[2022] KEHC 2554 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CRIMINAL APPLICATION NO. 19 OF 2020

IN THE MATTER OF AN APPLICATION UNDER ARTICLES 165(3) 2, 10, 19, 20(1), (2), (3), (4), 21 AND 22 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF CHAPTER FOUR OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF ARTICLES 27 & 40 OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF PROTECTION OF PROPERTY UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF NATIONAL GOVERNMENT CO-ORDINATION ACT (ACT NO. 1 OF 2013), NATIONAL POLICE SERVICE ACT (ACT NO. 11A OF 2011)

AND

IN THE MATTER OF SECTIONS 121 OF THE CRIMINAL PROCEDURE CODE (CHAPTER 75 LAWS OF KENYA)

BETWEEN

JACOB MUTUKU MUSAU......................................1ST APPLICANT

SYLVESTER MBULI MBUVI.................................2ND APPLICANT

AMOS MUTUKU MUSYOKA.................................3RD APPLICANT

PATRICK KARANJA NJAU....................................4TH APPLICANT

-VERSUS-

MOMBASA COUNTY CIO...................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS......2ND RESPONDENT

G4S KENYA LIMITED............INTERESTED PARTY/APPLICANT

RULING

Application

1. By an application brought under Certificate of Urgency dated 4th October 2021, the Interested Party/Applicant sought the order of the court pursuant to Article 50 of the Constitution seeking to be enjoined as an interested party in the proceedings herein and that pending the hearing and determination of this application, the order made by this court on 23rd September 2021 be stayed, reviewed and/or set aside. The intended Interested Party stated that the money that was subject to Criminal Case No. 857 of 2020, Republic v Sylvester Mbisi Mutua & 7 Others including the sums recovered from the 1st to 4th Respondent herein are the property of the Interested Party.

2. The Application was supported by the grounds on the face of the application and the affidavit sworn by Geoffrey Mwove, a director with the intended Interested Party. The grounds and the averments in the supporting affidavit were to the effect that there was an apparent error on the face of the records in that the ruling delivered on 21st September 2021 referred to Criminal Case No. 851 of 2020 whereas the 1st to 4th Respondents were accused person in Criminal Case No. 857 of 2020 (the criminal case in which the Respondent were charged is Criminal Case No. 857 of 2010 not 2020).

3. The intended Interested Party argued that the trial magistrate in Criminal Case No. 857 of 2010 held that they were special owners of the items recovered from the accused persons and the same were placed under their custody as they had facilities to store them safely.

4. The Applicant also argued that they were not served with the application giving rise to the order made on 23rd September 2021 and they would be greatly prejudiced if the 1st to 4th Respondents are allowed to enforce the same.

Response

5. The application was opposed by the Replying Affidavit of Jacob Mutuku Musau sworn on 9th October 2021 in which he stated that the firm of Hamilton Harrison and Mathews Advocates were not properly on record as representing the intended Interested Party as they did not attach resolutions of the company appointing them to act on their behalf and that the application should be struck out.

6. The Respondents have also averred that the Deponent of the Supporting Affidavit did not have the authority to swear the said affidavit on behalf of the company which is a duly registered company under the Companies Act and that he is not listed in CR12 as one of the directors of the Interested Party.

7. The Respondents further argued that the application was fatally defective in law and incompetent for reasons that the Interested Party did participate in the proceeding in Criminal Case No. 857 of 2010 and is making a feeble attempt to privately prosecute the Respondent when it lacks the locus standi to lodge the said application.

8. The Respondents have argued that the application for joinder has been overtaken by events because the issues sought to be adjudicated upon have already been dealt with and a decision rendered. That the remedy sought by the instant application are unavailable for the reason that the instant application is an appeal disguised as an application and cannot be entertained as the same would be akin to this court sitting on appeal to its own decision. It was also deponed that the error apparent on the face of the record does not go to the root of the matter to warrant a review of this matter as it fails to meet the threshold for review as contemplated in the law and the same has to be rectified.

9. The Respondents also argued that the finding of the court that the intended Interested Party was a special owner of the money alleged to have been stolen was only to the extent of the accused person found guilty of stealing as contemplated in Section 288(2)(e) of the Penal Code and that the issue of special owner does not arise as to the Respondents who were not convicted. The court was urged to dismiss the application.

10. The 1st Respondent also filed a Replying Affidavit sworn by No. 72525 CPL Dain Kinoti Mwamba in support of joinder of the Interested Party and setting aside of the order issued on 23rd September 2021.

11. The 2nd Respondent filed a Replying Affidavit sworn by Vivian Kambaga Senior Principal Prosecuting Counsel on 9th November 2021 in which she averred that the release of exhibits recovered from the Respondents who were accused in Mombasa CMC Criminal case No. 857 of 2010 could adversely affect the rights of the Complainants and that it is in the interest of justice that the said Complainants be accorded the right to be heard and to be accorded presentation before the court before ownership of the exhibits is disputed. She also stated that the Respondents in the application for release of the exhibits failed to disclose that the intended Interested Party had an interest in the money, the subject of Criminal Case No. 857 of 2010 and guilty of material non-disclosure. She prayed that it is in the best interest of justice that the application dated 4th October 2021 be allowed.

Submissions

12. This application was canvassed by way of written submissions.

Intended Interested Party/Applicant’s Submissions

13. The intended Interested Party/Applicant in their submissions relied on the holding of Julius Meme v Republic & Another [2004] eKLR, Samuel Muriithi Watatua & Another v Republic [2012] eKLR and Timothy Isaac Bryant & 3 Others v Inspector General of Police & 3 Others [2013] eKLR to support their position that the intended Interested Party had an interest in this matter and should have been heard before the court gave the orders under review as it was a victim of the theft that was the subject of the criminal case in the lower court. It was also submitted that courts have a residual jurisdiction to review and/or set aside orders in appropriate circumstances. For instance, where a party with an interest in a matter before a court of law has not been heard through no fault of its own, there cannot be any finality in the decision rendered by the court. Reference is made to the ruling of R. S. C. Omolo, JA. in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2007] eKLR.

14. The intended Interested Party argued that the applicants were all along aware that they were complainants in Criminal Case No. 857 of 2010 but they however deliberately failed to make them a party so as to steal a match against them and to hoodwink the court to issue drastic orders. They urged the court not to encourage such practice. It was further submitted that the trial court in Criminal Case No. 857 of 2010 held that G4S was the special owner of the cash recovered from the accused persons and ownership having been settled the finding stands as it has not been challenged on appeal. That it is illegal and unprocedural for the applicant to ask the court to sit for an appeal through the back door.

Applicants’ Submissions

15. The Applicants relied on the authority in the holding of Theophile Mwalekwa Mwasi v Republic [1989] eKLR and argued that none of the applicants who laid claim on the money during trial and evidence on the record shows that money was unlawfully obtained from G4S The grant of the orders that the applicants seek without substantive inquiry will result in unjust enrichment and a grave miscarriage of justice.

16. The Applicants’ submitted that the firm of Hamilton Harrison & Mathews Advocates are improperly on record as they have not annexed minutes or a formal resolution appointing them to file and prosecute the instant application as was observed in the case of East African Portland Cement Ltd v The Capital Markets Authority & 5 Others. The Applicants submitted that one Mr. Geoffrey Mwove did not have the requisite authority to sign and swear the Supporting Affidavit of the Interested Party/Applicant’s application dated 4th October 2021. That the Interested Party/Applicant herein being a duly registered company under the Companies Act follows that its Affidavit ought to be sworn by the company’s directors as someone authorised to do so under seal. That CR12 records from the Registrar of Companies does not list the Deponent’s name as one of the directors as alleged and as such, his sworn affidavit.

17. The Applicants’ submitted that the Interested Party/Applicant herein is not entitled to the reliefs sought as they are making an attempt to privately prosecute the Applicants/Respondents herein as it lacks locus standi to lodge the instant application owing to the fact that it did not participate in the proceedings of the contended application through the 2nd herein for the reason that the Interested Party/Applicant was the Complainant in the Mombasa Criminal Case No. 857 of 2010 and allowing the instant application as prayed will interfere with the mandate of the 2nd Respondent as contemplated in the law. The cases of Royal Media Services Ltd v Director of Public Prosecutions [2013] eKLR and Republic v Cap International LTD [2004] 2KLR 348 were cited to this effect. That the instant application is an academic exercise in light of the provisions of Rule 2 of the Constitution of Kenya (Protection of the Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and was observed in the case of Khalef Khalifa v Republic & 3 Others [2014] eKLR and Abdalla Salim Abdalla & 2 Others v Republic [2021] eKLR. That the instant application fails to meet the threshold for review as contemplated in the law.

1st Respondent’s Submissions

18. The 1st Respondent on the other hand submitted that the Interested Party had an interest in the outcome of the application seeking orders directing release of monies the subject of Mombasa CMC No. 857 of 2010 whether or not it was produced in court. That it was clear there was material nondisclosure on the part of the Applicants in the application dated 18th March 2020 as they failed to avail proceeding of the criminal case to court. They failed to inform the court that the Interested Party was the owner of the cash and they failed to inform court that the Interested Party had a claim over the money, the subject matter of the application before court.

19. That as a consequence of the material non-disclosure, an erroneous decision was arrived at in the absence of the intended Interested Party. The 1st Respondent relied on the holding in Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others, Civil Appeal No 210 of 1997 where the Court of Appeal held that a person who makes an ex-parte application to the court is under an obligation to the court to make the fullest disclosure.

20. It was submitted that the fact that the Interested Party had a claim over the subject matter in the case was material and the Respondent ought to have disclosed it to the court. That failure to disclose facts that were material for the determination before court was fatal and orders issued on 23rd October 2021 ought to have been set aside for the interest of justice.

21. It was also submitted that Jacob Mutuku Musau averred in his affidavit in support of the application dated 18th March 2020 that Kshs. 685,000 was recovered from Peter Karanja Njau from the inventory availed to court when Kshs. 285,000 was recovered on his arrest. It was therefore argued that a fraudulent misrepresentation was made by the Respondents.

2nd Respondent’s Submissions

22. The 2nd Respondents also filed their submission on 9th November 2021 and stated that failure to include the intended Interested Parties in the application dated 18th March 2020 led to a miscarriage of justice as the adverse orders did not factor their responses. It was submitted that the acquittal of the Applicants on the charges of theft were not sufficient to prove ownership of the money that were charges in the trial court. That an inquiry into ownership of the said money would call for the participation of all interested parties. It was further submitted that failure to enjoin and hear representation by G4S Kenya would prejudice them.

23. The 2nd Respondent urged the court to allow the application by the Interested Party before the application for release of money is heard and determined.

Analysis and Determination

24. Having considered the application dated 4th October 2021 together with responses from the Respondents and accompanying submissions, the issues for determination are:-

a. Whether the Applicants have satisfied the threshold for their joinder as parties in this matter to have the orders made on 23rd September 2021 set aside and/or reviewed.

25. The orders issued on 23rd September 2021 were as a result of an application dated 18th March 2020 following trial in Mombasa CM Cr. Case No. 857 of 2010 where the Applicants had been charged with various offences including:

a. Conspiracy to commit a felony contrary to Section 393 of the Penal Code

b. Stealing by servant contrary to Section 281 of the Penal Code

c. Stealing contrary to Section 275 of the Penal Code

d. Abuse of office contrary to Section 101(2) of the Penal Code

e. Destroying evidence contrary to Section 116 of the Penal Code

f. Alternative counts of handling stolen property contrary to Section 322(2) of the Penal Code.

