Director of Public Prosecutions , Chief Magistrates Court at Kiambu & Director of Criminal Investigations v Pius Ngugi Mbugua & National Land Commission exparte Muktar Saman Olow [2017] KEHC 2826 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION, JUDICIAL REVIEW NO.397 OF 2016

IN THE MATTER OF ARTICLES 22(3), 23,27,47,50,157 AND 165 OF THE CONSTITUTION

AND

IN THE MATTER OF SECTION 4&5 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

AND IN THE MATTER OF SECTION 8&9 OF THE LAW REFORM ACT

AND IN THE MATTER OF SECTION7, 8,9,10 &11 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2014

BETWEEN

MUKTAR SAMAN OLOW….......................................EXPARTE APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS….........1ST RESPONDENT

THE CHIEF MAGISTRATES COURT AT KIAMBU.........2ND RESPONDENT

THE DIRECTOR OF CRIMINAL INVESTIGATIONS…..3RD RESPONDENT

AND

PIUS NGUGI MBUGUA………..............................1ST INTERESTED PARTY

THE NATIONAL LAND COMMISSION...............2ND INTERESTED PARTY

JUDGMENT

1. On 1st  September  2016  the  exparte  applicant  Muktar  Saman  Olow  obtained leave  of this court to institute Judicial Review  proceedings  against the  Director of  Public Prosecution, The Chief  Magistrate’s  Court at Kiambu  and  the Director   of Criminal Investigations.

2. The  applicant   was  directed  to file  and  serve  the substantive  notice  of motion  within  21  days  of date of leave. On 19th  September  2016,  the  exparte  applicant  dutifully filed a notice  of motion dated the same day  pursuant  to the leave  granted on  1st  September   2016   seeking the  following   Judicial Review  Orders:

1 ) That the court be pleased to grant an order of prohibition  directed at  the 1st and  3rd respondents, prohibiting further prosecution of the exparte  applicant  before the  2nd  respondent  in criminal  case  No. 1170 of 2016  Republic vs Muktar  Saman Olow.

2) That the court be pleased to grant an order of prohibition  directed at  the 1st and  3rd respondents  from preferring  any criminal charges against the exparte applicant before any  competent  court  in Kenya in so far  as the  same relates to the claims surrounding or relating  to HCC No (O.S.)  1321 of  2005 consolidated  with  ELC case  No. 424  of  2011  and ELC  case No.  437 of 2011.

3) That the court be pleased to grant an  order of certiorari  directed  at the  1st respondent, quashing  their decision  to institute  or continue any  criminal prosecution  of the  exparte applicant  in respect to the claims in HCC No.(O.S.) 1321 of 2005   consolidated  with ELC case No. 424  of  2011  and  ELC case  No. 437  of  2011;

4) That the court  be pleased to  grant  a  declaratory  order that the  prosecution of the  exparte  applicant  in the Chief  Magistrate’s  Court in Kiambu in criminal case  No. 1170  of  2016 (Republic  vs  Muktar Saman Olow)  is a violation of the applicant’s right to administrative action that is expeditions, efficient, lawful, reasonable and  procedurally fair.

5) That  this Honourable court be  pleased to  grant  any  other orders  and  directions  as it may  deem  fit and  just  to issue under  the  circumstances.

6) Costs of this application be provided for.

3. As required  under Order  53  of the Civil Procedure  Rules, the grounds  upon which  the notice  of  motion is  predicated  are contained in the statutory statement  accompanying  the chamber  summons for leave hence the court  shall consider those grounds  together with the  verifying affidavit sworn by Mr  Muktar  Saman  Olow  on  31st August  2016   and the annextures  thereto and any other affidavits filed with leave of the court.

4. In the lengthy statutory statement and detailed affidavit  comprising  31 and  37  paragraphs  respectively, the exparte  applicant  claims that  on 22nd  August  2011  he instituted  ELC case No. 424/2011 against the 1st interested  party Mr  Pius  Ngugi seeking  inter alia  a permanent  injunction  against him  from trespassing  on land  Reference Number  1870/1/240.

5. That on 15th October 2011, armed police officers from CID Headquarters raided the exparte applicant’s acquaintances’ offices in the City Centre and demanded to search the premises.  The police officers informed the applicant’s acquaintances that they believed that he had committed an offence of instructing an unlicensed advocate to act for him in a certain transaction in relation to the same land in Westlands.

6. The officers arrested the said acquaintances, carried some files to the CID Headquarters and released them after questioning them, without preferring any charges while demanding to know the whereabouts of the applicant.

7. The applicant  on learning  of the police  action instructed his advocates M/S Ahmednasir, Abdikadir  & Company Advocates to write  and  complain against the police  for  abuse of  legal process.  The said  letter  was  copied to various agencies  including the Director of Public Prosecutions who on 19th October 2016 directed the  police  to forward  any information  touching  on accusations  against the  exparte  applicant  to enable  him  take appropriate directions, and  directing  that  the applicant  should  not be  arrested until the said  investigations  were completed.

8. That on 20thOctober 2011 the applicant went to the CID  Headquarters  and  recorded  his statement  accompanied  by his advocate but before  he could record  any statement  he was  hurriedly roughed  up and  locked up at the  CID officers who chased the applicant’s advocate without according him a  hearing.

9. That the following  day, the applicant was  arraigned  before Kiambu  Law Courts  charged with the  offence  of Forgery  Contrary to Section 349 of the Penal Code; Making a false document contrary to Section 347 of  the Penal Code and Stealing  contrary to Section 275  of the Penal Code. That the applicant pleaded not guilty to the charges and was released on a cash bail of shs 300,000/-.

10. According  to the  exparte applicant, his  arrest  and  prosecution  was  actuated by malice  and  false  allegations  leveled  against  him by  Mr Pius  Ngugi  with whom he has  pending litigation  in court.

11. It is further alleged that following protests by the exparte applicant’s advocate to various law enforcement agencies regarding the alleged unlawful arrest and arraignment in court, the Director of Public Prosecutions directed that criminal case  No. 2287/11 against the  applicant  be withdrawn and  subsequently, all the civil  suits related  to the suit  property  were all consolidated into one namely:- HCC(OS)1321/2005; ELC 424/2011 and  ELC  437/2011.

12. That on 28th November 2011 the applicant filed Petition No. 277/2011 in the Constitutional  and Human Rights Division seeking orders  to stop the  said  prosecution and  obtained  a conservatory order of stay of prosecution pending hearing  and  determination of the main petition  but the criminal case No. 2287/11 was withdrawn by the Director of Public  Prosecutions before  the substantive  petition  was heard thereby rendering the same superfluous  and nugatory hence the  applicant  instructed  his advocates to  withdraw it  on  27th January  2012.

13. That in  2016  nearly  five years  after withdrawal  of  criminal case  No. 228/2011  the  Director of Public  Prosecutions  recommended  vide letter  dated  6th April  2016  that the applicant be charged  with the same  offences/charges  that had earlier  been preferred  but withdrawn against him.

14. That the  said letter  directing  the  applicant’s   prosecution  was shared  on social  media  before the  applicant  knew  of the decision  to charge  him which  is indicative  of malice  and  intended  to malign  the applicant’s  good standing.

15. In the view of the exparte applicant, the letter  recommending  the  prosecution  of the applicant  is malicious  because  it calls for  his arrest  before the document  which the Director of Public  Prosecutions   asserts  as  forming the basis of the criminal charges had been  authenticated 5 years after the initial criminal charges  were preferred.

16. In the view of the applicant, the Director of Public  Prosecution’s  decision   was  actuated  by bias  and the desire  to appease  the  public after  a  petition  to the  Public Service  Commission for his removal  was lodged  a day prior  to the  said decision being made  as shown by an exhibited  affidavit   and  petition filed  by Nelson  Havi advocate to the Public Service Commission.

17. That  on 18th May  2016  the applicant  was  arrested  from his  South C Home  and  taken to CID Headquarters where he  was  detained  and  on  19th May  2016  he  was  arraigned  before the  Chief Magistrate’s Court at Kiambu  in Criminal case No. 1170/2016  charged  with similar offences  as the earlier  charges which had been withdrawn by the DPP.

18. The exparte  applicant complains that despite the fact the goods allegedly  stolen were proclaimed and  taken  possession of by the Auctioneers, the respondent  decided to charge  him with the offence of stealing  which  charge  amounts to a material  error of fact and  is vexatious.

19. Further, that despite the charge of forgery of signatures of persons working in the Ministry of Lands, those persons have not lodged any complaint.

20. That no new evidence has been  presented to warrant  institution  of fresh criminal charges  against  him and  neither  have fresh  investigations  been conducted  by the  1st respondent  in the 5 year period  lapse.

21. The exparte applicant asserts that he never forged any documents and that neither is there evidence linking him to the alleged forgeries.

22. The applicant claims that he has  a genuine  title to  the  property  in issue as admitted by the Commissioner for Lands in the pending  civil cases  as shown  by annexture MSO 13  which is a witness  statement  and  defence filed  by the Commissioner  of Lands  in ELC  case  No. 424 of  2011.

23. In view  of the foregoing, it is alleged by the exparte applicant that the  decision by the  1st respondent to  charge him  is not supported by the  information  available  to him, lacks proportionality, is based on taking account of irrelevant  consideration  and  is not  rationally  connected   to the information before him and therefore amenable  to Judicial Review.

24. Further, that the said  decision  is actuated  by malice and  bad faith owing to the manner in which  the 1st respondent  published  the  intended  renewal of the  current criminal proceedings via  social  media; the violent manner in which the applicant  was arrested; previous  attempts  by the National Land Commission  to review  the  grant  to the suit property upon which they were prohibited  vide Judicial Review Miscellaneous  case No. 376/2014; lack of additional  investigation  in the  5  year  period to  warrant fresh  charges  and the  influence  of the  1st interested  party  in these  matters.

25. The applicant  maintains  that the  actions by the  respondents  are intended  to prejudice  his right to  property  and  to have  the  dispute regarding  the  suit  property  resolved  by the civil  court hence the criminal proceedings  are oppressive, vexatious, abuse of the court process and abuse of  prosecutorial discretion.

26. The applicant annexed several documents to support his depositions.

The 1st and Third Respondent’s reply

27. The 2nd Respondent who is the Chief Magistrate Kiambu Law Courts did not file any reply to the Motion. The 1st and 3rd Respondents vehemently opposed  the notice of motion and  filed  a  joint  replying  affidavit  sworn on their behalf by No. 69160 Lady Corporal Catherine  Kiome  of Serious  Crimes Unit at the Director of Criminal Investigations Department, Nairobi  and who is also the investigating  officer  in the matter subject of  the challenge  by these  judicial review proceedings.

28. The Respondents’ deponent contends that the charges facing the exparte  applicant were initiated following investigations which  revealed  that the  1st  interested  party  Mr Pius  Ngugi  and  his daughter  Angeline  Ngugi lived on  the suit property  and  that Mr  Ngugi  bought the  land  in  1974 from Mrs Helen Fear  after which  the latter relocated  to Britain  and  died in  1988.

29. That although Mr Ngugi did not cause the  property to be registered  in his name, he continued  paying land  rates  to the then City Council  of Nairobi  which Council at  some  point filed  suit against him  in CC 439/1975 prohibiting  any transaction  on the land   until  the rates were paid  by Mr  Pius  Ngugi.

30. That vide HC 1321/2005 Mr Ngugi  filed suit seeking to  be declared the owner of the suit land as he had lost transfer documents   and  the seller  had left the country before  effecting   a transfer of the land  in his  name.

31. That  the said  Mr  Ngugi got  judgment  in his favour  and  the Registrar of the High Court was ordered to  execute  registration documents  on behalf  of Helen Fear in favour of Mr Ngugi the 1st interested party herein.

32. That despite the above orders and the subsequent lifting of the prohibitory  order, the registration of title  in favour of Mr Ngugi  was not  effected.

33. That it was discovered  after investigations that there  was an alleged  extension  of lease  in favour  of the exparte  applicant  herein  which  was not done  procedurally and through forgery  in that the  exparte applicant claims to  have met  Mrs Helen Fear in  2000 who sold  the  property  to him yet  the said Mrs Helen Fear  died in  1988.

34. That the Survey Plan giving rise to  Deed Plan No. 311506   and  subsequent Deed Grant No. 129305 issued  to the  applicant  is a forgery  as it has been disowned  by the Surveyor who is  alleged  to have  carried out  the  survey  on LR 1870/1//240.  Further, that the Survey Plan was not authentic as the authentication slip that was used was for a different LR No.1870/1/577 and not LR 1870/1/240.

35. In addition it was contended that the computation No. 59268 and FR No. 506/11 are for different L and Ref; No. 1870/1/577.  Further, that in the Deed Plan register, the area shown is different from what   appears on the Survey Plan FR 506/11.  That the  Deed Plan  number posted  in the register  indicated  that  the Survey  Plan used   was  FR No. 86/211, which appears  as the survey plan  No.  FR 506/11 and which clearly shows that it was a forgery and that FR No.  86/121 was prepared in 1959 and Deed Plan issued on 23rd August 2010.

36. It is further contended that the City Hall Physical Planner only signed for City Hall with a promise that rates would be submitted thereby exposing fraud.

37. That therefore  all entries  in the title apart  from the time of entry of prohibitory orders of 1975   in respect  of  CC 439/1975  are forgeries including the signatures and stamps of the Ministry  of Lands   officials  as shown  by copies  of documents  exhibited.

38. That the  criminal  charges which are impugned  had  commenced  hearing  wherein  two  witnesses  had testified  before the  applicant  sought  and  obtained stay orders vide these proceedings.

39. The  1st respondent  also filed  another  replying  affidavit on his own  behalf and on behalf  of the  3rd respondent, sworn by  Edwin Okello Senior  Assistant  Director  of Public   Prosecutions on 12th October  2016.

40. Mr Okello concedes that the initial  criminal charges  vide criminal case No. 2287/11  against the  exparte applicant   were withdrawn by the     DPP and  so  was  the  applicant’s Constitutional  Petition  No.  277/11 which had been rendered superfluous by the withdrawal of the criminal charges.  That as at that time, the Director of Public Prosecutions noted that the  applicant  had been charged  in court but that there were several  outstanding  issues  that needed  investigations and that it  was  upon review of the investigations file that the Director of Public Prosecutions directed that the exparte applicant herein  be charged with the various  offences  listed in the  charge sheet.

41. According to the DPP, the  decision  leading to the charges  being leveled against the exparte applicant was elaborate  and  preceded the filing of the petition with Public Service Commission  to remove the  Director of Public Prosecutions from office, which process was independent  and not  influenced  by the Petition.

42. Further, it was contended that the charges  preferred  against  the exparte applicant are supported by strong evidence and that therefore the issue of  authentication of  the  death certificate of Mrs Helen  Fear  is one to be  determined by  the trial court, and that in any  event, the  prosecution’s case is not entirely  dependent  on the death  of  Mrs Helen Fear.

Reply by the Interested Parties

43. The  1st interested party  Mr Pius Ngugi who is the complainant in the criminal case filed  replying  affidavit  and  a further  replying  affidavit in response to the   exparte applicant’s  further affidavit  on 9th November  2016 sworn by Mr Pius Mbugua Ngugi on 8th November 2016    contending  that he is the  owner of the  disputed  property LR  1870/1/240 and the  complainant  in Kiambu criminal Case No.  1170/2016   Republic vs Muktar Saman Olow.

44. According to Mr Ngugi, in  1974  he purchased the suit property   from one Mrs Helen Fear  and he took possession  thereof  but that he  was not able to  complete the  transfer  process  in his favour  as the completion  documents  were  misplaced.

45. That thereafter the then Nairobi City Council placed  a caveat  on the title  and  in 2005 the 1st interested party filed  an Originating Summons vide HCC O.S No. 1321/2005  against  Mrs Helen Fear  seeking  a  declaration  that he is  the  owner  of the  suit land   as he  had  resided   on it for  over 30  years  and  that he  got judgment in his favour  on  16th  July  2009  as shown  by copy of  decree annexed.

46. That the said  decree  was on  2nd  December  2009  submitted to the Lands Office  for registration by his advocates Mbugua & Macharia  after the Deputy Registrar  of the High Court executed  a transfer   as per the decree but that the file   at the Lands Registry could not  be  traced  and the said file has been missing to date.

47. That  on  18th August  2011  a violent  crowd  accompanied  by the  exparte applicant  and  police forced  their  way into his said property  and  destroyed   the  property and  harassed his  daughter  Angeline  Ngugi.

48. That it was later established that the applicant and the Auctioneer, Mr Joseph Kimani of Pyramid Auctioneers had vide Milimani Chief Magistrate’s Court Miscellaneous Case No.  527/11 obtained  orders  against  the interested party’s daughter  Angeline  falsely claiming that  the latter had signed  with the applicant  a  lease agreement  on 20th June   2010  for  a period of  2 years  and  that she owed  the applicant  kshs  495,000 as rent  arrears  and that she  had been served  with a  proclamation notice  but that she had declined  to acknowledge  receipt  thereof.

49. According to the 1st interested party,  the  alleged signature  of his daughter  on the purported lease agreement  has been  investigated and  found to be  a forgery  as shown by  the forensic  investigations report done by the National Land  Commission  annexed  to the affidavit.

50. Further, that  it  was  following the  above  events  that the  1st  interested party  filed ELC  437/2011  Pius Ngugi & Another  vs Muktar  Saman Olow  & Another  seeking to restrain the  exparte applicant  herein from   evicting   and  trespassing  on the suit property  and  that is when  he learnt  that the exparte applicant  had also  filed ELC 242/2011  against the  1st interested party  claiming that  the property  in issue  had been  sold to the exparte applicant by Mrs Helen Fear  in 2000 and so the exparte applicant was only  required to pay rates  and  seek extension of the lease.

51. According to the 1st interested party, Section 193A of the Criminal  Procedure Code  contemplates  both civil and  criminal cases to run simultaneously  and therefore the pending  civil cases did not  preclude  the  Director of Criminal Investigations and  Director of Public  Prosecutions  from investigating  the  criminal conduct on the part of the  exparte applicant and instituting Kiambu Criminal  Case No. 11170/2016.

52. The 1st interested  party  further deposed that  Mrs Helen  Fear  died  in 1988 hence  the exparte applicant  could not have purchased the  suit property  from her  in 2000.  He annexed copy of death certificate as exhibit 54.

53.  It was further claimed that after discovery  of the  possible forgery  by the exparte applicant, the  1st interested party lodged a complaint with the Director of Criminal Investigations after which the exparte applicant was  arrested and charged in court but that the criminal case was withdrawn  in  2012  after the applicant  filed a  Constitutional Petition  227/2011  to allow the  Director of Public  Prosecutions direct for further  investigations  into the matter  leading  to the present charges, which  he is entitled to, under Section 87(a) of the Criminal Procedure Code hence the fresh  charges  are in order.

54. The  1st  interested party  further  deposes  that the  said  Kiambu  Criminal Case No. 2287 of  2011  is part heard wherein  he has   testified and  the Land Registrar Mr Fredrick Indoko  Lubulellah  whose signature  in entries  that  were made  in the Land Register  were forged had also testified prior to these Judicial Review  proceedings  being  instituted.

55. That in the criminal case, the prosecution has lined up 21  witnesses  hence  the  applicant  is guilty  of coming  to court   too late  to challenge his  prosecution  when the hearing  thereof  had commenced.

56. According to the 1st interested party, the decision of the Director of  Public  Prosecutions and  the Director  of Criminal  Investigations  to bring criminal charges  against  the exparte applicant  is  independent   and  objective in exercise  of their  constitutional  and statutory  mandates  which should  not be interfered  with by this  court exercising  Judicial  Review  jurisdiction.

57. The 1st interested party further denied  having any  influence  on the decision of the Director of  Public  Prosecutions save  that he is  a  complainant  and that neither  does  he have any relationship with Mr Nelson Havi  who  petitioned  for the removal of the  Director of  Public  Prosecutions by the Public  Service Commission.

58. The 1st interested party urged this court not to interfere with the criminal proceedings which are instituted in the public interest.

The 2nd Interested Party’s Reply

59. On  8th March  2017  the  2nd  interested Party, the National Land Commission  was  granted  leave of court to  withdraw  their replying  affidavit  sworn  by Brian Ikol  on  9th November  2016   and  their submissions  on the same date and to file fresh replying affidavit and  submissions  which they did file on  21st March 2017.

60. In the refilled replying affidavit sworn by Brian Ikol the Deputy Director of Legal Affairs  at  National Land  Commission  sworn on 20th March 2017, it is deposed in contention that the Commission  received  a complaint  from the interested  party’s  counsels  complaining  that the exparte  applicant herein  had  fraudulently  acquired  title documents  over LR No. 1870/240/1 and  sought the  Commission’s intervention.

61.  That  the  Commission  embarked  on the process  of reviewing  the said title to establish its legality but  was  vide  JR 363/2014  Republic vs National Land Commissionbarred from reviewing the same on account  that the Commission could not review titles subject  of cases  pending  before court  namely HCC 1321/2005, ELC 437/2011  and  ELC  424/2011.

62. That the court  in the said  Judicial Review matter  nonetheless  found that the Commission could continue to carry out  investigations regarding  the matter  in which the titles  were acquired  to assist  the  court reach  a proper  determination if called  upon to do  so as  shown by  copy of judgment  annexed.

63. That upon the Judicial Review matter being  determined  by Korir J, the Commission  ceased taking  further proceedings  and so it  could not determine the legality  of the grant  held by  the  exparte applicant  pursuant  to Section 14  of the National Land Commission Act.

Further Affidavits by the exparte applicant

64. The exparte applicant also filed three further affidavits in response to the 1st and 3rd respondents’ replying affidavits and in response to the replying affidavit filed by the interested parties.  All the further affidavits are sworn on 30th November 2016 and filed on 5th December 2016.  In the said  further  affidavits, the  exparte  applicant  maintains  that  the police operated directly under the influence  and  supervision  of  the 1st interested party as he reported to the police 18th September 2011 a month after he had already recorded a statement  over  the  incident.

65.  Further, that there was contradiction between the 1st interested party’s witness’ statement with the police and his assertion that he had been invaded by robbers and his property stolen.  The exparte applicant maintains  that auctioneers  were  validly executing  a court  order issued    on 9th August  2011  by R.A. Oganyo, the  Principal  Magistrate at Milimani Commercial Courts.

66. In addition, that at the time of  making  the  complaint, the applicant  had already  filed Civil Suit No. 424/11 on 22nd August 2011  seeking  injunctive reliefs to stop the 1st interested party from  trespassing  on the suit property hence the complaint  which was lodges later by the 1st interested party was meant to coerce and intimidate  the exparte applicant  from pursuing  his  case.

67. It was further contended in reply that  the  assertion of the 1st   interested  party purchasing  the  subject property from Mrs Helen Fear in 1988  is not   an  established  fact and is the subject  matter  in the consolidated  cases  hence the 1st interested party has wielded control over  the investigating   officer  who is  biased.

68. That whereas the applicant has title to the property, the 1st  interested party has  none as  the orders/decree he obtained  in HCC 1321/2005  is not  final  and that  the  same is  being  challenged  in court since the  1st interested party  sued a wrong  person; that the  City Council has confirmed that the  1st  interested  party has never  been a ratable  owner of the suit  property and the  investigating officer  has not provided  any evidence  of the City Council  suing the interested party over default  in the payment  of rates.

69. That even if  the  exparte applicant  had not  acquired   the  property  by 2005, the lease  granted to Mrs Helen   Fear, for  43  years  7 months  from 1st November  1959 had lapsed  and  reverted  to the state 3 years  prior to  filing of the  suit by the  interested party.

70. That  the delay in determining  the civil disputes  is due to abuse of power by the state agencies to benefit  the  1st interested party who is s enjoying  status quo orders  as he is  in possession  of  the property.

71. That the Commissioner of Lands has confirmed  that the title   was acquired lawfully hence the police have no  superior  records  than the  Commissioner of Lands who  is the  custodian  of documents  relating to  transfer of land.

72. That the unilateral  decision by the  3rd  respondent  to prefer a  multiplicity  of unsanctioned  criminal  charges   is vexatious, oppressive and biased which is an affront to police independence  and  disproportionate to the  facts of the case; merely seeking  to  confirm allegations  of malice  and  bad faith and that the police are merely being  used in order  to pressure the exparte applicant to cede the title of his property  to the  1st interested  party.

73.  In his  2nd further affidavit in response to the 1st and  3rd  respondent’s affidavit, the exparte  applicant  deposes  that the 1st and  3rd  respondents  have not availed  evidence of  ongoing correspondence for the 5 years that they took before  instituting  fresh  criminal charges against the applicant.  Further, that the  alleged  ongoing  investigations within the said  5 years  are a farce since  the  respondents seek  to rely on the same  facts  and   evidence  that  were used in withdrawing  criminal charges  which begs the question as to what further areas of  investigations  have satisfied  them that  this case, unlike  the  former, is prosecutable.

74. In addition, it is  contended that the  respondents  have totally failed to  establish whether  or not  Mrs Helen  Fear  has passed  on yet  the  fresh charges  are predicated  on allegations that she was dead  as at the  time  of exparte applicant’s  purchase  of suit property.

75. The exparte applicant  maintains that  the  decision  to charge  him is as  per the letter  of 6th April  2016 written  one day after the  petition  to remove  the  Director of Public  Prosecutions was filed  before the  Public Service Commission.

76. That the Director of Public  Prosecutions  did not  live up to his duty  to investigate  allegations  of abuse of the  legal process  by the Director of  Criminal  Investigations and  the  1st interested  party as promised  in his letter  of 31st  October  2011, and give  feed back to the exparte applicant which in essence breached the latter’s  legitimate expectation that the Director of Public  Prosecutions would act in accordance with the said letter; instead of  publishing  the  impending  criminal charges  in social media.

77. That the only way ownership of the suit property can be ascertained is through the ongoing trial process by the Environment and Land Court and not  the  criminal trial.

78. In the third  further  affidavit sworn by the exparte  applicant  in further response  to the  interested party’s  replying  affidavit, the exparte applicant  contended  that the interested  party  had never  been the owner  or registered  proprietor  of the  suit land  and that the decree obtained  in HCC 1321/2005  is being  challenged.

79.  The exparte  applicant  also denied  ever executing  any lease  agreement  with the  1st interested  party  and contends  that the signature  on the  alleged  lease  agreement  is not  his as  confirmed by the forensic document examiner’s report  annexed.

80. The exparte applicant maintains that the 1st interested party has never been the  registered owner of the suit property  that is why he could not attach any copy of a sale agreement with Mrs Helen Fear. That the decree obtained by the 1st interested party was being challenged and that the 1st interested party had contradicted himself in recounting of events compared to his witness statement.

81. That although the National land Commission claimed that there was forgery, its predecessor the Commissioner of Lands had already confirmed that the process by which the exparte applicant obtained title was genuine. Further, that the 1st interested party only instituted his civil suit against the exparte applicant one day after the exparte applicant had instituted his suit against the 1st interested party.

82. The exparte applicant asserted that section 193A of the Criminal procedure Code was only applicable where the power is exercised responsibly, in good faith and in accordance with the laws of the land and that the civil process has its own way of obtaining information now being sought through the criminal process.

83. That the Certificate of Death of Mrs Helen Fear has a disclaimer of not being evidence of identity hence her death is yet to be confirmed and that he had obtained information from the search in the archives of the British general register office of births, deaths and marriages dating back to 1837 after being advised by the British High Commission in Kenya which does not show the death of Helen Fear. Further, that it is absurd for the 1st interested party to claim that Helen Fear died in 1988 yet he sued her in 2005 to get title to the suit land in CC No. 1321 of 2005.

84.  According to the exparte applicant, he is convinced that the 1st respondent only consented to the charges of forgery but that the rest of the charges were concocted and commenced without authority of the DPP and that the offence of theft was a material error of fact leading to an injustice.

85. The exparte applicant denied that the criminal case was part heard or that Mr Lubulellah had testified in the criminal case and that the allegation by the 1st interested party is a figment of his own imagination. He maintained that his application was filed in time and within the statutory period.

86. In the view of the exparte applicant, the DPP was not exercising his powers independently when he reached the decision to charge the exparte applicant and that the court can interfere with that discretion where it has been abused, is irrational, biased or where the effects of the proceedings result in the institution of vexatious and oppressive criminal proceedings hence it the decision of the 1st respondent defies the public interest. Further, that the criminal charges have no factual foundation since the Environment and Land Court has jurisdiction to hear and determine all the issues raised in the Criminal charges which concern ownership of title to the suit property.

87.  It is claimed that the criminal charges are being used to assist the 1st interested party to prove his civil claims against the exparte applicant and to compel the exparte applicant to abandon his claim against the 1st interested party which is malicious and a violation of the exparte applicant’s rights and sense of fair play and decency.

