REPUBLIC ................................................................................................APPLICANT

BARCLAYS BANK OF KENYA LIMITED.

ADOPT A LIGHT embarked, with the consent of the NAIROBI CITY COUNCIL (‘the Council’),on a beautification project in Nairobi, in which it provided and installed a street lighting programme, which was coupled with the advertisements for various firms on the City streets. It would appear that a dispute arose between Adopt A Light and the said Council over a contract entered into for the said purpose, pursuant to which the Council has filed a litany of cases against the former and its customers for whom it carried out the said advertisements. Adopt A Light claims that the sole aim of the action that has been taken by the Council is to frustrate its effort to perform its contractual obligations under the said contract with the Council.

BARCLAYS BANK OF KENYA LIMITED, which I shall now refer to as ‘the bank’ or ‘the ex parte applicant’ herein, happens to be one of the customers of Adopt a Light, and being aggrieved by action taken by the Council against it in the aforesaid manner, it filed this Notice of Motion on 3/5/2008.  

The bank, which is represented by Mr. Allen Gichuhi, has had its verifying sworn by one David Swao. The same in essence confirms the following grounds:- 

I shall deal with the affidavit later for I feel that it is imperative at this stage that I firstly deal with the ‘replying affidavit’ which was filed on behalf of the interested party, by one Esther Passaris on 30/10/2008 and in which she deposes in support of the bank, in that she deposes that prior to the case forming the subject matter of these proceedings herein, the 1^st Respondent instituted Criminal Case No. M. 460 of 2007 at the Chief Magistrates Court, against one Peter Fundi who is one of her employees charging him with an offence of advertising contrary to Section 30 (1) with reference to Section 3 of the Physical Planning Act Cap 286 and punishable under Section 30(2) of the same Act, the particulars of the charge being that on ‘6/6/2007 at about 1:30 p.m. along Valley Road near the Department of Defence Headquarters being an employee of Adopt-A-Light Company did put up a new lamp post advertisement written Barclays without permission from the City Council of Nairobi’.

She also deposes that the 1^st respondent had on 10/7/2007 filed another case at the same City Court Nairobi against another of her employees, namely John Oganga Okwaru concerning an advert on behalf of the bank, being Criminal Case No. M. 466 of 2007, the particulars of the offence and charge being ‘advertising contrary to Section 30(1) with reference to Section 3 of the Physical Planning Act Cap 286 and punishable under Section 30(2) of the same Act, and the particulars were that on 10/7/2007 at about 3.00 p.m. along Langata Road near Langata Barracks within the City of Nairobi, being the supervisor of Adopt-A-Light Limited did erect new lamp posts of Barclays without permission from the City Council of Nairobi’, and that the matter was heard and Okwaru was acquitted.

Bearing in mind the fact that she claims that her firm was acting within the mandate of the contract with the Council, it is therefore her contention that it is clear from the foregoing that ‘the 1^st respondent is aware that the subject advertisements have been erected by the Interested Party within the terms of the said contract but has decided to prefer the said charges so as to defeat the contract and scare away the Interested Party’s customers’, and she is therefore of the view that the charges against the bank are improper and an abuse of the criminal process of the court; an abuse of the prosecutorial powers granted to the Honourable Attorney General and delegated to the 1^st respondent’s officers, made in bad faith and against the principle of legitimate expectation, and further thereto that having conducted a total of 25 allied cases against her company employees, these criminal charges that have now been preferred herein against the ex parte applicant are for extraneous purposes and are mainly intended to settle scores between her company and the 1^st respondent, and in which case, the court’s process is being invoked unfairly.

The 2^nd and 3^rd respondents did not file any skeletal arguments but made brief oral submissions. They were represented by Mr. Obiri Advocate, a state counsel who contended that no decision was ever made by his clients to charge any party; that according to them no prerogative orders ought to issue against them as the dispute is between the bank, the 1^st respondent and the Interested Party.

