Hassan Ali Joho v Inspector-General of Police, Director of Criminal Investigation, Director of Public Prosecution & Attorney-General [2017] KEHC 3055 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL & JUDICIAL REVIEW DIVISION

CONSTITUTIONAL PETITION NO. 15 OF 2017

IN THE MATTER OF: ARTICLES 2(1), 3(1), 27(1) (2), 29, 39(2), 40, 47, 156, 157, 258 AND 35(1) (B) OF THE CONSTITUTION OF KENYA 2010

BETWEEN

HASSAN ALI JOHO……..…………………………………...........PETITIONER

AND

1. THE INSPECTOR-GENERAL OF POLICE

2. THE DIRECTOR OF CRIMINAL INVESTIGATION

3. THE DIRECTOR OF PUBLIC PROSECUTION

4.  THE ATTORNEY-GENERAL……………………..…......….RESPONDENTS

JUDGMENT

The Petition

1. By an Amended Petition dated  17th May 2017  brought under Articles 2(1), (2), 3(1), 10 (1) (2), 27(1) (2), 28, 29 (A, B, C, D, F), 32, 33 (1), 36, 37, 38, 39, 40, 47, 129, 131 (2) and 157 of the Constitution, the Petitioner seeks the following orders:

a) A DECLARATION be and is hereby issued that the 1st, 2nd & 3rd Respondents conduct and actions jointly and severally contravene the Constitution and/or are likely to contravene or infringe upon the Petitioner’s fundamental rights and freedoms guaranteed under article 2(1), & (2), 3(1), 10(1), 10 (2), 25 (a), 27 (1) & (2), 28, 29 (a, b, c, d, f), 32, 33 (1), 36, 37, 38, 39, 47, 129, 131 (2) & 157 of the Constitution of Kenya, 2010.

b) A DECLARATION be and is hereby issued that the Respondents’ conduct and actions which are complained of in the Petition, jointly and/or severally, singularly and/or cumulatively against the Petitioner are oppressive, unfair, unreasonable, irrational, illegal and an abuse of power and the criminal justice system and process.

c) A DECLARATION be hereby issued that the arbitrary withdrawal of the security guards lawfully assigned to the Petitioner was irrational, capricious, unjustified, unlawful and illegal.

d) A DECLARATION be and is hereby issued that the Respondents’ investigations jointly and/or severally. Singularly and cumulatively into the alleged forgery of a KCSE Examination slip [Particulars withheld] of 1992 Serani Secondary School, Mean Grade C+ alleged to be in the name of the Petitioner are tainted with illegality, mala fides and are being and/or have been conducted with and/or for an ulterior motive or extraneous purpose.

e) AN ORDER OF PROHIBITION directed to all the Respondents jointly and severally prohibiting any and all of them from carrying out and/or proceeding with any further and/or investigations into or in connection with the alleged forgery of KCSE Examination Result Slip [Particulars withheld] of 1992 Serani Secondary School, Mean Grade C+ alleged to be in the name of the Petitioner.

f) AN ORDER OF PROHIBITION directed to all the Respondents jointly and severally prohibiting any and all of them from reopening or purporting to reopen, mounting, bringing, instigating, carrying out and/or proceeding with any criminal proceedings or charges against the Petitioner in connection with the alleged forgery of KCSE Examination Result Slip [Particulars withheld] of 1992 Serani Secondary School, Mean Grade C+ alleged to be in the name of the Petitioner.

g) A ORDER OF PROHIBITION directed to all the Respondents jointly and severally prohibiting any and all of them from reopening or purporting to reopen, mounting, bringing, instigating, instituting, carrying out and/or proceeding with any criminal proceedings or charges against the Petitioner in connection with the alleged forgery of a KCSE Examination Result Slip [Particulars withheld]of 1992 Serani Secondary school, Mean Grade C+ alleged to be in the name of the Petitioner.

h) A MANDATORY ORDER be and is hereby issued directing the 1st Respondent to restore and/or reinstate the police guards assigned to the Petitioner and to which the Petitioner is entitled by virtue of his position as the duly elected leader and Governor of Mombasa County.

i) Any other relief that this Honorable Court may deem fit and just to grant in the interest of justice.

2. The Amended Petition is based on the grounds set out therein and those in the supporting affidavit sworn by HASSAN ALI JOHO on 30th March 2017 and the further affidavit sworn on 11th April 2017.

3. The Petitioner is the Governor of Mombasa County while the 1st Respondent is the Head of the Kenya Police charged with the overall management of the Police Force. The 2nd Respondent is an investigation agency within the Kenya Police Force whose duty is among other functions to investigate and prevent crime. The 3rd Respondent is the office established under Article 175 of the Constitution with the exclusive mandate to institute and undertake criminal proceedings against any person before any court of law. The 4th Respondent is the principal legal adviser to the Government.

4. The Petitioner first came to this court on 31st March, 2017 with an application seeking various conservatory orders stated therein.  After hearing the application inter partes the court on 26th April, 2017 allowed the application for various conservatory orders.  Those orders have been in force pending the hearing and determination of the petition herein.

Background

5. The Petition contains particulars and narrative of the alleged chronological abuse of Petitioner’s rights, citing particulars, dates and instances of the alleged constitutional abuses as follows:

(i) On 6th January 2017 while in Ghana, the Petitioner was called and informed by the security personnel attached to him that they had been called by their respective bosses and instructed to report back to their stations the following day for deployment with firm instructions not to report back to the Petitioner’s service and also the Administrative Police officers guarding the Petitioner’s residence were recalled.

(ii) On 13th March 2017, the President of the Republic of Kenya His Excellency Honorable Uhuru Muigai Kenyatta while relaunching the Mtongwe Ferry Services is alleged to have publicly and openly threatened the Petitioner in the following terms;

“Nitamnyorosha,Nitamwangusha…”(I  will straighten him.. I will fell him ….”).

(iii) On the same day 13th March 2017 heavily armed security personnel including regular police, general police unit and other segments of the Police Service put up roadblocks at Nyali Bridge and mounted a thorough search on all vehicles. It is alleged that the singular and stated motivation for the purported security operation was to search for the Petitioner, and stop him from attending the public ceremony for the relaunch of the Mtongwe ferry, a public function. The Petitioner was physically blocked by the Police from going through the roadblock and asked to go back home in a move which was intended to unlawfully prevent him from accessing his Office or attending the Public function. Upon refusal to obey the alleged unconstitutional order to go back home, the Petitioner was allegedly held hostage, under false imprisonment and illegal curfew, by the heavily armed elite security forces including Presidential Guards Officers who fortified the Office of the Governor before being joined by their colleagues from the Anti-Terror Police Unit.

(iv) On 18th March 2017 while addressing a political rally in Mpeketoni in Lamu County, and in full glare of Kenya Police, the Petitioner was allegedly attacked by irate youth who were instructively chanting pro-government slogans and who hurled stones and other weapons aimed at the Petitioner upon which he had to scamper for his safety fearing for his life and personal safety and the safety of the Motor Vehicles. It is alleged that in spite of inquiry and protest from the Petitioner, the authorities did not offer any response or explanation.

(v) On 20th March 2017, without notice and any lawful justification Kenya Revenue Authority, through the Commissioner for Investigations and Enforcement allegedly wrote to various banks namely, Diamond Trust Bank and CFC Stanbic Bank where the Petitioner’s personal accounts are domiciled directing and ordering them not to release any funds from his accounts nor allow the Petitioner to access the funds. This directive effectively denied the Petitioner access to his funds.

(vi) On 23rd March 2017 Kenya Police and the General Service Unit allegedly violently disrupted the Petitioner’s political rally in Kinango Kwale County by hurling tear gas canisters and firing live shots in the air. The highly intimidating operation was undertaken through the command of Mr. Nelson Marwa, the Coast Region Coordinator who publicly instructed the Petitioner to confine his political activities within Mombasa County where he is elected.

(vii) On 26th March 2017, the Petitioner learnt through social media platforms (including WhatsApp, Twitter and Facebook) that there were investigations going on against him relating to his academic qualifications. The Highly sensationalized reports claimed that the Petitioner was criminally culpable of various offences.

(viii) Instructively, on 27th March 2017, the Petitioner received summons from the Directorate of Criminal Investigations requiring him to appear before the Assistant Inspector General of Police to record a statement relating to forgery of result slip for the Kenya Certificate of Secondary Education Examination of 1992.

