Katana Kazungu Kitsao & Khamisi Ali Mbwalame v Director of Public Prosecutions & Senior Principal Magistrate’s Court, Kilifi [2017] KEHC 3021 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CONSTITUTIONAL PETITION NO. 4 OF 2017

KATANA KAZUNGU KITSAO……………………………….……1ST PETITIONER

KHAMISI ALI MBWALAME………………………….……….….2ND PETITIONER

AND

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

SENIOR PRINCIPAL MAGISTRATE’S COURT, KILIFI….…….2ND RESPONDENT

JUDGEMENT

1. Katana Kazungu Kitsao, the 1st Petitioner and Khamisi Ali Mbwalame, the 2nd Petitioner are the accused persons in Kilifi SPM’s Court Criminal Case No. 138 of 2016 where they have been charged for the offence of forcible detainer contrary to Section 90 of the Penal Code before the 2nd Respondent, the Senior Principal Magistrate’s Court, Kilifi.  The charge has been brought against them by the 1st Respondent, the Director of Public Prosecutions.  The particulars of the charge disclose that the petitioners are alleged to have on 9th April, 2016 at Kibarani Sub-location within Kilifi County, jointly with others not before court, taken and held possession of land parcel No. 5046/4 Kilifi belonging to Millenium Management Limited in a manner likely to cause a breach of peace.

2. The petitioners have filed the instant Petition seeking an order of prohibition directed at the respondents prohibiting the respondents from prosecuting or entertaining criminal proceedings against them.

3. The petitioners assert that the Director of Public Prosecutions (“the DPP”) has abused his powers by partially investigating a complaint lodged against them by busybodies with a view  to maligning their reputations and denying them the enjoyment of their liberties as protected by the law.  This, they assert will render void their legitimate expectation of protection by the law.

4. According to the petitioners, the criminal proceedings have been instigated with ulterior motives and are in breach of their constitutional rights.

5. It is the petitioners’ averment that the respondents are engaging in a campaign to frustrate them by deliberately declining to conduct impartial investigations on a complaint by busybodies.  They therefore assert that their prosecution is a violation of their rights as protected by Articles 27, 28, 31 and 47 of the Constitution.

6. According to the petitioners, they have a legitimate expectation that their rights, and especially the right to a fair hearing, are guaranteed by the Constitution.

7. The petitioners contend that their prosecution was aimed at harassing, vexing and oppressing them as it was done irrespective of the pendency of a civil suit between the parties being Malindi ELC No. 94 of 2016 Millenium Management Limited v Khamisi Ali Mbwalame & 12 others.

8. The respondents oppose the Petition.

9. The advocates for the parties agreed to dispose of the matter through written submissions.

10. It is submitted for the petitioners that they had a legitimate expectation that the DPP would first investigate the complaint before arresting them.  They assert that Article 29(1) of the Constitution provides that every person has a right to freedom and security of person including the right not to be deprived of freedom arbitrarily or without just cause.  It is the petitioners’ case that the complainant  together with the DPP maliciously and without reasonable and probable cause instituted criminal action against them so as to circumvent the civil case hence subvert the due process of the law.

11. The petitioners contend that the respondents’ action is a negation of the rights to equality before the law, the protection of the law and benefit of the law as provided in Article 27 of the Constitution.  They posit that the respondents have failed to protect them from the malicious prosecution brought forth by the complainant.

12. Referring to Article 47(1) of the Constitution which provides  for fair administrative action, the petitioners submit that their right  to expeditious, efficient, lawful, reasonable and procedurally fair administrative action has been breached in that their prosecution was commenced despite the existence of a civil case that seek to determine the legal owner of the parcel of land they are alleged to have unlawfully taken possession of.

13. The petitioners support their submissions with the statement of Mativo, J in Misc. Criminal Application No. 22 of 2014  Samuel Roro Gicheru & another v The OCS Nanyuki Police Station & another that “[c]criminal proceedings commenced to advance other gains other than promotion of public good are in my view vexatious and ought not to be allowed to stand.”Saying that the criminal proceedings were commenced against them in bad faith, they urge this court to prohibit their prosecution.

14. The respondents’ position is that failure by the petitioners to enjoin the Inspector General of Police can only mean that the petitioners have no complaint regarding the manner in whch the investigations were conducted.  It is the respondents’ case that the replying affidavit sworn by Henry Achochi, a Senior Prosecution Counsel clearly shows that investigations were carried out.  Further, that the petitioners have attached to their Petition copies of witness statements and a covering report meaning that investigations were indeed carried out.

15. It is the respondents’ position that in recommending prosecution, the 1st Respondent acted on the investigations conducted by the police.  Further, that the decision by the DPP was based on the evidentiary material contained in the investigations file which included the statements of the petitioners.  Thus, the respondents assert, it can be deduced that a fair process was undertaken and the notion of malice and caprice is displaced.

16. The respondents assert that the petitioners are not deserving of any orders.  They support this submission by pointing out the fact that they brought this Petition one year after their arrest and prosecution.  Further, that they have willfully subverted the legal process by jumping bail and frustrating their prosecution.  According to the respondents, the petitioners have not  approached this court with clean hands.

17. It is the respondents’ assertion that the petitioners are not deserving of any orders as they have not demonstrated that they will be subjected to an unfair process before the 2nd Respondent.

18. Finally, the respondents assert that there is nothing unlawful in having parallel civil and criminal proceedings.  Section 193A of the Criminal Procedure Code is cited in support of this proposition.

19. The question to be answered in this Petition is whether  the DPP acted in breach of his constitutional mandate in charging the petitioners.  The Constitution empowers the DPP to exercise prosecutorial powers in criminal cases.  Article  157(11) of the Constitution directs that in exercising his powers the DPP “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”.  The powers of the DPP are thus exercisable within the parameters of the Constitution and statute.  Where the powers are exercised in a manner that abuses the legal process, and violates public interest or are contrary to the administration of justice, the courts will step in and quash the DPP’s actions.

20. In the case at hand, I get the impression that the petitioners believe that the existence of the civil case should act as a bar to their prosecution.  Their position is not supported by the law.  As correctly pointed out by the respondents, Section 193A of the Criminal Procedure Code, Cap. 75 legitimises concurrent criminal and civil proceedings by providing that:

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

21. This point was clarified in Kuria & 3 others v Attorney General [2002] 2KLR 69 when the court held that:

“It is not enough to simply state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process.  There is a need to show how the process of the court is being abused or misused.  There is a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution.  In the absence of concrete grounds….it is not mechanical enough that the existence of civil suit precludes the institution of criminal  proceedings based on the same set of facts.”

22. It is, however, noted that in the cited judgement the Court also held that the commencement of criminal proceedings with a view to forcing the hand of the opposite party in a civil suit amounts to abuse of prosecutorial powers.

23. In George Joshua Okungu & another v Chief Magistrate’s Anti-Corruption Court at Nairobi & another [2014] eKLR the Court captured the applicable principle as follows:

“The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence.  Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the Petitioner to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim.”

24. Whereas the commencement of criminal proceedings, while there are civil proceedings in existence over the same subject between the same parties, may be deemed to be an abuse of the court process, an applicant who desires to quash the criminal proceedings on this ground must go ahead to demonstrate that there is nothing criminal about the dispute or that justice is better served by resolving the dispute through civil proceedings.

25. In the case at hand, the petitioners allege that their prosecution  was commenced when there were already civil proceedings regarding the ownership of the same parcel of land they are alleged to have taken possession of.  A perusal of the file will show that the petitioners were arrested on 9th April, 2016 and taken to court on 14th April, 2016.  The stamp on the plaint filed vide ELC No. 94 of 2016 by Millenium Management Limited against the petitioners and others show that the claim was received by Malindi Environment and Land Court on 26th April, 2016.  The civil case was thus filed after the petitioners had been charged in court.  It is also noted that in that claim the Plaintiff was not asking for a determination as to the ownership of the parcel of land in question.  The Plaintiff was simply seeking an eviction order against persons who had trespassed upon its land.  In the circumstances of this case therefore, the concurrent criminal and civil proceedings cannot be said to be an abuse of the court process.

26. The petitioners alleged malice on the part of the respondents.  No evidence was however placed before the court to support this allegation.  All the other allegations of breach of the petitioners’ constitutional rights are unsupported.

27. Considering  the material placed before this court, I find that the petitioners have not established grounds for prohibiting their continued prosecution.  Consequently, their Petition has no merit and the same is dismissed.

28. As the Petition rode on the back of a claim of alleged infringement of constitutional rights, I direct parties to meet their own costs of the proceedings.

Dated, signed and delivered at Malindi this 12th day of October, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT