[2022] KEHC 1505 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CONSTITUTIONAL PETITION NO. 23 OF 2019

IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23,24, 25, 27,28,29,40,43, 47, 48,50 AND 259 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLES 1,2,3,7,8,9 AND 10 OF THE UNIVERSAL DECLARATION ON HUMAN RIGHTS

AND

IN THE MATTER OF THE ARTICLES 9, 14 AND 15 OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS

AND

IN THE MATTER OF RUKES 3,4, AND 10 OF THE CONSTITUTION OF KENYA

(PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE PROCEDURE RULES, 2013

BETWEEN

JOHN KIBET KEMEI …………………….……………… 1ST PETITIONER

PETER KIPKEMBOI MENGICH …………………….2ND PETITITIONER

VERSUS

HON. ATTORNEY GENERAL ……………………………1ST RESPONDENT

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

NATIONAL POLICE SERVICE ………..…….………..….3RD RESPONDENT

DIRECTORATE OF CRIMINAL INVESTIGATIONS ....4TH RESPONDENT

EVERLYN CHEROTICH …………………………………5TH RESPONDENT

AND

SHADRACK KIPRUTO KIRONGO …………………INTERESTED PARTY

JUDGMENT

1. The Petitioners who are all adult Kenyan citizens of sound mind commenced these proceedings by way of a Petition dated 20th September, 2019 and Supported by the affidavits of John Kibet Kemei and Peter Kipkemboi Mengich sworn on even date.

2. The petition was opposed by 1st to 4th Respondent who filed grounds of opposition dated 11th December, 2020. The 5th Respondent filed a replying affidavit sworn on 30th September, 2019 and the Interested party also filed his replying affidavit sworn on 3rd January, 2020.

3. Parties agreed to canvass the petition vide written submissions. The Petitioners filed their written submissions on 19th October, 2021, the 1st to 4th Respondent filed theirs on 28th October, 2021 while the 5th Respondent filed hers on 18th October, 2021. The Interested party did not file any written submissions.

The Petitioners’ Case

4. The Petitioners filed this petition against the Respondents, claiming that by unlawfully arresting and detaining them, the Respondents breached their fundamental Rights and Freedoms guaranteed by the Constitution. As a result of the alleged violations, the Petitioners sought the following reliefs:

1) A declaration that the Respondents’ decision to arrest and prosecute the Petitioners is an infringement of the Petitioners rights and freedoms hence unconstitutional.

2) An order of judicial review in the nature of certiorari to bring to this Honourable court to quash the Respondent’s decision to arrest and prosecute the Petitioners.

3) An order of termination of the criminal proceedings against the Petitioners in Kapsabet Principal Magistrate’s Court Case No. 3302 of 2019.

4) A permanent injunction to restrain the Respondents from arresting and prosecuting the Petitioners on issues arising from or related to land parcel number Nandi/Chemuswa/65o.

5) Costs for the Petition.

5. The 1st Petitioner case is that, he bought parcel of land known as Nandi Chemuswa/650 from the family of the late Kirongo Chepsiror Chepkwony in the year 2013; that the 5th Respondent and the Interested Party herein are siblings being children of the late Kirongo Chepsiror Chepkwony. It is the 1st Petitioner’s case that he paid the entire purchase price as agreed between the parties and the said proceeds were shared among the family members of the late Kirongo Chepsiror Chepkwony including the 5th Respondent.

6. The 1st Petitioner further states that he took possession of the suit property immediately after paying the purchase price and has continued to be in possession of the same to date. The 1st Petitioner further states that he built his home on the suit parcel and has carried developments on the said land including planting of Eucalyptus trees.

7. Further, the 1st Petitioner claims that the family of the late Kirongo Chepsiror Chepkwony led by the Interested Party herein handed over to him the title documents to the suit property which he still remains to in custody to date. The 1st Petitioner claims that sometimes in May 2019, he approached the family of the late Kirongo Chepsiror Chepkwony with a view of seeking the transfer of title to the suit property to him. That the deceased’s family led by the Interested Party herein advised him to be patient to enable the family deliberate on the way forward.

8. The 1st Petitioner claims on 19th September 2018, the deceased’s family led by Interested Party approached the 2nd Petitioner being the area chief with a request that he writes a letter with the view of facilitating succession proceedings with respect to the deceased’s estate. Further, the 1st Petitioner claims that the family of the deceased informed the 2nd Petitioner that they had resolved that the 1st Petitioner be deemed as a son to the deceased with respect to the Succession cause as he had bought the entire suit property. The 1st Petitioner claims that he was later called by the deceased’s family informing him that the area chief had written the said letter and was advised to visit the office of M/s Kipkosgei Choge & Company Advocates in order to execute pleadings with respect to the said cause. Subsequently, the 1st Petitioner visited the said offices, executed the said documents and paid his portion of legal fees and was advised to wait for an update on the said proceedings through the deceased’s family.

9. The 1st Petitioner further claims that he was later informed that the Succession Cause had been commenced being; Kapsabet Principal Magistrate’s Court Succession Cause No. 164 of 2018. The 1st Petitioner contends that he had no prior relationship with the above-mentioned firm of advocates and was led to them by the deceased’s family being led by the Interested party herein.

10. The Petitioners claim that in March, 2019 or thereabout they were surprised to receive a call from the Directorate of Criminal Investigations at Kabiyet Police Station informing them that a complaint had been lodged against them. The Petitioners state that they immediately visited the DCI offices where they were informed that a complaint had been filed with regard to the 1st Petitioner being referred to as a son of the deceased in the letter that had been written by the 2nd Petitioner.

11. The Petitioners claim that in view of the above, they reached out to the deceased’s family so as to ascertain what the problem actually was. The Petitioners state that they were informed by deceased’s family that there was a disagreement between the 5th Respondent and the Interested party over other family properties and that the complaint that had been lodged was an attempt at settling the scores. The Petitioners claim that members of the deceased’s family held a further meeting where it was agreed that the aforesaid letter be amended to reflect that the 1st Petitioner was a purchaser and not a son to the deceased. That the initial letter was revoked by the 2nd Petitioner herein who wrote another letter to reflect the change.

12. The Petitioners maintain that the Respondents were duly informed of all the new developments but have kept on pushing the Petitioners in manner to insinuate an ulterior motive. That consequently, the Respondents lodged a complaint with the 2nd Petitioner’s superiors who issued him a Notice to show Cause. That the 2nd Petitioner had since been exonerated from any criminal or professional misconduct. That on 17th September 2019, the 4th Respondent’s officers arrested the 2nd Petitioner, and arraigned him in court on 19th September, 2019 on some tramped-up charges in Kapsabet Principal Magistrate’s Case No. 3302 of 2019. Further, the Petitioners claim that the 2nd and 4th Respondent’s officers have applied for Warrant of Arrest against the 1st Petitioner and have indicated that they intend to prefer similar charges against him.

13. According to the Petitioners, the Respondents are hell-bent to further trample on the Petitioners’ rights. The Petitioners allege that the 4th & 5th Respondent’s officers have on several occasions asked the Petitioners to negotiate on the matter, which negotiations carry an element of extortion since they are required to part with some amount of money to have the complaint withdrawn. The Petitioners contend that the Respondents’ actions are informed by the fact that the arrest and prosecution of the Petitioners could easily lead to either interdiction or suspension being the Petitioners are public officers.

14. The Petitioners maintain that their arrest and prosecution have only been resorted to after they declined to accede to the 4th & 5th Respondent’s extortionist demands. Further, the Petitioners allege that the Respondents have on several occasions expressly indicated that they don’t care if criminal proceedings lead to a conviction but are keen on using the said proceedings to teach them a lesson which shows malice on their part.

15. The Petitioners listed particulars of malice on the part of the Respondents as follows; declining to carry out a thorough and independent investigation to ascertain background of the impugned letter; declining to interview the Advocate who lodged the Succession proceedings to ascertain the truth, declining to take statements from other members of the family of the late Kirongo Chepsiror Chepkwony who would have shed light on the instructions leading to the writing of the impugned letter and which statements would have a bearing on the investigations; declining to ascertain the status of the succession cause which would have had a bearing on the investigations; dragging the investigations for more than 5 months thereby giving room for harassment of the Petitioners and attempted extortion; blackmailing the 1st Petitioner with a promise of withdrawal of the complaint in return of waiver of his right to the suit property; declining to take note the fact that the 5th Respondent had no capacity to lodge a complaint before obtaining Letters of Administration and threatening to frustrate the Petitioners’ employment.

16. The Petitioners maintain the position that due the acts of the Respondents there, is breach/potential breach of the right to fair hearing, right to equal protection of the law, proprietary rights, right to liberty and security, economic rights, right to human dignity and that they are being subjected to double jeopardy.

17. The Petitioners are apprehensive that their employment will be interfered with irrespective of the final outcome of the said criminal proceedings and urged court to terminate them. The Petitioners contend that there is no justification for the curtailment of their fundamental rights and freedoms.