(ix) On the same date, 27th March 2017, the Kenya Revenue Authority moved the High Court in Nairobi under the Anti-Corruption and Economic Crimes Division, HC ACC MISC. 33 OF 2017; KENYA REVENUE AUTHORITY VS. HASSAN ALI JOHO and obtained orders ex parte prohibiting the Petitioner from accessing and dealing with funds in his various accounts.

(x) On 10TH of March 2016 the state through, the Firearm Chief Licensing Officer, Mr. Samwel C. Kimaru, without notice or due process is alleged to have arbitrarily revoked the Petitioner’s firearm certificate No. [particulars withheld]issued on 18th June 2008. The letter purported that the Petitioner was “unfit to be entrusted with a firearm anymore”.

(xi) On 11th March, 2016, the then Cabinet Secretary for Interior and Coordination of National Government late Major General Rtd Joseph Nkaissery through a press statement to the media allegedly ordered the Petitioner to immediately surrender his firearm certificate or face arrest.

(xii) The Petitioner states that he has been subjected to a number of incidents from various state agencies, some of which he has challenged in court including:

a) Malindi High Court Petition No. 6 of 2016

b) Miscellaneous Civil Application No. 122 of 2016

c) Petition No. 116 of 2013

d) Kampala University versus National Council for Higher Education, Misc. Cause No. 053 of 2016

Petitioner’s Case

6. The Petitioner alleges that the Respondents have infringed his rights under Article 27 (1) and (2) of the Constitution, particulars of the infringement including the 1st, 2nd and 3rd Respondents acting with impunity, oppressively, unreasonably, high handedly and otherwise denying the Petitioner the comfort or confidence that he was and is being treated equally, fairly or that he has equal protection or benefit of the law and the 1st Respondent’s action of unreasonably and without notice withdrawing the Petitioner’s security violating his right to equal protection.

7. The Petitioner claims that the 1st and 2nd Respondents have breached his right to fair administrative action under Article 47 of the Constitution by:

i. Withdrawing the Petitioner’s police bodyguards assigned to him without notifying him and for no justifiable course.

ii. Re-opening investigations into the academic qualifications of the Petitioner despite the same having been closed.

iii. Maliciously publishing on social media the purported findings of the investigations on alleged involvement in forgery.

iv. The summoning of the Petitioner to record a statement in relation to the forgery with the intention of prejudicing the legal rights of the Petitioner in order to bring his character to disrepute.

v. The investigation and intended prosecution of the Petitioner in relation to his academic qualifications has not been expeditious, efficient, lawful, reasonable or procedurally fair.

vi. The decision by the Kenya Revenue Authority to have CFC Stanbic Bank Limited preserve money held in the Petitioner’s account and the decision to have Diamond Trust Bank provide all records relating to the Petitioner’s account are unfair, unreasonable, irrational and have been made in abuse of power.

8. The Petitioner further alleges that the 1st and 2nd Respondents have breached his right to security under Article 29 (a, c, d, e, f) through the utterances and alleged threats by the President of the Republic of Kenya, withdrawal of the Petitioner’s security detail and body guards assigned to him without notification and/or reasonable justification, unlawfully blocking and/or preventing the Petitioner from accessing his office or attending a public function and violent disruptions of the Petitioner’s political rally.

9. The Petitioner alleges that the 1st and 2nd Respondents have infringed on his right to property under Article 40 of the Constitution through the actions of the Kenya Revenue Authority that required the manager Diamond Trust Bank to provide all records in respect of the Petitioner’s account.

10. The Petitioner claims that his right under Article 39 (freedom of movement) has been breached by the 1st and 2nd Respondents who unlawfully prevented him from accessing his office and from attending a public function, utterances by Mr. Nelson Marwa, the Coast Region Coordinator instructing the Petitioner to confine his political activities within Mombasa County.

11. The Petitioner claims that there has been an infringement to his political rights under Article 38 of the Constitution and his right to assembly under Article 37 of the Constitution by the 1st and 2nd Respondents specifically the 1st Respondent’s agents who violently disrupted his rally in Kinango, Kwale County and uncalled for utterances by the Coast Region Coordinator, Mr. Nelson Marwa.

12. The Petitioner alleges that 1st and 2nd Respondents have curtailed his right to freedom of expression under Article 33 of the Constitution by continually harassing, intimidating and threatening the Petitioner as a result of the Petitioner’s publicly stated political views and fair criticism of the President and the ruling Jubilee Coalition.

13. The Petitioner alleges that his right to inherent dignity under Article 28 of the Constitution has been breached by arbitrarily withdrawing his lawful state security and using force to curtail the Petitioner’s from exercising his rights under Articles 32, 33, 37, 38 and 39 of the Constitution.

14. The Petitioner alleges that the 1st, 2nd and 3rd respondents are abusing the criminal justice system through the purported investigations into the alleged case of forgery of a 1992 KCSE Examination Result Slip which the 2nd Respondent investigated in 2013 and the matter was concluded.

15. It is the Petitioner’s case that there is a sustained and malicious effort by various state agencies who are ostensibly acting at the instigation of third parties to arbitrarily threaten him with a view to harm him or unduly use the criminal justice processes to embarrass him on the basis of fabricated charges for an ulterior motive other than vindication of the law.

16. It is also the Petitioner’s case that the decision to reopen and institute criminal charges against the Petitioner based on a matter that had been investigated and determined in 2013 is unjustifiable, irrational, unreasonable and absurd and that the Respondents have exercised their discretion without conforming to the principles of independence, impartiality, equality of all citizens before the law and the judicious exercise of power and authority without fear or favour.

The Response

17. The 1st, 2nd and 3rd Respondents responded to the Amended Petition by way of a Replying Affidavit sworn by No. 68417 CPL MOSES GITUATHI on 2nd May 2017 while the 4th Respondent responded to the Amended Petition vide Grounds of Opposition dated 7th April 2017, and also relied on the Replying Affidavit filed by the 1st, 2nd and 3rd Respondents.

18. The deponent of the replying affidavit alleged that he was one of the investigators in this matter and stated that his investigations were based on a complaint made by one JANET DAGO EKUMBO MBETE vide a letter dated 3rd January, 2017 addressed to the Directorate of Criminal Investigations in which the complainant stated that she had information that the Petitioner forged a certificate while applying for admission to the University of Nairobi.

19. The deponent further alleged that the aforementioned complainant also stated that the certificate used by the Petitioner  during admission indicted that he had attained an aggregate of C+ in the 1992 K.C.S.E examination at Serani Secondary School whereas in the real sense the Petitioner had an aggregate of D- which he acquired in 1993 from the same school.

20. The deponent alleges that he began his investigations into the complaint on 10th March 2017 pursuant to Article 234 of the Constitution which gives the 1st Respondent the duty and responsibility to investigate complaints. The deponent claims that after collecting evidence from Serani secondary School, the Kenya National Examination Council and the University of Nairobi, he concluded that the complaint was genuine and made in good faith and that there existed reasonable grounds to undertake investigations.

21. The deponent claims that documents obtained from the University of Nairobi revealed that the Petitioner applied for admission under his own hand, supplied a passport sized photograph, paid fees to the University, sat for examinations and that the answer booklet was  under the Petitioner’s own handwriting.

22. The deponent claims that the investigations revealed that the Petitioner forged a K.C.S.E result slip of the year 1992 and secured admission for Bachelor of Commerce degree course in 2009 under admission no. [particulars withheld].

23. The deponent alleges that a company known as Port Side Freight Terminal, associated with the Petitioner, on 27/09/2010 instructed issuance of a Banker’s Cheque in favour of UNES COLLECTION [particulars withheld] A/C JOHO H.A attaching cheque no. 002640 payable to Kenya Commercial Bank for an amount of 210,000/=.

24. The deponent alleges that the evidence gathered revealed a genuine prosecutable case for commission of several criminal offences including but not limited to forgery, uttering a false document and giving false information to public officials by the Petitioner.

25. The deponent claims that the commission of the above offences and the investigation of the same occurred prior to the alleged threats by the President directed at the Petitioner.

26. It is the 1st, 2nd and 3rd Respondents’ case that the Petitioner makes allegations against virtually any other state agency with a view to advance his theory that he is targeted for political persecution by state agencies at the behest of the President. In support of this allegation, the 1st, 2nd and 3rd Respondents allege that the Petitioner filed Malindi Petition No. 6 of 2016 (still pending) but the Judge declined to stop investigations into the alleged crimes committed by the Petitioner and others.

27. The 1st, 2nd and 3rd Respondents allege that the investigations in this matter have proceeded fairly and without any aspect of harassment including allowing the Petitioner to choose when to appear before the Police to record statements. The 1st, 2nd and 3rd Respondents allege that when the Petitioner appeared before the police he elected not to give a statement after being informed what was being investigated.

28. The 1st, 2nd and 3rd Respondents allege that the Petitioner seeks protection against prosecution in connection with the alleged forgery of 1992 KCSE examination result, which protection in the face of the evidence obtained would result in cushioning a suspect from prosecution for offences committed.

29. The 1st, 2nd and 3rd Respondents allege that the statement by the President to wit “Nitamnyorosha Nitamwangusha…” is capable of many interpretations, and in particular, that the Petitioner being a politician involved in a political duel, should be prepared in a fair contest to be felled by a fair opponent.

30. The deponent alleges that any police presence around the Petitioner was for the purposes of protection of life and maintenance of law and order to citizens during public rallies and/or events and that the Petitioner cannot complain about police presence at his residence and work while at the same time ask this court to restore security around him which would be provided by the police.

31. In regard to the Petitioner’s allegation of his firearms being taken away and withdrawal of security guards, the 1st, 2nd and 3rd Respondents allege that at no point were any firearms taken away from the Petitioner and that it is routine for security guards to be withdrawn for the purposes of deployment and after the exercise the Petitioner was assigned new guards whom he rejected.

32. It is the 1st, 2nd and 3rd Respondents’ case that a decision by the 3rd Respondent to commence or not to commence criminal prosecution is based on evidence and law and further that the 3rd Respondent is not bound by recommendations made by investigators but rather exercises independent judgment on the basis of law and evidence.

33. It is the 1st, 2nd and 3rd Respondents’ case that the reliefs sought by the Petitioner are not available to him as a Constitutional Court cannot grant immunity to any person who has committed a known criminal offence and that the orders of injunction sought against the Respondents are not factually founded and that the Petitioner is guilty of material non-disclosure of key facts such as his rejection of security officers assigned to him by the Government or that the Petitioner is still a licensed firearm holder with 3 firearms in his possession. Further, there has been no attempt by the Respondents to remove the Petitioner from office and the Petitioner is free to move around the country to attend political and business activities without any hindrance.

34. The 4th Respondent on the other hand opposed the Petition on the grounds that it was an abuse of court process since the issues it raises can be determined via mechanisms and institutions created by the Constitution.

35. The 4th Respondent alleged that this Petition had been filed to enable the Petitioner evade investigations and probable prosecution and that it offended Article 157 of the Constitution and the Government Proceedings Act as read together with Section 34 and 35 of the National Police Service Act.

36. The 4th Respondent alleges that this court is not the proper forum for determination of whether the Petitioner has the requisite education and/0r other qualifications to become governor. The 4th Respondent further alleges that the Petition as drawn does not comply with Order 53, constitutional provisions and Constitutional Rules Legal Notice 117 of 2013.

37. It is the 4th Respondent’s case that the Petitioner filed this suit because he was apprehensive of an offence he may have committed and therefore wants to frustrate the investigations against him.

Petitioner’s Response to the 1st, 2nd and 3rd Respondents’

Replying Affidavit

38. The Petitioner responded to the 1st, 2nd and 3rd Respondents’ Replying Affidavit by way of a Second Further Affidavit sworn by HASSAN ALI JOHO on 25th May 2017.

39. The Petitioner states that the complainant JANET NDAGO EKUMBO MBETE had made a similar complaint to the 2nd Respondent in 2013, and that the same was fully and conclusively investigated by the 2nd Respondent thus the investigations into the same matter are an abuse of process and actuated by malice.

40. The Petitioner states that he has never claimed to have sat for his KCSE examinations at Serani Secondary School or obtained an aggregate of C+ as claimed by the Respondents. The Petitioner states that he joined Serani Secondary School in 1990 and was admitted into Form one and later he completed his secondary education at the same institution and obtained and aggregate of D-. The Petitioner states that he subsequently enrolled into the Kampala University and completed a pre-university course in the year 2006 and obtained a Certificate in Business Administration in 2008 that allowed him to pursue a diploma in the same institution. The Petitioner further states that in 2009 he obtained a Diploma in Human Resource Management from Kampala University and in 2013 having satisfied the requirements prescribed by the Senate for the award of the Degree of Bachelor of Administration , he was admitted to the same degree on 28th February 2013.

41. The Petitioner alleges that while seeking admission to the University of Nairobi he used the aforementioned documents and not the allegedly forged documents as claimed by the Respondents.

42. The Petitioner states that the proper complainant on the issue of the forged Certificate should be the University of Nairobi which the Petitioner claims has not been indicted for any wrong doing. The Petitioner states that his prosecution is selective with selective production of evidence which under the law violates his rights under Article 50 of the Constitution.

43. The Petitioner states that he has a right to seek this Court’s protection against oppression by the State including a prohibition against prosecution on trumped up charges that are an abuse of court process.

Submissions

44. With the leave of court parties filed submissions which were highlighted orally in open court on 20th July 2017. The Petitioner was represented by Senior Counsel Hon. (Senator) James Orengo, Mr. Dennis Mosota and M/s Julie Soweto,whileMr. Alexander Muteti, Mr. NdegeandMr. Wamotsarepresented the 1st, 2nd and 3rd Respondents and Mr. Guyo Wachira represented the 4th Respondent.

45. The parties identified the following as issues for determination by this court:

a) Whether the 1st, 2nd and 3rd Respondents conduct or actions has contravened the Constitution or are likely to contravene or infringe upon the Petitioner’s fundamental rights and freedoms guaranteed under Articles 2(1) & (2), 3 (1), 10 (1), 10 (2), 25 (a), 27 (1) & (2), 28, 29 (a, b, c, d, f), 32, 33 (1), 36, 37, 38, 47, 129, 131 (2) & 157 of the Constitution.

b) Whether or not the Director of the Public Prosecution and the Directorate of Criminal Investigations have exercised their powers properly.

46. Mr. Orengo submitted that the petitioner has suffered serious violation of fundamental Rights and Freedoms.  Those violations are in relation to Article 27, 28, 29, 32, 33, 36, 37, 38, 39, 40, 47 and 35 (i) (b).  Together with those Articles Counsel submitted that any actions by the Respondent which are against the constitution are invalid.  Counsel referred to Article 3 which states that every person should uphold and respect the Constitution.  Counsel submitted that there is evidence of abuse of the criminal justice system so that what the Respondents are seeking to do is extraneous to the objectives of criminal justice system, and is contrary to Article 157(11) of the Constitution.

Concrete Violations

47. Mr. Orengo submitted that ever since the Petitioner was elected governor of Mombasa he has been harassed, threatened and intimated by government forces.  The purpose of that kind of treatment is to ensure that governor Joho ceases to be the governor of the County of Mombasa.  Counsel argued that these attempts have the ultimate aim of removing the governor from the office, ensuring that the governor is not able to stand for elections in August 2017, and that the Petitioner is not able to exercise the mandate that he is given by the people of Mombasa by ensuring that he is constantly in court on baseless charges meant to harass him so that he loses focus.

48. Counsel submitted that the   governor does not enjoy any immunity from constant acts of harassment and only this court can stop the same.  Mr. Orengo submitted that under Article 157 of the Constitution, the 3rd Respondent is required to have due regard to the interest of the public and to avoid harassing the public, and to act in accordance with the Constitution including promotion of public confidence in the integrity of the office.  Counsel submitted that the DPP cannot carry out investigations selectively, but must be honest in those investigations to avoid abuse of the office.

49. Referring to the case CR 122/33/2013 CF. 102/2013 R vs. Titus Omondiwhich was withdrawn by the DPP and in which PC Moses Gituathi,the deponent to the replying affidavit herein by the 3rd Respondent, was one of the proposed witnesses, Counsel submitted that the DPP is intending to charge the Petitioner on the same charges, yet the petitioner was actually the complainant in the above matter.

50. Mr. Orengo submitted that the current investigation involves a matter which occurred in 2012 which was later withdrawn only to be revived so as to crucify the Petitioner.  Counsel submitted that the Respondents here are not interested in prosecuting and convicting the governor but merely to harass him.  This is so because there are clear ways in Article 181 of removing the governor from office through impeachment proceedings while under Article 182 they can also secure a conviction and remove the governor from power.  Mr. Orengo submitted that the Respondents are simply looking for a cocktail of possibilities to fix the Petitioner. The Petitioner cannot perform his duties under his docket including launching of projects such as the Ferry.  He was stopped form doing that.  In other occasions he is held a prisoner in his own office and prevented from leaving so he cannot attend to his duties.

51. Mr. Orengo submitted that under article 157, the DPP in performing his duties should prevent and avoid abuse of prosecutorial process. Counsel submitted that Article 238 (1) of the Constitution should be upheld by national security organs and that they should also have utmost respect for the law.

52. Mr. Orengo submitted that Article 239 (3) requires the police in their performance not to act in a partisan manner nor be prejudiced by political interests. Counsel pointed out that Article 245 (4) (a) of the Constitution provides that the police shall not be under the direction of any person in the discharge of their duties.

53. Mr. Orengo submitted that Section 7 of the Fair Administrative Action  Act sets out circumstances under which a court or tribunal may review any administrative action to include bias, ulterior motive, where an action is not authorized by law, abuse of power or process among others. Counsel submitted that any intended prosecution of the Petitioner will be based on ulterior motive to ensure that the Petitioner is disqualified from contesting for governorship.

54. Mr. Orengo submitted that in the replying affidavit of the 1st, 2nd and 3rd Respondents, there is a letter marked “MG2” from one Janet Ndago Ekumbo Mbete who made a complaint about the Petitioner’s qualifications. Counsel submitted that the complainant had made a similar complaint in 2013 and the same was investigated. Counsel stated that the focus of the statement on 25th March 2017 by the complainant is still on the qualification of the Petitioner to run for governor and there is nothing about any alleged criminal actions by the Petitioner. Counsel quoted the case of Stanley Munga Githunguri v- Republic CR. APP. No. 271 of 1985where Justice Madan while granting an order of prohibition stated that to charge the Applicant four (4) years after it was decided by the Attorney General not to prosecute was a grave injustice.

55. Mr. Orengo submitted that the aforementioned complainant filed Nairobi High Court Petition No. 39 of 2013, Janet Ndago Ekumbo versus The Independent Electoral and Boundaries Commission & 3 others claiming that the Petitioner lacked the requisite academic qualifications to vie for the position of governor in Mombasa. However, this Petition was dismissed. Counsel argued that the complainant then filed Nairobi High Court Petition No. 116 of 2013 in which she claimed that the Petitioner had fraudulently procured a university degree. Counsel stated that Justice Lenaola (as he then was) found that the Petitioner therein had failed to bring evidence that the 3rd Respondent had used fraudulent means to obtain his degree and dismissed the Petition.

56. Mr. Orengo submitted that after the complaint was made this year, after only 13 days there was flurry of actions against the Petitioner being attacks by Youth in Lamu, KRA investigations, denial of body guards which Counsel submitted abrogated Constitutional rights of the Petitioner.

57. Mr. Orengo submitted that the investigations in question are being conducted in bad faith with an ulterior motive solely motivated to achieve a collateral purpose other than legitimate objectives for administration of justice for the following reasons, that the issue relating to the alleged forgery of KSCE result slip was the subject of similar investigations in 2013 by the 2nd Respondent in Police file number 122/33/2013. The investigation culminated in a criminal charge, Criminal Cases No.102 of 2013 and 108 of 2013.  Mr. Orengo, SC, submitted that in one of the cases, a Mr. Titus Omondi Sindi alias Breshener Omondi, in Criminal case No.102 of 2013 was charged with making a document without authority contrary to section 357 (a) of the Penal code, particulars of which are that, the accused, with intent to deceive without lawful authority or excuse made a certain document namely Kenya Certificate of Secondary Education result sheet number 16032 for Serani Secondary School for the year 1993 purporting it to be genuine results issued by the Kenya National Examination Council.  Mr. Orengo submitted that the 2nd Respondent on its own volition applied to withdraw the matter under section 87 (a) of the Criminal Procedure Code.  This fact has been deliberately concealed by the 3rdRespondent and this smacks of malice and bad faith.

58. Counsel submitted that despite the foregoing, the National Police Service through the Directorate of Investigation summoned the Applicant to record a statement relating to an alleged forging of a 1992 examination result slip in his name. Mr. Orengo submitted that the act of the 2nd Respondent in summoning the Petitioner over these allegations was a decision taken with an ulterior motive or purpose clearly calculated to prejudice the Petitioner’s legal rights. Counsel submitted that these investigations have not been conducted expeditiously or fairly in the circumstances.  In view of the foregoing, it was submitted that the decision by the 2nd Respondent to re-open the investigations under the pretext that they had received a complaint from a member of the public is not only false but misleading.

59. Counsel observed that, Article 157 of the Constitution does not merely mean that the director of Public Prosecution is a conveyor belt for each and every investigations and findings placed before him.  The office of the DPP is duty bound to interrogate the investigations presented to it and ensure that they comply and meet the Constitutional threshold.  Counsel submitted that in view of the conduct of the 2nd Respondent as stated herein any resulting process would amount to an abuse of process and therefore in breach of Article 157 (11) of the Constitution. Mr. Orengo submitted that this Court is enjoined by the provisions of Article 159(2) (e) of the Constitution to protect and promote the purpose and principles of our Constitution at all times.  Therefore, Counsel submitted, it is within the province of this Court in exercising its power to prohibit the abuse of the intended criminal process as it is divorced from the goals of justice, and to find that the intended prosecution is not consistent with the constitutional values as enshrined under Article 10 and the tenets of good governance and the rule of law. Mr. Orengo submitted that the material availed to the court show clearly a well-coordinated deliberate effort by the 1st 2nd & 3rd Respondents to harass, intimidate and victimize the Applicant under the pretext of carrying out investigations. Mr. Orengo referred the court to the unprecedented and curious move by the Ethics and anti-corruption Commission who wrote a letter to Tom Mboya Primary School in Mombasa to ‘verify’ whether the Applicant had indeed attended Tom Mboya Primary School. The said letter was responded to on the 5th of April 2017 where Tom Mboya Primary School indeed confirmed the Applicant’s admission number, index number as well as his KCPE results. Mr. Orengo submitted that the above clearly show that these acts on the part of the Respondents against the Petitioner are unfair, discriminative, unreasonable, and irrational, tainted with bad faith and malice and are decisions and or acts are made in abuse of power in contravention of Article 47 of the Constitution.

60. In respect of restriction of movement, Mr. Orengo submitted that Petitioner was stopped from attending state functions and was also barred and falsely imprisoned within his office. Counsel further submitted that the removal of state security violate the Petitioner’s rights under Articles 27 and 29. Counsel stated that there was an element of discrimination as the Petitioner was being punished on account of his political views.

61. Mr. Orengosubmitted that Article 37 relating to rights of assembly was abrogated when the Petitioner’ rallies were dispersed and the regional commissioner advised the Petitioner to carry out his activities in Mombasa. Counsel submitted that when the President says “Nitamnyorosha…nitamwangusha”, it is possible that an officer could be acting on those utterances hence there is reasonable inference that those utterances and the ensuing investigations could have a common grounding.

62. Adding his voice to that of Senior Counsel Mr. Orengo, Mr. Mosotasubmitted that there was an abuse of process as the matters that are being raised in the investigations were raised earlier and decided. Counsel submitted that it is within the powers of this Court to stay prosecution where there is abuse of process in order to safeguard the rights of the accused person and secure fair treatment of all citizens. Counsel referred the court to the case of Oceanic Sun Line Special Shipping Company Inc versus Fay [1988] 165 CLR 197 where it was held that the court is obligated to take extreme steps in order to protect its own process from being used for purpose alien to the administration of justice under the law. Counsel submitted that if this court does not stop the intended prosecution of the Petitioner, he will be so prejudiced in a manner which cannot be quantified and so incapable of remedy.

63. Mr. Mosota submitted that the DPP is under no duty to prosecute every matter that has been referred to him. He should instead first consider all surrounding circumstances. Counsel submitted that the DPP arrived at a decision to charge immediately the President made the utterances “Nitamnyorosha”.

64. Mr. Mosota submitted that there was a consistent disregard of court order by the Respondent in relation to reinstatement of security guard for the Petitioner. Counsel referred the court to orders issued in Civil App No. 122/2016, Petition No. 6 of 2016 Malindi and orders issued in this suit and stated that the same were ignored.

65. M/s Soweto also supporting the Petition, submitted that the Petitioner is seeking a declaration that he has rights and that this rights have been violated. Counsel stated that since 2013 the same complainant has made the same allegations against the Petitioner and the courts have pronounced themselves yet she is once again making a similar allegation this year. Counsel referred the court to the case of Samuel Roro Gicheru & Another versus OCS Nanyuki Police Station & Another Miscellaneous Criminal Application No. 22 of 2014 eKLRwhere the court held that criminal proceedings made to secure ulterior intentions should not be allowed to stand.

