[2019] KEHC 3253 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

PETITION NO. 44 OF 2018

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THREATENED ARREST AND PROSECUTION OF THEPETITIONER

CONTRARY TO ARTICLES 27, 40, 47, 49 AND 50 OF THE CONSTITUTION

AND

IN THE MATTER OF RECOMMENDATNION BY THE OFFICE OF THE

DIRECTOR OF PUBLIC PROSECUTION TO HE PETITIONER TO

SURRENDERPROPERTY WITHOUT REGARD TO DUE PROCESS

AND

IN THE MATTER OF THREATENED INFRINGEMENT

TOPERSONAL FREEDOM OF THE INDIVIDUAL

BETWEEN

JAMES GITHINI..............................................................................................PETITIONER

VERSUS

INSPECTOR GENERAL OF POLICE................................................1ST RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATIONS..............................2ND RESPONDENT

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS........3RD RESPONDENT

THE ATTORNEY GENERAL.................................................................4TH RESPONDENT

AND

JANE KIHARA.............................................................................1ST INTERESTED PARTY

JOHN KAMAU KIHARA...........................................................2ND INTERESTED PARTY

JUDGMENT

[1] The Petitioner herein, James Githini, filed his Petition dated 18 October 2018 pursuant to Articles 27, 40, 47, 49 and 50 of the Constitution praying for the following orders:

[a] A Conservatory Order restraining the 1st and 3rd Respondents from charging and or persisting in prosecuting him with an undisclosed offence;

[b] An Order calling to this Court for quashing, the recommendation of the 3rd Respondent to have him prosecuted; and to permanently stop the Chief Magistrate’s Court from hearing and determining Eldoret Chief Magistrate’s Criminal Case No. 4361 of 2018: Republic vs. James Githini and Another;

[c] An Order of Judicial Review removing into court and quashing the letter by the 3rd Respondent ordering him to surrender property without due process;

[d] An Order of Mandamus to bring into Court any charge sheet and quash the same as not being legally tenable in law;

[e] An Order of Prohibition restraining the Chief Magistrate’s Court from receiving and or continuing with any prosecution in Eldoret Chief Magistrate’s Criminal Case No. 4361 of 2018: Republic vs. James Githini and Another;

[f] Costs of the Petition from the time of contract to the date of Judgment;

[g] Any other order the Court may deem fit to grant.

[2] The Petition was premised on the grounds that, by a mutual contract dated 23 February 2017, the Interested Parties borrowed a sum of Kshs. 40,000/=from the Petitioner; and that as security to ensure repayment of the funds, they gave him their title to the property known as ELDORET MUNICIPALITY/BLOCK 27/311. It was further the contention of the Petitioner that the Interested Parties authorized him in writing to sell the property should they fail to repay the sums advanced within 3 months. That the Interested Parties did not keep their promise within 3 months or at all; and that after a period of one year, during which due notice was given to the Interested Parties of his intention to sell the Suit Property, he commenced arrangements to sell the same by private treaty. That it was thereupon that he was, on the 4 October 2018, summoned for interrogation by detectives from the 2nd Respondent’s offices.

[3] It was further the contention of the Petitioner that the detectives showed him a letter from the office of the 3rd Respondent declaring the transactions illegal and demanding that he unconditionally surrenders the title to the Suit Property on the pain of prosecution; and therefore that the 1st, 2nd and 3rd Respondents were being used wrongfully by the Interested Parties to compel him to surrender the documents in his custody. He accordingly filed this Petition alleging breaches of the following rights:

[a] Right to property under Article 40 of the Constitution;

[b] Right to fair administrative action under Article 47 of the Constitution;

[c] Right to the presumption of innocence under Article 50 of the Constitution.

[4] The grounds aforementioned were explicated in the Verifying Affidavit annexed to the Petition, wherein the Petitioner averred that he is a property manager and businessman based in Eldoret Town; and that it was in that the 1st Interested Party, who is a relative of his, approached him for financial assistance on 20 February 2017. He averred that he explained to her that the funds in his custody belong to third party landlords and have to be accounted for when due; but that the 1st Interested Party persisted in her request and volunteered to provide security as a guarantee that she would refund the money as agreed and explained that the money was required urgently to enable her manage a hospital bill at a local hospital where a family member was admitted for an urgent operation.

[5] The Petitioner further averred that, having been thus persuaded, an agreement was drawn in respect of the loan, dated 23 February 2017, which was signed by the 1st Interested Party. A copy of the said agreement was annexed to the Verifying Affidavit as Annexure JG 1. He added that the 1st Interested Party never repaid the loan as agreed; and that he had to seek the intervention of M/s C.D. Nyamweya & Company Advocates to have her served with a demand notice. A copy of the demand notice was also annexed to the Verifying Affidavit and marked Annexure JG 2. He added that the 1st Interested Party disappeared after receiving the funds and did not answer any of his telephone calls to her.

