[2014] KEHC 4170 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR MISC. CIVIL APPLICATION NO. 133 OF 2014

REPUBLIC ………………………………………………………..APPLICANT

VERSUS

COURT MARTIAL………………………………..………1ST RESPONDENT

CABINET SECRETARY FOR DEFENCE..…………….2ND RESPONDENT

PRINCIPAL SECRETARY FOR DEFENCE……..……..3RD RESPONDENT

CHIEF OF DEFENCE FORCES……………..…………..4TH RESPONDENT

BRIGADIER K.O. DINDI……………………………….5TH RESPONDENT

CAPTAIN S. C. YATOR………………...……………......6TH RESPONDENT

EX-PARTE: PHINHAS MUGO

JUDGEMENT

INTRODUCTION

By their Notice of Motion dated 16th April, 2014, the ex parte applicant, Phinhas Mugo, seeks the following orders:

THAT an order of Certiorari do issue to move into the honourable court and quash all the proceedings in the Court martial involving No. 83801 SPTE PHINHAS MUGO.

THAT an order of Prohibition do issue restraining the Respondents from proceeding with the hearing of the case involving No. 83801 SPTE PHINHAS MUGO at the Court Martial.

THAT an order of Mandamus do issue compelling the 2nd, 3rd, and 4th Respondents to produce the defence council instruction Notice Number 01/13 which ratified the Appointment of Brigadier K. O. Dindi as Chief of Legal Services/Director of Military Prosecution.

THAT the costs of this application be provided for.

Ex ParteApplicant’s Case

The application was supported by a verifying affidavit sworn by the ex parte applicant on 2nd April, 2014. Apart from confirming the contents of the statutory statement, the said affidavit was very thin on facts. I shall come to this issue later in this judgement.

According to the statement the facts upon which the application was grounded were as follows:

On or about the 13th November 2013 the Applicant was arrested and later charged in Court Martial sitting at Moi Air Base within Nairobi County.

That the Applicant was arraigned in Court on 23rd December 2012 when the charges against him were read but to date the Court has been proceeding with his trial without giving him the case number.

That failure to give him a case number is prejudicial to his case since he has colleagues who could not appeal against the decision for Court Martial because there are no case numbers they could rely on in the appeal.

That failure to give him a case number is designed and calculated to frustrate him and to make sure that he does not have any recourse should the court pass any verdict against him which is unfair and amount to injustice.

According to him, the Court Martial is a Convicting Court as he has never come across any acquittals hence the need for proper procedure to be followed and it is only the High Court which can stop them from using thorax and force as the Court has refused to listen to his advocate and has been proceeding with an illegality yet there are well laid down procedures that the Court should adhere to.

That the Applicant raised preliminary issues which went to the competence of the prosecutor to prosecute him but the court did not taken the matter seriously and allowed the 5th and 6th Respondents herein to continue with the prosecution yet they are not competent to prosecute the cases and this worries the Applicant being that the Court is handling a serious issue in a lethargic manner and has not taken matters of law seriously.

Section 213(6) of Kenya Defence Forces Act, 2012 (hereinafter referred to as the Act) is clear that the Director of Military Prosecutions shall be separate office from that of the Defence Force of Ministry hence there is no way the Court Martial can allow persons holding the Two Offices to prosecute in that Court.

That there is a mischief which was intended to be cured by Section 213(6) of the Act and failure to adhere with the provisions of the law makes his prosecution illegal and the Court Martial is aiding an illegality by allowing unqualified persons to prosecute cases before it having been provided with the documents to support his objection.

That the Applicant raised this issue at the preliminary stages and the Director of Military Prosecution lied court that he is only holding one office when he knew very well that he is the Chief Legal officer for Kenya Defence Forces and the Court has not taken a step even to caution the prosecution after being provided with proof and this also worries the Applicant.

That the irregular appointment and the ratification of that irregular and unlawful appointment was made by the Defence Council of which the 2nd, 3rd and 4th Respondents are members of.

That the prosecution has also been conducted by the 6th Respondent who got his prosecution powers from the 5th Respondent hence his authority to prosecute is also null and void being that nothing legal can come out from an illegality.

That from the way the court has been conducting its business it is apparent that the court is not ready to follow the law hence his fear that there is no way the same court as it is composed can administer justice when it has failed to make decision on simple issues like the competence of the prosecutor.

That the objections raised were genuine and touches on legal issue which the court would have addressed easily and even asked the prosecution to put its house in order and comply with the law.

That when he brought the Letters to Court confirming that Brigadier K.O. Dindi is also the Chief Legal Officer for the Kenya Defence Forces the Court instead of taking action ruled that he could produce the documents during the Defence hearing and according to him the court will ignore the same as he has been placed on his Defence yet the proceedings so far have been a nullity in law.

That he had also been placed in custody for about a month without any report being made in line with Section 140 of the Act, and this also is proof that the Respondents are not ready and willing to follow the law.

That even the accused persons have rights under the prevailing provisions of the law and the constitution hence it is the interest of justice that the Respondents be restrained from illegally prosecuting the Applicant to enable them comply with the provisions of the law.

That in order to preserve the ends of justice this court is urged to grant leave and leave to operate as a stay for the Respondent not to continue floating the laws.

That it is apparent that the Respondents have made their minds herein and justice may not be administered under the prevailing circumstances.

That the 1st Respondent should conduct non partisan proceedings and should make sure that the person conducting prosecution before it is competent to do so but not to be lenient to any party before it.

That the Court Martial is also nor properly constituted in line with Section 160 of the Act being that there is no officer of his equivalent rank sitting as part of Court Martial.

That the way and manner in which the Respondents have conducted the proceedings has left him with little faith in them and has proved that they are up to no good intentions and in any event they are not willing to abide by the law.

That the proceedings which have been conducted in his case have not been done in accordance with the law and as such the same are null and void and in any event Court Martial is a Court of Law where people should expect justice and justice must not only be done but also seen as done.

That apart from being a court of justice the Court Martial is a court of record and as such there should be a Registry where parties can file their documents and also request for what they need in relation to their court files.

That no prejudice will be cause to the Respondents if this application is allowed as the prayers herein if granted will only help the 1st Respondent to administer justice effectively.

In the submissions filed on behalf of the applicant it was contended that since non of the Respondents have sworn an affidavit in response to the application the court ought to find that the deponent of the Replying affidavit is competent to swear the said affidavit on behalf of the Respondents considering that she is not a member of the National Defence Council and not part of the Court Martial hearing the case.

It was submitted that the Director of Military Prosecution does not have powers to prosecute as his appointment is in contravention of section 213 of the Act which requires the office of the Director of Prosecution to be different from that of the legal department hence the Director of Military Prosecution cannot hold both offices. It was submitted that Brigadier is currently holding the two offices a fact which has not been denied hence not fit to prosecute.

It was further submitted that though the applicant has indicated that the appointment of the said Brigadier was made vide Notice No. 01/13, the Respondents have declined to avail the same hence the mandamus sought.

Being unqualified and incompetent to prosecute, it was submitted that Brigadier Dindi cannot delegate his powers and the Court ought to look at the mischief which was intended by the separation of the said powers which was to enable both offices to think and make their findings independently.

It was submitted that the Court Martial Rules were only to remain in force for a period of one year from the date the Act came into force. According to the applicant the Act has been in force for more than one year hence the Rules are not in force. According to him, since the said Rules are in conflict with the parent Act, to apply the said Rules in the proceedings amounts to unfair hearing hence this Court ought to issue orders prohibiting the Court Martial from proceeding with the hearing before it. Further any proceedings conducted under the repealed Rules amounts to a nullity hence ought to be quashed.

It was further submitted that section 140 requires that a special report be issued every 8 days if the accused is held for about a month in custody. In this case no such special report was issued in breach of the said provision. Since the Respondents have breached the law, they ought not to be allowed to continue abusing the law hence they ought to be prohibited from further violation and the Court must quash what has been done under the violations.

According to the applicant section 160 of the Act does not state which category of officers should constitute the Court Martial. The section requires that an officer of equivalent rank be part of the Court Martial and where a serviceman is being tried, the lowest ranked officer. In this case since the applicant is a Senior Private the lowest ranked officer would be a lance corporal. Since there is no officer of that rank constituting the Court Martial, the Court should find that composition of the Court Martial is void hence the proceedings before it a nullity and ought to be quashed.

In his oral highlight Mr Were learned counsel for the applicant submitted that though the issue of Brig. Dindi was raised and the Judge/Advocate concurred, it was found that there was no evidence that Brig. Dindi held the two positions. By not disclosing that he was holding the two positions, it was submitted that the prosecutor was being dishonest. In support of this submission reliance was placed on Petition No. 372 of 2013 – Justus Mwenda Kathenge vs. Director of Public Prosecutions & 2 Others [2014] eKLR.

It was further submitted that being a subordinate Court, the Court Martial ought to be constituted by the judiciary and not a colonel in the military.

In support of the submissions the applicant also relied on Nairobi Misc. Appl. No. 328 of 2000 – John Mutemwa Wambua vs. The Principal Magistrate’s Court Kibera [2000] eKLR as well as Misc. 174 of 2012 – Ali Dhole Bocha vs. The Hon. Attorney General & 3 Others [2013] eKLR.

According to Mr Were, the appointment of the prosecutor is not classified information.

Respondents’ Case

In response to the application, the Respondents filed an affidavit sworn by Lieutenant Colonel Yvonne Kerubo Kirui, the Defence Court Martial Administrator (DCMA) at Defence headquarters responsible for convening the Courts Martial.

