On the contention that it is in the public interest that criminal cases, particularly those touching on misuse of public funds, be prosecuted expeditiously the court stated that criminal proceedings ought not to be instituted simply to appease the spirits of the public yearning for the blood of its perceived victims. The country governed by the rule of law and any action must be rooted in the rule of law rather than on some perceived public policy or dogmas. The former has been branded an unruly horse, and when you get astride it, you never know where it will carry you.
On the contention that without quashing the decision by the Respondent to prosecute the Applicants the Respondents cannot be prohibited from proceeding with the said prosecution, the court stated that where a decision has been made, a party cannot seek to prohibit the same without having the same quashed. However, where the decision is in the process of being made and the only decision that was taken was that the action in question be undertaken, the learned judge could not see why the Court cannot in those circumstances prohibit the decision from being concluded even without quashing the decision that the same be undertaken.
It is therefore clear that the Court is emphatic that the remedy of prohibition is only lost where a decision has been made and not where the proceedings in question are still continuing. Accordingly, since the Applicants are seeking to stop the Respondent from inter alia continuing with their prosecution, the mere fact that a decision was made to prosecute them, is not a ground to decline to entertain an application seeking to prohibit the continuation of the said prosecution.
The respondent took issue with the Court’s power to grant the orders against it. It seemed to have taken the view that the Court has no power to interfere with the exercise of the Respondent's constitutional mandate. The Court held that it has the powers and the constitutional duty to supervise the exercise of the Respondent’s mandate whether constitutional or statutory as long as the challenge properly falls within the parameters of judicial review.
Besides reliefs in the nature of judicial review, the Applicants sought declaratory orders. Article 259 of the Constitution of Kenya, 2010, places a constitutional obligation on courts of law to develop the law so as to give effect to its objects, principles, values and purposes. However, under Article 47(3) of the Constitution, Parliament is required to enact legislation to give effects to the rights to fair administrative action thereunder. Apart from the Law Reform Act, an Act of Parliament which was enacted prior to the current Constitution and which continues in force pursuant to section 7 of the Sixth Schedule to the Constitution, subject to alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution, to the best of my knowledge there is no other law in force enacted with a view to effectuating Article 47.
Judicial review jurisdiction, it has been held, is a special jurisdiction which is neither civil nor criminal and the Civil Procedure Act does not apply. It is governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law. Section 8 of the Law Reform Act specifically sets out the orders that the High Court can issue in judicial review proceedings and the orders are, mandamus, certiorari and prohibition. Whereas the Court agreed with the Applicants that judicial review has acquired a constitutional angle and has to be developed, that development is with respect to the grounds upon which the Court would grant such reliefs.
It is apparent that the traditional grounds are no longer sufficient, the grounds for the grant of judicial review must continue expanding. That however, does not entitle the Court in an application of this nature to craft remedies other than those contemplated under the law.
Therefore, the mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an Applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the Applicant in those proceedings. However, if the Applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.
Further, the court held that where a promise has been made that a person will not be prosecuted, to turn round and prosecute the said person without evidence of any change in the circumstances may be frowned upon and going contrary to legitimate expectation. However, caution must be taken when this principle is sought to be relied upon. It is a requirement that for the doctrine of legitimate expectation to be successfully invoked, the expectation must in the first place be legitimate “in the sense of an expectation which will be protected by law”. In other words, the doctrine of legitimate expectation based on considerations of fairness, even where benefit claimed not procedural, should not be invoked to confer an unmerited or improper benefit.
Legitimate expectation based on an erroneous legal position, ought not to be upheld because such an expectation cannot be said to be legitimate. In other words, just like estoppel, legitimate expectation cannot operate against the law.
Therefore, legitimate expectation in so far as the subject criminal proceedings are concerned does not arise here as the then Attorney General neither promised the Applicants that they would not be prosecuted nor conducted himself in a manner that would amount to legitimate expectation and even if that were so legitimate expectation cannot operate against the law.
Having considered the issues raised in application, the court was not satisfied based on the material before it that the Applicants would not get a fair trial before the trial court. The application was accordingly dismissed.
