Republic v Directorate of Criminal Investigations Ex-parte Joash Ochieng [2017] KEHC 915 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  661 OF 2017

IN THE MATTER OF AN APPLICATION BY JOASH  OCHIENG  FOR LEAVE TO APPLY FOR AN ORDER  OF PROHIBITION

AND

IN THE MATTER OF THE OFFICE OF THE DIRECTORATE OF CRIMINAL INVESTIGATIONS.

AND

IN THE MATTER OF GALOT INDUSTRIES  LIMITED

BETWEEN

JOASH  OCHIENG……………..………………………………….APPLICANT

VERSUS

THE  DIRECTORATE OF CRIMINAL

INVESTIGATIONS ………………………………………….... RESPONDENT

RULING

1. The exparte applicant Joash Ochieng seeks from this court leave to institute Judicial Review proceedings, against the Director of Criminal Investigations, prohibit the Directorate of Criminal Investigations.

2. The application was not opposed.

3. The  orders sought  in the chamber summons application do not  stipulate  the date  when the decision  to charge the  applicant  was made  and neither do the  orders  sought  state the  purpose  for which  prohibition  is sought.  The  application simply states:

“That the court be pleased to  grant leave  to apply for Judicial Review  seeking  prohibitory  orders  against the Directorate of Criminal Investigations.”

4. In the oral submissions by counsel for the applicant, Mr Washe sought for stay of investigations but there is no prayer for stay on the face of the application.

5. In addition, leave  to apply for  prohibition  is sought and  from the many exhibits  attached, the applicant  is complaining that there is a civil suit pending before  Machakos  Environment  and  Land Court   case No.  26/2014  wherein his client  has filed a defence  and counterclaim.  There is  a claim that  the  title in issue  has not been determined by Environment  and  Land Court  to be genuine  hence the  investigations  against the applicant  are illegal.

6. That may  be so.  However, there is no prayer  for leave to apply for  Judicial Review  order of certiorari  to quash  the decision  taken by Director of Criminal Investigations to investigate  the  applicant on allegations by Galot Industries Ltd that the applicant  forcefully occupied  LR No. 12867/511.  Prohibition cannot  be used to  quash a decision  already taken.

7. In the relief  sought, the  applicant  seeks  the respondent  to be prohibited from investigating, arresting, arraigning, preferring  any criminal charges, and or  prosecuting the applicant  in any criminal court of law in relation to the occupation and or ownership of LR 12867/511 or any portion thereof  until the  final  determination  of Machakos HC ELC 26/2016. However, there is no prayer for prohibition on the body of the Chamber summons.

8. Furthermore, the Directorate of Criminal Investigations has no prosecutorial powers which powers are vested in the Director of Public prosecutions, who is not even made a party to these proceedings.

9. In addition, the Directorate of Criminal Investigations has  powers under Section 24  of the National Police  Service Act to investigate  crimes and therefore no prohibition can issue unless it is demonstrated that the decision taken is illegal, unprocedural and or made in bad faith and for collateral purposes and not for vindication of criminal justice system.

10. Having examined the application as presented, I am unable to find any material placed before me to warrant grant of leave to apply for Judicial Review orders of prohibition exclusively.

11. Leave to apply is not automatic.  The applicant  must satisfy the  court that they deserve the  orders sought  and that they  have a prima facie  arguable  case, without the court  delving into the depths  of the intended  substantive  motion.

12. In this case, I am not satisfied that prohibition if sought  would  quash the decision which has already been taken by the Directorate of Criminal Investigations to investigate the applicant and which  investigative  powers  are not only statutory but also constitutional.

13. In the premises, I find the application wanting in merit and I proceed to dismiss it with no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 11th day of December 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Sakami h/b for Mr Wandugi for the Respondent

N/A for the Applicant

CA: George