Grace Wairimu Sorora v Chief Magistrate Criminal,Division Nairobi & Director of Public Prosecution [2018] KEHC 8568 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  671 OF 2017

IN THE MATTER OF AN APPLICATION BY GRACE WAIRIMU SORORA

FOR LEAVETO LODGE JUDICIAL REVIEW PROCEEDINGS IN

THENATURE OF CERTIORARI AND PROHIBITION.

AND

IN THE MATTER OF NAIROBI CHIEF MAGISTRATE

CRIMINAL CASE NO.  1825 OF 2017

BETWEEN

GRACE WAIRIMU SORORA.........................................................APPLICANT

VERSUS

CHIEF MAGISTRATE CRIMINAL DIVISION NAIROBI....1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION......................2ND RESPONDENT

RULING ON LEAVE AND STAY

1. By  a chamber summons  dated  30th November  2017  and  filed in court the same day, the exparte applicant Grace Wairimu Sorora seeks  from this  court leave  to institute Judicial Review  proceedings  for the orders of:

a. Certiorari to bring  into the court in order to be quashed  the charge sheet dated  1st November  2017 filed in CM’s Court   Criminal case No. 825  of 2017;

b. Prohibition to prohibit  the CM’s Court at Milimani Law Courts or any other magistrate under him or in any other station within Nairobi or throughout the Republic of  Kenya from hearing, or mentioning, taking notes or making  any orders in Chief Magistrate Criminal Case No. 825  of 2017;

c. That leave so granted do operate as a stay of proceedings of Chief Magistrate Criminal Case No.825 of 2017 Republic vs Grace Wairimu Sorora.

2. The chamber summons is predicated on the grounds on the face of the application, the statutory statement and verifying affidavit sworn by the applicantGrace Wairimu Sorora on 30th November 2017.

3. The applicant claims that she is the accused person in Milimani Chief Magistrate Criminal Case No.825/2017 charged with several counts of uttering false documents in a civil dispute being ELC No. 592 of 2010 relating to land parcel No. 209/9749 and another count of perjury in respect of the same   matter as shown by copy of the charge sheet marked “GWS1. ”

4. According to the applicant, the criminal proceedings pending before the Chief Magistrate’s Court are not genuine and  are a gross abuse of the criminal law process intended to interfere  with the pending civil dispute  ELC No. 592/2010  and that  they are  commenced with the purpose of assisting Honourable David Sudi the director of Chaka Ltd to evict and  dispossess her of her land No. 209/9749 where she runs a business known as Zam Zam Bar and Restaurant  and  a butchery.

5. That although judgment was delivered against her in ELC 592/2010 on 2nd March 2015, she appealed to the Court of Appeal vide CA  64 of 2015  and her appeal  was dismissed  on  12th May  2017 but that  she  has filed  an application for  review  of the said judgment  of the Court of Appeal because the judge who heard and determined ELC No. 592/2010, being the Honourable Justice Pauline Nyamweya  was a High Court Judge  and not an ELC judge  hence she lacked  jurisdiction to hear and  determine  the  matter.

6. The applicant claims that she had so far sought for stay of execution of the judgment in the Environment and Land Court.

7. The applicant avers that the subject dispute has been pending in the civil court between her and the interested party herein Chaka Ltd, Honourable David Sudi and his wife hence the criminal case is meant to intimidate her and to discourage her from pursuing her legal rights in the court of law. It was further alleged that the interested party director Honourable David Dudi and his wife Eunice Chebule did in 2012 cause the applicant to be charged vide criminal case No. 252/12 for alleged forcible detainer of the same land but that the applicant was acquitted on 30th October 2015.

8. Further, that after the interested party failed to secure the  applicant’s conviction in the aforesaid case, he made an  application before Kimaru J in Miscellaneous Criminal  Application No. 513/2015 and  obtained  orders by  deception to the effect that the National Police Service be directed to make  a forensic examination letter of allotment of  22nd  January 1981  and building plans dated 12th March  1998  which  were   subject to HC ELC No. 592/2010 but that  when the Honourable Justice  Kimaru  discovered  the  mischief, he set  aside the  said order.

9. It is further alleged that the said interested parties commenced Judicial Review proceedings in JR No. 256/2016 for orders of mandamus to compel the Director of Public Prosecution to institute criminal proceedings against the applicant but   that the application was rejected by the court.

