[2023] KEHC 26378 (KLR)

Kiboinett v Office of the Director of Public Prosecutions & 5 others (Constitutional Petition 01 of 2023) [2023] KEHC 26378 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26378 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition 01 of 2023

JRA Wananda, J

December 8, 2023

Between

Hillary Kipkosgei Kiboinett

Petitioner

and

Office Of The Director Of Public Prosecutions

1st Respondent

Inspector General Of The Kenya Police

2nd Respondent

Station Kapsoya Police Station

3rd Respondent

Station Naiberi Police Station

4th Respondent

Risper Chemutai Kiboinet

5th Respondent

Eldoret Chief Magistrates’ Court

6th Respondent

Ruling

1. The Petitioner and the 5th Respondent are a couple. The two appear to have had some altercations which ended up into the Petitioner being arraigned and charged in Eldoret Chief Magistrate’s Court Case No. 1173 of 2020 with the offence of causing grievous harm to the 5th Respondent contrary to Section 234 of the Penal Code. Pursuant thereto, the Petitioner, through Messrs Kutto & Ngaira Nabasenge Advocates instituted this Petition alleging violation of his constitutional rights. He has prayed for various declarations, injunctions and other orders but particularly, he has sought for a declaration that his “selective prosecution” at the exclusion of the 5th Respondent is unconstitutional.

2. Together with the Petition, on the same date, the Petitioner also filed the present Application the subject of this Ruling, namely, the Notice of Motion dated 26/01/2023. The prayers still pending are as follows:“…………iii.Pending the hearing and determination of this Petition, a conservatory order does issue staying/suspending the proceedings in the Eldoret Chief Magistrates Court vide Republic vs Hillary Kipkosgei Kiboinet, Criminal Case No. 1173 of 2020. iii.Costs be in the Cause.”

3. The Application is brought under The grounds of the Application are that on 1/07/2020 the couple were involved in a brawl that resulted into a fight whereby the Petitioner suffered injuries while in the process of defending himself, the 5th Respondent also sustained injuries, the Petitioner reported the matter at Kapsoya Police Station and was issued with a P3 Form, on her part, the 5th Respondent reported the matter at Naiberi Police Station, pursuant thereto, the 1st, 2nd, 3rd, 4th and 6th Respondents admitted and prosecuted the complaint reported by the 5th Respondent and declined to do the same for the Petitioner’s complaint, the said Respondents have continued to selectively charge and prosecute the Petitioner and refused to charge the 5th Respondent who is the one who assaulted the Petitioner, the said Respondents have continued to prosecute the Petitioner without giving the couple the opportunity to reconcile pursuant to the provisions of Article 159(2)(c) of the Constitution of Kenya, as a result of the foregoing violations of the Petitioner’s constitutional rights and fundamental freedoms, the Petitioner has suffered damage, unless the criminal proceedings are stayed and/or suspended, he shall continue to suffer embarrassment, anguish and mental torture, he shall be prejudiced and suffer irreparably and that the instant Petition will be of no value and will be rendered nugatory.

4. The Application is supported by the Affidavit sworn by the Petitioner in which he deponed that he adopts and reiterates the contents of his Affidavit sworn in support of the main Petition. I have perused the Affidavit and I note that it too reiterates the matters already set out above.

1st, 3rd & 4th Respondents’ Replying Affidavit 5. In opposition to the Application, the Replying Affidavit sworn by one Constable Jackline Wesonga was filed on 21/03/2020 through the Office of the Directorate of Public Prosecutions (ODPP). The same was expressed to have been filed for and on behalf of the 1st, 3rd and 4th Respondents. Constable Wesonga deponed that she is an Officer attached to Naiberi Police Station, she is the Investigating Officer in the matter, the 3rd and 4th Respondents are a body corporate under the mandate of the National Police Service and whose functions include collecting and providing criminal intelligence, undertaking investigations of crimes, maintenance of law and order, and apprehension of offenders among others, the Petitioner is the accused person in the said criminal case and the 5th Respondent is the complainant, on 1/07/2020 at around 2. 30 am, one Corporal Oundo who was on night duty received a report vide a phone call from one Purity Chepkoech who claimed that her father, the Petitioner, was assaulting her mother, the 5th Respondent, after they received the phone call, officers visited the scene where they established that the Petitioner had arrived home from a nearby bar and began assaulting his wife (5th Respondent) claiming that she had sent people to attack him, the officers noted that the 5th Respondent had sustained serious injuries and part of her ear had been bitten off, she was rushed to hospital and admitted, the Petitioner was also treated as he too had sustained injuries and that he was later arrested and detained in custody.

