Peter Odiwuor Ngoge T/A O.P. Ngoge & Associates v Josephine Akoth Onyango,Simon Otieno Onyango,Director of Public Prosecutions,Director of Criminal Investigations,Sehit Investments Ltd & Kenya Commercial Bank Ltd [2014] KECA 365 (KLR)

INTHE COURT  OF APPEAL

AT NAIROBI

(CORAM: WAKI, KARANJA & M'INOTI, JJ.A)

CIVIL APPLICATION NO. NAI 49 OF 2014 (UR 36/2014)

BETWEEN

PETER ODIWUOR NGOGE  T/AO. P.NGOGE  & ASSOCIATES.......APPLICANT

AND

JOSEPHINE AKOTH ONYANGO.……………….….................1STRESPONDENT

SIMON OTIENO ONYANGO………………………..…………....2ND  RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS……..…….....3RDRESPONDENT

DIRECTOROF CRIMINAL INVESTIGATIONS…………….......4THRESPONDENT

SEHIT INVESTMENTSLTD………………………………….…..5TH  RESPONDENT

KENYA  COMMERCIAL BANK  LTD………..……………...…..6TH  RESPONDENT

(Application foran  injunction, stay of execution and  stay of further proceedings pending the hearing and determination of an appeal from the judgment and  decree of the High Court of Kenya at Nairobi, (Majanja, J.)  dated10thMarch,2014

in

HC PETITION NO 471 OF 2013)

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RULING OF THE COURT

On 20th  December, 2012, the  1strespondent,Josephine AkothOnyangowas  arrested  by  the  police  on  suspicion of  having  committed various offences under the  Penal Code relating to the property known as LRNo  1160/784,  Nairobimeasuring in  area  approximately 0. 6305 hectares and valued at Kshs  200,000,000 (hereafter the suit property). She  was held  in custody until the  eve  of Christmas when  she was charged before the Chief  Magistrates  Court, Kiberain  CriminalCase No  6531 of  2012.

Subsequently,the 2ndrespondent,Simon Otieno Onyangowas also arrested and charged before the same  court in  CriminalCase  No 2178 of2013arising from the  same  set of facts.

When the two  criminal cases were ultimately consolidated, the charges against the 1st and 2nd respondents ranged from  conspiracy to defraud, forgery, making false documents and uttering  false documents, all arising from the transfer of the  suit property from the name of the 5th respondent, Sehit Investments Ltdto that of the  1st  respondent way  back  in  March 2005. Convinced that the  criminal charges were  ill-motivated and  an  abuse of the criminal process to  assist  the  5th  respondent regain the  suit property which it had  genuinely sold  to the  1st  applicant, the  1st  and  2nd   respondents launched  High Court Petition No. 471 of 2013seeking, inter  alia, termination of their prosecution on the  grounds of abuse of the  court process and violation of their constitutional rights and freedoms.

The facts upon  which the  constitutional petition was  based were  as follows:  By  an  agreement dated 12th December 2002 the 1st respondent agreed to purchase the  suit property from the 5th respondent for Kshs 18 million. The 1st respondent paid  the  deposit of Kshs 9. 5 million and  borrowed the balance of Kshs 8. 5 million from the 6th  respondent, KenyaCommercialBank  Ltdupon a charge on  the suit property. The  agreement for sale  was drawn by the  applicant, Peter Odiwour Ngoge,who at the time was acting for both  the  purchaser and the  seller. The transaction was completed and the transfer registered in favour of the 1st respondent.

Matters took a twist when the  5th  respondent filed HCCC No 705 of2009some four years later against the 1st and 2nd respondents amongother defendants, seeking among other reliefs, a declaration that the  transfer of the suit property to the1st respondent was null and void  for fraud, misrepresentation and  want of consideration and  an  order for cancellation and revocation of the same. Among other things, it was alleged that the 1st respondent had  not paid  the full purchase price.In their defence and counterclaim  the 1st and 2nd respondents  defended  the  transaction as genuine and prayed for vacant possession of the  suit property.

Another four years  down the line, the applicant filed HCCC No 48 of2013against the 1st respondent among  other  defendants, once again relating to same transaction. He pleaded that  he had not drawn and witnessed  the transfer pursuant to  which  ownership of  the suit property moved from the 5th to the 1st respondent. Like the  5th respondent in HCCC No 705  of 2009, the  applicant  sought cancellation of the  transaction on  the basis of fraud.

While the two cases  were pending for hearing, the 5th respondent lodged a complaint with the police, resulting in the criminal prosecution which we have already referred to and the subject of the constitutional petition.

In  a considered judgement dated 10th March,  2014, Majanja,J.  held that continuation of the  criminal proceedings would be abuse of the process of the court and issued an injunction stopping the prosecution of the 1st and 2nd respondent in regard to the transaction until the hearing and determination of HCCC No 705  of 2009.

