Uwe Meixner & 1 other v The Attorney General

The Court accepted that the leave stage requires an arguable case, citing Njuguna v Ministry of Agriculture. Although the learned Judge used the phrase 'prima facie case', the Court, considering the matters he took into account, was satisfied he applied the correct test in substance, the words used notwithstanding. The mislabelling of the test was therefore immaterial to the outcome.

The Court held that judicial review examines the decision-making process, not the merits. Complaints that evidence shows innocence, that the Attorney General was influenced by third parties, or that investigators were sent after the decision all ultimately raise whether the evidence is sufficient to support the charge — a matter for the trial court, best equipped to assess evidence quality under the Criminal Procedure Code and Evidence Act and section 77 safeguards.

Had leave been granted, the judicial review court would have had to examine and appraise evidence of about 40 witnesses to establish innocence, which is not its function. The criminal trial process, regulated by statute and constitutional safeguards in section 77, is the proper forum for testing evidence. The Court also endorsed the Judge's view that the High Court cannot halt a prosecution before itself.