Margaret Wamahiga Gakuhi v Inspector General of Police, Director of Public Prosecution & Moses Kiiru Mwangi [2017] KEHC 6085 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  425 OF 2016

IN THE MATTER OF JUDICIAL REVIEW PROCEEDINGS FOR AN ORDER OF PROHIBITION

IN THE MATTER OF PARALLEL INVESTIGATIONS BEING CONDUCTED BY TWO POLICE STATION OVER THE SAME CONDUCT

AND

IN THE MATTER OF SECTION 8 OF THE LAW REFORM ACT CHAPTER 26 LAWS OF KENYA

MARGARET WAMAHIGA GAKUHI ………….………………..APPLICANT

VERSUS

INSPECTOR GENERAL OF POLICE……….………….1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION ….…………2ND RESPONDENT

MOSES KIIRU MWANGI ………………………….. . INTERESTED PARTY

JUDGMENT

1. By a notice of motion dated 3rd October 2016, the exparte applicant Margaret Wamahiga Gakuhi seeks from this court orders:

a. That the court  be pleased to  grant  to the applicant  an order  of prohibition  to prohibit  the Nairobi County Police  Commandant  or any police officer  under  him or  any police  officer under  him or acting  through him from conducting any investigations, or recording any statements, or any arresting  the  applicant or  prosecuting the applicant in respect of the complaint relating  to the purchase  and delivery  of Computer  Norton  Antivirus  360 version 5( 3 in 1).

b. Costs of this application be provided for.

2. The motion was filed pursuant to leave granted on 14th September 2016 following chamber summons dated 13th September 2016.  The order granting leave also operated as stay of arrest   and prosecution of the   exparte  applicant  until  these proceedings  are heard and  determined.

3. The applicant’s  counsel  dutifully  filed the  notice of motion  within the  21  days  stipulated  in the order for leave and  as provided for  in Order  53  Rule 3  of the Civil Procedure  Rules.

4. The application  is supported by the statutory  statement  and  verifying  affidavit  sworn  by the applicant  on 13th September  2016  and  annextures.

5. Only  the  2nd respondent   Director of Public  Prosecutions  filed  a replying affidavit   on 11th December   2016   sworn by Joseph Obao, No. 67030  a Corporal Police Officer  attached  to CID Nairobi area County Headquarters opposing the exparte applicant’s   application.

6. The applicant  also filed  a further  affidavit on  24th January   2017  but without  leave of the court  and  neither did she seek  leave to have  the  said affidavit  admitted  on record.

7. The applicant’s case, primarily, as  contained  in the grounds and facts  in the statutory  statement  and  depositions  is that she entered  into a joint  venture with   Moses  Kiiru  Mwangi  the interested party  herein, for purchase and  sale of  400 Computer Norton Antivirus to be supplied  to Kenya  Methodist University, Meru, and   were introduced  to the business  by one Jesee Mugambi  who, unknown  to the applicant  and  interested party, was a  conman who only intended  to defraud  them in collusion with two other persons.

8. That  the applicant  and the interested  party  were  introduced  to Stanley  who was  the seller of the  said   items  and  they negotiated  with him after which  the interested party parted  with shs  480,000 which was receipted.  That on the same day of 12th August   2016   the applicant   and the interested party (partners) took possession of the goods and the applicant transported them to Meru where they were delivered to Julius and waited for   payment.  That the said Julius claimed to be an employee of Methodist University and that he would cause the University to pay for the goods delivered.

9. That after the first consignment was delivered the said Julius claimed that the University would   only pay full amount after delivery of the second batch   of 200 pieces at shs 460,000.

10. That the partners took the second delivery to Meru and called Julius who failed to turn up to receive the goods. The applicant and interested party /partners reported the matter to the CID Meru vide OB/69/17/8/2016 and recorded statements.

11. That  two days later the interested party  herein called the applicant to his office  to record a statement  and  asking her  to propose on how she  was  going to pay  him the amount  that the swindlers  had defrauded   him but  the applicant  declined.

12. That after one week, a CID officer, a  Mr Obao  called the applicant  asking her to go to Nairobi and record her statement  concerning  the foiled  deal  and  to assist  in the investigations which request   the applicant  turned  down as she  had already  reported  the matter to  Meru and  recorded  her statement there.  The applicant became apprehensive that the interested party  was using Obao  to harass  her hence  she  engaged  an advocate  who telephoned  Mr Obao and  explained to him the  position  and  also wrote  a letter to the  Nairobi County Police Commander  and  the Director of Public Prosecutions and Nairobi County Commandant  on 7th September  2016.

13. The applicant therefore believes that the respondents  are grossly  abusing the legal process  by conducting  parallel  investigations in respect of supply of computer Norton  Antivirus  360 version 5(3 in 1) in a joint venture  between the applicant  and interested party and that  despite  requests by her counsel  that the commandant  defers his investigations to Meru  CID Officers  who  were already seized  of the matter, the respondents  had refused to heed the request.

14. Further, that instead, the police  from Nairobi  and  the interested party had visited  the applicant’s home   intending to  arrest her  and charge  her which  she believes  was an act of bad  faith intended  to undermine or override her complaint which is being  investigated  by the CID office, Meru  hence these   judicial  review  proceedings.

15. In the replying affidavit  sworn  by CPL  Joseph Obao  No. 67030  attached to DCI Nairobi Area  County Headquarters, who is  also the  investigating  officer in the matter, he  deposes that the Nairobi Area County Headquarters received a  complaint  from the interested party  herein to  the effect that   he had been defrauded  money amounting to  shs  960,000.  That investigations were commenced in accordance with Section 24 of the National Police Service Act and the applicant herein  was summoned  to clarify  on the issues  raised but  that instead, they were served with  a conservatory  order on  18th September  2016   issued by this court.

16. That  the complaint  in Meru  concerns  Julius  whereas  the complaint in Nairobi  concerns  the applicant  although  arising  from the same  transactions.  That the transaction took place in Nairobi where both parties reside and where they met and agreed verbally to supply the goods to Kenya Methodist University.

17. That Meru police were no longer investigating the matter hence the issue of parallel investigations did not arise.

18. That the applicant should have simply written to Director of Criminal Investigations   raising her concerns and not to come to court.

19. That the applicant   has not demonstrated  that the investigations  are being  carried out with ulterior  motive   so as to invite the court to intervene and that once the investigations  are complete, the same will be forwarded to the Director of Public Prosecutions to determine  whether the  evidence  is sufficient  to sustain  a prosecution.

20. That the  1st respondent   acted within its  mandate  and did not  breach  any law  or regulations or  constitutional  provisions.  That it would  be a failure  of the criminal  justice  system if the  respondents failed  to investigate a complaint  lodged  with them by a citizen hence the court should allow investigations commenced  to be completed to its logical  conclusion and the file forwarded to the Director of Public Prosecutions for  appropriate  action.

21. As earlier stated, the applicant filed an affidavit on 24th January 2017 without leave of court hence I shall not examine it.

22. The parties’  advocates  submitted orally  in court on  24th January  2017  with Mr  Njiru  advocate  submitting on behalf  of the applicant and   reiterating  the statutory   statement and  verifying affidavit  sworn by the applicant while  maintaining  that the police were abusing  their powers  by conducting  parallel   investigations  in Meru and  Nairobi.  That the Director of Public Prosecutions powers are not limitless but is limited by Article   157 of the Constitution.

23. Mr Njiru submitted that it is malicious   for 2 different   police stations to investigate the same matter.  That from the conduct of  Mr Obao, he  was  biased  and  was  assisting  the interested party  hence the Director of Public Prosecutions must act  fairly and not  to always  defend matters, to preserve  the integrity   of investigations.

24. That the applicant does not  wish to  impede   the investigations  but seeks  for a fair  process  and  that there  is no reason  why the officers  in Meru should not be left   to investigate  the complaint and that  there is no affidavit  by Meru  police that  they have ceased investigating the matter.

25. In opposition, Miss Spira  for the DPP submitted  relying on the replying affidavit  sworn by  Joseph  Obao  and  contending  that the complaint  was  made to  Nairobi Area  and that the Director of Public Prosecutions  does not  investigate   complaints.  That the applicant should have written to the Director of Public Prosecutions to seek for a solution.  That those investigations   are being carried out to meet the ends of justice and not for collateral purposes.

26. Further, that the police have not send the file to the Director of Public Prosecutions   to determine whether there is   a case for prosecution.  That if the applicant has an issue with the current investigating officer, she should have written to DCI to appoint an independent investigator.  Counsel urged the court to dismiss the motion as there is no evidence of breach of the law, irrationality or bad motive established on the part of the respondents.

27. In a brief  rejoinder, Mr Njiru  submitted that he wrote  a letter as  6th September 2016  to the Nairobi County  Police  Commandant  and  the Director of Public Prosecutions but no  response   was received.  Further, that these proceedings should have informed the Director of Public Prosecutions to take action which he has not hence it is not fair for 2 police stations to be involved in the investigations.

28. None of the parties relied on any case law.

Determination

29. I have carefully considered the exparte applicant’s case and the serious objections raised by the respondents. In my view, the issue for determination is whether the applicant is deserving of the grant of Judicial Review order of prohibition.

30. It is  the exparte  applicant’s  claim that  she  and the interested  party had a  joint venture  of supplying  Nortion Antivirus  to Kenya Methodist University after  being  introduced  to the business by one  Julius  who  was  known  to the applicant.  However, the venture turned out to  be a fraud  after  money  was  paid out  for the purchase  of the product   the said  Julius  vanished  after the money  was paid out.  The  applicant  and interested party  reported to Meru police  station Imenti North  DCI and in  the company  of the interested   party on  7th August  2016   recorded her  detailed  statement  vide OB  No. 16/17/8/16.

31. While the matter  was being investigated  by the CID  at Imenti North  (Meru), the interested party made a  separate  complaint  at  Nairobi Headquarters  DCI  who summoned  the applicant  to go and record her statement to shed some light on the  alleged fraudulent  transaction.

32. The applicant became apprehensive that the interested party had turned her into a suspect in the whole transaction and wanted her arrested using his friends at the Headquarters and moreso, CPL Joseph Obao, the investigating officer.  She wonders why there should be parallel investigations into the same transaction.  She wrote a letter to the Director of Criminal Investigations Nairobi  copied to the Director of Public Prosecutions, through  her counsel on record complaining of  the situation but no response  was received, but that instead the Director of Criminal Investigations  Nairobi wanted to arrest  and  charge  her with the  offence which  was being  investigated  by the Director of Criminal Investigations  at Meru.  She therefore sought the court’s intervention to prohibit the respondent’s sinister actions and abuse of power and   legal process.

33. On the other hand, the respondents  through the investigating  officer have  maintained  that the complaint  at Meru  was against  one Julius and  that  the interested party  lodged  a complaint  in Nairobi  and  recorded  a statement on  19th August  2016  complaining  against  Margaret, since  Margaret  had told him that  she knew  the people   very well.

34. In the respondent’s view, they have the mandate  to investigate   the complaint  as Meru DCIO was  no longer  investigating  the matter hence it  would be  inappropriate  to prohibit  investigations as that would impede  on the criminal  justice  system; and that  in this case,  the Director of Criminal Investigations should be  left to  complete  investigations  and  forward  the file to  the Director of Public Prosecutions to establish  whether there is  sufficient  evidence  to sustain any charge.

35. In Pastoli v Kabale  District  Local  Government  Council  and  Others[2008) 2 EA  300, the court, citing   with approval Council  of Civil  Unions  V Minister   for  the Civil Service [1985] A.C  2 and  Re Bukoba  Gymkhana  Club  [1963]  EA  478  at 479, it  was held:

“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality irrationality and procedural impropriety.  Illegality  is when the decision  making authority  commits  an error of  law in the process  of taking   or making  the act,  the subject  complaint.  Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.  It is for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission.  Irrationality  is when  there is  such gross  unreasableness  in the  decision  taken  or act done, that  no reasonable authority, addressing  itself to the facts  and the law  before it, would  have made  such a decision.  Such a decision is usually in defiance of logic and acceptance moral standards …..  procedural  impropriety  is when  there is a  failure to act fairly on the part of the decision  making authority  in the process of taking  a decision.  The unfairness   may be in non observance of the Rules of natural justice or to act with procedural fairness towards one to be affected by the decision.  It  may also  involve  failure to  adhere  and  observe  procedural rules expressly laid down  in a statute  or legislative  instrument by which  such authority   exercises  jurisdiction to make a  decision.”

36. In Re Bivac International SA (Bureau Beritas) [2005] 2 EA 43, it was held that the scope of the remedies of Judicial Review   continues to expand in that:

“ Like  the Biblical  mustard  seed  which a man  took and  sowed  in his field  and  which is the  smallest   of all seeds  but when it grew up it became  the biggest  shrub  of all and  became  a  tree so that  the birds   of the air came and sheltered  in it branches, judicial  review  stems  from the doctrine  of ultra vires and the rule of natural justice  and has grown to become  a legal tree  with branches   in illegality, irrationality, impropriety of procedure  and  had become   the most powerful  enforcer  of constitutionalism , one of the greatest  promoters  of the law and  perhaps  one of the most  powerful  tools   against  abuse of power and  arbitrariness.   It has been said that   the growth of judicial review can only be compared to the never ending categories of negligence after the celebrated case of Donghue Vs Stephenson in the last century.”

37. The question, therefore is, whether the conduct of the Director of Criminal Investigations   in the investigation relating  to the alleged  fraudulent transaction wherein the interested  party  allegedly  lost  shs  960,000 to suspected  fraudsters  Julius and  Mugambi, who were  known to  the  applicant; is illegal, irrational  and or laced with  procedural  impropriety  as explained  in the Pastoli v Kabale  (supra)  case,  and therefore  deserving  of this court’s  intervention.

38. It must  however  be made clear   that albeit   the Director of Public  Prosecutions is enjoined to  these  proceedings, he is not an investigator and neither has the matter reached prosecution stage for his directions. I would in the premise, not make any orders against the Director of Public Prosecutions whose constitutional mandate, clearly, is public prosecution and not investigations.

39. Furthermore, no adverse reference was leveled against the Director of Public Prosecutions   as there was no evidence that his office   had received the investigations file and or made any decision to prosecute the applicant, on the basis of the impugned investigations being carried out by the Nairobi Area Commandant.

40. It would therefore be superfluous to seek to prohibit   a party who has not received   any investigation report for   purposes of perusal and or directions for prosecution.  In Halsbury’s  Laws ofEngland4th  Edition Reissue  Volume  1(1)  page  202  paragraph  109,  it is observed that:

“ The order of  prohibition is an order  issuing out  of the High Court   and  directed  to an inferior   court or tribunal  or public  authority, which  forbids  that court or tribunal, or  authority  to act in excess  of its jurisdiction  or contrary to law.  Prohibition is employed for the control of inferior courts, tribunals, and public authorities.

Prohibition is conceived with decisions of the future.  Prohibition   will issue to prohibit a determination in excess of jurisdiction, error   of law on the face of the record or breach of the rules   of natural justice.”

41. In KNEC  v Republic  Exparte  Geoffrey Gathenji  Njoroge  & 9  Others  Nairobi CA 266/96 [1997] e KLR, the Court of Appeal stated, inter alia, concerning what an order of prohibition  will do  and  when it  will issue:

“……..it does not however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits s of the proceedings…”

42. For this court to issue prohibition against the 1st  respondent  or any  police  officer under  him or  acting through   him from  conducting  any investigations  or recording   any statements  or arresting   the applicant   in respect   of the complaint  relating to the purchase and delivery  of  computer Nortion  Antivirus   360  version 5( 3 in 1), there must be  proof that the  investigations  are being  carried out  in excess  of the mandate of the police or  that the police  have no such  mandate  to investigate   the said complaint; or that  there is breach of the rules  of natural  justice and or that there is abuse of power.

43. The police  at Nairobi  had commenced  investigations  into a complaint  that the interested party  had been defrauded  by the applicant  and  2 others.  On the other hand, the applicant  claims that she had  already made a report at Meru  and  had even recorded  a statement hence  she  expected  the interested party  to also record  a statement  in Meru so that  investigations  can be carried  out there instead of having a parallel  investigations  in Meru  and  Nairobi.  She claims that the interested party is being    aided by the Cpl Joseph Obao to cause her arrest.

44. The statement recorded by the interested party at Nairobi area shows that   it was made after the applicant had already recorded her statement   in Meru.

45. In my humble view, albeit it would not be appropriate to prohibit the police from carrying out their mandate to investigate  a specific  complaint, as that   would impede  the criminal justice system, I find  that there is no  justifiable  reason  why the police  which is   only one  state agency, would engage  in parallel  investigations  into one complaint.  In my view, that would  amount to abuse of  legal process  since the complaint  made to them by the interested party  against  the applicant  arose  from the same  transaction as  the complaint   which  was made in Meru.

46. I would however hesitate to direct  that the  complaint  be investigated  by a specific  police station  or officer  since it is in the discretion of the police to choose  which officer  and or station  should carry  out investigations  concerning   a complaint.

47. From the statement  of the applicant; the whole  transaction commenced in Nairobi  but deliveries   were to be   made in Meru therefore  the applicant was right to report to Meru, which  at that time   was the closest police station after allegedly realizing  that she had  been dupped  by Julius  who did not turn  up to receive  the deliveries  of goods for transmission  to the Kenya Methodist University  and  or to  transfer  money to the interested party’s KCB Bank account.

48. The applicant  protested the dual  investigations  and she annexed  letter of  protest dated  6th September  2016  written by  her lawyer  to the Director of Criminal Investigation  Nairobi Headquarters  and copied to the Director of Public Prosecutions.  The   two agencies   received the said letter of protest but they seem to have forgotten about it and claim that the applicant should have   written a complaint, which she did.

49. Accordingly, I find that the  appropriate  order that  commends  itself to be  issued is  that the  1st  respondent in carrying  out investigations relating  to the purchase  and  delivery of Computer  Norton  Antivirus   360  version  5  (3 in 1)  is hereby  prohibited  from conducting parallel investigations into the matter, but is at liberty to direct the investigations  to be conducted  at one central place which he is so free to choose  and once the decision  is made as to  where the investigations are being  carried out  then the applicant  and the interested party  should be notified  accordingly.

50. Those   shall be orders of the court with no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 28th day of February, 2017.

R.E. ABURILI

JUDGE

in the presence of:

CA: George

Mr Njiru for exparte applicant/1st interested party

Miss Spira for 1st and 2nd respondents

N/A for 2nd interested party