[2023] KEHC 26094 (KLR)

Republic v Director of Public Prosecution & another; Galot (Exparte) (Application E105 of 2022) [2023] KEHC 26094 (KLR) (Judicial Review) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26094 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E105 of 2022

J Ngaah, J

December 1, 2023

Between

Republic

Applicant

and

Director Of Public Prosecution

1st Respondent

Inspector General Of Police

2nd Respondent

and

Alvin Galot

Exparte

Judgment

1. The application before court is the applicant’s motion dated 7 June 2023 in which the applicant prays for the orders of certiorari, mandamus and declaration. The prayers for these orders have been framed as follows:2. This Honourable Court be pleased to issue an order of certiorari to bring to this honourable court for the purpose of quashing the decision of the 1st and 2nd respondents as communicated by letters dated 1. 03. 2022 and 6. 04. 2022 respectively and in respect to inquiry no.15 of 2021. 3.That this honourable court be pleased to issue an order of prohibition to bring to this honourable court for the purpose of barring the respondents from directing/forcing and/or ordering or in any way unilaterally making the decision for Avin Galot to pursue alternative dispute resolution in resolution of his complaint as recorded in Kiambu police station vide OB No. 35/22/08/2021 and without his consent.4. That this honourable court be pleased to issue an order of mandamus to compel the respondents to charge the interested party as intended and already communicated vide their letter dated 13. 10. 2021, in the absence of the agreement and consent of Avin Galot, the complainant to settle the complaint out of court by way of alternative dispute resolution.5. This honourable court be pleased to issue a declaration that the respondents’ unilateral and arbitrary decisions to direct Avin Galot to settle his complaint as recorded vide OB No. 35/22/08/2021 by way of ADR as communicated by letters dated 1. 03. 2022 and 6. 04. 2022 respectively and in respect to inquiry no. 15 of 2021 and without the applicant’s input is illegal, arbitrary, ultra vires, against legitimate expectation, for improper motives and marred with illegalities and procedural improprieties and did not take into account the rights, input and consent of the (sic) Avin Galot.6. This honourable court be pleased to issue a declaration that the respondents’ unilateral and arbitrary decisions to direct Avin Galot to settle his complaint as recorded vide OB No. 35/08/2021 by way of ADR violated the Avin Galot’s rights as provided for under article 47 (1), 48, 50 (1) of the Constitution.

2. The applicant also sought an order on costs.

3. The application is based on the statutory statement dated 16 July 2022 and an affidavit sworn on even date by Avin Galot verifying the facts relied upon.

4. According to the applicant, he was assaulted in his father’s compound on 22 August 2021. On the material date, he lodged a report of the assault at Kiambu police station and his complaint was entered in the occurrence book as OB No. 35/22/08/21. Among other injuries he sustained in the assault were a broken tooth and bruises. He sought medical attention and was treated at Kiambu District Hospital.

5. When the 2nd respondent sought evidence of the said assault from the applicant, the latter availed a CCTV footage. The footage was retained by the 2nd respondent’s officers for purposes of further investigation.

6. Subsequently, the 2nd respondent is said to have intimidated the applicant to withdraw the complaint. As a matter of fact, no action was taken on the complaint prompting the applicant to write to the respondents on 20 September 2021 to inquire the status of his complaint and the progress made in investigations. It is then that the applicant learned that his assailant had also lodged a complaint against the applicant purporting that the applicant had assaulted him.

7. Later the 2nd respondent preferred charges of affray against the applicant and his assailant.

8. According to the applicant, the reason for the charges of affray was a cover-up by the 2nd respondent to protect the applicant’s assailant. The charges were intended to intimidate, coerce or scare the applicant so that he could withdraw his complaint and settle the matter out of court.

9. On 5 October 2021 both the applicant and his assailant were summoned to appear before the 2nd respondent for plea taking. The assailant did not, however, appear on the material date.

10. The applicant later learnt that the 1st respondent had instructed that the applicant and his assailant be charged with assault.

11. On 6 April 2022, the respondent wrote to the applicant communicating the position of the 1st respondent to the effect that the 1st respondent had advised the applicant to seek alternative dispute resolution and sort out the family differences without resort to criminal justice system.

12. The applicant complained that the decision to refer the matter to alternative dispute resolution mechanisms was without his consent and was, therefore, illegal arbitrary and against the applicant’s legitimate expectation.

13. The 1st respondent opposed the application and filed grounds of objection to that effect. It is pleaded on his behalf that the prayers sought by the applicant are unconstitutional as they seek to prevent him from exercising his mandate as provided under Article 157 of the Constitution. Accordingly, if the prayers are to be granted, the consequences would be greater injustice in the criminal justice system and public interest.

14. The application is also said to be an abuse of the court process for the reason that the applicant and the interested party were parties in judicial review proceedings filed in this Honourable Court as application no. 170 of 2021 which was eventually withdrawn to allow the applicant and the interested party to settle their differences out of court. It should not, therefore, be open to the applicant to institute a separate suit in which matters in issue are the same matters in issue in the withdrawn suit.

15. The 1st respondent has also urged that according to article 157 (6) of the Constitution, the exercise of powers of prosecution discretionary. It is in exercise of his discretionary powers that he directed that the dispute which is the subject of these proceedings be disposed of through alternative dispute resolution mechanism in the spirit of Article 159 of the Constitution.

16. It is also contended on behalf of 1st respondent that public policy demands that only deserving cases ought to be disposed of by the prosecution. Under Article 157 (11) of the Constitution, the 1st respondent is enjoined to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process in the discharge of his mandate. And in Article 157 (10) as read with section 6 of the Office of the Director of Public Prosecution Act, 2013, the independence of the 1st respondent is protected to the extent he is not under the direction or control of any one while exercising the powers of prosecution.

17. This application, it is pleaded, is an invitation to this Honourable Court to interfere with the respondent’s exercise of its constitutional mandate without proper factual or legal basis. The decision to have the applicant’s case resolved through alternative dispute resolution mechanism was made in the public interest and in line with the National Prosecution Policy, 2015 and the Prosecutions Guidelines, 2019. In any event, it is a decision consistent with Article 159 (2) (c) of the Constitution which recognises the use of alternative forms of dispute resolution mechanisms.

18. The 1st respondent has also averred that in taking the decision he did, he balanced the rights of the victim, the suspect and the community to ensure that justice is promoted and upheld. Further, review of prosecutorial decisions can be done at any time so long as the same is done within the confines of the law.

19. Finally, the 1st respondent has contended that the applicant has failed to demonstrate that the 1st respondent acted unlawfully, illegally or his decision not to prosecute was marred with procedural impropriety.

20. According to the 1st respondent, the decision not to prosecute was made intra vires the Constitution and there is no evidence in the decision of breach of any of the rules of natural justice or an error apparent on the face of record. In the circumstances an order of certiorari cannot issue.

21. According to the 1st respondent, judicial intervention should be limited to acts that are manifestly in breach of the law or where the court is satisfied that the decision-maker reached a wrong decision influenced by other considerations other than the law, evidence and the duty to serve the interests of justice.

22. I have considered the respective parties’ submissions. For the applicant, the submissions are largely a repeat of the facts sworn to verify the facts relied upon and, as far as the 1st respondent is concerned, the submissions filed on his behalf, more or less rehash the grounds of objection.

23. The entry point of a judicial review court in an application such as this is always the grounds upon which the relief is sought. Without the grounds, the application would have no foundation upon which to stand.To start with, Order 53 Rule 1(2) of the Civil Procedure Rules states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).

24. And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.

25. The question that ordinarily follows is what are these grounds?

26. The grounds for judicial review were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

27. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and may, in exercise of its discretion, grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis.

28. Turning back to the applicant’s application, a large proportion of what has been presented as grounds upon which relief is sought are largely the depositions in the affidavit sworn to verify the facts relied upon. It is only in paragraph 38 of the statutory statement in which the applicant states as follows:Accordingly, the respondents(sic) decisions as communicated by the letters of 1. 03. 22and 6. 04. 2022 to force/direct/purportedly advise the applicant to settle the matter through ADR without his input was illegal, arbitrary, ultra vires, against legitimate expectation, for improper motives and marred with procedural improprieties and therefore only (sic) for quashing.

29. Few other paragraphs in the statement under the head of “the grounds upon which the relief is sought” cite several provisions of the Constitution, the Fair Administrative Action Act No. 4 of 2015 and the Victims Protection Act, No. 17 of 2014 as the law which the 1st respondent has breached in his decision not to prosecute. The other law cited in this context is the office of the director of Public Prosecution Act, No. 2 of 2013.

30. Based on these pleadings, the assumption is that the grounds upon which the application seeks judicial review relief are the grounds of illegality and procedural impropriety as defined by Lord Diplock in the Council of Civil Service Unions versus Minister for the Civil Service case (supra).

31. But the court is not supposed to assume or speculate the grounds for judicial review in any particular application. The applicant is enjoined to state categorically the ground or grounds upon which he seeks a judicial review court to intervene and impeach the administrative action in issue.

32. While reiterating the importance of stating grounds for judicial review in concise and precise terms Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34. 1 states as follows:The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”

33. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point made is that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.

34. To the extent that the applicant has contended that various provisions of the law have been breached and that the 1st respondent’s decision is “illegal, arbitrary, ultra vires, against legitimate expectation, and marred with procedural improprieties” I am prepared to give him the benefit of doubt and proceed on the assumption that his application is based on the grounds of illegality and procedural impropriety.

35. At the heart of the applicant’s grievances are two letters which his application is specific that they are letters by the 1st and 2nd respondents respectively dated 1March 2022 and 6 April 2022. The letter of 1 March 2022 is addressed to the County Criminal Investigations Officer of Kiambu County. It reads as follows:Inquiry No. 14/2021Suspect: Avin GalotOffence: Grevious harm contrary to section 234 of the Penal CodeReference is made to the above and your letter dated 17th January, 2022 bearing reference no. CRI/6/7/VOLIII/317 forwarding the duplicate inquiry files for our perusal and advice.Upon perusal of the file and the evidence adduced therein, we concur with the investigation officer’s recommendation that this is a proper case for diversion through alternative dispute resolution mechanisms. The suspects in this case are relatives and the best way to solve their disputes is through ADR.This is therefore direct you to advise the suspects and their families to settle their family differences within the family without resort to the criminal justice system.The duplicate inquiry files are attached herein.SignedRenson IngongaAg. Senior Assisatnt Director Of Public ProsecutionsFor: Director Of Public Prosecutions”

36. The letter of 6 April 2022 is addressed to the applicant through his advocates and it reads as follows:Avin GalotThroGeorge Gilber AdvocatesUchumi House, Aga Khan Walk, 8Th Floor, Suite88Po.box 7351-00200NairobiRe: Inquiry No. 14/2021Subject-pravin Galot offence grievous harm contrary to section 234 of the Penal CodeRe: Inquiry No. 15/2021-Avin GalotSubject-Avin Galot offence grievous harm contraryto section 234 of the Penal CodeKindly be informed that, following the above inquiries which were forwarded to the office of Director of Public Prosecutions for perusal and advice.Since then, on 1st March, 2022 vide their letter Ref: ODPP/KBU/CR/7/22(43) their office received the advice sort (sic) at the advice reads that you should seek alternative dispute resolution (ADR) to sort out the family differences without resort to criminal justice system.Kindly be informed of the same. See the attached letter from Ref: ODPP/KBU/CR/7/22(43) dated 1st March 2022. Signed(Stephen Wainaina) CIOCS Kiambu

37. The question that this court is being asked to answer is whether these two letters are vitiated by the grounds of illegality and procedural impropriety.

38. Under article 157 (6) (a) of the Constitution, the 1st respondent has the discretion to institute and undertake criminal proceedings against any person. This provision of the Constitution reads as follows:(6)The Director of Public Prosecutions 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;

39. In the instant case, upon considering the evidence before him, the 1st respondent came to the conclusion that the applicant’s complaint against his kin was not worth prosecuting. It was his view that this was a family dispute that could be resolved outside court. And this is not surprising because, in judicial review proceedings no. 170 of 2021 an order was made for the applicant and interested party to settle the matter out of court.

40. The order granted by Justice Ndungu on 20 April 2022 stated in part:1. That the notice of motion dated 12. 11. 2021 (the substantive motion judicial review application) is marked as withdrawn.2. That on the basis of the letters dated 10. 3.2022 by the 2nd respondent and the one dated 1. 3.2022 by the 1st respondent which confirm that the dispute herein being a family matter shall be resolved through ADR mechanisms.3. That in the circumstances of this case, each party is to bear its own costs.”

41. The interested party in this case was the applicant in application no. 170 of 2021 while the applicant in this suit was the interested party in the former suit. The interested party was seeking to stop his prosecution as a result of the complaint to the police by the applicant. The complaint arose out of the same transaction in which the applicant in the present suit made his own complaint of assault against the interested party.

42In the wake of the order of the court made on 20 April 2022, there is some merit in the 1st respondent’s argument that this suit is an abuse of the process of the court. It is raising the same issues that were before court in the former suit and it is, more or less, between the same parties except that the applicant and the interested party have reversed roles.

43. But equally pertinent if not more pertinent to this Honourable Court is not the question whether the 1st respondent’s decision was right or wrong. This court is concerned more with the process and, in particular, whether the court can interfere with the discretion with which the 1st respondent is clothed under Article 157 (6)(a) of the Constitution and quash his decision not to prosecute and, in the same breath, direct him to prosecute.

44. It is trite that a judicial review court will be hesitant to intervene and interfere with the exercise of the discretion unless it can be demonstrated that the discretion was exercised whimsically or capriciously rather than judiciously. The court emphasised this point in Chief Constable of the North West Police vs Evans (supra) where it was stated as follows:The remedy by way of judicial review under RSC…is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and …administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner…and not to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.” (Per Lord Hailsham at 1160E-H).”

45. Similar observations were made by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan BC [1976] 3 All ER 665 at 695, [1977] AC 1014 at 1064 where he noted:The very concept of administrative discretion involves a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred.”

46. And to the specific question whether the order of mandamus can issue where a statute leaves it to the discretion of a public officer on the performance of any particular duty, Halsbury’s Law Of England, 4th Edition Volume 1 says that it is not available. At page 111 paragraph 89, it states as follows:The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.’(emphasis added).

47. Courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness in the purported exercise of the power be such as to amount to an abuse of the power. See Preston v IRC [1985] 2 All ER 327, [1985] AC 835, per Lord Templeman.

48. I am not satisfied that in coming to the decision not to prosecute, the 1st respondent abused his power. No satisfactory evidence has been laid before the court to demonstrate that this was the case. There is no evidence that in coming to the decision that he did, the 1st respondent considered matters which he ought not to have considered or that he did not consider matters that he ought to have considered.

49. Most importantly, there is no satisfactory material before court that goes to demonstrate that the 1st respondent breached Article 157 (11) of the Constitution in taking the decision not to prosecute, in the sense that he did not have regard to the public interest, the interest of the administration of justice or that, in taking the decision he abused to the legal process.

50. The upshot is that there is no merit in the applicant’s application. It is hereby dismissed. Considering that the dispute arises out of a family feud, I make no orders as to costs. It is so ordered.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 1 DECEMBER 2023. NGAAH JAIRUSJUDGE