[2020] KEHC 745 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. MISC E008 OF 2020

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS

BETWEEN

REPUBLIC..................................................APPLICANT

VERSUS

FIREARMS LICENSING BOARD........RESPONDENT

EXPARTE: STEVE MBOGO NDWIGA

RULING NO. 2

1. The Applicant herein, Steve Mbogo Ndwiga has brought an application by way of a Chamber Summons dated 17th July 2020 seeking the following orders:

a. THAT the Application be certified urgent and be heard ex-parte in the first instance for the reasons of urgency set out in the Certificate of Urgency.

b. THAT the Ex- Parte Applicant be granted leave by this Court to institute judicial review proceedings against the Respondent in terms of Section 9(4) of the Fair Administrative Action and be exempted from exhausting the internal remedy available under the Firearms Act.

c. THAT the Ex-Parte Applicant be granted leave to apply for an order of CERTIORARI to move into this Court for purposes of being quashed, a decision of the Firearms Licensing Board to detain the Ex parte Applicant's Firearm Certificate No. 006001 communicated to the Ex Parte Applicant orally on the 5th February 2019.

d. THAT the Ex-Parte Applicant be granted leave to apply for an order of CERTIORARI to move into this Court for purposes of being quashed, a decision of the Firearms Licensing Board through its agents to confiscate and detain the following guns and ammunition belonging to the Ex Parte Applicant;

i. Smith and Wesson SINO. LDL 6866

ii. Auto Pistol QB s/No. A496041

iii. Taurus Shot gun SINO. 51-IY 175941

iv. Anakon Shot gun SINO. 1<0039

v. 22 Rounds of 9mm

vi. 16 rounds of 2. 0 mm

e. THAT the Ex Parte Applicant be granted leave to apply for an order of MANDAMUS to compel the Respondent to return and hand over to the Ex Parte Applicant his Firearms Certificate Number 006001, guns and ammunition to wit; Smith and Wesson SINO. LDL 6866; Auto Pistol QB SINO. A496041; Taurus Shot gun s/No. 51-IY 175941; Anakon Shot gun SINO. K0039; 22 Rounds of 9mm; 16 rounds of 2. 0 mm.

f. THAT the grant of leave to operate as a stay to stop the implementation of the impugned decision.

g. THAT the Court be pleased to grant such other or further relief as it may deem fit in the circumstances.

h. THAT the cost of this Application be provided for

2. The application is supported by a statutory statement dated 17th July 2020 and a verifying affidavit sworn by the Applicant on the same date. This Court, after noting that the Applicant stated that he had previously instituted proceedings in this Court in JR. Miscellaneous Application No. 52 of 2019, and after perusal of the judgment by Hon. Mr. Justice Mativo delivered in the said case, directed the Applicant to serve the Chamber Summons dated 17th July 2020 and to canvass it inter partes,and in particular to also address the issue whether it is in abuse of the process of court.

3. The Applicant’s Advocates on record, Otieno Ogola & Company Advocates subsequently filed submissions date 16th August 2020 on the issue of leave, while Mr. Wanjohi Munene, a Senior State Counsel in the Attorney General’s Office, filed reply submissions dated 20th August 2020. The parties’ respective positions are summarized in the following sections.

The Applicant’s Case

4. The Applicant confirmed that it had previously filed Judicial Review Misc Application No. 52 of 2019 challenging the decision of the Respondent to arbitrarily confiscate his lawfully issued firearms and to revoke his firearms license, and that judgment thereon was delivered on 14th May 2020 by Hon. Mr. Justice Mativo. Further, that the Learned Judge while finding that there was merit in the application was of the opinion that the Applicant ought to file for leave to be exempted from the provisions of Section 9 Fair Administrative Action Act and be allowed to challenge the decision of the Respondent in light of the failure by the Cabinet Secretary to consider the appeal which was lodged before him.

