Makau & 4 others v Nkubu Principal Magistrate & 2 others [2022] KEHC 14658 (KLR)

Makau & 4 others v Nkubu Principal Magistrate & 2 others (Judicial Review 17 of 2019) [2022] KEHC 14658 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14658 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review 17 of 2019

TW Cherere, J

November 3, 2022

Between

Patrick Makau

1st Applicant

Dennis Mutembei

2nd Applicant

Michael Muthike

3rd Applicant

Isaac Kilaho

4th Applicant

Allan Kanyi

5th Applicant

and

Nkubu Principal Magistrate

1st Respondent

Director of Public Prosecutions

2nd Respondent

Fabiano Kaigira

3rd Respondent

Judgment

1. Martin Gitari Kaigera (deceased) s/o Fabiano Kaigira (3rd respondent) died in unclear circumstances sometimes between 04th and October 5, 2012. The Director of Public Prosecutions (3rd respondent recommended that an inquest to the death be conducted. Nkubu Inquest No 1 of 2015 was conducted and by an order dated September 12, 2019, the court ordered that:"The said five police officers who were allegedly on patrol and at the scene of an alleged shootout should be investigated and subsequently charged with murder of the deceased."

2. It turns out that the 5 police officers referred to in the court’s ruling are CPL Patrick Makau, SGT Dennis Mutembei, PC Michael Muthike, PC Isaac Kilaho and PC Allan Kanyi (1st to 5th applicants respectively).

3. By a notice of motion amended on June 20, 2021, applicants seek an order of certiorari to quash the orders in the ruling delivered in Nkubu Inquest No 1 of 2015 on September 12, 2019. The applicants argue that the inquest court did not give applicants an opportunity to defend themselves. Reliance was placed on Republic v Chief Magistrate, Naivasha [2011] eKLR where the court quashed the decision in an inquest on the ground that the persons recommended to be investigated and charged were not afforded an opportunity to be heard and relied on Absalom Giteru Kibe v Republic [2014] eKLR where the court emphasized that no party ought to be condemned unheard.

4. Additionally, applicants argue that the court overstepped its authority by invading the area of the 2nd respondent’s responsibility under article 157 (6) of the Constitution which grants 2nd respondent the sole authority and power to “institute and undertake” criminal proceedings. In support thereof, applicants relied on Kennedy Owino v Senior Resident Magistrate’s Court, Kilifi & another [2019] eKLR where the court quashed the decision in an inquest on the ground that the it exceeded its duty in finding where the fault lay.

5. 1st respondent opposed the suit by way of grounds of opposition filed on July 10, 2020. It is the 1st respondent’s case that the court recommended investigations and that it is the duty of the police to investigate first and upon establishing a primafacie case forward the file to the 2nd respondent to prefer charges.

6. In its submissions, 1st respondent article 157 (6) of the Constitution argued that the court exercised its statutory duties as envisaged under section 385 of the Criminal Procedure Code and had jurisdiction to hold the inquest. In support thereof, reliance was placed on Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where the court held that an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.

7. 1st respondent likewise argued that the rules of natural justice were observed in that applicants were given an opportunity to participate in the inquest and in support thereof relied on Republic v County Director of Education, Nairobi & 4 othersex-parte Abdukadir Elmi Robleh [2018] eKLR where the court citedMsagha vs Chief Justice & 7 othersNairobi HCMCA no 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 03/11/06) (HCK) [2006] 2 KLR 553 where it was held:"The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material."

8. On where applicants were denied a right to cross-examine witness, the 1st respondent contends that an inquest is a fact finding exercise and not a trial and in support relied on English decisions in R (on the application of Maughan) (appellant) v Her Majesty's Senior Coroner for Oxfordshire (respondent) [2020] UKSC 4 and R v South London Coroner, ex parte Thompson (1982) 126 SJ 625.

9. Concerning the discretionary nature of the order of certiorari, the 1st respondent urged the court to find balance between the rights of the deceased to get timely justice and the rights of the applicants not to suffer prejudice from a distorted process.

10. 2nd respondent only filed submissions on December 10, 2022 and contended that the magistrate had jurisdiction to hold an inquest. In support thereof, reliance was placed on Laban Kipsang Tendet and anor vs DPP[2016] eKLR where the court emphasized that under section 386 (1) whenever an officer in charge of a police station receives information to the effect that a person has either committed suicide; or he has been killed by another person or by an accident; or has died under circumstances raising a reasonable suspicion that some other person has committed an offence; or is missing and believed to be dead, he must give that information to the nearest magistrate empowered to hold an inquest.

11. On whether the impugned order conflicts with the 2nd respondent’s independence, 2nd respondent submitted that the order by the magistrate was only a recommendation and not binding on 2nd respondent whose power to prosecute is based on evidence.

12. 2nd respondent urged the court to decline the prayer to quash the decision in the inquest for the reason that an inquest is a fact finding exercise and not a trial.

13. I have considered the notice of motion amended on June 20, 2021 in the light of affidavits, grounds of opposition and submission on behalf of the parties.

14. Section 387 of the Criminal Procedure Code, the powers set out under that section enable the inquest magistrate to do the following:"Sub section (3) If before or at the termination of the inquiry the magistrate is of the opinion that the commission by some known person or persons of an offence has been disclosed, he shall issue a summons or warrant for his or their arrest, or take such other steps as may be necessary to secure his or their attendance to answer the charge; and on the attendance of the person or persons the magistrate shall commence the inquiry de novo and shall proceed as if he had taken cognizance of an offence.Sub section (4) If at the termination of the inquiry the magistrate is of the opinion that an offence has been committed by some person or persons unknown, he shall record his opinion and shall forthwith send a copy thereof to the Director of Public Prosecutions.Sub section (5) If at the termination of the inquiry the magistrate is of the opinion that no offence has been committed, he shall record his opinion accordingly."

15. Clearly, the inquest magistrate formed an opinion (in terms of section 387 (3) of the Criminal Procedure Code) that there was “the commission by same known person or persons of an offence”. However, the magistrate did not slavishly follow the requirements of section 387 (3) of the Criminal Procedure Code probably realizing that that provisions was in conflict with article 157 of theConstitution. The provision of the Constitution clearly vests prosecutorial power on the DPP. Instead the trial magistrate made a recommendation that applicants be charged.

16. It may be noted that section 387 (3) of the Criminal Procedure Code has not been amended to bring it into strict conformity with the constitutional provision of article 157 of the Constitution. Thus, an inquest magistrate who determines that an offence has been committed by a known person cannot, strictly, invoke the entirety of section 387 (3) of the Criminal Procedure Code. Indeed, the magistrate must be careful to avoid using the said section in light of the provisions of article 157 (6) of the Constitution vesting powers to institute criminal proceedings on the DPP.

17. The question in this case is whether by using the words: “The said five police officers who were allegedly on patrol and at the scene of an alleged shootout should be investigated and subsequently charged with murder of the deceased”, the inquest magistrate was thereby exercising the powers of the DPP under the constitution. In my considered view, the trial magistrate proposed a course of action to the DPP.

18. It is clear from article 157(10) that DPP cannot be directed in the exercise of his powers or function. Article 157(10) provides: -“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.”

19. Since the prosecutorial function under the provisions of article 157 (6 ) of the Constitution, belongs to the 2nd respondent, the inquest magistrate’s mandate was limited to stating his findings of fact, without preferring a particular course of prosecutorial action to be taken by the the 2nd respondent.

20. In the present case, I find that the inquest magistrate exceeded her jurisdiction. By preferring a particular course of prosecutorial action to be taken by 2nd respondent,

21. It is therefore hereby ordered:1. The inquest magistrate had jurisdiction under section 387 of the Criminal Procedure Code, to conduct the inquest in Nkubu Inquest No 1 of 20152. An order of certiorari be and is hereby issued quashing the order made in Nkubu Inquest No 1 of 2015 on September 12, 2019 to the effect that “The said five police officers who were allegedly on patrol and at the scene of an alleged shootout should be investigated and subsequently charged with murder of the deceased. “3. Each party shall bear its own costs.

DATED IN MERU THIS 03RD DAY OF NOVEMBER 2022T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicants - Mr. Mwanzia for Muia Mwanzia & Co. AdvocatesFor 1st Respondent - Mr. KimathiFor 2nd Respondent - Ms. Mwaniki (PPC)For 3rd Respondent - In person