[2022] KEHC 1713 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CONSTITUTIONAL PETITION NO.59 OF 2021

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 35(1), 35(2), 41(1), 41(2) AND 47 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS IN ARTICLES 2,3,19,20,22 & 23 OF THE CONSTITUTION

BETWEEN

JAMES WAFULA WANGILA…………………………………….………....…..1ST PETITIONER

JOHANES BOY OKOBA………………………………………….…..…….…..2ND PETITIONER

AND

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

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

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

THE HON ATTORNEY GENERAL………………………….……..…..….…4TH RESPONDENT

MARTIN CHEMONGES SIWA………………..……………..………..…..…5TH RESPONDENT

DANIEL OTIE………………..………………………….…………………..…6TH RESPONDENT

CALEB OTIENO NATHA………………………………....………….....….…7TH RESPONDENT

Coram: Hon. Justice R. Nyakundi

M/S Mukabane & Kagunza & CO. Advocates for the petitioners

Kiprop Luseria & CO. Advocates for the 5th respondent

M/s Magonda & Co. Advocates

J U D G M E N T

This is a constitutional petition arising out of a decision making process by the Director of Public Prosecution to charge the Petitioners with the criminal offences of obtaining money by false pretenses and conspiracy to defraud. As a consequence the petitioners have moved to this court seeking the following declarations.

a) A declaration that the proceedings in Eldoret MCCR/E1572/2021 is an abuse of the court process and be and are hereby declared a nullity.

b) A declaration that the proceedings in Eldoret MCCR/E1572/2021 is an abuse of the petitioner’s constitutional rights and be and are hereby declared a nullity.

c) A declaration that the 1st, 2nd, 3rd, 4th, 6th and 7th respondents abused their offices in charging the 1st respondent and threatening to charge the 2nd respondent.

d) A declaration that the respondents action of arresting and charging the 1st petitioner and threatening to arrest and charge the 2nd petitioner over the transaction in UASIN GISHU/MOIBEN SCHEME/3 is in contravention of Article 40 of the right to own property.

e) A declaration that the respondents action of placing caution on the property known as UASIN GISHU/MOIBEN SCHEME/3 was a violation of the petitioners right to property under Article 40.

f) A declaration that the 1st, 2nd, 3rd, 4th, 6th and 7th respondents breached Article 10,244 and 158(11) in arresting the petitioner despite court order directing them not to.

g) A declaration that in arresting the 1st petitioner the respondents breached the petitioner’s right enshrined in Article 28 on the right to dignity.

h) A declaration that in arresting the 1st petitioner the respondents breached the petitioner’s right enshrined under Article 29(a) of the constitution.

i) A declaration that the respondents in threatening to arrest the 2nd petitioner then the same amounted to a violation of the petitioners rights under Article 29(d) of the constitution.

j) A declaration that the petitioners right to dignity as enshrined under Article 28 has been violated on account of the manner the investigations has been conducted.

k) General damages.

l) Any other relief this court may deem fit.

The several facts relied upon by the petitioners are that on 18/8/2017 the petitioners entered into a sale agreement with Martin Chemonges for the purchase of all the property known as Uasin Gishu/Moiben Scheme/3 for a consideration of Ksh 11,500,000/=. That it was an express term of the agreement that the transfer would be effected upon completion of the purchase price. That the 5th respondent admitted the default and claimed to have paid Ksh 6,000,000/= way below the purchase price and in any event he had defaulted on the terms of the sale agreement on or about 3/8/2020. That the 5th respondent filed suit in Eldoret ELC CASE NO. 73 OF 2020 claiming ownership of the suit property and seeking to restrain the petitioners from accessing the property on or around 18/5/2021. It is against that background the office of the Director of Public Prosecutions received a recommendation from the National Police Service with a view to institute criminal offences for obtaining by false pretense and conspiracy to defraud contrary to Section 317 of the Penal Code. Given that decision of commencing criminal prosecution the petitioners allege violations of Article 2, 3, 19, 20(2), 22, 23, 24, 27, 40, 47, 238 and 157 of the constitution as the basic structure of the petition for this court to grant the prayed for declarations.

In a consolidated response to the petition the 1st, 2nd, 4th, 6th and 7th respondents averred as follows;

1. That in response to paragraph 27, 28, 29, 30, 31, 32, 33 and 34 of the petition, the 1st, 2nd, 3rd, 4th, 6th and 7th respondents are total strangers to the allegations therein and shall put the petitioner to strict proof of the same during the hearing.

2. That the 1st, 2nd, 3rd, 4th, 6th and 7th respondents aver that if at all the petitioners were charged in a court of law which is denied then the same emanated from lawful administrative process pursuant to the mandate of the Police and Director of Public Prosecutions.

3. Further the petitioner has not alleged and/or indicated that the entire process of arrest and prosecution was unlawful or contrary to the laid down procedures.

4. That there is no specific allegation and or any evidence provided by the petitioners as against the respondents on the alleged violations of their rights in the petition.

5. That the petitioners are total strangers to the respondents in so far as the allegations that the petitioner was ever arrested or detained by the Kenya police as they have failed to provide evidence of the said arrest or record of statement or OB abstract with them.

6. That the 1st, 2nd, 3rd, 4th, 6th and 7th respondents deny the contents of paragraph 35 of the petition in toto and more specifically deny that the orders dated 8th December 2020 were served upon the respondents, as no evidence of service has been attached to the said allegations.

7. That the petition is based on allegations as the petitioner has failed to provide evidence to support the same. For instance there is no evidence provided by the petitioner to support the allegations of any impending arrest.

8. That the petitioners have further failed to demonstrate that the alleged order from the arresting police was based on a written directive or verbal comments. This Court cannot act on mere assertions but on evidential allegations to establish a breach of any right occurred and or remedies available to the aggrieved party.

9. That the petition does not in any way support the prayers sought in the petition for the reasons that there is no nexus between the so called infringed constitutional rights and actions allegedly taken by the respondents and also that the prayers sought as against the respondents cannot issue since the petition seeks to stop the 1st and 2nd respondents from conducting and performing their constitutional duties and mandate.

10. That the petitioners have miserably failed to sufficiently demonstrate either by facts or evidence how the 1st, 2nd, 3rd, 4th, 6th and 7th respondents have breached or are about to breach his fundamental rights as enshrined in the Constitution of Kenya.

11. The petitioner has not demonstrated with precision what rights have been violated and how they have been violated by the respondents to warrant the court to issue the orders being sought in the petition.

12. The petitioners have not specifically demonstrated the alleged action from the 1st, 2nd and 4th respondents backed by evidence that would suggest that the petitioner’s rights were violated by the respondents as alleged in the petition.

13. The petitioners have not demonstrated that their rights to a fair trial have been denied, violated, infringed or is threatened during the entire process of arrest and prosecution in the criminal case contrary to the provisions of Article 50 of the constitution.

14. That looking at the petition and all the annextures thereto, the alleged breaches of the constitution by the petitioner is baseless, not supported by any evidence hence mere allegations without proof.

15. That accordingly and looking at the petition wholesomely, the following parameters can be deduced, in that

(i) The petition herein does not disclose and/or demonstrate that the petitioner’s rights were violated or infringed upon by the 1st, 2nd, 4th, 6th and 7th respondents as alleged or at all. On the contrary it is clearly demonstrated by the respondents that indeed the petitioners who were facing criminal charges were dealt with in accordance with the law.

(ii) The amended petition is premised on falsehood, unsubstantiated allegations, non-disclosure of the material facts hence an abuse of the court process.

(iii) That the averments in the affidavit in support of the amended petition clearly demonstrates that the petitioners herein are dishonest persons who are before the honourable court with unclean hands and do not deserve the orders of the court.

(iv) There is no proper reason advanced by the petitioners to warrant the court to grant the orders sought.

(v) In addition the 1st respondent filed grounds of opposition in court dated 10/11/2021.

THE CASE FOR THE PETITIONERS IN TERMS OF THE SUBMISSIONS

What has been urged on this court on behalf of the petitioners is that the court ought to exercise its supervisory jurisdiction over the 1st, 2nd, 3rd and 4th respondents by reviewing the decision making process which culminated in the initiation of the criminal offences against the petitioners. It was stated and submitted by learned counsel for the petitioners that the foundation of the criminal allegations is on an agreement for the sale of land as between the petitioners that the 5th respondent. As to what took place in the course of the land transaction, there is no evidence of fraud or ulterior motive on the part of the petitioners to perpetuate a criminal offence. Learned counsel further submitted that the facts in the petition show unchallenged evidence in which the respondents jointly and severally chose to allege a commission of a crime which in law does not meet the test to convict the petitioners. That the abuse of process which the instant case exemplifies is the indictment of the petitioners as referenced in ELD MCCR 1572/2021 in a court of justice for the sole purpose of achieving a collateral attack upon the sale agreement. Learned counsels for the petitioner went further to argue and contend that the courts intervention on this indictment is justified in those circumstances where the Director of Public Prosecution commences a criminal litigation outside the domain of public interest. To further clarify the court’s power learned counsel submitted that the 1st and 2nd respondents’ duty to investigate and arrest the petitioners pursuant to the mandate donated by the constitution was in essence a violation of the fundamental rights and freedoms of the petitioners. In support of the submissions made by learned counsel on behalf of the petitioners he placed reliance on the following authorities Republic –v- Director of Public Prosecution & 2 others Ex-parte Nyaboga Mariaria (2014) eKLR, Republic –v- Chief Magistrate Court at Mombasa Ex-parte Ganijee & Another (2002) 2 eKLR 703, Peter George Antony D’costa –v- Attorney General and Another, Nairobi Petition NO.83 of 2010, Investment & Mortgages Bank Limited –v- The Commissioner of Police & Others High Petition No. 104 of 2012, R.V Attorney General Ex-parte Kipngeno Arap Ngeny, High Court Civil Application NO. 406 of 2001, Githunguri –v- Republic (1986) eKLR.

To grasp the full import of the principles in the above cited cases learned counsel submitted that the courts are the balance wheel of the whole constitutional system to control ultravires actions by other judicial and quasi-judicial bodies for the sole preservation of the fundamental rights and freedoms of the individual citizens. Here the petitioners challenge the legality of the 1st, 2nd, 3rd and 4th respondents decision to investigate, arrest and arraign them before a criminal court for trial. What the petitioners counsel urges this court to undertake is to maintain an adjustment between individual rights and government bodies who exercise their powers in total disregard to the intent of the framers of the Constitution. Some of the contentions raised by counsel was that there was a violation of the mandatory provisions of Article 23, 25, 27, 28, 29 and 50 of the Constitution which embodies rights regarded as vital and fundamental for safeguarding individual liberty, dignity and equality before the law. That the 1st, 2nd and 3rd respondents in making an arrest against the petitioners ignored the fact the circumstances of the case are purely commercial in nature. To strike the balance on the issues canvassed by learned counsel on the rights of petitioners it was submitted that the Articles of the Constitution be given prominence by issuing writs of prohibition and certiorari against the decision making process made by the 1st, 2nd, 3rd and 4th respondents.

As regards the respondents’ submissions, in a departure from the norm it is only the 3rd and the 5th respondents who took the liberty to file brief perspectives of the suited issues. In the case of the Director of Public Prosecutions the notion that the petitioners are being deprived on their fundamental right by virtual of the continuation of criminalization of the contractual obligations in neither here nor there. Learned prosecution counsel further submitted that the powers of the Director of Public Prosecutions under Article 157(6) & (7) of the constitution which include to institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed by that person has not been infringed as averred by the petitioners. It was learned prosecution counsel contention that given the constitutional nature and mandate of such an office one need not give any reasons for the decision to initiate, continue or terminate criminal proceedings. By way of an acknowledgement for the present purposes learned prosecution counsel submitted that it is deemed that commencement of a criminal prosecution is not a bar to any civil or commercial proceedings on the same subject matter. Following the reliance placed in the case of Giche Ltd & 2 others –v- Director Public Prosecution & 2 others (2020)Eklr and Section 193A of the Criminal Procedure Codelearned prosecution counsel argued and submitted that decision making of indicting the petitioners was within the constitutional functions of the Director of Public Prosecutions. Although the 5th respondent in our legal system is not a member of the public body in character and form the Constitution exhibits no accountability to the public interests cause of justice and the rule of law as envisaged under Article 10 of the Constitution. All in all the remotest degree influenced by the interest that they had in this matter does not elevate his status to be subject of a person or an authority clothed with immense powers likely to be challenged in relation to the constitutional violation.

DETERMINATION

Given the above exposition it is now my singular duty to delve into the issues revolving around the constitutionality of the 1st, 2nd, 3rd and 4th respondents to exercise discretion within their constitutional mandate which resulted in the investigation, arrest and prosecution of the petitioners. At the very onset in determining the issues raised in this petition a discussion of the constitutional mandate of the 1st, 2nd, 3rd and 4th respondents will be a key component of the final decision as pleaded by the petitioners. The issue arose in the case of Philomena Mbete Mwilu v Director of Public Prosecutions (supra) where it was held as follows“Article 244 (b) of the Constitution mandates the National Police Service to “prevent corruption and promote and practice transparency and accountability”. The Directorate of Criminal Investigations, which is headed by the DCI, is established under section 28 of the National Police Service Act, 2011, and is placed under the direction, command and control of the Inspector General of the National Police Service. The functions of the Directorate, as provided for under section 35 of the National Police Service Act, include: -

(a) …;

(b) undertake Investigations on serious crimes including homicide, narcotics crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crimes, and cybercrime, among others,

The constitution which is the supreme law of the land moulded and shaped the criminal justice system of our country by creating distinct pathways and organs tasked with the role to oversee and administer this branch of law. This was to ensure the status of fundamental rights and freedoms are guaranteed and protected to be enjoyed by every citizen. Indeed as the maxim goes the Kenyan Constitution contains perhaps one of the most elaborate provisions on the bill of rights as expressly provided for in Article 19, 20, 22, 23, 25, 26, 27, 28, 29, 30, 31, 35 and 36 consistent with the aspirations of the citizenry. In the second tier under the criminal law administration was a creature of the Director of Public Prosecution provided for under Article 157 of the Constitution. The general policy statement is that the National Police Service under Article 244 as read in conjunction with Article 245(4) of the Constitution inquire into the aspect of investigation of any particular offence with a view to establish existence of a cognizable offence for prosecution of the Director of Public Prosecutions. Perhaps the most important of all is the power vested with the Director of Public Prosecutions as an independent office constitutionally mandated under Article 157(6) & (7) to institute, undertake, takeover, continue or discontinue any criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed. In adherence to the Constitution under Article 157(10) “The Director of Public Prosecution 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 respect I take note of the precedent setting case law on this legal proposition on discretionary power of the Director of Public Prosecutions (Diamond Hasham Lalji & Another –v- AG & 4 others(2018)eKLR, Benard Mwikyu Mulinge –V- DPP & 3 others(2019)eKLR Nakusa –v- Tororei & 2 others HELP 4 of (2003)e KLR). It is usually asserted that the Director of Public Prosecution decision making process is rarely amenable to judicial review by the court unless in the rarest and exceptional circumstances.

In a strongly worded case the petitioners canvassed that the action of the police to investigate and finally recommend a prosecution by the Director of Public Prosecution in a factual matrix which did not constitute a criminal offence was improper abuse of power. Taken by itself urged the petitioners that the statements in effect did not disclose a cognizable offence under the Penal Code as preferred by the Director of Public Prosecution. It was the case for the petitioners that the criteria applied by the Director of Public Prosecution was in absence of an overriding public interests which is the cornerstone of any public prosecution.

In light of the above there is a profound expectation that the court will review the substance of the decision by the Director of Public Prosecution to charge the petitioners over matters which are purely civil in nature. I agree that the courts remedial discretion is crucial for the fair and effective administration of justice. However there is a limit to judicial review claims dependent upon the provisions of Section 7 of the Fair Administrative Action Act, 2015which provides inter alia thatacourt or tribunal under subsection (1) may review an administrative action or decision, if-

(a) the person who made the decision-

(i) was not authorized to do so by the empowering provision;

(ii) acted in excess of jurisdiction or power conferred under any written law;

(iii) acted pursuant to delegated power in contravention of any law prohibiting such delegation;

(iv) was biased or may reasonably be suspected of bias; or

(v) denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action or decision was procedurally unfair;

(d) the action or decision was materially influenced by an error of law;

(e) the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;

(f) the administrator failed to take into account relevant considerations;

(g) the administrator acted on the direction of a person or body not authorized or empowered by any written law to give such directions;

(h) the administrative action or decision was made in bad faith;

(i) the administrative action or decision is not rationally connected to

(i) the purpose for which it was taken;

(ii) the purpose of the empowering provision;

(iii) the information before the administrator; or

iv) the reasons given for it by the administrator;

(j) there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;

(k) the administrative action or decision is unreasonable;

(l) the administrative action or decision is not proportionate to the interests or rights affected;

(m)the administrative action or decision violates the legitimate expectations of the person to whom it relates;

(n) the administrative action or decision is unfair; or

(o) the administrative action or decision is taken or made in abuse of power.

There are many cases in which a public authority has been held to have acted from improper motives or upon irrelevant contradictions or to have failed to take account of relevant considerations so that it’s action is ultra vires and void. What rightly lies behind this classification and its implication on constitutional infringement is a matter to be proved by prima facie evidence as a legal basis of judicial review. Throughout the averments in the affidavits by the petitioners the many of the error like characteristic of the scope against the 1st 2nd and 4th respondents amenable judicial review is not confidently clear to discharge the burden of proof for the court to exercise its jurisdiction. Hence the law of judicial review which rests on the writs of prohibition, certiorari and mandamus addresses meaningfully the tools invoked to safeguard so to speak the integrity of the law itself. A brief survey of the judicial review remedies are as illustrated in the cases of Abdi & 4 others –v- Minister office of the president & 2 others (2000) KLR the court had this to say “an order of certiorari is issued to quash a decision already made without or in excess of jurisdiction while prohibition do issue prohibiting a body not to continue with the proceedings in excess of jurisdiction or in contravention of the constitution or statute law.”See alsoMunicipal Council of Mombasa –v- R & Umoja Consultant Ltd CA 185 (2001) Kenya National Examination Council –V- R ex-parte Geoffrey Githinji Njoroge & others CA 266(1996)In the same jurisdictional issue on review the court inPastoli –v- Kabale District Local Government (2008) EA 300 held that “In order to succeed in application for judicial review the applicant has to show that the decision or act complained of is tainted with illegality, irrationality, unreasonableness and procedural impropriety.”See alsoWest Minister Corporation –v- LNW Railway(1905) AC 426 at 430.

In this way the courts of Kenya though acknowledging the supremacy of the constitution and the doctrine of separation of powers there exist a context on infringement of fundamental right expressly provided and only limited by a constitutional document may be amenable to judicial review by the High Court under Article 165(3d) & (6) of the constitution. Therefore if the new ethos under Article 10 of the constitution are to have any effect state officers are to be cautious in their work and more aware of the need to explain and justify their decision making process and ultimate action which justifies a restriction of the fundamental rights.

The practical difficulty for the court is how to device a precise formula so that some errors by government agencies/persons in the course of the decision making process would qualify for review whilst others would not. That is why in judicial review courts have tended to refocus on errors which go to the jurisdiction and errors which go to the root of the impugned body/tribunal or inferior court which run contra to the grounds illustrated under Section 7 of the Fair Administrative Action Act 2015. In this respect the tenor of the petition is the affidavit evidence in the form of conflicting disposition from both the petitioner, the response by the 1st, 2nd, 3rd, 4th and reply by the 5th respondent. Strikingly, the 5th respondent happens to be the complainant and originator of the complaint made to the police against the petitioners. The contestation here can only be distinguished by a forum of convenience empowered under Article 50(1) of the Constitution to distill the ripe and un-ripened evidence capable of mounting a successive criminal prosecution. I don’t think in the circumstances of this petition the petitioners have established vide prima facie evidence that the person to whom discretion is vested has exercised that discretion irrationally, unfairly, unreasonably, in bad-faith, with procedural impropriety or against the principles of natural justice. The common theme in the jurisprudence so far decided on judicial review which also has an inking to the classes of fundamental rights is that the notion of absolute or unfettered discretion public bodies is rejected. The mere fact that the power exercised by the inferior bodies and tribunals affects rights or interests of the citizens makes them subject to judicial review for this purpose. Even more concisely is the holding in Regina (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, paragraph 73 per Lord HoffmannandRegina v Secretary of State for the Home Department, Exparte Pierson[1998]AC 539, 591F per Lord Steyn.

Part of the legal proposition nuanced by the court in the above authorities touch on reference to the requirements of the rule of law being a relevant element to judicial review as reflective in the following statement “that it should be possible for the court to review executive action on grounds merely whether the action has a basis in established law, but also on grounds such as reasonableness, fairness, and compliance with certain basic rights. Otherwise it may be said our constitutional arrangements risk becoming authoritarian or even totalitarian despite being statistically democratic because a government once elected could exercise executive power unreasonably, unfairly and contrary to the most fundamental human rights. Further in the“Regina cases supra cited above it was observedthere is however another relevant principle which must exist in a democratic society. That is the rule of law…The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament …the rule of law enforces minimum standards of fairness, both substantive and procedural.

Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.”

From the perspective of this constitutional petition the answer to the primary question posed earlier by the petitioners can be found in William Ruto & another –v- Attorney General/ Nairobi High Court Civil Suit 1192 of 2015(2010)eKLR “The Petitioners have questioned the competence of the charges that they face. In our view, it is not for this court to determine whether or not the charges as framed disclose an offence. There are adequate provisions in the Criminal Procedure Code (CPC) for instance Section 89(5) CPC which can be used to address that issue. That section states as follows -

“89(5) Where the magistrate is of the opinion that a complaint or formal charge made or presented under this section does not disclose an offence, the magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reasons for the order.”

From a careful scrutiny of the petition it is being alleged that the director of public prosecution herein, has initiated the prosecution of the petitioners motivated with some kind of malice or absence of a probable cause. In the affidavit averments, the petitioners allege a complaint made to the police station upon request by the 5th respondent was generally speaking civil in nature involving sale of land with nothing to do on the commission of a crime. At this stage regrettably I am not sure of the material evidence being referred to by the petitioners as to its reliability and probative value. The court in John Paul Odhiambo –v- DPP & another, Siaya High Court Petition 1 of 2016 (2016)eKLR held as follows “It is in the public interest and public policy that a person reasonably suspected of having committed a crime should be tried in an independent court and if proved guilty, convicted and punished. The justice system does not guarantee an accused that trial courts would be infallible but only guarantees an accused that his constitutional rights including presumption of innocence and fair trial as enshrined under Article 50 of the Constitution would be enforced, thus he would get justice. Justice includes the public interest in getting the truths of the charges as well as interest in both the society and the accused in a fair process”.

It is also the case for the petitioners that there was absence of reasonable and probable cause by the 1st, 2nd, 3rd and 4th respondent to investigate, arrest, indict and prosecute the petitioners with the facts of the case lacking prima facie evidence to warrant a conviction. In Hicks –v- Faulkner (1878) 8 QBD 167 the court defined “The concept of reasonable cause as an honest belief in the guilt of the accused based upon a full conviction found on reasonable grounds of existence of a state of a circumstances which assuming to be true would reasonably lead to any ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilt of the crime imputed.”

In this respect I have perused the disposition on the claims made by the petitioners which tend to show that the investigations and the decision to charge was arrived at in total violation of the constitution. I don’t think I am in agreement going by the legal principle in this case Anarita Karimi –v- Republic.I am fortified by the principles in Hussien –v- Chong Fook Kam (1970)AC 942 HL 948. The test of reasonable suspicion was outlined as follows “Arising at or near the starting point of an investigation of which the obtaining of prima facie proof is the end, when such proof has been obtained, the police case is complete, it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete but if arrest before that were forbidden it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is obvious or even ordinarily to be exercised. It means there is an executive decision in the exercise of it many factors have to be considered besides the strength of the case.”

Quite appropriately we are not told that the 1st, 2nd 3rd and 4th respondents commenced an investigation effected an arrest and subsequently initiated a prosecution against the petitioners in absence of a complainant with personal knowledge of the facts of the crime. There is little useful guidance offered on this issue by the petitioners on the sufficiency of the material filed in support of the petition. Not only is the criteria explained in Article 157(6)(7)(8)(9) & (10) of the constitution sufficiently precise on institution, prosecution and discontinuation of criminal proceedings by the Director of Public Prosecution against any person alleged to have committed an offence and therefore shifting the burden of proof to the petitioners on infringement and violations of the constitution.

As conceived by the constitution unless otherwise proved the Director of Public Prosecution shall be presumed to act for a proper reason as a promoter of public interest in the administration of criminal justice. In this respect is expected not to offend the principles of fundamental justice. Similarly, the petition as prosecuted does not demonstrate wilful and intentional acts by the 1st, 2nd, 3rd and 4th respondents to abuse or distort their constitutional role within the criminal justice system so as to infringe the human rights of the petitioners. To demonstrate malice, the petitioners must show that on a preponderance of evidence there was improper purpose on the part of the Director of Public Prosecution to charge them with the two counts of obtaining money by force pretenses or a conspiracy to defraud under the penal code. In addition there is no evidence to show that the Director of Public Prosecution acted for personal purposes out of vengeance or ill will by invoking the provisions of the penal code. In terms of criminal law the petitioners need to know that the Director of Public Prosecution ought not to be convinced beyond reasonable doubt of their guilt before filling charges. That belief is obviously incorrect for the ultimate question to disapprove innocence of the petitioners is governed under Article 50(1) of the constitution where an independent tribunal is tasked with the duty to determine the guilt or otherwise of the petitioners. Furthermore the relative seriousness of the constitutional violations as alleged by the petitioners has not been discharged with preponderance of evidence to grant the declarations applied by the petitioner. I dare say that the new constitutional and democratic order created by the 2010 constitution is the establishment of a society in which all citizens would be accorded equality before the law under Article 27 of the constitution. It is necessary to go further and state that the constitution which provides that everyone is equal before the law and has the right to equal protection and benefits of law also applies to the petitioners. In this country much emphasis in criminal cases is anchored on the presumption of innocence. So what does the presumption of innocence mean? That a finding of guilt as to any crime must permit existence of evidence to proof the element of the allegations beyond reasonable doubt. This then is the dilemma a constitutional court would face as a forum on inconvenience with no capability to test the veracity of the evidence alleged to have been compiled against the petitioners. The learned author Bradner on evidence made the following statement “the presumption of innocence is not a mere phrase without meaning, it is in the nature of evidence for the defendant, it is as irresistible as the heavens till overcome, it hovers over the prisoner as a guardian angel throughout the trial, it goes with every part and parcel of the evidence.” (See article on presumptions and the Law of Evidence 3 Harv. Law Review, 141, 165. )Upon the whole, then it seems true that the police only need to establish some reasonable suspicion before preferring charges against any of the suspected criminals. The weight of the evidence to sustain a conviction is always left to the trial facts presided over by a session judge/magistrate before that criminal court. In the course of the trial the balance of evidence may fluctuate from one side to the other but the burden of proof remains where it was at the outset until the beam of the scale tips to the height of beyond reasonable doubt. Such is the position as it relates to the points now under consideration that this court refuses to delve into the exposition of the presumption of innocence of the petitioners. That stays with them until its driven out by the prosecution case presenting evidence beyond a reasonable doubt. Now what exactly are the petitioners saying on this subject? The whole question is then whether the petition has fairly covered reasonably the grounds for this court to made declarations under Article 23 of the constitution. In so far as the facts on which the rule rests on interpretation of the constitution and familiar rules on infringement the same falls below the threshold.

It follows that whatever legalistic approach I take to constitutional interpretation I am of the considered view that the constitution should not be regarded as an empty vessel to be invoked by every litigant filling it with whatever meaning he or she may wish from time to time in the quest to vindicate any such presumed violated fundamental rights. In fact in certain cases the specific articles of the constitution are over litigated while their basis to the petition illustratively is not unconstitutional. On the approach I have adopted it cannot be said the petition has merit. It is for those reasons I would conclude save for the allegations in the affidavit the petition is not capable of seeing the light of the day. It is therefore dismissed.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 8th DAY OF MARCH, 2022.

............................

R. NYAKUNDI

JUDGE