[2022] KEHC 13798 (KLR)

Mbugua & 4 others v Office of the Director of Public Prosecutions & 2 others (Anti-Corruption and Economic Crime Petition E003 of 2022) [2022] KEHC 13798 (KLR) (Anti-Corruption and Economic Crimes) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13798 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crime Petition E003 of 2022

EN Maina, J

October 6, 2022

Between

Zacharia Njenga Mbugua

1st Petitioner

Joyce Ngina Musyoka

2nd Petitioner

Simon Kabocho Kangethe

3rd Petitioner

Anselm Gachukia Wanjiku

4th Petitioner

Samuel Muigai Mugo

5th Petitioner

and

Office of the Director of Public Prosecutions

1st Respondent

Anti-Corruption Commission

2nd Respondent

Chief Magistrate's Anti-Corruption Court at Nairobi

3rd Respondent

Judgment

1. By their petition dated 21st February, 2022 filed herein on 24th February 2022 the Petitioners seek the following prayers: -“a)That a declaration that the prosecution of the Petitioners in Chief Magistrate’s Court in Anti-Corruption Criminal Case Number 22 of 2019 is unconstitutional and amounts to an abuse of the legal process.b)That a declaration prohibiting the Respondents from sustaining, proceeding, hearing, conducting or in any manner dealing with the charge laid or proceedings conducted in the Chief Magistrate’s Court in Anti-Corruption Criminal Case Number 22 of 2019 or instituting any other charges in any other court against the Petitioners over the same subject matter.c)That a declaration that the charge and proceedings in the Chief Magistrate’s Court in Anti-Corruption Criminal Case Number 22 of 2019 as contemplated by the Respondents are unconstitutional and an abuse of the legal process.d)That such other relief as the Court may deem just and fit to grant; ande)Costs of the Petition.”

2. The petitioners were employees of the County Government of Kiambu in different capacities, who by a letter dated 23rd February 2018 were appointed to the Tender Evaluation Committee for a Tender CGK/RTPW&U/142/2017/18 by the Kiambu County Government Chief Officer for Roads, Transport Public Works and Utilities. This was after the tender which was for upgrading of various gravel roads to bituminous surface in Thika, Limuru, Gatundu North, Juja & Ruiru sub-counties was advertised in the local dailies on 10th February, 2018.

3. Once the bids closed and opened on 26th February, 2018 at 12 noon there were five bidders. The Petitioners proceeded to carry out an evaluation and found four to be unresponsive for various reasons among them failing to serialize the tender documents. In their view only one bidder more specifically Testimony Enterprises Limited met the criteria and so they recommended it for award of the tender via a report dated 5th March, 2018.

4. The Petitioner’s contend that in evaluating the bids they took into account Section 79(1) of the Public Procurement and Asset Disposal Act but that when one Justus Bundi Kinoti, the Director of Supply Chain Management reviewed their report his professional opinion to the Accounting Officer was that there were gaps and which needed to be addressed in accordance with Section 46 of the Public Procurement and Asset Disposal Act. They however contend that those gaps were not brought to their attention to address and that in any event the Accounting officer overruled that professional opinion and he was awarded the tender.

5. The Petitioners state that on 29th July, 2019 they were arrested and charged in Anti-Corruption Cr. Case No. 22 of 2019 allegedly for introducing a new criteria to the evaluation, namely requirement for serialization of the bid documents, contrary to Section 80(2) of the Public Procurement and Assets Disposal Act. It is their contention however that the said serialization is a mandatory requirement under Section 74(1)(ii) and Section 135(6) of the Pubic Procurement and Assets Disposal Act 2015 and it cannot therefore constitute a criminal offence; that the ongoing criminal proceedings against them are an abuse of the court process and a breach of their constitutional rights and hence their petition ought to be allowed with costs.

6. In the written submissions filed herein on 28th April 2022 learned Counsel for the petitioners submitted that the prosecutorial discretion of the Director of Public Prosecutions under Article 157(6) is not absolute as the same is limited under Article 157(11) of the Constitution and that this court has jurisdiction to prevent the prosecution of criminal proceedings that amount to abuse of the court process more especially because the Director of Public Prosecutions has a constitutional duty to prevent and avoid abuse of the legal process.

7. To buttress his submissions Learned Counsel for the petitioners urged this court to scrutinize the charge facing the Petitioners and the evidence (documents) of the prosecution to find out whether or not the alleged acts constitute an offence under procurement law. Counsel placed reliance on the case of Diamond Hasham Lalji & Another v Attorney General & 4 others [2018] eKLR and the case of Njuguna S Ndung'u v Ethics and Anti-Corruption Commission (EACC) & 3 others [2018] eKLR.

8. Counsel further asserted that compliance with the Public Procurement and Asset Disposal Act cannot constitute a criminal offence. Counsel submitted that the petitioners were required to examine and determine responsiveness of bids prior to evaluation and comparison of the bids as provided in Section 80(1) of the Public Procurement and Assets Disposal Act. Counsel cited the case of Public Procurement Administrative Review Board, Principles Styles Limited & Another (Interested Parties) Ex parte Accounting Officer, Kenya Water Towers Agency [2020] eKLRin support of his submissions. Counsel also placed reliance on the case of Republic v Public Procurement Administrative Review Board; Nairobi City Water and Sewerage Company Limited & Another (interested parties) ex parte Four ways Construction Company Limited [2019] eKLRand the case of Republic v Public Procurement Administrative Review Board; Exparte Accounting Officer Kenya Ports authority & Another; FCM Travel Solutions t/a Charleston Travel Limited and 3 others (interested parties) [2021] eKLRwhere the courts discussed the issue of serialization of bid documents at length and came to the conclusion that serialization was mandatory under Section 74 of the Public Procurement and Assets Disposal Act, 2015. Counsel submitted therefore that the decision of the 1st Respondent to charge the Petitioners in unreasonable, that the charge has no legal or factual foundation, that it lacks any realistic chance of conviction, is oppressive, violates the petitioners’ right to fair administrative action that is lawful, reasonable and procedurally fair and hence the petition ought to be allowed.

9. The petition is vehemently opposed. For the 1st Respondent it was submitted firstly, that the petitioners have not demonstrated the prejudice they will suffer in the ongoing prosecution; that the petitioners must demonstrate that substantial injustice would otherwise result if the criminal proceedings are not stayed; that as an impartial arbiter the trial court should be given an opportunity to determine that in charging the petitioners the 1st Respondent simply exercised its statutory and constitutional powers. Citing the definition of what constitutes abuse of legal process in the case of Kangwana & 2 others v Director of Public Prosecutions & 3 others [2022] KEHC 170 (KLR). Learned Counsel for the 1st Respondent submitted that the Petitioners have not proved to this court that they will not get a fair trial in the trial court nor have they proved the institution of the proceedings in CMACC No. 22 of 2019 is a violation either of the constitution or of their rights under the Constitution. In regard to prayer (b) of the Petition Counsel submitted that it is trite that the remedy of prohibition should be granted sparingly and only so as to cure prospective breaches of the law which breaches do not exist in this case. To support this submissions Counsel placed reliance on the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR. Counsel urged this court to therefore dismiss the petition with costs to the 1st Respondent.

10. The 2nd Respondent also vehemently opposed the petition. The 2nd Respondent’s arguments are that firstly, the petition is fatally defective for failing to cite the Articles of the constitution that have been violated and the manner of violation. Secondly, that the petitioners are seeking determination of the issues in the criminal proceedings through this petition; that the charges relate to the petitioners as persons concerned with the administration of public property who willfully failed to comply with Section 80(2) of the Public Procurement and Assets Disposal Act 2015 and Regulation 16(5)(a) of the Public Procurement and Disposal Regulations 2006 by introducing a new criteria requiring serialization of bid documents and filled form of tender during evaluation of the tender the subject of the criminal proceedings and also the recovery suit filed against them. Placing reliance on the case ofDPP & Another v Crossley Holdings Limited & others Civil Appeal No. 1 of 2013 Learned Counsel for the 2nd Respondent urged this court to find that the petitioner’s averments and submissions regarding the charges are matters to do with the merits of the decision to charge rather than legality and accordingly dismiss the petition. Counsel stated that the petitioners having failed to prove that their prosecution is unconstitutional or an abuse of court process cannot be granted a prohibition order against the respondents. Counsel relied on the holding of the Court of Appeal in the case of DPP v Crossley Holdings Limited (supra) that: -“Absent dishonesty, bad faith or some exceptional circumstances, the decision of the commission and the AG to investigate, recommend and prosecute respectively should not be amenable to judicial review in court.”

11. Counsel reiterated that the petitioners have not demonstrated bad faith or dishonesty or unreasonableness of the decisions of the Respondents and hence there is no sufficient ground to grant an order of prohibition.

12. Counsel for the 2nd Respondent also placed reliance on the case of Anarita Karimi Njeru v The Republic [1976 – 1980] KLR, the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLRand the case of Benson Masita Muteti & 5 others v Chief Magistrate Milimani Law Courts & 4 others [2020] eKLR.

Analysis and determination 13. The gravamen of this petition is the criminal proceedings against the petitioners by the 1st Respondent which prosecution was informed by investigations carried out by the 2nd Respondent.

14. It is now trite, and there is a long line of cases to that effect, that the 1st Respondent’s decision to charge, although it is a constitutional edict, is limited. See the case of Githunguri v Republic [1985] KLRpage 92 where it was held:-“The Attorney General is given unfettered discretion to institute and undertake criminal proceedings by Section 26 of the Constitution but this discretion should be exercised in a judicious way. It should not be exercised arbitrarily, oppressively or contrary to public policy.........”However as was held by the Court of Appeal in the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR the discretion of this court to interfere with the 1st defendant’s decision to charge is to be exercised sparingly “and in the exceptional and clearest of cases.”

15. To succeed a party must prove wrong doing on the part of the 1st Respondent. My so saying finds support in the holding of Mumbi Ngugi J, as she then was, in the case of Benson Muteti Masila & 5 others v Chief magistrate Milimani Law Courts & 4 others (supra) where she stated: -“121. The Constitution has guaranteed to its citizens the rights set out in Chapter Four of the Constitution. It has given the court the jurisdiction to intervene where a violation of these rights has been demonstrated. However, the same Constitution has given other Constitutional bodies certain mandates, among them the investigation and prosecution of offences. It is in the public interest that these bodies are allowed to carry out their mandates without interference, and there must be very clear and cogent reasons for the court to interfere with the exercise of their powers. ......”

16. Similarly in the case of Total Kenya Limited & 9 others v Director of Criminal Investigations Department & 3 others [2013] eKLR Majanja J took the same position and stated: -“...21. Although this court has inherent jurisdiction to stop abuse of its process by prohibiting criminal proceedings where the same are found to be oppressive or otherwise an abuse of its process, such power must be exercised ever so cautiously so as not to stifle what is otherwise the lawful discharge of constitutional mandate by the police service and the DPP. That is why in Kenya Commercial Bank Ltd case (supra), I stated that “[23]....the High Court may stop proceedings actual or contemplated, are oppressive, vexatious and abuse of the court process and a breach of fundamental rights and freedoms.....”

17. It was argued by Counsel for the Respondents that in determining whether sufficient grounds exist to warrant this court to interfere with that decision this court cannot go into the merits of the criminal case and that the trial court ought to be given an opportunity to decide the case on its merits. To this end Counsel for the 2nd Respondent cited the case of DPP & Another v Crossley Holdings Limited & 2 others [2015] eKLRwhere the Court of Appeal stated:-“It is clear from the passage and from the judgment of the High Court as a whole that the learned Judge embarked on a review of the evidence to determine the sufficiency for the purpose of determining whether the charges before the subordinate court would be sustained............ the sufficiency or otherwise of evidence to support the charge goes to the merit of the decision of the Attorney General and not the legality of the decision....... the High court should have been slow ......to use judicial review to attempt to resolve points “which would otherwise be dealt with in the ordinary course of criminal proceedings.”

18. In rebuttal Learned Counsel for the Petitioners cited the decision of that same court in the case of Njuguna S Ndungu v Ethics and Anti-Corruption Commission (EACC) & 3 others [2018] eKLR where Githinji JA stated:-“In my respectful view, the High Court erred in law by failing to scrutinize the charges, the relevant documents including the decisions of Evaluation Committee, Tender Committee, Review Board and the High Court proceedings and reach a conclusive and objective decision on whet her or not the charges had any legal or factual foundation and also a realistic prospect of conviction.”

