A judicial review court ought to carry out a merit review of a case when a party approaches it under the provisions of the Constitution
The 1st to 3rd appellants were senior employees of the 3rd respondent, a subsidiary of British American Asset Managers Company (K) Ltd (Britam). Sometime in 2013 and during the course of the appellants’ employment, the 3rd respondent entered into a joint-venture project with Acorn Group Limited (Acorn) for the development of real estate and other business ventures, within Nairobi County and elsewhere.
A dispute arose between Britam and the appellants resulting in the resignation of the 1st to 3rd appellants. Subsequently, the 1st to 3rd appellants formed a rival company, the 4th appellant. As a consequence, the 3rd respondent instituted various civil suits against the appellants and Acorn seeking restitution of funds allegedly fraudulently transferred by the 1st to 3rd appellants to Acorn and its affiliates without its approval. The 3rd respondent also lodged complaints against the appellants with their various professional bodies. In addition, criminal proceedings against the appellants were instituted upon complaints lodged by the 3rd respondent. Aggrieved, the appellants filed two judicial review applications and a constitutional petition at the High Court. The suits were determined separately.
Judicial Misc Case No 435 of 2014, Republic v Director of Criminal Investigation Department & 4 others Ex-Parte Edwin Harold Dayan Dande & 4 others
The appellants sought an order of prohibition to prohibit the 1st respondent, Inspector General of the Police National Police Service (Inspector General) and the 2nd respondent, Director of Criminal Investigation Department (DCI) from arresting, harassing, and or otherwise interfering with their liberty and property. The remedies sought were premised on inter alia grounds that the Inspector General and DCI had ulterior motives in arresting them which amounted to abuse of power by the latter and that the manner in which they were handled during arrest, interrogation, and process leading to the decision to charge them by the 4th respondent, the Director of Public Prosecution (DPP) was discriminatory, unfair and irrational.
The High Court declined to grant the reliefs sought by the appellants stating that it would be pre-emptive and presumptuous to do so as the DPP was yet to make any decision on the matter. The court nonetheless issued an order prohibiting the Inspector General and DCI from taking any action in the nature of criminal proceedings until the DPP had determined whether to charge the appellants or not. Subsequently, the DPP decided to institute criminal proceedings in which the appellants were charged with two counts of theft by servant. Consequently, the 1st to 3rd appellants filed another judicial review application.
Judicial Review Application No 8 of 2017, Republic v Director of Public Prosecutions & 2 Others Ex Parte Edwin Harold Dayan Dande & 3 Others
In the application, the 1st - 3rd appellants applied for orders of certiorari to quash the decision of the DPP to institute criminal proceedings against them as well as the resultant criminal proceedings and prohibition barring the Chief Magistrate’s Court from hearing and determining the criminal case. The prayers were premised on inter alia grounds of abuse of power and unreasonableness by the DPP. They also claimed that the decision to prosecute them was in contravention of the order made by the High Court in Judicial Review Application No 435 of 2014 staying their arrest and prosecution pending the determination of their application for stay of execution. The High Court dismissed the appellants' case and stated that the power to quash criminal proceedings should only be exercised in exceptional cases.
Petition No 539 of 2016, Edwin Harold Dayan Dande & 3 others v British American Investments Co (K) Ltd & another
The 1st to 3rd appellants in the petition prayed for a declaration that the respondents violated their right to access information and an order compelling the respondents to provide them with the settlement agreement entered into between the 3rd respondent and Acorn in HCCC Nos 352, 353, 354, 361, and 362 of 2014; the forensic audit performed by KPMG on the books of the 3rd respondent; and the legal audit performed by Messrs Coulson Harney, Advocates. The prayers were premised on the grounds inter alia that the information and documents sought were for the vindication of the appellants’ rights to human dignity and for the correction or deletion of untrue or misleading information affecting them. The High Court held that the appellants’ rights to access information were violated and issued an order compelling the respondents to provide them with the documents sought.
