[2010] KEHC 4064 (KLR)
The court found that the applicant had demonstrated a prima facie arguable case for the grant of leave to apply for orders of prohibition and certiorari. The allegations that the intended prosecution was in bad faith, actuated by malice, and was oppressive and capricious were sufficient at this preliminary stage to...
Source-derived case information.
- Citation
- [2010] KEHC 4064 (KLR)
- Parties
- Applicant: Thomas Korinyang Opeto; Respondent: Hon. Attorney General; Respondent: Commissioner of Police; Respondent: Director of Kenya Anti Corruption Commission; Respondent: Chief Magistrate, Nyeri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 56 of 2009
- Procedural Posture
- Judicial Review / Ruling on Ex Parte Application for Leave
- Outcome
- Leave granted for judicial review application.
- Judges
- JK Sergon
- Legal Topics
- Judicial Review Leave, Prohibition Orders, Certiorari, Malicious Prosecution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Korinyang Opeto
Applicant
Hon. Attorney General
Respondent
Commissioner of Police
Respondent
Director of Kenya Anti Corruption Commission
Respondent
Chief Magistrate, Nyeri
Respondent
Procedural Posture
Judicial Review / Ruling on Ex Parte Application for Leave
Legal Issues
- 1 Whether the applicant has established a prima facie arguable case to warrant leave for judicial review orders of prohibition and certiorari.
- 2 Whether the intended prosecution of the applicant is actuated by malice, bad faith, or is oppressive and capricious.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie arguable case for the grant of leave to apply for orders of prohibition and certiorari. The allegations that the intended prosecution was in bad faith, actuated by malice, and was oppressive and capricious were sufficient at this preliminary stage to warrant the grant of leave. The court emphasized that at the leave stage, it is not required to delve into the merits of the case but only to determine whether there is an arguable case. Consequently, the applicant was granted leave to file the substantive application for judicial review within 21 days.
Court Disposition
Leave granted for judicial review application.
Orders
- Leave is granted to the applicant to file for orders of prohibition and certiorari as sought in the summons.
- The applicant shall file the substantive application within 21 days from the date hereof.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Judicial Review 56 of 2009
THOMAS KORINYANG OPETO……….......................…. APPLICANT
Versus
THE HON. ATTORNEY GENERAL ...................................- 1ST RESPONDENT
THE COMMISSIONER OF POLICE................................. - 2NDRESPONDENT
THE DIRECTOR OF KENYA ANTI
CORRUPTION COMMISSION . ............................. - 3RD RESPONDENT
THE CHIEF MAGISTRATE ..................................... - 4TH RESPONDENT
RULING
Pursuant to the provisions of s. 8(2) of the Law Reform Act and Order L111 rules 1, 2 and 3 of the Civil Procedure Rules, Thomas Korinyang Opeto, the exparte applicant herein, took out the summons dated 24/11/2009 in which he applied for the following orders:
1. That this honorable court be pleased to grant leave to the applicant to file for orders of Prohibition directed against the 1st, 2nd and 3rd Respondents, their servants and/or agents or any other persons acting under their authority Prohibiting them from conducting, prosecuting or in any other manner proceeding with the conduct of Criminal Case No. 15 of 2009 pending the full hearing and determination of the instant matter.
2. That the honourable court be pleased to grant leave for an Order of Prohibition directed to the 4th Respondent prohibiting the 4th Respondent or any other Judicial Officer acting on the behest or authority of the 4th Respondent from conducting any further proceedings in Criminal Case No. 15 of 2009 before chief Magistrate Nyeri pending the full hearing and determination of this matter.
3. That the honourable court be pleased to grant leave for an order of prohibition directed to the 3rd Respondent herein or any other officer acting on the authority or behest of the 3rd Respondent prohibiting him any one of them from interrogating, harassing or in any other way intimidating the subject, from any matters relating or pending in Criminal Case No. 15 of 2009 pursuant to the complaint byMICHAEL NDAMBIRI .
4. that this honourable court be pleased to grant leave to the applicant to file for orders of prohibition directed to the 2nd respondent herein prohibiting the 2nd respondent by himself, servant and/or agents or any other officer acting under the authority on behest of the 4th Respondent from taking any adverse action in respect of the subjects terms of service and employment for any reason based on the subject matter herein pending the full hearing and determination of the matter.
5. That this honourable court be pleased to grant leave to the applicant to file for order of certiorari directed to the 2nd and 3rd respondents herein to bring before this court for the purposes of being quashed their decision to charge and prosecute the applicant vide criminal case No. 15 of 2009 pursuant for allegations by one MICHAEL NDAMBIRI
The Hon. Attorney General, the commissioner of Police, The Director of Kenya Anti Corruption Commission and the Chief Magistrate, Nyeri were named as the 1st, 2nd 3rd and 4th Respondents respectively. The summons is accompanied by a statement of facts and is verified by the affidavit of Nicholas Odhiambo Omanyo sworn on 24th November 2009.
The application is exparte in nature. In order for the court to grant leave there must be prima facie evidence of an arguable case. At this stage the court is not required to go in depth of the matter. It is the submission of Mr. Wandugi, learned advocate for the exparte applicant that the orders sought in the summons should be given on the basis of the material presented to this court. It is stated the intended prosecution of the exparte applicant by the Respondents is in bad faith is and actuated by malice. I find this to be an arguable point. It is also alleged that the prosecution is oppressive, capricious and hence wholly without merit. Again I find that the exparte applicant has shown a prima facie arguable case. Consequently the applicant is granted the orders sought in the summons. The applicant should file the substantive application within 21 days from the date hereof.
Dated and delivered this 13th day of January 2010.
J.K. SERGON
JUDGE
In open court in the absence of counsels.
J.K. SERGON
JUDGE