[2016] KEHC 939 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR MISC. CIVIL APPLICATION NO. 526 OF 2016

IN THE MATTER OF LAW REFORM ACT, CAP 26, LAWS OF KENYA

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA

AND

IN THE CRIMINAL PROCEDURE, CAP 75 LAWS OF KENYA

AND

IN THE MATTER OF PENAL CODE, CAP 63, LAWS OF KENYA

AND

IN THE MATTER OF THE INTENDED LEVYING OF CRIMINAL CHARGES AGAINST MARY JANE KEMUNTO IN THE CHIEF MAGISTRATES COURT AT KIBERA

AND

IN THE MATTER OF AN APPLICATION BY MARY JANE

KEMUNTO FOR LEAVE TO APPLY FOR

ORDERS OF PROHIBITION CERTIORARI

MARY JANE KEMUNTO……………………………………..APPLICANT

VERSUS

THE DIRECTOR OF CID……………………………….1ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS.... 2ND RESPONDENT

RULING

Introduction

1. On 14th November 2016, this Court granted leave to the applicant to commence judicial review proceedings but directed that the issue whether that grant of leave would operate as a stay be heard and determined after an inter partes hearing. It follows that the only pending prayer and which is the subject of this ruling is the prayer seeking direction that the leave granted herein do operate as a stay.

2. In the premises I intend to deal only with those averments and submissions which are relevant to the prayer for stay.

Applicants’ Case

3. I have considered the verifying affidavit sworn in support of the Chamber Summons for leave and stay and the only paragraphs that address the issue of stay are paragraphs 34 to 36 of the verifying affidavit which are crafted in the following terms:

34. That if this honourable court issues conservatory orders precluding the respondents jointly and severally from charging me with criminal charges or from presenting the charge sheet against me in the chief magistrates court at Kibera or in any other court in Kenya, the respondents will not suffer any prejudice as this court has powers to order or allow the respondents to proceed with their intention to charge me with criminal charges if my application fails after full hearing thereof.

35. That this court should take judicial notice that if I am charged with a criminal case without proper evidence that points to my guilty (sic) I will suffer irreparable lose (sic) and my reputation as a business man (sic) will suffer as I will be given negative coverage publically (sic) by both the print and the electronic media.

36. That my reputation as a business man (sic) is a fixed asset that this honourable court has powers. (Sic).

4. In his oral address to the Court, Mr Mariaria, learned counsel for the applicant submitted that by the time these proceedings are determined, there is a likelihood that there will be a judgement in the lower Court in Kibera and that will render these proceedings superfluous. He reiterated that the grant of the stay of the trial Court proceedings, pending the hearing of these proceedings will not prejudice the Respondents since the period that may be taken in these proceedings may be very short.

5. The Court was therefore urged to grant the orders of stay of the pending criminal proceedings in order to bar the Respondents from harassing the applicant herein.

6. Mr Mariaria clarified that the applicant herein, though not yet an accused person in the said criminal proceedings, there was an intention to join her thereto.

Respondents’ Case

7. In response to the application, Miss Spira, learned counsel for the Respondents submitted that the criminal case is listed for hearing towards the end of February, 2017 and 10 witnesses are lined up to testify in the matter. It was therefore submitted that there is no likelihood that the said criminal proceedings will be determined before these proceedings.

8. The Respondents therefore contended that these proceedings would not be rendered nugatory even if the stay sought is not granted.

Determinations

9. I have considered the application, the affidavits filed herein and the submissions made by the parties and this is the view I form of the issues raised.

10. The mere fact that the application discloses a prima facie case does not necessarily qualify the matter to a grant of stay. The Court despite a finding that the applicants has established a prima facie case must proceed to address its mind on whether or not to direct the leave so granted to operate as a stay of the proceedings in question. Stay of proceedings or the questioned decision being discretionary ought only to be granted where the same is necessary and not as a matter of course. That discretion, like any other judicial discretion must therefore be exercised judicially and not capriciously or whimsically.

11. However, Order 53 rule 1(4) of the Civil Procedure Rulesprovides:

The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.

12. In my view, even where the Court grants orders of stay under the aforesaid provision, it has wide powers to do so on such terms as are just including the period for which the stay is to last.

13. This Court has similarly held that as opposed to the grant of leave which a party is entitled once a prima facie case disclosing grounds for judicial review are established, the grant of direction that the leave operate as a stay is an exercise of judicial discretion which must be based on the prevailing circumstances. It may be granted at any stage of the proceedings and may similarly be varied, set aside or vacated all together depending on the circumstances of the case. It follows that an application for stay of the proceedings or decision in question can be made at any stage of the proceedings in a judicial review application as the determination of an application for stay must necessarily depend on the prevailing circumstances and where the circumstances change, the court is perfectly entitled to grant stay. In other words a decision made with respect to stay is not necessarily caught up by the doctrine of res judicata though the same may amount to an abuse of the process of the court if made with the intention of overturning an earlier decision or as a means of haranguing the court.

14. Where, the decision sought to be quashed has been implemented leave ought not to operate as a stay since in that case there may be nothing remaining to be stayed. It is only in cases where either the decision has not been implemented or where the same is in the course of implementation that stay may be granted. See George Philip M Wekulo vs. The Law Society of Kenya & Another Kakamega HCMISCA No. 29 of 2005.

15. However even where the leave is granted, it was held in Jared Benson Kangwana vs. Attorney General Nairobi HCCC No. 446 of 1995 that in considering whether the said leave ought to operate as a stay of proceedings the Court has to be careful in what it states lest it touches on the merits of the main application for judicial review and that where the application raises important points deserving determination by way of judicial review it cannot be said to be frivolous.

16. In my view, it is only where the imminent outcome of the decision challenged is likely to render the success of the judicial review application nugatory or an academic exercise that the Court would stay the said proceedings the strength or otherwise of the applicant’s case notwithstanding.

17. Maraga, J (as he then was) in Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 was of the view that:

“As injunctions are not available against the Government and public officers, stay is a very important aspect of the judicial review jurisdiction… In judicial review applications the Court should always ensure that the ex parte applicant’s application is not rendered nugatory by the acts of the Respondent during the pendency of the application and therefore where the order is efficacious the Court should not hesitate to grant it though it must never be forgotten that the stay orders are discretionary and their scope and purpose is limited…The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is however not appropriate to compel a public body to act… A stay order framed in such a way as to compel the Respondents to reinstate the applicant before hearing the Respondent cannot be granted.”

18. Therefore it is not in every case that there are chances of the High Court reaching a decision contrary to the one in the proceedings sought to be stayed that the High Court will stay those proceedings. It must be shown that the probability as opposed to the possibility of a determination being made in the challenged proceedings, are high and such probability cannot be said to have been achieved on mere conjecture and speculation. It follows that the stage at which the said proceedings have reached may be crucial in determining whether or not to grant the stay sought though that is not the determinant factor.

19. In making a determination whether or not to grant the stay, the Court must place the respective cases of the parties before it in a legal scale. It must balance the competing interests in order to arrive at a just decision. Where the Court has found that there are issues in the suit which deserve further investigations, the Court is enjoined to preserve the substratum of the suit so that at the conclusion of the case, its decision will not be merely an academic exercise. The Court therefore has a duty to ensure that its proceedings are geared towards the achievement of a meaningful determination otherwise litigants who come to Court to seek redress therefrom will lose faith in the judicial system if the Courts cannot, during the pendency of the dispute preserve the subject of litigation. In my view the Court must have the power to guard against actions by some of the parties to the suit which are geared towards the dissipation of the subject matter before it before a determination is made one way or the other with respect to the rivalling issues placed before it. In other words, the Court must be in a position to ensure that whatever decision it finally arrives at, the proceedings before it are not seen to have been a circus.

20. As held by the High Court in Kaduna in Econet Wireless Limited vs. Econet Wireless Nigeria Ltd and Another [FHC/KD/CS/39/208] this involves:

“a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order of stay is granted, destroy the subject matter or foist upon the Court…a situation of complete hopelessness or render nugatory any order of the…Court or paralyse in one way or the other, the exercise by the litigant of his constitutional right…or generally provide a situation in which whatever happens to the case, and in particular even if the applicant succeeds…there would be no return to the status quo.”

21. It therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited [2004] 2 KLR 589.

22. As stated hereinabove this Court must guard against any action or inaction whose effect may remove pith of this litigation and leave only a shell. I associate myself with the holding of Court of Appeal position in Dr Alfred Mutua vs. Ethics & Anti-corruption Commission & Others Civil Application No. Nai. 31 of 2016 in which it cited the Nigerian Court of Appeal decision of Olusi & Another vs. Abanobi & Others [suit No. CA/B/309/2008] that:

“It is an affront to the rule of law to… render nugatory an order of Court whether real or anticipatory. Furthermore…parties who have submitted themselves to the equitable jurisdiction of courts must act within the dictates of equity.”

