[2022] KEHC 13947 (KLR)

Nyongesa & 2 others v Inspector General of Police & 2 others; Opar & 2 others (Interested Parties) (Constitutional Petition 14 of 2021) [2022] KEHC 13947 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13947 (KLR)

Republic of Kenya

In the High Court at Bungoma

Constitutional Petition 14 of 2021

SN Riechi, J

October 3, 2022

IN THE MATTER OF THREATENED INFRINGEMENT AND CONTRAVENTION OF FUNDAMENTAL RIGHTS UNDER ARTICLES 2(1), 2(4), 3(1), 10(1), (2), 22(1), 19, 21(1), 23, 24, 31, 40, 49(1)(h) & 165 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10(1), (2), (3), 20(2), 24, 26, 27, 29, 31, 43, 47(2) & 165 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THREATENED CONTRAVENTION OF ARTICLES 20(2), 24, 27(1), (2), (4) & 43 OF THE CONSTITUTION

Between

Martins Wamalwa Nyongesa

1st Petitioner

Samuel Njau Kangau

2nd Petitioner

Catherine Nabwile Simiyu

3rd Petitioner

and

Inspector General of Police

1st Respondent

Director of Public Prosecutions

2nd Respondent

Attorney General

3rd Respondent

and

Francis Munialo Opar

Interested Party

Steve Njoru

Interested Party

Noordin Isaack Adan

Interested Party

Judgment

1. The petitioners, Martins Wamalwa Nyongesa, Samuel Njau Kangau and Catherine Nabwile Simiyu are directors of a company known as Regen-Terem SHPP Limited while the respondents; the Inspector General of Police, the Director of Public Prosecutions and the Attorney General are constitutionally created offices under articles 245, 167 and 156 of the Constitution respectively. The interested parties describe themselves as the bona fide directors of the said Regen-Terem SHPP (hereinafter known as the company) together with 3 other deceased individuals who together, registered the company in 2013.

2. The history of the registration and the company’s operations have been given in detail in the petition dated December 10, 2021 which need not be reproduced here. In a nut shell, the petitioner’s complaint relates to the intended prosecution of the petitioners by the 2nd respondent relating to the manner in which the change in directorship of the company was changed over time. It is averred that the main player in the incorporation of the company was one Joseph Simiyu Mukhamule (deceased).

3. The gist of the complaint is a letter to the Registrar of Companies by the interested parties and another individual one Wabwoba Mukhamule complaining about the manner in which they were removed as directors and shareholders of the company. The registrar of companies required of the company to file a response to the aforesaid letter pursuant to which a detailed report was done by the company. Thereafter and without reference to the letter so sent to the registrar of companies, the interested parties moved the Directorate of Criminal Investigations who in turn wrote a letter requesting for the same documents the registrar had required and further sought to record statements of a number of individuals including the 2nd and 3rd petitioners.

4. It is averred that after careful perusal of the documents by the registrar, the petitioners were informed by letter that the registrar was satisfied by the manner in which the changes were effected and the response shared with the interested parties’ advocates. The petitioners thought the matter had come to an end. On the other hand, the Directorate of Criminal Investigations by letter dated October 18, 2021 indicated that the 2nd respondent had recommended that the 8 individuals concerned with the management of the company be charged. The communication was not acted upon by the respondents until December 3, 2021 when the 1st respondent’s officers delivered yet another letter indicating that upon further investigations, only the 3 petitioners were required to take plea on December 14, 2021 thus the instant petition wherein they aver that the impending arrest and prosecution is oppressive, vexatious and constitutes an abuse of the court process.As such, the petitioners seek the following reliefs.a.A declaration that the position of the Registrar of Companies in this matter cannot be challenged through a prosecution of the petitioners.b.A declaration that the arrest and impending prosecution of the petitioners is unlawful and unconstitutional.c.A declaration that the petitioners were entitled to be availed the reasons as to why the 2nd respondent herein excluded the 5 persons and decided to prosecute the petitioners in his review as communicated by the letter dated September 3, 2021. d.A declaration that the 2nd respondent’s failure to avail information to the petitioners amounted to infringement of their right to information.e.A declaration that the 1st respondent’s actions are an infringement of the petitioner’s rights to fair administrative action.f.A permanent injunction do issue restraining the 1st respondent by himself, his officers, servants, agents or anyone acting on his behalf from arresting, detaining, restricting or otherwise confining or in any other way interfering with the liberty of the petitioners herein or any other directors and employees of the company herein in respect of or in connection with the complaint or allegations made arising from or in relation to this matter.g.An order prohibiting the 2nd respondent by himself, his officers, servants, agents or anyone acting on his behalf from instituting, charging or prosecuting the petitioners herein or any other employees and or directors of the company in respect of or in connection with the complaint or allegations made arising from or in relation with this matter.h.Costs of the petition.

