[2019] KEHC 5342 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 304 OF 2016

FELIX KIPRONO MATAGEI…………………………....…………….PETITIONER

VERSUS

1. HON. ATTORNEY GENERAL

2. DIRECTOR OF PUBLIC PROSECUTIONS

3. DIRECTOR OF CRIMINAL INVESTIGATIONS........................RESPONDENTS

AND

1. ANTHONY KIHARA GETHI..............................................INTERESTED PARTY

J U D G M E N T

1) Mr. Felix Kiprono Mategei who describes himself as a private citizen passionate in advancing and advocating for the Rule of Law, has brought the Petition on his own behalf and on behalf of the public interest. He joined the three Respondents in their Constitutional and statutory capacities pursuant to the provisions of Articles 156, 157 and the provisions of Police Service Act, 2011.

2) In the Petition the Petitioner challenges the constitutionality of Sections 3, 4, and 7 of the Proceeds of Crime and Anti Money Laundering Act 2009 ( henceforth referred to as POCAMLA) for being a violation and threat to the Constitution and fundamental rights and freedoms for failure to stipulate with sufficient clarity the criminal offences thereby created. The Petitioner contends that the provisions of the Act are over-broad, ambiguous and over-reaching.

3) In particular the Petitioner faults the expressions, ‘who knows, who ought to reasonably knows and engages in any agreement or arrangement’as being offensive to the principle of legality in that before the Court interprets those words, the accused person is left without the clear understanding of the offense charged and if the activity charged covers the activity intended to be addressed by the purpose of the law. It is additionally asserted that the state of vague and lazy definition of criminal offences leave it to the courts subjective assessment to reach an acquittal or conviction thus further affronting the principle of law which dictates that legislation should be clear, precise and unambiguous on what is prohibited and what is permitted.

4) It was then added that the provisions are already being experimented and an advocate and a business man who are innocent have been roped in and charged in Milimani Criminal Cases Nos. 301 and 1905 of 2006.

5) The provisions are further faulted for being vague in imposition of offenses without definition of the target and conduct of money laundering sought to be prohibited fails to peg the offences on the presence of mens rea in engaging in the arrangement or agreement and failure to give a precise definition of the terms money laundering, proceeds of crime, and the expressions ‘ought to have known’a fact that therefore fails to take into account the reasonableness of the steps taken in the ordinary conduct of professional engagements .

6) For such reasons the petitioner contends and asserts that the legislation fails to meet the test of a reasonable or justifiable legislation targeting money laundering as a social vice which is a legitimate pursuit by the state but that the means employed are faulted for being broader than necessary for the attainment of the objectives and therefore, then, for the Director of Public Prosecutions, 3rd Respondent to enforce such provisions, it would amount to censorship which impairs the core values of the Constitution and thus a threat to the criminal justice system.

7) The three sections of the Act are said to be a recipe for finding an accused person guilty without being blameworthy and that it portends threat to right to property and to further the law for business operations which are at threat of being highly interfered with.

8) It is however conceded that the need for mens rea or guilty mind, is a general rule with known exemptions but that the impugned provisions fail the test of balancing the need to fight the vice of money laundering as against the rights and fundamental freedoms of the person. The alleged vague and imprecise provisions are seen and faulted for casting the criminal law net too wide to be able to unjustly and unfairly drag along its path both guilty and innocent persons in so far as it addresses the presence of arrangements and agreements.

9) To that extent it is the petitioner’s view that these sections offend the provisions of Articles 2(4), 27, 40 and 50(2), of the Constitution with a chilling effect on the economic rights of the individual. On account of such facts then it is prayed that the sections 3, 4 & 7 of POCAMLA be declared to be contrary to Articles 2 (4), 3, 10, 27, 40, 50 and 249 of the Constitution, are this null and void; a declaration that the continued enforcement of the same by the Respondents violates the bill of rights and militates against the interests of the administration of justice and thus abuse of the process; and an order restraining further purported charges and prosecution based on the three sections together with costs of the petition.

