[2020] KEHC 4056 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 25 OF 2017

LUCY WANJIRU MUKU...................................................PETITIONER

VERSUS

KARL SALZMANN .................................................1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTION...........2ND RESPONDENT

AND

KARL SALZMANN LIMITED.......................1ST AFFECTED PARTY

VALERIA CHAO.............................................2ND AFFECTED PARTY

JUDGMENT

Introduction

1. By Petition dated and filed on the 5/5/2017, the Petitioner sought the following prayers:

a. A declaration that the Respondents have violated the Petitioner’s rights under Article 27, 28, 35 40 and 47 of the Constitution of Kenya, 2010 and Article 15 of the International Covenant on Economic, Social and cultural Rights.

b. General Damages for mental stress and torture and for violation of the Petitioner’s rights.

c. An order to quash Kwale Criminal Case No. 996 of 2015.

d. An order that the 2nd affected Party do forthwith move out of the house standing on L.R NO. KWALE/DIANI SS/2792.

e. A further order that the Petitioner has a right to live in the house standing on L.R NO. KWALE/DIANI SS/2792.

f. An order that the Petitioner is entitle to work and as the holder of 51 shares in the 1st Affected Party, the Petitioner is entitled to work in the said entity without the interference of the 1st Respondent.

g. That Mombasa Winding up Petition No.3 of 2015 be stayed and upon determination of this Petition, it be deemed that the Winding Up Petition No.3 of 2015 will abide the outcome of this matter.

h. An order that the Court do appoint a valuer to determine the net value of the 1st Affected Party so that whatever is the net value the Petitioner is entitled to 51% and the Respondent 49%.

i. The Honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice.

2. The Petitioner’s case is that she met the 1st Respondent while working in Germany in 2011, and they developed a love relationship which brought them both to Kenya, where they carried out certain joint investment. In 2012, the Petitioner and the 1st Respondent incorporated the 1st affected Party with the Petitioner being the majority shareholder holding 51 share while the 1st Respondent retained the remaining 49 shares. They also agreed to be drawing a salary of Kshs. 100,000/= each and expanded the business of the 1st Affected Party.

3. The Petitioner states that through the 1st Affected Party, they jointly bought a parcel of land known as L.R NO. KWALE/ DIANI SS/177. The said parcel was later on sub-divided into 11 portions among them being L.R NO. KWALE/DIANI SS/2792, on which their matrimonial home stands. The Petitioner states that even though they were never legally married, a presumption of marriage arises between her and the 1st Respondent by virtue of their long cohabitation.

4. The Petitioner avers that sometime in 2015, the 1st Respondent and the Petitioner were involved in a domestic dispute which culminated into a physical fight, in which they both sustained injuries. They were both treated and discharged from hospital, obtained P3 forms with the doctor’s report, and reported the matter to the police. However, the 2nd Respondent only preferred charges against the Petitioner in Kwale Criminal Case No. 996 of 2015.

5. The Petitioner states that after the domestic disputes, she tried to access her matrimonial home but she was denied entry, and the 1st Respondent ordered his guards to beat up and kick out the Petitioner from the matrimonial home. She reported the incident to the Diani police station where she recorded her statement. Once again, the 2nd Respondent only preferred charges against the guards/employees who had been ordered to assault her by the 1st Respondent in Kwale Criminal Case No. 1069 of 2015. The 1st Respondent was not charged and on the 23/2/2017, the said Kwale Criminal Case 1069 of 2015 was strangely dismissed for lack of her attendance yet the 2nd Respondent had neither notified her of the hearing date of the criminal case nor even informed her of the dismissal of Kwale Criminal Case 1069 of 2015.

6. It is the Petitioner’s case that there has been an open case of discrimination in the manner in which the criminal justice system has been applied by the 2nd Respondent. The 2nd Respondent has discriminated the Petitioner by making it difficult for her case to be registered and prosecuted while ensuring that the cases filed by the 1st Respondent proceed, which is contrary to Article 10, 27,47,157 & 244 of the Constitution which require officers like the 2nd Respondent to Act in an accountable and transparent manner so as to uphold the rule of law, transparency, accountability, and good governance.

7. The Petitioner further states that she has been locked out of her matrimonial home, and the 1st Respondent has been committing adultery in their matrimonial home with the 2nd Affected Party to the extent that the 2nd Affected Party has been using the Petitioner’s personal items including her bed which is the highest level of showing contempt and infringing on her right to dignity.

8. The Petitioner avers that in order to secure her interest in the 1st Affected Party, she filed Mombasa Winding Up Petition No.3 of 2015and Mombasa Environment & Land Case No. 210 of 2015. However, the winding up of the 1st Affected Party has stalled as it is impossible to come up with a Board Resolution on the status of the 1st Affected Party. Therefore, the Petitioner avers that they should not be locked out from pursuing redress for the infringement of her rights as demonstrated in this Petition. The Petitioner also avers that the 1st and 2nd Respondents have violated her fundamental rights in the following manner.

a. The 1st Respondent has violated her right to dignity and the right to property as provided under Article 28 and 40 of the Constitution as she has been denied access to her house, work place/investment, and reduced to a beggar.

b. The 1st Respondent has violated her right to work as provided under Article 15 of the International Covenant on Economic, Social and Cultural Rights by being denied access to the 1st Affected Party or its benefits.

c. The 1st Respondent has violated her right to information as provided under Article 35 of the Constitution as she has been denied information on the company.

d. The Petitioner states that the 2nd Respondent has violated Article 157 of the Constitution by acting as a puppet to the 1st Respondent.

e. The Petitioner alleges that the 2nd Respondent is in violation of Article 27 of the Constitution by discriminating her and using the criminal justice system too favor the Respondent.

9. The petition is supported by the Petitioner’s affidavit sworn on 5/6/2017.

The Response

The 1st Respondent’s Case

10. The 1st Respondent and the Affected Parties opposed the Petition through the Response to Petition sworn on 6/9/19 by the 1st Respondent’s. The 1st Respondent’s case is that the Petition is bad in law, frivolous and an abuse of the Court process and should be dismissed because it is contrary to Section 6 of the Civil Procedure Act Cap 21 and Article 165 of the Constitution, because it seeks the same/similar reliefs based on the same or similar facts in Mombasa High Court Winding up Petition No. 3 of 2015; Lucy Wanjiku Muku vs. Karl Salzmann Limited & another.

11. The 1st Respondent states that the Petition is full of mere allegations unsupported by any or any cogent evidence to demonstrate the violation of the right to personal dignity, the right to work, the right to access information and the right to property as alleged or at all and it seeks to compel the Director of Public prosecutions to exercise his prosecutorial discretion in a particular manner.

12. The 1st Respondent further states that the Petitioner is abusing the Court process as on the 4/4/2019, in Winding up Petition No. 3 of 2015,she communicated her desire to proceed with the hearing of the winding up case. Therefore, the Petitioner is pursuing the same remedies in two parallel proceedings and in fact, the Petitioner is using the Petition to obtain reliefs already denied in Winding up Petition No. 3 of 2015and it would be surprising if this Court sitting as a constitutional Court reaches a different conclusion based on the same facts.

13. The 1st Respondent states that the question of whether the property being referred to as the matrimonial property, can be determined in a civil suit. Further, the 1st Respondent states that the allegations of the Petitioner being secluded from the affairs of the 1st Affected Party are to be determined in Winding Up Petition No. 3 of 2015, and if proven, the winding up Court has the mandate to issue the appropriate orders.

14. On allegations of the 2nd Interested Party using the Petitioner’s personal belongings, the 1st Respondent states that vide letter dated 6/9/2018, the 1st Affected Party’s advocate requested the Petitioner to collect here personal belongings since nobody is using the said personal effects. However, instead of collecting her belongings, the Petitioner opted to threaten the 1st Respondent with criminal sanctions. Therefore, the allegations of infringement of the right to dignity by the Petitioner are baseless.

15. On the allegation of infringement of the Petitioner’s right to information, the 1st Respondent states that there has been no request from the Petitioner to the 1st Affected Party for any information. Secondly, the Petitioner has not demonstrated that the required information is for exercise or protection of any fundamental right or freedom and lastly, that all the information on the affairs of the 1st affected Party can be obtained through the civil process in winding up Petition 3 of 2015.

16. The 1st Respondent avers that by seeking to interfere with Kwale Criminal Case 996 of 2015, the Petitioner is in violation of Article 157 (10) of the Constitution and an invitation to this Court to superintend the manner in which the 2nd Respondent arrives at the decision to prefer charges against one suspect and not the other when there is no demonstration of abuse of discretion or power by the 2nd Respondent. The 1st Respondent also states that it is an abuse of the Court process to want to quash Court proceedings that have been in progress for over two years and the mere fact that Kwale Criminal Case No. 1069 of 2015 was dismissed for non-attendance cannot be a basis for interfering with a totally distinct criminal act.

The 2nd Respondent’s Case

17. The 2nd Respondent opposed the petition vide Replying Affidavit sworn on the 19/7/2017 by CPL. Charles Munyao, who was an Investigating Officer attached to Diani Police station. The 2nd Respondent states that the 1st Respondent reported an assault with a blunt object by his girlfriend on the 3/9/2015. The report was entered in the Occurrence Book (OB-20/3/9/2015) and he was issued with a P3 form before the commencement of investigations. Upon investigations, it was established and confirmed by witnesses (house helps) that the 1st Respondent was injured on his head by a mug thrown at him by the Petitioner. Further, the 2nd Respondent states that upon completion of investigation, the Petitioner was charged with the offence of Assault causing actual bodily harm contrary to Section 251 of the Penal Code.

18. In respect to Kwale Criminal Case No. 1069 of 2015, Republic vs. John Sakwa Opunde & another, the 2nd Respondent states that the Petitioner reported to the Diani police station vide OB 50/1/10/2015 that on the 1/10/2015, she had been forced out of her house by three security guards belonging to Ontrack Security and in the process of throwing her out, she sustained injuries on her right arm and left shoulder. The Petitioner was issued with a P3 form and the accused security guards were arrested and charged in Court on the 5/10/2015 with the offences of assault causing actual bodily harm contrary to Section 251 of the Penal Code and creating a disturbance in a manner likely to cause breach of peace contrary to Section 95(1)(b) of the penal code. The 2nd Respondent further states that from the time the case was registered in Court, the Petitioner never attended Court to give evidence; efforts to trace her were futile; and efforts by the prosecution to save the case by withdrawing it under Section 87 of the Criminal Procedure Code to trace the witnesses then file a fresh charge were thwarted by the Court as it ordered the matter to be withdrawn under Section 202 as read with Section 206 of the Criminal procedure code.

19. The 2nd Respondent’s case is that it is an independent constitutional office that is transparent and upholds the rule of law. Consequently, there has been no bias in prosecuting the two cases.

Submissions

20. The Petition was dispensed with via written submissions. The Petitioner filed her submissions on the 18/6/2018, and supplementary submissions on 8/5/2020. The 1st Respondent and the Affected parties filed submission on the 28/4/2020. The 2nd Respondent did not file submissions. Both the Petitioner and the 1st Respondent in their submission reiterated the contents of their respective pleadings.

21. Mr. Gikandi Learned Counsel for the Petitioner on the allegations of infringement of the Petitioner’s rights submitted that the 2nd Respondent has not acted in a transparent and accountable manner concerning the assault claim against the 1st Respondent since the 2nd Respondent was in a hurry to charge the Petitioner but failed to take action regarding a complaint made by the Petitioner. Counsel submitted that this is a clear demonstration of discrimination against the Petitioner. Counsel further submitted that since the 1st Respondent did not deny throwing out the Petitioner from her matrimonial home, and allowing the 2nd Affected party to use the Petitioner’s items, the allegations made by the Petitioner should be admitted as uncontroverted evidence pursuant to Linus Nganga Kiongo & 3 others vs. Town Council of Kikuyu [2012] eKLR.

22. On the issue of whether the Petition offends Article 165 (6) of the Constitution, Mr. Gikandi submitted that the mere fact that the Petition herein seeks orders similar to the order sought in Mombasa Winding up Petition No. 3 of 2015 does not make the petition a violation of Article 165(6) of the Constitution and for avoidance of doubt, the Petitioner has stated that she is pursuing prayer (g) of the Petition, which sought to stay Mombasa Winding Up Petition No. 3 of 2015 and the same cannot proceed because the Petitioner cannot obtain a certificate of compliance.

23. Mr. Kongere Learned Counsel for the 1st Respondent and Affected Parties reiterated the content of its response to Petition sworn on the 6/9/2019 and submitted that the 1st Respondent was justified in stating that a certificate of compliance was not a hindrance to the hearing of the winding up Petition. Counsel submitted that in fact, on the 4/4/2019 the parties in Mombasa Petition No. 3 of 2015 were directed by the Court to file their respective affidavits to enable the Court fix the Petition for hearing. Therefore, the Petitioner’s grievances touching on violation of her fundamental rights are already sought or can be sought in the Mombasa Winding Up Petition No. 3 of 2015. Counsel cited the case of David Ramogi & 4 other vs. The Cabinet Secretary Ministry of Energy & Petroleum & 7 others [2017] eKLR, where the Court held that it is not the sole preserve of the constitutional court to interpret the Constitution or deal with allegations of breach or threatened breach of the bill of rights.

24. On whether the Petitioner has proved the violations of her rights, Mr. Kongere submitted that the Petition is bereft of merit as the allegations of the violations of the right to personal dignity, the right to work, the right to access information and the right to property have been merely alleged but no tangible evidence has been presented to prove those allegations.

The Rejoinder

25. Mr. Gikandiin reply to the submission by Mr. Kongere submitted that this Court already held that the Petition prima facie showed constitutional issues not the subject matter of the other two suits filed by the Petitioner. This holding has not been appealed, set-aside and /or reviewed. Consequently, the 1st Respondent cannot question the very holding of this Court as it will amount to inviting this Court to sit on appeal of its own ruling dated 1/4/2019.

26. Counsel further submitted that the 2nd Respondent has not explained why they charged the Petitioner in Kwale Criminal Case No. 996 of 2015 and later decide to charge the two employees of the 1st Respondent in Kwale Criminal Case No. 1069 of 2015.

Determination

27. I have considered the respective pleadings and submissions of the parties, which I have set out above. I have also considered the issues that the parties have set out in their submissions as falling for determination in the matter. In my view, the said issues can be condensed as follows:

i. Whether the Petition is an abuse of the Court process.

ii. Whether the 2nd Respondent has violated the Petitioner’s rights in Kwale Criminal Case No. 996 of 2015.

iii. Whether the 2nd Respondent has violated the Petitioner’s rights Kwale Criminal Case No. 1069 of 2015

iv. Whether the Petitioner has proved violation of her rights by the 1st Respondent.

i. Whether the Petition is an abuse of the Court process.

28. On the issue of the petition being an abuse of process, this Court vide ruling delivered on the 1/4/2019 pronounced when it dismissed a Preliminary Objection to jurisdiction. The circumstances that led to that conclusion have not changed. Therefore, the Petition is not an abuse of the Court process.

ii. Whether the 2nd Respondent has violated the Petitioner’s rights Kwale Criminal Case No. 996 of 2015

29. The 2nd Respondent through CPL Munyao averred that witnesses who were the Petitioner and the 1st Respondent’s house helps recorded their statement and upon conclusion of their investigations, charges were preferred against the Petitioner. It is the opinion of this Court that the decision whether or not to institute criminal proceedings is made based on the evidence collected. Once the investigations established reasonable suspicion that a person committed a crime, he/she ought to be charged in a court of law. The rest is left to the courts of law. This position was set out in the case of Republic vs. Commissioner of Police ex- and another ex-parte Michael Monari & Another [2012] eKLR where it was held that:

“...the police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court…”

The court went on to state that: -

“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.”

30. Under Article 157(10) & (11) of the Constitution, it is stipulated as follows:

(10)The Director of Public Prosecutions 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.

(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.

