[2022] KEHC 15455 (KLR)

Ochillah v Director of Public Prosecutions & another (Miscellaneous Application 90 of 2021) [2022] KEHC 15455 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15455 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application 90 of 2021

GV Odunga, J

October 5, 2022

In The Matter Of: Articles 22(1), 23(1), 25, 28, 29, 165(3) Of The Constitution Of Kenya 2010 And Rule 3(1) And (2) Of The Constitution Of Kenya (protection Of The Rights And Fundamental Freedoms Practice And Procedure Rules, 2013.

Between

Richard Ochillah

Applicant

and

Director of Public Prosecutions

1st Respondent

Inspector General Police

2nd Respondent

Judgment

1. These proceedings were commenced by a notice of motion dated December 9, 2021, by which the applicant seeks an order permanently terminating the proceedings and trial of Mavoko Chief Magistrates court criminal cases numbers;- E199 of 2020, E193 of 2020, E090 of 2020, E198 of 2020 and 201 of 2020, and a declaration that the charges drawn thereunder are a nullity.

2. The application was supported by an affidavit sworn by the applicant herein in which he deposed that he is a landowner of twenty lawfully acquired parcels of land located in Mulinge scheme, within Machakos County since 1995. These land parcels include:- IR 18127 and IR 21630 in respect of which he holds valid title deeds, whereas plot numbers 698, 706, 715, 718, 740, 744, 747, 748, 767, 769, 772, 784, 822, 824, 850, 852, 857 and 858 all of which he purchased and are awaiting issuance of their respective title deeds.

3. The applicant averred that he acquired ownership of the above stated land parcels on account of his membership under the Development and Education Network Co-operative Savings and Credit Society consisting of over 2000 members and has been in continuous, uninterrupted, and actual possession of the twenty parcels for a period in excess of 12 years within Mulinge Scheme, thus established his legal and equitable claim to the said land parcels.

4. It was averred that the harassment of the applicant began when he was called to the offices of the DCI, Mlolongo, and the agents of the 2nd respondent upon the realization that many of the land parcels in Mulinge scheme, were yet to be issued with title deeds. Thereafter, he was on several occasions arrested on trumped-up charges with the intention of frustrating and coercing to abandon his said lands. He deposed that the decision to prefer charges against him was not made on a reasonable and probable cause.

5. According to the applicant the harassment begun in April, 2018 when, at the behest of some cartels, he was summoned to DCI Mlolongo offices where he was interrogated concerning the parcels of lands in Mlolongo. The said cartels realised that most parcels of land in Mlolongo did not have title deeds and intended to grab the same. According to him, he was warned to only be concerned about his well being and not the well being of others.

6. However, upon the realisation that the applicant was not ready to cooperate, the cartels schemed with a police officer to kill him as a result of which he reported the matter to Independent Policing Oversight Authority which summoned the parties. However, a couple of months later, he was summoned by the police without any reasons being disclosed to him. It was his case that it was as a result of his refusal to cooperate with the police that trumped up charges were levelled against him

7. According to the applicant, onJuly 3, 2018, he was arrested and charged with carrying out development without development permission within Mavoko county which case was dismissed. On July 11, 2018, he lodged a complaint at Mlolongo Police Station regarding trespass on his property but no action was taken and on August 16, 2018, his home was demolished despite the existence of an order restraining the same. On August 26, 2018, he averred that his home was vandalised and important documents stolen and he was rearrested and charged with creating a disturbance in a manner likely to cause a breach off peace which was dismissed for lack of proof.

8. According to the applicant he was reliably informed by the area chief and the Director of Investigations in 2019 to be vigilant as there was an intention to plant incriminating evidence against him, hijack ad kill him for preventing the cartels from grabbing the land. According to him, he had received several calls asking him about whether he had the intention of selling his plots and upon answering in the negative, threats of dire consequences. He averred that when his spouse went to lodge reports of harassment, stalking and threats at Mlolongo Police Station she was denied to do so and had to make the report at Syokimanu Police Station

9. The applicant suspected that there was a collaboration amongst some Officers Commanding Police Divisions, Officers Commanding Stations and the cartels interested in the said Mulinge Scheme parcels against the lawful owners thereof.

10. The applicant therefore averred that the charges against him were merely meant to harass him and unless stopped his constitutional rights would continue being violated.

11. In response to the application the 1st respondent filed the following grounds of opposition:1. Thatthe same is inept and misconceived.2. Thatthe same is frivolous, vexatious and malicious amounting to an abuse of the court process.3. Thatthe application is not brought in good faith against the 1st respondent since all accusations caviled against him are mere allegations, afterthoughts that have not been substantiated.4. Thattherefore this application doesn’t meet the legal requisite threshold of the order that it seeks.5. Thattherefore this application lacks merit and this honorable court ought to dismiss it forthwith.6. Thatthis is supported by the annexed replying affidavit of Felister Njeru, prosecution counsel, Machakos.7. Thatmore grounds to adduced at the time of the hearing.

12. Apart from the said grounds of opposition the 1st respondent also relied on a replying affidavit sworn by Felister Njeru a Prosecution Counsel at the Office of the Director of Public Prosecutions who averred that all the claims against the 1st respondent by the applicant have not been substantiated as the applicant has not demonstrated before this court that indeed he has been arbitrary arrested and maliciously prosecuted by the 1st respondent. Further, the applicant has not disclosed before this court the offences he has been charged with in all this cases and neither has he demonstrated the malice in any of these cases. It was therefore averred that the allegations by the applicants that the prosecutions against him amount to abuse of office process and power, is in bad faith, malicious and vexations.

13. As evidence of malice, it was averred that all the cases listed are well over two years old since they were instituted in the court as per their case numbers hence these cases have been going on in court for a considerable long time without any interference or complaint by the applicants. It was averred that this application is an afterthought and an abuse of the court process and the applicant is merely trying to subvert justice.

14. According to the deponent, in all these listed cases there is a complainant seeking justice and the accused should not abuse the justice system in trying to seek stay orders, termination orders, and declaration of nullity when the cases are at their advanced stages.

15. It was therefore sought that the application be dismissed.

16. On behalf of the 2nd respondent, the following grounds were filed:1. The applicant ought to have challenged the powers of the Director of Public Prosecution to prosecute him through the forum of either a judicial review application or a constitutional petition, but not by filing this miscellaneous criminal application which does not allow the court to review the constitutional powers of the Director of Public Prosecution to prosecute him as provided in article 165 (3) (d)(ii) of the Constitution of Kenya, 2010. 2.The applicant is challenging his prosecution in five (5) criminal cases in the magistrate’s court, but it is not reasonable to determine in this application whether there was no sufficient factual basis for his prosecution therein due to lack of provision of sufficient particulars and criminal trial records to the court and the respondents by the applicant.3. The applicant ought to separately challenge his prosecution in each of the criminal cases facing him since the criminal charges are unrelated to each other and with different set of facts so as to avoid prejudicing the trial of criminal cases facing him.4. This application is meant to delay the expeditious trial of the criminal cases and an attempt to escape justice in the magistrate’s courts which are fully seized of the criminal cases and hence the same ought to be dismissed in the interest of justice.5. Thatthe criminal justice system should be allowed to take its cause without any undue interference.6. Thatthe 1st respondent prays that this application be dismissed in its entirety.

17. On behalf of the applicant, it was submitted that the purpose of criminal proceedings generally speaking, is to hear and determine finally whether the accused engaged in conduct which amounts to an offence and, on that account is deserving of punishment. Reliance was placed on William v Spautz(1992) 66 NWS which established that a criminal proceeding shall be deemed improper and an abuse of process, if its predominant purpose falls outside what such proceedings are properly designed and exist for. The applicant further relied on Douglas Maina Mwangi v Kenya Revenue Authority and another HC Constitutional Petition No 528 of 2013, Republic v Chief Magistrate’s Court at Nanyuki & 2 others Exparte David Mwenda Gitari (2017) eKLR,Macharia & Another v The AG (2001) 449 and it was submitted that the respondents have only instituted the criminal proceedings in the 8 respective matters to intimidate the applicant into surrendering ownership of his land parcels and that the same have been pending for over two years without any intention by the respondents to have the same concluded. Furthermore, the respondents have not adduced evidence in support of the charges, which forms the lifeline of the cases brought against the applicant. Without evidence, it was submitted, the prosecution is doomed to fail. In the meantime, it was contended, the applicant continues to be a victim of groundless criminal proceedings by both the 1st respondent and the 2nd respondent, for their own ulterior motives, at the cost of his personal liberties, where the respondents are acting unregulated contrary to the threshold of what is reasonable and probable cause.

18. It was submitted that the applicant’s personal liberties protected under article 29 of the Constitution, which include to guarantee his security of the person, and freedom from torture of any kind has been and will continue to be violated by the respondents unless this honourable court permanently terminates the impugned proceedings.

19. On whether the permanent termination of the impugned proceedings would secure the ends of justice, the applicant relied on Judicial Termination of Defective Criminal Prosecutions – Stay of Applications, by Chris Corns, and Raymond Kipchirchir Cheruiyot & another v Republic (2021) eKLR, and submitted that the respondents are abusing the criminal justice system by bringing trampled up charges against the applicant without any evidence in the hope of intimidating the applicant into surrendering his ownership of his parcels of land in Mulinge scheme contrary to public policy. In support of the submissions, the applicant relied on the authority of the State of Maharastra & others v Arun Gulab & others, criminal appeal No 590 of 2007. The applicant also cited R v Smith (1995) 1 VR 10 and Ridgeway v The Queen(1995) 129 ALR 41.

20. It was submitted that in view of the foregoing it is in the interests of justice and fairness that the court allows its application dated December 9, 2021 as prayed.

21. On behalf of the 2nd respondent, it was submitted that that the applicant is not seeking to have this court exercise supervisory jurisdiction over the Chief Magistrate’s Court since they (Magistrate’s Court) have not been named as parties herein, but the applicant is solely challenging the actions of the 1st and 2nd respondents herein to prosecute him and to have conducted investigations against him in the named criminal cases. It was therefore submitted that the only way the constitutional powers of the Director of Public Prosecutions to prosecute him can be reviewed by this court is through the forums of judicial review or filing a constitutional petition and not by filing this miscellaneous criminal application which is concerned with the merits of the case noting that the criminal trial court is the one which ought to concern itself with the merits of the case and the High Court ought to delve only into the process of making the decision to prosecute the applicant by the Director of Public Prosecutions. Reference was therefore made to the decision of the Court of Appeal in Nairobi civil appeal No 70 of 2017 - Prafulchandra Bharmal v The Chief Magistrate Kibera & 3 others.

22. It was submitted that the applicant is challenging his prosecution in five criminal offences in the Chief Magistrate’s, which cases are so unrelated to each other and with different set of facts and witnesses and it is not reasonable to determine in this application whether there was no sufficient factual basis for his prosecution therein due to non-disclosure of material particulars such as prosecution witness statements and it would be better to allow the Chief Magistrate’s Court to try the said criminal cases to their logical conclusion since the applicant has not demonstrated how he has met any travesty of justice therein.

23. The court was therefore urged to dismiss the applicant’s notice of motion for lacking merits and being misconceived.

Determination 24. I have considered the application, the affidavits both in support of and in opposition to the application and the submissions made herein.

25. The first issue for determination is whether these proceedings are properly before this court. According to the 2nd respondents, since the application is not seeking that this court invokes its supervisory jurisdiction in which event, the trial courts would have been joined as parties, this court can only entertain the applicant’s claim if it was brought either as a constitutional petition or as a judicial review application.

26. The notice of motion is expressed to be brought pursuant to articles 22(1),23(1), 25, 28, 29 and 165(3) of the Constitution, rule 4(1) and 19 of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. It is true that none of the cited provisions prescribe that an application brought thereunder ought to be by way of criminal application. In my view where a person claims that his rights have been violated or threatened with violation, he ought to move the court either by a petition or by a judicial review application. Criminal application, in my view, is a procedure which ought to be invoked for the purposes of seeking minor reliefs and ought to be used to seek such substantive orders as the termination of pending criminal cases before the trial courts.

27. That said, under article 22(3)(b) and (d) of the Constitution, the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. In my view to dismiss an otherwise merited cause merely because of the procedure adopted would defeat the spirit of article 22(3)(b) under which proceedings may even be commenced on the basis of informal documentation. I hold that in matters of alleged violation of fundamental freedoms and rights, this court ought not to be too rigid on the manner in which the litigant finds himself in court whether the entry was through the door or the window. Once the litigant has entered the court, he ought not to be treated as a gate crasher.

28. This is not to say that the court ought to encourage and condone sloppy and carelessly drafted pleading. What it means is that:“the initial approach of the courts must now not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out. But the new approach is not to say that the new thinking totally uproots all well established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice.”SeeDeepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 2 others civil appeal (Application) No 152 of 2009.

29. It must similarly be remembered that a High Court is by virtue of the provisions of article 165 of the Constitution a constitutional court and therefore where a constitutional issue arises in any proceedings before the court, it is enjoined to determine the same notwithstanding the procedure by which the proceedings were instituted.

30. In my view where it is apparent to the court that the bill of rights has been or is threatened with contravention, to avoid to enforce the bill of rights on the ground that the supplicant for the orders has not set out with reasonable degree of precision that of which he complains has been infringed, and the manner in which they are alleged to be infringed where the court can glean from the pleadings the substance of what is complained of would amount to this court shirking its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues. Where there is a conflict between procedural dictates and constitutional principles especially with respect to the provisions relating to the bill of rights it is my view and I so hold that the later ought to prevail over the former. Mine is not a lone voice shouting in the wilderness. The Court of Appeal in Peter M. Kariuki v Attorney General[2014] eKLR, declined to adopt theAnarita Karimi (supra) position, line, hook and sinker when it expressed itself inter alia as follows:“Although section 84(1) was, on the face of it, abundantly clear, it was, from the early days of post independence Kenya constitutional litigation, interpreted in a rather pedantic and constrictive manner that made nonsense of its clear intent. Thus in decisions like Anarita Karimi Njeru v Republic(No 1), (1979) KLR 154, the High Court interpreted the provision narrowly so as to deny jurisdiction to hear complaints by an applicant who had already invoked her right of appeal…The narrow approach in was ultimately abandoned in Kenya, in favour of purposive interpretation of section 84(1).”

31. I associate myself with the decision in Nation Media Group Limited v Attorney General [2007] 1 EA 261 to the effect that.“A constitutional court should be liberal in the manner it goes round dispensing justice. It should look at the substance rather than technicality. It should not be seen to slavishly follow technicalities as to impede the cause of justice...As long as a party is aware of the case he is to meet and no prejudice is to be caused to him by failure to cite the appropriate section of the law underpinning the application, the application ought to proceed to substantive hearing…Although the application may be vague for citing the whole of chapter 5 of the Constitution, however the prayers sought are specific and they refer to freedom of expression guaranteed under the Constitution.”

32. I must however underscore the need for pleadings to be as precise as possible and this requirement applies both to civil proceedings as in any other proceedings including constitutional petitions. The system of pleadings, it is important to note, operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases. (See Bullen & Leake and Jacob: Precedents of Pleadings, 2th edn page 3). The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. (See Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 238. ) However, where the proceedings can be salvaged by way of further and better particulars or amendment, that option ought to be resorted to first. In this case, there was no allegation that the respondents and the interested party were disabled from adequately answering the allegations made by the applicant. Accordingly, I am not inclined to disallow the application on the ground of lack of precision.

33. This court has the power and indeed the duty to bring to a halt criminal proceedings where the same are being brought for ulterior motives or for achievement of some collateral purposes notwithstanding the constitutional and legal powers conferred upon the DPP and the police. In Joram Mwenda Guantai v 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 an 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.”

34. In Meixner & another v Attorney General[2005] 2 KLR 189, the same court expressed itself as hereunder:“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion if acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution... judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power.”

35. Whereas the mere fact that the facts of the case constitute both criminal and civil liability does not warrant the halting of the criminal case, in Republic v 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 of 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...”

36. It was therefore appreciated inR v 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”.

37. In this case, the respondents have mainly relied on legal matters without seriously challenging the factual averments. Although the court directed that the complainants be served, none of the complainants participated in these proceedings. The respondents have not disclosed when the complainants were made, by whom they were made, what the nature of the report was about, what action they took in order to investigate the same, whether they took statements from those concerned and whether there was any conclusion arrived at by them.

38. Whereas article 157(10) of the Constitution 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.

39. 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 the Constitution 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.

40. It is therefore clear that the terrain under the current prosecutorial regime has changed and that the discretion given to the DPP is not absolute but must be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Where it is alleged that these standards have not been adhered to, it behoves this court 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, the Constitution itself. I associate myself with the sentiments expressed in Nakusa v Tororei & 2 others (No 2) Nairobi HCEP No 4 of 2003 [2008] 2 KLR (EP) 565 to 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 the Constitution, the court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement ofDomnic Arony Amolo v Attorney General Miscellaneous Application No 494 of 2003 is that interpretation of the Constitution 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 the Constitution as they stood at the time the Constitution 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.”

41. Whereas this is not the forum to determine the applicant’s innocence or culpability, the DPP owes this court a duty of placing before this court material upon which this court can feel that he is justified in mounting the prosecution. 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 the Constitution 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 v Attorney General and others [2007] 2 EA 256:“Under section 26 of the Constitution 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 the Constitution 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 the Constitution 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 the constitution; (iii) Whether the prosecution is against public policy.”

42. Therefore, the police are expected to be professional in the conduct of their investigations and ought not to be driven by malice or other collateral considerations. 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.

43. The National Prosecution Policy, revised in 2015 provides at page 5 that:-Public Prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, Public Prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available?