19. The issue of whether this court ought to delve into the merits of the charge against the Petitioners and to look at the evidence presented before it or whether it must confine itself to the process by which the decision was arrived at was settled by the Supreme Court in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport and Infrastructure 3 others [2021] eKLR where the Court stated:-“107. The court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the court can do when determining a constitutional petition....108. We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.109. The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.”

20. It is clear from the above decision of the supreme Court that in determining this petition this court is not, unlike in an application for judicial review, confined only to looking into the decision to charge but it must also consider whether there is merit in that decision it can only do so by examining the documents placed before it by the parties so as to determine whether an offence was disclosed as to warrant the Respondents to charge the petitioners.

21. In the case of Jago v District Court (NSW) 168 LLR 23, 87, ALR 57 cited with approval in the case of Prafulchandra Bharmal v Chief Magistrate Kibera & 3 others [2020] eKLR Brennan J stated:-“An abuse of process occurs when the process of court is put in motion for purposes which in the eye of the law, it is not intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in a conduct which amounts to an offence and on that account is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process.”

22. In the case ofEsther Gathoni Mwangi v Director of Public Prosecutions & 2 others; William Chartes Fryda & 3 others (interested parties)[2022] eKLRMrima J paraphrased instances where the court ought to exercise its discretion to stop a prosecution as follows: -“87. From the foregoing, it comes to the fore that there are instances where a Court ought to exercise its discretion and stop a prosecution. Such instances, include, and where it is demonstrated that: -i.Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court;ii.Where the quashing of the impugned proceedings would secure the ends of justice;iii.Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;iv.Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged;v.Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.vi.The prosecution is not in public interest;vii.The prosecution is not in the interests of the administration of justice;viii.The prosecution is oppressive, vexatious and an abuse of the court process;ix.The prosecution amounts to a breach of rights and fundamental freedoms;x.The investigation and prosecution amounts to abuse of power and discretion and is aimed at achieving an ulterior or improper motive;xi.The investigation and the prosecution are tainted with illegality, irrationality and procedural impropriety;xii.The investigation and prosecution is in gross contravention of the Constitution and the law.”

23. In the instant case the charge facing the petitioners is as follows:-“Count viStatement of offenceWillful failure to comply with the law relating to procurement contrary to Section 45(2)(b) as read with Section 48 of the Anti-Corruption and Economic Crimes Act, 2003. Particulars of the Offence7. Zacharia Njenga Mbugua 8. Joyce Nginga Musyoka 9. Simon Kabocho Kan’gethe 10. Anselm Gachukia Wanjiku 11. Samuel Muigai Mugo: on 5th March, 2018 within Kiambu county in the Republic of Kenya, being members of the Tender Evaluation Committee for the Kiambu County Government and being persons concerned with the administration of public property jointly and willfully failed to comply with the laws relating to procurement to wit Section 80(2) of the Public Procurement and Asset Disposal Act, 2015 by introducing new criteria, namely requirement for serialization of bid documents and filled form of tender during the evaluation of Tender No. CGK/RTPW&U/142/2017-2018 for upgrading of various gravel roads to Bituminous surface.”

24. In summary the petitioners are alleged to have committed an offence for introducing a new criterion to the tender, namely the requirement for serialization of bid documents and filled form of tender during the evaluation stage. The Petitioner’s contention however is that serialization is one of the criteria under Section 74 (1)(i) and 134(8) of the Public Procurement and Asset Disposal Act of 2015 and that their consideration of that requirement cannot constitute an offence. On its part the 2nd Respondent contends that Section 80(2) of the Public Procurement and Asset Disposal Act provides that evaluation and comparison of bids be done using procedures and criteria set out in the tender; that while compliance by a contractor with serialization of bid documents and filled form of tender may not constitute a criminal offence, introduction of that criteria by the Petitioners at the evaluation stage constitutes a criminal offence - (See Paragraphs (20 and 21 of the 2nd Respondent’s replying affidavit sworn by Shadrack Mwendwa)

