[2022] KEHC 14841 (KLR)

Oloo v Director of Public Prosecutions (Constitutional Petition E001 of 2022) [2022] KEHC 14841 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14841 (KLR)

Republic of Kenya

In the High Court at Siaya

Constitutional Petition E001 of 2022

RE Aburili, J

November 7, 2022

Between

William Oloo

Petitioner

and

The Director of Public Prosecutions

Respondent

Judgment

1. In his petition dated July 12, 2022, which was filed on July 14, 2022 when this court was on leave and first handled by Kisumu High Court which was the duty court, the petitioner seeks the following orders:a.An order of prohibition do issue and directed at the respondent and prohibiting it from pressing for or prosecuting the petitioner with any imagined offences relating to the pending dispute respecting the petitioner and the complainant in a manner inconsistent with the Constitution and provisions of the law.b.An order of mandamus do issue and directed at the respondent and compelling it to reveal to the petitioner the details of the possible charges with all the facts and pieces of evidence that it intends to use in prosecuting him in compliance with the provisions of the Constitution.c.A declaration that the respondents are in breach of articles 10, 47, 49, 50, 157 and 232 of the Constitutionin the manner it has handled and treated the petitioner and that for such violations its actions are null and void to extent of the violations.d.A declaration that the respondent is perpetuating breaches of the law, the Constitutionof Kenya and carrying out and legalizing impunity contrary to the Constitutionof Kenya and exhibiting arrogance and high handedness in performance of its public duties contrary to the law.e.Damages for violation and infringement of the petitioner rights under the Constitution.f.Costs of the petition be borne by the respondent.

2. It is the petitioner’s case that he had a long-standing land dispute with one Francis Ephraim Onyango over the property designated as Siaya/Hono/1988 in which the petitioner was sued in Siaya CMCC No. 63 of 2019 and the matter was subsequently determined against the petitioner after which the petitioner preferred an appeal.

3. The petitioner avers that the respondent in his proposed appeal subsequently started bragging and threatening to use his influence to have the petitioner herein him arrested and that subsequently he was arrested by policemen from Siaya police station based on a malicious complaint lodged by the said respondent in relation to the property in dispute and bonded to appear in court on July 11, 2022.

4. It is the petitioner’s case that despite furnishing the police with the details of the dispute between him and the complainant, the complaint was meant to intimidate and blackmail him into dropping his appeal.

5. The petitioner further averred that his rights under articles 27, 35, 47 & 50 of theConstitution shall be infringed unless the court intervenes as he stands to be charged for no wrongdoing and will therefore suffer damage as the respondent herein shall have flagrantly violated its obligations and the Provisions of theConstitutionat article 50, 157 and 232 as well as section 3 & 11 of theEthics and Anti-Corruption Act.

6. It is the petitioner’s case that the actions of the police and the respondent to arrest and charge the petitioner on a complaint based on the same matter pending on appeal, is malicious and unlawful and merely tailored to intimidate, blackmail, harass and frustrate the petitioner into giving up the pursuit of his rights under the law for the benefit of the respondent in the appeal and is without any justification or basis in law.

7. Opposing the petition, the respondent filed a replying affidavit sworn on the September 26, 2022 by Edwin Barasa, prosecution counsel who deposed that the decision to charge the petitioner and institute criminal proceedings against him was founded on factual basis establishing criminal liability.

8. The respondent further deposed that the petitioner’s claim of a pending appeal in Siaya ELCA E017 of 2022 was neither here nor there and did not fend off the respondent from executing its mandate by instituting criminal proceedings against the petitioner.

9. The respondent further contends in deposition that the petitioner’s averments raised defenses to the triable issues instead of demonstrating how the respondent’s actions were illegal, unreasonable, ultra vires and/or tainted with procedural impropriety and further that the respondent had failed to prove how the actions of the respondent were instigated by malice.

10. The respondent contend that this petition is an abuse of the court process and that the stay order granted in Siaya ELCA No. E017 of 2022 relates to civil suit and not a stay of criminal proceedings.

11. the petition was argued orally after the petitioner’s counsel failed to comply with court directions to file and serve written submissions. His advocate submitted that he relied on the petition and the supporting affidavit whose contents form the factual basis of the petition as detailed above.

12. Opposing the petition, Mr. Kakoi senior principal prosecution counsel for the respondent submitted that the petitioner had not demonstrated violations by the respondent to meet the test in Anarita Karimi Njeru case. He further submitted that the complaints raised are rights available to the accused, not to the suspect who has not been charged and as such the petition and complaints were premature. Mr. Kakoi further submitted that the allegation of an ongoing civil suit was neither here nor there as under section 193 of the CPC, both Civil and Criminal cases can run parallel.

Analysis and Determination 13. I have considered the petition and the opposition thereto. The main issue for determination is whether there is any merit in this petition.

14. The intention of this court must not be to test the legality or otherwise of the charge or determine the guilt or innocence of the petitioner. The question is whether the respondent's decision to prefer charges against the petitioner is whether such decision is infringing on the constitutional rights of the petitioner as envisaged under articles 27,35, 47 and 50 of the Constitution or an abuse of due process. It is this issue that the court must limit itself to.

15. The office of the director of public prosecutions as established under article 157 of the Constitution is an independent office which is mandated to discharge its duties free from any influence or control by any authority. Article 157(10) empowers the director of public prosecutions to commence criminal proceedings without consent of any person or authority and in exercise of such powers, he shall not be under the direction or control of any person or authority. However, the Constitution does not grant the DPP a carte blanche to run amok in exercise of its powers. He is required to exercise his powers within the provisions of article 157(11) of the Constitution. The article provides that:“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.”

