Republic v Director of CID & Inspector General of Police Ex-parte Alice Nyomenda Oeri [2017] KEHC 2792 (KLR) | Abuse Of Power | Esheria

Republic v Director of CID & Inspector General of Police Ex-parte Alice Nyomenda Oeri [2017] KEHC 2792 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  81 OF 2017

IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE ACT

AND

IN THE MATTER OF INFRINGEMENT  OF CONSTITUTION  RIGHTS  UNDER  ARTICLE  27,28,29,31,47,50.

AND

IN THE MATTER OF AN APPLICATION  FOR LEAVE  TO APPLY FOR  JUDICIAL  REVIEW.

REPUBLIC …………………………..………….....…….APPLICANT

VERSUS

THE DIRECTOR OF  CID …………….………....1ST RESPONDENT

THE  INSPECTOR GENERAL OF POLICE …...2ND RESPONDENT

ALICE NYOMENDA  OERI………………………..........…EX-PARTE

JUDGMENT

1. By a notice of motion dated  16th March  2017 and  filed in court on 17th March, 2017 pursuant to leave granted on  27th February, 2017, the exparte  applicant Alice Nyomenda Oeri  seeks from this  court against the Respondents    Judicial Review  orders of:

a. Certiorarito bring  into this  Honourable Court  and  quash   the decision by the Inspector General  of Police  and the Director of Criminal Investigations officers from intimidating, harassing  and  threatening  to arrest her at her home  or place  of work  on matters  touching  the  conduct  of Machakos  HCC NO.  244  of 2011.

b. Prohibitionto issue against the 1st and 2nd respondents  prohibiting  the office  of Inspector General of Police and  the Director of Criminal Infestations from intimidating, harassing  and  threatening  to arrest at  Home  or place  of work on matters touching  the  conduct of Machakos HCC  No. 244  of  2011;

c. Declarationthat the decision of the 1st and  2nd respondents to keep  issuing  summons or sending  police  officers  to harass and  intimidate  and  threaten  to arrest the  applicant  causing  mayhem  at (sic) her office or  elsewhere  in the excuse of  conducting  investigations  on matters  touching  or related to Machakos HCC 244 of  2011 is unlawful, ultra  vires, conducted  in bad faith and the procedures used  are  bias(sic) against  the  applicant.

d. That costs of the application be provided for.

2. The notice of motion is predicated  on the grounds on the face of  the motion and supported by the statutory statement of the applicant and her verifying affidavit all dated 24th February  2017  and filed  in court on  27th February  2017  in support of the chamber summons for leave and  annextures  thereto.

3. The exparte  applicant’s  case is  that she  is an advocate  of the High Court   of Kenya  practicing  as an  Associate  in the firm of Morara  Ngisa  & Company Advocates since  2006  but now  practices in her  own name  and  style of  A.N. Oeri & Company  Advocates.

4. The exparte  applicant  claims that  while working  in the firm of  Morara  Ngisa  and  Company Advocates  in September  2011  one Naphtali Mureithi (complainant/clients) sought the legal services of that firm in obtaining injunctive orders against  Ecobank Kenya   Ltd  who  had advertised  its property  for sale for guaranteeing PRISCO Petroleum Ltd.

5. That the exparte  applicant, acting  on Mr Mureithis  instructions  moved to court  under certificate  of urgency vide HCC Civil Case  No. 244/2011  and on 14th September  2011 the matter was  heard  and interim orders  granted  by  Honourable Justice Dulu.

6. That  the  suit  which  was instituted  against Ecobank  was defended by Majanja Luseno & Company Advocates, who filed  a  replying  affidavit  to the  application  on 23rd  September  2011  and the exparte  applicant  filed a further  supporting  affidavit on  4th October  2011.

