[2022] KEHC 12180 (KLR)

Mabire v Director of Public Prosecutions & 2 others (Miscellaneous Criminal Application E076 of 2021) [2022] KEHC 12180 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12180 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Criminal Application E076 of 2021

RB Ngetich, J

July 21, 2022

Between

Samwel Kinyanjui Mabire

Applicant

and

Director of Public Prosecutions

1st Respondent

Directorate of Criminal Investigations

2nd Respondent

Inspector General of Police

3rd Respondent

Ruling

1. The applicant herein moved this honourable court vide a Notice of Motion filed under a certificate of urgency on 16th November, 2021 seeking the following orders:a.Spent.b.The Directorate of Criminal Investigations be compelled to investigate afresh all claims and allegations concerning the Boma Yangu Initiative as is coordinated by Musa Mwangi Kagochi to curb ongoing, further and any opportunity of exploitation against unsuspecting innocent citizens.c.The court does issue a conservatory order restraining the Respondent, their servants/agents, junior officers and/or anybody from effecting and/or anybody from arresting, harassing or otherwise however interfering with the applicant herein pending the hearing and determination of this application/petition in the matters related to any manner of obtaining case against Samuel Kinyanjui Mbaire in the context of BomaYangu Initiative.d.The court be pleased to order the Directorate of Public Prosecutions set aside the prosecution case of Ruiru SPM Criminial Case No. E2759 of 2021 Republic vs Samuel Kinyanjui Mbaire pending the hearing and determination of the application.e.Costs be provided for.f.Any other orders.

2. The application is premised on the grounds that the applicant acts as a brokerage in connecting individuals to the initiative of Boma Yangu Initiative which is coordinated by Musa Kagochi Mwangi. The applicant has sponsored individuals to enter into the scheme of the Boma Yangu “Initiative, which is found as a scum and may result in huge economic damage to innocent citizens.

3. Further, the applicant averred that Ruiru SPM Criminal Case No. E2759 of 2021 is a result of the brokerage activities where the complainants are potential victims. In the trial of the matter without full investigations, the complainant may be in pursuit of malicious prosecution against the applicant.

4. The application is supported by the sworn affidavit of Samuel Kinyanjui Mbaire in which it disposes that it is only fair and just to have the entire initiative investigated so as to expedite coherent and comprehensive justice and therefore curb ongoing further and any opportunity of exploitation against unsuspecting innocent citizens. If the matter is further investigated it will unravel the possible syndicate and prevent the loss of financial and economic material among Kenyans.

5. The application is opposed by the Respondent through the Replying Affidavit of PC. Beth Gichaga filed on 31st January, 2022. She averred that she is the Investigating Officer in Ruiru SPM Criminal Case No. E2759 of 2021; that application is frivolous and an abuse of the court process. She further averred that the investigation emanates from complaints filed by Hellen Njoki Mathew and Ann Murugi Kamau vide OB NO. 26/19/10/2021 alleging they were defrauded Kshs. 2,471,330/= and Kshs.1,336,650/= respectively. The applicant is a known agent of the Boma Yangu Housing Project by the complainants.

6. He averred that the complainants were issued with house keys and allocation notices from the applicant with the assurance they were to occupy their preferred houses on 12th September 2021 and the investigations have established the applicant is not an employee or agent of National Housing Corporation but a fraudster. Further that the applicant has declined to disclose his role in the syndicate as well as disclose his associates.

7. He averred that there is overwhelming evidence against the applicant which led to being charged with the offence of obtaining money by false pretence.

8. The prosecution did not wish to file written submissions but relied on the Replying Affidavit of APC Beth Gichaga. The applicant’s submissions were not in the file.

Analysis and Determination 9. I have considered averments by parties herein. The issue is whether the applicant has made out a proper case for the grant of conservatory orders sought.

10. The applicant seeks an order to prohibit the respondents from proceeding with the criminal charges against him vide Ruiru SPM Criminal Case No. E2759 of 2021 Republic vs Samuel Kinyanjui Mbaire and/or prosecuting him on the basis of a complaint involving the Boma Yetu initiative where he possed as an agent of the same.

11. Article 23 of the Constitution stipulates as follows:“(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(3)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.”

12. In the case of Small Scale Farmers Forum vs Cabinet Secretary Ministry of Education Science and Technology HCCP NO. 399 of [2015] eKLR, the court stated that, for conservatory orders to issue, the applicant ought to demonstrate a prima facie case with a likelihood of success and that he is likely to suffer prejudice as a result of the violation or threatened violation if the conservatory order is not granted.

13. In the instant case, two (2) complainants lodged complaint with the police of being defrauded money by the applicant by false pretence of being an agent of the Boma yangu initiative. Investigations were conducted which prompted the DPP to prefer charges against the Applicant.

14. The Respondents are law enforcement agencies with constitutional mandate and responsibilities to ensure law and order is maintained

15. Article 157 of the Constitution bestows upon the Director of Public Prosecution mandate to order investigations into any alleged criminal conduct,to institute, to continue,to take over and/or discontinue any criminal proceedings.

16. The court in exercising its supervisory jurisdictions as per Article 165 of the Constitution must ensure that they do not interfere with the powers of other independent offices. The court should bear in mind the duties performed by the Respondents are to safeguard the public interest as opposed to individual rights.

17. The applicant has not demonstrated to this court the circumstances that would warrant the court to interfere with the constitutional mandate of the Respondents. The applicant averred that Boma Yangu is coordinated by Musa Kagochi Mwangi and he has exercised brokerage to connect individuals to the initialtive but he has not exonorated himself form the complaints raised against him.

18. The Respondents have averred that the applicant has been possing as an agent of the Boma yangu initiative and received money from the public with promises to deliver but has failed to. It would be in the interest of the public for the criminal proceedings pending before the trial court to proceed without hindrance.

19. From the foregoing, I find the applicant has failed to demonstrate there are exceptional circumstances to warrant the grant of the orders sought.

20. Final Orders:-1)Application is dismissed.2)Costs to the respondent.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 21ST DAY OF JULY, 2022. ..............................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court ClerkMr. Gacharia for StateMr. Kinjanjui for the Applicant