[2023] KEHC 25300 (KLR)

Asha v The Director of Public Prosecutions & 3 others (Constitutional Petition 2 of 2023) [2023] KEHC 25300 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25300 (KLR)

Republic of Kenya

In the High Court at Kitui

Constitutional Petition 2 of 2023

RK Limo, J

November 15, 2023

Between

Mesesi Onyuego Asha

Petitioner

and

The Director of Public Prosecutions

1st Respondent

The Inspector General of Police

2nd Respondent

Director of Criminal Investigations

3rd Respondent

The Chief Magistrate Court Kitui

4th Respondent

Judgment

1. Misesi Onyiego Asha, the Petitioner herein has come to this court seeking the following reliefs: -i.A declaration that the continued prosecution of the petitioner in Kitui Chief Magistrate’s Court Sexual Offence Case No. E030/23 is an illegality and contrary to Articles 27(1), 28,31,47,48,49,50(2) (b), (K), (i) and (4) of the Constitutionof Kenya 2010 and therefore, unlawful, null and void ab initio.ii.A declaration that the evidence underpinning the intended prosecution of the petitioner in Kitui Chief Magistrate’s Court Sexual Offence Case No. E030/23 as represented in the existing charge sheet, or subsequent amendments thereof, was illegally obtained in a manner that violated the petitioner’s constitutional rights and detrimental to the administration of justice.iii.An Order of Certiorari be issued to quash the criminal proceedings in Kitui Chief Magistrate’s Court Sexual Offence Case No. E030 of 2023. iv.An Order of prohibition be issued against the Director of Criminal Investigation and Director of Public Prosecution from Investigating, recommending for prosecution or commencing any prosecution of the Petitioner in respect of which Kitui Chief Magistrate’s Court Sexual Offence Case No. E030 of 2023 was instituted.v.An Order for compensation of the Petitioner for general damages for the infringement of his fundamental rights and freedoms.vi.An Order of costs to the Petitioner.vii.Any other or further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner’s fundamental rights and freedoms.

The Petitioner’s Case 2. The Petitioner asserts that he is a qualified clinician having graduated from Kenya Medical Training Centre (KMTC) Kakamega in the year 2013 and that he has worked in various medical institutions and joined Muthale Mission Hospital in Kitui in the year 2021.

3. He states that on 31. 03. 2023 he routinely attended to a patient named Mitchel Mutheu Florence who was a pupil in an undisclosed school and that the patient was escorted to the said health facility by a female teacher.

4. He says that he examined the said patient physically in the normal manner by touching her abdomen as she had complained of chest and abdominal pains.

5. He states that he resorted to physical examination after the patient could not produce a stool sample for medical procedures.

6. He states that thereafter, he treated the patient by prescribing some medicine and the patient left the hospital without any complaint.

7. He avers that on 4th April, 2023 he was summoned before officer in charge Kitui Police Station for undisclosed investigation and that upon arrival he was arrested and placed in custody on allegations that he has inappropriately touched the complainant.

8. He claims that he was forced to record a statement on what transpired and he was forced to record a self-incriminating statement without being notified of his right to have an advocate.

9. He claims that the decision made to charge him with committing an indecent act with a child Contrary to Section 11(1) of Sexual Offence Act was made without proper and comprehensive and independent investigations into the matter.

10. He faults the police for taking the statement of a female teacher who had accompanied the pupil without taking statements from other staff in the hospital. According to him the decision to charge him was hurried, against public interest and made without the input of an expert.

11. He claims that the charge sheet and statements from the police do not disclose any offence because no proper investigation was carried out. The petitioner accuses the Office of the Director of Public Prosecution for failing to supply him with statements.

12. The Petitioner pleads that the criminal charges against him are grossly presumptuous and betray a lack of understanding of the nature of the work of a medical practitioner, doctor-client relationship and the nature of interactions during patient examination, diagnosis and treatment. He faults the police contending that they have no expertise on what doctors do when examining patients. He contends that only experts can determine what constitutes unethical conduct adding that the Police are not equipped to do so.

13. He submits through Counsel that the DPP made decision to have charged before conclusive investigations were done and breached the duty bestowed upon him by provisions of Article 157.

14. He asserts that the decision to charge him for the kind of offence alleged to have occurred could spell doom to his career and that medical practitioners should be allowed to do their jobs freely without having to look over their shoulders for fear of being arrested.

15. The Petitioner feels he has been dragged through unfair process because adequate investigations were not carried out adding that the DPP did not adhere to the Public interest in its decision to prefer charges. He asks this court to intervene and has relied on the decision in Republic v Director of CID & Another Ex Parte Ronald Morara Ngisa [2018] eKLR where the court inter alia found that where prosecution of a person is intended to achieve some other collateral purpose other than the legally recognized aim, a court is entitled to intervene. He also cites the decision in Kuria & 3 Others v The A.G.[2002] eKLR where the same verdict was reached.

16. He submits that courts should ensure that its processes are used fairly by the State to ensure Public confidence is not eroded and has cited the decision in the cases of Mohammed Gularu Hussein & Another v Chief Magistrate’s Court Nairobi & Another [2006] eKLR and Bitange Ndemo v Director of Public Prosecution & 4 Others [2016] eKLR.

17. In those decisions the courts observed inter alia that Prosecution of a criminal charge should be commenced where there is a factual foundation or basis without no ulterior motive or improper motive and that a prudent and cautious prosecutor must have a reasonable and probable cause to mount a criminal Prosecution otherwise, the prosecution will be malicious and oppressive.

18. He faults he 1st Respondent for acting against Public interest in its decision to prefer criminal charges against him. He opines that his prosecution is an abuse of legal process and an infringement of his right to human dignity guaranteed under Article 28 of the Constitution of Kenya. He relies on the case of Peter George Antony D’Costa v Attorney General & Another (Nairobi HCC Petition No. 85/2010) where the Court observed that the Director of Public Prosecution has an obligation under Article 157 (1) to prevent and avoid abuse of legal process and that where there is likelihood of violation of any of the applicants’ fundamentals rights court should intervene.

19. He contends that the interested party has demonstrated that the investigations were inadequate and that his prosecution should not be based on such evidence. He however has not pointed out who the Interested Party is in this Petition. He however insists that he is entitled and has legitimate expectation to be accorded the necessary protection of the law as guaranteed by the Constitution. He has cited various articles of the Constitution to wit Articles 2(1), 2(5), 3, 22(1) read with Article 258(1), 23, 27, 28,29,31,47,48, 50, 157,238, 244 and 245 and urged this court to take cognisance of the same and grant the reliefs sought in this petition.

The 1st, 2nd, and 3rd Respondent’s Case. 20. The 1st, 2nd and 3rd Respondents have opposed this petition through a replying affidavit sworn by Pauline Karimi Mwaniki and written submissions through the same Counsel representing the Office of the Director of Public Prosecutions.

21. The 1st to 3rd Respondents aver that a Complaint was received and a file opened in the usual manner and a charge preferred by the 3rd Respondent when it found sufficient evidence to prefer charges which it did vide Kitui Chief Magistrate’s Court Sexual Offence Case No. E030 of 2023.

22. They aver that the petitioner was arrested on 4th April 2023 and presented to court on 5th April, 2023 and deny that his rights under Article 49(1) (6) were violated. They fault the Petitioner for causing deferment of plea which they contend was eventually taken and the Petitioner granted bond pending trial.

23. The 1st to 3rd Respondent submit that the decision to prefer charges was made in good faith based on the analysis of the evidence gathered. They aver that they are ready to proceed with the prosecution’s case adding that the guilt or innocence of the petitioner can only be proved in the Criminal proceedings before the right court.

24. They further submit that to ask this court to determine the sufficiency of the evidence or the Criminal Case in itself is unconstitutional and insist that the function of this court is not to review the evidence and determine the innocence of an accused person. It is their case that the right court well seized of the jurisdiction is the trial court adding that, Article 50 guarantees the Petitioner the right to a fair trial.

25. They contend that the Petitioner has not pointed out specifically what rights have been infringed by them adding that any issues raised here can be raised in his defence at the trial. It is their position the trial court is the only court seized with the jurisdiction to determine whether or not the petitioner is guilty of the charge preferred against him.

26. They contend that they have exercised their mandate fairly and within the law and that there is no procedural impropriety, illegality or irrationality demonstrated by the petitioner and attributed to their actions.

The 2nd, 3rd and 5th Respondent’s Case 27. The 2nd, 3rd and 5th Respondent have also expressed their opposition to this petition through grounds of opposition dated 31st May,2023 done by Senior State Counsel on behalf of the Attorney General and written submissions dated 20th September, 2023.

28. The 2nd, 3rd and 5th Respondent has majorly echoed the sentiments expressed by the 2nd Respondent in opposition of this petition.

29. They contend that the Petitioner cannot seek this Hon. Court to render a determination on the merits of the Prosecution’s Case against him. They rely on the case of Michael Monari and another v The Commissioner of Police and 3 Others [2012] eKLR.

30. They claim that the Petitioner has failed to demonstrate that the 2nd Respondent has abused or misused its powers or show that its conduct will breach his rights during trial.

31. They defend the 2nd Respondent’s mandate to carry out investigations citing the provisions of Sections 35 and 51 of the National Police Service Act. They contend that the 4th Respondent’s mandate and duty under Article 160(5) of the Constitution of Kenya and Section 6 of the Judicature Act is clothes with immunity.

32. They submit that this Court can only intervene where it is demonstrated that the decision to investigate was influenced by extraneous or irrelevant considerations. They urge this court to let the t rial in the criminal court proceed to its logical end for the interest of justice and have cited the decisions of Paul Nganga Nyaga & 2 Others v The Attorney General & 3 Others (citation not given).

33. They further submit that the Petitioner has failed to demonstrate that the Respondents were irrational or unreasonable in their actions adding that it is not enough to allege that a decision is tainted with illegality, irrationality or procedural impropriety. They submit that the 2nd Respondent has a duty to investigate any complaint once a report is made and once the investigations are complete they should be allowed to take appropriate action. They rely on the case of Hussein Khalid & 16 Others v Attorney General & 2 Others [2014] eKLR in their contention that a court can only intervene where it is shown that the criminal proceedings are intended to achieve other purposes other than the enforcement of the law.

34. They submit that courts usually intervene only in exceptional circumstances adding that the same have not been demonstrated in this petition. They rely on the decision in the case of Joshua Chelego Kulei v Republic & 9 Others [2014] eKLR.

35. They contend that the Petitioner has failed to specifically pin point the rights that have been violated or likely to be violated in his prosecution and that in such scenario this court cannot intervene. They rely on Anarita Karimi Njeru v Republic (1976-1980) eKLR and Northern Nomadic Disabled persons’ organization v Governor, County Government of Garissa and Another [2023] eKLR.

36. They submit that the respondents are just carrying out their constitutional mandate and that there are no valid reasons advanced by the Petitioner upon which this court can be asked to intervene.

37. This Court has considered this Petition and the grounds raised. I have also considered the opposition mounted by both the Office of the Director of Public Prosecution (ODPP) and the Attorney General on behalf of themselves and other named Respondents. There are 3 issues which have cropped up for determination in this Petition. These are:i.Whether the Respondents in their respective decisions/actions against the Petitioner overstepped their Constitutional Mandate.ii.Whether the rights of the Petitioner were likely to be violated in the trial.iii.Whether there is basis for this court to intervene and halt the trial of the petitioner.I will begin straight on the first issue.

(i) Whether the Respondents acted within their Constitutional Scope or mandate. 38. The Office of the Director of Public Prosecution the 1st Respondent herein is a creature of Constitution provided under Article 157 of the Constitution. Its mandate is clearly spelt out under Article 157(6) of the Constitution. It is to;‘‘Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; ‘’

39. The independence of the Office of the Director of Public Prosecution is guaranteed under Article 157(10) but the exercise of that mandate is limited under Sub Article 11 to act in Public interest, interest of justice and to prevent abuse of legal process. That means that the actions/decisions of the 1st Respondent in preferring charges against a suspect is open to challenge or redress but any challenge can only succeed if he or she demonstrate that the decision of the 1st Respondent is not in Public interest, or administration of justice but an abuse of court process.

40. The Petitioner contends that the 1st Respondent overstepped its mandate when it preferred criminal case vide Kitui CM’s Court Sexual Offence Case No. E030 of 2023. The same is denied and this court will delve on the merits of the allegation shortly. Let me first turn my attention to the Constitutional mandates of the other Respondents.

41. The 2nd Respondent is the Inspector General of Police whose office is established under Article 245 of the Constitution of Kenya. The Constitution gives the holder of the Office Independence in commanding the National Police Service, investigation of any particular offence or offences and enforcement of law among other duties. The Petitioner in this matter has not trained his guns much more on the 2nd Respondent but he has mainly faulted the 3rd Respondent.

42. The Office of the 3rd Respondent (DCI) is created by an Act of Parliament (The National Police Service Act, 2011) pursuant to the Provisions of Article 247 of the Constitution of Kenya. The function and duties of 3rd Respondent are clearly spelt out under Section 35 of the National Police Service Act and apart from maintaining Law and Order they are mandated to investigate crimes and apprehend offenders amongst other duties.

43. The main basis of the Petitioner’s challenge on the actions taken by the 3rd Respondent is that they are least competent or lack capacity to comprehend the conduct of the Petitioner in his professional work of examination and treatment and faults them for relying on a self-incriminating statement made by the Petitioner when the same in his view was not properly taken. I will get back to this issue shortly.

44. The 4th and 5th Respondents are created under Article 169(1) and 156 respectively and the roles played by the two institutions are peripheral to the grievances expressed in this petition.

45. Now let me turn back and consider whether any of the respondents overstepped their respective mandates in their actions to have the Petitioner arraigned.Following the chronology of events, I will begin with the actions taken by the 3rd Respondent before delving on the decision made by the 1st Respondent to prosecute the Petitioner.

46. The Petitioner’s main grievances against the 3rd Respondent are as follows: -i.That it did not carry out independent investigations like taking statements from staff working at the medical facility where the petitioner is alleged to have committed the offence.ii.That it is relying on self-incriminating statement made by the petitioner to the effect that he asked for a kiss from the Complainant. He claims that the statement was improperly taken.iii.That the 3rd Respondent is ill equipped to determine if the petitioner’s actions breached ethical and professional standards in handling the patient.

47. The independence of the 2nd Respondent and by extension the 3rd Respondent in discharging its mandate as highlighted above is guaranteed by the law (See Article 245 2(b) of the Constitution). They cannot therefore be faulted by the appellant that they took statements of other witnesses other than the staff of the said medical facility where the Petitioner works.

48. The office of the 1st Respondent is mandated to go through the file containing statements of witnesses and if the Director of Public Prosecutions feels there are grey areas in some specific cases it is at liberty and in fact is mandated by law to ask the Police to cover the gap. That mandate is stipulated under Section 5 of the Office of the Director of Public Prosecution Act.

49. On the question of self-incriminating statement and whether the same was a confession or not properly taken, this court takes the position that the question is properly before the trial court which is well seized with the jurisdiction to determine the same.The invitation by the petition to determine the admissibility of the impugned statement is improper and immature at this forum.

50. The Petitioner has raised an interesting and contested issue which touches on the role and competency of the 2nd and 3rd Respondent to investigate the complaint made to them by the complainant. While it is true that the alleged offence took place in a healthy facility there are two angles to this to wit the alleged criminal aspect pursued by the respondents and the administrative aspect championed by the Petitioner.

