[2012] KEHC 4577 (KLR)
The court found that the respondent's actions, namely investigating and harassing the applicant over matters already pending before the civil court, amounted to an abuse of process and exceeded the lawful powers of the police. The respondent failed to justify the investigations or specify any crime under...
Source-derived case information.
- Citation
- [2012] KEHC 4577 (KLR)
- Parties
- Applicant: Republic; Respondent: The Commissioner of Police; Defendant: Assumption Sisters of Nairobi, Registered Trustees; Defendant: St. Mary’s Mission Hospital; Applicant: Rev. Dr. William Charles Fryda
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 24 of 2011
- Procedural Posture
- Judicial Review / Ruling on Substantive Motion for Prohibition Order
- Outcome
- Application allowed. Order of prohibition granted. Costs awarded to applicant.
- Judges
- SP Ouko
- Legal Topics
- Judicial Review, Abuse of Process, Police Powers, Land Disputes, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
The Commissioner of Police
Respondent
Assumption Sisters of Nairobi, Registered Trustees
Defendant
St. Mary’s Mission Hospital
Defendant
Rev. Dr. William Charles Fryda
Applicant
Procedural Posture
Judicial Review / Ruling on Substantive Motion for Prohibition Order
Legal Issues
- 1 Whether the police investigations and actions against the applicant constituted harassment and an abuse of process in matters already pending before the civil court.
- 2 Whether an order of prohibition should issue to restrain the police and interested parties from further actions relating to the subject matter of ongoing civil litigation.
- 3 Whether the respondent acted in excess of jurisdiction or in contravention of the law by investigating issues already before the court.
Ratio Decidendi
The court found that the respondent's actions, namely investigating and harassing the applicant over matters already pending before the civil court, amounted to an abuse of process and exceeded the lawful powers of the police. The respondent failed to justify the investigations or specify any crime under investigation, and the actions exposed the applicant to double jeopardy. The interested parties were found to have influenced the police investigations, and these allegations were not denied. The court held that the police should not be used to settle civil disputes already before the court, and that the applicant was entitled to an order of prohibition restraining the respondent and...
Court Disposition
Application allowed. Order of prohibition granted. Costs awarded to applicant.
Orders
- An order of prohibition restraining the respondent from harassing, arresting, confining, questioning, intimidating, or otherwise exasperating the applicant in relation to matters already pending before the court.
- The respondent and interested parties to pay the costs of the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW NO.24 OF 2011
IN THE MATTER OF AN APPLICATION BY REV. WILLIAM CHARLES FRYDA (SUBJECT) FOR JUDICIAL REVIEW RELIEF IN THE NATURE OF AN ORDER OF PROHIBITION UNDER SECTIONS. 8 AND 9 OF THE LAW REFORM ACT AND ORDER 53 OF THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF HARASSMENT OF THE SUBJECT BY THE KENYA POLICE OVER MATTERS ALREADY PENDING IN THE HIGH COURT IN NAKURU HCCCC NO.224 OF 2010 AND NAIROBI HCCC NO.9 OF 2011
BETWEEN
REPUBLIC…………………………………………………………….APPLICANT
VERSUS
THE COMMISSIONER OF POLICE………………………………RESPONDENT
AND
ASSUMPTION SISTERS OF NAIROBI,
REGISTERRED TRUSTEES…………………………...1ST INTERESTED PARTY
ST. MARY’S MISSION HOSPSITAL…………….…...2ND INTERESTED PARTY
EXPARTE
REV. DR. WILLIAM CHARLES FRYDA….……………………………..SUBJECT
RULING
Pursuant to leave obtained on 7th March, 2011, the applicant, Rev. Dr. William Charles Fryda, has now brought a motion for orders of prohibition to restrain the Commissioner of Police (the respondent), Assumption Sisters of Nairobi, Registered Trustees and St. Mary’s Mission Hospital (the 1st and 2nd Interested Parties) from:
“……….harassing, arresting, confining, questioning, intimidating, or in any other manner exasperating the subject (ex-parte applicant) in relation to matters that are already pending before the court……………………….….”
The applicant, an American Catholic missionary and a medical doctor, has averred that he has a dispute with the interested parties involving parcels of land, L.R. No.27228 (Nairobi), 18590/11 (Nairobi), 9361/10 (Nakuru) and Kiine/Rukanga/2846 (Sagana). The dispute is in court, being Nakuru HCCC No.224/2010 and Nairobi HCCC No.9 of 2011. The applicant contends that despite these two suits, the interested parties are using the police officers to harass him by keeping him at the police station for a whole day on 7th and 8th February, 2011, consistently calling him for questioning and searching his premises; that these actions by the police have always related to the properties the subject matter of the dispute in court; that one Cpl. Catherine Kofa has obtained an investigation warrant in Nairobi C.M. Criminal Misc. Application No.226 of 2011 to search the bank details concerning one of the properties in question, without involving the applicant; that these actions by the police constitute an abuse of the court process and police powers and privileges.
The interested parties as well as the respondent were duly served and counsel appeared in court for the respondent and sought time to file papers, but none was filed hence the hearing proceeded ex parte.
The applicant’s position is that the interested parties are using the police in a matter that is already in a civil court. He has given instances where he has been summoned by the police and with his advocate kept waiting the whole day; that the matters he was being interrogated on relate to the matters in court; that the warrant to investigate the bank account also relates to the property in question. These averments have not been contradicted or rebutted.
An order of prohibition will issue to forbid an inferior tribunal or body from continuing with proceedings or acts in excess of its jurisdiction or in contravention of the laws of the land. It lies also for a departure from the rules of natural justice.
Both the Constitution and the Police Act make provision for the powers and functions of the police. For instance under Article 245(4) of the Constitution, the police service, in the performance of its powers to investigate any offence or to enforce any law against a person, is not subject to direction from any person. The functions of the police service under section 14(1) of the Police Act include the preservation of peace, the maintenance of law and order, the protection of life and property, the prevention and detection of crime, the apprehension of offenders and the enforcement of laws.
The respondent having duly been served with this application ought to have explained the action complained of by the applicant and to justify them in accordance with the laws outlined in the above paragraph.
It has been stated without being contradicted that the investigations by the respondent related to matters already in court. That being so, the respondent, although empowered to investigate crimes, has failed to indicate what crime was being investigated. Those investigations exposed the applicant to double jeopardy as the same issues were the subject of civil litigation.
For these reasons, I find that the actions of the respondent amounted to harassment and went beyond the respondent’s powers. The interested parties are said to have influenced these investigations. They have not denied these allegations. For the reasons stated, the respondent is hereby restrained by an order of prohibition in terms of paragraph 1 of the motion.
The respondent and the interested parties to pay the costs of this application.
Dated, Signed and Delivered at Nakuru this 17th day of February, 2012.
W. OUKO
JUDGE