[2000] KEHC 114 (KLR)
The court found that the applicant had established a prima facie case for the grant of leave to apply for an order of prohibition, as the criminal proceedings appeared to be intertwined with his legitimate receivership duties and there was an arguable case of abuse of process. However, the court declined to grant a...
Source-derived case information.
- Citation
- [2000] KEHC 114 (KLR)
- Parties
- Applicant: Andrew Douglas Gregory; Respondent: The Chief Magistrate, Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 721 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Leave for Judicial Review and Stay of Proceedings
- Outcome
- Leave to apply for prohibition granted; stay of proceedings refused.
- Legal Topics
- Judicial Review, Prohibition Orders, Abuse of Process, Receivership, Criminal Proceedings, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Douglas Gregory
Applicant
The Chief Magistrate, Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave for Judicial Review and Stay of Proceedings
Legal Issues
- 1 Whether leave should be granted to apply for an order of prohibition against the Chief Magistrate from hearing or further hearing of criminal case no. 240/2000.
- 2 Whether the grant of leave should operate as a stay of proceedings in the criminal case.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of leave to apply for an order of prohibition, as the criminal proceedings appeared to be intertwined with his legitimate receivership duties and there was an arguable case of abuse of process. However, the court declined to grant a stay of the criminal proceedings, noting that the application for leave was made only two days before the scheduled trial, and granting a stay would cause significant inconvenience and expense to the prosecution and disrupt the court's schedule. The applicant was advised to prosecute the substantive judicial review application promptly before significant progress was made in...
Court Disposition
Leave to apply for prohibition granted; stay of proceedings refused.
Orders
- Leave is granted to the applicant to apply for an order of prohibition as prayed in prayer A of the application dated 4.7.2000.
- The prayer that the grant of leave do operate as a stay of proceedings is declined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI MILIMANI LAW COURTS
MISC APPLICATION NO. 721 OF 2000
ANDREW DOUGLAS GREGORY........................................APPLICANT
VERSUS
THE CHIEF MAGISTRATE
NAIROBI..................................................................................RESPONDENT
RULING
The applicant Mr. Andrew Douglas Gregory prays for leave to apply for an order of prohibition directed to the Chief Magistrate to prohibit him from hearing or further hearing of criminal case no. 240/2000. Applicant also prays that the grant of leave do operate as a stay of proceedings until the determination of the application for prohibition.
The application is supported by a long statement, copious documents and a verifying affidavit. There are 36 grounds from NO. 53 to 88 upon which relief is sought. Perhaps para No. 75 of the grounds summarizes all the grounds aptly that the machinery of criminal justice is being used as a pawn in personal civil feuds and individual vendetta. I have read the correspondence from page 360 to page 384 of Annexture is that the applicant was a receiver appointed by ABN - AMRO BANK in respect of a Debenture allegedly executed by ROSAFRIC ltd.
It seems that what RosAfric Ltd is saying is that appointment of applicant as a receiver was illegal because the money secured by the Debenture was not paid to RosAfric ltd. but diverted to personal accounts of two Bank officials. ROSAFRIC further contends that the debenture under which the applicant was appointed as a receiver was illegally activated as a result of fraud and therefore the appointment of the applicant as Receiver under the Debenture was invalid.
It seems further that applicant is charged in court with bank official with offence of attempting to obtain the money allegedly loan to RosAfric ltd by false pretences. The bank officials are charged in separate courts with offences of fraudulent false accounting. Although I have heard the Republic’s case it seems that the money applicant charged with falsely attempting to obtain is the money he was trying to recover under the debenture as a receiver for the Bank. That is to say money he was trying to recover for the bank in execution of his receivership duties. If that the correct interpretation of the first court in the criminal charges then I am satisfied that applicant has shown a prima facie case for grant of the order of prohibition.
As for the prayer that the Grant of leave do operate as a stay of proceedings, this is a discretionary remedy. I note that applicant was charged in the criminal case in the month of January, 2000. Trial of the criminal case is scheduled for today. Applicant only came to court 2 days before date of the trial. The prosecution may have bonded witnesses and prepared for the hearing today.
It would put the Republic into great inconvenience and expense to halt the proceedings today. It would also put the court diary into disarray. It seems from the documents before me that the trial will take a long time.
In the circumstances, it is not just to interrupt the proceedings. The applicant has the remedy of prosecuting the application for Judicial review promptly before any significant progress of the criminal case.
For those reasons I grant leave in terms of prayer A of the application dated 4. 7.2000 but I decline to grant the order` sought in prayer B of the application.
E. M. Githinji
Judge
6. 7.2000
Mr. Nowrojee for the applicant