[2017] KEHC 9120 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JR. MISC APPLICATION NO. 38 OF 2017

IN THE MATTER OF: AN APPLICATION BY JOHN KING’ORI KIONI FOR AN ORDER OF PROHIBITION

AND

IN THE MATTER OF: MILIMANI CHIEF MAGISTRATES COURT CRIMINAL CASE NO. 452 OF 2016, R VS JOHN KING’ORI KIONI

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

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS................1ST RESPONDENT

THE CHIEF MAGISTRATE’S COURT, MILIMANI…….....2ND RESPONDENT

JUDGEMENT

Introduction

1. By a Notice of Motion dated 24th February, 2017, the applicant herein, John Kingori Kioni,seeks the following orders:

1. An order of prohibition, prohibiting Milimani Chief Magistrate’s Court from taking further proceedings and executing any orders, decrees, warrants or any other kind of execution in Milimani Chief Magistrate’s Court Criminal Case No. 452 of 2016.

2. The costs of this application be in the cause.

Applicant’s Case

2. According to the applicant, on 27th November 2014, he and Clement Mwaura Kinyanjui entered into a sale agreement of motor lorry registration number KBX 692Z and on 19th December 2014, the same parties entered into another sale agreement to motor lorry registration number KBY 321J.

3. After execution of the said agreements, the applicant was handed over possession the said two lorries. Although he conceded that he had defaulted in payments, he however averred that he was making payments.

4. However as a result of the said default, the said Clement Mwaura Kinyanjui to lodged a complaint with the police which led to the applicant’s arrest and arraignment before the Milimani Chief Magistrate where he initially faced a charge of stealing the said two lorries, but in due course the charge was substituted to that of obtaining goods by false pretence and issuance of bad cheques.

5. According to the applicant, on 13th December 2016, the Milimani Chief Magistrates ordered that he surrenders the said two lorries to the investigating officer in the criminal case, but the said order is yet to be implemented.

6. It was the ex parte applicant’s case that the issues in the said criminal case are purely civil in nature, and it is evident that the said Clement Mwaura Kinyanjui intends to settle a civil claim using Criminal Avenue.

7. It was therefore the applicant’s case that it is the interest of justice that the proceedings in the said criminal case be prohibited.

1st Respondent’s Case

8. The application was opposed by the 1st Respondent.

9. In opposition to the application the 3rd Respondent filed the following grounds of opposition:

1. The notice of motion is misconceived, frivolous, vexatious, as the applicants have not demonstrated how the respondents acted illegally, unreasonable, ultra vires and or contrary to natural justice.

2. That Judicial Review is concerned with the decision making process and not the merits of the decision.

3. That the applicant has not demonstrated that in making the decision to prefer criminal charges against him, either the director of Public Prosecutions or any member of staff of the office of the Director of Public Prosecutions has acted without or in excess of the powers conferred upon them by the law or have infringed, violated, contravened or in any other manner failed to comply with or respect and observe the foregoing provisions of the Constitution of Kenya 2010 or any other provision thereof.

4. That the decision by the Magistrate in Criminal Case No. 452 of 2016 to have the applicant surrender the motor vehicle to the police was made having heard both the prosecution and the defence and the same was informed by the sufficiency of evidence on record and the public interest and not any other considerations.

5. That the accuracy and correctness of the evidence or facts gathered in an investigation can only be assessed and tested by the trial court which is best equipped to deal with the quality and sufficiency of evidence gathered and properly adduced in support of the charges.

6. The Chamber Summons Application is without merit and should be dismissed.

10. According to the 1st Respondent, sometime in the month of January 2015, a complaint that was lodged by the complainant, one John Clement in which it was contended that the said complainant had entered into a contract with the applicant herein for the sale of two Lorries registration no. KBX 692Z AND KBY 321J.

11. Upon investigations it was established that the purchase in respect to the two motor vehicles, Foton lorry registration no. KBX 692Z and KBY 321J was financed by the National Bank of Kenya and that at the time of execution of the sale agreement the complainant had an outstanding loan of 5,900,000 towards each motor vehicle. The Applicant therefore agreed to take over the Applicant’s interest of the subject motor vehicles by paying the bank the outstanding loan as consideration for the motor vehicle. The Applicant further agreed to pay the complainant 1. 1millon and 1. 3 million for the Foton lorry registration no. KBX 692Z and KBY 321J respectively as agreed by the parties.

