[2022] KEHC 15442 (KLR)

Mutemi v Abdalla (Cpl) of Athi River Police Station & 7 others (Constitutional Petition E016 of 2021) [2022] KEHC 15442 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15442 (KLR)

Republic of Kenya

In the High Court at Machakos

Constitutional Petition E016 of 2021

GV Odunga, J

October 5, 2022

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 24, 28, 35, 47, 48, 50, 51, 165 and 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS, ARTICLES 27, 28, 35, 47, 49, 50 AND 51 OF THE CONSTITUTION OF KENYA, 2010 and IN THE MATTER OF: THE PERSONS DEPRIVED OF LIBERTY ACT (ACT NO. 23 OF 2014) LAWS OF KENYA AND IN THE MATTER OF: INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND IN THE MATTER OF: UNLAWFUL, ARREST, INTIMIDATION HARASSMENT AND INCACERATION OF THE PETITIONER ON A CIVIL DEBT ON THE NIGHT OF 12TH SEPTEMBER,2021 WITHIN ATHI RIVER POLICE STATION MACHAKOS COUNTY BY POLICE OFFICERS OF ATHI RIVER POLICE STATION AND IN THE MATTER OF: ON NO. 60/17/2021 AND OB NO.61/17/6/2021 ATHI RIVER POLICE STATION

Between

Paul Mutemi

Petitioner

and

Abdalla (Cpl) of Athi River Police Station

1st Respondent

OCS Athi River Police Station

2nd Respondent

Inspector General of Police

3rd Respondent

Attorney General

4th Respondent

Director of Public Prosecution

5th Respondent

Esther Kamande

6th Respondent

Daniel Musyoka

7th Respondent

Rosemary Kanini Sila

8th Respondent

Judgment

Parties 1. The Petitioner herein is described as an adult of sound mind residing and working for gain within Nairobi.

2. The 1st Respondent is a Kenyan Police Corporal attached to Athi River Police Station while the 2nd Respondent is the Officer Commanding Police Station (OCS) Athi River Police Station.

3. The 3rd Respondent is the Inspector General of the Kenya Police while the 4th Respondent is the Attorney General sued as the Chief Legal Advisor of the Government of Kenya.

4. The 5th Respondent is the Director of Public Prosecution whose office and functions is created under Article 157 of theConstitution.

5. The 6th and 7th Respondent are the complainants at Athi River Police Station in regards to OB NO xxxx and OB NO xxxx Athi River Police Station while the 8th Respondent is the wife of the 7th Respondent.

The Petition 6. According to the Petition the on the night of September 12, 2021 while driving along Nairobi-Mombasa road at around 1900 hours, the Petitioner was arrested by one Abdalla, a police officer from Athi River police station over a complaint of obtaining money by false pretences in the sum of Kshs 2, 200,000/- lodged at the said police station by the 6th and 7th Respondent vide OB No xxxx and xxxx. According to the Petitioner, the police officer who arrested him did not disclose any information to the Petitioner both during the arrest and confinement in police custody until the next day in the morning of September 13, 2021 at about 11:00 am, in the presence of his advocate, when they were informed that the charges facing the Petitioner were those of obtaining money by false pretences from the 6th and 7th Respondents.

7. It was the Petitioner’s case that while in custody, he informed the police that he had a medical condition which was not conducive for him spending a cold night in a police cell but his plea fell on deaf ears. Instead, he was threatened with dire consequences by the arresting officer and intimidated for the better part of the night and was also denied right to access food.

8. It was pleaded that instead of being arraigned in court on September 13, 2021, at 11:00 am, he was informed by the 1st Respondent that the 6th and 7th Respondents wanted to settle the matter out of court by signing an agreement that he would pay the alleged amount at the risk of being taken to court and he was released on September 13, 2021 on a police cash bail of Kshs 30,000/- beyond the 24 hours period stipulated by theConstitution.

9. According to the Petitioner, the 1st Respondent ignored the fact that it was a civil debt, part of which the Petitioner had repaid to the complainants. The Petitioner however asserted that he is not known to the 6th Respondent and has never engaged with her in any transaction.

10. According to the Petitioner, his unlawful arrest and confinement was pushed by a judicial officer namely, Daniel Musyoka, a Principal Magistrate at Kikuyu Law Courts against whom the Petitioner has lodged a complaint with the Judicial Service Commission over his illegal conduct and the abuse of office to harass the Petitioner.

