[2022] KEHC 12436 (KLR)

Republic v Senior Resident Magistrates Court Milimani Law Courts Nairobi & 2 others; Albert Martin Umara (Exparte); Cindy Everline Detho (Interested Party) (Judicial Review Miscellaneous Application E019 of 2022) [2022] KEHC 12436 (KLR) (Judicial Review) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12436 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E019 of 2022

AG Ndung'u, J

July 7, 2022

Between

Republic

Applicant

and

Senior Resident Magistrates Court Milimani Law Courts Nairobi

1st Respondent

Inspector General of The Republic of Kenya

2nd Respondent

Attorney General

3rd Respondent

and

Albert Martin Umara

Exparte

and

Cindy Everline Detho

Interested Party

Judgment

1. By a Chamber Summons application dated February 14, 2022 the Ex parte Applicant seeks the following orders:i.Spent.ii.The leave be granted for the Applicant to apply for the following:a.An order of Certioraribe issued by this Honorable Court to bring into this Court and quash the 1st Respondent's order dated February 7, 2022 to commit the Applicant to civil jail for 60 days in default for failing to pay Kshs 35,000/=.b.An order of Prohibitionbe issued by this Honorable Court to prohibit the 2nd Respondent from executing or effecting the orders of the 1st Respondent.c.That the grant of leave do operate as stay of the Orders made by the Senior Resident Magistrate on February 7, 2022, to commit the Applicant to civil jail for 60 days pending hearing and determination of the substantive motion.iii.Costs of and incidental to the application be provided for.iv.Such further and other reliefs that the Honourable Court may deem just and expedient to grant.

2. The application is supported by a Statutory Statement together with the Verifying Affidavit of Albert Martin Umara. The Ex parte Applicant’s case is that on September 17, 2021 the Interested Party herein filed before the 1st Respondent a claim for arrears of maintenance based on a consent order dated March 10, 2021 where upon hearing and determination of an application seeking to have a court order translating arrears of maintenance into debt for purposes of execution. The Interested Party was awarded Kshs 50,000/=.

3. TheEx parte Applicant contended that having lost his employment on November 23, 2020 and being sick and under medication Cindy Everline Detho opted to execute the claim by arrest and detention in prison. Further, without adherence to the provisions of section 38 of the Civil Procedure Act and Order 22 Rule 31 and 32 which require filing and serving of a notice to show cause and hearing before committal order is issued, he was arrested by the 2nd Respondent on February 5, 2022 and detained at Kileleshwa Police Station pursuant to a warrant of arrest issued by the 1st Respondent on January 20, 2022.

4. The 1st Respondent is said to have lifted the said warrant of arrest against the Ex parte Applicant on February 7, 2022 but subsequently directed that he be committed to civil jail for 60 days in default of paying the sum of Kshs 35,000/= by February 23, 2022. The Ex parte Applicant stated that despite having written a letter to the Executive Officer of the Children’s court dated February 8, 2022 the said ruling/order is yet to be furnished.

5. On the procedure to be followed before a court can commit one to civil jail the Ex parte Applicant cited the cases ofInnocent G Ondieki v Julius Nakaya Kabole[2019] eKLR, Republic vs Non-Governmental Organizations and Co-ordination Board Ex parte Kalonzo Musyoka Foundation[2018] eKLR and Solomon Murithi Gitandu & another vs Jared Maingi Mburu [2017] eKLR. The cases of Meixner v R(2005) 2 KLR 189 and John Kipkoech Rotich and 29 othersv Eldama Ravine Sub County Alcoholic Drinks Regulation Committee [2018] eKLR were also in support of the court’s power to grant of leave in judicial review proceedings.

6. The Ex parte Applicant urged that contrary to the said provisions the Interested Party has not extracted and served the said court order of the court ruling of November 30, 2021 for purposes of execution, neither has she applied for execution application. These according to the Ex parte Applicant are mandatory provisions for purposes of execution of the court order which must be strictly adhered to.

7. The Respondents in response raised 8 grounds of opposition in which they argued that the Ex parte Applicant had not produced before this Court a copy of the impugned ruling dated February 7, 2022 as per Order 53 rule 7 of theCivil Procedure Rules,2010.

8. He was also faulted for failing to file an appeal instead of the instant judicial review application before this court and also failing to exhaust the appeal mechanism available to him. The Respondents’ case is also that if this court were to grant the orders it would be usurping the statutory mandate of the 1st and 2nd Respondents. The case of Rich Productions Limited vs Kenya Pipeline Company & Another [2014] was cited in this regard.

9. The Respondents aver that as held in the cases ofWaweru Vs District Veterinary Office, Maragua & Another [2006] 1 Klr and Republic Vs Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (Kippra)[2013] eKLR the purpose of Order 53 Rule 7 is to enable the court satisfy itself of the existence of the orders, their contents and whether the application was filed in time.

10. The Interested Party in her grounds of opposition dated February 25, 2022 contended that the Ex parte Applicant herein has not adduced reasonable evidence to satisfy the court that the discretion of the Respondents ought to be interfered with neither has he demonstrated that his constitutional rights have been infringed or violated. The Ex parteApplicant’s application is said to raise evidentiary issues which will be best determined before a trial court. Further that he has not demonstrated the irreparable injury that will result unless the reliefs sought are granted. The rights under Article 50 according to the Interested Party remain available to Albert Martin Umara during the trial of the case.