5. Therefore, that guided by the said holding the Applicant made the present application, which in prayer 2 thereof seeks an order that the Applicant be granted leave by this e Court to institute judicial review proceedings against the Respondent in terms of Section 9(4) of the Fair Administrative Action and be exempted from exhausting the internal remedy available under the Firearms Act.

6. Further, that subsequent to the judgement by Hon. Mr. Justice Mativo, the Applicant once again prompted the Cabinet Secretary on the appeal lodged vide a letter dated the 15th May 2020, and that the Cabinet Secretary once again has refused and or failed to consider the appeal which was initially lodged on the 11th February 2019.

7. According to the Applicant, this is a proper and fit case for leave to be granted by the Court for the Applicant to institute proceedings against the Respondent without exhausting the internal review mechanisms available as the party vested with the responsibility to consider an appeal has failed and or refused to consider the Appeal. In addition, that under Article 50 of the Constitution the Applicant has the right to have a dispute heard by application of the law.

8. The Applicant denied that he was acting in abuse of the processes of this Court, as at the time of filing these proceedings, he disclosed that there have been previous proceedings between the parties and attached the judgement issued by the Hon. Mr. Justice Mativo. Further, that he has demonstrated that the filing of the present proceedings is guided by the said judgement.

9. On the grounds for leave to commence judicial review proceedings, the Applicant submitted that the conduct of the Respondent in arbitrarily confiscating the Applicant's lawfully registered firearms and firearms certificate contravenes the law and is subject to review by this Court. Further, that in arriving at the impugned decision, the respondent acted in direct contravention of the law, breached provisions of the Constitution, failed to accord the Applicant a right to be heard or to give the written reasons that informed the impugned decision, contrary to the express provisions of Article 47 of the Constitution, section 5 (8) of the Firearms Act, and section 4 (2) and 5 (4) of the Fair Administrative Action Act.

10. Therefore, that the respondent's decision is illegal, unreasonable, informed by bad faith and in breach of the Applicant’s legitimate expectations and is subject to review. In addition, that the Respondent’ conduct as a public body is also subject to review by this Court. Reliance was placed on the decisions inSuchan Investment Limited vs Ministry of National Heritage & Culture & 3 other (2016) e KLR,Sceneries Limited vs National Land Commission (2017) eKLRandRepublic vs Principal Secretary Ministry of Mining Ex Parte Airbus Helicopters Southern Africa(2017)

The Respondent’s Case

11. It is the Respondent’s submission that the Applicant‘s application is an abuse of court process as he has not exhausted available internal remedies under section 23 of the Firearms Act Cap 114, as is required under section 9 (2) of the Fair Administrative Actions Act 2015, and that the instant application offends the doctrine of exhaustion of statutory available remedies. Furthermore, that section 23 of the Firearms Act does not dictate upon the Minister a time frame for which he/she must render a decision for an appeal and the Applicant lodged an appeal against the decision of the Firearms Licensing Board confiscating his firearms and detention of firearms certificate number 006001 by a letter dated 15th May 2020, and it had only been two months since the lodging of the appeal when the Applicant approached this Court in the instant Application.

12. The decisions in Republic vs The National Environmental Management Authority (2011) Civil Appeal No. 84 of 2010, and Republic vs Kenya Revenue Authority Ex-Parte Styles Industries Limited (2019) eKLR were cited for the submissions that no exceptional circumstances have been demonstrated to exempt the Applicant from the internal dispute resolution mechanism.

13. Lastly, the Respondent submitted that Applicant is estopped by the doctrine of res judicatafrom making the instant application, and that he had the opportunity to apply for exemption citing exceptional circumstances in Judicial Review Application No. 52 of 2019, but failed to do so. Further, that thee Applicant seeks similar orders as sought in Judicial Review Application No. 52 0f 2019, and the only difference being that in this instant application, he seeks for exemption citing exceptional circumstances. Reliance was placed on section 7 of the Civil Procedure Act and the decision in Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited, [2017] eKLR for this submission.

