Rukia Athman Mwarunda v Inspector General of Police, Director of Public Prosecution, Director of Criminal Investigation Department, Officer commanding Mtwapa police station, Attorney General & James Gachau Kirathe [2015] KEHC 3020 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT  AT MALINDI

PETITION NO.5 OF 2015

IN THE MATTER OF :  ARTICLES 20, 22, 23, 24, 47, 50 & 55 OF THE CONSTITUTION OF KENYA 2010

BETWEEN

RUKIA ATHMAN MWARUNDA .......................................................................................PETITIONER

AND

THE INSPECTOR GENERAL OF POLICE..........................................................  1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION............................................................ 2ND RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATIONDEPARTMENT.............................3RD RESPONDENT

THE OFFICER COMMANDING MTWAPA POLICE STATION.............................4TH RESPONDENT

THE HON. THE ATTORNEY GENERAL ...............................................................5TH RESPONDENT

JAMES GACHAU  KIRATHE.................................................................................6TH RESPONDENT

RULING

The Notice of Motion dated 28/4/2015 seeks the following two prayers:

1)      ...........................................................................................................

2)      That pending interpartes hearing of this application and petition, a conservatory orders do issue restraining the respondents or any person acting under their authority from arresting, detaining, charging and/or prosecuting the petitioner with any purported offences of trespass on the properties with alleged title numbers 5318, 5319, 5320, 5321, 5322, 5323, 5327, 5333, 5350, 5353, 5352,5356, 5357, 5358, 5361, 5362, 5363, 5364, 5365, 5366, 5367, 5368, 5369, 5370, 5371, 5372, 5373, 5374 and 5375 section III Mainland North allegedly belonging to James Gachau Kirathe.

3)      That pending hearing of this application and petition, a conservatory orders do issue restraining the respondents or any person acting under their authority from proceeding with the prosecution and continuation of the criminal proceedings commenced against the petition at the Shanzu Law Courts in Criminal Case No. 174 of 2015, Republic -vs- Rukia Athman Mwarunda.

The application is supported by the affidavit of the applicant sworn on 28/4/2015. The respondent filed a replying affidavit sworn by Corporal Good Mufoya on 27/5/2015.

Mr. Obaga, counsel for the applicant relied on his written submissions. Counsel further maintains that the powers of the Director of Public Prosecution to prosecute are not absolute.They are subject to the bill of Rights under the Constitution. The Court has powers to interrogate the evidence before one is charges and should not allow a person to undergo a criminal trial yet the evidence does not show any criminal offence.

It is submitted for the applicant that the evidence in the criminal case facing the applicant cannot sustain a charge of trespass under section 3 (1) as read with section 3 (2) of the Trespass Act. The complainant in his witness statement alleges that he is 50 years old yet the title deeds proving his ownership of the land in dispute is alleged to have been issued on 24th January 1927.  The complainant on one hand alleges to be the original allottee while on the other hand claims to have purchased the land in 2009.  Counsel for the applicant maintains that  the court has powers to arrest the situation and stop the applicant's prosecution before the trial court.

Mr. Nyongesa, prosecution counsel, opposed the application. Counsel maintains that whether the complainant's titles are fake or not cannot be the basis for stopping the prosecution.  The trial court will deal with the issue. Those who issued the title deeds can testify.  The powers of the DPP to prosecute cannot be capriciously curtailed. No malice has been established  on the part of the DPP.

In her supporting affidavit, the applicant avers that she has been living on the suit land since time immemorial. The 6th respondent went to the land and started demolishing houses while putting up a perimeter wall. It is also avered that she was charged in court with the offence of tresspass on 20th February 2015 and was released on bond.  The applicant maintains that the 6th respondent's titles are not genuine.

I have read the entire  petition, the supporting affidavit together with all the annextures, the witness statement of James Gachau Kirathe and the replying affidavit.  Although the applicant alleges that she has lived in the suit land since time immemorial, there is no evidence to support that allegation.  At the very least, I would have expected the applicant to exhibit photographs of her home as well as the houses demolished by the 6th respondent or some crops planted on the land.  The applicant alleges that she has been forced to go into hiding due to persistent threats.  She is already charged in court  and has nothing to fear.  The police can prefer more charges if they deem it fit.  There is no evidence of long  term occupation of the land by the applicant.

According to the complainant, he bought the land in 2009 and sub-divided it into several sub-plots.  The applicant and others invaded the land on 13th February, 2015 and started clearing bush and  sub-dividing his land. Once any Kenyan makes such a complaint, the police are bound by the law to carry out investigations.  The applicant cannot rely on the alleged default in the complainant's titles to claim ownership of the land.  The applicant is at liberty to file a civil suit and claim ownership of the land as well as challenge the complainant's titles.  In the meantime, the complainant's claim to ownership of the land cannot be simply overlooked or dismissed.  The issues raised  by the applicant as to the period from when the complainant's ownership started running are valid but those issues do not confer any title on the applicant.

I do find that there is no abuse of the prosecutorial powers by the respondents.  The Constitution safeguards Kenya's property and there is no violation of the applicant's rights.  I do find that the application dated 28/4/2015  lacks merit and is hereby dismissed  with no order  as to costs.  The interim orders are hereby vacated.

Dated, signed and delivered at Malindi this 3rd   day of  September, 2015.

SAID J. CHITEMBWE

JUDGE