[6] It was therefore the contention of the Petitioner that he was surprised to learn that the Interested Parties had complained to the County Director of Criminal Investigations alleging that he was illegally holding the 1st Interested Party’s title. He stated that he cooperated fully with the Police even though his rights were not explained to him, including the right to remain silent; and that he was forced to surrender the title and the agreement signed between him and the 1st Interested Party, having been shown a letter from the Office of the Director of Public Prosecutions dated 24 September 2018 to that effect. He exhibited a copy of that letter as Annexure JG 3 to the Verifying Affidavit. He concluded by averring that ultimately, he was issued with a bond, on 10 October 2018, to present himself before the Chief Magistrate’s Court at Eldoret; which he did on 16 October 2018. He annexed a copy of the Charge Sheet filed against him in Eldoret Chief Magistrate’s Criminal Case No. 4361 of 2018: Republic vs. James Githini & Another as Annexure JG 5 to his Verifying Affidavit.

[7] In paragraphs 23 to 30 of the Verifying Affidavit, the Petitioner deposed to matters of law on the advice of his Counsel as to the legal definition of “banking business” and “financial business” for purposes of the Banking Act, Chapter 488 of the Laws of Kenya; and even made reference to decided cases in that regard to demonstrate that at not time was he engaged in such business. Needless to say, that that was unnecessary. I would thus, agree with the expressions of Hon. Majanja, J. in John Wanjohi & Others vs. the Attorney General [2012] eKLR that:

“The key purpose of pleadings is to set out facts which constitute a cause of action. Similarly, the purpose of an affidavit is to depone to facts which the deponent knows of his knowledge, information and belief. Affidavits should not express the deponent’s opinions or those of the advocate. These matters are better left for submissions… Argumentative pleadings, devoid of facts obscure the real issues in controversy and more often than not undermine the objective of expeditious disposal of matters (see Meme v Republic[2004] 1 KLR 645and Tito Alai Okumu v Commissioner of Customs and AnotherNairobi No. 240 of 2011 (Unreported)).”

[8] It is noteworthy that whereas the Petition was filed to forestall the Petitioner’s arrest and prosecution, he has since been charged and the case has been ongoing before the Chief Magistrate’s Court at Eldoret. It is for this reason that his Counsel, Mr. Angu Kitigin, abandoned the Petitioner’s interlocutory application for conservatory orders dated 18 October 2018. He proceeded to file his written submissions in respect of the Petition pursuant to the directions issued herein on 6 December 2018. Counsel for the Respondents had proposed to make oral submissions, but did not attend court on 18 July 2019 to make his response. It is also noteworthy that no response at all was made by any of the 4 Respondents herein to the Petition or by the Interested Parties.

[9] In his written submissions filed herein on 6 May 2019 Counsel for the Petitioner reiterated the posturing that the 3rd Respondent exceeded his authority by purporting to declare the agreement dated 23 February 2017 illegal; and by so doing it usurped the powers of the Judiciary as established vide Articles 159-170 of the Constitution. He added that the decision was therefore in contravention of the Petitioner’s right to access justice and fair hearing as guaranteed by Articles 48 and 50 of the Constitution. Counsel further submitted that the Petition was, in the circumstances entitled to a fair administrative process before the decision was made by the Office of the Director of Public Prosecutions; which he was not accorded.

[10] Lastly, it was the submission of the Petitioner that he was not at all engaged in banking or financial business as alleged by the 2nd and 3rd Respondents. Reference was made in this regard to the Banking Act and Halsbury’s Laws of England for the legal definition of “banking business” and “financial business”. He also referred to Shivabhai G. Patel vs. Chaturbhai M. Patel and Govindji Popatlal vs. Premchand Raichand Ltd. Accordingly, Counsel took the view that the charges filed against the Petitioner are an affront to Article 50of the Constitution. He, thus, urged the Court to grant the reliefs sought in the Petition. The case of John Muritu Kigwe & Another vs. Attorney General & Another; Nairobi HCCC No. 223 of 2000 was cited in which the Court (Hon. Rawal, J. as she then was) issued declaratory and prohibitory orders on the grounds that:

“Upon considering all the facts aforesaid and considering the submissions made by all the three counsel, this court can and has come to the conclusion that the predominant purpose behind the institution of criminal proceedings on 1st February, 2000 against the Applicants was to put pressure on them to pay the claims of Agip and to prevent them from continuing with their civil claims made in the two civil suits…”

[11]Having given due consideration to the Petition, the Verifying Affidavit filed herein as well as the written submissions filed on behalf of the Petitioner, there is a clear demonstration that the Petitioner, upon being approached by the 1st Interested Party for financial assistance, agreed to lend her Kshs. 40,000/= to enable her take care of an urgent financial need. The Petitioner explained at paragraphs 5 and 6 of his affidavit that the 1st Interested Party had a sick family member in hospital who needed urgent surgery; and that she offered her title to LR No. Eldoret Municipality/Block 27/311 to the Petitioner as security. The parties then signed a standard form contract dated 23 February 2017; a copy whereof was exhibited as Annexure JG 1to the Verifying Affidavit. It shows that the loan of Kshs. 40,000/= was to be repaid within one month; and that should it remain unpaid after three months, then the Petitioner would be at liberty to sell the Suit Property for the purpose of recovering his monies.

[12] There is no dispute that the loan was not repaid as agreed or at all. The Petitioner then instructed M/s C.D. Nyamweya & Co. Advocates to write the letter dated 23 November 2017 (Annexure JG 2) to the 1st Interested Party threatening to “realize the security” within the next 90 days unless the loan was repaid with interest. The 1st Interested Party then sought the intervention of the Police. Upon investigations being completed, the matter was referred to the Office of the Director of Public Prosecutions for advice. That explains the circumstances in which the impugned letter dated 24 September 2018 was written by the ODPP, advising that, in giving the 1st Interested Party a loan a 40% interest, the Petitioner had contravened Section 3 of the Banking Act, Chapter 488 of the Laws of Kenya. Accordingly, the Director of Public Prosecutions recommended that:

[a] The title for LR Eldoret Municipality/ Block 27/311 be given to the rightful owner, one Jane Muthoni Kihara with immediate effect;

[b] The Petitioner and Nderitu Kiama be charged under the relevant law; and that the Petitioner be at liberty to pursue his claim by way of civil remedy.

[13]In the premises, the key issue for consideration is whether in the circumstances the DPP infringed the rights of the Petitioner from the standpoint ofArticles 47, 49 and 50of theConstitution;on the ground that the Petitioner was not accorded a hearing before the decision to prosecute him was made by the 2nd and 3rd Respondents; and whether the prosecution of the Petitioner amounts to an abuse of the process of the court.

[a] On the right to fair administrative action:

[14] Article 47of theConstitutionprovides that:

“(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action;

[15]What then, is administrative action for purposes of Article 47? The phrase is defined inSection 2of theFair Administrative Action Act, No. 4 of2014 to include the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. The legal right of the Petitioner herein has been expressed to be the right to property, namely the refund of some Kshs. 40,000/= that he lent to the 1st Interested Party. Since the Petitioner was not initially involved in the investigations, it was not his contention that the decision of the 3rd Respondent was not rendered within the parameters of set out in Article 47(1) aforestated.

[16] As to whether the decision affected the legal right or fundamental freedom of the Petitioner, all the 3rd Defendant did was to direct that the 1st Interested Party’s title be released and that the Petitioner be advised to pursue the 1st Interested Party through a civil suit. Thus, no decision was made by the 3rd Defendant that adversely affected the Petitioner’s right to property, if any. In the premises, the submission by Counsel for the Petitioner, to the effect that the 3rd Respondent exceeded his authority by purporting to declare the agreement illegal without giving the Judiciary a chance to exercise its discretion as established vide Articles 159-170 of the Constitution, is therefore untenable. Indeed, at paragraph 6 of the Verifying Affidavit, the Petitioner deposed that it was the 1st Interested Party who “…volunteered to provide a security to guarantee the money advanced…”; an indication that he did not see the need for or call for such security in the first place.

[17] As regards the decision to prosecute, it is needless to say that the Office of the Director of Public Prosecutions is a creature of the Constitution endowed with decisional independence on prosecutions. Article 157(10) of the Constitution is explicit that:

“The Director of Public Prosecutions shall not require the consent of any person or authority for 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.”

[18]In the premises, there was no constitutional obligation on the Director of Public Prosecutions to accord the Petitioner a hearing before the decision to prosecute made; granted that the Petitioners rights, not only as a suspect but also as an accused person, are safeguarded by dint of Articles 49 and 50 of the Constitution. In this regard, I would agree with and adopt the position taken in Erick Kibiwott & 2 Others vs. Director of Public Prosecution & 2 Others [2014] eKLR that:

“…In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial court. Dealing with the merits of the application, it is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. There mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings…”

[19]With regard toArticle 48of theConstitution,I find no relevance or connection to the facts hereof; for it merely provides for access to justice in the following terms:

“The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.”

[20]There is nothing herein to show that the Petitioner’s right to access to justice was impeded in any way by the Respondents. Indeed, in the impugned letter dated 24 September 2018, the 3rd Respondent went out of the way and advised the Petitioner to pursue his claim against the 1st Interested Party, if any, by way of a civil suit. Thus, no violation or threatened violation of the Petitioner’s right under Article 48 has been demonstrated; and I so find.

[b] On Abuse of Court Process:

[21] It was the submission of Counsel for the Petitioner that the decision by the 3rd Respondent to prosecute the Petitioner was arrived at without any judicial input and hence deprived the Petitioner or the right to a fair hearing as envisaged by the Constitution; and therefore that the decision to charge and the subsequent charge and prosecution of the Petitioner, being premised on a prejudicial and incompetent opinion, amounted to abuse of the court process. In Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others [2009] KLR 229, the Court of Appeal had occasion to express itself on what amounts to abuse of the court process and held that:

“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it…The concept of abuse of judicial process is imprecise, it implies circumstances and situation of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice.”

[22] Thus, the Petitioner relied on the persuasive authority of John Muritu Kigwe & Another vs. Attorney General(supra) to underscore the contention that his prosecution is an abuse of the court process. It is noteworthy however that, in that case, the Court found as a matter of fact that:

“…the predominant purpose behind the institution of Criminal proceedings on 1st February, 2000 against the Applicants was to put pressure on them to pay the claims of Agip and to prevent them from continuing with their Civil claims made in the two civil suits…”

[23] In the instant case, it cannot be said that the Petitioner’s prosecution is intended to achieve some collateral purpose. The Petitioner is not indebted to the Interested Parties; and so far, there is no civil suit pending between the parties. Moreover, the Petitioner’s right and liberty to file a civil suit was reiterated by the 3rd Respondent in the impugned letter. The John Muritu Kigwe authority is therefore of little help to the Petitioner’s cause.

[24] Secondly, and more importantly, Article 50(1)of theConstitutionon the other hand provides that:

“(1) 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.”

[25]It is manifest therefore, that the essence of Article 50(1) of the Constitution is the concept of a fair hearing; and it envisages the context of the fair hearing to be a public hearing before “…a court or, if appropriate, another independent and impartial tribunal or body…” in which the accused is afforded all the safeguards set out in Article 50(2) of the Constitution. It is immaterial at this point that the charge is hopeless; and that the criminal case is bound to fail. It is for the foregoing reasons that the trial court must be accorded deference it deserves as it ensures compliance with the aforestated provisions of the Constitution; because the Constitution itself recognizes that the subordinate courts, being its own creatures pursuant to Article 162 and 169 of the Constitution, have the mandate and competence to hear and determine allegations such as the charge laid against the Petitioner herein. Indeed, the Petitioner acknowledged at paragraph 13 of his Petition that the contract to enter into “…is subject to the laws of Kenya and the courts of judicature of the Republic as established in the Constitution…”

[26]In the premises, I would followMichael Sistu Kamau & 12 Others vs. Ethics and Anti-Corruption Commission & 4 Others [2016] eKLR, wherein a three-judge bench held that:

“The trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on their defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words, unless the Petitioners demonstrate that the circumstances of the impugned process render it impossible for them to have a fair trial, the High Court ought not to interfere with the trial … “

[27]It is also of paramount importance to stress the point that the decision of the 3rd Respondent was not a final decision on the guilt of the Petitioner or the validity of his contract with the 1st Interested Party. The decision was of a preliminary or provisional nature, subject to proof before a court of law, with all the safeguards to ensure a fair trial.Hencein Halsbury’s Laws of England Fourth Edition Vol. 1 page 90 para 74the opinion is expressed, which I find apt, to the effect that:

“The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice...Although, in general the rule applies only to conduct leading directly to a final act or decision, and not to the making of a preliminary decision or to an investigation designed to obtain information for the purpose of a report or a recommendation on which a subsequent decision may be founded, the nature of an inquiry or a provisional decision may be such as to give rise to a reasonable expectation that persons prejudicially affected shall be afforded an opportunity to put their case at that stage; and it may be unfair not to require the inquiry to be conducted in a judicial spirit if its outcome is likely to expose a person to a legal hazard or other substantial prejudice. As has already been indicated, the circumstances in which the rule will apply cannot be exhaustively defined, but they embrace a wide range of situations in which acts or decisions have civil consequences for individuals by directly affecting their legitimate interests or expectations. In a given context, the presumption in favour of importing the rule may be partly or wholly displaced where compliance with the rule would be inconsistent with a paramount need for taking urgent preventive or remedial action; or where disclosure of confidential but relevant information to an interested party would be materially prejudicial to the public interest or the interests of other persons or where it is impracticable to give prior notice or an opportunity to be heard; or where an adequate substitute for a prior hearing is available.”

[28]The foregoing being my view of the matter, I would dismiss the Petition with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH DAY OF OCTOBER 2019

OLGA SEWE

JUDGE