23. I therefore agree that parties who have invited the Court to adjudicate on a matter which they are disputing over ought not to create a situation whereby the decision to be made by the Court would be of no use. In that event as held by the Nigerian Court of Appeal in United Cement Company of Nigeria versus Dangote Industries Ltd & Minister of Solid Mineral Development [CA/A/165/2005], the Court ought to ensure that:

“appropriate orders are made to prevent acts which will destroy the subject matter of the proceedings or foist upon the court a situation of complete helplessness or render nugatory any judgement or order.”

24. In this application, it is the applicant’s case that unless the leave granted herein is directed to operate as a stay, these proceedings are likely to be rendered nugatory. According to the applicant, there is a likelihood that the challenged criminal proceedings may be determined before these proceedings are determined. It is upon the applicants who seek to stop the criminal proceedings to prove that there is an imminent threat of the impugned proceedings being undertaken and determined before the judicial review proceedings and hence render the outcome of the latter nugatory. In this case, apart from bare allegations and surmises, no material has been placed before this Court on the basis of which the Court can arrive at the said decision. What the applicants say is that there is such a possibility of such an event. In my view, the applicants ought to show that the probability other than mere possibility of such an eventuality occurring, exists. In this case the respondents have countered the said allegation by stating that in light of the fact that the prosecution intends to line up more than 10 witnesses there is no likelihood of the criminal case, in which the applicant herein is yet to be joined as an accused person, being determined before these proceedings.

25. It must always be remembered that since res judicata does not strictly apply to these kinds of proceedings an application for stay of proceedings may be made as and when the occasion arises though being discretionary the Court is entitled to take into account the delay in applying for the same. In this case as the applicant is yet to plead to the criminal charges, leave alone the commencement of the trial, I am not prepared to hold that at this stage these proceeding are in imminent danger of being rendered nugatory.

26. The grant of stay being an exercise of judicial discretion, every case must be considered on the basis of its peculiar circumstances taking into account the stage at which the challenged proceedings have reached which stage may inform the Court on the probability of the same being determined before the judicial review proceedings.

27. It is however contended by the applicant that her reputation as a business lady will suffer as she will be given negative coverage publicly by both the print and the electronic media. That the institution of criminal proceedings invariably has the potential of causing the accused person anxiety and sometimes agony cannot be farfetched. That however is not without more a basis for blocking a criminal trial.

28. The issue of adverse publicity was dealt with in Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69as hereunder:

“The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial.”

29. I am also in agreement with the sentiments expressed in Dream Camp Kenya Ltd vs. Mohammed Eltaff and 3 Others Civil Appeal No. 170 of 2012 that:

“Every litigation is inconvenient to every litigant in one-way or another. Also no one in his right senses enjoys being sued and ipso facto no one cherishes litigation of any nature unless it is absolutely necessary. With respect, we accept litigation is expensive and no litigant would enjoy the rigours of trial. The aftermath of vexatious and frivolous litigations is normally taken care of by way of costs. The discomfort of litigation would not certainly render the success of the intended appeal nugatory if we do not grant the application sought. If the learned Judge is eventually found wrong on appeal, and the applicant succeeds in its intended appeal, then the orders so made by the learned Judge would be quashed and the applicant would be compensated for in costs.”

30. As was held in Jago vs. District Court (NSW) 106:

“..it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness. This is a lofty aspiration but it is not the law.”

31. It has not been alleged that there is a risk that as a result of the adverse publicity to be generated by the intended prosecution of the applicant, the applicants’ right to fair trial is threatened. In fact no allegation has been made against the trial Court along those lines and in these proceedings no orders are expressly sought against the trial Court. The trial Court is in fact yet to commence the criminal proceedings involving the applicant.

32. I have said enough to show that the orders sought in these proceedings in so far as they relate to stay are, at least at this stage of the proceedings, unmerited.

Order

33. In the result the said prayer is disallowed. The costs will be in the cause.

Dated at Nairobi this 15th day of December, 2016

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Spira for the Respondents

CA Mwangi