[2022] KEHC 12705 (KLR)

Litiema v Directorate of Criminal Investigations-Kakamega & 2 others (Criminal Miscellaneous Application E099 of 2021) [2022] KEHC 12705 (KLR) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12705 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Miscellaneous Application E099 of 2021

PJO Otieno, J

June 17, 2022

Between

Johnson Simiyu Litiema

Applicant

and

Directorate of Criminal Investigations-Kakamega

1st Respondent

Ocs Kakamega Police Station

2nd Respondent

Masinde Muliro University of Science And Technology

3rd Respondent

Ruling

1. By a notice of motion application dated December 14, 2021, the applicant seeks a total of six orders. Prayers a, b, and c were intended to be interlocutory and are not available for consideration now that a final determination is being rendered. The substantive prayers sought orders that; the 1st respondent be restrained from intimidating, harassing and/or in any way whatsoever limiting the applicant’s freedom of movement association and privacy; that the officer commanding station, Kakamega, be ordered by this court to refund the cash bail of Kshs 10,000/- (Ten Thousand shillings only) to the applicant and that the 1st respondent, Directorate of Criminal Investigation, Kakamega, be ordered by the court to hand over two mobile phones to wit; Samsung Galaxy A12 and Augtel android phone back to the applicant.

2. The application is not brought pursuant to any laws though it is premised on the supporting affidavit of Johnson Simiyu Litiema sworn on December 14, 2021 and grounds inter alia that the applicant was arrested by the DCIO kakamega on December 10, 2021 at 3 pm and taken to the Kakamega police station where he was released on police bond on December 11, 2021. He was informed that the complainant was the 3rd respondent whose allegation was the publication by the applicant of abusive content in a WhatsApp group by the name “MMUST LIBERATION FRONT.” His complaint is that since then no charges have been preferred against him and that his cash bail and telephone handsets remain withheld.

3. By way of a replying affidavit sworn by No 74xxx Sgt Jackson Chacha on December 21, 2021, the 1st respondent asserts that two mobile phones, which are exhibits, were confiscated from the applicant and forwarded for forensic analysis to the Directorate of Criminal Investigations headquarters in Nairobi for analysis in pursuit of a possible charge of criminal defamation.

4. In response to the subject application, the 3rd respondent filed its replying affidavit sworn by Norman Magaya on January 21, 2022 in which he depones that the applicant has been persistent in publishing subversive articles against the 3rd respondent, the applicant’s former employer despite the existence of a suit against the applicant namely Mumias CMCC No E5 of 2021- Masinde Muliro University of Science and Technology vs Johnson Litiema & 5 others.

5. The applicant filed a response to the 3rd defendant’s replying affidavit being a replying affidavit sworn on February 8, 2022 in which he contends that the 3rd respondent cannot purport to transfer a case before this court to the Directorate of Criminal investigations by discussing cases pending before the court.

Applicant’s Submissions 6. It is the submission of the applicant that his arrest, incarceration and not being presented in court within stipulated timelines amounts to a false arrest and a contravention of Articles 29 and 49 of the Constitution of Kenya, 2010. He relied on the case of Daniel Waweru Njoroge & 17 Others v Attorney General [2015]eKLR where the court held;“False arrest which is a civil wrong consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest is sometimes used interchangeably with the tort of false imprisonment, and a false arrest is one method of committing a false imprisonment. A false arrest must be perpetuated by one who asserts that he or she is acting pursuant to legal authority, whereas a false imprisonment is any unlawful confinement. Thus, where a police officer arrests a person without probable cause or reasonable basis, the officer is said to have committed a tort of false arrest and confinement. Thus, false imprisonment may be defined as an act of the defendant which causes the unlawful confinement of the plaintiff. False imprisonment is an intentional tort.”

1st and 2nd Respondent’s Submissions 7. The 1st and 2nd respondent’s submissions identified two issues for determination by this court namely i) whether the applicant’s arrest, interrogation and detention violated his constitutional rights as envisaged under Article 29 and 49 of the constitution and ii) whether the honourable court can give directions and/or interfere with the ongoing investigations.

8. On the issue of whether the applicant’s arrest, interrogation and detention violated his constitutional rights as envisaged under Article 29 and 49 of the constitution, the 1st and 2nd respondents submit that the arrest and detention of the applicant was well within their powers as stipulated under section 29 of the criminal procedure code which allows the police to arrest without a warrant for cognizable offences and section 36 of the criminal procedure code which provides;“When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:”

9. On the issue of whether this honourable court can give directions and/or interfere with the ongoing investigations, the 1st and 2nd respond submit that the applicant’s phones are the key evidence in this case and that the same have taken for forensic analysis. To support their authority and power to seize the two phones they relied on the case of Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016]eKLRwhere the court held;“It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and 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.”

3rd Respondent’s Submissions 10. It is the submission of the 3rd respondent that the subject application is an abuse of the court process since the applicant ought to have filed a constitutional petition. They further submit that section 35 of the National Police Service Act clothes the DPP and the DCI with powers of investigation which include a) to collect and provide criminal intelligence and b) to undertake investigations homicide, narcotic crimes, human trafficking, money laundering, terrorism and economic crimes, privacy organized crime and cybercrimes among others.

Issues 11. This court has considered the application, responses and submissions offered by the parties and discerns that a single issue to present itself for determination. The issue is whether this court ought to interfere with the investigations of the police.

Analysis 12. The application essentially challenges the power of the police service to retain his cash bail and confiscated telephone handsets. It ought to have been by a substantive petition or a judicial review application. That notwithstanding, the court is empowered by the constitution to consider every petition however presented and even an informal note may suffice to move the court.

13. The power of the national police service to conduct investigations is set out in section 24 of the National Police Service Act No 11 A of 2011 which lists the functions of the police as being: -“The functions of the Kenya Police Service shall be the—(a)provision of assistance to the public when in need;(b)maintenance of law and order;(c)preservation of peace;(d)protection of life and property;(e)investigation of crimes;(f)collection of criminal intelligence;(g)prevention and detection of crime;(h)apprehension of offenders;(i)enforcement of all laws and regulations with which it is charged; and(j)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.”

14. To give meaning and understanding to the role of the police to investigate crimes, this court is guided by the decision in Commissioner Of Police & The Director Of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others[2013] eKLR where the Court of Appeal observed: -“For the purpose of this appeal, we shall focus on the role of police in the investigation of crime and the extent, if at all, to which the court can interfere with this function bearing in mind that police efforts to investigate crime and collect evidence represent the very foundation of the criminal justice system. Article 157 (4) and (11) of the Constitution underscores this point. It provides that:-“4. The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.……………………..11. In exercising the powers conferred by this Article, the Director of Public Prosecutions shall 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.” (our emphasis supplied).Article 245 (4) (a) of the Constitution on the other hand provides that:-“245(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to-The investigation of any particular offence or offences. (Emphasis).”

15. The role of the police to conduct investigations is thus wide acquiring its foundation from both statutes and the constitution. However, care ought to be exercised by the police having regard to the interest of the administration of justice and the need to prevent and avoid the abuse of the statutory duty and mandate. The police should not be used by any person whether natural or legal to pursue ulterior motives and scores away from prevention of crime and due administration of criminal justice.

16. In the instant case, this court does not find any infringement on the applicant’s constitutional rights following his arrest since the applicant was arrested on December 10, 2021, a Friday, and released on December 11, 2021 on police bail on condition that he appears in court on December 14, 2021.

17. On his arrest, it is not disputed that the police seized two of the applicant’s phones which the police believed were used to post defamatory remarks against the 3rd respondent by the applicant. The 1st and 2nd respondent have indicated that the phones were forwarded to their Nairobi office for forensic analysis in order to advise on the offence they shall formally charge the applicant with while applicant contends that he uses the phones to run his taxi business through which customers are able to request for trips.

18. This court takes note that it’s almost six months since the applicant’s phones were seized and the applicant is yet to be formally charged. The 1st and 2nd respondent have not explained why it has taken long to formally charge the applicant and that in itself raises eyebrows.

19. The discretion of the police to conduct investigations ought to be properly exercised by avoiding the possible perception that they are executing a punishment before one is tried and convicted. Unless the police act in a reasonable manner and in accordance with the law under the constitution and the Fair Administration Actions Act, this court will not shy to intervene.

20. Both parties agree on the existence of Kakamega CMCC No 168 of 2018 and Mumias SRcM Civil Suit No E5 of 2021. MMUST vs Johnson Simiyu Litiema & 5 others and as still pending in court and touching on issues giving rise to this application.

21. This court notes that the concurrent existence of criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim. The court is persuaded in that position by the decision in Thomas Nyakambi Maosa v Kibera Chief Magistrate & 3 others[2015] eKLR where Odunga J held;“Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim. section 193A of the Criminal Procedure Code on this issue provides:Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”

22. It is the view of this court that granting the orders sought by the applicant amounts to curtailing the police from undertaking their investigatory powers and courts should be reluctant to interfere with the investigative powers of the police unless the same is seen to be an abuse of the court process. In Republic v Commissioner of Police and Another ex parte Michael Monari & Another[2012] the court held;“The police have a duty to 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. 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”.44. It is therefore clear that whereas the discretion given to the 2nd respondent to investigate criminal offences is not to be lightly interfered with, that discretion must be properly exercised and where the court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence, the court will not hesitate to bring such proceedings to a halt. However, it must be emphasised that judicial review applications do not deal with the merits of the case but only with the process. The court in judicial review proceedings is mainly concerned with the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the court is satisfied that the same arebona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the powers of the police by halting otherwise proper complaints made before them. In this case, it is clear that there is already in existence criminal proceedings in which the applicant herein is the complainant.45. In my view, the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed it must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. Although it was alleged that the criminal investigations the subject of these proceedings have been commenced to undermine the integrity of the High Court rulings and orders and to aid other parties on matters already determined by courts of competent jurisdiction thereby abusing the criminal justice system, the applicant has failed to elaborate on how this scheme is meant to be achieved. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and 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.46. In this case the effect of the grant of the orders sought would be to restrain the police from undertaking their investigatory powers. In my view the decision by a court to halt investigations from being conducted ought to be exercised very cautiously and in very clear cases where the court is satisfied that the continued investigations are likely render the proceedings before it an academic exercise. In other words, the court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial.”

23. That said, the investigative powers of the police ought to be exercised cognizant of the rights of both the complainant and the accused person and aimed at achieving the mandate to maintenance of the law and order and due administration of criminal justice. Having identified that the forensic analysis on the applicant’s phone has taken almost six months without the applicant being formally charged, this court finds the delay unreasonable and inexcusable. It would however be premature to allow the applicant’s application without allowing the police to complete its investigations. It would equally be unfair not to allow the police a limited time, viewed reasonable to complete investigations in order to decide whether to formally charge the applicant. The court takes the view that it is desirable to balance the police duty to maintain law and order as against the rights of the applicant. In doing so the court gives the police a period of 60 days from the date of this decision to whether or not it shall prefer any criminal charges against the applicant.

Rendition and Final Orders 24. Accordingly, for the reasons set out above, this court finds that the period taken to make a decision over the applicant is not reasonable and may not pass the test of fair administrative action. The applicant has however not sought such a remedy. The court therefore finds that the 1st and 2nd respondents shall move with haste, completes investigations within 60 days and decide whether or not charge the applicant.

25. The 1st and 2nd respondent are therefore directed to formally decide on whether or not they would prefer any charges against the applicant within 60 days from the date of this ruling. If there shall failure in that regard, the investigations shall be deemed terminated and the applicant shall, forthwith on the August 17, 2022 be entitled to full refund of his cash bail and return of the two telephone handsets.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, ONLINE, THIS 17TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Applicant in personMs. Chala for the 1st and 2nd RespondentsNo appearance for the 3rd RespondentCourt Assistant: Kulubi