[2022] KEHC 10776 (KLR)

Ita v Siakago Magistrate Court & 2 others (Miscellaneous Civil Application 62 of 2019) [2022] KEHC 10776 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10776 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Civil Application 62 of 2019

LM Njuguna, J

June 2, 2022

Between

William Ngari Ita

Applicant

and

Siakago Magistrate Court

1st Respondent

Director of Public Prosecution

2nd Respondent

Director of Criminal Investigations

3rd Respondent

Ruling

1. The ex-parte applicant herein has moved this court vide an application dated 21. 12. 2019 where he sought for orders that this court be pleased to grant:i)An order of certiorari to remove into this court and quash the decision made by the 1st respondent in Criminal Case Number 224 of 2018 (Republic v William Ngari Ita and Another) in which a discharge under section 87 (a) of the Criminal Procedure Codewas entered against him.ii)An order of prohibition directed towards the 1st respondent restraining him from proceeding, conducting the trial, presiding or in any manner dealing with the charges laid or proceedings in Criminal Case Number 224 of 2018 (Republic v William Ngari Ita and Another).iii)An order of prohibition directed towards the 2nd and 3rd respondents restraining them from arresting, charging and prosecuting the applicant on the basis and or facts related or incidental to Criminal Case Number 224 of 2018 (Republic v William Ngari Ita and Another).iv)Costs of the suit be provided for.

2. The application is premised on the grounds on its face and in a nutshell, the applicant’s case is pegged on Criminal Case Number 224 of 2018 (Republic v William Ngari Ita and Another wherein the 1st respondent allowed an application by the 2nd respondent to withdraw the said criminal case under Section 87(a) of the Criminal Procedure Code.

3. The main grounds in support of the application are that, on the 21. 03. 2018, the applicant herein and his neighbor were arrested and charged with the offence of malicious damage to property. That the case commenced and one witness was heard on the 20. 08. 2018 and on 10. 06. 2019 when it came up for further hearing, the prosecution applied for an adjournment on the basis that the police file was not availed.

4. The applicant averred that he vehemently opposed the application for adjournment on the basis that the case had already started and there was no reason given why the police file was not availed. That the court denied the prosecution the application for adjournment and ordered that the case should proceed but instead, the police applied to withdraw the case under Section 87(a) of the Criminal Procedure code without giving any, reasons which application, the 1st respondent allowed despite having denied the prosecution an application for adjournment.

5. It is the applicant’s contention that allowing the said withdrawal was irrational and unreasonable as the prosecution essentially sought to get an indefinite adjournment through the back door. That he is apprehensive that his constitutional right to a fair trial cannot be guaranteed/protected by a court that is acting with such unreasonableness and irrationality. He averred that the decision by 2nd and 3rd respondents to arrest, charge and prosecute his mother was informed by ulterior motive of desperately subjecting his family to criminal trial.

6. The application is opposed by the respondents vide the grounds of opposition filed on the 18. 03. 2022, on the following grounds;a.The application does not demonstrate with sufficient clarity the nature of misconduct in the actions of the respondents in the exercise of their statutory duties.b.The judicial review deals with procedure and not results.c.The orders sought are discretionary and can be denied even when warranted.d.The application is misconceived and a non-starter.e.The application is vexatious, frivolous, scandalous and an abuse of the court process.

7. At the hearing of the application, the court directed the parties to canvass the application by way of written submissions.

8. The applicant submitted that when the Criminal Case Number 224 of 2018 (Republic v William Ngari Ita and Another came up for hearing on 10. 06. 2019, the 2nd respondent had informed the court that the police file was not available and so it proceeded to make an application for withdrawal under section 87(a) of the CPC. That the application was granted despite the applicant opposing the same and so, it was irrational for the court to decline the adjournment but proceed to allow the withdrawal without it seeking for explanation. Reliance was placed on the case of Republic v Director of Public Prosecution & Another ex parte Wilfred Thiong’o Njau [2015] eKLR. Further, it was submitted that it is the duty of the investigating officer to avail the police file without fail and given that the criminal case was instituted in the year 2017, after a civil case having been prosecuted against the parents of the applicant, the prosecution of both the criminal and civil cases at the same time, by the same person, against his family was unwarranted. He relied on the case of Republic v Isaac Theuri Githae & Another [2007] eKLR. He decried the 1st respondent’s discretion to allow the withdrawal of the charges without satisfying herself whether the said application was in consonance with article 257(11) of the constitution. Reliance was placed on the cases of Republic v Enock Wekesa & Another [201] eKLR; Republic v DPP & another ex parte Wilfred Thiong’o Njau (Supra). In the end, the applicant urged this court to allow the application herein.

