[2022] KEHC 53 (KLR)

Mohamed & 2 others v Director of Public Prosecutions & 2 others; Mwapashua (Interested Party) (Constitutional Petition E048 of 2021) [2022] KEHC 53 (KLR) (3 February 2022) (Judgment)

Neutral citation: [2022] KEHC 53 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E048 of 2021

JM Mativo, J

February 3, 2022

Between

Fatuma Mohamed

1st Petitioner

Mbodze Hamadi

2nd Petitioner

Abdulrahim Khamis Mohamed

3rd Petitioner

and

Director of Public Prosecutions

1st Respondent

Officer in Charge, Likoni Police Station

2nd Respondent

Attorney General

3rd Respondent

and

Ramadhan Masoud Mwapashua

Interested Party

Judgment

1. The facts which triggered this Petition as I discern them from the Petition are that sometimes in November 2020, the 1st Petitioner wanted to change her electricity meter from a post paid to a prepaid and instal a new one in a new unit and after enquiring, she was referred a one Ramadhan Masoud Mwapashua, the Interested Party herein, a technician working with Kenya Power & Lighting Co. Ltd. She proceeded to Kenya Power Limited and introduced herself to the Interested Party who confirmed that he was a technician working with the said company.

2. The Petitioners state that the 1st Petitioner informed the Interested Party of her intentions and he asked her to pay Kshs. 5,000/= per meter plus Kshs. 1,500/= for the installation certificate. They aver that the 1st Petitioner paid the Interested Party Kshs. 9,500/= but upon demanding a receipt, he told her that she would be given after the installation and even then, there could be additional charges. They state that the Interested Party went to the premises with the 1st Petitioner where after inspecting the same, he removed the old meter and took it to his office. Also, they aver that the 2nd Petitioner desired to change her meter, so the Interested Party also agreed to do it on similar terms and she paid him Kshs. 5,000/= and he told her that a receipt will be issued after the installation.

3. They state that after sometime, the Interested Party installed a meter in the 1st Petitioner’s house which to her eyes looked suspicious, so, she asked a one Yasser Said Rashid, an electrician to inspect the same, who inspected and told her it was not genuine nor was it working and it was connected to the main supply which was dangerous amounted to stealing electricity. They state that the 1st Petitioner reported the matter to the Kenya Power & Lighting Co Ltd offices at LikonI Police Station vide OB No. 32/17/12/2020 and recorded a statement. Further, the Interested Party never installed the meter at the 2nd Petitioner’s premises as agreed. Despite the complaint, the police failed to arrest and charge the Interested Party.

4. The Petitioner’s state that sometimes on 7th April 2021, the Interested Party was spotted by some youth who were aware of the Petitioner’s case and they asked him to accompany them to Likoni Police Station, and they also requested the 3rd Petitioner, a Tuk Tuk driver to take them there, but the Interested Party requested to be taken to the 1st Petitioner’s house to apologize and pay back her money, but on reaching the bus stage to the 1st Petitioner’s house they met the 1st and 2nd Petitioners and the Interested Party promised to pay their money but passers-by assaulted him accusing him of conning many Likoni residents in a similar manner, but the Petitioners pleaded with them not to beat him and he was taken to the Police. The Petitioners aver that they were arrested on 9th April 2021 and charged with the offence of causing grievous harm to the Interested Party in criminal case number E1305 of 2021, in spite of not being involved in the assault. They aver that the 1st Petitioner made several inquiries about her complaint against the Interested Party but the 2nd Respondent remained non-committal.

5. They contend that the 2nd Respondent charged them with the said offence under the influence of an officer who is the Interested Parties in law on false allegations in breach of Articles 10, 27, 28, 29 of the Constitution. Additionally, the Petitioners state that the 1st Respondent is in violation of Article 157(4) & (6) of the Constitution. Also, they state that they have been treated unequally and in discriminatory manner yet the Interested Party walks free and that their repute in the eyes of right-thinking members of the society has been injured.