The three decisions of the High Court triggered the same number of appeals at the Court of Appeal.
Civil Appeal No 246 of 2016, Edwin Harold Dayan Dande & 4 others v Inspector General, National Police Service & 2 others
The appeal was against the judgment of the High Court in Judicial Review Misc Application No 435 of 2014. The Court of Appeal dismissed the appeal and agreed with the findings of the High Court that the settled standards of judicial review known to Kenya’s realm limit a judicial review court’s intervention in any application for a merit review. In addition, it determined that, since no decision had at that point in time been made to charge the appellants, any such findings by the High Court would not only have been prejudicial but also in direct contravention of the constitutional provisions on the independence of the Inspector General and DCI in the investigation of crimes.
Civil Appeal No 378 of 2018, Edwin Harold Dayan Dande & 3 others v Director of Public Prosecutions & 2 others
The appeal was against the decision of the High Court in Judicial Review Application No 8 of 2017. The Court of Appeal held that the appeal was devoid of merit and dismissed it with costs on the main ground that there was no order of stay by any court directed at the DPP barring or prohibiting him from instituting a criminal case against the appellants as at the time he decided to charge them.
Civil Appeal No 147 of 2019, British American Investments Co (K) Ltd & Another v Edwin Harold Dayan Dande & 3 others
The 3rd respondent and the 6th respondent filed the appeal seeking that the judgment and decree of the High Court in Petition No 539 of 2016 be set aside and substituted with an order dismissing the appellants' petition with costs. The Court of Appeal allowed the appeal with costs holding that the trial court erred in granting the orders sought. The court observed that a party seeking information from a private entity needed to show the right he sought to exercise or protect, the information which was required in order to exercise or protect the right, and how that information would assist him in exercising or protecting the right. The Court of Appeal further observed that a party requesting information from a private person must place before the court a demonstrable and sufficient link between the right sought to be exercised or protected and the information requested.
Dissatisfied by the judgments of the Court of Appeal, the instant consolidated appeal was filed before the Supreme Court.
- When could the High Court in exercising its judicial review jurisdiction carry out a merit review of a case?
- What was the nature of judicial review under the Constitution of Kenya, 2010?
- What were the requirements to be met for the enforcement of the right to access information held by another person and required for the exercise or protection of a right or fundamental freedom?
- What was the nature of the right to access information?
- What were the guidelines to be considered by courts when reviewing prosecutorial powers?
- What were the requirements for one to appeal to the Supreme Court as of right in any matter involving the interpretation or application of the Constitution?
- What was the nature of the doctrine of mootness?
- An appeal lay to the court under article163(4)(a) of the Constitution of Kenya, 2010 (Constitution), if the issues placed before it revolved around the interpretation and application of the Constitution and the interpretation or application of the Constitution had formed the basis for the determinations at the superior courts below the court and the same issue had therefore progressed through the normal appellate mechanism to reach the court.
- From a perusal of the record, the issues before the superior courts revolved around the interpretation and application of the Constitution. The basis of the superior courts’ decisions revolved around the interpretation and application of the Constitution, and therefore, the appellants had properly invoked the jurisdiction of the court under article 163(4)(a) of the Constitution.
- The doctrine of mootness required that controversy must exist throughout judicial proceedings including at the appellate level. An appeal or an issue was moot when a decision would not have the effect of resolving a live controversy affecting or potentially affecting the rights of parties. Such a live controversy must be present not only when the action or proceeding was commenced but also when the court was called upon to reach a decision. The doctrine of mootness was therefore based on the notion that judicial resources ought to be utilized efficiently and should not be dedicated to an abstract proposition of law and that courts should avoid deciding on matters that were abstract, academic, or hypothetical.
- There existed no live controversy on the question of restraining the Inspector General, DCI and DPP from arresting and charging the appellants as the adverse decision to prosecute the appellants had already taken place and on the existing facts, there was no imminent threat to arrest or charge the appellant again.
- Judicial review was introduced to Kenya from England in 1956 through sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court. Under that system, the High Court could issue orders of mandamus, prohibition, and certiorari. The grounds for the issuance of such orders were borrowed from common law. Prior to the promulgation of the Constitution of Kenya, 2010, there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan courts found in sections 8 and 9 which constituted the substantive basis for judicial review of administrative actions on the one hand, and, order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.
- The entrenchment of judicial review under the Constitution of Kenya, 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review was no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, article 47 of the Constitution provided that every person had a right to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair.
- The entrenchment of judicial review in the Constitution had led to the emergence of divergent views on the scope of judicial review. The first group postulated that judicial review was concerned with the process a statutory body employed to reach its decision and not the merits of the decision itself while the second group opined that under the current constitutional dispensation, courts could delve into both procedural and merit review in resolving disputes.
- When a party approached a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party filed a suit under the provisions of order 53 of the Civil Procedure Rules and did not claim any violation of rights or even violation of the Constitution, then the court could only limit itself to the process and manner in which the decision complained of was reached or action taken and not the merits of the decision per se.
- The appellants invoked the judicial review jurisdiction of the High Court alleging that their rights to among others, fair administrative action under article 47 of the Constitution were violated, and applied for judicial review orders under article 23 of the Constitution. The appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, that required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided.
- A court could not issue judicial review orders under the Constitution if it limited itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules. The dual approach to judicial review existed but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings.
- The Office of the Inspector General of the National Police Service was established under article 245(1) of the Constitution. The power to investigate crimes was vested in the Inspector General by dint of article 245(4). Article 243(1) of the Constitution established the National Police Service, and the National Police Service Act gave full effect to that article. From a review of the constitutional and statutory provisions therein, the Inspector General and the Director, DCI had the mandate to perform multi-faceted functions as provided under articles 244 and 245 of the Constitution.
- A court should only interfere with the powers granted to the Inspector General and the DCI under articles 244 and 245 of the Constitution and under the provisions of the National Police Service Act if the constitutional and statutory provisions were not adhered to or if the actions were illegal and unlawful.
- A perusal of the record confirmed that even though the appellants alleged abuse of power by the Inspector General and DCI, no evidence was brought forth to prove that they actually acted beyond their constitutional mandate or that their actions amounted to an abuse of office. The appellants did not prove that the Inspector General and DCI abused their investigative or arrest powers as conferred by the Constitution and statute.
- The Office of Director of Public Prosecution was established under article 157 of the Constitution. The functions of the DPP were provided for under article 157(6). The Constitution provided an inbuilt limitation on the powers of the DPP under article 157(11) which provided that in exercising the powers conferred by the article, the DPP shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
- Article 157(10) of the Constitution anticipated the independence of the office of the DPP in the performance of its constitutional obligation, providing that in the exercise of its powers or functions, it shall not be under the direction or control of any person. That was important as it protected the integrity of a criminal process.
- The following guidelines were to be considered by courts when reviewing prosecutorial powers;
- where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or
- where it manifestly appeared that there was a legal bar against the institution or continuance of the proceeding, for example want of sanction; or
- where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, did not constitute the offence alleged; or
- where the allegations constituted an offence alleged but there was either no legal evidence adduced or evidence adduced clearly or manifestly failed to prove the charge.
- The record revealed that the appellants did not provide any evidence to prove that the Office of the DPP did not meet the expectations required of it under article 157(11) of the Constitution or that the action to prosecute them amounted to abuse of the process of the court. At the time of instituting the criminal proceedings, there was no legal bar preventing them from prosecuting the appellants. The charges the accused were facing constituted offences under the laws of Kenya and therefore, it was proper that they be subjected to the due process of the law. Their innocence was intact and there was no apparent risk that they would not face a fair trial where the duty lay on the DPP to prove their culpability.
- From section 193A of the Criminal Procedure Code, both civil and criminal jurisdictions could run parallel to each other and neither could stand in the way of the other unless either of them was being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner. The circumstances in the Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019)  KESC 32 (KLR) (16 July 2021) (Judgment), (Jirongo case) were different from the instant case. In the Jirongo case, it was proved that the criminal case was instituted to force the accused person’s hand to compromise the civil case between him and the complainant. Such unlawful action should not and could not be tolerated. However, in the instant case, the appellants did not prove that the same was perpetuated for ulterior motives or amounted to an abuse of the court process or office.
- The right to access to information was a fundamental right upon which other rights guaranteed in the Bill of Rights could be realized. That right encompassed the right to seek and receive information and was guaranteed to every citizen. Traditionally, the right to access to information had been utilized to render public authorities accountable and to promote transparency in the public sector. However, there had been a paradigm shift in substantial measures from the demand for information from public bodies to private bodies and that was an important guard against abuses, mismanagement, and corruption. Therefore, the codification of the right to information from private bodies in the Constitution was one of the major milestones in the protection of the right to access to information.
- Article 35 of the Constitution provided for the right to access to information. Similarly, section 4 of the Access to Information Act, No 31 of 2016 which was enacted to give effect to the rights under article 35 provided for the right of access to information held by the State and information held by another person and was required for the exercise or protection of any right or fundamental freedom. The right to access to information was also contained in several international conventions and treaties ratified by Kenya.
- The Access to Information Act defined both a public body and a private body under section 2. Under article 35(1)(b) of the Constitution, the right to access to information was not unlimited because a requester must, as a prerequisite, establish that he or she wished to exercise or protect a right and that access to the record was required in order to exercise or protect that right. A requester seeking to enforce his right under article 35(1)(b) needed to demonstrate the right to be protected; and that access to the information was required to exercise or protect that right. The appellants properly identified the rights that they sought to protect. The appellants did not establish a demonstrable link between the rights they intended to exercise or protected and the information requested.
- Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated);  KESC 8 (KLR)) — Explained
- Attorney General v Kituo Cha Sheria, Abebe Dadi Tullu & 6 others (Civil Appeal 108 of 2014;  KECA 773 (KLR)eKLR) — Applied
- Communications Commission of Kenya, Attorney General, Ministry of Information Communications and Technology, Signet Kenya Limited, Pan African Network Group Kenya Limited & Startimes Media Limited v Royal Media Services Limited, Nation Media Services Limited, Standard Media Group Limited, Consumer Federation of Kenya (COFEK), Gotv Kenya Limited & West Media Limited (Petition 14, 14A, 14B & 14C of 2014;  KESC 13 (KLR) eKLR) — Explained
- Erad Suppliers & General Contractors Ltd v National Cereals & Produce Board (SC Petition No 5 of 2012; eKLR) — Applied
- Institute for Social Accountability & another v National Assembly & 3 others & 5 others (Petition 1 of 2018;  KESC 39 (KLR)) — Explained
- Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others, (SC Petition No 4 of 2012;  eKLR) — Explained
- Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019;  KESC 32 (KLR)) — Applied
- Joho, Hassan Ali & Another v Shahbal, Suleiman Said & 2 Others, (SC Petition No 10 of 2013; eKLR)
- Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019;  KECA 366 (KLR)  eKLR) — Applied
- Khalid, Hussein & 16 Others vs Attorney General & 2 others ( eKLR) — Applied
- Mahamud, Mohamed Abdi v Mohamad, Ahmed Abdullahi, Ahmed Muhumed Abdi, Gichohi Gatuma Patrick & Independent Electoral and Boundaries Commission (Election Appeal 2 of 2018;  KECA 677 (KLR) eKLR) — Explained
- Maina & 4 others v Director of Public Prosecutions & 4 others (Constitutional Petition E106 & 160 of 2021 (Consolidated);  KEHC 15 (KLR)) — Applied
- Meixner & Another vs The Attorney General ((2005)1KLR189) — Applied
- Moracha, Martha Kerubo v University of Nairobi ( eKLR) — Applied
- Muthiga, Benson Wachira vs Nairobi City County Public Service Board & another ( eKLR) — Applied
- Nairobi Law Monthly Company Ltd vs Kenya Electricity Generating Company & 2 Others ( eKLR) — Applied
- Ndung’u, Njuguna S. v Ethics & Anti-Corruption Commission (EACC), Director of Public Prosecutions (DPP) & Inspector General of the National Police Service & Attorney General (Civil Appeal 333 of 2014;  KECA 47 (KLR)  eKLR) — Applied
- Nduttu, Lawrence & 6000 others vs Kenya Breweries Ltd & another, (SC Petition No 3 of 2012  eKLR) — Explained
- Njeru, Anarita Karimi v Republic (Miscellaneous Criminal Application 4 of 1979;  KEHC 30 (KLR)  eKLR) — Applied
- Nyawade, Mercy vs Banking Fraud Investigations Department & 2 others (Petition 143 of 2017, eKLR) — Explained
- Republic v Director of Public Prosecutions,Inspector General of Police & Chief Magistrate’s Court, Kibera Law Courts;Evanson Muriuki Kariuki (Interested Party); Ex parte James M. Kahumbura (Judicial Review 298 of 2018;  KEHC 8824 (KLR) eKLR) — Applied
- Rev Dr Timothy M Njoya & 6 others v The Hon attorney General & 4 others (? 82 of 2004;  KEHC 1467 (KLR) eKLR) — Explained
- Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated);  KESC 6 (KLR)) — Explained
- SGS Kenya Limited v Energy Regulatory Commission,Public Procurement Administrative Review Board & Intertrek Testing Services (Ea) Ltd (Petition 2 of 2019;  KESC 64 (KLR) eKLR) — Explained
- Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (Civil Appeal 46 of 2012;  KECA 729 (KLR) KLR.) — Applied
- Brummer v Minister for Social Development and Others ((CCT 25/09)  ZACC21;2009) — Applied
- Cape Metropolitan Council vs Metro Inspection Services Western Cape CC and others ((10/99)(2001)ZASCA) — Applied
- M&G Media Ltd and Others v 2010 FIFA World Cup Organising Committee South Africa Ltd and Another (2011 (5) SA 163 (GSJ)) — Explained
- Arnab Rajan Goswami v Union of India, ((2020) 14 SCC 12) — Applied
- Mohammed Zubair v State of Nct of Delhi, (Writ Petition (Criminal) No 279 of 2022) — Applied
- Access to Information Act (act no 31 of 2016) — Section 4(1)(b) — Interpreted
- Civil Procedure Rules, 2010 (cap 21 sub leg) — Order 53 — Interpreted
- Constitution of Kenya, 2010 — Article 22,23(3)(f),28,32(2),35(1)(b),47,48,50,157(10)(11),163(4)(a),165(3)(b),244,245,245(4),259 — Interpreted
- Law Reform Act (cap 26) — Section 8,9 — Interpreted
- National Police Service Act (act no 11A of 2011) — Section 28 — Interpreted
- Supreme Court Act (act no 7 of 2011) — Section 15(2) — Interpreted
- Supreme Court Rules, 2020 (act no 7 of 2011 sub leg) — Rule 3(5),31,32 — Interpreted
- Garner, BA., (Ed (2009), Black’s Law Dictionary (St Paul Minnesota: West Group 9th Edn)
- Ryan, M., Foster, S (2014), Unlocking Constitutional and Administrative Law (Oxfordshire: Routledge pp 506)
Prof. Ojienda SC & Ms. Awuor for Appellants
Ms. Mwanza & Ms. Ngalyuka for 1st, 2nd & 4th respondents
Mr. Ngatia SC for 3rd & 6th respondents