[2023] KEHC 26084 (KLR)

Republic v Director of Public Prosecutions; Mbatha & another (Exparte); Imanyara (Interested Party) (Miscellaneous Application E004 of 2022) [2023] KEHC 26084 (KLR) (Judicial Review) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26084 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E004 of 2022

J Ngaah, J

December 1, 2023

Between

Republic

Applicant

and

The Director Of Public Prosecutions

Respondent

and

Paul Mbatha

Exparte

Francis Njoroge Gathunuku

Exparte

and

Milton Mugambi Imanyara

Interested Party

Judgment

1. The motion before court is dated 9 December 2022. The prayers sought in the application are expressed as follows:“1. That this application be certified urgent and be heard ex parte in the 1st instance;2. That the leave granted by the court on 2nd December, 2022 to operate as stay staying any proceedings in Milimani criminal case 467/201; Republic versus Paul Mbatha & Another.3. That the court do (sic) issue an order of certiorari quashing the proceedings in Milimani criminal case 467/201; Republic versus Paul Mbatha & Another.”

2. Apart from stating that the application is filed pursuant to the leave granted on 2 December 2022, the applicant has not stated the law under which the application is filed. Nonetheless, it is based on a statutory statement dated 17 January 2016 and an affidavit sworn on even date by the 1st applicant on his own behalf and on behalf of the 2nd applicant verifying the facts relied upon.

3. According to the applicants they have been charged in Milimani Criminal Case No. 467/201. Copies of charge sheets which they have exhibited to their affidavit show that the correct case number is 467/2017 and not 467/201. The charge sheets also show that they have been charged with multiple counts of issuing bad checks contrary to section 316 A (1) (a) as read with section 316 A (4) of the Penal Code. The drawee of the bad cheques is indicated in the particulars of offence to be Kiserian Development Company.

4. The applicants content that they have been charged on the basis of allegations which even if taken to be true or are admitted, do not constitute a criminal offence. This is because the cheques in issue were drawn and given to the complainant on 16 October 2015 but were dated 20 February 2016, meaning that they were postdated cheques.

5. This fact, that the cheques were drawn and issued on 16 October 2015 but dated 20 February 2016 is not in dispute and it is also evident from the complainant’s own statement to the police and the contract entered into between the applicants and the complainant. It is also evident from the complaint’s advocates’ letter demanding for payment.

6. The applicant’s case is simple. That under section 316 A of the Penal Code, postdated cheques are not bad cheques as to constitute an offence.

7. This section of the law reads as follows:316A.Bad cheques(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.(3)Any person who, by deceit or any other fraudulent means, assists a person to obtain anything on the basis of a cheque drawn or issued in the circumstances described in subsection (1) is guilty of a misdemeanour.(4)A person who is guilty of a misdemeanour under this section is liable to a fine not exceeding fifty thousand shillings, or to imprisonment for term not exceeding one year, or to both.

8. The respondent opposed the application and filed grounds of objection to that effect. It is the respondent’s case that the applicants have not demonstrated that the decision by the respondent to prefer charges against them is tainted with illegality, irrationality and procedural impropriety.

9. The respondent has also pleaded that according to section 193A of the Criminal Procedure Code, cap. 75, both civil and criminal proceedings can concurrently proceed against the applicants.

10. The application is also opposed on the ground that this Honourable Court is being invited to evaluate the prosecution evidence, a task which is entrusted to the trial court.

11. Like the respondent, the interested party also filed grounds of objection to the application. The interested party has averred that the applicants have improperly invoked the jurisdiction of this Honourable Court because they are challenging the respondent’s decision to charge them whereas this court’s jurisdiction is concerned with the decision-making process and not the decision itself.

12. The application, it is urged, is a glaring attempt by the applicants to not only avoid the course of justice through the criminal justice system but also to vilify established systems in the criminal justice process.

