[2022] KEHC 10854 (KLR)

Republic v Director of Public Prosecutions & another; Njiru (Exparte); Murimi (Interested Party) (Application E006 of 2020) [2022] KEHC 10854 (KLR) (Judicial Review) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10854 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E006 of 2020

J Ngaah, J

June 10, 2022

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Inspector General of Police

2nd Respondent

and

Boniface Njiru

Exparte

and

Alex Masana Murimi

Interested Party

Judgment

1. The application before court is a motion dated 7 July 2020 in which the applicant is seeking the prerogative order is of certiorari and prohibition against the respondents. As far as the order of certiorari is concerned he seeks to be quashed the decision made on 29th of June 2020 by the respondents to prosecute the applicant with respect to what he has described as “the agreements to provide finance for acquisition of title deed for land property L.R. 26/6/21 Baba Dogo dated 19th June 2020”.

2. The order of prohibition is sought to prohibit the respondents or any other officers acting at their behest from arresting or prosecuting the applicant on any offences related to the aforesaid agreements.

3. The application is supported by a statement of facts dated 8 July 2020 and which is, itself, verified by an affidavit sworn by the applicant.

4. According to these documents, the applicant is an advocate of this Honourable Court. On 29 June 2022 officers of the Criminal Investigation Department from the central police station in Nairobi went to the applicant’s chambers and arrested him. They took him to central police station. The officers also carried his office stamps and a receipt book.

5. The applicant states that he was roughed up in the course of the arrest and forced to pay Kshs 600,000/= to the interested party. He did not have this money since he had transmitted it to one of the parties in the agreements. Nonetheless, he wrote a post-dated cheque of this sum in favour of the interested party and it is only after he handed over the cheque to the police officers that he was released from custody. He fears that he will be arrested and charged if the cheque is not honoured.The respondents filed a replying affidavit opposing the application.

6. I have considered the application and the responses thereto and the respective submissions filed by the parties’ representatives.

7. One thing that stands out prominently in the applicant’s application and upon which his application turns is the omission by the applicant to state in the statutory statement the grounds upon which his application is based. The statutory statement has only spelt out the description of the parties, the facts and the reliefs sought but not the grounds.

8. It is beyond peradventure that one of the vital components of an application for judicial review is the grounds upon which it is made. They are important because Order 53 Rule 1(2) states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:(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. (Emphasis added).

9. And order 53 rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.What are these grounds?

10. The grounds for judicial review were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service(1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

11. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to add that further development of this area of law may yield further grounds on a case by case basis. I suppose it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.

12. I would be speculating if I was to proceed on the presumption that the applicants’ application is based on any particular ground or grounds.

13. But the court cannot, and need not speculate on what is on the mind of any particular applicant because it is the applicant’s obligation, in the first place, to state categorically the ground or grounds upon which he seeks a judicial review court to intervene and impeach the administrative action in issue.

14. While reiterating the importance of stating grounds for judicial review in concise and precise terms, Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34. 1 states as follows:“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”

15. The ‘new order’ referred to in this passage is order 53 of the rules of the Supreme Court of Englandwhose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.

16. It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built. The applicant’s application is such an application and for this reason it cannot see the light of day. It is dismissed with costs.

SIGNED, DATED AND DELIVERED ON 10 JUNE 2022Ngaah JairusJUDGE