[2017] KEHC 3899 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION

MISC. CRI. APP. NO. 20 OF 2017

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF ORDERS FOR CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF: SECTION 8 & 9 OF THE LAW REFORM ACT CHAPTER 26 OF THE LAWS OF KENYA

AND

ORDER 53 OF THE CIVIL PROCEDURERULES 2010

AND

IN THE MATTER OF: SECTION 4 & 5 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECITION ACT

AND

IN THE MATTER OF: ARTICLES 22, 23, 25, 27(1), 47, 50, 157(11), 159(2) AND 165 OF THE CONSTITUTION OF KENYA 2010

BETWEEN

REPUBLIC …………………………………………….….…….….APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECITION …........................1ST RESPONDENT

ETHICS AND ANTI CORRUPTION COMMISSION……...2ND RESPONDENT

EX PARTE JUSTUS ONGERA

R U L I N G

1. Before the Court is a Judicial Review Application against the 1st Respondent Director of Public Prosecutions (DPP) and the 2nd Respondent Ethics and Anti-Corruption Commission (EACC) seeking:

(i) An order of Certiorari to remove to the High Court for purposes of quashing the decision of the DPP to institute criminal proceedings against the Ex parte Applicant, following an investigation by the EACC into an allegation of irregular procurement of the Audit Vault Software by the office of the Auditor General vide inquiry filed No. EACC/FI/INQ/62/2015.

(ii) An order of Prohibition to prohibit the EACC from arresting, incarcerating, instituting and/or undertaking or proceeding with any criminal charges against the Ex parte Applicant or prosecuting him on matters relating to the inquiry into an allegation of irregular procurement of the Audit Vault Software by the office of the Auditor General vide inquiry filed No. EACC/FI/INQ/62/2015.

(iii) That such leave granted in (2) and (3) above do operate as stay of the decision of the DPP to charge the Applicant with the offence of knowingly deceiving principal contrary to section 41(2) as read with section 48(1) of the Anti-Corruption and Economic Crimes Act.

Grounds

2. The Application was premised on grounds that the 2nd Respondent undertook an inquiry into an allegation of irregular procurement of the Audit Vault Software by the office of the Auditor General vide inquiry file No. EACC/FI/INQ/62/2015. The 2nd Respondent completed its investigations and made a report pursuant to Section 35of theAnti-Corruption and Economic Crimes Act, on 16th December 2016 and forwarded it to the 1st Respondent on the same day.

3. The Ex-parte Applicant alleges that on 3rd February 2017, the 1st Respondent directed the 2nd Respondent to arrest the Ex-Parte Applicant for purposes of instituting criminal proceedings against him, without reasonable and probable cause for doing so, other than malice. That the 1st Respondent directed the charging of the Ex-parte Applicant with the offence of knowingly deceiving a principal contrary to section 41(2) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act.

4. The Ex-parte Applicant contends that the criminal proceedings that the 1st Respondent intends to institute are an abuse of the court process, as the 1st Respondent has absolved all the persons that gave approval of the Procurement that resulted in the investigation. The recommendation that the Ex parte Applicant be charged with the proposed offences and the subsequent prosecution was said to have been instituted for ulterior motives which only serves to undermine Article 25, 50 and 157 of the Constitution as well as public interest and the administration of justice.

5. The Ex-parte Applicant argues that the said prosecution will be an outright abuse of the legal process and invites the Court to invoke its supervisory jurisdiction under Article 165of theConstitution of Kenya 2010,to give directions and protect the Ex-parte Applicant’s fundamental rights and freedom and ensure fair administration of justice.

6. Mr. Manduku learned Counsel for the Ex-parte Applicant submitted that the decision to charge, the Ex-parte Applicant with the proposed offences is unreasonable, an abuse of the court process and if substantively unfair. He pointed out that the manufacturers of the system that was being procured wrote a letter in answer to the letter of the Auditor General dated 19th January 2017, confirming that the company that was contracted to supply the particular system, was the only company in Kenya that was a certified integrater with local references. That information was brought to the attention of the DPP vide a letter dated 13th February, 2017.

7. Counsel urged that on 3rd February 2017 the DPP made a decision to absolve the Auditor General from any culpability. He charged that it was unreasonable and unfair, to charge the Ex-parte Applicant who made the recommendation that the Auditor General could choose to accept or reject and absolve the Auditor General who was the decision maker. He stated that the Ex-parte Applicant does not sit in the Committee which made the decision to purchase, or the Committee that approved the procurement plan nor was he the author thereof.

8. Counsel argued that for a long time Judicial Review applications were only concerned with processes but after the promulgation of the 2010 Constitution and the passing of the Fair Administrative Action Act, the Scope was widened. Under Section 7(2) Fair Administrative Action Act the court can exercise its powers if a decision is taken with an ulterior motive or relevant issues were not considered, or the decision was not rationally connected to the information before the officer.

9. Counsel asserted that the court can only look at the substantive fairness by opening up the evidence for scrutiny. That under Article 165 the court has powers of supervisory jurisdiction over any person or body exercising judicial or quasi-judicial mandate. Further that none of the individuals who were interviewed has stated that they had a local reference and the only two companies at the time, Safaricom and Kenya Airways which had installed this system had been serviced by the same company OSI Kenya.

10. Counsel stated that the DPP is guided by the Constitution and the ODPP Act 2013 and if the person who recommended was punished and the decision maker is released and additional information and fundamental issues are ignored, the DPP will not be acting in a manner that inspires confidence in the Office of the DPP as required by law. In his view the irrationality herein is that a relevant fact was overlooked and irrelevant factors considered. That it was the obligation of the Investigation Officer to collect evidence, yet the OSI Kenya was not asked to record a statement. Further that the court should believe the directors of OSI who said who their partners in Kenya are, instead of the EACC.

11. Counsel urged that they have shown that they have an arguable case which is not frivolous. He prayed that leave to commence Judicial Review proceedings be granted and for the leave to operate as stay otherwise the application will be rendered nugatory.

12. Mr. Ashimosi learned State Counsel submitted for the 1st Respondent that there was no allegation, that in deciding to charge the Ex-parte Applicant the DPP breached the provisions of the Constitution or the law. It had also not been stated that the decision was irrational, or an abuse of the ODPP or that the DPP erred in his decision. The State Counsel urged that the Ex-parte Applicant was inviting the court to analyse the evidence and make a conclusion as to whether there is a case against him or not.

13. Counsel stated that the Public Procurement and Disposal Act 2016 did away with the Tender Committee so that once an expert like the Ex-parte Applicant gave a recommendation such as OSI Kenya being the only authorized subsidiary of OSI Slovenia, and they have complied with the law the Auditor General was bound. He submitted that he had demonstrated that the Ex-parte Applicant and one Annette Mwangi, knowingly made a false statement when they stated in a memo that OSI Kenya Ltd were the only accredited subsidiary of Oracle to provide Audit Vault Solutions.

14. Counsel stated that investigations had revealed that there were other accredited providers that could provide Audit Vault solutions. He annexed a letter marked “AIM2” dated 8th July 2015 by Oracle Company, which listed some of their providers in the Country. The investigators also recorded statements from the existing providers to show that they existed and they would have bid if competitive bidding was invited.

15. Counsel observed that in their memo, the Ex-parte Applicant stated that they had done due diligence and had concluded that not only was this the only service provider of that sort in Kenya, but in the whole of Africa, so that the Auditor General could go ahead and procure. He urged that the Ex-parte Applicant was not challenging the process of investigation, nor did he state that something had been done wrongfully or unlawfully in the process of investigations. On the other hand, the 1st Respondent had shown the DPP’s mandate under Article 157of theConstitution and Section 55 of ACECA and 11(1)(d) ACECA under which he received the report and made a decision.

16. The State Counsel argued that counsel cannot, from the bar, quote Fair Administrative Action Act when he had not laid it as a basis. He referred the court to Application No. 28 of 2017 Mass Technology v DPP where Ong’udi J. held that the Applicant had the duty to demonstrate (without giving evidence) that the impugned decision was arrived at unprocedurally, or was tainted with impropriety, unfairness or the decision was unreasonable.

