[2024] KEHC 15279 (KLR)

Source-derived case information.

Citation: [2024] KEHC 15279 (KLR)
Parties: Applicant: Gladys Bonareri Machuki; Respondent: The Ag Chief Njoro Sub County Joseph Thuo; Respondent: The Assistant Chief Njoro Sub County Mary Kamotho; Respondent: The Senior Sergeant James Kuyiomi; Respondent: Sergeant Otieno Jackson O Gamba; Respondent: Corporal Koros; Respondent: James Mwangi Muturi Registered Owner Of Motor Vehicle Kat 149C; Respondent: James Mwaura Wa Njoki County Administrator Nakuru; Respondent: The DCI Njoro Sub County Mr. Denis Onyango; Respondent: The Dci Nakuru County Mr Douglas Chikanda; Respondent: The County Commander Nakuru County Beatrice Kiraguki; Respondent: The Director Criminal Investigation; Respondent: The Inspector General of Police; Respondent: The Director of Public Prosecution; Respondent: The Hon Attorney General
Court: High Court
Court Station: High Court at Nakuru
Jurisdiction: Kenya
Case Number: Petition E008 of 2022
Procedural Posture: Constitutional Petition / Ruling on Notice to Show Cause for Want of Prosecution
Outcome: Petition not dismissed; petitioner granted final opportunity to prosecute.
Judges: JM Nang'ea
Legal Topics: Right to Fair Trial, Abuse of Process, Unlawful Search and Seizure, Judicial Review, Fundamental Rights
Source Language: en

Constitutional Law Criminal Law Right to Fair Trial Abuse of Process Unlawful Search and Seizure Judicial Review Fundamental Rights

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Parties

Gladys Bonareri Machuki

Applicant

The Ag Chief Njoro Sub County Joseph Thuo

Respondent

The Assistant Chief Njoro Sub County Mary Kamotho

Respondent

The Senior Sergeant James Kuyiomi

Respondent

Sergeant Otieno Jackson O Gamba

Respondent

Corporal Koros

Respondent

James Mwangi Muturi Registered Owner Of Motor Vehicle Kat 149C

Respondent

James Mwaura Wa Njoki County Administrator Nakuru

Respondent

The DCI Njoro Sub County Mr. Denis Onyango

Respondent

The Dci Nakuru County Mr Douglas Chikanda

Respondent

The County Commander Nakuru County Beatrice Kiraguki

Respondent

The Director Criminal Investigation

Respondent

The Inspector General of Police

Respondent

The Director of Public Prosecution

Respondent

The Hon Attorney General

Respondent

Procedural Posture

Constitutional Petition / Ruling on Notice to Show Cause for Want of Prosecution

Legal Issues

1 Whether the petition should be dismissed for want of prosecution.
2 Whether the petitioner has provided sufficient explanation for the delay in prosecuting the petition.
3 Whether the nature of the complaint, involving alleged violation of fundamental rights, warrants indulgence by the court.

Ratio Decidendi

The court found that although the petitioner's explanation for the delay in prosecuting the petition was not entirely convincing, the nature of the complaint—alleging violations of the Bill of Rights and Fundamental Freedoms—justified granting her a final opportunity to prosecute the petition. The court emphasized that the responsibility to prosecute a case lies with the petitioner, but in the interests of justice and considering the constitutional issues raised, it would be disproportionate to dismiss the petition solely for want of prosecution at this stage. The court thus exercised its discretion to indulge the petitioner, warning that this would be the last chance to proceed with the...

Court Disposition

Petition not dismissed; petitioner granted final opportunity to prosecute.

Orders

The petitioner is granted the last chance to prosecute the petition.

Full Case Text

Judgment text and source record

51 paragraphs

Machuki v Ag Chief Njoro Sub County Joseph Thuo & 13 others (Petition E008 of 2022) [2024] KEHC 15279 (KLR) (2 December 2024) (Ruling)

Neutral citation: [2024] KEHC 15279 (KLR)

Republic of Kenya

In the High Court at Nakuru

Petition E008 of 2022

JM Nang'ea, J

December 2, 2024

Between

Gladys Bonareri Machuki

Petitioner

and

The Ag Chief Njoro Sub County Joseph Thuo

1st Respondent

The Assistant Chief Njoro Sub County Mary Kamotho

2nd Respondent

The Senior Sergeant James Kuyiomi

3rd Respondent

Sergeant Otieno Jackson O Gamba

4th Respondent

Corporal Koros

5th Respondent

James Mwangi Muturi Registered Owner Of Motor Vehicle Kat 149C

6th Respondent

James Mwaura Wa Njoki County Administrator Nakuru

7th Respondent

The DCI Njoro Sub County Mr. Denis Onyango

8th Respondent

The Dci Nakuru County Mr Douglas Chikanda

9th Respondent

The County Commander Nakuru County Beatrice Kiraguki

10th Respondent

The Director Criminal Investigation

11th Respondent

The Inspector General of Police

12th Respondent

The Director of Public Prosecution

13th Respondent

The Hon Attorney General

14th Respondent

Ruling

1. This Constitutional Petition dated 24th March, 2022 filed on 29th March 2022 and amended on 27th September, 2022 seeks inter alia judicial review orders in the nature of certoriari and prohibition quashing criminal charges preferred against the petitioner in the Nakuru Chief Magistrate’s Court’s file number E066 of 2022 and restraining the respondents from instituting any future criminal charges against the petitioner. The petitioner complains that police officers raided her home on 5th January 2022 in the company of the 1st and 7th respondents and harassed her demanding to be told of the whereabouts of illicit brews she was allegedly selling to people. She denied dealing in such brews and when the officers failed to find the exhibits they seized her grains including many kilogrammes of maize and beans she was trading in. Some Kshs. 8,000/= were also allegedly taken from her.

2. The petitioner further states that she was arrested and charged with the offence of selling 52 litres of chang’aa vide the stated criminal case. The seized grains were not declared in the police occurrence book at Njoro Police Station where she was escorted to and charged after arrest. The grains were never returned to her despite lodging the complaint with the police.

3. James Kuyioni, a Senior Sergeant attached to Critical Infrastructure Protection Unit at an unnamed Sub County swore an affidavit in reply on behalf of the respondents. While confirming the petitioner’s arrest for dealing in illicit brews, the respondents deny confiscating her money.

4. The petition was first placed befre the court on 29th March 2022 when my senior brother (Joel Ngugi J), as he then was, directed that it be served for hearing interpartes on 27th April, 2022. The petition, however remained unprosecuted until about a year later on 22nd April 2024 when my brother (H. M. Nyaga J) directed that notice be issued to the petitioner to show cause why the petition should not be dismissed. The petitioner filed an affidavit in reply to the court’s notice. This ruling follows the said notice to show cause.

5. The court’s notice dated 24th October 2024 required the petitioner to show cause why the petition should not be dismissed for want of prosecution.

6. The petitioner in her reply blames her previous advocates (M/S. E. Kinyanjui & Company Advocates) for failing to inform her of the dates her petition was coming up in court. She informs the court that she has since hired another firm of advocates to pursue the matter, adding that she is keen to prosecute her petition since she was allegedly falsely charged and her property unlawfully confiscated. The petitioner urges the court not to punish her for the mistakes of her advocates who failed to brief her about progress of the matter.

7. The respondents did not comment on the notice to show cause.

8. I have read the petitioner’s explanation for delay to prosecute the petition. I have also read through the record and note that on 6th June 2022 the petitioner sought to amend the petition and she was given seven (7) days to comply. By 24th May 2023, however, the petition had not been amended. After serveral other hiccups, the petitioner was given another hearing date of 19th February 2024 but none of the parties appeared. The default culminated in the court’s notice to the petitioner to show cause why the petition should not be dismissed.

9. The petition remains unheard over one (1) years after it was filed. It was the responsibility of the petitioner to closely liaise with her advocates to prepare for hearing of the petition. Although her explanation is not quite convincing, I am nevertheless minded to indulge the petitioner given the nature of the complaint which touches on violation of the Bill of Rights and Fundamental Freedoms.

10. In the result, the petitioner is granted the last chance to prosecute the petition

J.M NANG’EA , JUDGE.JUDGEMENT DELIVERED VIRTUALLY THIS 2ND DAY OF DECEMBER, 2024 IN THE PRESENCE OF:The Petitioner’s Advocate, Mr MochireThe Defendant’s Advocate, AbsentJ. M NANG’EA, JUDGE

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