The Interested Party was represented by Mr. Nyandieka. It filed its skeletal arguments, in which it supports the position taken by the Applicant and avers that there is a dispute between the 1^st respondent and his client over the said contract. He further argues that this application ought to be allowed as it is necessary, as the prosecution of the bank is an abuse of process in court, oppressive, vexations and brought up for the extraneous purposes. It cited the decision in the case of JARED BENSON KANENANA V ATTORNEY GENERAL MISC. APPLICATION NO 446 OF 2000 at page 67 where the court held that:-

“It is, therefore, immaterial whether the prosecution reasonably suspects that an offence has been committed because that is not an issue in a prohibition. The test is whether there are circumstances which will make the proceedings an abuse of the process of the court. Acts of such an abuse are not restricted to acts of any party and the prosecution or the Respondent should not be telling this court, not to rely on anything done by the victim to decide whether there is an abuse while at the same time the prosecution are saying they will rely on what the victim is saying or doing to prove the criminal charge against the Applicant. The court should ask whether its process is being fairly invoked.”

The Interested Party has also relied on the decision in the case of R VS. CHIEF MAGISTRATE’S COURT NAIROBI EXPARTE ANURIK SINGH s/o GURBAKSH SINGH & 2 OTHERS NAIROBI HC MISC APPLICATION NO 117 OF 1983 where Nyarangi and Cockar JJ (as they then were) granted an order of prohibition on the basis of the fact that the proceedings complained of did not disclose a criminal case.

The 1^st respondent filed the skeletal arguments which included a preliminary objection urged within the main hearing of this application. In its preliminary objection which is dated 10/4/2008, it avers that it is entitled to enforce its statutory duty of regulating advertising as mandated by the Physical Planning Act as well as the collection of revenue from advertisements under the Physical Planning Act and the Local Government Act. It also argues that the following are undisputed points of law namely:- 

Section 38(4)  If a person on whom enforcement notice has been served under Subsection (1) is aggrieved by the notice, he may within the period specified in the notice appeal to the relevant liaison committee under Section 13.

Section 38(5)   Any person who is aggrieved by a decision of the liaison committee may appeal against such decision to the National Liaison Committee under Section 15.

It further contends that the High Court is not the right forum to challenge Enforcement Notices but that it should be the tribunals as established under the Physical Planning Act, and that that being the case, the bank has no legal basis howsoever to prefer this judicial review application, without first exhausting the procedure under the aforementioned Act. It is further contended that the judicial review application herein cannot pass the test for prerogative orders set out by the Court of Appeal in the case of KENYA NATIONAL EXAMINATION COUNCIL EX-PARTE GEOFFREY GATHENJI NJOROGE (CIVIL APPEAL NO 266 OF 1995).

It also maintains that there is no reason why the court should prohibit it from proceeding with the prosecution of Criminal Case No. 40 of 2008 and from filing any other proceedings against the bank relating to any matter pertaining to the advertisement on street lamp posts now and in the future as long as the bank continues to disregard the City planning laws; that this court cannot prohibit it from discharging its obligations or exercising its statutory authority.

I now come back to the 1^st respondents replying affidavit, by the aforementioned James Maina who concedes that the Council entered into a contract with the Interested Party on or about 28/3/2002, and though he however deposes, in a rather uncertain manner, that the said contract cannot override statute law, he nevertheless goes further to add that the Ministry of Local Government and at its full Council meeting, recommended and subsequently ordered the termination of the contract with the interested party on what he says was because of ‘its enormous illegality, which thus rendered the said contract null and void abinitio’, which fact he also deposes that the prima facie illegality of the said contract was confirmedin the matter of MONIER 2000 LTD & 9 OTHERS Vs. CITY COUNCIL OF NAIROBI & ADOPT-A-LIGHT LTD in Nairobi High Court Miscellaneous Application No. 1406 of 2004, and also in the matter of ADOPT-A-LIGHT LTD Vs. CITY COUNCIL OF NAIROBI HCCC NO. 1110 OF 2007, and that despite all this, the Interested Party has undertaken developments in direct and deliberate contravention of the law and more specifically the Physical Planning Act (‘the Act’), which requires that developments be licensed before they are undertaken. Given the above it is thus his contention that the bank was under a statutory obligation to know and obey the law and that it cannot be exonerated by the mere fact that it entered into an agreement with the Interested Party.

Though the 2^nd and 3^rd respondents did not file any submissions in this matter, Mr. Obiri who appeared for them, made brief oral submissions on points of law which I will revert to later in this judgment.

The bank thus maintains that from the foregoing, the 1^st respondent ought to pursue the issues arising from its contract with the Interested Party as it was not the party which erected the subject lamp posts, a fact which the Interested Party readily concedes to. It would therefore appear that it is for these reasons that the bank argues that the charge sheet is fatally defective as it states that it was the bank that erected the lamp posts which, we have now established was not the fact.

The bank further contends that the enforcement notice was ultra vires the Act as the 1^st respondent is taking advantage of it to collect revenue instead of addressing developmental concerns as envisaged by the Act.

I have perused paragraph 2 of the Enforcement Notice (‘the Notice’), and I note that it states that no City Council licence was obtained for the advertisement while paragraph 3 thereof sets out the fine as K.Shs.901,000.00 which according to the Applicant is ultra vires the Act, as the said Act does not set out the penalties payable for non-payment for an advertisement licence.

The bank argues that the offence if any, should be under the Local Government (Adoptive By-laws) (Building) Order 1968 whereof Section 229 criminalises failure to obtain a licence for advertisement. Furthermore Section 231 thereof gives the Council the power to issue a notice to the person who has advertised without licence, and thereby to request it to remove the advertisement within such a time as the Council may prescribe, and it provides for a fine of K.Shs. 2,000.00 or imprisonment for a term not exceeding 6 months (see section 257 thereof).

In my humble opinion, the 1^st respondent ought to have first demanded the removal of the advertisements before preferring the charges in the manner that it did.

But that is not all, for in addition thereto, the bank states that the charge sheet is unconstitutional, and I readily agree with it for none of the respondents complied with following fundamental Constitutional conditions:- 

I have gone through the pleadings and the skeletal arguments filed in this case. Before I address the merits of the application herein, I wish to state that the judicial review is a special jurisdiction on the High Court which is exercised only when it is the most efficacious remedy available.

The scope of judicial review is a well trodden area and there are numerous decisions on the subject. In the case of REPUBLIC V JUDICIAL SERVICE COMMISSION EXPARTE PARENO, HIGH COURT MISC CIVIL APPLICATION NO 1025 OF 2003, the court held inter alia:-

The onus of demonstrating to this court that the challenged decisions were arrived at in blatant breach of the rules of natural justice, or that the said decisions are unreasonable or otherwise, so as to allow intervention, squarely lies on the bank, for it must discharge the burden in order to succeed in its case, by availing tangible evidence.

The bank argues that failure to pay advertisement revenue is not defined in the Act as an offence, but that it only appears as so in the Local Government (Adaptive By-laws) (Building) order 1968, yet the charge sheet refers to the offence allegedly committed under the Act. A perusal of the charge sheet reveals that the charge is duplex, for the simple reason if found guilty, the bank stands to suffer a multiplicity of penalties, which thus renders it defective for the law requires that there be clarity and that an accused person be certain of the consequences of what crime he is alleged to have committed. I agree with the finding in the case of KENGELES HOLDINGS LTD V REPUBLIC Criminal Revision No. 36 OF 2008, where Ojwang J. held that “the manner in which the charges have been framed, invites the application of different penalties, of profoundly differing gravity and thus there is duplicity in the charges. Charges of such a kind will inevitably limit the scope for defence, and in this way, they stand in contradiction to the applicable provisions of the constitution notably those set out in S.77. The court intervenes by quashing the charge and the proceedings so far conducted by the trial court.” The same principle ought to apply in this matter.

All in all, and in addition to the above findings I also find that the bank was not furnished with a notice as required, nor was it accorded an audience before the charges were preferred, which omission obviously means that it was condemned unheard, contrary to the principles of natural justice which dictate that no man shall be condemned unheard. 

In view of the above, I am convinced that the Council is simply using the criminal process as a means of intimidating the bank to pay for advertisement revenue, which situation cannot be sustained for “it is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals on the advancement or frustration of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some ulterior purpose. The Interested Party in this matter was more actuated by desire to punish the Applicant or to oppress him into acceding to his demand by brandishing the sword of punishment under criminal law, than in any genuine desire to punish crime on behalf of public. The predominant purpose was to further the ulterior motive which the High Court could not allow” (R V CHIEF MAGISTRATES COURT MOMBASA EX-PARTE GANIJEE & ANOTHER [2002] 2 KLR 703).

The applicable rule in this instant case is expressed by the principle audi alteram pertem which means “hear the other side.”

Ordinarily, each party to a dispute should be given an opportunity to state its case particularly if the decision taken will affect it negatively. In the case of RIDGE V BALDWIN (1963) 2 ALLER 66 at page 81, Lord Reid stated as follows:-

Similar sentiments were also expressed in the case of GENERAL MEDICAL COUNCIL V SPACKMAN (1943) 2 ALLER 337 at page 345 where Lord Wright held as follows:-

“If the principles of natural justice are violated in respect of any decision, it is indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”

I now turn to the issues vis a vis the evidence on record.