17. On prohibition, Counsel argued that the Applicant wants the court to prohibit the EACC from prosecuting, while the EACC has no power under the Constitution to prosecute. That the court cannot prohibit an impossibility, since there is no application to prohibit the DPP from prosecuting and it would be in vain to grant leave and for that leave to operate as stay.

18. Mrs. Odipo Learned State Counsel for the 2nd Respondent submitted first, that on the issue of bias, or selective prosecution of the Ex-parte Applicant, the EACC was entitled to independently verify and investigate allegations brought by anyone, as they had in this case and found evidence against the Ex-parte Applicant hence the recommendation. She cited the decision of Thuita Mwangi and Anor. V EACA Petition No. 153 of 2013.

19. The State Counsel stated that the letter which the EACC is said not to have considered and which is marked “J07” was an afterthought and was obtained after the EACC had made recommendations and the DPP had charged him. That it ought to have been availed during investigation, or before the procurement and it is not true that the decision of the EACC would have been any different, because other issues were considered in reaching the recommendation to charge.

20. Counsel pointed out that the letter annexed to the affidavit of Chairi marked “MAU” from Oracle Company, which stated that there were several other providers in Kenya who could provide the software was addressed to the EACC on 8th July 2015, but the other letter referred to was not brought to the attention of the EACC.

21. Counsel urged that the Ex-parte Applicant had not shown that he had a prima facie case to entitle him to Judicial Review orders, while the EACC had established reasonable suspicion that the software was purchased by direct procurement, whereas there were many others in Kenya who could bid. She observed that an audit report marked “MAI” annexed to the affidavit of Mulki Umar, showed that the audit Vault was not planned for in the procurement plan for the period in which it was procured.

22. Counsel cited the authority of MISC. APP. NO. (J.R) 35 OF 2016 Hassan Noor Hassan vs DPP and Anor, where this court dismissed the application for leave because the Applicant failed to demonstrate a prima facie case. She argued that the Applicant was trying to use this court to subvert the criminal trial for issues that could be canvassed in the trial. She urged the court to dismiss the application.

23. In a brief rejoinder Mr. Manduku submitted that this is an application for leave and not the substantive orders for Judicial Review and what the DPP has complained of shall be captured substantively in the main application. He stated that the Public Procurement and Disposal Act amendments came into operation in January, 2016 and therefore the Tender Committee had the sole responsibility of considering and approving the procurement and the method of procurement as at June 2013. Further that although there were other Oracle partners who were accredited and who could supply the software, they did not have local references.

24. Counsel stated that the Ex-parte Applicant was aggrieved by the decision of the DPP to charge him and not with the process of investigation because the recommendations of the EACC were diametrically different from the decision of the DPP. Counsel distinguished the decision in Misc. 28 of 2015 by Ong’udi J, stating that the authority involved an Advocate Client’s confidentiality and the EACC’s actions were not said to be unlawful. What was being challenged was how the evidence was acquired. He asserted that the Ex-parte Applicant herein had discharged the duty to establish that there was unreasonableness.

25. Counsel stated that the prohibition herein is directed at the EACC to stop them from arresting the Ex-parte Applicant as the DPP does not arrest. He also pointed out that the Fair Administrative Action Act had not been passed when the court ruled on the decision in Thuita Mwangi. The complaint herein is that the original recommendations were different from the directives the DPP gave, raising an issue of discrimination and lowering the perception of the integrity of the ODPP.

26. Counsel urged that it was the duty of the EACC and not the Ex-parte Applicant to conduct investigations. Further that the 2nd Applicant was not aware that he was being instigated so as to look for evidence, and once such evidence was brought, it was the duty of the DPP to consider it. Lastly, that the authority of Hassan Noor Hassan could be distinguished and the Ex-parte Applicant had shown that he had a prima facie arguable case.

27. Counsel argued that a trial for the Ex-parte Applicant would mean that over 35 witnesses, none of whom incriminates him will have to testify. The Ex-parte Applicant would also be interdicted and would carry the stigma of corruption while the bail involved is likely to be enormous.

28. An application seeking leave to commence Judicial Review proceedings is made exparte at the initial stage. If leave is granted the actual Judicial Review proceedings are instituted in the name of the Republic with the aggrieved party as the Ex-parte Applicant. – See Farmers Bus Service & others vs Transport Licensing Appeal Tribunal (1959) EA 779.