10. That despite the  applicant’s  advocates  writing  severally  to the Director of Public Prosecutions  and the Directorate of Criminal Investigations complaining of the police persecution at the behest  of the Honourable Sudi  and his wife Eunice  for  ulterior motives other than advancing criminal justice and for purposes of assisting her opponents to take her land, there has been no heeding of  the complaint.

11. The 2nd  respondent Directorate of Criminal Investigation filed  grounds of opposition dated 11th December 2017 contending that the application by the applicant is misconceived, frivolous, vexatious, as there is no demonstration  on how the  respondent  had acted  illegality, unreasonably, ultra vires and or contrary  to natural justice; that Judicial Review is concerned with the decision making process and not the merits of the decision; That the  applicant has not  demonstrated  that in making  the decision  to charge her, the Director of Public Prosecution acted ultra vires  his powers or contravened/violated  constitutional or  legal provisions; That the accuracy and correctness of the evidence or facts  gathered  in an investigation  can only be assessed  and  tested  by the trial court which is best equipped to deal  with  the quality  and  sufficiency of evidence  gathered  and  properly adduced in support of the charges; that no prima facie case has been demonstrated  and neither  has been shown that the  charges  are an  abuse of the court process to warrant leave to  apply  and that the application for leave lacks merit hence it should be dismissed with costs.

12. The interested party Chaka Ltd who are also the complainants in the criminal proceedings pending in the lower court filed a replying affidavit sworn by its director Honourable David Kiprono Sudi on 11th December 2017.

13. In his depositions, the interested party contends that he is  the  Director of the interested party company Chaka Ltd  and that the  chamber summons for leave is  mischievous and grounded  on misrepresentation of facts, is full of falsehoods and aimed  solely at misleading this court at the expense of delaying  justice.  That he is the registered owner of LR No. 209/9749  which fact was  pronounced by the Environment and Land Court   and the Court of Appeal as shown by copy of title deed  annexed  and the judgment  of Lady Justice Nyamweya  was to the  effect that the applicant vacates the suit land but instead she has engaged him in court battles with the intention of illegally remaining on his land even after the Court of Appeal  dismissed her appeal, that is why she  had initially left out the interested party from these proceedings so that he continues to suffer  injustice.

14. It is deposed that even the National Land Commission had recommended removal of the applicant from the suit land and  that it  was   after she resisted  to vacate  even  after the court  in HCC 723/2008 found that  the documents of ownership in her possession were forgeries that the Director of Public Prosecution  recommended that she be investigated and be charged with forgery.

15. Further, that on 31st October 2017 the exparte applicant was arrested at JKIA while trying to escape from the country and that is when she was arraigned in court. That she  is charged before a court of law which is  independent, impartial and competent where she can defend herself  and  demonstrate  her innocence.  That the purpose of these Judicial Review proceedings is to frustrate the interested party and continue to occupy its land.

16. It was deposed that the applicant is just a vexatious litigant who should not be entertained by the court.  The interested party prayed for dismissal of the application for leave and stay as the applicant is before this court with unclean hands.

17. The application for leave  and  stay  was argued  orally  before me  on  14th December  2017 with Mr  Boniface  Njiru advocate arguing on behalf of the exparte applicant whereas Miss Spira  represented the  respondent and  Mr Getuma submitted on behalf of the interested party(holding brief for Mr Morara). The submissions mirrored the pleadings and affidavit in reply as filed.

18. Mr Njiru  highlighted  that the  alleged  offences took place  in 2010, 2011 and 2009 and that the charges are based  on evidence in the civil  proceedings which are subject of challenge before the  Court of Appeal vide CA 64/2015 seeking review of the judgment delivered on 12thMay2017 following Environment  and Land Court No. 564/2010 which was  heard by a High Court judge instead of an Environment and Land Court judge/court.

19. It was submitted that there were other pending civil cases before  the Environment and  Land  Court  hence the criminal cases  are  intended to  harass the  applicant  and  to assist the complainant Chaka Limited to evict the  applicant from the suit land through the criminal process.  It was submitted that criminal proceedings which are initiated to achieve civil objectives have no foundation and that they amount to abuse of the criminal process. Counsel for the applicant urged the court to grant leave and stay to avoid parallel proceedings.

20. In opposition to the application by the applicant, Miss Spira on behalf of the Director of Public Prosecutions submitted relying on the grounds of opposition in their entirety and reiterated that Judicial Review is never concerned with merits but process.  That it had not been demonstrated that the Director of Public Prosecutions did not act independently but that after the Director of Public Prosecutions reviewed the investigations file, he directed that the applicants be charged.  It was submitted that there was no ulterior motive demonstrated and that it was within the mandate of the Director of Public Prosecutions to determine if offences are committed.

