[2022] KEHC 16319 (KLR)

Kinuthia v Director of Criminal Investigations & another; Safaricom PLC (Interested Party) (Petition 248 of 2019) [2022] KEHC 16319 (KLR) (Constitutional and Human Rights) (9 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16319 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 248 of 2019

M Thande, J

December 9, 2022

Between

Billy Simon Kinuthia

Petitioner

and

Director of Criminal Investigations

1st Respondent

The Inspector General of Police

2nd Respondent

and

Safaricom PLC

Interested Party

Judgment

1. By his Petition dated 21. 6.19, the Petitioner seeks the following reliefs: -a.That a declaration be issued that detaining the Petitioner without justification, and without informing him of the reasons of detention, holding him incommunicado, holding him in deplorable and inhumane conditions, threatening him with death by using physical assault, beating him, torturing him and using verbal abuse and coercing to reveal the pass code to his mobile phone an iPhone 7 by the 2nd Respondent that resulted in the petitioner breaking his ribs was a violation of the Petitioner’s rights protected in Article 29 of the Constitution on freedom and security of the person.b.A declaration that the Petitioner’s right to freedom from torture and cruel, inhuman or degrading treatment or punishment under Articles 25 (a), 27(1), 27(2), 28, 29(a), 29(f), 51(1), 29 (d), 29(f) of the Constitution 2010 were contravened by the 2nd Respondent.c.That an Order of certiorari be issued quashing the evidence collection by the 2nd Respondents from the Petitioner’s iPhone 7, whose collection was occasioned by physical harm, holding him incommunicado, holding him in deplorable and inhumane conditions, threatening him with death, beating him and torturing him is hereby unconstitutional and a further contravention of The Evidence (out of Court Confessions) Rules, 2009 Rule 4. d.That an Order of certiorari hereby issued removing into this court and quashing the entire proceedings against the Petitioner before the Chief Magistrates Court at Milimani Law Courts in Criminal Case No. 962 of 2019. e.That an order for exemplary and punitive damages be and is hereby issued against the 1st and 2nd Respondents jointly and severally, in their individual personal and official capacities, on account of their gross violation of the Petitioner’s fundamental freedoms and rights as enumerated in the Petitioner (sic).f.Any further orders, writs, directions as the court may deem appropriate.g.Costs of the suit plus interest.

2. The Petition is founded on Articles 25 (a), 27(1) & (2), 28, 29(a), (d) & (f) and 51(1) of the Constitution of Kenya, 2010; Sections 56(3) and 59; Fifth Schedule section 3, 7, 9 (D), 14, sixth schedule 4, 5, and 8 of the National Police Service Act (NPSC) and Rule 4 of the Evidence (Out of Court Confessions) Rules, 2009.

3. The Petitioner’s case as set out in his supporting affidavit sworn on 21. 6.19, is that he was an employee of the Interested Party and served in various capacities since 2010. His last position was as Senior Manager, Cyber Security, Network and Mpesa Auditor. On 7. 6.19, he was ambushed by police from the department of criminal investigations, who took him to their offices on Kiambu Road and questioned him for 1½ hours. His inquiry about the reason for his arrest was met with kicks, boxing and torture resulting in physical harm and actual injury on his person. The brutality meted on him only stopped when he revealed private company information passcodes of his phone. He was then transferred to Muthaiga Police Station where he was held incommunicado until presentation in court on 11. 6.19. He was charged and released on a cash bail of Kshs 1,000,000/-. Upon seeking medical assistance, he was diagnosed with a myriad of illnesses including fractured ribs. He therefore comes to this Court seeking redress for infringement of his fundamental rights.

4. The Respondents opposed the Petition by means of an undated replying affidavit sworn by No. 227616 C.I. Peter Maina. He gave his position as Assistant Superintendent of Police in the DCI, attached to the Serious Crime Investigations Unit. He stated that he is one of the investigators of the case of computer fraud contrary to section 26(2)(d)(e) as read with section 26(1)(c) of the Computer Misuse and Cybercrimes Act No. 5 of 2018 (CMCA), in Criminal Case number 962/2019 at the Chief Magistrates’ Court Milimani (the criminal case) in which the Petitioner and another person have been charged.