66. M/s Soweto submitted that the Petitioner is being harassed and the investigations lack any factual basis because there is no evidence to link the Petitioner to the forged KCSE certificate of 1992 nor has the University of Nairobi alleged that he used a forged certificate to get admission to the university. Counsel referred the court to the case of Republic versus Director of Public Prosecutions & Another ex parte Job Kigen Kangogo High Court (Nairobi) Misc. Application No. 192 of 2015 [2016] eKLR.

67. M/s Soweto submitted that there is use of state machinery as a sword of oppression against the Petitioner by virtue of the chronology of events in this matter from 7th March 2016 to 27th March 2017 which are carefully coordinated in order to harass and frustrate the Petitioner.

68. Mr. Mutetifor the 3rd Respondent submitted in rebuttal, that what the Petitioner asks this court is to suspend the constituted authority of the police, the A.G and DPP by seeking orders to restrain them from doing their constitutional duties.  Mr. Muteti submitted that the DPP exercises his powers under Article 157 to institute criminal proceedings and to direct the CID to commence investigations.  Counsel submitted that the application does not disclose a case against DPP.  Mr. Muteti submitted that from the replying affidavit of Mr. Gituathi, the investigations were commenced upon compliant made to the Directorate of Criminal Investigations and upon directions from the DPP.  That was a proper exercise of DPP’s Constitutional authority.  Secondly, the DPP has not acted on the said investigations since the same are still incomplete.  Counsel submitted that there is no case against the DPP in this matter, and that no issue has crystalized against the DPP.  As for the police Mr. Muteti submitted that they are acting within their powers.  What is in issue is the alleged forging of 1992 KCSE result slip.  Counsel submitted that this issue had not been addressed by the Petitioner.  Mr. Muteti questioned the Petitioner’s silence on the issue.  If there is no basis for investigating the 1992 result slip then the Petitioner must give the reason.

69. Mr. Muteti submitted that the police upon receipt of a further complaint are not barred from re-investigating the matter provided they do so without ulterior motive. Counsel submitted that under section 35 of the National Police Act, the police are mandated to detect and prevent crime and in this suit the police acted in good faith on account of a complaint made.  Thus even though the issue may have been raised in 2013, when new facts were discovered a new investigation was necessary. Counsel referred the court to the case of Republic versus The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Nairobi where the court held:

“…the police have a duty to investigate on any complaint once a complaint is made. In deed 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 cases cannot therefore be said not to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner, the High Court would be reluctant to intervene.”

70. Counsel submitted that unless the Petitioner establishes that the police are acting ultra vires their powers, the court should not unnecessarily inhibit them from investigations. Counsel further cited the case of Republic versus AG and 4 Others Ex Parte Diamond Hashim Lalji and Ahmed Hashim Lalji Miscellaneous Application No. 153 of 2012where it was held that criminal investigations can be reopened depending on the circumstances of a particular case.

71. Mr. Muteti submitted that in Petition No. 39/2013, Justice Majanja only stated that the matter of qualifications could not be raised after elections while in Petition 116/ 2013, Justice Lenaola determined the validity of the Petitioner’s degree. Counsel stated that the current investigations are about the result slip of KCSE of 1992 which has not been determined by any court.

72. Mr. Muteti submitted that on the conduct of KRA, KRA was not a party to these proceedings hence it should answer for its own conduct. Counsel submitted that in any case it was just a coincidence that KRA were investigating the Petitioner at the same time as the DCI and the I.G.

73. In relation to violation of Article 157, Mr. Muteti submitted that the same was not operational as the investigations are ongoing and no report has been availed to the DPP and it is only after this has been done that it can be said whether or not Article 157 has been violated.

74. Citing the case of Hon. James Ondicho Gesami versus The Attorney General & Others, Petition No. 376 of 2011, Counsel submitted that it was held that:

“…The DPP is at liberty to prefer charges against any party in respect of whom he finds sufficient evidence to prefer charges…In my view, requiring that the petitioner subjects himself to the normal criminal prosecution process mandated by law where he has all the safeguards guaranteed by the Constitution does not in any way amount to an attack on his human dignity in violation of his constitutional rights”.

75. Counsel submitted that the court should be reluctant in accepting invitation by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in those cases where such organs and officers are acting ultra vires, outside the confines of reasonableness, procedural fairness, and mala fides and in total disregard of the Doctrine of proportionality in decision making. Counsel stated that in this case, there is absolutely no reason for the court to bar investigations and prohibit prosecution since none of the foregoing grounds exist to justify such a decision.

76. Mr. Muteti submitted that not all investigations result in prosecutions so there is no need for the court to intervene at this stage. Counsel submitted that there was no specific direction by the President instigating the state organs to take action against the Petitioner and further that under Article 157 the DPP would not take order from anybody.

77. Mr. Muteti submitted that the court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings and that this court is not entitled to make definitive findings on matters which go to the merits of the impugned proceedings.

78. Citing the case of Tukamuhebwa vs. A.G. (Uganda) Petition No. 59 of 2011, Mr. Mutetisubmitted that The DPP acts independently regardless of the utterances of the President. There is no evidence that the DPP or the Inspector General of the police acted upon instruction from the President.  Mr. Muteti submitted that if there is any benefit that can be drawn from these proceedings it is to allow the investigations so that chapter 6 of the Constitution on integrity can be complied with. This matter has nothing to do with elections.  Counsel submitted that there is no law stopping any candidate facing charges from contesting in elections. At the moment, the petition is merely speculative. This court cannot issue speculation orders. Once investigations are complete the DPP will look at the same and make independent decision.

79. Mr. Muteti submitted that each arm of the government should be allowed to exercise its powers without any interference and only if such exercise of power is abused or exceeded, would a check on the responsible organ be necessary. Counsel cited the case of Republic versus Chief Magistrate Milimani & Another Ex-parte Tusker Mattresses Ltd & 3 others [2013] where the court held that:

“The court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial. That this court has power to quash impugned warrants cannot be doubted. However, it is upon the ex parte applicant to satisfy the court that the discretion given to the police to investigate allegations of the commission of a criminal offence ought not be interfered with… The High Court ought not to interfere with the investigative powers conferred upon the police or the Director of Public Prosecutions unless cogent reasons are given for doing so.”

80. Mr. Muteti submitted that court orders once issued ought to be obeyed thus if there are any orders that have not been obeyed by the Respondents the Petitioner should institute contempt of court proceedings.

81. Mr. Muteti submitted that under Article 157 (10), the power of the DPP is exercised independently while having regard to public interest and the interest of justice. Counsel cited the case of Bitange Ndemo versus Director of Public Prosecutions & 4 others [2016] eKLR where the court held that:

“It is now established law that a court ought not to ursurp the constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecutions in the exercise of the discretion conferred upon that office”.

82. Mr. Muteti submitted that this Petition was filed before investigations were concluded thus the 3rd Respondent cannot be said to have the intentions to prosecute and/or charge the Petitioner as the decision whether to charge or not charge has not been made. Counsel submitted that a declaration cannot be made to the effect that the intended charges and/ or charges against the Petitioner are based on malice, vendetta and fabricated evidence as there are no intended charges because the investigations are yet to be concluded.

83. Mr. Guyo, learned counsel for the 4th Respondent submitted that the DCIO has a duty to investigate any complaint made to it and that it is irrelevant who made the report and the motive behind it. If the police have a suspicion that an offence has been committed then the same must be investigated. Counsel submitted that it was irrelevant how many times the same request is made and that the 1st and 2nd Respondents have the latitude to decide how they will go about their investigations. Counsel stated that the 1st Respondent is merely conducting his investigations and the Petitioner’s insinuations that this is being done out of ill motive is a way to defeat the process.

84. In rebuttal, Mr. Orengo submitted that the Petitioner has been described as a “prime suspect” by the investigating officer who already formed a conclusion that the Petitioner had forged a KCSE result slip and that the constant theme about the allegations was not that Joho should be punished in respect of a criminal offence but that the material obtained revealed that the Petitioner did not qualify to be a governor.

85. Mr. Orengo submitted that when a director of public prosecution reopens a file, that is done by a clear statement as to why and reasons must be given for the reopening of the investigations. Counsel stated that the Respondents should not mechanically exercise their authority and when the 3rd Respondent knows that the 2nd Respondent is not acting in good faith, the 2rd Respondent should intervene to ensure that there is no abuse of the legal process. Counsel concluded that this Petition should be allowed and the prayers sought granted including declaratory orders that deal with the decisions of the other courts which were disobeyed by the Respondents.