The 1st to 4th Respondent’s Case

18. The 1st to the 4th Respondents’ case is that from the petition and the supporting affidavits on record, there is no evidence that they acted in a manner that would infer that there was conspiracy to ensure that petitioners were falsely charged. According to the 1st to the 4th Respondents, it was incumbent on the Petitioners to demonstrate that the 5th Respondent’s complaint was laced with malice to warrant the intervention of the court.

19. The 1st to 4th Respondents further contend that although the Petitioners have stated that the Respondent’s investigations were shoddy due the fact that the failed to take the testimony of the Interested Party or the 2nd Petitioner with regard to issuance and cancellation of the impugned letters are defeatist on themselves. That the same are grounds for advancing a defense in the criminal case and not in a constitutional petition and if court was to entertaining such arguments, then it would be usurping the role of the trial court.

20. The 1st to 4th Respondents maintain the position that the decision to investigate was necessitated by the lodging of the complaint before the Respondents’ offices and that it only upon the completion of the said investigations that one may be a position to challenge the said acts or future actions.

21. According to the 1st to 4th Respondents, the Petitioners herein have failed to demonstrate that the actions taken by the Respondents herein overstepped their statutory mandate. That the Criminal Procedure Code provides that an investigating officer may seek information from anyone pending the finalization of the investigations. Further, it was the 1st to 4th Respondent’s contention that the Petitioners herein have gone to great lengths to dispel their perceived illegal actions and justify them as mere mistakes.

22. The 1st to 4th Respondent maintain that the allegations by the Petitioners that 4th Respondent denied the interested party an opportunity to write a statement is weak as it does not preclude the Petitioners from calling the said Interested party as a witness on their behalf.

23. According to the 1st to 4th Respondents, from the reading of the Petitioners pleadings, it is evident that the issues raised therein are matters that can be addressed by the trial court as they do not raise any constitutional violation of the Petitioners rights but rather are issues that require the trial court to determine the merit of the charges preferred against the Petitioners.

The 5th Respondent’s case

24. The 5th Respondent filed her Replying Affidavit sworn on 30th September 2019 in which she deponed inter alia as follows; that this instant petition is a calculated move to prejudice her and the estate of the late Kirongo Chepsiror Chepkwony by gagging the Republic of Kenya through the office of the Attorney General, Directorate of Public Prosecutions, National Police and the Directorate of Criminal Investigations from carrying out their constitutional mandate to detect and prevent crime more particularly based on the nature of complaint herein.

25. The 5th Respondent maintains that the constitutional duty of the police and the Directorate of Criminal Investigations is to establish reasonable suspicion before preferring charges. That a court of law is then left to try the case and that in any case an accused person is accorded an opportunity to defend himself in the criminal trial.

26. Further, the 5th Respondent contends that the petitioners have to follow the requisite procedure in seeking orders of judicial review in the nature of certiorari to bring to this court and quash the Respondents’ decision to arrest and prosecute the Petitioners.

27. According to the 5th Respondent the 1st Petitioner is only using this court to delay the criminal proceedings with a view to frustrating the Respondents herein.

28. The 5th Respondent contends that she has never extorted money or asked for any money from the 1st Petitioner herein and hence the said allegations are not true.

29. Further, the 5th Respondent contends that this instant petition will prejudice her constitutional rights since it is calculated at preventing her from tendering evidence in court at a fair trial. She further contends that the Petitioners constitutional rights cannot in any way supersede her rights as she is an equal person with similar constitutional safeguards as the Petitioners.

30. The 5th Respondent contends that there is no law in the Republic of Kenya that provides for immunity of public servants like the police in the case of the 1st Petitioner and the chief in the case of the 2nd Petitioner. Further, that the Petitioners knew the consequences of their actions and must be ready to face the full force of the law.

31. The 5th Respondent maintains that she has never negotiated with the Petitioners herein with regard to the case and maintains that she has never visited the firm of Kipkosgei Choge & Co. Advocates and has never recognized the 1st Petitioner as the deceased’s son. She further maintains that that she has never visited the office of the 2nd Petitioner with the view of advising him to name the 1st Petitioner as the only son of her deceased father.

The Interested Party’s case

32. The Interested Party filed a Replying Affidavit sworn on 3rd January, 2020 in which he stated that he is a son of the late Kirongo Chepsiror Chepkwony whose estate in the basis for the instant petition. That upon the death of the deceased each of the beneficiaries was given an adequate portion of the said estate. That he was given land parcel number Nandi/Chemuswa/650 and Nandi/Kamoiywo/85. That he sold parcel number Nandi/Chemuswa/650 to the 1st Petitioner herein and that all the family members witnessed the said sale agreement signifying their consent. That the 1st petitioner paid the entire purchase price for the said parcel of land which money was shared among the family members including the 5th Respondent.

