John Wacira Wambugu v Chief Magistrate Milimani - Criminal Division, Director of Public Prosecutions, Directorate of Criminal Investigations, Mugwi Macharia & Gilbert Nderitu [2017] KEHC 907 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 620 OF 2017

IN THE MATTER OF ACTUAL AND THREATENED BREACH AND OR CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10,47,50 AND 157 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA

AND

IN THE MATTER OF ARTICLES 157 OF THE CONSTITUTION THE REPUBLIC OF KENYA 2010

AND

IN THE MATTER OF VICTIM PROTECTION ACT NO. 17 OF 2014

AND

IN THE MATTER OF INTENDED DECISION BY THE DIRECTOR OF PUBLIC PROSECUTION TO TERMINATE CRIMINAL CASE NO. 95 OF 2014, REPUBLIC -VS- MIGWI MACHARIA & ANOTHER

AND

IN THE MATER OF THE LAW REFORM ACT CAP 26, LAWS OF KENYA

AND

IN THE MATTER OF ODER 53 OF THE CIVIL PROCEDURE ACT CAP 21 LAWS OF KENYA, THE CONSTITUTION OF KENYA AND ALL OTHER ENABLING PROVISIONS OF THE LAW.

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF PROHIBITION AND MANDAMUS

BETWEEN

JOHN WACIRA WAMBUGU.........................................................................................APPLICANT

VERSUS

THE HON.CHIEF MAGISTRATE MILIMANI CRIMINAL DIVISION.....1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS....................................................2ND RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS...................................3RD RESPONDENT

MUGWI MACHARIA.........................................................................................4TH RESPONDENT

GILBERT NDERITU..........................................................................................5TH RESPONDENT

RULING

1. The exparte applicant John Wacira Wambugu by his chamber summons dated 12th October, 2017 and amended on 30th October 2017 seeks from this court leave to institute Judicial Review proceedings challenging the decision of the Director of Public Prosecution to terminate criminal proceedings against the accused persons Migwi Macharia, Gilbert Nderitu & Another vide Chief Magistrate Criminal Case No. 95 of the 2014 Republic vs Gilbert Nderitu & Another. He claims that the termination of the said criminal case where he is the complainant will occasion hardship to him because he was not given an opportunity to know that such decision was being made. He complains that the decision to terminate the criminal proceedings was made of the Fair Administrative Action Act and Article 47 of the Constitution on the right to Fair Administrative Action.

2. The applicant alleges that as a complainant he has a right to be involved in the decision to terminate the criminal trial.

3. The Director of Public Prosecutions opposes the application and is supported by the accused persons in the criminal trial contending that the Director of Public Prosecutions has a constitutional mandate to initiate and terminate criminal proceedings independently as stipulated in Article 157 of the Constitution, the Office of Director or Public Prosecution Act and that if the applicants are aggrieved by the Director or Public Prosecution’s decision they can institute private prosecution proceedings under Section 88 of the Criminal Procedure Code.

4. I have considered the exparte applicant’s application, grounds and affidavit verifying the facts. I have also considered the respondent’s opposition.

5. It is true that the Director or Public Prosecutions is an Independent Office established under Article 157 of the Constitution and in exercise of and discharge of his functions, he is not to be directed by any person.

6. However, the powers of the Director or Public Prosecutions to initiate and terminate or take over criminal proceedings is not absolute.

7. Before terminating proceedings, the court conducting the trial must consent. In addition, the Victims Protection Act No. 17 of 2014 provides that a court, administrative authority or person performing functions under the Act must ensure that every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken. ‘Victim’ under the Act is defined to mean any natural person who suffers injury, loss or damage as a consequence of an offence.

8. In this case, the applicant, is the complainant in the criminal case and therefore any decision made that would affect his rights or interests, he must be involved and given an opportunity to be heard in accordance with Article 47 and 50 (9) of the Constitution and the Fair Administrative Action Act, and the provisions of the Victims Protection Act, 2014.

9. From submissions by the parties’ counsels hereto, I am satisfied that the applicant has demonstrated that he has a prima facie arguable case for an indepth examination at a substantive hearing, without going into the merits thereof at this stage.

10. Accordingly, I grant him leave to institute Judicial Review proceedings as sought in the chamber summons amended on 30th October, 2017.

11. The main motion to be filed and served within 21 days from to date.

12. On the prayer for stay of implementation of the decision of the Director of Public Prosecutions to terminate the proceedings before the trial court, I note that the proceedings which the Director of Public Prosecutions had applied to terminate were not terminated by the court. They are still insitu. In my humble view, if the termination is effected, then these proceedings shall be rendered nugatory and the applicant will be rendered a pious explorer in the judicial process.

13. For that reason, I order that there shall be stay of implementation of the decision by the Director of Public Prosecutions to terminate Milimani Chief Magistrate Criminal Case No.95/204 Republic vs Gilbert Nderitu & Another until the substantive motion if filed, is heard and determined on its merits.

14. Costs shall be in the cause. Mention on 18th December 2017 to confirm compliance.

Dated, signed and delivered in open court this 14th day of November, 2017.

R.E. ABURILI

JUDGE