13. The applicant’s case challenging the decision of the respondent to charge them with the offence of issuing bad cheques contrary to section 361A (1)(a) read with section 316A (4) of the Penal Code, it is urged, is tantamount to inviting of this Honourable Court to determine the veracity and the weight of the case against the applicants.

14. It is also contended on behalf of the interested party that whether the impugned cheques were postdated and not within the purview of section 316A of the Penal Code is an argument that ought to be addressed in the trial court and not before this court.

15. In any event, according to section 89 (5) of the Criminal Procedure Code, the trial court is empowered to, where it is of the opinion that a complaint or formal charge made or presented before it does not disclose an offence, make an order refusing to admit the complaint or formal charge. In the applicants’ case, formal charges against the applicants were duly presented before court which admitted the charges as having disclosed an offence. The trial court is clothed with the power to determine whether the offence against the applicants will be proved beyond reasonable doubt by the respondent.

16. Lastly, the interested parties pleaded that according to section 9 (3) of the Law Reform Act cap. 26 as well as Order 53 rule 3 of the Civil Procedure Rules, leave to apply for an order of certiorari is limited to 6 months. The decision to charge the applicants having been made in the year 2017 the applicants are time-barred in seeking for the order of certiorari in these proceedings.

17. It is on this last point in the interested party’s grounds of objection that I will start with in determination of this application.

18. Indeed, the charge sheet shows that the applicants were charged in 2017; to be precise, they were brought to court on 8 March 2017. But it was not until 17 January 2022 when they sought leave to file the instant motion.

19. I have carefully read the applicant’s affidavit verifying the facts relied upon and the statutory statement. No reason whatsoever has been given why the applicants had to wait for more than five years to file the instant suit.

20. Judicial review applications must be made promptly and not tardily and one of the factors that the court will consider in exercise of its discretion either to grant or reject judicial review relief is whether the application was made timeously.

21. As far as the order for certiorari is concerned, Order 53 Rule 2 is clear that the application must be made not later than six months after the date of the proceedings in question. This rule reads as follows:2. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave.

22. This rule is a replica of section 9(3) of the Law Reform Act which is categorical that an application for the order for certiorari must be made within a period of six months after the act or omission to which the application for leave relates. It reads as follows:(3)In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

23. The fact that leave has been granted does not relieve the applicants of the burden to explain the delay of five years in filing this suit. The question of delay always remains relevant either at the stage of grant of leave or at the hearing of the substantive motion.

24. According to Michael Fordham in his book Judicial Review Handbook, at Page 120, delay and its effects may be considered at one or more of three stages: first, at the ex parte leave application; second, at the renewed leave application; and, third, at substantive application stage.

25. So much may have happened since the institution of the criminal charges against the applicants. Of course, if there is evidence to the contrary, it was upon the applicants to demonstrate it to court. In the absence of such evidence, the court is entitled to assume that much ground may have been covered in the prosecution case such that granting relief sought at this stage would, in all likelihood, cause substantial hardship or prejudice to parties and may also be detrimental to administration of justice.

26. Apart from running afoul of express provisions of the law, the applicants’ application is also deficient in one other respect. It is seeking to quash proceedings in a court of competent jurisdiction yet neither the court nor the presiding magistrate has been joined to the proceedings. According to Order 53 rule 2, the substantive suit must be served on all persons directly affected. The rule is clear that where it relates to proceedings in or before court, the presiding officer of the court must be served.

27. This rule reads as follows:(2)The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.

28. Being in the category of parties directly affected by the suit, the presiding officer in the criminal trial against the applicants ought to be named as a respondent. He cannot be relegated to the periphery or left out of the suit altogether.

29. To the extent that the court or the presiding officer in the criminal case has not been joined to this suit, the suit is fatally defective and incompetent.

30. The upshot is that the applicants’ application fails. It is hereby dismissed with costs to the respondent and the interested party. It is so ordered.

SIGNED DATED AND DELIVERED AT NAIROBI ON 1 DECEMBER 2023NGAAH JAIRUSJUDGE