[2002] KEHC 225 (KLR)
The court found that the applicant's prosecution was closely linked to the actions of a Nairobi City Council officer who had been charged with corruption, and that the only evidence against the applicant came from this officer. The sequence of events, including the applicant's role in causing the officer's arrest...
Source-derived case information.
- Citation
- [2002] KEHC 225 (KLR)
- Parties
- Applicant: Kenneth Mbogo Mararo; Respondent: Republic; Respondent: Nairobi City Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 125 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Prohibition
- Outcome
- application allowed; order of prohibition granted; lower court proceedings terminated
- Legal Topics
- Judicial Review, Prohibition Orders, Malicious Prosecution, Public Health Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Mbogo Mararo
Applicant
Republic
Respondent
Nairobi City Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Prohibition
Legal Issues
- 1 Whether the prosecution of the applicant in Criminal Case No. 6366 of 2001 was actuated by malice and abuse of process.
- 2 Whether an order of prohibition should issue to stop the proceedings in the lower court against the applicant.
Ratio Decidendi
The court found that the applicant's prosecution was closely linked to the actions of a Nairobi City Council officer who had been charged with corruption, and that the only evidence against the applicant came from this officer. The sequence of events, including the applicant's role in causing the officer's arrest and the lack of any rebuttal from the respondents, supported the applicant's claim that the prosecution was motivated by malice and was an abuse of process. The court held that it would be unjust to allow the prosecution to proceed under these circumstances and therefore granted the order of prohibition, terminating the proceedings in the lower court against the applicant.
Court Disposition
application allowed; order of prohibition granted; lower court proceedings terminated
Orders
- Order of prohibition granted as prayed.
- Proceedings before the lower court in Criminal Case No. 6366 of 2001 against the applicant are terminated.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO 125 OF 2002
IN THE MATTER OF AN APPLICATION BY KENNETH MBOGO
MARARO
FOR AN ORDER OF PROHIBITION
IN THE MATTER OF: THE CHIEF MAGISTRATE’S COURTS AND
CHIEF MAGISTRATE’S COURT CRIMINAL CASE NO. 6366 OF
2001 AT NAIROBI-REPUBLIC –VS-KENNETH MBOGO MARARO
KENNETH MBOGO………………………………….…APPLICATION
VERSUS
REPUBLIC……………………………………….………RESPONDENT
R U L I N G
The applicant has been charged in Criminal Case No 6366 of 2001 now pending hearing before the Chief Magistrate, with offences under the Public Health Act.
He has now moved the Court by way of Notice of Motion for an order of Prohibition based on the facts and affidavit annexed thereto.
The basis of such a prayer is that he did not commit any offence or breach to warrant the charges and the only reason the same were levelled against him was that the officer from the Nairobi City council at whose instance the charges were laid wanted to extort money from him-the applicant- and therefore any prosecution is actuated by malice.
There is uncontroverted evidence that an officer from the Council by the name Daniel Mwangi Wanjau has been charged with the offence of corruption and Criminal Case No.2634 of 2001 is pending hearing.
The facts as stated in the statement and verifying affidavit have not been controverted at all as there have been no affidavits filed in reply thereto. That notwithstanding, the visit to the premises of the applicant by the officer from the Nairobi City Council cannot be divorced from the extortion allegations as the sequence of events were too close.
I bear in mind that the corruption case against the said officer may not have been finalized; but I note also that his name is the only one listed as a witness. It is the applicant herein who caused him to be arrested. How can the proceedings against the applicant proceed under the circumstances? I believe the interests of justice will be met if I made final orders herein. The order of prohibition is hereby granted as prayed. The proceedings before the lower court against the applicant in Criminal Case No. 6366 of 2001 are hereby terminated. There shall be no order as to costs.
Orders accordingly.
Dated and delivered at Nairobi this 18th day of June, 2002
A. MBOGHOLI MSAGHA
JUDGE
Mr Malik for applicant
Mr Osoro for Nairobi City Council
Miss Okumu for the state