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ELCDismissedJudicial Review Miscellaneous Application (Chamber Summons dated 26th January, 2021), Nyeri· [2021] KEELC 3258 (KLR)

Antony Mutahi Kimaru v Directorate of Criminal Investigations & 2 others; Fiona Luice Ansett (Interested party) [2021] KEELC 3258 (KLR)

High Court of Kenya
19 May 2021
YAY. M. Angima
3,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that a pending civil lawsuit is not a reason to stop a criminal prosecution—the application to halt the case failed.

What this practically means

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Executive summary

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The Applicant, Anthony Mutahi Kimaru, faced four criminal counts before the Chief Magistrates' Court at Milimani (Criminal Case No. E109 of 2021) relating to alleged stealing, forgery, uttering a false document and fraudulent land registration concerning LR No. 10422/13 Nanyuki, while related ownership litigation was pending in Nyeri ELC No. 36 of 2016. He sought leave to apply for judicial review - certiorari to quash the decision to charge and prohibition to restrain the prosecution - contending the prosecution was malicious, vexatious and an abuse of process, and pegged to the conclusion of the civil suit. The Attorney General raised a preliminary objection invoking Section 193A of the Criminal Procedure Code, and the Interested Party (the civil plaintiff) opposed the application. The court, Y. M. Angima J, first applied the Mukisa Biscuits test and overruled the preliminary objection, holding it was not a pure point of law since facts were disputed and judicial discretion was engaged, while reserving liberty to consider Section 193A on the merits. On leave, the court applied the ex parte Kondo arguable-case threshold and Section 193A, plus ex parte Monari on concurrent criminal and civil jurisdiction. It found no material demonstrating malice, bad faith, ultra vires conduct or abuse of process, noted no charges against the other three civil defendants, and rejected the contention that the Chief Land Registrar's advice was required, given the DPP's constitutional independence under Article 157. Leave was refused; the stay question became moot; and the court made no order as to costs, the application being ex parte in nature. (262 words)

Key legal issues

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01

Whether the notice of preliminary objection based on Section 193A CPC was properly framed

Holding

The objection was not a true preliminary objection since it involved disputed facts and exercise of judicial discretion; it was overruled but the provision could still be considered on the leave question

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law assumed on pleaded facts. Here factual disputes existed and judicial discretion was required; the application also rested on grounds beyond mere pendency of a civil suit, so the objection was argued improperly and was overruled.

p. 3
02

Whether the Applicant demonstrated an arguable case for leave to apply for judicial review to halt criminal proceedings pending a civil suit

Holding

No arguable case was shown; no material demonstrated malice, bad faith, ulterior motive or abuse of process, and prosecution need not await the civil suit's conclusion

Reasoning

The court applied the ex parte Kondo threshold of an arguable case fit for further investigation, and Section 193A CPC and ex parte Monari confirming concurrent criminal and civil proceedings. Allegations of intimidation were speculative as no charges faced the other three defendants, and the DPP's independence under Article 157 negated any need for the Chief Land Registrar's advice.

p. 5
03

Whether leave, if granted, should operate as stay

Holding

The issue became moot since leave was refused

Reasoning

Stay was contingent on leave being granted. Having declined leave, the court found no live question on stay.

p. 5

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts are in dispute or judicial discretion is required
  • Leave for judicial review is granted only where the material shows an arguable case fit for further investigation at a full inter partes hearing
  • Pendency of civil proceedings is no ground for staying or prohibiting criminal proceedings (Section 193A CPC)

Court orders

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  1. 1.The 1st and 3rd Respondents' notice of preliminary objection dated 23rd February, 2021 is overruled.
  2. 2.The Applicant's chamber summons dated 26th January, 2021 for leave to apply for judicial review is dismissed.
  3. 3.There shall be no order as to costs.

Authorities

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Legislation

  • Penal Code (Cap. 63)Sections 268(2)(a), 275, 347(a), 349, 353, 320
  • Civil Procedure Rules, 2010Order 53 Rule 1(1), (2) and (4)
  • Law Reform Act (Cap. 26)Sections 8 and 9
  • Criminal Procedure Code (Cap. 75)Section 193A
  • Constitution of Kenya, 2010Articles 157(4), 157(10)

Cases cited (3)

  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors Limited
    [1969] E.A. 699
  • Republic v County Council of Kwale and Another ex parte Kondo and 57 Others
    [1998] 1 KLR (E&L) 304
  • Republic v Commissioner of Police and Another ex parte Michael Monari and Another
    [2012] eKLR
Jurisdiction invoked
Order 53 Rules 1(1), (2) and (4) of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act (Cap. 26)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Antony Mutahi Kimaru v Directorate of Criminal Investigations & 2 others; Fiona Luice Ansett (Interested party) [2021] KEELC 3258 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (Chamber Summons dated 26th January, 2021), Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3258/eng@2021-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.