9. The Honourable Attorney General via submissions dated 17. 03. 2022, argued that the applicant had failed to appreciate the fact that the respondents are public officers who derive their mandate from the constitution and Acts of parliament and who perform their duties independent of each other and do not take any instructions from anyone. That the respondents only exercised their statutory duties and powers as envisaged by the law. It was submitted that the applicant before bringing this application ought to have known that if the application by the Director of Public Prosecutions passes the test of the legislature, then it would not be the business of the court to control the prosecution if acting in accordance with the constitutional role and enabling provisions of the Code; that in essence, article 157 of the constitution gives the prosecution powers which should be exercised independently. It was its case that in the interest of justice and proper working of criminal system, the DPP should be accorded the discretion to discontinue or withdraw charges any time before judgement. Reliance was placed on the case ofRepublic v Sekento [2019] eKLR. It was further submitted that the role of the court is clearly defined under article 50 (1) of the constitution solely to decide fairly and independently on the cases brought and filed by respective parties including the state. That the court cannot deny the DPP the discretion to discontinue a case simply because there is a possibility of reopening the same case when fresh and compelling evidence is available; reliance was placed on the case of George Taitimu v Chief Magistrate Court Kibera & 2 others [2014] eKLR.

10. The respondent further submitted that judicial review does not concern itself with the merits of the decision but the process through which decisions are made. Reliance was placed on the case of Zacharia Wangunza v Office of the Registrar, Academic Kenyatta University & 2 others (2013) eKLR. That the applicant has not provided any evidence in support of his allegation neither has he pleaded how the respondents’ actions of withdrawing the case went against the rules of natural justice. In the end, the respondents held the view that in exercise of their duties and powers, the same was not done unfairly, illegally, unprocedurally or unreasonably but to the contrary the decision making was fair, objective and procedural. Reliance was placed on the cases of Zachariah Wangunza v Office of the Registrar, Academic Kenyatta University & 2 others (2013) eKLR; Republic v Director of Immigration Services & 2 others exparte Olamilekan Gbenga Fasuyi & 2 others (2018) eKLR. Further, the Honourable Attorney General submitted that the relief of judicial review isn’t available to the applicant given that the same is discretionary. Reliance was placed on the cases of Chief Constable of the North Wales Police v Evans (1982) 1 WLR 1155 and Commissioner of Lands v Kunste Hotel Limited (1997) eKLR and in the end, it was submitted that the respondents in exercising their duties and powers did not act unfairly, illegally, unprocedurally or unreasonable but their decision making was fair, objective and procedural.

11. I have considered the application herein, the grounds of opposition and the submissions by the respondents and in my view, the issue that I have to determine is whether in the circumstances of this case, the decision by the 2nd respondent to withdraw Criminal Case Number 224 of 2018 (Republic v William Ngari Ita and Another) is amenable to judicial review by virtue of its being un-procedural, administratively unfair, unreasonable, irrational or otherwise illegal.

12. The grounds for the exercise of judicial review jurisdiction were stated in the case of Pastoli v Kabale District Local Government Council & Others[2008] 2 EA 300 at pages 303 to 304 thus: -“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: [See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2]; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR].Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: [See Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”].Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. [See Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876].”

13. So can the acts and/ or decision by the respondents herein be subject to judicial review and can the orders sought issue?

14. As I have already noted, the applicants’ grounds in support of the application are that the decisions by the respondents were made inconsistently, irrationally and unreasonably and ought to be quashed.

15. On grant of the orders sought and whether the same is amenable to judicial review, the purpose of a prohibition order is to restrain threatened or impending unlawful conduct.

16. In Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:“It is trite that an Order of Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to 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.”

17. In the same breadth, in the case of Kenya National Examination Council v Republic Exparte Geoffrey Gathenji & 9 Others (supra), the court held that an order of certiorari can quash a decision already made as it will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or such like reasons. Additionally, an order of certiorari cannot issue against an action or decision which has been taken or made in execution and discharge of a constitutional or legal mandate.

18. Under Article 157 of the Constitution, the 2nd respondent is clothed with authority and in particular, sub article 10 where the 2nd respondent 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. In this case, the 2nd respondent made an application to have the matter withdrawn under section 87 (a) of the CPC while on the other hand, the applicant opposed. In the case of R v Sekento [2019] eKLR, the court was of the view that:….on the power conferred upon the DPP to commence, continue or discontinue any proceedings pending before a court of law. That the spirit and tenor of judicial discretion is to advance the objects and principles of a right to a fair trial under article 50 of the constitution…… that it is therefore immaterial for the court under S. 87 of the CPC to prohibit withdrawal on grounds that the accused would suffer prejudice if fresh charges are to be filed by the state.

19. The principle that emerges from our case laws, is that while this Court has the duty and authority to review the charging decisions of the DPP, the Court should be extremely cautious in performing that duty because of the danger of usurping the constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecutions and, where, appropriate, withdraw charges. Hence in Kuria & 3 others v Attorney General [2002] 2 KLR 69, the Court expressed itself thus:There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial...

20. In the case of Peter Ngungiri Maina v Director of Public Prosecutions & 2 others [2017] eKLR, it was determined that:The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the Court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.

21. The constitution makes provision for parliament to enact legislation establishing other police services under the supervision of the National Police Service. It is from this statute that the 3rd respondent derives its mandate as an organ of the National Police Service tasked to undertake specialized criminal investigative services. [See Geoffrey K. Sang V Director of Public Prosecutions & 4 Others [2020] eKLR].

22. It therefore follows that for this court to review the actions of the respondents herein, then there must be evidence to show that the respondents acted ultra vires of their constitutional and statutory mandate.

23. It however needs to be noted that, there is no bar to the 2nd and the 3rd respondents from continuing with investigations or even receiving new evidence once the accused has been charged and put to trial. This is so given that they have constitutional and statutory authorities to execute their mandates more so in relation to investigations and prosecution thereafter. Majanja J in George Taitimu v Chief Magistrate’s Court Kibera & 2 Others [2014] eKLR stated;“I would also add that DPP and the Police are not prevented from continuing investigations or even receiving new evidence once the accused has been charged and in the course of trial. The duty of the prosecutor is to bring the new information and evidence to the attention of the accused and for the court to give the accused the opportunity to interrogate the new evidence and adequate time to prepare his defence. Likewise, after discharge of the accused under section 87(a) of the CPC, the court cannot prevent further investigations into the subject of the trial.”[See Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others [2019] eKLR; Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others [2019] eKLR].

24. The Judge proceeded to state;“Section 87(a) of the CPC gives the learned magistrate broad discretion to accept or reject an application for withdrawal of charges presented by the prosecutor. Such discretion has to be exercised judiciously taking into account the facts of each case and in particular whether the application is brought in the public interest, the interests of administration of justice and the need to prevent and avoid an abuse of the legal process.”[See Kenya Revenue Authority & 4 others v Kennedy Musili & another [2022] eKLR].

25. In this case, when the matter came up before the court on 10. 06. 2019, the prosecution sought for an adjournment on the ground that the police file was not availed in court and in that regard the 2nd respondent sought for an adjournment which the 1st respondent disallowed but in the end, allowed the application by the 2nd respondent to withdraw the charge under section 87 (a) of the CPC.

26. Section 6 of the Magistrates Courts Act, No. 26 of 2015 gives a magistrate’s court jurisdiction and powers in proceedings of a criminal nature as conferred on it by law. It was incumbent upon the applicant to demonstrate the exact manner how the Hon. Magistrate acted contrary to the principles of natural justice and how she abused her discretion in allowing the 2nd respondent to withdraw the charges under section 87(a) of the CPC.

27. I am therefore unable to fault the trial magistrate in terms of correctness, legality or the propriety of her discretion to allow the 2nd respondent to withdraw the charges under section 87(a) of the CPC.

28. The onus rested on the applicant to prove that the actions of the respondents were tainted by illegality, unlawfulness, impropriety and ultra vires of their statutory duties and powers as envisaged by the law.

29. Under Section 107(1) of the Evidence Act, “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”. Accordingly, the burden is upon the party who challenges an administrative decision to bring enough evidence to show that the decision is illegal. The party must prove satisfactorily that the administrative action is illegal, unjust, unreasonable, arbitrary, capricious, or an abuse of discretion.

30. Likewise, in the case herein, the applicant is asking the Court to re-evaluate the reasons and/or decision entered by the respondents herein and re-weigh it which in essence, would translate to a merits review not a judicial review. A merits review is wider than correcting legal error it extends to a reconsideration of merits of the original decision. To undertake this reconsideration in my view, would be to undermine the constitutionally-protected independence of the respondents herein.

31. The parameters of judicial review were addressed by the Court of Appeal in the case of Municipal Council of Mombasa v Republic & Umoja Consultants Limited, Nairobi Civil Appeal No. 185 of 2001, [2002] eKLR as follows:“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”

32. In the premises, the Applicants’ Notice of Motion dated 21. 12. 2019 is found not to have merit and it is hereby dismissed.

33. No order as to costs.

34. It is so ordered.

DELIVERED, DATEDAND SIGNED AT EMBU THIS 2ND DAY OF JUNE, 2022. L. NJUGUNAJUDGE....................... for the Applicant....................... for the Respondents