Republic v Wellington Kihato Wamburu, Director of Criminal Investigations & Inspector General, National Police Service & Attorney General Exparte Kenyatta University, Stephen Njoka Nyaga, Jasper Muriithi Karani & Andrew Mugambi [2017] KEHC 934 (KLR) | Judicial Review Remedies | Esheria

Republic v Wellington Kihato Wamburu, Director of Criminal Investigations & Inspector General, National Police Service & Attorney General Exparte Kenyatta University, Stephen Njoka Nyaga, Jasper Muriithi Karani & Andrew Mugambi [2017] KEHC 934 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  61 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW  PROCEEDINGS

AND

IN THE MATTER OF SECTIONS 8 AND  9  OF THE LAW REFORM ACT (CAP  26 )  OF THE LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF SECTION 52(1) NATIONAL POLICE ACT, NO.  11A  OF  2011

AND

IN THE MATTER OF DIRECTORATE OF CRIMINAL INVESTIGATIONS, INQUIRY NO.  120 OF  2016   AND COMPLAINANT, WELLINGTON  KIHATO  WAMBURU

BETWEEN

REPUBLIC..........................................................................................APPLICANT

VERSUS

WELLINGTON KIHATO WAMBURU...................................1ST RESPONDENT

THE DIRECTOR  OF CRIMINAL

INVESTIGATIONS..............................................................2ND  RESPONDENT

THE INSPECTOR GENERAL,

NATIONAL POLICE SERVICE...........................................3RD  RESPONDENT

THE ATTORNEY GENERAL….............................................4TH RESPONDENT

EXPARTE

1. KENYATTA UNIVERSITY

2. STEPHEN NJOKA NYAGA

3. JASPER MURIITHI KARANI

4. ANDREW MUGAMBI

JUDGMENT

1. On 28th March 2017, the exparte applicants herein Kenyatta University, Stephen Njoka Nyaga, Jasper Muriithi Karani and Andrew Mugambi obtained leave of court to institute Judicial Review proceedings hereto.  The substantive notice of motion is dated 12th April 2017 and filed in court on 18th April 2017 seeking the following Judicial Review remedies/orders.

1. Certiorari  removing  to the High Court for the purposes of quashing, the letter  dated  9th January 2017 together with the requisitions to compel attendance of the  2nd  and  3rd  and 4th applicants at the Director  of Criminal Investigation  Headquarters, Serious Crimes Unit  on 15th February  2017;

2. Certiorari  removing  to the  High Court  for  purposes  of  quashing  inquiry  No. 120  of  2016  instituted by the  1st respondent;

3. Prohibition directed against the respondents prohibiting  them, through  their agents, from  proceeding with  inquiryNo.120/2016 or in any manner investigating allegations of perjury purportedly arising from Miscellaneous Application No.101 of 2016 Republic vs Kenyatta University and Another Exparte Wellington Kihato  Wamburu.

4. Costs  of the application be provided for.

2. The notice of motion is predicated on the grounds stated in the  statutory statement and verifying affidavit sworn by Aaron Tanui and  annextures, all accompanying the  chamber summons   for leave to  apply dated  14th  February  2017.

3. The exparte applicant’s case is that the 1strespondent  Wellington Kihato  Wamburuwas  admitted to  the  1st   exparte  applicant  Kenyatta  University’s  School of Business on  16th February  2010 to pursue  a Doctor of  Philosophy  Degree  in Business.

4. However, in the course of his thesis proposal writing, it was discovered that he had committed some apparent irregularities in the progression thereof, which affected the integrity of his thesis.

5. The University suspected  that the  1st Respondent had  hired for  a fee, a person to write for him  the proposal  and  even  the main  thesis  and  this was  discovered through email communication between the 1st respondent  and the hired writer.

6. The discovery of irregularities was made after the 1st    respondent  appeared  to fast track  his thesis  writing for graduation purposes without  following the established procedures and hence it was discovered, after  his thesis  was taken   through anti  plagiarism device turnitinthat  he had plagiarized the thesis as it had  a 35%  similarity index thus raising a red flag.  The 1st  exparte  applicant  also received  anonymous  information  concerning  the conduct of the 1st respondent’s supervisor Dr Karanja Ngugi who reportedly allegedly employed young undergraduate students to write theses  on behalf  of  students for a fee.

7. As a result, the University secretly  investigated the matter and established that indeed the 1st respondent had not conducted  the Research  and  or written  the proposal and  thesis  which he was eager to present for examination, and  impending graduation.

8. After verifying the facts, the 1st applicant University suspended the 1st respondent pending his appearance before the Student’s Disciplinary Committee where he would know the case against him and be allowed to defend himself.

9. Following the suspension of the 1st respondent from the University, he lodged Nairobi HCC Miscellaneous Application No. 101 of 2016 Republic vs Kenyatta University and Another Exparte Wellington Kihato Wamburu seeking for Judicial Review orders of mandamus, certiorari, prohibition and declaration.

10. The applicant  sought  to compel the  1st Applicant University to release his  examinations both internal and external, of his thesis for his PhD in Management Science which he had submitted  on  20th March 2015 and that he be enlisted in the graduation list for the subsequent graduation.  He also sought to quash the letter of suspension   dated 25th February 2016  alleging that he had committed examination irregularities.

11. He further sought to prohibit the University from disseminating any defamatory matters against him for alleged examination irregularities and a declaration that refusal/by the University to release his PhD thesis examination results to enable him graduate was a violation of his rights enshrined in the Constitution.

12. The above   case  was heard   and  determined  interpartes before Honourable  Odunga J who delivered  his  judgment  on 19th September  2016  in the presence of  all parties’ advocates.

13. The learned Judge issued certiorari quashing the decision of the applicant University made on 25th February 2016 to suspend the exparte applicant on account of examination irregularities.

14. The learned judge also directed that the disciplinary proceedings be undertaken in accordance with the law within 14 days of the date of  the  judgment and  in default, mandamus to issue compelling  the University to  release for examination both the 1st Respondent’s internal and external the applicant/1st respondent’s thesis for his doctor of Philosophy Degree in Management  Science submitted on 20th March  2015.  The 1st respondent   was also awarded costs of the Judicial Review proceedings.

15. In the course of  those proceedings  in Miscellaneous  101/2016, the  1st  respondent  herein who was  the  exparte applicant in the matter sought, vide notice dated 27th May 2016, to cross  examine the deponent of the replying affidavit sworn by  Professor Wangari Mwai Acting Vice Chancellor  (Administrat     ion), which affidavit  was sworn on 10th March  2016. However, it is alleged that the 1st respondent never cross examined  the  said Acting Vice Chancellor.

16. After the decision in Miscellaneous No. 101/2016 was made, the 1st respondent being dissatisfied with the judgment of Odunga J  filed a notice  of appeal  dated  26th September 2016  on  26th September 2016, seeking to challenge the judgment thereof.

17. To the surprise of the exparte applicants herein, the 1st respondent  lodged a complaint  with the Directorate of Criminal Investigations at the DCI Headquarters Serious Crime Unit   alleging that there was perjury committed by the exparte applicants herein vide the relying  affidavit  sworn on 10th May  2016 by Professor Wangari Mwai, the then Acting Vice Chancellor ( Administration).

18. As a result, the Director of Criminal Investigations opened an inquiry file vide Inquiry No. 120 of 2016 and wrote to the exparte applicants herein Nos. 2,3 and 4 requiring them to attend at the Directorate of Criminal Investigations Headquarters’ Serious  Crime Unit  to answer to allegations  of perjury.

19. In the letter dated 9th January 2017, the  Director of Criminal Investigations through John N. Kariuki wrote to the legal  officer of the 1st exparte applicant notifying him that the  Director of  Criminal Investigation was inquiring  into allegations of perjury that reportedly arose in Miscellaneous Civil Application No.101/2016 a matter that was before the  Constitutional and Judicial Review Division, Milimani, whereby the identified  annexed documents  in the replying  affidavit  had become subject to the said investigations.

