Patrick Muchiri Wanjiru v Inspector General of National Police Service & Director of Public Prosecution [2022] KEHC 2449 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

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

CONSTITUTIONAL PETITION NO. 126 OF 2020

BETWEEN

PATRICK MUCHIRI WANJIRU.........................................................................PETITIONER

AND

THE INSPECTOTR GENERAL OF THE

NATIONAL POLICE SERVICE.................................................................1ST RESPONDENT

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

JUDGMENT

Introduction:

1.  The Petitioner herein, Patrick Muchiri Wanjiru, was charged with the offence of being in possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act, No. 4 of 1994 in Kibera Chief Magistrates Court Criminal Case No. 1609 of 2018 (hereinafter referred to as ‘the Criminal Case’).

2.   He pleaded not guilty to the charge and was granted a cash bail of Kshs. 10,000/=. It appears that the Petitioner was not able to satisfy the bail terms and was, at the time of filing of the Petition herein, still in remand.

3.   The hearing of the criminal case commenced and witnesses testified. The Petitioner was eventually placed on his defence.

4.  The Petitioner challenged the propriety of the criminal case in the Petition subject of this judgment.

5.  The Petition is opposed.

The Petition:

6.   The Petition is dated 19th March, 2020. It was, however, amended. The Amended Petition was supported by two Affidavits deposed to by the Petitioner on 19th March, 2020 and 2nd June, 2021 respectively.

7.   Simultaneously with the filing of the Petition was the Petitioner’s application by way of a Notice of Motion (hereinafter referred to as ‘theapplication’) dated 19th March, 2020 brought under certificate of urgency and supported by the Affidavit of the Petitioner also deponed to on the even date.

8.   The application mainly sought the release of the Petitioner from remand on free bond pending the determination of the criminal case. From the record, the application was not pursued, but the main Petition.

9.   This Court will, therefore, consider both the Petition and the application in this judgment.

10.   At this point in time, I will look at the Petitioner’s case.

11.  The Petitioner pleaded that on 29th December, 2018 he was detained and subsequently arrested by police officers from Parklands Police Station on allegations of being in possession of narcotic drugs to wit one broom of bhang (sic) of street value Kshs 2,000/=. He alleged that he was coerced to admit to the allegations and simultaneously asked to pay a bribe on threats that he would be kept in custody over the weekend and/or up to the year 2019. He averred that he declined to admit to the unfounded allegations.

12.   It was further pleaded that on the 31st December, 2018 the Petitioner was arraigned before the Kibera Chief Magistrates Court Nairobi and he was charged in the criminal case. He pleaded not guilty to the charge and he was to be released on a cash bail of Kshs. 10,000/=.

13.  The Petitioner alleged that a report of the Government Analyst pursuant to Section 67(1) of the Narcotic Drugs and Psychotropic Substances Act was prepared on 11th April 2019, a period of four (4) months after the accused was charged in the criminal case.

14.   He asserted that there was no compliance with Sections 74, 74A and 79 of the Narcotic Drugs and Psychotropic Substances Act prior to the arraignment and prosecution of the Petitioner and to date no compliance with the said provisions has been attempted or made by the Respondents.

15.  It is the Petitioner’s contention that he was selectively arraigned before Court among other six persons whom were arrested together and, as such, the trial was discriminatory and out rightly malicious hence ought to be terminated.

16.   The Petitioner averred that the evidence of PW3, PC John Mukanda, vouched the selective and discriminatory prosecution of the Petitioner.

17.  According to the Petitioner, the cash bail granted as too high and he has remained in remand despite several applications for review of the bond terms in vain, hence perpetuating the injustice to him.

18.   It was averred that on 11th December, 2019 the Petitioner was placed on his defence, but due to the outbreak of the COVID-19 pandemic, the trial has since remained in a limbo.

19.   The Petitioner posited that his constitutional rights are under threat of violation as he cannot be compelled to present a defence to charges and proceedings that are manifestly unjust and an affront to his constitutional rights.

20.  It is further posited Articles 10 (2b & c), 27, 47, 48, 49 and 50 of the Constitution are various infringed. According to the Petitioner preferring of the criminal charges before any chemical analysis of the samples intended to be used as exhibits could be performed contravened Section 74(1)(a) of the Narcotic and Psychotropic Substances Control Act and thereby violated the Petitioner's constitutional right to a fair trial.

21.  It was also averred that to the extent that the Officer Commanding Parklands Station failed to keep and maintain a proper record and/or register of persons arrested on 29th December, 2018 in connection with the offences under Sections 3 and 4 of the Narcotic and Psychotropic Substances Control Act, the 1st Respondent contravened the provisions of Section 40, 49, 50 and Rule 8 of the 5th Schedule to the National Police Service Act thereby violating the Petitioner's constitutional rights to a fair trial.

22.  And, to the extent that the Respondents failed to comply with Sections 49 and 50 and Rule 8 of the Fifth Schedule in the National Police Service Act by selectively and discriminatorily charging only the Petitioner, 1st Respondent violated the Petitioner's constitutional rights to equality and freedom from discrimination.

23.   As a result of the foregoing, the Petitioner prayed for the following orders: -

i.   A Declaration that the failure by the 1st and 2nd Respondents to comply with their statutory duties under Sections 67, 74, 74A and 79 of the Narcotic and Psychotropic Substances Act infringes on the rights of the petitioner and the people of Kenya as enshrined under Articles 10 (2b) (c), 27, 47, 49, 50 and 232 (1) (a) (c) & (f) of the Constitution.

ii.    A Declaration that the charge levelled against the Petitioner before a chemical analysis was conducted as under the provisions of Section 74 (1) (a) of the Narcotic and Psychotropic Substances (Control) Act is illegal and unconstitutional for failure to meet the standards set out in Article 50 of the Constitution.

iii.      A Declaration that the failure by the 1st and 2nd Respondent to comply with duties under Sections 49, 50 and the Rule 8 of the Fifth Schedule of the National Police Service Act and Section 4 of the Office of the Director of Public Prosecutions Act 2013, infringes on the rights of the petitioner and their statutory the people of Kenya as enshrined under Articles 10 (2b) (c), 27, 47, 49, 50 and 232 (1) (a) (c) & (f) of the Constitution.

iv.   A Declaration that the selective prosecution of the Petitioner violated his constitutional rights of equal protection and equal benefit of the law as enshrined under Article 27 of the Constitution.

v.    An Order of Certiorari quashing the charge sheet and the criminal proceedings in Criminal Case No. 1609 of 2018 at Kibera Chief Magistrates Court.

vi.    A Compensatory Order against the 1st and 2nd Respondent for malicious, unlawful detention and prosecution or in the alternative a compensation for violation of the Petitioner's rights as provided under Section 49 (13) of the National Police Service Act.

vii.    An order for costs in favour of the Petitioner.

viii.   Any such other Order(s) as this Honourable Court shall deem just in the circumstances

24.   The Petitioner filed written submissions and also highlighted on the same. In submitting that Article 27 of the Constitution was infringed, the Petitioner relied on Reuben Njuguna Gachukia & another v Inspector General of the National Police Service & 4 others[2019] eKLR andAgnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR.

25.    The sum of Kshs. 2,000,000/= was sought as a fair and just compensation to the Petitioner.

The Responses:

26.   The Respondents filed a joint response in opposing the Petition and application.

27.   The Investigating officer one No. 89284 PC John Mukanda Sayia swore a Replying Affidavit to that effect on 18th November, 2020.

28.  It was deponed that the 2nd Respondent is mandated under Article 157 of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act to institute and undertake criminal prosecutions against any person before any court of law.

29.   The officer deposed that on the 29th day of December 2018 at Chandarana Area, Ngara in Westlands Sub-County within Nairobi County, together with his colleagues, they were on normal night patrol when they encountered the Petitioner who appeared suspicious and was carrying a carrier bag.

30.   The officers upon stopping the Petitioner and conducting a quick search on his person, recovered one broom like plant material which they suspected to be bhang of street value Kshs. 2,000/= which was not in its medical preparation form as prescribed by law. The police officers proceeded with the night patrol and apprehended five more suspects during the operation namely: Kelvin Kanaiku Kimani, Shadrack Wesonga Makoha, Joseph Kamau Njeri, Brian Njoroge Kariuki and Stephen Njoroge Njau.

31.  Two of the five suspects namely Kelvin Kanaiku Kimani and Joseph Kamau Njeri, had in their possession 50 grams of powdered substance in two separate sachets which the officers suspected to be bhang; and two rolls of bhang as well as rizla paper respectively.

32. The investigating officer deponed that the six suspects apprehended on that night including the Petitioner all appeared drunk and were rounded up in a central place and escorted to Parklands Police Station aboard a station vehicle. On arrival at the Parklands Police Station at around 1950 hours, the six suspects were received by the police Duty Officer together with the items that were found in their possession to wit one broom of plant like material; 50 grams of powdered substance in two separate sachets; and two rolls of bhang as well as rizla paper.

33.   It was further deposed that the matter was allocated to the investigating officer for action on 30th December, 2018. The matter had been vide OB No.59/29/12/18. The Officer In-Charge of Petty Crime handed over to him an exhibit to wit one broom of green plant like material which was said to have been found in the possession of the Petitioner by his two other colleagues in the course of night patrol aforesaid.

34.  In the course of taking up the matter, the investigating officer noticed that the Duty Officer had erroneously booked the Petitioner together with five other suspects who were apprehended the same night under a single OB No. 59/29/12/18 together with the items they had been arrested with yet the suspects had been arrested under different circumstances and therefore legally, the investigating officer could not proceed to charge the Petitioner jointly with the five suspects.

35.  According to the investigator, the only exhibit found in the possession of the Petitioner was one broom of plant like material and not those that were found in the possession of two of the five other suspects. The investigator recorded witness and subsequently the Petitioner was charged with the offence of being in possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994.

36.  The Petitioner was charged before the Kibera Law Courts in the criminal case on 31st December, 2018 and he was granted a cash bail of Kshs. 10,000/=.

37.  The investigator deposed that he took the exhibit to the Government Analyst vide Exhibit Memo Form dated 21st February 2019. He visited the Government Analyst several times to inquire about the progress of the report but due to backlog at the said office, he was only able to receive the exhibit together with the said report on 11th April 2019.

38.  The investigator was at a loss on the allegation that the Petitioner was coerced by the 1st Respondent to admit to the allegations and further asked to pay a bribe on the threat that he would be held in custody over the weekend.

39.  The Respondents deposed that the Petitioner was seeking to curtail the mandate of the criminal justice system actors as set out in the Constitution by attempting to cut short a trial process against him without any justifiable reasons as he has failed to specifically demonstrate how the 1st and 2nd Respondents have acted ultra vires or in bad faith.

40.  According to the Respondents, the accuracy and correctness of evidence or facts gathered in an investigation can only be assessed and tested by the trial Court which is best equipped to deal with the quality and sufficiency of the evidence adduced in support of the charges in a criminal prosecution. The Petitioner has been afforded his day in court and an opportunity to defend himself.

41.  It was contended that the 2nd Respondent arrived at a decision to charge the Petitioner based on the sufficiency of evidence tendered by the 1st Respondent after investigations and the Petitioner failed to demonstrate that the 1st and 2nd Respondents did not act independently or acted maliciously, in bad faith or abused the legal process in a manner to trigger the High Court's intervention.

42.  It was averred that the Petitioner's presumption of innocence and his fundamental rights and freedoms are guaranteed and jealously guarded by the Constitution and did not vanish by virtue of his arrest and subsequent prosecution before a competent court of law.

43.  The Respondents prayed that the criminal trial against the Petitioner be allowed to proceed to its logical conclusion and that the Amended Petition be dismissed with costs.

44.   In their filed submissions, the Respondents held to the position that the Petition was not proved.

45.  They submitted that the Petitioner failed to demonstrate how his rights under Articles 27, 49 and 50 of the Constitution had been violated.

46.  To the Respondents, it is an established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights with precision and how the same have been or will be infringed in respect to him. The principle is enunciated in Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272.

47.    It’s the Respondents’ submission that the 2nd Respondent is mandated under Article 157 of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act to institute and undertake criminal proceedings against any person before any Court of law. By dint of Article 157(10) of the Constitution, the 2nd Respondent shall not require the consent of any person or authority for commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority. This position was buttressed in Hon. James Ondicho Gesami v The Attorney General & Others,Petition No. 376 of 2011.

48.   In their further submissions, the Respondents posited that the Petitioner failed to prove that a decision by the 2nd Respondent to institute criminal charges and to prosecute him was unconstitutional or that it infringed on any of their rights and/or fundamental freedoms. They relied in Diamond Hasham Lalji & Another v Attorney General and 4 others (2018) eKLR in echoing the submission.

49.  The Respondents further submitted that Courts have severally held the view that they ought not to usurp the constitutional mandate of the Respondents to investigate crimes and initiate criminal proceedings provided that such is done in a justifiable manner. The decision in Michael Monari & Another v Commissioner of Police & 3 Others, Misc. Application No. 68 of 2011 came in handy.

50.   The Respondents contended that there is credible evidence of the Petitioner’s culpability and that no malice or bad faith was proved. Further, that the Petitioner was afforded his day in Court and an opportunity to defend himself in addition to being granted cash bail as provided by law.

51.   With regards to analysis of the exhibit, it was submitted that the same was submitted to the Government Analyst by the investigating officer as soon as was practicable. However, the 1st Respondents had no control over the speed at which the said exhibit would be analysed in readiness for commencement of trial. That the 1st and 2nd Respondent, through the investigating officer made follow ups with the Government Chemist on the progress of the analysis on several occasions but due to backlog, the same could only be ready by 11th April, 2019.

52.  It is their submission that in view of the prevailing circumstances, the 1st and 2nd Respondents cannot be said to have violated or infringed on the Petitioner’s rights in this regard as they did their part to ensure that the exhibit was submitted for analysis in good time.

53.  The respondents submitted that the Petitioner had the option of securing his release on the cash bail granted by the Court while awaiting the Government Chemist Report but did not do the same for reasons best known to himself. And that indeed, it is common practice for criminal trials involving narcotic drugs to commence before the analysis of the exhibit is done provided the accused person has been granted bail or bond to secure his or her release awaiting the same.

54.   On the issue of violation of the Petitioner’s rights as enshrined under Article 27 of the Constitution, the Respondents referred to John Harun Mwau -vs- Independent Electoral and Boundaries Commission and Another [2013] eKLR where the Court pronounced itself as thus:

[it] must be clear that a person alleging violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.

55.    In the instant case, the Respondents submitted that the Petitioner was erroneously booked together with five other suspects apprehended on the same night under a single OB No. 59/29/12/18 yet the six suspects had been arrested under different circumstances and therefore legally, the 1st Respondents could not proceed to have the Petitioner jointly charged with the five suspects. The Petitioner has therefore failed to prove that the 1st and 2nd Respondent acted in a discriminatory and selective manner or that such treatment amounted to violation of his constitutional rights. Further, that the Petitioner has failed to demonstrate how the alleged distinction between himself and the five other suspects occasioned his denial of equal protection and benefit of the law.

56.    That the allegation by the Petitioner that the only reason why he was arraigned in Court was because he failed to give a bribe is just but an afterthought and an unwarranted personal attack against the arresting officers.

57.    The 1st and 2nd Respondents being independent institutions established under the Constitution, the Court can only interfere with or interrogate their actions where there is contravention of the Constitution. The decisions in Paul Ng’ang’a Nyaga v Attorney General & 3 Others (2013) eKLR and Francis Anyango Juma -vs- The Director of Public Prosecutions & Another, Petition No. 160 of 2012 were referenced in support.

58.    It was submitted that since the Petitioner failed to specifically demonstrate how each of the following rights under Articles 27, 49 and 50 had been violated by the 1st and 2nd Respondents, then the Petition should fail.

The Discussion:

59.  This discussion is aimed at determining whether the Petition is merited. In undertaking that journey, I will consider several issues, and as follows.