11. The Petitioner maintained that his arrest, harassment, intimidation and incarceration in a police cell was without factual basis and/or legal basis in criminal law, was malicious, was actuated with bad faith, was an abuse of office and without any probable and/or reasonable cause and amount to violation of his rights and freedoms. According to the Petitioner, his reputation was greatly injured as a recognized Engineer within the Republic of Kenya and he felt intimidated, leaving him in fear of the unknown, troubled, inconvenienced and suffered loss and damage.

12. The Petitioner was apprehensive that the 1st Respondent would arrest him once again on a charge of attempted corruption on the cash bail receipt issued to him on September 13, 2021, a charge that was not disclosed to him during his arrest on September 12, 2021 or on the September 13, 2021. He lamented that he only saw the charge indicated in the cash bail receipt.

13. He was further and reasonably apprehensive that by lodging a complaint with the Judicial Service Commission about the conduct of the judicial officer, the judicial officer is out to intimidate him with police arrests without any basis hence the need for this court to protect his fundamental rights and freedoms.

14. The Petitioner’s petition was grounded on Articles 10, 27(1) and (2) 29 39(1) 47 and 49(1) (f) of theConstitution and sought the following orders:a.A declaration that the Respondents have violated the Petitioner’s rights as enshrined under Articles 27(1) and (2), 29(a), 39(1) and 47 of theConstitutionb.A permanent order of injunction restraining the Respondents whether by themselves agents and servants and whomsoever acting under their authority or instruction from charging, prosecution, arrest, continued harassment, questioning, intimidation, apprehension on any matter against the Petitioner concerning the report made to the Athi River Police station and reported under OB NO xxxx and OB NO xxxx or any other OB No.c.An order of mandatory injunction compelling the 1st Respondent through the 2nd Respondent to release to the Petitioner the sum of Kshs 30,000/- as cash bail in respect of the report made under OB xxxx and OB NO xxxx and or any other OB Number.d.An award for general damages for the violation aforesaid.e.Costs of this suit.

4th Respondent’s Grounds of opposition 15. The 4th Respondent opposed the Petition based on the following grounds;1. The orders sought by the Petitioner in application dated September 16, 2021 are final in nature and have the effect of determining the Petition2. Both the application and Petition offend and seek to unjustly curtail the authority and exercise of constitutional and statutory powers and functions of the offices of the 1st, 2nd, 3rd and 5th Respondents as provided for under Articles 157 and 245 of theConstitution.3. The impugned actions of the 1st, 2nd, 3rd and 5th Respondents as outlined by the Petitioners in their pleadings have been reasonably undertaken in good faith and upon lawful and relevant grounds, anchored upon theConstitution and statute law; in particular Article 157(6), Section 5 and 6 of the Office of the Director of Public Prosecution Act and Sections 34 and 35 of the National Police Service Act.4. In exercising of its constitutional powers and functions, the 5th Respondent is bound by the national values and principles of governance as provided for under Article 10 and 157(11) where the public interest, interest of the administration of justice and the need to prevent and avoid abuse of legal process must be observed.5. The constitutional and statutory mandate conferred upon the 1st, 2nd, 3rd and 5th Respondents can only be interfered with by Court where it has been sufficiently demonstrated that they have acted arbitrarily and contrary to their constitutional powers and mandates.6. The mere allegation that a human right or fundamental freedom of the petitioners has been or is likely to be contravened is not of itself sufficient to entitle the Petitioners the remedies sought. The Petitioners must demonstrate real danger do imminent and evident, true and actual and not fictitious, so that it deserves immediate redress by this Honourable Court.7. The strict interpretation of Article 23(3) (c) is the relief for temporary orders thereunder is, prima facie, only available when a party is alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened.8. If the investigations culminate in the arrest and prosecution of the Petitioners, arrest and prosecution are legal processes provided for by law with specific constitutional safeguards, and do not amount to infringement on the fundamental rights and freedoms of the Petitioners9. The investigations, arrest, detention and preferring charges fell within the mandate of the National Police Service and the Director of Public Prosecution and the alleged infringement could not be levelled against the 1st, 2nd, 3rd and 5th Respondent.10. Arrest and prosecution do not strip the Petitioners of their constitutional rights under Articles 22, 49 and 50 of theConstitution. Where the same are proved to have been infringed, the petitioners can seek redress where the court may grant appropriate relief, including compensation.11. A plain reading of Section 193A of the Criminal Procedure Code is that if any matter in issue in criminal proceedings is also directly or substantially in issue in any pending civil proceedings that should not be a ground for any stay, prohibition or delay of the criminal proceedings.12. Allowing the prayers sought in the application and petition will be akin to inviting this Honourable Court to assume the role of the 5th Respondent to review the case put forward by the 1st, 2nd and 3rd Respondent in making the decision to charge or not to charge thereby usurping the prosecutorial powers of the 5th Respondent as well as the investigatory powers of the 1st, 2nd and 3rd Respondent as enshrined under theConstitution.13. If the orders sought in this Application and Petition are granted, it will be tantamount to the determination of investigation and any likely or probable prosecution of the petitioners for their alleged criminal conduct.14. No evidence has been adduced before the court to show that the Petitioners have suffered prejudice, damages or violation of their rights and freedom under Constitution as a result of the ongoing investigation thus rendering their continued investigation an out an outright abuse of constitutional powers.15. The petition is merely based on unsubstantiated apprehension since the Petitioners have not demonstrated that unless the temporary orders are granted, there is a real danger which will be prejudicial to them.16. The Petitioners have filed this petition purely to frustrate the investigation against them. They ought to face their accusers, prove their innocence or otherwise and submit to the consequences of the law if found culpable.

5th Respondent’s Case 16. In opposing the petition, the 5th Respondent relied on the following grounds:1. That it is not enough to merely state that the rights of the petitioners have been violated and infringed without specifically stating the nature of violations of such rights.2. That Article 157(6) (a) mandates the Director of Public Prosecutions to 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.3. That the Director of public prosecutions does not require the consent of any person or authority for the commencement of criminal proceedings and in exercise of his powers or functions, shall not be under the direct control of any person or authority.4. That the instant petition is pre-mature as the Director of Public Prosecution has not made a decision whether or not the petitioner is going to be charged with any offence.5. That the Petitioner has not demonstrated any issues for the court to determine.6. That the petitioner’s rights as claimed are not absolute but are subject to some limitations.7. That it is in the Public interest that all complaints made to the Police should be investigated.8. That the Police under section 24 the National Police Service Act, have the mandate of carrying out investigations and if there is any offence alleged to have been committed then the police will arrest and charge the perpetrators of the Crime.9. That the Petitioner has not demonstrated how he will suffer any substantial injustice if charged in court as Criminal cases are determined on merits.10. That the laws of Kenya provide essential safeguards for a fair trial which is also entrenched in theConstitution of Kenya 2010. It has not been demonstrated that the applicants will not be accorded a fair trial before the subordinate court to warrant the granting of the orders sought11. That this petition is frivolous and vexatious, and its only mend to prevent the Director of Public Prosecution and the Police from carrying out their core mandates and to circumvent the Criminal Justice in Kenya.

6th, 7th and 8th Reply to Petition 17. In response to the Petition, the 6th, 7th and 8th Respondents relied on the following grounds;1. The Petition herein lacks merit2. The Petition does not meet the requisite legal standards3. The Petitioner will have his day in the criminal trial where he will defend himself4. The petitioner does not deny obtaining Kshs 2,200,000/- from the 6th, 7th and 8th Respondents5. The intended charge is in strict compliance with Section 313 of the Penal Code.6. Stopping the prosecution will visit an injustice to the 6th, 7th and 8th Respondents.7. Stopping the intended prosecution will impair the 6th, 7th and 8th Respondents right to recover their money.8. The Petition is malafides9. The 6th, 7th and 8th Respondents should not be denied their right to, in a fair and procedural criminal forum prove that the Petitioner did fraudulently obtain Kshs 2,200,000/- from them.10. The intended prosecution and arraignment of the Petitioner is bona fide same being predicated upon thorough and competent investigations by the relevant state agencies.11. The intended prosecution is founded on legal and sound basis12. Stopping the intended prosecution of the Petitioner will infringe on the 6th, 7th and 8th Respondents constitutional right to fair trial13. The orders sought by the Petitioner are premature14. There is no evidence placed on record that the intended prosecution is malicious.15. There is no evidence to support the Petitioner’s allegation that the intended prosecution will be arbitrary16. Stopping the Petitioner’s intended prosecution will prevent the police from exercising their statutory duty as provided for under section 24 of the National Police Service Act.17. Stopping the intended prosecution will result in an injustice in the criminal justice system and public interest.18. It is in the public interest that the 6th, 7th and 8th Respondents complaint made to the police be investigated and the perpetrator of the crime be arrested and arraigned in court19. The Petitioner has not demonstrated that he will suffer substantial injustice and prejudice20. The intended prosecution will be determined on merit21. The petition is premature for reason that the petitioner has not pleaded to the charge and is only instituting the constitutional references as a delaying tactic22. The Petitioner has not specifically set out the nature of the violation of his rights23. Article 157(6) (a) mandates the Director of Public Prosecution to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed.24. The Petition seeks to insulate the Petitioner against prosecution from his criminal activities25. Jurisdiction of this court to interfere with the exercise of the 1st, 2nd and 3rd Respondents discretion in making prosecutorial decisions should be exercised sparingly and in the clearest of cases and where it is proved that it has been unfairly and improperly exercised.26. The Petitioner has not demonstrated that the intended prosecution is in bad faith and an abuse of due process.27. It is not the duty of this court to supervise the minutiae of investigations and prosecution28. The Director of Public Prosecution is an independent constitutional office and is only subject to the control of the court based on the principles of illegality, rationality and procedural impropriety29. The criminal court is best placed to look into the insufficiency and veracity of the evidence presented to it by the prosecution.

18. The 7th Respondent also swore a replying affidavit in which he set out the history of the dispute between the Petitioner and the Complainant and how the Petitioner became indebted to the Complainants. However, despite undertaking to repay the said debt, the Petitioner instead resorted to issuing cheques which were not honoured. The Petitioner also started evading the Complainant and declined to take the Complainants’ phone calls.

Petitioner’s submissions 19. On behalf of the Petitioner, 4 issues were proposed for determination;a.Whether the Petitioner had been given sufficient information regarding the charges he was facingb.Whether the Petitioner’s arrest and detention by the Respondents violated his Constitutional rightsc.Whether the charge of obtaining money by false pretences against the Petitioner is tenable under the present circumstancesd.Whether the Petitioner is entitled to general damages as against the Respondents

20. Regarding issue (a) and (b), it was submitted that his constitutional rights were violated during the time of the arrest on the night of September 12, 2021 and during his detention at Athi River Police Station in particular Article 35 of theConstitution which provides for the right to access to information. According to the Petitioner, he was not informed of the reasons of his arrest and detention till the following day on September 13, 2021. The Petitioner lamented that he did not know charges of attempting corruption had been preferred against him until he was issued with the Cash bail receipt which indicated the charge. According to the Petitioner, he does not know the circumstances under which the offence was committed contrary to the allegations advanced by the 1st Respondent.

21. In respect of the right to access information, reliance was placed on the case of Katiba Institute vs Presidents Delivery Unit & 3 Others [2017] eKLR and quoted with approval the case ofNairobi Law Monthly vs Kenya Electricity Generating Company & 2 Others [2013] eKLR.

22. According to the Petitioner, Article 49 of the Constitution requires that an accused person be informed promptly in a language which he/she understands the reason of his/her arrest, the right to remain silent and consequences of remaining silent and to be brought before a court of law within 24 hours of his arrest. It was submitted that the Petitioner’s liberty was curtailed by the 1st Respondent who knew that investigations had not been completed for the Petitioner to be taken before a court of law for plea taking. Reliance was placed on the case of Keroche Industries Ltd vs. Kenya Revenue Authority & 5 Others [2007] eKLR quoted with approval in the case of Mohamed Feisal & 19 Others vs Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police Station & 7 Others, National Police Service Commission & Another (Interested Party) [2018] eKLR.

23. The Petitioner’s view was that the 1st Respondent ought to have granted the Petitioner bails/bond rather than detaining him the whole night on the September 12, 2021. According to the Petitioner, the 1st Respondent in his replying affidavit offered no explanation why he preferred to incarcerate the Petitioner. To the Petitioner that was a way of intimidating and harassing him.

24. On issue (c), it was submitted that the 7th Respondent acknowledged Kshs 500, 000/- paid by the Petitioner towards repayment of a friendly loan advanced to him by the 7th and 8th Respondent. According to the Petitioner, this is a civil claim where the 6th, 7th and 8th Respondents have recourse in civil proceedings but not through criminal proceedings.

