[2017] KEHC 2105 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 622 OF 2017

IN THE MATTER OF AN APPLICATION BY PRAVIN GALOT FOR GRANT OF LEAVE TO APPLY FOR JUDICIAL REVIEW AND ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE CHIEF MAGISTRATES COURT , PRIVATE PROSECUTION NO. 2 OF 2017

BETWEEN

PRAVIN GALOT……………………..……..............…………......…APPLICANT

VERSUS

THE CHIEF MAGISTRATES COURT AT

MILIMANI LAW COURTS..…..…………....…………….......…RESPONDENT

THE DIRECTOR OF PUBLIC

PROSECUTIONS..…….…………………...………..1ST INTERESTED PARTY

MOHAN GOLAT……...………………………...…....2ND INTERESTED PARTY

RAJECH GOLAT ….………………..………...……...3RD INTERESTED PARTY

RULING ON LEAVE AND STAY

1. The exparte applicant in this case is Mr Pravin Galot a male adult of sound mind. By his chamber summons dated 9th October 2017, he seeks from this court leave to commence Judicial Review proceedings seeking orders of:

a) Certiorari to move into this court and quash all the proceedings, decisions and or ruling made in the Chief Magistrate’s Court at Milimani Law Courts in Private Prosecution case No. 2 of 2017.

b) Prohibition restraining the respondent and the 2nd interested party from proceeding with the prosecution of the exparte applicants in private prosecution case No. 2/2017 at the Chief Magistrate’s Court at Milimani Law Courts pending the hearing and determination of HCC No. 430 of 2012.

c) That the leave granted do operate as stay of any further hearing of private prosecution Case No. 2/2017 pending the hearing and determination of the substantive motion.

d) Costs of the application be provided for.

2. The chamber summons is predicated on the statutory statement and verifying affidavit of the exparte applicant Pravin Galot and supported by a bundle of annextures hereto.

3. The exparte applicant’s case as contained in the statutory statement and verifying affidavit and as submitted by his counsel Mr Were advocate is that the 2nd interested party did, vide private prosecution case No. 2 of 2017 file an application for leave to institute private prosecution proceedings against the applicant upon which the applicant filed a preliminary objection thereto contending that the proceedings before the Chief Magistrate’s court were without jurisdiction and that they were in violation of the orders of Musinga J( as he then was) in HCC 430 of 2012 wherein the learned judge prohibited the parties herein who are parties to that case from filing any other suit or application until the hearing and determination of that suit, except with leave of court.

4. On the part of the 2nd interested party opposing these proceedings, he filed a replying affidavit and a preliminary objection on 31st October, 2017 contending among others, that this matter is Resjudicata JR 651 of 2016 between the same parties wherein Hon Justice Odunga J determined the matter in favour of the 2nd interested party herein. Further, that this court has no jurisdiction to hear and determine the application herein and that the application is an abuse of the court process.

5. It was contended that the decision of Odunga J made on 12th July, 2017 dismissing the exparte applicant’s application which sought to prohibit private prosecution proceedings was never appealed against and that as this matter raises similar issues as those in the JR 651 of 2016, this matter is Resjudicata.

6. In addition, it was contended that Hon Odunga J made it clear that the 2nd interested party could commence private prosecutions against the exparte applicant herein denovo.

7. It was further contended that the Magistrates court whose proceedings and decision granting leave to commence private prosecution proceedings against the exparte applicant were never appealed from and neither did the applicant herein seek revision of that ruling made on 4th October, 2017 as stipulated in the Criminal Procedure Code.

8. It was further contended that this judicial review court cannot sit as an appellate court over the decision of Odunga J and the chief Magistrate’s decision and that the remedy for the applicant lies elsewhere.

9. The 2nd interested party urged the court to dismiss the exparte applicant’s application for leave and stay.

10. The respondent Chief Magistrate’s Court at Milimani Law Courts did not make any appearance despite service of the application.

11. The 3rd interested party who was joined to these proceedings later appeared and filed a replying affidavit wholly supporting the exparte applicant’s application and urging this court to allow the application as prayed.

12. The parties’ advocates urged the application orally, as discussed below.

13. In opposing the chamber summons for leave and stay, Mr Oonge counsel for the 2nd interested party argued that jurisdiction is everything, without which a court of law must down its tools and do no more.

14. And whereas the 2nd interested party’s counsel submitted orally that he had no objection to this court granting leave to the exparte applicant to apply, counsel nonetheless maintained that the matters subject of this application were the same matters which were considered by Honourable Odunga J in JR 651 of 2016 between the same parties. Accordingly, it was contended that this matter is resjudicata JR 651 of 2016.

15. The reason for asserting so is that in JR 651/2016 Honourable Odunga J made it clear that the prosecution against the exparte applicant could commence denovo. In other words, that if the 2nd interested party herein and another, wished to prosecute the exparte applicant, he could do so denovo. The learned judge also held that in such a case, the Director of Public Prosecution should be made a party to those proceedings.

16. It was therefore contended that the learned judge having determined the issue of whether or not the exparte applicant could be prosecuted, the applicant cannot challenge that decision through these Judicial Review proceedings as to do so would be tantamount to sitting on the appeal of the decision of Hon Odunga J.

17. It was further submitted by the 2nd interested party that in any case, the decision which is being challenged was an order made by the Chief Magistrate’s Court in private prosecution case No. 2/2017 dismissing a preliminary objection raised by the exparte applicant herein who had claimed that the proceedings before the Chief Magistrate’s court were made without jurisdiction because Honourable Musinga J in HCC 430 of 2012 had made it clear that there should be no filing of any other suit or application except with leave of the Court” which order was made on 10th July 2012 and extended on 8th October 2012 and that it was to remain inforce until that suit between these same parties is heard and determined.

18. Accordingly, it was argued that the exparte applicant herein should have filed for revision of that order of the Chief Magistrate rejecting the preliminary objection raised by the exparte applicant, or that in the alternative, he should have challenged the order by way of an appeal and not by way of Judicial Review. It was contended that the Criminal Procedure Code has safeguards/ procedures for challenging orders made in a private prosecution proceedings.

19. It was also contended that Honourable Mumbi J in Petition No. 539/2012 had dismissed the application where exparte applicant had challenged his private prosecution by the 2nd interested party herein.

20. On the part of the exparte applicant and the 3rd interested party and the 1st interested party Director of Public Prosecutions who are not opposed to the application, but who opposed the preliminary objection, it was contended that the order of Honourable Justice Odunga J did not authorize the filing of fresh proceedings in contravention or violation of the orders of Musinga J in HCC 430/2012, which latter orders expressly barred parties to that dispute, who are also parties to this dispute, from filing any other suit or application until HCC 430/12 was heard and determined.

21. It was submitted that as the orders in HCC 430/12 are still in force, the 2nd interested party herein or any party to those proceedings could not file any other proceedings as that would be contemptuous of court orders made by a court of competent jurisdiction.

22. In a rejoinder Mr Were counsel for the exparte applicant also maintained that they could not appeal against the order dismissing their preliminary objection by the Chief Magistrate’s Court because they did not admit jurisdiction of the Chief Magistrate’s Court and that it is this court that has jurisdiction to check on the usurpation of jurisdiction by the subordinate court especially where the subordinate court decides to ignore orders of the High Court barring any proceedings, by purporting to continue with private prosecution of the exparte applicant.

23. It was submitted that the threshold for a preliminary objection had not been met by the 2nd interested party and that the exparte applicant had demonstrated that he has a prima facie arguable case.

24. The 3rd interested party who is s also a respondent in the proceedings before the subordinate court added his voice to the matter, while supporting the exparte applicant’s case and contended in submission by his counsel Mr Kenyatta that Resjudicata does not arise or at all because the orders in HCC 430/2012 are binding on all the parties who were parties to that suit and who were barred from filing any other proceedings until that suit is heard and determined. Further, that as no leave of the High Court was sought to file the private prosecution proceedings, in compliance with that order, the subordinate court had flouted and or violated the order of the High Court in HCC 430 of 2012 by entertaining the private prosecution proceedings.

25. Mr Kenyatta maintained that the issue of leave to file the private prosecutions matter was never canvassed in JR 651/2016 before Honourable Odunga J and that Honourable Odunga J quashed the decision on account that the applicants therein were not accorded an opportunity to be heard in the matter of the private prosecution.

26. It was further maintained that all new proceedings filed challenge the directorship of the companies which Musinga J in HCC 430/2012 forbade hence this court has jurisdiction to determine the issues raised herein and to stop the lower court from continuing with hearing the private prosecution until the substantive motion if filed is heard and determined , because the said motion if successful shall be rendered nugatory as the prosecution will have been conducted fully.

DETERMINATION

27. I have considered all the foregoing in my humble view, the main issues in this matter for determination are:

1) Whether this court has jurisdiction to entertain these proceedings.

2) Whether the court should grant leave to apply for Judicial Review and if so, whether such grant of leave should operate as stay of proceedings pending before the subordinate court.

3) What orders should this court make.

4) Who should bear costs of these proceedings.

28. On whether the court has jurisdiction to hear and determine these proceedings, the court notes that the respondent and 1st and 3rd interested parties did not oppose the application for leave to apply and therefore the only contentious issue as far as these parties, other than the 2nd interested party are concerned, is whether the court should stay the proceedings pending before the subordinate court, which proceedings relate to private prosecution of the exparte applicant herein.

29. However, as the 2nd interested party raised the issue of jurisdiction as a preliminary issue, this court must first determine that issue before delving into whether or not leave and stay are available to the exparte applicant.

30. In addition, as the power to grant leave is a discretionary one, and as the 2nd interested party has dwelt on the issue of jurisdiction of this court which then negates the concession that leave can be granted but not to operate as stay, and as jurisdiction cannot be conferred by consent, I must determine that jurisdictional question.

31. I have examined the issues raised in the preliminary objection. In deciding whether to uphold the preliminary objections the court is guided by the land mark decision of Mukisa Biscuits Manufacturing Ltd Vs. West End Distributors Ltd (1969) E.A 696 where the court held that preliminary objection consists of point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary objection may dispose of the suit. The court further held that a preliminary objection would normally be argued on the assumption that all facts pleaded by the other side are correct and cannot be raised if any facts have to be ascertained or if what is sought is judicial discretion.

32. Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiorithe Court can suo moturaise it. It is desirable that Preliminary Objection be raised early on the issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity. See (Belgore J.S.C. See Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd, (1992) 5 NWLR (Pt. 244) 675 at 693 8).

33. The locus classicusdecision in Kenya on jurisdiction is the celebrated case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd{1989} KLR 1where Justice Nyarangi JJA (as he then was) held:

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

34. John Beecroftin a Treatise headed “Words and Phrases Legally Defined” 14 Volume 3:1-N, at Page 113 states the following about jurisdiction:-

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and maters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the fact exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”

35. A Court’s jurisdiction flows from either the Constitution or statute or both or and by principles laid out in judicial precedent.

36. Chief Justice Marshall of the U.S.A, in Cohens vs. Virginia 17 19 U.S. 264 (1821)stated that:

“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty.”

37. The 2nd interested party has argued the issue of jurisdiction from many angles focusing on the doctrine of Resjudicata and that this court cannot quash the proceedings and orders of the Chief Magistrate’s Court which dismissed a preliminary objection, which ruling was never appealed against or reviewed. On the other hand, the Director of Public Prosecution and the 3rd interested party concede to the application as a whole, and support the exparte applicant’s version.

38. From the serious submissions placed before this court by both sides, I find that there are seriously contested matters as to whether or not these proceeding are Resjudicata any other proceedings or whether the exparte applicant should have appealed against the ruling of the Chief Magistrate’s court wherein he granted leave to apply for commencement of private prosecutions of the exparte applicant by the 2nd interested party herein.

39. For Resjudicata to be determined as a preliminary issue, the facts must be very clear and the parties and the court need not probe into the facts of the earlier cases in depth- touching on the merits of the suits/proceedings.

40. In this case, it is indeed arguable as to whether this matter is Resjudicata HC 651 of 2016 or whether this court can exercise jurisdiction over the Chief Magistrate’s Court proceedings.

41. This court’s jurisdiction over the subordinate Courts and Tribunals is espoused in Article 165(6) & (7) of the Constitution. That jurisdiction is supervisory jurisdiction.

42. But as to whether this matter is Resjudicata HCC 651 of 2016 is debatable in view of the emerging allegations that the High Court in HCC 430 of 2012 had prohibited the parties disputing therein from filing any other suit or application touching on the subject matter of the dispute until that suit was heard and determined or with leave of court.

43. In view of the above, therefore, I find that the preliminary objection to jurisdiction is not merited. I decline to uphold it and dismiss it.

THEREFORE, SHOULD LEAVE TO APPLY BE GRANTED?

44. Having found and overruled the preliminary objection to these proceedings, the next question is whether the court should grant to the exparte applicant leave to institute judicial review proceedings.

45. The rationale for the requirement that leave be sought and obtained is to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the Court or those applications which are statute barred. However, leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case.

46. Leave stage is thus a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralyzed for months because of pending court action which might turn out to be unmeritorious. See Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993, Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321, Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.

47. As was held byWaki, J (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.”

48. The yardstick for the grant of leave was however set by the Court of Appeal in Mirugi Kariuki Vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:

“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”

49. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Television Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal was of the view that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave.

50. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Like the Biblical mustard seed which a man took and sowed in his field and which the smallest of all seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air came and sheltered in its branches, judicial review stemmed from the doctrine of ultra vires and the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. One can safely state that the growth of judicial review can only be compared to the never-ending categories of negligence after the celebrated case of Donoghue vs. Stephensonin the last century. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

51. What emerges from the foregoing is that the grant of leave to commence judicial review proceeding is neither a mere formality nor a practice of magic. It is not to be granted as a matter of course. Delay is one of the factors which a Court often considers in deciding whether or not to grant leave. The applicant for leave is under an obligation to show to the court that he or she has a prima facie arguable case for grant of leave. Therefore whereas he is not required at that stage to go into the depth of the application, he has to show that he has not come to court after an inordinate delay and that the application is not frivolous, malicious and futile.

52. At this stage the court is therefore only concerned with whether the applicant has demonstrated that he has a prima facie arguable case for consideration at the substantive stage and therefore whether he should be accorded an opportunity to ventilate his grievances.

53. As a fundamental right and portion of the rule of law, the right to access justice demands that all state organs and other justice sector institutions should be open to all persons who allege that their rights have been violated, or who are in search of a form of justice. The right entails the ability of aggrieved subjects to access such fora and services devoid of undue roadblocks, which tend to defeat the ends of justice. The right is also inseparably interlinked with the availability of meaningful and reasonable remedy and equal treatment.[1]

54. Although the 2nd interested party and the 3rd interested party have raised very serious issues of jurisdiction of this court and the court below whose proceedings are impugned herein, the issues raised are hotly contested by either side with each party relying on the proceedings of the superior court in different cases and therefore what I gather is that each party has an arguable point which this court will have an opportunity to determine indepth at the substantive stage, with all the relevant material and detailed arguments placed before it. Delving into the substantive matters at this stage will no doubt prejudice the outcome of the intended proceedings and embarrass the judicial process.

55. Matters which are raised as preliminary objections but which are argumentative and contentious as was in this case, though raising issues of jurisdiction on the basis of Resjudicata which is not clear from the pleadings and affidavits and submissions, and where there is no express ouster of jurisdiction of the court by statute or by the Constitution are matters which cannot be disposed of at this stage as the issues which were raised were conclusions of law and inferences construed by parties from the proceedings of the superior court and of the subordinate court.

56. Furthermore, the exparte applicant is challenging jurisdiction of the subordinate court to hear and determine the private prosecution case which in itself raises a prima facie arguable case for consideration by this court.

57. For instance, on whether the applicant should have appealed or sought to review the decision of the subordinate court which is also impugned in these proceedings is an arguable issue since the applicant is claiming that the subordinate court had in the first place, no jurisdiction to hear the application for leave to institute private prosecution as do so was in violation of the orders of Musinga J in HCC 430/2012 which were to the effect that no party should file any suit or application without leave of the High Court.

58. In my humble view, therefore, bearing in mind all the above, I am satisfied that the applicant has established an arguable prima facie case for indepth inquiry into the issues raised by both parties.

59. It is for that reason that I find that the threshold for leave has been met and therefore I have no hesitation in granting leave to the exparte applicant to institute Judicial Review proceedings as sought in the chamber summons dated 9th October 2017.

60. The substantive notice of motion to be filed and served with 10 days from the date hereof, together with skeletal submissions. The respondent and interested parties to file and serve their responses within 10 days from date of service together with skeletal submissions. The matter shall be mentioned on 29TH November, 2017 to confirm compliance and for further directions on the mode of hearing.

SHOULD THIS COURT GRANT STAY?

61. The decision whether or not to grant a stay pursuant to leave is no doubt an exercise of judicial discretion and that discretion like any other judicial discretion must be exercised judicially. The circumstances under which the Court may grant an order that the grant of leave do operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise is now settled. Where the decision sought to be quashed has been implemented leave ought not to operate as a stay, as was held in George Philip M Wekulo vs. The Law Society of Kenya & Another Kakamega HCMISCA No. 29 of 2005.

62. In Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 Maraga, J (as he then was) expressed himself as follows:

“As injunctions are not available against the Government and public officers, stay is a very important aspect of the judicial review jurisdiction… In judicial review applications the Court should always ensure that the ex parte applicant’s application is not rendered nugatory by the acts of the Respondent during the pendency of the application and therefore where the order is efficacious the Court should not hesitate to grant it though it must never be forgotten that the stay orders are discretionary and their scope and purpose is limited… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is however not appropriate to compel a public body to act… A stay order framed in such a way as to compel the Respondents to reinstate the applicant before hearing the Respondent cannot be granted.”

63. The 2nd interested party vehemently opposed that prayer for stay contending that as the court herein has no jurisdiction to hear and determine the matter, it will prejudice the 2nd interested party if stay of private prosecution proceedings is granted.

64. Having considered the arguments of the participating parties to these proceedings, in line with the provisions of Order 53 Rule (1) (4) of the Civil Procedure Rules on stay, I note that there is no real or imagined prejudice which will be occasioned to the 2nd interested party if the private prosecution proceedings are stayed to await the outcome of these proceedings which can be fast tracked as the applicant and the rest of the parties have demonstrated that they are eager to have this matter which was filed under extreme urgency heard and determined expeditiously.

65. The power to grant stay is a discretionary one and may be issued in deserving cases in the exercise of the court’s inherent jurisdiction, having regard to the prevailing circumstances (See R vs DPP& Another exparte Patrick Onyango Ogola [2016] e KLR.

66. Order 53 Rule (1) (4) permits this court to allow stay of the implementation of the impugned decision or proceedings which are impugned until the substantive notice of motion is heard and determined or until further orders of the court. Where the applicant in the application for leave seeks for certiorari or prohibition, like in the instant case.

67. This court is ready, able and willing to expedite the hearing and determination of these proceedings once commenced and once the directions as given are adhered to.

68. The subject matter to be preserved at this stage is the private prosecution proceedings pending before the subordinate court, which proceedings, in my humble view, and as submitted by the exparte applicant, if allowed to continue, will, at the end of it all be a waste of judicial time and resources not only on the part of the court but also on the parties if at the end of the whole trial, this court finds that the proceedings ought not to have been commenced in the first instance.

69. Therefore, albeit stay is not a matter of course, I am satisfied in these proceedings that unless stay is granted, the exparte applicant, if successful , would be rendered a pious explorer in the judicial process. See Republic vs Anti Counterfeit Agency & 2 Others Exparte FRM(EA) Packers Ltd & Another [2017] e KLR; in R.H. Ashfoth Hospital Authority [2003] WLR 127 at 138, Lord Dyson LY started inter alia that:

“ the purpose of stay in judicial Review proceedings is to suspend the proceedings that are under challenge pending determination of the challenge. It preserves the status quo. This will and the judicial process and make it more effective. It will ensure that so far as possible if a party is ultimately successful in his challenge, he will not be denied the full benefit of his success…….The administrative court routinely grants stay to prevent the implementation of a decision that has been made but not yet carried out in effect or fully carried into effect.”

70. The applicant approached this court expeditiously. He has been vigilant. It follows that a little waiting to enable the parties ventilate their grievances in this forum cannot be said to be abuse of court process or prejudicial to the 2nd interested party as no such prejudice has been demonstrated by affidavit evidence.

71. As was held in the Anti Counterfeit Agency Case( supra) citing Econet Wireless Ltd vs Econet Wireless Nigeria Ltd & Another [FHD/KD/CS/39/208 that:

“…….parties who have invited the court to adjudicate on a matter which they are disputing over ought not to create a situation whereby the decision to be made by the court would be of no use.”

72. In this case, I find that the need to good administration requires that I grant stay so as not to foist upon the court a situation of complete hopelessness or render nugatory the judgment or order of the court because courts of law ought not to act in vain.

73. Accordingly, I hereby order that the leave herein granted shall operate as a stay of any further proceedings or hearing of private prosecution case No. 2 of 2017 pending before Chief Magistrate’s Court at Milimani Law Courts, until further orders of this court.

74. Costs shall be in the cause.

Dated, signed and delivered in open court at Nairobi this 3rd day of November 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Were advocate for the exparte applicant

Miss Spira for the 1st interested party

N/A for the Respondent

Mr Wandungi and MR Oonge for the 2nd interested party

Mr Kenyatta for the 3rd interested party

Court Assistant: George

[1] Article 159 (2) (d) of the Constitution.