6. As a consequence of the above, they pray for a declaration that the Respondents have acted unconstitutionally and violated their rights. They also pray for an order terminating the charges against them in Criminal Case No. E1305 of 2021, Republic v Mbodze Hamadi, Fatuma Mohamed and Abdulrahim Khamis Mohamed. Also, they pray for an order of Mandamus to compel the Interested Party’s arrest and his arraignment in court. They pray for compensation for violation of their rights. Lastly, they pray for costs of the application.

The 1st Respondent’s grounds of opposition 7. The 1st Respondents filed grounds of opposition to the Petition stating that Petition does not disclose bad faith, illegality, impartiality, breach of rules of natural justice or other extraneous considerations to demonstrate that the predominant purpose of investigations and preferring charges is to pursue a collateral purpose. He also states that the Respondent independently consented to the charges in criminal case El 305 of 2021 upon being satisfied that the evidence was credible and met the threshold under section 234 of the Penal Code1 and therefore the charges preferred were not an abuse of court process.1Cap 63, Laws of Kenya.

8. They also state that there is no iota of evidence to demonstrate that the 1st Respondent has acted in bad faith, is procedurally unfair, unreasonable and or has taken irrelevant considerations and or contravention of Article 157 of the Constitution. Further, they state that the Petitioners have sufficient safeguards under Article 50 of the Constitution and if the court grants the orders sought, it would amount to usurping the role of the trial court. Also, they stated that there is nothing to support the allegations of bias; and that the orders sought have far reaching consequences on the 1st Respondent’s constitutional powers and this court is not clothed with supervisory powers to unclothe the powers of the 1st Respondent if it acts within the parameters of the Constitution. Lastly, they state that the Petition offends Article 157 (10) and 245(5) of the Constitution and section 4 of the ODPPAct.22Act No. 2 of 2013.

The 2nd & 3rd Respondent’s Replying affidavit 9. The 2nd and 3rd Respondents filed the Replying affidavit of PC Bernard Mumo Force No. 113782, the Investigating Officer. He averred that on 8th April, 2021 the Interested Party lodged a complaint vide OB No. 29/8/4/2021 that he had been assaulted by the Petitioners and other persons on 7th April, 2021. He averred that during the investigation, he learnt that the Petitioners had contracted the Interested Party to instal new metres, and, that the Petitioners reported at to the station that the Interested Party had defrauded them their money vide OB No. 32/17/12/2020.

10. He averred that the Petitioners were advised to liase with the police and or report to the station once they come across the Interested party as the investigations into their matter was on going, and on the evening of 7th April, 2021, a one Daudi Yaha, a neighbour to the 1st and 2nd Petitioners spotted the Interested Party along shelly Beach, and he informed the 1st and 2nd Petitioners who informed him to hold the Interested Party as they sent a tuk tuk with the 3rd Petitioner to pick him up. He deposed that the Interested Party was not taken to the police station but he was taken to Half London area where the Petitioners reside and conduct business, and on arrival, the 1st and 2nd Petitioners demanded their money but the Interested Party did not have, so, the 1st and 2nd Petitioner started slapping and beating him leading to the group which was around the area beating him up.

11. He averred that the Interested Party pleaded he calls his wife, and the Petitioners called her and demanded the money or else they will lynch him, and the wife managed to send Ksh. 6,000/= to the 2nd Petitioners of Mobile No. 0724xxxxxx as evidenced by a copy of the M-pesa Statement marked BM – 1. But, dissatisfied with the said sum, the Petitioners demanded more and the Interested Party’s wife went to the scene and gave cash Ksh. 3,000/= increasing the total sum paid to Ksh. 9,000/=. PC Mumo deposed that a passing Police vehicle from Shelly Beach Police Station stopped but the crowd dispersed leaving the Interested Party, his and the Petitioners who were picked and taken to shelly Beach Police Station where a one CPL Ngumbau referred them to Likoni Police station which was handling the issue and advised the Interested Party to seek treatment. He averred that on 8th April, 2021, the Interested Party reported the matter and recorded statements vide OB No. 29/8/4/21 and investigations were conducted and findings sent to the 1stRespondent for perusal and advise, and the Petitioners were found culpable, so they were charged with Grievous in criminal case No. E1305 of 2021.

12. He deposed that the Petitioner’s allegations at paragraphs 18, 19, 20, 21, 22, 23 and 24 of the Petition are malicious, a fabrication and unfounded and without merit and the prayers sought are not tenable; that the Petitioners’ and the Interested Party’ complaints are distinct from each other; and that the 2nd Respondent is empowered by law to investigate and prosecute criminal offences pursuant to section 24 of the National Police Service Act3 and Articles 243 and 245 of the Constitution. Lastly, he deposed that the Petitioners have failed to demonstrate violation of their constitutional rights.3Act No. 11A of 2011.

The Interested Party 13. The Interested Party is said to have been served as per the affidavit of service on record. However, he did not file any papers in these proceedings nor did he participate in the trial.

The Petitioners’ Advocates’ submissions 14. The Petitioners counsel cited Republic v Chief Magistrates Court, Nairobi & 3 others ex parte Stephen Oyugi4 in which the High Court citing decided cases held that the High Court may review prosecutorial powers where the institution/continuance of criminal proceedings may amount to abuse of the process of the court; or where quashing the proceedings would secure the ends of justice; or where it manifestly appears there is a legal bar against the institution or where continuance of the proceedings e.g. want of sanction; or where the allegations taken at their face value and accepted in their entirety do not constitute the offence alleged; and where the evidence does not prove the alleged offence. He submitted that the failure by the DPP to charge the Interested Party amounts to selective prosecution, so the prosecution was undertaken to serve ulterior motive. He argued that the charges against the Petitioners are unfounded and malicious compared with the inaction on their complaint against the Interested Party who defrauded them. He submitted that the prosecution lacks sound legal basis, so, it must not be allowed to stand and relied Republic v Attorney General ex parte Kipngeno Arap Ngeny.54Nairobi JR No. 114 of 2014. 5Misc. Civil Application No. 406 of 2001.

15. Additionally, counsel submitted that the failure to arrest and prosecute the Interested Party for obtaining money under false pretences from the Petitioners and impersonating a Kenys Power and Lighting Company employee violates Article 27(1) (2) of the Constitution which guarantees equal treatment for all. He argued that the Respondents breached Article 157(4) (6) of the Constitution and charging the Petitioners with an offence they did not commit smacks of complete disregard of their constitutional rights. He cited Joram Mwenda Guantai v The Chief Magistrate, Nairobi6which underscored that if the prosecution amounts to abuse of court process, it is oppressive and vexatious so the High Court can intervene. He also cited Kuria & 3 others v Attorney General7 which emphasised that the court has power and the duty to quash such a prosecution.6{2007} 2 EA 170. 7{2002} 2 KLR 69.

The 1st Respondent’s Submissions 16. The 1st Respondent’s counsel submitted that the Petitioner has not demonstrated how the respondents violated their constitutional rights. She cited section 107 (1) of the Evidence Act8 which provides that whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist. She also cited sub-section (2) which provides that when a person is bound to prove the existence of any fact, the burden of prove lies on that person. To buttress the argument, she cited Britestone PTE Ltd v Smith & Associates Far East Ltd in support of the proposition that the court’s decision in every case depends on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. She argued that if the Petitioner feels that they were charged with an offence they did not commit, the proper forum to raise the issue is the trial court.8Cap 80, Laws of Kenya.

17. She submitted that the 1st Respondent had reasonable grounds to mount the prosecution and cited Kagame v Attorney General & another9which held that to constitute reasonable and probable cause, the totality of the material within the knowledge of the prosecutor must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. She argued that the criminal trial was commenced after a review of the police file and establishing there was sufficient evidence to support the decision to prosecute. She also submitted that the decision to mount the prosecution is discretionary which should not be unjustifiably fettered. She cited Article 157(10) of the Constitution and Hon. James Ondicho Gesami v The Attorney General & others which held that the DPP is at liberty to prefer charges against any person in respect of whom he finds sufficient evidence to prefer charges.9{1969} EA 643.

18. She submitted that the Petitioners have failed to demonstrate that the DPP acted without or in excess of the powers conferred upon him by the law or infringed constitutional provisions. He cited Justus Mwenda Kathenge v Director of Public Prosecutions & 2 others10which held that the courts cannot interfere with the DPP’s mandate under Article 157(11) unless he has acted without due regard to public interest; he has acted against the interests of the administration of justice and he has not taken account of the need to prevent and avoid abuse of court process. Additionally, counsel cited Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution which emphasised that a constitutional Petition challenging prosecution does not deal with the merits of the case but only with the process. She also cited Njuguna S. Ndungu v Ethics & Anti-Corruption Commission (EACC) & 3 others11 which held that to interfere with the DPP’s powers under Article 157(10) is to interfere with the Constitution.10{2014} e KLR.11{2018} e KLR.

19. On the question whether the orders sought are merited, counsel cited Makupa Tansit Shade Limited & another v Kenya Ports Authority & Another12 which clearly delineated the circumstances under which mandamus can issue and Njuguna S. Ndungu v Ethics & Anti-Corruption Commission (EACC) (supra) and argued that the tests laid down in these two decisions have not been met in the instant case12{2015} e KLR.

The 2nd and 3rd Respondent’s advocates submissions 20. Counsel submitted that the 2nd Respondent acted as mandated by law after a crime was reported. He submitted that Articles 243-247 of the Constitution establishes the National Police Service which operates in the spirit of Article 247 of the Constitution. Counsel argued that section 51 of the National Police Service Act lists the duties of a police officer, which under subsection 1(j) includes investigation of crimes. He also cited Articles 245(4) and (5) of the Constitution and Development Bank of Kenya Ltd v Director of Public Prosecutions & another; Giriama Ranching Company Limited (Interested Party) which underscored that the Inspector General and by extension the 2nd Respondent, is an independent office, so, the prayer to compel the Respondents to arrest the Interested Party constitutes external influence over an independent body, which is contrary to Article 245(4) and (5).

21. He also submitted that prosecution and investigation of crimes is based on reasonable suspicion and cited Republic v Commissioner of Police & another Ex parte Michael Monari & another13 which held that it is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party because this is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person. He submitted that the 2nd Respondent acted pursuant to a complaint to the Police.13{2020} e KLR.

22. He submitted that the Petitioner has failed to meet the tests in Anarita Karimi Njeru v The Republic14 because they did not specify with precision the constitutional provisions alleged to have been violated and the acts complained of. Counsel submitted that being arrested is not a violation of the Constitution as it is expected that the police in exercising their authority will arrest and detain suspects. He argued that the Petitioners have not demonstrated that their rights under Article 50 have been violated and relied on Mumo Matemu v Trusted Society of Human Alliance15 which appreciated that precise claims are important in due process.14(1976-1980) KLR 1272. 15Civil Appeal No. 290 of 2012{2013} e KLR.

23. Also, he submitted that the Petition is purely intended to defeat the proceedings in Criminal Case number E1305 of 2021, and, that the criminal court must be allowed to hear the matter fully in line with its jurisdiction because to interfere with conclusion of a criminal matter without sufficient evidence will be to curtail the constitutional authority of the DPP under Article 157. He submitted that the courts ought to sparingly interfere with the mandate of other constitutional organs. He submitted that the Petitioner and the Interested Party’s cases are distinct from each other and the Petitioners did not prove the alleged partiality. He referred to Chapter 22 of the National Police Service Standing Orders, titled ‘Conduct Interviews of Crime Victims, Suspects and Witnesses,’ and argued that the 2nd Respondent conducted a clear and unbiased assessment of facts before arresting the suspects and also, he performed his duties according to Section 49 (1), (4), and (10) of the National Police Service Act without interfering with the Petitioners’ Constitutional Rights.

Determination 24. First, I will address the prayer for a writ of mandamus to compel the DPP to prosecute the Interested Party. For starters, a special feature of the 2010 Constitution is the establishment of the office of the DPP whose independence is provided under Article 157 (10) which declares that the DPP shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority. This provision is replicated in Section 6 of the Office of the Director of Public Prosecutions Act16which provides that pursuant to Article 157 (10), the Director of Public Prosecutions shall- (a) not require the consent of any person or authority for the commencement of criminal proceedings; (b) not be under the direction or control of any person or authority in the exercise of his powers or functions under constitution, this Act or any other written law; and (c) be subject only to the Constitution and the law.16Act No. 2 of 2013.

