Republic v Director of Public Prosecutions; CMM (Exparte Applicant) [2025] KEHC 4532 (KLR)

Republic v Director of Public Prosecutions; CMM (Exparte Applicant) (Judicial Review Application E004 of 2025) [2025] KEHC 4532 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4532 (KLR)

Republic of Kenya

In the High Court at Thika

Judicial Review Application E004 of 2025

FN Muchemi, J

April 3, 2025

Between

Republic

Applicant

and

Director of Public Prosecutions

Respondent

and

CMM

Exparte Applicant

Ruling

Brief Facts 1. The applicant in his exparte Chamber Summons dated 24th January 2025 seeking for orders of leave to apply for an order of prohibition to prohibit the respondent from prosecuting the ex parte applicant on seventeen counts of forgery and uttering a document with intent to defraud contrary to Section 352 and 353 of the Penal Code respectively in Thika CMCR Case No. 4020 of 2023 pending the outcome of Kiambu High Court No. OS E002 of 2021 and Thika ELC Appeal No. E029 of 2024 Alice Njeri Muchugi vs Christopher Mathea Mukirai, Susan Wambui Wachira, Mary Njeri Mbugua and District Land Registrar Ruiru.

2. Further, the applicant sought leave be granted to operate as stay of prosecution of Thika CM Criminal Case No. 4020 of 2023.

The Ex Parte Applicant’s Case 3. The ex parte applicant avers that he and Alice Njeri Muchugi cohabited as husband and wife from the year 2008 to 2022 and resided in Juja Kiambu County and were blessed with a son who is currently 14 years old. At all material times during the cohabitation, the ex parte applicant avers that he, Susan Wambui Wachira, Mary Njeri Mbugua jointly purchased land parcel Number Ruiru/Ruiru East Block 2/1962 from Salome Gathoni Kamau, his sister.

4. The ex parte applicant states that on 2nd December 2022, he was charged before Thika Chief Magistrate’s Court in CMCR No. E3499 of 2022 with four counts of obtaining money Kshs. 800,000/- by false pretences contrary to Section 313 of the Penal Code, conspiracy to defraud Alice Njeri Muchigi on LR No. Ruiru/Ruiru East Block 2/1962, forging a transfer of land document dated 28th May 2018 for land parcel Ruiru/Ruiru East Block 2/1962 registered under the name of Christopher Mathea Mukirai, Susan Wambui Wachira, Mary Njeri Mbugua and Alice Njeri Muchugi and altering a document with intent to defraud contrary to Section 357(b) of the Penal Code. The ex parte applicant avers that he pleaded not guilty on all the four counts.

5. The ex parte applicant states that on 1st February 2023, the prosecution withdrew the four charges under section 87(a) of the Criminal Procedure Code and the sum of Kshs. 800,000/- restored to Alice Njeri Muchugi’s account number 0090292823176 Equity Bank, Juja Branch. On 30th June 2023, Alice Njeri Muchugi filed a claim in Ruiru Chief Magistrate’s Court ELC Case No. E117 of 2023 Alice Njeri Muchugi vs Christopher Mathea Mukirai, Susan Wambui Wachira, Mary Njeri Mbugua and District Land Registrar Ruiru. In the said case, she sought for orders of a declaration that LR. No. Ruiru/Ruiru East Block 2/1962 was subdivided, sold and transferred fraudulently by the 1st, 2nd and 3rd defendants; an order that the District Land Registrar, Ruiru Land Registry do cancel, withdraw and remove forthwith all entries entered and registered against the title for the parcel Ruiru/Ruiru East Block 2/1962 and revert ownership of the plaintiff and the defendants jointly reflect the cancellation and that the land sub divided and a portion equivalent to a half transferred to the plaintiff.

6. The ex parte applicant states that on 15th March 2024, the Ruiru Court found that the subject matter LR. No. Ruiru/Ruiru East Block 2/1962 was also the subject matter in Kiambu High Court OS E002 of 2022 which was pending at the High Court for distribution of matrimonial property and the Ruiru Court found that the 1st interested party’s suit offended the sub judice law under Section 6 of the Civil Procedure Act and sustained his preliminary objection striking off the suit. Alice Njeri Muchugi subsequently filed an appeal being Thika ELC Appeal No. E029 of 2024 challenging the findings of the court in Ruiru which appeal is still pending for hearing and determination.

7. The ex parte applicant avers that he was subsequently charged in Thika CMCR Case No. 4020 of 2023 with seventeen counts of forgery and uttering a document with intent to defraud contrary to Section 352 and 353 of the Penal Code. The said charges arise from land parcel numbers Ruiru/Ruiru East Block 2/26117, 26118, 26123, 26124, 26131, 26132, 26133, 26148 which are sub divisions out of the mother title number Ruiru/Ruiru East Block 2/1962 and are all in the names of Alice Njeri Muchugi, Susan Wambui Wachira, Mary Njeri Mbugua and himself. The ex parte applicant avers that he pleaded not guilty and the matter is scheduled for mention on 4th February 2025.

8. The ex parte applicant states that the 1st interested party having received Kshs. 800,000/- in Criminal Case No. E349 of 2022 being a refund of her interest in LR No. Ruiru/Ruiru East Block 2/1962 and having elected to pursue civil remedies to assert her rights in said property vide Thika ELC Appeal No. E029 of 2024 has instituted a criminal complaint against him in Thika CMCR Case No. 4020 of 2023 with a tinge of malice and revenge with the aim of unjust enrichment.

9. The ex parte applicant argues that the respondent has singled him out for prosecution in Thika CMCR Case No. 4020 of 2023 yet in Thika ELC Appeal No. E029 of 2024 the 1st interested party has maintained that Susan Wambui Wachira, Mary Njeri Mbugua and himself obtained her land Ruiru/Ruiru East Block 2/1962 by fraud and have violated his right to fair administrative action and constitutional right from discrimination. The ex parte applicant further states that the respondent has subjected him to criminal prosecution in Thika CMCR No. 4020 of 2023 on a matter which is the subject of matrimonial property dispute and ownership of title in a land dispute which are all civil in nature.

The Respondent’s Case 10. The respondent states that the ex parte applicant is an accused person in Thika Chief Magistrates Court Criminal Case No. E4020 of 2023 scheduled for mention on 10th March to take directions. The respondent further states that upon the police concluding its investigations, they transmitted a report together with the police file bearing their findings and recommendations that the ex parte applicant be charged with nine counts of forgery contrary to Section 352 of the Penal Code and nine counts of uttering a document with intent to defraud contrary to Section 353 of the Penal Code.

11. The respondent states that it independently reviewed the evidence in the file and was satisfied that it was sufficient to sustain the proposed charges and according directed that the ex parte applicant be charged. The respondent further states that its decision was based on sufficiency of evidence and proper application of the law on facts of the case as disclosed from the evidence and that any defence that the ex parte applicant would wish to raise was available to him in the criminal case. The respondent argues that it did not breach any provision of the Constitution or any written law or rule made thereunder, or the rules of natural justice, neither was the decision to charge unreasonable, irrational, or actuated by malice, or in bad faith.

12. The respondent argues that since the ex parte applicant has not challenged the constitutionality of the said sections of law which he was charged with, he cannot therefore seek orders for stay of the lower court proceedings. The respondent further argues that the ex parte applicant has presented his defence against the charges facing him at the criminal trial in the present forum. The current court is not the right forum to entertain that defense or justification concerning whether he should have been charged or not.

13. The respondent states that the ex parte applicant is asking the current court to determine whether there is sufficient evidence to sustain the charges against him which question can only be ventilated before a trial court. Further, the ex parte applicant has not placed any materials before the court to demonstrate the illegality or otherwise of the conduct of the prosecution in making the decision to charge him neither has he demonstrated that the ongoing criminal proceedings are for other reasons other than enforcement of the law. Additionally, the ex parte applicant has failed to show the court that he has a prima facie case and that if the prayers sought are not granted, the application would be rendered nugatory.

14. The respondent avers that the ex parte applicant shall be afforded an opportunity to defend himself against the charges levelled against him during the trial. The respondent argues that if the ex parte applicant is allowed at the present stage to challenge the evidence in the possession of the prosecution, that will amount to pre-empting the prosecution’s case by setting out the ex parte applicant’s defence and accepting it. Furthermore, the ex parte applicant has not contended that he shall have a fair trial at the magistrate’s court. the respondent argues that none of the grounds raised by the ex parte applicant have satisfied the threshold for the court to grant the leave sought.

15. Parties disposed of the application by way of written submissions.

The Ex parte Applicant’s Submissions. 16. The ex parte applicant refers to Section 193A and the case of Petition No. 442 of 2013 Musyoki Kimanthi vs Inspector General of Police & 2 Others [2014] eKLR cited with approval in the case of Commissioner of Police & Others vs Kenya Commercial Bank & Others and submits that while Section 193A of the Criminal Procedure Code allows concurrent litigation of civil and criminal proceedings arising from the same issues and while it is the prerogative of the police to investigate crime, the power must be exercised responsibly and in good faith. The ex parte applicant submits that he has shown that the charges in Thika Criminal Case No. 4020 of 2023 is substantially similar to the claim of fraud in Thika ELC Appeal No. 029 of 2024 and they all arise out of LR. No. Ruiru/Ruiru East Block 2/1962 and subsequent sub divisions thereof. Further, the ex parte applicant submits that he refunded Alice Njeri Muchugi Kshs. 800,0000/- after withdrawing Thika Criminal Case No. E3499 of 2022 however she still sued him for ownership of the suit property. The suit property is also subject to matrimonial proceedings in Kiambu HCCC OS No. 002 of 2021. The ex parte applicant refers to the case of High Court at Meru Criminal Petition No. E014 of 2021 Hudson Mutugi Francis & 2 Others vs Director of Public Prosecutions cited in Republic vs Chief Magistrate’s Court at Mombasa ex parte Ganijee & Another [2002] 2 KLR and submits that the criminal case is actuated by malice and aimed at settling personal scores rather than any genuine desire to punish him for a crime. The ex parte applicant relies on the case of Stanley Munga Githunguri vs Republic [1985] KLR 91 and submits that the High Court has inherent power to stop a prosecution that amounts to an abuse of the court process.

The Respondent’s Submissions 17. The respondent relies on the cases of Republic vs County Council of Kwale & Another ex parte Kondo & 57 Others Mombasa, HC Misc. Application No. 384 of 1996 and Republic vs Kenya Revenue Authority Commissioner ex parte Keycorp Reals Advisory Limited [2019] eKLR and submits that the ex parte applicant has not satisfied the criteria to warrant him leave to institute judicial review proceedings and the application is a waste of judicial time.

18. The respondent further relies on Order 53 Rule 1(4) of the Civil Procedure Rules and the cases of Sauti Communications Limited vs Communications Authority of Kenya [2020] eKLR; Beatrice Kwamboka vs Leader of Majority Party of the Nairobi County Assembly [2016] eKLR and Taib A. Jaib vs Minister of Local Government & 3 Others HC Misc. No. 158 of 2006 and submits that a stay at the current stage would amount to granting the substantive orders sought by the ex parte applicant. The respondent argues that the ex parte applicant has not placed sufficient material before the court to warrant the direction that leave should operate as a stay in the instant case.

19. The respondent submits that the ex parte applicant sought leave to file for the orders of prohibition against it not to prosecute him. Relying on the case of Kenya National Examination Council vs Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, the respondent argues that the decision to charge the ex parte applicant was already made in the year 2023 thus Thika Magistrate’s Criminal case No. 4023 of 2023 is currently active in court as it is scheduled for mention on 10th March 2025 for directions and hence an order sought for prohibition is overtaken by events. The respondent further refers to Section 193A of the Criminal Procedure Code and submits that nothing stops Thika Criminal Case No. 4023 of 2023 from proceeding to its logical conclusion even if there are other pending civil cases in which the ex parte applicant is a party.

The Law 20. The starting point would be Order 53 Rule 1 of the Civil Procedure Rules which provides:-No application for an order of mandamus, prohibition or certiorari shall be made unless leave thereof has been granted in accordance with this rule.

21. This principle was enunciated in the case of Republic vs Paul Kihara Kariuki & 2 Others; ex parte Law Society of Kenya [2020] KEHC 3289 (KLR) where the court held:-It is trite that in an application for leave such as the present one, the Court ought not to delve deeply into the arguments of the parties but should make cursory perusal of the evidence before court and make the decision as to whether an applicant’s case is sufficiently meritous to justify leave.

22. Similarly in Republic vs Kenya Revenue Authority Commissioner ex parte Keycorp Reals Advisory Limited [2019] eKLR where Mativo J (as he was then) held:-At the leave stage , the applicant has the burden of demonstrating that the decision is illegal, unfair, and irrational. The applicant must persuade the court that the application raises a serious issue. This is a low threshold. A serious issue is demonstrated if the Judge believes that the applicant has raised an arguable issue that can only be resolved by a full hearing of the judicial review application. If the court is not persuaded as aforesaid, leave will be denied and the matter proceeds no further.

23. In the present application, the ex parte applicant avers that the interested party instituted a criminal case against him being Thika Criminal Case No. 3499 of 2022 whereby he was charged with four counts of obtaining money by false pretence contrary to Section 313 of the Penal Code, conspiracy to defraud contrary to Section 317 of the Penal Code, forgery contrary to section 357 of the Penal code and uttering a document with intent to defraud contrary to Section 357(b) of the Penal Code. The ex parte applicant compensated the interested party and paid her Kshs. 800,000/- and she withdrew the charges. The trial court thus discharged the ex parte applicant under Section 87(a) of the Criminal Procedure Code and held that counts 1 - 4 were withdrawn. The ex parte applicant is currently being charged with seventeen counts of forgery contrary to Section 352 of the Penal Code and uttering a document with intent to defraud contrary to Section 353 of the Penal Code in Criminal Case No. 4020 of 2023. However, the law provides that a discharge under Section 87(a) of the Criminal Procedure Code does not operate as a bar to subsequent proceedings against an accused person on account of the same facts. Notably, the ex parte applicant has not been charged with obtaining money by false pretences by virtue of the fact that he compensated the interested party. Furthermore, Section 193A of the Criminal Procedure Code allows for concurrent criminal and civil proceedings and provides that any matter in issue in any criminal proceedings that is also directly or substantially in issue in a pending civil proceedings shall not be a ground for any stay, prohibition or delay in criminal proceedings. It is therefore within the law to have proceedings run simultaneously with criminal charges over the same facts or in regard to the same property.

24. All considered, I am of the considered view that the applicant succeeds in grant of prayer (b) for grant of leave to file the Judicial Review proceedings which orders I hereby grant.

25. As for prayer (c) that seeks for leave to operate as stay of the Criminal proceedings Thika CM Criminal No. 4020 of 2023, I find that the applicant has not established merit of the said prayer and it is hereby disallowed.

26. The applicant has twenty-one (21) days to file and serve the substantive motion.

27. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 3RD DAY OF APRIL 2025. F. MUCHEMIJUDGE