[2017] KEHC 9074 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 72 OF 2017

IN THE MATTER OF ARTICLES 24, 31, 40 OF THE CONSTITUTION OF KENYA 2010

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 24, 31, 40

IN THE MATTER OF SECTION 5, 10 AND 18 OF THE FIREARMS ACT CAP 114

IN THE MATTER OF: THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2, 19, 20, 21, 23, 24 AND 31 OF THE CONSTITUTION OF KENYA, 2010

IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURES, 2013

AND

IN THE MATTER OF: THE PRINCIPLE OF LEGITIMATE EXPECTATION

BETWEEN

REHAN KANTILAL SHAH..............................................................................................................PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS.............................................................1ST RESPONDENT

THE INSPECTOR GENERAL OF POLICE...................................................................... 2ND RESPONDENT

THE DIRECTOR OF THE DIRECTORATE OF CRIMINAL INVESTIGATIONS..............3RD RESPONDENT

JUDGEMENT

Factual background

On 31st March 2016 at around 8. 45pm police officers entered the petitioners premises at Loresho in Nairobi and conducted a search and confiscated the petitioners firearm certificate Book number 5866 valid until March 2017. They proceeded to his other home at Jana Estate, off Jogoo Road where they confiscated the following, namely; Glock-UAN 723, SG-SAYER Pistol No. U757468, Magnum Revolver No. 174-62783, BR No. ZKK-602 Rifle No. 7252505189, Weather by Rifle No. 40701, 22 Rifle No. 33964, Benelli Shot gun No. 4041078, Short/223 No. 049401483B, Short Gun Side by Side No. N457412, Air Gun Day State No. MCT4035 and Four Magazines.

Also confiscated are 9MM rounds of ammunition-512 Rounds, 357 SIG rounds of ammunition-197 Rounds, 357 Revolver Ammunitiona-120 Rounds, 223 MM Rifle ammunition 313 Rounds, Rifle 300 type of ammunition- 180 Rounds, Rifle 22 MM ammunitions-19 Rounds, Rifle 337 Amunitions-19 Rounds, Short Gun 12 x 2 3/4 x 70mm Ammunitions 443 Rounds, 22 Air Gun ammunitions-18 container full (1 used).

The petitioner is challenging the legality of the said search and confiscation of the said items and avers that that no charges have been preferred against him. He claims that the search was declared unconstitutional in petition number 179 of 2016. With respect, this is not true. At paragraph 95 of the judgment the learned judge stated "I find that the petitioner's freedom of movement was unlawfully violated. This is because there was no lawful justification and authority for the Respondents to have confiscated the petitioner's passport. Similarly, there was no justification to confiscate the jewellery and mobile phones. I also find that by detaining the petitioner beyond the period permitted by the constitution and without any lawful explanation for doing so, the petitioners rights and freedoms under the Bill of Rights were violated." Clearly, the above finding does not mention a search at all.

The petitioner avers that his rights to privacy, right to property, legitimate expectation were violated and that he lawfully owned the said firearms in that he had a valid license.

Respondents' Response

The petition is opposed. CPL Francis Mjomba, attached to the Directorate of Criminal Investigations, Anti-Narcotics Unit, Nairobi assigned the duties of investigating this case in his affidavit filed on 8th May 2017 avers that the petitioner was arrested at Ukabi Line Loresho at his residence on 1st April 2016 following intelligence that the premises was being used as a den for trafficking drugs.

He also avers that the police recovered 3,077 grams of compressed cannabis from the room of a one Zahid Iqbal Akbereli, the petitioners brother in law and 50 rounds of ammunition from the petitioners premises. He further avers that the petitioner informed them that he owns a civilian firearm certificate which was at his residence at Jana Estate and upon proceeding to the said premises, they recovered 10 firearms, 2,032 rounds of ammunition and a Firearms Certificate No. 5866.

He states that contrary to the provisions of the Firearms Act,[1] the petitioner relocated from his known residence at Lavington to Jana Estate off Jogoo road without notifying the Chief Licensing Officer and further investigation revealed that the petitioner is in possession of ten firearms, six of which are yet to be recovered and their whereabouts are unknown. They include:- 375 HH Riffle S/No. 05189, Semi Auto Pistol Sig serial No. U735736-P226, Semi Auto Pistol Sig serial No. U757468-P226, Shotgun Serial No. 29266-02, 177 Air Rifle serial No. 02062644 and 3006 Rifle serial No. TL3311.