Analysis and Determination

Issues for Determination

86. This court shall adopt the issues for determination as identified by the parties, and these are:

a) Whether the 1st, 2nd and 3rd Respondents conduct or actions has contravened the Constitution or are likely to contravene or infringe upon the Petitioner’s fundamental rights and freedoms guaranteed under Articles 2(1) & (2), 3 (1), 10 (1), 10 (2), 25 (a), 27 (1) & (2), 28, 29 (a, b, c, d, f), 32, 33 (1), 36, 37, 38, 47, 129, 131 (2) & 157 of the Constitution.

b) Whether or not the Director of the Public Prosecution and the Directorate of Criminal Investigations have exercised their powers properly.

Whether the 1st, 2nd and 3rd Respondents conduct or actions has contravened the Constitution or are likely to contravene or infringe upon the Petitioner’s fundamental rights and freedoms guaranteed under the Constitution.

87. It is trite law that a Petitioner who alleges violation of constitutional rights must demonstrate sufficiently that the specific provisions/articles mentioned have been violated. See the case of Trusted Society of Human Rights Alliance versus Attorney General & others, High Court, Petition No. 229 of 2012.

88. The Petitioner in his Amended Petition alleged that the Respondents have infringed his rights under Article 27 (1) and (2) of the Constitution particulars of the infringement including the 1st, 2nd and 3rd Respondents acting with impunity, oppressively, unreasonably, high handedly and otherwise denying the Petitioner the comfort or confidence that he was and is being treated equally, fairly or that he has equal protection or benefit of the law and the 1st Respondent’s action of unreasonably and without notice withdrawing the Petitioner’s security violating his right to equal protection. On this issue, the Respondents allege that the Petitioner was treated equally and fairly and that his security was only withdrawn as a routine procedure and subsequently reinstated.

89. The Petitioner claims that the 1st and 2nd Respondent have breached his right to fair administrative action under Article 47 of the Constitution by:

i. Withdrawing the Petitioner’s police bodyguards assigned to him without notifying him and for no justifiable course.

ii. Re-opening investigations into the academic qualifications of the Petitioner despite the same having been closed.

iii. Maliciously publishing on social media the purported findings of the investigations on alleged involvement in forgery.

iv. The summoning of the Petitioner to record a statement in relation to the forgery with the intention of prejudicing the legal rights of the Governor in order to bring his character to disrepute.

v. The investigation and intended prosecution of the Petitioner in relation to his academic qualifications has not been expeditious, efficient, lawful, reasonable or procedurally fair.

vi. The decision by the Kenya Revenue Authority to have CFC Stanbic Bank Limited preserve money held in the Petitioner’s account and the decision to have Diamond Trust Bank provide all records relating to the Petitioner’s account are unfair, unreasonable, irrational and have been made in abuse of power. On this the Respondents aver that its actions have been merited since they received the complaint of the alleged forgery of the Petitioner’s KCSE certificate and thus the Petitioner has been treated fairly.

90. The Petitioner further alleges that the 1st and 2nd Respondents have breached his right to security under Article 29 (a, c, d, e, f) through the utterances and threats by the President of the Republic of Kenya, withdrawal of the Petitioner’s security detail and body guards assigned to him without notification and/or reasonable justification, unlawfully blocking and/or preventing the Petitioner from accessing his office or attending a public function and violent disruptions of the Petitioner’s political rally. On this the Respondents have stated that they did not act upon the alleged utterances of the President and that there was a valid justification for the withdrawal of the Petitioners’ security guards.

91. The Petitioner alleges that the 1st and 2nd Respondents have infringed on his right to property under Article 40 of the Constitution through the actions of the Kenya Revenue Authority that required the manager Diamond Trust Bank to provide all records in respect of the Petitioner’s account. This allegation was neither denied nor acknowledged by the Respondents as none of them was responsible for the alleged violation. The alleged perpetrator of this violation is the Kenya Revenue Authority which is not party to these proceedings.

92. The Petitioner claims that his right under Article 39 (freedom of movement) has been breached by the 1st and 2nd Respondents who unlawfully prevented him from accessing his office and from attending a public function and that Mr. Nelson Marwa, the Coast Region Coordinator instructed the Petitioner to confine his political activities within Mombasa County.

93. The Petitioner claims that there has been an infringement to his political rights under Article 38 of the Constitution and his right to assembly under Article 37 of the Constitution by the 1st and 2nd Respondents specifically the 1st Respondent’s agents who violently disrupted his rally in Kinango, Kwale County and uncalled for utterances by the Coast Region Coordinator, Mr. Nelson Marwa.  On this the Respondents stated that any encounter that the Petitioner has had with security officers was not directly targeted at him but was rather a routine encounter with the police in their line of duty.

94. The Petitioner alleges that 1st and 2nd Respondents have violated the Petitioner’s freedom of expression under Article 33 of the Constitution by continually harassing, intimidating, threatening the Petitioner as a result of the Petitioner’s publicly stated political views and fair criticism of the President and the ruling Jubilee Coalition. On this the Respondents alleged that there was no evidence that the Petitioner has been harassed, intimidated or threatened by either of the Respondents.

95. The Petitioner alleges that his right to inherent dignity under Article 28 of the Constitution has been breached by arbitrarily withdrawing his lawful state security and using force to curtail the Petitioner from exercising his rights under Articles 32, 33, 37, 38 and 39 of the Constitution.  On this the Respondents again reiterated that the Petitioner’s security were not arbitrary withdrawn but rather that the withdrawal was a routine exercise and soon thereafter the security officers were reinstated.

96. To address the above allegations of violation of rights, this court must now assess the alleged conduct of the Respondents vis-à-vis the stated constitutional provisions.  In other words, have the exercise of their statutory mandates by the Respondents infringed or violated the Petitioner’s rights?

97. In relation to the 3rd Respondent, Articles 157(6), (10) and (11) provide as follows:

(6) The Director of Public Prosecutions shall exercise State powers of prosecution andmay—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminalproceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c) subject to clause (7) and (8),discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.

(11) In exercising the powers conferred by this Article, 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.

98. In relation to the 1st and 2nd Respondents, Section 35 of the National Police Service Act which gives the police investigative powers provides:

The Directorate shall -

a) collect and provide criminal intelligence

b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime and cybercrime among others;

c) maintain law and order

d) detect and prevent crime,

e) apprehend offenders,

f) maintain criminal records;

g) conduct forensic analysis;

h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;

i) co-ordinate country Interpol Affairs;

j)  investigate any matter that may be referred to it by the Independent Police Oversight Authority; and

k) perform any other function conferred on it by any other written law.

99. The DPP in the commencement of criminal proceedings shall not seek the consent of any person or authority. However, the DPP is mandated to 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.  Did the DPP do these in this Petition?

100. In the case of Kuria & 3 others versus Attorney General [2002] 2 KLR 69 it was held;

“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-setting or vilification on issues not pertaining to that which the system was formed to perform…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…”

101. It is the opinion of this court that the decision whether or not to institute criminal proceedings is made based on the evidence collected.  Once the investigations establish reasonable suspicion that a person committed a crime, he ought to be charged in a court of law.  The rest is left to the courts of law.  This position was set out in the case of Republic vs. Commissioner of Police ex-and another ex-parte Michael Monari & Another [2012] eKLR where it was held that:

“...the police only need to establish reasonable suspicion before preferring charges.  The rest is left to the trial court…”

The court went on to state that:-

“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.”

102. So then, the issue here is whether or not the holders of authority have exercised the same in a reasonable manner so that there is no need for any intervention by the court.  That is as far as the police investigation is concerned.

103. As for the DPP there is no dispute to the fact that under Article 157 (10) of the constitution the Director of Public Prosecution is independent and cannot be subject to any agent or authority in the exercise of the power of his office. The exercise of those powers are only subject to Article 157 (11), which states that:-

“In exercising the powers conferred by the Article the Director of Public Prosecution shall have regard to the Public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process.”

104. The Kenya Constitution upholds, and is based on principle of separation of powers, roles and functions for various constitutional actors. The office of Director of Public Prosecution is an independent office with clear defined functions.  In principle, it is not the work of court to interfere with other State organs unless it can be shown that they violate the constitution: each State organ must be allowed to function without interference.  It is the duty of this court to protect not only the functional administrative and operational independence of the office of Director of Public Prosecution but also to protect the Petitioner and ensure that in exercise of its functions, the DPP must have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process.

105.  In this context, functional administrative and operational independence entails that the Offices of DPP and DCI in exercising their autonomy and carrying out their functions they do so without receiving any instructions or orders from other State organs or bodies, and have regard to inter alia public interest and not to abuse the legal process.  The office of DPP must also adhere to the national values in Article 10 of the Constitution and in the context of this Petition principles of good governance, transparency and accountability in exercise of its functions.