In  arriving at that conclusion, the  learned judge took  into  account a number  of  issues,among them, that  the  5th respondent  had failed to establish a prima facie case  against the 1st  respondent in an application for injunction it had filed against her  in  HCCC 705  of 2009; that although the order refusing the  injunction against the1st respondent was subsequently set aside,  it was on grounds other than the merits; that while the  transaction was  completed in  2005, the  suit by  the  5th respondent was not filed until 2009 and the complaint to the  police was  not made  until 3 years  after the suit without any explanation; and  that the 5th respondent, which had lodged the  complaint with the  police, had actively participated in the perfection of the  transfer by appointing the firm of Musyoka& Wambua Advocatesto act  for it in  the finalization of the  transaction and to  receive the balance of the purchase price.

Other  additional  considerations  that  weighed on  the mind of the learned  judge  were   that directors of  the  5th respondent had  signed the allegedly  forged  transfer  without  any complaint;  that in written correspondence they had  acknowledged possession of the transfer which they forwarded to  their advocates for  registration;  that  in  those circumstances  the   5th    respondent could   not  turn  round and allege the transfer was a forgery; that in its  pleadings in HCCC No 705  of 2009, the  5th respondent had made  averments under oath  that were  materially at variance with the  complaint to the police such  as admitting that it had  executed the transfer; that indeed in the  said  suit the  5th respondent had  not alleged the transfer was a forgery; and  that in a different suit, namely HCCC No 105  of2005,a  director of the  5th   respondent had  allowed the  1st  respondent to lodge   objection proceedings in  2008   as  the   registered  owner of the   suit property. From  all those  considerations, the court drew  the  inference that the purpose of the   criminal  proceedings was  to  achieve  an ulterior purpose, namely to derail the  civil  proceedings between the  parties.

It appears that neither the 5th espondent,who had lodged the criminal complaint, nor the 3rd  respondent, who was  prohibited from continuing the prosecution of the  1st  and  2nd respondent, was sufficiently aggrieved by  the judgment to appeal against it. The applicant however filed a notice of appeal on  12th  March,  2014   and  followed it up  by  filling Civil  Appeal No 51 of2014which the parties inform us is scheduled to be heard before this  Court on 23rd October, 2014.

Pending  the  hearing of that appeal, the  applicant filed the  application now before us under Rule  5(2) (b)seeking the  following three prayers:

(i)       Stayof further proceedings of the High Court Petition No.471  of 2013;

(ii)     Stayof execution of  the judgement and decree of the High Court dated 10thMarch, 2014and all consequential orders; and

(iii)   “A mandatory injunction restraining the 1stand 2ndrespondent hereinfrom  moving the High  court again to block  their criminal prosecution in  Kibera Criminal Case No 6531 of 2012  and 2178 of 2013  or consolidation thereof or at all.

Before us Mr  Ngoge, who  appeared in person submitted that this  was a suitable application for the grant of the  orders prayed for because he had an  arguable appeal which would be  rendered nugatory if the  orders sought were  not granted. He informed us that in his Civil Appeal No 51 of 2014, he had raised as  many as  35  substantial, weighty  and  arguable  grounds  of appeal. It was his submission that on the facts of this  case the High Court did not have  jurisdiction to stop  the  criminal proceedings against the  1st  and  2nd respondents and that by stopping the  proceedings, the court had violated his fundamental rights and  freedoms by denying him  the  right to a fair trial, the right to access  justice and the right to equality. Mr Ngoge  further contended that the  stoppage of the  criminal proceedings had insulated the  1st  and  2nd respondents from accountability under  the criminal process and had prejudiced  him and endangered  his   legal career  by  attributing  forged documents to him. Lastly the  applicant submitted that by  expressing the view  that the  grievances between all the parties could  be settled in HCCC No 705  of 2009, the  learned judge had  ignored the  fact that the  applicant was not a party to that case and had prejudiced the  applicant’s own case, namely HCCC No 48  of 2013, which stood  the  risk  of not being heard, thus  denying him  access  to justice and the  right to a remedy.

On how  the  intended appeal would be rendered nugatory in the  event that the  orders sought were  not granted, Mr Ngoge  submitted as long  as the order of the  High  Court was not stayed, he could  not proceed with his HCCC No 48 of 2013. Consequently, counsel continued, if the  appeal was ultimately successful,he will have   been denied  his right to prosecute his case, exonerate himself and  uphold his honour, dignity and  professionalism. On the  same  vein,learned counsel argued that if the  criminal prosecution was not allowed to proceed to its logical conclusion, he will have beendenied an opportunity to clear  his name  in the  criminal case, if the  appeal succeeds.

