[2017] KEHC 2826 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION, JUDICIAL REVIEW NO.397 OF 2016

IN THE MATTER OF ARTICLES 22(3), 23,27,47,50,157 AND 165 OF THE CONSTITUTION

AND

IN THE MATTER OF SECTION 4&5 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

AND IN THE MATTER OF SECTION 8&9 OF THE LAW REFORM ACT

AND IN THE MATTER OF SECTION7, 8,9,10 &11 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2014

BETWEEN

MUKTAR SAMAN OLOW….......................................EXPARTE APPLICANT

AND

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

THE CHIEF MAGISTRATES COURT AT KIAMBU.........2ND RESPONDENT

THE DIRECTOR OF CRIMINAL INVESTIGATIONS…..3RD RESPONDENT

AND

PIUS NGUGI MBUGUA………..............................1ST INTERESTED PARTY

THE NATIONAL LAND COMMISSION...............2ND INTERESTED PARTY

JUDGMENT

1. On 1st September 2016 the exparte applicant Muktar Saman Olow obtained leave of this court to institute Judicial Review proceedings against the Director of Public Prosecution, The Chief Magistrate’s Court at Kiambu and the Director of Criminal Investigations.

2. The applicant was directed to file and serve the substantive notice of motion within 21 days of date of leave. On 19th September 2016, the exparte applicant dutifully filed a notice of motion dated the same day pursuant to the leave granted on 1st September 2016 seeking the following Judicial Review Orders:

1 ) That the court be pleased to grant an order of prohibition directed at the 1st and 3rd respondents, prohibiting further prosecution of the exparte applicant before the 2nd respondent in criminal case No. 1170 of 2016 Republic vs Muktar Saman Olow.

2) That the court be pleased to grant an order of prohibition directed at the 1st and 3rd respondents from preferring any criminal charges against the exparte applicant before any competent court in Kenya in so far as the same relates to the claims surrounding or relating to HCC No (O.S.) 1321 of 2005 consolidated with ELC case No. 424 of 2011 and ELC case No. 437 of 2011.

3) That the court be pleased to grant an order of certiorari directed at the 1st respondent, quashing their decision to institute or continue any criminal prosecution of the exparte applicant in respect to the claims in HCC No.(O.S.) 1321 of 2005 consolidated with ELC case No. 424 of 2011 and ELC case No. 437 of 2011;

4) That the court be pleased to grant a declaratory order that the prosecution of the exparte applicant in the Chief Magistrate’s Court in Kiambu in criminal case No. 1170 of 2016 (Republic vs Muktar Saman Olow) is a violation of the applicant’s right to administrative action that is expeditions, efficient, lawful, reasonable and procedurally fair.

5) That this Honourable court be pleased to grant any other orders and directions as it may deem fit and just to issue under the circumstances.

6) Costs of this application be provided for.

3. As required under Order 53 of the Civil Procedure Rules, the grounds upon which the notice of motion is predicated are contained in the statutory statement accompanying the chamber summons for leave hence the court shall consider those grounds together with the verifying affidavit sworn by Mr Muktar Saman Olow on 31st August 2016 and the annextures thereto and any other affidavits filed with leave of the court.

4. In the lengthy statutory statement and detailed affidavit comprising 31 and 37 paragraphs respectively, the exparte applicant claims that on 22nd August 2011 he instituted ELC case No. 424/2011 against the 1st interested party Mr Pius Ngugi seeking inter alia a permanent injunction against him from trespassing on land Reference Number 1870/1/240.

5. That on 15th October 2011, armed police officers from CID Headquarters raided the exparte applicant’s acquaintances’ offices in the City Centre and demanded to search the premises. The police officers informed the applicant’s acquaintances that they believed that he had committed an offence of instructing an unlicensed advocate to act for him in a certain transaction in relation to the same land in Westlands.

6. The officers arrested the said acquaintances, carried some files to the CID Headquarters and released them after questioning them, without preferring any charges while demanding to know the whereabouts of the applicant.

7. The applicant on learning of the police action instructed his advocates M/S Ahmednasir, Abdikadir & Company Advocates to write and complain against the police for abuse of legal process. The said letter was copied to various agencies including the Director of Public Prosecutions who on 19th October 2016 directed the police to forward any information touching on accusations against the exparte applicant to enable him take appropriate directions, and directing that the applicant should not be arrested until the said investigations were completed.

8. That on 20thOctober 2011 the applicant went to the CID Headquarters and recorded his statement accompanied by his advocate but before he could record any statement he was hurriedly roughed up and locked up at the CID officers who chased the applicant’s advocate without according him a hearing.

9. That the following day, the applicant was arraigned before Kiambu Law Courts charged with the offence of Forgery Contrary to Section 349 of the Penal Code; Making a false document contrary to Section 347 of the Penal Code and Stealing contrary to Section 275 of the Penal Code. That the applicant pleaded not guilty to the charges and was released on a cash bail of shs 300,000/-.

10. According to the exparte applicant, his arrest and prosecution was actuated by malice and false allegations leveled against him by Mr Pius Ngugi with whom he has pending litigation in court.

11. It is further alleged that following protests by the exparte applicant’s advocate to various law enforcement agencies regarding the alleged unlawful arrest and arraignment in court, the Director of Public Prosecutions directed that criminal case No. 2287/11 against the applicant be withdrawn and subsequently, all the civil suits related to the suit property were all consolidated into one namely:- HCC(OS)1321/2005; ELC 424/2011 and ELC 437/2011.

12. That on 28th November 2011 the applicant filed Petition No. 277/2011 in the Constitutional and Human Rights Division seeking orders to stop the said prosecution and obtained a conservatory order of stay of prosecution pending hearing and determination of the main petition but the criminal case No. 2287/11 was withdrawn by the Director of Public Prosecutions before the substantive petition was heard thereby rendering the same superfluous and nugatory hence the applicant instructed his advocates to withdraw it on 27th January 2012.

13. That in 2016 nearly five years after withdrawal of criminal case No. 228/2011 the Director of Public Prosecutions recommended vide letter dated 6th April 2016 that the applicant be charged with the same offences/charges that had earlier been preferred but withdrawn against him.

14. That the said letter directing the applicant’s prosecution was shared on social media before the applicant knew of the decision to charge him which is indicative of malice and intended to malign the applicant’s good standing.

15. In the view of the exparte applicant, the letter recommending the prosecution of the applicant is malicious because it calls for his arrest before the document which the Director of Public Prosecutions asserts as forming the basis of the criminal charges had been authenticated 5 years after the initial criminal charges were preferred.

16. In the view of the applicant, the Director of Public Prosecution’s decision was actuated by bias and the desire to appease the public after a petition to the Public Service Commission for his removal was lodged a day prior to the said decision being made as shown by an exhibited affidavit and petition filed by Nelson Havi advocate to the Public Service Commission.

17. That on 18th May 2016 the applicant was arrested from his South C Home and taken to CID Headquarters where he was detained and on 19th May 2016 he was arraigned before the Chief Magistrate’s Court at Kiambu in Criminal case No. 1170/2016 charged with similar offences as the earlier charges which had been withdrawn by the DPP.

18. The exparte applicant complains that despite the fact the goods allegedly stolen were proclaimed and taken possession of by the Auctioneers, the respondent decided to charge him with the offence of stealing which charge amounts to a material error of fact and is vexatious.

19. Further, that despite the charge of forgery of signatures of persons working in the Ministry of Lands, those persons have not lodged any complaint.

20. That no new evidence has been presented to warrant institution of fresh criminal charges against him and neither have fresh investigations been conducted by the 1st respondent in the 5 year period lapse.

21. The exparte applicant asserts that he never forged any documents and that neither is there evidence linking him to the alleged forgeries.

22. The applicant claims that he has a genuine title to the property in issue as admitted by the Commissioner for Lands in the pending civil cases as shown by annexture MSO 13 which is a witness statement and defence filed by the Commissioner of Lands in ELC case No. 424 of 2011.

23. In view of the foregoing, it is alleged by the exparte applicant that the decision by the 1st respondent to charge him is not supported by the information available to him, lacks proportionality, is based on taking account of irrelevant consideration and is not rationally connected to the information before him and therefore amenable to Judicial Review.

24. Further, that the said decision is actuated by malice and bad faith owing to the manner in which the 1st respondent published the intended renewal of the current criminal proceedings via social media; the violent manner in which the applicant was arrested; previous attempts by the National Land Commission to review the grant to the suit property upon which they were prohibited vide Judicial Review Miscellaneous case No. 376/2014; lack of additional investigation in the 5 year period to warrant fresh charges and the influence of the 1st interested party in these matters.

25. The applicant maintains that the actions by the respondents are intended to prejudice his right to property and to have the dispute regarding the suit property resolved by the civil court hence the criminal proceedings are oppressive, vexatious, abuse of the court process and abuse of prosecutorial discretion.