25. My understanding of the above allegation by the 1st Respondent is that the tender document in issue did not have a requirement for serialization of the bid documents. The Respondents did not avail the tender to this court and the one annexed to the petition is not very legible. There is therefore no proof before me that the tender did not require a serialization of the bid documents. Be that as it may Section 74 (1)(i) of the Public Procurement and Assets Disposal Act, 2015, makes serialization of bid documents a mandatory requirement. The same states:-“74. Invitation to tender1. The accounting officer shall ensure the preparation of an invitation to tender that sets out the following—a.the name and address of the procuring entity;b.the tender number assigned to the procurement proceedings by the procuring entity;c.a brief description of the goods, works or services being procured including the time limit for delivery or completion;d.an explanation of how to obtain the tender documents, including the amount of any fee, if any;e.an explanation of where and when tenders shall be submitted and where and when the tenders shall be opened;f.a statement that those submitting tenders or their representatives may attend the opening of tenders;g.applicable preferences and reservations pursuant to this Act; (h) a declaration that the tender is only open to those who meet the requirements for eligibility;h.requirement of serialization of pages by the bidder for each bid submitted; andi.any other requirement as may be prescribed.” (Emphasis mine)

26. Section 135(6) of the Actprescribes the minimum contents of a tender document part of which is a schedule of the requirements set out in Section 74(1)(i) of the Act. If the invitation to tender document did not have a requirement for serialization then the person to blame was the Accounting officer who had an obligation to ensure that the document met the prerequisites set out in Section 74(1)(ii) of the Act.

27. It is instructive that Regulation 74 (1) (b) of the Public Procurement and Asset Disposal Regulations 2020 obligated the evaluation committee to conduct a preliminary evaluation to determine whether – inter alia:-“b)The tender has been submitted in the required format and serialized in accordance with Section 74 (1) (i) of the Act.

28. To my mind in view of the above provisions of the law the allegations levelled against the petitioners do not at their face value constitute the offence alleged. The Petitioners were simply doing what was required of them by the law. This is more so given that after the petitioners evaluated and approved the tender they forwarded their report to the head of procurement, as set out in Section 80(4) of the Act, who upon considering the same overruled their report and made a recommendation for the same to be remitted to the committee to cover certain areas. The report was however not remitted to the petitioners but was instead approved by the Accounting officer.

29. The Respondents had an opportunity to prove to this court that the decision of the Petitioners was made in bad faith or that it was influenced by extraneous circumstances, other than the interest of the public or public good. They did not do so. They instead chose to stick to the deposition by the investigating officer that “compliance by a contractor with serialization of bid documents and filled form of tender may not constitute a criminal offence but however on the part of the petitioners as tender evaluation members, introduction of new criteria requiring serialization of bid documents and filled form of tender during evaluation constitutes a criminal offence” without disclosing why it was an offence yet it was a requirement of the law.

30. To charge the Petitioners for doing what was required of them under the law while not preferring any charges against the Accounting officer who approved the tender despite the adverse comments of the Head of Procurement and without remitting it back to the Petitioners to address those concerns is an abuse of the court process. It is also a violation of Article 236 of the Constitution which guarantees protection to public officers who act in good faith which protections is sacrosanct. Accordingly, I find merit in the petition and the same is allowed and orders shall issue as follows:-a)That a declaration be and is hereby issued that the prosecution of the Petitioners in the Chief Magistrate’s Court in Anti-Corruption Criminal Case Number 22 of 2019 is unconstitutional and amounts to an abuse of the legal process.b)That a declaration prohibiting the Respondents from sustaining, proceeding, hearing, conducting or in any manner dealing with the charge laid or proceedings conducted against the Petitioners herein in the Chief Magistrate’s Court in Anti-Corruption Criminal Case Number 22 of 2019 or instituting any other charges in any other court against the Petitioners over the same subject matter.c)That a declaration be and is hereby issued that the charge and proceedings against the Petitioners herein in the Chief Magistrate’s Court in Anti-Corruption Criminal Case Number 22 of 2019 as contemplated by the Respondents are unconstitutional and an abuse of the legal process.e)That each party to bear their own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 6THDAY OF OCTOBER, 2022. E N MAINAJUDGE