Republic v Isaac Theuri Githae & 1 other
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
#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
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isaac Theuri Githae & 1 other", 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.