[2017] KEHC 1820 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

JUDICIAL REVIEW CAUSE NO 2 OF 2017

(FORMERLY NAIROBI HC JUDICIAL REVIEW CAUSE NO 76 OF 2017)

1. PLATINUM DISTILLERS LTD

2. MICHAEL KING’RA.…………………………..…APPLICANTS

VERSUS

1. INSPECTOR-GENERAL OF POLICE

2. DIVISIONAL CRIMINAL INVESTIGATIONS

OFFICER, KANDARA

3. DIRECTOR OF PUBLIC PROSECUTIONS

4. SENIOR RESIDENT MAGISTRATE, KANDARA

5. ATTORNEY-GENERAL…………………….…RESPONDENTS

AND

EAST AFRICA BREWERIES LIMITED……INTERESTED PARTY

R U L I N G

1. In the amended chamber summons dated 20/03/2017 (the original chamber summons is dated 23/02/2017) the Ex Parte Applicants seek leave of the court to apply for judicial review to seek orders as follows –

(a) Certiorarito remove to this court for purposes of quashing Kandara SRM Criminal Case No,191 of 2017 (Republic –vs- Michael King’ara & 5 others)

(b) Certiorari directed at the 1st, 2nd and 5th Respondents to bring to this court for purposes of being quashed “the decision by them made on or about 17/02/2017 to institute and/or commence criminal proceedings against Michael King’ara (and 5 others) in relation to the manufacture, production, distribution, storage and retailing of Keg barrels, Keg alcohol and any Keg production in Kenya”.

(c) Prohibition directed to the 3rd Respondent, prohibiting him or any other officer acting with his authority from proceeding with the conduct and/or prosecution of Kandara SRM Criminal Case No. 191 of 2017 aforesaid.

(d) Prohibitiondirected against the 4th Respondent or any other judicial officer from trying, and/or carrying out any further proceedings in, Kandara SRM Criminal Case No.191 of 2017 aforesaid.

2. The Ex parte Applicants have also sought an order that such leave as sought, if granted, do operate as stay of proceedings in Kandara SRM Criminal Case No 191 of 2017aforesaid “in so far as the charges relate to the manufacture, production, distribution, storage and retailing of Keg barrels, Keg alcohol and any Keg production in Kenya”.

3. On 01/03/2017 the court directed, under the proviso to Order 53, Rule 1(4)of the Civil Procedure Rules, 2010 (the Rules), that the application be served and heard inter partes. Eventually the Respondents and the Interested Party filed their respective responses to the application by way of replying affidavits.

4. The court heard the application on 19/06/2017 and reserved ruling for 11/08/2017. That date however fell within the then recently re-introduced court recess (previously called vacation). There was further subsequent delay in preparation and delivery of the ruling due to pressure of work brought about by election petitions. The delay is regretted.

5. I have read the statutory statement and verifying affidavit filed together with the application. I have likewise read the respective replying affidavits filed by the Respondents and also by the Interested Party. Finally, I have considered the submissions of the learned counsels appearing and the various cases cited by them.

6. The court has the necessary discretion under Order 53, Rule 1 of the Rules to grant or deny the leave sought. Leave will normally be granted if, on the material before it, the court considers, without going into the matter in-depth, that there is an arguable case for granting leave. See the English case of R -vs- Secretary of State Ex Parte Harbage [1978] 1 ALL ER 324. Our Court of Appeal approved and applied this principle in In the Matter of an application by Samuel Muchiri Wanjuguna & 6 Others And In the Matter of the Minister for Agriculture And the Tea Act, Civil appeal No.144 of 2000. See also the case of Aga Khan Education Services, Kenya –vs- Republic (Through Ali Seif, Benson Wairagu & Joseph Ngethe Gitau) and Attorney-General [2004] e KLR.

7. What is disclosed by the material now before the court is as follows. The police came upon activity at a house and compound belonging to the 2nd Ex Parte Applicant which in their assessment involved the commission of various criminal offences in respect to properties (to wit, Keg barrels) that apparently belonged to the Interested Party.

