[2019] KEHC 11582 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.68 OF 2010

CHRISTIANO ANGARA NYAKUNDI..............APPLICANT

VERSUS

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

RULING

The Applicant, Christiano Angara Nyakundi was charged with another with several offences. In the first count, he was charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. The particulars of the offence were that on diverse dates between 30th September 2009 and 13th December 2008 while within Nairobi County, the Applicant jointly with others not before court, with intent to defraud, obtained Kshs.700,000/- from Samuel Munyi Wachira (complainant) by falsely pretending that he was in a position to sell to the complainant a plot registered as L.R. No.Kiambu Municipality Block 111/56 (the suit property), a fact the Applicant knew to be false. In the second count, he was charged with the offence of attempting to obtain money by false pretences contrary to Section 313 as read with Section 389 of the Penal Code. The particulars of the offence were that on 26th August 2008 at Development House in Nairobi County, the Appellant, jointly with others not before court, with the intent to defraud, attempted to obtain the sum of Kshs.5,000,000/- from the complainant by falsely pretending that he was in a position to sell the suit property, a fact he knew to be false.

In the third count, he was charged with another with the offence of making a false document without authority contrary to Section 357(a) of the Penal Code. The particulars of the offence were that on unknown dates in unknown place, within the Republic of Kenya, the Appellant, jointly with others not before court, with the intent to defraud, without lawful authority or excuse made a certificate lease of the suit property purporting it to be genuine and valid certificate of lease issued by the Land Registrar, Kiambu District Registry. When the Applicant was arraigned before the trial magistrate’s court in Nairobi Chief Magistrate’s Court Criminal Case No.316 of 2009, he pleaded not guilty to the charge. He was released on bail pending trial. A date was fixed for trial.

Before the case could be heard, the Applicant moved the Constitutional and Review Division of the High Court in Nairobi in Nairobi Miscellaneous Civil Application No.190 of 2009 and obtained the following orders:

“1. THAT leave be and is hereby granted to be heard exparte in the first instance.

2. THAT the Applicant herein CHRISTIANO NYAKUNDI ANGARA ADVOCATE be and is hereby granted leave to apply for a Judicial Review Order by way of certiorari to bring before this court and quash the decision of the Respondent to arrest, charge, prosecute and try the Applicant on account of the land transaction relating to the sale of L.R. NO.KIAMBU MUNICIPALITY 111/56 and the ensuing proceedings in the chief magistrates court case no 316 of 2009.

3. THAT the Applicant herein CHRISTIANO NYAKUNDI ANGARA ADVOCATE be and is hereby granted leave to apply for a Judicial Review Order by way of Prohibition restraining and/or prohibiting the respondents relating to sale of L.R. NO.KIAMBU MUNICIPALITY 111/5 and the continuance of the proceedings in the chief magistrates court case no.316 or any other court based on the same facts.

4. THAT the leave granted herein do operate as a stay.

5. THAT filing and service of the substantive application forthwith and in any event not later than 21 days from 3rd day of April 2009. ”

In compliance with the above order, the Applicant filed a substantive notice of motion on 16th April 2009. In the application, the Applicant sought for the Judicial Review Orders of Certiorari and Prohibition essentially on the grounds that the subject matter of the criminal case was a civil in nature which ought to be dealt with by a civil court and not through criminal process. In the affidavit in support of the application, the Applicant explained that he was instructed to act for the vendor (who happens to be his co-accused before the trial magistrate’s court) in the sale of the suit property. He stated that subsequently thereafter a disagreement arose between the family members of the vendor that led to the agreement being frustrated. The Applicant was of the view that the complainant should have filed suit before the civil court for the recovery of the sum deposited instead of using criminal process to recover the same from him. The Applicant deponed that he acted as an advocate in the transaction and had discharged his duties diligently. He was of the view that his prosecution was therefore motivated by malice and was an abuse of the due process of the court. He was concerned that he would suffer irreparably in terms of his reputation as an advocate if he was tried. In the premises therefore, he urged the court to grant the prayers sought of the Judicial Review in the application.

The application is opposed. The Respondent filed grounds in opposition to the application. It was the Respondent’s case that the application was misconceived frivolous, vexatious, incompetent, improperly before court and an abuse of the court process. The application had not met the prerequisites for the grant of the orders sought. The Respondents were of the view that the matters raised by the Applicant in the application would be available to him as a defence and cannot be raised before the High Court in an application of this kind. The Respondents accused the Applicant of being guilty of non-disclosure of material facts and further, of failing to provide sufficient grounds to warrant the grant of the orders sought. In essence, the Respondents were saying that the Applicant’s application lacked merit and should be disallowed.