26. As pointed out in the ruling delivered on 23rd September 2021, the trial in the lower court was concluded by a conviction of the 1st and 2nd Accused who were employees of G4S of the intended Interested Party and acquittal of the rest of the accused persons and the reasons are given by the trial Magistrate.

27. The 1st and 2nd Accused persons in Mombasa CMC Cr. 857 of 2010 preferred an appeal in Mombasa High Court Cr. Appeal No. 193 of 2017 but the appeal was disallowed as shown in the judgment of 12th May 2020.

28. From the proceedings in the trial court, PW1 and PW10 produced Exhibit 17 and 18 being an inventory and money recovered in a box respectively. After PW1 had testified, Hon. M. N. Gicheru (CM) as he then was made an order for safe keeping of Exhibit 18 for reasons that the court did not have adequate facilities and that the accused persons did not seem to have a serious claim on the same. It is only Mr. Achola for the 1st Accused who opposed the application for release saying they might claim it later.

29. On 2nd November 2017 when judgment was delivered, the trial Magistrate at page 10 stated that part of the missing cash was later found and has since been released to the owners. He said that G4S was the special owner of the cash.

30. In finding that sufficient evidence was given to warrant the conviction of 1st and 2nd Accused in High Court Cr. Appeal No. 193 of 2017, the trial Judge at page 16 of the Judgment said “It is the finding of this court that several material witnesses testified. Some exhibits were produced by PW1 514,000 Euros and 25,170 Swiss Francs were produced by PW10. An order was made for release of the said cash to G4S Company of 3rd September 2014…”

31. From the above background, this court is to determine whether the joinder of the intended Interested Party to these proceedings was or is necessary for the ends of justice to be met.

32. The intended Interested Party’s application was pursuant to Article 50 of the Constitution of Kenya 2010 and the inherent power of the court. Article 50(1) provides that:-

Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

33. Since the intended Interested Party are not accused persons, this court will presume that they intended to rely on Article 50(1) of the Constitution, 2010 in support of the application.

34. The joinder of parties is provided for underRule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013which defines an interested party as follows:-

“interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation;"

35. Rule 7 (2) provides that a court may on its own motion join any interested party to the proceedings before it. The broad principles which should govern disposal of an application for enjoinment are that the court can, either on an application made by any interested party or on its own motion direct any person as party to be enjoined in the proceedings.

36. In the case of Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR,the court spelt out the elements to be to be satisfied where a party seeks to be enjoined in proceedings as an interested party as:-

a. the intended interested party must have "an identifiable stake"

b. or legal interest

c. or duty in the proceedings

37. The Applicants in their submissions and the affidavit in support of their application stated that they have an interest in the matter as all the money that was subject to the proceedings in Criminal Case 857 of 2010 was stolen from them and that the trial Magistrate found that the applicant was the special owner of the money whose theft was the subject of the trial proceedings. In this regard, it will be important to quote verbatim the wording of the judgment in relation to the claim by the intended Interested Party to bring it into perspective as follows:-

“… Part of the missing cash was later found and has since been released to the owners…on the evidence and in circumstances of this case, G4S was the special owner of the cash. This element has been proven in this case.”

38. In Criminal Appeal No. 193 of 2017 at page 16, the fact of release of 514,000 Euros and 25,170 Swiss Francs to G4S which were produced by PW1 and PW10 again features. Reference by the trial Magistrate of special owner is in respect to what was released on 3rd of September 2014 to the intended Interested Party who participated in the trial either in person or by proxy.

39. The complaint by the intended Interested Party was prosecuted by the 2nd Respondent and when the Applicants herein filed an application in the trial court for the release of the subject exhibit, after their quest by the Applicants through letters for release of the subject exhibits to the 2nd Respondent went unanswered filed an application in the trial court for the same to be released. The trial magistrate on 23rd September 2019 issued orders as follows:-

i. That the court is functus officio and cannot make an order for release of exhibits that were not produced in court.

ii. That the DCI can opt to investigate the circumstances under which the exhibits were never produced.

iii. That the counsel for the defence has an option to file a separate case to compel the police to avail the exhibits if at all the police are withholding the exhibits.

40. It is upon advise in the order issued by the trial magistrate that Misc. Cr. App. No. 19 of 2020 was filed on 19th March 2020. The Responses by the Respondents in the application dated 18th March 2020 was to the effect that the remedy sought against the 1st Respondent are unavailable as the monies were placed with G4S Kenya for safe custody.

41. Other than the order made on 3rd September 2014 in regard to the release of exhibits produced by PW1 and PW10, there is no other order or indication that any other exhibits were kept in safe custody of the intended Interested Party. The Attorney General and the Director of Public Prosecutions who were seized of this application had the opportunity to call the Investigating Officer to swear an affidavit in opposition to the application and particularly Chief Investigating Officer Paul Chebet who swore an affidavit dated 18th August 2018 in respect to the application dated 28th May 2018 but they neglected that aspect.

42. Like the intended Interested Party, the Respondents in the current application also had the right in the provision of Article 50(1) available to them, and the High Court and the Trial Court having made very clear determination and the Respondents having handled the issue casually and failed to take action as per the order made on 23rd September 2019, this court had no information as to custody of the exhibits that were not produced in the lower court and as such went ahead to make the orders issued on 23rd September 2021.

43. This court has called for and gone through the trial Magistrate’s proceedings afresh and established that the inventory dated 17th March 2010, monies were recovered within a riverbank at Kaliambeu Village after the police were led by one Amos Mutuku Musyoka i.e. 50,000 complete sealed bundle of Euros in 50 note denomination and 200 pieces of 20 notes Sterling Pounds.

44. From the deponent of the affidavit in support of the application dated 18th March 2020, Kshs. 2,000,000 in denominations of Kshs. 1000 notes and 300 pieces of 500 note Euros was recovered from Jacob Mutuku Musau on 26th February 2010. On the same day, in house No. 3F04 Capital Hill Apartment, a fridge make LG, LG Hi-Fi system with two speakers, Samsung TV, Samsung DVD, 7-seater brown sofa set, one wall unit, and one soft carpet were also recovered. On arrest of Jacob Mutuku Musau in Makindu town, a brown leather wallet containing Co-op Bank visa card, ATM card for Equity Bank, GSM Safaricom SIM card holders plus two SIM cards and his assorted business cards and national identity card were also recovered.

45. On 6th March 2010, Patrick Karanja was arrested at the country bus stage and Kshs. 285,000 was recovered from him marked in serial number 1-285.

46. The manner in which the monies recovered were hidden and the amounts involved, makes this court find that the threshold for joinder of party as per Rule 2 and 7of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013has been met by the intended Interested Party herein and to that extent, this court finds that their application has merit as far as the monies referred to is concerned. In that regard, the intended Interested Party is allowed to respond to the application dated 18. 3.2020 within 7 days and take a date in the registry for viva voce evidence.

47. Concerning the other items recovered from the Applicants, no representation was made as to their release and in that regard, this court will confirm the order that they should be released to the Applicants forthwith by the 1st Respondent.

48. Each party will bear their own costs of the application.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS

3RD DAY OF FEBRUARY, 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of:-

Ogwel- Court Assistant

Ms. Jeruto for the Applicants - present

Mr. Makuto for the 1st Respondent - present

Ms. Ongeti holding brief for Mr. Mulamula for the 2nd Respondent

Ms. Lelu holding brief for Mr. Makori for the intended Interested Party/Applicant

HON. LADY JUSTICE A. ONG’INJO

JUDGE

Mr. Makuto: I will ask for leave to file further replies to the said application so that all materials are before court to enable proper determination.

Ms. Lelu: We pray for a copy of the ruling

Order: Leave granted to the 1st Respondent to file further response to application dated 18. 3.2020. Copy of ruling to be supplied upon payment of copying charges by intended Interested Party and Respondents. A free copy to 1st and 2nd Respondents being government agencies.

HON. LADY JUSTICE A. ONG’INJO

JUDGE