[2023] KEHC 27285 (KLR)

Mureithi & another v Divisional Criminal Investigation Officer Kajiado & 2 others; Ng’ang’a (Interested Party) (Constitutional Petition E005 of 2022) [2023] KEHC 27285 (KLR) (2 August 2023) (Judgment)

Neutral citation: [2023] KEHC 27285 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition E005 of 2022

SN Mutuku, J

August 2, 2023

IN THE MATTER OF ARTICLES 22,23,36(1) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS UNDER ARTICLE 47 (1), 49 (1) (a) (f) (h), 50, AND 51 OF THE CONSTITUTION AND IN THE MATTER OF KAJIADO CRIMINAL CASE NO. 1385 OF 2021 REPUBLIC V. SAMUEL MUNENE MUREITHI AND LINCOLN MUREITH MUNENE

Between

Samuel Munene Mureithi

1st Petitioner

Lincoln Mureithi Munene

2nd Petitioner

and

Divisional Criminal Investigation Officer Kajiado

1st Respondent

Office of the Director of Public Prosecutions

2nd Respondent

Chief Magistrate Court Kajiado

3rd Respondent

and

Apostle James Maina Ng’ang’a

Interested Party

Judgment

Background 1. The Petitioners seek, through their Petition dated 6th June 2022 the following remedies:i.A declaration that the Petitioners’ Fundamental Rights and Freedoms have been violated.ii.An Order of Certiorari do issue to quash the decision to arrest and charge the Petitioners in Criminal Case No. E1385 of 2021 Republic v. Samuel Munene Mureithi and Lincoln Mureithi Munene.iii.An Order of Prohibition do issue to restrain the 2nd and 3rd Respondents from entertaining, maintaining or continuing with proceedings in Criminal Case No. E1385 of 2021 Republic v Samuel Munene Mureithi and Lincold Mureithi Munene or any other case emanating from the same transactions or cause of action.iv.The Cash Bail and Bonds put in by the Petitioners herein in Criminal Case No. E1385 of 2021 Republic v Samuel Munene Mureithi and Lincold Mureithi Munene be released to the Petitioners or be discharged as the case may be.v.Compensation to the Petitioners for the violation of their fundamental rights and freedoms.vi.Costs of this Petitione.vii.Any other relief that this Honourable Court may deem just to grant.

2. The Petitioners have presented a case that the 1st Petitioner joined Neno Evangelism Centre, founded by the Interested Party who was its Supreme Leader and Chairman, as a member in 2003 and rose through the ranks to become a Pastor in 2007; that Neno Evangelism Centre operated in a way that a Pastor within it was at liberty to open a satellite church outside the headquarters which was to operate independently with its own committee, the only requirement being that the satellite church would pay tithes to the Interested Party. It is the case for the Petitioners that the 1st Petitioner approached the Interested Party on 4th April 2008 and requested to be allowed to open a church in Kitengela under the cover of Neno Evangelism Centre, which request was allowed.

3. The Petitioners maintain that the Kitengela church was not a branch of the main Neno Evangelism Centre but that it was independent and autonomous for all intents and purposes except for the name and financial donations in form of tithe/tithes. The Petitioners assert that the church in Kitengela expanded and managed to buy Kajiado/Kitengela/8240 and 8241 and further bought parcels numbers, being numbers 8236, 8238, and 8239 for the church; that the land was registered under Registered Trustees, Neno Evangelism Centre, on behalf of Neno Evangelism Centre on behalf of Evangelism-Kitengela Centre; and that the Interested Party did not make any contribution towards development of the centre or acquisition of furniture, fixtures and fittings.

4. It is the case of the Petitioners that relationship between the Petitioners and the Interested Party became sour leading to mass exodus of members from Neno Evangelism Headquarters to other satellite churches and that the 1st Petitioner and his flock eventually exited and cut ties with Neno Evangelism Centre ministry and transformed into God’s Love Assembly Church Kitengela where the 1st Petitioner continued ministering in the same premises and to the same congregation.

5. It is their case that the Interested Party instituted ELC Case No. E022 of 2021 James Maina Ng’ang’a and others v. Samuel Munene where the Interested Party sought interim orders to restrain the 1st Petitioner from a number of activities including changing the name of the church or accessing the properties named in this Judgment, but the application was not granted making the Interested Party move to DCIO Kajiado to make a complaint. This led to summoning of the Petitioners and the interrogation leading to the criminal charges.

6. The Petitioners claim that the actions of the Interested Party and the 1st and 2nd Respondents were motivated by malice, bias, bad faith, unfairness, unreasonableness and failure to consider relevant facts. They claim that the entire process of handling the Petitioners was conducted contrary to the principles of Natural Justice and Rights guaranteed under Article 47 and 50 of the Constitution necessitating this Petition.

7. The Petition was supported by the Affidavit of the 1st Petitioner dated 6th June 2022 to which he has attached various documents and other materials he is relying on, including the constitution of the Neno Evangelism Centre, Tithes Report and receipts, documents in respect of the sale agreement for the purchase of the properties mentioned in this judgment and minutes, among other materials.

8. The Petition is opposed by the 2nd Respondent through the Replying Affidavit of No. 54360 SGT Julius Kivuva, the Investigating Officer in the Criminal Case No. E1385 of 2021, Republic v. Samuel Munene Mureithi & another, whose contents I have read and understood.

9. The Interested Party opposed the Petitioner through his Replying Affidavit dated 17th October 2022, whose contents I have also read and understood.

10. The Petition was canvassed through written submissions and all the parties have filed their submissions. I have read the submissions and understood the same and the issues each party is raising.

Petitioners’ Submissions 11. The Petitioners have submitted that their grievance is that the 1st and 2nd Respondents are abusing criminal justice system by initiating and maintaining criminal proceedings against the Petitioners in a scheme to assist the Interested Party to apply pressure on the Petitioners over the civil dispute relating to the running of the affairs of the Neno Evangelism Centre Kitengela.

12. They submitted that the 1st Petitioner was for a long time a pastor with the Neno Evangelim Centre and was the one who, from scratch, begun and built the Neno Evangelism Centre-Kitengela; that the latter is not a branch of the main Neno Evangelism Centre but is independent with its own governing body, the Church Leadership Committee and only used the name merely as a ‘cover’.

13. They submitted that, the Interested Party was angered by the departure of the 1st Petitioner from any association with Neno Evangelism Centre leading to the institution of the ELC Suit No. E022 of 2021 James Maina Ng’ang’a and others v. Samuel Munene where he sought interim orders to restrain the 1st Petitioner from changing the name of the church or ever stepping into the properties known as Kajiado/Kitengela/8241 and 8242 where God’s Love Assembly Church currently stands. They submit that the criminal case has been instituted for an extraneous purpose, is malicious and is brought up in bad faith, is unreasonable, unfair, biased and is against public interest and contrary to legitimate expectations of the Petitioners.

14. The Petitioners have raised and submitted on the following three issues shown here below:Whether the criminal proceedings against the Petitioners were actuated by an extraneous purpose

15. The Petitioners submitted that the 2nd Respondent has a constitutional mandate under Article 157 to institute criminal proceedings but where these powers are used to achieve other motives or where these powers are abused, then the court is entitled to intervene. They cited Republic v. Director of Public Prosecutions & 2 0thers Ex Parte Modyphine Chemos Sakong; Maurine Chebet Sakong & another (Interested Parties) [2021] eKLR where the court stated that:“It is clear that, while the Respondents’ discretion to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised and where the court finds that the discretion is being abused or is being used for purposes other than the vindication of the commission of a criminal- offence, such as forcing a party to submit to a criminal act in order to satisfy it, the court must intervene.”

16. They also relied on Nairobi HCCC No. 1729 of 2001 Thomas Mboya Oluoch & another v. Lucy Muthoni Stephen & another and Githunguri v. Republic (1986) KLR 1, among others, to emphasize that courts have inherent power to ensure that its process is not abused through proceedings without reasonable grounds.

17. The Petitioners argued that where it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognized under the Constitution and the Office of the Director of Public Prosecutions Act, that would constitute an abuse of the legal process and would entitle a court to intervene and bring to an end such wrongful exercise of discretion. On this point, the Petitioners cited Koinange v Attorney General and Others [2007] 2 EA 256.

18. The Petitioners cited instances when the court can be justified to intervene with the exercise of the discretion of the DPP in the following situations: (a) where there is an abuse of discretion, (b) where the decision-maker exercises discretion for an improper purpose, (c) where the decision-maker is in breach of the duty to act fairly, (d) where the decision-maker has failed to exercise statutory discretion reasonably, (e) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power, (f) where the decision-maker fetters the discretion given, (g) where the decision-maker fails to exercise discretion and (h) where the decision-maker is irrational and unreasonable (see Republic v. Minister for Home Affairs and Others Ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK)[2008] 2 EA 323).

19. The Petitioners have argued that due to the sour relationship between them and the Interested Party because of their struggle over the congregation at Kitengela that was previously being served by the Neno Evangelism Centre Kitengela, the Interested Party attacked the Petitioners through insults forcing the 1st Petitioner to change the name of the Church to God’s Love Assembly leading to the civil suit before the ELC and later the criminal proceedings which are being used for the purpose of affecting the civil case. They urged the court to find that the criminal proceedings are being used for oppressive and ulterior purposes.

Whether the Petitioners’ rights have been violated 20. The Petitioners have submitted that the 1st and 2nd Respondents have exhibited no fair administrative action to the Petitioners; that they did not take the side of the story of the Petitioners or evaluate the same; that they are not impartial but are biased and are acting at the behest of the Interested Party and criminalizing freedom of worship by trying to punish the Petitioners for not remaining in the Neno Evangelism Centre.

21. The Petitioners argue that the investigations were not credible or objective and were not geared towards getting the truth; that had the investigators sought the story of the Petitioners, they would have reached a well-informed decision. They urge the court to find evidence of procedural impropriety in the charging the Petitioners.

Whether the Petitioners are entitled to the remedies sought 22. It was submitted in respect of this issue that the Respondents failed to observe Article 47 and 50 of the Constitution and the various provisions of the Fair Administrative Action Act and therefore the Petitioners’ prosecution is not only for an ulterior motive but also it does not meet the constitutional threshold hence the prayer sought to declare that the Petitioners’ rights were violated and quashing of the decision of the 1st and 2nd Respondents.

23. The Petitioners urged this court to find in their favour and quash the proceedings and the decision of the 1st and 2nd Respondents and thereafter issue a prohibition order against the 3rd Respondent from continuing the proceedings and award the Petitioners damages in the sum of Kshs One Million (Kshs 1,000,000) each for violation of their rights under Articles 47(1) and 50(1) of the Constitution.

2nd Respondent’s Submissions 24. The 2nd Respondent submitted that the decision to charge the Petitioners in CMCR No. E1385 of 2021 Republic v. Samuel Munene Mureithi & Lincoln Mureithi Munene was based on criminal investigations and not any other motive; that the Petition does not meet the threshold for the grant of judicial review orders to prohibit the commencement or continuation of the said criminal case and that judicial review is concerned with the decision making process not with the merits of that decision and therefore a court in judicial review proceedings should not delve into the merits or otherwise of the criminal process as that would amount to unnecessarily trespassing into the arena specially reserved for the criminal or trial court.

25. It was submitted that the 2nd respondent has a constitutional mandate under Article 157 of the Constitution and sections 5 and 6 of the Office of the Director of Public Prosecutions Act to undertake prosecution in exercise of its discretion. It was submitted that a case can have both criminal and civil elements in it and that a claim that the criminal proceedings are likely to fail is not a ground for halting those proceedings by way of judicial review.

26. The 2nd Respondent relied on Republic v Chief Magistrate Criminal Division & another Ex parte Mildred Mbuya Joel [2014] eKLR where the court held that:“In this case it is the applicant’s case that the subject of the criminal proceedings is similarly the subject of pending civil proceedings in which ownership of the disputed parcel of land is pending determination. However, as stated hereinabove, the mere fact that the facts disclose both criminal offence as well as civil liability does not entitle the Court in judicial review proceedings to bring to a halt the criminal proceedings. Similarly, the mere fact that there are pending civil proceedings on the same subject matter does not ipso facto warrant the halting of otherwise prima facie proper criminal proceedings. It is however upon the person seeking that criminal proceedings be halted to justify the grant of such orders.”

27. It was submitted that the Petitioners have not demonstrated that the criminal proceedings against them constitute abuse of the court process or that the fundamental principles of justice and the right to fair trial will not be met in the criminal proceedings instituted against them.

28. While citing Kuria & 3 others v. Attorney General [2002] 2 KLR 69 where the court held that “the court has power to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigations…..”, the 2nd Respondent submitted that it has no ulterior motives against the Petitioners to pressure them to settle any civil dispute between themselves and the 1st Interested Party and that the prosecution of the Petitioners is not selective.

29. It was submitted that the Petitioners have not proved that there was malice, unlawful action, or evidence of excess or want of authority, evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the Petitioners might not get a fair trial as envisaged under Article 50 of the Constitution.

30. The 2nd Respondent urged that it would be in the best interest of the Petitioners, the Respondents, the Complainants and the public at large comprised of Neno Evangelism church member that the criminal prosecution is heard and determined expeditiously in order to know where the truth lies and set the pending issues in that criminal case to rest. The 2nd Respondent urged that this Petition be dismissed.

Interested Party’s Submissions 31. The Interested Party admitted that a relationship existed between him and the Petitioners and the Neno Evangelism Centre Kitengela and that it is untrue for the 1st Petitioner to allege that his rights are being violated and that he is being victimized to achieve a purpose. It was submitted that criminal proceedings cannot revert a title because it is only the Environment and Land Court (ELC) that can make such orders and that the issues between the parties to this Petition before the ELC are still live and pending before that court.

32. It was submitted that it is only after the criminal proceedings are finalized and the criminal case fully determined that the trail court will be able to know if a crime has been committed or not and that this Petition was brought with the aim of avoiding the criminal trial.

33. The interested party further submitted, while citing R v. DPP & 3 others, Judicial Review E001 of 2020 Milimani 372 KLR, that the guidelines in granting judicial review orders were stated by the court in that case as, firstly, if the proceedings are an abuse of the process of the court; secondly, a prosecution should not be instituted unless there is substantial evidence that an offence triable in law has been committed by the accused and whether there is a likely conviction based on evidence. The Interested Party urged this court to find in the affirmative that those conditions are met in the criminal case subject of this Petition.

34. It was submitted that the Petitioners have not proved any violation of their rights; that they do not face criminal charges because they exited Neno Evangelism Centre but because of a crime having been committed and that the Petitioners have not proved any illegality, irrationality and procedural impropriety.

Analysis and Determination 35. From the outset, it is vital to state that this court, sitting as a constitutional court, is not called upon to delve into the issues arising from the ELC case or the Criminal Case facing the Petitioners except where those issues are relevant to this Petition. My duty is simply to decide this Petition in respect to the judicial review remedies sought in it. It is expected of the party who approaches the court seeking judicial review orders that such a party understands the nature of the orders he/she is seeking. In judicial review proceedings, the court is concerned with the decision-making process and not with the merit of that decision.

36. In Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR, the Court of Appeal held that: -“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.’’

37. In Zachariah Wagunza & Another v Office of the Registrar, Academic Kenyatta University & 2 others (2013) eKLR the grounds on which the court exercises its judicial review jurisdiction were reiterated, as was stated in the Uganda case of Pastoli vs Kabale District Local Government council and Other (2008) 2 EA 300, that:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

38. A distinction needs to be made between judicial review and an appeal in that in Judicial Review proceedings, the court is not sitting on appeal to concern itself with the merits of the decision in issue. This is well-articulated in Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, where the Court of Appeal stated that:“Judicial review is concerned with the decision making process, not with the merit itself; the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether the in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters……The court should not act as a court of appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision”.

39. To my mind, therefore, the Petitioners must meet the threshold of proving this case and persuade this court that they deserve the judicial review remedies they seek from this court. They must prove that the decisions they complain about are tainted with illegality, irrationality and procedural impropriety as defined in the Pastoli case above.

40. I understand the Petitioners to mean that the 1st and 2nd Respondent acted illegally in making the decision to arrest, charge and prosecute the Petitioners. It is upon them to prove that this is the case. The Petitioners must prove that the Respondents acted illegally which means that the decision-maker has committed an error of law in taking the action he took or acted outside jurisdiction or contrary to provisions of the law. They must prove procedural impropriety on the part of the decision-maker, which means that the decision-maker acted unfairly, failed to observe Natural Justice, or failed to observe procedural rules expressly laid down in a statute and they must prove irrationality on the part of the decision-maker.

41. A criminal offence involves several stages before an accused person is finally found guilty or not guilty. It involves a complaint made to the relevant authorities, the investigations to confirm the truth or otherwise of the complaint, upon confirming reasonable cause for making the complaint, an arrest may be made or summons issues to the offender. A decision to arrest and charge the person may be reached thereafter. The accused still has the chance in the court where the relevant authorities must prove the case failing which the accused is found not guilty and acquitted.

42. Have the Petitioners proved their case? Have they proved they deserve the remedies they seek. In Republic v Director of Immigration Services &2 others Exparte Olamilekan Gbenga Fasuyi & 2 others (2018) eKLR it was held that:“…It is common ground that the prayers sought are Judicial Review remedies and the rules governing grant of judicial review orders do apply. Judicial Review is about the decision-making process, not the decision itself. The role of the court in judicial review is supervisory. It is not an appeal and the court should not attempt to adopt the forbidden appellate approach. Judicial Review is the review by a judge of the High court of a decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. Judicial Review is a means to hold those who exercise public power accountable for the manner of its exercise. The primary role of the courts is to uphold the fundamental and enduring values that constitute the rule of Law. Judicial Review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the process followed by the decision-maker are proper, and the decision is within the confines of the Law, a Court will not interfere.’’

43. The 1st Respondent is an officer of the National Police Service established under the Constitution Article 243 of the Constitution. This article, together with articles 244 and 245 of the Constitution are given effect by the National Police Service Act. Section 24 of the Act provides the functions of the police which include maintenance of law and order, preservation of peace, investigation of crime, protection of life and property and prevention and detection of crime. In arresting anyone after a complaint has been made, a police officer is acting within the jurisdiction of this act. It is not a final act to arrest anyone. It is putting in place a series of actions that will lead to due process to determine whether the person so arrested is properly so arrested or there was procedural impropriety, illegality, or irrationality in so arresting. A party so arrested and charged is allowed to challenge that arrest and charge through a court process sanctioned by the law.

44. At the conclusions of a trial, a court of law is able to make a determination on the matters before it and pronounce itself on the matter. It is only after the process is complete can anyone confirm the legality or otherwise of the process.

45. Likewise, the ODPP is a creature of the Constitution Article 157 and the ODPP Act which gives effect to that article. The duties and functions of the ODPP is, among others, to (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

46. The functions of the DPP are controlled by the law. Any actions outside that law can be challenged through evidence. In performing the duties as spelt out under the law, the DPP is within the legal confines and cannot be said to be acting outside that jurisdiction unless there is evidence to the contrary. The onus is on the Petitioners, to prove on a balance of probabilities, that the actions of the Respondents are outside the law; are illegal and or irrational. I find no such evidence in these proceedings.

47. The trial court, in presiding over the proceedings in the criminal case facing the Petitioners, is also acting within the law and properly so.

48. I have painstakingly read all the pleadings before me, the submissions of the parties and numerous authorities cited. That the relationship between the Petitioners and the Interested Party are sour is not in dispute. But to conclude that the Respondent, especially the 1st and 2nd Respondents, are working in cahoots with the Interested Party in making the decision to arrest and charge the Petitioners with the criminal case without evidence to prove such allegations is unfortunate. The Petitioners have a chance to adduce evidence in the criminal trial to prove their innocence. They also have a chance to adduce evidence of any ill-intentioned act by the 1st and 2nd Respondent.

49. Judicial review orders are discretionary on the part of the court. In Halsbury’s Laws of England 4th Edition Volume 1 (1) para 12 page 270, it provides that:The remedies of quashing orders (formerly known as orders of Certiorari), prohibiting orders (formerly known as orders of prohibition), mandatory orders (formerly known as orders of mandamus) …are all discretionary. The court has a wide discretion whether to grant relief at all and if so, what form of relief to grant…..

50. I have noted that the Petitioners are charged with 5 counts: Obtaining Land Registration by false pretenses and forgery contrary to relevant provisions of the law. Our law presumes them innocent until the contrary is proved. From the pleadings in this Petition, they have been released on bail/bond and therefore they can attend the hearing of their criminal case while enjoying their freedom. Our law is very generous on protecting the rights of an accused person. I am confident that the Petitioners will be accorded all the necessary opportunity to take and give evidence during the trial. After all is done, the trial magistrate will make his/her determination.

51. Should errors occur in the process of the criminal proceedings, the law again comes to aid the accused by providing for appellate jurisdiction to correct any errors the trial court may have made. In other words, the rights of the Petitioners are protected by the law.

52. As the Petition stands, I find no evidence to point to any errors in making the decision to arrest and charge the Petitioners. I do not find any illegality, irrationality, or procedural impropriety on the part of the Respondents. I therefore find that the Petitioners do not deserve the judicial review orders they are seeking. Consequently, the Petition herein lacks merit and is hereby dismissed.

53. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 2ND AUGUST 2023. S. N. MUTUKUJUDGE