11. The Interested Party also argued in her Replying Affidavit dated February 28, 2022 that, contrary to the Ex parte Applicant’s allegations, in her application dated September 17, 2021 she sought orders for warrants of arrest if the Applicant failed to show cause why he had not catered for the minor’s upkeep for the month of July, August and September amounting to Kshs 30,000/=.The Ex parte Applicant is said to have filed his replying affidavit and submissions to said application.

12. The Court delivered its ruling on the said application on December 31, 2021 on which date counsel representing the Applicant was present in court. The Interested Party contended that theEx parte Applicant was always aware of all the numerous orders of the court even the one delivered on October 15, 2020 which obligated him to provide financial support for the minor.

13. He is accused of having left service one month after the said orders were issued to defeat the purpose of the said order. The Interested Party also contended that pursuant to this, she wrote to the court’s Executive Officer to issue warrants of arrest to be executed by the OCS Kileleshwa Police Station. It is urged that the Ex parte applicant has been given numerous chances by the court to cater for the minor.

14. On the purview of judicial review, the cases of Esther Kavive v Senior Principal Magistrate’s Court Kangundo & another [2021] eKLR, Republic vs. Kenya Revenue AuthorityEx parteYaya Towers Limited [2008] eKLR, Republic vs Kenya National Examinations Council ex parte Gathenji & OthersCivil App, Hangsraz Mahatam Gandhi Institute & 2 Others [2008] MR 127 were cited.

15. The case of Republic vs Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR was referred to on the importance of obtaining leave.

Determination 16. Having considered each parties case I find that only one issue crystalizes for determination and that is whether the Ex parte Applicant has established grounds for the grant of leave. The applicable law on grant of leave to institute judicial review proceedings is Order 53(1)(1) of the Civil Procedure Rules, which provides as follows;“No application for an order of Mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule. (2) An application for such leave as aforesaid shall be madeex 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.’’

17. The importance of obtaining leave in Judicial Review proceedings was eloquently stated by Waki J (as he then was), in the case of Republic vs County Council of Kwale and Another Ex-parte Kondo and 57 others where the judge stated;“… is to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations 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 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 proceeding for Judicial Review of it were actually pending even though misconceived.”

18. Similarly, in the case of Meixner & Another vs AG (2005) IKLR, 189, the court held that leave of court is a prerequisite to making a substantive application for Judicial Review with a view to filtering out frivolous applications and the grant or refusal involves an exercise of Judicial discretion and the test to be applied is whether the applicant has an arguable case. This helps the court to at a very early stage, filter claims which may be trivial or without merit.

19. The Ex parte Applicant before this court contends that the 1st Respondent’s decision committing him to civil jail is irregular, improper and not procedural and that by failing to adhere to the provisions of section 38 of the Civil Procedure Act and Order 22 of Rules 31 and 32 his right to be heard was infringed upon.

20. In response, the Respondents argue that the Ex parte Applicant has to exhaust the appeal mechanism available to him and that if this court was to grant the orders sought it would be usurping the powers of the Respondents.

21. The Interested Party on the other hand alleges that the Ex parte Applicant has failed to adduce reasonable evidence to satisfy the court that the discretion of the Respondents ought to be interfered with neither has he demonstrated that his constitutional rights have been infringed or violated. He is also said to have been aware of all the numerous court orders issued against him.

22. I have considered the material before court. It is common ground that there are live proceedings before the magistrates’ court. The court in that case has given adverse orders against the applicant. The Magistrate’s Court has not acted without jurisdiction. The civil procedure Act and the Rules made thereunder provide the legal remedy for a person aggrieved by orders of the Magistrate’s court. That remedy is an Appeal to the High Court if not a review application before the Magistrate. In both cases a stay of execution is always a useful tool to forestall execution.

23. I have noted that the Applicant challenges the conduct of the proceedings and has imputed instances of unfairness against him. At this stage the court is not required to delve into a full inquiry of the facts. If an arguable case is established that needs further inquiry at the substantive stage, leave will be granted. The infractions complained of are tantamount to stating that the trial court erred in law and fact in arriving at its decision. This court must of necessity be very cautious of crossing the thin line between an appeal and a judicial review. This is more so when dealing with decisions of courts whose powers and mandates are well provided in law. I would add that the caution alluded to here is more pronounced when dealing with judicial decisions of the courts below.

24. For leave to be granted, a party must demonstrate an arguable case with a chance of success. This court in the case of Sammy Matheka & 2 others vs The Principal Secretary, Ministry of Transport, Infrastructure and Urban DevelopmentJudicial Review Misc. Application No E025 of 2021 held as follows“The ingredients that an applicant ought to demonstrate before the court at the stage of leave are that he has sufficient interest in the matter (Locus Standi), he is affected by the decisions made, he has an arguable case within a reasonable chance of success and that the challenged decision is by a public body.

25. Has the Applicant established an arguable case? On the material before court, he has not. If leave was to be granted, the court must bear in mind that when sitting over the matter, the scope of review will be limited to the court’s jurisdiction in judicial review as opposed to the wide jurisdiction in the appellate jurisdiction where the court has the mandate to substitute the decision of the trial court with its own. In those circumstances the Applicant’s case has no chances of success. Its apt at this stage to re emphasize the scope of judicial review. In the case of Republic vs Kenya Revenue Authority Ex parte Yaya Towers Limited[2008] eKLR it was held that;the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.’’

26. Am persuaded that the Applicant has not achieved the threshold for the grant of leave. His is an invite to this court to sit as an appellate court. The application dated February 14, 2022 has no merit. I dismiss the same with an order that each party bears its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY JULY, 2022A. K. NDUNG'UJUDGE