[2021] KEHC 4996 (KLR)
The court found that the applicants had satisfied the threshold for grant of leave to apply for judicial review orders of certiorari and prohibition. The application was unopposed, and the applicants had demonstrated, through their affidavits and annexures, that there was an arguable case regarding the legality of...
Source-derived case information.
- Citation
- [2021] KEHC 4996 (KLR)
- Parties
- Applicant: Juma Nyateko; Applicant: William Ochieng Oyoko; Applicant: Japheth Otieno Odera; Respondent: Director of Public Prosecution (Siaya); Respondent: National Police Service (Siaya); Respondent: The Chief Magistrate (Siaya) Law Courts
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E001 of 2021
- Procedural Posture
- Miscellaneous Judicial Review Application / Ruling on Application for Leave to Apply for Judicial Review
- Outcome
- Leave granted to file judicial review application; leave to operate as stay of taking plea; directions issued for filing and service; costs in the main motion.
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Prosecutorial Discretion, Fraud Offences, Land Registration, Certiorari, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Nyateko
Applicant
William Ochieng Oyoko
Applicant
Japheth Otieno Odera
Applicant
Director of Public Prosecution (Siaya)
Respondent
National Police Service (Siaya)
Respondent
The Chief Magistrate (Siaya) Law Courts
Respondent
Procedural Posture
Miscellaneous Judicial Review Application / Ruling on Application for Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the applicants have established a prima facie case for leave to apply for judicial review orders of certiorari and prohibition against their prosecution for fraud.
- 2 Whether the decision to charge the applicants with fraud under section 103 of the Land Registration Act, 2012, is amenable to judicial review.
- 3 Whether leave should operate as a stay of taking plea by the applicants.
Ratio Decidendi
The court found that the applicants had satisfied the threshold for grant of leave to apply for judicial review orders of certiorari and prohibition. The application was unopposed, and the applicants had demonstrated, through their affidavits and annexures, that there was an arguable case regarding the legality of the decision to charge them with fraud under section 103 of the Land Registration Act, 2012. The court exercised its discretion to grant leave, which would operate as a stay of taking plea by the applicants, pending the hearing and determination of the substantive motion. The court also issued directions on the timelines for filing and serving the substantive motion and responses.
Court Disposition
Leave granted to file judicial review application; leave to operate as stay of taking plea; directions issued for filing and service; costs in the main motion.
Orders
- Leave is granted to the applicants to file the Judicial Review application as sought in the chamber summons dated 24.4.2021.
- The substantive motion shall be filed and served upon the Respondents and all interested parties within 7 days together with written submissions.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISCELLANEOUS JUDICIAL REVIEW APPLICATION NO. E001 OF 2021
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR
JUDICIAL REVIEW IN THE NATURE OF CERTIORARI
IN THE MATTER OF: AN APPLICATION BY JUMA NYATEKO,
WILLIAM OCHIENG OYOKO AND JAPHETH OTIENO ODERA,FOR
LEAVE TOAPPLY FOR JUDICIAL REVIEW ORDERS OFCERTIORARI,
AND PROHIBITION AGAINST THE RESPONDENTS HEREIN
AND
IN THE MATTER OF: ARTICLES 27, 40, 47, 48, 49, 50, 157
and 244 of THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF: SECTIONS 8 AND 9 OF THE LAW REFORM ACT (CAP 26 OF THE
LAWS OF KENYA)AND ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010
AND
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW
AND
IN THE MATTER OF: AN APPLICATION BY EX PARTE APPLICANTS TO CHALLENGE THE
DECISION OF THE 1ST AND 2ND RESPONDENTS TO CHARGE THEM WITH THEOFFENCE
OF FRAUD CONTRARY TO SECTION 103 OF THE LAND REGISTRATIN ACT, 2012
BEFORE THE 3RD RESPONDENT
BETWEEN
JUMA NYATE..................................................................................1ST EX PARTE APPLICANT
WILLIAM OCHIENG OYOKO.....................................................2ND EXPARTE APPLICANT
JAPHETH OTIENO ODERA.........................................................3RD EXPARTE APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTION (SIAYA).....................................1ST RESPONDENT
NATIONAL POLICE SERVICE (SIAYA).......................................................2ND RESPONDENT
THE CHIEF MAGISTRATE (SIAYA) LAW COURTS.................................3RD RESPONDENT
RULING
1. The exparte applicants seek leave of court to file Judicial Review application seeking for orders of certiorari and prohibition to quash the decision to charge them with the offences of fraud and prohibition to prohibit the Respondent’s from charging them with the said offences related to fraud. The application dated 24. 4.2021 is not opposed by the Respondents. In the premises, I hereby grant leave to the applicants to file the Judicial Review application as sought in the chamber summons dated 24. 4.2021 supported by the verifying affidavits and annextures thereto.
2. The substantive motion shall be filed and served upon the Respondents and all interested parties within 7 days of today together with written submissions. Upon receipt of the main motion and all accompanying documents, the Respondents and Interested Parties shall have ten (10) days to file and serve their responses and submissions. Thereafter, the Exparte applicants shall have leave to file if need be, a further affidavit within five days. The leave so granted to operate as stay of taking plea by Exparte applicants. Mention on 30. 7.2021 to confirm compliance and for further orders as to the judgment date in the matter.
3. Costs shall be in the main motion.
4. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 7TH DAY OF JULY, 2021.
R.E. ABURILI
JUDGE