Republic v Isaac Theuri Githae & Another [2007] KECA 388 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that courts can stop criminal charges filed over the same land dispute already handled in civil court, calling the double prosecution harassment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to lodge prior notice of the application for leave with the registrar as required by O.LIII rule 1(3) rendered the judicial review proceedings a nullity
- 2.Whether the appellant, a witness against whom a costs order was made, had locus standi to challenge the whole decision below
- 3.Whether the dispute underlying the criminal charges related to land
- 4.Whether the orders of certiorari and prohibition were available, and whether the magistrate was properly cited as respondent instead of the Attorney General
- 5.Whether the learned Judge erred in finding that the criminal charges were brought to give the complainant a collateral advantage in the civil dispute
Key legal issues
#Mandatory or directory nature of the requirement in O.LIII rule 1(3) to lodge prior notice of an application for leave
The requirement is directory, not mandatory; non-compliance is a curable irregularity and does not render the proceedings a nullity.
The rules are silent on the mischief the requirement is meant to cure. The sub-rule contains a proviso empowering the court to extend time or excuse failure for good cause, and uses the discretionary phrase 'the court may'. A suit will be struck out only where non-compliance prejudices a party; no prejudice was discernible here, so the proceedings were not a nullity.
Locus standi of a witness ordered to pay costs to appeal against the whole decision
A party against whom a costs order is made may appeal and, to determine whether costs ought to have been ordered, may go into the merits of the whole decision.
Relying on Ex Parte Lilley, the court held that because the decision below made orders against the appellant on costs, he was entitled as of right to appeal under section 8(5) of the Law Reform Act, and in challenging the costs order he may canvass the merits, since only a decision on the merits can determine whether costs were properly awarded.
Whether certiorari and prohibition lay against the magistrate rather than the Attorney General
The magistrate was properly cited as respondent because the bar in section 138 CPC binds the trial court, not the Attorney General, and the contested order was made by the court itself.
Although section 26 of the Constitution vests prosecutorial power in the Attorney General, the section 138 bar against retrial on the same facts while a conviction stands is an injunction against the trial court. The magistrate had notice of the contempt conviction yet ordered the trial to proceed; that order was amenable to judicial review and the Attorney General was not responsible for it.
Purpose and purview of judicial review orders of certiorari and prohibition
Judicial review is confined to the decision-making process, not the merits; the court intervenes for excess or absence of jurisdiction, error of law on the face of the record, breach of natural justice or unreasonableness.
The court on judicial review does not concern itself with the merits of a decision; it ensures fair treatment by inferior tribunals. Certiorari quashes decisions where those grounds are established; prohibition prevents a threatened breach. Notwithstanding the general undesirability of stopping criminal proceedings, exceptional circumstances of harassment justified intervention here, and Rimita J. properly exercised his discretion.
Whether the High Judge erred in finding the criminal charges were brought for a collateral advantage
Even if the appellant lacked such motive, the concurrent pursuit of contempt in civil and criminal proceedings on the same facts smacked of harassment, providing a firm basis for the Judge's remarks.
The court held that whether or not the appellant personally sought a collateral advantage was immaterial; what mattered was whether the respondent was receiving fair treatment. Pursuing the contempt both civilly and criminally concurrently, while the criminal charges predated the contempt commitment, objectively justified the Judge's findings and the grant of relief.
Legal principles established
#- Failure to lodge prior notice of an application for leave to apply for judicial review with the registrar under O.LIII rule 1(3) is not fatal; the requirement is directory and non-compliance is a curable irregularity unless it causes prejudice.
- Where a court has been notified of a prior conviction and makes an order that a criminal trial proceed, the bar in section 138 of the Criminal Procedure Code binds the trial court, not the Attorney General; consequently the trial magistrate may properly be cited as respondent in judicial review proceedings on such a matter.
- An order for prohibition may issue to stop criminal proceedings in exceptional circumstances where objective scrutiny shows improper treatment or harassment of an accused.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nakuru
- H.C. Misc. Appl. No. 67 of 2001
- Jurisdiction invoked
- First appeal from High Court judicial review decision under section 8(5) of the Law Reform Act, Cap 26 Laws of Kenya
Relief refused
#The appellant's seven grounds of appeal seeking to overturn the High Court's allowance of the judicial review application
The failure to comply with O.LIII rule 1(3) was a curable irregularity; the magistrate was properly a respondent; the Judge properly exercised his discretion
Costs
Appeal dismissed with costs to the respondents; the appellant to bear the costs (the costs order of the High Court allowing the application with costs was left undisturbed)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Whatever the object of the provision we are unable to hold that it is mandatory. In our view a failure to comply with that sub-rule is only an irregularity which is curable. The rule is merely directory.
It is a cardinal principle that, save in the most exceptional circumstances [the jurisdiction to grant judicial review] will not be exercised where other remedies were available and have not been used.
In our view therefore, the application for judicial review properly cited the magistrate as a respondent. We find no basis for holding that the magistrate was improperly made a respondent
We find no basis for interfering with his order. In the result the appeal fails and it is accordingly dismissed with costs.
Issues in the judgment
#The cause title and opening line of the judgment render 'Civil' as 'Civiil' ('Civiil Appeal 11 of 2002'), and the appellant's standing is described inconsistently - described as 'merely a witness in the Criminal case' yet also as the complainant whose land dispute underlay the charges ('the appellant’s land')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isaac Theuri Githae & Another [2007] KECA 388 (KLR)", Case Analysis (2007). Civil Appeal 11 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/388/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.