Omondi v Rent Restriction Tribunal, Nairobi & 2 others [2023] KEHC 24848 (KLR) | Fair Trial Rights | Esheria

Omondi v Rent Restriction Tribunal, Nairobi & 2 others [2023] KEHC 24848 (KLR)

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Omondi v Rent Restriction Tribunal, Nairobi & 2 others (Petition E509 of 2021) [2023] KEHC 24848 (KLR) (Constitutional and Human Rights) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24848 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E509 of 2021

LN Mugambi, J

November 2, 2023

Between

Otiende Paul Omondi

Petitioner

and

Rent Restriction Tribunal, Nairobi

1st Respondent

Attorney General

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Judgment

1. The original Petition dated 29th November 2021 was amended on 26th December 2021. The Petitioner seeks the following reliefs:i.A declaration that the chairman of the 1st Respondent failed as required by law under Section 4(9) of the Rent Restriction Act Cap 296 of the Laws of Kenya, in taking appropriate action, after your Petitioner had raised a substantial question of law.ii.A declaration that the action by the chairman of the 1st Respondent, of authorizing its senior judicial officer to be a chief witness against your Petitioner in a criminal case in another court, in a matter that is still active before the 1st Respondent, is tantamount to conflict of interest, abuse of judicial process and injustice to your petitioner.iii.A determination that the chairman of the 1st Respondent erred in Law for making an order that, the Civil Suit No. 90/2021 be dispensed by way written submissions only without taking evidence; and in total disregard of the civil procedures envisaged in Law.iv.A determination that written submissions cannot take the place of evidence, and that the order made by the Chairman of the 1st Respondent on 12th day of October 2021 is tantamount to infringement of the right of fair hearing of the Petitioner.v.A declaration that the documents filed by your petitioner before the 1st Respondent which have not yet been produced are not yet evidence and does not form the part of judicial record of the 1st Respondent, and therefore, the 1st Respondent ought not to have moved them as evidence to another court, and also that such documents cannot be admitted in evidence at a trial before another court.vi.A determination that the actions of the Chairman of the 1st Respondent was in contravention of Section 4(9) of Rent Restriction Act, Laws of Kenya, on his failure to adjourn the proceedings of Case No. 90/2016 and refer the questions of law to the High Court for a decision, after the petitioner had made several requests to the chairman of the 1st Respondent on the same.vii.A declaration that, the 1st Respondent is an interested party in both the Criminal Cases No. 1598/2019 and E1127/2020, being that the two criminal matters have arisen from the parties on matter which is still active before the 1st Respondent, and cannot therefore participate as witness against a party in another court, while a portion of the same matter is active before him.viii.A declaration that the procedure by which the Chairman of the 1st Respondent used in giving out your Petitioner’s documents to the 3rd Respondent, without following the due procedure, was: illegal, un-procedural, tantamount to infringement of the petitioner's rights and constitutes an abuse of the due process.ix.A declaration that the petitioner’s documents issued to the 3rd Respondent by the Chairman of the 1st Respondent without following the due procedure, be declared illegally obtained evidence and not admissible as evidence before any court of Law in Kenya.x.A determination that the Tribunal case No. 90/2016 has lost its substratum owing to the fact that all the evidential documents sitting before the 1st Respondent have since been alleged to be forgeries by both the parties before it, a matter which has since metamorphosed into two (2) criminal cases in Kibera Law Courts.xi.A determination that the right of your petitioner to fair hearing is threatened by both the Chairman of the 1st Respondent and the 3rd Respondent.xii.An order restraining the 3rd Respondent from presenting for admission in evidence of the petitioner’s documents having been illegally obtained from the 1st Respondent.xiii.Any such further and/or other relief that this Honourable Court may deem fit and just to grant in the interest of justice and that may become apparent and necessary in the course of these proceedings.xiv.Cost of the petition to be awarded to the petitioner.

Petitioner’s Case: 2. The petitioner in his supporting affidavit dated 26th November 2021 and further affidavit dated 26th December 2021 deposes that he has been the tenant of one Wilberforce Nadida at Fort Jesus – Nairobi (House No. S4, property title No. Nairobi Block 62/203, LR No. 1207-21145), since 1st December 2006.

3. The landlord alleged that he had defaulted in rent payments and thus on 20th September 2017, instituted Civil Case No. 90/2016 against him before the 1st respondent. That matter is still pending.

4. An application which was filed by the Landlord before the 1st Respondent attached a Lease Agreement dated 26th November 2008 purporting to have been entered between the landlord and the petitioner and allegedly signed by the Petitioner on 30th December 2014, a fact that the petitioner denied.

5. The Petitioner filed an application dated 6th December, 2017 before the 1st respondent averring forgery. The Chairman of the 1st Respondent ruled that the claim of forgery by the Petitioner was a criminal matter and was not within the 1st respondent’s jurisdiction but nevertheless but would proceed to hear matters of the case that were civil yet the forged documents formed the basis of the claim brought against the petitioner before the 1st Respondent.

6. The petitioner reported the alleged forgery to the police at Jamhuri Police Post (Kilimani Division) on 26th August 2018 vide OB No. 06/26/08/2018. Likewise, the landlord lodged a complaint against the petitioner with the police at Kilimani Police Station on 20th November 2018 vide OB 23/J20/11/2018 alleging that the Lease Agreement supplied to the 1st Respondent by the petitioner was similarly a forgery.

7. Consequently, the petitioner made several applications before the 1st Respondent, seeking to have Civil Case No.90/2016 adjourned pending the determination of the criminal matters. The petitioner in its letter dated 21st September 2021 was concerned that proceeding with the hearing would be prejudicial to him as the anchor documents authenticity is yet to be determined which raises a question of law. He contended that failure to act by the 1st respondent’s Chairman concerning this issue violated his fundamental rights.

8. He deposes that while attending a hearing before the 1st respondent on 5th December 2019, police officers arrested him and arraigned him in Court on 6th December 2019 for allegedly committing forgery contrary to Section 345 as read with Section 349 of the Penal Code under Criminal Case No.1598/19.

9. He is aggrieved that the documents relied upon by the 3rd respondent in prosecuting the case against him are the ones that he had submitted before the 1st Respondent and that one of the key witnesses, Daniel Ogutu is in charge of the 1st respondent’s registry and its officer.

10. He further argues that the relevance and veracity of the documents has not been determined by the 1st respondent and hence cannot qualify as evidence before another forum to wit the trial court in the criminal case. He as well contended that the 1st respondent’s supply of these documents to the 3rd respondent is illegal and un-procedural and thus an infringement of his rights.

11. That the said Daniel Ogutu, an officer of the 1st Respondent testified against him on 26/10/2020 in the criminal matter. In view of this, he maintains that the 1st respondent has demonstrated prejudice against him and cannot be a neutral arbitrator in the civil proceedings.

12. On 12th October, 2021; the Petitioner filed an Application before the 1st respondent seeking a temporary stay and/or reference of the matter to High Court pursuant to Section 4(9) of Rent Restriction Act. The 1st respondent’s Chairman on the same day made a Ruling pronouncing that: ‘the matter (Tribunal Case No. 90/2016) is to be canvassed by way of written submissions with the Plaintiff filing within 14 days after which the Defendant will have 14 days to respond’.

13. He avers that the continued hearing of the civil suit by the 1st respondent constitutes an abuse of the due process and violation of his rights owing to the open bias meted out against him hence this Petition.

1st and 2nd Respondent's case 14. They filed grounds of opposition dated 9th December, 2021 stating that the petition lacks merit based on the following grounds:i.The orders sought by the Petitioner in Application dated 29th November 2021 are final in nature and have the effect of determining the Petition.ii.The Petitioner has not demonstrated before this Honourable Court how the Respondents have violated his Constitutional Rights.iii.The Petition has not been pleaded with precision since it does not adequately particularize the claim relating to any alleged violation of the Constitution.iv.It is well settled law that the Petitioner ought to demonstrate how the 1st and 3rd Respondents’ conduct constitutes a violation and/or contravention of their fundamental rights and freedoms. This was established in the Case of Anarita Karimi Njeri vs R (1976-1980) KLR 1272 where the court stated that Petitioners must state and identify the rights with precision and how the same have been or will be infringed.v.Both the Application and Petition offend and seek to unjustly curtail the authority and exercise of constitutional and statutory powers and functions of the offices of the 1st and 3rd Respondents as provided for under Articles 159, 259 (a) and 157 of the Constitution.vi.The investigations culminated in the arrest and prosecution of the petitioner in Criminal Case No.1598 of 2019, arrest and prosecution are legal processes provided for by law with specific constitutional safeguards, and do not amount to infringement on the fundamental rights and freedoms of the petitioners.vii.The impugned actions of the 1st Respondent as outlined by the Petitioners in their pleadings have been reasonably undertaken in good faith and upon lawful and relevant grounds anchored upon the Constitution and statute law; in particular Article 159 of the Constitution.viii.The constitutional and statutory mandate conferred upon the 1st and 3rd RESPONDENTS CAN Only be interfered with by the Court where it has been sufficiently demonstrated that they have acted arbitrarily and contrary to their constitutional powers and mandates.ix.The petitioners have failed to demonstrate with sufficient evidence how the 1st and 3rd respondents have aCted ultra vires, illegally, arbitrarily, unjustly, irregularly or oppressively in adducing evidence in the criminal court.x.The Officers of the 1st Respondent are duty bound by Article 3(1) to defend the Constitution, 73 (1) and 159 of the Constitution and should not be ostracized for assisting the criminal court administer justice with regard to forgery which is a crime under Section 345 of the Penal Code.xi.The 1st Respondent acted within the law and within its conferred jurisdiction by choosing to adjudicate on the civil aspects of Case No.90 of 2016. xii.The 1st Respondent enjoys unfettered discretionary power to considering how a dispute is to be settled under Section 59C (2) of the Civil Procedure Act.xiii.Allowing the prayers sought in the Application and Petition will be akin to inviting this Honourable Court to assume the role of the 1st and 3rd Respondents to thereby usurping their constitutional powers.xiv.The Independence of the Rent Restriction tribunal is guaranteed under Article 160 (1) and (5) of the Constitution.xv.A plain reading of Section 193A of Criminal Procedure Code is that if any matter in issue in criminal proceedings is also directly or substantially in issue in any pending civil proceedings, that should not be a ground for any stay, prohibition or delay of the criminal proceedings.xvi.Under Article 50(4) of the Constitution the courts have discretion to determine whether the admission of documents would be detrimental to the administration of justice.xvii.The Petitioner enjoys the presumption of innocence under Article 50 (2a) of the Constitution. Arrest and prosecution do not strip the Petitioners of their constitutional rights under Articles 22, 49 and 50 of the Constitution.xviii.No evidence has been adduced before the court to show that the petitioner has suffered prejudice, damages or violation of their rights and freedoms under the Constitution as a result of the concurrent criminal proceedings against himxix.The allegation of collusion in Paragraph 13 of the Petition between the 1st and 3rd respondents to deny the Petitioner his right to fair hearing is unfounded as no proof has been presented to support those claims contrary to Section 107 of the Evidence Act.xx.The Petition does not disclose any legal and justifiable claim against the 1st and 3rd Respondents.xxi.On the foregoing the Application and Petition is incurably defective, misconceived and a proper candidate for dismissal.

Petitioner’s Submissions 15. The petitioner filed written submissions and a list of authorities dated 15th March 2022.

16. He submitted on whether the Tribunal can submit in evidence documents filed before it in a criminal court before pronouncing itself on the said documents. He argued that the documents he filed before the 1st Respondent were not yet evidence and thus did not suffice to form part of the Tribunal’s judicial record.

17. He buttressed this submission with Sections 34 and 35 of the Evidence Act which he argued that the 1st Respondent’s Chairman had contravened. He equally relied in East Africa Portland Cement, CFC Stanbic Limited & another v Peter Ividah Muliro [2019] eKLR where it was held that:“…How does a document become part of the evidence for the case “Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not became part of the judicial record...”

18. On the next issue, whether the 1st Respondent can testify against parties before it in Court, he submitted that this action ultimately attacked its impartiality as a judge which is an essential feature of a fair trial. According to him the 1st Respondent has failed to ensure fairness of the proceedings before it.