44. Similarly, in Mohammed Gulam Hussein Fazal Karmali & another v Chief Magistrate’s Court Nairobi & Another 2006 eKLR where Nyamu, J examined the policy considerations for halting criminal proceedings, noting that the court has two fundamental policy considerations to take into account which were enunciated in the case of M. Devao v Department of Labour (190) in sur 464 at 481 as:“The first is that the public interests in the administration of justice require that the court protects its ability to function as a court of law, by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court processes may lend themselves to oppression and injustice…the court grants a permanent stay in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes that the court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.”

45. In this case, the respondents have failed to show on what basis decided to prefer the charges against the applicant. They have not even placed before the court the complainants’ statement on the basis of which they decided to prefer charges against the applicant. Clearly there is no material on the basis of which this court can find that the respondents have a prosecutable case.

46. I find that to invoke criminal justice system to achieve collateral purposes cannot be permitted. In my view the invocation of criminal process towards that end reeks of abuse of power. As was held inKeroche Industries Limited v Kenya Revenue Authority & 5 others Nairobi HCMA No 743 of 2006 [2007] 2 KLR 240 while citingReg v Secretary of State for the Environment Ex Parte NottinghamShire Country Council [1986] AC:“A power which is abused should be treated as a power which has not been lawfully exercised…A public authority must not be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as has happened in this matter, and in so acting abuse its powers. In this connection Lord Scarman put the need for the courts intervention beyond doubt in the ex-parte Preston where he stated the principle of intervention in these terms: “I must make clear my view that the principle of fairness has an important place in the law of judicial review: and that in an appropriate case, it is a ground upon which the court can intervene to quash a decision made by a public officer or authority in purported exercise of a power conferred by law.” The same principle was affirmed by the same Judge in the House of Lords in Reg v Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Ltd[1982] AC 617 that a claim for judicial review may arise where the commissioners have failed to discharge their statutory duty to an individual or have abused their powers or acted outside them and also that unfairness in the purported exercise of a power can be such that it is an abuse or excess of power. In other words it is unimportant whether the unfairness is analytically within or beyond the power conferred by law: on either view, judicial review must reach it. Lord Templeman reached the same decision in the same case in those helpful words: “Judicial review is available where a decision making authority exceeds its powers, commits an error of law commits a breach of natural justice reaches a decision which no reasonable tribunal could have reached or abuses its powers.” Abuse of power includes the use of power for a collateral purpose, as set out in ex-parte Preston, reneging without adequate justification on an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals. I further find as in the case of R (Bibi) v Newham London Borough Council [2001] EWCA 607, [2002] WLR 237, that failure to consider a legitimate expectation is a failure to consider a relevant consideration and this would in turn call for the courts intervention in assuming jurisdiction and giving the necessary relief.”

47. In Githunguri v Republic [1986] KLR 1 at page 18 and 19 a three Judge bench High Court constituted of Ag Chief Justice Madan and Justices Aganyanya and Gicheru expressed themselves as follows:“But from early times… the court had inherently its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the court had the right to protect itself against such an abuse…The power seemed to be inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure...every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court…Mr Chunga argued that to grant the application would be tantamount to curtailing or interfering with the powers of the Attorney-General under section 26 of that he kept freewheeling for a long time before us because perhaps he did not understand the real purport of the application. No one has made any challenge to the powers of the Attorney-General, nor would any one succeed if he were to say that the Attorney-General’s powers under section 26 can be interfered with. What this application is questioning is the mode (emphasis ours) of exercising those powers…No one will succeed in convincing us that the court does not have inherent powers to exercise supervisory jurisdiction over tribunals and individuals acting in administrative or quasi-judicial capacity…A prosecution is not to be made good by what it turns up. It is good or bad when it starts. The long and short of it is that in our opinion it is not right to prosecute the applicant as proposed.”

48. In Mohammed Gulam Hussein Fazal Karmali & another v Chief Magistrate’s Court Nairobi & another [2006] eKLR where Nyamu, J examined the policy considerations for halting criminal proceedings, noting that the court has two fundamental policy considerations to take into account which were enunciated in the case of M. Devao v Department of Labour (190) in sur 464 at 481 as:“The first is that the public interests in the administration of justice require that the court protects its ability to function as a court of law, by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court processes may lend themselves to oppression and injustice…the court grants a permanent stay in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes that the court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.”

Order 49. In the premises, I find merit in this application and issue an order quashing the proceedings in Mavoko Chief Magistrates Court criminal cases numbers;- E199 of 2020, E193 of 2020, E090 of 2020, E198 of 2020 and 201 of 2020.

50. I however decline to award costs to the applicant since he failed, despite several indulgences extended to him to comply with the directions of this court regarding the furnishing of the soft copies of his documents in word format.

51. Orders accordingly.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: