Republic v Office of the Director of Public Prosecutions & 2 others; Malala & 7 others (Interested Parties) [2023] KEHC 2772 (KLR)

Republic v Office of the Director of Public Prosecutions & 2 others; Malala & 7 others (Interested Parties) (Judicial Review Application E003 of 2022) [2023] KEHC 2772 (KLR) (24 March 2023) (Ruling)

Neutral citation: [2023] KEHC 2772 (KLR)

Republic of Kenya

In the High Court at Kakamega

Judicial Review Application E003 of 2022

WM Musyoka, J

March 24, 2023

Between

Republic

Applicant

and

Office of the Director of Public Prosecutions

1st Respondent

Director of Criminal Investigations

2nd Respondent

Attorney-General

3rd Respondent

and

Cleophas Wakhungu Malala

Interested Party

Joel Wekesa Barasa

Interested Party

Marvin Kombo Omani

Interested Party

Ababu Shargo Borcherd

Interested Party

Cecil Ambeyi Muyuka

Interested Party

Joyce Kavere Abachi

Interested Party

Hakim Juma Ambani

Interested Party

Shakila Amboye Owingwa

Interested Party

Ruling

1. The application that am tasked with determining is dated 18th July 2018. It seeks, in the main, provision of certain documents to the ex parte applicants, by the respondents, to facilitate prosecution of their case.

2. The said application was before me on 20th July 2022, when I was informed, by the ex parte applicants, that they had not served it, whereupon I directed that the same be served, and it be canvassed by way of written submissions. I fixed it for mention on 24th October 2022, ostensibly to confirm service, and filing of replies and submissions, and allocation of a date for ruling. When the matter was mentioned on 24th October 2022, I was informed that service had been done, and I allocated a date for ruling, 3rd February 2023.

3. I am unable to prepare the ruling, for I have established, from the record, that there is no evidence that the application, dated 18th July 2022, was ever served on the respondents, the persons or entities who or that are supposed to supply the documents sought in that application. There is no affidavit of service to evidence service of the said application. All I see on record is a mention notice, placed in the record without an affidavit, and it relates to the mention scheduled for 24th October 2022. It bears a receipt stamp by the 2nd respondent, but not the other respondents.

4. As the respondents have never been served with the application that I am meant to write a ruling on, it would not be just to consider granting orders against them, when they have not had a fair hearing. Service of court process is cardinal to a fair hearing.

5. Let the ex parte applicants comply with my directions of 20th July 2022, before any further step can be taken in the matter. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 24THDAY OF MARCH 2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Dr. Malalah, instructed by Malalah & Company, Advocates for theex parte applicants.