10) When served, the 1st Respondent filed Grounds of Opposition dated 2. 5.2017 on the 3. 5.2017. In those grounds the 1st Respondent contends that a judgment by a court of competent jurisdiction cannot be said to contravene any rights of or a value of the Constitution and such a judgment cannot be the basis of separate proceedings even on public interest litigation. In addition the Respondent pleaded that there had not been disclosed how the two criminal case at Milimani violated the rights of the Petitioner hence there were prospects that the petition was motivated by ulterior motives disguised as public interest just as it had not been disclosed how the cited provisions of the Constitution had been violated and lastly that the petition lacked merit for failure to disclose constitutional violations hence it can only be viewed as an abuse of the court process thus deserving dismissal.

11) For the 2nd Respondent a lengthy Replying Affidavit was sworn and field by one Gitonga Muranga, a prosecution counsel involved in the prosecution of the two criminal cases who said he had read not only the petition, but also the two applications by Chamber Summons and Notice of Motion dated 15. 7.2016 and 28. 7.2016, respectively, together with the Affidavits sworn in support thereof. That Affidavit was therefore in opposition to both applications as well as the petition.

12) The first attack on the petition was grounded upon the principle of res judicata, by which attack, the 2nd Respondent contends that the matters pleaded here were directly and substantially in issue in JR No. 102 of 2016, Republic Vs- the DPP and another, exparte Patrick Ogola Onyango and 9 Others, decided by Onguto J whose decision was appealed against in CACA No.112 of 2016 (UR 89 of 2016) which appeal is pending hearing and determination. It was also asserted that even the interested party also filed an appeal which is also awaiting hearing and determination. On that basis the 2nd Respondent sought that the petition is bad in law and deserve dismissal.

13) On the three sections of the Act faulted for being over-broad, over-reaching and with words not properly defined, the 2nd Respondent took the view that such fault are not properly founded because the offence of money laundering is well defined under the Act and that the impugned sections set out the essential ingredients of the offence of money laundering and that actual knowledge or existence of reasonable grounds to know and believe that the properly dealt with was from proceeds of crime must be proved by the prosecution. It is then deponed that the principle of law of there being no criminal liability for acts done without exercise of free will has never been displaced and therefore the provisions of section 3 POCAMLA is neither vague nor overbroad and cannot be said to be unconstitutional.

14) On the charge that the attacked sections offered the principle of legality, the deponent take the view that money laundering is generic term used to describe the process by which criminals disguise the original ownership and control of proceeds of crime by seeking the portray the same to have been legitimately acquired and that he who engages in such process or conduct exhibits guilty mind and therefore the person who acquires the proceed of crime and he who is used to launder the same is part and parcel of the illegal conduct in seeking to help disguise the character of the property and thereby commits an offence and there cannot be any illegality in criminalizing the acts of the launderer. It is then urged that money laundering being a complex crime the High Court should rise to the occasion and answer to its duty to set the position of the law clearly and ex debito justitiae.

15) On the third limb of attack that the impugned provisions do not set ascertainable standards of guilt to protect against arbitrary enforcement, the deponent, on behalf of the 2nd Respondent, asserts that the attacked sections set out in concise terms the essential ingredients of the offence of money laundering that the prosecution is obligated to prove together with the defenses an accused is entitled to raise. It is then added that the decision to prefer a criminal charge is made with deep consideration of among other factors the admissibility and reliability of the evidence available, the legality of the charge in accordance with the national prosecution policy and that there are no prospects of arbitrary enforcement.

16) On the accusation and point of attack that the sections offend it principle of legality, the 2nd Respondent asserts that the principle is clear that there cannot be an offence unless it be declared by the law as an offence and a penalty for the guilty provided which principle is fully satisfied by the Act under attack.

17) On the allegations of the lack need for proof of mens rea, 2nd Respondent takes the view and reiterates that the need for proof of mens rea is expressly legislated and the prosecution has to prove that the accused had actual knowledge or reasonable grounds to know that the subject property dealt with is a proceed of crime together with intent to commit an offence. The affidavit then sets to demonstrate that section 3, in particular, sets out three things that must be proved for an offence to be deemed committed. It was then denied that the Act is being experimented to the detriment of Kenyans while asserting that the purpose of legislation is not experimental but for a legitimate purpose and that all the cases pending in court and founded on the Act were so initiated after competent investigations coupled with duly evaluated evidence gathered.

18) The 2nd Respondents then pointed out that Kenya is not the first country to enact the Anti-money laundering legislation but has followed on the footsteps of other commonwealth and non-commonwealth countries in which counties the court system have delivered themselves in conformity with a section 3 Judicature Act which mandates that the jurisdiction of Kenyan Courts be exercised in conformity with, among others, the substance of common law which literally mean law established pursuant decision by courts. The respondent then denied that there is anything in the Act that is unconstitutional it being reiterated that the offence of money laundering is well defined and the ingredients clearly set out.

19) The deponent then went historical on how Kenya came to enact Anti money Laundering legislation beginning the realisation by the international community that money laundering was a scourge and a menace that must be checked and fought by enacting the Act No.4 of 1994 (Narcotics Drugs and Psychotropic Substances Act) which however was limited to the offence of laundering money procured from drug trafficking, then came the Anti-corruption and Economic Crimes Act, Cap 65, enacted in 2003 which outlawed laundering of money obtained from corruption.

20) To the deponent the two statutes were the precursor to the current POCAMLA. Reliance was then placed on a decision by the privy council of Mauritius on there being no need to prove a specific means by which the unlawful proceeds were produced. To crown its opposition to its petition, the 2nd Respondent underscored its constitutional powers and independence never to be directed by any authority and that it being bound by the constitution, and in particular Articles 10 and 232, to grant the prayers sought in the petition would militate against the interests of administration of justice.

21) Pursuant to the notice of Motion dated 28. 7.2016 one ANTHONY KIHARA GETHI was joined to it proceedings as an interested party pursuant to which joinder that party filed a Replying Affidavit sworn on the 13. 4.2017. In that Affidavit the interested party disclosed being an accused in Milimani Criminal Case No.304 of 2016 on account of his engagement as a businessman dealing in motor vehicle importation and the person who facilitated the import of motor vehicle KCD 536P into Kenya. He then expressed displeasure and disturbance on being dragged to court an account of money paid to him for the motor vehicle which to him was within the known market overt prices.

22) I have perused the entire file and I have been unable to lay my hands on any opposition filed by the 3rd Respondent. Even though there were two applications, by the petitioner and interested party, seeking conservatory orders, the same seem to have been not been pursued as the directions given on 3. 3.2019 are clearly and definitely geared towards fast tracking the petition.

23) Pursuant to the said directions parties filed written submissions as follows:-

i) Petitioner filed submissions dated 7. 4.2017 on the 12. 4.2017 and list of authorities on 4. 12. 2017.

ii) The Interested Party filed his dated 12. 4.2017 on 13. 4.2017.

iii) 1st Respondent filed submissions dated 26. 6.2017 on 5. 7.2017.

iv) The 2nd Respondent’s submissions are dated 16. 2.2017 on 17. 2.2017.

Summary of Submission by the Petitioner

24) The submissions filed reveal that the trigger of this petition was the decision by the 2nd and 3rd Respondents to charge and prosecute the Interested Parties and his co-accused persons in Milimani criminal case no.301 of 2016 and isolates only two issues from determination;

a) Whether the sections 3, 4 & 7 of POCAMLA are unconstitutional and

b) Whether the same are otiose, ambiguous and overreaching hence, again unconstitutional.

25) The submissions then place reliance upon the provisions of article 40 as being a prohibition against parliament from enacting any law that permit the arbitrary deprivation of property and restriction of the enjoyment of property of any description in a discriminatory manner and relates that provision to the impugned provisions of the POCAMLA to be ambiguous. To the Petitioner being so ambiguous the act serves no interest of criminal justice but is used to target innocent Kenyans having been used in the pending trials to target and rope in even advocates and fails thus to undertake the delicate balance between prevention of crime and enjoyment of rights and fundamental freedoms. The provisions are further faulted for being vague and leave it to the court’s subjective opinion on whether the accused persons are guilty or innocent. The decision by Onguto J, in Republic Ex parte Patrick Ogola Onyango (Supra)was then relied upon apparently to suggest that the Judge found that the provisions of Section 3 imposes a subjective obligation upon the accused persons.

26) On whether the faulted sections are over-broad, ambiguous and over-reaching, the Petitioner relied on the decision in Marbury vs. Madison 5 US (1cranch) 137 (1803) on the Judicial duty to interpret whether a legislation confirms to or affronts the constitution and in cases of inconsistency to declare the law unconstitutional.

