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ELCPartially AllowedJudicial Review Chamber Summons application dated August 17, 2022 (Machakos)· [2023] KEELC 398 (KLR)

Okwaro v Directorate of Criminal Investigations; Odero (Sued as the Chairman Kenya Secondary Schools Heads Association) (Interested Party) (Environment and Land Miscellaneous Application E038 of 2022) [2023] KEELC 398 (KLR)

High Court of Kenya
2 February 2023
COChristine Ochieng
3,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court paused fraud charges against a man over land already in dispute in a civil case, saying criminal charges may be an abuse of process.

What this practically means

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Executive summary

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This was an ex parte Chamber Summons application dated August 17, 2022 in which Joseph Oduor Okwaro sought leave to institute judicial review proceedings seeking certiorari and prohibition against the DPP's decision to charge him with fraud over land parcels Machakos/Mavoko/20157–20163 in criminal case E 807 of 2022 (Milimani), and that any leave granted operate as a stay. He averred that Lakeview Investment Limited, in which he is a director, purchased the suit lands in 2002 and subdivided them to third parties, and that the same ownership dispute was pending in Machakos ELC 280 of 2017, making the criminal summons an abuse of process. The Respondent, through CPI Leonard Siele, opposed the application, asserting that a complaint by the teachers' housing project alleged forgery of deed plans by the Applicant, that charge sheets had been prepared and the Applicant was at large under warrants of arrest. Justice Christine Ochieng framed a single issue: whether leave should issue and whether it should operate as a stay. Relying on Order 53 Rule 1 and authorities including Catherine Nyambura Muraria and Mrao Ltd v First American Bank, she held that the court had jurisdiction because the criminal charge disregarded the pending civil suit over the same lands, and that this amounted to an apparent infringement of the Applicant's rights. She allowed the application, granted leave, directed that the leave operate as a stay of E 807 of 2022, allowed 21 days to file the substantive motion, and ordered costs in the cause.

Key legal issues

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01

Whether the court has jurisdiction to review the decision to charge the Applicant where a civil suit over the same land is pending

Holding

The court has jurisdiction because the criminal charge was instituted while disregarding the pending civil case over the same dispute

Reasoning

The court relied on Order 53 Rule 1 and authorities establishing that judicial review concerns the decision-making process, not merits. Applying Catherine Nyambura Muraria, it held that where prosecution is for a collateral purpose in a land dispute already before the ELC, the court may intervene despite section 193A permitting concurrent proceedings. Charging the Applicant while the ELC suit was pending amounted to an apparent infringement of his rights warranting interrogation by judicial review.

p. 7
02

Whether the leave granted should operate as a stay of the criminal proceedings

Holding

Leave operates as a stay of the criminal proceedings in E 807 of 2022

Reasoning

Applying the Mrao definition of a prima facie case, the court found from the charge sheets that the Respondent charged the Applicant while disregarding the pending civil suit over the same land, which was an apparent infringement of the Applicant's rights requiring the court's interrogation before a full determination. The court therefore directed, per Order 53 Rule 1(4), that the leave operate as a stay.

p. 7

Legal principles established

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  • The existence of concurrent civil and criminal proceedings does not by itself bar criminal prosecution, but where the criminal process is mounted for a collateral or improper purpose, the court will halt it notwithstanding section 193A of the Criminal Procedure Code
  • A prima facie case in judicial review leave stage is one showing an apparent infringement of the applicant's rights

Court orders

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  1. 1.Leave granted to the Applicant to institute judicial review proceedings seeking orders of Certiorari and Prohibition against the decision to charge him in E 807 of 2022 in Milimani Law Courts
  2. 2.The leave granted operates as a stay of the criminal proceedings in E 807 of 2022 in Milimani Law Courts
  3. 3.Leave to remain valid for 21 days within which the Applicant is to file and serve the substantive judicial review motion
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1(1)-(4)
  • Criminal Procedure CodeSection 193A
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (14)

  • Kingdom Kenya 01 Limited versus the District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR
  • The Commissioner of Lands versus Hotel Kunste
    [1997] eKLR
  • David Mugo t/a Manyatta Auctioneers versus Republic
    Civil Appeal No 265 of 1997 (UR)
  • Zakayo Michubu Kibwange versus Lydia Kagina Japheth and 2 others
    [2014] eKLR
  • Judges and Magistrates Vetting Board v Centre for Human Rights and Democracy
    [2014] eKLR
  • Catherine Nyambura Muraria v Director of Public Prosecutions & another; Isaac Gathungu Wanjohi (Interested Party)
    [2019] eKLR
  • Republic v Attorney General & another exparte Hussein Mudobe
    High Court Misc Application No 898 of 2003
  • Meixner & Another vs Attorney General
    [2005] 2 KLR 189
  • Fredrick Okeyo Otieno v Director of Public Prosecutions & 4 others
    [2017] eKLR
  • Republic v Director of Public Prosecution & 2 others Exparte Francis Njakwe Maina & another
    [2015] eKLR
  • R v Attorney General Exparte Kipngeno Arap Ngeny
    High Court Civil Application No 406 of 2001
  • Kuria & 3 Others vs Attorney General
    [2002] 2 KLR 69
  • Mrao Limited Vs First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Taib A Taib V Minister For Local Government & 3 Others
    [2006] eKLR
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules (judicial review leave jurisdiction)

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, "Okwaro v Directorate of Criminal Investigations; Odero (Sued as the Chairman Kenya Secondary Schools Heads Association) (Interested Party) (Environment and Land Miscellaneous Application E038 of 2022) [2023] KEELC 398 (KLR)", Case Analysis (2023). Judicial Review Chamber Summons application dated August 17, 2022 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/398/eng@2023-02-02

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