He also pointed out that 4 firearms are not reflected in his filled up firearms certificate No. 3979 as well as his renewed certificate No. 5866. He stated that section 11 of the Act, requires the petitioner to produce any firearm for accountability purposes to which firearms certificate was issued and the petitioner has failed to do so in respect to the above mentioned firearms. He also stated that the petitioner in total violation of section 29 of the Act transported firearms from his residence at lavington to his residence at Jama Estate without obtaining a permit.

As a consequence of the above, the firearms certificate was detained by the police until the petitioner is able to account for the firearms whose whereabouts are unknown, hence the Respondent is investigating the commission of an offence known in law. He pointed out that the Respondents did not immediately charge the petitioner in court because he obtained stay orders in Misc App No. 163of 2016 which was subsequently dismissed and the Respondent was allowed to proceed with the investigations, hence the Respondents acted within their mandate, that they acted in good faith, and did they abuse their powers.

Petitioners further affidavit

In a Replying affidavit filed on 9th June 2017, the petitioner insisted that notwithstanding the fact that he held a firearms license, the police confiscated his firearms and that he surrendered the firearms upon demand and that he has more than one homes and accused the National Police Service of delaying the investigations.

Petitioners Advocates Submissions

The petitioners counsel reiterated that the petitioners Rights to property[2] and privacy[3] were violated and reiterated the procedure to be followed while conducting a search.[4] Counsel also cited violation of Fair Administrative Action guaranteed under Article 47 of the constitution and violation of Right to security of the person under 29 of the constitution and reiterated that the petitioner has always complied with the provisions of the Firearms Act[5] and insisted that in the company of his advocate he proceeded to the Directorate of Criminal Investigations and explained the whereabouts of the other firearms and that at the time of the search the firearms were securely kept at a safe.

Respondents' Counsel's submissions

Respondent's counsel submitted that the petition lacks merit, that the Right to property under article 40 is not absolute, that notwithstanding the fact that the petitioner was licensed, there were firearms he was required to account for. He also submitted that the issue of search was dealt with in petition 179 of 2016, and in the event a decision is made to prosecute the petitioner, the seized items will be used as exhibits. He also submitted that the right to security of the person was raised and determined in High court Misc. Application No. 163 of 2016, hence its res judicata.

Counsel reiterated that the DPP exercises independent judgement when dealing with a decision whether or not to prosecute[6] and that the orders sought if granted will cause injustice since the police are yet to find out the whereabouts of the other firearms and no prejudice will be suffered by the petitioner if the investigations continue.

Analysis of the facts, issues and the law

The core issues for determination in this petition is whether or not the Respondents acted in within their statutory and constitutional mandate in mounting the investigations and confiscating the firearms and certificate and whether the petitioners constitutional Rights were violatedas alleged. The basic principle is that it is for the prosecution, not the court, to decide whether investigations and a prosecution should be commenced and, if commenced, whether it should continue. In Environment Agency v Stanford,[7] Lord Bingham LCJ said:-

"The jurisdiction to stay, as has been repeatedly explained, is one to be exercised with the greatest caution ... The question of whether or not to prosecute is for the prosecutor………."

Section 24 of the National Police Service Act[8] sets out functions of the Kenya Police Service. It provides as follows:-

24. Functions of the Kenya Police Service

The functions of the Kenya Police Service shall be the—

(a) provision of assistance to the public when in need;

(b) maintenance of law and order;

(c) preservation of peace;

(d) protection of life and property;

(e) investigation of crimes;

(f) collection of criminal intelligence;

(g) prevention and detection of crime;

(h) apprehension of offenders;

(i) enforcement of all laws and regulations with which it is charged; and

(j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

The Firearms Act[9] (hereinafter referred to as the act) regulates the licensing and controlling the manufacture, importation, exportation, transportation, sale, repair, storage, possession and use of firearms, ammunition, airguns and destructive devices and for connected purposes. Section 11 of the act provides for "Production of and accounting for firearms and ammunitions" in the following manner:-

1. Any police officer, customs officer or licensing officer may demand from any person who holds a firearm certificate or a permit under subsection (12) or subsection (13) of section 7 the production of any firearm or ammunition to which it relates at or before such time, at such place and to such police officer, customs officer or licensing officer as he may specify.