8. Upon the Interested Party confirming (through its representatives) that many of the aforesaid Keg barrels belonged to it, and after getting advice and approval from the Office of the Director of Public Prosecutions, the police charged the 2nd Ex Parte Applicant and five other persons who were employees of the 1st Ex Parte Applicant (of which the 2nd Ex Parte Applicant was a director) with various criminal offences in respect to the Keg barrels found with them. This was vide Kandara SRM Criminal Case No 191 of 2017.

9. The Ex Parte Applicants however see it differently. In the action of the police and the Office of the Director of Public Prosecutions they see the hand of the Interested Party using those public bodies to further and protect against competition its own business, and thereby monopolizing the keg beer market by fighting the 1st Ex Parte Applicant tooth and nail to keep it out of the business.

10. The police have denied that they were moved by the Interested Party in their action of arresting and charging the 2nd Ex Parte Applicant and the others. They insist that they chanced upon the crimes being committed at the premises belonging to the 2nd Ex Parte Applicant, and only called in the Interested Party to verify if the many Keg barrels found there belonged to it.

11. On its part the Office of the Director Public Prosecutions says that pursuant to its constitutional and independent mandate it assessed the evidence gathered by the police and arrived at the considered decision that indeed there was evidence that various offences involving the Keg barrels belonging to the Interested Party had been committed sufficient to mount a prosecution.

12. On its part the Interested Party has stated that it made no complaint to the police regarding the Ex Parte Applicants and their employees but were called to a police station to look at various Keg barrels and verify if they belonged to it, which it did, and that it appeared that many Keg barrels belonging to it had been stolen or otherwise unlawfully obtained, and that it appeared that the Ex Parte Applicants and their workers were unlawfully altering them to look like they belonged to the 1st Ex Parte Applicant.

13. Issues involving any business rivalry between the 1st Ex Parte Applicant and the Interested Party is the domain of a civil court in a properly instituted civil action. This court was made to understand that indeed there is already such suit between them that was pending judgment in Nairobi.

14. Whether or not the 2nd Ex Parte Applicant and his five co-accused in Kandara SRM Criminal Case No 119 of 2017 committed the various offences they face there is the proper domain of that criminal court. It will hear the prosecution witnesses and any evidence the accused persons may choose to lead and call (if it gets to that). That court will then evaluate all the evidence placed before it and decide whether or not the charges have been proved against each and every accused person to the required standard. It is that criminal court that is equipped to assess the merits of the decision to charge the accused persons there and the merits of the charges laid against them.

15. This court however, sitting in judicial review, has the limited mandate of reviewing the legality of the impugned decision, in this present case, the decision to criminally charge the 2nd Ex Parte Applicant and the others.

16. The material now before this court does not even remotely indicate that the decision to charge the six persons was prompted by malice, or that the decision was patently unreasonable given the circumstances, or that in making the decision the Office of the Director of Public Prosecution abused its constitutional mandate.

17. Any defence that the accused persons may have to the criminal charges they face will be best placed before the criminal court trying them, not before this court. Only that way will justice be served in the criminal proceedings, not by interference from this court.

18. Upon my examination of the material laid before this court, I am unable to find any prima facie evidence of an arguable case. For the 1st Ex ParteApplicant there is another problem. It has itself not been charged in Kandara SRM Criminal Case No 191 of 2017. The accused persons in that case may be the 1st Applicant’s director and 5 employees. But they have all been charged in their individual and personal capacities. If the five employees were so minded they could have applied for leave to apply for judicial review. However, the 1st Ex Parte Applicant cannot purport to apply for them.

19. I find no merit in the amended chamber summons dated 20/03/2017. It is hereby dismissed with costs to the Respondents and the Interested Party. It is so ordered.

DATED, SIGNED AT MURANG’A THIS 30TH DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 1ST DAY OF DECEMBER 2017