[2016] KEHC 8165 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISC. CIVIL APPLICATION NO. 511 OF 2016

BETWEEN

VINCENT YEGON………………………………………….....…..….APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS......................1ST RESPONDENT

THE DIRECTOR OF CRIMINALINVESTIGATIONS………..2ND RESPONDENT

BONIFACE MWANGI…......................………….....................3RD RESPONDENT

RULING

Introduction

1. By a Chamber Summons dated 24th October, 2016, the applicant herein, Vincent Yegon, seeks leave to apply the following orders:

1) Mandamus compelling the 1st and 2nd Respondents to institute criminal proceedings against the 3rd respondent for offenses of breach of peace and hate speech.

2) Prohibition prohibiting the 3rd Respondent from further publishing in his twitter account, facebook account, blogs and/or any other platform any content of hate speech, incitement to violence or breach of public peace pending the hearing and determination of this matter.

2. According to the applicant, the 3rd respondent during demonstrations in respect of the death of Wily Kimani poured red substance on the police spokesman, one Mr Owino, a conduct which in the applicant’s view constitutes breach of public peace.

3. Apart from that the 3rd respondent has on various occasions used social media platforms for ethnic violence in order to incite the populace contrary to the provisions of the National Cohesion and Integrity Act.

4. It was therefore the applicant’s case that the 1st and 2nd Respondents ought to be compelled to undertake their obligations under the law.

5. The requirement for leave was explained by a three judge bench comprising Bosire, Mbogholi-Msagha & Oguk, JJ in Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993 in which the Court held that it is supposed to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the Court or those applications which are statute barred. Similarly, in Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321, Nyamu, J (as he then was) held that leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralysed for months because of pending court action which might turn out to be unmeritorious. See also Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.

6. Waki, J (as he then was), on the other hand, in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996 put it thus:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious 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 fit 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 proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter parteshearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.

7. This position was confirmed by the Court of Appeal in Meixner & Another vs. Attorney General [2005] 2 KLR 189 in which the Court held that the leave of the court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filter out frivolous applications hence the granting of leave or otherwise involves an exercise of judicial discretion.

8. The circumstances which guide the grant of leave to apply for judicial review remedies were enumerated in Mirugi Kariuki vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:

“If he [the Applicant] fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers…”

9. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“Application for leave to apply for orders of judicial review are normally ex parteand such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved.”

10. This position was appreciated by Majanja, J in Judicial Review Misc. Civil Appl. No. 139 of 2014 between Vania Investments Pool Limited and Capital Markets Authority & Others in which the learned Judge expressed himself as follows:

“I do not read the Court of Appeal to be saying that the Court should not have regard the facts of the case or have at best a cursory glance at the arguments. As I stated inOceanfreight Transport Company Ltd vs. Purity Gathoni and AnotherNairobi HC Misc. Appl JR No. 249 of 2011 [2014] eKLR, “In my view, the reference to an “arguable case” inW’Njuguna’s Caseis not that the issue is arguable merely because one party asserts one position and the other takes a contrary view.” The duty of the court to consider the facts is not lessened by the mere conclusion that the case if frivolous, or that leave is underserved by examining the facts...Indeed, if leave was to be considered a matter of right then the purpose for which leave is required would be rendered otiose.”

11. What comes out clearly from the foregoing is that the grant of leave to commence judicial review proceeding is not a mere formality and that leave is not granted as a matter of course. The applicant for leave is under an obligation to show to the court that he has a prima facie arguable case for grant of leave.

12. Whereas he is not required at that stage to go into the depth of the application, the applicant must disclose the existence of prima facie grounds for the grant of judicial review reliefs. Such grounds must prima facie be based on the facts as averred by the applicant in the verifying affidavit. It is therefore not enough to simply throw the grounds for the grant of judicial review and contend that a prima facie case has been made out. A prima facie case, in my view is made out when the applicant’s case if true may justify the grant of the orders of judicial review. Where the facts disclosed, even if true cannot possibly justify the grant of judicial review remedies, a prima facie case, for the purposes of judicial review cannot be said to have been made out.

13. In this case the applicant seeks leave to compel the 1st and 2nd Respondents to institute criminal proceedings against the 3rd Respondent. The Court of Appeal in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 (CAK) [1997] eKLR expressed itself inter alia as follows:

“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way…These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. An order of mandamus compels the performance of a duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same but if the complaint is that the duty has been wrongfully performed i.e. that the duty has not been performed according to the law, then mandamus is wrong remedy to apply for because, like an order of prohibition, an order of mandamus cannot quash what has already been done…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order of certiorari and that is all the court wants to say on that aspect of the matter.”

14. In Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 Goudie, J eloquently, in my view, expressed himself, inter alia, as follows:

“Mandamusis essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamusis a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamusis neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment.”

15. In Jotham Mulati Welamondi vs. The Electoral Commission of Kenya Bungoma HC Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486; [2008] 2 KLR (EP) 393, it was held that mandamus is the appropriate remedy for compelling a person to perform a duty imposed on him by statute which duty he has refused to perform to the detriment of the applicant.

16. Therefore, mandamus is a peremptory order requiring the Respondent to perform a specified public duty. It does not lie for breach of a private obligation even if such obligation is owed with other public law duties to an applicant but whether a duty is to be enforced by mandamus depends on whether the duty as expressed or implied gives the applicant the right to complain. Its purpose is to compel the performance of a public duty or any act contrary to or evasive of the law. It does not lie against a public officer as a matter of course. There are bars and limitations. Courts are reluctant to direct a writ of mandamus against the executive officers of a Government unless some specific act or thing, which the law requires to be done, has been omitted. Courts proceed with extreme caution in granting of the writ, which would result in interference by the judicial department with the management of the executive department of the Government. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; that the court would not grant mandamus where there is an alternative remedy available to the applicant; and that it may be refused if the enforcement of the order will present problems like lack of adequate supervision. See Evanson Jidiraph Kamau & Another vs. The Attorney General Mombasa H.C. Misc. Application No. 40 of 2000.

17. It has further been held that mandamusis first, employed to enforce the performance of a public duty, which is imperative, not optional, or discretionary, with the authority concerned. Secondly, it is used to enforce the performance of public duties, by public authority, and not when it is under no duty under the law. However, it would seem that mandamusmay be issued to enforce mandatory duty which may not necessarily be a statutory duty, but which has “a public element” which may take any forms, and fall under the classic formula of ”any body of persons having legal authority to determine questions affecting the rights of subjects” like non-statutory self-regulating bodies. Thirdly, mandamusmay issue directing the concerned authority to act according to law. Fourthly, there must be a legal right, or substantial interest of the petitioner, the petitioner must satisfy the Court that he has a legal right, the performance of which must be done by the public authority. It must, however, be noted that by no means closing avenues for the issue of mandamusagainst an authority, the affected person, or persons, must have demanded justice, which must be refused. See the Tanzania Court of Appeal decision in Ngurangwa and Others vs. Registrar of The Industrial Court of Tanzania and Others [1999] 2 EA 245.

18. It is therefore clear that for leave to apply for an order of mandamus to issue, the applicant must establish on a prima facie standard that the person or body concerned has failed or refused to perform the duty imposed on it to the detriment of a party who has a legal right to expect the duty to be performed. Accordingly, it has been held that generally a demand for the actions to be taken is a prerequisite to the grant of an order of mandamus. See The District Commissioner Kiambu vs. R & Others Ex Parte Ethan Njau Civil Appeal No. 2 of 1960 [1960] EA 109.

19. Although there may be circumstances warranting the waiver of the requirement for the demand, it is upon the applicant to satisfy the Court that such circumstances do in fact exist.

20. In this case when asked whether a demand in form of a complaint had been lodged with the 1st and 2nd respondent, Mr Lagat, learned counsel instead of satisfying the Court on the existence of circumstances warranting the waiver of the above condition, informed the Court to take judicial notice of the fact that Members of Parliament have been charged in Court without any complaint being lodged.

21. Under Article 157(4) of the Constitution the 1st Respondent herein is empowered to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and when he does so, the Inspector-General is bound to comply therewith. Under Article 157(6)(a) of the Constitution, the 1st Respondent is empowered to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed. In carrying out his mandate it is provided that the 1st Respondent does not require the consent of any person or authority in order to commence criminal proceedings and in so acting is not under the direction or control of any person or authority.

22. In this case, there is no evidence that the 1st Respondent has failed or refused to carry out his obligations. It has not been shown that if the 3rd Respondent committed the alleged offences, the 1st Respondent despite being aware of the same has not put into motion any process of investigating the same. In my view the applicant ought to have shown that despite bringing to the 1st Respondent’s attention the commission of the alleged offences, the 1st Respondent has declined to act. This Court cannot, in circumstances under which the 1st Respondent exercises discretionary powers, permit a party to commence judicial review in the nature of mandamus when the prerequisite conditions are not shown to exist. It is the existence of the prerequisite conditions which in my view prove the existence of a prima facie case for the purposes of grant of leave.

23. With respect to the second prayer, leave can only be granted to apply for substantive orders. What the applicant seeks in that prayer is leave to apply for an order of prohibition pending the hearing and determination of these proceedings. That, in my view is not the kind of order contemplated under Order 53 of the Civil Procedure Rules.

24. In any case the relief sought in prayer 2 is in the nature of a private law relief as opposed to one under public law. Accordingly such a relief may be appropriately sought in a suit for defamation as opposed to one seeking judicial review reliefs.

25. In the premises it is my view and I hereby find that the applicant has failed to disclose a prima facie case for the purposes of leave.

26. Consequently leave is declined with the result that these proceedings are rendered incompetent and are hereby struck out but with no order as to costs.

27. It is so ordered.

Dated at Nairobi this 1st day of November, 2016

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Kiongera for Mr Lagat for the Applicant

CA Mwangi