21. Counsel submitted that the exparte   applicant  had not  established  a prima facie arguable case to warrant  leave and  further added  that even if  this court  was to grant leave, such leave should not operate  as stay because  there is no  prejudice to the applicant. It  was urged  that  6 witnesses  had been  listed to  testify in the criminal case hence this court should  dismiss the  application for  leave and  stay.

22. On the part of interested party, Mr Morara submitted in opposition  associating himself  with submissions  by Miss Spira  and adding that the  application for Judicial Review seeks to challenge  the merits of the decision  and  not the  process of decision  making.

23. Further, that investigations into alleged forgeries were instituted after Honourable Nyamweya J determined the Environment and Land Court case which judgment was upheld by the Court of Appeal.

24. That the documents  relied on by the applicant  herein in the Environment  and  Land  Court case  to lay claim  of title  to the  disputed  land  were  disowned  by the purported  makers  and  so the court  correctly  deemed  them to be forgeries and that Chaka Ltd was found to be the lawful owner of the suit land.

25. It was further submitted that  these proceedings  are mischievous  and  based on misrepresentations of facts  and  intended to deny justice to the interested  party herein since there is an eviction  order issued  against  her and that  the  Directorate of Criminal Investigations and Director of Public Prosecutions  have acted  independently in investigating the alleged forgeries and instituting criminal proceedings against the exparte  applicant.

26. It was submitted in contention that no prejudice will be occasioned to the applicant as she will have a chance to put forward her defence before the trial court.  The interested  party also took issue with their initial omission  as parties to these proceedings which they contend  was  deliberate  so that the applicant could continue occupying the suit land  despite the  eviction  orders which  are in place. It was therefore submitted that the  application is an afterthought  and  should be  dismissed  for  being vexatious and intended  to deny justice  to the  interested  party.

27. In a brief rejoinder, Mr Bonface Njiru  submitted that Order  53  Rule 3(2) of the Civil Procedure Rules is clear that the  applicant  is challenging jurisdiction of Nyamweya J in handling an Environment and  Land Court  judge  and that the  proceedings before  the Court of Appeal  are ongoing.  Further, that there is stay to eviction obtained from Judge Okongo of the Environment and Land Court.  Counsel maintained that there is abuse of criminal process and that therefore his client has demonstrated a prima facie case to warrant grant of leave sought.

DETERMINATION

28. I have considered all the foregoing and in my view, the main issue for determination is whether the prayers sought are merited.  Commencing with the prayer for leave to apply for  Judicial Review orders of certiorari  and  prohibition, the exparte  applicant  alleges that  the criminal proceedings initiated  against her  relate to offences  allegedly  committed in  2012, 2011, and  2009 and that the charges are meant  to harass her by assisting  the interested party  to evict her  from the suit  land yet there are  pending  civil suits over the same  and  that Honourable Okongo J has even granted stay of her eviction from the suit land, awaiting a review of the Court of Appeal judgment which application  for  review seeks to challenge the  jurisdiction  of Nyamweya J a High Court judge who presided over the Environment and Land Court case and  rendered a judgment  which was upheld by the Court of Appeal. The exparte applicant therefore believes that these proceedings are intended to achieve the civil proceedings which are pending over the subject land.

29. On the other hand, the respondent and the interested party contend that the application is mischievous as the investigations leading to the charges facing the applicant were conducted independently and that the applicant is using these Judicial Review proceedings to unlawfully occupy the land which she was found to have forged documents of ownership.

30. Further, that the land belongs to the interested party and that the Court of Appeal has confirmed the said ownership. It is further contended that the applicant has not demonstrated a prima facie arguable case and that no prejudice has been shows if the criminal proceedings continue as she will have a chance to defend herself before the trial court.

31. The yardstick for grant of  leave to  institute Judicial Review  proceedings was set and  is now settled vide several judicial  decisions  including  Republic vs County Council of Kwale  & Another  Exparte Kondo & 57  Others  HCC Miscellaneous Application No. 384 of 1996 and Polycarp Wathuta  Kanyugo & 2 others vs The County Government of Kirinyaga [2014] e KLRwhere it  was held inter alia that leave  to institute Judicial Review proceedings is not granted as a matter of course or as a mere  formality, and  that  although at the leave stage the  applicant is not expected to go into  the depths of the intended application for Judicial Review, the applicant must nonetheless satisfy the court that they have an  arguable prima facie case which  merits further  investigation by the court .

