Kigen v Director of Public Prosecutions & 2 others [2022] KEHC 15396 (KLR) | Prosecutorial Discretion | Esheria

Kigen v Director of Public Prosecutions & 2 others [2022] KEHC 15396 (KLR)

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Kigen v Director of Public Prosecutions & 2 others (Constitutional Petition E005 of 2022) [2022] KEHC 15396 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15396 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition E005 of 2022

RN Nyakundi, J

November 15, 2022

Between

Titus Kipkoech Kigen

Petitioner

and

Director of Public Prosecutions

1st Respondent

Inspector General of Police

2nd Respondent

Attorney General

3rd Respondent

Judgment

Coram: Hon. Justice R. NyakundiMr. Mugun for the ODPPWachakama & Co. Adv 1. The Petitioner approached this court vide a Petition dated 8th February 2022 seeking the following orders;a.A Declaration that the institution maintenance and prosecution of the Petitioner in Iten Chief Magistrates Court Criminal Case No. E068 A/2022Republic v Titus Kipkoech Kigen is an abuse of the Criminal Justice System, oppressive, malicious, abuse of the process of the Court and a contravention of the Petitioner/Applicants Constitutional rights to freedom and security of the person and the right to secure protection of law.b.An order of certiorari does issue bringing to this Court for quashing and quash the charge and any proceedings before the trial Court at Iten Chief Magistrates Court, Criminal Case No. E068 of 2022 Republic v Titus Kipkoech Kigen or any other similar charge.c.An order of prohibition so issue the continuance of the Iten Chief Magistrates Court Criminal Case Number E06S of 2022 Republic versus Titus Kipkoech Kigen.d.An order for compensation of the Petitioner for general damages for the distress and anguish caused by the infringement of his fundamental rights and freedoms.e.An order for costs of the Petition.

2. The Petition is premised on the grounds set out therein and the contents of the said Petition. The Petitioner also filed an application dated 8th February 2022 seeking similar orders to those in the Petition.

Brief Facts 3. The brief facts underlying the Petition are that on the 9th day of March, 2021, the intended interested party reported to the police that he had discovered that the Petitioner was registered as the owner of his land, registered as LR No Elgeyo Marakwet/Kapterik “A”/2095. He reported that the land was ancestral land that he had never leased, sold, transferred or in any way or form, parted with possession of the land.

4. After conducting investigations, the Respondents instituted criminal proceedings against the Petitioner in Iten Senior Principal Magistrates Court criminal case No. E068 of 2022, Republic v Titus Kipkoech Kigen for offences of obtaining registration of title deed contrary to section 320 of the Penal Code. This culminated in the filing of the application and the Petition both dated 8th February 2022 as the Petitioner alleges that his rights under the Constitution of Kenya were violated by the institution of criminal proceedings against him.

5. The parties were on 23rd March 2022 ordered by the court to canvass the Petition by way of submissions.

Petitioners’ Case 6. The Petitioner filed his submissions 28th July 2022. He submitted that under section 25 (1) of the Land Registration Act 2012 the Petitioners right of a proprietor of the suit premises shall not be liable to be defeated and a Certificate of Title shall be held as conclusive evidence of proprietorship of the suit premises. Further, that he is the proprietor of parcel of land Elgeyo Marakwet/Kapterik “A"/2095 and therefore the said charges are malicious. The prosecution is occasioning the Petitioner great prejudice, mental anguish and psychological torture and torment contrary to article 29 of the Constitution.

7. The Respondents violated the Petitioner's rights guaranteed under articles 47 and 50 of the Constitution in that they did not give the Petitioner an opportunity to comment on the new evidence, if any. Learned counsel for the Petitioner relied on the cases of Bitange Ndemo v DPP& 4 others, (Judicial review Miscellaneous Application No. 192 of 2016) and Jago v District court (nsw) to support this submission.

8. The Petitioner submitted that the Respondents are abusing their offices and powers and are subjecting him to illegal prosecution contrary to article 157 of the Constitution as read with Article 3 and 27 of the Constitution. Citing the cases of Fredrick Okeyo Otieno v Director of Public Prosecutions & 4 others [2017] eKLR, Republic v Director of Public Prosecution & 2 others Exparte Francis Njakwe Maina & another [2015] eKLR and submitted that the 1st Respondent is not conducting prosecutions in accordance with its constitutional mandate as the prosecution is for an improper purpose.