12. It was averred that in respect to Foton lorry registration no. KBX 692Z the Applicant issued two post-dated cheques for a sum of Kshs. 500, 000 and Kshs. 600,000/=. The cheque of Kshs. 600,000/= was dishonoured for lack of sufficient funds. In respect to Foton lorry registration no. KBY 321Y the Applicant issued three post-dated cheques for a sum of Kshs. 350,000, Kshs. 650,000 and Kshs. 300,000/= all of which were dishonoured for lack of sufficient funds.

13. According to the 1st Respondent, the Applicant paid the bank loan for only three months and thereafter defaulted to pay the same. Further investigations revealed that despite the complainant trying to get a hold of him, the Applicant refused and ignored any calls from the complainant. Further and in order to elude the complainant, the Applicant removed the tracking systems that were installed on the two subject motor vehicles.

14. It was averred that the Applicant then reported the matter to the police on the 7th May, 2015 whereupon the Applicant approached the complainant and proposed to pay the complainant the outstanding balance of the purchase price by issuing three post-dated cheques and that sometime in October, 2015, in an effort to hoodwink the complainant and to forestall him from pursing the criminal complaint, the Applicant issued the aforesaid post-dated cheque that were to be banked at Equity bank. When the complainant presented the same at the bank for payment, the cheques were not cleared on the basis of instructions received from the client-the Applicant.

15. It was therefore the 1st Respondent’s case that the Applicant had a criminal intent to defraud the Applicant and as such the charges of stealing a motor vehicle were preferred against the Applicant. Upon the file being forwarded to the Director of Public Prosecutions, it was advised that the evidence could not sustain the offence of stealing and as such steps were taken to amend the charges to the offence of Obtaining By False Pretence contrary to section 313 of the Penal Code, which the Applicant is now facing in a criminal case No. 452 of 2016 at Milimani Chief Magistrate’s Court.

16. It was the 1st Respondent’s case that:;

a) The Applicants have been charged with offences known to law and the prosecution has sufficient evidence to sustain the respective Charges. The issues meant to vindicate the Applicants should be canvassed in the criminal court and fairly determined; and not in the Judicial review Court.

b) Section 193A of the Criminal Procedure Code provides that notwithstanding the provisions of any other written law, the subsistence of a related civil proceeding shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

c) That the Application is frivolous and an abuse of the court process and meant to circumvent the criminal justice system.

17. It was further contended that:

a) That the police did not act illegally or contravene any code of regulation; and neither did they act under the control or direction of any party; but were independently discharging their duties after conducting thorough investigations as mandated by Article 244 of the Constitution of Kenya, 2010 and the National Police Service Act, Section 24 and 35, inter aliamandates the police with the investigations of crimes and apprehension of offenders.

b) That the purported Application is based on deliberate concealment, distortion and non-disclosure of material facts made with the latent intent to mislead the Honourable Court as to the true facts leading to the subject criminal complaint, investigations and charges.

18. It was the 1st Respondent’s case that they acted within their respective mandates under the relevant establishing legislation and in the circumstances, it cannot be said that the actions of the Respondents were in breach of the mandate vested upon them.

19. The 1st Respondent therefore prayed that the matter be remitted to the trial court which is equipped to deal with the quality and sufficiency of evidence gathered in support of the charges preferred against the Applicants.

Applicant’s Rejoinder

20. In his rejoinder, the applicant averred that from the agreements it was evident the obligations of the parties to the said agreements were well spelt out, and if any of the party was in breach, the innocent party had recourse in the said agreements.

21. The ex parte applicant averred that from the said sale agreements I was to repay the loan that had been advanced to the complainant by National Bank of Kenya, and in addition he was to pay him a sum of Kshs 2,400,000/=. Subsequent thereto, he paid the said Complainant Kshs 1,350,000/- leaving a balance of Kshs 1,050,000/=, and in addition he made some payments to the National Bank of Kenya.

22. It was averred by the applicant that had the investigating officer did his work diligently, he would have discovered that the subject lorries had been involved in accidents and insurance company had declined to compensate the applicant hence his inability to fulfil his contractual obligations with the complainant. He therefore contended that there is no criminal element in the whole exercise, and as such the criminal case instituted against him is an abuse of the court process.