5. C.I. Peter Maina stated that on 4. 6.19, the DCI received a formal report from the Chief Corporate Security Officer, Safaricom PLC, of theft of private data affecting Safaricom customers. Investigations were launched and one Charles Kimani a state witness led the 2nd Respondent to the Petitioner; that Kshs. 300 million was demanded from Safaricom through Charles Kimani, Mark Billy Kinuthia and Benedict Kabugi in order not to expose the data which they copied and transferred from Safaricom Subscriber Database; that on 7. 6.19, the Petitioner and his accomplices were arrested in Kilimani after investigations linked him with offences of computer fraud and demanding money by menaces. A recovery of mobile phones and laptop was made which were taken to the DCI Cyber-crime laboratory for further analysis and extraction of evidence. Upon conclusion of investigations, the file was submitted to the 1st Respondent and upon review of the file, a decision to charge the Petitioner was made.

6. C.I. Peter Maina denied all the allegations of torture and asserted that the Petitioner was accorded the rights of an arrested person, including access to lawyer and relatives, while in police custody. He further stated that neither the Petitioner nor his accomplices, who were represented by their lawyers, raised the issue of beatings or torture during plea taking. It was further contended that the issues raised by the Petitioner are matters for the trial court and can be raised as a defence.

7. In a supplementary affidavit sworn on 22. 10. 19, the Petitioner averred that he was opposed to the use in the trial in the lower court, of material procured by the 2nd Respondent through threats and torture on the premise as such use will occasion him great prejudice.

8. The Interested Party also opposed the Petition. In a replying affidavit sworn on 15. 6.21, Daniel Ndaba, a Senior Manager – Litigation, with the Interested Party, stated that as Senior Manager, Networks & Mpesa Systems Auditor, the Petitioner’s duties included foreseeing, identifying and eliminating risk to the Interested Party’s systems, to ensure that the privacy data in its custody is not breached. The Petitioner however, abused his position and breached his contractual and statutory duty to the Interested Party and the owners of the data. This prompted the Interested Party to lodge a complaint with the DCI vide a letter dated 30. 5.19 that culminated in the institution of the criminal case in which the Petitioner was charged with 2 counts under Section 26(2)(d)(e) as read with Section 26(1)(c) of the CMCA and 2 counts under Section 393 of the Penal Code. He further deposed that 7. 6.19, the date of the Petitioner’s arrest was a Friday and he was arraigned in court on Tuesday 11. 6.19, a delay of 1 day. It is the Interested Party’s case that the Petition is lacking critical particulars which makes this Court unable to exercise its jurisdiction to consider whether to exclude evidence allegedly acquired by the police through coercion, harassment and torture. In any event the evidence obtained amounted to a confession and that the trial court in the criminal case would be the appropriate forum in which the allegations of torture and admissibility of the evidence can be determined in a trial within a trial.

9. In rejoinder, the Petitioner swore a supplementary affidavit 15. 7.21 in which he reiterated the averments in his supporting affidavit. He contended that the complaint letter by lodged by the Interested Party does not bear his name nor make any reference to him being the perpetrator in the theft of private data or soliciting the sale of the same; that the unlawful and illegally obtained evidence materially forms the basis of the charge and evidence to be used by the 1st Respondent in the criminal case despite the same being in contravention of the Constitution and the provisions of the Evidence (out of court confession) Rules 2009; that Count 1 and Count 2 of the charges against him are brought under the CMCA which was declared to be unconstitutional in Petition No. 284 of 2019 as consolidated with Petition No. 353 of 2019 and thus null and void; that the continuance of the criminal case against him is prejudicial to the interest of justice.The Petitioner further contended that the Petition raises critical issues that this Honourable Court cannot afford to ignore nor brush aside. Further that the jurisdiction has been properly invoked since the Petition involves violation of human rights as enunciated in the Bill of Rights. Moreover, the Respondents and the Interested Party having submitted to the authority of this Court without protest cannot at this stage raise the issue of jurisdiction and ought to have raised the same at the initial stage of the proceedings.

10. As the Court considers the the parties’ pleadings and rival submissions herein it must be mindful of the potential effect the grant of the orders sought, may have on the criminal case the Petitioner faces in particular, and the administration of justice in general.

