[2004] KEHC 97 (KLR)

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Civ Misc Appli 17 of 2002

JOSEPH MUIA MBITHI AND 2 OTHERS ……...….APPLICANT

VERSUS

ATTORNEY GENERAL AND 3 OTHERS….…… RESPONDENT

RULING

The application dated 25. 2.2002 is a Notice of Motion broughtpursuant to Order 53 Rule 2 Civil Procedure Rules. The exparteapplicants Joseph Muia Mbithi, Muinde Muasya Mbithi andJohnson Mutua Mailu are charged before Machakos Court inCriminal Case No. 2534/2001 which is consolidated with CriminalCase 2785/2001 which relates to a Traffic accident that occurredon 29. 4.1994. The applicants are asking this court for an order ofprohibition to issue directing the Machakos Senior PrincipalMagistrate's Court or any other court in the Republic of Kenya from entertaining, conducting or proceeding with the above mentionedcases.

They also seek an order prohibiting the 1st respondent (AttorneyGeneral) his agents or servants from prosecuting the chargesrelating to the cases mentioned above and the 2nd and 3rdrespondent who are Commissioner of Police and Director ofCriminal Investigations Department be prohibited from harassing,rearresting or taking away the liberty of the applicants inconnection with the above named cases. They also ask for costsof the suit.

The Chamber Summons in relation to this application was filed incourt on 12. 2.2002 which was accompanied by the supportingaffidavit of Muinde Muasya Mbithi, annextures, statement of factsand grounds upon which the application is brought.

A brief background of the applicants' case is that the threeapplicants were among people travelling in motor vehicle KAA 793when an accident occurred and they were injured. They wereissued with P.3 forms which are part of the annextures. They laterinstructed Mwangangi and Company Advocates to file suits PMCC 760/94 and 762/94. The vehicle had been insured by UnitedInsurance who instructed a lawyer Mr. Mungai Gakuru to defendthe suits. The suits were heard on merit and judgement was givenon 18. 11. 1997 where the appellants were awarded damages.There has never been an appeal against the said judgement byanybody. Only 3rd applicant was paid the full decretal sum of Ksh.131,908/50 but despite promises to pay and cheques issued, theyhave been returned to insurers as they were issued in the namesof both Advocates but not the applicants. While awaiting to getmoney to file other execution proceedings the 1st and 2ndapplicants were arrested on 25. 10. 2001 and charged in CriminalCase 2534/2001 and 3rd applicant was arrested on 29. 1.2001 andcharged in Criminal Case 2785/2001 which was consolidated withCriminal Case 2534/2001. That between 1997 - 2001 therepresentatives of United Insurance had severally summoned andpersuaded them to drop their claims but they declined and werethen arrested and it is the contention of the applicants that this isan abuse of criminal and civil process and that the criminal casesare oppressive, unjust and unfair and are meant to harassapplicants to make them forfeit their civil claims, and are illmotivated meant to aid a party avoid to settle the applicants'claims.

The application was opposed by a State Counsel who denied thatthe 4th respondents who were the Senior Principal MagistrateMachakos had been served with the application. A return of service filed herein on 11. 4.2002 clearly shows that all partiesincluding the Executive Officer of Machakos Court was served withthe Notice of Motion herein. The court has no idea whether thechamber summons had been served but I believe if had not the parties would have raised the issue of lack of service. Therespondents filed grounds of opposition on 4. 2.2003 and a replyingaffidavit by John Mwambili the District Criminal InvestigatingOfficer Machakos. It is the respondents contention that theapplication is bad in law, incompetent, lacks merit and affidavit hasnot disclosed sufficient grounds to warrant grant of the prayers andthat the prayers sought would violate Section 26(8) of the Constitution.

Section 26 (3) of the Constitution of Kenya provides as follows:

The Attorney General shall have the power in any case in which he considers it desirable so to do.

(a) To institute and undertake Criminal proceedings against any person before any court in respect of any offence alleged tohave been committed by that person.

