[2023] KEHC 25923 (KLR)

Kiplagat v Director of Public Prosecutions & another; Korir (Interested Party) (Petition E019 of 2023) [2023] KEHC 25923 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25923 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition E019 of 2023

PM Mulwa, J

November 29, 2023

IN THE MATTER OF ARTICLES 10, 19, 20, 21. 22(1), 23(1) & (3), 25(C) 27(1)(2), 28, 29(a, d) 157, 159(2) (a, e) 165 (3) (b, d) 258, AND 259 OF THE CONSTITUTION OF KENYA IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLES 259(C), 27(1)(2), 28, 29 (a, d), 47 & 50 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE ABUSE OF THE POWERS OF THE DIRECTOR OF PUBLIC PROSECUTIONS CONFERRED UNDER ARTICLES 157 OF THE CONSTITUTION OF KENYA

Between

Jane Kiplagat

Petitioner

and

The Director of Public Prosecutions

1st Respondent

Directorate of Criminal Investigation

2nd Respondent

and

Dennis Kiprono Korir

Interested Party

Judgment

1. The background of the matter is that the Petitioner and the Interested Party were husband and wife but are currently divorced. The petition involves a family dispute and revolves around the distribution of the matrimonial property. The Petitioner avers that she was arrested on 27th June 2022 by the investigating officer on the directions of the Interested Party on allegations of malicious damage to property where the complainant alleged bleaching of his clothes while at the police station. That she was ordered to hand over the car keys which she failed to and was released on a police cash bail of Kshs 20,000/=.

2. The Petitioner (Jane Kiplagat) filed this petition dated 5th May 2023 against the Respondents seeking the following orders:i.A declaration be and is hereby issued that investigations on the Petitioner by the DCI and the DPP’s institution of criminal proceedings against the Petitioner in relation to malicious damage to property on 27th June 2022 violated the Petitioner’s constitutional rights, is an abuse of the process of the court and therefore unlawful, null and void ab initio.ii.An order of certiorari be and is hereby issued to quash the charge sheet or proceedings against the Petitioner in relation to malicious destruction of property.iii.An order of prohibition be and is hereby issued prohibiting the respondents from proceeding with the prosecution of the Petitioner in relation to malicious destruction of property.iv.Costs of the petition.

3. The petitioner’s case is that attempts made to resolve the matter through the family have borne no fruit. According to the Petitioner, the 2nd Respondent’s office has been used for revenge and the 1st Respondent in the absence of sufficient evidence proceeded to charge the Petitioner. The institution of the criminal charges is aimed at harassing and intimidating the Petitioner to withdraw the divorce case, matrimonial case and the children case. The Petitioner states that the police at Lower Kabete failed to act on her report about her stolen phone which she made vide OB No 04/04/06/2022. The Petitioner proposes the matter be referred to ADR and the parties be allowed to pursue an out-of-court settlement. The Petitioner avers that proceeding with the charges against her is an infringement of her right to fair administration action and is discriminative.

4. The Petitioner states the charges brought against her lack a proper factual basis and foundation as there is no iota of evidence linking the Petitioner to the activities giving rise to the alleged offence. The issues culminating in the Kikuyu Criminal Case No. E514 of 2022 revolve around matrimonial property and can be determined in the matrimonial case. That the actions of the 1st Respondent are an abuse of power and arbitrary exercise of authority.

5. The petition was supported by the affidavit of the Petitioner sworn on 5th May 2023 reiterating the averments of the petition.

6. On 10th July 2023 Mr. Muriuki learned counsel for the Respondents informed the court that he did not wish to respond to the petition and left it for the court to make its determination. The court directed that the Petitioner put in written submissions.

Petitioner’s Submissions 7. Mr Mulama learned counsel for the Petitioner submitted that the prosecution had not adduced proof of the perpetrator who bleached the complainant’s clothes and that the continuation of the proceedings against the Petitioner is an outright infringement of her rights to fair administrative action as provided under Article 47 of the Constitution and premised on an improper exercise of the 1st Respondent authority as set out in Article 157 of the Constitution of Kenya.

8. Counsel argued that the criminal case at Kikuyu Magistrate’s court was aimed at coercing the Petitioner into withdrawing the children’s maintenance case as well as surrendering the matrimonial property to the Interested Party.

9. It was submitted that in Article 27(1) of the Constitution every person is equal before the law and has equal protection and benefit of the law. That the Respondents are abusing their powers in criminalizing the action by the Petitioner in filing the children maintenance case.

