Peter Maina Muturi v Director of Public Prosecutions; Standen Supplies Limited (Interested Party) [2022] KEHC 26911 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

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

CONSTITUTIONAL PETITION NO. E351 OF 2021

BETWEEN

PETER MAINA MUTURI................................................................................PETITIONER

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS...............................................RESPONDENT

AND

STANDEN SUPPLIES LIMITED....................................................INTERESTED PARTY

JUDGMENT

Introduction:

1. The Petitioner herein, Peter Maina Muturi,is the accused person in Milimani Chief Magistrates Criminal Case No. 3288 of 2020, Republic -vs- Peter Maina Muturi(hereinafter referred to as ‘the criminal case’).

2. Standen Supplies Limited,the Interested Party herein, is the complainant in the criminal case. The Petitioner and his wife one Kellen Njuki Njoki(hereinafter referred to as ‘Kellen’), are Co-Directors and sole Shareholders of Standen Supplies Limited,(hereinafter referred to as ‘the Interested Party’ or ‘the Company’).The Company deals in branding, embroidery, transport and supply of building materials.

3.  The Petitioner approached this Court seeking to contest the propriety of the criminal case where he is charged with the offence of Stealing by Director contrary to Section 282 of the Penal Code, Cap. 63 of the Laws of Kenya.

4. The Petition is opposed.

The Petition and Applications:

5. The Petitioner filed a Petition together with an application by way of Notice of Motion. Both are dated 29th October, 2020. The application sought for conservatory orders staying further proceedings in the criminal case pending the determination of the Petition.

6.  On the basis of the application, this Court granted the stay orders on 16th November, 2020.

7. The grant of the orders prompted the Interested Party to file a Notice of Motion dated 30th November, 2020. The application sought the following reliefs: -

1. That this application be certified as urgent and service thereof be dispensed with in the first instance.

2. That pending the hearing and determination of this application and the main petition and in the interest of justice, the Honourable Court be pleased to order the petitioner to make a contribution towards rent and/or refund to the Interested Party of the rent paid for the premises where the court exhibits in Milimani Chief Magistrates Criminal Case No. 3288 of 220 are stored.

3.   That the Honourable court be pleased to review and discharge its order made on 16th November, 2020 as the same was made without full disclosure of material facts by the petitioner.

4. That the costs of the application be provided for.

8.  On directions of this Court, the Petition and the two Notices of Motion were heard together. The Petition and the applications were all opposed and responded to.

9.  This judgment is, therefore, in respect of the Petition and the two applications.

The Petitioner’s case:

10. The Petition is supported by the Petitioner’s Affidavit sworn to on 29th October, 2020. The Petitioner pleaded that he is married to

11.   The Petitioner posited that on 5th October 2020, the Interested Party through Kellen caused him to be arrested and charged with the offence of theft to company property after he moved some machines belonging to the Company from Terry House in Mfangano Street, Nairobi.

12.  He further posited that he moved the said machines after it emerged that the Company could not meet its financial obligations.

13.  It is averred that when the Petitioner was charged, the trial Court ordered the Petitioner to surrender the machines to the Company.

14. According to the Petitioner, that order violated his right not to give self-incriminating evidence guaranteed under Article 50(2) of the Constitution.

15.  The Petitioner also pleaded that Kellen, as a Co-Director and Shareholder, maliciously used the charge sheet in the criminal case to lodge an application to have him forfeit his shareholding in the Company, which application is pending approval by the Registrar of Companies.

16. The Petitioner further pleaded due to the wrangles with Kellen over the Company ownership, he is apprehensive of harm after noticing that he gets trailed by strange people, a fact which he has reported to Kileleshwa Police Station under OB No. 48 of 27th October, 2020.

17.  On the foregoing, the Petitioner claimed that the conduct of the Respondent is a violation of his constitutional right to fair hearing and protection of the law under Article 50. He prayed for the following orders in his Petition: -

I.   That a declaration be issued that the institution of Criminal Case No 3288/2020; Republic Versus Peter Maina Muturi was unconstitutional and in contravention of his fundamental rights.

II.  That a declaration be issued that the order made by the Court on 26th October 2020 in Criminal Case No. 3288/2020; Republic -Vs- Peter Maina Muturi requiring the petitioner to take company property to the complainant is unconstitutional and a violation of his fundamental right to property, protection of the law and his right to fair hearing.