2. Any such officer may demand from any person who has within the last preceding five years held a firearm certificate or permit the production of any firearm or ammunition to which it relates, or an account of its whereabouts, at or before such time, at such place and to such police officer, customs officer or licensing officer as he may reasonably specify.

3. A demand under this section may be made orally or in writing.

4. If any person fails without reasonable cause to comply with a demand under this section, he shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings.

Section 29 of the act provides for removal and transportation of firearms within Kenya. It provides as follows:-

29. Removal and transportation of firearms and ammunition within Kenya

1. Subject to subsection (4), no person shall remove or transport, or cause to be removed or transported, any firearm or ammunition from one place to another in Kenya, whether for the purpose of export or otherwise, save under and in accordance with a removal permit issued by a licensing officer.

2. Any person who contravenes any of the provisions of subsection (1), or who makes any statement which he knows to be false for the purpose of procuring for himself or any other person the issue of a removal permit under this section, shall be guilty of an offence and liable to imprisonment for a term not exceeding one year or to a fine not exceeding ten thousand shillings or to both.

3. No removal permit shall be issued under this section authorizing the removal or transport of firearms or ammunition by road from one area to another, save with the general or specific authority of the Commissioner of Police.

4. Nothing in this section shall apply to—

a. a person carrying on the business of an approved carrier, or an approved servant of such a person, in respect of the removal or transportation of any firearms or ammunition in the ordinary course of that business;

b. the holder of a firearm certificate, or of a permit under subsection (11) of section 7, in respect of the carriage with him and in accordance with the terms of the firearm certificate or permit of any firearm or ammunition to which the firearm certificate or permit relates;

c. any person, not being a registered firearms dealer, in respect of the carriage with him of any firearm or ammunition which he is entitled by virtue of the provisions of this Act to have in his possession without holding a firearm certificate; or

d. the removal or transport by a registered firearms dealer of any firearm or ammunition in his possession in the ordinary course of his business as such from one of his places of business to another, or from or to his own place of business to or from the place of business of another registered firearms dealer.

5. A permit issued under this section may at any time be revoked by the licensing officer who issued it, and the licensing officer shall not be compelled to assign any reason for revocation.

6. In this section, “firearm” and “ammunition” mean respectively a firearm and ammunition to which Part II applies.

My analyses of the facts of this case as enumerated above and the above provisions of the law reveal that the petitioner has not demonstrated that the investigation in question constitutes an abuse of process or police powers, nor has the petitioner proved malice or bad faith. The duty and mandate of the police was appreciated in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another[10] where it was held thatthe police have a duty to investigate 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 the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.

However, the 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) if the court is of the opinion that to allow the investigation or prosecution to continue would amount to an abuse of the process of the court or infringement of the petitioners fundamental rights.

Abuse of process has been defined as something so unfair and wrong with the investigations or prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case.[11] Whether an investigation or prosecution is an abuse of court process, unfair, wrong or a breach of fundamental rights, it is for the court to determine on the individual facts of each case.

It is important to mention that other that confiscating the above, the police also seized the petitioners passport, jewellery and mobile phones. This prompted the petitioner to institute Petitioner number 179 of 2016 referred to above in which the court on 13th December 2016 as stated earlier ruled in favour of the petitioner and found that his freedom of movement was violated and that there was no justification for confiscating the jewellery and mobile phones. The petitioner was awarded Ksh. 500,000/= for the said violation. However, the issue of confiscating the firearms certificate or the firearms was not raised or determined in Pet. No. 179 of 2016, hence the contents paragraph 25 of the petitioners further affidavit are misleading.

It is also important to mention that the petitioner in his petition and affidavits did not mention J.R. No 163 of 2016. Attached to the replying affidavit of Francis Mjomba is a copy of the judgment rendered in J.R. No. 163 of 2016 in which the petitioner sought inter alia orders of certiorari seeking to quash the respondents decision commanding the petitioner to present himself at the Criminal Investigation Division regarding the proposed intention to charge him in connection with recoveries of narcotic drugs and firearms recovered from his premises. He also sought orders of prohibition to stop the intended prosecution.