6. She deponed further that investigations were commenced whereby the 5th Respondent was visited by the officers in hospital where she had been admitted, she was found to be very weak with human bite wounds on both sides of the eyes near her cheeks, part of her right ear had been bitten off, she had sustained injuries on other parts of the body also as she was complaining of chest and leg pains as well, the officers recorded the 5th Respondent’s statement while at the hospital where she alleged that on the material night, she was asleep when the Petitioner came home at around 1 am, he went to their bedroom and started accusing the 5th Respondent of conspiring with other people to assault him and threated to kill her, the Petitioner then started assaulting her, he then bit her on the right side of the eye, they struggled for a while then the Petitioner bit off part of her ear and she started bleeding heavily, that the police also recorded the Petitioner’s statement where he admitted having confronted and assaulted the 5th Respondent and that during the confrontation, the 5th Respondent bit his finger, he too was treated at the same hospital and discharged.

7. The deponent added that they visited the home and recorded the statements of the parties’ children who witnessed the assault, they obtained the 5th Respondent’s treatment documents which indicated that the 5th Respondent had been admitted in hospital for 7 days, they issued her with a P3 Form that was filled at the County hospital, the injuries were classified as grievous harm, from their investigations they formed the opinion that there was enough evidence to sustain and charge the Petitioner, they therefore forwarded the police file to the 1st Respondent who directed that the Petitioner be charged, he was later charged, the Petitioner later filed a report at Kapsoya Police Station on 27/10/2020 alleging that he was also assaulted by the 5th Respondent on the material night, it is worth noting that this complaint was filed 3 months after the incident when investigations had already revealed that the Petitioner was the aggressor and that if the Petitioner sustained any injuries then it was because the 5th Respondent was defending herself and was therefore not at fault, the said Respondents are not opposed to reconciliation between the parties however this had to be at the instance of the 5th Respondent who is the complainant, if the 5th Respondent is not agreeable then the matter should proceed to its logical conclusion as the 5th Respondent had a right to seek justice through the Courts, the present application is misconceived and an afterthought, the Petitioner has not demonstrated how his rights as guaranteed in the constitution have been violated, the criminal proceedings were instituted in the public interest, the issues raised by the Petitioner would best be determined by the trial Court as the Petitioner is raising matters touching on evidence, the prayer for stay of the criminal proceedings is a delaying tactic as the matter has proceeded with 2 witnesses having already testified, the Application will occasion great prejudice to the Respondents and wider public interest if allowed since the Respondents will not have the opportunity to prove their case and the powers of the 1st Respondent to institute criminal proceedings under Article 157(6) of the Constitution will be greatly interfered with and undermined.

5th Respondents’ Replying Affidavit 8. On her part, the 5th Respondent opposed the Application by relying on her Replying Affidavit filed on 9/03/2023 through Messrs Oduor, Munyua & Gerald Attorneys LLG. The date of swearing is not however disclosed. In the Affidavit, the 5th Respondent confirmed that she is married to the Petitioner and are blessed with 4 children and deponed that there was no brawl and it is the Petitioner who attacked her injuring her severely, that after investigations were conducted, it came out clearly that the Petitioner is the one who attacked the 5th Respondent injuring her severely to the extent of biting off a piece of her ear, she was summoned to Kapsoya Police Station over allegations that she had assaulted the Petitioner on 1/07/2020 and was released on a cash bail of Kshs. 5,000/- pending conclusion of investigations, the Officer Commanding Kapsoya Police Station was summoned before the Eldoret Magistrates’ Court at the behest of the Petitioner to explain and give reasons as to why the 5th Respondent was not charged and he informed the Court that upon conducting investigations they concluded that the 5th Respondent did not assault the Petitioner, she was therefore discharged and allowed to collect her cash bail since investigations had been concluded, she was the victim of domestic violence, the present Application is an affront to justice and the same threatens the 5th Respondent’s fundamental rights and freedoms, prior to commencement of the criminal trial, they were granted time to reconcile but the same collapsed, Article 25 of the Constitution has not been breached since the Petitioner has hidden material facts, Article 27(1) and 28 have not been infringed since the Petitioner has not explained to what extent the same has been infringed, Article 39 has not been infringed since the Petitioner has not demonstrated the extent to which his right to freedom and movement has been curtailed yet he has admitted that he was granted bond and has been attending Court as and when required, Article 50 has not been infringed since the process that is ongoing is the normal procedure for all criminal cases which procedure guarantees fair hearing to all parties, and that the Petitioner has not demonstrated how the continuation of the criminal case is impeding his right to fair trial.

Petitioner’s Further Affidavit 9. The Petitioner filed a Further Affidavit on 28/03/2023 although the date of swearing is not disclosed. He deponed that the Police Constable who swore the Replying Affidavit on behalf of the 1st, 3rd and 4th Respondents had no capacity to do so, those other Respondents are separate entities and independent from one another, as per the charge sheet, the said Police Constable has no role to play in the investigations, the officers involved are one Corporal Oundo and PC Beth, it is not true that he admitted having confronted the 5th Respondent, in fact it is the 5th Respondent who attacked him when he tried to defend himself, what he stated at the Naibori Police Station is not what is recorded, for instance, at no point did he state that he bit the 5th Respondent on both eyes, if at all he did, there would be medical documents to support the injuries, they were fabricated charges, there is no time within which criminal offence should be reported, Corporal Wesonga is not privy to many facts regarding his compliant reported at Kapsoya Plice Station since she is not attached there neither is she the Investigating Officer, the Investigating Officer completed investigations and forwarded the file the 1st Respondent for action but the 1st Respondent declined to prosecute the 5th Respondent, it is therefore the 1st Respondent who is the one to blame for carrying out selective prosecution, powers to prosecute granted to the 1st Respondent should not be abused, the reason why the 3rd Respondent was summoned to Court was not to give an explanation as why the 5th Respondent was not charged but to clarify the reason for arresting 5th Respondent, it is not true that the 3rd Respondent had discharged the 5th Respondent, it is the 1st Respondent who declined to prosecute the 5th Respondent, and that he has outlined the infringement of his constitutional rights.

Petitioner’s Submissions 10. Counsel for the Petitioner submitted that in view of the prayers in the Petition, unless a conservatory order is issued staying the criminal proceedings, the Petition shall be rendered nugatory, the Courts have developed principles governing stay of proceedings or stay of criminal proceedings. He cited on the case of Prasul Jayantilal Shah v Republic; Joseph Karuoro Claudio (Interested Party) [2022] eKLR, H.C at Machakos Misc. Criminal Application No. E070 of 202 and submitted that the decision whether or not to arrest proceedings is discretionary and being discretionary the stage at which the application is made is a crucial factor to be considered. He cited the cases of Goddy Mwakio & Another vs. Republic [2011]eKLR and also Kenya Wildlife Service -vs- James Mutembei [2019] eKLR and submitted that the Court has discretion to stay criminal proceedings in exceptional circumstances which may include but are not limited to the prosecution being an abuse of the Court process, oppressive, vexatious, biased or selective as in the instant case, there are exceptional circumstances in the present case that warrant issuance of conservatory orders, the Prosecution engaged in selective and biased prosecution by choosing to only proceed with the 5th Respondents’ complaint. He cited the case of Salma Hemed v Director of Public Prosecution & 2 Others [2020] eKLR and submitted that in regard to the reason given by the ODPP as to why it chose not to prosecute the 5th Respondent, the ODPP is not a court of law, and therefore it has no mandate, power, capacity authority or jurisdiction to make conclusions on criminal culpabilities, that jurisdiction is a preserve of court of law, it is therefore in the interest of justice that the ODPP be put on task to explain its biased and selective prosecution. He also cited the case of Ian Gakoi Maina & 3 Others v Republic & Another [20201 eKLR. Court of Appeal at Kisumu, Criminal Application No. 74 of 2019 and submitted that two complaints should both proceed to trial and heard concurrently.

