1.Before me is an ex-parte chamber summons dated April 15, 2021 brought under order 53 rules 1, 2, 3 and 4 of the Civil Procedure Rules, as well as the Law Reform Act (cap 26) Laws of Kenya, filed by the applicant through counsel M/s Njiru Boniface & Company.
2.The application seeks four (4) orders, one of which has been spent as follows –1.(Spent)2.The court be pleased to grant the applicant leave to apply for judicial review orders in the nature of certiorari to bring to this court in order to be quash the decision made on April 11, 2021 by the 1st and 2nd respondents herein the Inspector general of police and the Director of public prosecutions respectively or those officers acting by them or through them to arrest, institute criminal proceedings or prosecute the applicant in Kilungu SRM Criminal Case No 225 of 2021 between The Republic of Kenya and Pauline Mwikali Kaanzo.3.The court be pleased to grant leave to the applicant to apply for an order of prohibition prohibiting the senior resident magistrate – Kilungu or any magistrate under her or any magistrate in the Republic of Kenya from hearing, taking notes or recording any evidence whatsoever concerning Kilungu SRM Criminal Case No 225 of 2021 between Republic of Kenya and Pauline Mwikali Kaanzo.4.The grant of leave herein do operate as a stay of the proceedings pending before the senior resident magistrate – Kilungu SRM Criminal Case No 225 of 2021, The Republic of Kenya and Pauline Mwikali Kaanzo.
3.The application has grounds on the face of the ex parte summons that the applicant is Treasurer of mamukii society comprising 2,500 persons, that their parents prior to colonialism dwelt on land in Kiima Kiu Location and that their land was unlawfully taken away and title land reference 1748 Kiu, issued in 1948 to a white settler Robin Woodcraft Stanley the grandfather of the complainant, which rendered the previous owners as squatters in their own land measuring 5048 acres.
5.As the applicant sought that leave to institute judicial review proceedings, if granted, do operate as a stay of pending criminal proceedings, I ordered that the application be served for inter partes hearing. In response, the interested party Robin Alan Stanley filed a replying affidavit he swore on May 20, 2021 in which he deponed that the registered owner of the subject land (property) is a company known as Stanley & Son Ltd, and that he is the managing director thereof. It is deponed specifically that the present application is an attempt to delay proceedings in Kilungu SRM Criminal Case No 225 of 2021, and that the applicant had also filed ELC Constitutional Petition No E004 of 2021 Makueni claiming that she and others own the subject land (property). The interested party thus opposed the present application.
6.In response to the above replying affidavit of the interested party, the applicant Pauline Mwikali Kaanzo filed a supplementary affidavit which she swore on a date not indicated. The affidavit annexes several documents. However, as the affidavit is not dated, it is defective, and I will not take it into further consideration.
7.The Director of public prosecutions (2nd respondent) on their part, filed a replying affidavit sworn on July 6, 2021 by Ann Penny M Gakumu a senior principal prosecution counsel opposing the application. It was deponed therein that the application was an abuse of the process of court and merely intended to bar the 1st 2nd and 3rd respondent from performing their constitutional mandates.
8.It is also averred in the said replying affidavit of the Director of public prosecutions, that there were no sufficient reasons or grounds given by the applicant for the request for stay of the pending criminal proceedings in Kilungu magistrates court, and that the applicant merely wanted to delay the criminal proceedings in an attempt to destroy the subject matter and render the criminal proceedings nugatory.
