[2022] KEHC 2345 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

JUDICIAL REVIEW APPLICATION NO 1 OF 2021

IN THE MATTER OF

AN APPLICATION FOR JUDICIAL REVIEWORDERS OF CERTIORARI AND PROHIBITION

IN THE MATTER OF

ARTICLE 43 OF THE CNSTITUTION OF KENYA 2010

AND

IN THE MATTER OF

SECTIONS 4, 5, 7 (2) AND 11 OF THE FAIR ADMINISTRATIVE ACTIONS ACT 2015

AND

IN THE MATTER OF

THE DECISION OF THE DIRECTOR OF PUBLIC PROSECUTIONS TO INSTITUTE

CRIMINAL PROCEEDINGS AGAINST THE EX-PARTE APPLICANTS

BETWEEN

THE REPUBLIC OF KENYA...................................................APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION..................1ST RESPONDENT

DIRECTORATE

OF CRIMINAL INVESTIGATIONS.............................2ND RESPONDENT

THE OFFICER COMMANDING POLICE STATION (OCS)

KISII POLICE STATION.................................................3RD RESPONDENT

AND

AZIM JIWA RAJWANI....................................1ST EX-PARTE APPLICANT

HIGHLAND TYRES LIMITED.....................2ND EX-PARTE APPLICANT

JUDGMENT

1. By Notice of Motion Application dated 10th February 2021, the Ex parte Applicant brought this Judicial Review proceedings seeking for orders that;

1) An order of CERTIORARI to remove into this Honourable Court and quash the decision of the 1st Respondent to institute criminal proceedings against the Ex-Parte Applicants following an investigation by the 2nd Respondent into allegations of forgery of the deed of transfer for land parcel known as KISII MUNICIPALITY BLOCK III/77 and obtaining registration of certificate of lease by false pretence.

2) An order of PROHIBITION directed to the 2nd and 3rd Respondent barring them from arresting, incarcerating, instituting, undertaking and/or proceeding with any criminal charges against the Ex-Parte Applicants.

2. According to the Affidavit of AZIM JIWA RAJWANI the 1st Respondent herein made a decision to charge the 2nd Ex-Parte Applicant following investigations into alleged fraudulent transfer of land parcel known as KISII MUNICIPALITY BLOCK III/77 from David Kenyanya Magare (Deceased) to the 2nd Ex-Parte Applicant.

3. The complaint was lodged by Bernard Mosoti Kenyanya (the deceased’s son) vide OB NO. 31/08/11/18. The Ex-parte Applicants contend that the criminal investigations began sometime in 2019 and Azim Jiwa Rajwani was summoned and informed that the subject of the complaint was a dispute over the sale and subsequent transfer of the property known as KISII MUNICIPALITY BLOCK III/77 carried out between 1984 and 1992.

4. The 1st Ex-Parte Applicant contends that during the period in which the alleged fraudulent dealing occurred, he was not a Director in Highland Tyres Limited (the 2nd Ex-Parte Applicant) and thus unaware of the alleged transaction. The Government Document Examiner took samples of his specimen signature and reported that the 1st Ex-Parte Applicant did not author any of the signatures appended on the transfer of lease dated 6th March 1992.

5. According to the Ex-Parte Applicants the complainant ought to have been made by the deceased during his lifetime and that the Power of Attorney that was used by the deceased’s son was illegal, invalid or had lapsed because the donor was now deceased and that power of attorney is inapplicable to criminal proceedings.

6. It was averred that the criminal proceedings commenced against the Ex-Parte Applicant are without any factual basis or foundation. In any event the controversy as to the sale and transfer of the suit property has been canvassed in various civil suits which collectively held to affirm the legality of the sale and transfer of the property to the 2nd Ex-Parte Applicant.

7. According to the Ex-Parte applicant therefore the decision by the 1st Respondent to institute criminal proceedings against the 2nd Ex-Parte Applicant is unfair and is out of ulterior motives aimed at causing the Ex-Parte Applicant fear, panic, ridicule and embarrassment.

The Reply

8. The Attorney General entered Appearance on behalf of the respondents.

9. Sergent Agnes Mutheu filed a replying affidavit for the respondents in which she averred that she is the investigating officer in the matter. She deposed that they received a complaint about the fraudulent acquisition of the suit property from the Interested Party. They therefore commenced investigations and recorded statements.

10. According to the respondents the investigations revealed that the suit land had been acquired fraudulently and through forgery. She averred that they then took the documents in their possession to the Government Forensic Examiner on 10th December 2019.

11. On 26th March 2020 they received the Government Forensic Examiner’s report confirming forgery of signature of the deceased. She deposed that they concluded their investigations and forwarded the file to the ODPP for advice.

