[2023] KEHC 26866 (KLR)

Abha v Director of Criminal Investigations Nakuru & 2 others (Miscellaneous Criminal Application E097 of 2023) [2023] KEHC 26866 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26866 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Criminal Application E097 of 2023

HM Nyaga, J

December 14, 2023

Between

Farzina Yakub Abha

Applicant

and

Director of Criminal Investigations Nakuru

1st Respondent

Inspector General of National Police Service

2nd Respondent

Office of the Director of Public Prosecutions

3rd Respondent

Ruling

1. The Applicant filed an application dated 18th July,2023 brought pursuant to Articles 19,20,21,22,23,25,28,29,47,48,49,50 and 159 of the Constitution of Kenya and Section 123 of the Criminal Procedure Code. The Application seeks for ORDERS: -1. Spent2. Spent3. Spent4. That this Honourable Court be pleased to order that anticipatory bail be given to the Applicant on such terms as the court may deem appropriate pending any investigations, inquiry or preferring criminal charges before a court of competent jurisdiction and more specifically the Applicant shall not be arrested, detained and or tortured by the respondents and to direct that the Applicant present herself to any police station as and when required.5. That this Honourable Court do issue such further or other orders that in its discretion may deem fair and just in the circumstances.6. That costs of this Application be provided for.

2. The Application is premised on grounds on its face and supported by an affidavit of Applicant Farzina Yakub Abha and who is also the proprietor of Aventsa Travels Solutions.

3. She averred that the Famous Travel Limited is currently involved with her above company in an ongoing Civil Suit No. E063 of 2020.

4. She stated that in December 2019, she issued postdated cheques as payment for some air tickets that had been purchased by Famous travels limited on behalf of Aventsa Travel Solutions.

5. That due to the onset of the Covid-19 pandemic and the travel restrictions imposed thereafter, they were unable to use the tickets and moreover their business activities came to a standstill.

6. She contended that in light of the situation, she requested Famous Travels Limited not to cash the cheques via an email as they contemplated other payment options for the tickets but the said company did not do so and in attempt to cash the cheques, the cheques bounced.

7. She averred that the ongoing aforementioned civil suit concerns the recovery of the amounts owing from the air ticket by Famous Travels limited and that despite the said suit, the Famous Travels Limited enlisted the service of the police to recover the debt and as a result she has been harassed by the incessant phone calls from the police in regards to the aforesaid cheques.

8. It was her further averment that she apprised the 3rd Respondents of the said harassment and consequently the 1st Respondent issued her with summons in relation to the bounced cheques.

9. She contended that the alleged charges against her are unsubstantiated as she had advised the complainant not to cash the cheques and therefore it can be inferred that the complainant is using the police in a bid to harass and intimidate her into paying the money owed.

10. She asserted that the actions by the 1st and 2nd respondents are a violation of their authority and legislative mandate, and it amounts to blatant abuse of power to use the police to settle private disputes between private entities.

11. She is thus apprehensive that her rights enshrined under Articles 25,28,29,47,49 and 50 of the constitution will be violated if the 1st and 2nd respondents arrest her.

12. She prayed that this Court grants the reliefs sought in the interests of Justice.

13. In opposition to the application, the 1st and 2nd respondents swore a replying affidavit dated 30th August, 2023 through CPL HABERT NJUMWA, Corporal of police working with the Directorate of Criminal Investigations in Nakuru County Headquarters as an investigator.

14. He deponed that they received a complaint from Famous Travels through Ronak Shah who is one of its directors and that he reported the matter at Hyrax Police Post Vide OB NO.06/12/06/2020 seeking for police assistance.

15. He stated that the matter was handled by DCI Office Railway Nakuru but it dragged for some time prompting the complainant to express his dissatisfaction in a letter to CCIO Nakuru dated 27th April, 2023 and consequently the investigations into the matter was picked by CCIO Nakuru and inquiry file number 13/2023 was opened to conclusively bring the matter to rest in terms of investigations.

16. That on 12th July, 2023, he issued summons to the applicant to appear before DCI Nakuru County Headquarters on 14th July, 2023 to shed more light into the matter and record a statement.

17. He averred that upon investigations they established that the applicant is the registered proprietor of Aventsa Solutions Limited and that the Applicant on diverse dates in 2019 had bought Air Travels Tickets on credit from famous travels and failed to pay for the same.

18. That the outstanding amount of USD 39,117 was owed by Aventsa Travels solutions and on diverse dates in the year 2020, Aventas Travel Solutions issued 10 cheques of USD 3600 each to Famous Travel Ltd and upon depositing four of the cheques in their bank account, that is cheque No. 000036,000037,000038 and 000039 only cheque no.000036 went through but the rest bounced.

19. He stated that the complainant did not proceed to deposit the remaining cheques as they were being charged by the bank for unpaid cheques and having established the above details, they summoned the Applicant as earlier indicated, however, she failed to honour the summons and instead filed this suit seeking to bar the respondents from arresting and charging her.

20. He averred that the existence of the aforesaid Civil Case does not bar the 1st and 2nd respondents from conducting investigations into an inquiry in a criminal case since the same matter was reported and that the purpose of this inquiry was not to interfere with the ongoing civil proceedings but to establish if there is a criminal aspect in the matter.

21. He disputed that the 1st and 2nd respondents are being used by the complainant to recover the debt but instead stated that they are purely investigating a case of issuing bad cheques.

22. He contended that the applicant has not demonstrated any breach of her constitutional rights and freedoms and that the 1st and 2nd Respondents acted illegally, irrationally or without complying with any statutory provisions.

23. He averred that the application is misconceived and an abuse of the process of this court.

24. He thus prayed that the same be dismissed in its entirety with costs.

25. The state counsel Loice Nekesa Murunga swore a replying affidavit on behalf of the third respondent on 28th September, 2023, wherein she deponed that the application herein lacks merit and the same ought to be dismissed as it seeks to stop the ongoing investigations.

26. She posited that when the investigations are ongoing, the 1st respondents have powers under the law to effect arrests and an attempt to curtail them from carrying out their mandate is a clear trespass into their jurisdiction.

27. She deponed that the constitution does not provide for a relief of anticipatory bail but instead it provides for the rights of an arrested person which include being released on police bond and therefore the applicant will not be prejudiced if she is arrested by the police during investigations as she will be released on police bond and be produced before court within 24 hours.

28. She contended that the relief sought can only be granted where there was serious breach of citizens’ rights by organs of the state which according to her the Applicant has not demonstrated.

29. She averred that under Section 193 A of the Criminal Procedure Code the existence of a civil matter arising from a similar fact under investigations in a criminal matter is not sufficient to stay criminal proceedings and urged this court to dismiss the Application so as to allow the 1st and 2nd Respondents exercise their mandate.

30. The applicant swore a further affidavit on 18th September, 2023 in response to the aforestated replying Affidavit by the 1st and 2nd Respondents.

31. She deponed that she was served with summons after she had written a complaint to the 3rd respondent on the harassment by the agents of the 1st respondents and therefore the said summons were an afterthought.

32. She stated that before the issuance of the summons the police officers had already made attempts to arrest her but did not so as she was recuperating at home from caesarean operation.

33. She averred that issuance of a postdated cheque does not amount to a criminal offence under Section 316A (2) of the Penal Code and thus the 1st respondent had no legal basis whatsoever in issuing summons when there was no criminal offence that needed to be investigated.

34. She contended that she had not committed any criminal offence and in view of the actions by the 1st and 2nd respondents, she was apprehensive that the 1st respondent would arrest her on tramped up charges thereby violating her constitutional rights and freedoms.

35. The application was canvassed through written submissions.

36. Only the 1st and 2nd respondents filed their submissions.

1st and 2nd Respondents Submissions 37. On whether the criminal proceedings and civil proceedings can exist concurrently, the respondents submitted that the existence of criminal proceedings does not act as a bar to civil proceedings or vice versa provided that such matters are filled and pursued lawfully and in good faith. In support of this proposition reliance was placed on Section 193A of the Criminal Procedure Code and the cases of Commissioner Of Police & The Director Of Criminal Investigation Department & another vs Kenya Commercial Bank Limited & 4 others [2013] eKLR & Alfred Lumiti Lusiba vs Pethad Ranik Shantilal & 2 others [2016] eKLR.

38. In regards to whether the applicant is entitled to the orders sought, the respondents herein submitted that at all material times they have been acting within their mandate as provided under Sections 24 and 35 of the National Police Service Act.

39. They argued that the applicant has not advanced any evidence in support of her claims against them and as such the applicant is not entitled to the reliefs sought.

Analysis & Determination 40. The only issue for determination is whether the Applicant is entitled to the orders sought.

41. Article 49 of the Constitution provides for the Rights of Arrested Persons.49(1) states:“An arrested person has the right;(h)to be released on bond or bail on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.”

42. It is clear from the wording of the Article 49 that only the arrested person is entitled to the rights stipulated therein.

43. An arrested person is supposed to be presented before court within 24 hours unless those hours fall outside the ordinary courts hours. The Police officers are not allowed to arbitrarily hold an arrested person for longer. Article 49(1) (f) provides that if a person is arrested they are to be brought before a court within 24 hours of arrest unless the 24 hours fall outside the ordinary court hours.

44. Article 28 of the Constitution provides that;“Every person has inherent dignity and the right to have that dignity respected and protected.”

45. Article 29 of the Constitution provides as follows:-“Every person has the right to freedom and security of the person, which includes the right not to be-a.deprived of freedom arbitrarily or without just cause;b.detained without trial except under a state of emergency in which case the detention is subject to Article 58;c.subjected to any form of violence from either public or private sources;d.subjected to torture in any manner, whether physical or psychological;e.subjected to corporal punishment in a cruel, inhuman or degrading manner.”

46. The High Court, therefore, has authority under Articles 23 and 29 as read with Article 258 to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

47. Anticipatory bail is not specifically provided for in the Constitution. It is a relief granted by the High Court in exercise of its mandate under Article 165 of the Constitution. It provides as follows;“165 (3) Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.”

48. Lady Justice Teresia M. Matheka, in Simon Mwaniki & 2 others vs Director of Public Prosecution & 2 others [2021] eKLR aptly captured this position. She observed thus:-“Anticipatory bail was really necessary in this country in the dark days when one could be arrested and detained for days and months without any reason and, without trial and sometimes for trumped up non- bailable offences.That changed with the promulgation of the Constitution of Kenya 2010 through which we the people put in measures to bring to an end those dark days. The Bill of Rights at Article 25 provides that certain fundamental rights and freedoms shall not be limited, Article 28, guarantees the right to human dignity and Article 29, freedom and security of person whereby everyone has the right not to be deprived of their freedoms arbitrarily or without just cause.To achieve this the framers of our Constitution demarcated the lanes for law enforcers, giving them powers needed to carry out their jobs, while at the same time keeping them within the binding boundaries of the Constitution and the Bill of Rights. Article 20 clearly speaks to this: It states:Application of Bill of Rights(1)The Bill of Rights applies to all law and binds all State organs and all persons.(2)Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.’

48. The Applicant herein contended that she has been harassed by incessant phones calls from the police regarding the cheques in issue and that after writing a complaint to the 3rd Respondent in regards to the same, the 1st Respondent issued her with summons in relation to the bounced cheques. This position was not controverted by the 1st respondent. In addition, the Applicant attached a copy of the said summons by the 1st Respondent.

49. She also averred that before the issuance of the said summons the 1st and 2nd Respondents had attempted to arrest her but since she was recuperating from the caesarean operation, they did not do so. This has similarly not been controverted by the 1st and 2nd respondents.

50. What the applicant seeks is anticipatory bail to prevent her arrest, and conservatory orders to prevent her being charged in a court of law.

51. In the case of Mandiki Luyeye vs Republic [2015] eKLR, Ngenye J (as she then was) held as follows:-“Similar sentiments were observed in the case of Eric Mailu vs Republic and 2 others Nairobi Misc. Cr. Application No. 24 of 2013 in which it was emphasized that anticipatory bail would only issue when there was serious breach of a citizen’s rights by organs of state. Accordingly, it is salient that anticipatory bail is aimed at giving remedy for breach of infringement of fundamental Constitutional rights in conformity with what the Constitution envisages constitutes protection of fundamental rights and freedoms of a citizen. It cannot issue where an Applicant labours under apprehension founded on unsubstantiated claims. The fear of breach to fundamental right must be real and demonstrable. An Applicant must demonstrate the breach by acts and facts constituting the alleged breach.”

52. Indeed, despite having authority to grant anticipatory bail, courts must exercise great restraint not to interfere with the functions of other bodies and institutions that have been created by statute or the Constitution and/or to prevent such bodies or institutions from carrying out their mandate.

53. In the case of Richard Mahkanu vs Republic [2014] eKLR, the court held the firm view that orders for anticipatory bail or bond must not be sought with the intention of pre-empting the outcome of investigations. This position was also held in the case of Kevin Okore Otieno vs Republic (2013) eKLR.

54. Section 52 of the National Police Service Act allows a police officer to require any person, in writing, if they have reason to believe that person has information which may assist in investigation of an alleged offence, to appear before him at the police station.

55. From the material before me, it is apparent that the respondent was issued with summons. There is contention that she failed to honour them. The Applicant, as a law abiding citizen, was under a duty to honour the summons and give her side of the story, or choose to remain silent, as she is entitled to do, under the provisions of Article 49(1) (b) of the Constitution. That did not happen. The 1st respondent was thus entitled to take further action, including the arrest of the applicant.

56. Having granted the applicant bail at the interlocutory stage, this issue is now moot. Be that as it may, in my view, the fears of arrest are real. The 1st and 2nd respondents have not particularly endeared themselves to the public owing to the manner in which they deal with suspects, even for minor offences. This offence is classified as misdemeanor. That may be the reason why the applicant rushed to court.

57. To allay the applicant’s fears, I will allow her to continue with her anticipatory bail/bond, which I had set as a personal bond of Ksh. 100,000/-. I further direct that she appears before the 1st Respondent as and when required to provide any information that may be required of her. The 1st respondent ought to give reasonable notice to the applicant to appear before it.

58. The orders for anticipatory bail shall cease once the applicant is arraigned in court. The trial court shall be at liberty to impose reasonable bond terms.

59. The next question to be answered is whether the court should bar the respondents from charging the applicant as sought.

60. Under Section 193A of the Criminal Procedure Code it is provided as follows:-“Any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings193A.Concurrent criminal and civil proceedings.Notwithstanding the provisions of any other written law, the fact that.”

61. In as much as the said Section provides for the continuation of a criminal case concurrently with a civil one, the superior courts have repeatedly abhorred the use of criminal proceedings to settle a matter that is purely civil in nature. In Republic vs Chief Magistrate’s Court Mombasa Ex-parte Ganijee and Another(2002) KLR 703 the High Court expressed itself as follows;-“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of 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 that ulterior motive and that is when the High Court steps in...”In Rosemary Wanja Mwagiru vs A. E. and 3 Others [2013] eKLR the court held as follows;-“It is, I believe, undisputed, as provided under Section 193 A of the Criminal Procedure Code, that the institution of civil proceedings does not preclude the State from undertaking criminal proceedings against a party with respect to an issue which is also directly in issue in a pending civil suit.That notwithstanding, it is the duty of the Court to exercise its inherent jurisdiction so as to prevent its process being used to perpetrate injustice or otherwise as an abuse of its process. Since Githunguri v Republic (supra), it has been established that the High Court is entitled to exercise its jurisdiction to avert abuse of power, discretion or process. Thus, an examination of the events unfolding prior to the institution of the five civil suits and the eventual institution of the criminal complaints by the 2nd and 3rd respondents causes serious unease about the institution of the criminal process. Given the timing of the criminal complaint and the institution of the criminal prosecutions immediately following upon the filing of five civil claims involving the same parties over the same subject matter, and an application for orders of contempt against the petitioners in the Winding Up Causes which they had lodged against the 2nd and 3rd respondents, it is difficult to reach a conclusion other than that the criminal case was calculated to harass, coerce, oppress or otherwise intimidate the petitioners”.Again in Reuben Mwangi vs DPP and 2 Others [2012] eKLR the court held that;“It is, hence, a settled legal principle and position that whenever a Petitioner sufficiently demonstrates the stifling of or threats of infringement of rights, fundamental freedoms, the Constitution and/or the law by the investigative and prosecutorial agencies, a Court should not hesitate to intervene and stop such a prosecution. Such intervention by the Courts should, however, be in clearest of the cases.I will also refer to the decision in Kuria and 3 Others vs AE (2002) 2KLR 69 where the Court held that;-“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).”

62. In the present matter, there is no dispute that the applicant issued cheques that were dishonoured. She admits as much. The existence of a civil dispute over the transaction between the parties would not affect a charge of issuing a bad cheque, which is distinct and not related to the recovery of any debt between them.

63. To me, the determination of the legality of the charges that would be ultimately preferred against her in respect to the dishonoured cheques is an issue to be determined by the respondents and not the Applicant.

64. Whether the cheques were post dated or not, so as to qualify for consideration under the proviso to section 316A(2), is a question of fact that cannot be determined at this stage.

65. In addition, Investigations are known legal processes in our justice system and, unless malice, or abuse of power is clearly established, do not amount to infringement on the fundamental rights and freedoms to any person. The said processes must be allowed to run their course for proper administration of justice.

66. That said, I find no grounds to bar the Respondents from investigating and charging the applicant, should they find sufficient cause to do so. There is nothing prima facie to show that the charges are motivated by any malice. The applicant does not deny that her cheques were dishonoured. Therefore, that particular prayer is disallowed.

67. In conclusion, the court makes the following orders;a.The applicant shall continue with the bond terms set by this court until the time she is charged in a court of law. The trial court shall be at liberty to impose its own reasonable bond terms.b.The 1st respondent shall be at liberty to issue summons to the applicant upon reasonable notice to appear before the investigating officer, or other authorized officer. In default of appearance, the 1st respondent shall be at liberty to take any lawful action, including arrest, against the applicant.c.The prayer seeking conservatory orders to bar the respondents from charging the applicant are disallowed.d.I shall make no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 14TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;C/A KipsugutMurunga for stateApplicant presentMs Langat for Kirui for ApplicantMs Wanjeri for 1st and 2nd RespondentsMs Murunga for 3rd Respondent