While dismissing the said case, the learned judge in his judgement rendered on 13th December 2016 observed that no material was placed before him to make a finding that the investigations in question were improperly undertaken and that the application has no merits, hence opening the way for the investigations to proceed.

Abuse of court process

It is important to reiterate that the court in the above case ordered investigations to proceed and this petition relates to substantially the same issues the subject of the investigations determined in J.R. No.163 of 2016 and the petitioner did not disclose the existence of the said case in this petition. He only mentioned petition 179of 2016 which he won. Further, he only mentioned J.R. No. 163 of 2016 in the supplementary affidavit, though in a carefully selective manner avoiding the crux of the determination. The investigations being challenged in this case, in my view are similar to the said case in that they arise from the same search/recovery and the orders sought herein have the effect of compromising or impeding the investigations as directed by the court in the said decision and may also compromise the intended prosecution. It is only proper and just for a party to disclose to the court at the earliest opportunity possible the existence of any previous litigation related to the issues in the subsequent case and leave it to the court to determine the relevance if any of the previous proceedings to the case before the court.

Duty of a litigant to disclose material facts

I would be failing in my solemn duty if I do not mention that it is settled law that a person who approaches the Court or a Tribunal for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose at the earliest opportunity possible all the material/important facts/documents which have a bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court or the Tribunal to bring out all the facts and refrain from concealing/suppressing any material facts within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person. This position was well captured in one of the earliest decisions on the subject rendered in 1917 in R. v. Kensington Income Tax Commissioner.[12]

A party is under a duty to disclose to the court or tribunal all relevant information even if it is not to his or her advantage.[13]The petitioner was under a solemn duty to bring to the attention of the court the above information at the earliest opportunity possible and leave it to the court to determine the merits or otherwise of his complaint.

The duty of a litigant is to make a full and fair disclosure of the material facts. The material facts are those which it is material for the court or Tribunal to know in dealing with the issues before the court or Tribunal. The duty of disclosure therefore applies not only to material facts known to the petitioner, but also to any additional facts which he would have known if he had made inquiries. The question that inevitably follows is whether the non-disclosure in this case was innocent, in the sense that the fact was not known to the petitioner or that its relevance was not perceived. In my view, the non disclosure in this case was not innocent at all but deliberate and such conduct cannot be entertained by a court of law. I find that the above conduct amounted to non-disclosure of material information and abuse of court process.

I have in numerous decisions of this court[14] observed that "It is trite law that the court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The black's law dictionary defines abuse as “Everything which is contrary to good order established by usage that is a complete departure from reasonable use. An abuse is done when one makes an excessive or improper use of a thing or to employ such thing in a manner contrary to the natural legal rules for its use."[15]

The situations that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-

(a)Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

(b)Instituting different actions between the same parties simultaneously in different court even though on different grounds.

(c)Where two similar processes are used in respect of the exercise of the same right.

(d)Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.

(e)Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.[16]

(f)Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

(g)Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.

(h)Where two actions are commenced, the second asking for a relief which may have been obtained in the first. [17]

Abuse of judicial process is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations and oppressive.[18] Abuse of process can also mean abuse of legal procedure or improper use of the legal process.[19] Justice Niki Tobi JSC of Nigeria observed that abuse of court process creates a factual scenario where a party is pursuing the same matter by two court process. In other words, a party by the two court process is involved in some gamble; a game of chance to get the best in the judicial process.[20]

It’s settled law that a litigant has no right to purse paripasua two processes which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In my humble view, the two processes are in law not available simultaneously. The pursuit of the two processes at the same time constitutes and amounts to abuse of court/legal process."[21]

Thus, the multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse.[22] The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice.[23] Turning to this case, I find no difficulty in concluding this case, arising from the same set of facts and circumstances and seeking substantially reliefs which will render the existing judgment useless amount to gross abuse of court process and on this ground alone I am inclined as I hereby do, to strike out this petition for being an abuse of court process.