26. The applicant annexed several documents to support his depositions.

The 1st and Third Respondent’s reply

27. The 2nd Respondent who is the Chief Magistrate Kiambu Law Courts did not file any reply to the Motion. The 1st and 3rd Respondents vehemently opposed the notice of motion and filed a joint replying affidavit sworn on their behalf by No. 69160 Lady Corporal Catherine Kiome of Serious Crimes Unit at the Director of Criminal Investigations Department, Nairobi and who is also the investigating officer in the matter subject of the challenge by these judicial review proceedings.

28. The Respondents’ deponent contends that the charges facing the exparte applicant were initiated following investigations which revealed that the 1st interested party Mr Pius Ngugi and his daughter Angeline Ngugi lived on the suit property and that Mr Ngugi bought the land in 1974 from Mrs Helen Fear after which the latter relocated to Britain and died in 1988.

29. That although Mr Ngugi did not cause the property to be registered in his name, he continued paying land rates to the then City Council of Nairobi which Council at some point filed suit against him in CC 439/1975 prohibiting any transaction on the land until the rates were paid by Mr Pius Ngugi.

30. That vide HC 1321/2005 Mr Ngugi filed suit seeking to be declared the owner of the suit land as he had lost transfer documents and the seller had left the country before effecting a transfer of the land in his name.

31. That the said Mr Ngugi got judgment in his favour and the Registrar of the High Court was ordered to execute registration documents on behalf of Helen Fear in favour of Mr Ngugi the 1st interested party herein.

32. That despite the above orders and the subsequent lifting of the prohibitory order, the registration of title in favour of Mr Ngugi was not effected.

33. That it was discovered after investigations that there was an alleged extension of lease in favour of the exparte applicant herein which was not done procedurally and through forgery in that the exparte applicant claims to have met Mrs Helen Fear in 2000 who sold the property to him yet the said Mrs Helen Fear died in 1988.

34. That the Survey Plan giving rise to Deed Plan No. 311506 and subsequent Deed Grant No. 129305 issued to the applicant is a forgery as it has been disowned by the Surveyor who is alleged to have carried out the survey on LR 1870/1//240. Further, that the Survey Plan was not authentic as the authentication slip that was used was for a different LR No.1870/1/577 and not LR 1870/1/240.

35. In addition it was contended that the computation No. 59268 and FR No. 506/11 are for different L and Ref; No. 1870/1/577. Further, that in the Deed Plan register, the area shown is different from what appears on the Survey Plan FR 506/11. That the Deed Plan number posted in the register indicated that the Survey Plan used was FR No. 86/211, which appears as the survey plan No. FR 506/11 and which clearly shows that it was a forgery and that FR No. 86/121 was prepared in 1959 and Deed Plan issued on 23rd August 2010.

36. It is further contended that the City Hall Physical Planner only signed for City Hall with a promise that rates would be submitted thereby exposing fraud.

37. That therefore all entries in the title apart from the time of entry of prohibitory orders of 1975 in respect of CC 439/1975 are forgeries including the signatures and stamps of the Ministry of Lands officials as shown by copies of documents exhibited.

38. That the criminal charges which are impugned had commenced hearing wherein two witnesses had testified before the applicant sought and obtained stay orders vide these proceedings.

39. The 1st respondent also filed another replying affidavit on his own behalf and on behalf of the 3rd respondent, sworn by Edwin Okello Senior Assistant Director of Public Prosecutions on 12th October 2016.

40. Mr Okello concedes that the initial criminal charges vide criminal case No. 2287/11 against the exparte applicant were withdrawn by the DPP and so was the applicant’s Constitutional Petition No. 277/11 which had been rendered superfluous by the withdrawal of the criminal charges. That as at that time, the Director of Public Prosecutions noted that the applicant had been charged in court but that there were several outstanding issues that needed investigations and that it was upon review of the investigations file that the Director of Public Prosecutions directed that the exparte applicant herein be charged with the various offences listed in the charge sheet.

41. According to the DPP, the decision leading to the charges being leveled against the exparte applicant was elaborate and preceded the filing of the petition with Public Service Commission to remove the Director of Public Prosecutions from office, which process was independent and not influenced by the Petition.

42. Further, it was contended that the charges preferred against the exparte applicant are supported by strong evidence and that therefore the issue of authentication of the death certificate of Mrs Helen Fear is one to be determined by the trial court, and that in any event, the prosecution’s case is not entirely dependent on the death of Mrs Helen Fear.

Reply by the Interested Parties

43. The 1st interested party Mr Pius Ngugi who is the complainant in the criminal case filed replying affidavit and a further replying affidavit in response to the exparte applicant’s further affidavit on 9th November 2016 sworn by Mr Pius Mbugua Ngugi on 8th November 2016 contending that he is the owner of the disputed property LR 1870/1/240 and the complainant in Kiambu criminal Case No. 1170/2016 Republic vs Muktar Saman Olow.

44. According to Mr Ngugi, in 1974 he purchased the suit property from one Mrs Helen Fear and he took possession thereof but that he was not able to complete the transfer process in his favour as the completion documents were misplaced.

45. That thereafter the then Nairobi City Council placed a caveat on the title and in 2005 the 1st interested party filed an Originating Summons vide HCC O.S No. 1321/2005 against Mrs Helen Fear seeking a declaration that he is the owner of the suit land as he had resided on it for over 30 years and that he got judgment in his favour on 16th July 2009 as shown by copy of decree annexed.

46. That the said decree was on 2nd December 2009 submitted to the Lands Office for registration by his advocates Mbugua & Macharia after the Deputy Registrar of the High Court executed a transfer as per the decree but that the file at the Lands Registry could not be traced and the said file has been missing to date.

47. That on 18th August 2011 a violent crowd accompanied by the exparte applicant and police forced their way into his said property and destroyed the property and harassed his daughter Angeline Ngugi.

48. That it was later established that the applicant and the Auctioneer, Mr Joseph Kimani of Pyramid Auctioneers had vide Milimani Chief Magistrate’s Court Miscellaneous Case No. 527/11 obtained orders against the interested party’s daughter Angeline falsely claiming that the latter had signed with the applicant a lease agreement on 20th June 2010 for a period of 2 years and that she owed the applicant kshs 495,000 as rent arrears and that she had been served with a proclamation notice but that she had declined to acknowledge receipt thereof.

49. According to the 1st interested party, the alleged signature of his daughter on the purported lease agreement has been investigated and found to be a forgery as shown by the forensic investigations report done by the National Land Commission annexed to the affidavit.

50. Further, that it was following the above events that the 1st interested party filed ELC 437/2011 Pius Ngugi & Another vs Muktar Saman Olow & Another seeking to restrain the exparte applicant herein from evicting and trespassing on the suit property and that is when he learnt that the exparte applicant had also filed ELC 242/2011 against the 1st interested party claiming that the property in issue had been sold to the exparte applicant by Mrs Helen Fear in 2000 and so the exparte applicant was only required to pay rates and seek extension of the lease.

51. According to the 1st interested party, Section 193A of the Criminal Procedure Code contemplates both civil and criminal cases to run simultaneously and therefore the pending civil cases did not preclude the Director of Criminal Investigations and Director of Public Prosecutions from investigating the criminal conduct on the part of the exparte applicant and instituting Kiambu Criminal Case No. 11170/2016.

52. The 1st interested party further deposed that Mrs Helen Fear died in 1988 hence the exparte applicant could not have purchased the suit property from her in 2000. He annexed copy of death certificate as exhibit 54.

53. It was further claimed that after discovery of the possible forgery by the exparte applicant, the 1st interested party lodged a complaint with the Director of Criminal Investigations after which the exparte applicant was arrested and charged in court but that the criminal case was withdrawn in 2012 after the applicant filed a Constitutional Petition 227/2011 to allow the Director of Public Prosecutions direct for further investigations into the matter leading to the present charges, which he is entitled to, under Section 87(a) of the Criminal Procedure Code hence the fresh charges are in order.

54. The 1st interested party further deposes that the said Kiambu Criminal Case No. 2287 of 2011 is part heard wherein he has testified and the Land Registrar Mr Fredrick Indoko Lubulellah whose signature in entries that were made in the Land Register were forged had also testified prior to these Judicial Review proceedings being instituted.

55. That in the criminal case, the prosecution has lined up 21 witnesses hence the applicant is guilty of coming to court too late to challenge his prosecution when the hearing thereof had commenced.

56. According to the 1st interested party, the decision of the Director of Public Prosecutions and the Director of Criminal Investigations to bring criminal charges against the exparte applicant is independent and objective in exercise of their constitutional and statutory mandates which should not be interfered with by this court exercising Judicial Review jurisdiction.

57. The 1st interested party further denied having any influence on the decision of the Director of Public Prosecutions save that he is a complainant and that neither does he have any relationship with Mr Nelson Havi who petitioned for the removal of the Director of Public Prosecutions by the Public Service Commission.

58. The 1st interested party urged this court not to interfere with the criminal proceedings which are instituted in the public interest.

The 2nd Interested Party’s Reply

59. On 8th March 2017 the 2nd interested Party, the National Land Commission was granted leave of court to withdraw their replying affidavit sworn by Brian Ikol on 9th November 2016 and their submissions on the same date and to file fresh replying affidavit and submissions which they did file on 21st March 2017.

60. In the refilled replying affidavit sworn by Brian Ikol the Deputy Director of Legal Affairs at National Land Commission sworn on 20th March 2017, it is deposed in contention that the Commission received a complaint from the interested party’s counsels complaining that the exparte applicant herein had fraudulently acquired title documents over LR No. 1870/240/1 and sought the Commission’s intervention.

61. That the Commission embarked on the process of reviewing the said title to establish its legality but was vide JR 363/2014 Republic vs National Land Commissionbarred from reviewing the same on account that the Commission could not review titles subject of cases pending before court namely HCC 1321/2005, ELC 437/2011 and ELC 424/2011.

62. That the court in the said Judicial Review matter nonetheless found that the Commission could continue to carry out investigations regarding the matter in which the titles were acquired to assist the court reach a proper determination if called upon to do so as shown by copy of judgment annexed.

63. That upon the Judicial Review matter being determined by Korir J, the Commission ceased taking further proceedings and so it could not determine the legality of the grant held by the exparte applicant pursuant to Section 14 of the National Land Commission Act.

Further Affidavits by the exparte applicant

64. The exparte applicant also filed three further affidavits in response to the 1st and 3rd respondents’ replying affidavits and in response to the replying affidavit filed by the interested parties. All the further affidavits are sworn on 30th November 2016 and filed on 5th December 2016. In the said further affidavits, the exparte applicant maintains that the police operated directly under the influence and supervision of the 1st interested party as he reported to the police 18th September 2011 a month after he had already recorded a statement over the incident.

65. Further, that there was contradiction between the 1st interested party’s witness’ statement with the police and his assertion that he had been invaded by robbers and his property stolen. The exparte applicant maintains that auctioneers were validly executing a court order issued on 9th August 2011 by R.A. Oganyo, the Principal Magistrate at Milimani Commercial Courts.

66. In addition, that at the time of making the complaint, the applicant had already filed Civil Suit No. 424/11 on 22nd August 2011 seeking injunctive reliefs to stop the 1st interested party from trespassing on the suit property hence the complaint which was lodges later by the 1st interested party was meant to coerce and intimidate the exparte applicant from pursuing his case.

67. It was further contended in reply that the assertion of the 1st interested party purchasing the subject property from Mrs Helen Fear in 1988 is not an established fact and is the subject matter in the consolidated cases hence the 1st interested party has wielded control over the investigating officer who is biased.

68. That whereas the applicant has title to the property, the 1st interested party has none as the orders/decree he obtained in HCC 1321/2005 is not final and that the same is being challenged in court since the 1st interested party sued a wrong person; that the City Council has confirmed that the 1st interested party has never been a ratable owner of the suit property and the investigating officer has not provided any evidence of the City Council suing the interested party over default in the payment of rates.

69. That even if the exparte applicant had not acquired the property by 2005, the lease granted to Mrs Helen Fear, for 43 years 7 months from 1st November 1959 had lapsed and reverted to the state 3 years prior to filing of the suit by the interested party.

70. That the delay in determining the civil disputes is due to abuse of power by the state agencies to benefit the 1st interested party who is s enjoying status quo orders as he is in possession of the property.

71. That the Commissioner of Lands has confirmed that the title was acquired lawfully hence the police have no superior records than the Commissioner of Lands who is the custodian of documents relating to transfer of land.

72. That the unilateral decision by the 3rd respondent to prefer a multiplicity of unsanctioned criminal charges is vexatious, oppressive and biased which is an affront to police independence and disproportionate to the facts of the case; merely seeking to confirm allegations of malice and bad faith and that the police are merely being used in order to pressure the exparte applicant to cede the title of his property to the 1st interested party.

73. In his 2nd further affidavit in response to the 1st and 3rd respondent’s affidavit, the exparte applicant deposes that the 1st and 3rd respondents have not availed evidence of ongoing correspondence for the 5 years that they took before instituting fresh criminal charges against the applicant. Further, that the alleged ongoing investigations within the said 5 years are a farce since the respondents seek to rely on the same facts and evidence that were used in withdrawing criminal charges which begs the question as to what further areas of investigations have satisfied them that this case, unlike the former, is prosecutable.

74. In addition, it is contended that the respondents have totally failed to establish whether or not Mrs Helen Fear has passed on yet the fresh charges are predicated on allegations that she was dead as at the time of exparte applicant’s purchase of suit property.

75. The exparte applicant maintains that the decision to charge him is as per the letter of 6th April 2016 written one day after the petition to remove the Director of Public Prosecutions was filed before the Public Service Commission.

76. That the Director of Public Prosecutions did not live up to his duty to investigate allegations of abuse of the legal process by the Director of Criminal Investigations and the 1st interested party as promised in his letter of 31st October 2011, and give feed back to the exparte applicant which in essence breached the latter’s legitimate expectation that the Director of Public Prosecutions would act in accordance with the said letter; instead of publishing the impending criminal charges in social media.

77. That the only way ownership of the suit property can be ascertained is through the ongoing trial process by the Environment and Land Court and not the criminal trial.

78. In the third further affidavit sworn by the exparte applicant in further response to the interested party’s replying affidavit, the exparte applicant contended that the interested party had never been the owner or registered proprietor of the suit land and that the decree obtained in HCC 1321/2005 is being challenged.

79. The exparte applicant also denied ever executing any lease agreement with the 1st interested party and contends that the signature on the alleged lease agreement is not his as confirmed by the forensic document examiner’s report annexed.

80. The exparte applicant maintains that the 1st interested party has never been the registered owner of the suit property that is why he could not attach any copy of a sale agreement with Mrs Helen Fear. That the decree obtained by the 1st interested party was being challenged and that the 1st interested party had contradicted himself in recounting of events compared to his witness statement.

81. That although the National land Commission claimed that there was forgery, its predecessor the Commissioner of Lands had already confirmed that the process by which the exparte applicant obtained title was genuine. Further, that the 1st interested party only instituted his civil suit against the exparte applicant one day after the exparte applicant had instituted his suit against the 1st interested party.

82. The exparte applicant asserted that section 193A of the Criminal procedure Code was only applicable where the power is exercised responsibly, in good faith and in accordance with the laws of the land and that the civil process has its own way of obtaining information now being sought through the criminal process.

83. That the Certificate of Death of Mrs Helen Fear has a disclaimer of not being evidence of identity hence her death is yet to be confirmed and that he had obtained information from the search in the archives of the British general register office of births, deaths and marriages dating back to 1837 after being advised by the British High Commission in Kenya which does not show the death of Helen Fear. Further, that it is absurd for the 1st interested party to claim that Helen Fear died in 1988 yet he sued her in 2005 to get title to the suit land in CC No. 1321 of 2005.

84. According to the exparte applicant, he is convinced that the 1st respondent only consented to the charges of forgery but that the rest of the charges were concocted and commenced without authority of the DPP and that the offence of theft was a material error of fact leading to an injustice.

85. The exparte applicant denied that the criminal case was part heard or that Mr Lubulellah had testified in the criminal case and that the allegation by the 1st interested party is a figment of his own imagination. He maintained that his application was filed in time and within the statutory period.

86. In the view of the exparte applicant, the DPP was not exercising his powers independently when he reached the decision to charge the exparte applicant and that the court can interfere with that discretion where it has been abused, is irrational, biased or where the effects of the proceedings result in the institution of vexatious and oppressive criminal proceedings hence it the decision of the 1st respondent defies the public interest. Further, that the criminal charges have no factual foundation since the Environment and Land Court has jurisdiction to hear and determine all the issues raised in the Criminal charges which concern ownership of title to the suit property.

87. It is claimed that the criminal charges are being used to assist the 1st interested party to prove his civil claims against the exparte applicant and to compel the exparte applicant to abandon his claim against the 1st interested party which is malicious and a violation of the exparte applicant’s rights and sense of fair play and decency.

Submissions

88. All Parties filed written submissions and authorities and made oral submissions in support of their respective client’s positions. Mr Mude Counsel for the exparte applicant submitted adopting his written submissions and relying on his client’s pleadings and affidavits n support and further affidavits relying on several constitutional, statutory and case law decided. He submitted thatthe impugned criminal proceedings are illegal.

89. That the applicant had sought for an injunction to prohibit the 1st interested party from trespassing into his land when his premises were invaded by the 3rd respondent and arraigned before the Kiambu Law Courts but that the Director of Public Prosecutions intervened and terminated the said proceedings for want of authority. Further, that the Respondents still followed the exparte applicant and charged him with the same offences which had been earlier withdrawn against him before carrying out investigations or coming up with any new evidence., after five years which contravenes Section 7 of the Fair Administrative Action.

90. It was further submitted on behalf of the exparte applicant that he is a victim and that there is a link between the criminal charges and the Petition to remove Mr Keriako Tobiko, the Director of Public Prosecutions filed with the Public Service Commission on 5th April 2016. Reliance was placed on Judicial Service Commission v Gladys Shollei & Another. Counsel submitted that the applicable test is real danger and suspicion of bias.

91. The exparte applicant maintained that the decision to charge the applicant was so irrational and unsupported by facts hence it is not true that courts cannot be concerned with merits, as was held in the Suchan Investments. Limited vs The Ministry of National Heritage & Culture and 3 others [2016]eKLR where it was held, inter alia, that:

“ the common law principles of administrative review have now been subsumed under Article 47 of the Constitution and section 7 of the Fair Administrative Action Act. In this regard, there are no two systems of law regulating administrative action-the common law and the Constitution-but only one system grounded in the Constitution. The Courts power to statutorily review administrative action no longer flows directly from common law, but inter alia from the constitutionally mandated Fair Administrative Action Act and Article 47 of the Constitution.”

91. It was further submitted that the applicant could not have just stolen goods which he had distressed for rent and that that Counts 1, 7 and 8 of the exhibited charge sheet were not sanctioned by the Director of Public Prosecutions hence the decision to charge the applicant was irrational.

92. On the mandate of the court in judicial review application it was submitted that the case of Joram Mwenda Qantai v Chief magistrate’s Court, Nairobi [2007]eKLR where it was stated:

“Equally so the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. It was succinctly put in the Stanley Munga Githunguri v R [1985] KLR 91 that if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious the judge has the power to intervene and that the High Court has an inherent power and duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.

93. [2014]eKLRwhere it was held:

“Although the DPP has the discretion to determine which complaint should lead to a criminal prosecution, the High Court may intervene where that discretion has been abused or where the effect of the proceedings is the abuse of court proceedings.”

94. On when prohibition should issue, reliance was placed on Kuria &3 others v AG[2002]2 KLR 69where the court held:

“A stay by an order of prohibition should be granted where compelling an accused person to stand trial would violate the fundamental principles of justice which underlie on society’s senses of fair play and decency and or where the proceedings are oppressive or vexatious…. The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its course independence and impartiality……..”

95. The exparte applicant’s counsel submitted that the DPP had acted with bias contrary to the aspirations of Article 157 of the Constitution as read with section 4 of the Fair Administrative Action Act by failing to act in the public interest and abusing the legal process. Reliance was placed on R v DPP& Another Exparte Patrick Ogola Onyango &8 others[2016]eKLR.

96. Further, it was submitted that the charge of forgery is irrational because the Commissioner of Lands had filed a defence and described the process by which the title was obtained hence the test is whether the decision is so grossly unreasonable (Wednesbury’s) unreasonableness. Reliance was placed on Suchan Investments Ltd [supra] and Rv Inspector General of Police Exparte Patrick Nderitu [2013] eKLR.

97. It was also submitted that there is also bad faith and malice as explained in the verifying affidavit which assertions were not rebutted by the respondents.

98. On legitimate expectations, it was submitted on behalf of the exparte applicant that the Director of Public Prosecutions had never given any findings of investigations of complaints by applicant and that there is also material error of fact and abuse of legal process and vexatious criminal process and conniving between the 1st interested party and the respondents to give the interested party an undue advantage in the civil case which is pending. Counsel urged the court not to be used to settle personal scores or to aid a party prove his claim in a pending civil matter and therefore urged the court to grant the orders sought in the notice of motion.

99. On behalf of the 2nd Interested party National land Commission Mr Mbuthia submitted that the issue of whether criminal proceedings should proceed or not is upon the court. It was submitted that the Commission was only investigating a complaint on alleged fraudulent acquisition of the subject tile but were prohibited by the court on account that there were pending civil suits over the same subject matter vide Judicial Review 376/2014 hence the Commission did not have an opportunity to determine the legality of the title.

100. On behalf of the DPP, Mr Ashimosi submitted opposing the notice of motion and contending that what the DPP did was to act on a complaint of forgery and that the tenancy agreement was also found to be a forgery yet it was used to evict the complaint from premises on 18th September 2011.

101. It was submitted that the Director of Public Prosecutions was appointed on 1stJuly 2011 and that prior to that date; it is the police who used to charge suspects in court without reference to the Director of Public Prosecutions. Mr Ashimosi submitted that there is good faith as the Director of Public Prosecutions withdrew the first case to allow investigations to be carried out afresh to establish whether there was any reason to charge the exparte applicant which decision was made on 6th April 2016.

102. It was submitted that the applicant used a declaratory order to get registered as owner of the land but upon investigations being carried out, it was discovered that in 2009 December, the applicant made an entry No. 4 -order raising a prohibitory order on the title which entry was subjected to the documents examiner and found to be a forgery.

103. In addition, that the Survey Plan and computation used to give a Deed Plan to the applicant were also found to be forgeries. It was also contended in submission by Mr Ashimosi that the exparte applicant was also alleged to have forged signatures of Land Registrars and therefore it was upon the investigation report that the Director of Public Prosecutions decided to charge the exparte applicant with various offences in the charge sheet in line with Article 157 (ii) of the Constitution.

104. It was submitted that the exparte applicants had not proved or demonstrated bias as alleged. Counsel urged the court to look at the evidence before Director of Public Prosecutions to see whether there was irrationality or material error of facts. It was also submitted that this matter was subject of a petition for removal of the Director of Public Prosecutions and subject of Judicial Review proceedings in court.

105. In the DPP’s view, there is no reason for this court to interfere with the Director of Public Prosecution’s decision as the DPP has not breached any law or constitutional provisions. It was submitted that this court is a Judicial Review court hence it cannot evaluate evidence but look at the process of decision making.

106. It was also submitted that the mere pendency of a civil suit is not a bar to the criminal case.

107. On the whole, Mr Ashimosi submitted that the applicant had failed to demonstrate why the court should interfere with the Director of Public Prosecution’s decision and urged the court to dismiss the applicant’s application.

108. Mr Kimani Kiragu advocate submitted on behalf of the 1st interested party opposing the exparte applicant’s motion and relying on several authorities.

109. According to Mr Kiragu Kimani, the function of the Judicial Review court is to enforce the Rule of Law to ensure public bodies discharge their functions strictly in accordance with the law and therefore the courts must be very slow to interfere with exercise of powers by public bodies including holders of constitutional offices.

110. In this case, it was submitted that the applicant must demonstrate lack of reasonable or probable cause for mounting a prosecution.

111. In the prayer for declaration counsel urged the court to look at the statutory statement and find that Certiorari and Prohibition are anchored on this prayer. He urged the court to find that there is no power to issue declaration under the Law Reform Act.

112. It was also submitted that Articles 22 and 23 of the Constitution are inapplicable though cited since there is no allegation of infringement of rights under Articles of the Constitution cited. Reliance was placed on the Sanghani Investments Ltd v Officer incharge of Nairobi Remand and Allocation Prison[2007]1EA354.

113. It was further submitted on behalf of the 1st interested party that Section 87(a) of the Criminal Procedure Code as read with Article 157 of the Constitution gives discretion to the Director of Public Prosecutions to institute/terminate criminal proceedings and that a withdrawal under Section 87(a) is not a bar to any future criminal prosecution. Reliance was placed on Republic v Director of Public Prosecutions exparte Wilfred Thiongo Njau[2015]eKLR.

114. It was submitted that the rationale of Section 87(a) of Criminal Procedure Code is to allow the Director of Public Prosecutions time to consider the matter further hence the court should not interfere. Reliance was placed on George Taitumu vs CM’s Court Kibera&2 others[2014]eKLR on the duty of Director of Public Prosecution in instituting fresh proceedings after withdrawal of charges against an accused person.

115. It was submitted that there is no complaint of prejudice on account of a fresh case being instituted and that moreso, the trial had commenced and the 1st and 2nd witnesses had been cross examined robustly.

116. It was submitted in concession that albeit there are 2 civil suits between the interested parties and the applicant, but that they are not a bar to criminal proceedings as Section 193A of the Criminal Procedure Code does allow the dual process. Reliance was placed on Kuria & 3 Others vs Attorney General [2002]KLR.

117. It was submitted that it had not been demonstrated how and which rights of the applicant are under threat.

118. According to Mr Kimani Kiragu, the National Police Service is charged with undertaking investigations and therefore there must be proper reasons to interfere.

119. In this case, it was submitted that there is reasonable suspicion to charge the applicant as there are clearly questionable entries at the Lands Office and the correct forum to establish who did it is the criminal trial not in the civil suit.

120. Submissions were made that there must be clear grounds to interfere with constitutional mandate of the Director of Public Prosecutions and that the onslaught against the Director of Public Prosecutions is unmerited.

121. Further, that the Director of Public Prosecutions cannot down his tools when a petition is presented for his removal and that there is no link between the decision to prosecute and the petition against him. On the issue of tweets in the social media, it was submitted that tweets cannot be the basis of challenge of exercise of Director of Public Prosecution’s powers under the Constitution.

122. It was also submitted that the Director of Public Prosecutions prosecutes. He does not decide the case which can only be decided by the trial Magistrate independently after hearing the evidence adduced to reach a determination. Further submission was made to the effect that no estoppel was created by the recommendation to charge. The applicant and that the Director of Public Prosecutions can increase or decrease charges subject to the magistrate’s determination., as there is no statute of limitations in criminal cases although delay is a factor. Further, that the time flew by litigation initiated by the applicant i.e. JR 376/2014 which was decided on 9th June 2014.

123. It was submitted that the above JR matter, Korir J stated that investigations may assist in shedding light on facts relating to the title in question, and that the affidavits on record are clear that there was flaw in the title and that the National Land Commission is neither here nor there ast they are changing positions from time to time. According to Mr Kiragu Kimani, the applicant who comes to court to stop prosecution must demonstrate that there is no reasonable cause to prosecute him or that he will suffer prejudice and that our criminal justice system has safeguards of ensuring fairness as was held in the case of Republic vs Attorney General & 4 others exparte Kenneth Kariuki Githii[2014]eKLR.

124. Counsel submitted that the SuchanInvestments [supra] case is relevant but that the court has not moved away from traditional Judicial Review remedies and principles. He urged the court to dismiss the application with costs.

125. In a rejoinder, Mr Mude Counsel for the exparte applicant submitted that the issues raised by Mr Ashimosi are addressed in the exparte applicant’s affidavits and that the issue of declaratory orders is covered by Section 11 of the Fair Administrative Actions Act.

126. Citing the case of Bitange Ndemo v DPP and others [2016] eKLR decided by this court, counsel submitted that the court also granted several declaratory orders. He submitted that the prayers are distinct, and are not predicated on any other order. He maintained that Section 193A of the Criminal Procedure Code is relevant in proceedings conducted in good faith.

127. Mr Mude maintained that no investigations were conducted in the period of 5 years preceding the criminal charges and that JR No. 376/2014 was against National Land Commission not criminal proceedings. Further, that Investigations referred to by Honourable Korir J were not to mount criminal proceedings. He urged the court to grant the orders sought and stay of criminal proceedings pending delivery of judgment.

DETERMINATION

128. I have considered the exparte applicant’s motion and the responses and counter responses together with the written and oral submissions and all the authorities relied by all the parties’ advocates. In my humble view, the main issue for determination is whether the exparte applicant is entitled to the judicial review orders sought. There are other ancillary questions that the court will endeavour to resolve.

1. From the onset, this court does acknowledge that judicial review remedy is no longer in the domain of the common law remedies but a constitutional remedy espoused in Articles 22,23,47 and 50 of the Constitution. In Judicial Services Commission Vs Mbalu Mutava & Another [2015] e KLR CA 52/2014 the Court of Appeal held, inter alia that:

“ Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of rights. The right to fair administrative action is a reflection of some of the national values in Article 10 of the Constitution such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under common law was developed.

129. The court further acknowledges that the criminal justice system, and therefore, criminal trials, are a matter of public interest and are conducted in the public interest, to ensure that the Rule of law, one of the pillars of good governance is protected and promoted. It is for that reason that the makers of the Constitution of Kenya 2010 deemed it fit to enshrine therein several state institutions such as the office of the Inspector General of Police and the Director of Public Prosecutions, to be the custodians of the criminal justice system in ensuring that the Rule of Law is protected and promoted . SeeAburili J. in Bitange Ndemo v DPP &Others[supra].

130. The DPP and DCI are two state agencies/independent offices that function in the broader society and not in isolation. On the other hand, the two state agencies work with the courts in the administration of justice. The courts of law and tribunals exercise judicial or quasi-judicial authority which is donated by the people of Kenya to administer justice to all irrespective of status; to ensure expeditious justice; to administer justice without undue regard to procedural technicalities and to ensure that the purpose and principles of the Constitution shall be protected and promoted.

131. All state organs, offices and persons are subject to the authority of the Constitution. The Director of Public Prosecutions exercises power donated by Article 157 of the Constitution and the Office of Director of Public Prosecution Act to among others:-

a) Institute and undertake criminal proceedings against any person before any court (other than a Court Martial) in respect of any offences alleged to have been committed;

b) Take over and continue any criminal proceedings against any person before any court that have been instituted or undertaken by another person or authority, with the permission of the person or authority;

c) With permission of the court, discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecution under paragraph b of Article 157(6) of the Constitution.

132. And in the exercise of the powers conferred by the Constitution, 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.

133. The Director of Public Prosecutions is also empowered to work without being under the direction of or control of any person or authority and to apply all principles and values of the Constitution and to be subject only to the Constitution.

134. On the other hand, the Director of Criminal Investigations is an office under the Inspector General of Police and is responsible for investigating any complaints lodged by members of the public to establish whether a crime has been committed. It derives its powers under section 24 of the National Police Service Act.

135. The law in proceedings of this nature is now settled. It is trite that 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 by Article 157 of the Constitution. It should also be clearly understood that the sheer fact that the continuing or anticipated criminal proceedings are in all likelihood bound to fail, is not a ground for halting those proceedings by way of judicial review.

136. Judicial review proceedings are now remedies recognized by Articles 22, 23, 47 and 50 of the Constitution of the Constitution. The remedy is available where it is clear that the process taken in performing a duty of a public nature or other administrative action as stipulated in Article 47 of the Constitution and the Fair Administrative Action Act is illegal, irrational, with procedural impropriety or laced with malice and malafides. It is mainly concerned with the decision making process.

137. That an applicant has a good defence in the criminal process perse is a ground that ought not to be relied upon by a Court in order to stop a criminal process commenced or undertaken bona fides since that defence is open to the applicant in those criminal proceedings. However, if the applicant demonstrates that the criminal proceedings instituted against him constitute an abuse of process, the Court will not hesitate to bring such proceedings to an end through judicial review.

138. Nonetheless, although the power to prosecute is not absolute, the fact that the facts constituting the basis of a criminal proceeding may similarly be a basis for a pending civil suit is no ground for staying or stopping the criminal process if the same facts can similarly be a basis for a criminal offence. This is what section 193 A of the Criminal Procedure Code underscores. 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. This position is fortified by Section 193A of the Criminal Procedure Code which stipulates:

193 A. 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.

139. In judicial review proceedings, a court may grant the remedies of certiorari, mandamus, prohibition, declaration, directory orders and injunctions among others as stipulated in the Fair Administrative Action Act.

140. However, as was held in 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 exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration.

141. The Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013]eKLR held:

“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 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”

142. In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:

“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings...Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

143. In Meixner & Another vs. Attorney General [2005] 2 KLR 189,the same Court of Appeal pronounced that:

“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 if 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... Judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power. Having regard to the law, the finding of the learned judge that the sufficiency or otherwise of the evidence to support the charge of murder goes to the merits of the decision of the Attorney General and not to the legality of the decision is correct. The other grounds, which the appellants claim were ignored ultimately, raise the question whether the evidence gathered by the prosecution is sufficient to support the charge. The criminal trial process is regulated by statutes, particularly the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards stipulated in section 77 of the Constitution to be observed in respect of both criminal prosecutions and during trials. It is the trial court, which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. Had leave been granted in this case, the appellants would have caused the judicial review court to embark upon examination and appraisal of the evidence of about 40 witnesses with a view to show their innocence and that is hardly the function of the judicial review court. It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.”

144. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, it was held bythe High Court:

“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilization is far that which the courts indeed the entire system is constitutionally mandated to administer...In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the applicants in order to settle the civil dispute. It is further alleged that the criminal prosecution is an abuse of the court process epitomized by what is termed as selective prosecution by the Attorney General. It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilize the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The intrusion of judicial review remedies in criminal proceedings would have the effect of requiring a much broader approach, than envisaged in civil law...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilized. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop the from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...Under section 77(5) of the Constitution it is a constitutional right that no person who has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of the offence. What is clear from this constitutional right is that it prevents the re-prosecution of a criminal case, which has been determined in one way or another. However, it does not mean that a civil suit and a criminal case cannot co-exist at any one particular time. This is because the section envisages the re-prosecution of a criminal case substantially dealt with either in fact or law, a case in which issues have been laid to rest. There is no mention in the section that the simultaneous existence of a civil and criminal cases is constituting double jeopardy. The courts have, however stated that the power to issue an order of prohibition to stop a criminal prosecution does not endow a court to say that no criminal prosecution should be instituted or continued side by side with a civil suit based on the same or related facts, or to say that a person should never be prosecuted in criminal proceedings when he has a civil suit against him relating to matters in the criminal proceedings...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 is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. 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...In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution. It is not enough to simply 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 absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the applicants might not get a fair trial as protected in the Constitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts. The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a 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... In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.”

145. In Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, it was held:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”

146. Iam equally in agreement with the decision in R vs. Attorney General exparte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 where 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 purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have 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 actionable”.

147. On the duty of the police to investigate complaints, the court in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR stated:

“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. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. 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”.

148. In Republic Vs Attorney General & Others Exparte Diamond Hashim Lalji & Ahmed Hashim Lalji Odunga J noted that the court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings hence the applicant should appear before a competent court where he will be accorded a fair trial and a fair hearing and if dissatisfied he could appeal.