27) On the principle of legality, the Petitioner relied on the provisions of Article 50(2) n as read with article 2(5) which imports the general rules of international law as part of the Kenyan law. The decision in Keroche Industries ltd Vs. KRA & others [200] 2 KLR 240 was cited for the proposition of law that an integral ingredient of the rule of law is certainty and regularity of the statutes. Outside the Kenyan borders, once again, the Petitioner cited the decision by the European Court of Human Rights in Kokkinakis Vs. Greece 3/1992/38/421 in which the object of the principle of legality was adjudged to be intended to enable an accused person to know from the words of the legislation, at times with the assistance of the court, if need be, what acts and omissions will make him liable. Several other decisions including; R vs- Demers (2014) 25 ER, 2004 SCC 46 1 R vs. Withers [1975] AC 842, Cray need vs. City Rockford [1972] 408 vs. 104, Black – Clawson international Ltd s- Papier Werke wouldlof- Aschaffen berg A.G [1975] AC 591 638, Shaw –vs. DPP (1961) 2 ALL IAC 459 at 481 Tanganyika Mine Workers Union –vs. Registration of Trade Unions [1961] EA 629 all for the propositions and annunciation that statute creating a criminal offence must be precise and clear to be understood and that the courts have no mandate to do violence to the unclear provision of a statute to bring an accused within the law when the language by parliament does not include such a person. For those reasons the petitioner urges and pleads that the Petition be allowed as prayed.

Submissions by the Interested Party;

28) Having filed the very short replying Affidavit, the interested party did file written submissions which do no more than reproduce the three sections of POCAMLA under attack in these proceedings. He then underscores the fact that he was roped in the criminal trial despite the fact that he acted diligently and in the course of his business as a motor vehicle importer. His position supports the petition and prays that it be allowed as prayed.

Submissions by the 1st Respondent

29) The 1st Respondent isolates three issues for determination and poses the questions whether the petitioner has met the thresholds of a constitutional Petition as set in Anarita Karimi Njeru vs. Republic [1979]eKLR,whether the three sections of POCAMLA are unconstitutional and whether a court proceeding or Judgment can be the basis of a constitutional violation.

30) The first attack on the petition is that it fails to identify any violation of the cited provisions of the constitution and how the impugned sections affront or are inconsistent with the constitution. The decision in Anarita Kirimi Njeru vs. Republic (Supra) and Meme vs- Republic [2004] eKLR were cited for the proposition that a Petition should precisely state the exact nature of the complaint, the infringed or violated provisions and the manner of infringement. It was then added that the legal burden of proof was even upon the shoulders of the Respondent and that the same had not been discharged by the petitioner.

31) On whether section 3, 4 & 7 of POCAMLA are unconstitutional or not, the 1st Respondent made submissions on the applicable principles to guide the court to be that the courts duty is simply to look at the particular provision then render its considered judgment upon the question by stating whether the legislation is in conformity or violation of the constitutional provision, and stops at such a declaration.

32) The Respondent then proceeded to add that in making a determination on the constitutionality of the statute or statutory provision, the purpose and object of the same must be had regard of and that the object and purpose of any statute is discernible from the statute itself and importantly that the constitutional interpretation must be purposive and holistic in that no particular provision need to be elevated above others so as to destroy that other but rather every provision in the constitution should be made to sustain each other. The provision of article 159(a) and the decision in US vs. Butler, 297 US, 1[1936]as well as Canadian decision in R vs. Big in Drug Mart Ltd [1985] 1 SCR 295 were cited for that proposition and the additional proposition that either unconstitutional purpose or effect do invalidate a legislation. The Tanzanian decision in Nyarabo vs. Attorney General of Tanzaina [2001] EA 495was cited for it preposition of the law that there exist a general presumption that every Act of Parliament is constitutional and the burden of proving the contrary rests upon the person so alleging.

33) On the effect of ambiguous words in a statute, submissions were offered that even ambiguous words must be interpreted with the court striving to assign to them their ordinary meaning. For that submission the decision in Megor & St Mellons Rural District Council Vs. Newport Corporation [1952] AC 189 was cited in which employment of the ordinary meaning of the words used by parliament is encouraged provided that the court limits itself within these words. Based on such principles of interpretation, the 1st Respondent took the view that there is no ambiguity and that the court should strive to assign the interpretation to the sections as would realize that the intention of the legislature, being to recover proceeds of crime and punish money laundering by adopting a liberal and intentional interpretation rather than a literal and restrictive approach. Such approach should seek to establish and address what the law was before the enactment, the mischief and or defect thereby targeted and the true reason for the remedy. The decision in Engineering Industry Training Road Vs- Samuel Tailbot (1964) ALL ER 482, was cited for the proposition of the law by Lord Denning (MR) that statutes are not interpreted liberally but rather according to their objects and intent. For Counsel where there are possible two meanings emanating from the interpretation, the court opts for the interpretation that enhances the realization of the purpose and avails the smooth operations of the criminal justice system. The decision in Commission For Implementation Of The Constitution Vs. Parliament Of Kenya & Another [2013] Eklrwas cited for it preposition that the Kenya courts are obliged under Article 259 to protect and promote the purpose and principles of the constitution.

34) On the burden made onus of proof, counsel submitted that it is not enough to supply answers to the provisions of the constitution then leave it to court without stating with precision and clarity how the provisions of POCAMLA are unconstitutional. Kiragi and Another Vs. Kabiya & 3 Others [1987] KLR 347 was then cited for the proposition of law that where in any civil proceedings any fact is specially within to knowledge of any party to those proceedings, the burden of proving or disproving same is upon such person with the special knowledge.

35) On the 3rd issue isolated by the 1st Respondent from determination -whether a decision of the court can be the foundation for a litigation to remedy an alleged violation of rights, counsel submitted in the negative and cited to court the decision in Moharaj vs. A.G. of Trinidad & Tobago [1979] 385,for the finding that no human rights or fundamental freedom recognized by the constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law even where the error has resultedin a person serving a sentence of imprisonment because the remedy is to appeal to a higher court.

36) The last barb aimed at the petition was a submission that; based on it principle of separation of powers, the court cannot be invited to micro-manage law enforcement agencies on how to enforce their legal and constitutional mandate. These same submissions were echoed in the oral highlights offered in court.

Submissions by the 2nd Respondent

37) The Position of the 2nd Respondent discernible from the written submission, even though no representation was made on the date set for highlighting, was simply that the suit is re-judicata and that the Petition lacks merits as the provisions challenged are in conformity with the constitution and thus incapable of being faulted on the grounds disclosed in the petition.

38) On the matter being res-judicata, the 2nd Respondent points out the fact that there was filed before the High Court. JR Application No.102 of 2016 ex-parte Patrick Ogola Onyango & 9 others in which the matters herein were materially and substantially in issue, which matter was heard on the merit and a judgment delivered on 29. 6.2016 dismissing the same and that there were two appeals filed against that decision one of which appeals was by the interested party in these proceedings.

39) On the constitutionality of the sections of the Act, the 2nd Respondent takes the position and view that the offence of money laundering is clearly and succinctly defined under section 2 of the Act and that sections 3, 4 & 7 clearly and precisely create offences in clear and unambiguous language together with detailed ingredients thereof as well as the defenses availed to an accused person and further that the cardinal principle of criminal law that there cannot be criminal responsibility without free exercise if will remains intact and undisplaced by POCAMLA.

40) On the charge that the provisions offend and negate on the principle of legality, counsel for the 2nd Respondent submitted that the term money laundering is a generic term used to describe the process by which criminals disguise criminally acquired assets and benefit to make the same appear to have come from legitimate sources and that the purpose of the Act is to punish both the person who acquires or benefit knowingly, by engaging in criminal conduct together with any other person who enters into any understanding or agreement towards the concealment or disguise of any proceed of crime. It is then stressed and underscored that the requirement for mens rea is expressly taken regard of by the use of the word ‘knowingly’. It is then submitted that the statute provide for definite offences and the penalty therefor and thus cannot be faulted for violation of Article 50(2)n.

41) Back on the charge that the provision are vague, over-broad, otiose and over-reaching, the respondent quoted to court an excerpt from the decision in DPP vs- A.A. Bholal (without the precise citation) in which the Privy Council of Mauritius held and observed that for money laundering charge, it is sufficient that it is demonstrated by the prosecution that the property possessed, concealed, disguised or transferred represented the proceed of any crime without the necessity to prove the means by which the proceeds were produced. The last shot was that being a constitutional body created by dint of articles 157, it is not subject to directions by any other body or authority on the execution of its mandate and is bound by the principles of constitution including it national values and the principles of governance as well as the values and principles of the public service.

42) On how it discharges its duties, the 2nd Respondent asserts and maintains that no demonstration has been made that it is in violation of any provision of the constitution. It was thus prayed that the petition lacks merit and is a candidate for dismissal.

Issues, analysis and determination

43) I have had the benefit of reading the papers filed including the petition and the affidavit in support thereof as well as the Replying Affidavits by the Interested Party and the 2nd Respondent. I have equally read the sets of submissions filed by the petitioner, Interested Party and the 1st and 2nd Respondents and from the onset, I do find that the Interested Party came into the procedures for purposes of supporting the petition and I doubt that the Affidavit filed on 13. 4.2017 would pass as a replying Affidavit under rule 15 of the Rules. I will however comment on that affidavit shortly herein below.

44) Having read the corpus of the papers filed, I have identified the following four issues as isolating themselves for determination. The first two issues are preliminary and intended to clear the way before merit is delved into. The issues are as follows:-

a) Whether the petition is res judicata response being record of the decision rendered on the 29. 6.2017 in JR 102 of 2016?

b) Whether a court decision in a ruling or judgment can be the basis of litigation as a constitution petition alleging violation of rights under the constitution?

c) Whether the provisions of sections 3, 4 & 7 of the proceeds of crime and Anti-money Laundering Act are unconstitutional?

d) Only if the same are found and adjudged unconstitutional, whether there should be an order restraining further prosecution based on the three provisions and if a declaration of violation of rights should be made?

Is the petition res judicata?

45) Both the Petitioner and the 2nd Respondent agree that there were Judicial Review Applications which were all consolidated and determined as No. 102 of 2016. In it, all the accused persons in Milimani Criminal Cases No. 301 and 1905 of 2015, were the ex-parte applicants who sought orders to quash the decision to charge them with the offence of money laundering before a determination whether or not the money handled was a proceed of crime and for an order of prohibition of further proceedings until a determination was made on the question whether the sums handled were proceeds of crime. The other reasons advanced by the applicants for seeking certiorari and prohibition were that the decision had been made selectively and was thus premature, irrational and unreasonable.

46) For the plea of judicata to be properly invoked, the person so invoking it has a duty to prove that there was a previous proceedings between the same parties or parties under whom they litigate and that the matter in the subsequent suit was directly or substantially in issue in the previous suit and was determined on its merits by the court of competent jurisdiction.

47) Applying those principles to the facts revealed in these proceedings, it is not in doubt that while it is true that this Petition and the previous proceedings in JR 102 of 2015 sought to forbid the prosecution of the Petitioner as well as the interested parties with others in criminal cases N. 301 and 1905 of 2015, the core issue in the Judicial Review proceedings was whether a charge on money laundering could be sustained by a Trial Court prior to a Judicial determination whether the money involved is a proceed of crime. In contradiction the issue in these proceedings is whether the statutory provisions creating the offences are constitutional or not. On that score alone I do find that what is before court now was never litigated in the Judicial Review proceedings and could not have been in issue in these proceedings.

48) I so find well aware that the rationale and justification for the res judicata rule is the public interest question that litigation ought to be brought to an end by stopping a litigant from vexing his opponent more than once on a particular matter and to seek the efficient use of judicial time besides the need to obviate the prospects of contradicting decisions over the same issue. I thus do find that matters in issue here is not res judicata.

should a court’s decision be the basis of a violation of a right or fundamental freedom?

49) This issue has been raised by the 1st Respondent for the very first time in the written submissions in which it is contended that proceedings of a court of competent jurisdiction cannot constitute a constitutional violation and that a party thereby aggrieved has the leeway of appeal, revision or judicial review or supervision by a senior Court. As succinctly put, both in Petitioner and Interested Party did not deem it necessary to make any comment or rebutting submissions thereto. To this court, even with Kenyan robust constitutional provisions that widely open up constitutional litigation as a mode of enforcement of rights and fundamental freedoms, a constitutional petition must not be made the panacea for all ills which then emancipates all other established and ordinary modes of enforcement of rights by ordinary litigation[1]. It surely should not be a substitute for appeals, revision or supervision by a senior court. Indeed the high court cannot arrogate to itself the duty to micro-manage the subordinate courts as to appear to adjudge the lower courts as wholly unable to undertake their duty of dispute resolution in accordance with the law. Even with the power to supervise the subordinate courts, those courts must be allowed to execute their mandate without undue and unnecessary and incessant disruption. This is not to say that an outright error or overstepping of mandate will not attract swift and merited intervention by the High Court.