The Determination

14. I have considered the Chamber Summons application dated 17th July 2020 and arguments made thereon, and have identified three issues that require determination. The first is whether the instant application if res judicata. If the application is found to be properly before this Court, I will then proceed to consider the two remaining issues, namely, whether exceptional circumstances have been demonstrated to exempt the Applicant from the internal dispute resolution mechanisms in the Firearms Act, and if so, whether the leave sought to commence judicial review proceedings should be granted.

On Whether this Application is Res Judicata

15. Section 7 of the Civil Procedure Act in this regard provides for the circumstances when a suit is res judicata as follows:

“ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

16. The test to be applied to determine whether a suit is res judicata was set in Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others[1996] eKLR, by the Court of Appeal as follows:

i. [There must be] a previous suit in which the matter was in issue;

ii. the parties were the same or litigating under the same title;

iii. a competent Court heard the matter in issue;

iv. the issue has been raised once again in a fresh suit.

17. It is not in dispute that the Applicant previously filed another application by way of a Notice of Motion dated 12th March 2019 in Nairobi High CourtJudicial Review Application No. 52 of 2019, in which he sought the following orders:

1. AN ORDER OF CERTIORARIto move into this Court for purposes of being quashed, a decision of the Firearms Licensing Board to detain the Ex parte Applicant’s Firearm Certificate No. 006001 communicated to the Ex Parte Applicant orally on the 5th February 2019.

2. AN ORDER OF CERTIORARIto move into this Court for purposes of being quashed, a decision of the Firearms Licensing Board through its agents to confiscate and detain the following guns and ammunition belonging to the Ex Parte Applicant;

a. Smith and Wesson S/NO. LDL 6866

b. Auto Pistol C2B S/No. A496041

c. Taurus Shot gun S/No. 5HY 175941

d. Anakon Shot gun S/No. KOO39

e. 22 Rounds of 9mm

f. 16 rounds of 2. 0 mm

3. AN ORDER OF MANDAMUSto compel the Firearms Licensing Board to return and hand over to the Ex Parte Applicant his Firearms Certificate Number 006001, guns and ammunition to wit; Smith and Wesson S/NO. LDL 6866; Auto Pistol C2B S/No. A496041; Taurus Shot gun S/No. 5HY 175941; Anakon Shot gun S/No. KOO39; 22 Rounds of 9mm; 16 rounds of 2. 0 mm.

4. SUCH OTHER ORDERSand reliefs as the Honourable Court may deem appropriate.

18. A prayer for leave to seek the same orders is also included in the instant application. Judgment was delivered inNairobi High CourtJudicial Review Application No. 52 of 2019on 14th May 2020 by Hon. Mr. Justice Mativo on various issue. On the exhaustion of internal remedies, the Honourable Judge noted that Mr. Otieno argued that the applicant appealed to the Minister but that his appeal has not been considered, to justify the reason why the applicant by passed the statutory laid down appellate process and approached this court. The Judge proceeded to hold as follows:

“40. It is uncontested that the impugned decision constitutes an administrative action as defined in section 2 of the FAA Act. Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the ex parte applicant can show exceptional circumstances to exempt it from this requirement[1]and has applied for exemption.In this regard, the applicant states that he appealed to the Minister but the Minister has remained silent. To me the refusal by the Minister is sufficient to constitute exceptional circumstances. However,consistent with the provisions of section 9 (4) of the FAA Act, it is my finding that the applicant ought to have applied for exemption citing the said reason and obtain the exemption as provided in the said section. Accordingly, it is my finding that this case offends the provisions of section 9 (4) of the FAA Act. On this ground, it must fail.”

19. The Honourable Judge in his judgment then proceeded to consider the merits of the Applicant’s case. He first posed the question whether the impugned decision is ultra vires the Respondent’s statutory mandate, and made the following finding:

“60. It follows that, the impounding of the guns and cancellation or suspension of a license pending conclusion of investigations or criminal charges can in my view pass the test of legality viewed from the lens of the ambit and purposes of the enabling statute. It cannot have been the intention of Parliament to allow a licensee whose guns have been impounded under circumstances as in this case or whose license is under challenge on allegations of buying guns for which the license did not cover to continue being in possession of the weapons before a finding is made resolving the issues in controversy. The other important point to note is thata firearm license may be terminated under certain circumstances. Significantly, it may be terminated if the holder of the license “becomes or is declared unfit to possess a firearm. In this regard I find and hold that the enabling statute grants the Respondent with power to cancel the license.

61. Simply put, the impugned action viewed from the lens of the Respondent’s statutory functions and the circumstances which triggered the decision leaves me with no doubt the Respondent’s in the circumstances of this case acted intra vires their mandate.”

20. The Judge then considered the issue that is whether the decision is tainted with unreasonableness and found as follows:

“66……Here is a case where the applicant was found in a security operation zone fully armed. Here is case where he is alleged to have been found in possession of guns for which he was not licensed. Here is a case where the alleged variation of his license is under challenge. Here is a case where a criminal offence and a breach of license conditions is said to be under investigation. Faced with the above circumstances and the statutory provisions discussed above, there is nothing to show that any treasonable (sic) decision maker faced with the same set of facts and circumstances could have arrived at a different decision..”

21. On the argument raised by the Applicant that the impugned decision is tainted with bad faith, the judge was not persuaded that the allegation of bias passed the required threshold and applicable tests. Likewise, on the alleged breach of the Applicant’s right to legitimate expectation, the Honourable Judge’s finding was that the applicant was arrested for a suspected criminal offence(s) known to the law, and the doctrine of legitimate expectation has no application in the circumstances of this case. The last ground considered by the learned Judge was the question of breach of natural justice, and he held as follows:

“The question of being given a notice or reasons for the decision cannot arise because he is reasonably suspected of committing an offence(s) under the Act. If follows that the assault of the decision based on alleged procedural impropriety, namely, failure to be given a notice, a hearing or reasons cannot stand. He already knows why he was arrested. He has not cited violation of Article 49 of the Constitution. This court cannot be used to shield the applicant from a possible criminal prosecution.”

22. I have reproduced in great length the findings by the Judge, in light of the requirements of section 7 of the Civil Procedure Act, and to demonstrate that the Hon. Justice Mativo has already decided on the grounds that form the basis of the instant application for leave. The instant application is thus clearly res judicata, as the substantive orders that the Applicant hopes to seek herein were sought and substantially considered and denied in Nairobi High CourtJudicial Review Application No. 52 of 2019. This application is to this extent also in abuse of the process of Court, as it seeking this Court to sit in judgment over a court of competent jurisdiction. The Applicant ought to have sought a review of the orders in Nairobi High CourtJudicial Review Application No. 52 of 2019, if he was of the opinion that there were changed circumstances or new evidence which entitled them to the order of mandamus.

23. I am also guided by the decision of the Court of Appeal inJohn Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others(2015) eKLR,wherein it was observed as follows in this regard:

“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of Court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent Courts. It promotes confidence in the Courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.”

24. It therefore follows that the instant application is incompetently before this Court, and the outstanding issues cannot be considered.

The Disposition

25. In the premises, I find that the Applicant’s Chamber Summons dated 17th July 2020 is not merited, and it is accordingly struck out with no order as to costs.

26. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE

FURTHER ORDERS ON THE MODE OF DELIVERY OF THIS RULING

In light of the declaration of measures restricting Court operations due to the COVID -19 Pandemic, and following the Practice Directions issued by the Honourable Chief Justice dated 17th March 2020 and published in the Kenya Gazette on 17th April 2020 as Kenya Gazette Notice No. 3137, this ruling will be delivered electronically by transmission to the email addresses of the ex parteApplicant’s, Respondent’s and Interested Party’s Advocates on record.

P. NYAMWEYA

JUDGE