[2017] KEHC 3097 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW NO.16 OF 2017

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

IN THE MATTER OF: THE HIGH COURT (ORGANIZATION ANDADMINISTRATION) ACT, 2015

AND

IN THE MATTER OF: ORDER 53 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF: MOMBASA RMCC NO. 1218 OF 2009

AND

IN THE MATTER OF: AN APPLICATION TO APPLY FOR THEPREROGATIVE ORDERS OF CERTIORARI

BETWEEN

1. MWINYIKOMBO MENZA

2. JOEL MALUSI MUTHOKA………………….………………..….APPLICANTS

AND

CHIEF MAGISTRATE’S COURT, MOMBASA………….……….RESPONDENT

AND

1. EAST AFRICAN STORAGE COMPANY LIMITED

2. THE HON. ATTORNEY GENERAL………..………INTERESTED PARTIES

RULING

1. Before the court is the Ex-parte Applicant’s Amended Notice of Motion dated 29th June, 2017. The Amended Motion prays for the following orders:

1. THAT an Order of certiorari do issue to bring up into the High Court for the purpose of quashing the Orders of the Respondent in Mombasa RMCC 1218/09 made on 3rd November, 2016 and 2nd December, 2016.

2. THAT a consequential order be made reinstating the suit and further directing that the suit proceeds before the Magistrate’s Court at Mombasa.

3. THAT the court be pleased to make any other or further orders as it may deem just, fair and expedient.

4. THAT the costs of this application be reserved in the cause.

2. The application is premised on the verifying affidavit of Mwinyikombo Menza dated 12th May, 2017 and on the grounds contained in the said statement in the schedule attached thereto.

The Applicants’ case

3. The Applicants allege that they are Plaintiffs in Mombasa RMCC 1218 of 2009 where they have sued the Interested Parties herein for damages for malicious prosecution resulting from their arrest and arraignment in court on a charge of theft by servant in respect of which charge the Applicants were acquitted under Section 210 of the Criminal Procedure Code, Cap 75 Laws of Kenya vide Ruling of the trial court dated 6th May, 2008. The Applicants’ allege that at the time of arraignment they were employed by the 1st Interested Party.

4. The Applicants allege that on 8th June, 2016 the 1st Interested Party filed an application dated 29th April, 2017, expressed to be brought under the provisions of Order 17 rule 2(1) and rule 2(3) Civil Procedure Rules seeking dismissal of the suit for want of prosecution and the same was served upon the Applicants’ counsel on 2nd September, 2016, and a reply thereto filed on 13th September, 2016. The Applicants claim that the application came up for hearing on 16th September, 2016 when counsel for the 1st Interested Party – Ms. Onesmus instructed by the firm of Anjarwalla & Khanna - informed the court that they had considered the reply and would be minded to withdraw their application but needed time to first consult their client.

5. The Applicants allege that a mention date was then given for 3rd November, 2016 and that on 3rd November, 2016, the 1st Interested Party duly withdrew its application. However, the Applicants’ claim that the court, on its own motion, then proceeded to make the order inter alia that the matter be disposed of within 60 days failure to which it would stand dismissed and set the pre-trial date as 2nd December, 2016.

6. The Applicants claim that on 2nd December, 2016 parties appeared at the pre-trial when the court then surprisingly declined jurisdiction on the basis that this was a labour related issue, in effect taking the position that the jurisdiction lay with the Employment and Labour Relations Court as it was affected by the decision of the High Court at Malindi - jurisdiction of the regular courts vis a vis the special courts contemplated by Article 162(2) of the Constitution of Kenya, 2010.

7. As regards the order of 3rd November, 2016 delimiting the time for disposal of the suit, the Applicants claim that the same was arbitrary and without jurisdiction as the application upon which such an order could have been made had been withdrawn and, in the event, jurisdiction to make such an order would only arise in three other instances:

(a) At the pre-trial directions pursuant to the provisions of Order 11 rule 3(1)(j) and (o) (i);

(b) At a hearing, by dint of Order 17 rule 1; or

(c) On a notice to show cause under Order 17 rule 2

8. It is the Applicants’ case that the Order of 2nd December, 2016 deeming the matter a labour related one was an error in law on jurisdiction thus amenable to a Judicial Review remedy in the nature of an order of certiorari.

9. It is also the Applicants’ case that the net effect of the two impugned orders is to deny the Applicants a fair and reasonable opportunity to have their case determined on the merits contrary to Article 50 of the constitution.

Response

10. The Respondent opposed the application through submissions of Mr. Makuto for the Attorney General, while the 1st Interested Party opposed the application vide grounds of opposition filed on 6th July, 2017 and a replying affidavit sworn by Eunice Juma on 12th May, 2017.

Submissions

11. Mr. Mwakisha, learned Counsel for the Applicants submitted that while the suit was pending the 1st Interested Party filed an application for its dismissal for want of prosecution and on 3rd of November, 2016 the court allowed the withdrawal of the application for dismissal for want of prosecution and limited to 60 days the time to activate the matter.

12. Mr. Mwakisha submitted that later when parties were ready to proceed the court abandoned the matter saying that it had no jurisdiction because the matter was a labour related matter. Counsel submitted that the court erred as this was solely a matter for damages for malicious prosecution. Counsel further submitted that there was no automatic right of appeal and the 60 days that had earlier been issued had since lapsed.

13. Mr. Mwakisha submitted that the order of 3rd November, 2016 was made arbitrarily as nothing had happened to make the court limit the time within which the suit had to be finalized.

14. Mr. Makuto, learned Counsel for the 2nd Respondent and the 2nd Interested Party conceded that the decision made by the lower court on 2nd December, 2016 was erroneous since the cause of action was malicious prosecution. However, in relation to the decision made on 3rd November, 2016, Counsel submitted that the same was issued within jurisdiction.

15. Mr. Makuto submitted that although Article 50 of the Constitution gives a right to fair hearing the same must be exercised expeditiously. Counsel stated that when the decision of 2th December, 2016 was made 60 days had not passed thus there is no reason as to why the suit was not presented within the remaining time.

16. Mr. Makuto submitted that no step was taken to prosecute the suit therefore the decision cannot be quashed or set aside as the Applicants slept on their rights.

17. Mr. Wafula, learned Counsel for the 1st Interested Party submitted that Judicial Review remedies are discretionary and no party is entitled to those orders as of right. Counsel stated that the subordinate court had a right to issue the order dated 3rd November, 2016 and if the Applicants were dissatisfied, they ought to have appealed.

18. In relation to the Order of 2nd December, 2016, Mr. Wafula submitted that the same does not raise jurisdictional issues but rather it raises an issue of wrong application of the law whose remedy is to appeal. Counsel further submitted that the Applicants can still go back to the lower court and seek extension of time to appeal. Mr. Wafula further submitted that the application for Judicial Review orders was filed after six months of the decision and so the application is a legal nullity.

19. In rebuttal, Mr. Mwakisha submitted that the Order of 2nd December, 2016 amounted to a court abdicating its jurisdiction and that it could not appeal against the decision as time in the matter had been limited to 60 days including its finalization.

Determination

20. From submissions of parties there are only two (2) issues for determination, that is, whether the Applicants have filed this application within six months and whether this court can give the order of certiorari.

21. To begin with, the submissions by Mr. Wafula that the application was filed after six months is not correct. The order was made on 3rd November, 2016 while the application here was filed on 2nd May, 2017 being the last day of the said six months. This ground must therefore fail.

22. The other issue is that Judicial Review is a remedy which addresses procedural inadequacies and not a lack of merit. It was submitted by both Mr. Wafula and Mr. Makuto that since the Applicant was challenging the merit of the decision of the Honourable learned Magistrate, the correct path to take is that of appeal and not Judicial Review process. These submissions are true to the extent that the decision reached by the Honourable Magistrate was on merit. However, that decision also concerned a judicial process, that is, whether or not the correct court was the Employment and Labour Relation Court. The said decision was itself a decision on process. It was not done on merit or after submission by counsel.The parties were not invited to give their opinion on the same and so it is reasonable to expect that the Hon. learned Magistrate believed he was merely dealing with a process. However, he got the process wrong, and that also occasioned prejudice because part of the time frame of sixty days that he had given had expired. Again, the said time frame was only applicable if the matter proceeded before the Hon. learned Magistrate. This did not take place, with the result that the Applicants became prejudiced both by the decision and also by the limited time remaining to have the matter heard.

23. Judicial Review proceedings are mainly aimed at doing justice and that is why their grant or denial remain largely discretionary. The element of discretion is so that substantive justice may be done to the parties as the Judge finds fit.

24. In this instance, the Applicants have found themselves in a prejudicial setting which was not of their making. The court directed that their suit should be heard within sixty days. Mid-way, the court decides that it lacked the jurisdiction to hear the matter. Even after stating this the court did not find it necessary to enlarge the time of the said sixty days.

25. The decision of the court was on jurisdiction but was not made on merit. It is a procedural default which can be corrected by a remedy in Judicial Review. However, even if it could not be rectified by a Judicial Review Order, the discretionary nature of the Judicial Review and the need to do justice compels this court to allow the application.

26. The application is allowed as prayed with costs in the cause.

Dated, Signed and Delivered in Mombasa this 12th day of October,2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Anaya holding brief Mwakisha for Applicants

Mr. Makuto for Respondent

Mr. Wafula for Interested Party

Mr. Kaunda Court Assistant