25. A reading of the above provisions shows that the DPP is not only required to act independently in the exercise of his functions, but also ought not to be perceived to be acting under the direction or instructions or instigation of any other person. The Petitioners case is that despite reporting a complaint at the Police Station against the Interested Party, he has not been arrested or charged in court. The Petitioner are required to present their evidence to the investigating officers, who upon conclusion of their investigations forward the file to the DPP and leave it to the DPP to independently evaluate the evidence and make a decision whether or not to mount the prosecution. It is for the DPP to decide independently and act accordingly. This is a constitutional imperative consistent with the constitutional dictates safeguarding the independence of the DPP and fair trial process. It is also important to mention that under Article 245 (4) (a) of the Constitution, “no person may give a direction to the Inspector General with respect to the investigation of any offence or offences. Just like the constitutionally guaranteed independence of the DPP, the above provision aims at ensuring that investigations are undertaken independently.

26. The process of establishing whether or not to prosecute usually starts when the police present a docket to the prosecutor. The DPP must consider whether to— request the police to investigate the case further; or, whether to institute a prosecution; or, whether to decline to prosecute. The decision whether or not to prosecute must be taken with care, because it may have profound consequences for victims, witnesses, accused persons and their families. A wrong decision may also undermine the community’s confidence in the prosecution system and the criminal justice system as a whole. The prosecutor should remain fiercely independent, fair and courageous.

27. In order to advance the rule of law, and in particular to protect the principle that all are equally subject to the law, the DPP (and the Police) must be independent. This is vital to protect the integrity of the criminal justice system because it guarantees that any decision to prosecute a person is made free of any external influences. In the words of John Kelly TD, the prosecution system “should not only be impartial but should be seen to be so and that it should not only be free from outside influence but should be manifestly so.”1717http://www.paclii.org/fj/other/prosecutors-handbook.pdf.

28. A key consideration to guide the DPP in instituting court proceedings is to advance or protect public interest as opposed to private interest. The decision to prosecute or not to prosecute is of great importance. It can have the most far-reaching consequences for an individual. Even where an accused person is acquitted, the consequences resulting from a prosecution can include loss of reputation, disruption of personal relations, loss of employment and financial expense, in addition to the anxiety and trauma caused by being charged with a criminal offence. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system. For victims and their families, a decision not to prosecute can be distressing. The victim, having made what is often a very difficult and occasionally traumatic decision to report a crime, may feel rejected and disbelieved. It is therefore essential that the prosecution decision receives careful consideration.

29. Importantly, it has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution. There must be sufficient evidence to mount a prosecution. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. It is for the DPP to determine that the evidence presented is sufficient to justify a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused.

30. It is also true that the decision as to whether there is a reasonable prospect of conviction requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the accused and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction. This assessment may be a difficult one to make, and of course, there can never be an assurance that a prosecution will succeed. Indeed, it is inevitable that some will fail. However, application of this test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and pursuing a futile prosecution resulting in the unnecessary expenditure of public funds.

31. Resources should not be wasted pursuing inappropriate cases, but must be used to act vigorously in those cases worthy of prosecution. In deciding whether or not to institute criminal proceedings against an accused person, prosecutors must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution.18There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued. This assessment may be difficult, because it is never certain whether or not a prosecution will succeed. This test of a reasonable prospect must be applied objectively after careful deliberation, to avoid an unjustified prosecution. The review of a case is a continuing process.19 Prosecutors must take into account changing circumstances and fresh facts, which may come to light after an initial decision to prosecute or not to prosecute has been made.20 This may occur after having heard and considered the version of the accused person and representations made on his or her behalf. Prosecutors may therefore withdraw charges before the accused person has pleaded or in the course of the trial in spite of an initial decision to institute a prosecution.2118Prosecution Policy, (Revised June 2013), available at https://www.npa.gov.za/sites/default/files/Library/Prosecution Policy.19Ibid.20Ibid.21Ibid.

