[2017] KEHC 9407 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MILIMANI LAW COURTS

JR. CASE NO 521 OF 2016

IN THE MATTER OF: ARTICLES 22, 23, 25,27,47,50,157, AND 165 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: SECTIONS 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: SECTIONS 8 & 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTIONS ACT, ACT NO. 4 OF 2015

AND

IN THE MATTER OF: THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA

AND

IN THE MATTER OF: THE NAIROBI CHIEF MAGISTRATE’S CRIMINAL CASE NUMBER 1523 OF 2016

AND

IN THE MATTER OF: THE MATTER OF THE PUBLIC SERVICE COMMISSION OF KENYA DISCIPLINE MANUAL JULY 2008

AND

IN THE MATTER OF: AN APPLICATION FOR LEAVE BY EUNICE KHALWALI MIIMA TO INSTITUTE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF PROHIBITION AND CERTIORARI

BETWEEN

EUNICE KHALWALI MIIMA.………....................…...…......APPLICANT

VERSUS

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

THE CHIEF MAGISTRATE MILIMANI LAW COURTS,

CRIMINAL DIVISION................................................2ND RESPONDENT

THE CABINET SECRETARY MINISTRY OF INDUSTRY TRADE

AND COOPERATIVES............................................3RD RESPONDENT

JUDGEMENT

Introduction

1. By a Notice of Motion dated 7th November, 2016, the applicant herein, Eunice Khalwali Miima,seeks the following orders:

1)That an Order of Prohibition do issue directed to the Director of Public Prosecutions the 1st Respondent herein prohibiting him, his agents, employees and servants from proceeding with the prosecution of the Applicant in Criminal Case Number 1523 of 2016 in so far as the same relates to the alleged stealing of property in the Ministry of Industrialization and Enterprise Development.

2)That an Order of Prohibition do issue directed to the Chief Magistrate Milimani Commercial Court, Criminal Division the 2nd Respondent herein prohibiting him, his agents, employees and servants from proceeding with the prosecution of the Applicant in Criminal Case Number 1523 of 2016 in so far as the same relates to the alleged stealing of property in the Ministry of Industrialization and Enterprise Development.

3)That an Order of Prohibition do issue directed to the Cabinet Secretary in the Ministry of Industry, Trade and Cooperatives the 3rd Respondent herein prohibiting him and his agents, employees and servants from interdicting, suspending, or sacking the Applicant from her place of work in the Ministry on the basis of the challenged prosecution of the Applicant in Criminal Case Number 1523 of 2016 relating to the alleged stealing of property in the Ministry of Industrialization and Enterprise Development

4)That an Order of Certiorari do issue to remove and bring to this Honourable Court for purpose of quashing the decision made by the Director of Public Prosecutions, the 1st Respondent herein to prefer charges, commencing with prosecution and prosecuting the Applicant in in Criminal Case Number 1523 of 2016.

5)That costs of this application be provided.

Applicant’s Case

2. According to the applicant, the case in question concerns theft of property belonging to the Ministry of Industry and Trade Cooperatives stored at Kenya Industrial Research Development Institute (hereafter known as KIRDI) in its store since the year 2011. It was averred that to secure the stores the Ministry had specifically contracted MOCAM security firm to man the stores both during the day and night. There was however one civilian security officer to play the oversight role only during the day. In addition, KIRDI itself had contracted a security firm to man the compound and the main gate.

3. It was averred that as regards the theft of stores of 24th September 2015 one of the civilian guard informed the applicant then serving as an Acting Director of Administration that some theft was taking place at the stores as reported to her by the civilian guard on the ground Mr. Serem following which the applicant did an internal memo of the same date alerting the Ministry of the theft. The applicant then undertook an administrative formal procedure by asking the head of civilian security Mr Edwin Maburi to prepare a report which was submitted to the applicant on 28th September 2015 who then informed the Permanent Secretary about the case. The applicant was asked to make a formal report to the police which she did on 1st October 2015 at Akila Police Station via letter dated 1st October 2015 and later recorded her statement with the Police both at the station and to the Investigating officers at her office.

4. In the applicant’s view, she exhaustively effected the procedure where there is a case of stolen government property and the matter was never referred to her again for close to 1 year until when out of the blue she was charged with conspiracy and stealing at the Chief Magistrates’ Court Criminal Division at Milimani in criminal case number 1523 of 2016.