11. I have given dur consideration to the submissions filed by the Petitioner, the 1st Respondent and the Interested Party, I find that the following issues arise for determination:i.Whether the Petitioner’s rights under Articles 25(a), 27(1), 27(2), 28, 29(a), 29(f) and 29(d) of the Constitution were contravened by the 2nd Respondent.ii.Whether the evidence collected by the 2nd Respondent from the Petitioner’s iPhone 7 should be quashed.iii.Whether the proceedings before the Chief Magistrates Court at Milimani Law Courts in Criminal Case No. 962 of 2019 should be quashed.iv.Whether the Petitioner is entitled to exemplary, punitive and general damages against the Respondents.

Whether the Petitioner’s rights under Articles 25(a), 27(1), 27(2), 28, 29(a), 29(f) ,29(d) and 51(1) of the Constitution were contravened by the 2nd Respondent 12. It is the Petitioner’s submission that in its quest to paint him as the mastermind of the crime reported by the Interested Party, the 2nd Respondent derogated from its constitutional duty to observe, respect, protect, promote and fulfil the rights and fundamental freedoms as required under Article 21(1) of the Constitution of Kenya, 2010. The Petitioner contended that in contravention of Article 49(1) of the Constitution, Article 9 of the International Covenant On Civil And Political Rights and Section 59 of the National Police Service Act, the 2nd Respondent failed to inform the Petitioner of the reason for his arrest. Further that the 2nd Respondent extracted information from him by using intimidation, threats and torture, resulting in myriad illnesses including fractured ribs thereby violating his rights to freedom and security under Article 29 and freedom from torture and cruel, inhuman or degrading treatment or punishment guaranteed under Article 25(a), a right that shall not be limited. The Petitioner further submitted that arrest of suspect should not be made unless and until the case has been investigated and there is sufficient evidence requiring an answer. The Petitioner thus contended that the 2nd Respondent violated his rights under Articles 25(a), 28, 29(a)(c)(d) and (f) and 49(1)(b) which guarantees an arrested person the right to remain silent. He further submitted that he was denied the right to communicate with an advocate, and other persons whose assistance is necessary as guaranteed under Article 49(1)(c).

13. Article 22(1) guarantees to every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. A person who institutes such proceedings must demonstrate the rights violated, the manner of the violation as well as the and the harm suffered as a result thereof. This was the holding in the case of Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR where the Supreme Court stated:Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement. The 3rd respondent has not shown how it was affected by the decision of CCK to deny National Signal Networks a BSD licence, just as it has also not shown how it was affected by the decision of the Public Procurement Administrative Review Tribunal.

14. The Petitioner further submitted that he was not produced before Court within 24 hours of his arrest thus violating his right under Article 49(1)(f). The Petitioner relied on the case of Albanus Mwasia Mutua v Republic [2006] eKLR in which the Court of Appeal quashed the conviction and set aside the sentence on the ground that the appellant therein had not been taken to court within the stipulated time under Section 72(3) of the retired Constitution. The Court stated:In the appeal now before us, there was undoubtedly a gross violation of the appellant’s constitutional right guaranteed to him by section 72(3) (b) of the Constitution. He was brought before the trial Magistrate some eight months from the date of his arrest and no explanation at all was offered for that delay. It could be that he fell ill during the fourteen days the police were entitled to hold him in custody, that he was admitted in hospital and was detained in hospital for the eight months as a result of which the police were unable to produce him in court. It could also be that the appellant had been presented to the court earlier but his case was terminated for one reason or the other, was discharged and was subsequently recharged afresh. Constitutionally, the burden was on the police to explain the delay.

15. The Court went on to state:The deprivation by the police of his right to liberty for a whole eight months before bringing him to court so that his trial could begin obviously resulted in his trial not being held within a reasonable time. The appellant’s appeal must succeed on that ground alone.

16. Article 49(1)(f) provides that an arrested person has the right tof)to be brought before a court as soon as reasonably possible, but not later than––(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;

17. The foregoing provision protects persons from arbitrary arrest and detention for a period exceeding 24 hours or for the period necessary to secure their production before court on the next court date. In the present case, it is conceded that the Petitioner was arrested on 7. 6.19, a Friday. As such he ought to have been taken to court on the next court day which was Monday, 10. 6.19. However, it was not until Tuesday 11. 6.19 that the Petitioner was taken to Court.

18. The Respondents denied the allegations of infringement of the Petitioner’s rights as alleged. Further, the Respondents and the Interested Party stated that the Petitioner did not raise the allegations of torture in the trial Court when taking plea. This was not controverted by the Petitioner.

19. The question that then begs is, why did the Petitioner not raise before the trial court, the issue of violation of his rights? As indicated herein, this Court must exercise caution in making any pronouncements at this stage on the question of violation or otherwise of the Petitioner’s rights and fundamental freedoms under the Bill of Rights, including allegations of torture and failure to present him in Court within the constitutional timelines. This issue is best raised in the trial court which will then make a determination on the same and the effect thereof on the proceedings. Any finding by this Court on the issue at this stage will be prejudicial to the pending proceedings in the criminal case and eventual outcome.

Whether the evidence collected by the 2nd Respondent from the Petitioner’s iPhone 7 should be quashed 20. It is the Petitioner’s prayer that this Court quashes the evidence obtained by the 2nd Respondent on the basis that the same was obtained unlawfully.

21. The Petitioner relied on Article 50 of the Constitution guarantees to every person the right to a fair hearing. Relevant to the matter herein, is Clause (4) which provides:Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

22. The Petitioner further relied on Rule 4 of the Evidence (Out of Court Confessions) Rules, 2009 provides for the rights of an accused person as follows:(1)Where an accused person intimates to the police that he wishes to make a confession, the recording officer shall take charge of the accused person and shall ensure that the accused person–(a)has stated his preferred language of communication;(b)is provided with an interpreter free of charge where he does not speak either Kiswahili or English;(c)is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment;(d)is informed of his right to have legal representation of his own choice;(e)is not deprived of food, water or sleep;(f)has his duration, including date and time of arrest and detention in police custody, established and recorded;(g)has his medical complaint, if any, adequately addressed;(h)is availed appropriate communication facilities; and(i)communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5. (2)The recording officer shall not record a confession from any accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries including open wounds, body swelling, or shows extraordinary fatigue or any other indicators that would suggest that the accused person has been tortured.(3)The recording officer shall ask the accused person to nominate a third party who shall be present during the duration of the confession session, and upon the appearance of the third party, the recording officer shall record the third party’s particulars and relationship to the accused person.

23. In the case of John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital” & another [2018] eKLR, relied on by the Petitioner, Wasilwa, J. had this to say about evidence obtained in breach of the Constitution:In determining whether to allow evidence being sought to be expunged, I am guided by the fact that the primary duty of this Court is to do justice. If justice will be done using available documents and evidence not obtained in breach of the Constitution and the law then this Court would admit such evidence in order to have the right resources before it to enable determination of the issues in a just matter. I therefore exercise my discretion and dismiss the application and allow the documents filed to remain on record.

24. In Philomena Mbete Mwilu vs. Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party) International Commission of Jurists Kenya Chapter (Amicus Curiae) (2019) eKLR. The High court stated: -310. The Kenyan position on the rule that there is no automatic exclusion of illegally obtained evidence is thus shared in other jurisdictions. In our view, the determination of the question whether to exclude illegally obtained evidence on the basis that it will render the trial unfair is a matter within the jurisdiction of the trial court. However, there is the broader question of whether the illegally obtained evidence is otherwise detrimental to the administration of justice, which is an issue that as a court dealing with a petition alleging violation of constitutional rights, we are under an obligation to consider. This is a duty that takes us beyond examining the question of fairness to the Petitioner and to the question whether there could be greater public policy implications arising from the conduct of the DCI.The court in RC v KKR [2021] eKLR held: -151. The Court in Philomena Mbete Mwilu vs. Director of Public Prosecutions & 3 Others case (supra) allowed the Petition primarily on the grounds that the DCI had used unorthodox means to obtain evidence against the Petitioner. The DCI is a State organ which is mandated to conduct criminal investigations. If such a body can be faulted for flouting the law in the course of its lawful duties, what of an ordinary person who takes it upon himself to carry out investigations on issues which border on criminal conduct without the involvement of the police or the Courts? Such a person has no option than complying with the Constitution and the law.152. If such conduct by private citizens is not checked and sanctioned accordingly, then the end result will be fanning chaos in the society. It will be open to everyone to run around and gather evidence against the other in any manner. Such tendencies must be regulated. There must be order in doing things. Illegal ways of gathering information must be discouraged since the Constitution and the law provide for ways within which any information may be obtained.153. It is on that basis that the Supreme Court did not hesitate to reject evidence which was obtained contrary to the Constitution and the law in Presidential Election Petition No. 4 of 2017, Njonjo Mue & another -vs- Chairperson of Independent Electoral and Boundaries Commission & 3 others case (supra). The Court of Appeal as well as the High Court have severally so followed suit.154. This case is, therefore, not an exception. Whereas one can argue that the trial Court is best suited to determine the admissibility or otherwise of the impugned evidence, the circumstances of this case call for greater and further public policy considerations by this Court.155. There is a great danger in the administration of justice if the manner of gathering evidence will not be confined to within the Constitution and the law. It cannot be the norm that every ‘Tom, Dick and Harry’ can do as it pleases in obtaining adverse evidence against another. There must be order in commanding things both in the public realm as well as in private affairs. It is that order which is dictated upon by the Constitution and the law.156. The foregoing discussion has, hence, demonstrated that it is in public interest that everyone abides by the Constitution and the law. It is indeed long overdue, and its high time that everyone must accept that this Country is under a different constitutional dispensation. The people of Kenya spoke and their sovereignty reigns.

25. Similarly, in the case of Ltimpiyan Lekoloto v Republic [2013] eKLR Gikonyo. J. considered the rights of an arrested person and held:27. Article 49(1) of the Constitution, gives the rights of an arrested person. Among those rights is the right to be informed of the right to remain silent, (article 49(1) (a) (ii) the right to be informed of the consequences of not remaining silent [49(i) (a) (iii). Under Article 49 (1)(d) an arrested person has a right not to be compelled to make a confession or admission that could be used in evidence against the person. It is the duty of the court to ensure that these rights were accorded to an accused person brought before them. To admit the admission in evidence without enquiring into the question whether the Appellant had been informed of his rights before he made the admissions is a traversity of justice.28. Besides this the Evidence Act is very clear of how confessions or admissions should be made and in which circumstances they may be admitted in evidence. Sections 25A(1) and 26 stipulates…

26. On whether the use of evidentiary material collected from the Petitioner using irregular procedure is admissible, thee relied on John Muriithi & 8 others vs Registered Trustees of sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital & another [2018] eKLR, United Airlines Limited vs Kenya Commercial Bank Limited [2017] eKLR for the proposition that illegally obtained evidence is not admissible by dint of Article 50(4) of the Constitution. The Petitioner’s case is that given that the evidence submitted to court was obtained by means of degradation, torture and inhuman treatment of the Petitioner, it would be a grave miscarriage of justice for the Honourable Court to permit for the same to be admitted as evidence in the criminal case.

27. Further, relying on Article 10 (2) (b) of the Constitution, the Petitioner submitted that the actions of the Respondent failed to meet the constitutional standard of equality, integrity, transparency, rule of law and accountability by the state officers/ organs as provided and anticipated by the Constitution. In this regard, he relied on Miguna v Dr. Fredrick Okengo Matiangi Cabinet Secretary for Ministry of Interior and coordination of National Government & 7 others [2018] eKLR and R v. Loosely, [2001] UKHL 53.

28. The jurisprudence in the cited cases shows that the manner of gathering evidence including confessions and admissions must be within the confines of the Constitution and the law. Further that use of evidence in violation to the law in trials will endanger the administration of justice.

29. On the jurisdiction of this Court to exclude evidence before another court of competent jurisdiction, the Interested Party submitted, relying on Republic vs Commissioner of Police and Anotherex ParteMichael Monari & another (2012) eKLR that the Petitioner was arrested by the DCI on a complaint by the interested party in execution of their mandate as an investigative agency and in the public interest. Also relying on Article 245(2)(b) of the Constitution and Section 35 of the National Police Service Act, 2013, it submitted that the police service is mandated to undertake investigations of serious crimes including cybercrimes. Further, the 2nd respondent is legally permitted to investigate any information or allegation of criminal conduct, apprehend offenders and execute the directions of the 1st respondent pursuant to Article 157(4) of the Constitution. Hence the arrest and investigation of the Petitioner was conducted in exercise of their constitutional and statutory mandate following its report. it relied on the case of George Ngige Njoroge v Attorney General [2018] eKLR.

30. A careful reading of Article 50(4) shows that evidence obtained in a manner that violates the rights or freedoms in the Bill of Rights may not be admitted. The test for exclusion of such evidence is that the same if admitted will render the trial unfair or will be detrimental to the administration of justice. As indicated herein, the issues raised by the Petitioner are best raised before the trial Court.