23. The applicant’s case was that the complainant should institute the appropriate civil action for specific performance of the contract.

Determination

24. I have considered the material presented before the court in the instant application.

25. It is clear that the whole dispute between the parties herein rests on the breach of a sale agreement between the ex parte applicant and the complainant in the criminal case.

26. Majanja, J in Petition No. 461 of 2012 – Francis Kirima M’ikunyua & Others vs. Director of Public Prosecutions, when dealing with situations where there exist criminal and civil proceedings arising from the same facts pronounced himself as follows:

“It is very clear that the criminal process and the resultant court proceedings are being used to settle what is otherwise civil dispute which has been the subject of several court cases and indeed decisions. It is clear to me that the contending parties wish to use the criminal process to score points against each side in order to assert the rights of ownership. The use of the criminal process in this manner is not uncommon within this jurisdiction to find that intractable land disputes mutate into criminal matters. It is not difficult to see why. In criminal cases the State’s coercive power is brought to bear upon the individual and where we have an inefficient system to settle civil claims, a person who can tie his opponent in the criminal justice system and ultimately secure a conviction will no doubt have an advantage over his opponent.”

27. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69,the High Court held:

“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious…The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer... In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the applicants in order to settle the civil dispute”.

28. The Court went further to hold that:

“It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilise the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The fact that it has not been argued before however does not mean that the law stops dead at its tracks. An order of prohibition looks to the future and not to the past; it is concerned with the happenings of future events and little, if any, of past events...So long as the orders by way of judicial review remain the only legally practicable remedies for the control of administrative decisions, and in view of the changing concepts of good governance which demand transparency by any body of persons having legal authority to determine questions affecting the rights of subjects under the obligation for such a body to act judicially, the limits of judicial review shall continue extending so as to meet the changing conditions and demands affecting administrative decisions...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilised. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop the Court from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...However, it does not mean that a civil suit and a criminal case cannot co-exist at any one particular time. This is because the section envisages the re-prosecution of a criminal case substantially dealt with either in fact or law, a case in which issues have been laid to rest. There is no mention in the section that the simultaneous existence of a civil and criminal cases is constituting double jeopardy. The courts have, however stated that the power to issue an order of prohibition to stop a criminal prosecution does not endow a court to say that no criminal prosecution should be instituted or continued side by side with a civil suit based on the same or related facts, or to say that a person should never be prosecuted in criminal proceedings when he has a civil suit against him relating to matters in the criminal proceedings....”

29. It is therefore clear that this Court has the power and indeed the duty to bring to a halt criminal proceedings where the same are being brought for ulterior motives or for achievement of some collateral purposes notwithstanding the constitutional and legal powers conferred upon the DPP and the police. In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:

“It is trite that an Order of Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

30. In Meixner & Another vs. Attorney General [2005] 2 KLR 189,the same Court expressed itself as hereunder:

“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion if acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution... Judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power.”

31. Whereas the mere fact that the facts of the case constitute both criminal and civil liability does not warrant the halting of the criminal case, in Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, it was held:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”

32. It was similarly held by the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and OthersNairobi Civil Appeal No. 56 of 2012 [2013]eKLR that:

“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations”

33. The role of police in criminal process was recognised in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR where it was held:

“the police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.

34. However, it was similarly appreciated in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 that:

“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.

35. In this case one of the circumstances that provoked the criminal proceedings was the fact that the applicant issued post-dated cheques which were dishonoured. Section 316A(1) and (2) of the Penal Code provides:

(1) Any person who draws or issues a cheque on an account is guilty of a misdemeanour if the person -

(a) knows that the account has insufficient funds;

(b) knows that the account has been closed; or

(c) has previously instructed the bank or other institution at which the account is held not to honour the cheque.

(2) Subsection (1)(a) does not apply with respect to a post-dated cheque.

36. I agree that the dispute between the applicant herein if it arose from the breach of the terms of the agreement between the two parties was purely a civil matter. With respect to the post-dated cheques, it is clear that the dishonour thereof does not constitute an offence. To my mind the institution of the criminal proceedings was meant to compel the applicant to settle a civil debt. That is not the purpose of criminal proceedings. My view is further based on the fact that there was an attempt to charge the ex parte applicant with an offence of theft when clearly such charge was misconceived.