During the hearing of the application, this court heard oral rival submission made by Mr. Makori for the Applicant and Ms. Sigei for the Respondents. This court has carefully considered the said submission. It was clear from the arguments made that the issue for determination by this court is whether from the facts placed before the courts, the circumstances that informed the prosecution of the Applicant were within the law. The court in Republic vs Kenya Revenue Authority Ex-parte Neolife International Limited [2018] eKLR, held thus in regard to the jurisdiction of this court when considering applications for Judicial Review:-

“…this court is reminded of the broad grounds in which it exercises its judicial review jurisdiction as stated in the case of Pastoli vs Kabale District Local Government council & Others [2008]2 EA 300 at pages 303 to 304 thus:

“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2: and also Francis Bahikirwe Muniu and others v Kyambogo University, High Court Kampala, miscellaneous application number 643 of 2005 (UR).

Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…

Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”

Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”

51. In addition, the parameters of judicial review were addressed by the Court of Appeal in the case of Municipal Council of Mombasa v Republic & Umoja Consultants Limited, Nairobi Civil Appeal No.185 of 2001, [2002] eKLR as follows:

“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself – such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”

As regard application of judicial review seeking to terminate criminal proceedings where it is alleged that the matter ought to be resolved through the civil process, the court in Republic vs Attorney General & 4 Others Ex-parte Kenneth Kariuki Githii [2014] eKLR held thus:

“26. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and gain, is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim. In the exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration. See R vs. Monopolies and Mergers Commission Ex Parte Argyll Group Plc [1986] 1 WLR 763 and Re Bivac International SA (Bureau Veritas) – [2005] 2 EA 43 (HCK).”

In the present application, it is the Applicant’s contention that the Director of Public Prosecutions (and his predecessor the Attorney General) had no basis to charge him on a matter that was purely a civil matter. In addition, he contended that he was acting in his capacity as an advocate in the case. He was acting in that capacity in good faith for the vendor. On the other hand, the Respondents argued that the issues raised by the Applicant in this application are issues which he should put forward in his defence during trial and not in an application for Judicial Review.

Upon re-evaluation of the rival submission in that regard, this court holds that indeed the Applicant placed no material before this court to support his assertion that the Director of Public Prosecutions acted illegally or irrationally or maliciously in prosecuting him. It was clear to this court that the complainant lodged a complaint with the police. The complaint was investigated. There was sufficient evidence disclosed to charge the Applicant and his co-accused. The Applicant argued that being an advocate, he should not be embroiled in the dispute involving the vendor’s family regarding to whether or not the suit parcel of land should have been sold to the complainant. That may be the case. However, from the charges and the affidavit sworn by the Applicant in support of his application, it was clear that the Applicant’s involvement in the entire transaction cannot be said to have been purely that of a legal adviser. It was amenable to the criminal process. That was a valid issue for the prosecution to present before the trial court for determination in form of the charges brought against the Applicant.

From the above cited authorities, it is evident that this court lacks jurisdiction to interfere with the Director of Public Prosecutions decision to prosecute and the power of the police to investigate where it is suspected that a crime may have been committed. This court can only interfere if malice and conduct in bad faith is established. Other courts have held that this court may interfere with the exercise by the Director of Public Prosecutions of his power to terminate criminal proceedings if it is established that the power to prosecute was used to advance an ulterior purpose or that the Director of Public Prosecutions acted capriciously. (See Republic vs Chief Magistrate, Milimani Criminal Division & 4 Others Ex-parte John Wachira Wambug & Another [2018] eKLR). In the present application, the Applicant placed no evidence before this court to support his contention that he was being prosecuted other than in the manner envisaged by the law. The Applicant’s fear regarding his prosecution is misplaced as his rights to fair trial are preserved under Articles 25(c) & 50(2) of the Constitution. He shall be able to put his defence before the trial court without let or hindrance.

The upshot of the above reasons is that the Applicant’s application lacks merit and is hereby dismissed. The trial court’s file is ordered returned to the Chief Magistrate’s court Nairobi for trial and disposal. It is so ordered.

DATED AT NAIROBI THIS 11TH DAY OF JULY 2019

L. KIMARU

JUDGE