[2001] KEHC 886 (KLR)
The High Court held that the mere existence of a civil dispute over accounts does not justify the issuance of an order of prohibition to halt criminal proceedings in a subordinate court. The applicant failed to demonstrate that the criminal case was brought for oppressive purposes or constituted an abuse of process....
Source-derived case information.
- Citation
- [2001] KEHC 886 (KLR)
- Parties
- Applicant: Paul Mwangi Nderitu; Respondent: The Principal Magistrate, Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 901 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- RCN Kuloba
- Legal Topics
- Judicial Review, Prohibition Orders, Criminal Proceedings, Civil Disputes in Criminal Context
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwangi Nderitu
Applicant
The Principal Magistrate, Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the High Court should grant an order of prohibition to stop criminal proceedings in a subordinate court on the basis that the matter has a civil aspect.
- 2 Whether the existence of a civil dispute over accounts justifies halting criminal prosecution.
Ratio Decidendi
The High Court held that the mere existence of a civil dispute over accounts does not justify the issuance of an order of prohibition to halt criminal proceedings in a subordinate court. The applicant failed to demonstrate that the criminal case was brought for oppressive purposes or constituted an abuse of process. The court emphasized that arguments regarding the absence of a criminal offence or the civil nature of the dispute should be raised and determined before the trial court, not through judicial review. Excessive interference by the High Court in ongoing criminal proceedings, especially where the subordinate court has legitimate jurisdiction, would undermine the administration of...
Court Disposition
application dismissed
Orders
- The application for an order of prohibition is dismissed.
- No order is made as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS
MISCELLANEOUS APPLICATION NO 901 OF 2001
PAUL MWANGI NDERITU ……………………………… APPLICANT
VERSUS
THE PRINCIPAL MAGISTRATE, NAIROBI …………. RESPONDENT
R U L I N G
This is an application for judicial review so that an order of prohibition may be granted to stop criminal proceedings in a subordinate court.
It is said that the criminal case is brought in order to pressurize the applicant into paying monies which must be ascertained after a reconciliation of accounts.
There is no evidence to show that this criminal case is not brought for the purpose of upholding the law but for oppressive purposes. On the contrary, it is the applicant who by this application, is seeking to pressurize the magistrate’s court to abandon the exercise of its criminal jurisdiction in a matter in which it has legitimate jurisdiction.
The mere fact that there is a dispute about accounts between certain persons and an applicant should not be a basis for stopping the criminal process in a subordinate court. The mere fact that a matter which forms the subject of criminal proceedings carries with it a civil flavour, should not be a basis for stopping a criminal case. In some instances things civil may have a criminal angle to them. It is for a party saying that there is no crime committed to demonstrate that position before the criminal trial court. He can do so by bringing to that court the relevant law or the relevant facts, or by destroying the case made out against him by the prosecution, and generally by showing that the prosecutor has not discharged its requisite burden of proof beyond reasonable doubt, that he is guilty of the offence as charged. It is for the prosecutor to prove the accused’s guilt unless the case is one of strict or absolute liability or otherwise an exceptional situation when the overall burden of proof is placed on an accused. But whatever the case, these are things to happen in the trial court.
I know that a person does not have to wait till the trial of a criminal case to get and acquittal. Sometimes such a waiting can be a terrible torment and can have one spend worrisome anxious moments. But the administration of the criminal justice in subordinate courts, should not be stifled, stultified and rendered moribund, by excessive interferance with it by the High Court whenever there is a dispute about accounts or whenever there is a shout “This is civil!”. In the instant case, the court does not find any undue pressure to submit. I find no abuse of the criminal process. I find no improper invocation of the criminal process. What is told to this court is legitimate argument in the subordinate court for that court’s consideration.
The application is dismissed. It is so ordered, ex tempore .
R. KULOBA
JUDGE
10. 12. 2001