[2022] KEHC 11207 (KLR)

Mini Cabs & Tours Company Limited v Attorney General & 2 others (Petition 450 of 2019) [2022] KEHC 11207 (KLR) (Constitutional and Human Rights) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11207 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 450 of 2019

HI Ong'udi, J

June 16, 2022

IN THE MATTER OF THE CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(5) & (6), 22, 23(1) & (3), 31(a) (b) & (c), 35(1), 40 (3), 47(1) & (2), 49(1) (a) (ii), (b) & (d), 50(2) (a) (b) (i), 258 AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND SECTION 4 (2) OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND SECTION 4 (1) (2) & (3) OF THE ACCESS OT INFORMATION ACT, 2016 AND ARTICLE 11(1) OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND ARTICLE 14 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS

Between

Mini Cabs & Tours Company Limited

Petitioner

and

The Attorney General

1st Respondent

Inspector General, National Police Service

2nd Respondent

Director of Criminal Investigation

3rd Respondent

The Director of Criminal Investigations infringed on the right to silence and the right against adducing self-incriminating evidence by demanding production of documents of company by use of threats

In the instant case, the Director of Criminal Investigation officers (DCI) informed the petitioner that failure to avail documents that they had requested for would result in them securing a search and seizure order from the court to enable them obtain the sought information. The court held that the DCI violated the petitioner’s right against adducing self-incriminating evidence under article 49(1)(b) and (d) and 50 of the Constitution, by use of threats, and intimidation instead of obtaining search warrants and orders from the court.

Reported by Kakai Toili

Constitutional Law- fundamental rights and freedoms - right to access to information and right to refuse to give self-incriminating evidence - nature of an accused person’s right against self-incrimination - claim that the Director of Criminal Investigations (DCI) had used threats against a company so as to obtain information whilst conducting investigations on tax evasion against the company - whether the DCI violated the right against adducing self-incriminating evidence by use of threats and intimidation to obtain documents from a company - whether a person being investigated was entitled to the details of the investigation before the investigation was complete - what did courts consider in a challenge to a decision by the DCI to investigate a person - Constitution of Kenya, 2010, articles 49(1)(b) and (d) and 50.

Brief facts The petitioner filed the instant petition seeking among others; a declaration that by demanding production of documents from it, the Director of Criminal Investigation (the 3rd respondent) infringed on its constitutional right to silence and the right to refuse to give self-incriminating evidence; and a declaration that the 3rd respondent’s refusal to disclose the information requested for by the petitioner violated its right to access to information.The petitioner claimed that the 3rd respondent’s officers claimed that a complaint had been lodged against it with respect to tax evasion in collusion with Kenya Revenue Authority (KRA) officials. The petitioner further claimed that the 3rd respondents’ officers asked the petitioner to produce its financial statements and other documentation. However, the petitioner’s officers did not honour that demand. The petitioner wrote to the 3rd respondent on December 7, 2018 requesting to be furnished with information on the complaint and statement lodged with reference to the tax evasion allegations, particulars of the specific offences the petitioner was alleged to have committed, identity of the complainant and identity of the rogue KRA officials. On December 10, 2018, the 3rd respondent’s officer informed the petitioner that the information sought would not be released as they were not obligated to release it.The petitioner stated that the 3rd respondent’s officers inquired whether the information they had sought to be released was ready for collection and that the officers informed them that failure to comply, would result in them securing a search and seizure order from the court to enable them obtain the sought information. The petitioner claimed that it had no obligation to supply any of the documents requested for by the 3rd respondent. The petitioner contended that they had a right to access information and also to remain silent.The 3rd respondent argued that the right to access information was not absolute and was limited where there were sufficient grounds. The 3rd respondent further stated that the petitioner was supplied with a copy of the complaints but full particulars of the other documentation could only be supplied once the investigation was complete. The 3rd respondent averred that during an investigation the police had a right to request for information if the same would assist in establishing a prima facie case against the petitioner and that if the information sought was not supplied voluntarily, the same could be obtained legally through a court order.

Issues

What was the nature of an accused person’s right against self-incrimination?

Whether the Director of Criminal Investigations violated the right against adducing self-incriminating evidence by use of threats and intimidation to obtain documents from a company.

Whether a person being investigated was entitled to the details of the investigation before the investigation was complete.

Relevant provisions of the Law Constitution of Kenya, 2010Article 49 - Rights of arrested persons(1) An arrested person has the right--(b) to remain silent;(d) not to be compelled to make any confession or admission that could be used in evidence against the person;Article 50 - Fair haring(2) Every accused person has the right to a fair trial, which includes the right—(l) to refuse to give self-incriminating evidence.

Held

The mandate of the 3rd respondent bore its origin in the Constitution of Kenya, 2010 (Constitution) under article 245. That article established the command of the National Police Service. In line with article 245(8), Parliament enacted the National Police Service Act, 2011 which gave effect to the operations of the National Police Service. Section 24 of the Act provided the functions of the police. Further under section 35 of the Act, the functions for the 3rd respondent whose office was established under section 28 of the Act were spelt out.

The mandate of the 3rd respondent was safeguarded and envisaged in the Constitution. In fact the Constitution made known that the 3rd respondent while carrying out its mandate did so independently without any direction from any person or entity on how to carry out its function. The courts would not interfere with the 3rd respondent’s constitutional mandate of investigations in exercise of the functions of that office.

In such matters, the courts were not concerned with the merits of the case being investigated but the decision-making process. In essence, the determination focused on whether the process adhered to the constitutional and statutory principles of the process or procedure and not whether the decision was merited or not. That was for the trial court to decide. Therefore, where a petitioner showed that the criminal investigation constituted an abuse of the process, the court would not hesitate putting a halt to such a process.

The evidence relied upon by the 3rd respondent had to have also adhered with the canons of the law during the investigation stage. That was because the evidence would be presented in court by the prosecution to advance its case. For that reason, where it was found that the evidence adduced breached the principles of the law, the same would not be admissible. In essence that meant that the dictates of evidence as cited in article 49 and 50 of the Constitution applied during the investigation stage and the rights therein also accorded to persons under investigation.

An accused person’s right against self-incrimination constituted giving oral or documentary evidence that would be used against that person. That right essentially challenged the admissibility of the documents sought to be eventually admitted into evidence if the petitioner was charged. A look at the material placed before the court showed that the 3rd respondent did indeed direct the petitioner to issue a number of documents to aid in the investigations.

The petitioner was not willing to release the information in fear that the same would be used against it in the end. That information was however only released when the 3rd respondent pressed the petitioner’s hand by asserting that the information if not released would be acquired by other legal means. While that was allowable in law, the issue stemmed from the possible situation where the documents supplied were the only ones relied on in court. In the event that the 3rd respondent failed to procure and produce any other independent documentary evidence the petitioner would have fundamentally incriminated itself in the end.

The 3rd respondent although carrying out its constitutional mandate failed to consider the fundamental right in law which guarded against self-incrimination. The exclusionary law helped to protect the rights of suspects at the pretrial stage, that was, the person’s immunity against self-incrimination. The court would be called upon to intervene in situations where authorities and persons acted in bad faith, abused power, failed to take into account relevant considerations in the decision making or took into account irrelevant considerations or acted contrary to legitimate expectations.

The 3rd respondent violated the petitioner’s right against adducing self-incriminating evidence under article 49(1)(b) and (d) and 50 of the Constitution, by use of threats, and intimidation instead of obtaining search warrants and orders from the court.

The 3rd respondent was constitutionally mandated to carry out its investigative role independently without direction from any person. The petitioner was not entitled to the details of the investigation at that juncture other than being informed of the 3rd respondent’s claim. All that would be availed to the petitioner in due course as dictated by the Constitution and the law depending on the trajectory the case took. The 3rd respondent did not violate the petitioner’s right under article 35 of the Constitution.

Under article 47 of the Constitution, a person was entitled to an administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Moreover, if the right of a person was likely to be adversely affected by an administrative action, the person had the right to be given written reasons for the action. The 3rd respondent’s mandate to carry out investigations was lawful and as long as it was done in line with the set principles the same would not be interfered with.

The 3rd respondent engaged the petitioner in their expected manner and communicated with the petitioner throughout their inquiry. The 3rd respondent’s actions were lawful in accordance with section 28(b) of the National Police Service Act and the process of inquiry was reasonably actioned. The 3rd respondent as per the petitioner’s request later on issued the complaint lodged for their information.

In carrying out its mandate the 3rd respondent enjoyed independence to enable it commence and finish its investigations. In that way it was unreasonable to expect it to answer and give reasons for all its investigative steps and issue information whilst a matter was still under investigation. That would in effect hinder its ability to carry out its mandate. The product of its investigation was subject to testing by the trial court in the end. At that stage an accused person had an opportunity to challenge the finding made by the 3rd respondent, and was entitled to the supply of all materials relied on.

The 3rd respondent’s actions in the context of article 47 of the Constitution did not run afoul the established principles of the criminal justice system and the Constitution. That was because the petitioner was informed of the action being carrying out and its purpose. Additionally, the evidence adduced by the petitioner did not show that the 3rd respondent carried out its’s duty in a manner that contravened article 47 of the Constitution. The petitioner’s right under articles 49(1)(b)(d) and 50(2)(l) of the Constitution were violated by the 3rd respondent.

Petition partially allowed.

Orders

Declaration was issued that by demanding production of documents from the petitioner by use of threats, the 3rd respondent infringed on the petitioner’s constitutional right to silence and the right to refuse to give self-incriminating evidence guaranteed under articles 49 and 50 of the Constitution.

The prayer that sought a declaration that the 3rd respondent’s refusal to disclose the information requested for by the petitioner in its letter dated December 7, 2018 violated the petitioner’s right to access information as guaranteed in articles 35(1) and 47(1) of the Constitution; and the prayer that sought an order directing the 3rd respondent to release a copy of the complaint together with the identity of the complainant and all details surrounding the allegations made in the complaint had been overtaken by events as the complaint and complainant were later disclosed to the petitioner.

The prayer that sought an injunction restraining the 2nd and 3rd respondents their agents or servants or any of them from demanding or in any other manner whatsoever attempting to obtain the documents outlined in the 3rd respondent’s letter of December 6, 2018 or any other documents belonging to the petitioner for purposes of investigation into allegations of tax evasion was not merited as the respondents were under the law allowed to apply for search warrants.

Each party to bear its own costs.

Citations CasesKenya Ayisi, Robert K v Kenya Revenue Authority & another Petition 412 of 2016; [2018] KEHC 6948 (KLR) - (Mentioned)

Cholmondeley v Republic [2008] KLR 190 - (Explained)

Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others Petitions 628, 630 of 2014 & 12 of 2015; [2015] eKLR (Consolidated) - (Mentioned)

COI & another v Chief Magistrate Ukunda Law Courts & 4 others Civil Appeal 56 of 2016; [2018] KECA 15 (KLR) - (Explained)

Commissioner of Police & 2 others v Kenya Commercial Bank Limited & 4 others Civil Appeal 56 of 2012; [2013] KECA 182 (KLR) - (Explained)

Kahiu, Samuel v Muktar Mahat, Deputy Adminstration Police Commander (DAPC) Athi River & 3 others Miscellaneous Criminal Application 102 of 2018; [2019] KEHC 10862 (KLR) - (Explained)

Mumbi, Susan v Kefala Grebedhin Civil Case 332 of 1993 - (Explained)

Mungai, Francis Mburu v Director of Criminal Investigations & another Miscellaneous Application 615 of 2005; [2006] KEHC 2649 (KLR)

Mutava, Joseph Mbalu v Attorney General & another Petition Number 337 of 2013; [2014] eKLR - (Mentioned)

Mwilu, Philomena Mbete v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) Petition 295 of 2018; [2019] eKLR - (Explained)

Njunge, Isaac Tumunu v Director of Public Prosecutions & 2 others Miscellaneous Application 210 of 2016; [2016] KEHC 2673 (KLR) - (Explained)

Republic v Commissioner of Lands ex-parte Lake Flowers Limited Miscellaneous Application 1235 of 1998; [1998] eKLR - (Followed)

Republic v Commissioner of Police & another ex-parte Michael Monari & another Judicial Review 68 of 2011; [2012] KEHC 4595 (KLR) - (Explained)

Republic v John Kithyululu Criminal Case 12 of 2015; [2016] KEHC 5990 (KLR) - (Explained)

Republic v Mark Lloyd Steveson Criminal Revision 1 of 2016; [2016] KEHC 4022 (KLR) - (Explained)

Republic v National Police Service Commission ex-parte Daniel Chacha Miscellaneous Application 36 of 2016; [2016] eKLR - (Mentioned)

Sceneries Limited v National Land Commission Miscellaneous Constitutional Application 1 of 2016; [2017] eKLR - (Mentioned)

Standard Newspapers Limited & another v Attorney General & 4 others Petition 113 of 2006; [2013] eKLR - (Explained)

Tasur, Kipoki Oreu v Inspector General of Police & 5 others Petition 366 of 2013; [2014] eKLR - (Explained)

United KingdomR v Sang [1979] UKHL 3; [1979] 3 WLR 263; [1980] AC 402 - (Explained)StatutesKenya Access to Information Act, 2016 (Act No 31 of 2016) section 6 - (Interpreted)

Constitution of Kenya articles 2(5)(6); 10; 22; 23(1)(3); 31(a)(b)(c); 35(1); 40(3); 47(1)(2); 49(1)(a) (ii)(b)(d); 50(2)(a)(b)(i); 258; 260 - (Interpreted)

Criminal Procedure Code (cap 75) section 22 - (Interpreted)

National Police Service Act, 2011 (Act No 11A of 2011) sections 24, 28(b); 35 - (Interpreted)

Instruments African Charter on Human and Peoples' Rights (Banjul Charter), 1981 article 14

European Convention on Human Rights, 1948 article 8

International Covenant on Civil and Political Rights (ICCPR), 1966 article 17

Universal Declaration of Human Rights (UDHR), 1948 article 12

AdvocatesNone mentioned

Judgment

1. The petitioner filed a petition dated December 13, 2018 for the alleged contravention of fundamental rights and freedoms under articles 2(5) & (6), 10, 22, 23(1) & (3),31(a)(b) & (c), 35(1), 40(3), 47(1) & (2),49(1)(a)(ii),(b) & (d), 50(2)(a)(b) &(i), 258 and 260 of theConstitution. Accordingly the petition seeks the following orders: -a)A declaration be issued that by demanding production of documents from the petitioner, the 3rd respondent infringed on the petitioner’s constitutional right to silence and the right to refuse to give self-incriminating evidence guaranteed under article 49 and 50 of theConstitution;b)A declaration be issued that the 3rd respondent’s refusal to disclose the information requested for by the petitioner in its letter dated December 7, 2018 violated the petitioner’s right to access information as guaranteed in articles 35(1) and 47(1) of theConstitution;c)An order directing the 3rd respondent to immediately release a copy of the complaint together with the identity of the complainant and all details surrounding the allegations made in the complaint.d)An injunction be issued restraining the 2nd and 3rd respondents their agents or servants or any of them from demanding or in any other manner whatsoever attempting to obtain the documents outlined in the 3rd respondent’s letter of December 6, 2018 or any other documents belonging to the petitioner for purposes of investigation into allegations of tax evasion; ande)The cost of this petition be borne by the respondents.

The Petitioner’s Case 2. The petition dated December 13, 2018 is supported by the averments in the petitioner’s supporting affidavit of even date sworn by Derek Lobo, the petitioner’s Chief Operating Officer. He avers that the petitioner offers tourism services in the tourism industry for both local and international tourists within Kenya.

3. He deposes that on December 5, 2018, the 3rd respondent’s officers led by Chief Inspector Christopher Ngito under the Economic and Commercial Crimes Unit came to the petitioner’s premises. They claimed that a complaint had been lodged against the petitioner with respect to tax evasion to the tune of Ksh 500 billion in collusion with Kenya Revenue Authority (KRA) officials. The officers asked the petitioner to produce its financial statements and other documentation. The petitioner’s officers could not honour this demand as they had not been authorized to release such documentation.

4. He depones that the 3rd respondent’s officers came back on December 6, 2018 and issued the petitioner with a letter addressed to Micato Safaris Limited which was unknown to them, but the officers insisted the letter was to the petitioner. Its contents sought production of the petitioner’s documents relating to its financial statements, KRA tax returns, invoices to clients, payment vouchers and petty cash vouchers, transfer pricing policy agreement, company brochures, list of employees, journal entry files and any other documents, all from 2012 upto that point.

5. He avers that the petitioner wrote to the 3rd respondent on December 7, 2018 requesting to be furnished with information on the complaint and statement lodged with reference to the tax evasion allegations, particulars of the specific offences the petitioner is alleged to have committed, identity of the complainant and identity of the rogue KRA officials. On December 10, 2018, the 3rd respondent’s officer informed the petitioner that the information sought would not be released as they were not obligated to release it.

6. He deposes that the 3rd respondent’s officers then inquired whether the information they had sought to be released was ready for collection. The officers informed them that failure to comply, would result in them securing a search and seizure order from the court to enable them obtain the sought information.

7. It’s his averment that it had no obligation to supply any of the documents requested for by the 3rd respondent under articles 35, 47, 49, & 50(2) of theConstitution. It’s advocates did a letter dated December 13, 2018 to the 3rd respondent contending that they had a right to access information and also to remain silent.

8. He deposes that the petitioner is apprehensive that once the 3rd respondent obtains the search and seizure orders ex parte, its sensitive proprietary financial information will be seized by the 3rd respondent in effect violating its constitutional rights.

The Respondents’ Case 9. The 3rd respondent vide a replying affidavit dated February 14, 2019 sworn by its officer Christopher Ngito (No 235002) Chief Inspector of the Economic and Commercial Crimes Unit avers that it is mandated under section 35(b) of the National Police Service Act to protect members of the public by detecting, preventing and undertaking investigations of all crimes.

10. With reference to the information requested for by the petitioner, he deposes that the right to access information is not absolute and is limited where there are sufficient grounds. In this case, a formal complaint had been lodged and investigations carried out. He however avers that the petitioner was supplied with a copy of the complaints but full particulars of the other documentation can only be supplied once the investigation is complete.

11. He deposes that during an investigation the police have a right to request for information if the same will assist in establishing a prima facie case against the petitioner. In the event, the information sought is not supplied voluntarily, the same can be obtained legally through a court order. He adds that section 22 of the Criminal Procedure Code authorizes the 3rd respondent to enter, search and seize any place. He however states that the petitioner has already availed some of the documentation with an undertaking to supply the rest of the information.

12. He avers that contrary to the petitioner’s assertion, the investigations revealed that the petitioner trades as Micato Safari’s Limited which in full stands for Mini Cabs & Tours Company Limited for which the tax evasion investigations were being conducted. He states that if the orders sought are granted, the same will have the effect of curtailing the investigations.

The Petitioner’s Response 13. The petitioner filed a further supplementary affidavit dated February 28, 2019 also sworn by Derek Lobo, who avers that the right to access information can only be limited by statute. Additionally he depones that although the petitioner supplied some of the information, the same was done following the 3rd respondent’s threats.

14. He admitted that the petitioner had eventually been supplied with a copy of the complaint which had been lodged by a former employee. Likewise he states that although the 3rd respondent can access the sought information through a court order, the same must be obtained where there is prima facie evidence that a crime has been committed.

15. The petitioner deposes that the complaint against it is scandalous and preposterous since it cannot be investigated for tax affairs of a non-existent legal entity that has evaded taxes. He adds that the investigation is aimed at achieving an ulterior objective and not in the pursuit of criminal justice. He depones that the administration of tax laws and investigation of tax evasion is within the exclusive mandate of KRA. In light of this he avers that the complainant should not have invoked the criminal process but rather taken his complaint to KRA.

Parties Submissions The petitioner’s submissions 16. The firm of Anjarwalla & Khanna Advocates on behalf of the petitioner filed written submissions dated March 20, 2019, a list of authorities dated March 21, 2019 and a supplementary list and bundle of authorities dated January 21, 2021. Counsel identifies the following as the issues for determination:a)Whether in demanding the petitioner to supply documents for purposes of aiding a criminal investigation into the petitioner’s affairs the 3rd respondent violated the petitioner’s constitutional right to silence under article 49 of theConstitution;b)Whether in demanding the petitioner to supply documents for purposes of aiding a criminal investigation into the petitioner’s affairs, the 3rd respondent violated the petitioner’s constitutional right against self-incrimination guaranteed under article 50(2) of Constitution;c)Whether in demanding that the petitioner discloses and provides proprietary financial information, the 3rd respondent violated the petitioner’s right to privacy guaranteed under article 31 of theConstitution;d)Whether the petitioner’s right to fair administrative action under article 47 of theConstitution has been violated; ande)Whether the costs of the petition should be borne by the respondents.

17. On the first issue, counsel submits that since the petitioner is under investigation it enjoys the right to remain silent as guaranteed under article 49(1)(b) of theConstitution. He however acknowledges that the article deals with arrested persons. He submits that the onus of proving the case against the petitioner lies with the 3rd respondent. Further, that the petitioner is entitled to the rights of an accused person under article 50(2)(l) of theConstitution not to give self-incriminating evidence. In support reliance was placed on the case of Republic v Mark Lloyd Steveson [2016] eKLR where the court noted that the privilege against compulsory self-incrimination is part of the common law of human rights.

18. It is counsel’s argument that in the event the 3rd respondent charges the petitioner based on the information it supplied it will mean that the petitioner’s right against self-incrimination has been grossly violated. Likewise counsel submits that the 3rd respondent’s failure to inform the petitioner of its constitutional rights under article 49 of theConstitution violated theConstitution. To buttress this point, reliance was placed on the Court of Appeal case of COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR which observed that pre-hearing investigations cannot be unconstitutional unless they infringe the rule against self-incrimination or the right of silence when the suspect is charged.

19. On this basis, counsel submits that the 3rd respondent’s demand that the petitioner releases information is a violation of its’ constitutional right to remain silent and right not to adduce self-incriminating evidence.

20. Moving on to the second issue counsel submits that the 3rd respondent’s officers demanded for information relating to the petitioner’s private affairs without any reasonable basis contrary to article 31 of theConstitution. In support of this argument he relied on the case of Standard Newspaper Limited & another v Attorney General & 4 others [2013] eKLR where it was held that citizens must be protected from unjustified intrusions of privacy and property by agents of the state.

21. Additional reliance was placed on the cases of Coalition for Reform and Democracy (CORD) & 2 others v Republic & 10 others [2015] eKLR and Robert K Ayisi v Kenya Revenue Authority & another [2018] eKLR. He also cited the provisions of article 12 of the Universal Declaration of Human Rights (UDHR), article 17 of International Covenant on Civil and Political Rights (ICCPR), article 8 of the European Convention on Human Rights (ECHR) and article 14 of the African Charter on Human and People’s Rights.

22. On the third issue counsel submits that article 47 of theConstitution dictates that an administrative action should be expeditious, efficient, lawful, reasonable and procedurally fair. He notes that a party has the right to be given notice and opportunity to be heard. In support he relied on the case of Sceneries Limited v National Land Commission [2017] eKLR where it was held that article 47 of theConstitution codifies every person’s right to fair administrative action. As such a person ought to be given reasons where an administrative decision is likely to adversely affect him/her. Additional reliance was placed on the cases of Republic v National Police Service Commission Exparte Daniel Chacha [2016] eKLR and Joseph Mbalu Mutava v Attorney General & another [2014] eKLR.

23. Counsel further submits that since investigations concerning tax evasion do not fall within the jurisdiction of the 3rd respondent but KRA, the 3rd respondent acted ultra vires. Moreover, he submits that the decision to investigate the petitioner falls within the precincts of administrative action which ought to be exercised in line with article 47 of theConstitution.

24. In conclusion, counsel emphasizes that the petitioner is not under obligation to supply the documentary evidence as held in the case of Thomas Patrick Gilbert Cholmondelely v Republic [2008] eKLR. He submits that there are several violations of the petitioner’s constitutional rights and as such the petition has merit.

The respondents’ submissions 25. The Attorney General through State Counsel, Michelle Omuom on behalf of the respondents filed written submissions dated January 26, 2022. She submits that the respondents acted within their statutory mandate to protect the members of the public. This mandate involves detecting crime, undertaking the investigation of serious crimes and preventing the commission of crime. She notes that article 245 of theConstitution provides that the Inspector General is to exercise independent command over the National Police Service. She submits that the 3rd respondent which is established under section 28 of the National Police Service Act, 2011 is mandated under section 35 of the National Police Service Act to undertake investigations of all serious crimes.

26. In support counsel cited the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKlR where the 2nd and 3rd respondents’ mandate was affirmed. On this premise she submits that the investigation commenced against the petitioner was within its mandate. Further that the petitioner was informed of the purpose of the investigation during the visit. As such it is counsel’s contention that the court ought not to interfere with the respondents’ mandate.

27. Turning over to the other point, counsel submits that the petitioner’s alleged infringed rights are not absolute in their nature and are subject to limitations under the law. In this regard, she submits that article 24(1) of theConstitution allows for the limitation of certain rights for the reasons stated under section 6(1) of the Access to Information Act (No 31 of 2016). She therefore submits that the right to access information is not absolute and that where there is evidence of sufficient grounds for the lodged formal complaint and investigations are being carried out, the respondents may withhold information in the process of investigations.

28. Moreover, counsel notes that the petitioner was informed vide the 3rd respondent’s letter (EXB DL -1) the reasons the information was being sought. Considering this, she submits that the respondents did not violate the provisions of article 35 of theConstitution for reasons that, there is no evidence of forced production of the documents. Additionally, the petitioner was given adequate opportunity to exercise its right to correct any untrue information in the course of the investigations by the respondents.

29. Counsel submits in reference to the right to privacy, that the right is also not absolute as it may be limited in the interest of public safety and public order under article 24 of theConstitution. On the right to fair administrative action, she submits that if the sought orders are granted, they will deny Kenyan citizens the right to equitable access of service that arises from revenue collections. This is because the investigations will be stalled, as a result.