16. Therefore, albeit the respondent has the power to independently charge and prosecute, the court will not hesitate to halt such a decision and proceedings if the criminal proceedings intended constitute an abuse of process and interests of justice. The court inRepublic v Director Of Public Prosecutions & 2othersex-parteMildred Mbuya Muli & 3others [2015] eKLR stated thus:“Where it is alleged that the standards set out in the Constitution and in the aforesaid act have not been adhered to, this court cannot shirk its Constitutional mandate to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPPto prefer charges ought not to be questioned by this court would be an abhorrent affront to judicial conscience and above all, the Constitution itself.”

17. It is, however upon the petitioner to satisfy the court that the discretion given to the respondent to investigate and prosecute is being abused and that therefore this ought to interfered with it.

18. In Kuria & 3others v Attorney General[2002] 2KLR 69 the court stated that:“A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution.”

19. In this case, the petitioner claims that the charges intended to be preferred against him are not in good faith and are discriminatory and intended to punish him. That the respondent's decision is based on ulterior motive as he did not take into consideration the petitioner’s pending appeal before the Environment and Land Court that is the source of discontentment between him and the complainant.

20. Under section 193A of the Criminal Procedure Code, a civil suit is not a bar to criminal proceedings. InJames Mutisya & 5 others v Alphayo Chimwanga Munala & 2 others [2021] eKLR it was held that:“Firstly, that the fact that there exist civil proceedings emanating from the same subject matter is not a bar to institution and continuation of criminal proceedings. This is the dictate of section 193 A of the Criminal Procedure Code (Cap 75) Laws of Kenya it provides thus:““Notwithstanding the provisions of any other written law the fact that any matter in issue in any criminal proceedings is also directly and substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings...”As rightly submitted by the claimants criminal and civil proceedings can run concurrently. We agree with the Holding of the court in the case of Alfred Lumiti Lusiba -vs- Pethad Pank Shantilal & 2 others[2010] eKLR that:““....The conclusion that one can draw from section 193 A of the Civil Procedure Code together with the decisions of the learned Judges in the aforementioned cases is that both civil and criminal jurisdiction can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse the due process of the court in whatever manner..”We could not agree more with the holding of the court in the Alfred Lumiti Lasiba case above. These are civil proceedings governed by civil procedure rules and also different evidential and legal standards. On the other hand, Criminal Case No. 2066/18 is governed by the Criminal Procedure Code with a different set of evidential standard and outcome. While the central component of both cases is guarantorship, the legal burden of proof is totality different in both cases. It cannot this be said that these proceedings an sub-judice the criminal proceedings. We thus do not find merit in the notice of preliminary objection and the application dated January 23, 2020. ”

21. Further in the case of Alfred Lumiti Lusiba vs Pethad Pank Shantilal & 2 others [2010] eKLR, the court held that:“The law is clear that the pendency of a civil suit is not a bar to criminal proceedings; it acknowledges the fact that the trial of the tortfeasor in a criminal prosecution need not be affected by the pending civil action against him. It is implied, therefore, that a civil suit cannot be stayed because of the prosecution of the tortfeasor for the obvious reason that the cause of action is neither rooted in the prosecution of the tortfeasor nor in his subsequent conviction… The conclusion that one can draw from section 193A of the Criminal Procedure Code together with the decisions of the learned judges in aforementioned cases is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner. The upshot of this discussion is that the learned magistrate misdirected herself on law by staying the civil case against the respondents on the ground that the case was based on a judgment which was a subject of an appeal that was pending for determination. I find merit in the appellant’s appeal and I hereby allow it. The appellant will also have the costs of the appeal.”

22. It is important to note that this court cannot halt criminal proceedings merely because of the petitioner’s perceived assertions if the respondent exercises his power in accordance with the Constitution. see Meixner &another v Attorney General [2005] 2KLR 189. The petitioner must meet the muster and demonstrate that the respondent did not act in line with article 157(11) of the Constitution. The petitioner has, unfortunately, failed so to do.

23. On the issue of the alleged contravention of the petitioner’s rights under articles 27, 35, 47 and 50, the court was very clear in the case of Annarita Karimi Njeru v Rep[1979] KLR 154 that the person alleging an abuse or infringement of a right must set out the acts or omissions constituting violations. A mere statement that a right has been infringed cannot suffice.

24. Again, apart from the claim for damages, the orders being sought are judicial review orders. As the judicial review is concerned with the process rather than the merits of the challenged decision or proceedings, the court is not entitled to make definitive findings on matters which go to the merit of the impugned proceedings.

25. In the premises I find that this is not a proper case in which the court ought to bring the criminal proceedings against the petitioner herein to a halt. The petitioner will be afforded a chance to defend himself in the criminal case, adduce evidence and even cross examine witnesses. It is only through a trial that the court will determine the veracity of the petitioner’s claims. The petitioner has not demonstrated any malice or highhandedness or breach of the Constitution or rights of the petitioner in the manner that the respondent is handling the investigations into alleged criminal acts of the petitioner.

26. In the circumstances, I find and hold that the petitioner has not demonstrated before this court that he is entitled to any of the judicial review orders of prohibition, mandamus, declarations or damages sought in the petition dated July 12, 2022 which is hereby dismissed with no orders as to costs.

27. This file is closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 7TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE