[2024] KEHC 12635 (KLR)

Gulf Energy Holdings Limited & 2 others v Director of Public Prosecutions & another (Judicial Review E027 of 2024) [2024] KEHC 12635 (KLR) (18 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12635 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review E027 of 2024

RE Aburili, J

October 18, 2024

IN THE MATTER OF AN APPLICATION BY GULF ENERGY HOLDINGS LIMITED, FRANCIS ORIA OUMA AND KEN AJUMA SARAWIWA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF THE DECISION OF THE DIRECTORATE OF CRIMINAL INVESTIGATIONS AND THE DIRECTOR OF PUBLIC PROSECUTIONS TO CHARGE FRANCIS ORIA OUMA AND KEN AJUMA SARAWIWA WITH ALLEGED OFFENCE OF ROBBERY CONTRARY TO SECTION 296(1) OF THE PENAL CODE AND IN THE MATTER OF EXERCISE OF POST TERMINATION RIGHTS AND OBLIGATIONS OF THE LICENCE AGREEMENT MADE BETWEEN GULF ENERGY HOLDINGS LIMITED AND DOLMUND (K) ENTERPRISES LIMITED IN RESPECT TO RUBIS NYAMASARIA AND IN THE MATTER OF THREATENED INFRINGEMENT OF RIGHTS GUARANTEED UNDER ARTICLES 40, 47 OF THE CONSTITUTION, 2010 THE FAIR ADMINISTRATIVE ACT NO. 4 OF 2015

Between

Gulf Energy Holdings Limited

1st Applicant

Francis Oria Ouma

2nd Applicant

Ken Ajuma Sarawiwa

3rd Applicant

and

The Director of Public Prosecutions

1st Respondent

Directorate of Criminal Investigations

2nd Respondent

Ruling

1. The Applicants herein Gulf Energy Holdings Ltd, Francis Oria Ouma and Ken Ajuma Sarawiwa have filed the application dated 17th October 2024 under certificate of urgency seeking leave of court to institute Judicial Review proceedings against the Respondents, seeking orders of certiorari and Prohibition.

2. The urgency disclosed is that the Respondents have charged the Applicants with a criminal offence yet the acts complained of were done in execution of an order of the court upon termination of a Dealer Licence Agreement between the 1st Applicant and the Interested Party, vide Kisumu CMCC No. E125 of 2024.

3. I have perused the Chamber Summons, the supporting affidavit, statement of facts and annextures. I am satisfied that the application is urgent. I certify it as urgent.

4. On the prayer for leave to apply for Judicial Review Orders of Certiorari and Prohibition, I have perused the application and depositions. In applications for leave, the court ought not to delve deep into the arguments of the party applying but make a cursory perusal of the evidence before the court and make the decision as to whether an applicant’s case is sufficient meritorious to justify leave.

5. Leave of court to file Judicial Review application is a prerequisite to making a substantive application, with a view to filtering out frivolous applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the applicant has an arguable case. (See Uwe Maxner & Another vs Attorney General (2005) eKLR.

6. Having perused the Chamber Summons and the accompanying documents, I am satisfied that the application for leave is not frivolous.

7. I grant leave to the Applicant to apply for Judicial Review Orders of Certiorari to remove into the High Court for purposes of quashing the decision of the Director of Public Prosecutions and the Directorate of Criminal Investigations, the Respondents herein to investigate, charge and prosecute the 2nd and 3rd Applicants Francis Oria Ouma and Ken Ajuma Sarawiwa with the offence of Robbery contrary to Section 296(1) of the Penal Code relating to the exercise of post termination rights and obligations under a Licence Agreement made between Gulf Energy Holdings Ltd the registered owner of property Kisumu/Nyalunya/2319 and the Rubis branded service station erected thereon and Dolmuld (K) Enterprises Ltd, a Licensee thereunder and a named Interested Party herein.

8. Leave is further granted to the Applicants to apply for Judicial Review Orders of Prohibition directed at the Director of Public Prosecutions the 2nd Respondent herein prohibiting and or restraining him from preferring, commencing and or sustaining any criminal charges against Francis Oria Ouma and Ken Ajuma Sarawiwa the 2nd and 3rd Applicants herein or such other officer of Gulf Holdings Limited, with the offence of Robbery and other undisclosed offences relating to the exercise of post termination rights and obligations under a Licence Agreement made between Gulf Energy Holdings Ltd being the registered owner of Land Parcel No. Kisumu/Nyalunya/2319 and the Rubis branded and Dalmuld (K) Enterprises Ltd, a Licensee thereunder and a named Interested party herein.

9. On the prayer that the leave so granted should operate as stay of all or any actions or proceedings to investigate, prefer, commence and or sustain any criminal charges against Francis Oria Ouma and Ken Ajuma Sarawiwa the 2nd and 3rd Applicants, or such other officer of Gulf Energy Holdings Limited including Winam SPMCRC No. E303 of 2024 Republic vs Francis Oria Ouma and Ken Ajuma Sarawiwa, the settled Judicial pronouncement are that although an applicant for leave to apply may demonstrate that they deserve leave, stay is not automatic either. They have to show that unless stay of the impugned action is granted the intended application, if successful, will be rendered nugatory and therefore the applicant will be rendered a pious explorer in the Judicial process.

10. I observe that the charges preferred against the 2nd and 3rd Applicants are in the initial stages. The hearing has not commenced. They allege that they were acting on the basis of a court order in Kisumu CMCC No. E125 of 2024 where Hon. E. Obina issued orders allowing the 1st Applicant to take possession of Rubis, Nyamasaria and the 1st Applicant was to take an inventory of items and properties at Rubis Nyamasaria at the time of taking possession at the station among others.

11. In view of the above, I find that if the stay sought is not granted and the criminal case is heard, the applicants will be rendered pious explorers in the Judicial process.

12. Accordingly, I order that the leave granted herein shall forthwith operate as stay of any action or proceedings commenced or to be commenced against Francis Oria Ouma and Ken Ajuma Sarawiwa, the 2nd and 3rd Respondents herein or such other officer of Gulf Energy Holdings Limited including Winam SPM Criminal Case No. E303 of 2024 (Republic vs Oria Ouma and Ken Ajuma Sarawiwa, until the substantive motion once filed is heard and determined.

13. The substantive motion shall be filed and served upon the Respondents and the Interested Parties within 21 days of today.

14. Costs of this application shall be considered in the substantive motion.

15. This file is closed.

16. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 18TH DAY OF OCTOBER, 2024R. E. ABURILIJUDGEPage 5 of 5