30. Counsel submits that in view of the case made by the respondents the petitioner has failed to demonstrate a case for the grant of any of the orders sought in the petition. In support counsel relied on the case of Susan Mumbi v Kefala Grebedhin (Nairobi HCCC No 332 of 1993) where it was held that whoever alleges a fact must prove it.

31. She submits that the petitioner has not challenged the constitutionality of the provisions of the law which empower the respondents to act as mandated. In addition counsel states that the respondent’s officers responded to the petitioner’s demands. She therefore submits that the petitioner’s allegations are unfounded with the aim of interfering with the respondents’ statutory mandate.

Analysis and Determination 32. Having considered the pleadings, responses, submissions, and the law, I find the issues for determination to be as follows:i.Whether the petitioner’s rights under articles 35, 47, 49(1)(b)(d),50(2)(l) of theConstitution were violated; andii.Whether the petitioner is entitled to the reliefs sought.

33. The petitioner’s main assertion is the right against adducing self-incriminating evidence which brings into focus the powers of the Directorate of Criminal Investigations (DCI) who is the 3rd respondent. The mandate of the 3rd respondent bears its origin in theConstitution under article 245. This article establishes the command of the National Police Service and provides as follows:(1)There is established the office of the Inspector-General of the National Police Service.(2). . . .(3). . . .(4)The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to--(a)the investigation of any particular offence or offences;(b)the enforcement of the law against any particular person or persons; or(c)the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.(5)Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under article 157(4), shall be in writing.

34. In line with article 245(8) of theConstitution, Parliament enacted the National Police Service Act, 2011 which gives effect to the operations of the National Police Service. Section 24 of the Act provides the functions of the police as:a)provision of assistance to the public when in need;b)maintenance of law and order;c)preservation of peace;d)protection of life and property;e)investigate of crimes;f)collection of criminal intelligence;g)prevention and detection of crime;h)apprehension of offenders;i)enforcement of all laws and regulations with which it is charged; andj)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

35. Further under section 35 of the Act the following functions are for the 3rd respondent whose office is established under section 28 of theAct, are spelt out as follows:-a)collect and provide criminal intelligence;b)undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others;c)maintain law and order;d)detect and prevent crime;e)apprehend offenders;f)maintain criminal records;g)conduct forensic analysis;h)execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to article 157(4) of theConstitution;i)Co-ordinate Country Interpol Affairs;j)investigate any matter that may be referred to it by the Independent Police Oversight Authority; andk)perform any other function conferred on it by any other written law.

36. The courts have similarly addressed their mind to the powers and functions of the National Police Service. The court in Republic v Commissioner of Police & another ex-parte Michael Monari & another [2012] eKLR stated that:“It is also clear in my mind that the police have a duty to investigate on any complaint once a complaint is made. In deed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said not to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”

37. Correspondingly the Court of Appeal while offering caution on the mandate of the police in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR stated that;“...an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (...) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v R [2002] 1 EA 205. See also Kuria & 3 others v Attorney General [2002] 2 KLR.”

38. The Court of Appeal went further to state that:-“while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith.”

39. From the foregoing it is clear that the mandate of the 3rd respondent is safeguarded and envisaged in theConstitution. In fact theConstitution makes known that the 3rd respondent while carrying out its mandate does so independently without any direction from any person or entity on how to carry out its function. Naturally considering this, it is well settled that the courts will not interfere with the 3rd respondent’s constitutional mandate of investigations in exercise of the functions of that office. This position is supported by a plethora of authorities that have made determinations to this effect. I will highlight a few of the cases:

40. In the case of Kipoki Oreu Tasur v Inspector General of Police & 5 others [2014] eKLR the court observed that:“20. The criminal justice system is a critical pillar of our society. It is underpinned by theConstitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated.21. Thus, while the High Court does have jurisdiction, in the exercise of its constitutional mandate to protect the fundamental rights and freedoms of individuals and to supervise the conduct of inferior courts and tribunals, it cannot and should not interfere unless such cogent evidence as demonstrates a violation of rights or abuse of the criminal justice process is placed before it.”

41. By the same token, in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR the court opined as follows:43. …In my view the decision by a court to halt investigations from being conducted ought to be exercised very cautiously and in very clear cases. It is upon the ex parte applicant to satisfy the court that the discretion given to the relevant authorities to investigate allegations of commission of a criminal offence ought to be interfered with.

42. The court went on to find that:“44. Accordingly, unless and until a decision to charge a person is made by the police or the prosecutor, it is only in exceptional circumstances where the court would prohibit, a decision being taken either way by them.”

43. What’s more,it is evident in such matters that the courts are not concerned with the merits of the case being investigated but the decision making process. In essence, the determination focuses on whether the process adhered to the constitutional and statutory principles of the process or procedure and not whether the decision is merited or not. This is for the trial court to decide. It follows therefore that where a petitioner shows that the criminal investigation constitutes an abuse of the process, the court will not hesitate putting a halt to such a process.

44. The petition before this court primarily takes fault with the 3rd respondent’s action of seeking documentation from the petitioner. This has been fought vigorously. This is since one of the hallmarks and rights of accused persons is, not to be compelled to give self-incriminating evidence. Unmistakably the petitioner at this juncture is not an accused person but only being investigated by the 3rd respondent. The first question that comes to mind is whether for that reason the tenets of article 49 and 50 apply to the petitioner at this stage.

45. In answering this question I find guidance from the Court of Appeal case of COI & another v Chief Magistrate Ukunda Law Courts & 4 others (supra) as cited by the petitioner. The court citing the case of Francis Mburu Mungai v the Director of CID & another - High Court Misc App No 615 of 2005 (unreported) with approval held that:“though made under the former Constitution, we believe applies under the current Constitutionwith equal force. He stated:-“Under our Constitution pre-hearing investigations cannot be unconstitutional unless they purport to obtain evidence in an unlawful manner or they infringe on the rule against self-incrimination or violate the right of silence or because of the manner they have been conducted they seriously erode the presumption of innocence if and when the suspect is charged.”Consequently, such evidence should be expunged from the criminal proceedings.”

46. In the same way, the English case of R v Sang [1979] UKHL 3 offers some guidance. The court noted thus:-“Does a trial judge have a discretion to refuse to allow evidence—being ” evidence other than evidence of admission—to be given in any circumstances in which such evidence is relevant and of more than minimal probative value?”I understand this question as inquiring what are the circumstances, if there be any, in which such a discretion arises; and as not being confined to trials by jury. That the discretion, whatever be its limits, extended to whoever presides in a judicial capacity over a criminal trial, whether it be held in the Crown Court or in a magistrates’ court was expressly stated by Lord Widgery, CJ in Jeffrey v Black [1977] 3 WLR 895, an appeal by the prosecution to a Divisional Court by way of case stated from magistrates who had exercised their discretion to exclude evidence of possession of drugs that had been obtained by an illegal search of the accused’s room by the police. The Divisional Court held that the magistrates had exercised their discretion wrongly in the particular case.”

47. The key theme as can be discerned from these cases is that the evidence relied upon by the 3rd respondent must have also adhered with the canons of the law during the investigation stage. This is because the evidence will be presented in court by the prosecution to advance its case. For this reason where it is found that the evidence adduced breached the principles of the law, the same will not be admissible. In essence this means that the dictates of evidence as cited in article 49 and 50 of theConstitution apply during the investigation stage and the rights therein also accorded to persons under investigation.

48. The relevant sub-articles in article 49 and 50 of the Constitution on the right against self-incrimination provide as follows:Article 49(1)An arrested person has the right--(b)to remain silent;(d)not to be compelled to make any confession or admission that could be used in evidence against the person;

49. Further in article 50:(2)Every accused person has the right to a fair trial, which includes the right—(l)to refuse to give self-incriminating evidence.

50. Speaking on the right against adducing self-incriminating evidence the court in the case of Republic v John Kithyululu [2016] eKLR opined as follows:“7. The question of self-incrimination has been dealt with in several cases. In the case of Richard Dickson Ogendo & 2 others v Attorney General & 5 others [2014] eKLR, Majanja J stated as follows:-“To my mind the, the privilege of an accused person not to incriminate himself, protects against compulsory oral examination for the purposes of extorting unwilling confessions or declarations implicating the accused in the commission of the crime. The purpose of protection against self-incrimination was summed up by the US Supreme Court in Miranda v Arizona 384 US 436 (1996)”…8. In the case of Pennsylvania v Muniz 496 US 582, the United States Supreme Court further held as follows:-“The privilege against self-incrimination protects an "accused from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," Schmerber v California, 384 US 757, 384 US 761, but not from being compelled by the State to produce "real or physical evidence," id at 384 US 764. ”

51. Equally the court in the case Republic v Mark Lloyd Steveson (supra) expounded on the right as follows:“The privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. These social values justify the impediment the privilege presents to judicial or other investigations. It protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination; it is society’s acceptance of the inviolability of human personality. . . . .30. I believe that this statement captures the position under the Kenyan Constitution: The right against self-incrimination covers both testimonial as well as documentary evidence. As long as the evidence sought to be adduced is or was compelled either in court or outside court by an Investigating Officer or some other person in authority, such evidence is given due to testimonial obligation and will be excluded from the criminal trial of the accused person who is so compelled.31. It follows that any questioning of or eliciting of any documents or things from an accused person without the proper administration of caution or under circumstances in which the rules on confessions would apply is covered by the right against self-incrimination.”

52. The consensus of the existing jurisprudence as seen in the cited authorities is that an accused person’s right against self-incrimination constitutes giving oral or documentary evidence that will be used against that person. This right essentially challenges the admissibility of the documents sought to be eventually admitted into evidence if the petitioner is charged.

53. A look at the material placed before this court shows that the 3rd respondent did indeed direct the petitioner to issue a number of documents to aid in the investigations. The petitioner throughout remained apprehensive and maintained that it had a right to remain silent and not give self-incriminating evidence. In the 3rd respondent’s first visit on December 5, 2018 the petitioner’s officials explicitly declined to issue the sought information.

54. The petitioner averred that this stand was challenged by the 3rd respondent who intimated that if the same was not issued, the officers would obtain a search and seizure order from the court to obtain the information. This order as can be seen from the documents before this court was never sought. At this juncture the petitioner commenced the release of the information while demanding that the 3rd respondent also release the information on the complaint.

55. What is discernible from this matter in my opinion is that the petitioner was not willing to release the information in fear that the same would be used against it in the end. This information was however only released when the 3rd respondent pressed the petitioner’s hand by asserting that the information if not released would be acquired by other legal means. While this is allowable in law, the issue stems from the possible situation where the documents supplied are the only ones relied on in court. In the event that the 3rd respondent fails to procure and produce any other independent documentary evidence the petitioner will have fundamentally incriminated itself in the end.

56. This was well appreciated by the court in Republic v Mark Lloyd Steveson (supra) as follows in its finding:-“In this case, it is clear from the testimony of PW7, Mr Wamacho, that it is the accused person who, in response to his questioning, produced the email dated March 9, 2011 together with the attachment. The prosecution did not have any other independent source of the two documents. Indeed, even though PW2 (Susan Harris) was, allegedly, the recipient of the two documents, she did not state so in evidence. Instead, the Prosecution sought to produce the email which was, in the words of PW7 “brought to [him] by the accused” person. This makes it plainly clear that the two documents are inadmissible in evidence because they violate the right against self-incrimination.33. In my view, it would have made no difference even if the prosecution had been given more opportunity to show that the two documents were not self-incriminating: Mr Wamacho had already testified that he obtained the documents from the accused persons upon questioning. Consequently, for the two documents to be admissible, the Prosecution would have had to independently obtain them from a different source and not rely on the ones produced by the accused person as the right against self-incrimination covers those documents taken to Mr. Wamacho by the accused person. To be clear, what is excluded is not the contents of the two documents but the act of producing them by the accused person. Hence the contents of the document may not be privileged but the act of producing the documents may be (See United States v Doe 465 US 605 (1984) US Supreme Court).”

57. It is my humble view that in the circumstances of this case, the 3rd respondent although carrying out its constitutional mandate failed to consider this fundamental right in law which guards against self-incrimination. The exclusionary law as observed in the case of R v Sang (supra) helps to protect the rights of suspects at the pretrial stage, that is, the person’s immunity against self-incrimination. At this point I find myself in agreement with the findings in the case of Republic v Commissioner of Lands ex parte Lake Flowers Limited Nairobi HC MISC Application No 1235 of 1998 as cited with approval in the case of Samuel Kahiu v Muktar Mahat, Deputy Administration Police Commander (DAPC) Athi River & 3 others [2019] eKLR:“The court will be called upon to intervene in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations.”

58. Taking into consideration the preceding analysis, it is reasonable to state that the 3rd respondent violated the petitioner’s right against adducing self-incriminating evidence under article 49(1)(b) & (d) and 50 of theConstitution, by use of threats, and intimidation instead of obtaining search warrants and orders from the court.

59. On the flip side, I reiterate that the 3rd respondent is constitutionally mandated to carry out its investigative role independently without direction from any person. In this context I do not agree with the petitioner’s assertion that it is entitled to the details of the investigation at this juncture other than be informed of the 3rd respondent’s claim. All this will be availed to the petitioner in due course as dictated by theConstitution and the law depending on the trajectory the case takes. Considering this I do not find that the 3rd respondent violated the petitioner’s right under article 35 of the Constitution.

60. Turning over to article 47 of theConstitution, a person is entitled to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Moreover, if the right of a person is likely to be adversely affected by an administrative action, the person has the right to be given written reasons for the action. As stated in this analysis and affirmed by various authorities, the 3rd respondent’s mandate to carry out investigations is lawful and as long as it is done in line with the set principles the same will not be interfered with.

61. In this matter, the 3rd respondent engaged the petitioner in their expected manner and as can be seen from the material presented, communicated with the petitioner throughout their inquiry. The 3rd respondent’s actions in view of this were lawful in accordance with section 28(b) of the National Police Act and the process of inquiry was reasonably actioned. The 3rd respondent as per the petitioner’s request later on issued the complaint lodged for their information.

62. In carrying out its mandate the 3rd respondent enjoys independence to enable it commence and finish its investigations. In this way it is unreasonable to expect it to answer and give reasons for all its investigative steps and issue information whilst a matter is still under investigation. This would in effect hinder its ability to carry out its mandate. The product of its investigation is subject to testing by the trial court in the end. At that stage an accused person has an opportunity to challenge the finding made by the 3rd respondent, and is entitled to the supply of all materials relied on.

63. In my considered view I do not find that the 3rd respondent’s actions in the context of article 47 of theConstitution run afoul the established principles of the criminal justice system and theConstitution. I say so because the petitioner was informed of the action being carrying out and its purpose. Additionally I do not find that the evidence adduced by the petitioner shows that the 3rd respondent carried out its’s duty in a manner that contravenes article 47 of theConstitution.

Whether the Petitioner is Entitled to the Reliefs Sought 64. Drawing from the above analysis, it is my humble finding that the petitioner’s right under articles 49(1)(b)(d) and 50(2)(l) of theConstitution were violated by the 3rd respondent, and I find that the petition partially succeeds:(i)A declaration that by demanding production of documents from the petitioner by use of threats, the 3rd respondent infringed on the petitioner’s constitutional right to silence and the right to refuse to give self-incriminating evidence guaranteed under articles 49 and 50 of theConstitution.(ii)Prayer (b) & (c) are overtaken by events as the complaint and complainant were later disclosed to the petitioner.(iii)Prayer (d) is not merited as the respondents are under the law allowed to apply for search warrants.(iv)Considering what transpired in this matter and the fact that no malice was disclosed on the part of the respondents who were simply carrying out their lawful duty this court will not condemn them to pay costs. Each party will bear its own costs.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 16TH DAY OF JUNE, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.HI ONG’UDIJUDGE OF THE HIGH COURT