Republic v Isaaac Theuri Githae & Another [2007] KECA 483 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that criminal charges duplicating an existing contempt conviction amount to harassment, and courts can stop them through judicial review.
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 judicial review application with the registrar as required by O.LIII rule 1(3) rendered the judicial review proceedings a nullity
- 2.Whether the dispute between the parties related to land such that the criminal charges were connected to Civil Case No. 1 of 2000
- 3.Whether orders of certiorari and prohibition were properly sought against the magistrate rather than the Attorney General
- 4.Whether the learned Judge erred in holding that the criminal charges were brought to give the complainant a collateral advantage in a civil dispute
- 5.Whether an appellant ordered to pay costs, though merely a witness in the criminal case, could challenge the entire decision
Key legal issues
#Effect of non-compliance with O.LIII rule 1(3) on judicial review proceedings
The rule is directory, not mandatory; non-compliance is a curable irregularity, and the proceedings were not a nullity. The proviso empowering the court to extend time or excuse failure supports this construction.
The rules are silent on the mischief the requirement cures; its object may be administrative (to enable the registrar to organize a judge for an urgent application). The phraseology 'the court may' shows a discretion, reinforced by the proviso. The court will strike out only where non-compliance causes prejudice; no prejudice was discernible here.
Whether the magistrate was properly cited as respondent instead of the Attorney General
Yes. The section 138 CPC bar on double prosecution operates against the trial court, which had notice of the contempt conviction yet ordered the trial to proceed; that order was amenable to judicial review and the magistrate was properly a respondent.
Under section 26 of the Constitution prosecutorial power vests in the Attorney General, but the order complained of (continuing the trial) was made by the court itself, not the Attorney General. The court had due notice of the prior conviction via a Notice of Preliminary Objection. Hence the application for judicial review properly cited the magistrate.
Availability of judicial review where an alternative remedy exists
Save in exceptional circumstances judicial review will not be granted where alternative remedies exist and are unused, but grave consequences may justify intervention; here Githae had no appealable conviction in the criminal case and his plea of autrefois convict was summarily rejected, so no adequate alternative remedy existed.
The contempt conviction was under appeal, but in Criminal Case No. 75 of 2000 no conviction or order had been entered against Githae capable of appeal. Had the contempt charge been the only one he might have had an alternative remedy, but with further charges pending based on the same facts he had no alternative remedy at that stage.
Whether the Judge erred in finding the criminal charges gave the complainant a collateral advantage
No error. 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 appellant's actual motive was immaterial, what mattered was whether Githae was receiving fair treatment.
The criminal charges predated and continued alongside the civil contempt conviction on the same facts relating to the same land dispute. Objectively viewed, the concurrent proceedings appeared oppressive. Whether the appellant actually intended a collateral advantage was 'neither here nor there'; the relevant question was fair treatment of the accused.
Right of a person ordered to pay costs to appeal against the whole decision
A person against whom a costs order is made is entitled as of right under section 8(5) of the Law Reform Act to appeal, and may challenge the entire decision including the merits.
Following Ex Parte Lilley, an appeal against a costs order necessarily opens the merits, since the appellate court can only decide whether costs should have been ordered by examining the merits. Counsel also agreed the appellant was exercising an undoubted right of appeal.
Legal principles established
#- Failure to comply with O.LIII rule 1(3) (prior notice of application for leave to the registrar) is a curable irregularity and the rule is directory, not mandatory; proceedings are not thereby a nullity
- A party against whom a costs order is made has, by virtue of section 8(5) of the Law Reform Act, a right of appeal which extends to the whole decision, since the appeal on costs necessarily requires examination of the merits
- Where a trial court itself insists on continuing criminal proceedings despite notice of a prior conviction for contempt on the same facts, the section 138 CPC bar on double prosecution binds the trial court, not the Attorney General, so the magistrate may properly be cited as respondent in judicial review proceedings
- Judicial review is confined to the decision-making process and not the merits of the decision
- Though generally undesirable, prohibition of criminal proceedings may be justified where the circumstances objectively show improper treatment or harassment of an accused person
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru (Rimita J.)
- H.C. Misc. Appl. No. 67 of 2001
- Jurisdiction invoked
- Appeal under section 8(5) of the Law Reform Act, Cap 26 Laws of Kenya
Relief refused
#The appellant's appeal against the High Court ruling upholding the orders of prohibition and certiorari
The proceedings before the High Court were not a nullity; the magistrate was properly cited as respondent and the Judge properly exercised his discretion
Costs
Appeal dismissed with costs (costs to the respondent)
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.
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.
The injunction against trying the accused person concerned is not against the Attorney General, but the trial court. That order was amenable to judicial review.
while it is generally undesirable to stop criminal proceedings by order of prohibition there may arise circumstances which when looked at objectively may justify intervention to obviate improper treatment against certain accused persons.
In the result the appeal fails and it is accordingly dismissed with costs.
Issues in the judgment
#The judgment inconsistently describes the composition of the accused in Criminal Case No. 75 of 2000, first saying the applicant and five other persons were accused, then saying the applicant and seven others were jointly charged
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isaaac Theuri Githae & Another [2007] KECA 483 (KLR)", Case Analysis (2007). Civil Appeal 11 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/483/eng@2007-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.