Martin Muswanya Nyakiamo v Director of Public Prosecution, Chief Magistrates Court, Milimani Law Courts & Kenya Bureau of Standards; Charles Ogega Ongwae, Erick Chesire Kiptoo, Peter Kinyanjui Ndungu, Pole Mwangeni, Benson Oduor Ngesa & Stephen Boaz Oloo (Interested Parties) [2022] KEHC 26986 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

CONTITUTIONAL PETITION NO. 161 OF 2020

BETWEEN

MARTIN MUSWANYA NYAKIAMO...............................PETITIONER

VS

DIRECTOR OF PUBLIC PROSECUTION ............1ST RESPONDENT

THE CHIEF MAGISTRATES COURT,

MILIMANI LAW COURTS...................................... 2ND RESPONDENT

KENYA BUREAU OF STANDARDS .......................3RD RESPONDENT

AND

CHARLES OGEGA ONGWAE .................... 1ST INTERESTED PARTY

ERICK CHESIRE KIPTOO ..........................2ND INTERESTED PARTY

PETER KINYANJUI NDUNGU.................... 3RD INTERESTED PARTY

POLE MWANGENI ....................................... 4TH INTERESTED PARTY

BENSON ODUOR NGESA ............................ 5TH INTERESTED PARTY

STEPHEN BOAZ OLOO ................................ 6TH INTERESTED PARTY

AND

CONTITUTIONAL PETITION NO. 208 OF 2020

BETWEEN

BENSON ODUOR NGESA .............................................. 1ST PETITIONER

STEPHEN BOAZ OLOO ................................................. 2ND PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTION ....................1ST RESPONDENT

THE CHIEFS MAGISTRATE’S COURT,

MILIMANI LAW COURTS ........................................... 2ND RESPONDENT

KENYA BUREAU OF STANDARDS ...........................3RD RESPONDENT

AND

CHARLES OGEGA ONGWAE ........................ 1ST INTERESTED PARTY

ERICK CHESIRE KIPTOO............................... 2ND INTERESTED PARTY

PETER KINYANJUI NDUNGU…..................... 3RD INTERESTED PARTY

POLE MWANGENI............................................. 4TH INTERESTED PARTY

MARTIN MUSWANYA NYAKIAMO .............. 5TH INTERESTED PARTY

AND

CONTITUTIONAL PETITION NO. E237 OF 2020

BETWEEN

CHARLES OGEGA ONGWAE ...................................... PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTION ..........1ST RESPONDENT

THE CHIEFS MAGISTRATE’S COURT,

MILIMANI LAW COURTS..................................... 2ND RESPONDENT

KENYA BUREAU OF STANDARDS ..................... 3RD RESPONDENT

AND

ERICK CHESIRE KIPTOO....................... 1ST INTERESTED PARTY

PETER KINYANJUI NDUNGU................ 2ND INTERESTED PARTY

POLE MWANGENI ................................... 3RD INTERESTED PARTY

MARTIN MUSWANYA NYAKIAMO ...... 4TH INTERESTED PARTY

BENSON ODUOR NGESA ........................ 5TH INTERESTED PARTY

STEPHEN BOAZ OLOO ............................ 6TH INTERESTED PARTY

CONSOLIDATED JUDGMENT

Introduction:

1.      This judgment relates to three Constitutional Petitions.

2.      They are Petition No. 161of2020 Martin Muswanya Nyakiamo vs. Director of Public Prosecution the Chief Magistrate’s Court, Milimani Law Courts and Kenya Bureau of Standards & Charles Ogega Ongwae and Others (Interested Parties), Petition No. 208of2020 Benson Oduor Ngesa & Another vs. Director of Public Prosecution the Chief Magistrate’s Court, Milimani Law Courts and Kenya Bureau of Standards & Charles Ogega Ongwae and Others (Interested Parties) and Petition No. E237of2020 Charles Ogega Ongwae vs. Director of Public Prosecution the Chief Magistrate’s Court, Milimani Law Courts and Kenya Bureau of Standards & Erick Chesire Kiptoo and Others (Interested Parties).

3.      The Petitions variously challenge the constitutionality of Nairobi (Milimani) Chief Magistrates Criminal Case No. 1151 of 2018 (hereinafter referred to as ‘the criminal case”) where the three Petitioners, among other persons, were charged in connection with the release of allegedly substandard fertilizers which posed danger to the public.

4.      The Petitions were vehemently opposed.

The Petitions:

Petition No. 161 of 2020:

5.      The Petitioner is one Martin Muswanya Nyakiamo. He was Kenya Bureau of Standards’ Regional Manager in charge of the Coast region.

6.      The Petition is dated 4th May, 2020. It was filed together with an application by way of a Chamber Summon evenly dated. The application sought orders to stay the proceedings in the criminal case.

7.      Both the Petition and the application were supported by Affidavits sworn by Martin Muswanya Nyakiamo, the Petitioner, on the even date.

8.      In further support to the Petition and the application, the Petitioner filed a Further Affidavit he swore on 30th November, 2020, and written submissions dated 18th May, 2020.

9.      The 2nd Interested Party therein, Eric Chesire,supported the Petition and the application. To that end, he filed an Affidavit he swore on 2nd June, 2020. He also filed submissions dated 30th September, 2020.

10.    In the main, Petition No. 161 of 2020 prayed for the following orders: -

i)        A declaration that the Chief Magistrate's Court Criminal Case No. 1151 of 2018, REPUBLIC VS CHARLES OGEGA ONGWAE & 6 OTHERS is an infringement. breach or otherwise a contravention of the Petitioner's right to equality before the law, equal protection and equal benefit of the law as enshrined in Article 27(1) of the Constitution.

ii)       A declaration that the Chief Magistrate's Court Criminal Case No. 1151 of 2018, REPUBLIC VS CHARLES OGEGA ONGWAE & 6 OTHERS is a threat to the right of the Petitioner not to be subjected to torture in any manner whether physical or psychological.

iii)      A declaration that the charges against the Petitioner continued after the unconditional release of the substandard compound fertilizer to OCP (K) Ltd, which forms the particulars of all the offences facing the accused person are vexatious, oppressive, tantamount to harassment, an abuse of the court process and contrary to public interest and the interest of administration of justice contrary to Article 157(11) of the Constitution.

iv)      An Order of Judicial Review in form of an Order of Prohibition do issue prohibiting the 1st Respondent from prosecuting or further prosecuting or preferring and prosecuting the charges preferred against the Petitioner in Milimani Chief Magistrate's Court Criminal Case No. 1151 of 2018, REPUBLIC VS CHARLES OGEGA ONGWAE and 6 OTHERS or any variation thereof or any charges or charges akin to the same in Milimani Chief Magistrate's Court Case No.  1151 of 2018, REPUBLIC VS CHARLES OGEGA ONGWAE.

v)       An Order of Judicial Review in form of an Order of Prohibition do issue prohibiting the Chief Magistrate's Court, Milimani Law Courts, Nairobi, and/or any other magistrate for that matter from hearing or further hearing or determining the charges preferred against the Petitioner in Chief Magistrate’s Court, Milimani, Nairobi Criminal Case No.  1151 of 2018, REPUBLIC VS CHARLES OGEGA ONGWAE AND 6 OTHERS or any variation of thereof or any charge or charges in substitution thereof akin to the same Chief Magistrate’s Court, Milimani, Nairobi Criminal Case No. 1151 of 2018, REPUBLIC VS CHARLES OGEGA ONGWAE & 6 OTHERS.

vi)      Costs of this Petition.

Petition No. 208 of 2020:

11.    This Petition was filed by two Petitioners. They are Benson Oduor Ngesa and Stephen Boaz Oloorespectively. The Petitioners were employed by Bollore Transport & Logistics Company Limited as a Supervisor and a Warehouse Manager respectively.

12.    The Petition is dated 16th June, 2020. It is supported by an Affidavit sworn by the 1st Petitioner, Benson Oduor Ngesa, on his own and on behalf of the 2nd Petitioner. The Affidavit was sworn on even date.

13.    Contemporaneously with the filing of the Petition was an application by way of a Notice of Motion dated 16th June, 2020 which application also sought to stay the criminal case pending the determination of the application and Petition. The application also sought for an order consolidating the Petition with Petition No. 161 of 2020.

14.    In further support to the Petition, the Petitioners filed written submissions dated 2nd October, 2020.

15.    Petition No. 208 of 2020 sought for the following orders: -

a.A declaration be and is hereby issued that the Petitioner’s right as enshrined in the Constitution with respect to equality before the Law have been infringed by the acts of the Respondent,

b.A declaration be and is hereby issued that the Petitioners rights as enshrined in the Constitution with respect to a fair hearing have been infringed upon,

c.A declaration be and is hereby issued that the Petitioners rights as enshrined in the Constitution not to be subjected to torture in any manner, whether physical or psychological have been infringed upon,

d.A declaration be and is hereby issued that the initiation, maintenance and prosecution of Criminal Case No. 1151 of 2018 Republic vs Charles Ogega Ongwae & 6 Others at the Chief Magistrates Courts, Milimani Law Courts, against the Petitioners herein is oppressive, malicious and an abuse of the Court,

e.A declaration be and is hereby issued that the 1st Respondent’s action of prosecuting the Petitioners goes against the rules of natural justice and promotion of public confidence in the integrity of the office of the 1st Respondent,

f.A declaration be and is hereby issued that the Petitioners are entitled to damages for violation of their fundamental rights and freedoms as enshrined in the Constitution,

g.An order of Judicial Review in form of an order of Prohibition do issue prohibiting the 1st Respondent from further prosecuting, preferring and/or making any variations as to the charges against the Petitioners in Criminal Case No.  1151 of 2018, Republic vs Charles Ogega Ongwae & 6 Others at the Chief Magistrates Courts, Milimani Law Courts, against the Petitioners herein.

h.An order of Judicial Review in form of an order of Prohibition do issue prohibiting the 2nd Respondent from further hearing and making a determination as to the charges against the Petitioners in Criminal Case No. 1151 of 2018, Republic vs Charles Ogega Ongwae & 6 Others at the Chief Magistrates Courts, Milimani Law Courts, against the Petitioners herein.

i.Any other relief that this Honourable Court shall deem fit by dint of Article 23 (3) of the Constitution of Kenya, 2010 and is just to grant in the circumstances.

j.Costs of this petition.

Petition No. E237 of 2020:

16.    This Petition was instituted by Charles Ogega Ongwae who was the then Managing Director of Kenya Bureau of Standards.

17.    The Petition was dated 5th August, 2020.  It was filed together with an application by way of a Notice of Motion evenly dated. The application sought to stay the prosecution of the criminal case and an order consolidating this Petition with Petition No. 161 of 2020 and Petition No. E237 of 2020.

18.    Both the Petition and the application were supported by a Supporting Affidavit and a Supplementary Affidavit sworn by the Petitioner. The Petitioner also filed written submissions.

19.    The 4th Interested Party herein, Martin Muswanya Nyakiamo, who was the Petitioner in Petition No. 161 of 2020 supported the Notice of Motion application.

20.    In the main, Petition No. E237 of 2020 prayed for the following orders: -

a.       A declaration that the Petitioners rights as enshrined in the Constitution with respect to equality before the Law have been infringed by the acts of the Respondents,

b.       A declaration that the Petitioners rights as enshrined in the Constitution with respect to a fair hearing have been infringed upon,

c.       A declaration that the Petitioners rights as enshrined in the Constitution not to be subjected to torture in any manner, whether physical or psychological have been infringed upon,

d.       A declaration that the Petitioners rights as enshrined in the Constitution with respect to fair administrative action have been infringed upon,

e.       A declaration that the Petitioners rights as enshrined in the Constitution with respect to dignity have been infringed upon,

f.       A declaration that the initiation, maintenance and prosecution of Criminal Case No. 1151 of 2018 Republic vs Charles Ogega Ongwae & 6 Others at the Chief Magistrates Courts, Milimani Law Courts, against the Petitioners herein is oppressive, malicious and an abuse of the Court,

g.       A declaration that the 1st Respondent's action of prosecuting the Petitioners goes against the rules of natural justice and promotion of public confidence in the integrity of the office of the 1st Respondent,

h.       An order of Judicial Review in form of an order of Prohibition do issue prohibiting the 1st Respondent from further prosecuting, preferring and/or making any variations as to the charges against the Petitioners in Criminal Case No. 1151 of 2018, Republic vs Charles Ogega Ongwae & 6 Others at the Chief Magistrates Courts, Milimani Law Courts, against the Petitioners herein.

i.        An order of Judicial Review in form of an order of Prohibition do issue prohibiting the 2nd Respondent from further hearing and making a determination as to the charges against the Petitioners in Criminal Case No. 1151 of 2018, Republic vs Charles Ogega Ongwae & 6 Others at the Chief Magistrates Courts, Milimani Law Courts, against the Petitioners herein.

j.        Compensation by damages to be assessed by the court for the violation of the Bill of Rights and the Constitution.

k.       Any other relief that this Honourable Court shall deem fit by dint of Article 23 (3) of the Constitution of Kenya, 2010 and is just to grant in the circumstances.

l.        Cost of this Petition.

21.    The Petitioners and the Interested Parties prayed that all the Petitions be allowed with costs.

The Responses:

22.    There are three similar Respondents in all the Petitions. They are the Director of Public Prosecutions, the Chief Magistrate’s Court, Milimani Law Courts and the Kenya Bureau of Standards respectively.

23.    In respect to Petition No. 161 of 2020, the 1st Respondent did not file any response thereto.

24.    The 3rd Respondent filed Grounds of Opposition dated 14th September 2020.

25.    In response to Petition No. 208 of 2020, the 1st Respondent filed Grounds of Opposition dated 21st September, 2020 and a Replying Affidavit sworn by one P.C Peter Ndiritu, a police officer on 5th October, 2020.

26.    The 3rd Respondent did not file any response thereto.

27.    On Petition No. 237 of 2020, the 1st Respondent filed a Replying Affidavit sworn by P.C Peter Ndiritu, a police officer on 5th October, 2020.

28.    The 3rd Respondent did not file any response thereto.

29.    It is, however, worthy-noting that the three Petitions were handled together hence the parties’ pleadings in one of the Petitions applied to the others.

30.    The Respondents prayed that the Petitions and the applications be dismissed with costs.

Issues for Determination:

31.    This Court has carefully considered the Petitions and the Notices of Motion, the responses thereto, the parties’ submissions and the decisions referred to.

32.    From the reading of the said documents, the following issues arise for discussion: -

(a)      A discussion on general prosecutorial powers, abuse of Court process and instances where a Court may terminate a criminal trial.

(b)Whether the criminal case ought to be terminated for infringing the Petitioners’ rights and fundamental freedoms under Articles 10(2)(c), 25, 27(1), 29, 28, 47, 50(1) and157(11) of the Constitution.

(c)      What remedies ought to issue, if any.

33.    I will deal with the issues in seriatim.

Analysis and Determinations:

(a)     A discussion on general prosecutorial powers, abuse of Court process and instances where a Court may terminate a criminal trial:

34.    This Court recently discussed this issue in Nairobi High Court Constitutional Petition No. E033 of 2021 Maura Muigana vs. Stellan Consult Limited & 2 Others (unreported) and also in Nairobi High Court Constitutional Petition No. E216 of 2020 Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties)[2021] eKLR.

35.    As part of the introduction of the subject in Maura Muigana vs. Stellan Consult Limited & 2 Others case (supra), I acknowledged the many writings by legal scholars and decisions by Courts and appreciated that whereas it would have been desirable to come up with all the marvellous work on the issue in a ‘one-stop shop’, that was a tall order given the time constraints and the need for expeditious disposal of cases. I, however, rendered a concise discussion on the subject.

36.    I traced the legal basis of the exercise of prosecutorial powers in Kenya to the Constitution and the law. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as under: -

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 clause (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.

37.    There is, as well, the Office of Director of Public Prosecutions Act No. 2 of 2013 (hereinafter referred to as ‘the ODPP Act’). It is an Act of Parliament aimed at giving effect to Articles 157 and 158 of the Constitution and other relevant Articles of the Constitution and for connected purposes. The ODPP Act provides in Section 4 the guiding principles in prosecution of cases as follows:

(4)  In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—

(a)      the diversity of the people of Kenya;

(b)      impartiality and gender equity;

(c)      the rules of natural justice;

(d)      promotion of public confidence in the integrity of the Office;

(e)      the need to discharge the functions of the Office on behalf of the people of Kenya;

(f)      the need to serve the cause of justice, prevent abuse of the legal process and public interest;

(g)      protection of the sovereignty of the people;

(h)      secure the observance of democratic values and principles; and

(i)       promotion of constitutionalism.

38.    The ODPP Act, among other statutes, variously provide for the manner in which the DPP ought to discharge its mandate. Suffice to say, the exercise of prosecutorial powers by the DPP has been subjected to legal scrutiny and appropriate principles and guidelines developed.

39.    Recently, the Supreme Court sufficiently rendered itself regarding termination of criminal proceedings on the basis of inter alia that the dispute was civil in nature and also on account of inordinate delay in instituting an intended prosecution. That was in Petition No. 38 of 2019 Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR.

40.    On whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP contrary to the Constitution, the Supreme Court stated as follows: -

[79]    The High Court in its finding, prohibited the Respondents from proceeding with any criminal proceedings against the Appellant in relation to the suit property or any subject matter and transaction connected to the suit property. The Court of Appeal reversed this judgment by holding that the High Court had interfered with the discretion given to the Director of Public Prosecutions (DPP) to initiate and conduct prosecution. Essentially, the Court of Appeal found that the High Court went against public interest in preventing investigation and prosecution of allegations relating to fraudulent transfer and acquisition of the suit property and that the learned Judge interfered with the prosecutorial mandate of the DPP to decide on whether to charge or not to charge an individual.

[80]The 5th, 6th and 7th Respondents on their part, maintain the position that the decision to commence investigations against the Appellant was consistent with the provisions of Article 157 of the Constitution and Section 6 of the Office of Director of Public Prosecutions Act. They also submitted that the decision to institute criminal proceedings by the DPP is discretionary and that such exercise of power is not subject to the direction or control by any authority as provided for under Article 157(10) of the Constitution.

[81]Under Article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any Court. Article 157(6) provides as follows:

(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.”

Article 157(4)provides that:

(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.

However, Article 157(11) stipulates that:

(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.

[82]    Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.

[83]In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that: -

Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.

By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.

It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v. R. [2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR. (emphasis supplied)

[84]    Furthermore, the Supreme Court of India inR.P. Kapur v State of PunjabAIR 1960 SC 866 laid down guidelines to be considered by the Court on when the High Court may review prosecutorial powers. They are as follows:

(I)       Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or

(II)      Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or

(III)    Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; or

(IV)     Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

[85]    We are persuaded that this is a good guide in the interrogation of alleged abuse of prosecutorial powers and read alongside Article 157(11) of the Constitution, we have sufficiently expressed ourselves elsewhere in this Judgment to show that the unconstitutional continuance of the criminal proceedings against the Appellant amounts to abuse of Court process and that, balancing the scales of justice, the weight would favor the Appellant and not the Respondents.

41.    On public interest, the Court expressed itself as follows: -

[86]On public interest, what is in issue is a dispute arising from a commercial transaction 24 years ago where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals.

[87]The learned Judge of the High Court, in our view, was well within his mandate under Article 165(3)(d)(ii) as read with Article 157(11) of the Constitution to curtail the Appellant’s prosecution and the DPP’S powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court.

42.    And, on whether inordinate delay in instituting an intended prosecution would infringe the rights and freedoms of the party sought to be prosecuted under Articles 19, 20, 27 and 50 of the Constitution, the Apex Court had the following to say: -

[56]The question of delay with respect to the lodging of criminal prosecutions has been addressed by our Courts in several matters. The leading persuasive decisions on the subject are the High Court cases ofGithunguri v Republic(1986) KLR 1 andRepublic v Attorney General & Another ex Parte Ng’eny(2001) KLR 612 which both Superior Courts relied on.

[57]    In Githunguri v Republic (supra), the Court stated as follows:

In this instance the delay is said to have been nine years, six years and four years. The Court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the Court the reason but it would have made us knowledgeable if told.

We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute, and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the Court will be within a reasonable time as required by section 77(1). The delay is so inordinate as to make the non-action for four years inexcusable in particular because this was not a case of no significance, and the file of the case must always have been available in the Chambers of the Attorney-General. It was a case which had received notable publicity, and the matter was considered important enough to be raised in the National Assembly.