7. That Honourable  Dulu J then directed  parties  to file and  exchange  written  submissions  and have the matter  canvassed  on 6th December  2011.  That  on 3th November  2011  the  defendant’s  advocates  wrote  to the plaintiff’s  advocate( where  the exparte  applicant  herein  previously practiced), proposing  to concede  to the application which was premised on a non-issuance of  mandatory  notices.  That the matter  was  mentioned  on 4th November  2011  before Honourable  Makhandia  J ( as  he then  was )  and the  learned judge   directed  parties to  agree on  the  costs  or file bill of costs for  assessment but that the agreed  on costs tentatively  at kshs  40,000/-.

8. According  to the exparte applicant,  the plaintiff (client)  in the Civil Suit was during  all the  court  sessions  present  in  court  and  followed  what was  transpiring  and that he  paid his  advocates  2 cheques  of shs 90,000 and  kshs15,000/- respectively  and the application  was  by consent  marked  as  settled by  an order  of the court.

9. It is  alleged that on diverse  dates  during  the month  of April  2012   the said  client  Mr  Naphtali  Mureithi  went  to  the exparte  applicant’s offices claiming  that Ecobank Ltd  had  advertised  his property  for sale  without serving  him with the  statutory  notice as indicated in the consent recorded.

10. The exparte  applicant alleges  that she  immediately  prepared  an application under certificate of  urgency  and  went to  Machakos  High Court to file  it on  11th April  2012   but the  court  file  could  not  be  traced so she was  advised  to go back  the following day  which she did return together with the plaintiff Naphtali Mureithi but  the file could  still not be  traced  and the plaintiff  wrote to court a letter  on 12th April  2012 complaining  of the missing  court file.

11. That owing  to the missing file, the  exparte  applicant  decided to move  the court by way of Miscellaneous Application  awaiting  tracing   of the original  court file  and prepared  all documentation  which   were duly  signed  by the plaintiff.

12. That  the plaintiff in the said civil suit  then promised  the  exparte  applicant  that they  would meet at the Kenya  Commercial Bank(KCB) Machakos  Branch the following  day for him  to facilitate   court  filing fees  but he never  turned  up and  the court  clerk who  was  send  to file the documents was left alone hence he could not file the  documents for lack of court filing fees.

13. That  after the  plaintiff  evaded  paying  court fees  for filing  of the application  to stop the sale  of his  property, he  approached  another  firm of advocates  who  on  7th May  2012   wrote  to the exparte  applicant’s former firm calling  for his file  which  case file was   released  and  thereafter  a bill of  costs   was filed  in court  for  taxation for the plaintiff to settle advocate client bill of costs for the work done in the matter.

14. That it  was  during the pendence of taxation of  Advocate/client  Bill of costs  that the exparte  applicant   advocate  has been  summoned  severally  by the CID  Nairobi  and  Headquarters in Kiambu  on allegations  of fraud  and that she  had recorded   her statement on the allegations and complaints made by the plaintiff in the civil suit.

15. That in April 2016 the exparte applicant was served with Kiambu Miscellaneous Application No. 97 of 2016 which application was dismissed.  The application was by Inspector Stephen Wanyama Nyongesa seeking a warrant to investigate accounts of the exparte applicants firm of advocates and Majanja Luseno and Company Advocates.

16. The  exparte  applicant  laments that  the respondents have been  calling  her and  threatening  that unless  she  appears  at their offices  they will  arrest  her at  their offices, that  they will  arrest  her at their  own convenience, despite the fact  that she  recorded a  statement  with them.  She therefore  urges  the court  to grant  her  the  orders sought in  the motion.

17. Despite service of the motion  and all  its accompaniments  upon  the respondents, they did not  appear  and  neither  did they  file  any response  to the notice  of motion.

18. The exparte  applicant  also  filed written  submissions  dated  20th April  2017  on  21st  April  2017  wherein  she reiterated  her grounds  and the depositions  in her  verifying  affidavit, which I  need not  reproduce  here.  She relied  on no case law  or  statute  law  in canvassing her  applicantion in urging the court to grant  her the  orders  sought.

DETERMINATION.

19. I have  considered  the  exparte  applicant’s  application.  It is  brought  under the provisions  of Order  53  Rule  3 of the Civil Procedure  Rules, the Law Reform  Act,  the  Judicature Act and all  other enabling  provisions   of the law.

20. The  motion seeks for  certiorari to quash  the  decision of the respondents  to intimidating, harassing  and  threatening  to arrest the  applicant  on  matters  relating  to Machakos  HCC  244/2011; prohibition to prohibit the respondents from harassing, intimidating and threatening to arrest her and  Declaration that the summons  or sending  of  police officers to harass, intimidate and threaten the exparte applicant is  unlawful, ultra vires, biased  and  done in bad  faith.

21. The respondents  have not  contested  the allegations  leveled  against  them  by way of  a sworn affidavit verifying  the facts relied  on by the  exparte applicant  who is  an advocate  of the High Court  of Kenya.

22. Therefore the main issue for determination is whether the exparte applicant is entitled to the orders sought in the notice of motion.

23. First  and  foremost  is that  the  office of  Inspector General  of Police  is a constitutional  office and  so is that  of  the Director  of Criminal Investigations, charged with the mandate of enforcing  the law  and detecting  and  preventing  crime.  The Inspector General  is empowered  to investigate  complaints  and to  take appropriate  action  of advising  the Director of Public Prosecutions to mount a prosecution of a suspect  where the Director of Public Prosecution is satisfied that there is  sufficient  evidence to mount  a prosecution.

24. The police  only need to establish  reasonable suspicion to prefer charges against a suspect and submit their recommendations to the Director of Public Prosecutions who directs  the  prosecution  and  the rest  is left  to the trial court  to determine  the guilt  of the suspect.

25. The applicant in this case complains that she is being intimidated, harassed and or threatened with arrest.  The court  ought not  to usurp powers  or constitutional mandate  of the  police  in investigating  allegations  or complaints  that a crime  has been committed.  However,  the court  has jurisdiction and  power  to prohibit  the  continuation of criminal investigations  or even prosecution  if  extraneous   matters  divorced  from the goals  of justice  guide  their  instigation.  (see Kuria &  3 others v Attorney General  [2002] 2 KLR  69).

26. The court  in the above case  further  held that …..

“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 instigation. 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...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilization is far that which the courts indeed the entire system is constitutionally mandated to administer...In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the applicants in order to settle the civil dispute. It is further alleged that the criminal prosecution is an abuse of the court process epitomized by what is termed as selective prosecution by the Attorney General. It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilize the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The intrusion of judicial review remedies in criminal proceedings would have the effect of requiring a much broader approach, than envisaged in civil law...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilized. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop them from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...Under section 77(5) of the Constitution it is a constitutional right that no person who has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of the offence. What is clear from this constitutional right is that it prevents the re-prosecution of a criminal case, which has been determined in one way or another. However, it does not mean that a civil suit and a criminal case cannot co-exist at any one particular time. This is because the section envisages the re-prosecution of a criminal case substantially dealt with either in fact or law, a case in which issues have been laid to rest. There is no mention in the section that the simultaneous existence of civil and criminal cases constitutes double jeopardy. The courts have, however stated that the power to issue an order of prohibition to stop a criminal prosecution does not endow a court to say that no criminal prosecution should be instituted or continued side by side with a civil suit based on the same or related facts, or to say that a person should never be prosecuted in criminal proceedings when he has a civil suit against him relating to matters in the criminal proceedings...The normal procedure in the co-existence of civil and criminal proceedings is to stay the civil proceedings pending the determination of the criminal case as the determination of civil rights and obligations are not the subject of a criminal prosecution...A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution...In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution. It is not enough to simply state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. In absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the applicants might not get a fair trial as protected in the Constitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts. The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which is immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial... In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.”

27. Albeit the above  case  with  the long  holding  concerned  actual  prosecution against  the exparte applicant, the principles  espoused  therein are relevant  to this case  where  the prosecution  has not  been mounted  yet, but  the applicant  complains  that the respondent’s  actions  and conduct  amounts  to  intimidation, harassment  and  threat to arrest  which is in bad  faith, biased and therefore  unwarranted  for the last   4 years, even after she  had recorded  a statement  regarding   the conduct of civil  proceedings  where  she professionally  represented  her client  in the civil  matter but that  it  was  her client  who changed  tact  and  even instructed   another advocate  to whom the entire  case file  was handed   over to  continue  pursuing  the  claim  on his behalf.

28. In Republic vs Chief Magistrate’s Court at Mombasa  exparte  Ganijee  & Another  [2003] 2 KLR  703, it  was held:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases.  That is an abuse of the process of the court.  No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose.

The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest.  When a prosecution is not impartial  or when  it is being  used to  further a  civil case, the court  must put a  halt to  the  criminal process.  No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a civil trial.  If a criminal prosecution is an abuse of the process  of the court, oppressive  or vexatious, prohibition or certiorari  will issue  and go  forth…..when a remedy is elsewhere  provided and available  to a person  to enforce  an order  of  civil  court  in his favour, there is  no valid reason why he  should be  permitted   to invoke the  assistance  of the criminal  law for the  purpose of enforcement.  For, in a criminal case a person is out in  jeopardy  and his  personal  liberty  is involved.  If the  object of the appellant is  to over- awe the respondent  by brandishing  at him the sword  of punishment  there under, such an  object is  unworthy to say  the least and  cannot  be countenanced  by the court.  In this matter the interested  party is more actuated  by a desire  to punish  the  applicant or to  oppress  him into acceding to his demands by brandishing -the sword of  punishment  under the criminal law, than in  any genuine  desire  to  punish on behalf  of the public a  crime  committed.  The  predominant  purpose is to further that  ulterior  motive  and that  is when  the   High Court  steps in……”

29. This court   further  wholly concurs  with the learned judge’s holding  in Republic vs  Attorney General  Kipngeno  Arap Ngeny HC Civil Application No. 406/2001 where the court held:

“Acriminal prosecution which is commenced in the absence of proper   factual foundation or basis is always suspect   for ulterior motive or improper purpose.  Before instituting  criminal  proceedings, there  must be in  existence  material  evidence  on  which the  prosecution  can say with certainty  that they have a  prosecutable case.  A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”

30. And as  was aptly  stated in  Republic vs  Commissioner  of Police and   Another  Exparte  Michael Monari and  Another [2012] e KLR:

“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.

The predominant  reason  for the institution  of the criminal case cannot  therefore  be said  to  have  been the  vindication of the  criminal  justice.  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.”

31. From the plethora of case law  relevant  to this case  as cited  above, it is trite that the power given to the respondents to investigate  and  detect  crime  is  not to be taken  lightly.  It is a power that is exercised in the public interest.  Therefore, it should not be interfered with.  However, where the power aforesaid is exercised capriciously, unreasonably and with ulterior motive  and with  a view to  massaging  the  ego  of some individuals who have an  interest  in the outcome of civil claims, the court will not  hesitate  to interfere with  the exercise  of power that  it intended  to abuse the  very  power delegated  to a few individuals – the police, by the people of Kenya to exercise  it on their behalf. Article 1 of the  Constitution is clear that   all sovereign  power is vested  in the people of Kenya  and state  organs  only exercise it on  their behalf  through  delegation.  It  follows  that power is not  available  for abuse  or for  being  used for  ulterior  motives  and  or to achieve  some collateral purpose which is  not geared  towards  the  vindication of the commission  of a criminal offence  such as  with a  view to  forcing  a party to  submit  to a concession of a civil dispute. In such a case, the court will intervene to bring such proceedings to a halt.

32. This court in Judicial Review proceedings is not concerned with the merits of the case  which is being investigated into as that entirely falls in the discretion of the police once investigations are over, to decide whether there is sufficient evidence gathered to mount a prosecution by the DPP.

33. This court is concerned with the process and conduct or motivation of the respondents and therefore determine whether the persons  affected  by the decision  to investigate them are given a  fair treatment. The court is also concerned  with whether  the decision  maker had  the necessary  jurisdiction to make  such a  decision and  whether  it acted  within  that jurisdiction; or whether  it took into account  relevant matters or did take into account irrelevant  considerations.

