[2017] KEHC 9100 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.214 OF 2015

(An Appeal arising out of the conviction and sentence of Hon. M. Mutuku (SPM) delivered on 14th July 2015 in Nairobi CM. PP. Case No.3 of 2014)

LEONARD GETHOI KAMWETI.………………….…….………APPELLANT

VERSUS

MOHAMED ABDIRAHMAN HASSAN…………........….1ST RESPONDENT

MUNIR SHEIKH AHMED……………………………...…2NDRESPONDENT

JUDGMENT

The Appellant, Leonard Gethoi Kamweti was aggrieved by the decision of the trial court (Hon. M. Mutuku SPM) in which she declined to grant him leave to institute private prosecution against the Respondents. In the material part of the Ruling, the learned magistrate held thus:

“After analysing the facts presented before me, I find that the application is not merited. Though the charges as drawn disclose an offence known to law, the essential ingredients of the offence based on the particulars presented before the court are not prima facie present. I am not persuaded to issue summons to the 1st and 2nd Intended persons (sic). Consequently leave to conduct a private prosecution against the intended 1st and 2nd accused being respectively Mohamed Abdirahman Hassan and Munir Sheikh Ahmed is denied.”

The Appellant filed an appeal to this court against the said decision.

In his petition of appeal, the Appellant raised several grounds of appeal which can be summarized thus: He was aggrieved that the trial court ignored clear and uncontroverted audio and documentary evidence which pointed to the Respondents’ criminal conduct in interfering and subverting a lawful judicial process. He faulted the trial magistrate for failing to consider the fact that the evidence placed on record established mens rea on the part of the Respondents and therefore the trial court should have granted him leave to institute private criminal prosecution against the Respondents. The Appellant took issue with the trial court’s failure to appreciate the fact that the Director of Public Prosecutions had failed to prosecute the Respondents despite being availed evidence, which, prima facie, pointed to the Respondents’ criminal conduct. The Appellant accused the trial magistrate for giving undue weight to the fact that there existed a labour dispute that the Appellant had lodged at the Employment and Labour Relations Court and thereby erroneously and mistakenly denied the Appellant leave to institute private criminal prosecutions. The Appellant stated that the evidence that he had placed before the trial magistrate met the threshold required by the law for the trial magistrate to grant him leave to institute private prosecution. In the premises therefore, the Appellant urged the court to allow the appeal, set aside the decision of the trial court and substitute it with an order of this court granting him leave to institute private prosecution against the Respondents in accordance with the charge sheet that he presented to court.

Prior to the hearing of the appeal, the parties agreed to file written submission in support of their respective opposing positions. The written submission were duly filed and exchanged. This court heard oral rival submission made by the Appellant who was acting in person, by Mr. Okoth for the 1st Respondent, by Mr. Wena for the 2nd Respondent and by Ms. Aluda for the State. The Appellant submitted that he lodged a complaint with the Advocate Complaints Commission against an advocate, who was then acting for National Bank of Kenya Limited (the Bank) for disclosing privileged advocate-client communication. The Appellant was then the Corporation Secretary of the Bank. The Respondents, who were then the top managers of the Bank, applied pressure on him to withdraw the complaint against the advocate. The Appellant was of the opinion that this pressure amounted to interference with due process. He submitted that the demand by the Respondents that he withdraws the complaint against the advocate was infact criminal hence his decision to lodge a complaint with the police. He subsequently sought the intervention of the Director of Public Prosecutions to have the Respondents charged with the offences relating to administration of justice. The Appellant explained that as a result of his pursuit of the complaint before the Advocates Complaint Commission, he was terminated from employment by the Respondents. The Appellant told the court that he had evidence both audio and documentary which proves that indeed the Respondents committed the criminal offences in question and hence should be charged. His effort to have the Respondents charged by the police and by the Director of Public Prosecutions had met with resistance. He decided to mount a private prosecution against the Respondents. The Appellant submitted that the trial magistrate ignored the evidence and the applicable law in denying him the right to institute private prosecution against the Respondents. He therefore urged the court to allow the appeal.

The Respondents and the State opposed the appeal. Their opposition to the appeal can be summarized thus: The Appellant placed no cogent evidence before the court that would persuade the court to grant him leave to institute private criminal prosecution against the Respondents. The Appellant had failed to prove to the satisfaction of the court that the police and the Director of Public Prosecutions failed to reasonably exercise their mandates by refusing to take up the complaint lodged by the Appellant and have the Respondents prosecuted as proposed by the Appellant. They argued that the Appellant’s complaint related essentially to a labour dispute between the Appellant and the Bank. The Appellant had done the correct thing by filing a suit before the Employment and Labour Relations Court. The Court had infact rendered judgment in the Appellant’s favour after it found that the Appellant was unfairly terminated from employment. There were no grounds upon which this court can find that the Appellant established a case for this court to grant him leave to institute private prosecution against the Respondents. They urged the court to dismiss the appeal.

This being a first appeal, this court is required to re-evaluate and reconsider afresh the arguments placed before the trial court before reaching its own independent determination whether or not to uphold the decision of the trial court. In the present appeal, the issue for determination by this court is whether the Appellant placed sufficient material before the trial court that would entitle this court to grant it leave to institute private prosecution against the Respondents.