5. It was averred that the current PS Mr. Korir requested for a report regarding the theft which was made to him by the applicant stating all the facts in order to appraise him of the current developments. The applicant deposed that she was all along appraising the Ministry of the progress of the investigations on the incident as shown by copies of the correspondence attached to the verifying affidavit. To her at no point in time did the Ministry invoke disciplinary measures against her in the matter. Neither did the Police bring to her attention any accusations following their investigations nor did they treat her as one arrested on suspicion of any crime.

6. The applicant contended that as a senior officer who had served the government diligently for 34 years and scheduled to retire on the 30th June 2017 her arraignment in Court was not fair administrative action and was driven by spite and malice therefore contrary to the Constitution and the relevant Manuals that govern her employment like the Delegation of Public Service Commission Human Resource Functions to the Cabinet Secretary (Revised August 2015) and the Public Service Commission of Kenya Discipline Manual of July 2008.

7. The applicant asserted that the Cabinet Secretary was never aware that she had been in court until when she brought it to his attention and also when he said the CID Officers from the Police Criminal Investigations department wrote to him recommending the applicant’s interdiction for which he was surprised and notified the applicant of their letter.

8. It was contended by the applicant that she was not given a chance to participate in the investigations, never wrote statement with regards to accusations levelled against her and was not given a chance to defend herself.

9. The applicant contended that she was being charged with the offence of stealing between the years 2011 and 2015 yet she only came to be in charge of the docket of security on Jan 2016 and was not aware of any theft taking place at KIRDI premises prior to her appointment to that position. The applicant’s contention was that the head of civilian security reported to her in 2015 the theft incident since she was the most accessible person at the time which report she made it known to the person in charge of security the PS who gave the relevant instructions to have the matter reported to the police which the applicant did.

10. It was the applicant’s case that if interdicted which possibility was real and looming over the malicious charges levelled against her she would be subjected to prejudice and loss as her salary would be slashed into half and her hard-earned retirement benefits would not be processed she was scheduled to retire on the 30th of June 2017. She asserted that if that happened, hers would be a disgraceful exit from the public service yet in 2005 she was awarded by the then president His Excellency Mwai Kibaki an award for being an exemplary worker that is the Elder of the Burning Spear (MBS).

11. It was revealed by the applicant that contrary to the Delegation of Public Service Commission Human Resource Functions to the Cabinet Secretary (Revised August 2015) Clause 18. 0 the Cabinet Secretary Ministry of Industry Trade and Cooperative was not aware that his officer was being charged until she was arraigned in court and a report was made to him by the Permanent Secretary.

12. The applicant averred that she was a grandmother and a long serving member of her church living honestly on the salary provided by the government without deeping her hands to steal from the government she had served in the 34 years she had been in service.

13. In the applicant’s view, her crime seems to be having reported the theft to the police station as this was the only role she played in this case and did so once it came to her attention and instructions were given by the Permanent Secretary at the time. The applicant believed that her prosecution was riddled with malice and an abuse of the state prosecutorial powers as there was no reasonable and probable cause for mounting a criminal prosecution against her as she followed all relevant procedures once the theft was brought to my attention. It was the applicant’s case that the entire intended prosecution has no legal or factual substratum. To her, the prosecution is instigated by administrative politics and witch hunt to hound her out of office so as to have her position taken up by the Permanent secretary’s preferred person.

14. The applicant explained that the criminal case instituted against her show: -

a. Ulterior motive that define and envelope the decisions made by the 1st Respondent at the instigation of the Ministry’s Permanent secretary.

b. The same is therefore tainted with mala fide and that the 1st Respondent doesn’t have absolute and unchecked powers to prefer criminal charges against an accused person. The Court must exercise its supervisory powers over the 1st Respondent.

c. The criminal justice system is being abused for purposes that are extraneous to its core function and mandate. The Court in light of this administrative activities and intrusion must guide its process from manipulation and pollution.

d. The criminal case is informed, coloured and propelled by motives that completely collateral in the end game of the criminal justice trial.

e. The criminal case commenced against the applicant violates constitutional principles of separation of powers and in purporting to criminalize process that is sanctioned by the laws of the land.

15. It was therefore the ex parte applicant’s case that it is in the interest of justice and upholding the rule of law for the orders sought to be granted.

1st Respondent’s Case

16. The 1st Respondent opposed the application.

17. According to the 1st Respondent, on 7th day of October, 2015 the DCIO-Makadara received information that goods that had been stolen were hidden at a shanty house along Enterprise road at Industrial area. Upon visit to the said premises various items were recovered to wit: electric compressors, 51/2 packets of welding rods, six(6) pieces of floor sanders, 86 pieces of leather aprons and one (1) welding machine. It was believed that these items had been stolen from the Ministry of Industrialization and Enterprises Development as they had a logo/mark belonging to the said Ministry. The suspect, the 1st accused in criminal case no. 1523 of 2016 who was in possession at the time was unable to account for the said items leading to his arrest.