12. She contends that the orders sought by the Ex-Parte Applicant should thus not be granted as they have come to court with dirty hands.

‘Interested Party’s Response’

13. Bernard Moseti Kenyanya (the deceased son), filed a replying affidavit on 22nd February 2021 and described himself as the ‘Interested Party’. He averred that he is the administrator of the deceased’s estate.

14. According to the deceased son, the deceased was the owner of the suit land before his demise and therefore the decision by the respondent to charge the Ex-Parte Applicant was arrived at after following due process. He explained that the Ex-Parte Applicants being dissatisfied the decision made on 15th October 2020 appealed to the regional office of the 1St Respondent but the regional office upheld the decision of 15th October 2020.

15. He contends that the Ex-Parte Applicants intends to mislead the court that he has no locus standi yet he had lodged the complaint after obtaining letters of administration. He claimed that the directors of companies are bound by the acts of the company or its previous directors as clearly demonstrated in the opinion of the regional office of the 1St Respondent vide its decision dated 2nd February 2021.

16. According to the deceased son, the Ex-Parte Applicants have thus not met the threshold for judicial review proceedings in the nature of certiorari or prohibition as contemplated under Order 53 of the Civil Procedure Rules.

17. In a rejoinder the Ex-Parte applicant filed a Supplementary Affidavit on 8th May 2021. The Ex-Parte Applicant contends that the respondent’s recommendation to charge are illegal, irregular and offensive of the requirement of section 23 of the Penal Code, Laws of Kenya.

18. It was averred that the respondents’ Forensic Examination Report submitted does not reveal who submitted the alleged signatures noting that the alleged author died on 27th April 2016. He averred that the signatures could only have been provided by the deceased’s son and that the Respondents failed to examine the documents that the 2nd Ex-Parte Applicant has in his possession.

19. He contends that the criminal complaint has been filed 24 years after the transfer of the suit land. He averred that the filing of a criminal complaint on the basis of letters of Administration is a procedure unknown in law. In any event the Letters off Administration Ad Litem obtained in Kisii Succession Cause No. 14 of 2018 were obtained purposely for prosecuting Kisii High Court Petition No 18 of 2013 in which was dismissed.

20. According to the Ex-Parte Applicants, the complaint is anchored on the Power of Attorney upon reading the letter from the 1st Respondent’s regional office with the decision the charge the Ex-Parte Applicants. The Ex-Parte Applicants believe that the 1st Respondent and the deceased son are working together and their actions solely guided by ill motive.

21. According to the Ex-Parte Applicants, the respondents are not acting independently and impartially, but under the influence of deceased son so that he can use criminal process to influence the Ex-Parte Applicants to turnover property that was lawfully acquired.

22. He explained that after in mid of 2019 his inquired about the status of the investigations and was informed by the investigating officer that Mr. Washington Mwiti had concluded the investigations and made recommendations that no charges could be sustained against the 2nd Ex-Parte Applicant on the basis that there was no specimen signature to compare the alleged fraudulent signature following the demise of the deceased. He also contends that the statement marked as E3 (i) which is supposed to be the statement he made is unknown to him.

23. They noted that the advocate who drafted the transfer document has not been interrogated by the respondents to give a clear picture of the transaction.

24. According to the Forensics Document Examination by the Ex-Parte Applicants the deceased’s signature on the documents availed by the respondents and the signatures on the documents held by the Ex-Parte Applicants are similar. The Ex-Parte Applicants contend that the respondents are thus malicious and out rightly abusive of their investigatory and prosecutorial powers.

Ex-Parte Applicant’s Submissions

25. The Ex-Parte applicant identified 3 issues for determination in their submissions:

i. Whether the inordinate delay in instituting the intended prosecution of the 1st Ex-Parte Applicant would infringe their (sic) rights and freedoms under Article 19 and 50 of the Constitution?

ii. Whether this Honourable Court should be pleased to issue the writs of certiorari and mandumus against the 1st respondent’s decision to prefer criminal charges against the 1st Ex-Parte Applicant?

iii. Whether a director can be prosecuted over an alleged offence by a company which occurred through no act or omission from his part and which he was not aware of?

26. On the first issue, it was submitted that Article 19 and 50 of the Constitution of Kenya provides that all persons who come to court are entitled to a fair trial which should be concluded without unreasonable delay. They place reliance on the case of Githunguri v Republic (1986) KLR.

27. The Ex-Parte Applicants in their submissions recognized that there is no limitation of time to institute and prosecute criminal offences; however, where any delay has the effect of denying a suspect the legal tools to mount a credible defence, the court should have sufficient reason to prohibit such prosecution.

28. The Ex-Parte Applicants argued that the intended prosecution do not avail the 2nd Ex-Parte Applicant any reasonable opportunity to mount its defence. It was submitted the intended prosecution lacks credible witnesses.

29. On whether this court should issue the writs of Certiorari and Mandamus against the 1st respondent’s decision to prefer charges against the 1st Ex-Parte Applicant, they cited the decision in Republic v Law Society of Kenya Disciplinary Tribunal & Another Ex-Parte Muema Kitulu [2018] eKLR. They also cited the case of Republic v Chief Magistrate’s Court at Mombasa ex-parte Ganijee & Another where the court held that:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of this court…”

30. The Ex-parte applicant finally submitted on the third issue and cited the case of Clay City Developers Limited v Chief Magistrate’s Court at Nairobi & 2 Others [2014] eKLR where the court held that:

“It is therefore clear that where a person charged with or concerned or acting in, the control or management of their affairs or activities of a company proves that through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission, he will not be guilty of an offence committed by the company and shall not be liable to be punished thereof.”

31. The respondents filed their submissions on 27th September 2021 and identified 3 issues for this court’s determination:

1. Whether the ex-parte applicants ought to be charged and prosecute for criminal offences.

2. Whether the orders sought ought to be granted.

3. Costs of the suit.

32. On these three issues the respondents submitted that investigations reveal that the transfer document was forged as evidenced by the Forensic Document Examiner’s Report. The respondents have also recorded statements from relevant witnesses including the 1st Ex-Parte Applicant. The cited the case of Republic v Kenya Revenue Authority & Others Nairobi HCC JR 186 of 2013 where the court stated that since an offence has been alleged, it follows that the 2nd respondent is entitled to investigate and take appropriate action if necessary.

33. They cited the case of Dickey v Florida where it was established that there 3 basic factors in judging the reasonableness of any particular delay, where courts were urged to consider the source of the delay, the reasons for it and whether the delay prejudiced interests protected by the speedy trial clause. They submitted that there were sufficient reasons for the delay in instituting the criminal proceedings.

34. The ‘Interested Party’ also filed its submissions on 20th August 2021.

ANALYSIS AND DETERMINATION

35. Before considering the issues raised by this application I must first consider whether Bernard Mosoti Kenyanya was properly admitted as an interested party to these proceedings.

36. The Ex-Parte Applicant in their supplementary affidavit averred that they did not serve any of the pleadings filed herein on the ‘Interested Party’ yet they responded to their application. According to the Ex-Parte applicant this could only mean that the ‘Interested Party’ was acting together with the Respondents.

37. A party can make an application to be admitted as an interested party or can be admitted as such where the court on its own motion enjoins a party as an interested party. In the case of John Harun Mwau v Simone Haysom & 2 others; Attorney General & 2 others (Interested Parties) [2021] eKLR the court held that:

“From the court record, it is evident that there was no leave of court sought by the Interested Party to be enjoined in this suit. It is the plaintiff/respondent who joined the interested party to these proceedingssuo motto. I do agree with the submissions of the Defendants/Applicants that the participation of the interested parties herein from the commencement of the suit without leave of court is to some extent unprocedural. However, i associate with the reasoning of Mwongo J in Kenya Ports Authority V Kenya Power&Lighting Co. Limited (2012) eKLR that procedural technicality is a lapse in form that does not go to the root of the suit. The 1st, 2nd and 3rd interested parties have not objected to being enjoined in the suit and they have even filed Replying Affidavits in opposition. Further, recent trends have shown that interested parties can be enjoined when the suit is filing in court and are part of the original pleadings.

…………………………

The three interested parties were enjoined in the plaint. It is not unusual to have interested parties enjoined in court cases at the initial stage. However, the normal and established practice has been for such an interested party to apply to be enjoined in the matter and show what interest he/she has in the case.”

38. The initial pleadings filed by the Ex-Parte Applicants do not disclose Benard Moseti Kenyanya as an interested party and neither does the record reveal that he was enjoined by the court as an interested party.

39. The Supreme Court in Francis Karioki Muruatetu & Another v Republic & 5 others Petition 15 as consolidated with 16 of 2013 [2016] eKLR was clear that enjoinment is not as of right, but is at the discretion of the Court. The court in Francis Karioki Muruatetu (Supra) held that:

“The principles set out in paragraph 37 of Francis Karioki Muruatetu & Another v Republic & 5 others Petition 15 as consolidated with 16 of 2013 [2016] eKLR demonstrate elements applicable where a party seeks to be enjoined in proceedings as an interested party, they are:

One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court;hence, sufficient grounds must be laid before the Court, on the basis of the following elements:

(i) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.

(ii) The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.

(iii) Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” [Emphasis added].

40. It is therefore my finding that Benard Moseti Kenyanya is not properly before this court. He could only be properly enjoined in this suit if he had made a formal application to be enjoined as an interested party or where a court on its own motion enjoins a party as an interested party.