33. The Interested party maintains that the 1st Petitioner took possession of the said parcel of land in the year 2013 and has been using the same to date. That sometime in 2018, the 1st petitioner approached him and the other family members with a request for a transfer of the title deed to his name. That bearing in mind that the said transfer would have only been initiated through Succession proceedings, they approached the 2nd petitioner being the area Chief of Kabiyet location where a meeting was held and it was resolved that the Chief writes a letter for succession purposes indicating that the 1st petitioner is a son with respect to land parcel number Nandi/Chemuswa/650 to enable him pursue the title.

34. The Interested party’s case is that the 5th Respondent was called by the Chief and endorsed the position that had been agreed by the family. That surprisingly the 5th Respondent then back-tracked from the said family agreement and iniated a complaint against the Petitioners herein.

35. The Interested party maintains that the complaint by the 5th Respondent is an abuse of the criminal justice process since it is being used to blackmail the 1st Petitioner into giving up his parcel of land that he lawfully sold to him.

36. The Interested party further contends that when the 1st Petitioner was summoned to Kabiyet police he accompanied him but surprisingly the investigating officer with respect to the said complaint declined to record his statement.

37. The Interested party maintains that the 5th Respondent is not an administrator to the deceased estate and hence lacks the locus to initiate the complaint without involving other members of the family. That the 5th Respondent’s complaint is laced with malice and greed founded on the desire to snatch more properties from the estate to the detriment of other beneficiaries.

38. Further, that the Respondents’ sole intention is to frustrate the Petitioners by jeopardizing their jobs in a bid to blackmail them into submitting to the 5th Respondent’s mischievous objectives.

39. The Interested party urged court to quash the charges against the petitioners and allow parties to deal with the matter at the family level and commence succession proceedings which will offer a conclusive solution.

Determination

40. I have considered this petition, responses thereto; submissions by all parties and the authorities relied on. This petition, in a nutshell, is challenging the arrest and intended prosecution of the 2nd Petitioner and the intended arrest and prosecution of the 1st Petitioner. In essence, it alleges false arrest and the intended malicious prosecution of the Petitioners by the Respondents. The Petitioners contend that their arrest and intended prosecution is malicious and violates their constitutional rights and freedoms.

41. The Respondents on their part contended that there were reasonable grounds to arrest and prosecute the Petitioners herein having received a complaint from the 5th Respondent alleging that the 1st Petitioner had been included as a son of the late Kirongo Chepsiror Chepkwony in the Chief’s letter that had been written by the 2nd petitioner herein. They contended that they only acted within their constitutional mandate when they carried out the said investigations and made the decision to charge the 2nd Petitioner herein. They denied that there was any violation of the petitioners’ rights, that the issues raised by the Petitioners herein regarding the arrest and the intended prosecution can only be fully addressed by the trial court where the criminal proceedings are ongoing. They also contended that the Petitioners have failed to demonstrate which of their constitutional rights have been violated and manner in which the same have been infringed by the Respondents.

42. From the material before Court both in terms of the petition, responses and submissions, the only question that arises for determination is whether the arrest and prosecution of the Petitioners was illegal and unlawful or actuated by malice and thus whether it was done in violation of the Petitioners’ Constitutional rights.

43. The 2nd Respondent holds a constitutional office established under Article 157 whose mandate is stipulated under that Article. Article 157 (10) states that in the exercise of his mandate, the 2nd Respondent does not have to seek permission, direction or consent from any person or authority. Admittedly and as correctly submitted by the 1st to 4th Respondents, the 2nd Respondent acts independently when executing his mandate. However, this right is not without limitation Article 157(11) provides that in exercising the powers conferred the 1st Respondent, he shall have regard to the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. From the above it is clear that the 2nd Respondent must always have this in mind whenever exercising his constitutional mandate.

44. Courts have also stated in many decisions that whereas the constitution confers on the 2nd, 3rd and 4th Respondents’ mandate to institute prosecution and investigate respectively, they must act in good faith lest the court will interfere with their mandate.

45. In Republic v Director of Public Prosecutions & another ex parte Patrick Ogola Onyango & 8 others [2016] eKLR, the court again stated:

“[118] [T]he courts have also been consistent that a prosecution which lacks a foundational basis must not be allowed to stand. The DPP is not supposed to simply lay charges but must determine on sound legal principles whether the evidence can sustain a charge prior to instituting the prosecution.”

46. Malice is demonstrated when the action taken is without a sincere or “genuine” or truthful pursuit of interests of justice in a prosecution, but is aimed at achieving other ulterior motive. Black’s Law Dictionary, 8th Edition (2004) defines malice, (material), to be “the intervention, without justification or excuse, to commit a wrongful act,” and malicious prosecution as “the institution of a Criminal or Civil proceeding for an improper purpose and without probable cause. The tort requires an adversary to prove your claimants: (1) the initiation or continuation of a law suit; (2) lack of probable cause; (3) malice; and (4) favourable termination of the law suit.”

47. In Patrick Nyamuke Etori vs National Police Service Commission & 2 Others[2019] eKLR, the court addressed itself to proof of malicious prosecution. It observed:

“That means the petitioner was actually complaining of malicious prosecution in this petition. However, for one to establish a case for malicious prosecution, he must prove that the prosecution had no legal basis and that it was actuated by malice.

26. The position was well stated in the case of Mbowa vs. East Mengo Administration [1972] EA 352, thus;

“The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit… It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings … It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth.”

27. The court went on to enumerate essential ingredients of the tort of malicious prosecution, namely;

“1. The criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority;

2. The defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;

3. The defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and

4. The criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge.”

28. The petitioner was bound to prove the above elements if he expected to succeed even on the basis that his arrest and prosecution was malicious. He did not attempt at all to prove any of the ingredients either against the 1st or 2nd respondents as was required of him by the law. The burden of proof fell on him in terms of sections 107 through 109 of the Evidence Act.”

48. As a general rule, an arrest of a suspect should not be made unless and until his or her case has been investigated with sufficient evidence requiring an answer on the complaint. For the arrests of the Petitioners to be deemed to have been lawful, I must find that the arrests were for a cognizable offence and that the Respondents had reasonable grounds to believe that the Petitioners had committed such offence.

49. In James Karuga Kiiru vs Joseph Mwamburi & 3 Others Nairobi CA No. 171 of 2000, the court held:

To prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. And the burden of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted.

50. On what the “probable and reasonable cause” entails, in Hicks v Faulkner, (1878), 8 Q.B.D. 167 at para 171 Hawkins J. defined probable and reasonable cause as follows:

“Reasonable and probable cause is an honest belief in the guilt of the Accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.”

51. Rudd, J. in Kagane v Attorney General & Another, (1969) EA 643 aligned himself with the Hicksdefinition above by reiterating that:

“... to constitute reasonable and probable cause the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of the facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty.”

52. A party who suspects that there has been a violation of the law, has an obligation to report the matter to the police who carry out investigations and decide whether or not to charge and prosecute the person depending on the strength of the evidence. The fact that an accused person, though charged and prosecuted, was acquitted is not proof of malice. There must be proof of existence of malice in making the report. In other words, the Petitioners must prove that there was no reasonable basis for making the report.

53. In the instant case, the 5th Respondent made a report to the police at Kabiyet Police Station that the 1st Petitioner had been indicated as a son of the deceased in the Chief’s letter written by the 2nd Petitioner for purposes of Succession proceedings. Consequently, the 2nd, 3rd and 4th Respondents carried out their investigation and made the decision to arrest and charge the 2nd petitioner herein for the offence of making a false document contrary to section 347(a) as read with Section 349 of the Penal Code. The 2nd and 4th Respondents officers have also since applied for warrant of Arrest against the 1st Petitioner and intend to charge him with a similar offence.

54. Based on the above facts, it is without doubt that a complaint was filed by the 5th Respondent touching on issues of safeguarding interests of her deceased father’s estate. The 1st Petitioner herein being included as a son of the late Kirongo Chepsiror Chepkwony raised reasonable suspicion in police officers’ minds to warrant the 2nd Petitioner’s arrest and prosecution. In the present petition the Petitioners did not even deny the allegations.

55. There is no evidence to purport that the arrests were carried out in an inhumane or degrading manner violating the petitioners’ fundamental rights and freedoms as provided for under Articles 28, 29, 49 and 50 of the Constitution of Kenya 2010.

56. In the upshot, I find and hold that the Respondents exercised their mandate in accordance with the provisions of the constitution. They received a complaint and in line with their mandate investigated the same before making the decision to prosecute the petitioner. The petitioners have failed to demonstrate that the respondents violated his constitutional rights as alleged in the petition.

57. This petition has no merit. It is dismissed with costs. The criminal charges of making a false document contrary to section 347(a) as read with Section 349 of the Penal Code shall therefore, proceed to full trial before the trial court in in Kapsabet Principal Magistrate’s Case No. 3302 of 2019.

Dated, signed and delivered at Eldoret this 15th of March, 2022.

E. K. OGOLA

JUDGE