According to her, the Applicant is a Service Member of the Kenya Defence Forces and has been lawfully facing trial by Court Martial since 23rd December, 2013 at Moi Air Base for the commission of various Service offences as per the charge sheet annexed to the Applicant’s verifying affidavit sworn on 2nd April 2014 until stay orders granted by this court were served on the Court Martial on 8th April 2014.

She confirmed that the Applicant was arrested on 13th November, 2013 at Kiriaini in Murang’a County and was arraigned on the aforesaid charges on 23rd December 2013 where he pleaded not guilty to all charges. According to her, he Prosecution called various witnesses who testified against the accused and after submissions the court ruled that he had a case to answer and he was put on his defence. By the time that the Court Martial was served with the stay orders herein on 8th April 2014, the Defence hearing was yet to begin.

She deposed that the Court Martial is an ad hoc court that is constituted on need basis to try military personnel who have committed offences. Contrary to Applicant’s allegations, there is no prejudice occasioned to the Applicant by not assigning a case number to the Applicant’s case since what is required (as per rule 90 (a) of the Armed Forces Rules of Procedure as read with Form V of the Fourth schedule) to be indicated in the record of proceedings is the service number, rank, name, and unit of the accused and date of convening of the court martial which details are sufficient to retrieve the record of proceedings of an accused should they be required for appeal or any other purpose on application of which the Applicant has not applied.

To her no person who has been tried and/or convicted by the Court Martial has been denied a chance or right to appeal on account of case number since service number, name, unit and date of convening of the Court Martial bear sufficient details to identify the case and retrieve the record of proceedings and therefore it is incorrect for the Applicant to say that reference details in the case were calculated to prejudice the Applicant’s case in defence or otherwise. To confirm that this is the position copies of the Record of Proceedings in the trial by Court Martial of 105874 Cpl Samuel Elima Sabuni of Recruits Training School (RTS) attached to the applicant’s verifying affidavit were applied in the said case in which the accused was also represented by Applicant’s Counsel.

The deponent’s position was that the Applicant’s averment that the Court Martial is a “Convicting Court” is not true since the court martial is a court of law that deals with each and every case on its merit and according to the evidence and the law and is legally established as a subordinate Court under Article 169 of the Constitution. It was denied that the Court Martial denied the Applicant’s Counsel an opportunity to be heard as alleged by the Applicant and the record of proceedings bears witness that the Court Martial heard all parties and made rulings according to the law on issues raised by both parties and that no “Thorax and force” were used as alleged by the Applicant. Apart from that any ruling of the Court Martial is appealable to the High Court.

According to her, the Applicant’s preliminary issue on the competence of the 5th and 6th Respondents to prosecute were canvassed in open court and after consideration by the Court Martial a ruling was delivered that the 5th and 6th Respondent are competent to prosecute and the Applicant has not appealed against that ruling.

It was averred that whereas Section 213(6) of the Act provides that the office of the Director of Military Prosecutions (DMP) shall be a separate office from that of the Legal Department in the Defence Forces or in the Ministry of Defence, Section 214 of the Same Act provides that the Powers of the DMP to prosecute may be exercised by legal officers acting under direction of the DMP. It was averred that there is no evidence which has been led in court to show that the 5th Respondent holds the position of Chief of Legal Services. Instead, the Applicant through his Counsel attempted unprocedurally to produce in the Court Martial by way of attachment to submissions on no case to answer uncertified copies of letters purporting to be appointment letters of 5th and 6th Respondents and the court ordered that such documents if authentic be produced in accordance with the rules of procedure. Notwithstanding the foregoing, the Act does not preclude the DMP from holding any other appointment or assignment in the Ministry of Defence.

It was contended that the Applicant through his counsel sought witness summons and orders for the production of certain documents including letters purporting to appoint and post the 5th and 6th Respondents and Defence Council Instructions No. 1/13 which he alleged appointed the 5th Respondent as Chief of Legal/Director of Military Prosecutions but before he could be provided with or before it could be ascertained whether some of the documents sought are admissible in evidence, the Applicant through Counsel served the Court Martial with orders from this Honourable Court staying the proceedings of the Court Martial which orders were complied with.

It was the deponent’s position that the Applicant has attached to his verifying Affidavit sworn on 2nd April 2014 the very same copies of letters which have not been formally produced and admitted in evidence in the Court Martial and source the Applicant has neither disclosed nor called the purported authors to produce in his defence. According to her, the said documents have no relation to the charges the Applicant is facing before the Court Martial and do not form part of the Abstract of Evidence. Further, the Applicant has not demonstrated what prejudice he will suffer if he is prosecuted by the 5th and 6th Respondents and furthermore, the 5th Respondent after going on record on the first day of the proceedings on 23rd December 2013 did not thereafter participate in leading evidence against the Applicant, instead the 6th Respondent led the Prosecution witnesses in their testimonies.

