Sylvester Gaitano Odhiambo v Republic [2022] KEHC 1577 (KLR) | Abuse Of Process | Esheria

Sylvester Gaitano Odhiambo v Republic [2022] KEHC 1577 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(Coram: Odunga, J)

MISCELLANEOUS CRIMINAL APPLICATION NO. 182 OF 2019

BETWEEN

SYLVESTER GAITANO ODHIAMBO............................................APPLICANT

VERSUS

REPUBLIC.......................................................................................RESPONDENT

RULING

1. These proceedings were commenced by a Notice of Motion dated 22nd November, 2019 in which the applicant substantially sought an order terminating the proceedings in Mavoko Criminal Case No. 156 of 2016 on the ground that the said proceedings arose from a civil dispute  and that the said proceedings were commenced with a view  to assist the complainant to illegally retain his land notwithstanding that there was a civil suit being Kajiado  Civil Suit No. 110 of 2018 touching on the same subject land which had been dismissed on 6th December, 2018. The applicant also sought an order directed at the complainant to vacate the suit land being LR No. Kajiado/Kaputei North/37766. It was also sought that the said criminal case be handled by a different prosecutor and in a different court as the applicant was apprehensive of getting a fair trial.

2. In support of the application the applicant swore an affidavit in which he deposed that upon his arrest he joined in Criminal Case No. 156 of 2016 before the Senior Principal Court, Mavoko. By the time he was being joined on 3rd February, 2017 the matter had been heard for a period of one year. According to him, the matter touches on land transaction in respect of LR No. Kajiado/Kaputei North/377662 between the 2nd complainant and the 1st accused in which the 2nd complainant claims that he bought the said land from the 1st accused. However, the said land was in the applicant’s name who is the bona fide/legal owner thereof having bought the same from Handicap Holdings on 11th January, 2011. The 2nd complainant however claims that he entered into a joint business venture with the 1st accused in which he granted the 1st accused Kshs 5000, 000/- and a sale agreement was entered into in August, 2015.

3. According to the applicant, the 1st accused showed the complainant the applicant’s land and pretended it to be his and then moved into the land where he has been doing farming business. As a result, the complainant filed two civil suits before Milimani Court and Kajiado Courts and by a ruling of 16th December, 2018, the Kajiado Court dismissed the matter with costs to the plaintiff.  Notwithstanding the dismissal of the suit, the complainant continued occupying the land while pursuing the criminal process against the applicant at the same time. The applicant complained that the Complainant and the prosecutor hatched a plot to ensure that he remained in custody while he continued to illegally occupy his land.

4. According to the applicant the criminal process was commenced in bad faith the purpose of having him locked away to keep him away and enable the complainant to illegally occupy his plot. In his view the criminal process is being used as a means of assisting the Complainant achieve what he failed to achieve through the civil process. He contended that the complainant has even gone ahead to privately meet with the trial magistrate in the company of the prosecutor and in his absence hence pointing out to infiltration of the case by external forces leading to his apprehension that he might not get a fair trial.

5. The applicant disclosed that the complainant informed his wife that he would do everything to ensure that he retains the applicant’s land through the criminal process. According to the applicant, he is being used a s a pawn in the game between the 1st accused and the complainant with a view to achieve goals which are divorced from the pursuit of justice.

6. Subsequently, the applicant filed another Motion in which he sought the following orders:

1) THAT: This application to be certified as urgent and the same to be heard and determined on priority basis and in the interest of justice.

2) THAT: The Honorable court to be pleased to issue an order of Stay of Proceedings in the matter at the Chief Magistrates Court under Criminal Case No. 156 of 2016 pending hearing and determination of this Miscellaneous Application.

3) THAT: The Honourable court to be pleased to issue an interim order/relief by lifting the warrant of arrest issued against the applicant by the trial court on the 14th of February 2022 since the same was unprocedural, unreasonable and unfair contrary to Article 47(1) of the Constitution of Kenya 2010 and on Fair Administrative Action Act.

4) THAT: The Honorable Court to be pleased to declare that the applicants bond and bail terms to remain in force and the same should not be interfered with whatsoever since the applicant had not contravened the bond and bail terms prior to the material date of 14th February 2022 therefore the action by the learned trial magistrate to issue an arrest warrant was uncalled for.

5) THAT: The Honorable Court to be pleased to order that the matter before the current trial magistrate to start de novo pursuant to the provisions of section 200(3) of the of the Criminal Procedure Code.

6) THAT: The Honorable court to guarantee and safeguard the applicant`s constitutional rights to bond and bail as enshrined in Article 49(1)(h) of the Constitution and fair trial as envisioned in Article 25(C) and 50(2) of the Constitution of Kenya 2010.

7) 7. THAT: The Honorable court to declare that the applicant has a right to be subjected to a fair administrative action which is just, reasonable, lawful and procedurally fair as stipulated in Article 47(1) of the Constitution of Kenya 2010.

