[2022] KEHC 566 (KLR)

Musembi v Director of Criminal Investigations & 2 others (Petition E515 of 2021) [2022] KEHC 566 (KLR) (Constitutional and Human Rights) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 566 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E515 of 2021

HI Ong'udi, J

May 5, 2022

Between

Cissy Kalunde Musembi

Applicant

and

Director of Criminal Investigations

1st Respondent

Director of Public Prosecutions

2nd Respondent

Inspector General Of Police

3rd Respondent

Ruling

1. The petitioner filed the petition dated 2nd December, 2021 alongside a notice of motion of even date. The said application seeks the following orders:(i),(ii) and (iii) – spent(iv)That pending the hearing and determination of the Petition, a conservatory order does issue suspending the proceedings in Nairobi CMCC No.E1264 of 2021 R vs Cissy Musembi Kalunde.(v)That pending the hearing and determination of this Petition, this Honourable Court be pleased to issue Conservatory Orders directed at the Respondents, their servants, agents or any other person acting at their behest restraining them from harassing, intimidating, charging or unreasonably interfering with the liberty of the Applicant/Petitioner herein on account of her purchase or ownership of the property known as Land Reference Number 1870/11/200 IR 65800. (vi)That the Honourable court be pleased to issue such other or further interim orders or directions as may be necessary towards preservation of the petitioner’s fundamental rights sought to be protected through the petition herewith.(vii)That the costs of the application be borne by the respondents.

2. The application is premised on the grounds on its face plus the supporting affidavit in support of both the petition and application sworn on 2nd December 2021. A summary of the grounds and affidavit is that the applicant was arrested and charged by the1st – 3rd respondents in Nairobi Chief Magistrate Criminal case No.E1264 of 2021 Rep. vs Cissy Musembi Kalunde for the following offences:(I)Count 1: Conspiracy to Defraud contrary to section 137 of the Penal Code, whose particulars are that on or before 12th September, 2012, at an unknown place within the Republic of Kenya, jointly with others not before court, conspired with intent to defraud Horizon Hills limited land LR. 1870/11/200 registered in the name of Horizon Hills limited by falsely pretending that she was capable to purchase the said land at a price of KShs.220,000,000 a fact she knew was false.(II)Count 2: Obtaining Registration of Land by False Pretense contrary to section 320 of the Penal Code, whose particulars are that, on the 7th day of November 2018, at Ardhi House in Nairobi City Centre within Nairobi County, she procured registration of land LR No. 1870/11/200 measuring 0. 3314 hectares in her name by falsely pretending she had purchased the land at a cost of KShs.220,000,000/- a fact which she knew to be false.(III)Count 3: Forcible Detainer contrary to section 91 of the Penal Code, whose particulars are that, on the 20th September 2021 at Westlands in Nairobi County being in possession of land LR No. 1870/11/200 of Horizon Hills Ltd without color of right, held possession of the said land in a manner likely to cause breach of the peace against the directors of Horizon Hills Ltd who were entitled by law to the possession of such land

3. In her averments she has explained how she bought the land and paid KShs.92,000,000/- leaving a balance of KShs.128,000,000/- after due diligence. She also reveals that there are two pending suits in respect of this property. These are:(i)Nairobi ELC No.100/2019 – Kenroid Ltd vs Aureum Ltd & 8 others.(ii)Nairobi ELC No.227 of 2019 – Cissy Kalunde Musembi v Aureum Ltd. & 2 others.

4. It is her disposition that she has remained in possession and occupation of the land L.R. No.1870-/11/200 pursuant to injunctive orders issued by the court following an application by the Plaintiff in Nairobi ELC No.100 of 2019. That the matters before the ELC have yet to be determined. She further avers that if she is charged before the determination of the cases before the ELC then her rights under Articles 29(a) and (d), 31 (a), (c) and (d) and 39(1) of the Constitutionwill be violated.

5. She depones that the 1st respondent opted to charge her and not the others who are also fighting over ownership of the suit property.

6. Counsel for both the petitioner and 2nd respondent made mention of grounds of opposition filed by the latter but the same are not on record.

7. The firm of Ogembo and Associates filed written submissions dated 18th January, 2022. The same were highlighted by Mr. Odhiambo. Counsel submitted that the applicant has set out a prima facie case as held in the case of Mrao Ltd v. first American Bank of Kenya Ltd & 2 others Court of Appeal Mombasa Civil Appeal No.39 of 2002 [2003] eKLR. Further that the facts herein disclose a case of discrimination and oppression against the applicant by the respondents. He contends that the act of charging the applicant is an abuse of the court process to achieve ulterior motives.

8. Referring to Annextures “CKM-3” counsel contends that the central element in all the counts of charges facing the applicant is the ownership and occupation of the suit property. The same he argues is the subject in the matters before the ELC. Further that there are injunctive orders (Annexture CKM–12) issued in Nairobi ELC No.200 of 2019; which aimed at the status quo being maintained on the suit property. That the Criminal case is designed on stealing a march against the express orders of the court hence an abuse of the process.

9. Counsel has also submitted that according to a witness statement of the 1st respondent’s witness (Annexture CKM–7) the suit property belongs to Aureum Ltd. He thus challenges the particulars in count 1 of the Criminal charges. Counsel argues that the respondents have not rebutted the averments by the applicant which must be taken to represent the true position. He cited the case of (i) Joseph Wanyonyi Wafukho v Rep. [2014] eKLR.

10. It is counsel’s argument that the arrest and charging of the applicant is discriminatory as other defendants in the cited civil matters were not treated as such. To support this line of argument he referred to the cases of:(i)George Joshua Okungu & another v Chief Magistrate Court Anti corruption court at Nairobi & another [2014] eKLR.(ii)Alfred Nyandieka v Director Public Prosecutions & 3 others[2019] eKLR.

11. It is his submission that the criminal case against the applicant has been instituted to afford Horizon Hills Ltd an unfair advantage in the pending suits at the ELC. In support of this counsel cited Republic vs Attorney General exparte Kipngeno Arap Ngeny High Court Civil Application No.406 of 2001 where the court stated as follows:“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. 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.”

12. Learned counsel Mr. Achochi for the 2nd respondent filed submissions dated 1st February, 2022. He submits that the charges facing the applicant in Chief Magistrate’s Criminal case No.E1264 of 2021 were commenced and preferred by the 2nd respondent in exercise of its Constitutional mandate, under Article 157(6) of the Constitution.

13. It is his contention that the charges were not actuated by any ulterior motive or external forces. That in charging the applicant, the 2nd respondent followed and observed the law and the rule of law in exercise of its mandate as set out in Article 157 (11) of the Constitution.

14. He further submits that concurrent criminal and civil proceedings is allowed in law under section 193 A of the Criminal Procedure Code which provides:“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”

15. He further relied on the case of Republic v Chief Magistrate Criminal Division & another exparte Mildred Mbuya Joel [2014] eKLR where G. V. Odunga J observed:“It is the applicant’s case that the subject of the criminal proceedings is similarly subject of pending civil proceedings in which the 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 the criminal proceedings be halted to justify the grant of such orders.”

16. Counsel has argued that despite the applicant’s assertion of there being restraint orders against the 2nd respondent the same had never been served on him. Further that in charging the applicant the 2nd respondent was not directed or controlled by anyone. That he only acted in accordance with Article 157 (10) of the Constitution which provides:“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.”

17. Counsel argues that there are no exceptional circumstances to warrant the stay of the criminal proceedings before the Chief Magistrate’s court. It is further his submission that the orders sought are best adjudicated before the Judicial Review division of the High Court under Order 53 of the Civil Rules 2010. He therefore called for the dismissal of the application.

Analysis and determination 18. Having carefully considered the application, affidavit, submissions and cited authorities herein, I find the issue falling for determination to be whether the applicant has raised any exceptional circumstance to make this court stay the proceedings in Nairobi Chief Magistrate’s Criminal Case No.E1264 of 2021.

19. There is no dispute that the Criminal charge proceedings before the lower court which the applicant wants stayed relate to three (3) counts under the penal code. They fall under sections 317, 320 and 91 of the Penal Code respectively.

20. There is equally no dispute that all the counts relate to the property known as Land L.R. No.1870/11/200 which the applicant claims to have bought from Horizon Hills Ltd.

21. Further there is no dispute that there are several parties involved in this issue of ownership of the suit property which is occupied by the applicant. This dispute has been registered in two suits at the Environment and Land Court in Nairobi vide:(i)ELC No.100 of 2019(ii)ELC No.227 of 2019.

22. It is also claimed that the ELC vide ELC No.100 of 2019 issued injunctive orders in respect of any transactions and/or any action being taken in respect of the suit property. The Petitioner/Applicant being the party whose name appears as the registered owner and being in occupation of the suit property is a party in the matters before the Environment and Land Court.

23. As has been admitted by both parties the issue before the ELC is determination of the ownership of the suit land. According to the 2nd respondent investigations have been conducted and a decision made to charge the petitioner/applicant with counts of conspiracy to defraud; obtaining registration of land by false pretense; Forcible detainer.

24. The matter before the Chief Magistrate’s court can only be fully settled once the ELC determines who the rightful owner of the suit property is. That is the mandate of the ELC. It is not for this court to make that determination. Secondly, if it is true that the ELC has issued injunctive orders in respect of the suit property, why was this petition filed here instead of the ELC being notified of the disobedience of its orders?

25. The ELC has the power and mandate to deal with the issues being raised here by the petitioner. That court can stay criminal proceedings if there is need to do so to enable it deal with a matter before it.

26. Filing of a multiplicity of cases eats into Judicial time and causes parties to incur uncalled for expenses. The substratum of this matter is the issue of title to and occupation of the suit property. The other issues on violation of constitutional rights are subsidiary issues which can also be handled by the ELC.

27. For this court to determine whether or not to stay the criminal proceedings it must delve into the issue of ownership and occupation of the land which is not within its docket.

28. I therefore find no good reason to make this court interfere with the mandate of the 2nd respondent under Article 157 (10) and (11) of the Constitution. I further find that this matter should be best handled by the ELC. The application is dismissed and the petition is struck out with costs to the 2nd respondent.

Orders accordingly.

DELIVERED, SIGNED AND DATED THIS 5THDAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT