[2017] KEHC 1782 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION & ECONOMIC CRIMES DIVISION

PETITION NO. 21 OF 2017

FORMERLY CONSTITUTIONAL & HUMAN RIGHTS DIVISION PETITION NO. 475 OF 2017

IN THE MATTER OF: ARTICLES 3,19,20,21,22,23,27,47,48,50,157,165 AND 258 OF THE CONSTITUTION OF KENYA, 2010

BETWEEN

MAURICE OMONDI OGOLA….………...……….……...PETITIONER

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS…….RESPONDENT

JUDGMENT

1. Maurice Omondi Ogola the petitioner has herein been charged in the Chief Magistrate’s Court at Isiolo in Criminal Case No. 195 of 2017 with two counts of abuse of office contrary to section 46 as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act (ACECA). The case has been fixed for mention on 8th November 2017 for purposes of taking plea.

2. By petition dated 20th September 2017, the petitioner impugned his prosecution on grounds that it had no legal basis and that it amounted to a violation of his human rights. He sought the following declarations;

i. A declaration that the respondent violated the petitioner’s right by recommending institution of criminal proceedings against the petitioner when there existed no basis for such action.

ii. An order of judicial review of certiorari quashing the decision by the respondent to institute criminal proceedings against the petitioner in police case no. 421/195/2017.

iii. Any other appropriate remedy.

iv. Costs.

3. Mr. Omollo & Mr. Ashimosi appearing for the petitioner and respondent respectively agreed to abandon the application (Notice of Motion) dated 20th September 2017 and proceeded to hear the petition. They further agreed to dispose of the petition by way of written submissions. The petitioner’s submissions were filed on 10th October 2017, while the respondent’s were filed on 17th October 2017. The counsels appeared before me on 18th October 2017 for highlighting of the submissions.

The petitioner’s case

4. The petitioner’s case is grounded on the petition and supported by the verifying affidavit of the petitioner. He has averred that he is a senior assistant director, devolution affairs Job group Q working with the national government (MOOI). He explains that in the year 2013 he was deployed to the Transition Authority as an interim county secretary for Isiolo County. He goes ahead to describe what his duties were at paragraph 6 of the affidavit.

5. He confirms that he was lawfully involved in recruitment of staff for the county government of Isiolo to enable the county start its operations, as there was no county service board. He proceeded to make appointments which were later ratified by the county public service board in their meeting held on 19th November 2014 (MOO4).

6. It is as a result of these appointments that he is now facing charges before the Chief Magistrate’s Court in Isiolo vide Criminal Case No. 195 of 2017 (MOO6). That these charges are an act of witch hunt against him, as there is no basis for such prosecution. That as a result of the respondent’s decision to have him charged his fundamental rights under articles 27,47,48 & 50 of the constitution have been breached. He fears that the respondent’s actions will result in his being hounded out of the office.

7. Mr. Omollo for the petitioner in his written and oral submissions stated that the intended prosecution was improper and amounts to breach of the petitioner’s fundamental rights. That in so acting the respondent did not have regard to the law and public interest. He cited the case of Investments & Mortgages Bank Limited (I & M) Vs. Commissioner of Police & the Director of Criminal Investigations Department and DPP & 2 others [2013] eKLR and relied on paragraph 27 to support his submission. Counsel further submitted that in performing his duties the petitioner acted within both the law and the instructions given to him in writing. That the board’s decision ratifying the appointments has never been rescinded and there was no evidence of any appointment made on 28th November 2014 which is the basis of the charge.

8. He submitted that the respondent’s action was an abuse of power which required this court’s intervention under Article 165(3) of the Constitution. On the impugned appointment he submitted that under section 57 of the County Government Act, the County public service board had the power to investigate the matter in issue and had several options to choose from in the event of an irregularity or fraud. He stated that the petitioner had acted within the confines of section 4 of the Transition to devolved Governments Act which established the transitional authority.The function of this Authority was to facilitate and co-ordinate the transition to the devolved system of government as provided for under Section 15 of the Sixth schedule to the Constitution. Relying again on the case of Investments & Mortgages Bank Limited (supra) he submitted that as much as it was within the respondent’s mandate to investigate crimes, its actions must lawful.