25. Reliance was placed on the cases of Titus Barasa Makhanu vs Police Constable Simon Kinuthia Gitau & 3 Others [2016] eKLR quoted with approval in the case of R vs AG Exparte Kipng’eno Arap Ngeny High Court Civil Application No 406 of 2001 where the court held that criminal prosecution which is commenced in the absence of a proper factual foundation or basis is always suspect for ulterior motive or improper purpose.

26. Further reliance was placed on R vs Chief Magistrate Court at Mombasa Ex parte Ganijee & Another [2002]2KLR 703 quoted in the case of Titus Barasa Makhanu (supra).

27. It was submitted that the offence of obtaining money by false pretences does not relate to future events as held in the case of Justus Musau Wambua & Another vs Republic [2020] eKLR.

28. According to the Petitioner, his inability to repay the remaining balance after paying Kshs 500,000/- cannot be termed as obtaining money by false pretences hence his arrest and detention was unlawful ab initio.

29. Lastly, as to whether the Petitioner is entitled to an award of general damages, it was submitted that the Petitioner’s rights had been violated through unlawful and/or illegal arrest and detention over a civil claim. According to the Petitioner, it is clear that courts have discretion in dealing with claims of compensation nature for violation of constitutional rights and freedom by the state or its organs. Reference was made to the Court of Appeal decision of Gitobu Imanyara & 2 Others vs The Attorney General Civil Appeal No 98 of 2014 [2016] eKLR and the case of Daniel Waweru Njoroge & 17 Others vs Attorney General [2015] eKLR where the court awarded general damages of Kshs 100,000/-for the unlawful arrest and false imprisonment.

30. Based on the foregoing, the Petitioner urged the court to order for release of the cash bail deposited him and the Court was urged to allow his petition as prayed.

6th, 7th and 8th Respondents’ submissions 31. On behalf the 6th, 7th and 8th Respondents, it was submitted that the Petitioner does not deny obtaining Kshs 2, 200,000/- from the 6th, 7th and 8th Respondent. According to the Respondents, the Petitioner issued 3 postdated cheques for Kshs 1, 390,000/- which cheques were cashed in March and April 2019 upon the Petitioner’s instructions. It was further submitted that in October, 2019, on his instructions the Petitioner issued further postdated cheques for Kshs 2,200,000/- but when they were due for payment on October 30, 2019, the Petitioner issued instructions to the Respondent not to encash the cheques.

32. According to the Respondents, to date the Petitioner has not paid the Kshs 2,200,000/- obtained by him from the 6th, 7th and 8th Respondents and the postdated cheques remain unbanked on the Petitioners instructions that they should not be cashed. As a result of the non-repayment of the money, it was submitted that the Petitioner went underground and declined any mode of communication with the aggrieved Respondents.

33. Reliance was placed on Section 313 of the Penal Code which defines the offence of obtaining by false pretence. According to the Petitioner, the said cheques were a representation that the Petitioner would repay the money obtained from the aggrieved person. It was theerfore submitted that the 6th, 7th and 8th Respondents were within their right to report a complaint of obtaining by false pretence by the Petitioner. According to the Respondents, the report was brought for a reasonable and probable cause which was investigate by the police and it was considered whether to prefer criminal charges against the Petitioner.

34. According to the Respondents, the Petitioner has not shown that his arrest was illegal and actuated by malice. It was submitted that the 1st,2nd,3rd, 4th and 5th Respondents have powers under Articles 157, 244, 245 of theConstitution to investigate and prosecute the Petitioner hence the arrest of the Petitioner did not contravene theConstitution or any or any other law. It was submitted that the Petitioner is entitled to a remedy of release on bond terms by dint of Article 49(i) (h) of theConstitution and Section 124 of the Criminal Procedure Code whereof his rights are guaranteed and protected by law hence it is not the intention of the 6th, 7th and 8th Respondents to use the police for an ulterior motive. According to the Respondents, the investigations by the 1st, 2nd and 3rd Respondents have disclosed a Criminal offence which they intend to escalate to prosecution.

35. It is submitted that this court sitting as a Constitutional Court cannot try the criminal issue pertaining to the Petitioner and the Respondents and apportion the guilt or innocence or entitlement of the parties. According to the Respondent, this court must not make a decision which will stifle the operation of other independent agencies of prejudice the criminal trial. To the Respondents, the Petitioner will have the opportunity to vindicate himself on the charges against him in the criminal trial.

36. It is submitted that it is the Petitioner who is infringing on the 6th, 7th and 8th Respondents private individual rights to own and enjoy their money. According to the Respondents, in this case there is no evidence of malice, unlawful actions, excess or want of authority, harassment or intimidation or manipulation of the court process hence obliterating the likelihood of getting a fair trial.

37. Based on the forgoing, it is submitted that the Petitioner has not proved the Petition to the standards required by law.

38. In support of their submissions, the 6th, 7th and 8th Respondents relied on the cases of;a.Mombasa Petition No 44 of 2020-Ashok Labshanker Doshi vs DPP & 3 Othersb.Petition No 10 of 2019-Dickson Ambeyi vs National Police Service & 3 Othersc.Mbowa vs East Mongo Administration (1972) EAd.Bethwel Okal Omondi vs AG (2018) KLR, Peter Nyamu Muthithi vs R Cr Appeal No 13 Of 2020e.Gerald Ndoho vs R- Nyeri Cr Appeal No 213 Of 2013

Determination 39. I have considered the Petition and responses to the Petition, Grounds of Opposition and submissions as well as the authorities relied upon.

40. As has been held time and time again the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of theConstitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review or constitutional petitions since such proceedings are not concerned with the merits but with the decision making process. A Petitioner or applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.

41. In Joram Mwenda Guantai vs The Chief Magistrate, Nairobi Civil Appeal No 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:'It is trite that an Order of Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.'

42. In Kuria & 3 Others vs Attorney General [2002] 2 KLR 69, the High Court held:'The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform. A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious. The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far that which the courts indeed the entire system is constitutionally mandated to administer. It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilise the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit. The intrusion of judicial review remedies in criminal proceedings would have the effect of requiring a much broader approach, than envisaged in civil law. In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilised. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed. There is nothing which can stop the Court from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made.'

43. In Republic vs Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, it was held:'It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement or frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth. When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court. In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in.'

44. I also agree with the decision in R vs Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No 406 of 2001 that:'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.'

45. Clearly, therefore whereas the discretion given to the 1st respondent to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised in the wider interest of the public. Otherwise if the Court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence, the Court will not hesitate to bring such proceedings to a halt. It is, however upon the ex parte applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute is being abused and ought to be interfered with.

46. This burden and standard was expounded in Kuria & 3 Others vs Attorney General (supra) where it was held:'A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution. In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of theConstitution. It is not enough to simply state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. In absence of concrete grounds for supposing that a criminal prosecution is an 'abuse of process', is a 'manipulation', 'amounts to selective prosecution' or such other processes, or even supposing that the applicants might not get a fair trial as protected in theConstitution, it is not mechanical enough that the existence of a civil suit precludes the institution of criminal proceedings based on the same facts. The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial. In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.'

47. Similarly, in Republic vs Attorney General & 4 others Ex-Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR this Court expressed itself a follows:'Before dealing with the issues raised herein, it is my view that the principles guiding the grant of the orders in the nature sought herein ought to be reiterated. Several decisions have been handed down which in my view correctly set out the law relating to circumstances in which the Court would be entitled to prohibit, bring to a halt or quash criminal proceedings. It is however always important to remember that in these types of proceedings the Court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings. As judicial review proceedings are concerned with the process rather than merits of the challenged decision or proceedings the court is not entitled to make definitive findings on matters which go to the merit of the impugned proceedings. In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial Court. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of theConstitution. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.'

48. I reiterate that these kind of proceedings do not deal with the merits of the case but only with the process. In determining the process, the Court will inquire into such issues as 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, whether the decision was irrational or tainted with such other factors as biased and whether the decision breached the legitimate expectations of the aggrieved person. This list is however not exhaustive. It follows that where an applicant sets out to have a determination on contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in proceedings of this nature to determine such issues. In those circumstances the parties are better left to resort to the normal forums where such matters ought to be resolved on their merits. It follows that these proceedings are not the proper legal regime in which the innocence or otherwise of the applicant ought to be determined and a party ought not to institute such proceedings with a view to having the Court determine his innocence or otherwise as to do so in my view amounts to abuse of the judicial process. What is paramount in these proceedings is the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the Court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, within the legal parameters recognised for the conduct thereof, the Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.

49. A word of caution is however necessary with respect to the exercise of the discretion to prosecute. Whereas Article 157(10) of theConstitution provides that 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, Article 157(11) provides:'In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.'

