Odero (suing on his own behalf and on behalf of New Life Prayer Centre & Church) v Attorney General & 7 others; Law Society of Kenya & 6 others (Interested Parties) (Constitutional Petition E027 of 2023) [2023] KEHC 17273 (KLR) (15 May 2023) (Ruling)

Key Facts

Issues

• The court noted that the petitioner could have appealed the Communications Authority of Kenya's suspension notice via the Communications and Multimedia Appeals Tribunal, as required by the Kenya Information and Communications Act. Premature High Court intervention was deemed improper under the doctrine of exhaustion of remedies.
• The petitioner sought to challenge freezing orders issued by Milimani Chief Magistrate's Court in the High Court. The court ruled that such challenges must be addressed through the High Court at Nairobi, which has supervisory jurisdiction over the subordinate court, and dismissed the application as misconceived under the High Court's rules.
• The petitioner alleged that the respondents' actions—closing New Life Prayer Centre, suspending World Evangelism TV's broadcasting license, and freezing bank accounts—violated his constitutional rights to fair administrative action (Article 47), freedom of religion (Article 32), and due process under the Constitution of Kenya, 2010. The court examined whether these measures were lawful and proportionate.

Holdings

• The court dismissed the first application's prayers except for (c) and (g), which were granted for avoidance of doubt and without further ado. The remaining prayers were found to lack merit.
• The second application was struck out as it was deemed misconceived and not properly invoking the court's supervisory jurisdiction under the applicable rules and constitutional provisions.

Remedies

• The 2nd application dated 8th May 2023, being misconceived, is hereby struck out with no order as to costs.
• Prayer (g) of the Notice of Motion is granted without further ado.
• The rest of the petitioner's prayers in the Notice of Motion dated 3rd May 2023 fail and are hereby dismissed with no order as to costs.

Legal Principles

• The court dismissed prayers that were overtaken by events, such as the freezing of bank accounts, citing res judicata as they could not be addressed via conservatory orders after the fact.
• Supervisory jurisdiction principles under Article 165 of the Constitution and Section 362 of the Criminal Procedure Code were referenced, noting that appeals from Milimani Magistrate's Court should be directed to the Milimani High Court, not the Mombasa High Court.
• The doctrine of exhaustion of remedies was emphasized, requiring the petitioner to first appeal to the Communications and Multimedia Appeals Tribunal before seeking High Court intervention for the TV license suspension.
• The court applied judicial review principles to assess the legality of the respondents' actions, particularly the suspension of the TV license and freezing of bank accounts, under the Constitution and relevant statutes like the Fair Administrative Action Act.

Precedent Name

• Judicial Service Commission v Speaker of the National Assembly & another
• Justus Mwenda v DPP
• Peter Gatirau Munya v Dickson Mwenda Githinji & 2 Others
• Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & Others
• Speaker of National Assembly v James Njenga Karume

Cited Statute

• Evidence Act, Chapter 80 of the Laws of Kenya
• Kenya Information and Communications Act, No. 2 of 1998
• Fair Administrative Action Act, 2015
• Criminal Procedure Code, Chapter 75 of the Laws of Kenya

Judge Name

Passage Text

• That the applicant and the newlife prayer centre and church have not been denied the right to worship or undertake church activities and the presence of security personnel should not be construed to be a denial of the applicant's right... That I am aware that on 7/5/2023 members of the newlife prayer centre and church congregated at the church premises and did worship despite members of the security around the premises.
• It is therefore anomalous for the petitioner to seek to invoke the supervisory jurisdiction of the Court in the manner proposed in the 2nd application... the High Court Station with supervisory jurisdiction over Milimani Chief Magistrate's Court is the High Court at Milimani, Nairobi.
• (86) Conservatory orders bear a more decided public-law connotation; for these are orders to facilitate ordered functioning within the public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private party issues as 'the prospects of irreparable harm' occurring during the pendency of a case or 'high probability of success' in the Applicant's case for order of stay.