[2015] KEHC 7606 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURT

JUDICIAL REVIEW DIVISION

JR NO.117 OF 2015

REPUBLIC……………………………......APPLICANT

-VERSUS-

KENYA REVENUE AUTHORITY……….RESPONDENT

EX PARTE:PAUL MAKOKHA OKOITI

RULING

By a Chamber Summons dated 14th April, 2015, the Applicant herein, Paul Makokha Okoiti seeks the following orders:

a.The Applicant be granted leave to apply for an order of prohibition to restrain the KRA counsels, Ms. Janet Lavuna, from representing the Kenya Revenue Authority in cases of alleged dismissal of the Applicant from Kenya Revenue Authority.

b. Cost be in the cause.

The application was based on the following grounds:

Unless there is a charge, no disciplinary proceedings could take pace, and the Applicant was therefore not dismissed.

The letter from a fellow employee who was not even the supervisor of the Applicant cannot give any meaningful relation to the duties to the organization.

The court must act on written documents, and an example is the Penal Code, which gives the punishment for the offences done. Without the charge or wrong charge or sentence not included in an act, the court cannot make any decision, and in a similar manner, there cannot be any question breech of terms of employment of the Applicant without a charge, even a faulty one. The court must therefore give leave for prohibition or give reasons for allowing an abuse of office, if there were no charges.

The application was supported by an affidavit sworn by the Applicant on 14th April, 2015.

According to the Applicant, he was removed from the services of Kenya Revenue Authority in circumstances that had nothing to do with the organization, and his requests for charges of alleged misconducts have been denied by the organization through the counsel.

It was his view that the charges are the basis of disciplinary issue that can result in termination of services of a public servant and, that without charges, the person who wrote any show cause letter and the dismissal acted in personal capacity. According to the Applicant, in a proper disciplinary case, the immediate superior of the employee is the one who should raise the deficiencies of the employee, and in this case, the writer of the letter was not the immediate supervisor of the Applicant and had no reason to write a letter and give a copy to the supervisor of the Applicant.

The Applicant contended that in all respects, there were no charges which are the first step in a public officers disciplinary proceedings, and attempt to get the charges have been avoided by both judges and the counsel in Misc. JR 351 of 2011 and Misc. Civil JR 340 of 2013, even after the counsel had agreed to provide the same in the said proceedings.

The Applicant asserted that in the absence of charges there cannot be any legal proceedings with Kenya Revenue Authority and therefore it is wrong for the counsel purporting to represent Kenya Revenue Authority to appear in court for the organization.

On behalf of the Respondent the following preliminary objections were filed:

1. The orders sought in the application are untenable.

2. This matter is Res-judicata in view of a judgment delivered on 10/2/2012 in HC Misc. Appl. No. 351 of 2011 between the same parties by honourable justice Majanja, and in a subsequent ruling dated 9/5/2014, Justice Majanja dismissed the Applicant’s application to set aside the judgment. The Applicant has already exercised the option to appeal in the Court of Appeal.

3. The matter is also res-subjudice as it is also pending before the Industrial Court in Industrial Cause No. 25 of 2013. Paul Makokha Okoiti Vs KRA. The Applicant has refused to prosecute that matter.

4. The matter is further re-judicata as the Petitioner filed a Judicial Review in JR No. 340 of 2013 which was heard on the very same issues as proposed to be canvassed in this suit. Honourable Justice Korir, delivered a judgment dated 21/5/2014 in the Judicial Review. A ruling delivered on 11/12/2014 in the matter was given denying the Applicant his application to set-aside Justice Korir’s Judgment.

5. The Applicant is a vexatious litigant and is abusing the court process to the prejudice of the Respondent. The present application is a frivolous one.

At the hearing of the application, the applicant was clear that his grievance was the failure by the Respondent to furnish him with the charges which led to his dismissal. He in fact informed the Court that if the same were furnished to him, these proceedings would be rendered unnecessary.

The Respondent on the other hand was of the view that these proceedings were frivolous as the Applicant had sought similar orders in the previous proceedings.

I have considered the application herein and the grounds upon which it is based. The applicant herein intends to seek an order of prohibition. In the meantime he seeks leave of this Court to commence the said proceedings. The requirement for leave was explained by a three judge bench comprising Bosire, Mbogholi-Msagha & Oguk, JJ in Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993 in which the Court held that it is supposed to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the Court or those applications which are statute barred. Similarly, in Republic vs. Land Disputes Tribunal Court Central Division and Another ex Parte Nzioka [2006] 1 EA 321, Nyamu, J (as he then was) held that leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralysed for months because of pending court action which might turn out to be unmeritorious. See alsoRepublic vs. The P/S Ministry of Planning and National Development ex Parte Kaimenyi [2006] 1 EA 353.

Waki, J (as he then was), on the other hand, in Republic vs. County Council of Kwale & Another ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996 put it thus:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter parteshearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.

This position was confirmed by the Court of Appeal in Meixner & Another vs. Attorney General [2005] 2 KLR 189 in which the Court held that the leave of the court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filter out frivolous applications hence the granting of leave or otherwise involves an exercise of judicial discretion.

The circumstances which guide the grant of leave to apply for judicial review remedies were enumerated in Mirugi Kariuki vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:

“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers…”

In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved…. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

What comes out clearly from the foregoing is that the grant of leave to commence judicial review proceeding is not a mere formality and that leave is not granted as a matter of course. The applicant for leave is under an obligation to show to the court that he has a prima facie arguable case for grant of leave. Whereas he is not required at that stage to go into the depth of the application, he has to show that there exist grounds upon which the Court may find that the judicial review orders would be justified. Therefore where it is clear to the Court that even if the applicant’s case as pleaded would otherwise succeed but the grounds do not bring the matter within the purview of judicial review the Court would still not grant the leave sought.

As the applicant intend to seek an order of prohibition it is important to discuss the circumstances under which such an order can be granted. The Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 [1997] eKLR, dealt with the said issue when in expressed itself as follows:

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice...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 for 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.”

It is therefore clear that first and foremost an order of prohibition just like any other judicial review orders, is only available where the person or body to whom it is directed has a legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. SeeHalsbury’s Laws of England, 3rd Edn Para 112.

In this case, from the manner in which the application is drawn, the applicant seeks to prohibit “KRA counsels, Ms. Janet Lavuna, from representing the Kenya Revenue Authority in cases of alleged dismissal of the Applicant from Kenya Revenue Authority”. Although the Applicant even before the grant of leave proceeded to file a Notice of Motion dated 17th April, 2015 in which he seeks an order “prohibiting Kenya Revenue Authority to refrain from defending cases arising from dismissal of the Applicant” that Motion could only be validly filed after leave is sought and granted. In any case the orders sought in the substantive Motion can only be those for which leave was sought and granted. As the Chamber Summons for leave seek orders directed to the Respondent’s counsel who is named personally, the orders sought herein even if were grounded on known grounds for judicial review would be incapable of being granted.

Apart from that the only basis upon which the order of prohibition is sought is that the Respondent has declined to furnish the Applicant with the charges. It is not alleged that there is an excess of jurisdiction or absence of it or that the Respondent intends to proceed in contravention of the rules of natural justice.

To grant leave to the applicant to institute legal proceedings barring the Respondent from defending suits which the Applicant himself has instituted against the Respondent would be to permit the Applicant to institute legal proceedings whose aim is to deny the Respondent the opportunity to be heard in maters which are likely to adversely affect it. That in my view would be a violation of Article 50 of the Constitution. This Court has no jurisdiction to grant orders which contravene the provisions of the Constitution since under Article 2(2) of the Constitution, this Court is enjoined to exercise its authority in accordance with the Constitution.

I have also considered the nature of the orders sought. It is clear that the Applicant’s basis for seeking the orders sought herein is to compel the Respondent to furnish him with the charges against him. That relief cannot be obtained by prohibiting the Respondent from defending suits filed against it by the Applicant. If properly advised the Applicant can obtain what he seeks without necessarily applying for the orders he intends to seek herein. In fact in Miscellaneous Application No. 351 of 2011 between the same parties, Majanja, J offered the Applicant a gratuitous opinion on the manner in which he could obtain the relief he seeks herein but the Applicant did not heed the same. Instead in these proceedings the Applicant is contending that “attempt to get the charges have been avoided by both judges and the counsel in Misc. JR 351 of 2011”. In my view the commencement of these proceedings is a gross abuse of the Court process.Leave to commence judicial review application, however cannot be granted where to do so would amount to the Court abetting abuse of its own process since the decision whether or not to grant leave is an exercise of judicial discretion.

I have perused the Court’s decision in that case and I must say that with due respect to the Applicant’s such robust accusation is baseless. The wise words of the Court of Appeal in J M Mwakiovs. Kenya Commercial Bank Ltd. Civil Appeal No. 156of1997 ought to act as a guide to the applicant herein. In that case the said Court expressed itself as follows:

“The appellant is a familiar figure in the Law Courts. He does not hesitate to institute litigation on any aspect of perceived breach of his rights. Whereas litigants are perfectly free to bring any number of suits they may so desire, they must understand that in doing so, they are bound to stick to the rules governing the conduct of litigation in courts… no consequence that flows out of the enforcement of law can be said to cause injustice. Moreover, it is a cardinal principle in the administration of justice that it is in the interest of all persons that there should be an end to litigation…”

The Applicant has had the benefit of sound advice by this Court but has chosen to ignore the same.

In the premises and having considered the issues raised in this application and in light of what I have stated herein above I find no merit in these proceedings which I hereby dismiss with costs to the Respondent.

Dated at Nairobi this 1st day of July, 2015

G V ODUNGA

JUDGE

Delivered in the presence of:

Applicant in person

Miss Lavuna for the Respondent

Cc Patricia