[2023] KEHC 23738 (KLR)

Republic v Director of Criminal Investigation; Njagi (Exparte Applicant); Mbithi (Interested Party) (Judicial Review Miscellaneous Application E051 of 2022) [2023] KEHC 23738 (KLR) (Judicial Review) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23738 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E051 of 2022

JM Chigiti, J

October 12, 2023

Between

Republic

Applicant

and

The Director Of Criminal Investigation

Respondent

and

Agriphina Wanjiru Njagi

Exparte Applicant

and

Jackline Mueni Mbithi

Interested Party

Judgment

1. The Notice of Motion before court is dated 15th July,2022 and is brought under Order 53 Rule of the Civil Procedure Court. The application seeks the following prayers;1. An order of certiorari do issue quashing the Respondent summons dated 11th May, 2022. 2.An order of prohibition do issue prohibiting the Respondent from arresting, charging or preferring criminal charges against the Applicant in connection with the Respondent’s summons dated 11th May, 2022. 3.Costs of this application be provided for.

2. The application is supported by a Statutory Statement dated 16th May,2022 and an Affidavit verifying the facts sworn by the Ex parte Applicant on even date.

3. The Applicant’s case is that on 28th Februaruy,2022 she lent the Interested Party the sum of Kshs.725,000/= as evidenced in a loan agreement dated the same date.

4. The Interested Party is said to have pledged her household items, business equipment and/or tools as the security for repayment. She also issued three postdated cheques equivalent to the loan sum.

5. The Applicant’s case is that upon the expiry of the 30 days after execution of the agreement within which the Interested Party was to repay the loan she failed to do so and further directed the Ex parte Applicant not to bank the cheques as had been agreed.

6. The Interested Party is said to have requested the Applicant to collect a water purifier and storage tank as a pledge which items according to the Ex parte Applicant were valued at less than Kshs.200,000. 00.

7. This resulted in the Ex parte Applicant filing a claim in the Small Claims Court to which a response was filed and responsibility fully admitted. However, that in a turn of events the Interested Party went ahead to lodge a complaint at Buruburu Police Station against the Applicant for allegedly stealing.

8. The Respondent is said to have called her on telephone and demanded for her to attend Buruburu Police Station to shed light on the alleged theft of the Interested Party’s water purifying machine.

9. The Ex parte Applicant states at the time that she was heavily pregnant and she could therefore honour the summons but went ahead to give her side of the story and even follow up the conversation with a copy of the loan agreement, cheques, and a copy of a mention notice detailing the date when the matter before the small claims would be mentioned.

10. The Ex parte Applicant’s case is that subsequently the police intensified the telephone calls to her and demanded that if she did not attend court they would go for her the pregnancy notwithstanding. She states that this pressure led to her suffering from early labour pains which led her to have a pre-term delivery through caesarean section.

11. The Applicant’s baby, it is stated had to stay in the nursery for three (3) weeks and upon the Applicant’s discharge from the hospital summons were issued by the Respondent on 20th April,2022.

12. The Applicant argues that the Respondent’s sole purpose is to exert pressure to the Applicant either to release the attached pledge or withdraw the claim in the small claims court. Further that the summons reveal that the Respondent has already formed an opinion that an offence of theft has been committed by the Applicant.

13. In response the Respondent filed a Replying Affidavit dated 29th September,2022 sworn by Joyce Nafula Tunge who depones that she is an officer at Buruburu Police Station attached to the Directorate of Criminal Investigations.

14. The deponent avers that on 1st April,2022 the Interested Party herein through OB/45/1/4/2022 reported a case of theft. She was accompanied by two witnesses and she also provided all the necessary documentation showing ownership of the Jalitas Mountain Spring.

15. The deponent avers that pursuant to Section 52 of the National Police Service Act the Respondent has a statutory mandate to summon anybody to appear for any investigation purposes which is what led to the summoning of the Ex parte Applicant on 1st April,2022 and later on 20th May,2022 after she had given the Ex parte Applicant time to recover and rest.

16. The deponent avers that on 17th May,2022 the Applicant sent to her vie WhatsApp a court ruling dated the same day indicating that she had filed a suit instead of adhering to the summons.

17. It is averred that the Applicant’s application is deliberately intended to circumvent the due process of investigation; and further, that the application herein is premature and a waste of the court’s process, as the investigation process had just begun and not concluded.

18. The Interested Party in response filed a Replying Affidavit dated 21st March,2023 and in the affidavit she avers that the loan amount was the sum of Kshs.500,000/= payable at a sum of Kshs.725,000/=which included the principal amount and accrued interest.

19. The Applicant is said to have before depositing the first cheque shown interest in joining the Interested Party’s business as a partner to which the Interested Party agreed with the condition that the Ex parte Applicant would add the sum of Kshs. 1,500,000/= to the initial Kshs. 500,000/= that she had borrowed.

20. The deponent deposes that on 31st March,2022 the Applicant accompanied by a group of goons took away all her machinery, equipment and goods estimated at Kshs. 1,278,150/=plus stock in the sum of Kshs. 700,000/= claiming that she was recovering the loan amount owed.