Submissions

88. All Parties filed written submissions and authorities and made oral submissions in support of their respective client’s positions. Mr Mude Counsel for the exparte applicant submitted adopting his written submissions and relying on his client’s pleadings and affidavits n support and further affidavits relying on several constitutional, statutory and case law decided. He submitted thatthe impugned criminal proceedings are illegal.

89. That the applicant  had sought  for an injunction  to prohibit  the 1st interested  party from  trespassing  into his land when  his premises  were invaded by the  3rd respondent and arraigned before the Kiambu Law Courts but that the Director of Public Prosecutions   intervened  and terminated the said proceedings for want of authority. Further, that the Respondents still followed the exparte applicant and charged him with the same offences which had been earlier withdrawn against him before carrying out investigations or coming up with any new evidence., after five years which contravenes Section 7  of the Fair  Administrative  Action.

90.  It was further submitted on behalf of the exparte applicant that he is a victim and that there is a link between  the criminal  charges  and  the Petition  to remove Mr Keriako Tobiko, the Director of Public  Prosecutions  filed with the Public Service  Commission on 5th April  2016. Reliance was placed on Judicial Service Commission v Gladys Shollei & Another. Counsel submitted that the applicable test is real danger and suspicion of bias.

91. The exparte applicant maintained that the decision to charge the applicant   was so irrational and unsupported by facts hence it is not true that courts cannot be concerned with merits, as was held in the Suchan Investments. Limited vs The Ministry of National Heritage & Culture and 3 others [2016]eKLR where it was held, inter alia, that:

“ the common law  principles of administrative review have now been subsumed under Article 47 of the Constitution and section 7 of the Fair Administrative Action Act. In this regard, there are no two systems of law regulating administrative action-the common law and the Constitution-but only one system grounded in the Constitution. The Courts power to statutorily review administrative action no longer flows directly from common law, but inter alia from the constitutionally mandated Fair Administrative Action Act and Article 47 of the Constitution.”

91. It was further submitted that the applicant could not have   just stolen goods which he had distressed for rent and that that Counts 1, 7 and 8 of the exhibited charge sheet were not sanctioned by the Director of Public Prosecutions hence the decision to charge the applicant was irrational.

92. On the mandate of the court in judicial review application it was submitted that the case of Joram Mwenda Qantai v Chief magistrate’s Court, Nairobi [2007]eKLR where it was stated:

“Equally so the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. It was succinctly put in the Stanley Munga Githunguri v R [1985] KLR 91 that if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious the judge has the power to intervene and that the High Court has an inherent power and duty to secure fair treatment for all persons who are  brought before the court or to a subordinate court and to prevent an abuse of the process of the court.

93. [2014]eKLRwhere it was held:

“Although the DPP has the discretion to determine which complaint should lead to a criminal prosecution, the High Court may intervene where that discretion has been abused or where the effect of the proceedings is the abuse of court proceedings.”

94. On when prohibition should issue, reliance was placed on Kuria &3 others v AG[2002]2 KLR 69where the court held:

“A stay by an order of prohibition should be granted  where compelling an accused person to stand trial would violate the fundamental principles of justice which underlie on society’s senses of fair play and decency and or where the proceedings are oppressive or vexatious…. The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its course independence and impartiality……..”

95. The exparte applicant’s counsel submitted that the DPP had acted with bias contrary to the aspirations of Article 157 of the Constitution as read with section 4 of the Fair Administrative Action Act by failing to act in the public interest and  abusing the legal process. Reliance was placed on R v DPP& Another Exparte Patrick Ogola Onyango &8 others[2016]eKLR.

96.  Further, it was submitted that the charge of forgery is irrational because the Commissioner of Lands had filed a defence and described the process by which the title was obtained hence the test is whether the decision is so grossly unreasonable (Wednesbury’s) unreasonableness. Reliance was placed on Suchan Investments Ltd [supra] and Rv Inspector General of Police Exparte Patrick Nderitu [2013] eKLR.

97. It was also submitted that there is also bad faith and malice as explained in the verifying affidavit which assertions were not rebutted by the respondents.

98.  On legitimate expectations, it was submitted on behalf of the exparte applicant that the Director of Public Prosecutions had never given any findings of investigations of complaints by applicant and that there is also material error of fact and abuse of legal process and vexatious criminal process and conniving between the 1st interested party and the respondents to give the interested party an undue advantage in the civil case which is pending. Counsel urged the court not to be used to settle personal scores or to aid a party prove his claim in a pending civil matter and therefore urged the court to grant the orders sought in the notice of motion.

99. On behalf of the 2nd Interested party National land Commission Mr Mbuthia submitted that the issue of whether criminal proceedings should proceed or not   is upon the court. It was submitted that the Commission was only investigating a complaint on alleged fraudulent acquisition of the subject tile but were prohibited by the court on account that there were pending civil suits over the same subject matter vide  Judicial Review 376/2014 hence the Commission did not have an opportunity to determine the legality  of the title.

100. On behalf of the DPP, Mr Ashimosi submitted opposing the notice of motion and contending that what the DPP did was to act on a complaint of forgery and that the tenancy agreement was also found to be a forgery yet it was  used to evict the complaint from premises on 18th September 2011.

101. It was submitted that the Director of Public Prosecutions was appointed on 1stJuly 2011 and that prior to that date; it is the police who used to charge suspects in court without reference to the Director of Public Prosecutions.  Mr Ashimosi submitted that there is good faith as the Director of Public Prosecutions withdrew the first case to allow investigations to be carried out afresh to establish whether there was any reason to charge the exparte applicant which decision was made on 6th April 2016.

102. It was submitted that the applicant used a declaratory order to get registered as owner of the land but upon investigations being carried out, it was discovered that in  2009  December, the applicant  made an  entry  No. 4  -order  raising a prohibitory order on the title which  entry  was subjected  to the documents  examiner  and  found to  be a forgery.

103. In addition, that the Survey Plan and computation used to give a Deed Plan to the applicant were also found to be forgeries.  It was also contended in submission by Mr Ashimosi that the exparte applicant was also alleged to have forged signatures of Land Registrars and therefore it was upon the investigation report that the Director of Public Prosecutions decided to charge the exparte applicant with various offences in the charge sheet in line with Article 157 (ii) of the Constitution.

104. It was submitted that the exparte applicants had not proved or demonstrated bias as alleged. Counsel urged the court to look at the evidence before Director of Public Prosecutions to see whether there was irrationality or material error of facts.  It was also submitted that this  matter  was subject of a petition for removal of the Director of Public Prosecutions and subject of Judicial Review proceedings in court.

105. In the DPP’s view, there is no reason for this court to interfere with the Director of Public Prosecution’s decision as the DPP has not breached any law or constitutional provisions.  It was submitted that this court is a Judicial Review court hence it cannot evaluate evidence but look at the process of decision making.

106. It was also submitted that the mere pendency of a civil suit is not a bar to the criminal case.

107. On the whole, Mr Ashimosi submitted that the applicant had failed to demonstrate why the court should interfere with the Director of Public Prosecution’s decision and urged the court to dismiss the applicant’s application.

108.  Mr Kimani Kiragu advocate submitted on behalf of the 1st interested party opposing the exparte applicant’s motion and relying on several authorities.

109. According to Mr Kiragu Kimani, the function of the Judicial Review court is to enforce the Rule of Law to ensure public bodies discharge their functions strictly in accordance with the law and therefore the courts must be very slow to interfere with exercise of powers by public bodies including holders of constitutional offices.

110. In this case, it was submitted that the applicant must demonstrate lack of reasonable or probable cause for mounting a prosecution.

111. In the prayer for declaration counsel urged the court  to look at the statutory statement and find that Certiorari and Prohibition are anchored on this prayer. He urged the court to find that there is no power to issue declaration under the Law Reform Act.

112. It was also submitted that Articles 22 and 23 of the Constitution are inapplicable though cited since there is no allegation of infringement of rights under Articles of the Constitution cited.  Reliance was placed on the Sanghani Investments Ltd  v Officer incharge of Nairobi Remand and Allocation Prison[2007]1EA354.

113. It was further submitted on behalf of the 1st interested party that Section 87(a)  of the Criminal  Procedure Code as  read with  Article 157  of the Constitution gives discretion to the Director of Public Prosecutions to institute/terminate criminal proceedings and that a withdrawal under Section  87(a)  is  not a bar  to any future  criminal prosecution.  Reliance was placed on Republic v Director of Public Prosecutions exparte Wilfred Thiongo Njau[2015]eKLR.

114. It was submitted that the rationale of Section 87(a) of Criminal Procedure Code is to allow the Director of Public Prosecutions time to consider the matter further   hence the court should not interfere.  Reliance was placed on George Taitumu vs CM’s Court Kibera&2 others[2014]eKLR on the duty of Director of Public Prosecution in instituting fresh proceedings after withdrawal of charges against an accused person.

115.  It was submitted that there is no complaint of prejudice on account of a fresh case being instituted and that moreso, the trial  had commenced  and the  1st and  2nd  witnesses  had been cross  examined  robustly.

116. It was submitted in concession that albeit there  are 2 civil suits  between   the  interested  parties  and the applicant, but that they  are  not a bar  to criminal proceedings as Section  193A of the  Criminal  Procedure  Code does allow the dual process. Reliance was placed on Kuria & 3 Others vs Attorney General [2002]KLR.

117.  It was submitted that it had not been demonstrated how and which rights of the applicant are under threat.

118.  According to Mr Kimani Kiragu, the National Police Service is charged with undertaking investigations and therefore there must be proper reasons to interfere.

119. In this case, it was submitted that there is reasonable suspicion to charge the applicant as there are clearly questionable entries at the Lands Office and the correct forum to establish who did it is the criminal trial not in the civil suit.

120. Submissions were made that there must be clear grounds to interfere with constitutional mandate of the Director of Public Prosecutions and that the onslaught against the Director of Public Prosecutions is unmerited.

121. Further, that the Director of Public Prosecutions cannot down his tools when a petition is presented for his removal and that there is no link between the decision to prosecute and the petition against him.  On the issue of tweets in the social media, it was submitted that tweets cannot be the basis of challenge of exercise of Director of Public Prosecution’s powers under the Constitution.

122. It was also submitted that the Director of Public Prosecutions prosecutes. He does not decide the case which can only be decided by the trial Magistrate independently after hearing the evidence adduced to reach a determination. Further submission was made to the effect that no estoppel   was created by the recommendation to charge. The applicant and that the  Director of Public Prosecutions can increase or decrease charges subject to the magistrate’s determination., as there is no statute of limitations in criminal cases although delay is a factor.  Further, that the time flew by litigation initiated by the applicant i.e. JR 376/2014 which was decided on 9th June 2014.

123. It was submitted that the above JR matter, Korir J  stated that investigations may assist in shedding light on facts relating to the title in question, and that the affidavits on record are clear that there was flaw in the title and that the National Land Commission is neither here nor there ast they are changing positions from time to time. According to Mr Kiragu Kimani, the applicant who comes to court to stop prosecution must demonstrate that there is no reasonable cause to prosecute him or that he will suffer prejudice and that our criminal justice  system  has  safeguards  of ensuring  fairness as was held in the case of Republic  vs  Attorney General & 4 others exparte Kenneth Kariuki  Githii[2014]eKLR.

124. Counsel submitted that the SuchanInvestments [supra] case is relevant but that the court has not moved away  from  traditional Judicial Review remedies  and   principles.  He urged the court to dismiss the application with costs.

125. In a rejoinder, Mr Mude Counsel for the exparte applicant submitted that the issues raised by Mr Ashimosi are addressed in the exparte  applicant’s affidavits and that the issue of declaratory orders is covered by Section 11 of the Fair Administrative Actions Act.

126. Citing the case of Bitange Ndemo v DPP and others [2016] eKLR decided by this court, counsel submitted that the court also granted several declaratory orders.  He submitted that the prayers are distinct, and are not predicated on any other order.  He maintained that Section 193A of the Criminal Procedure Code is relevant in proceedings conducted in good faith.

127. Mr Mude maintained that no investigations were conducted in the period of 5 years preceding the criminal charges and that JR No. 376/2014 was against National Land Commission not criminal proceedings.  Further, that Investigations referred to by Honourable Korir J were not to mount criminal proceedings.  He urged the court to grant the orders sought and stay of criminal proceedings pending delivery of judgment.

DETERMINATION

128. I have considered the exparte applicant’s motion and the responses and counter responses together with the written and oral submissions and all the authorities relied by all the parties’ advocates. In my humble view, the main issue for determination is whether the exparte applicant is entitled to the judicial review orders sought. There are other ancillary questions that the court will endeavour to resolve.

1. From the onset, this court does  acknowledge that  judicial review remedy is no longer in the domain of the common law remedies but a constitutional remedy espoused in Articles 22,23,47 and 50 of the Constitution. In Judicial Services Commission Vs Mbalu Mutava & Another [2015] e KLR CA 52/2014 the Court of Appeal held, inter alia that:

“ Article  47(1) marks an  important  and  transformative  development   of administrative   justice  for, it not  only lays  a constitutional  foundation for control of the powers of state organs and other administrative  bodies, but also  entrenches  the right to fair administrative action in the Bill of rights.  The right to fair administrative  action is a reflection of some of the  national values  in Article  10  of the Constitution  such as  the rule  of law,  human dignity, social  justice, good governance, transparency and accountability.  The  administrative  actions of  public officers, state  organs  and other  administrative   bodies  are now subjected by Article 47(1) to  the principle of   constitutionality  rather than  to the doctrine of ultra vires from  which administrative  law under  common law   was developed.

129. The court further acknowledges that the criminal justice system, and  therefore, criminal trials, are a matter of  public interest  and are conducted  in the public  interest, to ensure  that the  Rule of law, one of the pillars  of  good governance   is protected and promoted.  It is for that reason that the makers of  the Constitution of Kenya  2010  deemed  it fit to enshrine  therein several state institutions such as the  office of the  Inspector General of Police and the Director of  Public  Prosecutions, to  be the custodians of the criminal justice  system  in ensuring  that the Rule of Law is protected  and promoted . SeeAburili J. in Bitange Ndemo v DPP &Others[supra].

130. The DPP and DCI are two state agencies/independent offices that function in the broader society and not in isolation.  On the other hand, the two state agencies work with the courts in the administration of justice. The courts of law and tribunals exercise  judicial or quasi-judicial authority  which  is donated  by the people of Kenya to administer  justice  to all  irrespective  of status;  to ensure expeditious  justice; to  administer  justice without undue regard to  procedural  technicalities and to  ensure that  the purpose and principles  of the Constitution  shall be  protected  and promoted.

131. All state organs, offices and persons are subject to the authority of the Constitution.  The Director of  Public  Prosecutions  exercises power  donated by Article  157  of the Constitution and the Office of Director of  Public  Prosecution Act  to among  others:-

a) Institute  and undertake  criminal  proceedings against any person before  any court (other than a Court Martial) in respect  of any offences  alleged to  have been  committed;

b) Take over  and continue  any criminal  proceedings   against any  person before  any court that have been  instituted  or undertaken by another  person or  authority, with the permission of  the  person or authority;

c) With permission of the court, discontinue  at any stage  before  judgment  is  delivered any criminal proceedings instituted  by the Director of  Public  Prosecution under paragraph b of  Article  157(6)  of the Constitution.

132. And in the exercise of the powers conferred  by the Constitution, the Director of  Public  Prosecutions shall  have regard to the public interest, the interests of the administration of  justice and  the need  to prevent  and avoid abuse  of the legal  process.

133. The Director of  Public  Prosecutions is also empowered to work without  being under  the direction of or control of any person or authority and to apply all principles  and values  of the Constitution and to be  subject  only to the Constitution.

134. On the other hand, the Director of Criminal Investigations is an office under the Inspector General of Police and is responsible for investigating any complaints lodged by members of the public to establish whether a crime has been committed. It derives its powers under section 24 of the National Police Service Act.

135. The law in proceedings of this nature is now settled.  It is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office by Article 157 of the Constitution. It should also be clearly understood that the sheer fact that the continuing or anticipated criminal proceedings are in all likelihood bound to fail, is not a ground for halting those proceedings by way of judicial review.

136. Judicial review proceedings are now remedies recognized by Articles 22, 23, 47 and 50 of the Constitution of the Constitution. The remedy is available where it is clear that the process taken in performing a duty of a public nature or other administrative action as stipulated in Article 47 of the Constitution and the Fair Administrative Action Act is illegal, irrational, with procedural impropriety or laced with malice and malafides. It is mainly concerned with the decision making process.

137. That an applicant has a good defence in the criminal process perse is a ground that ought not to be relied upon by a Court in order to stop a criminal process commenced or undertaken bona fides since that defence is open to the applicant in those criminal proceedings. However, if the applicant demonstrates that the criminal proceedings instituted against him constitute an abuse of process, the Court will not hesitate to bring such proceedings to an end through judicial review.

138. Nonetheless, although the power to prosecute is not absolute, the fact that the facts constituting the basis of a criminal proceeding may similarly be a basis for a pending civil suit is no ground for staying or stopping the criminal process if the same facts can similarly be a basis for a criminal offence. This is what section 193 A of the Criminal Procedure Code underscores. Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim. This position is fortified by Section 193A of the Criminal Procedure Code  which stipulates:

193 A. Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

139. In judicial review proceedings, a court may grant the remedies of certiorari, mandamus, prohibition, declaration, directory orders and injunctions among others as stipulated in the Fair Administrative Action Act.

140. However, as was held in R vs. Monopolies and Mergers Commission Ex Parte Argyll Group Plc [1986] 1 WLR 763 and Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), in the exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration.

141. The Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013]eKLR held:

“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings" It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations”

142.  In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:

“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

143.  In Meixner & Another vs. Attorney General [2005] 2 KLR 189,the same Court of Appeal pronounced that:

“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion if acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution... Judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power. Having regard to the law, the finding of the learned judge that the sufficiency or otherwise of the evidence to support the charge of murder goes to the merits of the decision of the Attorney General and not to the legality of the decision is correct. The other grounds, which the appellants claim were ignored ultimately, raise the question whether the evidence gathered by the prosecution is sufficient to support the charge. The criminal trial process is regulated by statutes, particularly the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards stipulated in section 77 of the Constitution to be observed in respect of both criminal prosecutions and during trials. It is the trial court, which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. Had leave been granted in this case, the appellants would have caused the judicial review court to embark upon examination and appraisal of the evidence of about 40 witnesses with a view to show their innocence and that is hardly the function of the judicial review court. It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.”

144. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, it was held bythe High Court:

“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilization is far that which the courts indeed the entire system is constitutionally mandated to administer...In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the applicants in order to settle the civil dispute. It is further alleged that the criminal prosecution is an abuse of the court process epitomized by what is termed as selective prosecution by the Attorney General. It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilize the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The intrusion of judicial review remedies in criminal proceedings would have the effect of requiring a much broader approach, than envisaged in civil law...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilized. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop the from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...Under section 77(5) of the Constitution it is a constitutional right that no person who has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of the offence. What is clear from this constitutional right is that it prevents the re-prosecution of a criminal case, which has been determined in one way or another. However, it does not mean that a civil suit and a criminal case cannot co-exist at any one particular time. This is because the section envisages the re-prosecution of a criminal case substantially dealt with either in fact or law, a case in which issues have been laid to rest. There is no mention in the section that the simultaneous existence of a civil and criminal cases is constituting double jeopardy. The courts have, however stated that the power to issue an order of prohibition to stop a criminal prosecution does not endow a court to say that no criminal prosecution should be instituted or continued side by side with a civil suit based on the same or related facts, or to say that a person should never be prosecuted in criminal proceedings when he has a civil suit against him relating to matters in the criminal proceedings...The normal procedure in the co-existence of civil and criminal proceedings is to stay the civil proceedings pending the determination of the criminal case as the determination of civil rights and obligations are not the subject of a criminal prosecution...A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution...In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution. It is not enough to simply state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. In absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the applicants might not get a fair trial as protected in the Constitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts. The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial... In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.”

145. In Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, it was held:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”

146. Iam equally in agreement with the decision in R vs. Attorney General exparte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 where the court held:

“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.

147. On the duty of the police to investigate complaints, the court in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR stated:

“The police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.

148.  In Republic Vs Attorney  General & Others Exparte Diamond Hashim Lalji &  Ahmed  Hashim  Lalji   Odunga  J noted   that the court ought  to be  extremely cautious in its  findings  so as not to  prejudice  the intended  or pending  criminal  proceedings hence  the applicant  should appear  before  a competent  court where  he will be  accorded  a fair  trial and a fair  hearing  and  if dissatisfied  he could appeal.

149. prosecute criminal offences and to the Police to investigate allegations of criminal activity are not to be lightly interfered with, that discretion must be properly exercised and where the Court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence such as with a view to forcing a party to submit to a concession of a civil dispute, the Court will not hesitate to bring such proceedings to a halt.

150. However, except in claims of violations of fundamental human rights and freedoms which must be proven, judicial review proceedings do not deal with the merits of the case but with the process of decision making. In other words judicial review mainly determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before the decision was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters, whether the decision taken was rational, conforms with the established law.

151. To that extend, where the court establishes that the application for judicial review was instituted with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties, the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. See Inspector General of Police & another v East African Portland Cement Co. Limited & 3 others [2016] eKLR.

152.  Judicial review proceedings are not the proper arena for determination of the innocence or guilt of the exparte applicant as that is the role and mandate of a court exercising criminal jurisdiction and therefore where in the proceedings the court is treated to a heated debate as to whether or not there is sufficient evidence to warrant the criminal charges initiated against the exparte applicant in the criminal proceedings, the court exercising judicial review jurisdiction will decline the temptation  of making such findings of guilt or innocence of the applicant. To do so in my humble view would be tantamount to abusing the judicial process and usurpation of powers of a court exercising criminal jurisdiction, which is expressly prohibited by section 8 of the Law Reform Act, Cap 26 Laws of Kenya.

153. This court in its exercise of judicial review jurisdiction is essentially concerned with the question of fairness to the applicant in the institution and maintenance of the criminal proceedings and once the Court is satisfied that the  criminal proceedings are bona fides and that the same are being conducted in a fair manner, this court ought not to usurp the jurisdiction of the trial Court and or descend into the arena of the trial by determining the sufficiency or otherwise of the evidence to be adduced against the applicant.

155. Where, however, it is clear that there is no foundational basis at all or that the prosecution’s evidence on the face of it, even if  it were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court aiding and abetting abuse of the court process by the prosecution and the investigation arm of the state.

156. Therefore the determination of this motion by the exparte applicant must be seen in light of the foregoing decisions and principles of law espoused, and it is incumbent upon the ex parte applicant to demonstrate to the satisfaction of this court that the discretion given to the DPP  and  the DCI  to investigate the 1st interested party’s complaint and to prosecute the applicant for  the alleged crime(s) ought to be interfered with by this court.

157.  Odunga J in George Joshua Okungu & another vs. Chief Magistrate’s Court Anti-Corruption Court At Nairobi & another [2014] eKLR  citing with approval the decision in R vs. Attorney General exparte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001adopted the holding that :

“The function of any judicial system in civilized nations is to uphold the rule of law. To be able to do that, the system must have power to try and decide cases brought before the Courts according to the established law. The process of trial is central to the adjudication of any dispute and it is now a universally accepted principle of law that every person must have his day in court. This means that the judicial system must be available to all...Although the Attorney General enjoys both constitutional and statutory discretion in the prosecution of criminal cases and in doing so he is not controlled by any other person or authority, this does not mean that he may exercise that discretion arbitrarily. He must exercise the discretion within lawful boundaries...Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognized, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognized lawful parameters...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious...In doing so the Court may be guided by the following principles: (i). Where the criminal prosecution amounts to nothing more than an abuse of the process of the court, the Court will employ its inherent power and common law to stop it. (ii). A prosecution that does not accord with an individual’s freedoms and rights under the constitution will be halted: and (iii). A prosecution that is contrary to public policy (or interest) will not be allowed...A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case. Evidence of extraneous purposes may also be presumed where a prosecution is mounted after a lengthy delay without any explanation being given for that delay...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...A criminal prosecution that does not accord with an individual’s freedoms and rights, such as where it does not afford an individual a fair hearing within a reasonable time by an independent and impartial court, will be the clearest case of an abuse of the process of the Court. Such a prosecution will be halted for contravening the constitutional protection of individual’s rights...In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.”[Emphasis added].

158.  In the Joshua Okungu case (supra) the Court further held, adopting  Republic vs. Minister for Home Affairs and Others Ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 [2008] 2 EA 323:

“Whereas we appreciate the fact that the decision whether or not to prosecute the petitioners is an exercise of discretion this Court is empowered to interfere with the exercise of discretion in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable… Under Article 47(1) of the Constitution, “every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” It is therefore imperative that criminal investigations be conducted expeditiously and a decision made either way as soon as possible. Where prosecution is undertaken long after investigations are concluded, the fairness of the process may be brought into question where the Petitioner proves as was the case in Githunguri vs. Republic Case, that as a result of the long delay of commencing the prosecution, the Petitioner may not be able to adequately defend himself. Whereas the decision whether or not the action was expeditiously taken must necessarily depend on the circumstances of a particular case, on our part we are not satisfied that the issues forming the subject of the criminal proceedings were so complex that preference of charges arising from the investigations therefrom should take a year after the completion of the investigations. From the charges leveled against the Petitioners, the issues seemed to stem from the failure to follow the laid down regulations and procedures in arriving at the decision to sell the company’s idle/surplus non core assets. In our view ordinarily it does not require a year after completion of investigations in such a matter for a decision to prosecute to be made. That notwithstanding, it is not mere delay in preferring the charges that would warrant the halting of the criminal proceedings. Rather, it is the effect of the delay that determines whether or not the proceedings are to be halted. In this case, there is no allegation made by the Petitioners to the effect that the delay has adversely affected their ability to defend themselves. In other words, the Petitioners have to show that the delay has contravened their legitimate expectations to fair trial. The effect of the long delay in prosecuting the applicant was considered in Githunguri vs. Republic Case, where the Court expressed itself as follows:

“We are of the opinion that two indefeasible reasons make it imperative that this application must succeed. First as a consequence of what has transpired and also being led to believe that there would be no prosecution the applicant may well have destroyed or lost the evidence in his favour. Secondly, in absence of any fresh evidence, the right to change the decision to prosecute has been lost in this case, the applicant having been publicly informed that he will not be prosecuted and property restored to him. It is for these reasons that the applicant will not receive a square deal as explained and envisaged in section 77(1) of the Constitution. This prosecution will therefore be an abuse of the process of the Court, oppressive and vexatious…If we thought, which we do not, that the applicant by being prosecuted is not being deprived of the protection of any of the fundamental rights given by section 77(1) of the Constitution, we are firmly of the opinion that in that event we ought to invoke our inherent powers to prevent this prosecution in the public interest because otherwise it would similarly be an abuse of the process of the Court, oppressive and vexatious. It follows that we are of the opinion that the application must succeed in either event…….A prosecution is not to be made good by what it turns up. It is good or bad when it starts. The long and short of it is that in our opinion it is not right to prosecute the applicant as proposed.

159. As earlier stated, the scope of judicial review was clearly set out by Lord Diplock in the persuasive authority of Council for Civil Service Unions v Minister for Civil Service [1985] AC 374 at 401 D when he stated:

“Judicial review has I think developed to a stage today when one can conveniently classify under three heads, the grounds upon which administrative action is subject to control by judicial review: the first ground I will call illegality, the second irrationality and the third procedural impropriety.

By illegalityas a ground for judicial review, I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.

By irrationality, I mean what can now be succinctly referred to as Wednesbury (unreasonableness) it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it… I have described the third head has procedural ‘impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.”

160. This court is alive to the fact that judicial review remedies being discretionary the court would not grant them in certain circumstances even if the same are merited.  As was appreciated in Halsbury's Laws of England 4th Edition Vol. 1 (1) paragraph 12 pg. 270:

“The remedies of quashing orders (formerly known as order of certiorari); prohibition orders (formerly known as orders of prohibition; mandatory orders (formerly known as orders of mandamus) are all discretionary. The court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief, the court will take into account the conduct of the party applying and consider, whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. [emphasis added].

Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or further, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question; would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfillment. The court has an ultimate discretion whether to set aside the decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief. Similarly, where public bodies are involved the court may allow a temporary decisions to take their course, considering the compliance and intervening if at all later and in retrospect by declaratory orders.”

161. In Republic v National Transport & Safety Authority & 10 Others Exparte James Maina Mugo [2015] eKLR Odunga J held inter alia:

“The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the court would not have jurisdiction in a judicial review proceedings to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil courts” or“criminal courts.” [emphasis added].

162.  In Joram Mwenda Guantai v The Chief Magistrate Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170 the Court of Appeal held:

“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to discontinue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not however lie to correct the course, practice or procedure of an inferior tribunal or wrong decision on the merits of the proceedings – equity so the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all persons who are brought before court or to a subordinate court and to prevent an abuse of the process of the court.”

163. The above cases demonstrate the role of judicial review as a procedure that courts use to supervise the exercise of public power to ensure those who exercise that power do not exceed constitutional or statutory jurisdiction. It is also clear from the principles espoused in the above cited cases that judicial review is concerned with reviewing the decision which has been made without authority or in excess thereof by a public body in contravention of individual rights.

164. The factors and requirements that an applicant seeking redress has to satisfy for the courts to entertain and review the decision of a public body have also been elucidated in the cases discussed hereinabove.

165.  A fundamental principle in judicial review cases is that the concern of the courts has nothing to do with the merits of the decision but the process in arriving at that decision. The High Court's supervisory jurisdiction in judicial review cases is to evaluate the fairness of the action or decision complained of with a view to varying or setting it aside to ensure that fair treatment is accorded to the claimant. What the courts do in judicial review is to ensure that an applicant before it is given fair treatment by the body or individual complained of. The judicial review jurisdiction does not extend to decide the merits of the matters in question.

166. In this case which has been aggressively prosecuted by the exparte applicant through his counsel Mr Mude, the court  must confine itself to the questions of whether the respondents’ decision to investigate and or prosecute the exparte applicant over matters which are pending in civil proceedings exceeded their  powers; breached the exparte applicant’s constitutional and legal rights or legitimate expectation; committed an error of law; committed a breach of natural justice; reached a decision which it could reasonably not have reached; or amounts to abuse of  their powers or acted malafides or was biased. In a persuasive authority ofHangsraz Mahatma Gandhi Institute & 2 Others [2008] MR 127it was stated:

“Judicial Review is not a fishing expedition in unchartered seas. The course had been laid down in numerous case laws. It is that this court is concerned only with reviewing, not the merits of the decision reached, but of the decision making process of the authority concerned. It would scrutinize the procedure adopted to arrive at the decisions to ascertain that it is in uniformity with all elements of fairness, reasonableness and most of all its legality. It must be borne in mind and which had been repeated many times by this court that it is not its role to substitute itself for the opinion of the authorities concerned. This court on a judicial review application does not act as a court of appeal of the decision of the body concerned and it will not interfere in any way in the exercise of the discretionary power which the statute had granted to the body concerned. However it will intervene when the body concerned had acted ultra vires its powers, reached a decision which is manifestly unreasonable in the Wednesbury sense; had acted in an unfairly manner and the applicant was not given a fair treatment.”

167. terminated. On the part of the Respondents’ it is contended that the DPP did withdraw the charges earlier on initiated by the Police without his participation as required under the new constitutional order, having come into office from 1st July 2011.  In Rv DPP & another exparte Wilfred Thiongo Njau[2015] Eklrthe court made it clear and I agree that “the DPP is allowed to withdraw from the prosecution of any person  but such withdrawal if done before the person is placed on his defence shall not operate as a bar to subsequent proceedings against the person on account of the same facts.”

168.  Earlier on, a similar holding was arrived at in George Taitumu v Chief MAGISSTRATES Court Kibera &2 others [2014] eKLR where it was held that “the DPP and the police are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence. Likewise, after discharge of the accused under section 87(a) of the Criminal Procedure Code, the court cannot prevent further the investigation into the subject of the trial.”

169.  In this case the exparte applicant claims that he was arrested and charged with the same criminal offences that he had been discharged of yet no new evidence was availed. He is not saying that new evidence was introduced but that he was not given an opportunity to interrogate that new evidence or adequate time to prepare his defence in a case which the respondents assert is part heard before the Magistrates court in Kiambu.

170. In addition, this case can be distinguished from the Stanley Githunguri [supra] case for reasons that unlike in the Githunguri case, there was no foreclosure in this case. It is also  apparent from the facts disclosed herein that at the time that the applicant was first charged with the criminal offence, the DPP was an office under the Attorney General and in the transitional period after its establishment with the promulgation of the 2010 Constitution. Prior to 2010 August 27th  prosecutorial powers were vested in the Attorney General who could only delegate to the DPP as a department in that office. In the instant case, I find no evidence that the DPP was seized of this matter as an independent office  under Article 157 of the Constitution and that when he withdrew the earlier charges, he had made up his mind to close the inquiry but that he was reopening investigations resulting from discovery of new evidence without according  the person sought to be charged an opportunity to comment on the fresh evidence. InRepublic v Attorney General & 4 others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR  it was held :

“Where a decision has been made to close an inquiry file, it is my view that before reopening the investigations resulting from discovery of new evidence the people sought to be charged ought to be given an opportunity to comment on the fresh evidence.”

171.  The applicant has claimed that the decision to prosecute him is  biases and malicious and that it is influenced by the 1st interested party, intended to malign his good name and that it calls for his prosecution before the documents which the DPP asserts as forming the basis of the criminal charges had been authenticated.  From the material placed on record, there is no conclusive assertion that there is other evidence other than what the DPP has lined up before the Magistrates Court for the prosecution of the exparte applicant. Furthermore, as at the time the earlier charges which had not been initiated by the DPP were withdrawn, no witness had testified in that matter against the exparte applicant. There is absolutely no law or principle of law that bars the DPP from charging the exparte applicant afresh based on the same facts since it is clear that the DPP had not sanctioned the earlier actions taken by the Police.

172.  Iam therefore of the view that the DPP was within his constitutional and statutory mandate in framing fresh charges though similar or the same as the earlier charges against the exparte applicant upon perusing the investigations file and satisfying himself that there was sufficient material and legal basis for mounting a prosecution against the exparte applicant.

173. In my humble view, the applicant is seeking to wholly have his defence of innocence in the pending criminal trial which is part heard determined by this court. To do so, in my humble view, would be killing the criminal justice system in our country as every criminal case preferred against any person who is believed to have committed an offence will be prosecuted through judicial review forum thereby rendering the courts exercising criminal jurisdiction otiose.

174.  In my humble view, the applicant is attacking the sufficiency of the evidence to be adduced before the trial court and not malafides of the decision to charge him.

175.  In this case, unlike in the Bitange Ndemo[supra] case, I find that there are serious contested issues raised by both sides on whether or not Mrs Helen Fear sold the land in question to the 1st interested party or to the exparte applicant and therefore who in principle holds good title to the disputed land which is a matter outside the jurisdiction of this court to determine. In addition, since there are allegations of fraud which is both a criminal offence and actionable in a civil matter, it is the view of this court that that is a matter that is best left to the criminal trial court to determine based on the evidence to be adduced and subjected to cross-examination.

176. In my humble view, it would be miscarriage of justice if this court were to make a finding of innocence of the exparte applicant based on the documents filed before it whose makers have no opportunity to be examined. The case involves documents examined by handwriting experts and the reports thereof and to delve into the depths of those documents would prejudice not only the criminal proceedings but also the pending civil suits.

177. . Although the applicant has delved too much into the relationship between his prosecution and the filing of a petition with the Public Service Commission to remove Mr Keriako Tobiko the DPP, this court is unable to find any personalized link that is laced with any form of malice between the petition for removal of the DPP and the criminal prosecution of the applicant which latter matter had commenced long before the DPP took oath of office in July 2011.

178.  There is also on court record disputed material on whether the alleged theft of the 1st interested party’s property was a proclamation by an auctioneer distressing for rent on behalf of the exparte applicant or masquerading as such agent or a robbery in view of the fact that the exparte applicant himself denies ever signing any tenancy agreement with the 1st interested party’s daughter Angeline, hence posing the question as to who would have claimed for rent from the occupant of the premises which the applicant claims is his, especially when the order by Oganyo Hon, Principal Magistrate in CM Misc. Appl No 577 of 2011 is clear that the applicants for the order were the Auctioneer Pyramid Auctioneers and the exparte applicant herein Mr Muktar Saman Olow. And if the applicant did not have any tenancy relationship with the 1st interested party and or his daughter Angeline then the question is why would he go to proclaim for unpaid rent? As such,  it would not be in order for this court to make conclusions that  the charge of stealing is not warranted or whether it has any foundational basis as against the exparte applicant in view of the disputed matters all touching on alleged forgeries by the exparte applicant.

179. On allegations that the charge of forgery of the signatures of persons working at Lands Ministry cannot stand as those Lands Officers have not complained, the record is clear that the Lands Officers whose signatures were allegedly forged are key witnesses in the criminal trial  and their specimen signatures were examined and reports  presented to the DPP  which informed the basis of the forgery charges and therefore this court wonders what kind of complaint the exparte applicant expects the Lands Officers to have lodged. The details of the evidence is in their witness statements which in my view is a substantive evidential matter for the trial court and which this court must refrain from making any finding which might prejudice the pending criminal and civil cases.

180.  Equally, the allegation that the applicant is the one who has a genuine title and that the Commissioner for Lands admitted this fact in the defence filed in the consolidated civil suits which are still pending, this court’s view is that that as the issue of who between the applicant and the 1st interested party has the right to the suit property is before the civil suits pending in court, and as there are serious allegations on how the applicant obtained the contested title to the suit land, only  the investigations arm can assist bring forth the truth of the matter.  The serious issues raised go to the merit of the cases both at the criminal trial and the merits of the civil suits which are consolidated and pending before the magistrates’ court and the Environment and Land Court respectively. Further, as there are allegations that the signatures of not one but more Land Registrars were forged  by the exparte applicant to obtain title to the suit land, the appropriate  for a for determining whether or not there was a forgery is the criminal trial.

