[2022] KEHC 15527 (KLR)

Republic v Sub-County Criminal Investigations Kilimani Police Station (SCCIO) & 2 others; Abdalla (Exparte); National Police Service Internal Affairs Unit & another (Interested Parties) (Miscellaneous Civil Application E148 of 2022) [2022] KEHC 15527 (KLR) (Judicial Review) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15527 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application E148 of 2022

AK Ndung'u, J

November 17, 2022

Between

Republic

Applicant

and

Sub-County Criminal Investigations Kilimani Police Station (SCCIO)

1st Respondent

Hezron Kimutai

2nd Respondent

Attorney General

3rd Respondent

and

Shakila Abdalla

Exparte

and

National Police Service Internal Affairs Unit

Interested Party

Abubakar Ahmed Talib

Interested Party

Ruling

1. By way of a chamber summon dated October 5, 2022 and brought under order 53 rule 1 of the Civil Procedure Rules and sections 1A, 1B, and 3A of the Civil Procedure Act; the ex parte application sought the following orders:I.Spent.II.That the applicant be granted leave to apply for judicial review and especially for: -a.An order of certiorari removing to this honourable court for purposes of same being quashed summons to the applicant and to the Wiper Democratic Movement Party National Elections Board Members to record a statement in respect of a dispute and complaint regarding the nomination exercise and documents filed in court touching on the nomination process to the position of Member of the National Assembly.b.An order of Prohibition prohibiting the Respondents from investigating a dispute regarding the nomination exercise and documents filed in court touching on the nomination process to the position of Member of National Assembly.III.That the grant of leave do operate as a stay of the Respondents’ Investigation of the dispute regarding the nomination exercise and documents filed in court touching on the nomination process to the position of Member of National Assembly until the determination of the application of the aforesaid orders.IV.That the costs of this application in the cause.

2. The Application is predicated on the grounds on the face of the application, the annexed affidavits by the ex-parte applicants, and on the statement of grounds and facts at the leave stage.

3. In summary, the Applicant, who is the Secretary General of Wiper Democratic Movement, averred that the 1st and 2nd Respondents have unlawfully taken upon themselves to investigate a civil dispute emanating from a nomination exercise - for the position of Member of National Assembly - which was conducted by the Wiper Democratic Movement Party; and which matter and issues are live and pending for determination before the Court of Appeal in CoA Civil Appeal No 334 of 2022.

4. Further, that the said issues forming the subject of the complaint lodged before the 1st and 2nd Respondents were raised in Court, and the same were dealt with, where the court found that the issues lacked in merit and went ahead to grant stay orders in favour of the Applicants in CoA CAPPL Nos 325 of 2022, 329 of 2022 and 330 of 2022, until the intended appeal is heard and determined. Also, that the 1st and 2nd Respondents summoned the National Elections Board Members of Wiper Democratic Movement Party to record statements on the same issues that had been dealt with by the Court of Appeal.

5. The court issued directions for the matter to be canvassed by way of written skeletal submission.

6. When the parties appeared before court on the October 27, 2022, Ms Lumallas for the Applicant told the court that she needed to address the court on the need to stop prosecution. She urged that such orders were necessary as there was a high likelihood of harm and prejudice. I note from the record that by then one Abubakar Ahmed Talib had filed an application for joinder as an interested party.

7. By a consent of the parties recorded on the same day, Talib was admitted as the 2nd Interested Party in the matter. The Applicant was to file skeletal submissions on an interim order of stay within 2 days with responses being filed by the Respondent and Interested Parties in 2 days. Leave was also granted to the 2nd Interested Party to file a replying affidavit to the chamber summons.

8. Parties filed written submissions on the question whether an interim order of stay ought to issue and oral highlights of the submissions were made on November 3, 2022.

9. I have had occasion to consider the application and the submissions on the question of an interim order of stay. A question arises as to the jurisdiction of the court to grant an interim order of stay at this stage. In this matter, the question whether leave be granted to institute judicial review proceedings has not been resolved and directions on the disposal of the chamber summons application relevant thereto have been given. Am quick to note that in her rejoinder oral submissions, Ms Lumallas intimated that the law is that leave is not necessary. I do not wish to comment further on that aspect of the proceedings opting to leave it to the parties to canvass the same at the opportune time.

10. Order 53 rule 1(4) of the Civil Procedure Rules provides as follows in this respect:“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.”

11. It follows then that leave would have to be obtained first before a judge directs that such leave do operate as a stay of the proceedings or impugned action pending resolution of the substantive application.

12. The Court of Appeal in the case of Peter Anyang’ Nyong’o & 2 Others vs. Minister of Finance & another [2007] eKLR summed up the law thus;“It is apparent from Order LIII. Rule 1 (1) and 1 (4) CPR that the jurisdiction of the superior court to grant an order of stay of proceedings is dependent on the court having first granted leave to apply for either an order of prohibition or certiorari. Since the superior court did not grant leave the applicant is by the present application indirectly asking this Court to grant an order which the superior court could not have lawfully granted in the absence of leave. Moreover, the statutory requirement that a judicial review application cannot be made unless leave has first been granted means that before the leave is granted a judicial review application is not maintainable in law.”

13. In our instant suit, the advancement of the arguments for an interim order of stay before leave was grated is thus irregular. The cart has been put before the horse and this court has the duty to re direct the proceedings on the right path.

14. With the result that the prayer for an interim order of stay is not available to the applicant at this stage. For avoidance of doubt, the Applicant retains the right to canvass that question contemporaneously with the question of whether leave be granted.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2022. ..................................A.K. NDUNGUJUDGE