19. The petitioner further questioned the viability of the proceedings before the 1st Respondent. This is because the substratum of the suit was being challenged in two simultaneous criminal suits. His case, CR. No.E 1127/2020 (R v Wilberforce Nadida) and the landlord’s, CR. No. 1598/2019 (R v Paul Otiende). In face of this fact, he argued that it would only be prudent for the Civil Case No. 90 of 2016 to await the outcome of the Court’s decision as the same would impact on the Tribunal’s decision.

20. Speaking to Section 4(9) of Rent Restriction Act which provides that ‘the Chairman of the tribunal shall if any party to the proceedings so requests, adjourn the proceedings and refer that question of law to the High Court for a decision thereon, and, upon such decision being given, the tribunal shall dispose of the proceedings in accordance therewith’, he submitted that any question of law ought to be referred to the High Court at the request of a party , failure to which would be in contravention of the law.

21. It was further contended that the 1st Respondent’s direction that the matter be disposed by way of submissions instead of taking evidence was in total disregard of Order 18, Rule 2 of the Civil Procedure Rules, 2010. Reliance was also placed in East Africa Portland Cement, CFC Stanbic Limited & another v Peter Ividah Muliro (supra) where it was held that:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”

22. Comparable reliance was placed in the cases of Avenue Car Hire & Another vs. Slipha Wanjiru Muthegu Civil Appeal No. 302 of 1997 and Muchami Mugeni vs. Elizabeth Wanjugu Mungara & Another Civil Appeal No. 141 of 1998.

23. Whilst the petitioner recognizes the 3rd respondent’s mandate under Article 157 of the Constitution, he argued that sub-Article 157 (11) directs the 3rd respondent to pay regard to factors such as public interest. He contended that this was not the case in his matter as the 3rd respondent in relying on the 1st Respondent’s officer’s testimony displayed discrimination and prejudice against him in favour of his landlord.

24. In support reliance was placed in the case of R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 where it was held that:“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate.”

25. Equal dependence was also placed in Josephat Koli Nanok & another v Ethics and Anti-Corruption Commission (2018) eKLR.

26. Drawing this Court to the opine in Regina vs Ittoshat [1970] CRNS 385 that the court has a duty to protect citizens against harsh and unfair treatment, he submitted that it was clear that the 1st and 3rd respondent’s actions had violated his rights as envisaged under Article 25(c) of the Constitution. Reliance was placed in the Supreme Court of India case of Rattiram vs. State of M.P. (2012) 4 SCC 516 where it was held that:“Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism…Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused….."

27. Additional reliance was placed in Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge and 9 others (1997)eKLR and Joram Mwenda Guantai v The Chief Magistrate [2007] 2 E.A. 170.

1st and 2nd Respondents’ Submissions 28. State Counsel, Ruth Wamuyu on behalf of these respondents filed written submissions and a list of authorities dated 31st May 2022. As understood by Counsel, the petitioner’s key assertion is that the 1st Respondent’s Chairman un-procedurally, illegally and unfairly surrendered a matter before it to the criminal court whilst authorizing one of its senior judicial officers in his official capacity to be a chief witness of the 3rd respondent in Criminal Case 1598/19.

29. Counsel relying on the threshold set in Anarita Karimi Njeri Vs Republic (1976-1980) KLR 127 submitted that petitioner had failed to specify the provisions said to have been violated and further failed to give particulars of the said contravention within the body of the Petition.

30. It was further argued that the 1st Respondent’s issuance of the documents before it to the criminal court, was well within its judicial discretion as empowered by Article 159 of the Constitution so as to meet the ends of justice in the criminal case where the petitioner is an accused person. Reliance was placed in Stanley Kang’ethe Kinyanjui V. Toney Ketter & 2 Others Civil Application No. Nai 31 Of 2012, where it was held that:“a responsibility is bestowed upon Courts to ensure that the exercise of the discretionary powers donated to them is not exercised in any manner that would prejudice any party coming before it”

31. In the same breath, Counsel submitted that criminal proceedings operate under the rules of evidence and the decision to adduce the evidence was fair and just. Failure to do so would be tantamount denying justice to both the complainant and the accused in the criminal trial.

32. In closing, Counsel submitted that Section 193A of Criminal Procedure Code allows for concurrent the progression of civil and criminal proceedings in the same matter. It was stressed nonetheless that the petitioner had not demonstrated what prejudice or injustice he would suffer as a result of having the evidence in the civil case used in the criminal case against him.

Analysis and Determination 33. Having reviewed the pleadings, affidavits and the parties submissions, I find the following to be the issues for determination in this Petition:i.Whether failure to decide the question raised in the application by the Petitioner (Tenant before the Tribunal Suit) that a forged lease agreement had been relied upon by the Landlord to file the Tribunal Suit raises a substantial question of law amounting to violation of the petitioner’s fundamental right to fair hearing.ii.Whether the Tribunal’s Civil Suit should await the determination of the two Criminal Cases, namely criminal case E1598/19 and criminal case E1127 of 2020 that are against Petitioner and the Landlord respectively in view of the conflicting claims of the alleged forgery of lease agreements relied by each of them.iii.Whether the production of the documents filed in the Tribunal Case No. 90/2021 by the In-charge Registry of the 1st Respondent in the Criminal Case No. E1598/2019 against the Petitioner demonstrates bias and lack of neutrality on the part of the 1st Respondent.

a.Whether Failure To Decide The Question Raised In The Application By The Petitioner (tenant Before The Tribunal Suit) That A Forged Lease Agreement Had Been Relied Upon By The Landlord To File The Tribunal Suit Raises A Substantial Question Of Law Amounting To Violation Of The Petitioner’s Fundamental Right To Fair Hearing. 34. The petitioner’s key contention is that his right to a fair hearing before the 1st and 3rd respondent has allegedly been violated.Article 50(1) of the Constitution provides as follows:Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

35. Under Article 25 (c ); the right cannot be derogated from. It provides thus:Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited-(c)the right to a fair trial.

36. The Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR observed as follows:“(19)In exercise of its powers under the Constitution or under legislation, public officers, state officers, state organs and independent bodies or tribunals may make decisions which may be characterized as judicial, quasi-judicial or administrative depending on the empowering provision of the Constitution or the law…It is clear that fair hearing as employed in article 50(1) is a term of art which exclusively applies to trial or inquiries in judicial proceedings where a final decision is to be made through the application of law to facts. By article 25 that right cannot be limited by law or otherwise.”

37. The question that this court needs to answer is whether the position taken by the Tribunal amounted to refusal to grant the applicant a hearing.

38. It is important to note that the application by the Petitioner (Tenant in the Tribunal Suit) came even before the matter had been set down for the hearing. The Petitioner was of the firm view that the Tribunal ought to have determined the issue of whether the lease agreement was a forgery or not. That is the lease agreement that the Landlord had relied on to file the suit against him at the Tribunal. Is that a substantial constitutional question affecting his right to a fair trial?

39. In my view, this is simply an evidentially matter. Evidence that is presented in Court is usually about the truthfulness or the falsity of the fact in issue. It is usually a trier of facts duty to put the two sets of facts on a scale and decide, based on all the surrounding circumstances, which of the two sets is creditworthy and therefore acceptable to the court. In the present case, the Petitioner attempted to put the Cart before the horse, he wanted the Tribunal to pronounce itself on a piece of evidence even before it had the opportunity of taking down the evidence on the issue. It is only after listening to the proponent of that evidence and giving an opportunity to the rival party to confront or challenge the said evidence either by way of cross-examination or and providing evidence in his possession that the Tribunal can have an informed view as to the veracity or reliability of the evidence in question. The path taken by the Petitioner is premature and was aimed at short charging the due process which he claims he was denied.

b.whether The Tribunal’s Civil Suit Should Await The Determination Of The Two Criminal Cases, Namely Criminal Case E1598/19 And Criminal Case E1127 Of 2020 That Are Against Petitioner And The Landlord Respectively In View Of The Conflicting Claims Of The Alleged Forgery Of Lease Agreements Relied By Each Of Them. 40. In deciding on an evidential question that is relevant to the matter before the Tribunal, it does not mean that the Tribunal will have assumed criminal jurisdiction in respect to the alleged offence of forgery. The Tribunal’s main focus is on the veracity or otherwise of the evidence regarding a relevant fact before it, and will decide on the same based on all the surrounding circumstances, this may include facts elicited by cross-examination or other evidence that has been offered in the course of trial. It is for this reason that I am of the firm view that where there is serious contestation of evidence as is apparent from the perspective of the Petitioner herein, the prudent path to take should be to give opportunity for the parties to adduce oral testimonies where examination and cross-examination of witnesses can be conducted, production of documents subjected to objections which may be allowed or disallowed by the trier of fact during the trial, assures to the parties that their concerns are addressed and inspires faith in the trial process besides giving the Tribunal the advantage of the complete picture that makes it easy to arrive at a just determination.

41. Forgery is a criminal offence that is defined under the Penal Code, Cap 63 Laws of Kenya and its elements must be fully established. The Tribunal in assessing the evidence for reliability will not be looking for the proof of all these elements of forgery but assessment of a piece of evidence before it to decide on the creditworthiness. The test in a civil matter is whether the trier of fact is persuaded that upon consideration of all circumstances, a fact which is affirmatively asserted by a party on a particular issue is probably true than not true.In Kuria & 3 Others Vs. AG (2002) 2 KLR 69 the court stated thus: -.... It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. In the absence of concrete grounds.... it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. The effect of criminal prosecution on an accused person is adverse but so also are their purpose in the society, which are immense... an order of prohibition cannot also be given without any evidence that there is manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial.”

42. It was incumbent upon the petitioner to not only point out that the existence of concurrent criminal cases but also prove that the parallel processes were being abused or misused. He has not demonstrated that fact. I thus find that the request to stay the Tribunal’s Civil Suit No. 90/2016 to enable Criminal cases to be concluded is misconceived. It is declined.

c.Whether The Production Of The Documents Filed In The Tribunal Case No. 90/2021 By The In-charge Registry Of The 1St Respondent In The Criminal Case No. E1598/2019 Against The Petitioner Demonstrates Bias And Lack Of Neutrality On The Part Of The 1St Respondent. 43. The Petitioner argued that because the In-Charge Registry of the 1st Respondent was called as a witness in the criminal case criminal case number E1598/2019; it amounts to bias and a demonstration of prejudice by the 1st Respondent. He argued that this compromises the 1st Respondent’s neutrality. Counsel for the Respondent opposed that proposition by the Petitioner and submitted failure to testify will lead to failure of justice and compromise the main objective of any criminal trial.

44. This is also another evidentially issue. If the documents were relevant and admissible evidence before the criminal court, their admissibility did not depend on first being admitted as evidence before the Tribunal. It is in the forum where they offered as evidence that the issue of relevance and admissibility should have been raised and determined including whether or it is evidence that was unfairly obtained, if the petitioner so believed. In fact, even if the Tribunal might have rejected such documents from being admitted before it, that other forum could still find the relevant and admissible based on the fact in issue before it. They thus needed not to have been admitted in evidence before the Tribunal for them to be relied upon in the criminal cases.

45. The fact that the In-charge Registry presented them in the Criminal Case is not in my view a demonstration of bias on the part of the 1st Respondent. It is an evidential principle that documents are either produced by the maker or the custodian who has their proper custody. Once the Petitioner surrendered the custody of the documents to the 1st Respondent, upon filing them in the suit before the 1st Respondent, he ceased to be the custodian and the proper custodian became the 1st Respondent. If required in evidence, then the proper person to produce the documents was the custodian of the documents at the Tribunal where they were filed. He was merely performing his duty in the administration of justice.

46. Having regard to the totality of the foregoing, it is clear to me that the grievances raised in this Petition could have conveniently been dealt with by the application of the rules evidence without necessarily the need for invoking the Constitution. The Supreme Court in Communications Commission of Kenya & 5 Others Vs Royal Media Services Ltd & 5 Others (2014) eKLR stated that the principle of avoidance entails that a court will not determine a constitutional issue when the matter may properly be decided on another basis. This is one matter where I strongly feel that the doctrine of Constitutional avoidance applies.

47. The upshot of the above is that I find no merit in this Petition. I dismiss the same in entirety with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT MILIMANI THIS 2ND DAY OF NOVEMBER, 2023. L. N. MUGAMBIJUDGE