34. Judicial review does not lie where the challenge  is on  contested  matter on  which of  the disputants’ versions  is the  correct  one.

35. Therefore, determination of this matter must be seen in light of the above consideration.

36. Applying  the above  principles  to this case, it is  clear  to my  mind that  there  are no  contested  facts  since the respondents  despite being served  with the court  process herein, they chose  not to participate  in  these  proceedings.

37. It follows that the version presented by the exparte applicant   as to the propriety of the investigations being mounted against her is uncontroverted.  She claims  that  despite  recording  a  statement  with the  police in  2012  concerning  the conduct  of Machakos  HCC 244/2011 wherein  she represented  her client Mr  Naphatali  Muriithi and  securing  a  consent  to  settle  the  application for  injunction  in his favour  stopping  the sale  of his property   by Ecobank, the police  have continued  to call  her and  intimidate  and  harass  her, threatening  to arrest her.

38. The exparte applicant  filed  affidavits wherein  she  clearly stated on  oath that  the Machakos  High Court Civil court file  went missing  from court and she   had to apply to move  the court on a Miscellaneous  case file  but the client  vanished  and  reappeared  a month later with another  advocate asking  for  surrender of office  case file  which she  willingly surrendered  after which  she  filed  an  advocate/bill of costs  for taxation  upon which  the client  filed a  complaint  with the police to investigate  her for  fraud.

39. Annexture  “ANO13”  is a notice of motion  and affidavit   sworn  by No. 235119  Inspector  Stephen Wanyama  Nyongesa  who alleges that he is the investigating officer in the matter of conspiracy to  defraud  contrary  to Section  317 of the  Penal Code, and  was so  instructed  to investigate  fraud  involving  LR No. 12610/13 IR  84029/2  measuring 9. 930 hectares registered  in the name  of  seed  and  General  Ltd  guarantor to Prisco Petroleum Network Ltd  to secure  an overdraft  facility for shs 10 million  from  Ecobank (K) Ltd  through a legal  charge created  thereon.

40. What the  good Inspector of police deposes  to agrees  fully  with  the exparte applicant’s depositions on how HCC Machakos  244/2011  was  initiated and handled; and  how  the land subject matter of that case  was  sold using  the  quashed  statutory  notices  save that  there is now a claim that the consent that settled the case(not application) was signed  without  the plaintiff’s consent and  that shs 40,000 was paid  by Majanja  Luseno and Company advocates to the exparte applicant’s  firm herein  as an inducement   to sign  the consent.

41. With utmost respect to Inspector  of police Stephen  Wanyama Nyongesa, together  with his master, whoever it is that   instructed him to  investigate  and detect  the commission  of a crime, his narration flies  in the eyes  of the law.

42. It does not make any legal sense for a party to complain that his advocate conceded to a consent settling a matter in favour of that party. Every party who approaches the court expects a favourable outcome.

43. Neither  does it  make any  legal  sense to  depose that  a  matter of  costs of the application  having been   agreed at  shs  40,000/- turned  out to be  an inducement  to an advocate  to sign   a consent settling  the  case.  It is  indeed an  absurd  thinking  full of ignorance  of the  law and its processes, more  particularly  when on  16th April  2012   the  complainant/plaintiff in the civil suit at Machakos  swore   an affidavit  that agrees  with  what  his advocate  the  exparte  applicant  herein stated with  regard to  the  due process   followed  in stopping  sale of  his property.

44. There is no  evidence that  the  Machakos   case  was   settled but that  the  consent   was signed  allowing the  plaintiff’s   application for  injunction  to stop the sale  of his land.  If the  defendant  used the quashed  statutory  notices  to sell the plaintiff’s land after the consent was recorded, it bears individual  responsibility  and that is why the applicant made concerted efforts, on learning of the problem, to stop the process of transfer of her client’s  property, only for the plaintiff to vanish  and  reappear  through another advocate.

