[2017] KEHC 2298 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION & ECONOMIC CRIMES DIVISION

MISCELLANEOUS APPLICATION NO. 17 OF 2017

IN THE MATTER OF: ARTICLE 20, 22, 23, 252, 258 & 259 OF THE CONSTITUTION OF KENYA

-AND-

IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF RIGHTS OR FUNDAMENTAL FREEDOMS UNDER ARTICLE 27, 28. 29, 31, 40, 47 & 50 OF THE CONSTITUTION OF KENYA

-AND-

IN THE MATTER OF: ALLEGED VIOLATION OF ARTICLE 3 AND 10 OF THE CONSTITUTION OF KENYA

-BETWEEN-

MAURICE MILIMU AMAHWA .......................................... APPLICANT

-AND-

ETHICS & ANTI-CORRUPTION COMMISSION ................. .RESPONDENT

RULING

Introduction:

1. The Applicant herein moved this court under the provisions of Article 22, 23, 159, 165 and 258 of the Constitution of Kenya, 2010, by way of Petition and Notice of Motion, both dated 13th June, 2017, wherein the main prayers sought were:

a. A conservatory order prohibiting the Respondent by itself or by its officers from commencing any civil or criminal proceedings for the recovery of Kshs. 70,000,000 since the Respondent knows where the money is kept or deposited.

b. A declaration that the Respondent’s actions have violated/infringed on the petitioners rights under Articles 10, 27, 28, 29, 31, 40, 47 and 50 of the Constitution of Kenya, 2010.

c. A declaration that the actions of the Respondent are an abuse of power contrary to the public policy principle that no litigation between parties over a subject matter in which a party was not should be brought involved when it was executed, or over a matter which can be resolved through mediation, conciliation and or negotiation.

Costs of the petition

2. This Application is opposed by a Replying Affidavit sworn by Muilki Abdi Umar dated 22nd June, 2017, a forensic investigator with the Respondent Commission. He deponed that sometimes in early July, 2015, the Respondent received an anonymous report that the trustees of Kenya Ports Authority Retirement Benefit Scheme, 2010 (KPARBS, 2012) had illegally and fraudulently and/or corruptly entered into a sale agreement with Kikambala Development Company Limited. The sale agreement was for the purchase of 100 acres of land comprising 20 vacant agricultural plots at a purchase price of Kshs. 700 Million. The particulars of the subject property are: L.R Nos. 5025/1191-1192-2294-2297, 1200, 1206 and 1224-1230 in Kikambala area.

3. The deponent, indicated that the Respondent commission pursuant to its mandate, launched investigations and established that the Petitioner herein acted dishonestly in assisting the trustees of KPARBS, 2012 in each of their breaches of fiduciary duty and breach of trust. The Petitioner herein together with three other trustees were part of the Committee selected to carry out site visits on the subject property and report back to the Board of Trustees.

4. The petitioner attended and participated in the 12th and 13th meetings of the Board of Trustees and assisted the trustees in negotiating the purchase of the said plots with Kikambala Development Company Limited on 2nd December, 2014 before ascertaining the ownership and value of the said parcels of land. The Petitioner and trustees sought and obtained a due diligence report on the purchase of the aforesaid parcels of land after the aforesaid sale Agreement had already been concluded and deposit had been paid by KPARBS, 2012 to the Purported vendor.

5. Investigations revealed that on the date when the Sale Agreement between KPARBS, 2012 and Kikambala Development Company Limited was concluded, the Vendor, Kikambala Development Company Limited was not the registered owner of the said plots and was in the process of purchasing the same parcel of land from Amkeni Farm Limited. The vendor company had been incorporated on 10th December, 2014, and was only 8 days old when the Sale Agreement was concluded.

6. Kikambala Development Company Limited failed to meet its obligation under the sale agreement with Amkeni Farm Limited and the Sale Agreement was rescinded. Kikambala Development Company Limited subsequently failed to honour the Sale Agreement with KPARBS, 2012 and have failed and or refused to refund Kshs. 70,000,000 to KPARBS, 2012.

7. The deponent avers that the Respondent duly observed the rights of the Petitioner in the course of investigations as is required by the Constitution and the law and argues that the petition is frivolous and vexatious and does not disclose any prima facie cause of action against the Respondent. The Respondent prays that the petition and Notice of Motion be dismissed with costs.

The Petitioner’s Submissions:

8. It was the submission of the Petitioner herein that he is the Pension Administrator of KPARBS, 2010 and that his sole duty was to effect the resolutions of the trustees who are empowered by law to run the affairs of the KPARBS, 2012. When the Trustees Scheme resolved to purchase various properties from Kikambala Development Company Limited on December, 2014, as the Scheme administrator, his duties were purely administrative. He did not have voting powers and was therefore not accountable for the actions of other persons.

9. The Petitioner submitted that there was a Professional Undertaking issued on the part of the vendor’s advocates, Kanyi J & Co. Advocates to receive the deposit of Kshs. 70,000,000 as stakeholders, and that KPARBS, 2012 upon receiving the undertaking, proceeded to release the Kshs. 70,000,000 to the vendor’s advocates. The advocates representing the KPARBS 2012, Cootow & Associates Advocates conducted all due diligence in respect of the status of properties to be purchased and the protection of the funds of the scheme which they duly dealt with. The Petitioner argued that he was not a signatory of the sale agreement of the subject property, that the same was executed by the trustees, as such there is no evidence adduced by the Respondent which can prove that the petitioner was a beneficiary of any part of the subject funds.

10. The Petitioner submitted that the Respondent has given a clear history of the whereabouts and movements of the funds from the Scheme’s advocates to the account of Kanyi J & Co. Advocates and as such the Respondent’s action of demanding the funds from the Petitioner is mischievous and intended to violate his fundamental rights and freedoms as guaranteed in the Constitution of Kenya, 2010. The petitioner argued that particulars of the rights violated were:

a. The Respondents failure to follow the rule of law and human rights by violating Article 10 of the Constitution in demanding Kshs. 70,000,000 from the petitioner when there is a Professional Undertaking from an advocate to refund the sum.

b. The Respondent’s action against the Petitioner is intended to deny him the protection adequately envisaged in Article 27 of the Constitution of Kenya. It is also intended to deny the Petitioner full and equal enjoyment of all the fundamental rights and freedoms while carrying out his duties as the administrator of and or secretary to the Board of Trustees of KPARBS, 2012.

c. Article 28 of the Constitution of Kenya, 2010, guarantees the petitioners dignity and the right to have that dignity respected and protected. The Respondent has clearly violated the Petitioner’s right to human dignity buy demanding that he pays Kshs. 70, 000,000 whereas it knows where the money is and because it also knows that he has never handled, received or transferred the money.

11. In response to the Replying Affidavit filed by the Respondent, the Petitioner submitted that the memorandum written by the Petitioner addressed to the board of trustees asking the board to consider the purchase of the subject property was done so in his administrative capacity and was merely intended to advise the trustees to consider. The petitioner argued that the trustees were at liberty to disregard the same altogether. It was the petitioner’s submission that the KPARBS, 2012 was represented by advocates who were entrusted with the funds and who actually transferred the same to the vendors advocates account. The petitioner urged that he cannot therefore be accused of matters which were in the professional docket of the schemes advocates.

12. The Petitioner relied on Article 28 of the Constitution of Kenya, 2010,which provides that every person has inherent dignity and the right to have that dignity respected and protected in support of his argument that a suit/charge against him will be an abuse to his dignity as a person and as the Administrator of the Scheme.

13. It was the Petitioners submission that Article 29 of the Constitution of Kenya, confers the right of equal protection and equal benefit of the law to all persons and as such the threatened proceedings and/or charge will not only violate his constitutional rights and fundamental freedoms. That it is also crafted as an open but very mischievous masquerade to hoodwink the general public and members of the Scheme into believing that the respondent is serving public interest in this specific manner as mandated by statute.

14. In support of his Application, the Petitioner relied on the following cases:

a. Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR.

b. Joram Mwenda Guantai v the Chief Magistrate, Civil Appeal No. 228 of 2003.

c. Mohamed Gulam Hissein Fazal Karmali & Another V The Chief Magistrate Court & Another (2006).

Respondent’s Submissions:

15. The Respondent Commission submitted that it received an anonymous complaint in July, 2015, to the effect that the Trustees of the KPARBS, 2012 had illegally, fraudulently and/or corruptly entered into a sale agreement for the purchase of the subject property. Upon receipt of the complaint and pursuant to its statutory mandate to investigate corruption and economic crimes, the Respondent commenced investigations into the allegations.

16. The Respondent Submitted that it is the mandate of the Commission as per Sections 11(1)(d),(j), 11(4) and 28 of Anti Corruption and Economic Crimes Act to independently investigate and recommend to the Director of Public Prosecutions the prosecution of any acts of corruption or violation of codes of ethics or other matter prescribed under the Act or any other law enacted pursuant to Chapter Six of the Constitution of Kenya.

17. In addressing the petitioners prayers urging the court to grant conservatory orders, the Respondent relied on the case of Board of Management of Uhuru Secondary School v City County Director Of Education & 2 Others (2015) wherein the court observed as follows:

“Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. As was stated by Musinga J (as he then was) in the case of Centre for Rights Education and Awareness and 7 Others --v- The Attorney General [HCCP No. 16 of 2011]:

18. The Respondent submitted that KPARBS, 2012 is a retirement benefit scheme regulated by the Retirement Benefits Act, and argued that it is a public body due to the fact that funds that are collected and held by the Scheme are contributions from Kenya Ports Authority employees, who are public officers, for their own benefit. The Respondent cited the case of Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Othersand relied on Section 2 of the Exchequer and Audit Act,to support its argument that the Scheme falls within the ambit of the definition of a public authority. Section 2 of the Exchequer and Audit Act states that public moneys include:

“(a) revenue;

(b) any trust or other moneys held, whether temporarily or otherwise, by an officer in his official capacity, either alone or jointly with any other person, whether an officer or not”

19. In support of its argument that KPARBS, 2012 is a public body, the Respondent relied on Section 3 of the Kenya Ports Authority Actwhich mandates the Kenya Ports Authority to maintain, operate, improve and regulate all scheduled sea ports situated along Kenya’s coastline. The Respondent also relied on Section 2of theACECA which defines a public body as:

(d) any corporation, council, board, committee or other bodywhich has power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law; or

(e) a corporation, the whole or a controlling majority of theshares of which are owned by a person or entity that is a public body by virtue of any of the preceding paragraphs of this definition

20. The Respondent submitted that the petitioner does not have a prima facie case with a likelihood of success, because the Petitioners prayer has already been overtaken by events as the Respondent has already served the Petitioner and 5 others with a demand letter dated 30th May, 2017, demanding the payment of Kshs. 70,000,000.

21. The Respondent asserted that the petitioners’ application is incompetent because the Director of Public Prosecutions is not a party to the suit herein. The Respondent argued it is the Director of Public Prosecutions who makes the decision whether to institute criminal proceedings against a person suspected to have committed an offence and thus the issue of commencing criminal proceedings can only be directed by the Director of Public Prosecutions and not the Respondent.

22. The Respondent argued that the Petitioner has not demonstrated that he has a prima facie case as he has failed to demonstrate exactly how the Respondent has violated his rights and that there is no evidence on record to show that it has acted in contravention of the constitution. The Respondent cited the case of Anarita Karimi Njeru v the Republic (NO.1) [1976-80] 1KLRand submitted that it is not enough for the petitioner to merely state that his rights were violated without specifically stating the nature of violation or infringement of such rights. The Respondent submitted that the petitioner’s application is speculative and premature in urging that his rights will be infringed via the employment of a fairly predictable procedure, that the petitioner has not yet been subjected to.

23. The Respondent contended that the petitioner has not shown how irreparable harm will be suffered if the orders sought are not granted. In support if its submission, the Respondent relied on the case of Total Kenya Limited & 9 Others v the Director of Criminal Investigations Department & 3 Others [2013] eKLRand the case of Francis Mbugua v Commissioner of Police and 2 Others [2013] eKLRand argued that in the event a suit is filed against the Petitioner, his rights will be safeguarded as he will appear before a Court of law that is ring-fenced with systems of protection for the Petitioner.

24. The Respondent argued that its mandate touches on issues of public interest and cited the case of Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR.It urged that where an offence has been committed, it is in the public interest that it be investigated and prosecuted if sufficient evidence is obtained. The petitioner’s rights are not absolute but are subject to the rights of the public. The Respondent submitted that the petitioner has not met the criteria set for the grant of conservatory orders.

