Case ID:173313

Republic v Director of Criminal Investigations & 2 others Ex parte James Ndungu Gethenji; Godfrey Kirimi Mutua (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Judicial Review Application Miscellaneous E022 of 2021

Parties:

Republic v Director of Criminal Investigations, Director of Public Prosecutions & Chief Magistirate's Court at Kibera Ex parte James Ndungu Gethenji; Godfrey Kirimi Mutua (Interested Party)

Date Delivered:

19 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Pauline Nyamweya

Citation:

Republic v Director of Criminal Investigations & 2 others Ex parte James Ndungu Gethenji; Godfrey Kirimi Mutua (Interested Party) [2021] eKLR

Court Division:

Judicial Review

County:

Nairobi

Case Outcome:

Application allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. MISC. E022 OF 2021

IN THE MATTER OF AN APPLICATION FOR LEAVE TO INSTITUTE

JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI AND ROHIBITION

BETWEEN

REPUBLIC...........................................................................................APPLICANT

VERSUS

DIRECTOR OF CRIMINAL INVESTIGATIONS

...............1

ST

RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS

.......................2

ND

RESPONDENT

CHIEF MAGISTIRATE'S COURT AT KIBERA

................3

RD

RESPONDENT

AND

GODFREY KIRIMI MUTUA.........................................INTERESTED PARTY

AND

EX PARTE:

JAMES NDUNGU GETHENJI

RULING

The Application

1. James Ndungu Gethenji, the

ex parte

Applicant herein, has filed an application by way of a Chamber Summons dated 18

th

February 2021, seeking the following orders:

1.

This application be certified urgent and heard ex parte in the first instance.

2.

Leave be granted to the Applicant to commence judicial review proceedings for an order of Certiorari, to quash the decision by the Respondents to charge the ex parte Applicant with the offense of assault causing actual bodily harm c/s 251 Penal Code before the Chief Magistrate's Kibera arising from complaint in OB No.

02/06/02/2021.

3.

Leave be granted to the Applicant to commence judicial review proceedings for an order of Prohibition,toprohibit the Respondents from charging the Applicant with the impugned offence before the Chief Magistrates Court at Kibera or any other Court in the Republic or to register any charge sheet of a similar offence or from same transaction before any Court in the Republic or to sustain any proceedings thereto.

4.

The leave granted do operate as a stay of criminal proceedings on a charge of assault occasioning bodily harm c/s 251 Penal Code being registered against the Applicant, before the Chief Magistrate's Court at Milimani, stay of any charge sheet registered against the Applicant before the said Court, stay of any criminal proceedings commenced pursuant thereto.

5.

The costs of this Application be provided for.

2. The grounds for the application are stated in the

ex parte

Applicant’s statutory statement dated 18

th

February 2021, and a verifying affidavit sworn on the same date by the

ex parte

Applicant.

3. In summary, the main grounds are that the

ex parte

Applicant is the Chairman and Director of Kihingo Village Management One Limited and also a resident of Kihingo Village in Kitusuru. Further, that some residences of the village have attempted to remove the

ex parte

Applicant as chairman, and have stationed vigilantes at the entrance of Kihingo Village whose sole purpose to harass and intimidate the

ex parte

Applicant and anybody visiting his residences. In addition, that the Respondents in abuse of their powers have sought to charge the

ex parte

Applicant with the offense of assault after he had reported an attack on his person by the said vigilantes including a compliant to Gigiri Police Station DCI offices . The

ex parte

Applicant stated that he has since been summoned to appear at the Chief Magistrates Court at Kibera on the 19th February 2021 arising from a purported complaint entered in OB02/06/02/2021 at Gigiri Police Station.

4. The

ex parte

Applicant in this respect annexed copies of correspondence on his complaint, a statement he made at the Gigiri DCI, and a bond and bail receipt.

The Determination

5. I have considered the application dated 18

th

February 2021 and the reasons offered in support of the urgency, and I am satisfied that the

ex parte

Applicant has demonstrated that this matter is urgent. This for reason that the subject charges are likely to affect the

ex parte

Applicant’s rights and liberty.

6. On the orders sought by the

ex parte

Applicant for leave to commence judicial review proceedings, the applicable law is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The main reason for the leave as explained by Waki J. (as he then was), in

Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others,

Mombasa HCMCA No. 384 of 1996,

is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration

.

7. It is also trite that in an application for leave such as the present one, the Court ought not to delve deeply into the arguments of the parties, but should make a cursory perusal of the evidence before it, and make a decision as to whether an applicant’s case is sufficiently meritorious to justify leave. It was in this respect explained by Lord Bingham in

Sharma vs Brown Antoine

(2007) I WLR 780

, that a ground of challenge is arguable if its capable of being the subject of sensible argument in court, in the sense of having a realistic prospect of success.

8. In the present application, the

ex parte

Applicant has provided evidence of the complaint made and summons to appear before the Chief Magistrate’s Court at Kibera, and has averred as to the grounds and reasons why it considers the complaint against him to be improper. However, there is no evidence of any charges brought against the

ex parte

Applicant which is what he seeks to quash, prohibit and stay. For this reason, the Chamber Summons dated 18

th

February 2021 needs to be canvassed

inter partes

for this Court to be able to gauge if the threshold of an arguable case has been met.

The Orders

9. In light of the foregoing observations and findings, the

ex parte

Applicants’ Chamber Summons dated 18

th

February 2021 is found to be merited to the extent of the following orders:

I.

T

he

ex parte

Applicants’ Chamber Summons application dated

18

th

February 2021

be and is hereby certified as urgent.

II.

The

ex parte

Applicant shall serve the Respondents and Interested Party with the Chamber Summons application dated

18

th

February 2021 and skeletal submissions thereon

within fourteen (14) days from today’s date.

III.

U

pon being served with the said pleadings and documents, the Respondents and Interested Party shall be required to file their responses to the Chamber Summons application dated

18

th

February 2021

and skeletal submissions thereon within fourteen (14) days from the date of service.

IV.

The hearing of the Chamber Summons application dated

18

th

February 2021

shall be held on

22

nd

March

2021

before Hon. Mr. Justice Ngaah,

as this Court will be on leave.

V.

In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the

ex parte

Applicant’s Chamber Summons application dated

18

th

February 2021

on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

VI.

All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division at

judicialreview48@gmail.com

and

asunachristine51@gmail.com

.

VII. The service of pleadings and documents directed by the Court shall be by way of personal service and electronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division at judicialreview48@gmail.com with copies to asunachristine51@gmail.com.

VIII. The parties shall also be required to file their respective affidavits evidencing service in the Judiciary’s e-filing system.

IX.

T

he Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing

on

22

nd

March

2021

before Hon. Mr. Justice Ngaah.

X.

The Deputy Registrar of

the Judicial Review Division shall send a copy of this ruling to the

ex parte

Applicants by electronic mail by close of business on

Friday, 19

th

February 2021

.

XI.

Parties shall be at liberty to apply.

10. Orders accordingly.

D

A

TED AND SIGNED AT NAIROBI THIS 19

TH

DAY OF FEBRUARY 2021

P

. NYAMWEYA

JUDGE