37. To my mind, the police are expected to be professional in the conduct of their investigations and ought not to be driven by malice or other collateral considerations. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. Where the law expressly states that facts relied upon do not constitute an offence, it would be an abuse of power to charge a person based thereon.

38. In the premises while I must be emphatic that the applicant must meet his side of the bargain in the agreement entered into between him and the complainant, I find that the invoke criminal justice system to achieve collateral purposes cannot be permitted. In my view the invocation of criminal process towards that end reeks of abuse of power. As was held in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] 2 KLR 240 while citing Reg vs. Secretary of State for the Environment Ex Parte NottinghamShire Country Council[1986] AC:

“A power which is abused should be treated as a power which has not been lawfully exercised…A public authority must not be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as has happened in this matter, and in so acting abuse its powers. In this connection Lord Scarman put the need for the courts intervention beyond doubt in theex-parte Prestonwhere he stated the principle of intervention in these terms: “I must make clear my view that the principle of fairness has an important place in the law of judicial review: and that in an appropriate case, it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.” The same principle was affirmed by the same Judge in the House of Lords inReg vs. Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Ltd[1982] AC 617that a claim for judicial review may arise where the Commissioners have failed to discharge their statutory duty to an individual or have abused their powers or acted outside them and also that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. In other words it is unimportant whether the unfairness is analytically within or beyond the power conferred by law: on either view, judicial review must reach it. Lord Templeman reached the same decision in the same case in those helpful words: “Judicial review is available where a decision making authority exceeds its powers, commits an error of law commits a breach of natural justice reaches a decision which no reasonable tribunal could have reached or abuses its powers.” Abuse of power includes the use of power for a collateral purpose, as set out inex-parte Preston,reneging without adequate justification on an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals. I further find as in the case ofR (Bibi) vs. Newham London Borough Council[2001] EWCA 607, [2002] WLR 237, that failure to consider a legitimate expectation is a failure to consider a relevant consideration and this would in turn call for the courts intervention in assuming jurisdiction and giving the necessary relief.”

39. In Githunguri vs. Republic [1986] KLR 1 at page 18 and 19 a three Judge bench High Court constituted of Ag. Chief Justice Madan and Justices Aganyanya and Gicheru expressed themselves as follows:

“But from early times… the Court had inherently its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse…The power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure...every Court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the Court…Mr Chunga argued that to grant the application would be tantamount to curtailing or interfering with the powers of the Attorney-General under section 26 of the Constitution. This argument of his compels us to say that he kept freewheeling for a long time before us because perhaps he did not understand the real purport of the application. No one has made any challenge to the powers of the Attorney-General, nor would any one succeed if he were to say that the Attorney-General’s powers under section 26 can be interfered with. What this application is questioning is the mode (emphasis ours) of exercising those powers…No one will succeed in convincing us that the Court does not have inherent powers to exercise supervisory jurisdiction over tribunals and individuals acting in administrative or quasi-judicial capacity…A prosecution is not to be made good by what it turns up. It is good or bad when it starts. The long and short of it is that in our opinion it is not right to prosecute the applicant as proposed.”

40. In Mohammed Gulam Hussein Fazal Karmali & Another vs. Chief Magistrate’s Court Nairobi & Another[2006]eKLR whereNyamu, J examined the policy considerations for halting criminal proceedings, noting that the court has two fundamental policy considerations to take into account which were enunciated in the case of M. Devao vs. Department of Labour (190) in sur 464at 481 as:

“The first is that the public interests in the administration of justice require that the court protects its ability to function as a court of law, by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court processes may lend themselves to oppression and injustice…the court grants a permanent stay in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes that the court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.”

Order

41. In the premises, I find merit in this application and issue an order of prohibition, prohibiting Milimani Chief Magistrate’s Court from taking further proceedings and executing any orders, decrees, warrants or any other kind of execution in Milimani Chief Magistrate’s Court Criminal Case No. 452 of 2016.

42. As the application was not properly intituled and as the default is admitted by the applicant there will be no order as to costs.

43. Orders accordingly.

Dated at Nairobi this 20th day of July, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr John King’ori Kioni the applicant in person

CA Mwangi