Whether the petition has merits

As for the merits of the petition, I am afraid, from the material before me, there is nothing to show that the investigation is unfair, wrong, baseless or an abuse of police powers or judicial process. I have set out above the relevant provisions of the law and my reading of the said provisions clearly show that the police acted within their statutory mandate. The concept of a fair trial involves fairness to the prosecution and to the public as well as to the accused.[24]

The inherent jurisdiction of the court to stop investigations or a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances.[25] The essential focus of the doctrine is on preventing unfairness at trial through which the accused is prejudiced in the presentation of his or her case or where there is clear breach of fundamental rights to a fair trial. Courts should first consider whether or not there is anything in the investigations or trial to prevent 'a fair trial' and if there is none, then the court ought to allow the prosecution to continue.

The power to stay or stop police investigations or a prosecution should only be exercised if exceptional circumstances exist which would result in prejudice to the accused which cannot be remedied in other ways. Police investigations or a criminal prosecution can also be stopped if it was commenced in the absence of proper factual foundation. There is nothing to suggest that there is no evidence that the seized items were seized without a proper factual foundation.[26] In my view, the question whether or not the whether there were valid reasons for the seizure is mater for the trial court and not for this court.

The decision whether or not to investigate or prosecute is very important. It can be very upsetting for a person to be prosecuted even if later found not guilty. However, a decision not to prosecute can cause great stress and upset to a victim of crime. I find nothing in the material before me (even mere reasonable suspicion) to suggest that the DPP acted in violation of article 157 (10) of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act.[27]

The petitioner is alleged to have violated provisions of the Fire Arms Act.[28] Whether or not this is true is a matter for the trial court. He will be afforded an opportunity to prove his innocence. In the circumstances, I find that an order for the release of the seized items as prayed would be prejudicial to the Respondents.

In all honesty, I find nothing in the material before me to show that the petitioners rights have been violated nor is there is any prove that his rights to property have been violated.

The Right to own a firearm is not absolute. Firearms are held subject to the provisions of the law and the certificate can be cancelled in accordance with the law. The investigation and confiscation which has not been shown to be unlawful cannot be said to be a violation of the petitioner's property rights.

In view of my analysis herein above, I find that this petition has no merits. Consequently, I dismiss this petition with costs to the Respondents and direct that the police proceed expeditiously with the investigations against the petitioner as ordered in J.R. No. 163 of 2016.

Orders accordingly

Signed, Delivered, Dated at Nairobi this 17thday ofJuly2017

John M. Mativo

Judge

[1] Cap 114, Laws of Kenya

[2] Counsel cited article 40 of the constitution

[3] Counsel cited decisions in Standard Newspapers Ltd & Ano vs AG, Ivan vs NW Gambling Board(312/2011) (2012) ZASCA

[4] See section 60 of the National Police Service & Sections 119, 120 and 121 of the Criminal Procedure Code

[5] Supra

[6] Counsel cited Douglas Mwangi vs KRA & Another Pet No. 528 of 2013

[7] {1998} C.O.D. 373, DC

[8] No 11 A of 2011

[9] Cap 114 , Laws of Kenya

[10] {2012} eKLR

[11] Hui Chi-Ming v R[1992] 1 A.C. 34, PC

[12] {1917} 1 KB 486, by Viscount Reading, Chief Justice of the Divisional Court.

[13] Brinks-Mat Ltd vs Elcombe {1988} 3 ALL ER 188

[14]See e.g. Agnes Muthoni Nyanjui & 2 Others vs Annah Nyambura Kioi & 3 Others Succ Cause no 920 of 2009 AND Graham Rioba Sagwe & Others vs Fina Bank Limited & Others, Pet No. 82 of 2016

[15]Black Law Dictionary, Sixth Edition Black, Henry Campbell, Black Law Dictionary Sixth Edition, Continental Edition 1891- 1991 P 990 P 10-11

[16] Jadesimi V Okotie Eboh (1986) 1NWLR (Pt 16) 264

[17] (2007) 16 NWLR (319) 335.

[18] In the words of Oputa J.SC (as he then was) in (1998) 4SCNJ 69 at 87.

[19] Ibid

[20] Supra Note 1

[21] Supra note 1

[22]Ibid

[23] Ibid

[24]DPP v Meakin[2006] EWHC 1067.

[25] See Attorney General's Reference (No 1 of 1990) [1992] Q.B. 630, CA; Attorney General's Reference (No 2 of 2001) [2004] 2 A.C. 72, HL.

[26] Republic vs Attorney General ex-parte Arap Ngeny HCC APP NO. 406 of 2001

[27] Act No. 2 of 2013

[28] Supra note 1