[2023] KEHC 2689 (KLR)
The court found that the dispute lay at the intersection of a civil dispute over property ownership and criminal allegations of fraud. Recognizing the risk that the criminal process could be used to further ulterior purposes in a civil dispute, the court determined that it was just and equitable to preserve the...
Source-derived case information.
- Citation
- [2023] KEHC 2689 (KLR)
- Parties
- Applicant: Gaitano Lisutsa Mukofu; Respondent: Director of Public Prosecutions; Respondent: Director of Criminal Prosecutions; Respondent: Clement Akhanyala Khayumbi; Respondent: Attorney-General
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 7 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Stay of Criminal Proceedings
- Outcome
- Application allowed; stay and suspension of criminal proceedings and investigations granted pending determination of the petition.
- Judges
- WM Musyoka
- Legal Topics
- Stay of Criminal Proceedings, Fraudulent Land Transfer, Property Ownership Disputes, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gaitano Lisutsa Mukofu
Applicant
Director of Public Prosecutions
Respondent
Director of Criminal Prosecutions
Respondent
Clement Akhanyala Khayumbi
Respondent
Attorney-General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Stay of Criminal Proceedings
Legal Issues
- 1 Whether the criminal proceedings and investigations against the petitioner should be stayed pending determination of the constitutional petition.
- 2 Whether the criminal process is being used to advance ulterior purposes in a civil property dispute.
Ratio Decidendi
The court found that the dispute lay at the intersection of a civil dispute over property ownership and criminal allegations of fraud. Recognizing the risk that the criminal process could be used to further ulterior purposes in a civil dispute, the court determined that it was just and equitable to preserve the status quo by staying the criminal proceedings and investigations against the petitioner. The court emphasized that the merits of the petition would be determined at a later stage and that the interim relief was necessary to prevent possible injustice or abuse of process.
Court Disposition
Application allowed; stay and suspension of criminal proceedings and investigations granted pending determination of the petition.
Orders
- Criminal proceedings and investigations against the petitioner are stayed and suspended pending hearing and determination of the petition.
- The matter shall be fixed for mention for directions on disposal of the petition.
Full Case Text
Judgment text and source record
26 paragraphs
Mukofu v Director of Public Prosecutions & 3 others (Constitutional Petition 7 of 2021) [2023] KEHC 2689 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2689 (KLR)
Republic of Kenya
In the High Court at Kakamega
Constitutional Petition 7 of 2021
WM Musyoka, J
March 24, 2023
Between
Gaitano Lisutsa Mukofu
Petitioner
and
Director of Public Prosecutions
1st Respondent
Director of Criminal Prosecutions
2nd Respondent
Clement Akhanyala Khayumbi
3rd Respondent
Attorney-General
4th Respondent
Ruling
1. The application for determination is dated September 15, 2021. It seeks 1 principal prayer: stay and suspension of criminal proceedings and investigations against the petitioner, pending hearing and determination of the petition herein.
2. The background is set out in the application and the petition, and the supporting documents. It revolves around Isukha/Mukhonje/1751, which the petitioner says he bought from the 3rd respondent, and caused to be transferred to his name. The 3rd respondent contends that the petitioner got the property transferred to his name through forgery and fraud, for he never sold the property to him, and alleges that he lost some documents, which suggests that the petitioner then used them to have the property transferred to his name. It is on that basis that the 1st and 2nd respondents are involved in the matter.
3. I note that there is a burial dispute that ended up in court, where the petitioner was seeking to restrain the 3rd respondent from interring the remains of his kin on the subject land. It would appear that the interment element of the dispute was resolved by consent, but the status of the property is still out there.
4. Am not called upon, at his stage, to determine the petition on its merits, but to preserve the status quo pending determination of the petition. The matter lies at the intersection between a civil dispute on ownership of property between 2 contending parties, and criminal proceedings where 1 of them alleges that the other acquired title to the property by fraud. In such cases, there is always the possibility that the criminal process is being used to advance ulterior purposes. The petition seeks to have the court unravel that. That cannot, however, be determined until the matter is heard on its merits.
5. Am persuaded that there is merit in the application dated September 15, 2021, and I consequently allow it, in terms of prayer 3 of the application. The matter shall thereafter be fixed for mention for directions on disposal of the petition.
DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGA THIS 24th DAY OF March 2023WM MUSYOKAJUDGEMr Erick Zalo, Court Assistant.Mr Mbaka, instructed by Omwando Mbaka & Company, Advocates for the petitioner.Mr Juma Collins, instructed by the Attorney-General, for the 2nd and 4th respondent.Mr Khayumbi, instructed by JI Khayumbi & Company, Advocates for the 3rd respondent.