We are of the opinion that two indefeasible reasons make it imperative that this application must succeed. First as a consequence of what has transpired and also being led to believe that there would be no prosecution the applicant may well have destroyed or lost the evidence in his favour. Secondly, in the absence of any fresh evidence, the right to change the decision to prosecute has been lost in this case, the applicant having been publicly informed that he will not be prosecuted and property restored to him. It is for these reasons that the applicant will not receive a square deal as explained and envisaged in section 77(1) of the Constitution. This prosecution will therefore be an abuse of the process of the Court, oppressive and vexatious.

[58]    Similarly in the case of Republic v Attorney General & Another Ex Parte Ngeny (2001) KLR 612, the Court addressed this question and stated that:

In the case before us, the delay was nine years. No attempt has been made to explain it. The subject matter of the charges against the Applicant is a colossal sum involving an institution that was strategic to the Government when the losses were occasioned; so why did the State not mount a prosecution immediately? Nine years is too long a delay. We cannot think anything else but that the criminal prosecution against the Applicant was motivated by some ulterior motive. It is not a fair prosecution. It was mounted quite late: Nine years after the Applicant had vacated the relevant public office alleged to have been abused. We were told, and this was not challenged, that having been out of office for that long, he does not have in his possession material to prepare his defence. This we believe. We are of the view that to allow delayed prosecutions is akin to putting a noose around the necks of individuals and then saying to them: 'Go, you may go. We shall decide your fate as and when we wish.' This is to keep the individual in fear. This does not accord with constitutional guarantees of individual rights and freedoms and is nothing more than an abuse of the process of the Court.

[59]The argument put forth by the Appellant is that his right to be tried within a reasonable period of time has been infringed in view of the fact that it has taken 24 years for him to be prosecuted. The Appellant cites the various hurdles to the impending trial that will result in him not having a fair trial; the missing Land Registry file as well as the loss of vital documentary evidence.

[62]    In addressing this issue, we note that in the case ofGeorge Joshua Okungu & Another v The Chief Magistrate’s Court Anti-Corruption Court at Nairobi & Another(supra), the High Court persuasively held that: -

....it is not mere delay in preferring the charges that would warrant the halting of the criminal proceedings. Rather, it is the effect of the delay that determines whether or not the proceedings are to be halted. In this case, there is no allegation made by the Petitioners to the effect that the delay has adversely affected their ability to defend themselves. In other words, the Petitioners have to show that the delay has contravened their legitimate expectations to fair trial.

[65]    This Court in the case ofHon. Christopher Odhiambo Karan v David Ouma Ocheing & 2 Others[2018] SC Petition No. 36 of 2019 had an opportunity to discuss the significance, distinctive meaning, scope and implication of the right to a fair trial and stated that“It is therefore settled law that all persons who come to any Court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution 2010 in Article 25(c) placed a bar on limitation of the right to a fair trial, in civil and criminal matters.”

[66]    It is in the above regard trite that there is no limitation of time to institute and prosecute criminal offences but as stated inGithunguri,where the delay has the effect of denying a suspect the legal tools to mount a credible defence, then the High Court is properly mandated by the Constitution to step in and stop the intended prosecution.

[67]    Similarly, where the delay was occasioned by deliberate inaction on the part of a complainant with the intent of getting at a suspect to force the suspect’s hand in say, a different transaction between them at a later date or even use the complaint to force settlement in ongoing civil proceedings, then, again the High Court, as a Court of first instance, must step in because the intended prosecution is tainted with malice and not the otherwise unassailable intent to furnish criminal wrong doing, promptly.

[68]    Furthermore, both Articles 49(1)(a)(ii) and 50(1) and (2)(e) of the Constitution expect that in resolution of disputes, fairness must necessarily include the promptness of action and the inhibition against unreasonable delay. What is reasonable, it is now settled, includes both the reason for delay and the period of delay.

[69]    In the present case, all the evidence before us points to the fact that the documentation necessary to prove the alleged fraud may no longer be available and we agree with the learned Judge of the High Court that, where both parties have admitted that the same issues are also pending resolution in another Court, and that the issue of lost documentation remains unresolved, it would be most unfair to subject the Appellant to a criminal trial, 24 years after the impugned transaction.

[70]    What of the fact that it is admitted that the 2nd and 3rd Respondents indeed received part purchase price for purchase of the suit property? Why would it take them 24 years to decide that they were now entitled to the balance thereof as well as return of the title documents? Our position is that such a delay and use of the criminal process to force the hand of the Appellant fatally taints the fairness of the resultant prosecution.

[71]    Lastly, in instituting the prosecution, the ODPP, without in any way taking away the constitutional mandate to prosecute crimes, ought always to act judiciously and not act in perpetuation of an unfair and malicious criminal complaint. In doing so, that office must always be guided by the principle that the right to a fair trial cannot be limited thus raising the bar in the determination of the question whether to prosecute or not.

[72]It is therefore our finding, and in agreement with the learned Judge of the High Court that, the prosecution of the Appellant is in breach of his right to a fair trial as protected by Article 25(c) as read with Article 50 of the Constitution and we have stated why.

43.   This Court also discussed the various principles and guidelines in Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties)case (supra) as follows: -

91.     Regarding the exercise of prosecutorial discretion by the Director of Public Prosecutions, the Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR stated as follows: -

[41]    Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the Courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions ofMauritius [2006] 5LRC 234:

these factors necessarily mean that the threshold of a successful challenge is a high one. It is however one thing to conclude that the courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all…

In Regina v. Director of Public Prosecutions ex-parte Manning and Another [2001] QB 330, the English High Court said partly at para 23page 344:

At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting, an effective remedy could be denied.

Although the standard of review is exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP.

[42]    The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.

In Ramahngam Ravinthram v Attorney General(supra)the Court of Appeal of Singapore said at p. 10. Para 28:

however, once the offender shows on the evidence before the court, that there is a prima facie breach of fundamental liberty (that the prosecution has a case to answer), the prosecution will indeed be required to justify its prosecutorial decision to the court. If it fails to do so, it will be found to be in breach of the fundamental liberty concerned. At this stage the prosecution will not be able to rely on its discretion under Article 35(8) of the Constitution without more, as a justification for its prosecutorial decision.

92.     The High Court in Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR had the following to say about the role of the Director of Public Prosecutions in prosecuting criminal offences: -

25.    It is therefore clear that the current prosecutorial regime does not grant to the DPP a carte blanche to run amok in the exercise of his prosecutorial powers. Where it is alleged that the standards set out in the Constitution and in the aforesaid Act have not been adhered to, this Court cannot shirk its constitutional mandate to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that:

the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…….. In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.

93.     Long before the advent of the Constitution of Kenya, 2010 the High Court in R vs. Attorney General exp Kipngeno arap Ngeny Civil Application No. 406 of 2001 expressed itself as follows: -

…. Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognized, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognized lawful parameters...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious...A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds….

94.     It has also been well and rightly argued that, on the basis of public interest and upholding the rule of law, Courts ought to exercise restraint and accord state organs, state officers and public officers some latitude to discharge their constitutional mandates. The Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others(supra) stated as follows: -

The elements of public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, State interest may outweigh societal interests. In the context of the interest of the administration of justice, it is in the public interest, inter alia, that persons reasonably ‘suspected of committing a crime are prosecuted and convicted, punished in accordance with the law, that such a person is accorded a fair hearing and that court processes are used fairly by state and citizens.

95.     The Court of Appeal in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR referred to the Supreme Court of India in State of Maharashtra & Others v. Arun Gulab & Others, Criminal Appeal No. 590 of 2007,where the Court stated:

The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings.

The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.

96.     The High Court in Bernard Mwikya Mulinge case(supra) expressed itself as follows: -

14.    As has been held time and time again the Court ought not to usurp the constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. An applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon.….

97.     In Meixner & Another vs. Attorney General [2005] 2 KLR 189the Court stated as follows: -

The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion is acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution….

98.     Mumbi Ngugi, J(as she then was), in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Others (2014) eKLRstated that:

The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…

99.     In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR the Court held that:

… the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court...As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene....

100.   Recently, the High Court in Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLRdealt with several instances where a Court may intervene and stop a prosecution. They include where: -

(i)       There is no ostensible complainant in respect to the complaint;

(ii)      The prosecution fails to avail witness statements and exhibits without any justification;

(iii)     There is selective charging of suspects; or

(iv)     An Advocate is unfairly targeted for rendering professional services in a matter.

44.    And, in Maura Muigana vs. Stellan Consult Limited & 2 Otherscase (supra), I further discussed the subject as follows: -

58.     I have also come across several other decisions on the subject. I will refer to only some few. InAnthony Murimi Waigwe v Attorney General & 4 others[2020) eKLR, the Court held that the Prosecutor has a duty to analyze the case before prosecuting it and it should let free those whom there is no prosecutable case against them. It expressed itself thus: -

48.     It is no doubt dear that under Article 157 (1) of the Constitution the ODPP is enjoined in exercising the powers conferred by the aforesaid Article to have regard to public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process. Interest of the administration of justice dictates that only those whom the DPP believes have a prosecutable case against them be arraigned in Court and those who DPP believes have no prosecutable case against them be let free. This is why Article 159 (2) of the Constitution is crying loudly every day, every hour that "justice shall be done to all, irrespective of status”. Justice demands that it should not be one way and for some of us but for all of us irrespective of who one is or one has.

49. The Petitioner in support of interest of administration of justice dictates referred to the National Prosecution policy, revised in 2015 at page 5 where it provides that: "Public Prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction, In other words Public Prosecutors should ask themselves• would an impartial tribunal convict on the basis of the evidence available?

50. In the case of Republic v. Director of Public Prosecution & Another ex parte Kamani, Nairobi Judicial Review Application No. 78 of 2015 while quoting the case of R vs. Attorney General ex Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001; the Court held;

A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper … there must be in existence material evidence on which the prosecution can say with certainty that it has a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and inactionable.

51. In a democratic society like ours, no one should be charged without the authorities conducting proper investigation. The prosecutor on the other hand is under duty toconsider both incriminating and exculpating evidence, In the case of Republic v. Director of Public Prosecutions & Another ex parte Kaman/ Nairobi Judicial Review Application Nog 78 of2015 (supra), the court expressed itself as follows:

this court appreciates that the court should not simply fold its arms and stare at the squabbling litigants/disputants parade themselves before the criminal court in order to show-case dead cases. The seat of •justice is a hallowed lace and ought to be reserved for those mattes in which the protagonists have a conviction stand a chance of seeing the light of the day. In my view the prosecution ought not to institute criminal cases with a view of obtaining an acquittal. It is against the public interest as encapsulated in section 4 of the Office of the Director of Public Prosecutions Act to stage-manage criminal proceedings in a manner intended to obtain an acquittal. A criminal trial is neither a show-biz nor a catwalk.