11. Counsel also cited the cases of Centre For Rights Education And Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR, George Joshua Okungu & Another v Chief Magistrate’s Court Anti-Corruption Court at Nairobi & Another [2014] eKLR, Bitange Ndemo v Director of Public Prosecutions & 4 Others [2016] eKLR, Reuben Mwangi v Director of Public Prosecutions & 2 Others; UAP Insurance & Another (Interested Parties) [2021] eKLR andRepublic v Director of Public Prosecutions & 2 Others; Evans Muriuki Kariuki (Interested Party); Ex Parte James M. Kahumbura [2019] eKLR.

1st, 3rd and 4th Respondent’s Submissions 12. On her part, on behalf of the said Respondents, Senior Prosecution Counsel, Ms Emma Okok, submitted that the 1st Respondent, though an independent office, does not act independent of the offices of the 3rd and 4th Respondents, there is a mutual working relationship among the three arms, the 3rd and 4th Respondents conduct investigations, the 1st Respondent screens the files and approves the charges, the 1st Respondent also has the mandate of directing the offices of the 3rd and 4th Respondents in their investigations, the decision to charge rests with the 1st Respondent, Police Constable Jackline Wesonga has stated that she is the current Investigating Officer in the matter and is therefore well versed with the facts of the case, a police file does not belong to an individual police officer, once an officer is transferred, becomes deceased or sacked from service then another officer is handed over the matter to continue dealing, PC Wesonga is therefore competent to swear the Affidavit on behalf of the 1st, 3rd and 4th Respondents.

13. Counsel submitted that PC Wesonga is an officer under the Kenya Police Service and cited the provisions of Section 24 of the National Police Service Act to illustrate the functions of the Service, in her Affidavit,PC Wesonga, though not the original Investigating Officer, has clearly detailed how investigations were conducted from when they received the report and what informed the decision to charge the Petitioner and not the 5th Respondent, the investigations were conducted in accordance with the law and the Petitioner’s rights were not violated in any way.

14. Further, Counsel submitted that the office of the 1st Respondent is established by Article 157(6) of the Constitution. She also referred to Article 157(10) and added that Article 157(11) provides the guiding principles that the 1st Respondent and/or prosecutors acting under his instructions must put in consideration while performing their duties, the police file was forwarded to the 1st Respondent’s office by the investigating officers upon conclusion of the investigations, upon thorough investigation of the complaints, the 1st Respondent was satisfied that a criminal offence had been committed and as a result, criminal proceedings were instituted against the Petitioner, he was therefore charged with the offence of grievous harm, the 1st Respondent noted that the 5th Respondent was not culpable of any offence and it was therefore not in the interest of justice to institute criminal proceedings against her, this is evident vide the 1st Respondent’s letter dated 29/12/2020, the 1st Respondent thoroughly analysed the evidence available, established that the same was admissible and sufficient and that public interest required institution of criminal proceedings against the Petitioner, the decision to charge the Petitioner was within the law and was not malicious, the 1st Respondent has the ultimate discretion in determining which complaint should lead to a criminal prosecution. She cited the case of Republic v Chief Magistrate, Milimani Criminal Division & 4 others Ex-Parte John Wachira Wambugu & another [2018] eKLR Misc. Application 620 of 2017 and submitted hat the Petitioner has not demonstrated that while making the decision to charge, the 1st Respondent abused this power, acted with bias or acted maliciously, this Court should therefore not be quick to entertain the Application which is aimed at interfering with the constitutional mandate of the 1st Respondent. She also cited the case of Diamond Hasham Lalji & another v Attorney General & 4 others[2018] eKLR.

15. Counsel urged further that the Application, if granted, has the effect of undermining the criminal justice process. She cited the case of Goddy Mwakio & Another v Republic [2011] eKLR and submitted that the prosecution has clearly demonstrated how the investigations were carried out and how the decision to charge was arrived at, the Petitioner is charged with an offence known in law and particulars of the offence as contained in the charge sheet supported the charge, the prosecution has also availed sufficient evidence to support the charge and should therefore be given an opportunity to adduce the evidence during trial, it is therefore in the interest of justice that the criminal proceedings do continue even as the Petition is heard since the Petitioner has not given sufficient reasons for stay, the Application is a delaying tactic as the criminal proceedings have already commenced, the complainant who is the 5th Respondent has a right to expeditious trial, reconciliation has to be done freely without coercion, the Application has been filed to frustrate the criminal justice process by delaying the trial so that the 5th Respondent is forced to agree to reconciliation and eventually withdraw her complaint.

16. In conclusion, counsel submitted that the Petitioner has failed to demonstrate how the prosecution is an infringement on his rights, the decision to charge the Petitioner was based on sufficiency of evidence and not motivated by malice or bias, the decision not to charge the 5th Respondent was made after consideration of the available evidence and to avoid abuse of the legal process, the prosecution is in the public interest and the trial Court is best placed to try the alleged offence, the application is an abuse of the Court process and an affront to the independence of the offices of the 1st 3rd and 4th Respondents, there is no exceptional circumstance to warrant stay of the criminal proceedings and the same should be allowed to proceed.

17. I have also come across a second set of Submissions filed on 25/07/2023 on behalf of the Respondents through Principal State Counsel Winnie Cheruiyot. I am not certain whether this second set was filed as complementary or in addition to the earlier set or in substitution thereof or whether it was filed without the knowledge that an earlier set had already been filed.

18. Be that as it may, it is argued in this second set of Submissions that the Application does not disclose any professional misconduct by the Magistrate’s Court, there is no reason at all as why any issue as to discontinuance of the matter was not raised there, the Applicant has not raised any issues that meet the parameters of issuance of conservatory orders, the Petitioner has not been prevented by anybody from pursuing an out of Court settlement, the Petitioner has admitted that a crime was committed in the name of what he refers to as “a brawl between husband and wife”, the Petitioner’s main contention is that the charges were selectively preferred against him but he has not tendered any evidence, during their investigations, the police uncovered sufficient information to prefer charges against the Petitioner and that the Petitioner has not provided any information that warrants this Court to exercise its supervisory jurisdiction or interfere with the ongoing criminal proceedings.

Analysis & Determination 19. Upon considering the facts, the pleadings and the submissions on record, I find the following to be the issues for determination;i.Whether the deponent of the Replying Affidavit filed for and on behalf of the 1st, 3rd and 4th Respondents is competent to swear such Affidavit.ii.Whether Conservatory Orders should be issued staying the criminal proceedings before the Magistrate’s Court.

20. I now proceed to analyze and determine the said issues.i.Whether the deponent of the Replying Affidavit filed for and on behalf of the 1st, 3rd and 4th Respondents is competent to swear such Affidavit

21. The Petitioner took the position that one Constable Jackline Wesonga who swore the Replying Affidavit on behalf of the 1st, 3rd and 4th Respondents had no capacity to do so, that those other Respondents are separate entities and independent from one another, and that as per the charge sheet, the said Police Constable has no role to play in the investigations.

