Lugakingira, J.: This was an ex parte application for leave to apply for orders of certiorari and prohibition.
The applicant, Peter Shirima, owned and ran a shop in Singida township. On 15th E August, 1981 the police entered the shop and seized a quantity of shop goods. On 25th August the applicant was charged before the District Court of Singida with the offences of selling goods in excess of the maximum prices contrary to sections 20 and 26 of the Regulation of Prices Act, 1973 and hoarding contrary to what were cited as sections F 194 A(c)(i)(ii) and 4 of the Penal Code. I will say nothing about those provisions for their nonexistence or irrelevance is self-evident. The trial commenced on 17th September when some evidence was adduced by the prosecution and the goods were tendered as exhibits. At the resumed hearing on 18th September the charges were G withdrawn under s. 86(a) of the Criminal Procedure Code. Thereupon the trial magistrate made an order restoring the goods to the police. The applicant appealed against that order in Criminal Appeal No. 100 of 1981 which is due for hearing before this court.
Meanwhile, on 25th September, the applicant was summoned to the police station by H the OCD and told that the goods would be sold. They were duly sold on the next day. The applicant was also informed that his trading licence, which had also been seized, had been cancelled. He was then ordered to dispose of the remaining goods in his shop and to leave Singida town not later than 2nd October, 1981. I
In consequence of these orders and actions the applicant applied
to this court in Miscellaneous Criminal Cause No. 14 of 1981 for orders of certiorari A and prohibition to quash the orders of the OCD and to restrain him from carrying out the order of expulsion. The application was heard by my brother Maina, J. on 19th October, after leave had been applied for and granted, and orders were made and issued as prayed.
But while the hearing was going on the applicant gathered that the OCD had apparently B acted on orders of the Area Commissioner and the Kamati ya Ulinzi na Usalama, Singida District. He therefore brought the present application for leave to apply for the same orders against the Area Commissioner and the Kamati ya Ulinzi na Usalama. At the hearing of this application I requested Mr. Mbezi, learned counsel for the C applicant, to enlighten me on the following:
(a) Whether it was a legal requirement to seek prior leave to apply for prerogative orders;
(b) Whether the court had jurisdiction to grant such leave considering D
(i) that part of the subject matter appeared to be the subject of Criminal Appeal No. 100 of 1981; and
(ii) that similar orders on the same complaints had already been granted in Miscellaneous Criminal Cause No. 14 of 1981. E
I would now point out that the orders of the court in Miscellaneous Criminal Cause No. 14 of 1981 were duly served on one Akilimali, A.S.P., of Singida Police on 9th F November, 1981.
Regarding (a) Mr. Mbezi conceded that the procedure was not entirely clear. He informed the court, however, that it has been the practice in these matters to adopt the procedure applicable in habeas corpusproceedings. Regarding (b)(i) he said that the G subject of Criminal Appeal No. 100 of 1981 was different: It was there intended to determine the legality of the trial magistrate's order of restoring the goods to the police whereas certiorari was being sought, inter alia, to quash the decision to sell the said goods. And regarding (b)(ii) he submitted that the court had jurisdiction as the H respondents were different. I must confess that I could not on my part find easy answers to these questions. And Mr. Mbezi, on his part, was unable to refer me to any authorities.
I shall now consider these matters beginning with (a) Subsection (1) of s. 349 of the Criminal Procedure Code, provides that the High Court may in the exercise of its I criminal jurisdiction issue any writ which maybe issued by the High Court of Judicature in England. Subsection
(2) further provides that the High Court may from time to time make rules to regulate the A procedure in cases under the said section. For reasons I cannot think of, no such rules have ever been made. However, there is authority for saying, as Mr. Mbezi did, that the practice of this court has always recognised prior leave as prerequisite in the making of applications for prerogative orders. We should therefore look at some B decisions as regards the court's practice.
In the case of Mohamed v Regional C.I.D. Officer, Mbeya: Miscellaneous Criminal Cause No. 29 of 1978 (Mbeya Registry), a question was raised in a preliminary objection and it was whether an application for mandamus could be entertained in the absence of prior leave. Mwakibete, J. stated, inter alia: C
"The urgency of the matter - the subject of this application - cannot be overemphasized. There is an allegation - albeit impliedly - of flagrant misuse of authority to the suffering of the applicant. Surely the circumstances demand that the application is heard with dispatch on its D merits ....
It is a case properly crying for dispensation of the alleged leave. Thus by virtue of this court's inherent powers I hereby order that the leave to file the application be dispensed with". E
It is implicit in the above that the learned judge acknowledged the desirability of an application for prior leave but he was prepared to dispense with it on the exigencies of the case before him. The judge had been referred to Mwakilasa v The Principal F Secretary (Treasury): Miscellaneous Criminal Cause No. 14 of 1978 (Mbeya Registry), in which it appears to have been specifically held that prior leave was a necessity. Unfortunately, I could not trace that ruling here and I could not have attempted to do so without risking delay. But the issue arose again in Lakarau v Town Director Arusha: Miscellaneous Civil Application No. 56 of 1979 (Arusha Registry), G where an application for mandamus had similarly been brought without prior leave. It was there stated by Maganga, J., and I quote,
"... it still appears to me that the application as filed is incompetent for the reason that no leave H to file the application had been granted. The procedure for Orders of mandamus and other writs as stated at page 70 of Halsbury's Laws of England (3rd Ed. Vol. 11) make it mandatory for leave to apply to be obtained before an application for any of the writs is made. I
It is stated therein that: "No application can be made unless leave therefor has been A granted ... ."
Because leave had not been obtained in that application, and for a number of other B reasons stated in the ruling, the learned judge dismissed the application.
A different view was taken by Mroso, J. in Makule v The R.P.C., Kilimanjaro; Miscellaneous Civil Application No. 87 of 1979 (Arusha Registry). He was then considering an ex parte application for leave to apply for mandamus and ruled that leave to apply was not part of the law of this country, citing D.M.T. Ltd. v The C Transport Licensing Authority [1959] E.A. 403 and section 2(2) of the Judicature and Application of Laws Ordinance, Cap. 453. He therefore dismissed or struck out the application. I have had the advantage of reading carefully the citations by Mroso, J., and I think, with respect, that none of them is devoted to the question of leave as such. In so D far as I can gather they are concerned generally with the law applicable.
Admittedly, one cannot but agree with Mroso, J. as to that law. The quotation by Maganga, J. from Halsbury's Laws in the Lakarau case takes source directly from 0.59, r. 3(1) of the Rules of the Supreme Court in England which were made under s. 120 of E the Administration of Justice (Miscellaneous Provisions) act, 1938, and which replace the Crown Office Rules, 1906. As pointed out by Mroso, J. these 1938 rules have no application in this country having regard to the reception date which is 22nd July, 1920. I would therefore respectfully agree that the law applicable is to be found in the Crown F Office Rules, 1906. Unlike the learned judge, however, I have not been privileged to see these rules, but I believe he was correct in saying that they do not require an application for prior leave. Nevertheless, I cannot for bear to express my anxiety that, to-date, one has to have recourse to obscure rules which were abandoned by their G country of origin more than forty years ago. I think there is urgent need to pay attention to subsection (2) of s. 349 of the Criminal Procedure Code.
Having said that, however, I still would not go to the extent of saying that absence of a statutory requirement implies that an application for leave, whenever brought, must H necessarily be rejected. I say so because, firstly, it is clear from s. 2(2), Cap. 453 that what this court is expected to apply is the substance only of the English Common Law, the doctrines of equity and the statutes of general application in force on the 22nd July, 1920. It has therefore never been suggested that an application for leave would I contravene the Crown Office Rules, 1906 and I believe that what the law does not forbid, it permits. Indeed if there is any
disadvantage in such a procedure, it accrues to the applicant himself. Secondly, A reverting again to the issue of practice, it is evident that prior leave has been the accepted procedure before this court for as long as I am unable to ascertain. Thus, apart from the unreported cases already referred to, in Re Fazal Kassam (Mills) Ltd., [1960] E.A. 1002, which was an application for the writs of certiorari and Bmandamus, leave had been applied for and granted. And Re Hirji Transport Service [1961] E.A. 88 was a ruling on an application for leave and it was granted. It is therefore clear to me that the efficacy of this procedure has never before been questioned or doubted.
I am thus of the respectful view that by reason of long user, coupled with approval, the C practice of seeking leave has come to be part of our procedural law. The application now before me is therefore very relevant.
The second question consists of two parts both on the issue of jurisdiction. The first part is whether the court has jurisdiction to entertain the intended application for orders in view of the appeal pending before this court. The appeal seeks to test the validity of the D trial magistrate's order by which he restored the shop goods to the police. As pointed out the order was made upon the charge being withdrawn under s. 86(a) of the Criminal Procedure Code. I am not here called upon to go into that order for it may receive attention in the appeal itself. Nevertheless, I can look into the intention of that appeal. EUndoubtedly, it is intended to secure the reversal of the magistrate's order and, logically, the restoration of the goods, or their value, to the applicant. The purpose of the intended application for certiorari, on the other hand, is to quash the decision to sell the goods and no more. And it is relevant to emphasize the fact that the goods have in fact already F been sold. The fundamental question to which I desire to address my mind is whether where there is a right of appeal, and it has been exercised, the aggrieved party can resile from the procedure he has adopted and have recourse to prerogative orders.
The question has been the subject of discussion before. In Shah Vershi & Co. Ltd. v G The Transport Licensing Board [1971] E.A. 289, a Kenyan case, it was held by Chanan Singh, J., at p. 294 that:
Ordinarily, the High Court will decline to interfere until the aggrieved party has exhausted his H statutory remedy .... But this is a rule of policy, convenience, and discretion, rather than a rule of law. In other words, the existence of a right of appeal is a factor to be taken into account: it does not bar the remedy (of certiorari), especially where the alternative is not speedy, effective, I and adequate ...
He went on: A
"... I am of the view that neither the existence of a right of appeal nor the filing of an appeal deprives the company of its right to ask for certiorari". B
In that case an appeal had been lodged with the appropriate body several months before the above decision but had never been listed for hearing. Similar appeals had been lodged by the same applicant over two years earlier and these too had never been listed for hearing. It was in those circumstances that the above decision was reached. In the C earlier case of Re A.G.'s Application [1958] E.A. 482, it was said by Cram, Ag. J., at p. 485:
"It is well-settled law that, where there is express legislation as to appeal, the prerogative, D while not repealed (for that is difficult to conceive) cannot ordinarily be invoked unless and until the local substantive provisions have been fully exploited and found wanting in remedy. The ancient remedy of prerogative is from time to time superseded. In a sense it become obsolete". E
He went on, at p. 486:
"I am unable to see how the appellant can now be permitted to abandon the procedure he has followed, recede from the statutory procedure hitherto followed and ignore procedure for relief F provided by a statute and be permitted to invoke the non-statutory jurisdiction provided by the prerogative".
The above two decisions express the same thing, though with a shift of emphasis, that a G statutory remedy takes priority over but does not exclude a prerogative relief. One can therefore suggest with a degree of certainty that in Kenya an application for prerogative orders may lie even where there is a right of appeal, and the existence of one, depending on the circumstances of the case, for instance, the failure of the appeal to provide a speedy, effective solution, or at all. H
The position in this country does not appear different. In Re Fazal Kassam (Mill) Ltd. (already referred to), one of the objections raised was that the applicants were precluded from seeking relief by way of mandamus since they had a right of appeal to the Minister against the respondent's refusal to issue them with a coffee exporter's I licence. It was stated by Sir Ralph Windham, C.J., at p. 1005, that:
"... it is not the law that the court will always refuse mandamus when the applicant could have A appealed. The matter is one of discretion, to be carefully and judicially exercised, the position being simply that as stated in Halsbury's Law of England (3rd Ed.) Vol. 11 at p. 107:
`The court will, as a general rule, and in the exercise of its discretion, refuse an order of B mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial and effective.'
The preliminary objection was overruled because of the circumstances of the case which C included the fact that on previous occasions the applicants' appeals to the Minister had on each occasion been rejected without reasons being given. While that part of Sir Ralph Windham, C.J.'s decision was directed at mandamus only the same position appears true for certiorari. In the same edition of Halsbury's Law it is stated at p. 130 D that
"There is no rule to certiorari, as there is with mandamus, that it will lie only where there is no E other equally effective remedy; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute".
I think, with respect, that is a sound summary of the law. I would therefore say, from the totality of these authorities, that the existence of the right of appeal and even the F existence of an appeal itself, is not necessarily a bar to the issue of prerogative orders. The matter is one of judicial discretion to be exercised by the court in the light of the circumstances of each particular case. Where an appeal has proved ineffective, and the requisite grounds exist, the aggrieved party may seek and the court would be entitled to G grant, relief by way of prerogative orders. The simple question we are therefore left with is whether such grounds exist in the intended application. I am of the unfortunate view that they do not.
In the first instance, the applicant's appeal was only recently filed. There is therefore no H question of delay nor is there any question of that procedure being exhausted.
Secondly, the appeal is potentially, if all goes well, more effective. It could result in the goods, or their value, being restored to the applicant; but certiorari can only result in quashing the decision to sell them and no more. Thirdly, and more seriously, the goods have already been sold. I
There is therefore no decision which can be arrested by certiorari. The same is true of A the trading licence. It has already been cancelled. Certiorari cannot issue to grant a new licence. In short, there are no grounds for the applicant to resile from the appeal already filed by him and seek remedy by way of certiorari and, I apprehend the court is B not expected to engage in a futile exercise. I have therefore come to the sad conclusion that the intended application for certiorari is superfluous and this court cannot exercise its discretion to entertain it.
The second leg of the second question is whether the court has jurisdiction to entertain the intended application in view of its orders in Miscellaneous Criminal Cause No. 14 of C 1981. Mr. Mbezi said the court had jurisdiction since in the intended application the respondents are different. He referred me to no authority and I could find none. I would venture to suggest, however, that the principle to be followed in this regard is the same as where there is a right of appeal. There must exist grounds upon which a second D application can be brought and this in my view, cannot merely be the existence of other respondents. It has, I think, to be demonstrated that the earlier application has proved ineffective. The applicant's affidavit does not so state although there could be genuine apprehensions that the first application would not deliver the goods. Presumably, the E better course would have been to amend the first application and join the present respondents who, apparently, became known at the hearing of that application. But to require the court to exercise the same powers in parallel applications is not only an exercise in confusion but something I cannot read in law or precedent.
There is yet another aspect to be considered. As far as I am aware certiorari, as with F prohibition, may issue where an inferior tribunal has wrongly assumed jurisdiction or has exceeded jurisdiction in the discharge of judicial functions. It was not suggested, even remotely, that the Area Commissioner or the Kamati ya Ulinzi na Usalama acted G as such tribunals or that they did so without or in excess of jurisdiction.
This is not to say that they acted correctly. But indeed the decisions complained of do not bear any judicial character. They appear to be purely administrative. It is stated in Halsbury's Law (above, at pp. 134-135, that H
"Certiorari will issue to quash the determinations of any body of persons having legal authority to determine questions affecting the right of subjects and having the duty to act judicially. Certiorari lies only in respect of judicial, as distinguished from administrative acts". I
As just stated the Area Commissioner and the Kamati ya Ulinzi na Usalama appear A to have acted, if true, in a purely administrative capacity and the applicant's affidavit does not allege to the contrary. The intended application thus fails to disclose a prima facie case for the intervention of this court. As stated by Biron, Ag. J., as he then was, in Re Hirji Transport Service, cited earlier, there has to be a prima faciecase before leave B can be granted. There being no prima facie case and bearing in mind the other conclusion I have reached earlier, I am satisfied that this application must fail.
C Leave refused.
D