59.     In Meme -vs- Republic & Another (2004) eKLR the Court of Appeal discussed abuse of the Court process thus: -

An abuse of the court's process would, in general, arise where the court is being used for improper purpose, as a means of vexation and oppression, or for ulterior purposes, that is to say, court process is being misused.

60.    In quashing a criminal prosecution on the basis of abuse of Court process, the Court in Peter George Anthony Costa v. Attorney General & AnotherNairobi PetitionNo. 83/2010 expressed itself thus:-

The process of the Court must be used properly, honestly and in good faith, and must not be abused This means that the court will not allow its function as a court of law to be misused and will summarily prevent its machinery from being used as a means of vexation or of oppression in the process of litigation. It follows that where there is an abuse of the court process there is a breach of the petitioner’s fundamental rights as the petitioner will not receive a fair trial. It is the duty of the court to stop such abuse of the justice system.

61.     Still on abuse of Court process in using Court to settle personal scores, the Court in Rosemary Wanja Mwagiru & 2 Others V Attorney General & 2 Others, Mumbi J (as she then was) stated that: -

The process of the court must not be misused or otherwise used as an avenue to settle personal scores. The criminal process should not be used to harass or oppress any person through the institution of criminal proceedings against him or her. Should the court be satisfied that the criminal proceedings being challenged before it has been instituted for a purpose other than the genuine enforcement of law and order, then the court ought to step in and stop such maneuvers in their tracks and prevent the process of the court being used to unfairly wield state power over one party to a dispute.

62.     On the need for a Prosecutor to act within the law, the Court in Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others stated that: -

The discretionary power vested in the Director of Public Prosecution is not an opencheque and such discretion must be exercised within the four corners of the Constitution. It must be exercised reasonably within the law and to promote the policies and objects of the law which are set out in Section 4 of the Office of Director of Public Prosecution Act. These objects are as follows: the diversity of the people of Kenya; impartiality and gender equity; the rules of natural justice, promotion of public confidence in the integrity of the office; the need to discharge the functions of the office on behalf of the people of Kenya, the need to serve the cause of justice; prevent abuse of legal process and public interest, protection of the sovereignty of the people; secure the observance of democratic values and principles and promotion of constitutionalism. The court may intervene where it is shown that the impugned criminal proceedings are instituted for other means otherthan the honest enforcement of criminal law, or are otherwise an abuse of the court process.

63.     In Republic v. Commissioner of Co-operatives ex parte Kirinyaga Tea Growers Cooperative Savings & Credit Society Ltd CA 39/97 119991 EALR 245 the Court of Appeal warned against the improper use of power in the following words: -

...it is axiomatic that statutory powers can only be exercised validly if they are exercised reasonably. No statute ever allowed anyone on whom it confers power to exercise such power arbitrarily, capriciously or in bad faith….

64.     The above position was amplified in Nairobi High Court Miscellaneous Application No. 1769 of 2003 Republic vs. Ministry of Planning and Another ex-parte Professor Mwangi Kaimenyi, where it was held:

So, where a body uses its power in a manifestly unreasonable manner, acted in bad faith, refuse to take relevant factors into account in reaching its decision or based its decision on irrelevant factors the court would intervene that on the ground that the body has in each case abused its power, The reason why the court has to intervene is because there is a presumption that where parliament gave a body statutory power to act, it could be implied that Parliament intended it to act in a particular manner.

65. The need for Courts to act with deference and accord constitutional and legal entities to discharge their mandates was revisited inPaul Ng’ang’a Nyaga vs Attorney General & 3 Others(2013) eKLR, where it was held that: -

…. this Court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.

66. I believe I have said enough on the general exercise of prosecutorial powers and for the purposes of this case. I will now look at what Legal Scholars and Courts have rendered onabuse of Court process. That now takes me to the next sub-issue.

45.    In the same case, Maura Muigana vs. Stellan Consult Limited & 2 Otherscase (supra), I also dealt with the issue of abuse of Court process. This is what I stated: -

67.      The subject of abuse of Court process was discussed by the Court of Appeal in Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229, as follows: -

The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it...The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. It’s one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process are: -

i.        Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.

ii.       Instituting different actions between the same parties simultaneously in different courts even though on different grounds.

iii.      Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice.

iv.      Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.

68.     The Court of Appeal went on and stated as follows: -

In our view, the often quoted principle that a party should have his day in court should not be taken literally. He should have his day only when there is something to hear. No party should have a right to squander judicial time. Hearing time should be allocated by the court on a need basis and not as a matter of routine. Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice…We approve and adopt the principles so ably expressed by both Lord Roskil and Lord Templeman in the case of ASHMORE v CORP OF LLOYDS [1992] 2 All E.R 486 at page 488 where Lord Roskil states:

It is the trial judge who has control of the proceedings. It is part of his duty to identify crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judges’ time as is necessary for the proper determination of the relevant issues.

Unless a trial is on discernable issues it would be farcical to waste judicial time on it.

69.     In Nairobi Civil Appeal No. 70 of 2017 Prafulchandra Bharmal v Chief Magistrate Kibera & 3 others[2020] eKLR, the Court of Appeal further rendered itself as follows: -

20.     In answering whether there was abuse of power, the Judge too discussed at length the safeguards that exist under criminal law in regard to an accused person to ensure a fair trial which is also a guaranteed right enshrined in the Constitution. He also appreciated that Section 193 A of the Criminal Procedure Code, allows concurrent litigation of civil and criminal proceedings arising from the same issues but cautioned that the prerogative of the police to investigate crime must be exercised according to the laws of the land and in good faith. What we understand the Judge to be saying in this regard is that the mere fact that leave was granted to the appellant to institute private criminal prosecution, this ipso facto did not mean that the 2nd respondent would not get a fair trial because the principles of a fair trial are well ingrained in law and practice. Having said that, the Judge went further to infer the unique circumstances prevailing in this matter, and posited that, if the private prosecution were to proceed, it would amount to an abuse of process. He pointed out and rightly so in our view, that if both the civil and the private criminal prosecution cases which were all centred on the Bakaraniaagreement were to proceed for hearing in both courts, there was a likelihood of the two processes giving rise to two different outcomes as there were also two sets of evidence in form of document examiners’ reports. To us this was not a merit determination but a commentary on the process. We do not also see any contradictions as the Judge was restating the well-established principles of a fair trial.

21.     Was there abuse of process to warrant an order prohibiting the criminal charge? In Jago v District Court (NSW) 168 LLR 23, 87 ALR 57) Brennan, J. said in part at p. 47-48: -

An abuse of process occurs when the process of court is put in motion for purposes which in the eye of the law, it is not intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in a conduct which amounts to an offence and on that account is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process.

We are aware that the categories of abuse of process are not limited. Whether or not an abuse of power of criminal process has occurred ultimately depends on the circumstances of each case. One of the important factors at common law which underlie a prosecutorial decision is whether the available evidence discloses a realistic prospect of a conviction. In Walton v Gardener [1993] 177 CLR 378, the High Court of Australia said at para 23 –

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all categories of cases in which the process and procedures of the court which exist to administer justice with fairness and impartibility may be converted into instruments of injustice and unfairness. Thus, it has long been established that regardless of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be seen clearly to be foredoomed to fail…, if that court is in all circumstances of the particular case a clearly inappropriate forum to entertain them…, if, notwithstanding that circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a case which has already been disposed of by earlier proceedings.

21.     It is not lost to us that both the appellant and 2nd respondents are siblings; they have been involved in a dispute over the suit property for a long time; the appellant is the one who filed a civil suit, a defence was filed and when the civil suit was still pending, he instituted a private criminal prosecution. At the backdrop of all this, even the appellant’s complaint against the 2nd respondent was subjected to police investigations and the DPP directed the police file be closed. We are on our part persuaded that in the circumstances of this matter, an order of prohibition was justified to protect the court process from being used to settle a civil dispute which was pending and that allowing the criminal process was likely to embarrass the courts. To us, this order was appropriate as the Judge had to navigate carefully so as not to make far reaching pronouncements that would embarrass the pending civil trial.

70.     The High Court in Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2Others Nairobi (Milimani) HCCC No. 363 of 2009 stated as follows with respect to the Court’s power to prevent abuse of its process: -

This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it. (emphasis added).

71.     From the foregoing, it is the case that the subject of abuse of Court process is wide and whether there is an abuse of the due process depends on the circumstances of a case.

72.     As I come to the end of the second issue, I must state that I have deliberately endeavored the above somehow elaborate discussion covering the general exercise of prosecutorial powers, the concurrent civil and criminal proceedings under Section 193A of the CPC and the subject of abuse of Court process so as to lay a sound basis for consideration of the main issue in this matter which is whether the prosecution facing the Petitioner herein should be stopped since the dispute is civil in nature and the criminal case amounts to an abuse of Court process.

73.     That consideration is the gist of the next issue.

46.    From the foregoing, it comes to the fore that there are instances where a Court ought to exercise its discretion and stop a prosecution. Such instances, include, and where it is demonstrated that: -

(i)       Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court;

(ii)      Where the quashing of the impugned proceedings would secure the ends of justice;

(iii)     Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

(iv)     Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged;

(v)      Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

(vi)     The prosecution is not in public interest;

(vii)    The prosecution is not in the interests of the administration of justice;

(viii)   The prosecution is oppressive, vexatious and an abuse of the court process;

(ix)     The prosecution amounts to a breach of rights and fundamental freedoms;

(x)      The investigation and prosecution amounts to abuse of power and discretion and is aimed at achieving an ulterior or improper motive;

(xi)     The investigation and the prosecution are tainted with illegality, irrationality and procedural impropriety;

(xii)    The investigation and prosecution is in gross contravention of the Constitution and the law.

47.    Having said so, I will now consider the next issue.

(b)     Whether the criminal caseought to be terminated for infringing Articles 10, 27, 28, 29, 47, 50 and 157(11) of theConstitution:

48.    I will begin this discussion with a brief look at the parties’ cases.

The Petitioners’ cases:

Petition No. 161 of 2020:

49.    The Petitioner contended that he was unfairly charged in the criminal case.

50.    He averred that the charges were based out of a set of facts which are in issue and are pending for the hearing and determination before the criminal case and maintained that no criminality existed to justify the existence of a criminal case against him which action amounted to abuse of power.

51.    It was contended that the criminal charges against the Petitioner were founded on sub-standard compound fertilizer imported and owned by OCP Kenya, once before the 11th accused person in the criminal case - before the plea bargaining deal that dropped them as accused.

52.    It had been alleged that the sub-standard compound fertilizer did not meet the Kenyan standards requirement KS 158; 2012, Kenyan Standards Specification for solid compound fertilizers. Out of thirteen parameter tests, the imported compound fertilizer had failed in three tests being: Mercury, Nitrogen, and Sulphur.

53.    The Petitioner averred that he was the then Regional Manager of the 3rd Respondent herein in charge of the Coast Region. That all staff within his region were only administrative - never technical - answerable to him. He stated that in his role, his duties did not cover technical inspection or technical port functions aspects, but only dealt with administrative work.

54.    The Petitioner maintained that he was away from the office since 1st March, 2018, and was unaware of and not involved in testing of the consignment fertilizer that is subject matter in the criminal proceedings. He supportted his aversion by directing to correspondences dealing with testing and retesting of the subject fertilizer.

55.    The Petitioner further contended that the issue was brought to the Petitioner’s attention when he returned from India by the Regional Manager, Inspections, Coast region, whom had made a statement to the Director of Criminal Investigations (DCI) offices in Mombasa.

56.    The Petitioner stated that he was summoned by the DCI based on a release letter written by the Manager, Inspections, Coast Region, on his behalf. In obeying the summons, the Petitioner explained that all documents in Kenya Bureau of Standards were signed for and on behalf of the Head of Station, whom in this case the Regional Manager, the Petitioner herein.

57.    The Petitioner averred that the 1st Respondent herein and OCP (K) Limited, initially the 11th accused in criminal case, entered into a plea-bargaining agreement dated 9th May, 2019.

58.    It was alleged that in the Agreement, the 1st Respondent agreed to drop all charges against OCP (K) Limited and in return the later would not pursue retesting of the fertilizer as was allowed by the Magistrates’ Court, and subsequently by the High Court.

59.    Interestingly, the Petitioner posed, that the contentious fertilizer consignment which was subject of the criminal case, was without conditions released to the then 11th accused, OCP(K) Limited.

60.    On 3rd September, 2019 OCP(K) Limited via a newspaper advertisement published results of a retest that it had conducted and which results confirmed that the fertilizer consignment could be safely released to the Kenyan market. The retest results were in variance with the initial test conducted by the 3rd Respondent. In the former, there was allegation of contamination of the fertilizer while in the later the retest results confirmed that the impugned fertilizer was fit for market.

61.    The Petitioner contended that the 1st and the 3rd Respondents did not react to the newspaper advertisement to either challenge the retest results or oppose the release to the Kenyan market.

62.    The Petitioner maintained that proper conduct dictates that the 3rd Respondent has an obligation to either reship the contaminated fertilizer back to the country of origin or destroy it; but in this case, the 3rd Respondent released it to the importer and by extension to the public. The Petitioner contended that yet it was the same fertilizer consignment that was the subject matter of the criminal case that he was charged in.

63.    Urging his case further, the Petitioner posited that the Chief Manager - Inspection is responsible for technical inspection functions; while, the Chief Manager - Testing Services’ duties included testing of imported goods.

64.    He further posited that the decision to reject or accept imports into the country is made by the Inspection Department, and specifically Quality Assurance and Inspection Director (QA&I), and not the Regional Manager, who was the Petitioner herein.

65.    The Petitioner pleaded that the criminal prosecution is an abuse of the Court process, especially since the purported sub-standard compound fertilizer was not only unconditionally released to its importers, but also was released to the Kenyan market for consumption - with the full knowledge of the 1st and 3rd Respondents respectively.

66.    The Petitioner submitted that the plea bargaining deal formed the foundation of this present Petition as the deal prejudiced and violated the Petitioner’s fundamental rights i.e. the right to be treated equally before the law.

67.    The Petitioner stated that the 1st Respondent was defeating justice by terminating criminal proceedings against some accused persons while maintaining the criminal charges against the Petitioner and other Interested Parties on the basis of released fertilizer consignment to the then 11th accused person.

68.    The Petitioner conceded that the 1st Respondent has power to institute and/or withdraw charges against any person at any time during trial, but argued that the same should be exercised within the confines of law.  That in the instant case, the 1st Respondent’s actions were suspect.

69.    The Petitioner wondered that if indeed the fertilizer consignment was contaminated, the 1st Respondent would have maintained the charges against the then 11th accused person and others that were initially discharged on account of the fertilizer consignment. The Petitioner maintained that by the criminal case continuing against him and the interested parties, it is evident that they have were discriminated against in law.

70.    The Petitioner further averred that the Petition demonstrated the infringement of the Petitioner’s right to protection and equality benefit of law and right not to be subjected to torture.

71.    The 2nd Interested Party supported the Petition. He reiterated the position taken by the Petitioner.

72.    He pointed out that the 1st Respondent intended to call more than 30 witnesses in the criminal case with an ulterior motive of keeping the parties in Court for an unreasonable long period. To him, the criminal case is not aimed at serving justice.

73.    The 2nd Interested Party identified the following issues for determination: -

a.       Whether the Petitioner’s constitutional right and those of the Interested Party to a fair hearing have been undermined, by the acts of the respondents.

b.       Whether the Petitioner’s constitutional right and those of the Interested Party to equality before the law and freedom from discrimination have been undermined, by the acts of the respondents.

c.       Whether the petitioner’s constitutional right and those of the Interested Parties to not be subjected to torture have been undermined, by the acts of the respondents.

d.       Whether the Petitioner’s and the Interested Parties constitutional rights to fair administrative action have been undermined, by the acts of the respondents.

e.       Whether the Petitioner’s and the Interested Parties constitutional rights to dignity have been undermined, by the acts of the respondents.

f.       Whether the acts of the respondents have led to the undermining of various provisions of the Constitution of Kenya, 2010.

74.    The 2nd Interested Party contended that his rights were variously violated as the results of the laboratory test by the 3rd Respondent were not posted on the sample results points, the sample used in testing was destroyed and that the fertilizer consignment was released to its importer who sold it in the local market.

75.    He further averred that his rights were infringed upon by the Respondents since the alleged contaminated fertilizer consignment was imported and owned by OCP(K) Ltd and that the criminal proceedings against OCP(K) Ltd were terminated and the fertilizer consignment unconditionally released to the OCP(K) Ltd on the basis of the plea bargaining agreement.

76.    The 2nd Interested Party, therefore, wondered why despite the foregoing, the 1st Respondent was intent on continuing with the criminal charges against the Petitioner and the Interested Parties.

77.    The Petitioner and the 2nd Interested Party filed submissions. It was submitted that as a result of having charges preferred against him and the Petitioner in the criminal case, the following constitutional rights were violated: -

i)     Right to a fair hearing;

ii)    Right to equality before the law, equal benefit of the law and freedom from discrimination;

iii)   Right to not be subjected to torture;

iv)   Right to fair administrative action;

v)    Right to dignity, and

vi)   Other constitutional provisions violated by the acts of the respondents.

78.    Submitting on the right to a fair hearing, it was posited that Article 50(2)(j) of the Constitution provided that every accused person has a right to fair trial which includes the right to be informed of the evidence that the prosecution intends to rely on and to have reasonable access to that evidence.

79.    According to the Petitioner and the 2nd Interested Party, in the absence of the evidence, the test report that showed non-contamination of the fertilizer and the release of the consignment into the Kenyan market would render the 1st Respondent down its tool in pursuing the criminal case. The contrary showed that the accused persons were not accorded a fair hearing.

80.    They relied on Kenya Commercial Bank Ltd and 2 Others v Commissioner of Police and Another, Nairobi Petition No. 218 of 2011 where the Court held that while exercising jurisdiction to interfere with criminal investigations and the criminal trial process, the Court must balance the public interest and private interest. The Court declared that the Petitioner’s right to a fair hearing under Article 50 of the Constitution had been infringed upon and the Court exercised its inherent jurisdiction to prevent an abuse of the Court process.

81.    On the right to equality before the law, equal benefit of the law and freedom from discrimination, Article 27(1) of the Constitution that entitled all persons to equal treatment before the law and equal protection and benefit of the law was cited.

82.    It was contended that despite all the facts, the 1st Respondent selectively maintained the charges against the Petitioner and Interested Parties.

83.    They further relied on Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others [2014] eKLR, where the Court highlighted the provisions of Article 27 of the Constitution and held that it was unconstitutional for any State body to discriminate an individual on any of the grounds expressed in Article 27 of the Constitution.

84.    They also submitted that Articles 25 and 29 of the Constitution provided that every person has the right not to be subjected to torture and cruel, inhuman or degrading treatment, whether physical or psychological.

85.    It was their submission that the rights not to be subjected psychological torture have been infringed since they were still charged while a former co-accused, OCP(K) Ltd, the owner of the alleged sub-standard fertilizer had been discharged from the proceedings.

86.    Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLR, was referred to where the Court concluded that inhuman treatment has many a facet. It fundamentally can cover such acts which have been inflicted with an intention to cause physical suffering or severe mental pain. It would also include a treatment that is inflicted that causes humiliation and compels a person to act against his will or conscience. There is no shadow of doubt that any treatment meted out to a citizen which causes pain, humiliation and mental trauma corrodes the concept of human dignity.

87.    On the right to a fair administrative action, Article 47 of the Constitution provided that every person has the right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

88.    It was submitted that the substandard fertilizer that is the basis of the charges against the Petitioners has since been unconditionally released to OCP (K) Ltd and sold to the Kenyan market. The action by the 1st Respondent to maintain the criminal case against the Petitioners is influenced by an error of law, bad faith, malice, and thus an abuse of the Court process, since the evidence that is the basis of the charges is non-existent as it has since been destroyed by the 3rd Respondent; and therefore, they observed that they is not being afforded the right to fair administrative action since the charges are absent of any evidence.

89.    The case of Judicial Service Commission of Kenya v. Mbalu Mutava & Another [2015] eKLR, was referred to where the Court of Appeal concluded that the right to fair administrative action is wide in scope, as it encompasses several duties: the duty to act expeditiously; duty to act fairly; duty to act lawfully; duty to act reasonably; and in specified cases, duty to give written reasons for the decision. The Petitioners in the case were denied the right to fair administrative action, which entails substantive justice, rather than procedural justice. The right to fair administrative action is a reflection of some of the national values in Article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.

90.    On the right to dignity, Article 28 of the Constitution which provide that every person has inherent dignity and the right to have that dignity respected and protected was infringed in the circumstances of this case, it was submitted.

91.    It was the Petitioner and the 2nd Interested Party’s submission that the ridicule and loss of livelihood suffered by the accused persons as a result of the malicious and unfounded charges preferred by the 1st Respondent had greatly undermined his right to dignity. That was because prior to the criminal charges the Petitioner and Interested Party were well-respected members of the society.

92.    The criminal charges preferred by the 1st Respondent portrayed the Petitioner as a mass murderer, undermining his well-regarded reputation in society. The criminal charges have also led to his loss of livelihood and as a result this has undermined his right to dignity, since the Petitioner is no longer living the life he was accustomed to when he was employed as Quality Assurance Director of KEBS. He relied on Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLR.

93.    Other constitutional provisions submitted to have been infringed included Articles 2(4), 3(1), 10(1)(c), 10(2)(c) and 157(11) of the Constitution.

94.    They averred that the 1st and 3rd Respondents’ actions were in breach of their duty to respect and uphold the Constitution, that they acted contrary to the national values and principles of governance by procedurally. That was in contravention of Article 157(11) of the Constitution.

95.    It was particularly submitted that the 1st Respondent acted contrary the Constitution, which provides that in exercising the powers conferred by the Constitution, the 1st Respondent 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. Therefore, the continuous prosecution of the Petitioner and Interested Parties was submitted to be an abdication of the carnal mandate of the 1st Respondent.

Petition No. 208 of 2020:

96.    The facts that gave rise to the Petition were similar to those stated Petition No. 161 of 2020 save as herein below stated.

97.    The Petitioners stated that Bollore Transport Logistics Company Ltd, as a custom agent and on behalf of OCP(K) Ltd, in November 2017, obtained the necessary documentations for import of bulk fertilizer and its clearance at the port on its arrival.

98.    That the consignment was received by Bollore on 24th January, 2018 wherein the 3rd Respondent had already collected sample of the fertilizer for testing.

99.    That Bollore and OCP(K) Ltd, on 9th February, 2018 were informed that the collected samples on analysis failed as regard to Nitrogen, Sulphur, and labelling of water-soluble phosphates percentages.

100.  OCP(K) Ltd on 12th February, 2018 applied for a retesting of the consignment, considering that the previously done tests in Morocco, origin of the consignment, by OCP Laboratory and Bureau Veritas was consistent with the consignment that was shipped.

101.  The Petitioners contended that an agreement was reached that the retest was to be done by in presence of all the parties concerned. The test was done wherein the results differed from the ones obtained by the 3rd Respondent previously. The subsequent test showed that the consignment was compliant within acceptable standards.

102.  The Petitioners further stated that pursuant to the retests conducted, the 3rd Respondent via a letter dated 1st March, 2018 lifted the seal and allowed the fertilizer to be distributed and sold locally. As a result, thirty percent of the fertilizer consignment was released to the local market and sold between 3rd March, 2018 and 7th June, 2018.

103.  That on 14th June, 2018 officers from the DCI went to Bollore warehouse where they probed on issues regarding the fertilizer consignment, import documentation, customer list, and the warehouse where the remaining fertilizer consignment was being kept. They complied.

104.  The Petitioners averred further that on 19th June, 2018 a Multi-Agency Team went and took samples of the fertilizer consignment and instructions were given not to release the remaining fertilizer. The warehouse was locked and placed under seal.

105.  The Petitioners maintained that the results of the samples collected on 19th June, 2018 were yet to be released.

106.  The Petitioners, were however, arrested and later charged on 25th June, 2018 in the criminal case alongside the rest. The charges were in regard to the fertilizer consignment that they had earlier released and was sold to the public with allegations of being contaminated with mercury.

107.  The charges were based on the results of the laboratory test by the 3rd Respondent dated 2nd March, 2018 which results nonetheless were never posted on the sample results points as ordinarily done by the 3rd Respondent.

108.  Similarly, the Petitioners herein pleaded the same constitutional violations and nature of injury as in Petition No. 161 of 2020.

109.  In support of the Petition, the Petitioner submitted that the issue for determination was whether the Petitioners have made out a proper case for prohibiting the continuance of the criminal proceedings instituted against him in Milimani C. M. Criminal Case No. 1151 of 2018.

110.  The Petitioners conceded that the 1st Respondent, as provided under Article 157 of the Constitution, is under no directions from anyone and neither does it require any consent from any authority to undertake its constitutional functions and duty. It is only subject under the Constitution and law. In exercise of its powers, the 1st Respondent should pay regard to public interest, administration of justice interests and the need to prevent abuse of the legal process.

111.  The Petitioners relied on Alfred Nyandieka v Director of Public Prosecutions & 3 others [2019] eKLR where the Court held thus: -

Courts ought not to usurp the constitutional mandate of the Director of Public Prosecutions to initiate criminal proceedings. Courts have further taken the position that the mere fact that the intended or ongoing criminal proceedings are in all likelihood, doomed to fail or that the petitioner has a good defense in the said criminal case cannot be relied upon as grounds to stop the criminal process if the same is undertaken bona fides as such grounds will form a defense to the petitioner in those proceedings. If on the other hand, the petitioner establishes that the ongoing criminal proceedings constitute an abuse of process, are actuated by malice, and are being conducted in breach of the petitioner's constitutional rights, then the court will not hesitate but halt such proceedings.

112.  Further, in Francis Any Ango Juma vs. DPP & Another (2012) eKLR the Court held thus: -

…Clearly, the intention under the Constitution was to enable the Director of Public Prosecutions to carry out his constitutional mandate without interference from any party. This court cannot direct or interfere with the exercise by the DPP of his power under the Constitution or direct him on the way he should conduct his constitutional mandate, unless there was clear evidence of violation of a party's rights under the Constitution, or violation of the Constitution itself.

113.  In the case of Alfred Nyandieka vs The Director of Public Prosecutions case (supra), the Court cited State of Maharastra & Others V Arun Guiab Gawali & Others Criminal Appeal No. 590 of 2007 which laid the grounds upon which a criminal prosecution maybe discontinued.

114.  The Petitioners further submitted that the criminal proceedings were ill-motivated, lacked evidence, were oppressive and an abuse of the Court process. The Petitioners submitted that their right to fair hearing was breached.

115.  In their submissions, they focused on the charge of attempted murder and referred to Section 388 of the Penal Code in defining attempt. They stated that the section brings out two main ingredients: mens rea and actus rea. Relying on R vs. Whybrow (1951) 35 CR APP REP, 141; Abdi Ali Bare vs Republic (2015) eKLR and also J. C. Smith and Brian Hogan in Criminal Law, Butterworths, 1998 (6th Edition) at page 288.

116.  The Petitioners, therefore, concluded that the charges against them and others lacked any foundational basis.

117.  The Petitioners also stated that the charges lacked logical explanation as to why OCP(K) Ltd, who imported, owned, and sold the fertilizer in the market, was no longer a party to the charges, while the Petitioners who only provided logistical services were still charged on the basis of the same fertilizer consignment.

118.  The Petitioners contended that the 1st and 3rd Respondents allowed the release of the consignment of fertilizer now subject to criminal charges and as such they too participated by aiding and abetting the Petitioners in committing the offence of attempted murder.

119.  The Petitioners submitted that it was evident that the charges against the Petitioners lacked the basic ingredient of intent for a charge of attempted murder as the release of the fertilizer to the owner was with the authority and knowledge of the 1st and 3rd Respondents. For these reasons, they submitted that the proceedings in criminal case should be quashed to secure the ends of justice.

120.  The Petitioners averred that their rights to a fair hearing were breached as the charges were not backed by any evidence.

121.  Reference was also made to Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Basham Lalji [2014] eKLR and Joseph Ndungu Kagiri v Republic [2016] eKLR.

122.  It was Petitioners’ submission that the 1st Respondent’s action were discriminatory and infringed on their right to equality before the law, equal benefit of the law, and freedom from discrimination.

123.  The Petitioners also averred that there was selective prosecution of the Petitioners by the Respondents and that clearly showed that the Petitioners were not being treated equally under the law. To that extent, they submitted that the criminal case was discriminatory and did not safeguard the Petitioners’ rights to equal treatment, protection and benefit of the law.

124.  On the contention that their right not to be subjected to torture was violated by the 1st Respondent, they referred to Articles 25 and 29 of the Constitution and Lucy Wanjiku Mukaru (suing as the legal representative of Mukaru Ng'ang'a ­ Deceased) v Attorney General [2018] eKLR.

125.  Further the Petitioners’ stated that the criminal proceedings were an abuse of the Court process. They submitted that the 1st and 3rd Respondents acted contrary to Article 10(1)(c) as read with Article 10(2)(c) and Article 157 of the Constitution. They further relied on Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR, Republic v Commissioner General, Kenya Revenue Authority Ex-Parte Mount Kenya Bottlers Ltd & another [2017] eKLR and Stephen Somek Takwenyi & Another-Vs- David Mbuthia Githare & 2 Others Nairobi (Milimani) HCC No. 363 of 2009 which held that: -

The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process, it is the machinery used in the courts of law to vindicate a man's rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused.

An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognize as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it.

126.  The Petitioners maintained that the criminal proceeding were designed to achieve a mischievous goal other than the proper purpose of prosecution as envisaged under Article 157 of the Constitution.

127.  In support of the Petitioners’ case, the 3rd Interested Party filed written submissions. He submitted that his rights were breached by the actions of the Respondents.  He reiterated that the criminal proceedings against them was an abuse of the Court’s process. That he was not involved in the sampling and testing of the fertilizer, but his decision to release the consignment was based on the information and data from the testing department in his organization, KEBS.

128.  He also submitted that the prosecution pursued by the 1st Respondent lacked any evidence as no relevant exhibits were produced in Court. It was alluded that the prosecution only relied on questionable documents whose source was unknown and that the 1st Respondent frustrated retesting of the fertilizer as had been ordered by Court. He stated that other tests, prior and after, by other organizations other than KEBS produced results that were acceptable by the Kenyan standards.

129.  The 3rd Interested Party maintained that as a result of the plea agreement that would abandon retest that was ordered by Court, that this was an effort by the 1st Respondent to defeat justice as the retest would impact on the basis of the criminal charges.

130.  It was submitted that the plea agreement was discriminatory and a violation of equality before the law; as it was only some accused persons whose charges were dropped, while the others were still being charged. This was so despite also of having released the supposed contaminated fertilizer exhibit, for sale and distribution in the market. That this denied the charged justice as espoused in Article 50 of the Kenyan Constitution.

131.  He submitted that continuing of the prosecution is akin to charges in absence of criminality. As such, it was submitted that the plea agreement was an object used to violate the constitutional rights of among others, the 3rd Interested Party and thus the plea agreement is an illegality, null, and void. He submitted further that the 1st Respondent’s actions amounts to abdication of its duties as provided for under Article 157 of the Constitution and in Bennet vs Horseferry Magistrates Court & another.

132.  The 3rd Interested Party averred that the action to recharge the accused persons allegedly on basis of different fertilizer consignment, while it was the same released consignment is a violation of Article 47 of the Constitution and the principles in Republic vs Attorney General Ex parte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001.

133.  The Petitioners and the 3rd Interested Party sought that the Petition be allowed as prayed.

Petition No. 237 of 2020:

134.  The Petitioner averred that he first got to know about a Kenya Bureau of Standard Test Certificate dated 2nd March, 2018 during a Parliamentary Session on 21st June, 2018 where, he appeared before the session to respond to allegation of mercury in sugar, which was later clarified that it was contaminated fertilizer and not sugar.

135.  Surprised by the purported KEBS test report, as averred by the Petitioner, he probed further about the test report to confirm its origin; to which he was informed by the relevant staff member that such a report never existed in the sample results point.

136.  Sample Result Point is a system in the KEBS Laboratory Management System (LIMS) where all such reports are posted by Laboratory Analysts and accessed by Quality Assurance and Inspection officers for their action as per their mandates.

137.  Also that sample submission form was not completed, yet it would have indicated the sampling parameters and reasons for testing/sampling.

138.  That later on 22nd June, 2018 the Petitioner was arrested and charged on 25th June, 2018. The Petitioner averred that the 1st Respondent and OCP(K) Limited (initially the 11th accused in criminal case), entered into a plea bargaining agreement dated 9th May, 2019.

139.  The Petitioner averred that what transpired after being charged in the criminal case was as in Petition No. 161 of 2020.

140.  In his submissions, the Petitioner reiterated what was largely submitted in the other Petitions.

141.  The Petitioner prayed for the Petition to be allowed.

The Respondents’ cases:

142.  The Respondents jointly opposed the Petitions.

143.  The 3rd Respondent filed Grounds of Opposition dated 14th September, 2020.

144.  The grounds were as follows: -

a)       THAT the Orders/prayers sought in this petition and the accompanying application before this court have been sought at the trial which equally has jurisdiction to entertain the alleged human rights abuses and to stay the trial of the subject criminal case the same court being well versed with all grounds supporting this petition.

b)       THAT there are avenues available to the petitioner as and when he is dissatisfied with the decision of the 2nd respondent such approaches include an appeal, review and a revision of the decision made by the 2nd respondent.

c)       THAT the Kenya bureau of standards is a creature of the standards act cap 486 of the Laws of Kenya.

d)       THAT the Standards Act outlines the functions and roles of the Kenya Bureau of Standards.

e)       THAT arrest and prosecutions are not tenants of the Standards Act Cap 486 Laws of Kenya.

f)       THAT the mandate to prosecute and/or discontinue any criminal proceeding lies with the office of the director of public prosecution as envisaged in article 157 of the Constitution of Kenya.

g)       THAT the plea bargaining leading to the release of the alleged contaminated fertilizer and the subsequent withdrawal of charges facing the 3rd Respondent herein amongst other accused persons was very well negotiated with the 1st Respondent and arrived at/ recorded in open court a process the applicant herein had an opportunity to file relevant applications in opposition, if not to negotiate with the 1st Respondent to put them on board in the plea bargain process.

h)       THAT the 3rd Respondent being the employer and or former employer of the applicant and the interested parties herein is not responsible for determining the fairness of the criminal proceedings facing the Applicant and the interested parties at the Chief Magistrate's Court Criminal Case Number 1151 of 2018.

i)        THAT the 3rd Respondent is only tasked with providing the information and evidence as requested by the 1st Respondent in prosecution of this case against the Applicant and interested parties where the charges against them relate to abuse of office allegations.

j)        THAT a plea bargain as set out in section 137 (A) to 137 of the Criminal Procedure Code is an agreement between the Director of Public Prosecution and the accused party within a well-structured formula that is not prejudicial to the victims and by extension to any co-accused persons who are not pan of the subject deal/ plea bargaining agreement.

k)       THAT the Petitioner should not drag the 3rd Respondent into claims they face as individuals and should not seek an unwarranted stay of proceedings to delay the trial against them which is founded on evidence unknown to the 3rd Respondent.

l)        THAT according to the plea bargain agreement it is clear that the same was made pursuant to new facts availed to the prosecution by the accused persons that clearly indicated that the decision charge was made without full benefit of the full factual scenario being provide to the investigations and the prosecution by all the accused persons in Criminal Case Number 1151 of 2018 which new facts probably supports the decision of the 1st Respondent to maintain charges against the Applicant and the interested parties herein.

m)      THAT the plea agreement clearly states that the 3rd Respondent herein shall fully cooperate with the 1st Respondent in seeking justice in relation to Criminal Case Number 1151 of 2018.

n)       THAT the 3rd Respondent mandate is not to determine the innocence or guilt of the Petitioner but to provide evidence in the Criminal Case No.1151 of 2018 based on the fact that it is the employer/former employer of the Petitioner.

o)       THAT the applicants have not stated which constitutional rights have been violated to warrant the jurisdiction of this honourable court.

p)       THAT a plea bargaining is not an acquittal and as such the 1st and 3rd Respondents have not in any particular manner secluded the Applicant and the interested parties herein as stipulated in the several Articles of the Constitution supporting this Petition and hence this Petition and the Chamber Summons herein dated the 4th of May 2020 are unfounded and an abuse of this Honourable Courts time.

q)       THAT the Applicants grounds do not demonstrate any exceptional circumstances to justify grant of stay and should therefore be dismissed commence without any further delays.

145.  The 1st Respondent filed a Replying Affidavit sworn on 5th October, 2020, by one PC Peter Ndiritu, a police officer attached at the Directorate of Criminal Investigations Headquarters, Nairobi.

146.  In the main, he averred that the Petition was inclined towards unlawfully directing the 1st Respondent in conducting its mandate as empowered under Article 157 of the Constitution; by unlawfully expanding and introducing new issues in the prosecution’s case.

147.  He further averred that the prosecution case was grounded on witness statements and documentary evidence which were served upon the accused persons in compliance with Article 50 of the Constitution and Section 45 of the Criminal Procedure Code.

148.  That the DCI has never been supplied with any other information or documents with regards to any other tests conducted save for 24th January, 2018 and 15th February, 2018.

149.  He maintained that as advised by the 1st Respondent’s Counsel, that when the decision to charge was made, the consignment of fertilizer supposedly held by Bollore, that the same was not known to the 1st Respondent and never formed part of evidence in the criminal proceedings. The same consignment also did not form part of the samples collected and tested on 24th January, 2018 and 15th February, 2018.

150.  Further, that the 1st Respondent was opposed to the retesting of the fertilizer consignment mainly because its credibility could not be guaranteed as the same consignment had been released to the importer and hence the 3rd Respondent had lost control over it and that there was no documentation placed before the 1st Respondent to confirm that it was in deed the same consignment.

151.  Also, that by directing the 1st Respondent to perform a retesting of the fertilizer amounted to interference in exercising its mandate as provided under Article 157 of the Constitution and unlawfully expanding and introducing new issues in the prosecution’s case.

152.  He deposed that the Petitions amounted to a defence in the criminal case and that no prejudice would be meted on the Petitioners and interested parties if the orders sought herein were not granted.

153.  The Respondents urged this Court to dismiss the Petitions with costs.

Analysis:

154.  Having captured the parties’ cases and submissions, this Court now proceeds to address the allegations of infringement of the rights and fundamental freedoms as well as of the Constitution.

155.  The starting point is whether the criminal case infringes on the Petitioners’ rights and fundamental freedoms. The Petitioners in Petition No. 161 of 2020 variously submitted that their rights under Articles 2(4), 3(1), 10(1) & (2) (c), 25, 27(1), 28, 29, 47, 50(2)(j), and 157 (11) of the Constitution stand infringed by the sustenance of the criminal case.

156.  In Petition No. 208 of 2020 the Petitioner contended that his rights under Articles 47, 50(2)(j), 157, 10(1), (2) (c), 25, 29, 157 (11) of the Constitution stand violated by the sustenance of the criminal case.

157.  In Petition No. 237 of 2020 the Petitioner maintains that his rights under Articles 2(4), 3(1), 10(1), (2) (c), 25, 27(1), 28, 29, 47, 50(2)(j), and 157 (11) of the Constitution stand breached by the sustenance of the criminal case.

158.  In order for the Petitioners to succeed in their respective Petitions, the rules of proof enunciated by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others[2014] eKLR must be adhered to. The Court stated as follows: -

Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

159.  Further, the conduct of constitutional Petitions is also guided by various laws. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to constitutional Petitions and affidavits in Section 2 thereof. The provision provides as follows: -

(1)This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.

(2)Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.

160.  Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof. They state as follows:

107(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2)   When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

and

109. Proof of particular fact

The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

On Article 10 of the Constitution:

161.  The Petitioners in Petition No. 161 of 2020 and Petition No. 237 of 2020 pleaded the violation of Article 10 of the Constitution.

162.  Article 10 of the Constitution provides for the national values and principles of governance.

163.  The Petitioners, however, did not state with precision which of those values and principles of governance were infringed and the manner in which they were so allegedly infringed.

164.  As a result, the claim cannot succeed and is hereby dismissed.

On Article 27 of the Constitution:

165.  All the Petitioners averred that Article 27 of the Constitution was infringed.

166.  The provision relates to equality and freedom from discrimination. The provision states as follows: -

1. Every person is equal before the law and has the right   equal protection and equal benefit of the law.

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.

167.  The Black’s Law Dictionary, 10th Edition, defines discrimination as: -

(1)      The effect of a law or established practice that confers privileges on a certain class because of race, age sex, nationality, religion or hardship”

(2)      Differential treatment especially a failure to treat all persons equally when no reasonable distinction can be found between thosefavouredand those not favoured”

168.  Article 1(a)of the Convention Concerning Discrimination in Respect of Employment and Occupation (1958) defines discrimination as follows: -

Any distinction, exclusion or reference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

169.  In Peter K. Waweru v Republic[2006] eKLR, the Court defined of discrimination as follows: -

Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions whereby persons of one such description are subjected to … restrictions to which persons of another description are not made subject or have accorded privileges or advantages which are not accorded to persons of another such description…Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age sex…a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.

170.  Discussing what discrimination entails, a Three-Judge bench of the High Court (Mwera, Warsame and Mwilu JJ., as they then were, before they were all elevated to the Court of Appeal shortly afterwards)in Federation of Women Lawyers Fida Kenya & 5 Others vs. Attorney General & Anor [2011] eKLR and in recognition that justice, fairness or reasonableness may not only permit but actually require different treatment rendered themselves as follows: -

In our view, mere differentiation or unequality of treatment does not per se amount to discrimination within the prohibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any basis having regard to the objective the legislature had in view or which the Constitution had in view.  An equal protection is not violated if the exception which is made is required to be made by some other provisions of the Constitution.  We think and state here that it is not possible to exhaust the circumstances or criteria which may afford a reasonable basis for classification in all cases.

171.  The South African Constitutional Court in National Coalition for Gay and Lesbian Equality –Vs- Minister for Justice[1998] ZAAC 15 further added its voice to the discussion as under: -

The present case shows well that equality should not be confused with uniformity, in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across differences. It does not presuppose the elimination or suppression of differences.  Respect for human rights requires the affirmation of self, not the denial of self.  Equality therefore does not imply a leveling or homogenization of behavior but an acknowledgment and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalization, stigma and punishment – At best, it celebrates the validity that difference brings to any society.

172.  Further, the South African Constitutional Court inCity Council of Pretoria v. Walker [1989] ZACC 1 in considering direct and indirect discrimination made the following comment with which I respectfully agree: -

The inclusion of both direct and indirect discrimination, within the ambit of the prohibition imposed by section 8(2) [our Article 27(4)] of the Constitution, evinces a concern for the consequences rather than the form of conduct.  It recognizes that conduct which may appear to be neutral and non-discriminatory may nonetheless result in discrimination and, if it does, that it falls within the purview of section 8(2) [our Article 27(4)] of the Constitution.

173.  A common thread of reasoning flowing from the foregoing is that equal should be equally treated and unequal unequally treated as called for by the inequality.

174.  In attaining that legal bar, Courts have developed guiding principles. In Mbona vs. Shepstone and Wylie(2015) ZACC 11, the South African Constitutional Court rendered itself on proof of direct discrimination. The Court stated that: -

26.     The first step is to establish whether the respondent’s policy differentiates between people. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair. If the discrimination is based on any of the listed grounds in section 9 of the Constitution, it is presumed to be unfair…. Where discrimination is alleged on an arbitrary ground, the burden is on the complainant to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair.

175.  The English case of The Queen on the application of Sarika Angel Watkins Singh (A child acting by Sanita Kimari Singh her mother and litigation friend)vs. The Governing Body of Aberdare Girls’ High School and Anor [2008] EWHC 1865 (Admin) dealt with an analysis of proof of indirect discrimination. The Court developed the following four steps: -

(a)      to identify the relevant ‘provision, criterion or practice’ which is applicable;

(b)      to determine the issue of disparate impact which entails identifying a pool for the purpose of making a comparison of the relevant disadvantages;

(c)      to ascertain if the provision, criterion or practice also disadvantages the claimant personally;

(d)      Whether this policy is objectively justified by a legitimate aim; and to consider, if the above requirements are satisfied, whether this is a proportionate means of achieving a legitimate aim.

176.  The Court will now apply the above tests to the Petitions herein.

177.  In amplifying the argument on discrimination, the Petitioners mainly argued that the plea agreement afforded OCP (K) Ltd, the then 11th accused, and 4 other accused the benefit of withdrawal of the charges against it to be withdrawn and yet OCP(K) Ltd was the owner and importer of the alleged sub-standard consignment whereas the rest were still pursued.

178.  I have seen, read and understood the contents of the plea bargaining agreement. I have also read the disposition by the Respondents on the plea bargaining agreement.

179.  The content, manner of arriving at and the purpose of a plea agreement are strictly provided for in law. That is under Section 137A to 137O inclusive of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’).

180.  The process culminating with the adoption of a plea bargaining agreement by a Court is an elaborate one. The parties are actively involved and given an opportunity, on several instances, to express their views on the proposed agreement. That is the position even where the parties are represented by Counsel.

181.  In order to protect the sanctity of the criminal justice system, a Court before whom a plea bargaining agreement is presented may even reject to adopt it as part of the record of the Court. That is under Section 137J of the CPC.

182.  It is not disputed that the plea bargaining agreement was finally recorded before the trial Court. None of the Petitioners objected to its adoption.

183.  The terms of the agreement were very clear on the status of the rest of the accused persons and even on the role of the OCP(K) Ltd and the other five accused persons. The agreement discharged the accused persons under Section 87(a) of the CPC on the basis that they had not been heard by the investigators and the prosecutor before the decision to charge them was made and on the basis of new evidence which had emerged.

184.  The discharged accused persons were further placed under a duty to co-operate with the investigators and the Prosecutor in the criminal case. It was also a term of the agreement that the withdrawal of the charges against the five accused persons was without prejudice to the rest of the accused persons and that the criminal case was to proceed further.

185.  The agreement was, therefore, very deliberate and pointed.  Its basis was explained and eventually accepted by the trial Court. I am as well in agreement with the rationale behind the agreement given the circumstances under which it was made.

186.  By placing the agreement and the foregoing constitutional and legal principles and jurisprudence on discrimination side by side, this Court is not in any way persuaded that there was any form of discrimination against the Petitioners.

187.  The agreement was explicit on why the charges against the five accused persons were dropped and position that it did not affect the criminal case against the rest of the accused persons.

188.  Whereas the Petitioners may still have reservations against the agreement, such do not crystallize into any form of discrimination. It is all about evidence which its proper place for interrogation, in the unique circumstances of this matter, is before the trial Court.

189.  This Court, therefore, declines the invitation that the Petitioners were discriminated on the basis of the plea agreement.

On Article 28 of the Constitution:

190.  Article 28 of the Constitution is on human dignity. It provides as follows: -

Every person has inherent dignity and the right to have that dignity respected and protected.

191.  The Petitioners contended that their dignity was infringed by the arrest and prosecution in the criminal case. They further contended that they were exposed to public ridicule and harsh living conditions.

192.  Drawing from the above discussion, unless otherwise proved, the arrest and charging of the Petitioners in the criminal case per se cannot be in contravention of Article 28 of the Constitution.

193.  The criminal justice system is a process anchored in the Constitution and the law. There are clear demarcations and protections for all who become part of that system. Arresting and charging of persons on account of criminal culpability is part of the system.

194.  The Petitioners have, hence, failed to demonstrate how the justice system in situ infringes on their right to dignity.

On Article 29 of the Constitution:

195.  Closely linked to Article 28 is Article 29 which provides for the freedom and security of the person.

196.  It is a fact that the freedom of the accused persons was in some way curtailed by the sustenance of the criminal case. However, as said, such remain within the Constitution and the law, unless otherwise demonstrated.

197.  As the Petitioners did not otherwise so prove, the claim fails.

On Article 47 of the Constitution:

198.  The Petitioners raised the contravention of Article 47 of the Constitution challenging the decision by the Kenya Bureau of Standards not to avail the test results of 2nd March, 2018 on the Sample Result Point online system.

199.  Article 47 of the Constitution states as follows: -

(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a)provide for the review of administrative action by a Court or, if appropriate, an independent and impartial tribunal; and

(b)promote efficient administration

200.  The impugned decision was allegedly made by the Kenya Bureau of Standards not by either the investigators or the Prosecutor.

201.  Given that the criminal case intends to prove criminal culpability on the part of the Petitioners, the issue on whether there was failure to avail the test results of 2nd March, 2018 on the Sample Result Point online system, becomes an evidential matter which can be safely taken up at the trial.

202.  The Petitioners will be accorded an opportunity to interrogate the process and the Kenya Bureau of Standards will either concede or impugn such. The Court will, thereafter, make a finding on the issue.

203.  This Court, therefore, does not find the contention that Article 47 of the Constitution was infringed as persuasive. It is hereby dismissed.

On Article 157(11) of the Constitution:

204.  The above provision has already been captured in the upper part of this judgment.

205.  It calls upon the Director of Public Prosecutions, while discharging its mandate to 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.

206.  The decision to charge the Petitioners was made by the Director of Public Prosecutions upon consideration of the available evidence, the Constitution, the law and policy. The Prosecutor was, thereafter, satisfied that criminal charges ought to issue against the accused persons some of whom are the Petitioners herein.

207.  The Prosecutor later reviewed the evidence and discharged some of the accused persons under the plea agreement.

208.  The Petitioners have, once again, not demonstrated how the Prosecutor was in breach of Article 157(11) of the Constitution. There is no evidence that the decision to charge the accused persons and the sustenance of the criminal case are contrary to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

209.  The contention, therefore, fails.

On Article 50 of the Constitution:

210.  Article 50 of the Constitution is on the fair hearing. The Article makes elaborate provision on how one is entitled to a well-guarded process.

211.  A party invoking Article 50 of the Constitution must, therefore, be precise on which limb thereof he/she/its relying on. A bare allegation cannot suffice. That is the obtaining position in this matter.

212.  The issue, hence, fails.

Conclusion:

213.  Having endeavored an elaborate tour of the Petitions, this Court finds that the Petitioners have failed to demonstrate that Articles 10, 27, 28, 29, 47, 50 and 157(11) of the Constitution were in any manner infringed in the circumstances of this matter.

214.  Whereas the Petitioners have a right not to be subjected to an illegal and/or unwarranted criminal process, the DPP is also under a public duty to ensure that offences are prosecuted and those culpable attended to as law requires. That is the balance created by the law and which this Court is called upon to serious undertake. In fact, that is the essence of the rule of law.

215.  It is clear that the termination of the criminal case will frustrate, instead of advancing, the rule of law.

216.  The Petitioners still have constitutional safeguards in respect of their rights even when undergoing the trial. The Petitioners will, at the trial, also be accorded an opportunity to challenge the veracity of the evidence including whether such evidence was properly obtained.

Disposition:

217.  In the end, the Petitions are hereby determined as follows: -

(a)     The Petition No. 161 of 2020, Petition No. 208 of 2020 and Petition No. 237 of 2020 together with their respective Notices of Motion be and are hereby dismissed.

(b)     The Petitioners shall bear the costs of the Petitions.

It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF MARCH, 2022.

A. C. MRIMA

JUDGE