[2013] KEHC 2126 (KLR)
The court found that while the petitioner, as an advocate, is not immune from criminal investigation, the police must conduct investigations in a manner that respects constitutional values and the dignity of the individual. The court noted that the petitioner had only recorded a statement and that no charges had...
Source-derived case information.
- Citation
- [2013] KEHC 2126 (KLR)
- Parties
- Petitioner: Newton Mungala; Respondent: Inspector-General of Police; Respondent: Director of Criminal Investigation Department; Respondent: David Ringera; Respondent: Director of Public Prosecution; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 276 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- partially allowed
- Legal Topics
- Police Powers, Harassment, Advocate Immunity, Criminal Investigation, Land Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Newton Mungala
Petitioner
Inspector-General of Police
Respondent
Director of Criminal Investigation Department
Respondent
David Ringera
Respondent
Director of Public Prosecution
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the police have harassed the petitioner, an advocate, in the course of investigating a land transaction.
- 2 Whether being an advocate confers immunity from criminal investigation or process.
- 3 Whether the police can lawfully demand that the petitioner produce his client for investigation.
Ratio Decidendi
The court found that while the petitioner, as an advocate, is not immune from criminal investigation, the police must conduct investigations in a manner that respects constitutional values and the dignity of the individual. The court noted that the petitioner had only recorded a statement and that no charges had been preferred. The central complaint was about harassment, and the court determined that the respondents should be restrained from demanding that the petitioner produce his client, as such a demand was not justified at this stage of the investigation. The order was made with the consent of the parties, recognizing the balance between the police's investigative mandate and the...
Court Disposition
partially allowed
Orders
- The 1st, 2nd, 3rd and 4th respondents are restrained from demanding from the petitioner (advocate) that he produces, Jeff Kiriga Gicharu (the vendor) to the investigative arm of government.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 276 OF 2013
BETWEEN
NEWTON MUNGALA ………………………...…...................................................................... PETITIONER
AND
THE INSPECTOR-GENERAL OF POLICE ...…........................................................................................1ST RESPONDENT
THE DIRECTOR OF CRIMINAL INVESTIGATIONDEPARTMENT …………………………………... 2ND RESPONDENT
DAVID RINGERA …..………………………….......................................................................................... 3RD RESPONDENT
DIRECTOR OF PUBLIC PROSECUTION ................................................................................................. 4TH RESPONDENT
THE HON. ATTORNEY GENERAL …...……….......................................................................................... 5TH RESPONDENT
JUDGMENT
This matter has been brought by the petitioner, an advocate, who complains that he is being harassed by the police for acting on behalf of his client’s in a land transaction.
Both parties concede that the advocate has recorded a statement in the matter and that the matter is still under investigation. Further, no firm decision has been taken to prefer charges against the petitioner.
Having heard the counsels for the parties, what is apparent is that the petitioner’s complaint essentially is about harassment. It is to be recognised that the police have the duty to investigate allegations of crime in a manner that respects the dignity of the person and is consistent with the values of the Constitution. The fact of one being an advocate, on the other hand, does not confer legal immunity from the criminal process.
In the circumstances, the order that commends itself to this court and with the consent of the parties is as follows;
The 1st, 2nd, 3rd and 4th respondents are restrained from demanding from the petitioner (advocate) that he produces, JEFF KIRIGA GICHARU (the vendor) to the investigative arm of government.
There shall be no order as to costs.
DATED and DELIVERED at NAIROBI this 26th day of September 2013
D.S. MAJANJA
JUDGE
Mr Kabaka instructed by Kabaka and Associates Advocates for the petitioner.
Mr Ng’etich, Litigation Counsel, instructed by the Office of the Director of Public Prosecutions.
Mr Moimbo, Litigation Counsel, instructed by the State Law Office for the 5th respondent.