[2013] KEHC 2149 (KLR)
The court found that investigations into the petitioner's complaint regarding fraudulent dealings by Embakasi Ranching Company Limited were ongoing, as evidenced by correspondence between the Office of the Director of Public Prosecutions and the Director of CID. The court held that the offices of the DPP and...
Source-derived case information.
- Citation
- [2013] KEHC 2149 (KLR)
- Parties
- Applicant: James Banga Yancan; Respondent: Attorney General; Respondent: Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 172 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- DAS Majanja
- Legal Topics
- Right to Fair Administrative Action, Investigation of Crime, Public Office Independence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Banga Yancan
Applicant
Attorney General
Respondent
Director of Public Prosecution
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Director of Public Prosecution and the Attorney General failed to act on the petitioner's complaint regarding fraudulent land transactions by Embakasi Ranching Company Limited.
- 2 Whether the petitioner.s constitutional rights or fundamental freedoms were violated by the respondents' conduct.
- 3 Whether the court should intervene in ongoing criminal investigations by independent constitutional offices.
Ratio Decidendi
The court found that investigations into the petitioner's complaint regarding fraudulent dealings by Embakasi Ranching Company Limited were ongoing, as evidenced by correspondence between the Office of the Director of Public Prosecutions and the Director of CID. The court held that the offices of the DPP and Inspector General are independent constitutional offices, and absent evidence of abuse of process or bad faith, judicial intervention in their operational matters is unwarranted. The petitioner failed to demonstrate that the respondents acted contrary to the Constitution or violated his rights. Consequently, the petition was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 172 OF 2013
BETWEEN
JAMES BANGA YANCAN………………...........….. PETITIONER
AND
THE ATTORNEY GENERAL ……………….….1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION..…..2ND RESPONDENT
JUDGMENT
The petitioner’s case is set out in the Amended Petition dated 20th May 2013 and it is straight forward. The petitioner is a shareholder of Embakasi Ranching Company Limited (“the Company”). The Company is a public land buying and resettlement company and owns large tracts of land within Nairobi and the surrounding areas.
The petitioner’s basis of the petitioner’s case is that the Company has fraudulently and criminally disposed of its land in Kajiado to the detriment of the shareholders. Being aggrieved by the Company’s action, the petitioner lodged a complaint with the Criminal Investigation Department (“CID”) to investigate these matters. This complaint was followed up by letters written by his advocates. The gravamen of the petitioner is that he has not been informed of the outcome of the investigation.
The 2nd respondent, the Director of Public Prosecution (“DPP”), does not deny that the petitioner lodged a complaint concerning fraudulent dealing in the affairs of the Company. It asserts that the matter is still under investigation and no final decision has been reached. The 1st respondent adopts the 2nd respondent’s position in the case.
I have considered the pleadings and depositions in the matter and I find as a fact that the investigations into the complaints by the petitioner are still on going. Indeed in the letter dated 18th January 2012 from the Office of the DPP, the Director of CID was directed to inquire into certain aspects of the case which the DPP considered were crucial to a decision being made. There is another letter dated 3rd December 2012 from the Office of the DPP to the Director of CID raising further questions regarding the investigation. It is also evident that from the depositions that the matter concerning the Company involves complex documentation and transactions, which stretch back several years. It is an investigation that may take some time to conclude.
The Office of the Director of Public Prosecutions and that of Inspector General are independent offices under the Constitution and unless there has been shown to be abuse of process or bad faith in the manner in which their powers are exercised, the Court should be reluctant to intervene in operational matters.
The petitioner has also not proved that the 2nd respondent has acted contrary to the national values and principles of the Constitution or in any way violated his fundamental rights and freedoms. These Offices are guided by the provisions of the Constitution and I am sure they will comply with their obligations once the investigations are completed.
The petition is dismissed with no order as to costs.
DATED and DELIVERED at NAIROBIthis 23rd day of September 2013
D.S. MAJANJA
JUDGE
Mr Onyango instructed by A. I. Onyango and Company Advocates for the petitioner.
Ms Spira, Litigation Counsel, instructed by the Office of the Director of Public Prosecutions.
Ms Kungu, Litigation Counsel, instructed by the State Law Officer for the 1st Respondent