[2017] KEHC 3112 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ELECTION PETITION NO 8 OF 2017

IN THE MATTER OF ARTICLE 1, 22 (1), 86 (c) (d), 88 (b), 157 (11) AND 165 (6) OF THE CONTITUTION OF KENYA 2010

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 50 (1)

AND

IN THE MATTER OF CHAPTER SEVEN OF THE CONSTITUTION

AND

IN THE MATTER OF REGULATION 85 OF THE ELECTION (GENERAL) REGULATIONS, 2012

AND

IN THE MATTER OF THE SECTION 42 OF TH ELECTION ACT NO. 24 OF 2011

BETWEEN

NICHOLAS MUGAMBI MUGWIRIA……...PETITIONER/APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS …… RESPONDENT

RULING

1. A criminal prosecution is a legal process by which, it is sought to establish if and whether an individual has committed an offence and if established, punishment is metted out on him in accordance with the law. In a criminal trial therefore, the State seeks to convince a court of law that the individual before it, has committed an offence and should be punished accordingly. It is a process that is basically preoccupied with justice. It is a necessary process in the maintenance of law and order. Being a significant process in the rule of law, a criminal prosecution is not to be lightly interfered with unless for good reason.

2. In this regard, the courts have variously pronounced themselves on this subject. In R. V. London QuarterSessions (Chairman), Exparte Downes [1953] 2 ALL ER750, the Court held that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will ultimately be acquitted and because he can bring an action for damages for malicious prosecution.

3. In Director of Public Prosecutions v Humphrys [1976] 2ALL ER 497; Lord Viscount Dihorne stated:-

“(a) .... If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.

(b) If there is the power which my noble and learned friends think there is to stop a prosecution or indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances.”

4. In the same case, Lord Salmon delivered himself thus:-

“I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred. I express no concluded view whether courts of inferior jurisdiction possess similar powers. But if they do and exercise them mistakenly, their error can be corrected by mandamus (see Mills v Cooper).”

5. The Court of Appeal of New Zealand in Moevao v Departmentof Labour [1980] 1 NZLR 464 held at page 482:-

“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is to simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”

6. In Australia, a 5 Judge Bench of the High Court in Jago v The District Court of New South Wales and Others [1989] 168 CLR 23 delivered itself thus:-

“An abuse of process occurs when the process of the court is put in motion for purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. .... When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law.”

7. Closer home, Odunga J in Republic v Chief Magistrate’s Court Nairobi & 4 Others [2013] eKLR stated:

“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. 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 undertakenbona fidessince 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. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore the concurrent existence of the criminal proceedings and civil proceedings would not,ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim. In the exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration.”

8. The Applicant, Nicholas Mugambi Mugwiria was a tallying agent for the Mazingira Greens Party of Kenya in the just concluded general elections at North Imenti Constituency. He was arrested on the night of 10th August, 2017 from the tallying Centre and charged before the Meru Chief Magistrate’s Election Court Case No. 4 of 2017. The Charge Sheet dated 11th August, 2017 shows that he was charged with the offence of hindering an Election Officer in the Execution of his lawful duty contrary to Section 13 (i) of the Election Offences Act No. 37 of 2016.

9. The Applicant has filed a Petition to challenge his said prosecution. Contemporaneous with the Petition, he took out a Motion on Notice seeking a Conservatory Order to stay the proceedings in the aforesaid criminal proceedings pending the hearing of the main Petition. He swore in the Affidavit in Support that his arrest and consequent prosecution was not for the intended purposes for which the law allows such prosecution; that the dorminant purpose in his prosecution in Meru CM Election Offence No. 4 of 2017 Republic vNicholas Mugambi Mugwiria is to achieve the purpose of obstructing him from his lawful execution of his duty.

10. Mr. Murage for the Director of Public Prosecution appeared and submitted that the decision of the Director of Public Prosecutions (DPP) to charge the Applicant was made professionally and without malice. Mr. Mwanzia, Learned Counsel for the Applicant submitted otherwise. He indicated that the actions of that night led to the filing of Meru ElectionPetition No. 1 of 2017 Silas Muriuki Ruteere v TheIndependent Electoral and Boundaries Commission (IEBC)and 2 Others. Counsel urged that the prayers sought in the Motion be granted.

11. I have carefully considered the Affidavits on record. I have also perused the exhibits produced by the Applicant. I have also considered the able submissions of Learned Counsel. Election offences should and must be prosecuted expeditiously so as to cool down the emotions which go with election contests. However, while balancing the need to avoid interfering with the exercise of jurisdiction by an Election Offence Court, this Court must address itself to the allegations of possible breach of the fundamental rights and freedoms of the Applicant. Once breached, their recompense is only damages. Is damages an adequate remedy in the circumstances?

12. This Court notes the allegation that the Applicant was arrested in order to stop him from executing his duties as a tallying agent. He has stated on oath that the Returning Officer was not happy with his questioning of the irregularities he had witnessed in the tallying. He was arrested when he allegedly questioned what he considered to be an irregularity. There is allegations of bias. I will say no more being not the Election Court and since there is Election Petition No. 1 of 2017 that is pending.

13. Given, this Court cannot rule whether or not an offence had been committed. That is the jurisdiction of the Election Offence Court. However, the Court must weigh between the possibility of the Applicant undergoing a prosecution which may finally be found to have not been warranted. He would have suffered injury which can be avoided by staying the proceedings in the meantime.

14. In this regard, I am satisfied that the Applicant has made a case for the grant of the prayers sought. I allow prayer No. 3 of the Motion dated 4th September, 2017.

15. This order will be in force for 120 days within which the Applicant shall have prosecuted his Petition.

It is so ordered.

DATED and DELIVERED at MERU this 6TH day of SEPTEMBER, 2017

A. MABEYA

JUDGE

06/09/2017