41. I shall now proceed to consider the crux of the Ex-Parte Applicants case which is whether the actions of the 1st respondent amounts to abuse of prosecution powers and whether the Exparte Applicants have established the threshold for seeking Judicial Review Orders for Certiorari and Prohibition.

42. This court must bear in mind that a court sitting on a judicial review is only concerned with the process leading to the making of the decision and the court should not go into the merits of the decision itself. In Municipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, the Court of Appeal held that:

“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a Court hearing a matter by way of judicial review is concerned with and such Court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal Court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.

43. The Ex-parte Applicants in their application have sought orders for prohibition and certiorari. The Court of Appeal held in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996 inter alia as follows as regards the nature of the order of prohibition:

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…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 for 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…”

44. The court in discussing the requirements for an order of certiorari stated:

“…Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order ofcertiorariand that is all the court wants to say on that aspect of the matter.”

45. The Ex-Parte applicant was therefore required to establish the prosecution acted illegally, irrationally or that there was procedural impropriety in arriving at its decision. In the Ugandan case of Pastoli v Kabale District Local Government Council & Others, (2008) 2 EA 300 at pages 303 to 304 thus:

“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).

Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..

Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.

Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”

46. It must be understood that the 1st Respondent shall not require the consent of any person or authority for the commencement of criminal proceedings. Article 157 (10) of the Constitution of Kenya clearly states 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.”

47. Article 157 (11) of the Constitution of Kenya requires that the 1st Respondent in performing its duties shall have regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process while exercising its powers.

48. However, where it is clear that the Director of Public Prosecutions in exercising its discretion, is only keen on achieving certain extraneous goals other than those legally recognized under the Constitution and the Office of the Director of Public Prosecutions Act, then it can be concluded that there has been abuse of the legal process and in such instances the Court would be entitled to intervene and bring to an end such wrongful exercise of discretion. (Republic v Director of Public Prosecutions & 2 others Ex-parte Praxidis Namoni Saisi [2016] eKLR)

49. However, such interventions ought not to be whimsical. In Patrick Ngunjiri Muiruri v DPP [2017] eKLR, the court observed that:

“The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammelled, they are not to be exercised whimsically. While the Court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.”

50. In Republic v Attorney General & 4 others ex parte Kenneth Kariuki Githii [2014 eKLR Odunga J stated:

“The court ought not to usurp the constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing proceedings are in all likelihood bound to fail, it has been held time and time again, is not a ground for halting those proceedings by way of judicial review since, judicial review proceedings are not concerned with the merits but the decision making process. That an Applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a court in order to halt criminal proceedings. However, if the Applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the court will not hesitate in putting a halt to such proceedings.”

51. It is the applicant’s case that the issues raised in the criminal complaint have been canvassed in various civil suits: Kisii High Court Civil Suit No 101 of 2006; Kisii High Court Constitutional Petition No 16 of 2011; and Kisii High Court Constitutional Petition No 18 of 2013.

52. A complaint was lodged by Bernard Kenyanya regarding fraudulent acquisition of the suit land by the 2nd Ex-Parte Applicant. The transfer document indicates that the suit land was transferred on 6th March 1992 and that the 1st Ex-Parte Applicant became a director in 1995 after the suit land had been sold.

53. Although the Ex-Parte Applicants aver that the complainant has filed several civil suits all of which has been dismissed, there was no evidence presented to show that the cases filed by the complainant were against the Ex-Parte Applicant. InKisii High Court Constitutional Petition No 18 of 2013 none of the Ex-Parte Applicants were a party to the suit. The petition was dismissed on the grounds that it did not satisfy the threshold of a Constitutional Petition. The Ex-Parte Applicants have therefore not satisfied that they have been in protracted civil suit with the applicant.

54. What is apparent is that the 1st Ex-Parte Applicant was not a director of the 2nd Ex-Parte Applicant until 1995 after the sale and transfer of the suit land has been carried out. The delay in reporting the case was not occasioned by the respondents but by the complainant.

55. The Ex-Parte Applicant’s case seem to be largely premised on the ground that they have a strong defence but have failed to establish that the respondents’ decisions or acts complained of are tainted with illegality, irrationality and procedural impropriety.

56. In light of the foregoing, it is my finding that the ex-parte applicants’ application dated 10th February 2021 lacks merit and the same is dismissed. There shall be nor orders as to costs.

DATED, SIGNED AND DELIVERED AT KISII THIS 9TH DAY OF FEBRUARY, 2022.

R. E. OUGO

JUDGE

In the presence of:

Mr. Lubeto For the 1st Exparte & 2nd Applicants

1st, 2nd & 3rd Respondents Absent

Mr. Nyambati For the Interested Party

Kevin Court Assistant