(a)   A general discourse on the investigative and prosecutorial powers in criminal proceedings:

60.  The resolution of this Petition calls for a scrutiny of the legal regime giving the Respondent and the police the mandate to investigate offences and to prosecute those culpable and whether they exercised those powers within the constitutional and legal limits.

61.   I recently broadly 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.

62.   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.

63.   I then 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.

64.  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.

65.  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.

66.  Article 239 of the Constitution provides for the national security organs. They include the National Police Service. The primary object of the national security organs and security system is to promote and guarantee national security in accordance with the principles mentioned in Article 238(2).

67. Article 243 of the Constitution establishes the National Police Service. Under Article 244, the Constitution provides the objects and functions of the National Police Service as follows: -

(a)   strive for the highest standards of professionalism and discipline among its members;

(b)   prevent corruption and promote and practice transparency and accountability;

(c)   comply with constitutional standards of human rights and fundamental freedoms;

(d)   train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and

(e)   foster and promote relationships with the broader society.

68.  The National Police Service is under the command of the Inspector-General of Police. The manner in which the Inspector-General of Police is to carry out its mandate is provided for under Article 245(2)(b) and (4) of the Constitution as follows: -

1.  The Inspector General –

(a)   ……..

(b)   shall exercise independent command over the National Police Service,and perform any other functions prescribed by national legislation.

4. The Cabinet Secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no personmay give a direction to the Inspector General with respect to—

(a)   the investigation of any particular offence or offences;

(b)   the enforcement of the law against any particular person or persons; or

(c)   the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.

5.    Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), shall be in writing.

69.   Article 157(4) of the Constitution provides that: -

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.

70.  The independence of the Inspector-General of Police is constitutionally-insulated from any form of interference or directional command. Apart from the Director of Public Prosecutions and only to the extent so provided, no other person, body or entity has the power to give any form of directives to the 2nd Respondent on how to discharge its functions. The position is further ring-fenced in that even the power donated to the Cabinet Secretary under Article 254(4) of the Constitution to issue any directives to the Inspector-General of Police is only limited to policy issues.

71.  Pursuant to the provisions of Article 239(6) of the Constitution, The National Police Service Act, No. 11A of 2011 (hereinafter referred to as ‘the Police Act’) was enacted on 30th August, 2011. It is an Act of Parliament to give effect to Articles 243, 244 and 245 of the Constitution; to provide for the operations of the National Police Service; and for connected purposes.

72. Sections 24, 27 and 35 of the Police Act variously provide for the functions of the Kenya Police Service, the Administration Police Service and the Directorate of Criminal Investigations respectively as follows: -

24.   TheFunctions of the Kenya Police Service

The functions of the Kenya Police Service shall be the—

(a)   provision of assistance to the public when in need;

(b)   maintenance of law and order;

(c)      preservation of peace;

(d)   protection of life and property;

(e)   investigation of crimes;

(f)    collection of criminal intelligence;

(g)   prevention and detection of crime;

(h)   apprehension of offenders;

(i)    enforcement of all laws and regulations with which it is charged; and

(j)    performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

27.   TheFunctions of the Administration Police Service

The functions of the Administration Police Service shall be the—

(a) provision of assistance to the public when in need;

(b) maintenance of law and order;

(c) preservation of peace;

(d)  protection of life and property;

(e)  provision of border patrol and border security;

(f)   provision of specialized stock theft prevention services;

(g) protection of Government property, vital installations and strategic points as may be directed by the Inspector-General;

(h)  rendering of support to Government agencies in the enforcement of administrative functions and the exercise of lawful duties;

(i)   co-ordinating with complementing Government agencies in conflict management and peace building;

(j)   apprehension of offenders;

(k)  performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

35. Functions of the Directorate

The Directorate shall —

(a) collect and provide criminal intelligence;

(b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;

(c) maintain law and order;

(d) detect and prevent crime;

(e) apprehend offenders;

(f)  maintain criminal records;

(g) conduct forensic analysis;

(h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;

(i)  co-ordinate country Interpol Affairs;

(j)  investigate any matter that may be referred to it by the Independent

(k) Police Oversight Authority; and perform any other function conferred on it by any other written law.

73.  Having set out the constitutional and statutory parameters within which the Respondent must exercise their powers, I will now look at some decisions which dealt with the various aspects of the scope and exercise of the said powers.

74.  Recently, the Supreme Court in Petition No. 38 of 2019 Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR discussed some of the applicable parameters.

75.  On whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions 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.

76.   On public interest, the Supreme 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.

77.  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 inDiamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLRstated 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 inBernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLRhad 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 inDiamond 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 inLalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLRreferred to the Supreme Court of India inState of Maharashtra & Others v. Arun Gulab & Others, Criminal Appeal No. 590 of 2007,where the Courtstated:

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 inBernard 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.

78.   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 to consider 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 have 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 open cheque 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 other than 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 on concurrent civil and criminal proceedings.

79. 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 inMuchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 OthersCivil 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. Its 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 2017Prafulchandra 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.

83.  The High Court inStephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2Others Nairobi (Milimani) HCCC No. 363 of 2009stated 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 recognise 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).

84.  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.

85.  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.

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

87. 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.

80.   Having said so, I now consider another issue.

(b)Whether the criminal case is in violation of the Petitioner’s rights and fundamental freedoms under Articles10(2)(b) & (c), 27, 47, 48, 49,50 and 232 of the Constitution:

81.  Having set out the parameters for the exercise of prosecutorial and police powers in the first issue, I will now interrogate whether the Respondent’s actions were within the Constitution and the law. However, before I so venture I must look at the threshold in proving constitutional Petitions.

82.  The practice and procedure in constitutional Petitions is provided for under The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereinafter referred to as ‘the Mutunga Rules’).

83.  The burden of proof on a Petitioner in a constitutional Petition was addressed by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others[2014] eKLR 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.

84.  The Court of Appeal in   in Civil Application Nai. 31 of 2016 Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 Others[2016] eKLR stated as follows on the threshold required to prove an allegation of infringement of rights and fundamental freedoms: -

…. We find that the applicant is entitled in law to institute proceedings whenever there is threat of violation of his fundamental rights and freedoms or threat of violation of the Constitution. Whether there is a threat of violation is a question of fact and evidence must be adduced to support the alleged threat.

85.  I have carefully perused the Petition herein. In a nutshell, the Petition complies with the basic requirements of a Constitutional Petition. The Petition has description of parties, the Constitutional and legal foundations in support of the Petition, the Locus standi, the facts of the Petition, the violations of the Constitution and the remedies sought.

86.  The completeness and propriety of any prosecution is anchored on presence of a complainant and anoffence known in law. Section 2 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya defines a ‘complaint’ as follows: -

an allegation that some person known or unknown has committed or is guilty of an offence.

87.  The Black’s Law Dictionary 10th Edition defines a ‘complainant’as follows: -

The party who brings a legal complaint against another.

88.  An ‘offence’ is defined under the Office of the Director of Public Prosecutions Act, No. 2 of 2013 to mean: -

an act, attempt or omission punishable by law.

89.  The facts surrounding the prosecution of the Petitioner are well captured in this judgment.

90.  The Petitioner was charged with the offence of being in possession of narcotic drugs contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act. The offence is codified and is one known in law.

91.  Was there any reasonableandprobable cause that the Petitioner be linked with the commission of the said offence?

92.  In Glinsk -vs- Mclver [1962] AC 726 Lord Devlin defined reasonableandprobable cause as follows: -

…reasonable and probable cause means that there must be sufficient ground for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction…

93.  In this case, the Petitioner strenuously contended that according to the report entered at the Parklands Police Station the Petitioner was arrested with six others, but for unknown reasons the rest were released save for him. To him, the prosecution is selective and discriminatory.

94.  The Respondents explained the events leading to the arrest of the Petitioner. They also explained the error which was made at the report office when the suspects were being booked into cells.

95.    In Civil Appeal 370 of 2014, Communications Commission of Kenya -vs- Office of the Director of Public Prosecutions & another[2018] eKLR the Court of Appeal considered the foregoing two-pronged test on the decision to prosecute, as hereunder: -

36.  To determine whether or not the DPP applied the right test in making the impugned decision, the starting point is to consider what the National Prosecution Policy states about the “Decision to Prosecute” which is as follows:

In exercising the prosecution mandate the DPP is constitutionally bound to have due regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. This provision applies equally to the DPP and officers acting on his or her behalf. This requirement is generally accepted as an international best practice whose origins are in common law.

The decision to prosecute as a concept envisages two basic components, namely, that the evidence available is admissible and sufficient and that public interest requires a prosecution be conducted. This is what is commonly referred to as the Two-Stage Test in making the decision to prosecute.

Each aspect of the test must be separately considered and satisfied before the decision to charge is made The Evidential Test must be satisfied before the Public Interest Test is considered.”

38. Whereas the National Prosecution Policy states that the standard of evidence required under the Evidentiary Test is less than the court’s “beyond reasonable doubt”, where the DPP has reviewed the available evidence and arrived at a considered conclusion that the Evidentiary Test threshold has not been realized, we do not think that he can be accused of applying the standard of proof of a judicial officer. We are satisfied that the DPP applied the right test in declining to prosecute the 2nd respondent.

96.  As the evidence did not support the joint charging of all the suspects, the investigating officer opted to and charged the Petitioner, who had been arrested separately, alone. That alone, and on a prima facie basis, cannot be a basis of faulting a prosecution. As the issue raised is purely factual, the prosecution will tender its evidence and the Petitioner will be accorded an opportunity to challenge the same. In the circumstances of this case, it is for the trial Court to examine the worthiness or otherwise of the evidence and not the High Court.

97.  The Petitioner now pleads that the Respondents’ conduct is in violation of Articles 10(2)(b) & (c), 27, 47, 48, 49, 50 and 232 of the Constitution.

98.   Article 10 of the Constitution is on the national values and principles of governance. The Petitioner did not demonstrate the manner in which the provisions were infringed. The same fate visited the allegations of infringement of Articles 27, 47, 48, 49, 50 and 232 of the Constitution. There is no proof of violation of any of the said Articles of the Constitution.

99. As there was no contention that the 2nd Respondent’s conduct in the manner in which he handled the criminal case infringed Article 157(11) of the Constitution, I will not venture thereto.

100.  The upshot is that the Petitioner has not proved that his rights under Articles 10(2)(b) & (c), 27, 47, 48, 49, 50 and 232 of the Constitution were in any manner whatsoever infringed.

101.  Whereas the Petitioner has a right not to be subjected to an illegal and/or unwarranted criminal process, the 2nd Respondent 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.

102.  It is clear that the termination of the criminal case in the circumstances of this case will frustrate, instead of advancing, the rule of law. The Petitioner still has constitutional safeguards in respect of his rights even when undergoing the trial. The Petitioner will, at the trial, also be accorded an opportunity to challenge the veracity of the evidence including whether the evidence was properly obtained.

103. Based on the foregoing, this Court is, therefore, not persuaded that the prosecution of the Petitioner infringes any of the various provisions of the Constitution either as alleged or otherwise. This Court further finds and hold that the Petitioner has failed to show how the criminal case is an abuse of the criminal justice system.

Disposition:

104.  In the end, the Amended Petition and the Notice of Motion dated 19th March, 2020 are found to be wholly without merit and the following final orders hereby issue: -

(a)   The Amended Petition and the Notice of Motion dated 19th March, 2020 are hereby dismissed.

(b)Given the age of the criminal case, the trial Court shall accord priority to the early hearing and determination of the said criminal case.

(c)   The Petitioner shall bear the costs of the Petition.

It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF FEBRUARY, 2022.

A. C. MRIMA

JUDGE

JUDGMENT VIRTUALLY DELIVERED IN THE PRESENCE OF:

MR. OCHOLA, LEARNED COUNSEL FOR THE PETITIONER.

MISS. KABILA, LEARNED PROSECUTION COUNSEL INSTRUCTED BY THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE RESPONDENTS.

ELIZABETH WANJOHI – COURT ASSISTANT.