[2022] KEHC 1541 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT ELDORET

CRIMINAL DIVISION

MISCELLANEOUS CRIMINAL APPLICATION NO.E210 OF 2021

BHALVINDER SINGH PANDAL ....................................................................APPLICANT

VERSUS

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

OFFICER COMMANDING KAPSABET

CENTRAL POLICE STATION .............................................................2ND RESPONDENT

DIRECTOR, DIRECTORATE OF

CRIMINAL INVESTIGATIONS ...........................................................3RD RESPONDENT

THE HONOURABLE ATTORNEY GENERAL..................................4TH RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS..............................5TH RESPONDENT

RULING

The Application

1. Before the court for determination is the Applicant’s Notice of Motion application dated 7th October 2020, which seeks the following orders;

a) Spent

b) That the Applicant be arrested by the Honourable Court.

c) That subsequent to prayer (b) above the Applicant be admitted to affordable and reasonable bail pending being arraigned in Court to answer charges preferred against him (if any)

d) That the Honourable Attorney General of the Republic of Kenya, through his officers and the Respondents do appear before this Honourable Court to explain the circumstances of the Applicant’s case and state how they intend to go about it.

e) That the Honourable Court makes such other orders as meet the ends of justice,

f) Spent

g) That costs of this application be provided for.

2. The Application is supported by the Affidavit of Bhalvinder Singh Pandal sworn on 7th October, 2021. The Applicant averred that on or about the year 2016, he began exploring the idea of setting up a tea factory together with his two sons in Nandi South. To that end the applicant stated that he approached his longtime friend Sammy Choge to help him look for land within the area and to assist in dealing with the local authorities with the view of setting up the said factory.

3. The Applicant further averred that on 14th November, 2017 he received a certificate for incorporation for Aldai Tea Factory with his two sons are the directors.

4. On 4th October, 2018 the company received clearance from the National Environment Management Authority to undertake the construction of the said factory.

5. The Applicant later approached Sammy Choge to assist in the ongoing process of registration and setting up of the tea factory and assisted financially with view of being a shareholder when the factory eventually begins its operations. Pursuant to the said agreement it was agreed that Sammy Choge would contribute to some of the finances required for the setting of the tea factory.

6. On 12th March, 2020 the County Government of Nandi issued an approval to Aldai Tea factory on certain conditions being met.

7. It is the Applicant’s case that due to the Presidential Directive issued on 16th March, 2020 in line with the covid-19 pandemic, the financiers who were initially interested in investing in the said tea factory withdrew their support theirby causing and consequently causing financial constraints that lead to the projected being delayed. The applicant approached the said Sammy Choge and promised to refund him the monies he had invested in the project once the economic situation improved.

8. The Applicant contends that a total of Kshs. 1,003,111/= has since been repaid to the said Sammy Choge as evidenced by bank and Mpesa statements.

9. The Applicant stated that in mid-July, 2021 he received a call from one Corporal Kilonzo from the Directorate of Crimianl Investigations in Kapsabet, informing him that he was conducting investigations in line with a complaint that had been filed by Sammy Choge stating that he had obtained money from him by false pretence.

10. It is the Applicant’s contention that the dispute between him and the complainant is a purely civil matter arising out of a commercial transaction which involved setting up of a tea factory that has since stalled due to the Covid-19 pandemic. The applicant further contends that the parties herein have been discussing with a view of resolving the dispute and that over Kshs. 1,000,000/= has already been refunded. The Applicant further contends that this matter should be referred to arbitration and should not be subject to any criminal proceedings and the misuse of police force for purposes of intimidation and threats of arrest.

11. The Applicant is reasonably apprehensive and suspects that the police are about to arrest him based on trumped-up charges which are civil in nature and whose intention is to threaten and coerce the Applicant into paying more money than what was agreed and compel him to compromise any future civil proceedings. That the Applicant’s rights to liberty, security of person and protection of the law are threatened with infringement.

12. The Applicant alleges that he has not known peace since June 2021 when the police begun harassing and threatening and intimidating him so that he abandons his investment and proprietary rights in the suit company.

The Response

13. The application is opposed by the Respondents through a Replying Affidavit sworn by Henry Kilonzo on 1/12/2021. Henry Kilonzo is a police officer based at Directorate of Criminal Investigations in Nandi Central.

14. The Respondents’ case is that on 21/5/2021 the office of the 2nd Respondent received a complaint from one Sammy Choge to the effect that the Applicant had obtained from him sum of Kshs. 7,500,000/= by false pretence with the view that the complainant will be one of the Directors of Aldai Tea Factory; that the said money had been advanced to the Applicant on diverse between 1/12/2019 and 3/2/2020; that in accordance with their regulations the 2nd Respondent then recorded the said complaint in its occurrence book as OB No. 21/21/05/2021.

15. Accordingly the 2nd Respondent then recorded the statement of the complainant, and further summoned Applicant together with his two sons and recorded their statements regarding the allegations raised by the complainant. That from the 2nd Respondent’s investigation through statements and documents received, the 2nd respondent formed an opinion that there was enough evidence to sustain and charge the Applicant. Consequently the 2nd respondent wrote to the 5th Respondent seeking advice on its preferred charge of obtaining by false pretence contrary to section 313 of the Penal Code. The 5th Respondent vide its letter dated 8/9/2021 concurred that the Applicant herein be charged with obtaining by false pretence contrary to section 313 of the Penal Code. The 2nd Respondent then prepared charge sheet to be approved by the ODPP Kapsabet, but before the same could be concluded, the Applicant herein obtained temporary orders staying the arrests pending the hearing of this instant application.

16. It was the respondents’ contention that the applicant has not in any way been harassed by the Respondents. That the Respondents and or their agents have only undertaken their mandate and duties as outlined in the constitution and their respective legislative provisions, at all times ensuring and maintaining professionalism, while upholding the applicant’s constitutional rights as envisaged in the Constitution.

17. The Respondents further contended that the applicant has not proved how the Respondents or their agents have harassed, threatened and or intimidated him or has not shown how the Respondents or their agents acted in contravention of the Constitution or the law. It was the Respondents’ case that the Applicant has failed to discharge the burden of proof and is undeserving of the orders sought.

18. The 2nd Respondent has since completed its investigations into the complaint received on 21/5/2021 and the finding of the said investigations show that the applicant is culpable of the accusations made against him and thus he is to be arraigned in court to face the charges that shall be preferred against him.

19. It is the respondents’ case that there is a thin line between a commercial dispute and the ingredients of obtaining by false pretence. It was the respondents’ contention that nothing stops a complainant in a criminal case from instituting a civil suit against the applicant as the cases can run and be heard concurrently.

20. The respondents contended that the Applicant has not made out a case why this Court should grant him the prayers sought and why the court should not discharge the orders already in force. It was the respondents case that the applicant’s aim is to frustrate the prosecutorial process against him.

21. The Respondents urged the court to dismiss the Applicant’s application with costs.

Submissions

22. Both parties filed their submissions. The Applicant’s submissions were filed on 9/12/2021; while the Respondents’ submissions were filed on 14/12/2021.

Issues for Determination

23. I have carefully considered the application and rival affidavits and submissions together with the cited case law. In my view the following issues merit my determination;

i. Whether the Respondents have violated the Applicant’s constitutional rights;

ii. Whether Criminal and Civil Proceedings can run concurrently and;

iii. Whether the Applicant should be granted anticipatory bail.

24. I will begin with the issue whether the constitutional rights of the Applicant have been or were likely to be violated by the Respondents. I have closely looked at the Applicant’s supporting affidavit and submissions. Nowhere in these pleadings have I found an articulation of how the constitutional provisions cited have been violated. In Anarita Karimi Njeru vs Attorney General (1979) KLR 154/ [1976-1980, KLR 1272], the court held as follows;

“We would however again stress that if a person is seeking redress from the High Court on a matter which involves a reference of the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”

25. The Applicant has alleged violation of his constitutional rights under Article 29 of the Constitution. Article 29 of the Constitution combines a right to freedom and security of person with a right to be free from bodily and psychological integrity. It is essentially intended to protect the physical integrity and dignity of the individual.

26. It is the duty of the court to protect citizens against harsh and unfair treatment and to grant appropriate relief as mandated by Article 23 (3). This was aptly captured inReginal vs. Ittoshat (1970) CRNS, 385where the court held that;

“This court not only has a right but a duty to protect citizens against harsh and unfair treatment. The duty of this court is not only to see that the law is applied but also, which is of equal importance, that the law is applied in a just and equitable manner.”

27. In the present case, the Applicant’s contention is that he has been severally threatened through phone calls until sometime in mid-July 2021. The Applicant contends that there have been threats of arrest and intimidation directed to him by the police. The Applicant whoever does not tender any evidence whatsoever to show how the Respondents have infringed on his Constitutional rights. The Applicant does not show how the actions by the Respondents have infringed or threaten to infringe on his constitutional rights.

28. In view of the foregoing principles and the facts pleaded by both the applicant and the respondents, I find no demonstration of actual or intended violation of the Applicant’s fundamental rights. From evidence on record the applicant herein was only summoned by the 2nd Respondent upon receipt of a complaint from one Sammy Choge alleging that he had obtained money from him by false pretense. Pursuant to their mandate as enshrined in the Constitution and other supporting legislations the 2nd respondent summoned the applicant together with his two sons with the view of carrying out investigations on the alleged complaint. There is no indication that the Applicant was harassed during the said investigations.

29. The second issue for determination in this application is whether a criminal case and a civil case can run concurrently.The Section reads:

“193A. Concurrent criminal and civil proceedings

Notwithstanding the provisions of any other written law, the fact that 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 proceedings.”

30. In Republic vs Inspector General of the National Police Service & Another Ex parte Beatrice Hilda Omunia; Peter Nganga Chege & 2 Others (Interested Parties) [2019] eKLR, Justice John Mativo J. while commenting on the above provision held as follows at paragraph 30 of his Judgement:

“30. Even though it is not for this court to consider the defense of the accused persons, which is basically a function of the trial court, the core issue raised by the ex parte applicant is that the dispute is purely civil. Section 193A of the Criminal Procedure Code permits parallel civil and criminal proceedings, hence, even if there was a civil suit in court, the existence of a parallel civil case is not bar to criminal proceedings. [14] The offence being investigated is known to the law, hence, the cited provision. The conduct under investigation can attract a criminal sanction if proved.”

31. On the one hand the applicant has submitted that the dispute between him and Sammy Choge is purely a civil matter and therefore the 5th respondent cannot prefer criminal charges against him while on the other hand the respondents have argued that nothing stops a complainant in a criminal case from instituting a civil suit and that both cases can run and be heard concurrently.

32. In my view, the fact that a complaint may be of civil nature does not mean the investigating agency cannot investigate it. The police have a constitutional mandate to investigate offences and prefer charges. They have a duty to investigate and find if there is criminal element in the complaint made. How then would the investigating officer form an opinion that it is of a civil nature without carrying out investigation? We cannot therefore say the investigating officer cannot investigate because they are required to investigate every complaint lodged. But that does not necessarily mean all will result to arrest and criminal trial. The Applicant herein cannot therefore argue that this is a purely civil matter and hence he cannot be arrested.

33. In the present case the 2nd Respondent has explained that on 21/5/2021 it received a complaint from one Sammy Choge alleging that the Applicant herein had obtained Kshs.7,500,000/- from him by false pretence. Every trial process begins with a complaint being made to the police, who then initiate investigations before arresting the suspect person if there are compelling reasons to do so. The accused person is then arraigned in court. In my view there is no reason why the Applicant should not go through that process. The police in this particular case were only doing that which is within their mandate. From the pleadings on record, it is also clear that at the moment no civil suit has been instituted by either party. In view of the foregoing, I don’t see any reason why the 5th Respondent should be barred from preferring charges (if any) against the Applicant herein.

34. The final issue for determination is whether the Court should grant the Applicant anticipatory bail.

35. Article 49 (1) (h) of the Constitution of Kenya provides as follows;

“An arrested person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.”

36. 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; a position that was also held in the case of Kevin Okore Otieno vs Republic (2013)eKLR where the court held that Investigators must feel and be free to do their work without fear of having their authority and/or mandate stifled by courts merely because courts have power and authority to grant anticipatory bail when sought. The fact that a person feels inconvenienced by investigations is not sufficient reason for him to be granted anticipatory bail and such an order should only be granted in the clearest of situations that point to a violation, infringement or threat or contravention of a person’s right under Article 49 of the Constitution of Kenya.

37. The Applicant has not demonstrated that his rights are under threat of infringement or violation. I find that the Applicant has not proved through any factual or other evidence that the Respondents have acted illegally, arbitrarily, unjustly, irregularly, or oppressively. I therefore see no merit in the Application. The Applicant has not met the threshold for granting anticipatory bail.

38. The result is that the application before the Court dated 7/10/2021 is dismissed with costs.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF MARCH 2022.

E.K. OGOLA

JUDGE