Ā Republic vs Richard Langat Kerich & 5 others [2013] eKLR
Case Caption:
In the High Court of Kenya at Nairobi; Milimani Law Courts; J.R. Misc. Application No. 363 of 2013; Relating to The Matter of Acc. No.12 Of 2013; Republic ā vs ā Richard Langat Kerich, Marwa Fadhili Chacha, David Kipruto Chingi, Peter Ngunjiri Wambugu, Ndiba Wairioko and Meridian Medical Centre Limited.
It is only where the imminent outcome of the decision challenged is likely to render the success of the judicial review nugatory or an academic exercise that the Court would stay the said proceedings the strength or otherwise of the Applicantās case notwithstanding.
Applicable laws:
āOrder 53 rule 1(2) of the Civil Procedure Rules.
Brief Facts:
The Applicants, Dr. Wambugu, Dr. Wairioko Ndiba and Meridian Medical Centre, through a Notice of Motion dated 15th October 2013, sought leave of the Court to commence various Judicial Review orders of certiorari and prohibition. They also sought an order that the grant of the said leave, do operate as a stay of the decision by the Director of Public Prosecution to charge the Applicants for a criminal offence for their actions and conduct in the contract between Meridian Medical Centre Limited and National Hospital Insurance Fund Board of Management and specifically do operate as a stay of all criminal proceedings against the Applicants on charges of conspiracy to defraud contrary to section 317 of the Penal Code, and obtaining money by false pretenses contrary to section 313 of the Penal code.
Issues for Determination:
Whether the application of leave was competent, merited and warranted.
Holding:
The court held that; for a Court to find that the chances of Applicantās case succeeding are slim after leave has been granted would lead to an absurdity. Where however, the application for leave and for stay are argued together, the Court is perfectly entitled to decline to grant the stay sought on the ground that the chances of the application succeeding are slim. Therefore, having made a finding that the Applicantās case discloses a prima facie case, the issue of the merit or otherwise of the Applicantsā case is no longer material as to consider the same would require the court to go into the merits of the Motion which is yet to be heard.
However, the mere fact that the application discloses a prima facie case does not necessarily qualify the matter to a grant of stay. It is only where the imminent outcome of the decision challenged is likely to render the success of the judicial review nugatory or an academic exercise that the Court would stay the said proceedings the strength or otherwise of the Applicantās case notwithstanding
The court also relied on the decision by Maraga, J (as he then was) in Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 where he stated that given that injunctions are not an avenue for redress against government and public officers, then stay of proceedings, play a very critical role in providing recourse for the alleged aggrieved party and hence a very important element of judicial review jurisdiction. The court through the judge had further stipulated that, courts shouldered the responsibility of ensuring that in judicial review applications, the application filed is not rendered nugatory by the Respondentās acts, and where the orders sought can be effected, then the court should grant them.
Subsequently, the court took into account the fact that not all the accused persons in the subject criminal case were before the court hence granting orders for stay of the said proceedings without the other parties being afforded an opportunity to be heard would have been prejudicial to their interests. Therefore, the orders sought in the Notice of Motion dated 15th October 2013 relating to the stay of the criminal proceedings were found to be unmerited.
