Director of Public Prosecutions -vs- Crossley Holdings Limited and 2 Others Civil Appeal No. 1 of 2013 (Unreported)

Case Caption:

Court of Appeal, Kisumu Civil Appeal No. 1 of 2013; Director of Public Prosecutions versus Crossley Holdings Limited, Kenya Anti-Corruption Commission, Miwani Sugar Company (1989) Limited (In consolidation with Civil Appeal No. 2 of 2013) Ethics and Anti-Corruption Commission versus Crossley Holdings (1st and 2nd Interested Parties – Miwani Sugar Company (1989) Limited and the Honourable Attorney General)

Case URL:

Not available (Unreported)

Summary Significance:

Judicial review proceedings focuses on the process by which a decision was made rather than the merits of such decision.

Applicable laws:

● Section 3(a) of the Appellate Jurisdiction Act;
● Article 164(3) of the Constitution of Kenya.

Brief Facts:

The High Court of Kenya at Kisumu delivered a judgment in favor of the 1st Respondent herein and quashed by an order of certiorari the report, findings, recommendations made by the Kenya Anti-Corruption Commission (KACC) to prosecute the 1st Respondent herein. It further quashed an order of certiorari regarding the decision of the Attorney General (AG) accepting the recommendation of KACC to prosecute the 1st Respondent and further prohibited the A G from prosecuting the Respondent and its directors in Criminal Case No. 429 of 2010 or any other criminal court for the alleged offenses on the ground that the recommendations of KACC were unreasonable, irrational and against the Constitution. Aggrieved by this decision the Director of Public Prosecutions (DPP) filed the appeal herein. The genesis of this Appeal was that the KACC’s Fourth Quarterly report for the year 2009 published in 2010 contained allegations of issuance of a fraudulent letter of consent and clearance certificate for 9,394 acres of land belonging to Miwani Sugar Company Ltd valued at 2 Billion shillings and transferred to the 1st Respondent herein. The Kenya Sugar Board was organizing the sale of the property through competitive bidding when they learned of the sale. The report went further to recommend the prosecution of the 1st Respondent. The 1st Respondent applied to the High Court for leave to file a motion for judicial review and orders to stay the intended prosecution pending the hearing and determination of the judicial review application. During the hearing of the Appeal, although served, there was no appearance for the 1st Respondent. The DPP (Appellant) argued that the 1st Respondent's motion before the High Court was not justified, and the judge made an error in finding the decision of the AG to prosecute as irrational. The DPP further submitted that the judge wrongly concluded that the property was private land, and the issue of ownership was a matter for the trial court.

Issues for Determination:

I. Whether the Learned judge erred in undertaking a merit review of the decisions and actions by KACC and the AG as opposed to a review of the process.
II. Whether the learned judge failed to appreciate the ratio in Githunguri v R (1986) 1KLR and in any event misapplied the same to the circumstances of this case.

Holding:

1. Whether the Learned judge erred in undertaking a merit review of the decisions and actions by the Commission and the AG as opposed to a review of the process. The Court of Appeal observed that the learned judge of the High Court had embarked on a review of the evidence to determine its sufficiency to determine whether the charges before the subordinate court could be sustained. Guided by the case of Chief Constable of North Wales Police -vs- Evans (1982) 1WLR 1155 the court stated that judicial review is not an appeal from a decision but a review of the manner in which the decision was made based on which it felt persuaded that the learned judge fell into error in descending into an inquiry as to the merits of the decision made by the Appellants and for this reason alone the appeals should succeed. 2. Whether the learned judge failed to appreciate the ratio in Githunguri v R and in any event misapplied the same to the circumstances of this case. The Appellate Court in distinguishing the principles set out in Githunguri v R it observed that there had been no delay with the commencement of the proceedings nor had there been a pardon or representation made that there would be no prosecution and therefore the court should have been slow to use judicial review to resolve issues which would otherwise be dealt with in the ordinary cause of criminal proceedings. In conclusion, the Court held that the decision of KACC and the AG to investigate, recommend and prosecute should not have been amenable to judicial review and therefore the appeal succeeded and the judgment of the High Court was set aside.

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