45. The  plaintiff in that case  had the  right to change  advocates  but the motive  was to shift blame  to his/ its former  advocate,  the applicant herein.

46. Further, there is  ample evidence that the plaintiff/complainant is using the police to intimidate the applicant owing to the filed/pending advocate/client bill of costs against him.

47. In  my humble  view, the  respondents  are being  used to  abuse their power  by brandishing  penal law  on the applicant and intimidating  and harassing her.  Nothing  stopped them to prefer any charges against her  in  2012   after the  sale of the  plaintiffs   property  if at all they believed  the  complainant’s  story.  They did not have to continue threatening the exparte applicant  with arrest.  They have not told the court why they have not placed the investigations file before the Director of Public Prosecutions to give directions on whether or not the applicant should be charged with any criminal   offence (fraud).

48. I find the conduct  of the respondents in their prolonged threatening and intimidating of the applicant malicious and with ulterior motive intended to achieve a collateral purpose.  Though  mere delay in  bringing  criminal proceedings would not persewarrant halting of criminal investigations, the issue is whether or not criminal  proceedings  being  brought  have the effect  of merely  vexing  and vilifying  the applicant  that matters.

49. In this case, I find that there is  a legitimate  apprehension on the part of exparte applicant that the criminal process is being abused by the respondents who have the power to arrest her and humiliate her only to please their master the plaintiff in the Machakos case not to vindicate the criminal justice.

50. In this case, I find that the  exparte applicant has  established  that no reasonable  person  in the name of carrying out investigations into an offence allegedly committed would continue calling  and  harassing  and  intimidating  or threatening with  arrest the suspect.  If the respondents had a probable case against the applicant for investigations, they did not have to intimidate the applicant.  They simply act in accordance with the legal process.  Incessant telephone calls and threats to a person that they would face criminal charges subjects the person to physical and mental torture.  It is not a pleasant experience for the police to keep calling the applicant and merely threaten to take action but they do not take legal action against her.  The police are expected to do their part of the   investigations and hand over the file to the Director of Public Prosecutions for prosecution if he agrees with them.

51. What is happening in the instant case is that the police are not in a hurry to conclude their investigations. They are using their investigative powers to intimidate and harass the applicant.

52. In my humble view, those actions by the police amounts to abuse of power and this court   cannot hesitate to intervene to prevent abuse of power.

53. For the reasons, I find the notice of motion dated 16th March 2017 merited as presented.  I proceed  to allow  it and grant  the  following Judicial Review  orders:

a. Certiorari bringinginto this  Honourable Court  and  quash   the decision by the Inspector General  of Police  and the Director of Criminal Investigations officers from intimidating, harassing  and  threatening  to arrest her at her home  or place  of work  on matters  touching  the  conduct  of Machakos  HCC NO.  244  of 2011.

b. Prohibitionissuing against the 1st and 2nd respondents  prohibiting  the office  of Inspector General of Police and  the Director of Criminal Infestations from intimidating, harassing  and  threatening  to arrest at  Home  or place  of work on matters touching  the  conduct of Machakos HCC  No. 244  of  2011;

c. Declarationthat the decision of the 1st and  2nd respondents officers to keep  issuing  summons or sending  police  officers  to harass and  intimidate  and  threaten  to arrest the  applicant  causing  mayhem  at her office or  elsewhere  in the excuse of  conducting  investigations  on matters  touching  or related to Machakos HCC 244 of  2011 is unlawful, ultra  vires, conducted  in bad faith and the procedures used  are  bias(sic) against  the  applicant.

54. Costs are in the discretion of the court.  As the respondents  did not challenge  the allegations against  them, I find  it appropriate  to order  that the applicant  bears  her own costs  of these  Judicial Review proceedings  to avoid   unnecessarily  burdening  innocent tax payers with paying legal costs for acts of individual police  officers  who were  acting  in utter  ignorance  of the law and  legal  process.

Dated, signed, and delivered in open court at Nairobi this 20th day of September, 2017.

R. E. ABURILI

JUDGE