20. The Director  of Criminal Investigations  mentioned the  2nd, 3rd and  4th applicants herein as working in the 1st applicant’s  University  to be featuring  in the alleged  perjury  and  therefore  he needed to record their statements and clarification on emerging  key issues.

21. The  1st Exparte applicant’s Legal  Officer  was  requested  to inform the said 2nd-4th applicants  herein to report to the Directorate of Criminal Investigations Headquarters  Serious Crime Unit on  15th February 2017  at  10. 00a.m.  to assist the Director of Criminal Investigations on the same.  It is the said letter that enclosed requisitions to compel attendance for the 2nd, 3rd and 4th exparte applicants.

22. That is the letter which prompted the filing of these proceedings on 14th February 2017 seeking leave of court to institute Judicial Review proceedings challenging the decision of the   Director of Criminal Investigations.

23. The exparte applicants aver that the letter by the Director of Criminal Investigations at the instigation  of the 1st respondent  smacks bad faith, and improper motive because the DCI is purporting to investigate an alleged perjury that occurred in proceedings  which were  determined  by the court, upon which proceedings  the  1st respondent (now  complainant) even sought to  cross examine  the deponent of the alleged  perjured  replying  affidavit but elected not to  carry on  with the cross examination, and that after the said judgment was delivered, the 1st respondent  (complainant) filed a notice of  appeal.

24. It is  also averred  that  furthermore, the  2nd, 3rd and  4th exparte  applicants who are sought to  be investigated were never  parties to the proceedings in Miscellaneous Application  101/2016  and that neither were they deponents of the replying affidavit  subject of investigation by the Director of Criminal Investigations hence the requisition to compel their attendance  at the DCI served  on the applicants  is an attempt to  intimidate and harass the  1st applicant  University officials  and  an abuse  of the  2nd and  3rd  respondent’s  powers of investigations because there  is no way persons who were never parties to court proceedings  which are already determined, and who never swore any affidavits in those  proceedings could be  alleged to have perjured  themselves  in those  proceedings.

25. The applicants therefore pray that the court grants them the orders sought in the notice of motion.

26. The  1st respondent  (complainant) never appeared to respond to the notice of motion.

27. The  2nd, 3rd and 4th  respondents  filed a joint replying  affidavit  on  10th May 2017 sworn by No.100584 PC James  Kalama attached to the Directorate of Criminal Investigations Serious Crime Unit, Directorate of Criminal Investigation Headquarters.

28. PC Kalama deposes that on 7thOctober 2016 the head on investigations  branch assigned the subject complaint  to Chief Inspector Charity Rop to investigate allegations of perjury against the applicants herein, which complaint had initially been  reported  to Kasarani  Police Station  vide OB  No. 42/4/10/2016  but  referred  to  the Directorate of Criminal Investigation Headquarters.

29. That the complainant  Mr Wellington Kihato Wamburu  recorded  a statement citing false testimony by the respondents (applicants herein) in their  replying affidavit filed in  Miscellaneous Civil Application No. 101/2016  on 11th May  2016  which  he believed  amounted to a criminal offence.

30. That the  complainant quoted paragraphs  in the affidavit which annexed  copies  of email communication that he believed  was  a frame up to avert  the course  of justice  and hence became  the subject of investigations and therefore the Director of Criminal Investigation opened inquiry file  No. 120/2016  on 11th October 2016  wherein  an interview  with the  persons  who featured in the said emails was sought because it was discovered that the  email  addresses cited  belonged  to the  2nd, 3rd and  4th exparte  applicants herein and another, Vincent Muli who are all employees of the 1st applicant University,  except  Vincent Muli.

31. That  the  deponent sought  an interview  with the said  ‘witnesses’ but  his efforts were suppressed  and hence the writing of the letter of  10th February 2017 to the Legal Officer of the 1st applicant University and requisitions  to compel  attendance in accordance with  Section  52(1) of the National Police Service  Act.

32. That  the  requisition to compel attendance  was not made in bad faith or for an improper motive as  alleged  but  was  made in the  normal course of investigations in a bid to establish the  authenticity of allegations  raised by the complainant.

33. Further, that there is no abuse of power of the Director of Criminal Investigations but that he is exercising power lawfully conferred on him to compel attendance of persons who have refused to be interviewed in the normal course of investigations.

34. That no finding of perjury has been made and that the  applicants will  suffer no prejudice  if they attend  the interview   to give their  version of the  story hence there is no ground for  Judicial Review orders sought  and therefore the motion  as filed  should be  dismissed  with costs to the respondents.

SUBMISSIONS

35. The parties’ advocates agreed and filed written submissions which they wholly adopted as canvassing the substantive notice of motion.  They also relied on various authorities.

36. The exparte applicant’s submissions were filed on 21st July  2017 reiterating  the grounds and depositions  in support  of their motion.

37. It  was  submitted on behalf of the exparte applicants that this case is  in pari materia with the case  of The Commissioner  of Police and  DCI & another  vs KCB Ltd  & 4  Others [2013] e KLRwhere the senior officials  of KCB Ltd were issued with a requisition to compel their attendance  for  purposes  of criminal investigations into alleged  fraud  on a complaint  of a borrower when there were several  civil suits  between the borrower  and the bank concerning the  advancement  of financial  facilities. That the Court of Appeal held that the actions of the appellants amounted to serious abuse of power, harassment and persecution.  Further, that an oppressive or vexations investigation is contrary to public policy and that police in conducting   criminal  investigations  are bound  by the law  and the  decision to investigate a crime  or prosecute  in the case of  the Director of Public Prosecution 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 and that  in such a case, the court has inherent power to interfere with investigation or prosecution process.

38. It  was  submitted that the alleged  perjury  relates to a replying  affidavit  sworn by  Professor  Wangari Mwai who is not a party  to the  alleged  investigations and that  therefore an attempt  to investigate persons allegedly mentioned in another person’s affidavit for  perjury offends  the  provisions of Section 108(1) of the Penal  Code Cap 63 Laws of Kenya which  defines  perjury to mean giving false testimony touching  any matter which is material  to any question in a pending judicial proceedings or intended  to be raised in those proceedings.

39. It was submitted that as the 2nd -4th applicants were not parties to HC Miscellaneous Application No. 101 of 2016, and as neither did they testify in those proceedings nor swear any affidavits, the Director of Criminal Investigations has exercised his powers unreasonably, in bad faith and with an intention to achieve an ulterior motive by issuing the applicants with requisitions to compel attendance.

40. It is further submitted that the complainant in the alleged perjury case had the opportunity to test the veracity of the said replying affidavit vide a notice of cross examine the deponent thereof issued yet he opted not to pursue  his quest only to  use the criminal process   to harass  and  intimidate  the  applicants and that those acts amount to abuse of power, is malafides and intended to  achieve an ulterior  motive  hence these proceedings should be  allowed.

41. On the part of the 2nd, 3rd and 4th respondents, submissions were filed on 17th October 2017 and raising the issue of: (a) whether the  2nd respondents’  decision to commence inquiry  No. 120/2016 was taken in bad faith and  with improper  motive.

42. The respondents submitted that the 1strespondent is the complainant in the inquiry and the successful litigant in High Court Miscellaneous Application No.101/2016 against the1st applicant herein Kenyatta University and another.

43. The 2nd – 4th respondents deny that the investigations or inquiry were commenced in bad faith or with ulterior motive.  Reliance was placed on Halsbury’s Laws of England 5th Edition, Volume 61 page 475 paragraph 621 on the meaning of improper purpose and bad faith.  In this case, it was submitted that the applicants had not demonstrated and or adduced any evidence of dishonesty or malice on the part of the DCI and or his officers and that the requisition to compel attendance was issued in the normal course of investigations.

44. On the exparte applicant’s reliance on the case of Commissioner of Police & DCI & Another v KCB Ltd & 4 Others,  it  was  submitted that the facts were different from this case in that  the case involved over 18 parties  unlike in this case where infact, there are no pending  proceedings as  there is no record  of Appeal  filed after lodging  the Notice of Appeal.

45. It was further submitted that unlike in the cited case, in this case there is no order for stay barring the 2nd respondent from conducting any investigations into the complaint of perjury lodged by the 1st respondent.

46. The 2nd  -4th respondents  also submitted  that there is no place for cross examination in Judicial Review proceedings and that therefore it is immaterial  whether  the  1st respondent had filed  a notice  to cross examine which he later abandoned.  Reliance was placed on Republic v Mbooni Boys High School exparte Jackson Kiio Miscellaneous Application No. 144/2016where the court held that Judicial Review proceedings are only concerned with the process followed in arriving at the impugned decision and not to dwel on whether documents held by either side are genuine or otherwise as that is an issue which can only be resolved in a merit   hearing before a civil court.

47. Further, that the court in the above Republic v Mbooni Boys High School exparte Jackson Kiio (supra) case held that the case was not a proper one for Judicial Review where there was need to test evidence through cross examination. The 2nd-4threspondents concluded that the applicants will suffer no prejudice by subjecting themselves to lawful investigations as they will have an opportunity to give their version of the story. Further, that no decision has been made to charge anyone yet hence, these Judicial Review proceedings are premature and ought to be dismissed with costs to the respondents.

DETERMINATION

48. I have considered all the foregoing and in my view, the main issue for determination is whether the prayers sought by the exparte applicants are available.

49. Concerning  with the prayers for  Certiorari  to quash  the  letter dared  9th January 2017  together  with the requisitions to compel attendance  of the  2nd, 3rd and  4th  applicants  at the Directorate  of Criminal Investigations Headquarters Serious Crime  Unit on  15th February  2017, I note that the date  on which the applicants  were required to attend the inquiry  as requisitioned is long  gone and therefore the prayer touching on the impugned date is spent.  It would  accordingly be  superfluous  and  a waste of  judicial time  and  resources to  belabour on prayer  No. 1  and  whether or not  it is merited.

50. What remains valid is the  second prayer  for  Certiorari seeking to quash  Inquiry  No. 120  of  2016  instituted  by the 1st respondent; and  the third prayer seeking to prohibit the respondents from proceeding with Inquiry No. 120 of  2016 or in any manner  investigating  allegations of perjury  purportedly  arising  from HC Miscellaneous  Application No. 101  of 2016  Republic  vs  Kenyatta University & Another exparte Wellington Kihato Wamburu.

51. On this second prayer for Certiorari, it is worth noting that Certiorari is an order removing the official record of the impugned decision into the superior court issuing the certiorari or quashing order.

52. The second part of the prayer for Certiorari is the order quashing the impugned decision and the record thereof, thereby wiping the slate clean.

53. Certiorari lies for both jurisdictional and non jurisdictional errors of law appearing on the face of the record.

54. Certiorari is a discretionary constitutional remedy such that  even if  a  substantive  review  ground has  been established  the court may decline to grant it moreso where there is an alternative  remedy, as stipulated  in Section 9(2),(3) and (4)  of the Fair Administrative  Action Act, 2015.

55. The exparte applicants  seek to  quash  the decision of the Director of Criminal Investigations to carry out an inquiry/investigation  into the alleged  perjury by the  2nd -4th applicants with regard to the replying affidavit sworn by  Professor Wangari Mwai in HC Miscellaneous Application 101/2016 wherein  the  1st respondent  was the  exparte applicant  against the  1st  applicant  herein and  another.

56. Part 4 of the Constitution  on the establishment  of the National Police  Service  also creates the objects and functions of the National Police Service at Article  244  of the Constitution and among the objects and functions are to (b) 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.

57. The National Police Service Act in Section 24 donates to the National police Service the power to investigate crime, which power is not absolute. The power must be exercised responsibly and competently in accordance with the laws of the land, the Constitution and in good faith, not maliciously or capriciously.  It therefore follows that it is not in the public interest or in the interest of administration of justice to use criminal justice process to harass or intimidate persons.

58. The police are empowered to investigate crime, to prevent crime  and maintain law and  order. It therefore follows that the court should not whimsically interfere with the power of the National Police Service to investigate and  or prevent crime in our society, for, it is in so investigating and  preventing  crime that  the National Police Service will foster  and promote relationships with the broader society. It is the police that have the mandate of ensuring the security of persons and property and as agents of the state, they are obliged to create an enabling environment for citizens and all other persons to enjoy their fundamental human rights and freedoms.

59. Article 215(4) (a) of the Constitution gives to the Inspector General of Police the power to investigate any particular offence or offences. Investigation of crimes results in accountability of suspects before the law.  Accordingly, courts, when faced with applications that tend to curb the powers and functions of the police, must refrain from  unnecessarily interfering with that power.

60. Section 28 of the National Police Service Act stipulates the functions of the Directorate of Criminal Investigations. However, in exercising investigate powers, the police must comply with the law, and the decision to investigate crime 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 vilifications.  In such instances, the court  has inherent  power to  interfere with such  flawed investigations process. This is what the  Court of Appeal held in CA 56/12 The Commissioner of Police  & The Director of Criminal Investigation & Another  vs Kenya Commercial Bank Limited  & 4 Others[2013] e KLR, citing with approval Githunguri vs Republic [1985] LLR 3090.

61. The Court of Appeal  in the above CA 56/2012 further 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  Director of Public Prosecutions) 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 and  that the court has  residual  power  to interfere  with such  investigations  process(citing Ndama v Republic [2002] 1 EA 205 and Kuria  & 3 Others  v Attorney  General [2002] 2 KLR  69.

62. The question  that must be  answered  in this case is whether the Director of Criminal Investigations  in opening  an inquiry  file No. 120/2016 to inquire  into alleged  perjury  by the exparte  applicants regarding the affidavit sworn in High Court  Miscellaneous Application No.110/2016 where the 1st respondent  and the  1st exparte  applicant  were  parties, which  affidavit was sworn by Professor Wangari Mwai  the Acting Vice Chancellor (Administration), the Director of Criminal Investigation was abusing his powers and or acting  unreasonably, malafides  abusing  legal process  or the inquiry  was intended  to achieve an  ulterior  motive and  used as a tool to settle personal scores and vilification, intimidation or harassment of the exparte  applicants.

63. The court notes that the genesis  of this matter is  the alleged  examinations irregularities allegedly committed by the 1st  respondent PhD student at the 1st exparte applicant’s  University. The University alleged that the 1st respondent/complainant had hired people to write for him his thesis proposal and final thesis which was an examination  irregularity  and so  the University  put his graduation  on hold and suspended  him pending his appearance before  the  Students  Disciplinary  Committee.

64. The 1st  respondent  was not satisfied with  the  decision of  the  University  and sought redress  in court vide Miscellaneous Civil Application No. 101/2016 seeking  for  Judicial Review order of certiorari, prohibition and mandamus against the University.  The case   was determined in his favour  by Odunga J but  there  was no claim in that case that the University relied on false testimony  to purport to discipline  the  1st  respondent.

65. The replying affidavit in that case was sworn by Professor  Wangari Mwai (Acting Vice Chancellor Administration) wherein she  annexed documents  which include  email  communication  allegedly exchanged between the  1st respondent and the people  who wrote for him the proposal and the thesis at an agreed  monetary fee. There is also communication from an anonymous   whistle blower whose identity was not revealed to protect himself from being exposed to what appeared to be a cartel of thesis and project writers for students at the University thereby compromising academic standards at the University.

66. In the said Judicial Review proceedings, the 1st respondent had issued a notice of intention to cross examine Professor Wangari Mwai on her replying affidavit but he gave up and now the  respondents claim that judicial review proceedings are not meant to be decided on the basis of evidence and documents but to challenge the decision- making process.

67. The court notes that the deponent of that affidavit which is  alleged to have been a perjury, is not one of the  suspects  sought to  be questioned for alleged  perjury.  The persons who are being investigated are said to be the owners of the email addresses from which information on the 1st respondent’s examination   irregularities emanated  or  was communicated to.

68. Sector 108(1) (a)  of the Penal Code  Cap 63  Laws of Kenya  defines  the offence of perjury as the giving of false testimony touching  any matter  which is s material  to any question  then pending in judicial proceedings or intended to be raised  in those proceedings.

69. In this case, there were and  are  no pending judicial proceedings  since the  respondents  contend  that in any  event, the  notice  of appeal was never pursued as an appeal. There is also no evidence  that there is  any intention to use the alleged  perjured  affidavit in the proceedings which, in any event, were determined by Odunga J without the issue of perjury being  raised. Allegations of perjury should have been raised in Miscellaneous Application No. 101/2016 Wellington Kihato  Wamburu v Kenyatta  University and another, not to be  raised after  the  event, or  the  fact. Furthermore, perjury is the giving of false testimony in judicial proceedings.

70. In this case, it   has not been demonstrated that the respondents   gave any testimony or swore any affidavits which could be considered to be false testimony.  The  2nd-4th  applicants never  swore  any affidavits  in Miscellaneous Application  101/2016   and  neither  did they give any  sworn testimony therein.

71. The National  Police Service  is  expected to demonstrate  a high level of competence and integrity in their investigative role. That competence must be  demonstrated  in their decision  making processes  and  conduct of investigations.

72. A competent  investigation would  first start  with understanding  the nature of the offence which is being investigated into and without understanding the nature of the  offence, the investigator  will be chasing the wind  and wasting  valuable  time and  scarce public  resources going  round the circles  to end up  with a civil suit  for compensation for breach  of violations  of human rights and  fundamental freedoms, or for malicious prosecution.

73. In my  humble  view, a reasonable  investigator  would, before  opening  an inquiry  file, seek to understand  the nature  of the  offence to  be inquired into. Where  it is clear  that the  persons  being inquired/investigated  for perjury  did not  give any  evidence  before a court of law  or  swear any  affidavit  which  was  used to or intended  to be used  in judicial proceedings, it would  be frivolous, vexatious   and abuse of power and  legal process  to call upon  that  person to answer  questions as  suspects  in an alleged  perjury!

74. It smacks  of incompetence  on the  part of the investigator  to allege  that they  are investigating  the  applicants  herein on the basis  of a replying affidavit  sworn  by a different  person and  used  in court  proceedings  which proceedings  were determined in favour  of  the applicant  without the court  conducting  those proceedings being  alerted  that the said  replying  affidavit was  false  testimony  and  therefore  seeking  to have  the deponent  perjured.

75. In addition, nothing prevented the 1st respondent  from executing his intention to cross examine the deponent of the  said  affidavit   to establish the truthfulness of otherwise of the depositions  therein, in accordance  with the provisions of  Order  19  of the Civil Procedure Rules, to establish the bona fides  of the averments  in the affidavit.

76. Further, if that  affidavit  contained  allegations which were vexations, oppressive and scandalous of the 1st respondent  nothing  prevented  him from  applying to have the entire affidavit or parts thereof  expunged  there from.

77. Albeit the respondents claim that Judicial Review proceedings do not require cross examination or adduction of evidence because they are concerned with decision making process not merits of the case, cross examination on an affidavit is a discretionary  power  vested in the court under Order 19 Rule  2 of the Civil Procedure Rules and is not given as a matter of right.  It therefore follows that any party who wishes to cross examine a deponent must satisfy the court that there is good reason for the purpose of cross examination.

78. Order  53  of the Civil Procedure Rules  which is the  procedural  law in Judicial  Review matters commenced  under Sections  8 and  9  of the Law Reform  Act recognize the use  of affidavits  in evidence, this court is not persuaded that where there  is  legal foundation for cross  examining  a  deponent  in Judicial Review proceedings, it would refuse to allow for cross examination of a deponent in order to enhance the course of justice.  For example, where perjury, fraud or bad  motive is alleged  or where there is a conflict of affidavits  on record.

79. In Judicial Review proceedings, inherent power can be exercised to allow cross examination of a deponent  on his affidavit (see Korir J in Republic vs CDF & Another  Exparte  Rober Litaramwa Ochale  & 5 others [2012] e KLR.

80. What I see in the impugned replying affidavit are averments by the Acting  Deputy Vice Chancellor Administration that the 1st applicant  University undertook a clandestine investigation  and  discovered  from the  sources which were disclosed, that the  1st respondent  worked  with Dr Karanja Ngugi   his thesis Supervisor to have his thesis  written   for  him by  undergraduate  students employed  by Dr Ngugi.

81. If there were incorrect statements made in that affidavit  amounting  to perjury, nothing prevented  the 1st  respondent  who was ably  represented  by an advocate at the hearing  in Miscellaneous Application No. 101/2016, to raise  before that court or to seek leave of court to have the deponent thereof  investigated for perjury on the basis  of that replying  affidavit  .

82. According to the 1st respondent, the inquiry is meant to establish  the veracity  of the emails  and shed more  light as  to the source, the author  and the veracity  to the matters  touching  on or affecting   his pursuit  of PhD Thesis  at the university.

83. However, the view  of this court  is that  seeking information on the sources  of the  information in the affidavit  is different  from the perjury  alleged  against the  applicants  and  which the  2nd- 4th respondents  concede  they were  investigating.

84. Those emails are not affidavits in themselves therefore they cannot be perjured. The sources of information cannot be perjured where that source is not a testimony in itself, presented efore a court of law.

85. My humble view is that the  respondents  in employing  criminal process  to assist the  1st respondent  establish the source  of the  information contained in the replying affidavit sworn by a person  other than  the persons  under inquiry,  the  respondents  were abusing  the criminal  process and therefore no good faith can emanate from such an investigation.

86. In my view, it isa  traversity of justice for the Directorate of Criminal Investigations to be involved in the settlement of the serious dispute between the 1st applicant University and 1st respondent Student over alleged examinations irregularities.

87. In my view, that venture by the DCI was meant to intimidate the 1st applicant University to cow it from instituting investigations into the alleged examination  irregularities and  or from carrying  out disciplinary proceedings  against  the  1st  respondent for  alleged  examination  irregularities.

88. As was held in CA 56/2012, the police should direct their energies and   resources   to  the prevention of crime which we  all know  is rampant in this country  and is about  to get out  to control instead of wading  into issues  which should be left to the  University  administration  to undertake  their mandate  in ensuring  the  integrity of examinations administered  to students is maintained.  The police should be kept out of matters of student discipline, unless thereis apparent breach of peace.

89. For the above reasons, I have no hesitation in finding and holding that the prayers sought in the notice of motion at prayers No. 2 and 3 are merited.

90. Accordingly, I hereby grant the application dated 12th April, 2017 and call into this court  for  purposes of quashing  and  I hereby  quash  the inquiry  No. 120 of 2016   instituted by the respondent Directorate of Criminal Investigations  against  the  2nd-4th  exparte applicants.

91. I further  issue an  order prohibiting  the respondents from proceedings with  Inquiry  No. 120/2016  or in any manner  investigating  allegations  of perjury  arising from High Court Miscellaneous  Civil application No.101/2016 Republic vs Kenyatta  University  & Another  exparte  Wellington Kihato Wamburu.

92. I order that each party shall bear their own costs of these judicial Review proceedings.

Dated, signed and delivered in open court at Nairobi this 18th day of December, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Muema h/b for G. Mwangi foir the exparte applicants

Mr Munene h/b for the 2nd, 3rd and 4th Respondents

N/A for the 1st Respondent

CA: George