8) THAT: This Honourable court to issue any other appropriate order, declaration or relief as it may deem fit to uphold and safeguard the applicant`s basic fundamental rights and freedoms as stipulated in the Constitution of Kenya 2010.

7. The application was supported by an affidavit sworn by the applicant in which he deposed that he was arrested and charged with the offence of Conspiracy to commit a felony contrary to section 393 of the Penal code and later a second count of obtaining by false pretences contrary to section 313 of the Penal Code on the 1st of February 2017. He was thereafter granted a cash bail of 30,000/= (Thirty Thousand Shillings Only) which he paid on the 15th of September 2017. It was his averment that he has not absconded court ever since he secured his release from remand prison and have dutifully and faithfully attended all the courts proceedings whenever required to.

8. He averred that on 14th of February 2022, when he was meant to attend the court for his defence case, he fell ill and instructed his advocate to inform the court of his indisposition and to present a medical chit. Despite his advocate doing so, the trial magistrate proceeded to issue a warrant of arrest against him.

9. It was his averment that the action by the learned trial magistrate caused him great anxiety and psychological torture as the same was not done in good faith and was contrary to Article 47(1) of the Constitution of Kenya and also contrary to Fair Administrative Action Act 2015. The Applicant averred that when the previous trial magistrate went on transfer in the month of September 2021 and the matter was taken over by a new trial magistrate, a ruling was delivered by which it was directed that the matter proceeds from where it had reached.

10. According to the applicant, the said decision aggrieved him because there are several underlying issues which the trial court refused to address itself to wand the said ruling was also based on a misrepresentation of facts by the prosecution who misled the court that the pending Miscellaneous Criminal Application before this Court had already been dismissed, a position which was not true. The applicant lamented that he stood to be greatly prejudiced by the orders issued by the current trial magistrate and therefore sought orders that the said orders/ruling to be over turned/ quashed in the interest of justice. In his view, justice shall only be served if the orders sought herein are granted immediately.

11. In support of his case the applicant submitted that the issue of there being a lack of impartiality was raised long before the trial court delivered a ruling on a Case to answer. According to him, he started raising pertinent issues touching on the matter before the trial court right from the initial stage with the first application having been filed on the 22nd January, 2018. Thereafter, he followed up with several other applications made in open court both oral and in writing. However, all these applications made before the trial court were either ignored or brushed off and at times, the learned trial magistrate just bluntly gave out an outright rude and undeserving answer while at times, she just assumed and kept quite without even uttering a word.

12. The applicant submitted that he indulged the learned trial magistrate concerning the conduct of both the prosecutor and the complainant on three different occasions and even raised his concerns and fears as far as fair trial is concerned and the learned trial magistrate at one time told him to seek redress at the High Court if the applicant is not satisfied with the way the trial was being conducted.

13. It was submitted that some of the proceedings were never recorded by the learned trial magistrate. To the applicant, the issue of putting the courts records of the proceedings straight or capturing details in the proceedings cannot be over emphasized since the same has a direct bearing on fair trial, since the end result of any given trial in a court of law entirely depends on the records of the proceeding. Reliance was placed on the case of Morris Kinyalili Liema – vs – Republic (2012) KLR,where it was held that

“official written records do not lie or at least, they are not supposed to……….”

14. According to the applicant based on the affidavit sworn by his spouse Susan Anyango Onyango there is evidence that there is external influence or interference in the matter as the said sworn affidavit dated 12th October 2019 talks of the meeting between the trial magistrates, the prosecutor and the complainant inside the magistrate’s court chambers on two different occasions; in the month of May 2019 and also in September 2019. According to the applicant it is against the tenets of fair trial for a trial magistrate to meet with the complaint and the prosecutor in the absence of the accused person. The applicant narrated the events surrounding the matter and insisted that this application was not filed as an afterthought but rather, all the issues raised herein have been predominant during the trial before the lower court.

15. The applicant identified instances which according to him showed lack of impartiality in the matter before the Chief Magistrate’s Court at Mavoko. These, according to him were the insistence by the trial magistrate to proceed with the matter after this court directed that the lower court file be returned to the trial court for the purposes of issuance of the release order; the delivery of  a ruling under section 200 of the CPC based on a misrepresentation of facts that Miscellaneous Criminal Application Number 182 of 2019 had been dismissed and there was no order staying the proceedings at the lower court; and the issuance of an arrest warrant against him notwithstanding the fact that his counsel  presented medical evidence as proof that he was unwell. In support of his submissions the applicant cited the holding of the Supreme Court in the Constitutional Petition No.15 and 16 of 2015- Francis Karioko Muruatetu and Others – vs – The Attorney General, that:

“Fair trial is the cornerstones of a just and democratic society without which the rule of law, the rule of natural justice and the faith in the justice system would inevitably collapse.”

16. He also citedShilenje – vs – The Republic (1980) KLR 132. While he had no problem with both the civil and criminal cases proceeding concurrently his concern was that the complainant was using the court’s platform to pursue his own selfish interest. The Applicant asserted that the complainant instituted this criminal proceeding with the sole purpose to prolong his stay in custody by tying him with several cases in different jurisdictions and to also continue reaping maximum benefits in my land. It was his submission that the complainant’s claims were unsupported and could not hold water.

17. The applicant then went on to dwell on other matters that according to him revealed that the case against him was unmerited hence the justification for granting the orders sought in this matter.

18. In response to the application the Respondent relied on the following grounds of opposition:

1) That the instant application is frivolous, vexatious and an abuse of the court process.

2) That under sec 193(A) of the criminal procedure code, civil and criminal cases can go hand in hand.

3) That this Honorable Court has no jurisdiction to Order for vacant possession as this is a criminal trial.

4) That this court cannot Order the complainant in Mavoko criminal case no. 156 of 2016, to compensate the applicant as the complainant is not a party to this miscellaneous application.

5) That the restrictions placed on the parcels no. Kajiado/kaputei north/37766 & 37773 were placed there procedurally and legally to preserve the parcels of land from being disposed of.

a. That the instant Application does not meet the legal requisite for the Orders sought.

19. It was submitted on behalf of the Respondent that the applicant did not raise any issue with the prosecutor at the trial court yet he should have raised the issue immediately when the matter came to court that he had concerns with the prosecutor handling the matter but he let the matter proceed till the court decided that he had a case to answer.  Indeed, the Applicant’s perception that the court was biased arose when the court made the ruling that he had a case to answer and placed on his defense. According to the Respondent, the allegations that the Applicant made regarding seeing the prosecutor enter the trial magistrate’s chambers would have been addressed by the court if at all that happened since its basically hearsay as he was informed by his wife.

20.  According to the Respondent, it is a fact that there is a constant interaction between a magistrate and a prosecutor in the course of performing their duties while conducting criminal trials and that some of the duties are performed in open court while others are performed in chambers in day to day proceedings. According to the Respondent, there is no evidence from the assertion made by the Applicant that the conduct of the prosecutor was anything other than the normal course of conduct of court proceedings and that no cogent evidence was placed before the court to support the allegation of bias on the part of the prosecutor as alleged by the Applicant. In addition, the allegations of bias made against the prosecutor has no basis in law and cannot be legally sustained. Reliance was placed on section 107 of the Evidence Act, and it was submitted that from the records there is no evidence to warrant this court interfere with the trial proceedings against him apart from mere allegations.

21. The Respondent also relied on Section 193(A) of theCriminal Procedure Codeand submitted that the fact there is pending matter in civil Proceedings does not act as bar to criminal action. Further reliance was placed on the decision of Ngaah, J in Stephen Mburu Ndiba – vs- Ethics & Anti Corruption Commission &Another [2015] eKRLin which he stated thus:

“It is beyond peradventure then that the existence of a civil suit per se cannot be a bar to criminal proceedings simply because the subject matter in the criminal proceedings is directly in issue or substantially in issue in the pending civil suit. Where civil proceedings exist side by side with criminal proceedings, the latter would only be stayed or terminated altogether if there is every indication that they were initiated to bring pressure to bear upon a party to settle the civil suit:  in that regard, the criminal proceedings are for ulterior motives and not for the purpose of which they are meant, which is, upholding criminal law.”

22. In this case, it was submitted that there is no evidence of pending civil proceedings touching on the same issue the applicant did not provide any evidence before this court that there are other civil matters on the same subject pending before court just a mere allegation as stated in his application since if there were any other civil proceedings on the same he would have attached the same as evidence.

23. In his submissions the Respondents relied on Article 157 of the Constitution of Kenya and submitted that the Constitution gives the Respondent the right to institute criminal prosecutions against any person; hence the matter brought against the applicant in the trial court was done professionally, procedurally and legally as per the law. A complaint was brought against the applicant as testified by the investigating officer in the trial court and the police conducted their investigation and preferred charges against the applicant, took him to court to answer the charges and witnesses testified against him all done according to law. The respondent exercised his constitutional right to institute charges against the applicant according to the evidence brought by the investigative body i.e. the police, further the allegations that the complainant is using the respondent to institute criminal proceedings in order to punish him is unsubstantiated with no evidence since the respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority as per Article 157 of the Constitution of Kenya 2010.

24. It was contended that from the court proceedings, the applicant was charged in court on 8/11/2016 after the trial had began and charges were read to him, matter started de novo and was granted bond of Kshs. 500,000 with surety of similar amount or cash bail of Kshs. 100,000 plus a contact person or remain in custody. The applicant’s allegation that he remains in custody is a mere allegation since he was granted bond terms with no objection whatsoever from the prosecution according to his constitutional right and further he made an application dated 17/03/2017 for reduction of the bond terms and on 2/5/2017 the court ordered that the contact person ordered in addition to the bond terms done away with and further on 12/5/2017 the cash bail was reduced to Kshs. 50,000, then further to Kshs. 30,000 on 21/7/2017 despite the prosecution’s objection on the same.

25. It was contended that the matter is now at defence hearing and there is no evidence that the matter has been stalled to keep the applicant in custody. The delay, it was submitted, was occasioned by the fact that the 1st accused person absconded and had to be traced and a warrant of arrest issued against him as the matter could not continue in his absence. After sometime the case against the 1st accused was withdrawn under Section 87(a) of the Criminal Procedure Code and the matter proceeded to the close of the prosecution case. The trial court ruled that the prosecution had established a prima facie case against the applicant and he was placed on his defense, hence the allegation that the matter has been stalled is unfounded and this application is only mend to delay the course of justice.

26. According to the Respondent, there is no evidence of any order issued by the court requiring the respondent to remove the caution and restriction hereto and further that the process of entering a caution was duly done by the law hence no illegality was made. Further, there is no evidence that the applicant made the application contemplated in Sections 73 and 78 of the Land Registration Act cited above. Whilst this court has power to order for removal of the caution/restriction herein, it was submitted that it cannot do that through a process where the cautioner or his legal representative has not been given an opportunity to participate. In the circumstances of this case, it is the respondents considered view that the applicant should invoke the process provided in Section 73(2) (3) (4) of the Land Registration Act, 2012 as it is only through that process that it may be determined that there is no person with an interest in maintenance of the caution.

27. As regards recusal, it was submitted that the court hearing the matter is not, indeed it cannot, go into the question of whether the officer is or will be actually biased. All the court can do is to carefully examine the facts which are alleged to show bias and from those facts draw an inference, as any reasonable and fair- minded person would do, that the judge is biased or is likely to be biased. The Respondent relied on the case of Patrick Ndegwa Warungu vs. Republic in the High Court at Milimani Criminal Application No. 440 of 2003 and it was submitted that the laws of Kenya provide essential safeguards for a fair trial which is enshrined in the Constitution. It has not been demonstrated that the applicants will not be accorded a fair trial before the subordinate court to warrant the granting of the orders sought. The applicant will have his day in court with opportunity to tender his own evidence and defend himself.

Determinations

28. I have considered the parties’ respective cases, as contained in their affidavits as well as submissions on record.

29. The issues in this matter are twofold. Firstly, the Applicant contends that the prosecution is using the criminal process in order to achieve what the complainant has failed to achieve through the civil process. It is contended that the complainant’s aim is to have him locked away to keep him away and enable the complainant to illegally occupy his land being LR No. Kajiado/Kaputei North/377662 which the 2nd complainant claims to have bought from the 1st accused yet the said land is in his name having bought the same from Handicap Holdings on 11th January, 2011. Accordingly, the applicant seeks that the said criminal proceedings be terminated.

30. The second issue is that the manner in which the said proceedings are being conducted is unfair as the prosecution and even the court has conducted the same in manner showing partiality and in a manner prejudicial to the applicant. He therefore seeks that the prosecution of the matter be conducted by another prosecutor and a different magistrate.

31.  It has been held time and time again the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. An applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.

32. In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:

“It is trite that an Order of Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

33. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69,the High Court held:

“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 utilisation is far that which the courts indeed the entire system is constitutionally mandated to administer...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 utilise 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 utilised. 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 the Court 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...”

34. In Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 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 or 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 fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a 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 put 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 thereunder, 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 thatulterior motive and that is when the High Court steps in...”

35. I also agree with the decision in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 that:

“A criminal 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.”

36.   Clearly, therefore whereas the discretion given to the 1st respondent to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised in the wider interest of the public. Otherwise if the Court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence, the Court will not hesitate to bring such proceedings to a halt. It is, however upon the applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute is being abused and ought to be interfered with.

37. This burden and standard was expounded in Kuria & 3 Others vs. Attorney General (supra) where it was held:

“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 are 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.”

38. Similarly, in Republic vs. Attorney General & 4 others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR this Court expressed itself a follows:

“Before dealing with the issues raised herein, it is my view that the principles guiding the grant of the orders in the nature sought herein ought to be reiterated. Several decisions have been handed down which in my view correctly set out the law relating to circumstances in which the Court would be entitled to prohibit, bring to a halt or quash criminal proceedings. It is however always important to remember that in these types of proceedings the Court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings. As judicial review proceedings are concerned with the process rather than merits of the challenged decision or proceedings the court is not entitled to make definitive findings on matters which go to the merit of the impugned proceedings. In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial Court. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.”

39. It must always be remembered that such applications do not deal with the merits of the case but only with the process. In determining the process the Court will inquire into such issues as whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters, whether the decision was irrational or tainted with such other factors as biased and whether the decision breached the legitimate expectations of the aggrieved person. This list is however not exhaustive. It follows that where an applicant sets out to have a determination on contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such issues. In those circumstances the parties are better left to resort to the normal forums where such matters ought to be resolved on their merits. It follows that judicial review proceedings are not the proper legal regime in which the innocence or otherwise of the applicant ought to be determined and a party ought not to institute such proceedings with a view to having the Court determine his innocence or otherwise as to do so in my view amounts to abuse of the judicial process. What is paramount is the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the Court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, within the legal parameters recognised for the conduct thereof, the High Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.

40. A word of caution is however necessary with respect to the exercise of the discretion to prosecute. Whereas Article 157(10) of the Constitution provides that the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority, Article 157(11) provides:

In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

41. Apart from that, section 4 of the Office of Public Prosecutions Act, No. 2 of 2013 provides:

In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—

(a) the diversity of the people of Kenya;

(b) impartiality and gender equity;

(c) the rules of natural justice;

(d) promotion of public confidence in the integrity of the Office;

(e) the need to discharge the functions of the Office on behalf of the people of Kenya;

(f) the need to serve the cause of justice, prevent abuse of the legal process and public interest;

(g) protection of the sovereignty of the people;

(h) secure the observance of democratic values and principles; and

(i) promotion of constitutionalism.

42. 65. It is therefore clear that the current prosecutorial regime does not grant to the DPP a carte blanche to run amok in the exercise of his prosecutorial powers. Where it is alleged that the standards set out in the Constitution and in the aforesaid Act have not been adhered to, this Court cannot shirk its Constitutional mandate to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that:

“the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…….. In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.”

43.  Where therefore it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under the Constitution and the Office of the Director of Public Prosecutions Act, that would, in my view, constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. As was held by Wendoh, J in Koinange vs. Attorney General and Others [2007] 2 EA 256:

“Under section 26 of the Constitution the Attorney General has unfettered discretion to undertake investigations and prosecute. The Attorney Generals inherent powers to investigate and prosecute may be exercised through other offices in accordance with the Constitution or any other law. But, if the Attorney General exercises that power in breach of the constitutional provisions or any other law by acting maliciously, capriciously, abusing the court process or contrary to public policy the Court would intervene under section 123(8) of the Constitution and in considering what constitutes an abuse of the court process the following principles are relevant: (i) Whether the criminal prosecution is instituted for a purpose other than the purpose for which it is properly designed; (ii) Whether the person against whom the criminal proceedings are commenced has been deprived of his fundamental right of a fair trial envisaged in the provisions of the constitution; (iii) Whether the prosecution is against public policy.”

44. In Kenya Commercial Bank Limited & 2 others vs. Commissioner of Police and Another, Nairobi Petition No. 218 of 20122 (2013) eKLR, Majanja J. held that:

“the office of the Director of Public Prosecution and Inspector General of the National Police Service are independent and this court would not ordinarily interfere in the running of their offices and exercise of their discretion within the limits provided by the law. But these offices are subject to the Constitution and the Bill of Rights contained therein and in every case, the High Court as the custodian of the Bill of Rights is entitled to intervene where the facts disclose a violation of the rights and fundamental freedoms guaranteed under the constitution”.

45. In appropriate circumstances, therefore, the Court may properly intervene in the exercise of discretion by the DPP and any other inferior authority for that matter and may justifiably do so in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323.

46. As was held in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001:

“Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognised, however in exercise of these powers the Attorney General must act with caution and

ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognised lawful parameters...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious...A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.”

47. This Court associates itself with the position adopted in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR to the effect that 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. In that case it was held:

“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”.

48. Where therefore the predominant reason for the institution of the criminal proceedings is not the vindication of the criminal justice such proceedings will be liable to be terminated.

49. As was held in James Karuga Kiiru vs. Joseph Mwamburi and 3 Others Nrb C.A No. 171 of 2000 to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is, the burden of proving that the prosecutor did not act honestly or reasonably being on the person prosecuted.

50. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words, the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. I say ordinarily because the mere fact that the version of one of the parties is not considered does not make the subsequent prosecution malicious. However, where the police deliberately decide not to take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution. On the other hand, it would be obviously absurd to make a defendant liable because matters of which he was not aware put a different complexion upon facts, which in themselves appeared a good case for prosecution. But neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable and probable cause and also malice. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for a prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation but no general rule can be laid down.

51. Therefore, the Court would not halt criminal proceedings merely because the applicant’s version was never considered though that is a factor which may be considered in determining whether on the totality of the material presented the prosecution is coated with malice.

52. In this case, the applicant contends that the criminal case revolves around LR No. Kajiado/Kaputei North/377662. That parcel of land, according to him, belongs to him having purchased the same from Handicap Holdings on 11th January, 2011. The 2nd complainant however claims that he entered into a joint business venture with the 1st accused in which he granted the 1st accused Kshs 5,000, 000/- and a sale agreement was entered into in August, 2015. To the applicant by the time the said joint venture was being entered into he was already the owner of the sad

53. This Court is not the correct forum to determine the ownership of the suit land. Similarly, the criminal process is not the forum at which the ownership of the land is to be determined. According to the applicant, the said complainant had commenced Kajiado Civil Suit No. 110 of 2018 touching on the same subject land which had been dismissed on 6th December, 2018. Notwithstanding the said dismissal, the complainant  insisted on proceeding with the criminal proceedings. Whether or not the Complainant will successfully mount a challenge to the applicant’s said title is one thing. However, to say that the complainant’s case is bound to fail is another thing altogether. What is clear is that whether or not there is sufficient evidence to sustain the charge is ordinarily not a ground for halting criminal proceedings. As was held in Meixner & Another vs. Attorney General [2005] 2 KLR 189:

“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion is acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution... Judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it; it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power. Having regard to the law, the finding of the learned judge that the sufficiency or otherwise of the evidence to support the charge of murder goes to the merits of the decision of the Attorney General and not to the legality of the decision is correct. The other grounds, which the appellants claim were ignored ultimately, raise the question whether the evidence gathered by the prosecution is sufficient to support the charge. The criminal trial process is regulated by statutes, particularly the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards stipulated in section 77 of the Constitution to be observed in respect of both criminal prosecutions and during trials. It is the trial court, which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. Had leave been granted in this case, the appellants would have caused the judicial review court to embark upon examination and appraisal of the evidence of about 40 witnesses with a view to show their innocence and that is hardly the function of the judicial review court. It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.”

54. On the relevancy of the civil proceedings, section 193A of the Criminal Procedure Code Chapter 75 Laws of Kenya provides that notwithstanding the provisions of any other written laws, the fact that any matter in issue in any criminal proceedings is also directly and substantially in issue in any civil proceedings shall not be a ground for stay, prohibition or delay in criminal proceedings. However, although under section 193A of the Criminal Procedure Code the existence of civil proceedings do not act as a bar to the criminal process, where the criminal process has been instituted as a means of hastening the civil process by either forcing the applicants to concede the civil claim or abandon their claim altogether, the commencement of the criminal proceedings are an abuse of the process of the court and on the authority of Stanley Munga Githunguri vs. Republic Criminal Application No. 271 of 1985, this Court is obliged to stop such proceedings.

55.  This position was confirmed by the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and OthersNairobi Civil Appeal No. 56 of 2012 [2013] eKLR when it held:

“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations.”

56. It is my view however that as opposed to where the prosecution has no evidence at all, in which event an order of prohibition may issue, the court will not halt a prosecution simply because the court is of the view that the evidence would not in all probability lead to a conviction. To do that would, as I have stated hereinabove, amount to this court stepping into the shoes of the trial court and usurping the powers of the trial court.

57. Similarly, it is not for this Court to stop the DPP in his tracks simply because the Court believes that the DPP ought to have done better. The constitutional discretion given to the DPP ought not to be lightly interfered with especially if on the evidence in his possession if true may well sustain a prosecution. Trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on his defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words, I am not satisfied based on the material before me that the criminal process is being used to coerced the applicant into ceding his interest in the suit land. The applicant in fact appreciates that there is nothing inherently wrong in both the civil and criminal case proceeding together.

58. In these types of proceedings, the Court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings. As these proceedings are concerned with the process rather than merits of the challenged decision or proceedings the court is not entitled to make definitive findings on matters which go to the merit of the impugned proceedings. I associate myself with the decision of Majanja, J in HC. Pet. No. 153 of 2013; Thuita Mwangi and 2 Others vs. the Ethics and Anti-Corruption Commission, that:

“While these arguments are forceful, attractive and cogent, I am afraid that the High Court at this point is not the right forum to tender the justifications concerning the subject transaction let alone test the nature and veracity of these allegations. In… the Court held that “It is the trial Court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. It would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court”. Similarly…Lenaola J., captured this balance as follows; “(22). The point being made above is that the DPP though not subject to control in exercise of his powers to prosecute criminal offences, must exercise that power on reasonable grounds. Reasonable grounds, it must be noted, cannot amount to the DPP being asked to prove the charge against an accused person at the commencement of the trial but merely show a prima facie case before mounting a prosecution. The proof of the charge is made at trial.”

59. As was held by Mumbi Ngugi, J in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Ors (2014) eKLR:

“The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated.”

60. In the premises I am not satisfied that this is a proper case in which the court ought to bring the criminal proceedings to a halt. The applicant does not contend that he was not afforded an opportunity to, for example, cross-examine witnesses. By being placed on his defence, it does not necessarily mean that he is culpable. Whereas, the applicant was within his rights to apply for the hearing de novo, the decision whether or not the hearing would start de novo depended on the findings of the trial court. Accordingly, it does not necessarily follow that the court, by declining to start the trial de novo, was being partial in the manner the applicant was being treated.

61. Another issue that has weighed heavily on my mind is the status of the criminal case sought to be quashed. Whereas there is nothing that can bar the Court from terminating pending criminal proceedings at any stage of those proceedings, it must always be remembered that the decision to do so is an exercise of discretionary power and the Court in determining whether or not to grant the relief sought will take into account the delay in making the application and the import and impact of such delay in the administration of justice.

62. In the instant case, the Applicant has failed to discharge the burden and must be ready to face his accusers as was stated by Lenaola, J (as he then was) in Daniel Ndungu vs. Director of Public Prosecutions & Another (2013) eKLR:

“In conclusion, the Petitioner ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the Law should he be found culpable”.

63. In the premises I find no merit in this application and to quote Kuria & 3 Others vs. Attorney General, (supra):

“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.”

64. In the result, I find no merit in the applicant’s application to have the criminal trial terminated.

65. Regarding the circumstances under which this Court transfers a case from one magistrate to another, Trevelyan, J in Shilenje vs. The Republic [1980] KLR 132, held that:

“On the authority of such cases as Re M S Patel’s Application (1913) 5 KLR 66 and The Republic vs. Hashimu [1968] EA 656 (a Tanganyika case), I am asked to say that the application should be granted if I am satisfied that a clear case has been made out that the applicant has a reasonable apprehension in his mind that he will not have a fair and impartial trial before the magistrate; and save, that I would rather use my expression “a real apprehension, honestly held and reasonably based” for “reasonable apprehension”, I would not quarrel with that. But I am asked, also, on the authority of later English decisions such as Metro-politan Properties Co (F G C) Ltd vs. Lannon [1969] 1 QB 577 and Hannam vs. Bradford City Council [1970] 2 All ER 690 to hold (if I understood counsel correctly) that the question falls (in the end) to be resolved on the basis that, if right-minded people would have a suspicion that a fair trial was not to be had, that is enough to require the application to be granted. I would like to go into the question a little more closely than that; and I derive much help from the commentaries upon section 526 of the Indian Code of Criminal Procedure 1908 made by two eminent writers, both former judges, Sir H T Prinsep and Sir John Woodroffe, i.e the former’s Commentary and Notes (14th Edn) and the latter’s Criminal Procedure in British India (1926). On page 646 of Prinsep we find:

‘The High Court will always require some very strong grounds for transferring a case from one judicial officer to another, if it is stated that a fair and impartial inquiry or trial cannot be held by him, especially when the statement implies a personal censure on such officer.’

and I endorse entirely. It would be thoroughly unfair to such officers were it otherwise. At page 647 we have:

‘What the court has to consider is not merely the question whether there has been any real bias in the mind of the presiding judge against the accused, but also whether incidents have not happened which, though they may be susceptible of explanation and have happened without there being any real bias in the mind of the judge, are nevertheless such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. It is not every apprehension of this sort which would be taken into consideration, but when it is of a reasonable character, and not withstanding that there was to be no real bias on the matter, the fact that incidents have taken place calculated to raise such reasonable apprehension ought to be a ground for ordering a transfer.’

Again I agree; it is, as it were, the objective approach to the problem supplementing the subjective approach which I have just previously set out. Then we have:

‘Whether such apprehension is reasonable must be determined with reference to the mind of the court rather than to the mind of the accused. The court cannot accept as reasonable grounds what the judges know to be insufficient and unreasonable, simply because the litigants were foolish enough to entertain them. To do so would be to encourage a distrust in the integrity and independence of the courts which would amount to a serious evil.’

which also must be so, or so I think. Then it is said:

‘But although each of the several grounds imputing bias may not be sufficient in itself for ordering the transfer of a case to another court, they may, taken together form reasonable grounds for the accused apprehending that he may not have a fair trial.’

which again, as I think, must be so. And finally, on page 648 we have:

‘It is the duty of the court to have regard to the importance of securing the confidence of the public generally, of every section of the community, in the fairness and impartiality of the trial that is to be held, and it is equally its duty to see that no undue regard is shown to the abnormal susceptibilities of any section of the public from an apprehension of ulterior consequences.’

Which I am prepared to accept; but this does not relieve the court from resolving the question on the evidence before it in the light of what the section under discussion provides, which is what, as I understood it, counsel for the respondent urged upon me.

On pages 612 and 613 of Woodroffe, we have:

“…This clause deals with the case in which the High Court is satisfied that a fair and impartial inquiry cannot in fact be had; but such cases are rare, for to move a case from one magistrate to another on grounds personal to him is tantamount to a severe censure of such officer and the very clearest grounds must exist before the High Court will interfere…A more ordinary class of case is that in which, the High Court is not of itself of opinion that affair and impartial inquiry cannot be had yet a party has reasonable grounds for the apprehension that he will not have affair trial which is another matter. It is not sufficient that justice is done; but it must also appear to have been done. The law in such a case has regard not so much to the motive which might be supposed to bias a judge as to susceptibilities of the litigant parties. One important object is to clear away everything which might engender suspicion or distrust of the tribunal and thus to promote the feeling of confidence in the administration of justice which is essential to social order and security…The transfer of a case will therefore be granted not on the ground that the judicial officer is incapable of performing his duty, but simply to allay the apprehension of the applicant for transfer…The question in such cases is not whether there is actual bias…but whether there is reasonable…ground for suspecting bias…and whether incidents may have happened which, though they might be susceptible to explanation and may have happened without there being any real bias in the mind of the judge, are nevertheless such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial…The necessary condition, however, for the transfer in such a case is that the apprehension to justify a transfer must be reasonable, that is, the court ought not to be guided by the impressions produced in his own mind as to the impartiality of the magistrate, but must look to the effect likely to be produced in the mind of the parties to the action of the magistrate…Abstract reasonableness, however, ought not to be the standard…’

Which, if not precisely the same as Prinsep, is in line with it.”

66. It is recognized that "It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety." (People vs. Rhodes (1974)12 Cal. 3d 180,185 [115 Cal. Rptr. 235, 524 P.2d 363]).

67. The principles that emanate from the foregoing are that in order to justify transfer of a case from one judicial officer to another, there ought to be a real apprehension, honestly held and reasonably based that the accused may not have a fair and impartial trial. Accordingly, some very strong grounds are required for transferring a case from one judicial officer to another. However, though incidents have not happened which, though they may be susceptible of explanation and have happened without there being any real bias in the mind of the judge, they may, nevertheless be such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. Whether such apprehension is reasonable must be determined with reference to the mind of the court rather than to the mind of the accused since the court cannot accept as reasonable grounds what the judges know to be insufficient and unreasonable, simply because the litigants are unreasonably foolish enough to entertain them. To do so would be to encourage a distrust in the integrity and independence of the courts yet it is the duty of the court to have regard to the importance of securing the confidence of the public generally, of every section of the community, in the fairness and impartiality of the trial that is to be held. It is equally, its duty to see that no undue regard is shown to the abnormal susceptibilities of any section of the public from an apprehension of ulterior consequences. With regard to transfer of cases on grounds that a fair and impartial inquiry cannot in fact be had, cases which are very rare to come by, on grounds personal to the judicial officer, is tantamount to a severe censure of such officer and the very clearest grounds must exist before the High Court will interfere.

68. In this case, the applicants averred that the trial court cancelled the applicant’s bond even though there was medical evidence that the applicant was indisposed; that the trial court proceeded with the matter notwithstanding the fact that this court had issued an order staying the proceedings; that the prosecutor was seen discussing the matter with the learned trial magistrate.

69. I have, on my part, perused the record and I have no concrete evidence that the trial court discussed the applicant’s case in his absence. As rightly pointed out there is nothing inherently untoward in a prosecutor holding a discussion with the court though where there are issues touching on a case it is prudent that the same be discussed in the presence of counsel for the accused. There is again nothing inherently wrong about a new magistrate proceeding with a matter from where his/her predecessor left it.

70. What has caused me concern are the allegations that certain proceedings went on notwithstanding the order staying the proceedings. On 9th March, 2020, this court stayed proceedings in Mavoko Criminal Case No. 156 of 2016 pending the hearing and determination of these proceedings and on 20th July, 2020, this Court directed that the lower court file be forwarded to this Court for the purposes of these proceedings and that direction was duly complied with. However, on 21st September, 2021, this Court directed that the said file be returned to Mavoko Law Courts for the purposes re-issue of the release order. The applicant contends that when the said file as returned to the lower court, the learned trial magistrate on 12th August, 2021 insisted that the matter proceeds since there was no order in the file as well as an order staying proceedings and for re-issue of the release order. The trial court then proceeded to fix the matter for hearing on 26th August, 2021. These allegations have not been controverted by the respondent.

71. To my mind once the attention of a court has been drawn to the existence of an order from a superior court staying proceedings, the court ought to first investigate whether such order exists before deciding to proceed since a court of law ought not to proceed in the dark and where its proceedings may amount to a nullity it should first investigate the allegations since to do otherwise may well amount to proceeding without jurisdiction and that may render the proceedings a nullity.

72. In my view, the effect of proceeding in the matter in light of the stay order issued herein, though might be susceptible to explanation and may have happened without there being any real bias in the mind of the trial magistrate, is nevertheless such as are calculated to create in the mind of the applicant a reasonable apprehension that there may be some unfairness and lack impartiality in the trial.

73. In the premises, while I decline to terminate these proceedings, I hold that for the sake of justice to be seen to have been done the matter ought to be heard before a different magistrate. While ordinarily the same ought to be heard in Mavoko, taking into account the fact that allegations have been made against the prosecution office in Mavoko, I direct that Mavoko Chief Magistrate’s Court Criminal Case No. 156 of 2016 be transferred to the Chief Magistrate’s Court, Machakos for further proceeding in accordance with the provisions of section 200 of the Criminal Procedure Code. For avoidance of doubt the applicant’s bond terms are hereby reinstated.

74. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 17TH DAY OF MARCH, 2022.

G V ODUNGA

JUDGE

In the absence of the parties.

CA Susan