149. prosecute criminal offences and to the Police to investigate allegations of criminal activity are not to be lightly interfered with, that discretion must be properly exercised and where the Court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence such as with a view to forcing a party to submit to a concession of a civil dispute, the Court will not hesitate to bring such proceedings to a halt.

150. However, except in claims of violations of fundamental human rights and freedoms which must be proven, judicial review proceedings do not deal with the merits of the case but with the process of decision making. In other words judicial review mainly determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before the decision was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters, whether the decision taken was rational, conforms with the established law.

151. To that extend, where the court establishes that the application for judicial review was instituted with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties, the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. See Inspector General of Police & another v East African Portland Cement Co. Limited & 3 others [2016] eKLR.

152. Judicial review proceedings are not the proper arena for determination of the innocence or guilt of the exparte applicant as that is the role and mandate of a court exercising criminal jurisdiction and therefore where in the proceedings the court is treated to a heated debate as to whether or not there is sufficient evidence to warrant the criminal charges initiated against the exparte applicant in the criminal proceedings, the court exercising judicial review jurisdiction will decline the temptation of making such findings of guilt or innocence of the applicant. To do so in my humble view would be tantamount to abusing the judicial process and usurpation of powers of a court exercising criminal jurisdiction, which is expressly prohibited by section 8 of the Law Reform Act, Cap 26 Laws of Kenya.

153. This court in its exercise of judicial review jurisdiction is essentially concerned with the question of fairness to the applicant in the institution and maintenance of the criminal proceedings and once the Court is satisfied that the criminal proceedings are bona fides and that the same are being conducted in a fair manner, this court ought not to usurp the jurisdiction of the trial Court and or descend into the arena of the trial by determining the sufficiency or otherwise of the evidence to be adduced against the applicant.

155. Where, however, it is clear that there is no foundational basis at all or that the prosecution’s evidence on the face of it, even if it were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court aiding and abetting abuse of the court process by the prosecution and the investigation arm of the state.

156. Therefore the determination of this motion by the exparte applicant must be seen in light of the foregoing decisions and principles of law espoused, and it is incumbent upon the ex parte applicant to demonstrate to the satisfaction of this court that the discretion given to the DPP and the DCI to investigate the 1st interested party’s complaint and to prosecute the applicant for the alleged crime(s) ought to be interfered with by this court.

157. Odunga J in George Joshua Okungu & another vs. Chief Magistrate’s Court Anti-Corruption Court At Nairobi & another [2014] eKLR citing with approval the decision in R vs. Attorney General exparte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001adopted the holding that :

“The function of any judicial system in civilized nations is to uphold the rule of law. To be able to do that, the system must have power to try and decide cases brought before the Courts according to the established law. The process of trial is central to the adjudication of any dispute and it is now a universally accepted principle of law that every person must have his day in court. This means that the judicial system must be available to all...Although the Attorney General enjoys both constitutional and statutory discretion in the prosecution of criminal cases and in doing so he is not controlled by any other person or authority, this does not mean that he may exercise that discretion arbitrarily. He must exercise the discretion within lawful boundaries...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...In doing so the Court may be guided by the following principles: (i). Where the criminal prosecution amounts to nothing more than an abuse of the process of the court, the Court will employ its inherent power and common law to stop it. (ii). A prosecution that does not accord with an individual’s freedoms and rights under the constitution will be halted: and (iii). A prosecution that is contrary to public policy (or interest) will not be allowed...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. Evidence of extraneous purposes may also be presumed where a prosecution is mounted after a lengthy delay without any explanation being given for that delay...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...A criminal prosecution that does not accord with an individual’s freedoms and rights, such as where it does not afford an individual a fair hearing within a reasonable time by an independent and impartial court, will be the clearest case of an abuse of the process of the Court. Such a prosecution will be halted for contravening the constitutional protection of individual’s rights...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.”[Emphasis added].

158. In the Joshua Okungu case (supra) the Court further held, adopting Republic vs. Minister for Home Affairs and Others Ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 [2008] 2 EA 323:

“Whereas we appreciate the fact that the decision whether or not to prosecute the petitioners is an exercise of discretion this Court is empowered to interfere with the exercise of discretion in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable… Under Article 47(1) of the Constitution, “every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” It is therefore imperative that criminal investigations be conducted expeditiously and a decision made either way as soon as possible. Where prosecution is undertaken long after investigations are concluded, the fairness of the process may be brought into question where the Petitioner proves as was the case in Githunguri vs. Republic Case, that as a result of the long delay of commencing the prosecution, the Petitioner may not be able to adequately defend himself. Whereas the decision whether or not the action was expeditiously taken must necessarily depend on the circumstances of a particular case, on our part we are not satisfied that the issues forming the subject of the criminal proceedings were so complex that preference of charges arising from the investigations therefrom should take a year after the completion of the investigations. From the charges leveled against the Petitioners, the issues seemed to stem from the failure to follow the laid down regulations and procedures in arriving at the decision to sell the company’s idle/surplus non core assets. In our view ordinarily it does not require a year after completion of investigations in such a matter for a decision to prosecute to be made. That notwithstanding, 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. The effect of the long delay in prosecuting the applicant was considered in Githunguri vs. Republic Case, where the Court expressed itself as follows:

“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 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…If we thought, which we do not, that the applicant by being prosecuted is not being deprived of the protection of any of the fundamental rights given by section 77(1) of the Constitution, we are firmly of the opinion that in that event we ought to invoke our inherent powers to prevent this prosecution in the public interest because otherwise it would similarly be an abuse of the process of the Court, oppressive and vexatious. It follows that we are of the opinion that the application must succeed in either event…….A prosecution is not to be made good by what it turns up. It is good or bad when it starts. The long and short of it is that in our opinion it is not right to prosecute the applicant as proposed.

159. As earlier stated, the scope of judicial review was clearly set out by Lord Diplock in the persuasive authority of Council for Civil Service Unions v Minister for Civil Service [1985] AC 374 at 401 D when he stated:

“Judicial review has I think developed to a stage today when one can conveniently classify under three heads, the grounds upon which administrative action is subject to control by judicial review: the first ground I will call illegality, the second irrationality and the third procedural impropriety.

By illegalityas a ground for judicial review, I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.

By irrationality, I mean what can now be succinctly referred to as Wednesbury (unreasonableness) it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it… I have described the third head has procedural ‘impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.”

160. This court is alive to the fact that judicial review remedies being discretionary the court would not grant them in certain circumstances even if the same are merited. As was appreciated in Halsbury's Laws of England 4th Edition Vol. 1 (1) paragraph 12 pg. 270:

“The remedies of quashing orders (formerly known as order of certiorari); prohibition orders (formerly known as orders of prohibition; mandatory orders (formerly known as orders of mandamus) are all discretionary. The court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief, the court will take into account the conduct of the party applying and consider, whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief. [emphasis added].

Another consideration in deciding whether or not to grant relief is the effect of doing so. Other factors which may be relevant include whether the grant of the remedy is unnecessary or further, whether practical problems, including administrative chaos and public inconvenience and the effect on third parties who deal with the body in question; would result from the order and whether the form of the order would require close supervision by the court or be incapable of practical fulfillment. The court has an ultimate discretion whether to set aside the decisions and may decline to do so in the public interest, notwithstanding that it holds and declares the decision to have been made unlawfully. Account of demands of good public administration may lead to a refusal of relief. Similarly, where public bodies are involved the court may allow a temporary decisions to take their course, considering the compliance and intervening if at all later and in retrospect by declaratory orders.”

161. In Republic v National Transport & Safety Authority & 10 Others Exparte James Maina Mugo [2015] eKLR Odunga J held inter alia:

“The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the court would not have jurisdiction in a judicial review proceedings to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil courts” or“criminal courts.” [emphasis added].

162. In Joram Mwenda Guantai v The Chief Magistrate Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170 the Court of Appeal held:

“It is trite that an order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to discontinue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not however lie to correct the course, practice or procedure of an inferior tribunal or wrong decision on the merits of the proceedings – equity so the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all persons who are brought before court or to a subordinate court and to prevent an abuse of the process of the court.”

163. The above cases demonstrate the role of judicial review as a procedure that courts use to supervise the exercise of public power to ensure those who exercise that power do not exceed constitutional or statutory jurisdiction. It is also clear from the principles espoused in the above cited cases that judicial review is concerned with reviewing the decision which has been made without authority or in excess thereof by a public body in contravention of individual rights.

164. The factors and requirements that an applicant seeking redress has to satisfy for the courts to entertain and review the decision of a public body have also been elucidated in the cases discussed hereinabove.

165. A fundamental principle in judicial review cases is that the concern of the courts has nothing to do with the merits of the decision but the process in arriving at that decision. The High Court's supervisory jurisdiction in judicial review cases is to evaluate the fairness of the action or decision complained of with a view to varying or setting it aside to ensure that fair treatment is accorded to the claimant. What the courts do in judicial review is to ensure that an applicant before it is given fair treatment by the body or individual complained of. The judicial review jurisdiction does not extend to decide the merits of the matters in question.

166. In this case which has been aggressively prosecuted by the exparte applicant through his counsel Mr Mude, the court must confine itself to the questions of whether the respondents’ decision to investigate and or prosecute the exparte applicant over matters which are pending in civil proceedings exceeded their powers; breached the exparte applicant’s constitutional and legal rights or legitimate expectation; committed an error of law; committed a breach of natural justice; reached a decision which it could reasonably not have reached; or amounts to abuse of their powers or acted malafides or was biased. In a persuasive authority ofHangsraz Mahatma Gandhi Institute & 2 Others [2008] MR 127it was stated:

“Judicial Review is not a fishing expedition in unchartered seas. The course had been laid down in numerous case laws. It is that this court is concerned only with reviewing, not the merits of the decision reached, but of the decision making process of the authority concerned. It would scrutinize the procedure adopted to arrive at the decisions to ascertain that it is in uniformity with all elements of fairness, reasonableness and most of all its legality. It must be borne in mind and which had been repeated many times by this court that it is not its role to substitute itself for the opinion of the authorities concerned. This court on a judicial review application does not act as a court of appeal of the decision of the body concerned and it will not interfere in any way in the exercise of the discretionary power which the statute had granted to the body concerned. However it will intervene when the body concerned had acted ultra vires its powers, reached a decision which is manifestly unreasonable in the Wednesbury sense; had acted in an unfairly manner and the applicant was not given a fair treatment.”

167. terminated. On the part of the Respondents’ it is contended that the DPP did withdraw the charges earlier on initiated by the Police without his participation as required under the new constitutional order, having come into office from 1st July 2011. In Rv DPP & another exparte Wilfred Thiongo Njau[2015] Eklrthe court made it clear and I agree that “the DPP is allowed to withdraw from the prosecution of any person but such withdrawal if done before the person is placed on his defence shall not operate as a bar to subsequent proceedings against the person on account of the same facts.”

168. Earlier on, a similar holding was arrived at in George Taitumu v Chief MAGISSTRATES Court Kibera &2 others [2014] eKLR where it was held that “the DPP and the police are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence. Likewise, after discharge of the accused under section 87(a) of the Criminal Procedure Code, the court cannot prevent further the investigation into the subject of the trial.”

169. In this case the exparte applicant claims that he was arrested and charged with the same criminal offences that he had been discharged of yet no new evidence was availed. He is not saying that new evidence was introduced but that he was not given an opportunity to interrogate that new evidence or adequate time to prepare his defence in a case which the respondents assert is part heard before the Magistrates court in Kiambu.

170. In addition, this case can be distinguished from the Stanley Githunguri [supra] case for reasons that unlike in the Githunguri case, there was no foreclosure in this case. It is also apparent from the facts disclosed herein that at the time that the applicant was first charged with the criminal offence, the DPP was an office under the Attorney General and in the transitional period after its establishment with the promulgation of the 2010 Constitution. Prior to 2010 August 27th prosecutorial powers were vested in the Attorney General who could only delegate to the DPP as a department in that office. In the instant case, I find no evidence that the DPP was seized of this matter as an independent office under Article 157 of the Constitution and that when he withdrew the earlier charges, he had made up his mind to close the inquiry but that he was reopening investigations resulting from discovery of new evidence without according the person sought to be charged an opportunity to comment on the fresh evidence. InRepublic v Attorney General & 4 others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR it was held :

“Where a decision has been made to close an inquiry file, it is my view that before reopening the investigations resulting from discovery of new evidence the people sought to be charged ought to be given an opportunity to comment on the fresh evidence.”

171. The applicant has claimed that the decision to prosecute him is biases and malicious and that it is influenced by the 1st interested party, intended to malign his good name and that it calls for his prosecution before the documents which the DPP asserts as forming the basis of the criminal charges had been authenticated. From the material placed on record, there is no conclusive assertion that there is other evidence other than what the DPP has lined up before the Magistrates Court for the prosecution of the exparte applicant. Furthermore, as at the time the earlier charges which had not been initiated by the DPP were withdrawn, no witness had testified in that matter against the exparte applicant. There is absolutely no law or principle of law that bars the DPP from charging the exparte applicant afresh based on the same facts since it is clear that the DPP had not sanctioned the earlier actions taken by the Police.

172. Iam therefore of the view that the DPP was within his constitutional and statutory mandate in framing fresh charges though similar or the same as the earlier charges against the exparte applicant upon perusing the investigations file and satisfying himself that there was sufficient material and legal basis for mounting a prosecution against the exparte applicant.

173. In my humble view, the applicant is seeking to wholly have his defence of innocence in the pending criminal trial which is part heard determined by this court. To do so, in my humble view, would be killing the criminal justice system in our country as every criminal case preferred against any person who is believed to have committed an offence will be prosecuted through judicial review forum thereby rendering the courts exercising criminal jurisdiction otiose.

174. In my humble view, the applicant is attacking the sufficiency of the evidence to be adduced before the trial court and not malafides of the decision to charge him.

175. In this case, unlike in the Bitange Ndemo[supra] case, I find that there are serious contested issues raised by both sides on whether or not Mrs Helen Fear sold the land in question to the 1st interested party or to the exparte applicant and therefore who in principle holds good title to the disputed land which is a matter outside the jurisdiction of this court to determine. In addition, since there are allegations of fraud which is both a criminal offence and actionable in a civil matter, it is the view of this court that that is a matter that is best left to the criminal trial court to determine based on the evidence to be adduced and subjected to cross-examination.

176. In my humble view, it would be miscarriage of justice if this court were to make a finding of innocence of the exparte applicant based on the documents filed before it whose makers have no opportunity to be examined. The case involves documents examined by handwriting experts and the reports thereof and to delve into the depths of those documents would prejudice not only the criminal proceedings but also the pending civil suits.

177. . Although the applicant has delved too much into the relationship between his prosecution and the filing of a petition with the Public Service Commission to remove Mr Keriako Tobiko the DPP, this court is unable to find any personalized link that is laced with any form of malice between the petition for removal of the DPP and the criminal prosecution of the applicant which latter matter had commenced long before the DPP took oath of office in July 2011.

178. There is also on court record disputed material on whether the alleged theft of the 1st interested party’s property was a proclamation by an auctioneer distressing for rent on behalf of the exparte applicant or masquerading as such agent or a robbery in view of the fact that the exparte applicant himself denies ever signing any tenancy agreement with the 1st interested party’s daughter Angeline, hence posing the question as to who would have claimed for rent from the occupant of the premises which the applicant claims is his, especially when the order by Oganyo Hon, Principal Magistrate in CM Misc. Appl No 577 of 2011 is clear that the applicants for the order were the Auctioneer Pyramid Auctioneers and the exparte applicant herein Mr Muktar Saman Olow. And if the applicant did not have any tenancy relationship with the 1st interested party and or his daughter Angeline then the question is why would he go to proclaim for unpaid rent? As such, it would not be in order for this court to make conclusions that the charge of stealing is not warranted or whether it has any foundational basis as against the exparte applicant in view of the disputed matters all touching on alleged forgeries by the exparte applicant.

179. On allegations that the charge of forgery of the signatures of persons working at Lands Ministry cannot stand as those Lands Officers have not complained, the record is clear that the Lands Officers whose signatures were allegedly forged are key witnesses in the criminal trial and their specimen signatures were examined and reports presented to the DPP which informed the basis of the forgery charges and therefore this court wonders what kind of complaint the exparte applicant expects the Lands Officers to have lodged. The details of the evidence is in their witness statements which in my view is a substantive evidential matter for the trial court and which this court must refrain from making any finding which might prejudice the pending criminal and civil cases.

180. Equally, the allegation that the applicant is the one who has a genuine title and that the Commissioner for Lands admitted this fact in the defence filed in the consolidated civil suits which are still pending, this court’s view is that that as the issue of who between the applicant and the 1st interested party has the right to the suit property is before the civil suits pending in court, and as there are serious allegations on how the applicant obtained the contested title to the suit land, only the investigations arm can assist bring forth the truth of the matter. The serious issues raised go to the merit of the cases both at the criminal trial and the merits of the civil suits which are consolidated and pending before the magistrates’ court and the Environment and Land Court respectively. Further, as there are allegations that the signatures of not one but more Land Registrars were forged by the exparte applicant to obtain title to the suit land, the appropriate for a for determining whether or not there was a forgery is the criminal trial.

181. The court further notes that the “publication” of the charge against the applicant in the social media was by way of information by one of the prosecutors and that in itself is not evidence of malice. Examining the DPP’s letter of 19th October, 2011 just after he had taken oath of office in response to the complaints raised by the exparte applicant and the letter dated 31st October, 2011 fuming at the DCI for the latter’s refusal to submit to him the investigations file on the matter, and even ordering for the termination of the earlier charges preferred against the applicant before perusing the said file, Iam persuaded that the DPP was interested in getting to the bottom of the matter before taking any action of sanctioning any prosecution of the exparte applicant. I can read no malice or ulterior motive on his part.