31. This Court cannot be called upon to determine the admissibility of evidence before another court of competent jurisdiction. The trial court before the evidence in question is to be produced is best placed to deal with the admissibility thereof. More so because the trial court unlike this court, will be able conduct a trial within a trial to enquire into the manner in which the said evidence was obtained from the Petitioner and whether or not the same was done voluntarily. Accordingly, it is the duty of the trial court in the criminal case, to assess and test the legality, correctness, veracity and weight of the evidence gathered and which has been independently evaluated by the 1st Respondent. Indeed, to make a determination on the admissibility of the evidence in question would be detrimental to the administration of justice as it would be interfering with the constitutional and statutory mandate of the trial court which is a court of competent jurisdiction. Further, before the supervisory jurisdiction is invoked, parties should first be heard on the subject matter in question. In any event, if the trial court does admit the said evidence and thereafter proceeds to convict the Petitioner, then he can, if aggrieved, seek redress by invoking the appellate jurisdiction of this Court raising the issue as one of the grounds of appeal.

32. In the case of Njuguna Mwangi & another v Republic [2018] eKLR, Onyiego, J. was of a similar view and stated:15. In a situation such as the instant case which is challenging the admission of certain exhibits for failure to comply with certain legal requirements or standards before production and admission, it is perfectly within the purview or discretion of the trial court to determine the element of admissibility based on the relent law. The consequence of such admission improper or otherwise, would attract a ground of appeal by either party upon conclusion of the case depending on whether there is a conviction or not. That is why the luke Ouma Ochieng vs R(supra) case is not relevant to this case as it was referring to a situation of an accused person who had already been convicted based on production of exhibits that had been objected to at the trial stage. The admissibility of exhibits objected to should be challenged or raised after conclusion of the trial at the appeal stage and not at the admission stage or in the middle of a trial.16. The production and admission of the said exhibits does not amount to condemnation of the accused person. It is not automatic that the Applicants will be adversely affected by being convicted. In case of a conviction based on those exhibits, the Applicants shall have a remedy by way of an appeal. The power to admit exhibits or not is purely a matter of interpretation of the law by a trial court. It will be prejudicial to the trial and the eventual outcome of the case which is ongoing if this court were to make a finding that the admission was wrong. A court handling an application of this nature must act with extreme caution and restraint not to unnecessarily invoke revisionary powers thereby interfering with the trial court’s proceedings thus prematurely jeopardising the appeal process. Courts are not infallible as mistakes may occur but there are properly prescribed remedies e.g appeals where appropriate.

Whether the criminal proceedings before the Chief Magistrates Court at Milimani Law Courts in Criminal Case No. 962 of 2019 should be quashed 33. In response to the Petitioner’s submissions on this issue, the 1st Respondent argued that the decision to charge the Petitioner was based on Section 5(4)(e) of the Office of the Director of Public Prosecutions Act which mandates the 1st Respondent to review a decision to prosecute, or not to prosecute, any criminal offence;

34. Article 157(1) of the Constitution establishes the Office of the Director of Public Prosecution. Clause (6) and Section 5(1) (a) (b) of the Director of Public Prosecution Act provide for the powers to institute and undertake criminal proceedings, take over and continue any criminal proceedings commenced in any court and discontinue any criminal proceedings at any stage before judgment is delivered. Under Clause (10) and Section (6) of the Director of the Public Prosecution Act, 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. Clause 11 however requires the holder of the office to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process in exercising the powers conferred by this Article, the Director of Public Prosecutions.

35. The constitutional independence of the Director of Public Prosecution, was restated in the case of Republic v The Director of Public Prosecution & 7 Others [2013] eKLR High Court Misc. No. 249 of 2020 where Odunga, J. (as he then was) stated:The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for interfering with those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process.The learned Judge went on to state:It follows that the office of the Director of Public Prosecutions is an independent constitutional office which is not subjected to the control, directions and influence by any other person and only subject to control by the Court based on the aforesaid principles of illegality, irrationality and procedural impropriety.

