Judicial review - inquiry into a co-operative society - findings recommending surcharge of committee members and employees - applicant seeking leave to apply for prohibition and certiorari - leave granted - preliminary objection on the ground that the applicant had adopted the wrong procedure and should have appealed to the Co-operatives Tribunal - AFFIDAVIT - form of affidavit - verifying affidavit objected to on the ground that it did not contain facts - whether the pleadings were defective and in violation of Order 53 of the Civil Procedure Rules

Civil Practice & Procedure - Striking out - application for - striking out grounds of opposition - where grounds of opposition are filed and served out of time - whether the court should disregard such pleadings - order 50 rule 16 and section 3A of the Civil Procedure Code

Kenya Anti-Corruption Commission v Kamlesh MD Pattni & others (No 2)

High Court, at Nairobi December 22, 2003

Mwera J, Ojwang Ag J

Civil Suit No 1111 of 2003

Civil Practice and Procedure - fundamental rights and freedoms – enforcement of - where violation of fundamental rights is alleged – proceedings pending in the High Court – how to apply for determination of such an allegation – order L of the Civil Procedure Rules (cap 21 sub leg) – consequence of such an application.

Constitutional law - fundamental rights and freedoms - where breach of such rights is alleged in proceedings before the High Court – procedure to be followed - how the allegation of violation is to be determined.

The suit in this case was initiated by originating summons and within it there was an interlocutory application. However, the flow of litigation could not proceed because, inter alia, many parties made interlocutory ex parte applications and claims that fundamental rights had been violated.

There were opposing views on the mode of disposal of the fundamental right claims. The defendants argued that the emergence of the constitutional applications dictated that the matter be brought before the Chief Justice for the setting up of a constitutional bench. This was critical as it would pave the way for filing and serving of essential documents.

The plaintiff contended that the Chief Justice had already given trial directions. He had appointed a two-judge bench which was competent to determine all relevant questions including constitutional ones. It was submitted that once the Chief Justice has named a bench, there was no provision for reference-back and the bench must take its own decisions and proceed with its tasks.

Held:

1. Where violation of fundamental rights and freedoms is alleged in any proceedings pending in the High Court, application for determination of the question shall be made by notice of motion. The provisions of order L of the Civil Procedure Rules (cap 21 sub leg) shall apply as far as is practicable.

2. Pending the determination of whether there is violation of fundamental rights and freedoms in any proceedings in the High Court, all further proceedings shall be stayed.

3. Being brought within the framework of the Anti Corruption and Economic Crimes Act, 2003, the suit in this case attempted to address issues of legislative policy which were of considerable public interest.

4. A commitment to conduct the litigation in a business like manner and in accordance with the law should be the primary feature of this suit.

5. The interlocutory applications within the suit were quite similar so they should be taken together in the course of prosecution of the main suit.

6. The constitutional matters raised in the suit should be heard together before a duly constituted constitutional Bench.

7. The question of setting up of a constitutional Bench is referred to the Chief Justice for appropriate action.

8. After the constitutional matters are disposed of the suit should proceed on a disciplined programme of hearing without delay if it still has legal foundation.

9. Issues of law and procedure such as those canvassed in ex parte interlocutory applications should be taken up at a later stage, within the framework of the proceedings of the main suit.

Cases

No cases referred to.

Statutes

1. Constitution of Kenya section 60

2. Civil Procedure Act (cap 21) section 3A

3. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI, rule 12; order XL rule 1 - 4

4. Anti-Corruption and Economic Crimes Act, 2003 section 56(4)

Advocates

Dr Kamau Kuria for the Plaintiff

Mr Kalove for 1st, 2nd Defendants

Mr Ochieng Oduol for 5th - 11th, 14th - 17th Defendants

Mr Kamara and Ramesh Manek for 13th Defendant

Mr Arwa for the Interested Party

Mwaura v Republic

High Court, at Nairobi December 19, 2003

Ombija J

Criminal Case No 63 of 2002

Criminal Practice and Procedure – suspension of trial judge - consequence of suspension - mistrial.

The accused person was arrested and arraigned in court on 13th day of March 2003. Having pleaded not guilty, the case proceeded for hearing wherein the prosecution called and tendered evidence from 8 witnesses.

Further hearing was scheduled for 20th November 2003. On 15th October 2003 the trial judge was suspended from his duties by the President of the Republic of Kenya through Gazette Notice No 7282 of 2003. A tribunal was set up to investigate his conduct together with 23 other judges who were equally suspended.

Held:

1. Where a trial judge ceases to have jurisdiction, the trial must be declared a mistrial.

2. The trial of an accused person ought not be tied to the uncertain destiny of a particular judge awaiting investigations.

Application allowed.

Cases

Republic v Stanley Njoroge Munene & 12 others Nairobi High Court

Criminal Case No 18 of 2000

Statutes

No statutes referred.

Advocates

Mr Opolo for the Accused.