182. Although the applicant maintains that the criminal case pending against him is intended to prejudice his rights to property in the civil cases, this court is unable to find any evidence that the ongoing trial is geared towards prejudicing his rights in the civil suit. He has not raised any issues against the trial court or his right to a fair trial. The fact that the criminal trial might unearth evidence to prove the forgery allegations in the civil suit in itself is not a violation of his rights in the civil suit. Further, the exparte applicant ought to know, as he is ably represented that the standard of proof in criminal cases is higher than that required in civil cases hence his innocence trial in the criminal case would not necessarily assist him get judgment in his favour in the civil cases.

183. On the other hand, fraud is a complex crime which requires forensic investigations by experts and the investigators having done do, there is no reason why they should not be allowed to place that material before the competent court of law to determine whether the exparte applicant was or was not involved in the alleged fraudulent acquisition of the suit land.

184. This court has not found any credible material upon which it can conclude that the DPP is abusing his powers in mounting the prosecution of the exparte applicant. This court is equally unable to find that the Respondents or DPP in particular have breached the applicant’s legitimate expectations as there is no evidence that the DPP, after terminating the earlier charges which had been instituted without his involvement had promised never to cause the applicant to be prosecuted for the alleged offences in the event that his perusal of the investigations file revealed that there was sufficient material to mount a prosecution.

185. The law has never placed the duty of determining the guilt or innocence of an accused person on the DPP. The DPP is expected to act in the public interest and to protect and promote the rule of law. It is for the trial court to determine whether the evidence adduced in the criminal matter is sufficient to warrant a conviction or insufficient to sustain a conviction of an accused person.

186. Iam also unable to find that the prosecution of the exparte applicant is oppressive, vexatious or abuse of court process. Seriously contested matters such as the Land Registry file containing particulars of the subject title disappearing to date and prior to alleged registration of the title in the names of the exparte applicant ; that the original registered owner was at the time of such registration long dead and therefore could not have sold the land to the exparte applicant; that the 1st interested party had vide an Originating Summons obtained vesting orders which could not be enforced due to the disappearance of the Land Registry file; that as at the time the exparte applicant alleged to have bought the suit land in question from Mrs Helen Fear, she was long dead; whether the exparte applicant’s search at the British Archives is conclusive evidence of registration of the death of Mrs Helen Fear are all, in my view matters which are not frivolous or vexatious, and which the trial court has jurisdiction to determine based on the evidence that shall be adduced before it.

187. I echo the words of Odunga J in Inspector General of Police & another v East African Portland Cement Co. Limited & 3 others [2016] eKLRwhere the learned Judge stated:

“In my view, it is not for this Court to stop the Respondents in their trajectories simply because the Court believes that the Respondents ought to have acted in a different manner. The constitutional discretion given to the Director of Public Prosecutions and the police ought not to be lightly interfered with especially if on the evidence in their possession if true may well sustain a prosecution. In this case it is clear even from the applicants’ own case that there exist land disputes between the parties claiming interests in the suit parcel which disputes are yet to be resolved. In the meantime, it is clear that the parties claiming interests therein are clearly antagonistic to one another. In such circumstances, it behoves the police to ensure that the disputing parties do not take the law into their hands. The police have a duty to arrest any imminent threat to law and order and that action cannot be termed as harassment. If this is what the police are doing then this Court cannot interfere with their exercise of otherwise lawful actions.”

188. Just like in the above case, this case involves a land dispute with the exparte applicant and the 1st interested party claiming title to the suit land not as joint owners but independently. The 1st interested party claims he bought the land from Mrs Helen Fear the original owner whereas the exparte applicant also claims to have bought the land from the same person and none of the parties have brought before the court the alleged seller to tell the court is the true position. That being the case, and with allegations that the said Mrs Helen Fear was long dead before the alleged sale and transfer of the land in favour of the exparte applicant, it is only proper that the police investigate and the DPP prosecutes the person they reasonably believe, had a hand in the alleged forgery. Moreso, I agree with the 1st interested party that it is not the fact of death of Mrs Helen Fear alone that is being relied upon to proof forgery of the documents that allegedly passed title to the exparte applicant.

189. Indeed, the Court would be entitled to intervene where it is clear that the powers and discretion given to the police and the DPP are not being exercised lawfully and in good faith and are exercised purely for the vindication of the commission of a criminal offence and the criminal justice system; or where the same are being exercised for the achievement of some collateral purpose other than its legally recognized aim. This is what this court found in the Bitange Ndemo [supra] case citing other decisions where, clearly, witnesses who had been implicated or incriminated themselves in the alleged crime were being honey-combed to become prosecution witnesses against the exparte applicant yet the same witnesses had exculpated the applicant from blame.

190. . In this case, I find that the pending civil suits do not preclude the DCI and the DPP from investigating and mounting a prosecution against the exparte applicant as the DPP’s action is well grounded in law under section 193A of the Criminal Procedure Code and it has not been shown that he had conducted himself in such a manner as to prejudice the exparte applicant’s constitutional rights to a fair trial or to access justice. Although the applicant claims that the Commissioner of Lands filed a defence in one of the civil cases admitting that the applicant used the correct process to acquire the land in question, it should be noted that the complainant in the matter is not the Commissioner of Lands but the 1st interested party who in my view, should also have his day in court and moreso, pleadings in a matter are not evidence. Until the testimony of parties is subjected to cross examination to test the veracity of their testimonies, pleadings remain just statements of fact. In addition, the statement of the Commissioner of Lands in defence is with regard to an allegation made against the lands office by the 1st interested party that the office fraudulently transferred the title to land in favour of the exparte applicant hence that so called admission must be understood in the context in which that defence was filed.

191. Criminal proceedings are instituted in the public interest and having regard to the circumstances of this case, Iam unable to find evidence of the DPP instituting the criminal charges against the applicant to achieve a collateral purpose or for ulterior motives.

192. It is not a secret that the 1st interested party is the main complainant in the pending criminal case but it has not been shown that there was no probable cause for the 1st interested party to complain against the exparte applicant who admits that he himself did file a suit against the 1st interested party seeking to prohibit him from trespassing on the suit land. It is therefore my humble view that the best forum where both parties can persuade the court on the merits or otherwise of the complaint lodged by the 1st interested party that the exparte applicant could only have obtained a title to the disputed land through forgery is the criminal trial and therefore the sweeping statement by the exparte applicant that the 1st interested party is influential and supervises the police in their operations with regard to this matter lacks evidential support and holds no water.

193. In East African Community vs. Railways African Union (Kenya) And Others (No. 2) Civil Appeal No. 41 of 1974 [1974] EA 425, it was observed that:

“the onus lies on a person seeking the grant of a prerogative order to establish that it is essential for it to issue since these are not orders that are lightly made. Judicial review remedies are orders of serious nature and cannot and should not be granted lightly. They should only be granted where there are concrete grounds for their issuance. It is not enough to simply state that grounds for their issuance exist; there is a need to lay basis for alleging that there exist grounds which justify the grant of the said orders.”

194. I also associate myself with the holding in Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR where it was held:

“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”

195. In this case and as earlier stated, there are clearly serious factual issues which are conflicting. These include the manner in which the exparte applicant was arrested after withdrawal of the earlier criminal charges and in order for this Court to determine whether the Respondents in effecting the arrest and mounting a prosecution against the exparte applicant was violently harassing the applicant, this Court would have to determine who the arresting officers were and if they infringed on the exparte applicant’s rights, he has the right to complain for investigations to be launched. To make findings on these issues, evidence thereon would have to be taken in the ordinary manner from those who witnessed his arrest. That however is not the duty of a judicial review Court.

196. In addition, the claim by the DPP that he only came into office under the new constitutional order on 1st July 2011 and therefore needed time to investigate the claims by both complainant and exparte applicant hence the length of time it took him to allow the charges against the exparte applicant is a matter that has not been controverted by any other evidence to the contrary.

197. For the above reasons, I find that the exparte applicant has not demonstrated before this court that he is deserving of judicial review remedies of Certiorari, prohibition and declaration against the respondents as prayed.

198. In the end, I dismiss the exparte applicants’ Notice of Motion dated 19th September, 2016 and the interim orders of stay of continuation of his prosecution before the Magistrates Court at Kiambu are hereby vacated forthwith.

199. Costs are in the discretion of the court. However, I note that the respondents and 2nd interested party are public entities whereas the 1st interested party is a complainant in the pending criminal case and was, indeed, a necessary party, who had a stake and interest in the outcome of these proceedings hence his joinder. In the premises, the motion as dismissed shall be without any order as to costs. Consequently, each party shall bear their own costs of these proceedings.

Dated, Signed and Delivered in open court at NAIROBI this 13th day of September, 2017

R. E. ABURILI

JUDGE

In the presence of:

Mr Murunga and Miss Gachomba h/b for Mr Mude for exparte applicant

Mr Murunga also h /b for Mr Njihia for the 2nd Interested Party

Mr Ashimosi for the 1st and 3rd Respondents

N/A for the 2nd respondent

Mr Rapando h/b for Mr Kiragu Kimani for the 1st interested Party

Court Assistant: George