[2018] KEHC 9002 (KLR)
The court held that while leave to commence judicial review proceedings is granted as a matter of course where a prima facie case is shown, the grant of stay of criminal proceedings is a discretionary remedy that must be justified by clear evidence that the applicant would suffer irreparable prejudice or that the...
Source-derived case information.
- Citation
- [2018] KEHC 9002 (KLR)
- Parties
- Applicant: Simon Lonyia; Respondent: Inspector General of Police; Respondent: General Service Unit Commandant; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 21 of 2018
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Application for Leave and Stay
- Outcome
- Leave to commence judicial review granted; stay of criminal proceedings refused.
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Interdiction of Public Officers, Stay of Criminal Proceedings, Fair Administrative Action, Disciplinary Proceedings, Criminal Charges Against Officers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Lonyia
Applicant
Inspector General of Police
Respondent
General Service Unit Commandant
Respondent
Director of Public Prosecution
Respondent
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Application for Leave and Stay
Legal Issues
- 1 Whether the applicant is entitled to leave to commence judicial review proceedings against the respondents' decision to interdict and prosecute him.
- 2 Whether the leave, if granted, should operate as a stay of the ongoing criminal proceedings in Milimani Cr. Case No. 1502/2017.
- 3 Whether the applicant has demonstrated sufficient grounds for the grant of stay of prosecution pending determination of the judicial review motion.
Ratio Decidendi
The court held that while leave to commence judicial review proceedings is granted as a matter of course where a prima facie case is shown, the grant of stay of criminal proceedings is a discretionary remedy that must be justified by clear evidence that the applicant would suffer irreparable prejudice or that the judicial review motion would be rendered nugatory if the stay is not granted. In this case, the applicant failed to demonstrate that the continuation of the criminal proceedings would render the judicial review motion nugatory or cause him irreparable harm. The court noted that the applicant's interdiction was a separate administrative action and that the prayer for stay of...
Court Disposition
Leave to commence judicial review granted; stay of criminal proceedings refused.
Orders
- Leave to apply for judicial review granted as per prayers 2(a), (b), (c), and (d) of the chamber summons.
- Prayer for stay of criminal proceedings in Milimani Cr. Case No. 1502/2017 refused.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC. CIVIL APPLICATION NO. 21 OF 2018
IN THE MATTER OF AN APPLICATION BY SIMON LONYIA FOR LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI, MANDAMUS & PROHIBITION
AND
IN THE MATTER OF THE DECISION OF THE INSPECTOR GENERAL OF POLICE THROUGH THE GENERAL SERVICE UNIT COMMANDANT TO INTERDICT SIMON LONYIA FROM SERVICE AT THE GENERAL SERVICE UNIT
AND
IN THE MATTER OF ARTICLES 10, 19, 21, 22, 23, 25, 27, 47, 73, 159, 165 & 244 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT AND ORDER 53 OF CIVIL PROCEDURE RULES, CAP 21
AND
IN THE MATTER OF THE LAW REFORM ACT, CHAPTER 25, SECTIONS 8 & 9
BETWEEN
SIMON LONYIA...............................................................................APPLICANT
AND
INSPECTOR GENERAL OF POLICE...............................1ST RESPONDENT
GENERAL SERVICE UNIT COMMANDANT.................2ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION.......................3RD RESPONDENT
R U L I N G
1. The ex-parte applicant Simon Lonyia by his chamber summons dated 19th January, 2018 seeks from this court leave to institute Judicial Review proceedings challenging the decision of the Respondents interdicting him on 28th August, 2017, preferring criminal charges against him vide Milimani Cr. Case No. 1502/2017; seeking reinstatement and suspension of his interdiction or suspension from duty due to his conduct of 28th August, 2017 at the Supreme Court of Kenya. The applicant also seeks that the leave if granted do operate as stay of criminal proceedings in Cr. case No. 1502/2017 pending the determination of the application.
2. The application for leave is not opposed with the DPP conceding this morning. However, the prayer for stay is opposed on the ground that no material is placed before the court to warrant stay sought as the matter herein can be fast tracked since there are 8 (eight) witnesses lined up for testifying in the pending criminal case. Reference was placed on matter today Madahana & others versus DPP & Another [2014] eKLR
3. On the part of the Applicant’s Counsel, Miss Kithi submitted that criminal proceedings led to the Applicant’s interdiction on half pay hence stay is necessary to avoid the Applicant suffering more and that unless stay is granted, the motion if successful will be rendered nugatory.
4. I have considered the application for stay and in my view, it is now settled law that even where leave to apply is granted, stay is not a matter of right. The Applicant must demonstrate that unless stay is granted, the challenged proceedings/decision if successful then the application for Judicial Review shall be rendered nugatory and the applicant shall be rendered a mere pious explorer in the judicial process.
5. In this case, the applicant was interdicted on 30th August, 2017 on allegations among others that he created disturbance at the Supreme Court; and that he willfully resisted a police officer in the due execution of his duty on 28th August, 2017. On the same day, he was arrested and arraigned in court charged with the offence of creating a disturbance in a manner likely to cause a breach of the peace under Section 95(1) (b) of the penal code.
6. He is challenging both charges of interdiction and the criminal case before Milimani Chief Magistrate’s Court. There are (8) eight witnesses listed to testify.
7. Orders seeking to prohibit the prosecution or the magistrate from hearing the case can be sought at any time of the commenced proceedings. However, the grant of stay is a judicial discretion. That discretion must be exercised judiciously. Judicial Review proceedings can be fast-tracked for hearing and determination unlike criminal cases which require summoning of witnesses to appear, testify, be cross-examined, re-examined, etc.
8. The applicant is under interdiction but the prayer is for stay of prosecution alone which in my view will not reverse the interdiction.
9. I therefore find that it has not been demonstrated that if stay is not granted at this stage, the main motion if successful will be rendered nugatory, if the applicant believes he is innocent.
10. The charges facing him are misdemeanors. He can mount a successful challenge to the evidence and shall be acquitted since it is not his duty to prove his innocence. That being the case, I decline to grant stay. I however, grant leave to apply as sought in the prayer No.s 2(a) b, c and d of the chamber summons. The main motion to be filed and served within 7 days from to date. The Respondents to file and serve their responses within 7 days from date of service.
11. Mention on 19th March, 2018 to confirm compliance and directions on the hearing.
12. Costs in the cause.
Dated, Signed and Delivered at Nairobi this 20th day of February, 2018.
R.E. ABURILI
JUDGE
In the Presence of:
Miss Kitui for Applicant
No appearance for Respondent
Court Assistant: Kombo