106. In considering public interest as a criterion for determining whether this court should grant orders as prayed for in the Amended Petition, I have considered whether as a general rule it is in public interest to stop the DPP from investigating any criminal offence on the basis that such investigation is a threat to fundamental rights and freedoms because it may lead to arrest and prosecution of an individual.

107.  In my view, threat of arrest itself or threat of violation of fundamental rights and freedoms per see is not a reason enough to stop the DPP from carrying out his functions. What the law seeks to prevent is arbitrary arrest without probable cause.  An objective justification must be shown to validate arrest of any individual. The Kenya Constitution recognizes that if a criminal offence is committed, investigation arrest and prosecution might ensue. In this context, the Constitution anticipates arrest of individuals and that is why Articles 49 and 50 (2) make provision for the rights of arrested persons.  Therefore, a threat of arrest of a person per see is not unconstitutional so long as due process of law is followed and the rights of the arrested person are observed.  So the issue here is whether or not the petitioner’s rights have been observed.   Are the alleged investigations and probably charges being preferred against the petitioner abuse of the criminal process, unfair to the applicant, or against the public interest?

108. Public interest can be said to be that which concerns the general welfare of the population thus warranting recognition and protection. The petitioner is the governor of Mombasa County. He became a governor pursuant to the general elections held in 2013. His election was challenged on a number of grounds among them that he did not have the requisite educational requirement to hold that position. That was an issue which was heard and determined by a court of competent jurisdiction. It is not a matter before this court. However, now the Petitioner is being investigated on an alleged forgery of a KCSE Examination Result Slip [Particulars withheld] of 1992 Serani Secondary School, Mean Grade C+ alleged to be in the Petitioner’s name. In that regard, the petitioner’ s case is that the alleged fresh investigations over his education qualifications are aimed as causing him political distress and to cause his constituents to shun and alienate him politically.

109. The alleged investigations stem from a complaint made by one Janet N.E. Mbete on 3rd January 2017 in which she complained that the Petitioner had used a forged KCSE certificate when applying for admission to the University of Nairobi in 2009. The complainant admits that in the year 2013 she made another complaint against the Petitioner in which she claimed that the Petitioner had fraudulently acquired a Bachelor of Business Administration (BBA) degree certificate from Kampala University. The complaint made in 2013 was investigated and no prosecution was mounted by the DPP. The Petitioner claims that he is being investigated on allegations that were already investigated and completed thus he is being harassed and intimidated. The 1st, 2nd and 3rd respondents through their responses herein claim that the two complaints are different and that the 3rd Respondent has the right to reopen an investigation even if the same was closed.

110. The Respondents cited with the approval of this court the case of Republic versus AG and 4 others Ex parte Diamond Hashim Lalji and Ahmed Hashim Lalji, Miscellaneous App No. 153 of 2012 where the court held:

“In my view I do not agree with a blanket view that where a criminal investigation has been purportedly closed it can never be reopened under any circumstances. In my view the discretion to close the matter and a reversal of the same must depend on the particular circumstances of the case.”

111. In this instance the complaint made in 2013 dealt with the fraudulent acquisition of a Bachelor of Business Administration (BBA) degree from the University of Kampala. This complaint is similar to that made by the same complainant in January 2017 as both relate to the Petitioner’s educational qualifications. This court is left to wonder why the complainant did not make the complaint made in 2017 in 2013 when she made the initial complaint. From the further statement made by the complainant on 25th March 2013 (attached to the Replying Affidavit of Cpl. MOSES GITUATHI sworn on 7th April 2017 and marked as “MG-2”) she states;

“In my statement, I stated that I could not understand how Hassan Ali Joho could get a degree while he was having form IV grade D result. My attention was based on information that he had applied for admission to University of Nairobi for a Bachelor of Commerce degree on 31st August, 2009 and had transferred his credit units from University of Nairobi to Kampala University where he had registered for a BBA degree course in the year 2009. ”

112. If the complainant purportedly knew that the Petitioner had obtained grade D in his KCSE then this factor must and ought to have been part of the 2013 investigations into the fraudulently obtained degree certificate from the Kampala University.  This court is left to wonder why the complainant did not raise this complain between 2013-2017 and why she chose to raise the complaint in 2017, an election year. Court considers the timing to be mischievous.

113. In the case of Republic vs. Attorneys General ex-parte Kipng’eno No. 406 of 2001,  the Attorney General had preferred charges against the applicant 9 years after the alleged commission of the offence, and the applicant sought to stop the persecution on account of the delay .  The court observed as follows:-

“In the case before us, the delay was nine years.  No attempt has been made to explain it.  Why did the state not mount a prosecution immediately?  We cannot think anything else but that the criminal prosecution against the applicant was motivated by some ulterior motive.  It is not a fair prosecution.”

114.  In that case the then Kenya Anti-Corruption Authority (KACA) also came under heavy criticism of the court which observed that:

“. . . KACA had just embarked on “its mission” and maybe it was over enthusiastic when it went after the applicant: a minister in the sitting Government of the day and quite a prominent personality.  Our question in this case is whether the criminal prosecution of the applicant by the Attorney General is according to due process.  We do not think so.”

115. As in the present case, the petitioner is a high flying official.  He is a governor of a county.  Investigations about his alleged criminal conduct was ordered (4) years ago.  To date he has not been charged with any wrong doing.  Instead there has been escalation of further investigations with a view to charging the petitioner with various offences ranging from alleged tax evasion, forging academic documents robbery with violence, trading in drugs and a host of others yet to emerge.  Despite the alleged investigations the petitioner is yet to be charged.  As was noted in the Kipng’eno case, although the delay herein is not nine years, this court finds that the principle behind the resumed investigation is the same.  It may be motivated by factors which this court may not fully ascertain.

116. Whatever the motivation however, it is the considered opinion of this court that all the alleged investigation, intimidation and harassment and intended prosecution of the petitioner by the Respondents have a politically timed ending.  It is the finding of this court that the said intended charges and prosecution are ill timed and motivated, are malicious and disclose abuse of Petitioner’s Constitutional rights.  Article 239 (3) requires the police in their performance not to act in a partisan manner nor be prejudiced by political interests.  Article 245 (4) (a) of the Constitution provides that the police shall not be under the direction of any person in the discharge of their duties.   Section 7 of the Fair Administrative Action  Act sets out circumstances under which a court or tribunal may review any administrative action to include bias, ulterior motive, where an action is not authorized by law, abuse of power or process among others. That means that any intended prosecution of the Petitioner will be based on ulterior motive to ensure that the Petitioner is disqualified from contesting for governorship.  In the replying affidavit of the 1st, 2nd and 3rd Respondents, there is a letter marked “MG2” from one Janet Ndago Ekumbo Mbete who made a complaint about the Petitioner’s qualifications.    The complainant had made a similar complaint in 2013 and the same was investigated.  However, the focus of the statement on 25th March 2017 by the complainant is still on the qualification of the Petitioner to run for governor and there is nothing about any alleged criminal actions by the Petitioner.  In Stanley Munga Gihtunguri v- Republic CR. APP. No. 271 of 1985 Justice Madan while granting an order of prohibition stated that to charge the Applicant four (4) years after it was decided by the Attorney General not to prosecute was a grave injustice.

117. The aforementioned complainant filed in Nairobi High Court Petition No. 39 of 2013, Janet Ndago Ekumbo versus The Independent Electoral and Boundaries Commission & 3 others claimed that the Petitioner lacked the requisite academic qualifications to vie for the position of governor in Mombasa. However, the said Petition was dismissed.  The complainant then filed Nairobi High Court Petition No. 116 of 2013 in which she claimed that the Petitioner had fraudulently procured a university degree.  Justice Lenaola (as he then was) found that the Petitioner therein had failed to bring evidence that the 3rd Respondent had used fraudulent means to obtain his degree and dismissed the Petition.  It is patently clear that the investigations in question are being conducted in bad faith with an ulterior motive solely motivated to achieve a collateral purpose other than legitimate objectives for administration of justice for the following reasons, that the issue relating to the alleged forgery of KSCE result slip was the subject of similar investigations in 2013 by the 2nd Respondent in Police file number 122/33/2013. The investigation culminated in a criminal charge, Criminal Cases No.102 of 2013 and 108 of 2013.  In one of the cases, a Mr. Titus Omondi Sindi alias Breshener Omondi, in Criminal case No.102 of 2013 was charged with making a document without authority contrary to section 357 (a) of the Penal code, particulars of which are that, the accused, with intent to deceive without lawful authority or excuse made a certain document namely Kenya Certificate of Secondary Education result sheet number 16032 for Serani Secondary School for the year 1993 purporting it to be genuine results issued by the Kenya National Examination Council.  Records shows that the 2nd Respondent on its own volition applied to withdraw the matter under section 87 (a) of the Criminal Procedure Code.  This fact has been deliberately concealed by the 3rdRespondent and this smacks of malice and bad faith.