According to the deponent, the Armed Forces Rules of Procedure at Rule 31 provides that the Accused shall inter alia, have no right to object to a prosecutor and Applicant’s objection to the Prosecutor has no legal basis. The deponent’s position was that the 5th Respondent did not lie to the Court Martial as alleged by the Applicant or at all but instead informed the Court Martial of his appointment as DMP and that he is qualified as such as per the provisions of Section 213(1) of the Act and that the 6th Respondent is a commissioned legal officer and also an advocate of the High Court of Kenya, is serving under him and competent to prosecute as envisaged under Section 214(1) of the Act.

It was contended that the Defence Council which the 2nd, 3rd and 4th Respondents are members did not ratify any illegal appointment as alleged by the Applicant or at all as there was no such illegal appointment in the first place. To the deponent, the 6th Respondent having derived prosecution powers from 5th Respondent under Section 2214(1) of the Act had and has authority to prosecute the Applicant in the Court Martial hence it is not true that the Court Martial is not ready to follow the law as alleged by the Applicant; in fact the Court Martial has been conducting its proceedings according to the law and there is no doubt that is will administer justice in accordance with the law. Further, the Court Martial is presided over by an acting Chief Magistrate sitting as a Judge Advocate who does not work on the military and has no interest in the case against the Applicant apart from administration of justice. Apart from that all the objections raised by the Applicant in the course of proceedings including the issue on competence of the prosecutor were argued by both parties and rulings were delivered by the Court Martial and no appeals have been made if at all any party feels aggrieved.

It was deposed that the Applicant was held in custody within the allowable period of not more than 42 days prior to his trial as per Section 240 of the Act and appropriate reports under that section were made by his Unit to his Service as required by law.

To her, the offences of leaving his sentry post when on guard duty and the alternative charge of absence without leave that the Applicant is charged with in the Court Martial are those of a flight risk and bail is limited under Section 54(2)(b) of the Act as read together with Article 24(5)(f) of the Constitution of Kenya 2010. To her, the Respondents have not infringed on any rights of accused persons as alleged or at all and the prosecution of the Applicant is lawful. Further, the Respondents have not made up their minds regarding the verdict in the case against the accused as alleged or at all since the Applicant is yet to make its defence and in any case not all the Respondents participate in making the final decision of the Court Martial. She asserted that the 1st Respondent has acted within its mandate and has not been lenient to the prosecution as alleged by the Applicant or at all.

It was therefore her case that it is not true that the Court Martial is not properly constituted as alleged by the Applicant; in fact the Court Martial is properly constituted under Section 160 of the Act since the threshold requiring at least the lowest ranking military officer to sit in the panel trying a Service Member was fulfilled; second Lieutenant Y C Daimoi (21603) is a member of the Court Martial and thus Section 160(3)(b) of the Act was complied with. It is apparent that the Applicant, who is a service member and not an officer, misconstrued of Court Martial trying an officer and that of Court Martial trying a Service Member. Therefore the Applicant’s fears that the Respondents have no good intentions and are no willing to comply with the law are baseless and are calculated to defeat justice and to the contrary, the proceedings against the Applicant are in accordance with the law and there is no nullity as alleged or at all.

According to her, the Applicant’s request for production of Defence Council Instruction No. 1/13 was denied since under Section 131 of the Evidence Act, Cap 80 of the Laws of Kenya, its production would be prejudicial to public service as its contents contain matters which as a matter of public policy and security cannot be produced. If the orders sought by the Applicant are granted the same will be prejudicial to the maintenance of discipline and the conduct of the core mandate of the Kenya Defence Forces which is a disciplined force.

The deponent asserted that she was aware that the Constitution of Kenya, 2010 at Article 259(2)(d) demands that justice must be administered without undue regard to procedural technicalities and this Honourable Court should guard against attempts by the Applicant to subvert justice by attempting to raise procedural road blocks for him to stand trial for offences he committed. In her view, the Applicant’s allegation that his prosecution is an abuse of due process is incorrect and averred that the Prosecution of the Applicant is based on the offences he committed as indicated in the charge sheet which is before a competent court hence he is not entitled to the reliefs sought as the grounds relied upon are baseless.

The Respondents therefore prayed that Applicant’s application herein be dismissed with costs and trial of the Applicant at the Court Martial be allowed to proceed to its logical conclusion.

On behalf of the Respondent, it was submitted that the failure to allocate the case number does not affect the validity of the proceedings hence should not be a basis of quashing the proceedings as in the proceedings, the applicant’s name and service number are disclosed.

It was submitted that the Court Martial was properly constituted as required under section 160 of the Act since the lowest ranking officer was part of the Court Martial during the proceedings. It was submitted that the averment by the applicant that a member of his rank should have been part of the Court Martial is a misconception.

It was submitted that the 6th Respondent is an Advocate of the High Court of Kenya and a gazetted Military prosecutor hence competent to prosecute. With respect to the appointment of the 5th Respondent’s appointment, it was submitted that the issue was canvassed before the Court Martial and a verdict was reached which verdict has not been appealed against or set aside and remains valid. There being a validly binding decision of the Court Martial, it was submitted the same cannot be overturned or appealed by way of judicial review. In support of this decision the Respondents relied on Republic vs. Chief Magistrate Milimani Commercial Court & 2 Others ex parte Violet Ndanu Mutinda & 5 Others [2014] eKLR and Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001.

In any case it was submitted that the applicant’s prosecutor is not the 5th Respondent but the 6th Respondent.

With respect to the prayer for mandamus to compel the respondents to produce documents which ratified the 5th Respondent as chief of Legal Services or Director of Military Prosecutions, it was submitted that the same prayer was made before the Court Martial but before a decision could be made, these proceedings were instituted. Since the 5th Respondents had availed documents to the ex parte applicants before and during the proceedings, there is no reason to anticipate that the documents in question will without good cause be withheld. As the applicant has annexed to his application a document which shows that the 5th Respondent was appointed to the post in question, it was submitted that the prayer for mandamus is merely an academic exercise.

According to the Respondents, since Colonel Yvonne Kerubo Kirui had the mandate to swear the replying affidavit the same is valid. With respect to the validity of the rules, it was submitted that the issue does not form one of the grounds in the statement hence the applicant is barred by Order 53 rule 4(1) of the Civil Procedure Rules from raising the same. In support of this submission, the Respondents relied on Khobesh Agencies Limited & 32 Others vs. Minister of Foreign Affairs and International Relations & 4 Others [2013] eKLR.

In highlighting the Respondents’ submissions, Miss Cheruiyot submitted that the applicant has no mandate to question the deponent of the replying affidavit moreso as the deponent has sworn that she is authorised to swear the same and is well versed with the facts of the matter. It was further submitted that as the ruling of the Court Martial arising from the objection on the competency of the prosecutor is not being challenged in these proceedings, the said decision is valid as the same has not been set aside.

Determinations

I have considered the application, the statement of facts, the affidavits both in support of and in opposition to the application as well as the submissions and authorities cited.

As I indicated at the beginning of this Judgement, the verifying affidavit in this application is very thin on the facts. That is not the kind of verifying affidavit contemplated under judicial review proceedings. In Commissioner General, Kenya Revenue Authority Through Republic vs. Silvano Anema Owaki T/A Marenga Filing Station Civil Appeal No. 45 of 2000, the Court of Appeal held:

“We are certain that the issue of the procedure used does not arise inasmuch as the applicant has not ruled out the possibility of the bulk of the products containing the chemical used only in the products meant for export. That much is clear from some of the matters in the Statement accompanying the application for leave, which the Judge in his ruling, despite the statements purportedly of facts being worthless, appear to put a lot of faith in. The learned Judge decided the application for judicial review on the basis of inadmissible matters. We would observe that it is the verifying affidavit not the Statement to be verified, which is of evidential value in an application for judicial review. That appears to be the meaning of rule 1(2) of Order LIII. This position is confirmed by the following passage from the Supreme Court Practice 1976 Vol. 1 at paragraph 53/1/7: ‘The application for leave “By a statement” – The facts relied on should be stated in the affidavit (see R v. Wandsworth JJ. ex p. Read [1942] 1 KB 281). “The statement” should contain nothing more than the name and the description of the applicant, the relief sought, and the grounds on which it is sought. It is not correct to lodge a statement of all the facts, verified by an affidavit.’ At page 283 of the report of the case of R v. Wandsworth Justices, Viscount Caldecote CJ said: ‘The Court has listened to argument on the proper procedure or remedy in the case of the exercise by an inferior court of a jurisdiction which it does not possess. It is, however, not necessary here to consider whether or not there has been a usurpation of jurisdiction, because there has been a denial of justice, and the only way in which that denial of justice can be brought to the knowledge of this court is by way of affidavit. For that reason the court is entitled, indeed, it is bound, if justice is to be done, to look at the affidavit just as it would in an ordinary case of excess of jurisdiction.’ ”

Whereas the failure to adhere to the procedural rules guiding judicial review proceedings may not necessarily be fatal to the application, the same may be taken into consideration by the Court in determining the issue of costs.

The first issue for determination is the competency of the replying affidavit sworn by Colonel Yvonne Kerubo Kirui. It is not in doubt that the said person is not a respondent in this application. The Applicant in my view was properly entitled to question the competency of the said affidavit and therefore I do not agree with the Respondents that the applicant has no locus to question the competency of the said affidavit. However, there is no provision under Order 53 which provides the procedural law dealing with judicial review that stipulates by whom the replying affidavit is to be sworn. Order 53 rule 4(3) provides:

Every party to the proceedings shall supply to any other party, on demand, copies of the affidavits which he proposes to use at the hearing.

That provision does not talk about affidavits by the parties but “affidavits which the parties propose to use at the hearing”. I therefore do not read into the said provision that only affidavits sworn by the parties to the application are competent. In my view as long as the affidavits are relevant and are sworn by persons who are well versed with the facts, there should be no objection based on their competency.

According to the statutory statement filed herein the grounds on which the reliefs were sought were as follows:

The 1st Respondent is aiding an illegal prosecution of the ex parte applicant.

The 1st Respondent is too lenient and does not want to take the prosecution to task to show where they are getting authority to prosecute from.

The ex parte applicant was held in custody for a longer period than expected without any reason or justifiable cause before being arraigned in court.

The prosecutor is incompetent and unqualified hence cannot practice in the Court Martial.

The prosecution of the applicant is an abuse of the due process.

There is no goal that can be achieved from a process which null and void.

It is clear that the issue of the expiry of the Court Martial Rules was not one of the grounds upon which the application was based. Order 53 rule 4(1) of the Civil Procedure Rules provides:

Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement.

In the case of Khobesh Agencies Limited & 32 Others vs. Minister of Foreign Affairs and International Relations & 4 Others (supra) this Court in dealing with the said provision expressed itself as follows:

“Therefore a party is not entitled to rely on any ground or seek any relief apart from the one indicated in the statement. The rationale for this is that in granting leave to apply for judicial review, the Court looks at the material before it and where a party having obtained leave based on a particular set of facts ought not to change his case midstream by abandoning the grounds upon which leave was granted and in effect change the nature of his case by relying on totally different state of affairs.”

Accordingly the applicant was not entitled to introduce a new ground at the hearing of the application without amending his statutory statement. In the premises I will ignore the ground dealing with the expiry of the said Rules.

With respect to the appointment of the 5th Respondent, it is clear that the issue was raised before the Court Martial and a decision made thereon. That decision is not the subject of this application. This Court had occasion to deal with a similar issue in Republic vs. The Inspector General of Police ex parte Anthony Ngumo Muya Nairobi High Court Misc. Application No. 353 of 2013 in which the Court held:

“...it is deposed which deposition is not denied by the applicant that the applicant applied before the trial court for release of the subject motor vehicle which application was disallowed. To grant this application would amount to reversing the said decision through the backdoor when no appeal has been preferred and these proceedings do not challenge the said decision.”

Whereas the Applicant alleges that he is challenging the proceedings which in his view include the said decision, in my view where a decision has been made and the jurisdiction of the Tribunal which made the decision is not in contention, the Applicant cannot go round the said decision by purporting to question the proceedings. To allow such proceedings would amount to the Court acting as a Court of Appeal against the decision in question without a proper appeal being preferred against the decision. As was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003,for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort; the applicant however will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate. Therefore, unless due to the inherent nature of the orders granted to appeal against the same where there is a right of appeal would be less convenient or otherwise less appropriate, the adversely affected party ought to appeal against the said order rather than to challenge a decision in respect of which an application has been made and dismissed by the Tribunal by way of judicial review proceedings. For this Court to entertain, determine and quash a decision in respect of which the applicant made a challenge, would in my view amount to the applicant seeking a second bite at the cherry. That conduct would amount to playing lottery with the judicial process which in itself amount to an abuse of the process of the Court.

In this case whether or not the decision by the Court Martial in declining to find that the 5th Respondent was improperly appointed was right or not, the Applicant ought to have appealed against the same instead of challenging the decision in these proceedings. In judicial review proceedings the mere fact that the Tribunals decision was based on insufficient evidence, or misconstruing of the evidence which is what the applicant seems to be raising here or that in the course of the proceedings the Tribunal committed an error are not grounds for granting judicial review remedies. In reaching its determination, it must however, be recognised that a Tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate Tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts of course taking into account that it had no advantage of seeing the witnesses and hearing them testify. Whereas a decision may properly be overturned on an appeal it does not necessarily qualify as a candidate for judicial review. In East African Railways Corp. vs. Anthony Sefu Dar-Es-Salaam HCCA No. 19 of 1971 [1973] EA 327, it was held:

“It has been recognised for a long time past, that courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it. The court may declare a tribunal’s decision a nullity if (i) the tribunal did not follow the procedure laid down by a statute on arriving at a decision; (ii) breach of the principles of natural justice; (iii) if the actions were not done in good faith. Otherwise if none of these errors have been committed, the court cannot substitute its judgement for that of an authority, which has exercised a discretionary power, as the tribunal is entitled to decide a question wrongly as to decide it rightly..... And so have the courts repeatedly held that they have an inherent jurisdiction to supervise the working of inferior Courts or tribunals so that they may not act in excess of jurisdiction or without jurisdiction or contrary to law. But this admitted power of the Superior Court’s to supervise inferior Courts or tribunals is necessarily delimited and its jurisdiction is to see that the inferior court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would, itself, in turn transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise...... Even if it were alleged that the Commission or authorised officer misconstrued the provision of the law or regulation, that would still not have entitled the court to question the decision reached. If a magistrate or other tribunal has jurisdiction to enter on the enquiry and to decide a particular issue, and there is irregularity in the procedure, he does not destroy his jurisdiction to go wrong. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.......Where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior Courts will not grant the order of certiorarion the ground that the inferior tribunal misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter, it cannot (merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or convicts without evidence) be deemed to exceed or abuse its jurisdiction.”

In Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, Civil Application No. 307 of 2003, Omolo JA stated as follows;

“The courts expressly recognize that they are manned by human beings who are by nature fallible, and that a decision of a court may well be shown to be wrong either on the basis of existing law or on the basis of some newly discovered fact which, had it been available at the time the decision was made, might well have made the decision go the other way.”

The parameters of judicial review were set out by the Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 in which it was held that:

“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”

In Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power. See R vs. Secretary of State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at P. 285 and Halsbury’s Laws of England4th Edition Vol (1)(1) Para 60.

For this Court to quash the decision made by the Court Martial under the guise of quashing its proceedings when the said decision has not been specifically made the subject of this application would amount to this Court abusing its judicial review jurisdiction.

On the issue whether the Court Martial is properly constituted section 160 of the Kenya Defence Forces Act, Cap 199 Laws of Kenya provides as follows:

(1) In the case of any proceedings, the courts martial established under Article 169 of the Constitution shall consist of—

(a) a Judge Advocate, appointed under section 165, who shall be the presiding officer;

(b) at least five other members, appointed by the Defence Court-martial Administrator if an officer is being tried; and

(c) not less than three other members in any other case.

(2) The members of the court-martial shall be officers so qualified and not ineligible in accordance with section 164.

(3) At least one of the members provided for in subsection (1) shall be—

(a) of equivalent rank as the accused person where the accused person is an officer; and

(b) the lowest ranking officer in the Defence Forces where the accused person is a service member.

(4) The Chief Justice may make rules generally to regulate the administration and proceedings of the courts martial.

It is clear that in the case of the applicant what section 160(3)(b) of the Act required was the lowest ranking officer in the Defence Forces and not an officer of equivalent rank of the accused as the applicant contended. I have no evidence that none of the members of the Court Martial was an officer of the lowest rank where the applicant was a service member. According to the Respondent this provision was complied with and there was no evidence to the contrary.

With respect to the failure to allocate the case number, no provision has been cited before the Court to show that that omission constituted an illegality. In my view an appellate Court is properly entitled to call for the proceedings from which an appeal arises hence the mere fact that the case is not allocated a number cannot ipso facto be a ground for granting judicial review. As is stated by Michael Fordham in Judicial Review Handbook; 4th Edn. at page 1007:

“procedural fairness is a flexi-principle. Natural justice has always been an entirely contextual principle. There are no rigid or universal rules as to what is needed in order to be procedurally fair. The content of the duty depends on the particular function and circumstances of the individual case”.

In Kenya Revenue Authority vs. Menginya Salim Murgani Civil Appeal No. 108 of 2009, the Court of appeal delivered itself as follows:

“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed.”

Whereas it may be prudent that judicial proceedings be allocated identifiable numbers, it is my view that the mere failure to do so cannot be a ground for judicial review as long as the proceedings in question can be precisely identified.

It was contended that section 140 which requires that a special report be issued every 8 days if the accused is held for about a month in custody was not complied with hence justifying the quashing of the impugned proceedings. The said section provides as follows:

(1) The allegations against a person arrested under sections 137 or 141 shall be investigated without unnecessary delay, and as soon as practicable thereafter either proceedings shall be instituted to deal with the allegations or the person shall be released from arrest.

(2) Where a person who is subject to this Act remains in custody for eight days without being tried by a court-martial or dealt with summarily—

(a) a special report on the necessity for further delay shall be made by the person's commanding officer to the Service Commander in the prescribed manner; and

(b) a similar report shall be made to the Service Commander in the prescribed manner every eight days until a court-martial sits or the offence is dealt with summarily or the person is released from arrest.

(3) Where an accused person is on active service, subsection (2) shall not apply except so far as is reasonably practicable, having regard to the exigencies of active service.

(4) Notwithstanding the extensions granted under subsection (2), circumstances under subsection (3) or limitation of rights of an arrested person provided for under section 54, a person shall not, at any given time, whether in active service or not, be held in custody for a period exceeding forty two days in aggregate.

(5) Where the summary disciplinary proceeding have not commenced or the court-martial has not been convened after the expiry of forty two days, the commanding officer shall hold the accused person under open arrest on such conditions as the commanding officer may determine.

In my view whether the failure to comply with the foregoing provision would warrant the quashing of the proceedings depends on whether the said provisions are directory or mandatory. It is noteworthy that the Act itself does not prescribe the consequences for non-failure to comply with the aforesaid provisions. The law is that when the provisions of an Article of the Constitution or legislation relates to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious inconvenience or injustice to the persons who have no control over those conferred that duty, and at the same time it would not promote the main object of the drafters, it has been the practice to hold such provisions to be directory only, and the neglect of them cannot be punishable if there is no legislative implementation, programme or policy in place. Where a statutory duty is mandatory or directory, it is necessary to set the proper standards for the performance of that duty. In other words, non-compliance with the rules of procedure of the court, which are directory and not mandatory rules, would not normally result in the proceedings being vitiated if, in fact, no prejudice has been done to the parties. See Federation of Kenya Women Lawyers (Fida-K) & Others vs. Attorney General & Others Nairobi HCCP NO. 102 OF 2011 [2011] EKLR (HCK).

It is now trite that even the failure to arraign an accused person within the time stipulated under the Constitution is not necessarily fatal to the trial. In other words the prevailing circumstances must be taken into account before the Court can make a determination as to whether the failure to adhere to the said Constitutional mandate is fatal to the trial. See Judith Achieng’ Ochieng’ vs. Republic [2009] eKLR.

This is not to say that non-compliance with the provisions of section 140 of the Act are not important. In my view the said provisions are important since they are meant to protect the liberty of the detainee and promote the Constitutional principles of accountability and transparency hence it is important that they be adhere to. As was held by Ojwang’, J (as he then was) in Muema Vs. Attorney General & 2 Others Nairobi HCCS No. 2230 Of 2001 [2006] 1 KLR 398:

“Where a statute lays down a particular procedure for the doing of an act, such a procedure may be construed to be directory or mandatory. If it is directory, then it is meant to be a guideline and a departure therefrom is not necessarily fatal to the validity of the decision-making process. Where an act affects the rights of a person and that effect is penal in nature statutory conditions and procedure should be scrupulously adhered to.....Since the applicant cannot rely on, inter alia, section 87 of the Constitution which establishes the right to a fair hearing, it is imperative that whatever procedural safeguards...provided by the Armed Forces Act and Rules made thereunder are strictly preserved.”

Where therefore the applicant shows that the failure to adhere to the provisions of the Act were prejudicial to the applicant the Court would be entitled to quash the proceedings in question. In this case taking into account the fact that section 140 of the Act does not prescribe the consequences of the failure to strictly adhere thereto coupled with the fact that the applicant has not alleged that he was prejudiced by the failure to strictly comply thereto, in the circumstances of this case I am not satisfied that the non-compliance therewith ipso facto ought to lead to the quashing of the proceedings in issue.

That brings me to the issue of whether mandamus sought in the application ought to issue. When does an order of mandamus issue? In In Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996 It was held that:

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way… These principles mean that an order of mandamus compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”

It was submitted by the Respondent which submission was not controverted that before commencing these proceedings, the applicant had made an application seeking the orders which are the subject of the prayer for an order of mandamus herein but before a decision could be arrived at either way, these proceedings were commenced whose effect was to scuttle the decision on the said application. In R (Regina)vs. Dudsheath, ex parte, Meredith [1950] 2 ALL E.R. 741, at 743, Lord Goddard C. J. said -

"It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy. This court has always refused to issue a mandamus if there is another remedy open to the party seeking it. "

Therefore where there is an alternative remedy which is more convenient, beneficial and effectual the court in the exercise of its undoubted discretionary power would decline to grant an order of mandamus. Similarly, it must always be remembered that judicial review orders being discretionary are not guaranteed and hence a court may refuse to grant them even where the requisite grounds exist since the Court has to weigh one thing against another and see whether or not the remedy is the most efficacious in the circumstances obtaining and since the discretion of the court is a judicial one, it must be exercised on the evidence of sound legal principles. The court does not issue orders in vain even where it has jurisdiction to issue the prayed orders. Since the court exercises a discretionary jurisdiction in granting judicial review orders, it can withhold the gravity of the order where among other reasons there has been delay and where the a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realised, even if merited. See Anthony John Dickson & Others vs. Municipal Council of Mombasa Mombasa HCMA No. 96 of 2000 and Republic vs. Judicial Service Commission ex parte Pareno [2004] 1 KLR 203-209.

Therefore as the applicant had sought the orders sought by way of mandamus in this application before the Court Martial it is my view that the Court Martial ought to be allowed to consider the said application and render itself thereon. In the exercise of my discretion I accordingly decline to grant the order of mandamus sought herein.

Order

In the result the Notice of Motion dated 16th April, 2014 fails and is dismissed with costs to the Respondents.

Dated at Nairobi this day 7th of July 2014

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Were for the Applicant

Miss Cheruiyot for the Respondents

Cc Kevin