[2022] KEHC 11612 (KLR)

Ndungu v Inspector General Of Police & Others (Miscellaneous Civil Application E022 of 2022) [2022] KEHC 11612 (KLR) (Judicial Review) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11612 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application E022 of 2022

AK Ndung'u, J

May 12, 2022

Between

Nathan Loyd Ndungu

Applicant

and

Inspector General Of Police & Others

Respondent

Ruling

1. Nathan Loyd Ndung’u (Applicant) approached this court vide a Chamber Summons application dated 17th February 2022 for orders;i.This Honourable court be pleased to certify this application as urgent and the same be heard ex parte due to its nature and urgency.ii.This Honourable court be pleased to grant leave to the Applicant to apply for an Order of Certiorari to remove into the High Court and quash the Interpol Red Notice issued against the Applicant by the 1st , 2nd, 4th, 5th and 6th Respondents and which Interpol Red Notice is registered by International Police Organization (interpol) and/or by the Government of Rwanda and/or by the Respondents under File Number RONPJ011005568/S1/11/GS/MA and/or Case File Reference: Ronpj : 011005688/S1/11/GS/MA and registered with the International Police Organization (INTERPOL).iii.This Honourable court be pleased to grant to the Applicant leave to apply for an Order of Prohibition to prohibit the Respondents from acting and/or executing and/or enforcing the Interpol Red Notice issued against the Applicant by International Police Organization (INTERPOL) and/ or by the Government of Rwanda and/or by the Respondents under File Number Ronpj 011005568/S1/11/GS/MA and/or CASE FILE Reference: Ronpj : 011005688/ S1/11/GS/MA and registered with the International Police Organization (INTERPOL).iv.This Honourable court be pleased to grant to the Applicant leave to apply for an Order of Prohibition to prohibit the Respondents from arresting, filing and/or registering and/or preferring any criminal charges and/or commencing or proceeding with any criminal proceedings instituted in the Republic of Kenya or elsewhere against the Applicant in execution/enforcement/pursuance of the Interpol Red Notice issued against the Applicant and registered by International Police Organization (INTERPOL) and/or the Government of RWANDA and/or the Respondents under FILE NUMBER RONPJ 011005568/S1/11/GS/MA and/or Case File Reference: Ronpj : 011005688/ S1/11/GS/MA.v.This Honourable court be pleased to grant the Applicant leave to apply for an Order of Prohibition to prohibit the Respondents from extraditing Nathan Loyd Ndungu/the Applicant to the Republic of Rwanda or to any other place outside the Jurisdiction of this Honourable Court.vi.The leave granted in prayer 2, 3, 4 and 5 above do operate as stay of Miscellaneous Criminal Case No E325 Of 2022: Republic Versus Nathan Loyd Ndungu before the Chief Magistrates Court at Nairobi, Milimani Law Courts and the Interpol Red Notice issued against the Applicant by the 4th Respondent/International Police Organization (INTERPOL) and/or the Government of Rwanda and/or the Respondents -under File Number Ronpj 011005568/S1/11/GS/MA and/or Case File Reference: Ronpj : 011005688/ S1/11/GS/MA.vii.This Honourable Court be pleased to order that Service of the Order made herein and the Pleadings herein be effected upon the Respondents directly and/or personally and/or by publication in the Daily Nation Newspaper and/or through their twitter accounts and/or Instagram accountsviii.The costs of this Application be provided for.

2. The applicant was, vide order of court dated 17th February, 2022, granted leave to Institute Judicial Review proceedings with directions to file the substantive motion within 3 days.

3. Subsequently, an application dated 10th March, 2022 was filed. The suit elicited a preliminary objection dated 20th March 2022 by the 2nd respondent. Directions were given that the preliminary objection was to be disposed of first. The preliminary objection was canvassed through written submissions and a ruling date set for 12th May, 2022.

4. During hearing on 20th April, 2022, an issue was raised that the applicant was not within the jurisdiction of the court. A summons was issued that the applicant was to appear personally in court on 3rd May, 2022. This date was pushed to 9th May, 2022 as 3rd May, 2022 fell on a public holiday. The applicant failed to appear and the date was pushed to 11th May, 2022.

5. On 11th May, 2022 an oral application was made on behalf of the applicant by counsel for the withdrawal of the entire suit.

6. Ms. Mwaniki for the 1st and 2nd Respondent opposed the application principally on ground that the court order (summons) had not been complied with. It is urged that court orders must be obeyed. A warrant of arrest was sought.

7. Ms. Nyakora for the 3rd and 5th Respondents opposed the application maintaining that there is an order of court not complied with. She urged that the question of where the applicant is arises and that there is no prove that he is sick.

8. I have considered the application before court. Judicial review are special proceedings now anchored in the constitution under Article 47 of the constitution and the Fair Administrative Action Act. The procedure for instituting judicial review still remains the one provided for under order 53 of the Civil Procedure Rules. Notably, the procedure does not provide for the withdrawal of judicial review proceedings once instituted.

9. Does that, then, mean that a party desirous of withdrawing such proceedings can be barred by the court from such a withdrawal? I think not. The right to withdraw a suit is absolute even under the Civil Procedure Act and rules subject only to the timing of the withdrawal and relevant factors such as costs.