It was apparent that the Appellant predicated his application before the trial court for leave to institute private criminal prosecution against the Respondents on Article 157 of the Constitution, Sections 88, 89 and 90of the Criminal Procedure Code and Section 28 of the Office of the Director of Public Prosecutions Act. There is no dispute that any person may be granted leave to institute private prosecution provided such person is able to establish certain conditions precedent. These conditions were set out in the case of Floriculture International Limited & Others –vs- The Attorney General Nairobi High Court Miscellaneous Civil Application No.114 of 1997 and were reiterated, with modifications, in Nairobi High Court Petition No.339 of 2013 Isaac Oluochier -vs- Stephen Kalonzo Musyoka & 217 Others. In this case, Mumbi Ngugi J citing Kuloba J (as he was then) in the Floriculture Case held that for a person to be granted leave to institute private prosecution, he must establish that he had made a complaint to the police and had accorded reasonable opportunity for the police to investigate the case; that the Director of Public Prosecutions had been seized of the case and had declined to institute or conduct criminal proceedings; that the failure by the State agencies to prosecute is culpable, unreasonable and without any legally justifiable reason; that unless the suspect is prosecuted there is likelihood there will be failure of public and private justice; that the person instituting private prosecution has suffered special, exceptional and substantial injury or damage that is personal to him and is not motivated by malice, politics or some other ulterior consideration devoid of good faith, and finally, that there was demonstrable ground that grave social evil will occur if the police and the Director of Public Prosecutions have acted capriciously, corruptly and in a biased manner that the only remedy is to grant leave to the aggrieved party to institute private prosecution.

In the present appeal, it was clear to the court that the dispute between the Appellant and the Respondents, who were then the top managers of the Bank where the Appellant was an employee, was their decision to side with their then external advocate in a dispute that he had with the Appellant. The Appellant was instructed to withdraw the complaint against the advocate that he had lodged before the Advocates Complaint Commission. The Appellant refused to abide by this direction. This was one of the reasons that led to the termination of the Appellant’s employment from the Bank. According to the Appellant, when the Respondents instructed him and also put pressure on him to withdraw the complaint that he had lodged against the advocate before the Advocates Complaint Commission, they were contravening the law. In particular, they were obstructing the due administration of justice. The Appellant’s take therefore was that such conduct was criminal and therefore the Respondents should be prosecuted. The Appellant’s effort to have the police and the Director of Criminal Prosecutions take action had been frustrated by the said agencies inaction or disinterest; hence his decision to seek leave of the trial magistrate to institute private criminal prosecution. The Respondents were of a contrary view. They urged the court to find that the dispute between the Appellant and the Respondents was essentially a labour dispute which had been resolved by the Employment and Labour Relations Court. The Respondents had not committed any criminal act to warrant their prosecution by the Director of Public Prosecutions.

This court’s re-evaluation of the facts of this case leads it to the determination that indeed the basis upon which the Appellant lodged the complaint against the Respondents was a labour dispute. The Appellant was terminated from employment, for among other reasons, failing to comply with the instructions given to him by the Respondents. As was noted by Wasilwa J in a case that the Appellant had filed against the Bank (Leonard Gathoi Kamweti v National Bank of Kenya Limited & 2 Others [2016] eKLR):

“58. It was from this transcription that the claimant told Court that he was early retired for reasons other than the exercise of the early retirement provision in the Respondent’s HR Manual and the real reasons are evidence that the Respondent’s felt that he was not obeying certain instructions.

59. From this reading, it emerges that the early retirement of the Claimant was not exercised fairly with as open manner and in a judicious manner and was therefore unfair and unlawful.

60. The Respondents have not demonstrated that they exercised this discretion objectively as the Respondent’s witness only stated that they chose to use the HR Manual provisions to retire the claimant early and the witness was not able to assign any reason for this decision.”

It was instructive that, apart from the Bank, the Appellant sued the two Respondents in this case in the Employment and Labour Relations case. The evidence that the Appellant presented before the Employment and Labour Relations Court is the same evidence that the Appellant presented before the trial magistrate’s court in his bid to obtain leave to institute private criminal prosecution against the Respondents. After re-evaluating the evidence placed before this court, the submission of the parties, and the applicable law, it was clear to this court that the Appellant in seeking to institute private criminal prosecution against the Respondents, is infact advancing his claim of unfair dismissal which was dealt with by the Employment and Labour Relations Court into the realm of criminal law.

This court is not persuaded by the argument advanced by the Appellant to the effect that he is seeking to institute private criminal prosecution against the Respondents for the sole interest of advancing the cause of public justice in bringing culprits to face the law. This court is not convinced that the Appellant has no ulterior motive as noted in the Floriculture case. Further, this court was not persuaded that the Appellant explored other available remedies other than seeking to institute private criminal prosecution against the Respondents. The thrust of the Appellant’s appeal is that Respondents breached the law when they applied pressure on him to withdraw the complaint that he had lodged against an advocate before the Advocates Complaint Commission. If that was the case, now that the Appellant is not an employee of the Bank, what is preventing him from prosecuting the complaint before the Advocates Complaint Commission?

It is clear from the above reasons that the Appellant’s appeal cannot be allowed. The police and the Director of Public Prosecutions properly exercised their mandates in declining to take up the complaint by the Appellant. The Appellant did not establish to the satisfaction of this court that the police or the Director of Public Prosecutions acted capriciously or unreasonably in declining to prosecute the complaint that he had lodged against the Respondents. The Appeal lacks merit and is hereby dismissed.

DATED AT NAIROBI THIS 11TH DAY OF JULY 2017

L. KIMARU

JUDGE