22. I am however constrained to agree with the Respondents’ response that although 1st, 3rd and 4th Respondents are all independent offices, by necessity, practice and implication, the three are intertwined and there is a mutual working relationship among the three. As correctly argued, while the 3rd and 4th Respondents conduct investigations, the 1st Respondent screens the files and approves the charges. Further, under the Constitution, the 1st Respondent has the mandate of directing the 3rd and 4th Respondents in their investigations. In the end, the decision to charge rests with the 1st Respondent.

23. It has been deponed under oath that Police Constable Jackline Wesonga is the current Investigating Officer in the matter and is therefore well versed with the facts of the case. In the circumstances, I find that the said PCWesonga is sufficiently competent to swear the Affidavit on behalf of the 1st, 3rd and 4th Respondents.

i.Whether Conservatory Orders Should Be Issued Staying The Criminal Proceedings Before The Magistrate’s Court 24. It is true that the 1st Respondent, office of the Director of Public Prosecution (ODPP) is not subject to the control of any person or authority in exercising his mandate as conferred by the Constitution. It is however equally true that the exercise of that power and discretion must be exercised in accordance with the law. Where it is demonstrated that the DPP has overstepped his mandate by misusing the powers, the High Court can and should intervene. Such abuse of powers would include for instance, the employment of extraneous factors to achieve ulterior goals separate from ends of justice. In regard thereto in the case of Kuria -vs- Attorney General [2002], the Court made the following statements:“The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is the duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform ........... a stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles which underlie the society's sense of fair play and decency and/or where the proceedings are oppressive or vexatious .............."

25. Similarly, in Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held as follows:“…the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

26. As regards “conservatory orders” as sought herein by the Petitioner, I refer to the definition given in the case of Nairobi Civil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW)[2016] eKLR where Mulwa J expressed herself as follows: -“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter”

27. Regarding the nature and application of conservatory orders, the Supreme Court, in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR, pronounced itself as follows: -“(86)“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay.

28. Further, in Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR , Odunga G.V. (as he then was), expressed himself in the following terms:“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.

29. Conservatory orders are therefore aimed at preserving the substratum of the matter pending the determination of the main issues in dispute (see Ruling of Mrima J in Damour Florian Emmeric v Director of Immigration Services [2022] eKLR.

30. On the need to observe boundaries when handling Applications for conservatory orders, in the case of Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others(2011) eKLR, Ibrahim J, (as he then was) expressed himself as follows:“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.”

31. The principles to be considered when determining whether to grant conservatory orders have been developed by the Courts over time. These principles were summarized in Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Other Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR where Lenaola J (as he then was) summarized the three principles for consideration as follows:(a)An applicant must demonstrate that he has a prima faciecase with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.(b)Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and(c)The public interest must be considered before grant of a conservatory order.

32. Regarding the definition of “a prima facie case”, the same was explained in the case of Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 where, in quoting the locus classicus case of Giella v Cassman Brown & Co Ltd [1973] EA 358, the Court of Appeal expressed the term to mean:“……. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.”

33. Additionally, In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the Court while expounding on what a prima-facie case or arguable case was, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a Court must undertake an intellectual exercise and consider without making any findings, the scope of the remedy sought, the grounds and the possible principles of law involved.

34. Applying the above principles to the facts of this matter, I observe that the Petitioner challenges the 1st Respondents’ decision to charge the Petitioner and leave out the 5th Respondent. The mandate to prosecute rests with the 1st Respondent, Office of the Director of Public Prosecutions (ODPP) as enshrined under Article 157 of the Constitution. In exercising this mandate, the Director of Public Prosecutions (DPP) is required to review and determine the “prosecutability” of matters forwarded for his action. Needless to state, the same should be exercised judiciously.

35. From my assessment of the facts, I am satisfied that it has been demonstrated that the criminal charges were preferred after the conduction of investigations. The procedure is that prosecution is preceded by an investigation which answers the question as to whether there was an offence committed. The Constitution and the National Police Service Act give the Police the mandate to investigate. On this aspect, I refer to the sentiments of Warsame J (as he then was), in the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another [2012] eKLR, where he stated as follows:“The Police have a duty to investigate once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”

36. In my view, the Petitioner has not provided sufficient evidence at this stage to demonstrate that there was any malice or impropriety in the decision to charge him. In Douglas Maina Mwangi vs. KRA & Another, 213 eKLR, Majanja J addressed the issue as follows:“15. The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases ………”

37. Applying the principles enunciated in the authorities cited above, it is my considered view that the Petitioner has failed to satisfy this Court that the 1st Respondent acted in bad faith or that it has abused the process in exercising its prosecutorial powers. Consequently, the Petitioner has failed to establish a prima facie case. In regard thereto, in the case of Naftali Ruthi Kinyua v Patrick Thuita Gachure & another[2015] eKLR, the Court of Appeal stated that:“With reference to the establishment of a prima facie case, Lord Diplock in the case of American Cyanamid vs Ethicon Limited [1975] AC 396 stated thus,“If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities that is the end of any claim to interlocutory relief.”

38. In the absence of a prima facie case, it follows that the Application fails in its entirety. The Petitioner has not demonstrated that there will be a violation of his constitutional rights if the Petition runs concurrently with the criminal case. Granted, the High Court has the jurisdiction to stay the proceedings in the lower Courts but in order to do this, it must satisfy itself that those proceedings, if allowed to proceed, would amount to an illegality, an abuse of the process and further, a travesty of justice. In my view, it has not been sufficiently demonstrated that allowing the proceedings in Eldoret Criminal Case No. 1173 of 2020 to proceed side by side with the Petition herein would in any way amount to an illegality or a travesty of justice. In the circumstances, I find no justification to interfere with the proceedings.

39. In determining whether or not to grant the orders sought the Court is enjoined to consider what has become known as the principle of proportionality. In my view the circumstances of this case dictate that the criminal Court proceedings continue since that would be the lower risk as opposed to halting it at this stage (see sentiments of Odunga G.V. (as he then was) in Judicial Service Commission vs. Speaker of the National Assembly (supra).

40. As already stated, it is not doubt that this Court has the constitutional mandate and power to stop any criminal prosecution which has been demonstrated to have been preferred maliciously, with ulterior or selfish reasons. That is not in doubt. However, in exercising that power, the Court must also be cautious and careful not to overstep or exceed its mandate by usurping or unduly interfering with the prosecutorial powers of Director of Public Prosecutions powers similarly donated by the Constitution. For the need for such caution, I again refer to the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari (supra) where Warsame J (as he then was), expressed himself as follows:“Under Article 157(4) of the Constitution, the Director shall have power to direct police to investigate any information or allegation of a criminal conduct and it is mandatory for the police to comply with any directions or instructions given by the Director of Public Prosecution. Under article 157(10) the Director of Public Prosecution shall not require the consent of any person or authority for commencement of criminal proceedings and shall not be under the direction or control of any person. ………...It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party. It is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person. It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it. There is no evidence to show that the respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving punishment.”

41. The decision whether to stay proceedings is discretionary but the same must be exercised cautiously. This is what was held in the case of Goddy Mwakio & Another vs. Republic [2011] eKLR where the Court of Appeal stated that:“An order for stay of proceedings, particularly stay of criminal proceedings is made sparingly and only in exceptional circumstances.”

42. Similarly, Gikonyo, J in the case of Kenya Wildlife Service –vs- James Mutembei [2019] eKLRstated as follows:“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases… Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation…It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

43. Having considered all the material placed before me, it is my decision that it is not appropriate for this Court to intervene at this stage. The evidence available discloses criminal acts allegedly committed by the Petitioner which merit to be investigated, prosecuted and determined by a Court of competent jurisdiction. No selective or biased prosecution and no exceptional circumstances has been demonstrated at this stage to warrant grant of conservatory orders.

Final Orders 44. In the premises, the Notice of Motion dated 26/01/2023 seeking conservatory orders is hereby dismissed with costs to the Respondents.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF DECEMBER 2023WANANDA J. R. ANUROJUDGE