Meixner & another v Attorney General (Civil Appeal 131 of 2005) [2005] KECA 292 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a dispute about the strength of criminal evidence belongs at the trial, not in a side challenge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial Judge applied the wrong test (prima facie case rather than arguable case) in refusing leave to apply for judicial review
- 2.Whether the sufficiency of the evidence supporting the Attorney General's decision to charge is a ground amenable to judicial review
- 3.Whether the High Court can halt, by judicial review, a prosecution pending before itself
- 4.Whether the Court of Appeal should interfere with the Judge's discretionary refusal of leave
Key legal issues
#Correct test for grant of leave to apply for judicial review
The test is whether the applicant has an arguable case; the Judge's use of 'prima facie case' was not an error since he applied the correct test in substance
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.
Sufficiency of evidence as a ground of judicial review against a decision to prosecute
Sufficiency or insufficiency of evidence supporting a charge goes to the merits of the Attorney General's decision, not its legality, and is therefore not a ground for judicial review
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.
Judicial review as a vehicle to appraise trial evidence
It would subvert the law regulating criminal trials for a judicial review court to usurp the function of the trial court by appraising prosecution evidence
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.
Legal principles established
#- Judicial review is concerned with the legality of the decision-making process, not the merits or sufficiency of evidence supporting a decision
- The High Court on judicial review cannot halt a prosecution pending before itself; it can only halt prosecutions before inferior courts or tribunals
- The test for grant of leave to apply for judicial review is whether the applicant has an arguable case, considered without going into the matter in depth
- The Attorney General's discretion under section 26(3)(a) of the Constitution is not subject to the control of any other person or authority, but the High Court may intervene where prosecution contravenes fundamental rights under section 77
Court orders
#- 1.The appeal is dismissed
- 2.No orders as to the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Mombasa)
- Misc. Criminal Applications Nos. 222 and 223 of 2005 (arising from Mombasa High Court Criminal Case No. 24 of 2004)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a ruling of the High Court (first appellant a German national; murder charge under section 203 as read with section 204 of the Penal Code; leave applications under Order LIII Rules 1 and 2 of the Civil Procedure Rules)
Relief refused
#Leave to apply for orders of certiorari and prohibition against the Attorney General's decision to prosecute
Sufficiency of evidence goes to the merits, not the legality of the decision; judicial review cannot be used to appraise trial evidence, and the High Court cannot halt a prosecution before itself
Costs
No orders as to the costs of the appeal
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.
We accordingly dismiss this appeal. There will be no orders as to the costs of the appeal.
judicial review is concerned with the decision making process and not with the merits of the decision itself.
the High Court has no jurisdiction to halt the prosecution of cases before it. It can only halt prosecutions of cases before inferior courts or tribunals.
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
It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.
Issues in the judgment
#The judgment does not print the name of the second appellant; parties are referred to only as 'the second appellant', making full party identification impossible from the text alone
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Siddique w/o Arshad Sharif & 2 others v Attorney General & 4 others[2026] KESC 54 (KLR)3 Jul 2026
- Ngethe v Ethics and Anti-Corruption Commission & another (Civil Appeal E006 of 2020) [2026] KECA 979 (KLR)[2026] KECA 979 (KLR)15 May 2026
- Ongera v Director of Public Prosecutions & another (Civil Appeal 282 of 2019) [2025] KECA 1980 (KLR)[2025] KECA 1980 (KLR)21 Nov 2025applied
Cite this brief
#Cite this brief
Caselaw, "Meixner & another v Attorney General (Civil Appeal 131 of 2005) [2005] KECA 292 (KLR)", Case Analysis (2005). Criminal Appeal (from Misc. Criminal Applications Nos. 222 and 223 of 2005, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/292/eng@2005-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.