31. It is also important to note that under Article 245 (4) (a) of the Constitution, "no person may give direction to the Inspector General with respect to the investigation of any offence or offences." Just like the constitutionally guaranteed independence of the DPP, this provision is aimed at ensuring that investigations are undertaken independently.

32. For this Court to interfere with the 2nd Respondent’s mandate, the Petitioner has to demonstrate and prove through evidence that the 2nd Respondent acted unreasonably or in abuse of its discretion in arriving at the decision to charge the Petitioner in Kwale Criminal Case No. 996 of 2016 and not the 1st Respondent. However, in this instance, there is no evidence by the Petitioner that the decision to charge her was motivated by other factors other than public interest in the administration of justice. In fact, the 2nd Respondent has demonstrated that it relied on evidence from the Petitioner’s house helps in deciding what charges were to preferred against the Petitioner. Consequently, this Court finds that there is no evidence before it to warrant its interference with the 2nd Respondent’s discretion. However, the discretion to charge and the maintenance of neutrality in the prosecution must be demonstrated throughout the life of the case, especially where two separate criminal proceedings are preferred against parties in a matrimonial relationship as I will show hereunder.

iii. Whether the 2ndRespondent has violated the Petitioner’s rights Kwale Criminal Case No. 1069 of 2015.

33. On the issue of Kwale Criminal Case No. 1069 of 2015,this Court did not see any evidence to prove that the security guards assaulted the Petitioner at the request of the 1st Respondent. Consequently, the Petitioner failed to prove abuse of discretion and/or that the 2nd Respondent decision to only charge the security guards was unreasonable and its allegations against the 2nd Respondent remains mere allegation.

34. In relation to Kwale Criminal Case No. 996 of 2015 and 1069 of 2015, it must be observed that these were cases founded upon the two married parties, the Petitioner and the 1st Respondent. They are cases arising out of a matrimonial disaffection. These are cases, which the police must investigate without any appearance of bias. They are cases, which the DPP must prosecute diligently and without any appearance of bias. Both are assault, one against the Petitioner, the other against the agents of the 1st Respondent. While the one against the Petitioner is ongoing, the one against the 1st Respondent’s agents has been terminated by Court due to alleged negligence of the DPP and the police.

35. The proceedings in Kwale Criminal Case No. 1069 of 2015annexed to the Replying Affidavit of the 2nd Respondent show that on 14/2/2017 the police file was not availed to the Court. The Learned Magistrate observed in the ruling of the Court that witnesses had not been bonded although the hearing date had been taken on 1/12/2016 and the prosecution had a lot of time to bond the witnesses. Clearly, the 2nd Respondent did not act in an accountable, credible, or transparent manner under Article 157 of the Constitution. Contrast this with Kwale Criminal Case No. 996 of 2015where it is clear that the prosecution’s scale is not balancing considering that both cases arise from matrimonial disharmony. The 2nd Respondent has not explained how Kwale Criminal Case No. 1069 of 2015 could be dismissed on their watch for lack of witnesses. They have not explained how they are able to sustain Kwale Criminal Case No. 996 of 2015. Clearly, there is an element of bias in the way the DPP has applied the law to deal with two parties in a matrimonial fight. Articles 10, 47 and 157 of the Constitution require diligence, honesty, transparency, and accountability of public officers while exercising their duties. It is the finding hereof that the Petitioner’s rights were violated by the 2nd Respondent. The right to be treated equally in the eyes of the law; this violation occasioned the Petitioner to suffer stress and distress, and was treated with discrimination. It is trite that those vested with power to manage institutions in the legal system are seen to be acting fairly. For this reason, the proceedings in Kwale Criminal Case 996 of 2015 cannot stand, while their counterpart in Kwale Criminal Case No. 1069 of 2015 have fallen. The proceedings inKwale Criminal Case 996 of 2015 are hereby quashed for purposes of equilibrium in the family, and for matrimonial justice.

iv. Whether the Petition has proved violation of her rights by the 1st Respondent.

36. I now turn to determine the allegation that the Petitioner has failed to establish and prove the facts she relied on in her claim for violation of her fundamental right and freedom against the 1st Respondent and the 1st & 2nd Affected parties. The burden of proof as provided under sections 107(1) (2) and 109 of the Evidence Act is as follows:

"107 (1) and (2). Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

and

109. Proof of particular fact

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

37. From the pleadings, and despite all the claims made, in my view, the Petitioner has failed to adduce tangible evidence to prove any of the allegation she has made against the 1st Respondent and the Affected Parties.

38. On the allegation of violation of her right to personal dignity, the Petitioner had alleged that the 1st Respondent has been committing adultery in her matrimonial home with the 2nd Affected Party and the 2nd Affected party has been using her personal items including her furniture and bed. To counter the said allegation by the Petitioner, the 1st Respondent averred correctly in my view, that no evidence was availed to show that the Petitioner’s personal items were being utilized by the 1st Respondent and the 2nd affected Party. In fact, the 1st Respondent produced a letter dated 6/9/2018 from the 1st Affected party’s advocate that requested the Petitioner to go collect her personal belongings, but the Petitioner declined the offer through a letter from her advocate dated 11/8/2018. The allegations by the Petitioner having been sufficiently Respondent to via the 1st Respondent’s Replying Affidavit, more was required from the Petitioner to prove her case. In the absence of any tangible evidence, the allegations of infringement of the Petitioner’s right under Article 28 of the Constitution fails

39. On the alleged violation of the Petitioner’s right of access to information relating to the 1st Affected party, I have not seen any evidence to demonstrate that the Petitioner has requested for information relating to the affairs of the 1st Affected Party and that the said request was ignored and/or denied.

40. On the issue of the alleged infringement of the Petitioner’s right to property, and the right to occupy and use the company property, this Court believes that these are matters actively before another Court which is competent to determine the same. There is an allegation by the Petitioner that Mombasa Winding Up Petition No. 3 of 2015 cannot proceed because the Petitioner and the 1st Respondent are not in talking terms and so cannot reach a resolution. If that is indeed the case, then a solution to that problem lies within the Court in the Winding Up case. There is no further need to emphasize that any division of the High Court and courts of equal status have jurisdiction to address and determine all constitutional issues, which arise in the course of proceedings. This Court will therefore not stray into matters, which are actively being, or could be urged, in the Court of equal status.

41. Accordingly, it is my view that the Petitioner’s interest in the properties registered in the name of the 1st Affected Party are purely commercial interests and disputes which will be best determined in Mombasa Winding Up Petition 3 of 2015 where also similar orders have been sought. The same finding applies to the allegations of the Petitioner’s right to work guaranteed under Article 15 of the ICESCR as the said issues have been raised in the winding up Petition No. 3 of 2015. These issues or claims fall squarely in the realm of private law. The principle that private law claims should not form the basis of constitutional Petitions and should be resolved by using the usual process of civil litigation is elucidated in Maggie Mwauki Mtaleki vs. Housing Finance Company of Kenya Ltd (2015) eKLR where the Court held as follows;

“Secondly and this is of paramount importance to litigants and counsel, the constitution is not to be used as a general substitute for litigating ordinary civil disputes. The petition herein is disguised as a constitutional petition for the redress of violation of fundamental rights when it is in fact on ordinary civil dispute elevated into a constitutional issue. There is no single constitutional issue raised in the petition. The question of social-economic right of housing and sanitation is a smokescreen for denial of contractual liability and is therefore both misconceived and misguided as argued by the Respondent….”

42. Further, Mombasa Winding Up Petition 3 of 2015is ongoing and there is no longer any reason for the Petitioner to doubt that she will find justice in that cause.

43. Accordingly, because of the aforementioned infractions by the 2nd Respondent, prayer (c) of the Petition is hereby granted. All parties shall bear own costs in this petition.

Dated, Signed, and Delivered at Mombasa this 27th day July, 2020.

E.K OGOLA

JUDGE

Judgment delivered via MS Teams in the presence of:

Mr. Kongere for 1st Respondent

Mr. Kongere for 1st and 2nd Affected Parties

Mr. Gikandi for Petitioner

Mr. Kaunda Court Assistant