9.The 1st and 3rd respondents, on their part, through the Attorney General filed grounds of opposition, in the following terms –1.The applicant has not established in a high degree of preciseness any administrative action or inaction under article 47 of the Constitution that the 1st respondent has omitted to warrant a judicial review.2.That the alleged violated rights claimed by the applicant falls under article 25 of the Constitution and not article 47 thus should be ventilated through a petition in a constitutional court but not the judicial review court.3.That order 51 rule 1, 2 and 3 of the Civil Procedure Rules on the institution of judicial review has since been overtaken by events and is no longer functional after enactment of Fair Administrative Actions Act, 2015.4.That the role of the 1st respondent is to receive and investigate criminal cases and to keep peace and order by subverting any action that might sow discord and disharmony in the society.5.That prosecution of criminal cases is not the mandate of the 1st respondent hence there is no way the 1st respondent would have initiated prosecution against the applicant.6.That allowing the applicant to file a substantive application by way of judicial review and granting prayers prayed by the applicant in the application will interfere with the independence of the 3rd respondent.7.That the issues of historical land injustices raised by the applicant should be taken to the Land and Environment Court with competent jurisdiction to determine land matters as this court has no jurisdiction to ventilate those issues in substance by way of judicial review.8.That the applicant has not established how the 3rd respondent is impartial and has violated her right to fair hearing. A mere apprehension that there might be impartiality is not enough and her application for leave to file judicial review is just a delaying tactic to evade the rule of law.9.That the application is just a mere forum shopping meant to arm twist the 3rd respondent into yielding to her pressure.10.That the applicant is using her claim over the land as a Trojan horse to break the laws of the land and breach peace and order in the society.
10.The application was canvassed through filing of written submissions. The applicant’s counsel Njiru Boniface & Company filed submissions on September 28, 2021. The 2nd respondent (Director of public prosecutions) filed their submissions on October 27, 2021. The interested party through BM Musau & Company advocates, filed submissions on November 10, 2021. The Attorney General for 1st and 3rd respondents did not file written submissions, and I take it that they rely on the grounds of opposition filed.
11.This is a chamber summons for leave to file judicial review proceedings. It is also requested that if leave is granted, then the said leave do operate as a stay of proceedings in Kilungu SRM Criminal Case No 225 of 2021 – Republic vs Pauline Mwikali Kaanzo.
12.Though in the grounds of opposition filed by the Attorney General, it is suggested that such applications for leave to file judicial review proceedings are no longer governed by order 53 of the Civil Procedure Rules, in my view they are so governed. However, presently, the relevant laws applicable in such applications have been expanded to include the Constitution of Kenya 2010 and the Fair Administrative Actions Act.
13.Having considered the application, documents filed and the submissions of counsel, in my view, this application for leave to file judicial review proceedings lacks merits and is for dismissal.
14.This is so because in such an application, an applicant has to demonstrate a prima facie case with probability of success. In the present case however, though the applicant claims to be representing a group of inhabitants who are members of a registered society, neither the society registered officials, nor any of its members or trustees, is a party. There is also no authority filed for her to sue for the society or the members.
15.Secondly, though there are three named respondents in the application and one interested party, the applicant has not specifically demonstrated or pointed out any illegality committed or purported to have been committed by any of them. Indeed, the applicant has complained about historical land injustices, but the correct parties for pursuit of correction of land injustices, such as the Attorney-General and the National Land Commission are not parties herein. In my view, therefore, what the applicant appears to be doing is merely to bring the present application to prevent the law enforcement agents (the respondents), from enforcing the law of the land. The institution of criminal proceedings like has been done herein, is one method of enforcing the law, and no violation of the law has been demonstrated by the applicant, to the criminal process herein.
16.There being no malpractice or breach of the law demonstrated by the ex-parte applicant against the Inspector general of police or the Director of public prosecutions, or the senior resident magistrate’s court, in my view the application for leave to file judicial review proceedings herein, which are proceedings meant to correct illegal, unfair or inappropriate actions stands misplaced and with no legal basis. Thus the application has to be dismissed as no prima facie case with probability of success has been demonstrated by the ex parte applicant.
17.I must state here however for the record, that the applicant either alone or with others can pursue a claim for historical land injustices for the land in question, but that claim will not be for this judicial review court, unless there is a claim that officials or authorities have violated the law, or are guilty of violation of legal procedure or principles of fairness and natural justice.
18.As for this application, in my view, it has not satisfied the threshold of prima facie case with probability of success for this court to grant the applicant leave to file judicial review proceedings. I thus find no merits in the application, and dismiss the same and decline to issue any of the orders sought.
19.As for costs, this being a matter in the nature of public interest, I order that parties bear their respective costs of the application.
20.Lastly if any interim orders have been issued herein, same are hereby vacated.