5. The 1st respondent, the Inspector General of Police and the 3rd respondent, the Attorney general filed their grounds on opposition in the following terms; the petition seeks to curtail the 1st respondents constitutional mandate under article 245(4) of the Constitution and the fact of ultra vires by the 1st respondent has not been demonstrated, that the petitioners have not demonstrated how their rights will be violated if they are charged, the 1st respondent has a constitutional duty to investigate any offence once complaint is made, petitioners have not demonstrated they will not be accorded fair hearing once charged and prosecuted and will have chance to challenge evidence in trial court and that the petitioners have not demonstrated how their rights were violated by respondents.

6. The 2nd respondent, the Director of Public prosecutions filed grounds of opposition and a replying affidavit sworn by CPL Kipkirui Serem on February 14, 2022 whose gravamen is that the respondents are exercising their constitutional and statutory mandate and their work is bona fide not tainted by malice, the petition lacks precision on the rights allegedly infringed and how they have been violated or likely to be violated and that the complainants need to have their complaints addressed and the door will be shut if the orders sought are granted.

7. In his disposition in opposition to the action, the said Kipkirui Serem states that after receiving documents from the complainants, the company and the Registrar of Companies, he subjected the documents so obtained to forensic document examination which finding confirmed the fact that the documents used to transfer shares in the company were a forgery and he therefore intends to charge the petitioners with the offence of forgery.

8. The parties later filed their written submissions. All the parties complied save the petitioners.

9. For the 1st and 3rd respondent, it is submitted along the following identified issues; whether the petitioners’ rights were violated by the 1st and 2nd respondents; and, whether the petitioners are entitled to the orders sought. On the first issue, it is submitted by counsel that the petitioners have failed to demonstrate how their rights have been violated by the 1st respondent through pleading with precision. In this regard, the case of Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others(2013)eKLR.

10. That under article 245(4) of the Constitution, the 1st respondent does not take directions from the registrar of companies or any other person on how investigations should be done.

11. On the second issue, it is submitted that the petitioners are not entitled to the orders sought because the prosecution is a lawful process sanctioned by the Constitution and any interference will cause injustice and violations of the rule of the law. Further that the petitioners will be accorded an opportunity during the trial to challenge the prosecution’s evidence.

12. For the 2nd respondent the Director of Public Prosecutions, their submissions are based on the issues; whether the 1st and 2nd respondent exercised their powers as envisaged in the Constitution in arriving at the decision to charge the petitioners with the offence of forgery, whether instituting criminal proceedings against the petitioners was an abuse of the court process and finally; whether the petitioners ought to be granted the orders as prayed.

13. On the first issue, it is submitted that the Constitution extends to every citizen the right to report crime to the proper agency. It is submitted that when the interested parties got wind of their removal from the directorship in the company, they reported to the Registrar of Companies and the Directorate of Criminal Investigations who upon recording statements and subjecting the documents obtained to forensic examination, concluded that the petitioners ought to be charged with the offence of forgery. The authorities in Catherine Wanjiku Kariuki v AG & another(2011)eKLR andJaribu Credit Traders Limited v Amendo Centre (K) & another(2018)eKLR were cited in support.

14. On the second issue, whether instituting criminal proceedings against the petitioners was an abuse of the court process, it is submitted that the respondents have acted within their mandate as donated by articles 243, 245 and 157 of the Constitution in arriving at the decision to charge having carried proper and thorough investigations into the matter. The case of Republic v Attorney General & another Ex-Parte Kipng'eno Arap Ng'eny (2001) eKLR and Republic v Commissioner of police and another ex-parte Michael Monari & another(2012)eKLR have been cited in support.

15. On whether the petitioners are entitled to the orders sought, it is submitted that article 157 of the Constitution mandates the 2nd respondent to commence criminal proceedings against any individual without the consent of any person. In the circumstances of the case and the evidence presented, the petition is intended to delay justice for the complainants. Reliance has been placed in the case of Hannah Wambui Githira v Director of Public of Public Prosecutions & 3 others (2018) eKLR and Ahmed Yusuf Ali v Hussein Yussuf Ali & 2 others (2020)eKLR.

16. For the interested parties, Francis Munialo Opar, Steve Njpru and Noordin Isaack Adan, it is submitted that the assertion by the petitioners that the interested parties were removed from being directors due to failure to honour their financial obligations and that they voluntarily resigned after selling their shares is not true and is an attempt to subvert the course of justice. That the alterations to the directorship were made after the demise of the said Simiyu and the investigations by the DCI revealed as much.

17. It is further submitted that there is probable cause to warrant the arrest and arraignment of the petitioners since the investigation by one CPL Kipkirui Serem revealed that the documents allegedly authored by the interested parties were actually forged thus the intention to charge them with the offence of forgery and falsification of documents. In this regard, counsel relies on the provisions of article 157(6)(a) of the Constitution for the proposition that it is the 2nd respondent who has the mandate to undertake criminal prosecution. Further reliance has been placed on the cases of Ahmed Yusuf Ali v Hussein Yussuf Ali & 2 others (supra),Christopher Mbugua Kiiru v Inspector General of Police & 3 others (2015)eKLR and Charles Ouma Olang v the Director of Criminal Investigations & 4 others (2019) eKLR.

18. Upon careful analysis of the petition, the affidavits filed herein and the annextures thereto together with the rival submissions on record as well as the law on the matter, the issue to be determined in this matter is whether on the evidence presented, the petitioners have presented a case necessitating the grant of the orders sought. A background of the circumstances preceding the filing of the petition has been given in the preceding paragraphs.

19. It is not in doubt that the power to commence and continue criminal proceedings is a preserve of the 2nd respondent, the Director of Public Prosecutions as donated by article 157 (6)(a) of the Constitution and fortified by section 5 of the Office of the Director of Public Prosecutions Act, 2013 which provides;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;

20. The genesis of the dispute herein is the alleged alteration of records held by the Registrar of Companies which removed the interested parties from their directorship in the company whereupon after investigations, the respondents intend to arrest and arraign the petitioners in court. The court is cognizant of the fact that in exercising his powers as donated by the Constitution, the Director of Public Prosecution is not under any obligation to seek anybody’s consent to commence any prosecution. In other words, the director acts independently. This is the dictate of article 157(10) which states;The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.

21. The above goes hand in hand with the cardinal principle of separation of powers and the restrain imposed in courts not to interfere with the functioning of independent commissions so that the exercise of a statutory power and or obligation by a constitutional office is curtailed through judicial processes. The grounds upon which a court of law can interfere with such exercise of discretion by the DPP were stated in Diamond Hasham Lalji & another v Attorney General & 4 others[2018] eKLR where the learned judges of appeal stated;However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual. .

22. A similar position was taken in Eunice Khalwali Miima v Director Public of Prosecutions & 2 others [2017] eKLR where the court stated:The circumstances under which the court will grant stay of a criminal process in these kinds of proceedings is now well settled. 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 is not a ground for halting those proceedings……….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.

23. In determining this petition, the court in this petition is only interested with how the investigation has been conducted by the respondents and to ascertain whether in so investigating or in the course of investigations, the respondents have or are likely to infringe on the petitioner’s rights, abuse the discretion extended to them to the petitioner’s detriment and or in disregard of the legal framework. This is a role that the court ought to approach with caution so as not to stifle the exercise of the role by the respondent. The court is not concerned with the evidence, the quality of the case or the strength of the evidence so obtained as this is ordinarily a province of the trial court once plea has been taken.

24. The petitioners seem to take issue with how the investigation has been carried out; particularly the different positions taken by the registrar of companies and the DCI; the Registrar of Companies stating in her report that the records held by her are in order and the process of transfer was procedural and the contrary position taken by the DCI on their part forming the opinion that the documents used in the transfer were a forgery.

25. The petitioners have taken further issue with the fact that the 2nd respondent had in his recommendations opined that 8 individuals connected with the company be charged which position changed months later with the petitioners now being required to take plea in relation to the matter. The petitioners deem the process oppressive and constitutes an abuse of the court process.

26. The 1st respondent is mandated to conduct investigations into alleged commission of crime. These powers are donated by article 245 of the Constitution and section 35 of the National Police Service Act. The process of gathering evidence is solely the 1st respondent’s duty and after collecting such pieces of evidence, the file is forwarded to the 2nd respondent who then peruses the file to satisfy himself whether to charge or not depending on the evidence available.

27. This was the position in Republic v Commissioner of Police and another ex parte Michael Monari & another (2012) eKLR where 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.

28. In Davi Ndolo Ngiali & 2 others v Directorate of Criminal Investigations & 4 others(2015) eKLR the honourable judge observed that: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 ….. as long as the prosecution and those charged with the responsibility of making decisions to change act in a reasonable manner, the High Court would be reluctant to intervene.

29. In the course of investigations by the DCI, the petitioners were asked to avail certain documents that would aid in the investigation as well as record statements which directive they complied with. No evidence of ill will or ulterior motive by the investigative agency has been established to warrant the halting of the process.

30. The court further notes that the arguments advanced by the petitioners in this matter in support of their petition is basically that the evidence against any such prosecution is weak. Our Constitution has sufficient safeguards that will guarantee them a fair trial when that time comes. At the moment the court cannot forestall the conduct of investigations and or prosecution.

31. Looking at the petition, the petitioners have not alleged or demonstrated that their rights will be infringed through trial. It is important to note that as at now, the respondents have just been gathering evidence in support of their case. None of their rights has been established to be at risk of being threatened. Justice is two-pronged; the complainant is entitled to have his complaint investigated and those found to have committed a wrong are tried, the suspect or the accused has the right to be tried in a fair process and before an impartial court of law.

32. As to whether the petitioners are entitled to the reliefs sought, I associate myself with the sentiments expressed by Nyakundi J in Ezekiel A Omollo v Director of Public Prosecutions & 2 others-petition No E002 of 2020-Malindi where the learned judge held;-It light of the preceding authorities to which I am fully aligned with, it was incumbent upon the petitioner to demonstrate to the satisfaction of the court that the respondents had somehow abused, overstepped or exercised their mandate unlawfully in carrying out the said investigations and prosecuting the petitioner in order for the reliefs sought to avail to him. It is not enough to simply state that the decision by the respondents to undertake an investigation and mounting criminal charges against the petitioner constituted an abuse of court process. The petitioner did not demonstrate any unlawful actions, excess or want of authority, evidence of malice, evidence of intimidation or even of manipulation of court process so as to seriously impede the likelihood of him getting a fair trial as provided for under article 50 of the constitution. In the absence of such proof, this court is unable to bring the intended criminal proceedings against the petitioner to a halt.

33. Having examined the petition in its entirety, the replies thereto as well as the submissions by respective counsel and the exhibits placed before the court, I find that the petitioners have not demonstrated the manner in which the cited articles of the Constitution have been infringed or threatened. It is not enough to just allege violations of certain articles without a clear demonstration of how the same have been violated or threatened to be violated.

34. For the reasons stated above, I find no merit in the petition which is hereby dismissed. The orders hitherto in force are consequently discharged and or vacated.

DATED AT BUNGOMA THIS 3RD DAY OF OCTOBER, 2022S.N. RIECHIJUDGE