Mr  Ngoge’s position was  embraced and  supported by  Mr  Ashimosi, learned counsel for the  3rd   and 4th respondents and  Mr  Nyarigo, learned counsel for the  5th respondent. Mr Ashimosi added the further view  that the appeal was  arguable because the  High  Court  had  erred by  delving into  the merits of the  prosecution as though it were  the  trial court and also by holding that the  existence of concurrent criminal and civil proceedings over  the  same subject matter  amounted  to  abuse   of court process. It was counsel’s contention that the appeal will be rendered nugatory if it is ultimately successful because  the criminal  trial  will resume  but the prosecution witnesses may  not be available.

Mr   Nyawara, learned  counsel  for  the 1st and 2nd respondents vigorously opposed the  application as frivolous, misconceived and disclosing neither  an  arguable  appeal  nor one  that would be rendered nugatory if successful. Counsel  submitted that the  prayer for stay of proceedings in the petition was spent because the petition had been finalized and no costs were awarded to any party so as to contemplate taxation or execution proceedings. Mr Nyawara supported the judgement of the  High Court and  in particular the considerations relied upon by the  learned judge to  conclude that the prosecution was an abuse of the  process of court. He submitted that from the  record, it was patently clear that the  criminal  prosecution was motivated by malice and ulterior motives rather than  the upholding of the criminal law,  because the  5th Respondent had in its own averments embraced the transfer as genuine and  had confirmed receipt of the full purchase price and  yet was pursuing a criminal prosecution based on contrary averments. Learned counsel in particular referred to  an affidavit sworn  by  the  applicant on 2nd  September 2008, wherein he had deponed as follows in paragraph 17: “ThatRose  Mbithe Ndetei alias  Rose  Mbithe Mulwa is adirectorof Sehit Investments Limited (5thRespondent) whichs old LR No 1160/784  Nairobi (the  suit property) the subject matter of  taxation proceedings herein, to Josephine Akoth Onyango (the 1strespondent).”

Mr Nyawara trashed the  argument that the  appeal would be rendered nugatory, arguing that the  High Court  had  not stopped the  applicant from proceeding with his HCCC No 48 of 2013  if he so wished. In counsel’s view,  if the  appeal is  successful, the  criminal proceedings will  simply re-start and therefore the  question of the  appeal being rendered nugatory did  not arise. The decision of this Court in SILVERSTEIN VS CHESONI (2002)1 KLR 867was  cited regarding the principles that guide this Court  while considering applications under rule  5 (2) (b).

Mr Nyawara was joined by  Mr Kithinji, learned counsel for the  6th respondent in  opposing the application. In  Mr  Kithinji’s view,  the  applicant had not satisfied any of the  twin  principles as required by rule  5(2)  (b).

We have anxiously considered the pleadings before the  High  Court, the judgment by the  learned judge, the  application before us and the  affidavits in support and  in  opposition together with the annextures thereto, the submissions of learned counsel and the  authorities cited.

The  applicant intends to  argue in  Civil  Appeal No 51  of 2014, among other things, that the  existence of concurrent criminal and  civil proceedings is not ipso facto  evidence of abuse  of the  process of court. The proper interpretation of section 193Aof  the  Criminal Procedure Codewhich provides that the  fact that any  matter in issue  in any  criminal proceedings is also  directly or  substantially in issue  in  any  pending civil  proceedings shall not  be  a  ground  for  any   stay, prohibition  or  delay of the criminal proceedings, is also  implicated. Also at issue,  in light of section 193A  of the Criminal Procedure  Code is the  concomitant and  undoubted power of the courts to stop  abuse  of the criminal process.

We are prepared to find that the  pending appeal is arguable, bearing in mind that an  arguable appeal is not one which will necessarily or definitely succeed, but  rather, is  one  in  which there are  serious questions of law or reasonable argument deserving consideration by this Court. (KENYARAILWAYS CORPORATION VS. EDERMANNPROPERTIES  LTD,CivilApplication No.Nai  176 of 2012). It is not necessary for us to consider all the  applicant’s 35 grounds of appeal, because as this Court has stated time and  again, even  a single bona  fide arguable issue  will  suffice. (KENYA TEAGROWERS ASSOCIATION & ANOTHER VS. KENYA PLANTERS &AGRICULTURALWORKERS UNION,  Civil  Application  No.  Nai.   72   of2001).

Has the  applicant established that if the  orders sought are not granted, his appeal will be rendered nugatory?  We are far  from  satisfied in  that regard. An  appeal is rendered nugatory  when it succeeds and  it is  not possible to  reverse the  intervening situation so as to  reflect the  outcome of the appeal. In AHMED MUSA ISMAEL VS KUMBA OLE NTAMORUA & 4OTHERS(Civil Application No. 256 of  2013),this  Court  expressed the purpose of the  requirement that a successful appeal should not be rendered nugatory to be:

“to preserve the integrityof  the appellate process  so as not to render any  eventual success  a mere pyrrhic victory devoid of  substance or  succor  by  reason of  intervening loss, harm  or  destruction that  turns the  appeal into a mere academic ritual.”

What may  render a successful appeal nugatory  must be  considered within the  circumstances of each  particular case. (RELIANCE BANK LTD VSNORLAKE  INVESTMENTS LTD(2002)1 EA 227,  SILVERSTEIN VSCHESONI (supra)andKENYA COMMERCIAL BANK LTD VS BENJOAMALGAMATEDLTD & ANOTHER,Civil   Application  No.  Nai   50 of2001).In the circumstances of this  application, if the  applicant’s appeal is successful, Kibera  Chief Magistrate’s Court Criminal Case No 2178 of 2013which has been  stopped by the  judgment appealed from will simply resume. In such  an  eventuality, we  cannot see  how  it can be  contended that the applicant’s  rights  will   have  been violated  because of  stoppage of  the prosecution of the  1st  and 2nd   respondent to  enable this Court  determine on merit  whether their prosecution should indeed be stopped. On  the other hand, if the  appeal does not succeed, the 1st and 2nd respondents will have been taken  through an oppressive and unconstitutional  criminal  process tainted by  malice and  ulterior motives. As the High Court observed in  the celebrated case of  GITHUNGURIVS REPUBLIC (1986)KLR 1, “itis as much in  the public  interest  that  breaches of the law should be punished,  as  it is to ensure that  in the process of doing so  the people are  not bashed about so that they lose respect for the law.”

It is also not lost to us that Civil Appeal No 51 of 2014  which challenges the  stoppage of the  criminal prosecution is scheduled to be heard on 23rd October, 2014, barely a month away. The fact that the appeal has been  fast tracked puts  paid  to the  argument advanced on behalf of the  3rd respondent that by the time the prosecution resumes in the event of a successful appeal, the prosecution witnesses may  not be available. It is instructive too that the key witnesses are the same  parties before us in this application.

In  the  exercise of its  discretion under Rule  5(2)   (b),  this   Court  has maintained that it will  also weigh the  respective claims of the  parties and take   into   account  the   relative  convenience  or  inconvenience that  the granting  or   refusing  of  the   order  will   occasion.   (ORARO& RACHIERADVOCATES VS CO-OPERATIVE BANK OF KENYA LTD,C.A No Nai.  358of 1999,  NATION MEDIA GROUP  & 2 OTHERS  VS JOHN JOSEPHKAMOTHO &  3 OTHERS,C.ANo. 108 of    2006and ERWENELECTRONICS LTD & 3 OTHERS VS. RADIO AFRICA LTD & ANOTHER,C.A No Nai.  82 of 2011).

In the  application before us, granting the  orders sought will  mean  that the  1st and 2nd   respondent will  have to immediately go through a prosecution whose  validity is the subject of the  appeal. Refusing the  application on  the other hand  will  mean  waiting for a month or two  for the  fast tracked appeal to be determined, after which, if it is successful, the  prosecution will  resume. In the  latter case,  the  inconvenience is a short delay, while in the  former, it involves taking a citizen through a process that has been  impeached, with all the  attendant costs.  The convenience is manifestly in favour of declining to grant the  orders sought.

Before we  conclude this  ruling, we  would like  to  say  a  word   on  the applicant’s third prayer for a mandatory injunction to restrain the  1st  and  2nd respondent from applying to the  High  Court again to block  their prosecution. Other than  the  fundamental principal that a mandatory injunction does  not issue  at the  interlocutory stage except in the  clearest of cases,  of which this is not one,  it would be rather unusual for a court of law,  outside the  purview of vexatious litigation,  to  restrain a  suitor from approaching a  court for a remedy in  the  face of apprehended violation of rights. The  prayer is  more remarkable, coming from the  applicant who  in these  proceedings has spared no  effort to  protect and safeguard what he  considers his  own  constitutional rights. We have  come  to the  conclusion that the applicant has failed to satisfy, as it was  his  duty to  do,  the  twin  principles under Rule  5(2)  (b)  that would have  otherwise entitled him  to the  orders prayed for, it being axiomatic that satisfaction of only one  limb  of the  principle is  not good  enough. (PETERMBURU NDURURI V JAMES MACHARIA NJORECivil  Application No. 29OF  2009  (UR   14/2009).Accordingly, the Motion on Notice dated 17th March,2014 is hereby  dismissed with costs to the 1st, 2nd and 6th respondents.

Datedand  delivered at Nairobi this 3rdday  of October, 2014.

P. N.WAKI

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JUDGE OF APPEAL

W.KARANJA

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JUDGE OF APPEAL

K.M’INOTI

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JUDGE OF APPEAL

I certify that this  is a true copy  of the  original.

DEPUTY REGISTRAR