Republic v Director of Public Prosecution & 2 others; Ayoo (Exparte Applicant) (Miscellaneous Application E045 of 2022)  KEHC 15493 (KLR) (Judicial Review) (17 November 2022) (Ruling)
Neutral citation:  KEHC 15493 (KLR)
Republic of Kenya
Miscellaneous Application E045 of 2022
AK Ndung'u, J
November 17, 2022
Director of Public Prosecution
Director of Criminal Investigations
Chief Magistrate Court Milimani Law Courts
Gilbert Oketch Ayoo
1.The ex parte Applicant by a Chamber Summon dated 14th April 2022 sought for leave to apply for Judicial Review orders. The court in its Ruling dated 20th April 2022 granted prayers 2 and 3 of the said application. The Court however, directed that on whether the leave should operate as a stay of the impugned proceedings, the issue be canvassed by way of skeletal written submissions. This question forms the subject of this Ruling.
2.The ex parte Applicant filed his Replying Affidavit (to the Respondents Grounds of Opposition) dated 24th May 2022, a Further Written Submission dated 2nd June 2022; while the 1st Respondent filed their Written Submissions dated 23rd May 2022, the 2nd & 3rd Respondents filed their Written Submissions dated 9th May 2022. Also, the 3rd Respondent filed their Grounds of Opposition dated 9th May, 2022.
3.In his Replying Affidavit, the ex parte Applicant averred that this court has an overriding duty to promote justice and prevent injustice done by the Respondents herein; That from this duty there arises an inherent power to stay; an indictment (or stop a prosecution) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court or infringement of the applicant's fundamental rights.
4.Further, that if stay is not granted before hearing and determination of the substantive motion the applicant shall lose tremendously and the application if successful be rendered nugatory; That the applicant shall suffer substantial loss unless the stay is granted; That sufficient cause exists to warrant the grant of a stay of the charging and prosecution of the applicant till substantive motion is determined; and That the applicant has demonstrated sufficient cause to warrant the grant of a stay of the charging and prosecution in the lower court.
5.The ex-parte Applicant in his submissions, in sum, submitted that the Respondents decision and action to summon and charge him was un-procedural, unreasonable, illegal, unconstitutional and an infringement of his fundamental rights under the law, as the Applicant did comply with all regulatory requirements of the survey work done.
6.In particular, the Applicant submitted that the applicable law on whether leave so granted should operate as a stay is under Order 53 Rule 1(4) of the Civil Procedure Rules, and relied on the case of Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006
7.The Applicant contended that the main consideration in an application seeking orders for leave granted to operate as a stay is, whether the proceedings would be rendered nugatory should stay not be granted. Reliance was placed on the case of R vs Richard Kerich & 5 others  eKLR.
8.The ex parte Applicant maintained that he has demonstrated through the applications and supplementary affidavit dated the 24th May 2022 that he stands to suffer loss tremendously if the stay order is not granted. That as a licensed surveyor the intended charges have put his reputation and profession in jeopardy. Further, that to prevent cancellation of the survey jobs done by him, and ongoing ones too, that this court has a duty to stay the lower court proceedings till the substantive motion is heard and determined to save the applicant from being meted with heavy penalties by his clients.
9.In opposing the application to have the leave granted operate as a stay, the 1st Respondent asserted that in this instant matter, the outcome will not be rendered nugatory if a stay is not granted. Also, that there is no evidence that the decision of the Magistrate's court is imminent; and that a criminal trial is not a one off event.
10.The 1st Respondent contended that another factor for consideration in the courts discretion on whether or not to grant a stay in judicial review proceedings is that of the public interest. Reliance was placed on the cases of R vs Capital Markets Authority ex parte Joseph Mumo Kivai & Another (2012) e KLR; R (H). vs Ashworth Special Hospital Authority; Re Bivac International SA (Bureau Veritas) (2005) 2 EA 42, and R VS Monopolies and Mergers Commission ex parte Argyll Group PLC (1986) 1 WLR 763.
11.It was their submission that the leave granted should not operate as stay as the case has a public interest aspect; that the decision to charge has already been made; and that the forgery involves property of the Zambian High Commission. It was the 1st Respondents position that the Applicant herein simply seeks to curtail the mandate of the criminal justice system actors, as set out in the Constitution, by attempting to circumvent a trial process against him without any justifiable reasons; as he has failed to demonstrate with specificity how the Respondents have acted ultra vires or in bad faith.
12.The 2nd and 3rd Respondent in opposing the leave granted to operate as a stay submitted along lines similar to the 1st Respondent’s. Further, that the threshold for granting a stay of proceedings is however a high one. Unless a law being challenged will cause irreparable harm to those who are supposed to comply with it, the courts will be reluctant to suspend the operation of such a law. The cases of Republic V County Council of Kiambu & Another Ex-parte Githunguri dairy Farmers Co-operative Society  eKLR, and R V Secretary of State for Transport Ex P. Factor tame (No.2)  A.C. 603 Hl were relied on.
13.The 3rd Respondent in their filed Grounds of Opposition opposed the leave granted from operating as stay on the following grounds, that:a.THAT the court does not have jurisdiction to deal with this matter.b.THAT there are no allegations of incompetence or impartiality on 3rd respondents’ part to merit prohibiting if from exercising its adjudicatory mandate over the matter.c.THAT the respondent has mandate under the magistrates Act to here and determine the matter.d.THAT the Applicant has not raised any grounds to show how he will suffer if the stay is not granted.e.THAT should the applicant be charged, he has an opportunity before the trial court to prove and demonstrate innocence.f.THAT the application herein is intended to curtail the statutory obligations and duties of the Respondent hereing.THAT the Application is premised on explanations that can and ought to be made before the requisitioning officer and thus this Hon. Court would be usurping the statutory mandate of the Respondents if it were to stay the proceedings.h.THAT the application is an abuse of court process.
14.That in the circumstances and based on the foregoing reasons the Application is therefore baseless, misconceived and devoid of any merit and leave sought to operate as stay should not be granted.
15.Having considered the materials on record, I find that the issue for determination is: Whether the ex parte applicant has achieved the legal threshold for the grant of an order staying the impugned prosecution pending the determination of the substantive motion, herein.
16.The applicable law on whether leave granted should operate as a stay is Order 53 Rule 1(4) of the Civil Procedure Rules, which provides as that;
17.The High Court has previously pronounced itself on a similar issue as the one in this instant case. This Court in the case of Republic v Director of Public Prosecutions & 2 others Ex Parte Jayesh Umedlal Shanghavi Victoria Commercial Bank Limited (Interested Party)  eKLR cited the case of Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 where Maraga J (as he then was) observed that:
18.It is then evident that in an application seeking orders for leave granted to operate as a stay; the main consideration is whether the proceedings would be rendered nugatory should stay not be granted.
19.I need to point out at this juncture that there is an error apparent on the face of the court’s record in that, the court considered the Chamber Summons application dated 14th April, 2022 and, being satisfied that an arguable case had been established, granted leave to institute judicial review proceedings in terms of prayers 2 and 3. Inadvertently, in its directions dated 20th April, 2022, the court at direction 3 indicated that the question of leave shall be canvassed through skeletal written submissions. This direction was in error, leave having been granted. The said error has caused the respondents to submit on that aspect of the proceedings when, in fact, that was unnecessary as the question was already determined. That mix up is regretted.
20.Turning back to the issue at hand, the Applicant seeks to stay his imminent charging and prosecution in the Milimani MCCR.No. E328 of 2022 instituted against him by the 2nd and 3rd Respondents; however, the Applicant has not taken plea having filed this judicial review application - against the Respondent’s decision to charge and prosecute him.
21.This court is guided by the observations in the case of R vs Richard Kerich & 5 Others  eKLR where it was stated that once the court has granted leave as in this case, the question of whether the Application is arguable becomes moot as that is the basis upon which leave was granted. The relevant consideration then becomes one centred on whether the substantive Motion would be rendered nugatory if stay is not granted. In the words of Odunga J in the above case; ‘’In my view, it is only when the imminent outcome of the decision challenged is likely to render the success of the judicial review nugatory or an academic exercise that the court would stay the said proceedings the strength of the applicant’s case notwithstanding.’’
22.Aburili J correctly illuminated the applicable principle in regard to the grant of an order for leave operating as a stay of criminal proceedings in Grace Wairimu Sorora v Chief Magistrate Criminal, Division Nairobi & Director of Public Prosecution  eKLR where she stated;
23.In the instant case, it was contended that the lower court listened to the ex parte Applicant’s request and had scheduled the mention of the case to be on 3rd August 2022 for further direction as to whether the substantive motion shall have been heard and determined by this court.
24.It is clear that the lower court case, Milimani MCCR.No. E328 of 2022, is in its early stages and there is no evidence that the decision of the Magistrate’s court is imminent. A criminal trial is not a one off event. Further, there is no demonstration that the outcome of the substantive motion herein will be rendered nugatory. The Applicant retains the right to approach this court should the decision in the magistrate’s court approach earlier than the determination of the substantive motion.
25.The right to a fair hearing ring fenced under Article 50 of the constitution remains dependable armour for the Applicant in the course of the trial at the magistrate’s court. If there be any infringement of the Applicant’s rights at the trial, this court would readily intervene to restitute such rights. Unless there is a clear demonstration of abuse of the criminal process, the court should be slow to interfere with the 1st Respondent’s constitutional mandate to institute and undertake criminal prosecution. At this stage therefore, it is my considered view that the due process of the law be allowed to take its course while energy should be directed at prosecuting the substantive motion to help the court determine the propriety of the charges and the prosecution. The outcome thereon will not be rendered nugatory since, as noted above, this judicial review is certain to be determined before the criminal trial and in any event the Applicant would be at liberty to approach the court should the position be otherwise.
26.Flowing from the foregoing, to my mind, a case for the leave granted herein to operate as a stay has not been established. Resultantly, prayer 4 of the Chamber Summon dated 14th April 2022 is declined.
DATED SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2022..............................................A.K. NDUNGUJUDGE