21. The Applicant is accused of failing to follow due process as provided under the law when it comes to conducting proclamation. The deponent avers that an individual cannot dictate the powers of the Respondent to conduct investigations within their purview. Further that issuance of summons is merely a process to initiate investigations and obtain information and evidence on how to proceed with a report for an alleged offence.

22. The Interested Party’s case is that there is no intention to arrest the Applicant as no charges had or have been preferred against her nor have warrants of arrest issued. It is also her case that this court lacks jurisdiction to hear and determine this matter as it involves the express powers and functions of the Respondent in conducting its independent investigations and inquiries upon a crime being reported.

23. The application was canvassed by way of written submissions and at the time of writing this Judgement only the Ex parte applicant had filed written submissions dated 8th May,2023.

24. In her submissions the Ex parte applicant submits that the criminal and civil justice system run side by side and that they should never mix as was suggested by Prof. Ashburner in the Fusion Debate concerning the Common Law and the rules of equity.

25. The Ex parte Applicant also submits actions of the police were a clear abuse of power and to support this argument the case of R vs. Mullen was cited where the court held as follows;“It arises not from the relationship between the Prosecutor and the Defendant but from the relationship between the Prosecutor and the Court. It arises from the court’s need to exercise control over executive involvement in the whole prosecution process not limited to trial itself. Significantly, the court noted that certainty of guilty cannot displace the essential feature of this kind of abuse of process namely, the degradation of the lawful administration of justice.”

26. It is submitted that the police should be discouraged from criminalizing commerce, and that where two parties agree to do what is purely legal business and parties disagree on the way, the police shouldn’t be allowed to determine who was unable to meet his part of the bargain.

Analysis and Determination 27. I have considered the application, the affidavit evidence as well as the submissions before this court, it is my view that the issues for determination are; Whether the Applicant has established the legal threshold for the grant of the judicial review orders sought and Who bears the costs of the application?

28. The Respondent’s authority to investigate is derived from Article 245 of the Constitution,2010 and section 35 of the National Police Service Act,2013. This is what allows the Respondent and any other investigative agency to investigate any person if there is probable cause to do so and it is only when the Applicant establishes that the Respondent is acting ultra vires its powers that the court can interfere.

29. Article 245(4) provides as follows;“(4)The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—(a)the investigation of any particular offence or offences;(b)the enforcement of the law against any particular person or persons; or(c)the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.”

30. Section 35 of the National Police Service Act, 2013 provides as follows;35. Functions of the Directorate the Directorate shall—(a)collect and provide criminal intelligence;(b)undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others;(c)maintain law and order;(d)detect and prevent crime;(e)apprehend offenders;(f)maintain criminal records;(g)conduct forensic analysis;(h)execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;(i)co-ordinate country Interpol Affairs;(j)investigate any matter that may be referred to it by the Independent Police Oversight Authority; and(k)perform any other function conferred on it by any other written law.

31. The Applicant in our instant case seeks to quash summons issued by an officer of the Respondent herein dated 11th May,2022 and also prohibit the Respondent from arresting, charging or preferring charges against her in connection with the summons dated 11th May,2022.

32. The Respondent’s mandate to investigate any particular offence or offences is guaranteed under Article 245 of the Constitution however in exercising the same the Respondent ought to ensure that in undertaking its responsibilities it does not violate the rights of the persons under investigation.

33. In the case before me, I note that in undertaking the said functions the Ex parte Applicant has alleged that the Respondent’s officer caused her to have an emergency caesarean section operation due to the immense pressure that was exerted upon her, which if true is a sad state of affairs and in violation of her right as protected under Article 26(1) as such a procedure is life threatening and also a great threat to her unborn baby who was born pre-mature.

34. However, I note that the Respondent’s officer one Wilson Tenai in issuing the said summons was acting within his mandate as provided under the law. I note from the discharge summary issued at Machakos Level 5 Hospital and the cost sharing invoice attached to the Ex parte Applicant’s verifying affidavit that the Applicant and her baby were discharged from the said facility on 18th April,2022.

35. I also note that summons were issued to the Applicant to attend Buruburu Police Station on the 20th May,2022 at 9. 00 a.m. This is well over one (1) month since she was discharged from hospital. No evidence has been adduced as to her efforts to try and reschedule the said date neither is there evidence of any effort having been made to date to honour the said summons.

36. This court although not in agreement with the pressure exerted on the Ex parte Applicant leading to her giving birth prematurely does not find any illegality, irrationality, procedural impropriety in the procedure followed leading up to the decision to issue the impugned summons.

37. In any case the Respondent called upon the Ex parte Applicant to shed light and record a statement in relation to the investigation that was being undertaken and this would give her an opportunity to state her side of the story and also an opportunity to provide evidence that would support the same.

38. This court is also cognizant of the provision of Section 193A of the Criminal Procedure Code, which provides that the fact that any matter in issue in any Criminal proceedings is also directly or substantially in issue in any pending Civil proceedings does not bar the commencement of criminal proceedings or investigations against a person. My considered view is that this court would fall into great error if it was to usurp the duty of the Respondent.

Order; 39. In the foregoing the Ex parte Applicant’s application dated 15th July, 2022 lacks merit and is hereby dismissed. I make no orders as to costs. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF OCTOBER 2023……………………………………J. CHIGITI (SC)JUDGE