Justus Gwaro Magangi v Director of Public Prosecutions & 3 others [2014] KEHC 2560 (KLR)
- Court
- High Court of Kenya
- Case number
- 2560
- Citation
- [2014] KEHC 2560 (KLR)
- Decided
- 2 October 2014
The court grants leave to the applicant to apply for a judicial review order of certiorari quashing the decision of the 1st Respondent to charge the applicant with the offence of conspiracy to defraud.
Facts
The applicant, Justus Gwaro Magangi, seeks leave to mount substantive application for judicial review of the decision to charge him with conspiracy to defraud under section 317 of the Penal Code.
Issues
- Whether the exparte applicant has satisfied the court to grant leave to mount substantive application – for prerogative orders of prohibition and certiorari to stop the criminal case against him.
- Whether a grant for leave should operate as a stay in the criminal court.
Reasoning
The court is persuaded by the arguments that the test to be applied when deciding whether leave should be granted or not is the presence of an arguable case rather than a prima facie case. The granting of leave is a provisional remedy to enable a party access the corridors of justice.
Outcome
The court grants leave to the applicant to apply for a judicial review order of certiorari.
Orders
- leave granted to apply for a judicial review order of certiorari quashing the decision of the 1st Respondent to charge the applicant with the offence of conspiracy to defraud
- leave granted to apply for a judicial review order prohibition prohibiting the 3rd Respondent from arresting, investigating and /or preferring any charges whatsoever against the applicant on account of the same facts in the criminal case
Remedies
- leave granted to apply for a judicial review order of certiorari quashing the decision of the 1st Respondent to charge the applicant with the offence of conspiracy to defraud
- leave granted to apply for a judicial review order prohibition prohibiting the 3rd Respondent from arresting, investigating and /or preferring any charges whatsoever against the applicant on account of the same facts in the criminal case
Authorities cited
Legislation (2)
- Law Reform Act, Cap 26
- Constitution of Kenya 2010
Cases cited (1)
- Republic vs Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka (2006) I EA pg 321-323
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