Determination:

25. From the Parties’ submissions and the pleadings as filed in this Court, the issues that emerge for determination are:

a. Whether the constitutional rights and freedoms of the Petitioner have been violated, or will be violated in the event that a suit/charge is brought against him

b. Whether the conservatory orders sought by the Petitioner should be granted by this Court

26. The criteria to be satisfied prior to the granting of conservatory orders is fairly well settled as illustrated in the case of Michael Osundwa Sakwa v Chief Justice and Presidentof theSupreme Court of Kenya & another [2016] eKLRadverted to above. It reads:

“… the petitioner must show a prima facie case with a likelihood of success, and that if the conservatory orders are not granted, he is likely to suffer prejudice. As Musinga J (as he then was) observed in the case of Centre for Rights Education and Awareness (CREAW) & 7 Others vs Attorney General Petition No. 16 of 2011 :

“...It is important to point out that the arguments that were advanced by Counsel and that I will take into account in this ruling relate to the prayer for a Conservatory Order in terms of prayer 3 of the Petitioner’s Application and not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a Conservatory Order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the Court grants the Conservatory Order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”(Emphasis added).

27. In addition, the public interest principle must be taken into consideration in determining whether or not to grant conservatory orders. In the present suit, the conservatory orders sought are sought against a commission whose mandate, as submitted by the Respondent, is to combat corruption in the interest of the public.

28. The case of Gatirau Peter Munya vs Dickson Mwenda Githinji & 2 Others SCK Petition No. 2 of 2013addresses the principle of public interest and reads as follows:

“Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes, and priority levels attributable to the relevant causes”

[63] Thus, where a conservancy order is sought against a public agency like a legislative assembly that is mandated to carry out certain functions in the normal course of its business, it is only to be granted with due caution. The interruption of the lawful functions of the legislative body should take into account the need to allow for their ordered functioning in the public interest.”

29. The Petitioner submitted that the Respondent has violated his constitutional and human rights in Articles 10, 22, 27, 28, 29, 31, 40, 47and50 of the Constitution by demanding Kshs. 70,000,000 from the petitioner when the Respondent knows where the money is, and there exists a Professional Undertaking. The Petitioner therefore argues that a suit/charge against him will be an abuse to his dignity as a person and as the Administrator of the Scheme. On the other hand, the Respondent commission has argued that the Petitioner’s allegation that his rights are threatened with violation by way of a civil suit/ charge is premature and speculative.

30. In the instant case and pegged against the criteria set out in the above mentioned cases, the evidence made available to this court by the Petitioner, has not satisfied the court that there are exceptional circumstances which warrant interference nor has it been demonstrated that the Respondent has acted in contravention of the Constitution. The Respondent is under a statutory compulsion to investigate crimes which have economically unethical paradigms, and there is no evidence that the Respondent has acted contrary to procedure following receipt of the complaint. The petitioner has not convinced this court that the Respondent, in exercising its mandate, represents any sort of menace that might harm him or infringe upon is rights. In addition, to submit that one’s rights will be violated through employment of a fairly predictable procedure that he has not yet even been subject to is indeed merely speculative and premature.

31. With regard to criminal prosecution, the case ofMeixner & Another v Attorney General [2005] 2 KLR 189as well asPaul Nganga & 2 Others v Attorney General & 3 Others [2013] eKLR reveal that the court ought to interfere with the discretion to prosecute only in exceptional circumstances. Where there exists an element of malice divorced from the goals of justice in instigation of prosecution or where the prosecution has no foundational basis at all, the court will not hesitate to prohibit the continuation or institution of a criminal prosecution.

32. Indeed, as put forth by the Respondent in its submissions, it is the Director of Public Prosecutions who makes the decision to institute criminal proceedings against a person suspected to have committed an offence and thus the issue of commencing criminal proceedings can only be directed at the DPP and not the Respondent. The Anti-Corruption and Economic Crimes Act provides in Section 35 that:

“(1) Following an investigation the Commission shall report to the Attorney-General on the results of the investigation.

(2) The Commission’s report shall include any recommendation the Commission may have that a person be prosecuted for corruption or economic crime.”

33. It is to be noted that a recommendation by the Respondent does not bind the DPP who is expected to exercise the functions of his office without any external influence or control or any other persons consent. The Office of the Director of Public Prosecutions Act, No 2 of 2013 promotes the independence of this prosecutorial organ. A prayer for conservatory orders prohibiting the Respondent by itself, or by its officers from commencing any criminal proceedings is therefore misdirected.

34. In the circumstances and for the above reasons I do not see any merit in the Application dated 13th June, 2017 and it is hereby dismissed.

SIGNED DATEDandDELIVEREDin open court this 3rd day ofNovember, 2017.

……………......

L. A. ACHODE

JUDGE