under Sections 8 and 9 of the Law Reform Act, Cap 26 and Order 53 of the Civil Procedure Rules, 2010 this Court is empowered to invoke its judicial review jurisdiction in the proceedings of this nature in order to grant appropriate orders including the orders sought herein. In other words, judicial review jurisdiction has now been fused with the remedies under theConstitution and this is clearly discernible from the remedies crafted under Section 11 of the Fair Administrative Action, Act, 2015.

57. While judicial review remedies may be available to private claims where the administrative action or exercise of powers by the public body is demonstrated to adversely affect the 'legal rights or interests, derived from the Bill of Rights. It flows therefore that an exparte Applicant has the onus of demonstrating nexus between his/her fundamental rights and his legal rights and interest therefrom.

58. The Respondents were afforded adequate opportunity to demonstrate justification for their actions, while the 1st Respondent, the Honorable Attorney General entered appearance he did not file any representations for/or against the orders sought. The 2nd Respondent on the other hand elected not to participate all together.

59. On the other hand, this Court has the duty to determine that an application for the reliefs sought has met the grounds for judicial review flowing from Article 47 of theConstitution as read with Section 7 of the Fair Administrative Action Act of 2015. In this instant Application, the Ex-Parte Applicants were expected to demonstrate how the 2nd Respondent’s impugned decision(s) were made beyond and/or outside the constitutional mandate. However, it is upon the ex parte applicant to satisfy the Court that the discretion given to the Respondent to investigate and prosecute ought to be interfered with.

60. This Court is unpersuaded that the Ex-Parte Applicants have satisfied this threshold and have the sought orders for prohibition and certiorari. The Court of Appeal held in Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge Civil Appeal No 266 of 1996 inter alia as follows as regards the nature of the order of prohibition:-'Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.'

61. The Court in discussing the requirements for an order of certiorari stated:-'Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order of certiorari and that is all the court wants to say on that aspect of the matter.'

62. The Ex-Parte Applicants were therefore required to establish the prosecution acted illegally, irrationally, or that there was procedural impropriety in arriving at its decision. In the Ugandan case of Pastoli v Kabale District Local Government Council & Others, (2008) 2 EA 300 at pages 303 to 304 thus:'In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph 'E'.Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to decide. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).'

62. The entire representation by the Ex-parte Applicants centered on their motion being undefended as the basis of the grant of the prayers sought. There was lack of clarity on the impugned decision made on July 9, 2020 and August 9, 2021 and all subsequent decisions sought to be quashed and/or prohibited. The Court finds the prayer to be an omnibus prayer and that a decision to prosecute is a one-time decision specific to a crime and cannot be continuing and or evolving.

62. The Court is persuaded that the 2nd Respondent is subject to judicial review jurisdiction while exercising his powers under Article 157 of theConstitution as submitted by the Interested Party and associate with the holding in the Case of Kenya Commercial Bank Ltd and 2 Others v Commissioner of Police and Another Nairobi Petition No 218/2012[2013] e KLR that: -'The office of DPP and Inspector General of the National Police Service are independent offices and the court would not interfere in the running of their offices and exercise of their discretion within the limits provided by the law unless the facts disclose a violation of the rights and fundamental freedoms guaranteed under theConstitution'.

62. The Application has extensively attempted to draw the Court into the analysis of evidence which should be done before the Trial Court and not the Constitutional Court as was held in the case of Republic v Commissioner of Police and Another Ex-parte Michael Monari and Another [2012] eKLR.

62. This Court sitting on judicial review, is only concerned with the process leading to the making of the decision and the Court should not go into the merits of the decision itself. InMunicipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No 185 of 2007[2002] eKLR, the Court of Appeal held that: -'The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a Court hearing a matter by way of judicial review is concerned with and such Court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal Court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review'.

62. The Court cannot review the impugned decision to charge on merit as was held in the case of Patrick Ngunjiri Muiruri v DPP [2017] eKLR, regarding the standard deployed by the Court to scrutinize the DPP’s use of his charging authority: -'The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammelled, they are not to be exercised whimsically. While the Court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.'

62. InR v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, the Court further expounded on principle in the following words: -'It is for this reason that while the DPP has complete discretion and full autonomy to determine whether and against whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has a prosecutable case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp Kipngeno Arap Ngeny (High Court Civil App No 406 of 2001), the Court stated thus:A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.'

62. The Court is alive to the determination of and outcome favorable to the Ex-Parte Applicants, in Nakuru ELC Civil Case No 43B of 2016 Douglas Musa Machage v Samuel Ngigi Kiruri & Another, that would vindicate their contractual rights with the interested party.

62. The Court thus finds the application to be without merit and the same is hereby dismissed with no orders as to costs.It is so Ordered.

In the Presence ofMr. Ratemo Advocate for the Ex-Parte ApplicantsRespondents-AbsentInterested Party-AbsentSigned, Dated and Delivered Virtually at Nakuru onThis 5thJuly 2023. ............................................Mohochi S.MJUDGE