[2015] KEHC 4055 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

JUDICIAL REVIEW DIVISION

JR NO. CASE 114 OF 2014

REPUBLIC.............................................................APPLICANT

VERSUS

CHIEF MAGISTRATE’S COURT, NAIROBI.....1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.....2ND RESPONDENT

AND

MARTIN MAINA.................................1ST INTERESTED PARTY

RIGHT END PROPERTIES LIMITED.....2ND INTERESTED PARTY

EX-PARTE

STEPHEN OYUGI OKERO

JUDGEMENT

1. In these judicial review proceedings the ex parte Applicant is Stephen Oyugi Okero. The Chief Magistrate’s Court at Nairobi is the 1st Respondent and the Director of Public Prosecutions (DPP) is the 2nd Respondent. Martin Maina is the 1st Interested Party whereas Right End Properties Limited is the 2nd Interested Party.

2. Through the notice of motion application dated 31st March, 2014 the Applicant prays for orders:

“1. THAT, an Order of PROHIBITION be issued by this Honourable Court directed against the Chief Magistrate’s Court, Nairobi from proceeding, conducting the trial, presiding or in any manner dealing with the charges laid or proceedings in criminal case No. 338 of 2014 between Republic –vs- Stephen Oyugi Okero, the Ex parte Applicant.

2. That, an order of CERTIORARI be issued by this Honourable Court removing into the High Court and quashing the decision made by the Director of Public Prosecutions in preferring and/or directing the prosecution of Stephen Oyugi Okero, the Ex parte Applicant in the Chief Magistrate’s Court, Nairobi in Criminal case No. 338 of 2014 between the Republic –vs- Stephen Oyugi Okero.

3. THAT, the costs of this application be provided for.”

3. The Applicant’s case is that he is an advocate of the High Court. On 29th January, 2011 he was instructed by the 2nd Interested Party to act on its behalf in the transfer of L.R. No. 1870/X/24 IR 70229 (hereinafter referred to as the suit property). In the instruction letter his fee was stated as Kshs.70,000/=. He was paid Kshs.20,000/= as down payment leaving a balance of kshs.50,000/= for payment upon completion of the transaction.

4. The Applicant avers that on 31st January, 2011, he lodged at the Lands Registry the transfer documents drawn by the firm of Kipkenda Lilan & Koech Advocates, the former advocates of the 2nd Interested Party. The documents were rejected on 8th February, 2011 and they were collected by a Mr Nyakundi.

5. According to the Applicant, on 10th February, 2011 and 16th February, 2011 a Notice of Withdrawal of a Caveat and a court order were lodged at Lands Office using the name of his firm. The Applicant denies lodging those documents and points out that the address on the two applications and the signatures on the applications do not belong to him. He swears that he neither visited the Lands Registry on the said dates nor sent any representative to lodge the applications on his behalf. He also avers that the said Mr Nyakundi is not known to him and has never worked for him.

6. The Applicant deposes that on 1st March, 2011, he was summoned to CID offices Nairobi Area where he recorded a statement. He recorded a further statement on 14th November, 2011.

7. The Applicant avers that on 13th November, 2011, the Sunday Nation Newspaper carried a story intimating that a warrant of arrest had been issued by a Kibera Magistrate’s Court against him, Mr Madatali Chatur and Ashraf Savani. The criminal proceedings which had been instituted by the 1st Interested Party were, however, quashed by the High Court after they field judicial review proceedings.

8. Things went quiet thereafter until 3rd March, 2014 when the Applicant was summoned to the CID Office, Nairobi Area where he was served with a police caution and his fingerprints taken. He was then released on Kshs.20,000/= cash bail and on 5th March, 2014 he was charged before the Chief Magistrate’s Court, Nairobi with four counts of making documents and forgery.

9. The Applicant therefore submits that the DPP in preferring charges against him acted contrary to the provisions of Article 157(11) of the Constitution by failing to take into account the public interest and the interests of the administration of justice.

10. The Applicant contends that the DPP’s decision to exclude the directors of the 2nd Interested Party contravenes the provisions of Article 27(1) of the Constitution as the company was the beneficiary of the contemplated transfer. Further, that the DPP acted in a discriminatory manner by preferring charges against him contrary to the recommendations of the Director of Criminal Investigations and the investigations officer(s).

11. According to the Applicant, the DPP exhibited biasness in preferring charges against him. He submits that the decision of the DPP not to charge the directors of the 2nd Interested Party amounts to abuse of office as the same is selective prosecution. Further, that the DPP has acted so as to shield the real suspects behind the commission of the alleged offence.

12. It is the Applicant’s case that his right to a fair trial as envisaged under Article 50(2)(a) of the Constitution has been violated by the unnecessary, uncalled for and malicious media coverage and in particular by Nation Media Group’s Daily Nation newspaper.

13. The Applicant asserts that the evidence collected by the police exonerated him but the DPP nevertheless proceeded to direct the police to charge him.

14. The Applicant states that his standing as an advocate of the High Court of Kenya has been grossly and fundamentally affected both locally and abroad. Additionally, he contends that his contemplated trial is unnecessary and only meant to subject him to further embarrassment, mental anguish, negative publicity and enormous legal fees in defending himself.

15. The Applicant submits that he acted within the instructions received and the actual beneficiary was the 2nd Interested Party. The Applicant alleges that the police failed to investigate the persons he named in his statements and consequently the entire investigations is suspect and selective, taking into account that the 1st Interested Party in his statement to the police has not mentioned him at all.

16. The Applicant winds up his case by asserting that his prosecution is oppressive and malicious. According to him, it only just, fair and in the interest of justice that the orders sought herein be granted.

17. The respondents opposed the application through a replying affidavit sworn by Inspector of National Police Service Abdullahi Shuria on 14th April, 2014. His averment is that investigations into the matter the subject of these proceedings commenced on 17th February, 2011 following a complaint from the 1st Interested Party. The 1st Interested Party reported that sometime in June, 2005 one Salim Hussein Dungarwalla who is now deceased retained him to act as his advocate in the sale transaction for property L.R. 1870/X/24 (I.R 70229). The said Salim Hussein Dungarwalla was to be the purchaser of the said property and the vendor was Uzima Publishing House.

18. According to the 1st Interested Party, before the transaction was completed a disagreement arose between the purchaser, Salim Hussein Dungarwalla and the vendor, Uzima Publishing House. On the 25th May, 2007 Salim Hussein Dungarwalla put a caveat on the suit property claiming purchaser’s interest absolutely as per the sale agreement and the Registrar of Titles made entry Number 6 in the title. On 30th November, 2007, the purchaser also obtained a court order prohibiting Uzima Publishing house, Right End Properties Limited and the Registrar of Titles from transferring, disposing off, alienating or in any other way dealing with the disputed property and the Registrar of Titles made entry Number 7 on the title document.

19. During this time, the original title of the parcel of land was held by the firm of Kipkenda, Lilan and Koech Advocates. Investigations revealed that the said firm of advocates received instructions from the directors of the 2nd Interested Party asking that the documents relating to the property be handed over to the firm of the Applicant.

20. By a letter dated 31st January, 2011 the firm of Kipkenda, Lilan and Koech Advocates handed over the transfer documents between Uzima Publishing House and the 2nd Interested Party to the Applicant. The Applicant acknowledged receipts of the documents on the same date.

21. The investigations also revealed that the firm of Kipkenda, Lilan and Koech Advocates had handed over the original title for No. LR 1870/X/24 IR 70229, land rent clearance from the City Council of Nairobi, land rent clearance from the Commissioner of Lands and land transfer documents dated 17th October, 2007 between Uzima Publishing House and the 2nd Interested Party. It also emerged that no other document was given to the Applicant by the 2nd Interested Party’s former advocates.

22. Further investigations showed that on 10th February, 2011 two documents namely original title for the suit property and Notice of Withdrawal of Caveat were filed at the Lands Office for the purpose of registration of a transfer. The Notice of Withdrawal of Caveat was purportedly signed by 1st Interested Party and had been filed by the Applicant’s firm. The documents were, however, returned by the Registrar of Titles without any registration being effected.

23. On the 16th February, 2011 the documents were again lodged at the Lands Office accompanied by a court order lifting the injunction granted in ELC No. 2315 of 2007. The application for registration was indicated as having been filed by the Applicant’s firm.

24. The 1st Interested Party reported that on the 17th February, 2011 while attending to other matters at the Lands Office he came across the file relating to the suit property. Among the documents that had been lodged with a view to transferring the property to the 2nd Interested Party was a forged Notice of Withdrawal of Caveat allegedly signed by the Applicant. There was also a court order dated 16th February, 2011 allegedly lifting the injunction granted in ELC No. 2315 of 2007.

25. Inspector Shuria deposes that following the complaint by the 1st Interested Party, he visited the Lands Office and obtained the original Notice of the Withdrawal of Caveat and the original court order dated 16th February, 2011 as well as the original title for the property in question. Enquiries at the Lands Office revealed that the Registrar of Titles had cancelled entries numbers 9, 10 and 11 which he had made transferring the property to the 2nd Interested Party.

26. The Applicant was summoned by investigators and shown the Notice of Withdrawal of Caveat and the court order dated 16th February, 2011 and he recorded a statement in which he denied knowledge of the alleged documents. The specimen handwriting of the Applicant together with his known handwriting were also obtained and forwarded to the forensic document examiner for examination. Vide a report Ref. CID/ORG/8/3/1/330 dated 16th March, 2011 the document examiner confirmed that the specimen and known handwritings of the Applicant and the writings on the application for registration were, in his opinion, similar and indistinguishable.

27. The respondents’ case is that as a result of the investigations criminal charges were preferred against the Applicant in court vide Milimani Chief Magistrate Criminal Case No. 338/2014, Republic versus Stephen Oyugi Okero.

28. According to the respondents the Applicant’s averment that the preference of charges against him is discriminatory, amounts to selective prosecution, is meant to shield the real suspects and is an abuse of public office is baseless for the reasons that: every case is determined on its own merit and no one case is similar to another; criminal responsibility is individual in nature and not collective and failure to charge a particular party does not amount to discrimination per se; the fact that other suspects have not been charged does not amount to discrimination; the fact that one party is criminally liable does not automatically or by itself infer that another in a similar transaction is likewise liable; a decision made by the Director of Public Prosecutions on whether or not to prefer criminal charges is based on the sufficiency of the available evidence; the facts relied on by the Applicant to allege discrimination are matters of evidence which will form the basis of his defence in the criminal trial; this Court cannot decide whether or not the Applicant is guilty or not through judicial review proceedings; it is not for the Applicant to determine who should be charged or dictate the persons whom the Directorate of Criminal Investigations should recommend for prosecution; and the DPP has the discretion to prefer charges against any party in respect of whom he finds sufficient evidence to prefer charges and the omission to charge other individuals or entities perceived by the Applicant as guilty is not fatal to the criminal proceedings against him.

29. The respondents assert that there is sufficient evidence gathered indicating that the forged Notice of Withdrawal of Caveat and the court order dated 16th February, 2011 were presented to the Registrar of Titles by the Applicant. Further, that at no time during the investigation did the Applicant state that the forged documents were given to him by the directors of the 2nd Interested Party.

30. The respondents contend that no evidence has been adduced indicating that Kipkenda, Lilan & Koech Advocates had given the questioned documents to the Applicant.

31. The 1st Interested Party confirmed the story of the respondents. He opposed the application on the grounds that whoever prepared fake documents in order to transfer the suit property to the 2nd Interested Party must be tried and punished for the offences.

32. The 2nd Interested Party responded to the application through the affidavit sworn by one of its directors Mr Madatali Chatur on 17th June, 2014. Going through the contents of the affidavit it is not quite clear whether the 2nd Interested Party opposes or supports the application. The written submissions, however, give the impression that the 2nd Interested Party opposes the application.

33. The 2nd Interested Party’s case is that by a letter dated 29th January, 2011 the 2nd Interested Party instructed the Applicant’s firm of advocates to take over the conveyancing transaction in respect to the suit property from the firm of Kipkenda, Lilan & Koech Advocates. The Applicant acknowledged receipt of the completion documents but inadvertently proceeded to transfer the suit property in contravention of the court order in ELC 2315 of 2007.

34. Mr Chatur avers that the 2nd Interested Party had instructed its then advocates, T.K. Rutto & Company Advocates, to write to the Deputy Registrar of the High Court undertaking that there was no ongoing transfer or intention to transfer the suit property.

35. At paragraphs 21 and 22 of his affidavit Mr Chatur avers:

“21. THAT the firm of T. K. Rutto & Company Advocates who were on record for the 2nd Interested Party in ELC 2315 of 2007 presented us with a Court Order lifting the Caveat placed by the deceased Hussein Dungrawalla and a Notice of Withdrawal of Caveat prepared by Maina & Maina Advocates and witnessed by Mtalaki Mwashimba Advocate.

22. THAT, we wrote to the Deputy Registrar of the High Court to clarify the position regarding the registration of the Transfer in favour of the 2nd Interested Party. In our letter dated 18th April, 2011, we stated that we had no knowledge of the purported court order and the lifting of the caveat…”

36. Mr Chatur avers that his explanation was accepted by the Court but sometime in November 2011, warrants of arrest were issued against the directors of the 2nd Interested Party and the Applicant herein in Misc. Private Prosecution Case No. 349 of 2011: Martin Maina v Right End Properties Ltd & 3 others which was curiously commenced by the 1st Interested Party and not his client.

