[2022] KEHC 13485 (KLR)

NCBKA Bank Kenya PLC v DPP, Ruiru Branch (Criminal Revision E0270 of 2021) [2022] KEHC 13485 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13485 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E0270 of 2021

MM Kasango, J

October 6, 2022

Between

NCBKA Bank Kenya PLC

Applicant

and

DPP, Ruiru Branch

Respondent

(Being criminal revision application from an order on access to bank account of 15th December 2021 at Ruiru Senior Principal Magistrates Court in Miscellaneous criminal application No. E356 of 2021)

Ruling

1. NCBA Bank Kenya Plc has moved this court seeking revision of the order made on December 15, 2021 before the Senior Principal Magistrate’s Court Ruiru ordering it to provide to the Dci Officer account statement of account (withheld) for period of November 1, to December 10, 2021; bank account opening document; report on internal customer deposits securing arrangement; NCBA staff members telephone numbers and any other information which can assist the investigators.

2. The revision is supported by an affidavit of Ibrahim Ngatia Mbogo the legal counsel of NcbaGroup. He made reference to theex parteorder issued by the SPM Ruiru on December 15, 2021 which compelled the NCBA Bank to make disclosures of Bank account amongst other disclosures. The deponent referred to the court’s guidelines pronounced in the case Hassan Mohamed Vs. Ethics And Anti Corruption Commission & Another (2018) eKLR thereby implying that the Ruiru Magistrate’s court failed to follow the guidelines issued thereof. The applicant further though the affidavit in support for the revision stated that the impugned order was procedural and unlawful on the grounds that the police investigation was undertaken on account of malicious and false complaint lodged by unknown/undisclosed complainant; and further, that the investigator failed to disclose the nature of the complaint; and that the disclosure sought would be difficult to comply with and would lead to NCBA infringing client/customer and staff confidentiality. The applicant therefore seeks the magistrate’s order be set aside in view of that it was issued without there being a pending suit; and on the ground NCBA was not heard before thatex parteorder was issued.

3. The revision is opposed by the Director of Public Prosecution through the affidavit of police officer Linus Lotulya, the officer investigating the complaint. This officer through his affidavit denied that the order issued by the magistrate’s court was unprocedural or unlawful. He stated that the complaint was made by (name withheld) at the Ruiru Police station. The said complainant was the account holder of the bank account this investigator sought disclosure over. The officer further deponed that disclosure of the complainant’s details was dangerous and would expose the complainant to fraudster who were the subject of the investigation. That following the filing of the present application for review and during its pendency, the NCBA Bank refunded the complainant Kshs 4,198,398. The refund was effected on January 19, 2022.

Analysis And Determination 4. Revision of the magistrate’s court order is sought as provided under section 362 of the Criminal Procedure Code. That section provides:-“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

5. The High Court is empowered by that section to call for and examine the proceedings of the subordinate court to satisfy itself on the regularity of the proceedings.

6. The applicant has based this revision application on the ground that the magistrate order was issued procedurally and unlawfully. In my view, there is nothing brought before this court which can lead this court to find the magistrate’s order was unprocedural and unlawful.

7. There is no provisions in law which requires an investigator who moves the court under section 180 of the Evidence Act to make disclosure as intimated by the applicant. That section provides:-“(1) Where it is proved on oath to a Judge or magistrate that in fact or according to reasonable suspicion, the inspection of any bankers books is necessary or desirable for the purpose of an investigation into the commission of an offence, the Judge or magistrate may by warrant authorise a police officer or other person named therein to investigate the account of any specified person in any bankers books, and such warrant shall be sufficient authority for the production of any such bankers book as may be required for scrutiny by the officer or person named in the warrant, and such officer or persons may take copies of any relevant entry or matter in such bankers books”.

8. The applicant argued that the magistrate’s order failed to abide with the guidelines given by Justice Hedwig I Ong’undi on the case Hassan Mohamed v Ethics And Anthi Corruption Commssion(supra). The learned judge in that case set out the following guidelines:-(i)Upon issuance of the orders under section 118 & 118 A of the Criminal Procedure Code the Magistrate must state the duration within which the order shall remain in force.(ii)The duration shall not exceed 14 days.(iii)The court shall give a return to court date soon after the 14 days for the following purpose.(a)For the Investigator to appraise the court on what he/she has done.(b)For the affected party to raise any issues it may have.(c)The court could extend the search warrant by a maximum of 7 days if satisfied of the need to do so.(iv)The affected party must be served within 48 hours of the issuance of search warrants.

9. In my view, the above were guidelines and indeed, the learned Judge stated that they were guidelines. Failure to abide in the guideline in my view would not nullify an order made. But perhaps more importantly, the learned judge stated that the guidelines related to matters under anticorruption and economic crime brought under section 118 and 121(1) of theCriminal Procedure Code. To buttress my above finding, the applicant is encouraged to note that the learned judge even though she found in that case of Hassan Mohamed(supra), that the guidelines had been breached the learned judge declined to revise the magistrate’s order.

10. There was no irregularity or unlawfulness of the magistrate’s order and furthermore, the application for revision is made not by the parties whose bank account or telephone numbers were involved. The NCBA Bank failed to demonstrate any irregularity which can lead to revision by this court. NCBA rights were not infringed by the magistrate’s order.

11. From reading the affidavit of the investigating officer, I got the impression that NCBA Bank approached this court to afford it time to effect refund into the complainant’s bank account and perhaps do away with the complaint being investigated. That seems to have been the motive of obtaining stay of the magistrate’s court order before this court. This court takes an exception to that behaviour.

Disposition 12. The notice of motion dated December 20, 2021 is dismissed. The stay of the SPM Ruiru Misc Criminal Application No E356 of 2021 issued by this court on December 22, 2021 is hereby set aside and vacated. NCBA is ordered to immediately obey the order of December 15, 2021 issued in Ruiru PM Court in the case Misc Criminal Application No E356 OF 2021

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGECoram:Court Assistant: Mourice /JuliaApplicant: - Ms. Mbaire H/B Ms. KimtaiDPP for Respondent: - Mr. KasyokaCOURTJUDGMENT delivered virtually.MARY KASANGOJUDGE