10. Ochieng J in my view captured the applicable principle correctly when in Republic v Chairman Land Disputes Tribunal at Kajiado & 5 others, ex parte Dan Ameyo[2017] eKLR she stated:“It is not in doubt that Judicial Review is a special procedure governed by the Constitution. The Constitution itself does not provide the procedure for instituting or withdrawing Judicial Review but stipulates that justice should be administered without undue regard to procedural technicalities. It is only within the Civil Procedure Rules under Order 53 that provides for the procedure of instituting Judicial Review. There is however no express provision in the Civil Procedure Rules stipulating how Judicial Review should be withdrawn. However, any party who this instance the ex parte applicant relied on Order 25 rule 1 of the Civil Procedure Rules to file the Notice of Withdrawal of the Judicial Review and the said Notice was endorsed by the Deputy Registrar. I must say the 2nd and 3rd interested parties seek to rely on matters of technicality, which offends the provisions of article 159 (2) (d) of the Constitution which stipulate that ' in exercising judicial authority, the courts and tribunals shall be guided by the following principles .........(d) justice shall be administered without undue regard to procedural technicalities. The reason for the Deputy Registrar endorsing the Notice of Withdrawal is anchored within the Civil Procedure Rules and the 2nd and 3rd Interested parties cannot rely on technicalities to oppose the said Notice. This position is affirmed in the case of Republic v District Land Registrar, Uasin Gishu & anor(2014) eKLR where Justice Ochieng held that .. to my mind, Justice is not dependent on Rules of Technical procedures. Justice is about doing the right thing. Pursuant to article 159 (2) (d) ........in exercising Judicial Authority, the courts ' in exercising judicial authority, the courts and tribunals shall be guided by the following principles .........(d) justice shall be administered without undue regard to procedural technicalities."

11. As held in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, SC App. No. 16 of 2014 a party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”This is the position that was reiterated by the Supreme Court in John Ochanda vs. Telkom Kenya Limited[2014] eKLR, where the Court held as follows:“I do hold the view that a prospective appellant is at liberty to withdraw a notice of appeal at any time before the appeal has been lodged and any further steps taken. No proceedings have commenced strictly. I am also of the view that just like under the Civil Procedure Rules or Court of Appeal Rules, the right to withdraw or discontinue proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter of right subject to any issue of costs, which can be claimed by the respondents, if any.”

12. However, there are instances where the court will decline to allow a party to discontinue or withdraw a suit. Those circumstances were clarified by the Court of Appeal in Beijing Industrial Designing & Researching Institute vs. Lagoon Development Limited, 2015 eKLR as follows:“Under normal circumstances, the respondent would have, in our view, been able to discontinue the suit or withdraw the claim without leave or hindrance if issues of violation of a court order by the respondent were not pending for determination by the court. Granted the peculiar circumstances of this appeal, we ask ourselves whether at the time of the discontinuation of the suit, the matter was still a straightforward dispute between only the appellant and the respondent so as to fall neatly within the confines of Order 25 Rule 1. From the circumstances surrounding the discontinuation of the suit while an application seeking committal of two of its directors for contempt of court and the filing by the respondent of a new suit the very next day raising exactly the same issues as those in the suit it had discontinued, the contention by the appellant that the sole purpose of the discontinuation of the suit was to defeat the contempt of court proceedings is not, with respect, an idle complaint. Contempt of court proceedings are quasi-criminal……..quasi-criminal proceedings ought not to be terminated at the exclusive instance or discretion of the party alleged to be a perpetrator of a criminal or quasi-criminal act. There is yet an additional and more compelling reason why we are convinced that the respondent, who was alleged to be in contempt of court, was not at liberty to discontinue the suit at its own instance or discretion. As Lord President Clyde noted way back in 1923 in Johnson v Grant,1923 SC 789 AT 790, the purpose of the law on contempt of court is not to protect the personal dignity of the judiciary or the private rights of parties or litigants. Nor is it intended to assuage the offended dignity of the court. Rather, it is intended to uphold and protect the supremacy of the law. To that extent, contempt proceedings involve much more than the private interests of the plaintiff and the defendant and implicate the public interest at large. On compliance with court orders, which the respondent is alleged to have failed to do…”

13. While declining to allow the discontinuance or withdrawal of the suit due to the pendency of an Application for contempt, the Court of Appeal in the Beijing case (supra) stated as follows:“The uncritical application of Order 25 Rule 1 to the facts of this case resulted, in our respectful view, in an anomalous situation where the public interest in the upholding and protection the rule of law was sacrificed, without the slightest consideration, at the altar of the respondent’s alleged absolute right to withdraw its suit, even when it was alleged to have deliberately undermined the rule of law. The public interest was placed at the mercy of the respondent, because to vindicate the supremacy of the law depended on the continued existence of the respondent’s suit, even if for the limited purpose of facilitating the hearing and determination of the contempt of court application alone.”

14. In our instant suit, a summons had been issued against the applicant to appear in court solely for purposes of confirming that he was within the jurisdiction of the court. The appearance was to his benefit as if he failed to appear, the conclusion would have been that he was not within the jurisdiction of the court and his suit would come a cropper. In other words, non-appearance before the court would have had adverse effects on him.

15. I have considered the circumstances of this case and am aware of the need to enforce court summons and the obligation on all persons to obey such summons. I am however, of the view that since the summons were to aid the sustenance of the applicant’s case and the none appearance in answer to the summons does not prejudice any of the parties and noting that by the intended withdrawal the case fails and the respondents are at liberty to take whatever action against the applicant within the law, the failure to appear by the applicant should not be a bar to the withdrawal.

16. Consequently, I allow the application to withdraw the entire suit herein. The suit is hereby marked as withdrawn. In the circumstances of the case, each party is to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022. ............................................A. K. NDUNGUJUDGE