In this instant, the bank was served with Enforcement Notice dated 30/5/2007 and ordered to the sum of K.Shs.901,000/=, within 48 hours. The 1^st respondent appears to have unilaterally made the decision that the bank was liable to pay the said sum within the said time. The bank was never afforded an opportunity to state its case. With the greatest of respect the period of 48 hours was due to expire on 1/6/2007, which a Friday and, it is a matter of public notoriety is Madaraka Day which is a Public holiday. From the conduct of the 1^st Respondent, there was no intention on its part to afford the bank a fair hearing or at all.

Section 38(4) of the Physical Planning Act provides that “if a person on whom an enforcement notice has been served under subsection (1) is aggrieved by the notice; he may within the period specified in the notice appeal to the relevant liaison committee under section 13.” The bank was given 48 hours notice to pay the aforesaid amount of money, and as already stated, part of the period fell within was Madaraka day and followed by a weekend and it would not have been possible in my view to do official work during the period. In essence, the 1^st respondent made it almost impossible for the bank to appeal, and arising from that conduct the 1^st respondent, is estopped from alleging that the bank did not follow the laid down procedure of challenging the Enforcement Notice.

The court is aware and alive to the fact that the right to hear the other side does not necessarily mean or amount to a hearing before a court of law. In the case of BOARD OF EDUCATION V RICE (1911) A.C. 179 at page 182, Lord Loreburn L C stated as follows:-

Needless to say, I also find that the demand for the payment form the bank while knowing very well that the contractual obligation lay with the interested party was irrational, unreasonable or motivated by ill will, for it is clear from the pleadings, that the 1^st respondent and the Interested Party have had protracted legal battles in court and perhaps they are far from being over. Although this court would not want to be drawn into that line of antagonism, there is ample and uncontroverted evidence that it is the Interested Party who undertook the advertisement for the bank upon payment by it. It was thus extremely irrational and unreasonable for the 1^st respondent to give the bank the said notice and to require it to make payment for the said advertisement whereas the bank had already fulfilled its obligations with the interested party.

The short notice also demonstrates malafide and unreasonableness on the part of the 1^st respondent. In the landmark case of ASSOCIATED PROVINCIAL PICTURES V WEDNESBURY CORPORATION (1948) 1 KB, 223 where Lord Green MR stated as follows:-

It is implied that whenever a public body such as the 1^st respondent is exercising discretion, the resultant decision must be reasonable and justifiable. The guiding principle should be fair treatment to all who stand to be adversely affected by the decision taken. As stated earlier, the 48 hours notice to the bank was to a large extent denial of opportunity to present its case and further to ensure that no appeal would be preferred since time was to lapse soon thereafter. After failure to comply the 1^st respondent resulted to instigating criminal charges against the Applicant.

The third issue is whether the 1^st respondent acted ultra vires by serving the bank with the Enforcement Notice? The bank has suggested that indeed the 1^st respondent acted ultra vires the Physical Planning Act. I do not subscribe to the views advanced by the bank for the following reasons:-

I now turn to the prayers which the bank seeks, and I do note that prayer 1 has two limbs, for the bank prays for an order of prohibition, on which I have already made the finding that the 1^st respondent breached the rules of natural justice and that it acted unreasonably while giving a 48 hours notice to pay the alleged advertisement fees. Having made the above findings, it is obvious that the order of prohibition must issue and indeed is hereby issued to stop further proceedings in the criminal case No. 40 of 2008 in the subordinate court at City Hall. Likewise a prohibition order is hereby issued to stop the 1^st respondent from using the enforcement notice dated 30/5/2007 as a means of collecting advertisement revenue from the bank.

The second prayer for the order of mandamus lacks in merit and I decline to grant it, for the court cannot bar the 1^st respondent from performing its functions as authorised by law, and I need not reiterate that for as long as the 1^st respondent exercises its powers properly, the court cannot interfere with the said action, save that the Council must abide with all the rules prior to such notifications.

As for costs, I have no doubt in my mind that it is the unreasonable conduct of the 1^st respondent which triggered the proceedings, and although the matter herein falls under public interest litigation, the 1^st respondent must be visited with costs and to that extent, I do order that the 1^st respondents shall bear the costs of all the other parties in this cause

Delivered in the presence of: