[2023] KEHC 19743 (KLR)

Republic v Chief Magistrate, Milimani Law Courts; Bakry & 2 others (Exparte); Director of Public Prosecutions & another (Interested Parties) (Judicial Review Miscellaneous Application E003 of 2023) [2023] KEHC 19743 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19743 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Miscellaneous Application E003 of 2023

OA Sewe, J

June 30, 2023

Between

Republic

Applicant

and

The Chief Magistrate, Milimani Law Courts

Respondent

and

Hamid Ahmed Bakry

Exparte

Samiya Abdalla Salim Bajaber

Exparte

Mohamed Ahmed Bakry

Exparte

and

The Director Of Public Prosecutions

Interested Party

Abdi Warsame Hirsi

Interested Party

Ruling

1. The notice of motion dated May 29, 2023 was filed by the Director of Public Prosecutions, the 1st interested party herein. It is expressed to have been brought under articles 157 and 159(2)(d) of the Constitution of Kenya, 2010, as well as rule 8(2) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (otherwise known as “the Mutunga Rules”) for orders that:(a)Spent(b)The court be pleased to transfer this judicial review application to the High Court of Kenya at Nairobi for hearing and determination;(c)The court be pleased to review, vary, discharge and or set aside the orders issued on May 16, 2023 staying Milimani Chief Magistrate’s miscellaneous application No E247 of 2023: Director of Public Prosecutions v Samiya Abdalla Salim Bajaber & 2 others, pending before the Chief Magistrate’s Court at Milimani (Hon Gilbert Shikwe,PM).(d)The court be pleased to grant any further and or other order that it may deem just and fit.(e)The costs of the application be in the cause.

2. The application was premised on the grounds that the court issued orders on May 16, 2023 granting leave to the applicant to apply for judicial review orders and that the leave so granted to operate as stay of execution of the decision of the respondent in Milimani Chief Magistrate’s miscellaneous application No E247 of 2023: Director of Public Prosecutions v Samiya Abdalla Salim Bajaber & 2 others (hereinafter, “the extradition proceedings”). The applicant further averred that the orders of this court have the effect of delaying the application in the extradition proceedings, thereby jeopardizing Kenya’s compliance with its international obligations.

3. The application was supported by the affidavit of Victor Juma Owiti, HSC, a principal prosecution counsel in the office of the 1st interested party and one of the prosecution counsel instructed on behalf of the Director of Public Prosecutions to handle the extradition application. He averred that the 1st and 3rd ex parte applicants are fugitive criminals sought by the United Republic of Tanzania to face criminal charges for allegedly obtaining USD 725,000, equivalent to approximately Kshs 90,625,000 and Tshs 2. 1 billion, belonging to the 2nd interested party. He added that they are therefore sought for the purposes of facing criminal charges of obtaining money by false pretences contrary to section 302 of the Penal Code, cap 16 of the Laws of the United Republic of Tanzania vide Criminal Case No 177 of 2022: Republic v Samya Abdallah Salim Bajaber & 2 others.

4. At paragraphs 2 to 11 of the supporting affidavit, Mr Owiti furnished the court with the background information in connection with the extradition proceedings. He averred at paragraph 12 for instance that, in obtaining the order of stay, theex parte applicants did not make material disclosure, particularly in failing to disclose that they made an application before the High Court of Kenya at Nairobi against the extradition proceedings vide High Court constitutional petition No E017 of 2023: Samiya Abdalla Salim Bajaber & another v Director of Public Prosecutions; and that there is also another matter, namely High Court criminal revision No E168 of 2023: Director of Public Prosecutions v Samiya Abdalla Salim Bajaber & another, pending before the High Court in Nairobi.

5. According to Mr Owiti, the factual matrix and the grounds upon which the 1st and 3rd ex parte applicants moved this Court for Judicial Review are best left for consideration by the respondent and for their defence during their criminal trial, should they be extradited. He added that the 1st interested party will suffer grave prejudice if the application for transfer is not granted as its right to a fair hearing would be severely hampered; while the 1st and 3rd ex parte applicants will suffer no prejudice as they are currently out on bail.

6. The application was resisted by the ex parte applicants and a replying affidavit to that effect filed herein, sworn on June 1, 2023 by the 3rdex parte applicant, Hamid Ahmed Bakry. Other than laying the factual basis for their application before this court and stating why they opted to file the same in this court, the 3rd ex parte applicant also explained that High Court constitutional petition No. E017 of 2023 was filed for the purpose of compelling the 3rd interested party to supply them with documents upon their arrest. Thus, the 1st ex parteapplicant explained that since it was overtaken by events upon their release, the said petition was withdrawn. A copy of the notice of withdrawal was annexed to the 3rd ex parte applicant’s affidavit as annexure “HAB-1”

7. The application was canvassed orally on June 5, 2023. Mr Owiti for the 1st interested party reiterated his averments in the supporting affidavit and insisted that, whereas the High Court has unlimited jurisdiction, the proper forum for the hearing and determination of this particular judicial review matter is at the High Court in Nairobi. He based his submission on the fact that the impugned extradition proceedings are being handled by the respondent in Nairobi; and that there are other related matters that were filed in Nairobi, although one of them, petition No E017 of 2023, has since been withdrawn.

8. On the stay orders, it was the submission of Mr Owiti that the instant judicial review application was filed for ulterior purposes; and in particular to delay the extradition proceedings. He further submitted that all the issues raised herein by the ex parte applicants are issues that can be canvassed before the respondent in the extradition proceedings; and therefore that no prejudice will be suffered by theex parte applicants should the orders sought be granted.

9. Mr Omwenga for the 2nd interested party supported the application and associated himself fully with the submissions of Mr Owiti. He added that it would serve the public interest by saving the tax payer additional expenses if the application was transferred to Nairobi. He therefore prayed for the transfer of this application to the High Court at Nairobi.

10. On behalf of the ex parte applicants, Mr Choka relied on the affidavit of the 3rd ex parte applicant. In his view, the 1st interested party did not state any reason for the transfer of this matter to the High Court at Nairobi. He cited article 48 of the Constitution as the provision under which the ex parte applicants approached this court for judicial review. He therefore urged the court to find that, since all the acts in question happened in Mombasa, it is the 1st interested party, and not the ex parte applicants, that is intent on forum shopping.

11. I have given careful consideration to the application as well as the affidavits filed in respect thereof by the parties. I have also considered the oral submissions made herein by learned counsel. The starting point in this discussion is the jurisdiction of the High Court as provided for under article 165(3)(a) of the Constitution, which stipulates, in part, that:Subject to clause (5), the High Court shall have-a)Unlimited original jurisdiction in criminal and civil matters;

12. The foregoing notwithstanding the High Court (Organization and Administration) Act, No 27 of 2015, provides thus in section 25:The court shall exercise its jurisdiction in accordance with the rules of practice and procedure prescribed by written law.

13. It is to be recalled that the purpose of the Act, as set out in the preamble thereto, is to:“…give effect to article 165 (1)(a) and (b) of the Constitution; to provide for the organization and administration of the High Court of Kenya and for connected purposes.”

14. Accordingly, for purposes of article 165(3) and (6) of the Constitution, section 12(3) of the High Court (Organization and Administration) Act provides that:“The filing of appeals, bail applications, and references from the subordinate courts, tribunals and other bodies or authorities within the regions designated by the Chief Justice under the Rules, shall be made at the High Court station with the corresponding supervisory jurisdiction.”

15. The instant matter is neither an appeal nor a reference from the subordinate court. It has been filed pursuant to the court’s original jurisdiction under sections 8 and 9 of the Law Reform Act, chapter 26 of the laws of Kenya as read with order 53 rules 1, 3 and 4 of the Civil Procedure Rules to challenge an administrative decision by the 1st interested party. In the circumstances, the court is not here concerned with the merits of the impugned decision or whether or not a prima facie case warranting the extradition of the ex parte applicants exists. A judicial review court is concerned more with the decision making process. And, as has been pointed out hereinabove, the decision in issue is not that of the respondent (the Milimani Chief Magistrate’s Court), but the decision of 1st interested party (the Director of Public Prosecutions).

16. If suffices therefore for the ex parte applicants to allege, as they did at paragraphs 8 to 26 of the supporting affidavit, that the subject contracts were entered into in Mombasa where the subject hospital, Mombasa Breeze Hospital, is situated. In the circumstances the ex parte applicants were within their rights to approach the High Court at Mombasa. Needless to mention that the Office of the Director of Public Prosecutions is a constitutional office and therefore has presence in most if not all of the counties of Kenya; and therefore the issue of expenses cannot of itself be a valid ground for transfer. Indeed, section 14 of the Office of the Director of Public Prosecutions Act,No 2 of 2013 is explicit that:Pursuant to article 6(3) of the Constitution, the office shall ensure reasonable access to its services in all parts of the Republic.

17. Consequently, I am not persuaded that good cause has been shown for the transfer of this matter to the High Court at Nairobi.

18. As for the setting aside of the stay orders issued herein on May 16, 2023, Mr Owiti submitted simply that the same has the effect of delaying the extradition proceedings, thereby jeopardizing Kenya’s compliance with its international obligations. It bears repeating however that the object of this judicial review application is not to determine whether or not the ex parte applicants ought to be extradited but to ensure that, even as Kenya complies with its international obligations, decisions are made in accordance with the dictates of the rule of law. Thus, inRepublic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others [2018] eKLR Hon Mativo, J (as he then was) aptly stated:‘’…Judicial review is about the decision-making process, not the decision itself. The role of the court in judicial review is supervisory. It is not an appeal and the court should not attempt to adopt the forbidden appellate approach. Judicial review is the review by a judge of the High court of a decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction- reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. Judicial review is a means to hold those who exercise public power accountable for the manner of its exercise. The primary role of the courts is to uphold the fundamental and enduring values that constitute the rule of law. Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the process followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere.’’

19. It is therefore my finding that the ex parte applicants are entitled to a hearing in respect of their substantive judicial review application to its logical conclusion; and therefore that, no justification has been shown for the setting aside of the stay orders given herein on May 16, 2023.

20. In the result, I find no merit in the 1st interested party’s application dated May 29, 2023. The same is hereby dismissed with no order as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 30THJUNE 2023OLGA SEWEJUDGE