[2015] KEHC 2235 (KLR)
The court found that the dispute between the exparte applicant and the interested party arose from a lease agreement that was frustrated by a court order, and the agreement itself provided mechanisms for dealing with breaches or frustration. There was no evidence that the applicant obtained money fraudulently or...
Source-derived case information.
- Citation
- [2015] KEHC 2235 (KLR)
- Parties
- Applicant: Republic; Respondent: Attorney General; Respondent: Inspector General of Police; Respondent: Chief Magistrate Kitale; Applicant: Apollo Ambutsi Shikanga; Interested Party: Koech Chepkwony Tarus
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2014
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed. Orders of certiorari and prohibition granted. Each party to bear own costs.
- Legal Topics
- Judicial Review, Abuse of Process, Lease Disputes, Fraud Allegations, Prohibition Orders, Certiorari
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Attorney General
Respondent
Inspector General of Police
Respondent
Chief Magistrate Kitale
Respondent
Apollo Ambutsi Shikanga
Applicant
Koech Chepkwony Tarus
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the prosecution of the exparte applicant in Kitale Chief Magistrate Court Criminal Case No. 182 of 2014 is an abuse of the court process.
- 2 Whether the dispute between the exparte applicant and the interested party is civil or criminal in nature.
- 3 Whether judicial review orders of certiorari and prohibition should issue to quash the charge sheet and prohibit further prosecution.
Ratio Decidendi
The court found that the dispute between the exparte applicant and the interested party arose from a lease agreement that was frustrated by a court order, and the agreement itself provided mechanisms for dealing with breaches or frustration. There was no evidence that the applicant obtained money fraudulently or that the matter had a criminal element. The failure to refund money, in the circumstances, did not amount to a criminal offence but was a civil matter. Allowing the prosecution to proceed would be oppressive, unfair, and serve only to embarrass the applicant. Therefore, the court granted the orders of certiorari and prohibition sought by the applicant, quashing the charge sheet...
Court Disposition
Application allowed. Orders of certiorari and prohibition granted. Each party to bear own costs.
Orders
- An order of certiorari is issued to quash the charge sheet in Kitale Chief Magistrate Court Criminal Case No. 182 of 2014.
- An order of prohibition is issued prohibiting the Chief Magistrate Kitale Law Courts or any other magistrate from prosecuting or proceeding with any case based on the complaint subject of CMCC No. 182 of 2014.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION NO. 6 OF 2014
IN THE MATTER OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF THE LAW REFORM ACT
AND
IN THE MATTER OF THE PENAL CODE
BETWEEN
REPUBLIC…………………………………………………………... APPLICANT
VERSUS
THE ATTORNEY GENERAL …………………………….…… 1ST RESPONDENT
INSPECTOR GENERAL OF POLICE ………………...……. 2ND RESPONDENT
THE CHIEF MAGISTRATE KITALE……….……………..……3RD RESPONDENT
AND
APPOLLO AMBUTSI SHIKANGA......................................EXPARTE APPLICANT
KOECH CHEPKWONY TARUS ........................................... INTERESTED PARTY
JUDGMENT
The exparte applicant Apollo Ambutsi Shikanga has moved the court for orders that this court be pleased to issue an order judicial review orders of certiorari to remove to this court for purposes of quashing the charge sheet in respect of Kitale chief magistrate court criminal case no. 182 of 2014 and orders of prohibition prohibiting the Chief Magistrate Kitale Law Courts or any other magistrate from prosecuting or proceeding with any case based on the complaint subject of CMCC No. 182 of 2014.
The exparte applicant gave the background leading to his prosecution to be an agreement he had entered into with one Koech Chepkwony Tarus where he was to lease a portion of his entitlement in Cherangani/Noigam/66/4/10 being part of the estate of one Barnabas Ambubi Masingili but the said transaction was frustrated by a court order of 29th January, 2013 which restrained all beneficiaries and administrators from leasing out the said land. He did not obtain the money fraudulently therefore the matter between him and the complainant was purely a civil matter, with no criminal element and he therefore ought not to have been charged with a criminal offence.
The applicant relied on 3 notable cases namely, A.G & another exparte Hussein Mudolee (H.C. Misc. Appl. No.898 of 2003 (unreported) Nyamu judge (as he then was, R. Vs. Attorney General and Chief Magistrate Court exparte, Kipngeno Arap Ngeny and Githunguri Vs. R (1989) KLR 1.
The Deputy Public Prosecutor entered appearance for the 1st & 2nd respondent and filed grounds of opposition as follows; the application was inept, ambiguous and defective, the application does not meet the basic threshold, it seeks to pre-empt the outcome of criminal charges facing the exparte applicant, the grounds relied on are in form of defence for the charges being faced.
At the hearing of the application dispute service of a hearing notice, the 1st and 2nd respondents failed to appear and the matter therefore proceeded exparte.
The exparte applicants counsel in highlighting his submissions reiterated that the matter was not criminal, the charge was malicious and meant to embarrass the exparte applicant who is an advocate.
I have considered the pleadings filed, submissions by the exparte applicant and authorities entered. The Director of Public Prosecution filed grounds of opposition but did not file any submissions to expound on the general grounds neither was there representation in court as noted above.
The exparte applicant stated and produced documents to the effect that on the 15th May 2012 he entered into an agreement with one Koech Chepkwony Tarus to lease 40 acres of L.R. No. Cherangany/Noigam/6614/10 at an agreed price of Kshs. 260,000/= for the period of 1st January 2013 to 31st December, 2013, a court order stopping transactions on the said land in essence frustrated the lease that had been entered into. The said agreement set mechanisms of termination and/or breaches.
Although the exparte applicant says that the interested applicant has not claimed his refund, he does not explain on his part why he has not refunded. None the less this in my view does not mean that failure of the exparte applicant to fulfil his part of the agreement renders him criminally liable. This is a civil/commercial matter and stated earlier the agreement gives mechanisms of dealing where the agreement has been frustrated by an omission or breach by either party.
To allow the prosecution in my view, therefore will not only be oppressive but unfair in the circumstances of the case and will serve no other purpose but to embarrass the applicant. In this regard prayers a & b of the application. Each party meet his costs.
Dated at Bungoma this 6th day of October, 2015.
ALI-ARONI
JUDGE.