[2022] KEHC 10578 (KLR)

Churi v Inspector General of Police & 3 others; Mugambi & another (Interested Party) (Constitutional Petition E001 of 2021) [2022] KEHC 10578 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10578 (KLR)

Republic of Kenya

In the High Court at Chuka

Constitutional Petition E001 of 2021

LW Gitari, J

May 12, 2022

IN THE MATTER OF ARTICLES 2, 3(1), 10, 20, 21(1), 22(1), 23(1) & (3), 165(3), 258(1) AND 259(1)(b) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS PRACTICE AND PROCEDURE RULES 2013) AND IN THE MATTER OF THE ALLEGED CONTRAVENTION AND THREATENED VIOLATIONS OF ARTICLES 29(a), 47(1) & (2), 48, 49, 50 & 157(11) OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT 2015

Between

Doris Churi

Petitioner

and

Inspector General of Police

1st Respondent

Director of Criminal Investigations

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Attorney General

4th Respondent

and

Patrick Murithi Mugambi

Interested Party

Mary Muthoni M’Nabea

Interested Party

Ruling

1. Before this court is the Petitioner’s application dated June 2, 2021. The Applicant has invoked the provisions of Articles 22(1) and 23 of the Constitution of Kenya and Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules in seeking for the following orders:a.Spent.b.Spent.c.THAT pending inter partes hearing of the Petition, the court be pleased to issue a conservatory order restraining the 1st, 2nd, and 3rd Respondents whether by themselves and/or their agents, servants or employees from arresting or prosecuting the Petitioner/Applicant in relation to the loan agreement dated June 23, 2020 between the 1st and 2nd Interested Parties.d.Cost of the application.

2. The application is supported by the affidavit of the Applicant sworn on the same date June 2, 2021. The Applicant depones that she is the wife of the 1st Interested Party. On June 23, 2020, the 1st and 2nd Interested Parties entered into a loan agreement whereby the Applicant, was a witness but not a party of the said agreement.

3. The 1st Interested Party consequently became unable to repay the loan as per the terms of the contract. As such, the 2nd Interested Party initiated Chuka Chief Magistrate’s Court Civil Suit No. E011 of 2021 on 11th February 2021 against both the 1st Interested Party and the Applicant herein seeking orders that the 1st Interested Party transfer the security for the loan (being land parcels no. Mwimbi/South Mugamano/1355 and Mwimbi/Murugi/4376) to the 2nd Interested Party. The Petitioner/Applicant filed her defence to the said suit.

4. On May 13, 2021, the 2nd Respondent through its officers from Meru Police Station arrested the 1st Interested Party on allegations of non-payment of the loan amount. The 2nd Interested Party was the complainant in the matter. It is alleged that the 1t Interested Party was then incarcerated for 5 days and denied cash bail. On May 17, 2021, the 3rd Respondent charged the 1st Interested Party vide Meru Chief Magistrate’s Court Criminal Case No. E694 of 2021 with the offence of cheating the 2nd Interested Party and he was released on a bond terms.

5. The Applicant alleges that the officers of the 1st and 2nd Respondents have since been threatening that they will arrest and charge her in connection with the said loan agreement. She contends that the 2nd Interested Party has recourse in Chuka Chief Magistrate’s Court Civil Suit No. E011 of 2021 as the matter she complains about is so intimately connected to the case that has already been filed, and which is pending hearing and determination.

6. The Applicant thus argues that her constitutional rights of freedom and security of the person will be infringed by the agents of the 1st, 2nd, and 3rd Respondents unless they are restrained by an order of this court.

7. In response to the application, the 2nd Interested Party filed a Replying Affidavit on August 2, 2021 which is sworn by herself and undated. She admitted the background facts of the dispute between her, and the 1st Interested Party is based on a loan agreement dated June 23, 2020. She also concedes filling Chuka ELC case No. E011 of 2021 and being the complainant in Criminal Case No. 694 of 2021 save to add that the two cases are distinct from one another.

8. She however denies having any knowledge of any harassment or threats by police officers against the Petitioner/Applicant. Finally, the 2nd Interested Party contends that the Petition herein does not disclose a breach of any article of the Constitution of Kenya 2010 or any damage, harm, prejudice that the Petitioner has suffered hence the petition does not raise a constitutional issue. She thus contends that the petition is premature and amounts to an abuse of the court process and hence should both the Petition and Application both dated June 2, 2021 should be dismissed with costs.The 3rd respondent and the 1st respondent relied on the affidavit sworn by Jamlick Kithinji. They however wished to file separate submissions. At the time of writing this ruling, it is only the 3rd respondent who had filed their submissions.

9. The 4th Respondent filed its response vide the Replying Affidavit sworn by Jamlick Kithinji on September 7, 2021. He deponed that the DCI Imenti North Office received a report from the 2nd Interested Party and upon conclusion of their investigations into the matter, it was the opinion of the investigating officer from the 2nd Respondent that the Applicant should be enjoined in the criminal case for the offence of conspiracy to defraud contrary to Section 317 of the Penal Code. The 3rd Respondent opted to rely on the said affidavit sworn by Jamlick Kithinji on September 7, 2021

10. The application was then canvassed by way of submissions.

2nd Interested Party’s Submissions 11. The 2nd Interested Party filed her written submissions on 26th January 2022 through her advocates on record. It was her submission that the bill of rights is individual in nature and as such the Applicant cannot claim a violation of the rights of the 1st Interested Party as she has no authority to act for on his behalf. She relied on the case of John Mining Temoi & anor v Governor of County of Bungoma & 17 others [2014] eKLR.

12. The 2nd Interested Party further submitted that there is a reasonable or probable cause to warrant the arrest of the Petitioner. She thus submits that the entire petition should be struck out with costs as the Petitioner has neither pleaded nor established on a prima facie basis that her rights are in threat of being violated.

3rd Respondent’s Submissions 13. The 3rd Respondent through their written submissions filed on February 9, 2022 contend that the present application has not met the threshold to warrant the orders sought as the Applicant has not proved the alleged breach of constitutional rights or constitutional provisions. They relied on the provisions of Articles 157(10), 244, 245(4) and 27 as well as the cases of Justus Mwenda Kathenge v DPP & 2 others [2014] eKLR and R v Commissioner of Police & another ex parte Michael Monari [2012] eKLR. It was their submission that the instant application as framed is intended to usurp the constitutional and statutory powers of the Respondents and should therefore be dismissed for want of merit.

Issues for Determination 14. I have considered the application dated June 2, 2021, the respective affidavits in support and opposition of the same as well as the respective submissions of the 2nd Interested Party and the 3rd Respondent. The main issue for determination is whether the Applicant has met the threshold for grant of conservatory orders sought under the application.

Analysis 15. From the onset, it is worth noting that this ruling relates to the prayer for a conservatory order in terms of prayer 3 of the Petitioner’s application and not the Petition.

16. What is required of an Applicant seeking conservatory orders is to demonstrate that they have a prima facie case. Musinga J (as he then was) stated in the case of Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR that:“At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”

17. In determining whether a prima facie case has been established, the court should not delve into a detailed analysis of the facts and law. Instead, the court should focus on determining whether the Applicant has put forward an arguable case and not frivolous one. In the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR the Court posited that:“26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis…”

18. In the persuasive case of Martin Nyaga Wambora vs Speaker of the County Assembly of Embu & 3 others [2014] eKLR, the court emphasized the important of a demonstration by an Applicant, of real danger, and quoting the words of Musinga, J., it proceeded to state:“[60]To those erudite words I would only highlight the importance of demonstration of “real danger”. The danger must be imminent and evident, true and actual and not fictitious so much so that it deserves immediate remedial attention or redress by the court. Thus, an alleged threatened violation that is remote and unlikely will not attract the court’s attention.(61)The second principle which naturally follows the first, is whether if a conservatory order is not granted, the matter will be rendered nugatory.(62)The third principle is one recently enunciated by the Supreme Court in the election petition case of Gatirau Peter Munya v Dickson Mwenda Githinji & 2 others SCK Petition No 2 of 2013. The principle is that the public interest must be considered before grant of a conservatory order. Ojwang and Wanjala JJSC stated that:(86)“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders for stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”

19. Thus, where a conservatory order is sought against a public agency like the Respondents herein, which are mandated to carry out certain functions in the normal course of their businesses, such orders should only be granted with due caution. The interruption of the lawful functions of the 1st, 2nd and 3rd Respondents should take into account the need to allow their ordered functioning in public interest. [See: Martin Nyaga Wambora’s case (supra)]

20. In the light of the standard set in the foregoing authorities in relation to conservatory orders, it is my view that Applicant has established a prima facie case. The 3rd Respondent submitted that after doing their investigations, they were of the view that the Applicant should be charged alongside the 1st Interested Party for the offence of cheating. It thus follows that there is a real danger that the Applicant will be arrested if the orders sought are not granted.

21. In addition, the Applicant has put forward a satisfactory argument that the Petition dated June 2, 2021 will be rendered nugatory if a conservatory order is not granted. The determination of this Court after hearing the Petition will have two possible consequences. If the Petition is dismissed, it will mean that the Respondents will still have an opportunity to carry out their mandate of arresting and prosecuting the Applicant for the alleged offence. On the other hand, if the Petition succeeds, the Petitioner will have suffered serious prejudice if the orders sought are not granted.

Conclusion I find that the application has merits. I order that conservatory order do issue restraining the respondents whether they themselves or their agents servants of employee from arresting or prosecuting the petitioner pending the hearing and determination of the petition.

The parties will take directions on the hearing and determination of the petition.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 12TH DAY OF MAY, 2022. L.W. GITARIJUDGE