[2023] KEHC 25056 (KLR)

Republic v Director of Public Prosecutions & 3 others; Okhako (Exparte Applicant) (Judicial Review Application E019 of 2022) [2023] KEHC 25056 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25056 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Application E019 of 2022

OA Sewe, J

November 9, 2023

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CRIMINAL PROCEDURE CODE, CHAPTER 75 OF THE LAWS OF KENYA AND IN THE MATTER OF THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT, AND IN TH EMATTER OF AN APPLICATION FOR ORDERS OF CERTIORARY AND PROHIBITION

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Inspector General of Police

2nd Respondent

Ethics and Anti Corruption Commission

3rd Respondent

Chief Magistrate’s Court, Mombasa

4th Respondent

and

Joseph Patterson Okhako

Exparte Applicant

Ruling

1. The Chamber Summons dated 7th July 2022 was filed by the ex parte applicant, Joseph Patterson Okhako (hereinafter, “the applicant”), under Order 53Rules 1 and 2 of the Civil Procedure Rules, 2010 for the following orders:(a)Spent(b)That Leave be granted to the applicant to apply for the following judicial review orders:(i)An order of Certiorari to remove into this Court and quash the decision of the 1st respondent to prosecute and/or charge the applicant with the offence of conflict of interest contrary to Section 42(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. (ii)An order of prohibition to prohibit the 1st respondent from prosecuting and/or charging the applicant with the offence of conflict of interest contrary to Section 42(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. (c)That the leave do operate as a stay of any arrest, prosecution, charging or in any way commencing or sustaining any criminal proceedings against the applicant with respect to the alleged dealings between Kenya Ports Authority and Ethics Institute of East Africa involving the applicant.(d)That the costs of the application be provided for.

2. The application was premised on the grounds that, sometime in 2008, the applicant together with other like-minded ethics practitioners founded the Ethics Institute of East Africa as a non-profit organization with the mandate of training and capacity building of public and private ethics practitioners within East Africa. The applicant was and still is employed by the Kenya Ports Authority as an Ethics and Integrity Officer. Accordingly, he wrote a letter of Declaration of Interest dated 6th June 2012, declaring his affiliation with the Ethics Institute of East Africa; and the fact that the said affiliation was not in any way in conflict with his duties and responsibilities as an employee of the Kenya Ports Authority.

3. The applicant further averred that, in the course of his duties, he was seconded to Bandari Maritime Academy and was thereupon tasked with the investigation of corrupt dealings undertaken by employees. In the course of time he recommended the prosecution of some individuals, including the former managing director, Mr. Daniel Manduku, whose case is pending investigations by the Directorate of Criminal Investigations. He stated that, as a result of such investigations, unwarranted and unsubstantiated allegations were made against him for supposed conflict of interest while in the employ of Kenya Ports Authority on the basis of which the 1st respondent was intending to have him charged and prosecuted before the 4th respondent. He therefore averred that it is in the public interest, and in the interest of justice, that he be granted leave to institute judicial review proceedings in the circumstances; and for leave to operate as stay pending the hearing and determination of his substantive judicial review application.

4. The application was supported by the averments set out in the Statutory Statement dated 7th July 2022, the applicant’s Supporting Affidavit sworn on 7th July 2022, as well as the documents annexed thereto. The documents include a copy of a duly approved Charge Sheet dated 5th July 2022 in which the applicant is name as the accused in respect of the offence of conflict of interest pursuant to Section 42(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act.

5. The application was resisted by some of the respondents. Hence, on behalf of the 3rd respondent, Grounds of Opposition were filed herein on 23rd August 2022 to the effect that:(a)The application is frivolous, misconceived, incurably bad in law, misguided, fatally defective and legally untenable.(b)The application is merely speculative and is not substantially supported by evidence to prove any violation of the rights of the applicant by the respondents.(c)The application is an abuse of the court process, and has been brought with a view of obstructing the fair administration of justice and the independence of the respondents as provided for in the Constitution of Kenya and the applicable provisions of the law that guide the performance of duties of the respondents.(d)The application, if granted, will contravene Articles 252(1)(a) and (d), 249(2)(b), 157(10) and (11) as well as 159(2)(b) and (e) of the Constitution of Kenya.(e)It is in the public interest that the application be dismissed to pave way for the plea-taking and subsequent proceedings in the interest of justice.

