[2000] KEHC 112 (KLR)
The court found that the applicant's fears of renewed investigation were well-founded based on unchallenged affidavit evidence and prior police statements. Since the Attorney General's office confirmed that no investigations were intended, granting the stay would not prejudice the State. The court distinguished...
Source-derived case information.
- Citation
- [2000] KEHC 112 (KLR)
- Parties
- Applicant: David Mukii Mereke t/a Mereke & Company Advocates; Respondent: Honourable Attorney General of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 1006 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Operate as Stay in Judicial Review
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Prohibition Orders, Client Advocate Relationship, Powers of Attorney General
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mukii Mereke t/a Mereke & Company Advocates
Applicant
Honourable Attorney General of Kenya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Operate as Stay in Judicial Review
Legal Issues
- 1 Whether leave granted for judicial review should operate as a stay of investigations against the applicant.
- 2 Whether the dispute between the applicant and the City Council is of a civil nature and not criminal.
- 3 Whether granting the stay would interfere with the Attorney General's constitutional powers under Section 26.
Ratio Decidendi
The court found that the applicant's fears of renewed investigation were well-founded based on unchallenged affidavit evidence and prior police statements. Since the Attorney General's office confirmed that no investigations were intended, granting the stay would not prejudice the State. The court distinguished between challenging the manner of investigation and challenging the Attorney General's constitutional powers, holding that the application was justified as the dispute was civil in nature and prior CID findings supported this. The application for leave to operate as a stay was therefore allowed.
Court Disposition
application allowed
Orders
- Prayer one of the Notice of Motion filed on 6.10.2000 is granted; leave to file judicial review shall operate as a stay.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MISC. CIVIL APPLICATION NO.1006 OF 2000
IN THE MATTER OF: AN APPLICATION TO FILE A JUDICIAL REVIEW APPLICATION FOR ORDERS OF PROHIBITION
IN THE MATTER OF: THE CONSTITUTION OF KENYA
IN THE MATTER OF: THE ADVOCATES ACT, CHAPTER 16 OF THE LAWS OF KENYA
IN THE MATTER OF: THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA
IN THE MATTER OF: THE REPUBLIC
VERSUS
THE HONOURABLE ATTORNEY – GENERAL OF KENYA…………………………………………………….……RESPONDENT
EX-PARTE
DAVID MUKII MEREKA T/A MEREKA & COMPANY ADVOCATES……………............................…………APPLICANT
RULING
The applicant is asking for the leave granted on 19-9-2000 for Judicial Review to operate as a Stay. Order 53 Rule 3 of the Civil Procedure allows the court to Order that the leave so granted operate as a Stay. Mr. Ogaya the Learned Counsel for the applicant in his submissions which were based on the facts as found in the supporting affidavit said that matters like the present one which affect client – advocate relationship are to be dealt with under the Advocates Act. In all what the applicant is saying is that:
(1) The dispute if any between the City Council and the applicant is purely of Civil nature.
(2) Similar investigation had been carried out
(3) There is a pending suit on the matter subject of the investigation.
(4) That the CID in their letter of 20. 12. 1995 annexed to the present proceedings concluded that these are matters of purely civil nature.
Mrs. Oduor for the State submitted that an injunction as requested would amount to interfering with the Powers of the Attorney General under Section 26 of the Constitution. In addition she stated categorically that there is no intention to carry out any investigations against the applicant on matters related to the City Council as alleged by the Applicant.
A challenge to the manner in which investigation upon an individual is carried out is not a challenge to the powers given to the Attorney General under Section 26 of the Constitution which gives Powers to the Attorney General to investigate and prosecute. What is being challenged is the manner of the investigation. In this application the applicant has expressed fears that he is likely to be put through what he experienced in 1995. He has in his affidavit given the source of his information which stand unchallenged. I find his fears are well founded when I read the statement he had made to the police in the earlier investigations.
Since the Office of the Attorney General says there is no such investigations, are intended, it follows that if the application is granted the State and in particular the Attorney General does not stand to suffer any prejudice. The CID finding in the earlier investigation that the dispute is a Civil Matter strengthens the applicant’s case.
I shall allow the application and grant prayers one of the Notice of Motion filed on 6. 10. 2000.
Delivered and dated at Nairobi this 17th day of October, 2000.
KASANGA MULWA
JUDGE