[2019] KEHC 3207 (KLR)
The court determined that the issues raised in the application could not be resolved through judicial review proceedings, as they involved disputed facts requiring oral evidence. Judicial review is limited to the review of administrative actions and does not provide for the calling of oral evidence. Consequently,...
Source-derived case information.
- Citation
- [2019] KEHC 3207 (KLR)
- Parties
- Applicant: Muhidin Salum Farahani; Respondent: The District Criminal Investigation Officer (DCIO); Respondent: The Officer Commanding Police Division (OCPD) Kilindini Port Police; Respondent: The Officer Commanding Station (OCS) Kilindini Port Police; Respondent: The Attorney General; Interested Party: Hussein Mursal Kheyre
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 18 of 2019
- Procedural Posture
- Judicial Review / Ruling on Withdrawal and Directions for Fresh Proceedings
- Outcome
- Application withdrawn; leave granted to file fresh proceedings; no order as to costs.
- Judges
- DO Ogembo
- Legal Topics
- Judicial Review Procedure, Withdrawal of Application, Mandamus, Oral Evidence Admissibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muhidin Salum Farahani
Applicant
The District Criminal Investigation Officer (DCIO)
Respondent
The Officer Commanding Police Division (OCPD) Kilindini Port Police
Respondent
The Officer Commanding Station (OCS) Kilindini Port Police
Respondent
The Attorney General
Respondent
Hussein Mursal Kheyre
Interested Party
Procedural Posture
Judicial Review / Ruling on Withdrawal and Directions for Fresh Proceedings
Legal Issues
- 1 Whether the issues raised in the application can be resolved through judicial review proceedings.
- 2 Whether the proceedings should be discontinued to allow parties to file a proper suit admitting oral evidence.
Ratio Decidendi
The court determined that the issues raised in the application could not be resolved through judicial review proceedings, as they involved disputed facts requiring oral evidence. Judicial review is limited to the review of administrative actions and does not provide for the calling of oral evidence. Consequently, the proceedings had evolved beyond the scope of judicial review and should be discontinued. The court granted leave to the parties to initiate fresh proceedings in a forum that admits oral evidence, such as a suit commenced by plaint or originating summons. Each party was ordered to bear its own costs.
Court Disposition
Application withdrawn; leave granted to file fresh proceedings; no order as to costs.
Orders
- Application dated 3rd April, 2019 is withdrawn.
- Parties are at liberty to file appropriate proceedings in a forum which admits oral evidence.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL & JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW NO. 18 OF 2019
IN THE MATTER OF: AN APPLICATION FOR THE JUDICIAL REVIEW BY MUHIDIM SALUM FARAHANI
AND
IN THE MATTER OF: REFUSAL BY THE DISTRICT CRIMINAL INVESTIGATION OFFICER (DCIO) KILINDINI PORT POLICE, THE OFFICER COMMANDING POLICE DIVISION (OCPD) KILINDINI PORT POLICE, THE OCS KILINDINI PORT POLICE TO RELEASE FIVE CONTAINERS BELONGING TO THE APPLICANT FOR VERIFICATION PROCESS BY THE KENYA REVENUE AUTHORITY AND KENYA PORTS AUTHORITY
BETWEEN
MUHIDIN SALUM FARAHANI...................................................................................APPLICANT
AND
1. THE DISTRICT CRIMINAL INVESTIGATION OFFICER (DCIO)
2. THE OFFICER COMMANDING POLICE DIVISION (OCPD) KILINDINI PORT POLICE
3. THE OFFICER COMMANDING STATION (OCS) KILINDINI PORT POLICE
4. THE ATTORNEY GENERAL.............................................................................RESPONDENTS
AND
HUSSEIN MURSAL KHEYRE.....................................................................INTERESTED PARTY
RULING
1. The Ex parte Applicant first moved this Court on 3rd April, 2019 seeking the leave of this Court to commence proceeding for Judicial Review remedy of mandamus. The said leave was granted and the Ex parte Applicant directed to file the substantive Notice of Motion within 7 days as from 3rd April, 2019.
2. The substantive Notice of Motion was filed on 9th April, 2019. However, in both the applications for leave and in the substantive Notice of Motion the heading of these proceedings is referred to as “Miscellaneous Application”.
3. In the prayer however the Applicant is seeking orders of Judicial Review under Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules.
4. In the course of these proceedings it became necessary for parties to call oral evidence. The Court realized that the proceedings had evolved from Judicial Review proceedings to those of a suit in which parties are at liberty to call evidence. It also became clear that the disputed issues cannot be resolved by way of Judicial Review but only in a proper suit by way of plaint or an Originating Summons. It became necessary therefore to discontinue these proceedings.
5. The parties agreed that this Court makes a Ruling to the effect of the foregoing and gives leave to parties to initiate fresh proceedings in proper forum which admits oral evidence.
6. In light of the foregoing this Court makes the following orders on the application:
(a) Application dated 3rd April, 2019 is withdrawn.
(b) Parties are at liberty to file appropriate proceedings in a forum which admits oral evidence.
(c) Parties to bear own costs herein.
Dated, Signed and Delivered in Mombasa this 14th day of October,
2019.
E. K. O. OGOLA
JUDGE
In the presence of:
No Appearance for Applicant
Mr. Wachira for Respondents
Mr. Muchiri for Interested Party
Mr. Kaunda Court Assistant