36. While this Court has power to quash or stop proceedings in a trial court, such power is to be exercised sparingly. The grounds upon which the power of this court may be exercised to stop prosecution were considered in Director of Public Prosecutions V Martin Maina & 4 others [2017] eKLR, wherein the Court cited, with approval, the decision by the Supreme Court of India in State of Maharastra & Others V Arun Gulab Gawali & Others, Criminal Appeal No. 590 of 2007. The grounds are as follows:(i)Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;(ii)Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;(iii)Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and(iv)Where the allegations constitute an offence alleged but there is either no legal evidence adduced clearly or manifestly fails to prove the charge.The court went on to state that:The power of quashing criminal proceedings has to be exercised very sparingly with circumspection and that too in the rarest of rare cases.

37. This Court may stop or quash criminal proceedings in the interests of the ends of justice or where the proceedings are an abuse of the court process of the court or that the quashing of the impugned proceedings would secure the ends of justice. This Court may also intervene where the allegations against an accused person do not disclose an offence or there is no legal evidence to prove the same.

38. As demonstrated herein, the supervisory jurisdiction of this Court over a trial court is not in question. It is entrenched in Article 165 (6) which provides:The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior courtFor the purpose of exercising its aforesaid supervisory jurisdiction, Clause 7 provides:For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

39. The Petitioner seeks that the Court invokes its jurisdiction under Article 165(6) and (7) to call for the record in the criminal case and quash the proceedings. Although this Court has such power, it must be deployed sparingly and in exceptional circumstances. Stay of criminal proceedings is not given as a matter of course. The supervisory jurisdiction of this Court should not be used as a tool for unduly interfering with the exercise by a court of competent jurisdiction, of its mandate. This Court must also be careful not to be used to curtail and scuttle the proceedings in the criminal case, in the name of exercising its supervisory jurisdiction.

40. The Court of Appeal considered the question of stay of proceedings in the case of Goddy Mwakio & another v Republic [2011] eKLR, and stated:An order for stay of proceedings, particularly stay of criminal proceedings is made sparingly and only in exceptional circumstances (see Halsbury’s Laws of England, 4th Edition Re-issue page 290 paragraph 926). The order is not given as a matter of course.

41. In Halsbury’s Law of England, 4th Edition, Vol 37 page 330 and 332, it is stated that:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue…. This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases…..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.

42. On the issue of stay of proceedings, I adopt the sentiments of Mwongo, J. who is the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] eKLR, stated:151. Where, or if, it is intended to exercise Supervisory Jurisdiction under the Constitution, I think the following safeguards should be observed:i.A balance has to be struck in the exercise of constitutional Supervisory Jurisdiction to ensure there is no appearance that its object is to micro- manage the trial court’s independence in the conduct and management of its proceedingsii.Ideally, constitutional Supervisory Jurisdiction should be exercised only after the parties are heard on the subject matter in questioniii.Supervisory Jurisdiction should not be used where the option of revision is appropriate or applicable;iv.Supervisory Jurisdiction should not be used as a shortcut for an appeal where circumstances for appeal clearly pertain and are more appropriate;v.Supervisory Jurisdiction should be exercised to achieve the promotion of the public interest and public confidence in the administration of justice;

43. The supervisory jurisdiction of this Court to stop criminal proceedings should only be exercised to achieve the promotion of the public interest and public confidence in the administration of justice. An applicant must demonstrate that the proceedings beyond all reasonable doubt, ought not to be allowed to continue. Stopping prosecution before parties are heard only goes to erode public confidence in the administration of justice.

Whether the Petitioner is entitled to exemplary, punitive and general damages against the respondents 44. The Petitioner seeks exemplary, punitive and general damages against the Respondents.

45. Article 23 (3) of the Constitution provides the following remedies;In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.

46. On this issue, it bears repeating that any finding made by this Court on the claim by the Petitioner will jeopardize and prejudice the proceedings in the criminal case. Accordingly, the Court will not make any finding on this prayer.

47. Having considered the foregoing, I decline to pronounce myself on the issues raised in this Petition as this would interfere with, and preempt the criminal proceedings pending before the trial court and the outcome thereof. It therefore follows that the Petition dated 21. 6.19 cannot stand. The same is hereby struck out. Given that the matter between the parties is not concluded, I direct that each party bears own costs.

DATED AND DELIVERED IN NAIROBI THIS 9TH DAY OF DECEMBER, 2022. M. THANDEJUDGEIn the presence of:-…………………………………… for the Petitioner…………………………………… for the 1st Respondent…………………………………… for the 2nd Respondent…………………………………… for the Interested Party…………………………………… Court Assistant