9. Mr. Omollo submitted that the respondent must have regard to public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process. On the interpretation of Article 244 of the Constitution he relied on the case of Kenya Commercial Bank Ltd. & 2 others V Commissioner of Police & another Nairobi Petition No. 218 of 2011 (UR) where the court stated as follows:

“[25] The office of the director of public prosecutions & Inspector general of the National Police Service are independent and this court would not ordinarily interfere in the running of their offices and exercise of their discretion within the limits provided for by the law. But these offices are subject to the constitution and the Bill of rights contained therein and in every case, the High Court as the custodian of the Bill of rights is entitled to intervene where the facts disclose a violation of the rights and fundamental freedoms guaranteed under the Constitution”

10. Counsel further submitted that the respondent had not placed anything before the court to link the petitioner to the said offence and that the petitioner was properly appointed as an interim county secretary to Isiolo County for the period 23rd February, 2013 to 30th January, 2014. He stated that at the time of the alleged appointments, Isiolo County did not have a public service board and that all appointments were made on the basis of a letter by the transitional authority dated 12th July, 2013. The said letter allowed the governor to identify persons to hold various positions and the appointments would be regularized by the county public service board once established. He stated that the said appointments were considered and ratified in a county public service board meeting held on 19th November, 2014. It was his submission that there was no wrong doing by the petitioner in all this.

11. He further said that the intended prosecution amounted to infringement of the petitioner’s rights particularly the right to equality and freedom from discrimination since there was no wrong doing by the petitioner. He stated that the intended prosecution also infringes on the petitioner’s right to fair administrative action under article 47 of the Constitution. That he was not given an opportunity to explain himself yet the intended prosecution is based on an offence that was non-existent at the time in issue.

The respondent’s case

12. The respondents relied on the replying affidavit sworn by Vera Omondi on 13th October 2017, and written submissions. On his part, Mr. Ashimosi for the respondent submitted that the respondent received the investigation file together with recommendation from the EACC. He independently analyzed the evidence for sufficiency to charge the applicant with due regard to the law and evidence. He stated that based on the independent review of the evidence the DPP directed that the petitioner be charged with the offences stated in the charge sheet. It was his submission that in charging the petitioner the sufficiency of evidence and public interest underlying prosecution of criminal offences was considered. He argued that the petitioner had not demonstrated that in making the decision to charge, the respondent had in any way abrogated any provision of the law or that he had acted in breach of the rules of natural justice.

13. He submitted that the respondent is an independent prosecution authority established under Article 157(6) of the constitution with powers to institute and undertake, take over, continue or discontinue criminal prosecution at any stage. He further stated that the said power is discretionary and not subject to any authority. Further that pursuant to Section 6 of the Office of the Director of Public prosecutions Act, the respondent does not require the consent of any person or authority to commence criminal proceedings. That he is also not under the direction of any person of authority in exercise of his functions under the Constitution to which he is subject.

14. To support this position he relied on the case of Paul Ng’ang’a Nyaga & 2 others V. Attorney General & 3 others [2013] eKLR where it was held that:

“this court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they acted in contravention of the constitution.”

Further that in the case of FrancisAnyango Juma V. Director of Public Prosecutions & Another (2012) eKLRit was held that:

“Clearly, the intention under the Constitution was to enable the director of public prosecutions to carry out his constitutional mandate without interference from any party. This court cannot direct or interfere with the exercise by the DPP of his power under the constitution or direct him on the way he should conduct his constitutional mandate, unless there was clear evidence of violation of a party’s rights under the constitution or under the constitution itself”

He submitted that the law is that the court ought not to usurp the DPP’s constitutional mandate. He further relied on Majanja J’s decision in Kenya Commercial Bank Ltd. & 2 others V. Commissioner of Police and the Director of Criminal Investigations Department & Another Interested Party Benjoh Amalgamated LTD [2012] eKLR

15. He finally cited the case of George Joshua Okungu & another V. Chief Magistrate’s Court Anti-Corruption Court at Nairobi & another [2014] eKLRwhere the court held thus:

“the mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground that ought not to be relied upon by court in order to halt criminal process undertaken bona fides since that defence is always open to the petitioner in those proceedings. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. 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 petitioner to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral process other than its legally recognized aim”

16. He concluded that the analyzation and examination of facts on the basis of which the guilt or innocence or otherwise of the petitioner shall be determined is a matter for the trial court. This he said was the decision in the case of William Ruto & Another V. Attorney General HCC No.1192 of 2004. He submitted that the petitioner had failed to prove violation of his fundamental freedom and rights and/or infringement of any law or regulation or abuse of discretion and breach of rules of natural justice. He stated that the charge sheet indicated that the petitioner is charged with the offence of abuse of office which is well defined. That he was the secretary at the time of the appointment of the two persons mentioned in the charge sheet. He asked the court to dismiss the petition.

17. I have read and considered the petition. Affidavits, the written and oral submissions as well as the authorities filed and cited by both parties. I find the issues falling for determination to be as follows:

i. Whether the intended prosecution infringes the petitioner’s fundamental rights and freedoms.

ii. Whether to issue an order of certiorari quashing the decision to charge the petitioner.

18. Chapter 4 of the Constitution of Kenya, 2010 grants each person rights and fundamental freedoms which form what is known as the Bill of Rights. So important are these rights that article 19(1) (2) & (3) of the Constitution provides as follows;

19 (1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.

(2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.

(3) The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

(b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter; and

(c) are subject only to the limitations contemplated in this Constitution

19. The rights set out under chapter 4 of the constitution of Kenya, 2010 (supra) are prone to denial, violation, infringement and outright threat at the behest of either natural or juristic persons. Such circumstances are envisaged at article 22(1) of the Constitution with both remedial measures and modalities thereto provided at Article 22(2) and (3) of the Constitution.

20. Article 23(1) of the Constitution confers jurisdiction upon the High Court pursuant to 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. Article 23(3) sets out the remedies which are available to an aggrieved party whenever his/her fundamental rights or freedoms have been violated to wit;-

“23(3) In any proceedings brought under Article 22, a courtmay grant appropriate relief, including—

(a) a declaration of rights;

(b) an injunction;

(c ) a conservatory order; the remedies

(d)…….

(e)…….

(f) an order of judicial review.

21. It is not however, enough to allege that one’s fundamental freedoms or rights have been violated. The violation must be proved. Section 107(1) of the Evidence Act Cap. 80 Laws of Kenya is clear in this regard and provides as follows;

“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”

The letter and spirit of the above provision has been captured in several decisions of the superior courts including but not limited to the cases of Anarita Karimi Njeru v Republic [1979]eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Ancillary to the foregoing is the requirement that any prospective petitioner ought to set out his or her complaint with precision and clarity to enable the court to ascertain whether or not a given right or fundamental freedom has been infringed.

22. Prayer No.1 of the petition is for a declaration that the petitioner’s right was violated by the respondent’s recommendation for institution of criminal proceedings against the petitioner when there existed no basis for such action. Although he does not specifically mention in the petition, it came out in the hearing of the petition that the petitioner was referring to his freedom from discrimination as enshrined in Article 27, the right to fair hearing (Article 50(2) (m)), the right to fair administrative action (Article 47) and the right to access to Justice (Article 48) of commission of the alleged offence, which offence did not exist in any written law. In Anarita Karemi vs. R 1976-1980 KLRTrevelyan & Hancox, JJ, the threshold for proof of infringement and violation of fundamental rights was summarised as follows:-

“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed”

23. During the hearing, Mr. Omollo submitted that the intended prosecution violated the petitioner’s rights as outlined at paragraph 11 of this Judgment. He stressed that he should not have been charged with an offence that was non-existent at the time of the alleged commission. For this he relied on Article 50 (2) (n) which prohibits conviction for an act or omission that at the time it was committed or omitted was not an offence in Kenya.

24. Has the petitioner met the threshold of precision set out in the Anarita Karemi Case (supra)? The petitioner pleaded the alleged violations at Paragraph 14 of the petition, which states:-

- Right to equality and freedom discrimination under Article 27 of the Constitution.

- Right to fair administrative action under Article 47 of the Constitution.

- Right to access justice under article 48 of the Constitution.

- Right to fair hearing under article 50 of the Constitution.

This same paragraph is repeated at paragraph 15 of the verifying affidavit. When these two paragraphs are placed against the requirements of the Anarita case(supra), the petition falls short of the threshold set therein.

25. There is nothing in the pleadings showing with a reasonable degree of precision the manner in which these rights were violated. During the hearing it was mentioned in passing that the investigations by the Ethics and Anti-Corruption Commission (EACC) were conducted in a haphazard manner, without giving the petitioner a chance to explain. It is not pleaded and it is not clear how the investigations were conducted haphazardly.

26. Even with the submissions made I am still not satisfied that there was any infringement of the cited rights. For example he does not explain how he was discriminated against. The hearing is yet to take off as he has not even pleaded to the charges. It is therefore not clear how his right to fair hearing has been infringed. I find that prayer No. 1 must fail.

27. Prayer No. 2 of the petition is for an order of judicial review of certiorari quashing the decision by the respondent to institute criminal proceedings against the petitioner in police case no. 421/195/2017. In support of this prayer, the petitioner submitted that the date he is alleged to have committed the offence is way after he had left. Further that even if he committed the impugned act, it was well within the law and his mandate and that the appointments were later ratified by the Isiolo County Public Service Board. Article 157 (6) of the constitution of Kenya provides for the Powers of the respondent as;

“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).”

Article 157 (10) provides;

“(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.”

Article 157 (11) provides;

“(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.”

28. In Kuria & 3 Others –vs- AG [2002] 2KLR 69 the court held;

“The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal scare-settling or vilification on issues not pertaining to that which the system was even formed to perform. ” (emphasis provided).In the case of Njuguna S. Ndung’u –vs- EACC & 3 Others 2014, eKLR the court observed as follows;

“The starting point is that the court ought not to usurp the constitutional mandate of the DPP or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office and the mere fact that he intended or ongoing criminal proceedings are in all likelihood bound to fail, it is agreed, is not without more a ground for halting those proceedings. That a petitioner has a good defence in a criminal process is a ground that ought not to be relied upon by a court in order to halt a criminal process undertaken bona fide since that defence is always open to the petitioner in those proceedings. However, if the petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the petitioner’s constitutional rights, the court will not hesitate in putting a halt to such proceedings.”(Emphasis provided).

29. In Immanuel Kuria Wagathoni V AG, H. 1384/03as quoted inWilliam S. K. Ruto & Another v Attorney General [2010] eKLRthe court held that

“analyzing of the evidence should be done in the trial court as pointed out earlier, in such an application, the court is not concerned with the sufficiency of the evidence available to support a criminal charge. It is sufficient for the respondents to demonstrate that they have a reasonable or probable case that an offence may have been committed and therefore the accused persons should stand trial. That is why the applicants are presumed innocent until proved otherwise”

And lastly in Republic –vs- AG and 4 Others Ex-parte Diamond Hashim Lalji & Ahmed Hasham Lalji [2014] eKLRwhere Odunga J. observed;

“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the Jurisdiction. Whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the court to determine the merits of two or more different versions presented by the parties, the court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forms where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The court in judicial review proceedings is mainly concerned with the question of fairness to the applicant in institution and continuation of the criminal proceedings and once the court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the jurisdiction of the trial court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if it were to be correct would not disclose any offence known in law, to allow the criminal proceedings to continue would amount to the court abetting abuse of the court process by the prosecution.”

30. From the authorities cited above and many others it is clear that judicial review is not concerned with the merits or demerits of a decision, but the process. The respondent has explained what it did upon receipt of the relevant file from the EACC. The petitioner has not demonstrated that in making the decision to prefer criminal charges against the petitioner, the respondent acted without or in excess of the powers conferred upon him by the law or acted with malice.

31. He has not pointed out the violation of any provision of the law by the respondent in the act of charging him. What he has managed to do is to set up his defence explaining why he should not be charged. That is evidence which should be placed before the trial court for analysis and determination and not before this court in seeking for Judicial review orders.

32. For those reasons, I find that prayer no. 2 must fail.

33. The upshot is that the petition lacks merit and is hereby dismissed with costs.

Dated, signed and delivered this 2nd day of November, 2017 in open court at Nairobi.

……………….

H. I. ONG’UDI

JUDGE