29. The proviso to the rule mandates a judge, where the circumstances so require, to direct that the application be served for hearing inter partes before grant of leave. Further that where the circumstances so require to direct that the question of leave and whether grant of leave shall operate as stay to be heard and determined separately within seven days.

30. This is an application for leave to commence Judicial Review proceedings and it is important to consider the purpose therefor and the principles which guide the court in the exercise of its discretion in deciding whether or not to grant the leave sought. A good place to start would be the Court of Appeal decision in Aga Khan Education Services v Republic ex parte Seif [2004] eKLR, where the Court observed that in order to enable a judge to grant leave under Order 53, there must be prima facie evidence of an arguable case.

31. The principles stated in the English case of R v. Secretary of State, Ex p. Herbage [1978] 1 ALL ER 324, were cited with approval in the matter of an application bySamuel Muchiri Wanjuguna & 6 othersand in the matter of theMinister for Agricultureand theTea Act, Civil Appeal No. 144 of 2000. They state as follows:

“It cannot be denied that leave should be granted, if on the material available, the court considers without going into the matter in depth, that there is an arguable case for granting leave. The appropriate procedure for challenging such leave subsequently is by an application by the Respondent under the inherent jurisdiction of the court; to the judge who granted leave to set aside such leave- see Halsbury’s Laws of England, 4th Edition Vol 1 (1) paragraph 167 at page 1276”

The principle therefore, is that the court should be able to determine that there is an arguable case, on the material before it without going into the matter in depth in order to grant leave.

32. What amounts to an arguable case was stated by the Court of Appeal inKarikui v Attorney General [1992] KLR8 at page 15 where the Court quoted Lord Scarman in the case ofInland Revenue Commissioners V National Federation of Self- Employed and Small Business Ltd [1981] All ER 93 as follows:

“It is wrong in law, as I understand the case, for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse by busybodies, cranks and other mischief makers. I do not see any other purpose served by the requirements for leave.”

Grant of leave is therefore not automatic whether or not it is opposed.

33. The threshold for the grant of leave is a low one. An applicant only needs to show that his interests have been affected or threatened by the actions of the public body which has failed in its public duty. In the case before me, the Ex-parte Applicant seeks leave to apply for an order of Certiorari to remove to the High Court for purposes of quashing, the decision of the DPP to institute criminal proceedings against the Ex parte Applicant, following an investigation by the EACC into an allegation of irregular procurement of the Audit Vault Software by the office of the Auditor General vide inquiry filed No. EACC/FI/INQ/62/2015.

34. The Ex-parte Applicant also seeks leave to apply for an order of Prohibition to prohibit the EACC from arresting, incarcerating, instituting and/or undertaking or proceeding with any criminal charges against the Ex parte Applicant or prosecuting him on matters relating to the inquiry into an allegation of irregular procurement of the Audit Vault Software by the office of the Auditor General vide inquiry filed No. EACC/FI/INQ/62/2015.

35. The Ex-parte Applicant’s grievance seems to be three pronged. First he complains that the DPP’s decision to charge him was a departure from the recommendation of the EACC, which was that both he and the Auditor General should be prosecuted. Secondly, that the DPP made a decision to charge the Ex-parte Applicant who merely made a recommendation and exonerated the Auditor General who made the decision to procure. Lastly, that the EACC failed in its duty to conduct proper investigations. That therefore the actions of the Respondents were unreasonable, irrational, unfair and an abuse of the court process.

36. The grant of leave to file Judicial Review proceedings as well as the ultimate grant of the orders of certiorari, mandamus and prohibition is discretionary. The court is entitled to take into account the nature of the process against which Judicial Review is sought to be initiated, to satisfy itself that there is reasonable basis to justify the leave sought so as to file the substantive application in court.

37. I have analyzed all the material before me and considered the arguments advanced together with the authorities referred to by both sides. I am in agreement with the sentiment of Manjaja J, in Thuita Mwangi and Anor. V EACA Petition No. 153 of 2013,to which Mrs. Odipo referred the court. In the foregoing case the Petitioner complained of selective prosecution because other parties who played a central role had been left out. Manjaja J found that there was nothing in the law requiring that all members of a committee be prosecuted for alleged misappropriation as it depended on the evidence against each member.

38. The office of the Director of Public Prosecution is established under Article 157of theConstitutionwhich provides as follows in Clause 157 (6):

“The Director of Public Prosecution shall exercise State powers of prosecution and may-

a. Institute and undertake criminal proceedings against any person before any Court (other than a court martial) in respect of any offence alleged to have been committed.”

The decision to institute criminal proceedings by the DPP is discretionary. Under Article 157 (10) the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings, in the exercise of his or her powers or functions and shall not be under the direction or control of any person or authority.

39. These provisions are also reiterated in Section 6of the Office of the Director of Public Prosecutions Act. No. 2 of 2013 as follows;

Pursuant to Article 157(10) of the Constitution, the Director shall-

(a) not require the consent of any person or authority for the commencement of criminal proceedings;

(b) not be under the direction or control of any person or authority in the exercise of his or her powers or functions under the Constitution, this Act or any other written law; and

(c) be subject only to the Constitution and the law.

40. The basis of the above provisions is that the office of the DPP is an independent office and the Court will in an ideal situation, exercise great circumspection before it interferes with any decision made by the DPP. It will only do so in the clearest of cases. See - the case of Republic V Chief Magistrates Court, Nairobi Director of Public Prosecutions and Martin Maina Right End Properties Limited ex-parte Stephen Oyugi Okero [2015] eKLRin which the court observed that;

“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.”

There is therefore no doubt that the office of the DPP should be left to exercise its mandate and discretionary power to prosecute within constitutional limits and the independence of the office.

41. The allegation therefore, made by Ex-parte Applicant that the decision of the DPP to prosecute him is irrational and unreasonable and unfair because the DPP departed from the recommendation of the EACC and made a decision to prosecute him alone, is misguided in view of the mandate of the office of the DPP. The DPP is mandated to analyse the report submitted under Section 35 ACEC Act and draw his own conclusion as to whom to charge and for what offence.

42. The DPP made his decision to prosecute after reviewing the report from the EACC. The decision by the DPP to prosecute the Applicants therefore is within the law, and within his mandate and the Court is reticent to interfere with the Constitutional mandate of the DPP to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution.

43. The Applicant seeks Judicial Review orders of Certiorari to issue to quash the decision of the DPP to institute criminal proceedings against him. In this regard the Court of Appeal in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No 266 of 1996observed that;

“...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.”

44. The Ex-parte Applicant has failed to show that in making the decision to charge, the DPP had abrogated any provisions of the Constitution, or any written law, or any rules made thereunder. Further the Ex-parte Applicant has not shown that the DPP breached any rules of natural justice or that he acted without or in excess of jurisdiction. The court has been told that the EACC did not carry out proper investigations. For this court to delve into the sufficiency or insufficiency of evidence to sustain the charge against the Ex-parte-Applicant would be to usurp the mandate of the trial court in the criminal proceedings and is not in the purview of this court to do so.

45. On the prayer for prohibition I referred to the decision of Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No 266 of 1996, where the Court gave an exposition of the order of prohibition as follows:

“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...”

The EACC already made the recommendation for the ex-parte Applicant to be charged, which application the DPP is in agreement with following an independent review of the report from the EACC. Further the EACC has no prosecutorial powers that it may exercise an order of prohibition would therefore not be efficacious in this case.

46. For this court to issue the orders sought would be, in my considered view in the circumstances of this case to undermine the constitutional mandate of these two institutions. The High Court has the powers and the constitutional duty under Article 165(6)of theConstitution to supervise the exercise of the Respondents’ mandate, whether constitutional or statutory so long as the challenge by an Applicant against any decision by the DPP and the Commission properly falls within the parameters of judicial review.

47. For the foregoing reasons I find and hold that the application dated 14th February, 2017 is lacking in merit and is therefore dismissed. Having so concluded, it is not necessary for me to consider the next issue, namely whether leave should operate as stay. There are no orders as to costs.

SIGNED DATEDandDELIVEREDin open court this 20th day of July 2017.

………………..

L. A. ACHODE

JUDGE