32. When evaluating the evidence regard should be had to the following matters:- (a) Are there grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common law and under statute?(b) If the case depends in part on admissions by the accused, are there any grounds for believing that they are of doubtful reliability having regard to the age, intelligence and apparent understanding of the accused?(c) Does it appear that a witness is exaggerating, or that his or her memory is faulty, or that the witness is either hostile or friendly to the accused, or may be otherwise unreliable?(d) Does a witness have a motive for telling less than the whole truth? (e)Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute. (f). whether the alleged offence is of considerable public concern and (g) the necessity to maintain public confidence. As a matter of practical reality, the proper decision in most cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution. As a matter of practical reality, the proper decision in most cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution.

33. No evidence has been tendered to show that the DPP abused his discretion or powers under the Constitution. The allegation that the Police refused to arrest or charge the Interested Party is un supported by evidence. Arrests and prosecution are undertaken where there is evidence that an offence known to the law has been committed. There is nothing to show that the police finalized their investigations and forwarded their file to the DPP. In any event, the duty of the prosecutor is to seek justice, not merely to convict or parade people in court without sufficient evidence. The court is inclined to respect the decision by the DPP to prosecute or decline to prosecute where he reasonably believes that an offense known to the law has not been committed. It is a constitutional imperative that the Constitutional independence of the DPP and the National Police Service must be respected. For the court to intervene, there must be clear evidence of breach of the Constitutional or breach of duty to act on the part of the DPP or the police or abuse of discretion. I have carefully considered the law and the authorities and applied the same to the facts of this case. I find that the Petitioners have not established any grounds to suggest that the DPP or the Police illegally exercised their powers or failed to perform their duties/.

34. Arising from the foregoing discussion, it is my position that the writ of Mandamus sought cannot issue. Mandamus will issue only to compel a person or body of persons who has failed to perform a duty to the detriment of a party who has a legal right to expect the duty to be performed.22 It is within the DPP’s functions to decline to prosecute where there is no evidence to support the prosecution. It is also within the mandate of the police to undertake comprehensive investigations before subjecting a citizen to arrest and prosecution. Borrowing from the Court of Appeal in Makupa Transit Shade Limited & Anor v Kenya Ports Authority & Another,23 the order of Mandamus sought in this case is wholly underserved: -22See Kenya National Examinations Council vs R ex parte Geoffrey Gathenji Njoroge & 9 Others{1997} eKLR.23{2015} e KLR.“What of the Order of mandamus” The general rule is that the issuance of mandamus is limited to where there is specific legal remedy for enforcing it or the alternative legal remedy is less convenient, beneficial and effectual.24 Its scope against public bodies is limited to performance of a public duty where statute imposes a clear and unqualified duty to do that act.25 However if the duty is discretionary as to its implementation, then mandamus cannot dictate the specific way the decision will be exercised. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.26 …The applicant in addition has to show that it has a legal right to the performance of the legal duty by the party against whom it issues.”24See Halsbury Laws of England 4th ed. Vol. 1. Para 89. 25SeeManyasi v. Gicheru & 3 Others, [2009] KLR 687. 26SeeHalsbury’s Law of England, 4th Ed Vol. 1

35. It is an established position that a criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motives or improper purpose.27 Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.27Republic vs Attorney General ex-parte Arap NgenyHCC APP NO. 406 of 2001

36. In the institution of criminal proceedings, the DPP will proceed only when a case is well-founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence.28 There must be sufficient evidence to mount a prosecution. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. It is for the DPP to determine that the evidence presented is sufficient to justify a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused. The decision as to whether there is a reasonable prospect of conviction requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence. It is not for this court to assess the sufficiency of the evidence. That is a function of the trial court.28(Van der Westhuizen v S (266/10) [2011] ZASCA 36; 2011 (2) SACR 26 (SCA) (28 March 2011).)

37. The core issue here is for this court to determine the circumstances under which the High Court in exercise of its vast jurisdiction can halt, stop, prohibit or quash a criminal prosecution. The Constitution vests the DPP with the sole authority, power and responsibility to exercise control over the prosecution of all criminal matters except the institution of cases at the Court‐Martial.29 A fair and effective prosecution is essential to a properly functioning criminal justice system and to the maintenance of law and order. Individuals involved in a crime – the victim, the accused, and the witnesses – as well as society as a whole have an interest in the decision whether to prosecute and for what offence, and in the outcome of the prosecution. In short, the proper and effective administration of the criminal justice system is a matter of great public interest.29Article 157 of the constitution.

38. Courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to 'stay' an indictment (or stop a prosecution) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court or infringement of a citizens' fundamental rights. Abuse of process has been defined as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case.30Whether a prosecution is an abuse of court process, unfair, wrong or a breach of fundamental rights, it is for the court to determine on the individual facts of each case.30Hui Chi-Ming vs R{1992} 1 A.C. 34, PC.

39. The inherent jurisdiction of the court to stop a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances.31 The essential focus of the doctrine is on preventing unfairness at trial through which the accused is prejudiced in the presentation of his or her case or where there is clear breach of fundamental rights to a fair trial. Courts should first consider whether or not there is anything in the trial to prevent 'a fair trial' and if there is, then the court ought to stop the prosecution. The high court will only prohibit or quash prosecutions in cases where it would be impossible to give the accused a fair trial; or where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.3231See Attorney General's Reference (No 1 of 1990) [1992] Q.B. 630, CA; Attorney General's Reference (No 2 of 2001) [2004] 2 A.C. 72, HL.32See Bennett v Horseferry Road Magistrates' Court and Another [1993] 3 All E.R. 138, 151, HL; see also R v Methyr Tydfil Magistrates' Court and Day ex parte DPP [1989] Crim. L. R. 148.

40. It is in public interest that prosecutions be mounted to up hold law and order and justice for the victims of crime. A criminal prosecution can be stopped if it was commenced in the absence of proper factual foundation or where circumstances change as in this case destroying the foundation upon which it was premised. The enquiry is whether there has been an irregularity or an illegality that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted. 3333Interpreting similar provisions in the constitution of South Africa, the South African Constitutional court (Nicholas AJA), Shabalala & 5 others vs A.G of Transvaal & Another CCT/23/94.

41. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to a fair trial be jeopardized.3434Natasha Singh vs. CBI{2013} 5 SCC 741.

42. The provisions of the Constitution conferring powers upon the High Court to grant such remedies as certiorari, prohibition, mandamus or permanent stay of proceedings are a device to advance justice and not to frustrate it. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving High Court’s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice.

43. The High Court's inherent powers to quash, stay or prohibit criminal proceedings are wide as they imply the exoneration of the accused even before the proceedings have been culminated by way of trial. Noting the amplitude of these powers and the consequences which they carry, the Supreme Court of India35 held that ‘these powers should be exercised sparingly and should not carry an effect of frustrating the judicial process.’ The Supreme Court of India delineated the law in the following terms: -“The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and in the rarest of rare cases and the Court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at uncalled for stage nor can it ‘soft-pedal the course of justice’ at a crucial stage of proceedings…The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of the power of the court, but the more the power, the more due care and caution is to be exercised in invoking these powers.”3635See Maharashtra vs Arun Gulab Gawali.36See State of West Bengal & Others vs Swapan Kumar Guha& Others, AIR, 1982, SC 949, Pepsi Foods Ltd & Another vs Special Judicial Magistrate & Others AIR 1998, SC 128 & G. Ugar Suri & Ano vs State of U.P & Others, AIR 2000 Sc 754.

44. The decision in Bennet v Horseferry Magistrates Court & another37confirmed that an abuse of process justifying the stay of a prosecution could arise in the following circumstances: -37{1993}All E.R 138, 151, House of Lords.i.Where it would be impossible to give the accused a fair trial; or;ii.Where it would amount to a misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

45. The above categories are not mutually exclusive and the facts of a particular case may give rise to an application to stay involving more than one alleged form of abuse, and that staying a proceeding is a discretionary remedy and each case will depend on its set of facts and circumstances. As Chris Corns38argues, the grounds upon which a stay will be granted can be classified under three categories: -38Chris Corns, Judicial Termination of Defective Criminal Prosecutions: Stay Applications, 76 University of Tasmania Law Review, Vol 16 No. 1, 1977. i.When the continuation of the proceedings would constitute an ‘abuse of process,’ii.When any resultant trial would be ‘unfair’ to the accused, andiii.When the continuation of the proceedings would tend to undermine the integrity of the criminal justice system.

46. The word “vexatious” means “harassment by the process of law,’’ “lacking justification” or with “intention to harass.” It signifies an action not having sufficient grounds, and which therefore, only seeks to annoy the adversary. The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceeding may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Criminal proceedings commenced to advance other gains other than promotion of public good are vexatious and ought not to be allowed to stand.

47. The Petitioner gave a detailed account of their version of events prior and after the arrest. But that is how far it goes. The law is that it is not for this court to determine the veracity or to weigh the strength of the evidence or accused persons’ defence. That is a function for the trial court hearing the criminal trial. This court can only intervene if there are cogent and proven allegations of violation of the Constitution or constitutional Rights or threat to violation of the Rights or in clear circumstances where it is evident that the accused will not be afforded a fair trial or the right to a Fair Trial has been infringed or threatened or where the prosecution is commenced without a factual basis. The detailed version tendered before this court by the Petitioners trying to explain their innocence is misdirected. It is an invitation to this court to perform the functions of the trial court.

48. The power to quash criminal proceedings has to be exercised very sparingly and with circumspection and in the rarest of rare cases. This court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice.

49. The Petitioners seek an order terminating the criminal charges against them which is essentially a writ of Prohibition. The writ of Prohibition arrests the proceedings of any court, tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such a court, tribunal, corporation, board or person. A prohibiting order is similar to a quashing order in that it prevents a court, a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. However, as stated above, the illegality of the prosecution has not been established nor has it been established that the Respondents acted illegally or in excess of their powers nor has the decision to prosecute been shown to be illegal, irrational or a nullity

50. The Petitioners claim damages for alleged violation of their constitutional rights. In any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case, the onus is obviously not as heavy as it is in a criminal case. Nevertheless, where the onus rests on the Plaintiff, or where there are two mutually destructive stories, the Plaintiff can only succeed if he satisfies the court on a preponderance of probabilities that his version is true, accurate, and therefore acceptable, and the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding, whether that evidence is true or not, the court will weigh up and test the Plaintiff’s allegations against the general probabilities.

51. True, it is well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution. I accept in principle that constitutional damages as a relief separate and distinct from remedies available under private law is competent because a violation of a constitutional right must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms. However, a Petitioner must demonstrate the breach of rights to qualify for an award of damages for violation of rights.

52. As was held in Anarita Karimi Njeru v Republic, a person who alleges breach of fundamental rights must prove the violation. He must demonstrate the provisions of the Constitution which were alleged violated and the rights. The onus on the Petitioners to establish violation of alleged rights is not a mere formality; it is important. Differently put, this includes sufficient facts to justify a finding that their rights were violated.

53. Constitutional analysis under the Bill of Rights takes place in three stages. First, the Petitioner is required to demonstrate that his fundamental rights have been infringed. If the court finds that the law, measure, conduct or omission in question infringes the exercise of the fundamental right or a right guaranteed in the Bill of Rights, the analysis may move to its second stage. In this second stage, the party looking to uphold the restriction or conduct will be required to demonstrate that the infringement or conduct is justifiable in a modern democratic State and satisfies the Article 24 analysis test.39 Third, if the infringement cannot pass an article 24 analysis test, then the court may consider an appropriate relief including damages. In the instant case, the analysis cannot pass the first test. The Petitioners have failed to demonstrate breach of rights.39Stuart Woolman in M. Chaskalson et al Constitutional Law of South Africa12-2:

54. In view of my analysis of the issues addressed above, my reasoning and conclusions, it is evident that the Petitioner’s Petition dated 18th August 2021 does not satisfy the threshold to warrant any of the orders sought. Accordingly, I hereby dismiss the Petition dated 18th August 2021 with no orders as to costs and order that Mombasa Chief Magistrates Criminal Case number E1305 of 2021, Republic v Mbodze Hamadi, Fatuma Mohamed and Abdulrahim Khamis Mohamed proceeds to hearing and determination.

Right of appealSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF FEBRUARY 2022JOHN M. MATIVOJUDGE