(b) To take over and continue any such criminal proceedingsthat have been instituted or undertaken by another person ................ under sub section C, the Attorney General can discontinue any criminal proceedings and under Section 26(4) the Attorney General can ask the Commissioner of Policeto investigate any offence allegedly committed.Under Section 26 (8) the Attorney General is not subject to thedirection or control of any person or authority. This authority of theAttorney General can only be challenged if the applicant can showthat the Attorney General has acted ultra vires his power or therules of natural justice have been breached.

Judicial review is concerned with the decision making process. Anorder of prohibition is made by the High Court directed to aninferior tribunal or body forbidding the body from continuing to hearand or adjudicate on proceedings in the tribunal or body. The saidorder of prohibition will lie only for excess or total absence ofjurisdiction or where there is breach of rules of natural justice. It isto ensure that the individual gets fair treatment by the authority to which he is subjected in this case, the Principal Magistrate's court.It is therefore upto the applicants to show that the Respondentshave acted ultra vires their powers or authority have acted in badfaith, or capriciously.

The criminal proceedings before the lower court were instituted bythe police acting on the authority of the Attorney General. Theinvestigating officer has sworn an affidavit in which he hasexplained how the cases came to be investigated by police andcharges preferred. The complaint in respect of the cases wasmade to him by one Barnabas Muasa an investigating officer withUnited Insurance who claimed that P.3 forms, treatment notes,medical reports, Abstract forms from police, had been falsified andused in civil cases 764/94, 761/94, 760/94 where the applicantswere plaintiffs and the civil courts had made awards based on thealleged falsified documents. The said Barnabas recorded astatement and it is then the investigating officer commencedinvestigations and took possession of the alleged falsifieddocuments. He recorded statements from the driver of the vehicleinvolved KAA 793 K, recorded statement from hospital staff whereapplicants allegedly attended as well as perusing the civil cases and found there to be sufficient grounds to justify criminalprosecutions of the applicants.

Despite the fact that the accident occurred in 1994, it is only afterthe conclusion of the civil cases that the alleged fraud wasdiscovered. Once the matter was reported to investigating officerhe started investigations in the same year 2001 when theapplicants were arrested and arraigned before the court. Therewas no delay occasioned by the police in charging the applicants.

There is no doubt that there were civil proceedings by theapplicants and judgement given in their favour. That is not a bar tocriminal prosecution. Section 193 A of the Criminal LawAmendment Act 2003 is very clear. It provides as follows:

Notwithstanding the provisions of any other written law, the factthat any matter in issue in any criminal proceedings is also directlyor substantially in issue in any pending civil proceedings shall notbe a ground for any stay, prohibition or delay of the Criminalproceedings.

-This section means that both civil and criminal proceedings in respect of the same issues can proceed in the different courts atthe same time irrespective of the outcome and there is no reasonto stay either of them.

From the earlier Section 26 of the Constitution quoted above it isclear that the constitution being the supreme law of the land whichhas conferred on the Attorney General the power to investigateand institute criminal proceedings nothing can take that authorityaway unless the applicant proves excess of jurisdiction or breachof tenets of natural justice.

The applicants are before a court of law. Their cases have notbeen heard. So far there is no evidence of malice, excess ofjurisdiction or bad faith on the part of the police. The investigating officer investigated after a complaint was made and placed the

. case in right hands, that is, the courts to decide after hearing the evidence of both prosecution and defence. The applicants will have a chance to present their cases if the need arises. There is so far no evidence that the court is biased or has exceeded its jurisdiction or acted capriciously. The court will decide whether or not the documents produced before the civil courts were genuine or not and the police have to be given a chance to do that. EvenUnited Insurance who made the report do not seem to haveharboured any malice as alleged by the applicants. They hadactually paid one of the applicants the full decretal sum. Theywere committed to settling the claims before these investigationswere commenced by police and they stopped payments.

So far the applicants have not shown that they merit an order ofprohibition to prohibit the respondents as prayed in that notice ofmotion and and application is hereby dismissed with costs to therespondents.

Dated, read and delivered at Machakos this 7th day of June 2004

R. V. WENDOH

JUDGE