III. An order of certiorari to bring into this Honourable Court and quash the decision by the Director of Public Prosecution to institute Criminal Case No. 3288/2020; Republic Versus Peter Maina Muturi against the Petitioner.

IV. A declaration that the decision of the Director of Public prosecution to institute Criminal Case No. 3288/2020; Republic Versus Peter Maina Muturi is unlawful, ultra-vires, is in bad faith and is a violation of the Petitioner’s right to the Constitution and protection of the law.

V.  That a conservatory order do issue staying all proceedings in criminal case no. 3288/2020: Republic versus Peter Maina Muturi pending the hearing an determination of this Petition.

VI. An order of prohibition be issued stopping the prosecution of the Petitioner in Criminal Case No. 3288/2020; Republic Versus Peter Maina Muturi.

VII.    That the Respondent be ordered to bear the costs of this Petition.

18. n support of the Petition and the application, the Petitioner filed written submissions dated 25th January, 2021.

19. The Petitioner submitted that the Petition and the application are anchored under Articles 20, 22, 23, 40 and 50 of the Constitution which guarantee him the right to property, fair hearing and protection of the law.

20. It was his submission that the criminal process in situ was being used for purposes of settling otherwise civil dispute, an unconstitutional state of affairs. He referred to Miscellaneous Civil Application No. 392 of 392 of 2017: Republic -vs- Director of Criminal Investigation and Another where the Court relied on Paul Stuart Imison -vs- The Attorney General   and observed inter-alia: -

The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their institution. It is a duty of the Court to ensure that its process does not degenerate into tools for personal score settling or vilification on issues not pertaining to that which the system was even formed to perform.

21. On the foregoing, the Petitioner submitted that there is incontrovertible evidence that Kellen and him are husband and wife whose marriage has gone sour and are co-shareholders in the Company. He also submitted that there is a vicious fight for control of the Company properties.

22. The Petitioner contended that the dispute between him and Kellen was a civil dispute to be settled under Section 17 of the Matrimonial Property Act. It was further his case that the dispute between shareholders of a company can be ventilated in the High Courts under Company’s Act and that the criminal justice system is only used to settle otherwise non-criminal issues.

23. The Petitioner urged the Court to allow the Petition.

The Respondent’s case:

24. The Respondent, the Director of Public Prosecutions, opposed the Petition through the Replying Affidavit sworn by No. 92072, PC Mbae Geoffrey on 12th January, 2021.

25. PC Mbae Geoffrey deposed that he was one of the investigating officers in the criminal case. (I will hereinafter refer him as ‘the Investigating Officer’).

26. It was the Respondent’s case that on 4th October, 2020, the Interested Party herein through Kellen lodged a complaint at the Central Police Station stating that the company business premises along Mfangano Street had been broken into and items stolen.

27. The Investigating Officer deponed that he visited the scene in the company of No.70255 Sergeant Timothy Wanyonyi. They established that the premises had indeed been broken into and items worth Kshs.10 Million stolen. He deposed that he recorded a statement from an eye-witness who positively identified the Petitioner as the lead suspect and who had brought a group of young men, broke into the premises and carted away the goods between 0330hrs and 0400hrs on 4th October, 2020.

28.  It was his case that the Interested Party produced a Certificate of Incorporation and other business registration documents which showed that the Petitioner and Kellen were the initial sole shareholders of the Company. The investigating officer also recovered receipts proving ownership of all the stolen goods.

29. The Investigating Officer deposed further that the Petitioner was traced and arrested on 5th October, 2020 and vide OB91/05/10/2020 he was placed in custody. He was subsequently charged with the offence of stealing by director contrary to section 282 of the Penal Code. He pleaded not guilty and was released on cash bail of Kshs. 100,000/-.

30. In response to the nature of proceedings before the lower Court, the Investigating Officer deposed that the Petitioner’s rights had been zealously protected and that he misled this Court into being granted conservatory orders.

31.  He deposed further that by virtue of Article 157 of the Constitution and incidental laws thereto, the 1st Respondent acted within the confines of the Constitution. It was his case that the DPP does not require the consent of any person or authority as it is an independent constitutional organ.

32. He also deposed that there was no provision in law that precludes or exempts Co-Directors or a spouse from facing criminal trial before a Court. He stated that the criminal case lies within the prosecution where the accused is accorded fair trial under Article 50(1) of the Constitution.

33.  As regards the conduct of the criminal case before the trial Court, the investigating officer deposed that the Learned Trial Magistrate prevailed upon the Petitioner and Kellen to try to reach an out of court settlement and directed that an inventory be prepared by the Investigating officer of all the items taken from the premises as they were exhibits in the criminal case.

34. He deposed that the Learned Trial Magistrate ordered that the machines and items in dispute be kept in a neutral premises to be under lock and key of the investigating officer.

35. The Investigating officer averred that the Petitioner did not comply with the Court Orders even after he was given more time and instead filed the current Petition.

36. It was deposed that the Petitioner had not demonstrated or brought any evidence of an ulterior motive or impropriety on the part of the trial Court proceedings or the prosecution.

37. The Respondent submitted that there was no violation of the Petitioner’s constitutional rights all alleged on the 8 Court appearances between 6th October, 2020 to 16th November, 2020.

38. The Respondent further submitted that the stay orders granted were prejudicial to the Interested Party and thwarted the effort by the lower Court to amicably and expediently conclude the matter between the parties.

39. It was its case that the matters the Petitioner had raised issues in the Petition amount to a defence in the criminal case. He pointed out that the trial Court shall accord the Petitioner a chance to challenge the prosecution’s evidence and to also adduce any evidence and witnesses exonerating himself, but at the trial.

40. The Respondent urged the Court to dismiss the Petition and the Petitioner’s application and to lift the stay orders issued on 16th November, 2020.

The Interested Party’s case:

41. The application filed by the Interested Party sought to have the Petitioner make contribution towards rent for the premises where the Company properties are stored and also sought to review and discharge the conservatory orders issued by the Court.

42.  Kellen deposed that the Court was misled by the Petitioner regarding the proceedings in the criminal case into issuing conservatory orders on the basis that the criminal case was instituted with the ulterior motive of settling a domestic dispute between the Petitioner and herself.

43.  She further deposed that under Articles 22, 25(c), 48 and 50 of the Constitution, she has a right to institute Court proceedings against any person or institution in protection of her rights and those of the Company. She also deposed that no provision of the law exempted a spouse from facing criminal charges.

44. Kellen clarified that the complainant in the criminal case was the Interested Party, Standen Supplies Limited, and not herself. She reiterated the events that gave rise to issuance of conservatory orders and stated that this Court issued them without having complete information.

45. Kellen deposed further that the Petitioner undermined the integrity of the criminal justice system in order to defeat administration of justice when he refused to release the Company properties as ordered by the Court.

46. The Interested Party contended that the Petitioner ought to make half the contribution of the rent accruing in the premises wherein the Company properties are held as Court exhibits given that the two Directors have equal ownership of the Company.

47. Kellen deposed that she is the wife of the Petitioner and their union was blessed with two children and that he is the only one taking care of the children in terms of maintenance including paying rent, buying food, medication clothing among others without assistance from the Petitioner, hence the need for the equal contribution towards the rentals.

48. Kellen clarified that she acceded to paying the rent of the premises where the Company properties are held as Court exhibits only because she thought it was a temporary measure.

49.  In the end, the Interested Party urged the Court to dismiss the Petitioner’s Petition and application with costs and to instead allow its application with costs.

The Petitioner’s Response:

50. The Petitioner opposed the Interested Party’s application through a Replying Affidavit he swore to on 14th January, 2021 and the written submissions dated 25th January, 2021.

51. He deposed that he did not mislead the Court in the issuance of the conservatory orders. It was his case that he approached the High Court to seek protection against abuse of the criminal process to settle a domestic dispute with his wife and that the Interested Party ought not to canvass the Petition in the application but to respond to it.

52. On the issue of payment of the rent for the premises inn issue, the Petitioner stated that the Interested Party did not rent out the premises, but it was the personal decision of Kellen and as such it was her personal responsibility to pay for the premises she undertook to rent out.

53.  The Petitioner deposed that the machines and items he moved were acquired using a facility from a KCB Bank which is currently being serviced by his Uncle. The Petitioner averred that he moved away from the premises after Kellen violently threatened to remove him from the business premises.

54. It was the Petitioner’s position that him and Kellen had major domestic differences and the dispute concerning the business began when Kellen refused to pay the loan instalments for the machinery thus culminating in arrears despite being the sole signatory to one Bank Account which had money to offset the instalments.

55.  He also deposed that Kellen had initially accused him of fraud with the Directorate of Criminal Investigation, a case she withdrew without his knowledge. The Petitioner alleged that Kellen had vowed to use the criminal justice system to settle scores with him, hence the criminal case.

56.  It was his case that Kellen was in the process of illegally remove him from the directorship of the Company on the basis of the charge sheet. To the Petitioner, the main objective of the criminal case was to have him incarcerated so that Kellen would have full control of the Company assets and fail to pay loans which he acquired from his relatives.

57.  To buttress the illegality of the criminal charges, the Petitioner alleged that he had formally protested to the Director of Criminal Investigations in vain.

58.  He deposed that Kellen had all other assets of the company, 2 lorries, 1 saloon car and approximately Kshs. 2. 8M as of August 2020 which properties were jointly owned and that Kellen is using those resources to harass him in the criminal case.

59.  As regards the reconciliation that had been encouraged by the trial Court, the Petitioner stated that he tried to settle the dispute with Kellen by involving relatives and friends in vain.

60. He deposed that he did not disobey any Court orders and neither was there any concealment of material facts before this Court.

61. On the foregoing, the Petitioner urged the Court to dismiss the Interested Party’s application.

Issues for Determination:

62.  From a careful perusal of the Petition, the responses, the submissions and the decisions referred to, I find that the following issues are for consideration: -

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

(b) Whether the criminal case is in violation of the Petitioner’s rights and fundamental freedoms under Articles 20, 22, 23, 40 and 50 of the Constitution.

(c)  Whether the Petition and the applications are merited.

63.  The issues shall be dealt with sequentially.

Analysis and Determination:

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

64. 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.

65.    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.

66.  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.

67.    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.

68.  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.

69.  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.

70.  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).

71.   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.

72.    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.

73.  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.

74. 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.

75.  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.

76. 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.

77.  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.

78.  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.

79.   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.

80.  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.

81. 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.

82.  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?

5In 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.

83.  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;

84.    I now proceed to the second issue.

(b)  Whether the criminal case is in violation of the Petitioner’s rights and fundamental freedoms under Articles 20, 22, 23, 40 and 50 of the Constitution:

85.  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.

86. 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’).

87.  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.

88.  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.

89.   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.

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

The party who brings a legal complaint against another.

91.   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.

92.  There are set of facts which are not in dispute in this matter. They include that the Company premises were broken into and some items removed therefrom, that the Company lodged a complaint with the police, that the Company items in issue were found with the Petitioner and that the machines and other items were owned by the Company.

93.    The Petitioner was charged with the offence of Stealing by Director contrary to Section 282 of the Penal Code. The offence is codified and is one known in law.

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

95.  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…

96.    In this case, the Petitioner does not deny moving the machines and other items from the Company premises along Mfangano Street in Nairobi. As to whether the Petitioner is culpable of the offence, that goes beyond the realm of this case into the criminal case.

97.    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.

98.    The police gathered evidence from among an eye witness. The Respondent agreed with the recommendation by the police to charge the Petitioner. It is the Respondent who made the decision to charge the Petitioner.

99.    The Petitioner now pleads that the Respondent’s conduct is in violation of Articles 20, 22, 23, 40 and 50 of the Constitution.

100.  Article 20 of the Constitution relates to the application of Bill of Rights, Article 22 is on the enforcement of Bill of Rights while Article 23 is on the authority of Courts to uphold and enforce the Bill of Rights.

101.  Article 40 of the Constitution is on the protection of right to property. There is no contestation that the property allegedly stolen belonged to the Company. How the property came into the personal possession of the Petitioner is a factual issue to be examined at the appropriate forum.

102.  At the moment, there is prima-facie evidence that the properties in issue belonged to the Company. The Petitioner’s right thereto, if any, is yet to be ascertained and as such he cannot claim protection under Article 40 of the Constitution.

103.  The allegation that the Petitioner’s rights under Article 40 of the Constitution was infringed, therefore, fails and is hereby rejected.

104.  On the alleged breach of Article 50(2)(l) of the Constitution, the Petitioner pleaded that the order of the trial Court to the effect that the Company property allegedly stolen be secured infringed his right not be give self-incriminating evidence.

105.  As stated, the complainant in the criminal case is the Company. As an artificial being, the Company only acts through its directors. The matter before the trial Court has not been determined. What the trial Court did was to issue an order to secure the possible exhibits in the criminal case. Given the nature of the exhibits, the Court ordered that the Company finds a secure place and locks them up. The access to that place was to be with the investigating officer.

106.  In making the impugned order, the trial Court did not determine the ownership of the properties. It only secured them pending the hearing and determination of the matter. Thereafter, and as the usual procedure, and depending on the nature of the exhibits, the trial Court at the end of the proceedings makes an order of release of the exhibits to the rightful owners or that they be forfeited to the State.

107.  The Petitioner did not demonstrate how the right not to give self-incriminating evidence was infringed. On this alleged violation, the Petitioner only pleaded the constitutional provision and never particularised the manner in which the alleged infringement was occasioned. Such state of affairs falls below the threshold in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Otherscase (supra).

108.  I have also noted that the Petitioner raised the issue of his marriage with Kellen having gone sour and that the criminal case is used as a collateral to settle an otherwise civil matter and to aid Kellen have access to the Company assets. That was in the Petitioner’s submissions.

109.  In answer to the contention, I must categorically state that there is a longstanding and well-settled principle in law that in an adversarial system of litigation, any evidence which does not support the pleadings is for rejection. The position was reiterated by the Court of Appeal in Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which decision cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Sylvester Umaru Onu, JSC stated that: -

It is settled law that parties are bound by their pleadings……the court below was in error when it raised the issue contrary to the pleadings of the parties.

110.  Adereji, JSC in the same case expressed himself thus on the importance and place of pleadings: -

…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……

…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.

111.  The Supreme Court of Kenya as well agreed with the above legal position in a ruling in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR.

112.  It now follows that the contention by the Petitioner relating to his marriage with Kellen is a non-issue in this matter. I say so because the same was not pleaded in the Petition and as such it did not crystallize to be an issue for determination and further that the complainant in the criminal case is the Company and not Kellen.

113.  As there was no contention that the 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.

114.  The upshot is that the Petitioner has not proved that his rights under Article 40 and 50(2)(l) of the Constitution were in any manner whatsoever infringed.

115.  The issue is, hence, answered in the negative.

(c)     Whether the Petition and the applications are merited:

116.  As the consideration of the second issue has yielded that the Petitioner has failed to prove any violations as alleged, it goes that the Petition and the Notice of Motion dated 29th October, 2020 are not merited.

117.  On whether the Notice of Motion dated 30th November, 2020 is merited, this Court finds that the application partly succeeds.

118.  The prayer for discharging the conservatory orders is hereby allowed. On the prayer for an order that the Petitioner be ordered to make a contribution towards the rent and/or to refund the Interested Party, this Court takes the position that the order cannot issue before this Court.

119.  There are two reasons thereof. One, the order securing the exhibits was made by the trial Court. The request ought to be made before that Court. Two, even if the request could be made in the High Court, it can only be made before the Criminal Division which exercises both appellate and supervisory jurisdiction over the trial Court.

120.  The Notice of Motion dated 30th November, 2020, therefore, partly succeeds.

Disposition:

121.  Flowing from the foregoing, this Court hereby makes the following final orders: -

(a)  The Petition and the Notice of Motion dated 29th October, 2020 are hereby dismissed.

(b)   The conservatory orders issued on 16th November, 2020 are hereby discharged and set-aside forthwith.

(c)  Given the age of Milimani Chief Magistrates Criminal Case No. 3288 of 2020, Republic -vs- Peter Maina Muturi,the trial Court shall accord priority in the hearing and determination of the said case.

(d)  The Petitioner shall bear the costs of the Petition and the applications.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF FEBRUARY, 2022.

A. C. MRIMA

JUDGE

JUDGMENT VIRTUALLY DELIVERED IN THE PRESENCE OF:

MR. GAITA, LEARNED COUNSEL FOR THE PETITIONER.

MISS. MARINDA, LEARNED PROSECUTION COUNSEL INSTRUCTED BY THE OFFICE OF PUBLIC PROSECUTIONS FOR THE RESPONDENT.

MR. ONYANGO, LEARNED COUNSEL FOR THE INTERESTED PARTY.

ELIZABETH WANJOHI – COURT ASSISTANT.