18. It was averred that further investigations revealed that the items had indeed been stolen from Kenya Industrial Research Development Institute (KIRDI) stores and since the stores had not been broken into, it meant that the person who stole the same had access to the store. According to the 1st Respondent, investigations revealed that one Abraham Ombati, the 5th accused person had deliberately left the keys with one Edwin Maburi, the 2nd accused and Meshak Serem the 3rd accused and Francis Kalii, the 4th accused respectively in criminal case no.1523 of 2016, in order to remove items from KIRDI stores.

19. The 1st Respondent further averred that on the 23rd October, 2016 an audit was conducted and it was discovered that a total stocks of goods valued at Kenyan Shillings 63, 906, 392 was missing from the store. Further investigation revealed that the Applicant herein who was the Director of Administration deliberately omitted to take action as required showing her complicity in the matter.

20. Upon statements being recorded from various persons including the Applicant herein and the Principal Secretary one Julius Korir, it was discovered that the said PS had vide a Memo dated 30th September, 2015 requested for a report into the theft of the stolen items and further inquired from the Applicant as to whether the same was reported to the police. Further investigations revealed that the Applicant instructed one Joyce Wangari Mburu not to deliver a letter dated 1st October, 2015 that was written to the police for some reason.

21. It was the 1st Respondent’s case that upon review of the evidence on record the 1st Respondent made a decision to have the Applicant charged with offences known to law based on the evidence on record and not other extraneous matters as stated by the Applicant. To the 1st Respondent, the Applicants’ averment that the decision by the Director of Public Prosecutions to charge her is at the instigation of the Ministry’s Permanent Secretary to achieve a collateral purpose is therefore unfounded and without any evidential or legal backing in that:

a) State powers of prosecution are exercised by the Director of Public Prosecutions;

b) In the exercise of such powers, the Director of Public Prosecutions:-

(i) Is subject only to the Constitution and the law;

(ii) does not require the consent of any person or authority;

(iii) is independent and not subject to the direction or control of any person or authority; and

(iv) The High Court would be crossing into the line of the independence of the DPP to descend into the arena of finding whether there is a prima facie case against persons and entities not to be charged.

(v) The Applicant is merely raising her defence in a Judicial Review Court. Whether the Applicant was complicit in the matter is a matter for determination by the trial court and not the High Court.

22. Based on counsel’s advice, the 1st Respondent believed that in the discharge of its duties and functions, it is required to respect, observe and uphold the following Constitutional provisions, inter alia;

a) To have regard to public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process under Article 157 (11);

b) Uphold and defend the Constitution;

c) The national values and principles of governance enshrined in Article 10 in the application, interpretation of the Constitution as well in making and implementing the laws and public policy decisions;

d) Respect, observe, protect, implement, promote and uphold the rights and freedoms in the Bill of Rights enshrined in Article 21(1) of the Constitution;

e) To be accountable to the public for decisions and actions taken and generally observance of Article 73 (2) (d) of the Constitution;

f) To be accountable for administrative acts and observance of the values and principles of public service under Article 232 (e) of the Constitution.

23. It was therefore contended that the Applicant had not demonstrated that in making the decision to prefer criminal charges against her, the 1st Respondent has acted without or in excess of the powers conferred upon them by the law or have infringed, violated, contravened or in any other manner failed to comply with or respect and observe the foregoing provisions of the Constitution of Kenya 2010 or any other provision thereof. Further, the Applicant failed to demonstrate that the 1st Respondent had not acted independently or had acted capriciously, in bad faith or had abused the legal process in a manner to trigger the High Court’s intervention.

24. To the 1st Respondent, there is no evidence of malice, unlawful actions, excess or want of authority, harassment or intimidation or even manipulation of the court process so as to seriously deprecate the likelihood that the Applicant might not get a fair trial as provided for under the Constitution to warrant the High Court to interfere with the independent decision of the 1st Respondent.

25. In any case the independence of the judiciary is a key tenant in the administration of justice. It is on this premise; that the Court is independent and impartial that the Applicant has approached the court for speedy resolution of the issue. The Applicant shall therefore enjoy the right to equal protection in any court of law and a fair administrative process and will therefore not suffer any prejudice.