10. Counsel stated that the Respondents had failed to adhere to the national values and principles of governance as enshrined in Article 10(2) of the Constitution and had abused their powers and mandate. The court was urged to allow the petition as prayed.

Analysis And Determination 11. I have considered the petition as well as the submissions filed and in my view the issue for consideration is whether the arrest and prosecution of the Petitioner in Kikuyu MCCR No E514 of 2022 is illegal and unlawful or actuated by malice to violate the Petitioner’s rights.

12. Article 27 of the Constitution embodies the principle of equality and non-discrimination thus:“(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law…(4)The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”

13. Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary arrest and detention. The use of the term, “arbitrary” simply covers unjustifiable deprivation of liberty rather than seeking to list exhaustively all permissible causes of deprivation of liberty.

14. It is trite law that rights enshrined in the Constitution must be enjoyed by all human beings in equal measure. the Constitution also prohibits discrimination. The Petitioner avers she has been discriminated against as the Respondents are being used to harass her to relinquish her interest in the matrimonial property and the child maintenance case.

15. The Petitioner further argues that her arrest and prosecution are unlawful as the same is geared at coercing her to relinquish her rights to continue with the child maintenance case as well as surrender the matrimonial property, being a home and car to the Interested Party.

16. This petition, no doubt, revolves around estranged couple who are in the process of finalizing a divorce process. It follows that some amount of bitterness and jealousy is imminent.

17. The Respondents are state organs which are bound by the national values and principles enumerated in Article 10(2) of the Constitution of Kenya.

18. I am alive to the fact that the court ought not to usurp the constitutional mandate of the Respondents to investigate crimes and initiate criminal proceedings respectively, provided the same is done justifiably. This position was adopted in the case of Michael Monari & another v Commissioner of Police & 3 others, Misc Application No 68 of 2011.

19. The 1st and 2nd Respondents being independent institutions established under the Constitution, the court can only interfere with or interrogate their actions where there is contravention of the Constitution. In Paul Ng’ang’a Nyaga v Attorney General & 3 Others (2013) eKLR, it was held that: “…this court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.”

20. The Respondents did not file a response to the Petition therefore the averments of the petition remain unchallenged. The Petitioner avers her prosecution is not of public interest and is against administrative justice as it is aimed at settling scores between individual parties. She argued the court has on numerous occasions advised that the matter proceeds through ADR but the complainant has ignored and/or disregarded the same and only continues to issue ultimatums that the Petitioner ought to withdraw the children’s case and relinquish her matrimonial property to the Interested Party.

21. In Republic v Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR the Court held that: “… the police must investigate on any complaint 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...As long as the prosecution and those charged with the responsibility of making the decisions to charge act reasonably, the High Court would be reluctant to intervene.”

22. In my view, the investigations and decision to charge by the Respondents are based on mere suspicion that the Petitioner may have bleached the interested Party’s clothes. The decision to charge and proceed with the prosecution is questionable as the Respondents seem to be aiding the complainant to harass and intimidate the Petitioner. This is an abuse of the legal process.

23. In the circumstances therefore, this is a case where the court will interfere with the mandate of the Respondents and exercise its discretion and quash the criminal proceedings in the case at Kikuyu magistrates court.

24. Article 159(1) and (2)(c) of the Constitution provide:159. (1)Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—a.…b.…c.alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

25. Parties ought to be given an opportunity to settle any dispute through Alternative Dispute Resolution (ADR). This court, while considering the nature of the dispute between the Petitioner and the Interested Party and in the promotion of ADR, make a finding that this is a proper dispute to which ought to be subjected to the alternative justice system process.

26. In the upshot, the court makes the following orders:i.A declaration be and is hereby issued that the investigations on the Petitioner by the DCI and the DPP’s institution of criminal proceedings against the Petitioner on 27th June 2022 are unconstitutional, unlawful, irregular and unfair.ii.An order of certiorari be and is hereby issued to quash the charge sheet and/or proceedings against the Petitioner in Kikuyu Criminal Case - MCCR No E514 of 2022. iii.An order of prohibition be and is hereby issued prohibiting the respondents from proceeding with the prosecution of the Petitioner in Kikuyu Criminal Case - MCCR No E514 of 2022. iv.Costs of the petition to be borne by the Respondents.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED ATKIAMBU THIS 29TH DAY OF NOVEMBER 2023. P.M. MULWAJUDGEIn the presence of:Mr. Mulama - for the PetitionerMr. Gacharia - for the RespondentDuale/KinyuaCourt Assistants