181. The court further notes that the “publication” of the charge against the applicant in the social media was by way of information by one of the prosecutors and that in itself is not evidence of malice. Examining the DPP’s letter of 19th October, 2011 just after he had taken oath of office in response to the complaints raised by the exparte applicant and the letter dated 31st October, 2011 fuming at the DCI for the latter’s refusal to submit to him the investigations file on the matter, and even ordering for the termination of the earlier charges preferred against the applicant before perusing the said file, Iam persuaded that the DPP was interested in getting to the bottom of the matter before taking any action of sanctioning any prosecution of the exparte applicant. I can read no malice or ulterior motive on his part.

182.  Although the applicant maintains that the criminal case pending against him is intended to prejudice his rights to property in the civil cases, this court is unable to find any evidence that the ongoing trial is geared towards prejudicing his rights in the civil suit. He has not raised any issues against the trial court or his right to a fair trial. The fact that the criminal trial might unearth evidence to prove the forgery allegations in the civil suit in itself is not a violation of his rights in the civil suit. Further, the exparte applicant ought to know, as he is ably represented that the standard of proof in criminal cases is higher than that required in civil cases hence his innocence trial in the criminal case would not necessarily assist him get judgment in his favour in the civil cases.

183. On the other hand, fraud is a complex crime which requires forensic investigations by experts and the investigators having done do, there is no reason why they should not be allowed to place that material before the competent court of law to determine whether the exparte applicant was or was not involved in the alleged fraudulent acquisition of the suit land.

184. This court has not found any credible material upon which it can conclude that the DPP is abusing his powers in mounting the prosecution of the exparte applicant. This court is equally unable to find that the Respondents or DPP in particular have breached the applicant’s legitimate expectations as there is no evidence that the DPP, after terminating the earlier charges which had been instituted without his involvement had promised never to cause the applicant to be prosecuted for the alleged offences in the event that his perusal of the investigations file revealed that there was sufficient material to mount a prosecution.

185. The law has never placed the duty of determining the guilt or innocence of an accused person on the DPP. The DPP is expected to act in the public interest and to protect and promote the rule of law. It is for the trial court to determine whether the evidence adduced in the criminal matter is sufficient to warrant a conviction or insufficient to sustain a conviction of an accused person.

186.  Iam also unable to find that the prosecution of the exparte applicant is oppressive, vexatious or abuse of court process. Seriously contested matters such as the Land Registry file containing particulars of the  subject title disappearing to date and prior to alleged registration of the title in the names of the exparte applicant ; that the original registered owner was at the time of such registration long dead and therefore could not have sold the land to the exparte  applicant; that the 1st interested party had vide an Originating Summons obtained vesting orders which could not be enforced due to the disappearance of the Land Registry file; that as at the time the exparte applicant alleged to have bought the suit land in question from Mrs Helen Fear, she was long dead; whether the exparte applicant’s search at the British Archives is conclusive evidence of registration of the death of Mrs Helen Fear are all, in my view matters which are not frivolous or vexatious, and which the trial court has jurisdiction to determine based on the evidence that shall be adduced before it.

187.  I echo the words of Odunga J in Inspector General of Police & another v East African Portland Cement Co. Limited & 3 others [2016] eKLRwhere the learned Judge stated:

“In my view, it is not for this Court to stop the Respondents in their trajectories simply because the Court believes that the Respondents ought to have acted in a different manner.  The constitutional discretion given to the Director of Public Prosecutions and the police ought not to be lightly interfered with especially if on the evidence in their possession if true may well sustain a prosecution. In this case it is clear even from the applicants’ own case that there exist land disputes between the parties claiming interests in the suit parcel which disputes are yet to be resolved.  In the meantime, it is clear that the parties claiming interests therein are clearly antagonistic to one another. In such circumstances, it behoves the police to ensure that the disputing parties do not take the law into their hands. The police have a duty to arrest any imminent threat to law and order and that action cannot be termed as harassment. If this is what the police are doing then this Court cannot interfere with their exercise of otherwise lawful actions.”

188. Just like in the above case, this case involves a land dispute with the exparte applicant and the 1st interested party claiming title to the suit land not as joint owners but independently. The 1st interested party claims he bought the land from Mrs Helen Fear the original owner whereas the exparte applicant also claims to have bought the land from the same person and none of the parties have brought before the court the alleged seller to tell the court is the true position. That being the case, and with allegations that the said Mrs Helen Fear was long dead before the alleged sale and transfer of the land in favour of the exparte applicant, it is only proper that the police investigate and the DPP prosecutes the person they reasonably believe, had a hand in the alleged forgery. Moreso, I agree with the  1st interested party that it is not the fact of death of Mrs Helen Fear alone that is being relied upon to proof forgery of the documents that allegedly passed title to the exparte applicant.

189.  Indeed, the Court would be entitled to intervene where it is clear that the powers and discretion given to the police and the DPP are not being exercised lawfully and in good faith and are exercised purely for the vindication of the commission of a criminal offence and the criminal justice system; or where the same are being exercised for the achievement of some collateral purpose other than its legally recognized aim. This is what this court found in the Bitange Ndemo [supra] case citing other decisions where, clearly, witnesses who had been implicated or incriminated themselves in the alleged crime were being honey-combed to become prosecution witnesses against the exparte applicant yet the same witnesses had exculpated the applicant from blame.

190. . In this case, I find that the pending civil suits do not preclude the DCI and the DPP from investigating and mounting a prosecution against the exparte applicant as the DPP’s action is well grounded in law under section 193A of the Criminal Procedure Code and it has not been shown that he had conducted himself in such a manner as to prejudice the exparte applicant’s constitutional rights to a fair trial or to access justice. Although the applicant claims that the Commissioner of Lands filed a defence in one of the civil cases admitting that the applicant used the correct process to acquire the land in question, it should be noted that the complainant in the matter is not the Commissioner of Lands but the 1st interested party who in my view, should also have his day in court and moreso, pleadings in a matter are not evidence. Until the testimony of parties is subjected to cross examination to test the veracity of their testimonies, pleadings remain just statements of fact. In addition, the statement of the Commissioner of Lands in defence is with regard to an allegation made against the lands office by the 1st interested party that the office fraudulently transferred the title to land in favour of the exparte applicant hence that so called admission must be understood in the context in which that defence was filed.

191. Criminal proceedings are instituted in the public interest and having regard to the circumstances of this case, Iam unable to find evidence of the DPP instituting the criminal charges against the applicant to achieve a collateral purpose or for ulterior motives.

192.  It is not a secret that the 1st interested party is the main complainant in the pending criminal case but it has not been shown that there was no probable cause for the 1st interested party to complain against the exparte applicant who admits that he himself did file a suit against the 1st interested party seeking to prohibit him from trespassing on the suit land. It is therefore my humble view that the best forum where both parties can persuade the court on the merits or otherwise of the complaint lodged by the 1st interested party that the exparte applicant could only have obtained a title to the disputed land through forgery is the criminal trial and therefore the sweeping statement by the exparte applicant that the 1st interested party is influential and supervises the police in their operations with regard to this matter lacks evidential support and holds no water.

193.  In East African Community vs. Railways African Union (Kenya) And Others (No. 2) Civil Appeal No. 41 of 1974 [1974] EA 425,  it was observed that:

“the onus lies on a person seeking the grant of a prerogative order to establish that it is essential for it to issue since these are not orders that are lightly made. Judicial review remedies are orders of serious nature and cannot and should not be granted lightly. They should only be granted where there are concrete grounds for their issuance. It is not enough to simply state that grounds for their issuance exist; there is a need to lay basis for alleging that there exist grounds which justify the grant of the said orders.”

194.  I also associate myself with the holding in Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR  where it was held:

“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”

195.  In this case and as earlier stated, there are clearly serious factual issues which are conflicting. These include the manner in which the exparte applicant was arrested after withdrawal of the earlier criminal charges and in order for this Court to determine whether the Respondents in effecting the arrest and mounting a prosecution against the exparte applicant was violently harassing the applicant, this Court would have to determine who the arresting officers were and if they infringed on the exparte applicant’s rights, he has the right to complain for investigations to be launched. To make findings on these issues, evidence thereon would have to be taken in the ordinary manner from those who witnessed his arrest. That however is not the duty of a judicial review Court.

196.  In addition, the claim by the DPP that he only came into office under the new constitutional order on 1st July 2011 and therefore needed time to investigate the claims by both complainant and exparte applicant hence the length of time it took him to allow the charges against the exparte applicant is a matter that has not been controverted by any other evidence to the contrary.

197.  For the above reasons, I find that the exparte applicant has not demonstrated before this court that he is deserving of judicial review remedies of Certiorari, prohibition and declaration against the respondents as prayed.

198. In the end, I dismiss the exparte applicants’ Notice of Motion dated 19th September, 2016 and the interim orders of stay of continuation of his prosecution before the Magistrates Court at Kiambu are hereby vacated forthwith.

199.  Costs are in the discretion of the court. However, I note that the respondents and 2nd interested party are public entities whereas the 1st interested party is a complainant in the pending criminal case and was, indeed, a necessary party, who had a stake and interest in the outcome of these proceedings hence his joinder. In the premises, the motion as dismissed shall be without any order as to costs. Consequently, each party shall bear their own costs of these proceedings.

Dated, Signed and Delivered in open court at NAIROBI this 13th day of September, 2017

R. E. ABURILI

JUDGE

In the presence of:

Mr Murunga and Miss Gachomba h/b for Mr Mude for exparte applicant

Mr Murunga also h /b for Mr Njihia for the 2nd Interested Party

Mr Ashimosi for the 1st and 3rd Respondents

N/A for the 2nd respondent

Mr Rapando h/b for Mr Kiragu Kimani for the 1st interested Party

Court Assistant: George