32. In addition, leave is supposed to exclude frivolous and vexatious applications which prima facie appear to be abuse of the process of the court or are statute barred.

33. Where there is an effective alternative remedy or internal review or appeal mechanisms for settling the dispute, the court may also decline to grant leave.

In this case, it is alleged  that there are pending  cases before  the  Environment  and  Land Court  and the Court of Appeal  seeking to resolve the civil dispute between  the applicant  and interested party herein  and that therefore  these criminal proceedings are  intended to harass the applicant to be evicted from the land  when she has a stay of eviction orders granted by the  Environment  and  Land Court while she seeks to review  the  judgment  of the Court of Appeal on account of jurisdiction.

35. Without delving  into the merits  of the pending  cases as  that is beyond the scope of this court, I have no  doubt  in my mind that prima facie, the applicant’s claim is not frivolous  or vexatious  and  warrants  a further indepth  investigation at  a later  stage.

36. For that reason, I find the application for leave merited.  I grant  her leave to institute the Judicial Review  proceedings  as sought  in the chamber summons dated  30th November  2017 interms  of prayers 2 and  3  thereof. The main motion to be filed and served within 10 days from to date.

37. On the prayer No. 4  for an order  that the leave so granted  do operate as stay of the criminal proceedings, although an applicant may  demonstrate that they  deserve  leave, stay is not automatic  either.  They have to show that unless stay of the impugned proceedings is granted the intended application, if successful, will be rendered nugatory and therefore the applicant will be rendered a pious explorer in the judicial process.

38. In this case, albeit  the  applicant  claims that  the  offences  with which she was charged were allegedly committed in 2012, 2011 and 2009.  It is worth noting that the charges were preferred  after investigations by the police and following  the court’s  determination that the documents that the applicant  had relied on in the Environment and Land Court cases Nos. 592/2010 consolidated with  ELC 29/2010, 340 and 504/2010 were forgeries.

39. Investigating a forgery claim after  a court’s  determination in a civil  suit takes time and therefore  this court  does not  buy in the idea that the  criminal proceedings are in  an afterthought  or a witch hunt  of the exparte  applicant at this stage.

40. The law does not bar criminal process to continue side by side with civil proceedings.  Each of the processes are intended to achieve justice for all the parties.  Where there is prima facie evidence of a criminal offence having been committed the police have the power to investigate and charge the suspect for prosecution by the DPP.

41. In my humble view, the applicant has not demonstrated to this court that the pending criminal proceedings which she is allowed to challenge have absolutely no foundation.  And as  the  criminal case  is not shown  to be intended  to cause her  eviction  from the suit land since the civil court is handling the issue of eviction, where she has even obtained stay of eviction proceedings before the ELR Court,  I see  no merit  in the prayer  that the criminal  case is intended  to harass  the applicant  and  cause her  eviction.  The criminal proceedings cannot evict her.  It is a civil court that would issue an eviction order since there is no charge on forceful detainer facing the applicant.

42. The applicant has not demonstrated that the pendence of or proceeding with the criminal case will in any way prejudice  her as  the civil court  has already made  a finding on its  own accord  that the documents  she relied on were forgeries.

43. Further, challenging jurisdiction of Honourable Nyamweya J to hear an Environment and Land Court matter does not change the position that documents relied on by the applicant to prove her case were forgeries, especially where the police have carried out their own independent investigations in the matter.  The police have the power to carry out independent  investigations to determine whether the said documents were indeed forgeries as per the court decision.  It is for the trial court to then assess the evidence placed before it to determine whether the allegations by the prosecution are proved beyond reasonable doubt.

44. I see no outright malice in the charges framed.  I would in the premises decline to interfere with the pending criminal charges facing the applicant and dismiss the prayer for stay.

45. As this matter has proceeded interpartes, it can be fast tracked for hearing and determination.  The respondents and interested party to file and serve their responses within 7 days from date of service of the substantive notice of motion once filed. The applicant will have 5 days to file a further affidavit if need be, together with brief written submissions.

46. The respondents and interested party will have 5 days after service of submissions to file and serve their submissions.  Mention on 13th February 2018 to confirm compliance.

Dated, signed and delivered in open court at Nairobi this 5th day of January, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Boniface Njiru advocate for the exparte applicant

Mr Gituma for the 2nd Respondent

And h/b for Morara for the interested party

CA: Georg