[2022] KEHC 320 (KLR)

Gikonya & another v The Director Public Prosecutions & another (Petition 9 of 2018) [2022] KEHC 320 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 320 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition 9 of 2018

MM Kasango, J

May 5, 2022

IN THE MATTER OF CRIMINAL CASE NO. 480 OF 2017 AT LIMURU

Between

Henry Nganga Gikonya

1st Petitioner

Susan Wachuka Gikonyo

2nd Petitioner

and

The Director Public Prosecutions

1st Respondent

Joshua Ngugi Gikonyo

2nd Respondent

Judgment

1. Henry Ng’ang’a Gikonyo and Susan Wachuka Gikonyo are the petitioners in this petition. The 2nd respondent Joshua Ngugi Gikonyo is a step brother to both petitioners.

2. By their petition, the petitioners pleaded that they and the 2nd respondent are children of Geoffrey Gikonyo Ngugi (deceased). Their deceased father had more than one wife. The family of the deceased is embroiled in bitter dispute over the estate of the deceased. The petitioner further plead“Limuru being a small town and since the Gikonyo family is quite prominent, the neighbours and even certain official elements including the police, the administration and other public officers have taken sides and become aligned to one or the other of the opposing camps.”

3. That the petitioners and the 2nd respondent complained of injury to the police and all were issued with P3 Form which were filed and returned to the police. The petitioners pleaded that:-“The police arbitrarily and without paying regard to the principle as or fairness and equality before the law proceeded to charge petitioners but did not charge the 2nd respondent.”

4. That the 1st petitioner visited Tigoni police station severally “but the police failed/refused to take action on his complaint.” Consequently, that the petitioner were arraigned before the Principal Magistrate’s Court Limuru whereby they were charged with the offence of assault causing actual bodily harm in Criminal Case No. 480 of 2017.

5. The petitioners further pleaded that the 2nd respondent’s counsel watching brief at the trial in Limuru Magistrate’s court alleged the petitioners had interfered with witnesses for the prosecution in the criminal trial, and that the trial court on being so informed failed to appreciate that because of the relationship between the petitioners and 2nd respondent they all would be familiar with the witnesses. That the Limuru Magistrate’s court “Severely castigated the accused (petitioners) persons and warned them of dire consequence” if there were to be further report of interference with witnesses.

6. The petitioners seek the following reliefs:-a.That this Court do stay any further proceedings in Limuru Criminal Case No. 480 of 2017 until a full investigation is carried out.b.That the 1st respondent be directed to cause a fair and independent investigation to be carried out concerning the complaints made by both the petitioners and the 2nd respondent before deciding on the appropriate charges to prefer and against whom.c.That in any event the (sic) any charge now subsisting or which may be preferred against any of the parties herein be tried before a court of competent jurisdiction other than Limuru.d.That this Court do make such further or other orders as will safeguard, restore and protect the petitioners’ rights to protection of the Law and to fair trial.

7. The above reliefs are based on the grounds that:-a.The court at Limuru has acted in a biased manner towards the petitioners by failing to uphold the laid down safeguards to a fair trial.b.The petitioners are apprehensive that they cannot obtain justice or fairness from the court at Limuru.c.The petitioners feel the police at Tigoni are acting at the behest of the 2nd respondent and are not acting with fairness and impartiality as they have not even given reason why they did not prefer the charge as (sic) affray.d.The petitioners fear that their right to a fair trial has been compromised.e.The petitioners are apprehensive that Limuru town is unsuitable for a fair trial.

8. The Director of Public Prosecutions (DPP) the 1st respondent opposed the petition through an affidavit sworn by PC Nyaga. PC Nyaga, a police officer attached to Directorate of Criminal Investigations Limuru, is the investigating Officer (I.O.) of the criminal trial of the case before Limuru Magistrate’s Court. He stated that the 2nd respondent filed a complaint being OB No. 19 of 17/7/2017. He complained he had been assaulted by people known to him. He was issued with a P3 Form. Thereafter the petitioners attended the police station and also made a complaint beingOB No. 20 of 17/7//2017. They alleged being assaulted by the 2nd respondent. The petitioners were also issued with P3 Forms.

9. The I.O. stated that he commenced investigation of the complaints. He deponed:-“That I did my investigation and established that it’s the applicant (petition.That I further established that the complainant lodged by the applicants (petitioners) was a mere cover up and/or a tactic a derail the assault case already filed in court …That its therefore not true that we had failed to investigate their complaint, I did investigate and found out that it’s the applicants who had assaulted the 2nd respondent herein and their complaint was just a cover up.”

10. The I.O. further denied being bias against the petitioners and that it was impossible for the court, the police and DPP, three independent institutions to conspire and be against the petitioners. He opined that the petitioners’ petition is filed to avoid proceeding with the criminal trial.

11. The 2nd respondent through his replying affidavit stated that he was assaulted by the petitioner as he went out of his gate. He attended hospital and was treated, he attached evidence of the CT scan carried out. He reported his assault to Tigoni Police Station. The 2nd respondent stated that the petitioners had not adduced/laid a basis for the reliefs sought.

Analysis and Determnination 12. The principle of law on burden of proof is that he who alleges must prove. I have considered the allegations made by the petitioners herein above. It with that in mind I cite the case Diamond Hasham Halji & Another Vs. Attorney General & 4 Others[2018] eKLR thus:-"[42] The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.”

13. I will bear the above holding in mind as I proceed with my analysis.

14. Article 157(4) and (6) affords office of DPP with power to direct investigation and power to institute and undertake criminal proceedings. In so doing Article 157(11) provides:-"11. In exercising the powers conferred by this Article, 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.”

15. In relation also, to this case, it is important to bear in mind what Article 157(10) provides as follows:-"(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.

16. The power to investigate crime by police was considered by the Court of Appeal in the case Lalchand Fulchand vs. Investment & Mortgage Bank Limited & 5 Others [2018] eKLR where it stated:-"48. In Commissioner of Police & The Director of Criminal Investigation Department & Another V Kenya Commercial Bank Ltd & 4 Others [2013] eKLR, this Court pronounced itself regarding that issue when it observed:“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution.

17. The Court of Appeal set out in that case, that investigation of crime is within the province of the police and unless those powers are shown to be exercised for other motive other than for public purpose the courts should not interfere.

18. The petitioners therefore bore the burden to prove that the police and DPP had abused their power to investigate and prosecute them. Having considered the evidence adduced by the petitioners, I can find on prima facie basis breach of the constitutional provisions. The I.O. stated that on the two complaints being filed, firstly by the 2nd respondent and secondly by the petitioners investigation was commenced and that there was basis of bringing criminal charges against the petitioners. In the case Republic vs. Attorney General & 4 Others Ex-parte Kenneth Kariuki Githii the court cautioned against interfering with DPP power to prosecute. The court in that case stated:-"However, it is upon the ex parte applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute ought to be interfered with. Such a power ought not to be lightly invoked and it is not enough to simply inform the Court that the intended trial is bound to fail or that the complaints constitute both criminal offence as well civil liability. Nor is it enough to display to the Court the nature of the defence the applicant intends to bring forward in the criminal proceedings. The High Court ought not to interfere with the investigative or prosecutorial powers conferred upon the police or the Director of Public Prosecution unless cogent reasons are given for doing so.”

19. The petitioners have indeed failed to lay a basis for the reliefs they seek on the manners of investigation and exercise of prosecutorial power.

20. Further, there is no evidence I can discern that a fair and impartial trial cannot be heard before the Limuru Magistrate’s court.

21. I am grateful for the citation by Justice D. K. Kemei in the case Stanley Muia Makau v Republic [2020] eKLR where the learned judge considering an application to transfer a suit under Section 81 of the Criminal Procedure Code had this to say:-"12. In Joseph Korir alias David Arap Chonjo v Republic [2018] eKLR that relied on Kamande & 3 Others vs. Republic [2014] eKLR the court held thus:-“When giving consideration to an application for the transfer of a case, the court will assess whether the applicant’s apprehension was reasonable and founded on sufficient material. The reason for laying emphasis on these factors is that the court has a duty to encourage trust in the integrity and independence of the Judiciary. Therefore allegations which may be directed at Judicial Officers, alleging bias and lack of fairness must not therefore be accepted without there being substantive evidence to back them. If a court was too quick to accept allegations of bias directed against its officers, without first demanding proper substantiation, it would erode the very foundation upon which the judiciary was founded. At the same time, the court must balance this consideration with the need to ensure that justice is not only done, but also seen to be done.”13. It would therefore necessitate that before invoking Section 81 of the CPC, the matter be looked at wholesomely for a change of venue ought not to be granted whimsically, so as not to put into question the independence and integrity of the judiciary.”

22. On the whole, the petition before this Court is unproven and it therefore fails. The judgment of this Court therefore is that this petition is dismissed with costs.

JUDGMENT, SIGNED DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceFor Petitioner : Mr. Njuguna KiarieFor 1st Respondent : Mr. KasyokaFor 2nd Respondent : Not presentCOURTJudgment delivered virtually.MARY KASANGOJUDGE