6. In addition to the Grounds of Opposition aforestated, the 3rd respondent filed a Replying Affidavit sworn on 4th August 2022 by one of its investigating officers, Mr. Alex Mbae. At paragraph 6 thereof, the 3rd respondent made reference to its independence and mandate as stipulated in Articles 79 and 252(1) of the Constitution and Sections 11 of the Ethics and Anti-Corruption Act. It explained that, pursuant to that mandate, it commenced investigations into allegations of conflict of interest against the applicant; and having established sufficient grounds for his prosecution, recommendations in that regard were forwarded to the 1st respondent pursuant to Section 35 of the Anti-Corruption and Economic Crimes Act as read with Section 11(1)(d) of the Ethics and Anti-Corruption Commission Act, 2011 for consideration.

7. The 3rd respondent further deposed that, upon review of the file by the 1st respondent, it was established that there was sufficient evidence to charge the applicant with the offence of conflict of interest; whereupon he was arrested by the 3rd respondent on 5th July 2022 and arraigned before the 4th respondent for plea-taking. The 3rd respondent also disclosed that the plea-taking exercise is yet to take place following the filing of the instant application.

8. Directions were thereafter given that the application be canvassed by way of written submissions. Accordingly, the applicant proposed the following issues for consideration:(a)Whether the action taken by the 1st respondent constitutes unfair administrative action; and(b)Whether the said action amounts to abuse of power.

9. In the applicant’s view, the respondents have contravened various provisions of the law, including Sections 4 and 7 of the Fair Administrative Action Act which require, inter alia, that notice of the nature and reasons for the proposed administrative action be given. The applicant relied on Josephat Koli Nanok & Another v Ethics and Anti-Corruption Commission [2018] eKLR, Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 and Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Rongo University [2018] eKLR to buttress the argument that the decisions and actions of the 1st and 3rd respondents in initiating the impugned prosecution were made without justifiable cause; and are therefore illegal, irrational and procedurally improper.

10. The 3rd respondent’s written submissions were filed herein on 16th February 2023 and the single issue proposed for determination is whether the application has met the threshold for the grant of the orders sought from the stand point of either illegality or unreasonableness. The 3rd respondent reiterated the respective mandates of the respondents and urged the Court to find that the decision to prosecute is neither ultra vires nor unreasonable, granted the grounds upon which the decision was reached. Reliance was placed on Judicial Review Miscellaneous Application No. 5 of 2017: Republic v Ethics and Anti-Corruption Commissions & 2 Others, Ex Parte Stephen Sanga Barawa; Republic v Chief Magistrate, Kisumu & 4 Others, Ex Parte Moses Agumba Orot [2016] eKLR and Charles Mbugua Njuguna v Director of Public Prosecutions & 4 Others [2020] eKLR in urging the Court to find that the applicant is not entitled to any of orders prayed for.

11. It is therefore manifest from the foregoing that the parties went beyond the scope of the instant application and prematurely put forth assertions and arguments in support of the intended judicial review application. The instant application for leave was expressed to have been brought under Order 53 Rule 1 of the Civil Procedure Rules, which provides:(1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.(3)The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.(4)The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise…”

12. Hence, in Mombasa HCMCA No. 384 of 1996: Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others it was held that:“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, vexations 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 the 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 before the court 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”.

(13)Accordingly, having carefully considered the application for leave, the accompanying Statutory Statement and Verifying Affidavit sworn by the applicant with a view of ascertaining compliance with the strictures of Order 53 Rules 1 and 2 of the Civil Procedure Rules, I am satisfied that the application is compliant; and that it has been brought within the 6 months’ period stipulated in Rule 2 of Order 53. I am further satisfied that the applicant has demonstrated that he has an arguable case; a case that is fit for further investigation by the Court, and is consequently entitled to leave.

14. As to whether an order of stay of proceedings before the 4th respondent ought to issue pending the hearing and determination of the substantive application, the position articulated in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 was that:“… 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...”

15. Thus, having granted the applicant leave to file his substantive application, it is only fair and just that the impugned decision and the proceedings ensuing therefrom be stayed, as otherwise the substantive application will be rendered otiose.

16. In the result, the applicant’s Chamber Summons dated 7th July 2022 is hereby allowed and orders made as hereunder:(a)That leave be and is hereby granted to the applicant to apply for the following judicial review orders:(i)An order of certiorari to remove into this Court for quashing the decision of the 1st respondent to prosecute and/or charge the applicant with the offence of conflict of interest contrary to Section 42(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. (ii)An order of prohibition to prohibit the 1st respondent from prosecuting and/or charging the applicant with the offence of conflict of interest contrary to Section 42(3) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. (b)The substantive application be filed within 14 days from the date hereof.(c)That the leave does operate as stay of any arrest, prosecution, charging, commencement or sustenance of any criminal proceedings against the applicant with respect to the alleged dealings between Kenya Ports Authority and Ethics Institute of East Africa involving the applicant.(d)The costs of the application be costs in the substantive cause.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 9TH DAY OF NOVEMBER 2023OLGA SEWEJUDGE