9. The Petitioner submitted that he has made a case to warrant grant of the reliefs sought in the Petition as the evidence and materials placed before court demonstrate that his continued prosecution will be in breach of her fundamental rights and freedoms.

Respondent’s Case 10. The 1st and 2nd Respondents filed submissions on 28th February 2022. They submitted that a party who desires any relief from this Honourable Court places on himself, the duty to disclose all material facts appertaining to the issue at hand. Secondly, the law guiding the Court on grant of conservatory orders, which is the case here, are fairly well settled. They cited the case of Centre for Rights Education and Awareness CCRFAW) & 7 others v. Attorney General [2011] eKLR in support of these submissions.

11. Learned counsel for the Respondents submitted that a party seeking any relief from this Court is required to approach the court with clean hands. The 1st and 2nd Respondents in an affidavit sworn by Inspector Joab Otieno, the investigation officer, deponed that the Petitioner is a fugitive on the run from the law. There are warrants of arrest pending against the Petitioner which were issued by a court of competent jurisdiction after he refused and/or failed to present himself in court for plea taking. Instead of purging himself, the Petitioner chose to file this application to sanitise himself of the vices committed in the trial court. The Petitioner has deliberately failed to surrender this important piece of information. It is clear that the Petitioner hopes that by deliberately and carefully disguising the material fact that he is a fugitive on the run, this court will grant him conservatory orders which he can use sanitise himself and render nugatory the warrants of arrest.

12. Secondly, Inspector Joab Otieno also deponed that the Petitioner failed or refused to cooperate with the investigation by surrendering documents used or obtained in the transfer and registration. This means that the Petitioner has also deliberately failed to disclose that he had been summoned by the investigators to avail any documentation used in the transfer. This information would have been proof that the entire transaction was above board and that he is not criminally or morally culpable for the irregular registration. The Petitioner is unworthy of getting any orders from the court on account of his deception and misinformation.

13. The Respondents submitted that the Petitioner still bears the burden of demonstrating that he has a prima facie case with high chance of succeeding. A prima facie case is one that on the face of it is not frivolous but rather one that raises issues that can be argued in and determined by a Court of law. if in deed the criminal case was commenced with malice, the easiest way to prove malice would have been for the Petitioner to attach a sale agreement or any proof that the land was legally transferred to him (through proxy) but he has instead annexed to his affidavit, copies of title deeds that have no relevance to the land in question. The charge facing him is not with respect to those other tracts of land but with respect to Elgeyo Marakwet/ Kapterik “A”/ 2095. His defence can be advanced in the hearing. This court cannot, at this juncture, pre-empt what that defence would be and rule on its strength as opposed to the Prosecution’s. Since he has failed to meet this singular criteria, the Respondents pray that he is not granted the conservatory order.

14. The Petitioner was also required to prove that unless the conservatory orders are granted in his favour, there is a real danger that he will suffer prejudice as a result of the violation of the constitutional rights. Learned counsel for the Respondents cited the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] eKLR to buttress this submission.

15. The Petitioner ought to have gone a step further to demonstrate that the 1st and 2nd Respondent, by executing their mandate, i.e. reviewing investigation files and deciding to prefer criminal charges on persons implicated with any alleged crime, poses or represents any sort of menace that might harm him or infringe upon his rights. It is not clear and unambiguous what rights will be violated and what actions stand to violate the specific rights. In addition, to submit that one’s rights will be violated through a well-known and fairly predictable criminal justice procedure, one that he has not yet even been subject to is merely speculative. That is the very reason why the Petitioner is unable to clearly demonstrate, with the specificity required, how his rights are at threat of being violated.

16. The Respondents contended that the Petitioner has not illustrated how the prosecution against him is laced with malice and is an abuse of the criminal justice system. He has also failed to demonstrate what form of prejudice he will suffer should the criminal trial be allowed to proceed. In light of all the misgivings highlighted above, the only recourse left to this court is to decline to grant the conservatory orders.

Issues For Determination 17. Upon perusing the pleadings and considering the submissions of all the parties the following issues for determination emerge;

Whether the prerogative writs of prohibition and certiorari as constitutional remedies are tenable in this petition? 18. The nature of constitutional Petitions has been discussed at various lengths by the courts. Of utmost importance is the threshold of a constitutional Petition being met by a Petitioner. It is central to the determination of a Petition that the Petitioner states the violation of his rights to a degree of precision. This principle serves the purpose of enabling the court analyse whether there is a violation by being able to compare the actions alleged to bring about a violation and the constitutional right that may have been violated.

19. The Petitioner contends that his rights under Articles 3, 27, 28 and 157 of the Constitution have been violated.Article 3 of the Constitution states;(1)Every person has an obligation to respect, uphold and defend this Constitution.(2)Any attempt to establish a government otherwise than in compliance with this Constitutionis unlawful.Article 27 of the Constitution states;(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.Article 28 of the Constitution states;(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.(5)A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).(6)To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.(7)Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.(8)In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.Article 29 of the constitution states;Every person has the right to freedom and security of the person, which includes the right not to be—(a)deprived of freedom arbitrarily or without just cause;(b)detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;(c)subjected to any form of violence from either public or private sources;(d)subjected to torture in any manner, whether physical or psychological;(e)subjected to corporal punishment; or(f)treated or punished in a cruel, inhuman or degrading manner.Article 157 of the Constitution states;(1)There is established the office of Director of Public Prosecutions.(2)The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President.(3)The qualifications for appointment as Director of Public Prosecutions are the same as for the appointment as a judge of the High Court.(4)The Director of Public Prosecutions shall have power to direct the Inspector- General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.(5)The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—(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 criminal proceedings 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 clauses (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).(7)If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.(8)The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.(9)The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.(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.(12)Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

21. The Petitioners’ contention was that his prosecution was a violation of the aforementioned articles and therefore a need has arisen to grant orders of prohibition, certiorari and mandamus. In the words of Professor Wade;“The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. Nullifying is a description of what the courts do when invalidity is properly established and the courts consider it appropriate to intervene. Nullity is not an absolute concept dictating inexorably what the courts must do when faced with lute concept dictating inexorably what the courts must do when faced with a claim that an act is ultra vires. It is now clear that in practical terms if the invalidity of an act cannot be established or if the court refuses to grant relief, the act will be regarded as producing valid legal effects, whatever the theoretical difficulties in explaining how this can be true of an act which is beyond the powers of a public body.”

22. The court is alive to the discretion afforded to the office of the director of public prosecution with regard to the decision to charge and termination or discontinue of criminal charges. However, this does not provide them with a wide berth to institute criminal charges at leisure. There must be a prima facie case and some semblance of sanity applied in the charging of persons. In the Indian case of Partap Singh v State of Punjab AIR 1964 SC 72“The basic principle is that the courts would not interfere with or probe into the merits of the exercise of discretion by an authority, as it is not a forum to hear appeals from the decisions of the authority. They would not go into the question whether the opinion formed by the concerned authority is right or wrong. The court does not substitute its own views for that of the concerned authority.Similarly, in the Supreme Court Practice 1995, Vol. 1 para. 53/1-4/6. R v Judicial Service Commission ex parte Stephen Pareno, Misc. Civil Application NO. 1025 OF 2003 (Unrep) the nature and scope of Judicial review has been defined thus: “The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision – making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.Chief Constable of North Wales Police v Evans [1982] I WLR 1155 p 1173 Thus a decision of an inferior court or public authority may be quashed (by an order of certiorari made on an application for judicial review) where that court or authority acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where those rules are applicable, or where there is an error of law on the face of the record, or the decision is unreasonable in the Wednesbury’s sense. “The Court will not, however, on a judicial review application act as a “court of appeal” from the body concerned, nor will the Court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the Court is to see that lawful authority is not abused by unfair treatment. If the Court were to attempt itself the task entrusted to that authority by the law the Court would, under the guise of preventing the abuse of power be guilty itself of usurping power.”

23. The respondents filed an affidavit sworn by Inspector Joab Otieno detailing what informed the institution of criminal charges against the petitioner. The affidavit paints a trajectory by the inspector who relied on the allegations of the complainant to institute criminal proceedings. Further, his trigger to charge the petitioner was that the petitioner failed to produce documentation proving he is the owner of the property in dispute or to avail himself for questioning. Even more puzzling is the fact that the petitioner failed to attend the injury in answer to certain interrogatories in respect of the questionable documents of registration. It is evident that this is a dispute over land ownership. It is not enough for any citizen to claim they own a parcel of land if that same parcel of land is a subject of a criminal or civil inquiry. The burden of proof shifts to the title holder to rebut any allegation arising on the sanctity of that title. It is trite that a petitioner may claim that he or she has a defence to the law. He or she may also claim that the subordinate legislation creating an offence is ultra-vires. In order for the petitioner to succeed under judicial review as a constitutional remedy he or she must establish that the public body herein the respondents acted in a way that breaches one or more of the fundamental rights and freedoms espoused in the constitution.

24. The courts have had occasion to rule as to when a decision of a public body can be quashed. The question is does the instant petition meet the test elucidated in Linton Allen v His Excellency the Right Honourable Sir Patrick Allen and the Public Service Commission, [2017] JMSC Civ. 24, Straw J the court held as follows:“The process of judicial review is the basis on which courts exercise supervisory jurisdiction in relation to inferior bodies or tribunals exercising judicial or quasi-judicial functions or making administrative decisions affecting the public. It is trite that judicial review is concerned only with the decision making process of a tribunal and not with the decision itself. Lord Hailsham of St. Marylebone L.C. expressed in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 at page 1161a that the purpose is to ensure that the individual receives fair treatment and not to ensure that the authority which is authorised by law to decide for itself reaches a conclusion which is correct in the eyes of the court. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Services [1985] AC 374 at page 410 F-H, discussed the principle of judicial review in relation to decision making powers and spoke to three heads - illegality, irrationality and procedural impropriety:i.By illegality as a ground for judicial review, I mean that the decision–maker must understand correctly the law that regulates his decision–making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.ii.24 - By ‘irrationality’ I mean what can now be succinctly referred to as ― Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it.iii.I have described the third head as ― procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involves any denial of natural justice."

25. It would only be appropriate to determine the issues in this petition solely by reference to the affidavits and annextures by both parties. If it appears from their own terms and or from what the parties have said intended and subsequently whether it entitles this court to exercise supervisory jurisdiction over the respondents.

26. It is now appropriate to recognize that in certain review cases the decision significance for that individual is of fundamental concern. Looking at the scheme of our constitution under article 157(6) (7) (9) (10) and (11) procedural fairness requires that decisions be made by the director of public prosecutions free from a reasonable apprehension or bias and for the common good of the citizenly. For the purpose of clarity, the law pursuant to article 157 on the powers of director of public prosecution and the enabling statute confer wide powers to that directorate to make decision to charge or discontinue a prosecution without reference to any other authority.i.To succeed in having a prosecution prohibited, an applicant must do more than merely invoke a remote, fanciful or theoretical possibility that exculpatory evidence at one time existed. He or she must establish a real risk of an unfair trial. (Braddish v DPP and Scully v DPP).ii.Where a Court is asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be—(a)clearly relevant,(b)that there was at least a strong probability that the evidence was available, and(c)that it would have a real bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial. (DC v DPP).iii.The threshold that an applicant must meet is a high one. Such an application may only succeed in exceptional circumstances. (Z v DPP and DC v DPP)iv.In general, prohibition will not be necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. It should be assumed that the trial judge will conduct the proceedings fairly, and will give all necessary rulings and directions to ensure a fair trial. (DC v DPP and Blanch field v Hartnett).v.In considering an application for prohibition, a review Court should not merely pick out an element and conclude that there is a possibility of an unfair trial arising from it. That is not the test. The test is that of a serious risk of an unfair trial. An application based on a hypothesis that may or may not occur should not succeed (Denham J. in DC v DPP).vi.In general, eve of trial applications are to be deprecated. Unexplained delays in issuing proceedings may result in applications being refused in limine. An applicant’s delay will be relevant not just to the issue of compliance with Order 84 Rule 21 of the RSCI, but also for what it says about an applicant’s true view of the lost opportunity to obtain the missing evidence in issue (Scully v DPP and Bowes v DPP).

27. Notwithstanding that position the alleged decision maker must address the fairness issues. The fact that a decision is quasi-judicial affects the rights, privileges or interests of an individual is sufficient to trigger the duty of fairness. The concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. I emphasize that the underlying letter and spirit of the constitution as it relates to the powers of the director of public prosecution, the criteria that should be used in determining what procedural rights and the duty of fairness requires in a given set of circumstances is a matter left to the session judge sitting as a judicial review court. The Justiciability in judicial review must give efficacy and meaning to constitutional supremacy. The court therefore seized of jurisdiction to grant prerogative writs of prohibition, certiorari and mandamus must play by the rules as well as an impartial and independent court in accordance with the constitution. The invalidity of an act complained of by the petitioner against a public body or tribunal must be established evidentially and cannot be presumed by the constitutional court. In my view, I find no failure on the part of the respondents to observe due process clauses as defined in the constitution to give notice to the petitioner to file objections to the allegations made by an interested party to the conveyance, alienation and registration of the questioned titles to land. The living instructions principles of our constitution is not a magic ingredient which can be stirred together into a jurisprudential port to mean something for every allegation/infringement/violation to give rise to our Constitutional remedy. Obviously that was not the intention of the drafters and framers of our Constitution.

28. How far is too far? In Matalu v DPP (2003) 4LRC 712 the court in Malawi faced with similar circumstances had this to say“In cases involving the exercise of prosecutorial discretion to apply establishes principles of judicial review this would have proper regard to the great width of the DPP’s discretion and the polycentric character of official decision making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the Constitutional function nor the practical competence of the court to access their merits. This approach subsumes concerns about separation of powers.”

29. The petitioner in this case seeks to prohibit a trial provided for under article 157(6)(a), (10) and (11) of the Constitution. In general, and within the framers of the Constitution such a step cannot be interfered with save in exceptional and compelling circumstances. It is this exceptional jurisdiction which the petitioner has asked the court to invoke. Upon deep consideration of the evidence and the submissions of the parties in this issue I am of the view that the petitioner has not brought himself to the threshold that the criminal proceedings is an abuse of process or they are politically motivated or influenced or they have been initiated for a collateral purpose.

30. In the case of US v Armstrong (1996) 517 US 456 the supreme court made the following observation“That in order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary”. Chemical Foundation, supra, at 14-15. We explained in Wayte why courts are “properly hesitant to examine the decision whether to prosecute”. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake”. … It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”

31. There is also the doctrine of legitimate expectations of the person challenging the decision. The power of the court to review an administrative action is extraordinary and resorted to sparingly. The decision makers in the position of an inspector general police and director of public prosecutions must use discretionary powers in good faith and for a proper intended and authorized purpose. It is also important to apply the values and principles of governance under article 10 of the constitution. Without going to the merits of the impugned decision one sees excessive weight being given by the petitioner as to the facts of registration whereas the respondent prima facie evidence casts doubt as to the legality of the root title which conveyed rights to the petitioner of the aforementioned suit land. I think the decision making quality in proceedings of these nature has to be evaluated within the wider constitutional tenets and overall fundamental justice of the claimants seeking protection and guarantees of rights in chapter 4 of the Constitution. The objective sufficiency of the material considered by the review court must be assessed in light of the facts of the particular case. In the petition before court we haven’t been told that the commencement of a prosecution was on a mere suspicion. From the affidavit of the petitioner it is alleged that the respondents acted to his detriment in preferring an offence which sets out in motion a violation of his constitutional rights.

32. In evaluating whether the acts complained of amounted to malice and not done in the public interest the court in Williamson v Attorney General of Trinidad and Tobago (2014) 85 WIR, it was said that:“To constitute malice, the dominant purpose of the prosecutor had to be a purpose other than the proper invocation of the criminal law – an illegitimate or oblique motive – and that improper purpose had to be the sole or dominant purpose actuating the prosecutor. It had to be shown that the prosecutor’s motive was for a purpose other than bringing a person to justice and involved an intention to manipulate or abuse the legal system. Proving malice was a high hurdle for a claimant to pass. Further, the honest belief required of a prosecutor was a belief not that the accused was guilty as a matter of certainty, but that there was a proper case to lay before the court.”

33. It is also submitted that for the entirety of the period in which the petitioner was under investigation there was compliance with procedural expectation protected under the Constitution for him to be interviewed as to the allegations on the impugned registration on title to land. That opportunity to make representation was not adequately addressed by the petitioner. The national police service and the Director of public prosecution being persons having legal authority to determine the question affecting the rights of individuals exercised their discretion to render the decision to charge the petitioner. In Gordon Sentiba v IGG; SCCA NO.6 /2006. “Preferring charges is a matter for the prosecutor who makes the decision to prosecute anybody depending on the facts of the case before him or her as to whom to criminally charge in a court of law. Whilst this court would view victimization or unequal treatment before the law with disfavor, the suggestion that one could resist prosecution on the ground that others he wishes to be jointly charged with him are not so jointly charged, would, in our view be contrary to the established principles of our criminal justice system.”

34. Important Constitutional issues underpin the sphere of discretion exercised by the director of public prosecution in the decision making process of either to charge or discontinue criminal proceedings against any other cited person or persons in pursuit of the interest of justice to uphold the rule of law. It is clear from the Constitutional principles under article 157. The standard of independency and reasonableness are distinct doctrines which the reviewing court has to access the balance which the director of public prosecution has struck in giving relative weight to the evidence and the decision to charge or not to charge a suspect of a criminal offence. The common theme is as expressed in the case of S v Van Rooyen (2002) ZACC 8; 2002(5) SA 246 (CC); 2002 (8)NBCLR 810 at para 32, endorsing the finding in Valente v The Queen (1986) 24 DLR (4TH) 161 (SCC) at 172 that the test for independence should include public perception… Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy protecting features is important to determining whether it has the requisite degree of independence.

35. If the matter is to be decided on the basis of the affidavits before the court, the proper approach will not involve preferring one version over the other. It would simply be that, on the evidence before the court, whether the onus of prove has been discharged by the petitioner in conformity with the constitutional cannons of interpretation on account of an infringement or violation of his rights. It is clear from the contradictory nature of the evidence that emerges. The court is faced with a material dispute of facts as to whether this indeed is a judicial review remedy claim capable of granting prerogative writs of prohibition and certiorari against the respondents. When interpreting any legislation, any law as to its application to the decision making process of a quasi-judicial body the court must promote the spirit, purport and objects of the bill of rights. All persons responsible for the exercise of powers of the state do so on trust and exercise such powers to the extent of the lawful authority and in accordance with their responsibility to the people of Kenya. The judiciary shall have the responsibility of interpreting, promoting and enforcing the constitution and all laws in accordance with the constitution and in an independent and impartial manner with regard only to legally relevant facts and the prescription of the law.

36. According to the court in Captain J.N Wafubwa v General Julius Karangi & 2 others (2014)eKLR the court with approval Sanghani Investment Limited v Officer in Charge Nairobi Remand and Allocation Prison [2007] 1 EA 354 where the court while refusing to grant an order of certiorari held that it is trite that“It may indeed be true that the notice that is impugned is irregular or unlawful and an order of certiorari would be deserved, but it is not in every case that the court will grant an order of judicial review even though it is deserved. Judicial review being discretionary remedy will only issue if it will serve some purpose. Certiorari is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the Court being a judicial one must be exercised on the basis of evidence and sound legal principles…..So that in this case, even though this application were properly before this Court and the application had merit, the court may not have granted an order of certiorari because it would not be the most efficacious remedy in the circumstances. Even if the notice under challenge is quashed, the issue over the ownership of the land still stands and it will require determination by way of filing pleadings and viva voce evidence at another forum preferably the Civil Courts.”(Emphasis supplied)

37. In the matter under consideration I am satisfied that the principles applies with equal force. I am unable to find reasons for holding otherwise. The relevant facts in a nutshell are in consonant also with the observations by the supreme court in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR“Where an Act of Parliament confers administrative power to an authority or a person, there is a presumption that it will be exercised in a manner which is fair. The court’s role in such matters was explained in Judicial Review Handbook by Michael Fordham (Third Edition) p 249-256 as hereunder: “Every public body has its own role and has matters it is to be trusted to decide for itself. The courts are careful to avoid usurping that role and interfering whenever it might disagree as regards those matters.” (Emphasis Supplied)

38. I need not emphasize that the power of this court to intervene in an on-going proceeding before a tribunal or lower court would be exercised only in cases of great rarity and where in my view in absence of that review remedy grave injustice will be occasioned to the petitioner. I do not believe that it is the case here. For those reasons the petition before me must fail. In a case of this kind no order for costs is warranted.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 15TH DAY OF NOVEMBER, 2022. R. NYAKUNDIJUDGE