An application filed by Former Nairobi PC at the high court stands strongly opposed by the complete in Sh 1.3Billion land fraud case against him.
When the matter came for hearing before Judge Muteti, he was informed that the matter the Chelangoi is raising was dealt it with at lower court and the criminal proceeding is almost over.
During submissions before Justice Alexander Muteti, counsel for the complainants maintained that the judicial review application was improperly before the court and amounted to an attempt to derail a criminal case that is already at an advanced stage.
The lawyers argued that although the applicant had invoked constitutional provisions and sought judicial review remedies, the dispute essentially arose from a criminal trial and should be determined within the existing proceedings.
“I still maintain that these are judicial review proceedings,” counsel submitted, arguing that the pleadings before the court had fundamentally changed the nature of the dispute.
The court heard that Chelogoi had previously challenged aspects of the criminal proceedings and had already obtained reliefs from various courts, making the latest application unnecessary.
According to the complainant’s side, the accused had chosen to return to the High Court despite the availability of other legal avenues, including criminal revision proceedings.
Counsel further argued that the applicant was engaging in forum shopping by moving between different divisions of the High Court while raising issues that had substantially been dealt with elsewhere.
The lawyer told the court that several matters now being raised had either been canvassed before the subordinate court or formed part of previous litigation involving the same criminal proceedings.
The complainants insisted that the criminal case had substantially progressed and that stopping it at this stage would prejudice the parties seeking justice.
The court was informed that the prosecution had already concluded its case and the accused persons had been placed on their defence, bringing the matter close to completion.
The lawyer argued that interrupting the proceedings at such a stage would undermine the administration of justice and prolong a dispute that has been before the courts for years.
He also defended the jurisdiction of the Constitutional and Human Rights Division, acknowledging that the High Court possesses powers under Article 23 to enforce the Bill of Rights but maintaining that the present application had been improperly framed.
Counsel submitted that the applicant could not transform the proceedings into a constitutional dispute merely because he was dissatisfied with decisions made in the lower court.
The court further heard that many litigants routinely approach the Constitutional and Human Rights Division seeking orders affecting criminal proceedings, but this alone should not justify halting an ongoing trial.
At one point, Justice Muteti questioned whether the court’s constitutional jurisdiction could still be invoked where allegations of violation of rights arose from criminal proceedings.
However, counsel maintained his position that the application should be struck out.
“Whether I am right or wrong, I still maintain that these are judicial review proceedings,” he told the court.
The complainants further urged the court to allow the criminal trial to proceed to its logical conclusion, arguing that the interests of justice would be best served by permitting the trial court to complete a matter that is already at its tail end.
Chelogoi is challenging proceedings before the trial court, arguing that his right to a fair hearing was violated and questioning the jurisdiction of the magistrate who handled portions of the case after her transfer to another station.
The High Court is expected to determine whether the application should proceed or whether the criminal case should continue before the trial court.