37. It is Mr Chatur’s case that they challenged the said warrants of arrest through JR Misc Application No. 289 of 2011 Republic v Chief Magistrate’s Court Kibera & others, Ex parte – Ashraf Savani & Madatali S Chaturwhere the decision of the Chief Magistrate’s Court to issue warrants of arrest was quashed.

38. He denies that it is the 2nd Interested Party’s directors who procured or lodged the documents to facilitate the transfer of the property. It is his case that there was no reason to try and obtain a fraudulent court order or forge an application to lift the caveat when the suit against the 2nd Interested Party was a nonstarter in the first place. He submits that the directors of the 2nd Interested Party had been investigated by the police and cleared of any wrongdoing.

39. Upon perusal of the pleadings and the submissions of the parties herein, it is clear that the Applicant seeks to prohibit his prosecution on the ground that the DPP has not exercised his prosecutorial powers as required by the Constitution. The respondents hold the opinion that the power has been exercised within the constitutional and statutory safeguards.

40. There are many decisions showing that the exercise of prosecutorial power by the DPP is amenable to review by the High Court-see Kuria & 3 Others vs Attorney General [2002] 2KLR 69, R vs Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001, Ex-Parte Floriculture International Ltd, Nairobi High Court Misc. Civil Application No. 114 Of 1997 (unreported), Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [2013] eKLR.

41. In Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [2013] eKLRthe Court of Appeal stated:

“Clearly, the company and the guarantor through their directors were employing criminal process to assist them in resolving their civil dispute. While the law (Section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and a travesty of justice for the police to be involved in the settlement of what is purely a civil dispute being litigated in court. This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations. We have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power. The police should direct their energies and resources to prevention of crime which we all know is rampant in this country and is about to get out of control.”

42. InEx-Parte Floriculture International Ltd, Nairobi High Court Misc. Civil Application No. 114 Of 1997 (Unreported) Kuloba, J (Retired) pointed out factors to be taken into consideration before a criminal prosecution is launched. He stated that:

“So, it is incumbent upon an intending prosecutor to assess and examine carefully, the availability, credibility, and credit of the witnesses, the potential admissibility and reliability of evidence such as confessions, and whether the witnesses are likely to turn up to testify. So, there must initially be a promising case. A mere scintilla of evidence should not take one to the court; and if the prosecutor, in good faith, nurses significant doubts about the sufficiency of evidence, there should be no criminal proceedings.

Sufficiency of evidence is determined by getting right answers to and being satisfied with them on, the questions (1) What are the elements of the crime alleged? (2) What are the facts necessary to establish each of the constituent elements of the crime? (3) Who are the witnesses? (4) Are those witnesses readily available and credible? (5) Is their evidence capable of being reasonably believed? (6) Is the court likely to believe that evidence?

After considering the nature of the crime and the evidence, there may be present important non-evidential questions. These questions will normally revolve around the public interest considerations. In every case, the overriding consideration is the public interest, and not the private one, which must be served by a criminal prosecution undertaken or maintained. It is true, that it is generally in the public interest to suppress crime and punish offenders. But where circumstances make the harm done to the public interests by instituting or maintaining criminal proceedings greater than any harm likely to flow from non-prosecution, and outweigh the desirability of a prosecution, then the criminal process had better not be undertaken. Competing values within a complex society such as ours must be considered and reconciled……………

It is in the public interest to concern the courts with acts or omission which are of sufficient importance. This is handled by looking at the seriousness or relative triviality of the alleged wrong, and the consequences and attendant circumstances surrounding the commission of the offence as well as the likely punishment for the offence. It is not in the public interest to go through the whole process of the criminal law if at the end of the day, perhaps because of extenuating circumstance present in the case, or because the offender had already suffered enough, or he is too ill to stand his trial, so that only a nominal penalty is likely to be imposed. If no real outcome is likely to be achieved by a criminal process, it is a waste of public time, money and resources, to prosecute, besides creating unnecessary social tension in the community.”

In my view, the principles expounded in the above cited cases are sound. Any prosecution commenced without sufficient evidence and proper investigations can easily lead to the conclusion that the prosecution has been launched for ulterior motives.

43. In the case of State of Maharastra & others v Arun Gulab Gawali & others Criminal Appeal No. 590 of 2007 (27 August, 2010)the Supreme Court of India outlined the circumstances under which the High Court my review of prosecutorial powers as follows:

“(I) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(II) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

(III) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and

(IV) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.”

44. The power to prohibit criminal prosecution should be exercised with great care. It should be remembered that in the first place the people of Kenya bestowed prosecutorial power upon the DPP and in accordance with Article 157 of the Constitution granted him or her decisional autonomy. The DPP and his officers are expected to use their expertise in determining which case to prosecute and which one not to prosecute.

45. I therefore concur with the caution given by the Supreme Court of India in the case of State of Maharastra & others v Arun Gulab Gawali & others Ciriminal Appeal No. 590 of 2007 (27 August, 2010) to the effect that:

“12. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can `soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.”

(Emphasis supplied).

46. It is apparent from the cited authorities that the role of judicial review in criminal cases is limited. Once the Court is satisfied that the grounds for prohibiting a criminal trial have not been established, it cannot go ahead to try and determine the innocence or otherwise of an accused person. Odunga, J emphasised this point in Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR when he stated that:

“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the Court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.”

47. Sometimes an applicant in a judicial review court may invite the Court, like the Applicant has done in this case, to review the prosecution evidence and find that the same is not sufficient for mounting a prosecution. The simple answer to such an invitation was given by the Court of Appeal in Meixner & another v Attorney General [2005] 2KLR 189when it stated that:

“Having regard to the law, we agree with the finding of the learned judge that the sufficiency or otherwise of the evidence to support the charge of murder goes to the merits of the decision of the Attorney General and not to the legality of the decision. The other grounds which the appellants claim were ignored ultimately raise the question whether the evidence gathered by the prosecution is sufficient to support the charge.

The criminal trial process is regulated by statutes, particularly, the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards stipulated in Section 77 of the Constitution to be observed in respect of both criminal prosecutions and during trials. It is the trial court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. Had leave been granted in this case, the appellants would have caused the judicial review court to embark upon an examination and appraisal of the evidence of about 40 witnesses with a view to show their innocence. That is hardly the function of the judicial review court. It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.”

48. Nevertheless, sometimes it is necessary for the Court to look at the statements in order to establish if there is evidence to support the charges. Absence of evidence is a ground for quashing a criminal trial and the Court cannot conclude that there is no evidence without looking at the witness statements and exhibits.

49. I agree with the Applicant that there could be contradictions in the statements of the proposed witnesses. Those are issues that can only be resolved through a hearing. There is a report of an expert in the file showing that the handwriting in the applications for transfer lodged on 10th February, 2011 and 16th February, 2011 belonged to the Applicant. There is a statement by one Sarah Chalimo Maina stating that it is the Applicant’s firm which lodged the application for transfer on 10th February, 2011. The documents that included the fake court order and the Notice of Withdrawal of Caveat were again lodged by the same firm on 16th February, 2011. The veracity of that evidence can only be tested by way of cross-examination which can only be done in the criminal trial.

50. There was an argument by the Applicant that his prosecution is discriminatory as the directors of his client have not been arrested and yet they are the ones who gave him the instructions to transfer the title. Looking at the statements recorded with the police by the 2nd Interested Party’s directors and the replying affidavit sworn by Mr Chatur in this matter, I think the Applicant has a point that those directors should be in the dock with him. The decision as to whether or not the directors of the 2nd Interested Party should be charged belongs to the DPP.

51. The turning point in this case is the fundamental revelation, at the already reproduced paragraph 20 of Mr Chatur’s replying affidavit of 17th June, 2014, that the 2nd Interested Party’s advocate in ELC 2315 of 2007 is the one who gave him the fake court order and forged Notice of Withdrawal of Caveat. That advocate is not the Applicant herein. This information which was revealed under oath renders the trial of the Applicant untenable. It means that there is no evidence to connect the Applicant to any forgery since the 2nd Interested Party’s director has revealed the source of the forged documents. It must always be remembered that the 2nd Interested Party would have been the beneficiary of the aborted transfer.

52. However, the statements of witnesses recorded with the police shows that some serious fraudulent activities took place on 16th February, 2014 and they would have resulted in breach of a court order had the 1st Respondent not intervened. In the circumstances, I suspend the criminal proceedings against the Applicant for a period of 90 days and refer the matter back to the DPP as the decision maker so that he can make a fresh decision in light of the revelation in the affidavit of Mr Chatur. Failure to make a decision within 90 days will result in the prohibition of the prosecution of the Applicant in the criminal case that has already been instituted before the 1st Respondent.

53. Considering the outcome of these proceedings, I will not award costs to any of the parties but instead direct each party to meet own costs of the proceedings.

Dated, signed and delivered at Nairobi this 10thday of June, 2015

W. KORIR,

JUDGE OF THE HIGH COURT