51. To put this issue in a proper prospective or context, I will pose a hypothetical question. Supposing the Petitioner was accused of say defilement or raping a patient, would one argue that he should only be subjected to disciplinary/administrative action/process rather than face a criminal charge for the offence of defilement/rape?

52. In my considered view while a disciplinary/administrative action can be taken, independently by a relevant professional statutory body where a complaint is filed, it does not mean that such administrative/disciplinary action is a bar or stay of a parallel criminal action to address the criminal element of the allegation.

53. In the case of Geoffrey Kiragu Njogu v Public Service Commission and 2 Others[2015]eKLRthe court held that the institution of criminal proceedings is not a bar to civil proceedings or disciplinary hearing on similar facts. In Judicial Service Commission v Gladys Boss Shollei and another [2014]eKLR, the court also found that disciplinary hearings conducted by employers are distinct from criminal proceedings. The same position is also seen in the case of Clement Karuri v Kenya Ports Authority [2018] eKLR.

54. In light of the above discourse this court finds that the argument advanced by the Petitioner in regard to competency of 2nd and 3rd Respondent to investigate his conduct while attending to the complainant as his patient is only valid in so far as an administrative action is concerned. If for example a case had been filed at Kenya Medical Practitioners Board, the Petitioner could have raised a legitimate issue regarding about the competency of the 2nd and 3rd Respondent in respect to allegation of professional misconduct. But when it comes to allegations on a crime known in law, the 2nd and 3rd Respondents are competent and indeed constitutionally and lawfully mandated to investigate and take appropriate steps as provided by law.

55. The petitioner has not faulted the Respondent’s action for want of procedural propriety, rationality or legality. As correctly submitted by the 5th Respondent, it is not enough for the Petitioner to make allegations that the action taken against him was tainted with impropriety, illegality or irrationality. He should have laid sufficient basis or demonstrate that the actions taken by the Respondents was tainted as such. In this Petition, the Petitioner has failed to lay any evidence or facts to support his claims.

56. This court finds that based on the material evidence placed before this court, there is no basis to fault the 2nd and 3rd Respondent for overstepping their mandate. I find no evidence to indict them for the actions taken.

57. I also find that the 1st Respondent in its decision to prefer charges based on the allegations made, was well within their mandate to prefer charges. As to whether the Office of the Director of Public Prosecution has sufficient evidence to sustain the charge preferred against the Petitioner that obviously is an issue outside the scope and purview of this court. That is an issue that is squarely within the mandate and jurisdiction of the trial court.In the case of Republic v Director of Public Prosecution and 3 Others Exparte Meridian Medical Centre Ltd & 7 Others [2015] eKLR the court made the following observations which I find relevant in this instance.‘‘As regards the challenge made to the sufficiency of the evidence, I am of the view that such a challenge goes to the merits of the criminal case against the Applicants. If the Applicants are allowed in these proceedings to challenge the evidence in the possession of the DPP at this stage, I am afraid that it would amount to pre-empting the DPP’s case by setting out the Applicants’ defence and accepting it as true. Such arguments can only be made in the right forum being the trial Court. This Court is not to be concerned with the sufficiency of the evidence available to support the charges and it is sufficient for the Respondents to demonstrate that they have a reasonable or probable cause that an offence has been committed and therefore the Applicants should stand trial - See William S.K Ruto & Another v Attorney General (supra). The principle that the Applicants are innocent until proven guilty is also one of the tenets of fair trial envisaged under Article 50(2) of the Constitution and in any event, I did not hear the Applicants to be contending that they will not have a fair trial at the Magistrate’s Court and even if they did, they failed to plead with some reasonable degree of precision how their right to fair trial would be violated - See Annarita Karimi Njeru v Republic (1976-1980) 1 KLR 14. ’’

58. This Court cannot interrogate the facts or the evidence to be presented to the trial court in by the Prosecution. The applicant has failed to demonstrate that the1st Respondent has abused its abuse or court process with interior motive or improper purposes of achieving a collateral purpose other than lawful purpose. The Petitioner has not stated or even suggested that the 1st Respondent intends to achieve any other purpose apart from executing its mandate as provided by law. The Petitioner submits that insufficient or inconclusive investigations were done, but that issue is premature at this stage. The matter can and should be raised during the criminal the criminal trial.

59. While the sentiments expressed that court processes must be used properly and in good faith to avoid vexation or oppression, statutory or independent bodies should also be allowed to execute their mandate as provided by law. A court of law intervene only in exceptional circumstances because under Article 27 of the Constitution of Kenya every person is equal before the law and has a right to equal protection and equal benefit of the law whether the is the victim or the Defendant in a case. A court of law can only be called to intervene where the Director of Public Prosecution or the police have acted ultra vires (in excess of their powers) or acted in bad faith and/or contrary to public interest. On whether the Respondent acted outside their mandate and infringed on the of the Petitioner in this case is the next issue for determination.

Whether the rights of the Petitioner were or are likely to be violated in the trial. 60. The Petitioner claims that he should be protected from being dragged through a trial process when it is clear, in his view, that the evidence or investigations done is not sufficient or conclusive. The Petitioner however has not demonstrated any prejudice in raising those issues at the trial court. He has not shown how he is likely to be subjected to unfair trial.

61. A party who feels aggrieved about violations of his Constitutional right should state with specifics how the rights have been violated or likely to be dated. He has said that his right to have Counsel was denied but there is no evidence placed before this court to prove the allegations.

62. This court has gone through the documents filed and considered the allegations made about infringement of Petitioner’s rights but the evidence is lacking. This court is guided by the position taken by the court in the case of Republic v Inspector General of the National Police Service and Another Exparte Hilda Omuma [2019] eKLR where Mativo Judge (as he then was) made the following observations.‘‘The High Court will only prohibit or quash prosecutions or investigations in cases where it would be impossible to give the accused a fair trial or where investigations is blatantly an abuse of the law or where it would amount to misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. It is in the Public interest that Prosecutions be mounted to uphold law and Order and justice to the victims......’’

63. In Joram Mwenda Guantai v The Attorney General [2007] eKLR the Court of Appeal held that the High Court has powers to issue prerogative orders to present abuse of court process when it stated.‘‘........................the High Court has inherent jurisdiction to grant an order or 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 has inherent power and duty to secure fair treatment of all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.................................’’

64. In light of the above decisions, this court finds that the Petitioner has impugned the decision by the Respondent to charge him but apart from saying that investigations done were not adequate, (an issue that after all should aid him in his defence if factual) there is nothing before this court to show or demonstrate that the Petitioner is being subjected to unfair trial. The primary duty of every court is to promote access to justice and prevent injustice or any impediment to justice. The officer of the Director of Public Prosecution is clothed with decisional independence for purposes of ensuring the interests of administration of justice and secure Public interests.

65. The Petitioner has not demonstrated that the decision by the 1st Respondent was laced with malice or was carried out in bad faith or motivated by extraneous matters or for collateral purposes. In sum, the Petitioner has failed to demonstrate that his rights to fair trial were violated or are likely to be violated.

(iii) Whether there is basis for intervention to halt the proceedings at the trial. 66. In light of the above findings the 3rd issue for determination is fait accompli. This court finds no reason or basis to intervene with the ongoing trial against the Petitioner in the Subordinate Court. The issues raised in this petition whether it is sufficiency of the evidence to sustain the charge he faces, or whether the police did shoddy investigations or not are issues to be raised at the trial court which I find is competent and seized of the jurisdiction to determine the same.

In sum, this court finds no merit in this petition and the same is dismissed with same.

DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF NOVEMBER, 2023. HON. JUSTICE R. LIMO-JUDGE