50) Like in this matter if there is demonstrated over-reaching by the legislature, there would be issued an appropriate declaration on the propriety of the impugned provisions. However where what the court is asked to do is that which the trial court can handle, then that must await final decision and be challenged in the regular way by way of appeal or revision. In fact even where the proceedings progress to conclusion and it is demonstrated later that the accused suffered an infringement of a right or freedom in process, such an accused is not left remediless. There is always the remedy in damages[2].

51) The other remedy I consider to be available to such an accused person is to be found at article 23(2) which has been given effect by the provisions of section 8 of the Magistrates Court Act.

52) In my opinion the proceedings before a court of law and any decision arrived thereby or feared to be capable of being arrived at cannot be the basis of an independent constitutional petition. Such must be dealt with by the trial court which the law allows to take submission on such threats or by way of an appeal or review. I also hold the view that a subordinate court is entitled to investigate an allegation of violation of right or denial of a fundamental freedom founded on a matter before it being bound by article 3 to respect, uphold and defend the constitution and its value systems. That is the same position I see to have been taken by the Privy Council in Maheraj vs. Attorney General of Trinidad and Tobago where it was held that the proceedings and decision of a competent court, with jurisdiction in a matter, cannot be deemed an infringement of a right or fundamental freedom even if the decision be later found to have been wrong. The wrong is corrected by an appeal or review but not by a separate constitutional petition. The logic and justification for this rule is that to leave every decisional error by a subordinate court to be challenged by a petition would be to not only unduly engage judicial time but also upset the well-established modes of challenging erroneous decisions.

Are section 3, 4 & 7 of POCAMLA unconstitutional?

53) Every time the high Court is called upon to consider declaring a legislation as unconstitutional, the tasks of the court must remain the focused aim of looking at the plain words of the statute in line with its declared objects and purposes and decide whether there is any demonstrated departure from the dictates of the constitution or if there is evident affront or violation. The court need not pursue any purpose beyond finding the true meaning of the enactment and its conformity with the constitution without any liberty to exercise a free hand to give a meaning that is inconsistent with the intention of parliament. This constraint must be seen to flow from the established presumption that every statute is deemed constitutional unless and until the contrary be proved.

54) In county Government of Nyeri Vs. Cecilia Wangechi Ndungu [2015] eKLR, the Court of appeal observed while relying on Halsbury’s laws of England that the cardinal rule for construction of a statute is that it be done in accordance with the intention of the legislature as contained in the statute itself. For the provision impugned in this petition, I do find that the same clearly demand that one can only be found guilty of the offences of money laundering if the prosecution proves that the accused knew, should have known, ought to have known but all the same shut eyes to the obvious acts of laundering and dealt with the proceeds of crime in a manner outlawed.

55) Being bound by the rule as aforesaid, I have looked at the three provisions attacked in this Petition and I have formed the opinion that the three sections create clear offences with definite ingredients. As drafted and legislated the Act is beyond reproach, at least not on the provisions subject of this petition.

56) Having found nothing in the provisions to affront the constitution, the last issue must fall for being answered in the negative. The negative answer is that the declaration of violation of rights cannot be made just like no injunction can be justified to restrain lawful prosecution grounded on a valid enactment.

57) In the end the petition fails because I do find no merit on its foundation and I order that it be dismissed but with each party bearing own costs.

Dated,signedanddeliveredthis1stday ofJuly 2019

P.J.O. OTIENO

JUDGE

[1] see Peter Onam Achara vs. Nyatike CDF & Other [2013] eKLR andMichael Kanja Kagori v Independent Electoral & Boundaries Commission (IEBC) & 5 others [2018] eKLR

[2] Julius Kamau Mbugua v Republic [2010] eKLR