118.  Despite the foregoing, the National Police Service through the Directorate of Investigation summoned the Petitioner to record a statement relating to an alleged forging of a 1992 examination result slip in his name. It is the finding of this court that the act of the 2nd Respondent in summoning the Petitioner over these allegations was a decision taken with an ulterior motive or purpose clearly calculated to prejudice the Petitioner’s legal rights. These investigations have not been conducted expeditiously or fairly in the circumstances.  In view of the foregoing, it is the finding of this court that the decision by the 2nd Respondent to re-open the investigations under the pretext that they had received a complaint from a member of the public is not only false but misleading.   This court observes that Article 157 of the Constitution does not merely mean that the director of Public Prosecution is a conveyor belt for each and every investigations and findings placed before him.  The office of the DPP is duty bound to interrogate the investigations presented to it and ensure that they comply and meet the Constitutional threshold.  In view of the conduct of the 2nd Respondent as stated herein any resulting process would amount to an abuse of process and therefore in breach of Article 157 (11) of the Constitution. This Court is enjoined by the provisions of Article 159(2) (e) of the Constitution to protect and promote the purpose and principles of our Constitution at all times.  It is within the province of this Court in exercising its power to prohibit the abuse of the intended criminal process as it is divorced from the goals of justice, and to find that the intended prosecution is not consistent with the constitutional values as enshrined under Article 10 and the tenets of good governance and the rule of law.  The material availed to the court show clearly a well-coordinated deliberate effort by the 1st 2nd & 3rd Respondents to harass, intimidate and victimize the Petitioner under the pretext of carrying out investigations. There is evidence of unprecedented and curious move by the Ethics and anti-corruption Commission who wrote a letter to Tom Mboya Primary School in Mombasa to ‘verify’ whether the Petitioner had indeed attended Tom Mboya Primary School.    The said letter was responded to on the 5th of April 2017 where Tom Mboya Primary School indeed confirmed the Petitioner’s admission number, index number as well as his KCPE results.It is the view of this court that the above clearly show that these acts on the part of the Respondents against the Petitioner are unfair, discriminative, unreasonable, and irrational, tainted with bad faith and malice and are decisions and or acts are made in abuse of power in contravention of Article 47 of the Constitution.

119. In respect of restriction of movement, the Petitioner was stopped from attending state functions and was also barred and falsely imprisoned within his office. In addition there was the removal of state security which violate the Petitioner’s rights under Articles 27 and 29.  Clearly there is an element of discrimination as the Petitioner was being punished on account of his political views.

120. Again, the Petitioner's case is that the President of the Republic of Kenya H. E. Uhuru Kenyatta has castigated the governor in public and has used unpalatable language against the person of the governor and that the action of the president has brought the issue on to the public platform, and the issue has assumed a public interest and dimension.

121. According to the pleadings herein, it is alleged that the H. E. the President uttered words to the effect that “nitamnyorosha”, which loosely translated means that the President would teach the petitioner a lesson. According to the pleadings, the petitioner has been called the Sultan of Mombasa, and that all utterances are in the public domain. Arising from the alleged presidential comment, the petitioner's case is that all governmental forces have suddenly acquired interest in the Petitioner, and that the DCI, the KRA, the DPP and the Attorney-General have simultaneously swung into action, with the DPP and DCI and the police investigating non existing issues, and the DPP threatening to charge the petitioner with the sole purpose of making sure that the applicant loses the elections scheduled for 8th August 2017 (For record, the Petitioner actually won the said elections and is again the governor of Mombasa County).

122. The aspects of investigations alleged to be going on are now firmly documented in this petition. Clearly then, it is important to interrogate the alleged utterances of H.E. the President, and to determine the context in which the same were made, and to establish if those utterances have any connection with the Petitioner’s alleged tribulations herein.

123.  For avoidance of doubt the Presidency is a powerful institution in our Constitutional democracy.  Under Article 131 (1), the President is the Head of State and Government, the Commander-in-Chief of the Kenya Defence Forces, the Chairperson of the National Security Council and is a symbol of national unity.  When the President says anything, it is reported over and over again.  His words, even if disputed, retain the power, respect prestige and honour of the Presidency.  The President’s utterances can also be taken out of context by various governmental and political actors depending on what the actors intend to achieve.  In the present instance, what the President is alleged to have uttered have not been denied.  What matters is the context in which the same were made. In their submission the Respondents did not engage so much on this issue.  I guess to them the matter was a non-issue.  They could be right.  This is so because the President is also a politician.  He is also given to the political emotions of the moment.  It cannot be taken that whatever the President utters is meant to have the force of law.  Politicians say so many things which are forgotten as soon as they are uttered.  In the circumstances, the court does not accept the submission by the Petitioner that the aforesaid utterances by the President were in any way meant to harm or to cause discomfort to the Petitioner.  Those were the kind of not so friendly words that politicians spew out in a moment of annoyance, and forget the same the next moment, and continue to still relate well with one another.

124. However, the President’s utterances may have effect upon actors or agencies who believe that it is their duty to find expression or meaning for what the President may have said.  This appears to be the case in this matter because soon after the President uttered the said words various governmental agencies fell head over heels, to initiate all manners of investigations of the Petitioner.  Even investigations which were abandoned in 2013 have been revived.   All over sudden, there are fresh investigations on the academic certificates of the Petitioner by the Director of Criminal Investigations; all over sudden the Petitioner is being charged with robbery with violence; all over sudden the Kenya Revenue Authority is investigating the Petitioner for alleged tax evasion; all over sudden the Petitioner’s body guards and security detail, and firearms are being withdrawn, and remain withdrawn despite a court order that the same be restored.  The question that this court must address is this: why the flurry of investigations, why now?  And what causes the government to blatantly disobey the court orders to return the firearms and security guards and detail to the Petitioner?

125.  In my view, the most probable answer is that the Respondents have misinterpreted the President’s utterance.  In other words, the Respondents appear to be “mnyoroshering” the Petitioner in their belief that they are executing an executive order.  Their revival of investigations abandoned in 2013 is suspect, and is not in public interest.  Although the Kenya Revenue Authority (KRA) is not part of these proceedings, and so no orders from the court can bind them, nonetheless it is clear that the script is the same:  the idea is to cripple the Petitioner and to have a cocktail of possibilities with the sole purpose of limiting, hurting, damaging or altogether getting rid of the petitioner from the political contest of the governorship of Mombasa County.  So, this explains the question as to why now?  In that regard it is clear the DPP has fallen foul of Article 157 (11) in that his actions appear to have disregard to public interest and the interest of the administration of justice, and is an abuse of the legal process because the DPP appear not to be taking independent decision.  A revival of investigations abandoned in 2013, and only after the President had publicly made remarks about the applicant, appear not to be in public interest.

126. The Stanley Munga Githunguri case which I have referred to herein remains a valid authority in Kenya in matters in the protection of fundamental rights and freedoms under Kenya’s judicial system.  In those repressive days of single party KANU rule, Chief Justice Madan did not hesitate declaring the sanctity and superiority of the then constitution in as far as it protected the fundamental rights and freedoms of Mr. Githunguri.  Thirty one (31) years down the line, and under the dispensation of a robust and progressive constitution, this court should not find difficulty in declaring the validity of the fundamental truths enshrined in our constitution.  Mr. Joho’s fundamental rights and freedoms are protected under our judicial system.  This court hereby affirms that the Petitioner’s fundamental rights and freedoms enshrined in the Constitution of Kenya have been breached, violated and abused by the Respondents.

127. For all the foregoing reasons, the Petitioner’s Petition dated 30th March, 2017 is allowed as prayed.

128. The Petitioner shall have the costs of the Petition.

Dated, Signed and Delivered in Mombasa this 5th day of October, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Muteti & Ms. Keruga for 1st, 2ndand 3rd Respondents

M/s. Kiti, M/s. Wasuna, Mr. Makuto & Mr. Mwadenje for Hon. Attorney

General

M/s. Julie Soweto holding brief Mr. Orengo and Mr. Mosota for Petitioner

Mr. Kaunda Court Assistant