26. The 1st Respondent therefore prayed that the Application be dismissed in its entirety and that the matter be remitted to the trial court which is equipped to deal with the quality and sufficiency of evidence gathered in support of the charges preferred against the Applicants.

2nd and 3rd Respondents’ Case

27. The application was similarly opposed by the 2nd and the 3rd Respondents.

28. In so doing, the Respondent filed the following grounds of opposition:

1. That the applicant has not challenged the jurisdiction of the Chief Magistrate Milimani thus acted within the premises of the law.

2. That Section6 of the Judicature Act provides that no Judge or Magistrate and no other person acting judicially shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty.

3. That judicial review cannot be used to curtail or stop statutory bodies of public officers from the lawful exercise of power within their statutory.

4. That this honourable court is devoid of jurisdiction to issue prayer 4 (Order of prohibition) as the same is a preserve of the Employment and Labour Relations Court.

5. That the application is based on contradictory allegations which borders on mere belief, suspicion and speculations and hence incapable of any judicial review determination.

6. That the application is an abuse of court process and lacks merit and thus ought to be dismissed with costs to the respondents.

Determination

29. I have considered the material presented before the court in the instant application.

30. The circumstances under which the Court will grant stay of a criminal process in these kinds of proceedings is now well settled. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim.

31. However as was held in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001:

“Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognised, however in exercise of these powers the Attorney General must act with caution andensure that he does not put the freedoms and rights of the individual in jeopardy without the recognised lawful parameters...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious...A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.”

32. 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.”

33. In Meixner & Another vs. Attorney General [2005] 2 KLR 189,the same Court expressed itself as hereunder:

“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion is acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution... 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.”

34. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69,the High Court held:

“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 utilisation 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 epitomised 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 utilise 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 fact that it has not been argued before however does not mean that the law stops dead at its tracks. An order of prohibition looks to the future and not to the past; it is concerned with the happenings of future events and little, if any, of past events. Where a decision has been made, there is little that the court can do by an order of prohibition to actually stop the decision from being made, because simply that which is sought to stop has already been done. However in such circumstances, the power of judicial review is not limited to the other orders of judicial review other than prohibition. With respect to civil proceedings prohibition lies not only for the excess of jurisdiction but also from a departure of the rules of natural justice...So long as the orders by way of judicial review remain the only legally practicable remedies for the control of administrative decisions, and in view of the changing concepts of good governance which demand transparency by any body of persons having legal authority to determine questions affecting the rights of subjects under the obligation for such a body to act judicially, the limits of judicial review shall continue extending so as to meet the changing conditions and demands affecting administrative decisions...This therefore implies that the limits of judicial review should not be curtailed, but rather should be nurtured and extended in order to meet the changing conditions and demands affecting the decision-making process in the contemporary society. The law must develop to cover similar or new situations and the application for judicial review should not be stifled by old decisions and concepts, but must be expansive, innovative and appropriate to cover new areas where they fit. 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 utilised. 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 case 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....”

35. 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... In this case it is asked to step in to grant an order of prohibition. Prohibition looks into the future and can only stop what has not been done. It is certiorari that would be efficacious in quashing that which has been done but it is not prayed for in this matter. There was no order granted for stay of further proceedings when leave was granted and it is possible that the private prosecution has proceeded either to its conclusion or to some extent. In the former event an order of prohibition has no efficacy and the court would be acting in vain to grant one. What is done will have been done. If there is anything that remains to be done in those proceedings, however, the order of prohibition will issue to stop further proceedings.”

36. In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR, it was held:

“the police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court...As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.

37. Proceedings of this nature, ordinarily, do not deal with the merits of the case but only with the process. In other words these proceedings determine, inter alia, whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made, whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters, whether the decision to commence the criminal charges go contrary to the applicant’s legitimate expectation, whether the respondents’ decision to charge the applicant is irrational. It follows that where an applicant brings such proceedings 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 to determine such a matter and will leave the parties to resort to the usual forums where such matters ought to be resolved. In other words, such proceedings are not the proper forum in which the innocence or otherwise of the applicants is to be determined and a party ought not to institute such proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in these kinds of proceedings is mainly concerned with the question of fairness to the applicant in the institution and continuation of the criminal proceedings and whether such proceedings amount to a violation of his rights and fundamental freedoms and once the Court is satisfied that that is not the case, the High Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.

38. Whereas an applicant may well be correct that there are several factors which go to show his innocence, these are not the proper proceedings in which the correctness of the evidence or the truthfulness of the witnesses is to be gauged. That task is solely reserved for the trial Court which is constitutionally bound to determine the proceedings in accordance with the law. Accordingly, the mere fact that the applicants view the evidence to be presented against them as patently false, concocted and/or misleading does not warrant this Court in interfering with the criminal process since that is an allegation which goes to the sufficiency and veracity of the evidence and the innocence of the Applicants, matters which are not within the province of this Court.

39. In Thuita Mwangi & Anor vs. The Ethics and Anti-Corruption Commission & 3 Others Petition No. 153 & 369 of 2013, it was held:

“ … I am afraid that the High Court at this point is not the right forum to tender justifications concerning the subject transaction let alone test the nature and veracity of these allegations. In… the Court held that “It is the trial Court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. It would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court”. Similarly…Lenaola J., captured this balance as follows; “(22). The point being made above is that the DPP though not subject to control in exercise of his powers to prosecute criminal offences, must exercise that power on reasonable grounds. Reasonable grounds, it must be noted, cannot amount to the DPP being asked to prove the charge against an accused person at the commencement of the trial but merely show a prima facie case before mounting a prosecution. The proof of the charge is made at trial.”

40. As was held by Mumbi Ngugi, J in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Ors (2014) eKLR:

“The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated”.

41. In this case the gist of applicant’s case is that she was not part of the theft of the items in question. In her evidence, she was in fact not in charge of security matters at the time. However as soon as the matter came to her attention she took the necessary steps. In my view the totality of the applicant’s case is that she was not part of the theft in question. In effect the ex parte applicant’s case is that she is innocent. In her view the only reason why the criminal proceedings were instituted against her was to due to administrative politics and witch hunt to hound her out of office so as to have her position taken up by the Permanent secretary’s preferred person.

42. On the other hand the Respondents’ position is that The 1st Respondent further averred that on the 23rd October, 2016 an audit was conducted and it was discovered that a total stocks of goods valued at Kenyan Shillings 63, 906, 392 was missing from the store. Further investigation revealed that the Applicant herein who was the Director of Administration deliberately omitted to take action as required showing her complicity in the matter.

43. Upon statements being recorded from various persons including the Applicant herein and the Principal Secretary one Julius Korir, it was discovered that the said PS had vide a Memo dated 30th September, 2015 requested for a report into the theft of the stolen items and further inquired from the Applicant as to whether the same was reported to the police. Further investigations revealed that the Applicant instructed one Joyce Wangari Mburu not to deliver a letter dated 1st October, 2015 that was written to the police for some reason.

44. In effect the Respondents accused the applicant of complicity in the theft and attempting to cover up or conceal the same.

45. The law in these kind of matters is that it is upon the applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute is being abused and ought to be interfered with and this burden and standard was expounded in Kuria & 3 Others vs. Attorney General (supra) where it was held:

“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..”

46. As is stated in Halsbury’s Laws of England 4th Edn. Vol. 1(1) para 12 page 270:

“The remedies of quashing orders (formerly known as orders of certiorari), prohibiting 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.”

47. In this case it is my view that the issues raised by the applicant ought to be raised before the trial Court. It is therefore my view that it is premature at this stage to make findings that the criminal proceedings ought to be quashed. The applicant’s case being that she took all the necessary steps in the matter and was not part of the theft conspiracy cannot be dealt with and resolved by this Court in these proceedings in light of the fact that the case facing the applicant, it would seem, is not that she was the principal but that she was an accessory to the theft.

48. With due respect the applicant’s evidence falls short of what is required to prove ulterior motives in the institution of criminal proceedings. The fact that the applicant faces the risk of interdiction per se cannot be evidence of malice. With due respect the applicant has simply failed to make out a case that would warrant the serious orders sought herein.

49. As was held by Lenaola, J (as he then was) in the case of Daniel Ndungu vs. Director of Public Prosecutions & Another (2013) eKLR:

“In conclusion, the Petitioner ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the Law should he be found culpable”.

50. As was expressed in Kuria & 3 Others vs. Attorney General (supra):

“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.”

51. In the premises I am not satisfied that this is a proper case in which the court ought to bring the criminal proceedings to a halt. The applicant will be afforded an opportunity to defend herself, cross-examine witnesses and adduce evidence in support of her case and that in my view is the proper course to take in the circumstances of this case.

Order

52. Accordingly, I find that the Notice of Motion dated 7th November, 2016 is unmerited, the same fails and is hereby dismissed with costs to the Respondents.

53. Orders accordingly.

Dated at Nairobi this 11th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the absence of the parties.

CA Ooko