[2022] KEHC 15196 (KLR)

Pejo & 3 others v Republic (Criminal Revision E031 of 2011) [2022] KEHC 15196 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15196 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Revision E031 of 2011

SN Mutuku, J

October 12, 2022

Between

Joel Donkol Ole Pejo

1st Applicant

James Milto

2nd Applicant

Tima Ole Kikanai

3rd Applicant

Jeremiah Ole Panato

4th Applicant

and

Republic

Respondent

Ruling

Introduction 1. The Applicants are facing Criminal Charges in Ngong Principal Magistrate’s Court, to wit, Forcible Detainer contrary to section 91 of the Penal Code. The particulars are that on diverse dates between October 2018 and February 12, 2019 at Oltepesi area in KKajiado Sub-county within Kajiado County, jointly with others not before the court, while in possession of parcel of land No. Kajiado/Lodariak/244 of Pius Nyabuga Mochoge without colour of right, held possession of the said land in a manner likely to cause a breach of peace against Pius Nyabuga Mochoge.

2. The Applicants have pleaded not guilty to the charge in the lower court. ‘

3. They have come to this court seeking to stay the criminal proceedings in the lower court through a letter dated March 11, 2022. The application is touted to be seeking revision but it is clear from the submissions made in court that the applicants are seeking to stay the criminal proceedings pending the hearing and determination of ELC Case No. E04 of 2021.

Applicants’ case 4. In a long letter dated March 11, 2022 which in my view contains evidence than reasons for seeking review, the applicants state that although under section 193A of the Criminal Procedure Code the law allows concurrent criminal and civil proceedings, the applicants are aggrieved that they would suffer prejudice if the criminal proceedings continue before the issue of ownership of the land in dispute is determined.

5. They state that the issue of ownership of the title in respect of the suit property is an issue before the court in ELC No. E004 of 2021 and that upon hearing and determination of that case, the question whether the applicants are rightfully on the suit land or not will be settled.

6. They state that the jurisdiction of the lower court while presiding over the criminal matter is limited as it has no jurisdiction to determine the issue of ownership of the suit land particularly where the issue of adverse possession has been raised.

7. They state that if criminal proceedings continue and in the unlikely event the applicants are found guilty, they would then have to be evicted from the suit land which will be in conflict with the existing court order issued by the superior court that the applicants should not be evicted from the suit land.

8. In her oral arguments, Ms Kyeva for the applicants told the court that the dispute over the suit land goes back to 1990s and that the adjudication process was marred with irregularities. She submitted that the issue of ownership is contested and ought to be determined first before criminal proceedings can be concluded and that should the applicants be found guilty, this would be prejudicial to them.

The Respondent’s case 9. The application is opposed by the respondent and the complainant. The respondent, through the ODPP, submitted that this application is brought in bad faith in that there is non-disclosure of the fact that the applicants made similar applications before the lower court and before the ELC and that both applications were declined. It was submitted that what the applicants ought to have done was to appeal those decisions and not seek revision.

10. It was further submitted that the suit property has a title and that the ODPP and the National Police Service exercised their mandates according to the law before charges were preferred against the applicants; that the applicants did not move to court to claim their interest in the suit land but had to wait until they were charged in the criminal matter before filing a claim for adverse possession. The Respondent argued that the proceedings before the lower court should continue as this will not prejudice the applicants.

11. The Complainant in the lower court, through Mr. Obare, learned council, opposed the application. It is the complainant’s case that he is the registered owner of the suit land. It is his case that the case before the ELC is an afterthought because it was filed after the applicants were charged in the criminal matter. It was argued that the applicants sought stay of the criminal proceedings both in the lower court and the ELC and both courts declined to grant the prayer. It was argued that there is no harm in having both criminal and civil proceedings concurrently. The complainant urged court to decline this application.

12. In opposition to the application, the complainant filed grounds of opposition dated May 4, 2022 which I have considered.

Determination 13. To my mind, although the applicants state that they are seeking revision, it is clear to me that they are seeking to have the criminal proceedings in the lower court stayed pending the hearing and determination of the ELC case.

14. I have considered this matter. The statement that the applicants sought stay of criminal proceedings before the lower court and the ELC has not been controverted by the applicants. From my reading of the application which is by way of a letter dated March 11, 2022, it seems to me that parties entered into a consent before the ELC “to forestall any adverse orders that may issue in the criminal proceedings now that the proprietorship of the title is before the superior court.”

15. That is what is contained in the application on prayer (a). If indeed such a consent order exists, this was not confirmed to this court as none was exhibited in court.

16. Section 193A of the Criminal Procedure Code is clear on the issue of concurrent criminal and civil proceedings. It provides as follows:“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”

17. The court in Nicholas Mwaniki Waweru & another v Attorney General & 5 others[2017] eKLR had this to say on stay of criminal proceedings:The High Court has inherent powers to quash, stay or prohibit criminal proceedings. These powers are wide as they imply the exoneration of the accused even before the proceedings have been culminated by way of trial. ……………………..Courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to ‘stay’ an indictment or stop a prosecution in the magistrates’ courts if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court.

18. A criminal trial seeks to determine the guilt or otherwise of an accused person. In prosecuting a criminal case, the offices mandated to do so are executing that mandate according to the law. If it is claimed that in so executing a prejudice may arise, the party claiming so must satisfy the court that indeed a prejudice may arise. In the matter under consideration the prejudice alleged is the likely outcome of the criminal trial that the applicants are found guilty which according to counsel representing the applicants, may result in their eviction before the issue of ownership of the suit land is determined.

19. The court with jurisdiction to make that determination is said to have declined to grant stay. That order has not been appealed against. Instead the applicants have come before this court seeking similar orders.

20. In my considered view, the applicants have not satisfied this court that they stand to suffer prejudice if both criminal and civil proceedings continue concurrently. Given that it is lawful to proceed with both criminal and civil matters concurrently, I see no abuse of court process or prejudice befalling the applicants.

21. Consequently, I decline to grant stay of the criminal proceedings as prayed. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 12TH OCTOBER, 2022. S. N. MUTUKUJUDGE