50. Apart from that, section 4 of the Office of Public Prosecutions Act, No 2 of 2013 provides:In fulfilling its mandate, the Office shall be guided by theConstitution and the following fundamental principles—(a)The diversity of the people of Kenya;(b)Impartiality and gender equity;(c)The rules of natural justice;(d)Promotion of public confidence in the integrity of the Office;(e)The need to discharge the functions of the Office on behalf of the people of Kenya;(f)The need to serve the cause of justice, prevent abuse of the legal process and public interest;(g)Protection of the sovereignty of the people;(h)Secure the observance of democratic values and principles; and(i)Promotion of constitutionalism.

51. It is therefore clear that the current prosecutorial regime does not grant to the DPP a carte blanche to run amok in the exercise of his prosecutorial powers. Where it is alleged that the standards set out in theConstitution and in the aforesaid Act have not been adhered to, this Court cannot shirk its Constitutional mandate to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, theConstitution itself. I associate myself with the sentiments expressed in Nakusa vs Tororei & 2 Others (No 2) Nairobi HCEP No 4 of 2003 [2008] 2 KLR (EP) 565to the effect that:'The High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret theConstitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system. In interpreting theConstitution, the Court must uphold and give effect to the letter and spirit of theConstitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs Attorney General Miscellaneous Application No 494 of 2003 is that interpretation of theConstitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: 'The Courts are not to give traditional meaning to the words and phrases of theConstitution as they stood at the time theConstitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time. In our role as 'sentinels' of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent 'sentinels' of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.'

52. Where therefore it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under theConstitution and the Office of the Director of Public Prosecutions Act, that would, in my view, constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. As was held by Wendoh, J in Koinange vs Attorney General and Others [2007] 2 EA 256:'Under section 26 of theConstitution the Attorney General has unfettered discretion to undertake investigations and prosecute. The Attorney Generals inherent powers to investigate and prosecute may be exercised through other offices in accordance with theConstitution or any other law. But, if the Attorney General exercises that power in breach of the constitutional provisions or any other law by acting maliciously, capriciously, abusing the court process or contrary to public policy the Court would intervene under section 123(8) of theConstitution and in considering what constitutes an abuse of the court process the following principles are relevant: (i) Whether the criminal prosecution is instituted for a purpose other than the purpose for which it is properly designed; (ii) Whether the person against whom the criminal proceedings are commenced has been deprived of his fundamental right of a fair trial envisaged in the provisions of theConstitution; (iii) Whether the prosecution is against public policy.'

53. In appropriate circumstances, the Court may properly intervene in the exercise of discretion by the DPP and any other inferior authority for that matter and may justifiably do so in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No 1652 of 2004 (HCK) [2008] 2 EA 323.

54. As was held inR vs Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No 406 of 2001:'Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognised, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognised lawful parameters. The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious. A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case. A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence. In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.'

55. This Court associates itself with the position adopted in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR to the effect that 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. In that case it was held:'The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene'.

56. Where therefore the predominant reason for the institution of the criminal proceedings is not the vindication of the criminal justice such proceedings will be liable to be terminated.

57. As was held in James Karuga Kiiru vs Joseph Mwamburi and 3 Others Nrb CA No 171 of 2000 to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is, the burden of proving that the prosecutor did not act honestly or reasonably being on the person prosecuted.

58. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words, the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. I say ordinarily because the mere fact that the version of one of the parties is not considered does not make the subsequent prosecution malicious. However, where the police deliberately decide not to take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution. On the other hand, it would be obviously absurd to make a defendant liable because matters of which he was not aware put a different complexion upon facts, which in themselves appeared a good case for prosecution. But neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable and probable cause and also malice. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for a prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation but no general rule can be laid down.

59. Therefore, the Court would not halt criminal proceedings merely because the applicant’s version was never considered though that is a factor which may be considered in determining whether on the totality of the material presented the prosecution is coated with malice.

60. In this case, in contention is the sum of money which was due from the Petitioner to the 6th, 7th and 8th Respondents. That the said sum was due is not in contest. The Petitioner contends that the dispute between him and the complainants is a civil matter that ought not to be treated as a criminal offence. On the relevancy of the civil proceedings, section 193A of the Criminal Procedure Code Chapter 75 Laws of Kenya provides that notwithstanding the provisions of any other written laws, the fact that any matter in issue in any criminal proceedings is also directly and substantially in issue in any civil proceedings shall not be a ground for stay, prohibition or delay in criminal proceedings. However, although under section 193A of the Criminal Procedure Code the existence of civil proceedings do not act as a bar to the criminal process, where the criminal process has been instituted as a means of hastening the civil process by either forcing the applicants to concede the civil claim or abandon their claim altogether, the commencement of the criminal proceedings are an abuse of the process of the court and on the authority of Stanley Munga Githunguri vs Republic Criminal Application No 271 of 1985, this Court is obliged to stop such proceedings.

61. This position was confirmed by the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs Kenya Commercial Bank and Others Nairobi Civil Appeal No 56 of 2012 [2013] eKLR when it held:'While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations.'

62. It is my view however that as opposed to where the prosecution has no evidence at all, in which event an order of prohibition may issue, the court will not halt a prosecution simply because the court is of the view that the evidence would not in all probability lead to a conviction. To do that would, as I have stated hereinabove, amount to this court in a judicial review proceedings stepping into the shoes of the trial court and usurping the powers of the trial court.

63. Similarly, it is not for this Court to stop the DPP in his tracks simply because the Court believes that the DPP ought to have done better. The constitutional discretion given to the DPP ought not to be lightly interfered with especially if on the evidence in his possession if true may well sustain a prosecution. Trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on his defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words, I am not satisfied based on the material before me that the applicant will not receive a fair trial before the trial court more so as no allegations are made against the 2nd respondent towards that direction. Therefore, the mere insufficiency of evidence does not in my considered view justify the halting of a criminal trial.

64. In these types of proceedings, the Court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings. As these proceedings are concerned with the process rather than merits of the challenged decision or proceedings the court is not entitled to make definitive findings on matters which go to the merit of the impugned proceedings. I associate myself with the decision of Majanja, J in HC Pet No 153 of 2013; Thuita Mwangi and 2 Others vs the Ethics and Anti-Corruption Commission, that:'While these arguments are forceful, attractive and cogent, I am afraid that the High Court at this point is not the right forum to tender the justifications concerning the subject transaction let alone test the nature and veracity of these allegations. In the Court held that 'It is the trial Court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. It would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court'. Similarly Lenaola J, captured this balance as follows; '(22). The point being made above is that the DPP though not subject to control in exercise of his powers to prosecute criminal offences, must exercise that power on reasonable grounds. Reasonable grounds, it must be noted, cannot amount to the DPP being asked to prove the charge against an accused person at the commencement of the trial but merely show a prima facie case before mounting a prosecution. The proof of the charge is made at trial.'

65. As was held by Mumbi Ngugi, J in Kipoki Oreu Tasur vs Inspector General of Police & 5 Ors (2014) eKLR:'The criminal justice system is a critical pillar of our society. It is underpinned by theConstitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated'.

66. In the premises I am not satisfied that this is a proper case in which the court ought to bring the criminal proceedings to a halt. The applicant will be afforded an opportunity to defend himself, cross-examine witnesses and adduce evidence in support of his case and that in my view is the proper course to take in the circumstances of this case.

67. The Petitioner however contends that he was not informed of the reason for his arrest and that the omission to do so violated his rights. He further contended that he was not presented before the Court within the prescribed period. While this Court is not the right forum to determine whether or not the Petitioner ought to have been charged with the offence of obtaining by false pretences, the failure to inform the Petitioner of the charge facing him and to either release him on bond or arraign him before Court within the prescribed period may well amount to a violation of his rights.

68. In this case, there is an affidavit sworn by one Cpl Klehanse Abdallah detailing what took place from the date the complaint was made to the date that the Petitioner was arrested. The Petitioner did not file any rejoinder to the same. I his affidavit, the Petitioner averred that he was arrested on September 12, 2021 at around 1900 hours and he was informed that he would be taken to Court the following morning. However, the following morning at around 10. 00 am his advocate went to the Station and rescued him. According to the Petitioner he spent 17 hours in police custody without being informed of the offence that he had committed.

69. From the evidence on record and in light of failure to join issue with respect to the affidavit sworn by Cpl Abdallah I find that the allegation that the Petitioner as not promptly informed of the charges facing him have not been satisfactorily proved. Further, as the Petitioner was released within 24 hours of his arrest, I find that his right to be released on bond or arraigned in Court was not violated.

70. In the premises, I find that the allegations made by the Petitioner in this petition have not been proved.

71. Consequently, this petition fails and is dismissed with costs.

72. It is so ordered.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2022M W MUIGAIJUDGE