Automated Summary
Key Facts
Bernard Chauro, an officer of Milestones Games Limited (holder of a Bookmakers Off the Course License No. 000205), filed a judicial review application challenging criminal charges under Section 14 (l)(d) of the Betting, Lotteries and Gaming Act. The charges allege unlicensed betting activities, but Chauro argued this constitutes an abuse of the criminal justice system by the Betting Control and Licensing Board (interested party). The High Court of Kenya granted leave for judicial review and issued a stay of proceedings in Criminal Case No. E1235 of 2020 pending determination of the application.
Issues
- The court determined if the leave granted for judicial review should result in a stay of the criminal case proceedings, considering the charges had not been fully implemented and the need to preserve the status quo.
- The court evaluated the application for leave to seek an Order of Prohibition to stop the respondents from registering similar charges or sustaining proceedings related to the same betting offense.
- The court considered whether to grant leave to apply for an Order of Certiorari to quash the charge sheet against Bernard Chauro, who holds a valid bookmaker's license, arguing that the charges were improperly instigated by the Betting Control and Licensing Board.
Holdings
- The court directed that the leave operates as a stay of proceedings in Criminal Case No. E1235 of 2020. This includes halting prosecution actions until the judicial review is determined or further orders, based on the principle that unimplemented decisions are amenable to stay.
- Leave to institute judicial review proceedings was granted for an Order of Certiorari to quash the charge sheet and an Order of Prohibition to prevent further criminal proceedings. The applicant provided evidence of a valid bookmaker's license and alleged improper charges by the Interested Party.
- The court certified the application as urgent, determining that the charges against the applicant could adversely affect his rights and liberty. The matter was admitted for ex parte hearing and prioritized due to its urgency.
Remedies
- The ex parte Applicants' Chamber Summons application dated 16th November 2020 is certified as urgent and admitted for hearing ex parte and on a priority basis.
- The grant of leave operates as a stay of proceedings in Criminal Case No. E1235 of 2020, any charge sheet registered against the Applicant, and all criminal proceedings commenced pursuant thereto, pending determination of the judicial review.
- Leave to apply for an order of Prohibition to prevent the Respondents from charging the Applicant with similar offenses or sustaining proceedings related to the same transaction.
- The costs of the ex parte Applicants' Chamber Summons application shall be in the cause.
- Leave to apply for an order of Certiorari to quash the Charge Sheet in Criminal Case No. E1235 of 2020 registered against the Applicant for inviting betting without a license.
Legal Principles
The determination relied on judicial review doctrines, including the requirement for an arguable case under Order 53 Rule 1 of the Civil Procedure Rules, and the discretionary power to stay proceedings under Order 53 Rule 1(4). The court referenced cases like R (H) vs Ashworth Special Hospital Authority and Jared Benson Kangwana vs Attorney General to assess the merits of the application and the appropriateness of a stay order.
Precedent Name
- R (H). vs Ashworth Special Hospital Authority
- Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others
- Jared Benson Kangwana vs. Attorney General
- Taib A. Taib vs. The Minister for Local Government & Others
Cited Statute
- Civil Procedure Rules
- Betting, Lotteries and Gaming Act
Judge Name
P. Nyamweya
Passage Text
- IV. The grant of leave herein shall operate as a stay of proceedings in Criminal Case No. E1235 of 2020... and as a stay of any charge sheet registered against the Applicant in the said criminal case and any criminal proceedings commenced pursuant thereto, pending the hearing and determination of the substantive judicial review application herein or until further orders by this Court.
- "As I have said, the essential effect of a stay of proceedings is to suspend them. What this means in practice will depend on the context and the stage that has been reached in the proceedings..."
- "The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise."