[2021] KEHC 13467 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A.C. Mrima, J.)

CONSTITUTIONAL PETITION NO. E273 OF 2020

BETWEEN

CHRIS OCHIENG.............................................................................................1ST PETITIONER

JOSEPH NJUGUNA .........................................................................................2ND PETITIONER

PHILIP KAMAU NJUGUNA ......................................................................... 3RD PETITIONER

KIRIKOININ INVESTMENTS LIMITED....................................................4TH PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS......................................1ST RESPONDENT

INSPECTOR GENERAL OF POLICE ......................................................2ND RESPONDENT

AND

JUDE ANYIKO ........................................................................................INTERESTED PARTY

JUDGMENT

Introduction:

1. The Petition subject of this judgment is in respect of alleged threatened infringement of rights and fundamental freedoms and the Constitution.

2. The Petitioners are apprehensive that the Interested Party is likely to lodge a criminal complaint against them and that they are likely to be arrested and charged in circumstances which the Petitioners view as purely civil in nature and does not call for the intervention of the criminal justice system.

3. The dispute between the Petitioners and the Interested Party arose out of some money which the Interested Party advanced the Petitioners on an understanding that the Petitioners will secure title documents in respect of a parcel of land and thereafter sub-divide the land and transfer one acre thereof to the Interested Party. It seems that the arrangement may not have materialized.

4. The Petition is vehemently opposed.

The Petitioners’ case and submissions:

5. The Petition is dated 9th September, 2020 and is supported by an affidavit evenly sworn by one Joseph Njuguna, the 2nd Petitioner herein on his own behalf and on behalf of the rest of the Petitioners. Contemporaneously with the filing of the Petition was a Notice of Motion of even date under certificate of urgency seeking conservatory orders inter alia staying the arrest and institution of criminal proceedings against the Petitioners. The Petitioners also filed another Notice of Motion dated 15th October, 2020 seeking similar orders.

6. The 2nd Petitioner swore the dispositions on behalf of the rest of the Petitioners.

7. It is deponed that the 2nd and the 3rd Petitioners are Directors and Shareholders of the 4th Petitioner Company herein (hereinafter referred to as "the Company").

8. The 2nd Petitioner further deponed that the 3rd Petitioner was the le­gal allottee of the property known as Kamiti/Anmer Plot No 1051 (hereinafter referred to as "the property"). The property was allotted to the Company on the 11th June, 1996 by the then County Council of Kiambu.

9. It is the Petitioners’ case that the 2nd, 3rd and 4th Petitioners were desirous of obtaining title documents to the property and to also inject some capital into the Company. However, they were financially handicapped. In November, 2019 they looked for a lender to advance them the capital finance so as to process the title documents for the property and to undertake other engagements in the Company. They needed a total of Kshs. 10,000,000/- (Read: Kenya Shillings Ten Million Only).

10. The 2nd Petitioner stated that although the 1st Petitioner was not a Director or a Shareholder of the Company, the 1st Petitioner was well known to the 2nd and 3rd Petitioners since they had undertaken several business transactions together. The 2nd and 3rd Petitioners shared their thoughts with the 1st Petitioner.

11. In a bid to help the 2nd and 3rd Petitioners, the 1st Petitioner introduced them to the Interested Party who was well known to him. The Interested Party agreed to advance the required sum of Kshs. 10,000,000/= to the 2nd, 3rd and 4th Petitioners on two conditions. The first condition was that the 2nd, 3rd and 4th Petitioners would transfer one acre of the property to the Interested Party once the title document was processed. The other condition was that since

the Interested Party was well acquainted with the 1st Petitioner, he would advance the money through the 1st Petitioner.

12. The parties herein agreed to all the terms of engagement. The Inter­ested Party thereafter successfully transferred a total Kshs. 6, 600, 000/= (Read: Kenya Shillings Six Million and Six Hundred Thousands Only) to the 2nd, 3rd and 4th Petitioner through the 1st Petitioner. For clarity, the funds were disbursed in two tranches of Kshs, 5, 000, 000/= which was transferred to the 1st Petitioner's account while Kshs. 1, 600, 000/= was deposited into the 3rd Petitioner's account. Nevertheless, the money was received and that was duly acknowledged.

13. The 2nd, 3rd and 4th Petitioners stated that they immediately engaged the processes as agreed and accordingly disbursed the monies they received from the Interested Party. Meanwhile, the 2nd, 3rd and 4th Petitioners awaited for the balance from the Interested Party to aid them complete the processes.

14. It was averred that in an unexpected turn of events the Interested Party unilaterally renegaded on the agreement and immediately demanded for a full refund of the sum of money he had advanced the Petitioners.

15. The 2nd, 3rd and 4th Petitioners further averred that they sought for time so as to make arrangements towards the refund. However, to the Petitioners’ utter shock and surprise, the Interested Party would not accord them time. He began to incessantly demand, harass and coerce the Petitioners. He also informed them that he was intent on lodging a criminal complaint with the police.

16. The Petitioners were apprehensive that unless this Honorable Court intervened, the Interested Party who is an influential individual will irregularly lodge the criminal complaint against them with a view of using the criminal justice system to otherwise settle a civil dispute which the Interested Party fully instigated by renegading on the agreement.

17. The Petitioners, on advice of their Counsel, contended that if the Interested Party and the Respondents are allowed to engage the criminal system, their rights and fundamental freedoms under Article 27 of the Constitution and as protected by several interna­tional instruments, stand to be variously infringed.

18. Ina subsequent disposition the Petitioners alleged that indeed the Interested Party had laid the complaint to the police and that they had been summoned to appear before the police. At that point in time this Court issued conservatory orders staying any further action by the Respondents.

19. The Petitioners filed submissions on the conservatory applications. They discussed the applicable principles and referred to various decisions and their application to the matter.

20. It, therefore, seems that the Petitioners did not file any submissions on the main Petition. Be that as it may, the determination of the main Petition will effectively dispose of the applications.

21. In the main, the Petition sought the following orders: -

a) A declaration that the threatened arrest and prosecution of the Petitioners based on the issues herein is unlawful and unconstitutional.

b) That a permanent injunction issue against the 1st and 2nd Respondents from arresting detaining, restricting or other­wise confining or in any other way interfering with the liberty of the 1st and 2nd Petitioners herein in respect of or in connection with the complaint or allegation made arising from this matter.

c) That a permanent injunction issue restraining the 1st Respondent from instituting charging or prosecuting the 1st and 2nd Petitioners herein in respect of or in connection with the complaint or allegation made arising from this matter.

d)Any other order it may deem just, fit and expedient to grant

The Respondents’ case and submissions:

22. The Respondents filed joint Grounds of Opposition against the Petition.

23. The grounds are as follows: -

1. THAT the 1st Respondent has and continues to act within the confines of the Constitution particularly Article 157 of the Constitution and all other laws incidental thereto in that state powers of prosecution are exercised by the Director of Public Prosecutions personally or by persons under his con­trol and direction;

2. THAT under Article 157(10) of the Constitution, in the exercise of such powers, the Director of Public Prosecutions is subject only to the Constitution and the law; does not require the consent of any person or authority; is independent and not subject to the direction or control of any person or authority.

3. THAT Article 245(4)(a) and (b) of the Constitution states that no person may give a direction to the Inspector-General with respect to the investigation of any particular offence or offences, the enforcement of the law against any particular person or persons.

4. THAT the High Court would be crossing into the line of the independence of the 1st and 2nd Respondents to descend into the arena by granting blanket conservatory orders against the respondents in matters that have not even been brought to their attention. The interested party is yet to make any report at any police station. Mere apprehension of the criminal justice process does not in any way indicate a violation of rights.

5. THAT the petitioner applicant has not demonstrated that the Respondents have not acted independently or will not act independently or has acted capriciously, in bad faith or has abused the process in a manner to trigger the High Court's intervention.

6. THAT every case investigated by the Respondents and a decision made by the Director of Public Prosecutions on whether or not to prefer criminal charges is based on whether or not there is sufficient evidence to make such a decision; the application therefore is premature. The Petitioners ought to have nothing to fear if they have not committed any criminal offence.

7. THAT Section 193A of the Criminal Procedure Code allows for concurrent civil and criminal proceedings over the same subject matter.

8. THAT the petitioners' Application herein has been filed in bad faith, is frivolous, misconceived, premature and an abuse of the court process and meant to derail and defeat the cause of justice.

9. THAT the Petitioner has not demonstrated a prima facie ar­guable case on breach of any Constitutional right or fundamental freedom by the Respondents.

10. THAT in view of the foregoing I pray that the Application and Petition dated 9th September, 2020 be dismissed with costs as against the Respondents.

24. The Respondents did not file any submissions to the Petition.

Interested Party’s case and submissions:

25. The Interested Party filed Grounds of Opposition in opposition to the Petition.

26. The grounds are as follows: -

1. The Petitioners are acting in bad faith as they have never served the Interested Party who only came to learn of this Petition when the 1st and 3rd Petitioners alluded to it in MC COMMSU E7071 of 2020.

2. The Petition does not meet the grounds required for a petition as set out in Annarita Karimi Njeru vs. Attorney General [1979] KLR 154; [1976-80] 1 KLR 1272

3. The Petition does not clearly demonstrate any prejudice that will be suffered by the Petitioners if a civil and/or criminal proceeding were to be instigated against them.

4. That the petitioners, having admitted that they indeed owe money to the 1st Interested Party, which they have since not paid, and the 1st interested party verily believes the said amounts owed were fraudulently acquired, cannot then be im­mune from prosecution for recovery of the same in both civil and criminal proceedings.

27. In his submissions, the Interested Party stated that the main issue for determination was whether the Petitioners’ rights and fundamental freedoms were threatened to warrant the grant of the orders sought.

28. In countering the issue, the Interested Party submitted that the Petitioners admitted that they owed money to the Interested Party which monies they have to date failed to re-pay. The Interested Party verily believed that the amounts were fraudulently acquired, which would amount to a crime.

29. The Interested Party, submitted further that, believing that a fraud has been perpetuated, has the right to lodge a complaint against the Petitioners, it was submitted. It is further submitted that once a complaint is lodged, it will be upon the 2nd Respondent to carry out investigations and based on the results, to recommend to the 1st Respondent who would finally decide on whether or not to charge the Petitioners or any of them.

30. The Interested Party also submitted that he has no control over the Respondents and the allegation that the complaint will automatically lead to arrest and prosecution is baseless. He asserted that the Respondents are empowered to carry out their mandates under the Constitution without control. To that end, the Interested Party cited Articles 245(4) of the Constitution on the independence of investigators and Article 157(10) of the Constitution on the independence of the Director of Public Prosecution.

31. The Interested Party, therefore, submitted that there was no basis that any complaint that may be lodged will automatically lead to ar­rest and prosecution.

32. In addition, the Interested Party submitted that the law further allowed both civil and criminal proceedings to proceed concurrently under Section 193A of the Criminal Procedure Code. He affirmed that the Petitioners cannot, therefore, claim that the pendency of any civil proceedings is an automatic immunity to criminal proceedings. What the Petitioners had to establish is that any investigations that may be launched and any prosecution that may be instituted, will amount to an abuse of the justice system and will violate their fundamental rights and freedoms which according the Interested Party, which they have failed to do.

33. The Interested Party relied on Raphael Gervace Otieno Kopiyo & 4 others v Inspector General of Police & 2 others [2020] eKLR where the High Court dealt with a similar matter and stated as follows:

17. It is the petitioners’ case that the criminal process is being used to settle a purely commercial dispute between it and the Bank. The onus is on the petitioners to demonstrate abuse of process. In Kuria (supra), it was held that: -

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.

18. In my view, it is not even enough to establish the existence of a civil dispute because Section 193A of the Criminal Procedure Code, Cap. 75 allows for concurrent criminal and civil proceedings over the same subject matter. He who seeks to stop the exercise of the respective investigative and prosecutorial powers of the police and the DPP must go an extra mile. If, the claim is that the matter that is being subjected to the criminal process is purely a commercial or civil dispute, then it must be shown why and how this is so. It is not enough to just assert that the matter is civil in nature.

19. The respondents have placed evidence before this Court that the purported contract between the petitioners’ Company and Huawei Technologies was not genuine but was only meant to defraud the Bank of its money. The petitioners did not rebut these serious allegations. The respondents have therefore demonstrated that the petitioners may have committed an of­fence known to the law. The theatre for a criminal trial is the trial court-see the Court of Appeal decision in Meixner & an­other v Attorney General [2005] 2 KLR 189.

20. The petitioners have not in any way demonstrated abuse of power by either the police or the DPP. As was held in Meixner (supra), this Court can only exercise its power to halt a prosecution where it is established that fundamental rights and freedoms have been violated in the process of the prosecution. The petitioners have not shown such abuse. In short, this petition is without merit. It is therefore dismissed with no orders as to costs.

34. The Interested Party found further refuge in Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others [2019] eKLR, that analysed the question of whether criminal investigations and potential prosecution may be interfered with. The Court stated as follows:

51. In the matter at hand, there is yet no prosecution, and the copies of alleged proposed charge sheets remain just that – alleged proposed charge sheets. The Court is not in a position to weigh the weight of would be evidence and what probative evidential value to place thereon.

35. The Interested Party submitted that in the present case, the Petitioners whole basis for seeking the grant of the orders is that the Interested Party intimated that he would lodge a complaint against them. He asserted that there is no allegation that investigations have been or are being carried out in violation of their constitutional rights and fundamental freedoms. There is further no allegation that a decision to prosecute them has been taken in violation of their rights and fundamental freedoms.

36. What the Petitioners are attempting to do is to tie the hands of the Respondents so that they are unable to carry out their mandate even if, in the course of any investigations, they determine that a crime was committed by the Petitioners. That amounts to an abuse of the court process as the Petitioners want to use the Court process to hide behind and conceal their acts from scrutiny by officials. This cannot be allowed and reference was made to David Ratik Ole Kayuna & 2 others v Director of Public Prosecutions & another [2015] eKLR].

37. The Interested Party finally submitted that the Petitioners failed to demonstrate that their rights and fundamental freedoms had been threatened and/ or violated and that the Petition ought to be dis­missed with costs.

Issues for Determination:

38. The parties herein proposed, and the Court approved, that the Peti­tion be heard together with the Notice of Motion application.

39. From the documents filed by the parties, the issues that arise for determination are: -

i. Whether there is a proper Petition before Court.

ii. If the answer to the first issue is in the affirmative, a general discussion on prosecutorial powers, Section 193A of the Criminal Procedure Code and abuse of Court process.

iii. Whether the intention by the Interested Party to lodge a criminal complaint against the Petitioners contravenes Articles 27, 29 and 157(11) of the Constitution.

40. I will deal with the issues in seriatim.

Analysis and Determinations:

(i) Whether there is a proper Petition before Court.

41. This preliminary issue was raised by the Interested Party through the Grounds of opposition. It is claimed that the Petition does not meet the precision threshold required of constitutional Petitions as established by the famous finding in Miscellaneous Criminal Application 4 of 1979,Anarita Karimi Njeru v Republic[1979] eKLR.

42. The issue was not responded to by the Petitioners. I will neverthe­less, consider it.

43. The above case is hailed for establishing the following precedent in respect of constitutional Petitions: -

… if a person is seeking redress from the High Court on a matter which involves a reference to 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…

44. The foregoing finding received endorsement from the Court of Appeal in Nairobi Civil Appeal No. 290 of 2012,Mumo Matemu v Trusted Society of Human Rights Alliancewhen the Learned Judges remarked on the importance of compliance with procedure under Article 159 of the Constitution, the overriding objective principle under section 1A and 1B of the Civil Procedure Act and need for precision in framing issues in constitutional Petitions. It was observed thus: -

(41) We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.

45. The Learned Judges further bolstered the foregoing finding by making reference to the decision of Jessel, M.R in Thorp v Holdsworth(1876) 3 Ch. D. 637 at 639 where he made the following findings: -

… The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and de­cided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing….

46. In making a finding that the High Court was right in its assessment that the Petition before it had not been drafted with the necessary precision, the Learned Appellate judges reaffirmed the Anarita Karimi Njeru principles and made the following findings: -

(43) The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.

(44) We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent.

47. The Apex Court has, as well, discussed the issue. That was in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others[2014] eKLR where the Court stated as follows: -

Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provi­sions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

48. Having set out the principles required of constitutional Petitions, I will hence consider the craftsmanship of the instant Petition.

49. The Petition has five main parts. They are the description of the parties, the legal foundations of the Petition, the facts and grounds relied upon, the threatened violations complained of and the remedies sought.

50. In a synopsis, the Petitioners sets out in a fairly detailed fashion the constitutional foundation of his complaint. He pegs the Petition on Articles 10, 24, 27, 50, 129 and 165of the Constitution.

51. In the fourth part, the Petitioners described the manner in which their rights under Articles 27 and 29 of the Constitution were allegedly threatened with infringement. They also described how the Respondents were likely to contravention of Article 157(11) of the Constitution.

52. Given the manner in which the Petition is drafted, this Court is sat­isfied that the Petition is in line with, and passes the threshold of reasonable precision, as discussed above. Further, the Petition is in consonance with Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’).

53. In the end, the first issue is answered in the affirmative.

(ii) A general discussion on prosecutorial powers, Section 193A of the Criminal Procedure Code and abuse ofCourt process:

54. I recently discussed this issue in Nairobi High Court Constitutional Petition No. E033 of 2021 Maura Muigana vs. Stellan Consult Limited & 2 Others (unreported) and also in Nairobi High Court Constitutional Petition No. E216 of 2020 Reuben Mwangi v Direc­tor of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties)[2021] eKLR.

55. As part of the introduction of the subject in Maura Muigana vs. Stellan Consult Limited & 2 Others case (supra), I acknowledged the many writings by legal scholars and decisions by Courts and appreciated that whereas it would have been desirable to come up with all the marvellous work on the issue in a ‘one-stop shop’, that was a tall order given the time constraints and the need for expeditious disposal of cases. I, however, rendered a concise discussion on the subject.

56. I traced the legal basis of the exercise of prosecutorial powers in Kenya to the Constitution and the law. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as under: -

1) There is established the office of Director of Public Prosecutions.

2) The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President.

3) The qualifications for appointment as Director of Public Prosecutions are the same as for the appointment as a judge of the High Court.

4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

5) The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.

6) The Director of Public Prosecutions shall exercise State powers of prosecution and may--

a) 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;

b) take over and continue any criminal proceedings com­menced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

c) subject to clause (7) and (8), discontinue at any stage be­fore judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

7) If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.

8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.

9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

10) 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.

11) 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.

12) Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

57. There is, as well, the Office of Director of Public Prosecutions Act No. 2 of 2013 (hereinafter referred to as ‘the ODPP Act’). It is an Act of Parliament aimed at giving effect to Articles 157 and 158 of the Constitution and other relevant Articles of the Constitution and for connected purposes. The ODPP Act provides in Section 4 the guiding principles in prosecution of cases as follows:

(4) 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.

58. The ODPP Act, among other statutes, variously provide for the manner in which the DPP ought to discharge its mandate. Suffice to say, the exercise of prosecutorial powers by the DPP has been sub­jected to legal scrutiny and appropriate principles and guidelines developed.

59. Recently, the Supreme Court sufficiently rendered itself regarding termination of criminal proceedings on the basis of the dispute being civil in nature and also on account of inordinate delay in instituting an intended prosecution. That was in Petition No. 38 of 2019 Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR.

60. On whether the proceedings were more of a criminal or civil nature and on Section 193A of the Criminal Procedure Code, the Apex Court rendered the following discussion: -

[73] The above question is pertinent and must be addressed as a corollary to the issues we have determined above. In that context, the Appellant claims that he purchased lawfully all shares in the 1st Respondent’s company and eventually became a director and shareholder. The 2nd and 3rd Respondents on the other hand maintain that there has never been any change of the directorship or shareholding of the 1st Respondent, claiming instead that they have always been its sole directors and shareholders. It is evident therefore that the main issue in contention involves the company registration forms of the 1st Respondent company as well as the alleged change of its ownership.

[74] The question whether a complainant can pursue both civil and criminal proceedings at the same time is not a new one in our realm. In the present case, it is admitted that the 2nd and 3rd Respondents have institutedCivil Suit No.132 of 2015at the ELC and one of the claims made therein is that title documents for the suit property have been lost.

[75]The Appellant has however argued that the 2nd and 3rd Re­spondents then instituted his prosecution on alleged fraud charges and unlawful use of the title documents to obtain credit whilst also claiming that the same documents had been lost thus pointing to malice in his prosecution. What is the law in such a situation?

[76]The Court of Appeal persuasively stated in the case ofCommissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others[2013] eKLR that:

Clearly, the company and the guarantor through their directors were employing criminal process to assist them in resolving their civil dispute. 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 that 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 the administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and a travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court. This is a 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. We have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power. The police should direct their energies and resources to prevention of crime which we all know is rampant in this country and is about to get out of control.

[77] We respectfully agree and adopt this position in this case but must add that where it is obvious to a Court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil Court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then Section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action.Criminal pro­ceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd Respondents have done. It is indeed ad­visable for parties to pursue civil proceedings initially and with firm findings by the civil Court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book. In addition, we shall, later in this Judgment, express ourselves on the criteria to be used by the High Court before terminating any criminal prosecution.

[78]Having so said, we have already expressed ourselves on the right to fair trial and we must now make a finding that, in the unique circumstances of the present case, the institution of civil proceedings, simultaneously with criminal proceedings, claiming on one hand that title documents had been lost, while in another, claiming that they were in the possession of the Appellant and his banks or a third party, ASL Ltd, the 10th Respondent, is indeed an expression of mischief and dishonesty. This or another Court should never countenance such conduct for it brings the entire criminal justice into disrepute.

61. On whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP contrary to the Constitution, the Supreme Court stated as follows: -

[79] The High Court in its finding, prohibited the Respondents from proceeding with any criminal proceedings against the Appellant in relation to the suit property or any subject matter and transaction connected to the suit property. The Court of Appeal reversed this judgment by holding that the High Court had interfered with the discretion given to the Director of Public Prosecutions (DPP) to initiate and conduct prosecution. Essentially, the Court of Appeal found that the High Court went against public interest in preventing investigation and prosecution of allegations relating to fraudulent transfer and acquisition of the suit property and that the learned Judge interfered with the prosecutorial mandate of the DPP to decide on whether to charge or not to charge an individual.

[80]The 5th, 6th and 7th Respondents on their part, maintain the position that the decision to commence investigations against the Appellant was consistent with the provisions of Article 157 of the Constitution and Section 6 of the Office of Director of Pub­lic Prosecutions Act. They also submitted that the decision to institute criminal proceedings by the DPP is discretionary and that such exercise of power is not subject to the direction or control by any authority as provided for under Article 157(10) of the Constitution.

[81]Under Article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any Court. Article 157(6) provides as follows:

(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may-

(a) 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.”

Article 157(4)provides that:

(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

However, Article 157(11) stipulates that:

(11) 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.

[82] Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.

[83]In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that: -

Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public pur­pose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.

By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.

It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v. R.[2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR. (emphasis supplied)

[84] Furthermore, the Supreme Court of India inR.P. Kapur v State of PunjabAIR 1960 SC 866 laid down guidelines to be considered by the Court on when the High Court may review prosecutorial powers. They are as follows:

(I) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or

(II) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or

(III) Where the allegations in the First Information Re­port or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; or

(IV) Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

[85] We are persuaded that this is a good guide in the interrogation of alleged abuse of prosecutorial powers and read alongside Article 157(11) of the Constitution, we have sufficiently expressed ourselves elsewhere in this Judgment to show that the unconstitutional continuance of the criminal proceedings against the Appellant amounts to abuse of Court process and that, balancing the scales of justice, the weight would favor the Appellant and not the Respondents.

62. On public interest, the Court expressed itself as follows: -

[86]On public interest, what is in issue is a dispute arising from a commercial transaction 24 years ago where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals.

[87]The learned Judge of the High Court, in our view, was well within his mandate under Article 165(3)(d)(ii) as read with Article 157(11) of the Constitution to curtail the Appellant’s prosecution and the DPP’S powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court.

63. And, on whether inordinate delay in instituting an intended prosecution would infringe the rights and freedoms of the party sought to be prosecuted under Articles 19, 20, 27 and 50 of the Constitution, the Apex Court had the following to say: -

[56]The question of delay with respect to the lodging of criminal prosecutions has been addressed by our Courts in several matters. The leading persuasive decisions on the subject are the High Court cases ofGithunguri v Republic(1986) KLR 1 andRepublic v Attorney General & Another ex Parte Ng’eny(2001) KLR 612 which both Superior Courts relied on.

[57] In Githunguri v Republic (supra), the Court stated as follows:

In this instance the delay is said to have been nine years, six years and four years. The Court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the Court the reason but it would have made us knowledgeable if told.

We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute, and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available there­after, it can in no way be said that the hearing of the case by the Court will be within a reasonable time as required by section 77(1). The delay is so inordinate as to make the non-action for four years inexcusable in particular because this was not a case of no significance, and the file of the case must always have been available in the Chambers of the Attorney-General. It was a case which had received notable publicity, and the matter was considered important enough to be raised in the National Assembly.

We are of the opinion that two indefeasible reasons make it imperative that this application must succeed. First as a consequence of what has transpired and also being led to believe that there would be no prosecution the applicant may well have destroyed or lost the evidence in his favour. Secondly, in the absence of any fresh evidence, the right to change the decision to prosecute has been lost in this case, the applicant having been publicly informed that he will not be prosecuted and property restored to him. It is for these reasons that the applicant will not receive a square deal as explained and envisaged in section 77(1) of the Constitution. This prosecution will therefore be an abuse of the process of the Court, oppressive and vexatious.

[58] Similarly in the case of Republic v Attorney General & An­other Ex Parte Ngeny (2001) KLR 612, the Court addressed this question and stated that:

In the case before us, the delay was nine years. No attempt has been made to explain it. The subject matter of the charges against the Applicant is a colossal sum involving an institution that was strategic to the Government when the losses were occasioned; so why did the State not mount a prosecution immediately? Nine years is too long a delay. We cannot think anything else but that the criminal prosecution against the Applicant was motivated by some ulterior motive. It is not a fair prosecution. It was mounted quite late: Nine years after the Applicant had vacated the relevant public office alleged to have been abused. We were told, and this was not challenged, that having been out of office for that long, he does not have in his possession material to prepare his defence. This we be­lieve. We are of the view that to allow delayed prosecutions is akin to putting a noose around the necks of individuals and then saying to them: 'Go, you may go. We shall decide your fate as and when we wish.' This is to keep the individual in fear. This does not accord with constitutional guarantees of individual rights and freedoms and is nothing more than an abuse of the process of the Court.

[59]The argument put forth by the Appellant is that his right to be tried within a reasonable period of time has been infringed in view of the fact that it has taken 24 years for him to be prosecuted. The Appellant cites the various hurdles to the impending trial that will result in him not having a fair trial; the missing Land Registry file as well as the loss of vital documentary evidence.

[62] In addressing this issue, we note that in the case ofGeorge Joshua Okungu & Another v The Chief Magistrate’s Court Anti-Corruption Court at Nairobi & Another(supra), the High Court persuasively held that: -

.....it is not mere delay in preferring the charges that would warrant the halting of the criminal proceedings. Rather, it is the effect of the delay that determines whether or not the proceedings are to be halted. In this case, there is no allegation made by the Petitioners to the effect that the delay has adversely affected their ability to defend themselves. In other words, the Petitioners have to show that the delay has contravened their legitimate expectations to fair trial.

[65] This Court in the case ofHon. Christopher Odhiambo Karan v David Ouma Ocheing & 2 Others[2018] SC Petition No. 36 of 2019 had an opportunity to discuss the significance, distinctive meaning, scope and implication of the right to a fair trial and stated that“It is therefore settled law that all persons who come to any Court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution 2010 in Article 25(c) placed a bar on limitation of the right to a fair trial, in civil and criminal matters.”

[66]It is in the above regard trite that there is no limitation of time to institute and prosecute criminal offences but as stated inGithunguri,where the delay has the effect of denying a suspect the legal tools to mount a credible defence, then the High Court is properly mandated by the Constitution to step in and stop the intended prosecution.

[67]Similarly, where the delay was occasioned by deliberate inaction on the part of a complainant with the intent of getting at a suspect to force the suspect’s hand in say, a different transaction between them at a later date or even use the complaint to force settlement in ongoing civil proceedings, then, again the High Court, as a Court of first instance, must step in because the intended pros­ecution is tainted with malice and not the otherwise unassailable intent to furnish criminal wrong doing, promptly.

[68] Furthermore, both Articles 49(1)(a)(ii) and 50(1) and (2)(e) of the Constitution expect that in resolution of disputes, fairness must necessarily include the promptness of action and the inhibition against unreasonable delay. What is reasonable, it is now settled, includes both the reason for delay and the period of delay.

[69]In the present case, all the evidence before us points to the fact that the documentation necessary to prove the alleged fraud may no longer be available and we agree with the learned Judge of the High Court that, where both parties have admitted that the same issues are also pending resolution in another Court, and that the issue of lost documentation remains unresolved, it would be most unfair to subject the Appellant to a criminal trial, 24 years after the impugned transaction.

[70]What of the fact that it is admitted that the 2nd and 3rd Re­spondents indeed received part purchase price for purchase of the suit property? Why would it take them 24 years to decide that they were now entitled to the balance thereof as well as return of the title documents? Our position is that such a delay and use of the criminal process to force the hand of the Appellant fatally taints the fairness of the resultant prosecution.

[71] Lastly, in instituting the prosecution, the ODPP, without in any way taking away the constitutional mandate to prosecute crimes, ought always to act judiciously and not act in perpetuation of an unfair and malicious criminal complaint. In doing so, that office must always be guided by the principle that the right to a fair trial cannot be limited thus raising the bar in the determination of the question whether to prosecute or not.

[72]It is therefore our finding, and in agreement with the learned Judge of the High Court that, the prosecution of the Appellant is in breach of his right to a fair trial as protected by Article 25(c) as read with Article 50 of the Constitution and we have stated why.

64. This Court also discussed the various principles and guidelines in Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties) case (supra) as fol­lows: -

91. Regarding the exercise of prosecutorial discretion by the Director of Public Prosecutions, the Court of Appeal inDiamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLRstated as follows: -

[41] Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the Courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions ofMauritius [2006] 5LRC 234:

these factors necessarily mean that the threshold of a successful challenge is a high one. It is however one thing to conclude that the courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all…

In Regina v. Director of Public Prosecutions ex-parte Manning and Another [2001] QB 330, the English High Court said partly at para 23page 344:

At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting, an effective remedy could be denied.

Although the standard of review is exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP.

[42] The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.

In Ramahngam Ravinthram v Attorney General(supra)the Court of Appeal of Singapore said at p. 10. Para 28:

however, once the offender shows on the evidence before the court, that there is a prima facie breach of fundamental lib­erty (that the prosecution has a case to answer), the prosecution will indeed be required to justify its prosecutorial decision to the court. If it fails to do so, it will be found to be in breach of the fundamental liberty concerned. At this stage the prosecution will not be able to rely on its discretion under Article 35(8) of the Constitution without more, as a justification for its prosecutorial decision.

92. The High Court inBernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLRhad the following to say about the role of the Director of Public Prosecutions in prosecuting criminal offences: -

25. 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.

93. Long before the advent of the Constitution of Kenya, 2010 the High Court in R vs. Attorney General exp Kipngeno arap Ngeny Civil Application No. 406 of 2001 expressed itself as follows: -

…. Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognized, 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 recognized 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….

94. It has also been well and rightly argued that, on the basis of public interest and upholding the rule of law, Courts ought to exercise restraint and accord state organs, state officers and public officers some latitude to discharge their constitu­tional mandates. The Court of Appeal inDiamond Hasham Lalji & another v Attorney General & 4 others(supra)stated as follows: -

The elements of public interest and the weight to be given to each element or aspect depends on the facts of each case and in some cases, State interest may outweigh societal interests. In the context of the interest of the administration of justice, it is in the public interest, inter alia, that persons reasonably ‘suspected of committing a crime are prosecuted and convicted, punished in accordance with the law, that such a person is accorded a fair hearing and that court processes are used fairly by state and citizens.

95. The Court of Appeal inLalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLRreferred to the Supreme Court of India inState of Maharashtra & Others v. Arun Gulab & Others, Criminal Appeal No. 590 of 2007,where the Courtstated:

The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings.

The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.

96. The High Court inBernard Mwikya Mulinge case(su­pra) expressed itself as follows: -

14. As 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.….

97. In Meixner & Another vs. Attorney General [2005] 2 KLR 189the Court stated as follows: -

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….

98. Mumbi Ngugi, J(as she then was),in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Others (2014) eKLRstated that:

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…

99. In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR the Court held that:

… 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...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....

100. Recently, the High Court in Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLRdealt with several instances where a Court may intervene and stop a prosecution. They include where: -

(i) There is no ostensible complainant in respect to the complaint;

(ii)The prosecution fails to avail witness statements and exhibits without any justification;

(iii)There is selective charging of suspects; or

(iv)An Advocate is unfairly targeted for rendering professional services in a matter.

65. And, in Maura Muigana vs. Stellan Consult Limited & 2 Otherscase (supra), I further discussed the subject as follows: -

58. I have also come across several other decisions on the subject. I will refer to only some few. InAnthony Murimi Waigwe v Attorney General & 4 others[2020) eKLR,the Court held that the Prosecutor has a duty to analyze the case before prosecuting it and it should let free those whom there is no prosecutable case against them. It expressed itself thus: -

48. It is no doubt dear that under Article 157 (1) of the Constitution the ODPP is enjoined in exercising the powers conferred by the aforesaid Article to have regard to public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process. Interest of the administration of justice dictates that only those whom the DPP believes have a prosecuta­ble case against them be arraigned in Court and those who DPP believes have no prosecutable case against them be let free. This is why Article 159 (2) of the Constitution is crying loudly every day, every hour that "justice shall be done to all, irrespective of status”. Justice demands that it should not be one way and for some of us but for all of us irrespective of who one is or one has.

49. The Petitioner in support of interest of administration of justice dictates referred to the National Prosecution policy, revised in 2015 at page 5 where it provides that: "Public Prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction, In other words Public Prosecutors should ask themselves• would an impartial tribunal convict on the basis of the evidence available?

50. In the case of Republic v. Director of Public Prosecution & Another ex parte Kamani, Nairobi Judicial Review Application No. 78 of 2015 while quoting the case of R vs. Attorney General ex Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001; the Court held;

A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper … there must be in existence material evidence on which the prosecution can say with certainty that it has 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 inactionable.

51. In a democratic society like ours, no one should be charged without the authorities conducting proper investigation. The prosecutor on the other hand is under duty to consider both incriminating and exculpating evidence, In the case of Republic v. Director of Public Prosecutions & Another ex parte Kaman/ Nairobi Judicial Review Application Nog 78 of 2015 (supra), the court expressed itself as follows:

this court appreciates that the court should not simply fold its arms and stare at the squabbling litigants/disputants parade themselves before the criminal court in order to show-case dead cases. The seat of •justice is a hallowed lace and ought to be reserved for those mattes in which the pro­tagonists have a conviction stand a chance of seeing the light of the day. In my view the prosecution ought not to institute criminal cases with a view of obtaining an acquittal. It is against the public interest as encapsulated in section 4 of the Office of the Director of Public Prosecutions Act to stage-manage criminal proceedings in a manner intended to obtain an acquittal. A criminal trial is neither a show-biz nor a catwalk.

59. In Meme -vs- Republic & Another (2004) eKLR the Court of Appeal discussed abuse of the Court process thus: -

An abuse of the court's process would, in general, arise where the court is being used for improper purpose, as a means of vexation and oppression, or for ulterior purposes, that is to say, court pro­cess is being misused.

60. In quashing a criminal prosecution on the basis of abuse of Court process, the Court in Peter George Anthony Costa v. Attorney General & AnotherNairobi PetitionNo. 83/2010 expressed itself thus:-

The process of the Court must be used properly, honestly and in good faith, and must not be abused This means that the court will not allow its function as a court of law to be misused and will summarily prevent its machinery from being used as a means of vexation or of oppression in the process of litigation. It follows that where there is an abuse of the court process there is a breach of the petitioner’s fundamental rights as the petitioner will not receive a fair trial. It is the duty of the court to stop such abuse of the justice system.

61. Still on abuse of Court process in using Court to settle personal scores, the Court in Rosemary Wanja Mwagiru & 2 Others V Attorney General & 2 Others, Mumbi J (as she then was) stated that: -

The process of the court must not be misused or otherwise used as an avenue to settle personal scores. The criminal process should not be used to harass or oppress any person through the institution of criminal proceedings against him or her. Should the court be satisfied that the criminal proceedings being challenged before it have been instituted for a purpose other than the genuine enforcement of law and order, then the court ought to step in and stop such maneuvers in their tracks and prevent the process of the court being used to unfairly wield state power over one party to a dispute.

62. On the need for a Prosecutor to act within the law, the Court in Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others stated that: -

The discretionary power vested in the Director of Public Prosecution is not an open cheque and such discretion must be exercised within the four corners of the Constitution. It must be exercised reasonably within the law and to promote the policies and objects of the law which are set out in Section 4 of the Office of Director of Public Prosecution Act. These objects are as fol­lows: the diversity of the people of Kenya; impartiality and gen­der equity; the rules of natural justice, promotion of public confidence in the integrity of the office; the need to discharge the functions of the office on behalf of the people of Kenya, the need to serve the cause of justice; prevent abuse of legal process and public interest, protection of the sovereignty of the people; secure the observance of democratic values and principles and promotion of constitutionalism. The court may intervene where it is shown that the impugned criminal proceedings are instituted for other means other than the honest enforcement of criminal law, or are otherwise an abuse of the court process.

63. In Republic v. Commissioner of Co-operatives ex parte Kirinyaga Tea Growers Cooperative Savings & Credit Society Ltd CA 39/97 119991 EALR 245 the Court of Appeal warned against the improper use of power in the following words: -

...it is axiomatic that statutory powers can only be exercised validly if they are exercised reasonably. No statute ever allowed anyone on whom it confers power to exercise such power arbitrarily, capriciously or in bad faith….

64. The above position was amplified in Nairobi High Court Miscellaneous Application No. 1769 of 2003 Republic vs. Ministry of Planning and Another ex-parte Professor Mwangi Kaimenyi, where it was held:

So, where a body uses its power in a manifestly unreasonable manner, acted in bad faith, refuse to take relevant factors into account in reaching its decision or based its decision on irrelevant factors the court would intervene that on the ground that the body has in each case abused its power, The reason why the court has to intervene is because there is a presumption that where parliament gave a body statutory power to act, it could be implied that Parliament intended it to act in a particular manner.

65. The need for Courts to act with deference and accord constitutional and legal entities to discharge their mandates was revisited inPaul Ng’ang’a Nyaga vs Attorney General & 3 Others(2013) eKLR, where it was held that: -

…. this Court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.

66. I believe I have said enough on the general exercise of prosecutorial powers and for the purposes of this case. I will now look at what Legal Scholars and Courts have rendered on concurrent civil and criminal proceedings.

66. There was also a discussion on Section 193A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya. That was in Maura Muigana vs. Stellan Consult Limited & 2 Otherscase (supra) where I expressed myself thus: -

67. In Kenya, the aspect of concurrent civil and criminal proceedings is provided for in Section 193A of the CPC.

68. First, is a look at the said provision, which states as follows: -

Concurrentcriminal 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.

69. In an Article titled ‘Unjust Justice in Parallel Proceedings: Preventing Circumvention of Criminal Discovery Rules,the author, Randy S. Eckers, defines concurrent proceedings as independent, simultaneous investigations and prosecutions involving substantially the same matter and parties.

70. More often than not, the currency of the twin proceedings is challenged before Courts. In the above article, the author reiterates that a determination to either stay or allow the continuation of parallel proceedings depend on existence of cer­tain requirements. He observes: -

The Courts only block parallel proceedings in special circumstances. A defendant may move for a stay to block parallel proceedings, which will be granted only if the defendant can prove either that the government is acting in bad faith and using malicious tactics to circumvent the strict criminal discovery rules, or that there is a due process violation….

Even if a defendant meets one of these requirements, a stay is not guaranteed. The Court takes many other factors into account in deciding whether a stay is appropriate in a specific situation. These factors include the commonality of the transaction or issues, the timing of the motion, judicial efficiency, the public interest, and whether or not the movant is intentionally creating an impediment." Absent special circumstances, both cases will probably proceed.

71. It is, hence, deducible that the quest to stay concurrent proceedings must first be premised on the fact that there is in existence two or more active cases of civil and criminal nature in respect of the same entity or person. While discussing the general principles applicable in such scenarios, the Supreme Court of Appeal of South Africa in Law Society of the Cape of Good Hope v MW Randell(341/2012) [2013] ZASCA 36 (28 March 2013) stated as follows: -

…it applies where there are both criminal and civil proceedings pending which are based on the same facts. The usual practice is to stay the civil proceedings until the criminal proceedings have been adjudicated upon, if the accused person can show that he or she might be prejudiced in the criminal proceedings should the civil proceedings be heard first….

72. The Learned Judges of the Supreme Court of Appeal further stated that it was not automatic for an Applicant to be awarded stay of the civil proceedings. It found support in numerous English decisions among them, Jefferson Ltd v Bhetcha[1979] 2 All ER 1108 (CA) andR v BBC, x p Lavelle [1983] 1 All ER 241 (QBD) and observed as follows;

[24]. In dismissing the application, the Court emphasized that there was no established principle of law that if criminal proceedings were pending against a defendant in respect of the same subject matter, he or she should be excused from taking any further steps in the civil proceedings which might have the result of disclosing what his defence or is likely to be, in the criminal proceedings.

[25]. Jefferson was followed in R v BBC, x p Lavelle [1983] 1 All ER 241 (QBD) at 255 where Woolf J stressed that there should be no automatic intervention by the court. The learned judge pointed out that while the court must have jurisdiction to intervene to prevent serious injustice occurring, it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely notional danger that there would be a miscarriage of justice in criminal proceedings if the court did not intervene.

73. Closer home, our Courts have also had the occasion to address the issue of parallel proceedings. Before the Court of Appeal in Nairobi Civil Appeal No. 181 of 2013,Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others[2018] eKLR was the contention whether the High Court was right in granting orders restraining the Inspector General of Police, as well as the Director of Criminal Investigations from commencing, sustaining or proceeding with any investigations against Investments & Mortgages Bank Limited in connection with an alleged criminal conduct of its officers on account of a charge instrument whose execution was the subject of conten­tion in a pending civil suit.

74. In determining the issue, the Learned Judges of Appeal acknowl­edged that the Office of the Director of Public Prosecutions is an independent constitutional office. However, that office is subject to the control of the Court in appropriate instances where illegality, irrationality and procedural impropriety is demonstrated. The Court made reference to the decision of the Supreme Court of India in Criminal Appeal No. 590 Of 2007,State of Maharashtra & Others -vs- Arun Gulab & Others where the power of the Court in checking excesses of the prosecutorial agency was discussed as follows: -

The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings.

The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.

75. The Appellate Court further discussed limitations Courts ought to impose on Section 193A of the CPC,the provision that allows parallel prosecution of civil and criminal cases and remarked as follows: -

[47]. In terms of Section 193A of the Criminal Procedure Code, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings does not bar the commencement of criminal proceedings. However, where the criminal proceedings are oppressive, vexatious and an abuse of the court process or amounts to a breach of fundamental rights and freedoms, the High Court has the powers to intervene. But this power has to be exercised very sparingly as it is in the public interest that crime is detected and suspects brought to justice.

76. The Learned Judges cited with approval its earlier decision in Commissioner of Police & the Direc­tor of Criminal Inves­tigation Department & another -vs- Kenya Commercial Bank Ltd & 4 others[2013] eKLR, where the role of the Court in ensuring prosecutorial powers are exercised while having regard to public interest, the interests of administration of justice and to avoid abuse of legal process was discussed as under:

…in terms of Article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution.

77. Further, the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank andOthers Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR held that:

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 a 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.

78. The High Court in Kuria & 3 Others vs. AG(2002) 2 KLR ap­preciated the validity of existence of concurrent civil and criminal proceedings when it made the following findings: -

.... The normal procedure in the co-existence of civil and criminal proceedings is to stay the civil proceedings pending the determination of the criminal case as the determination of civil rights and obligations are not the subject of a criminal prosecution...A prerogative order should only be granted where there is an abuse of the process of the law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution... It is not enough to 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 the absence of concrete grounds.... it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. The effect of criminal prosecution on an accused person is adverse but so also are their purpose in the society, which are immense... an order of prohibition cannot also be given without any evidence that there is 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. (emphasis added).

79. In the current Petition, the Petitioner has been charged in the criminal case, but there are no civil proceedings in place. On that basis, the Petitioner contends that the criminal case was instituted to settle a civil dispute hence it is an abuse of the Court process. That now takes me to the next sub-issue.

67. In the same case, Maura Muigana vs. Stellan Consult Limited & 2 Otherscase (supra), I also dealt with the issue of abuse of Court process. This is what I stated: -

80. The subject of abuse of Court process was discussed by the Court of Appeal inMuchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 OthersCivil Appeal No. 25 of 2002 [2009] KLR 229, as follows: -

The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it...The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. It’s one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process are: -

i. Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.

ii. Instituting different actions between the same parties simultaneously in different courts even though on different grounds.

iii. Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice.

iv. Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.

81. The Court of Appeal went on and stated as follows: -

In our view, the often quoted principle that a party should have his day in court should not be taken literally. He should have his day only when there is something to hear. No party should have a right to squander judicial time. Hearing time should be allocated by the court on a need basis and not as a matter of routine. Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice…We approve and adopt the principles so ably expressed by both Lord Roskil and Lord Templeman in the case of ASHMORE v CORP OF LLOYDS [1992] 2 All E.R 486 at page 488 where Lord Roskil states:

It is the trial judge who has control of the proceedings. It is part of his duty to identify crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial judges’ time as is neces­sary for the proper determination of the relevant issues.

Unless a trial is on discernable issues it would be farcical to waste judicial time on it.

82. In Nairobi Civil Appeal No. 70 of 2017Prafulchandra Bharmal v Chief Magistrate Kibera & 3 others[2020] eKLR, the Court of Appeal further rendered itself as follows: -

20. In answering whether there was abuse of power, the Judge too discussed at length the safeguards that exist under criminal law in regard to an accused person to ensure a fair trial which is also a guaranteed right enshrined in the Constitution. He also appreciated that Section 193 A of the Criminal Procedure Code, allows concurrent litigation of civil and criminal proceedings arising from the same issues but cautioned that the prerogative of the police to investigate crime must be exercised according to the laws of the land and in good faith. What we understand the Judge to be saying in this regard is that the mere fact that leave was granted to the appellant to institute private criminal prosecution, this ipso facto did not mean that the 2nd respondent would not get a fair trial because the principles of a fair trial are well ingrained in law and practice. Having said that, the Judge went further to infer the unique circumstances prevailing in this matter, and posited that, if the private prosecution were to proceed, it would amount to an abuse of process. He pointed out and rightly so in our view, that if both the civil and the private criminal prosecution cases which were all centred on the Bakaraniaagreement were to proceed for hearing in both courts, there was a likelihood of the two processes giving rise to two different outcomes as there were also two sets of evidence in form of document examiners’ reports. To us this was not a merit determination but a commentary on the process. We do not also see any contradictions as the Judge was restating the well-established principles of a fair trial.

21. Was there abuse of process to warrant an order prohibiting the criminal charge? In Jago v District Court (NSW) 168 LLR 23, 87 ALR 57) Brennan, J. said in part at p. 47-48: -

An abuse of process occurs when the process of court is put in motion for purposes which in the eye of the law, it is not intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in a conduct which amounts to an offence and on that account is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process.

We are aware that the categories of abuse of process are not limited. Whether or not an abuse of power of criminal process has occurred ultimately depends on the circumstances of each case. One of the important factors at common law which underlie a prosecutorial decision is whether the available evidence discloses a realistic prospect of a conviction. In Walton v Gardener [1993] 177 CLR 378, the High Court of Australia said at para 23 –

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all categories of cases in which the process and procedures of the court which exist to administer justice with fairness and impartibility may be converted into instruments of injustice and unfairness. Thus, it has long been established that regardless of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be seen clearly to be foredoomed to fail…, if that court is in all circumstances of the particular case a clearly inappropriate forum to entertain them…, if, notwithstanding that circumstances do not give rise to an estoppel their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a case which has already been disposed of by earlier proceedings.

21. It is not lost to us that both the appellant and 2nd respondents are siblings; they have been involved in a dispute over the suit property for a long time; the appellant is the one who filed a civil suit, a defence was filed and when the civil suit was still pending, he instituted a private criminal prosecution. At the backdrop of all this, even the appellant’s complaint against the 2nd respondent was subjected to police investigations and the DPP directed the police file be closed. We are on our part persuaded that in the circumstances of this matter, an order of prohibition was justified to pro­tect the court process from being used to settle a civil dispute which was pending and that allowing the criminal process was likely to embarrass the courts. To us, this order was appropriate as the Judge had to navigate carefully so as not to make far reaching pronouncements that would embarrass the pending civil trial.

83. The High Court inStephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2Others Nairobi (Milimani) HCCC No. 363 of 2009stated as follows with respect to the Court’s power to prevent abuse of its process: -

This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilized legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it. (emphasis added).

84. From the foregoing, it is the case that the subject of abuse of Court process is wide and whether there is an abuse of the due process depends on the circumstances of a case.

85. As I come to the end of the second issue, I must state that I have deliberately endeavored the above somehow elaborate discussion covering the general exercise of prosecutorial powers, the concurrent civil and criminal proceedings under Section 193A of the CPC and the subject of abuse of Court process so as to lay a sound basis for consideration of the main issue in this matter which is whether the prosecution facing the Petitioner herein should be stopped since the dispute is civil in nature and the criminal case amounts to an abuse of Court process.

86. That consideration is the gist of the next issue.

68. From the foregoing, it comes to the fore that there are instances where a Court ought to exercise its discretion and stop a prosecution. Such instances, include, and where it is demon­strated that: -

(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court;

(ii) Where the quashing of the impugned proceedings would secure the ends of justice;

(iii) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

(iv) Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged;

(v) Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

(vi) The prosecution is not in public interest;

(vii) The prosecution is not in the interests of the administration of justice;

(viii) The prosecution is oppressive, vexatious and an abuse of the court process;

(ix) The prosecution amounts to a breach of rights and fundamental freedoms;

(x) The investigation and prosecution amounts to abuse of power and discretion and is aimed at achieving an ulte­rior or improper motive;

(xi) The investigation and the prosecution are tainted with illegality, irrationality and procedural impropriety;

(xii) The investigation and prosecution is in gross contraven­tion of the Constitution and the law;

69. Having said so, I will now consider the next issue.

(iii) Whether the intention by the Interested Party to lodge a criminal complaint against the Petitioners contravenes Articles 27, 29 and 157(11) of the Constitution:

70. I have, hereinabove, fully presented the parties’ cases.

71. This Court has also carefully addressed itself to the facts and the law in this matter. As a brief rehash, the Interested Party intended to, and indeed, lodged a criminal complaint against the Petitioners relating to money which he advanced the Petitioners. The complaint is pending investigations, but for the orders of this Court. The police have the duty to carry out investigations, gather evidence, if any, which on prima-facie basis points to the Petitioners’ culpability. Once the investigations are complete the 1st Respondents makes a decision to or not to charge.

72. The Petitioners are categorical that the complaint is a threat to their rights and fundamental freedoms in that the matter is purely civil in nature and that the Interested Party is intent on using the sword of criminal justice system to force settlement of an otherwise civil dispute.

73. In the Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties) case (supra), this Court summed up the burden on the Petitioner to succeed in stopping a criminal trial as follows: -

101. Drawing from the foregoing, for the Petitioner to succeed in his claim in this case, he must demonstrate the stifling of or threats of infringement of his rights, fundamental freedoms, the Constitution and/or the law by the investigative and prosecutorial agencies. The Petitioner may also demonstrate that the prosecution of the criminal case is not in public interest or is not in the interests of the administration of justice or that the prosecution is in abuse of the legal process. Likewise, the Petition may succeed if the Petitioner proves that the investigations were undertaken contrary to Article 244 of the Constitution, the National Police Service Act and the law in general.

74. In law, the burden of proof is provided under sections 107(1) (2) and 109 of the Evidence Act as follows: -

(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.and

109. Proof of particular fact

The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

75. The above was further rightly captured by the Court of Appeal in Civil Application Nai. 31 of 2016,Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 others[2016] eKLR when the Court stated thus: -

…. we find that the applicant is entitled in law to institute proceedings whenever there is threat of violation of his fundamental rights and freedoms or threat of violation of the constitution. Whether there is a threat of violation is a question of fact and evidence must be adduced to support the alleged threat.

76. The Supreme Court in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others case (supra) was very clear that the coercive nature of police interventions and criminal prosecutions should not be used to force a party to settle a civil dispute.

77. In a case where a party alleges that criminal proceedings are used to attain an otherwise collateral purpose, such a party has the onus of proving as much. As held in Republic vs Chief Magistrate, Kilgoris; Ex Parte Johana Kipngeno Langat (2021) eKLR the party must prove ‘…. that the criminal process is being used oppressively or on a charge of an offence not know to law, or for pur­poses of obtaining collateral or other advantages other than bringing the applicant to justice….’

78. In this case, a complaint was made to the police and that is all. No investigations have been conducted yet. The police have a constitutional and statutory duty to receive and investigate complaints. The police do not make any decision to charge a suspect. That is the constitutional preserve of the 1st Respondent.

79. As stated, none of the Respondents have so far exercised their powers. The Petitioners are acting on pure apprehension. I think that apprehension is too far-fetched.

80. It cannot be the duty of this Court to curtail constitutional organs from discharging their duties. A Court can only exercise its discretion and make as sought for by the Petitioners on the basis of tangible evidence. The duty cannot be exercised on mere apprehension or suspicion. The threat of infringement of the rights and fundamental freedoms or the violation of the Constitution must be eminent.

81. In this case, the criminal justice system is yet to be set into motion. As said, the complaint was made and nothing more.

82. Even if this Court takes it that the Petitioners’ fear is reasonably founded, the law recognises instances where there can be concurrent criminal and civil proceedings.

83. Whereas the Petitioners have a right not to be subjected to an illegal and/or unwarranted criminal process, the Respondents are also under a public duty to ensure that offences are investigated and those culpable prosecuted as the law requires. That is the balance created by the law and which this Court is called upon to serious undertake. In fact, that is the essence of the rule of law.

84. I must say with certainty that the Petitioners have not demonstrated how the lodging of the criminal complaint is a threat to their rights and fundamental freedoms or how the Constitution is threatened with violation. It cannot be the case that this Court presumes that the Respondents will not discharge their duties under the law.

85. The police have a duty to act within the law while carrying out their duties. Likewise, 1st Respondent has a duty to ensure that the exercise of its prosecutorial powers are in line with Article 157(11) of the Constitution, that is to say, the prosecutions are in tandem with the need to uphold public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal pro­cess. The Petitioners have not proved otherwise.

86. It cannot be that whenever any person says that he or she will do this or that, or goes ahead to file a complaint with the police, then that gives rise to a constitutional Petition. There has to be more to that. Apart from one’s intentions, it must be demonstrated how those intentions are a threat to the rights and fundamental freedoms of another individual or are a threat to the Constitution. The evidential burden of proof must be discharged by whoever alleges. As said, in this case, the Petitioners have failed to discharge such burden.

87. It is clear that the prohibition of the investigations of the complaint in the circumstances of this case will frustrate, instead of advancing, the rule of law. The Petitioners have constitutional safeguards in respect of their rights and fundamental freedoms even when undergoing investigations. The Petitioners will, in the course of investigations, also be accorded an opportunity to present their cases.

88. Based on the foregoing, this Court is, therefore, not persuaded that the intended lodging of a criminal complaint by the Interested Party against the Petitioners is a threat to the Petitioners’ rights and fundamental freedoms or to the Constitution. This Court further finds and hold that the Petitioner have failed to show how the in­tended complaint is an abuse of the criminal justice system.

Disposition:

89. In the end, the Petition and the Notices of Motion dated 9th September, 2020 and 15th October, 2020 are found to be wholly without merit and the following final orders hereby issue: -

(i) The Petition and the Notices of Motion dated 9th September, 2020 and 15th October, 2020 are hereby dismissed.

(ii) The order of this Court issued on 21st October, 2020 is hereby set-aside and vacated.

(iii) The Petitioners shall bear the costs of the Petition.

It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2021

A. C. MRIMA

JUDGE

JUDGMENT VIRTUALLY DELIVERED IN THE PRESENCE OF:

MR. IKUA, LEARNED COUNSEL FOR THE PETITIONERS.

MISS. CHIRINGA, LEARNED COUNSEL FOR THE RESPONDENTS.

MR. ATAKA, LEARNED COUNSEL FOR THE INTERESTED PARTY.

Elizabeth Wanjohi– Court Assistant.