[2014] KEHC 7527 (KLR)

[2014] KEHC 7527 (KLR)

The court found that the criminal proceedings against the petitioners were initiated after a significant and unexplained delay by the complainant, Sehit Investments Ltd, and were based on facts inconsistent with those presented under oath in the ongoing civil suit (HCCC No. 705 of 2009). The Company had previously acknowledged executing the transfer at the heart of the dispute and had participated in the completion of the transaction, including receiving the purchase price through its advocates. The criminal complaint was only lodged years after the civil dispute commenced, suggesting an ulterior motive to use the criminal process to influence the outcome of the civil proceedings. The...

Citation
[2014] KEHC 7527 (KLR)
Parties
Applicant: Josephine Akoth Onyango; Applicant: Simon Otieno Onyango; Respondent: Director of Public Prosecutions; Respondent: Director of Criminal Investigations Department; Respondent: Sehit Investments Ltd; Respondent: Peter Odiwuor Ngoge; Respondent: Kenya Commercial Bank Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
10 March 2014
Case Number
Petition 471 of 2013
Procedural Posture
Constitutional Petition / Judgment
Outcome
Petition allowed. Injunction granted restraining prosecution of petitioners in specified criminal cases pending conclusion of the civil suit.
Legal Topics
Abuse of Process, Parallel Civil and Criminal Proceedings, Right to Fair Hearing, Fraudulent Transfer of Property, Powers of Director of Public Prosecutions, Injunctive Relief
Source Language
English
Constitutional Law Land and Property Criminal Law Abuse of Process Parallel Civil and Criminal Proceedings Right to Fair Hearing Fraudulent Transfer of Property Powers of Director of Public Prosecutions +1 more

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Parties

Josephine Akoth Onyango

Applicant

Simon Otieno Onyango

Applicant

Director of Public Prosecutions

Respondent

Director of Criminal Investigations Department

Respondent

Sehit Investments Ltd

Respondent

Peter Odiwuor Ngoge

Respondent

Kenya Commercial Bank Ltd

Respondent

Procedural Posture

Constitutional Petition / Judgment

Legal Issues

  1. 1 Whether the initiation and continuation of criminal proceedings against the petitioners constitutes an abuse of court process.
  2. 2 Whether the petitioners' constitutional rights to fair hearing, access to justice, and fair administrative action have been violated by the respondents.
  3. 3 Whether the existence of parallel civil and criminal proceedings arising from the same facts justifies the intervention of the High Court to halt the criminal process.

Ratio Decidendi

The court found that the criminal proceedings against the petitioners were initiated after a significant and unexplained delay by the complainant, Sehit Investments Ltd, and were based on facts inconsistent with those presented under oath in the ongoing civil suit (HCCC No. 705 of 2009). The Company had previously acknowledged executing the transfer at the heart of the dispute and had participated in the completion of the transaction, including receiving the purchase price through its advocates. The criminal complaint was only lodged years after the civil dispute commenced, suggesting an ulterior motive to use the criminal process to influence the outcome of the civil proceedings. The...

Court Disposition

Petition allowed. Injunction granted restraining prosecution of petitioners in specified criminal cases pending conclusion of the civil suit.

Orders

  • An injunction is issued restraining the respondents from prosecuting the petitioners in Kibera Criminal Case No. 6531 of 2012 and 2178 of 2013, or any matter concerning the transfer of LR No. 1160/784 to the 1st petitioner, until the conclusion of High Court Civil Case No. 705 of 2009 and any review or appeals...
  • No order as to costs.