[2022] KEHC 13603 (KLR)

Republic v Director of Public Prosecution; Lihanda & 2 others (Exparte) (Judicial Review 5 of 2021) [2022] KEHC 13603 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13603 (KLR)

Republic of Kenya

In the High Court at Kakamega

Judicial Review 5 of 2021

WM Musyoka, J

October 7, 2022

Between

Republic

Applicant

and

Director of Public Prosecutions

Respondent

and

Patrick Lihanda

Exparte

Dorothy Oresia Baranga

Exparte

Joseph Choge

Exparte

Judgment

1. The substantive judicial review motion is dated August 3, 2021. It is at the instance of the three ex parte applicants, who seekcertiorari and prohibition, to have the criminal proceedings in Vihiga PMCCRC No E723 of 2021 against them quashed and to prohibit further proceedings on the same. There is also a prayer for a declaration.

2. The grounds upon which the motion is grounded are set out on the face of the application. It alleged that the charge violated article 157(9), (10) and (11) of the Constitution, the bill of rights, article 3 and the Office of The Director of Public Prosecutions Act; that there were similar matters in Kakamega HC petitions Nos 6 and 8 of 2018 (consolidated) involving the same subject-matter and the same parties; that the ex parte applicants were not granted opportunity to respond to the complaint, to tell their version of the story, neither did the respondent review the matter; and that the ex parte applicants would be gravely prejudiced.

3. The affidavit in support is sworn by Patrick Lihanda, the 1stex parte applicant. He avers that they have been charges in Vihiga SPCCRC Nos E73 and E2723 of 2021, of offences relating to theft of Kshs 800, 000. 00 and Kshs3, 000, 000. 00, the property of the Pentecostal Assemblies of God (PAG) Church Kenya, and that they were out on bond. He avers that there are several suits pending in other courts over the same amounts of money. He refers to Kakamega HC petitions Nos 6 and 8 of 2018 (consolidated) and Kisumu CMCCC No Kakamega HC petitions Nos 6 and 8 of 2018 (consolidated)543 of 2018. He argues that the decision by the respondent to prosecute offended the principles of sub judice and exhaustion of remedies, and was made capriciously and in bad faith. He states that their rights to be heard were violated in that they were not interviewed, nor their statements taken before the charges were preferred. He complains that after the report was made, the matter was investigated and concluded without any reference to them. He avers that the sum ofKshs 3, 000, 000. 00 was utilized for the purposes of the church, and with proper authority. Regarding the sum of Kshs 800, 000. 00, he refers to an affidavit sworn by Anthony Kenyakisa, who admitted receiving the money, and the same was banked into an account of the church pension fund.

4. The respondent has responded to the motion, vide an affidavit sworn by PC Kipng’etich Rono. He details how he was instructed to take over conduct of a criminal investigation into the handling of church funds by the ex parteapplicants, and formed the opinion that a theft had been committed, hence he charged the ex parte applicants. He expresses that he was aware of the civil cases pending over related matters, but he avers that their pendency should not be a bar to the prosecution.

5. Does the prosecution offend the rule relating tosub judice? Sub judice is a principle in civil law. it is provided for under section 6 of the Civil Procedure Act, cap 21, Laws of Kenya. It applies exclusively to proceedings of a civil nature, to prevent parallel suits between the same parties on the same or similar facts and issues. It does not operate to prevent initiation of criminal proceedings involving the same parties as in the civil matter and over the same facts or issues.

6. I subsequently allowed joinder of a number of parties, who are, principally the complainants in the criminal matter. I directed that the parties file written submissions. All the sides have filed written submissions, which I have read through and noted the arguments made.

7. There is no provision in the Criminal Procedure Code, cap 75, Laws of Kenya, providing for the sub judice rule, so as to prevent criminal proceedings being initiated where prior civil proceedings are pending. The Criminal Procedure Code does, in fact, carry a provision which runs counter to thesub judice rule, by stating that the pendency of any civil proceedings, where the matters in controversy are the same or similar to those in pending criminal proceedings is not a ground for stay, prohibition or delay of the criminal proceedings. The equivalent is the principle against double jeopardy, which is limited to criminal proceedings

8. The provision referred to above is in section 193A of the Criminal Procedure Code, it states:“Notwithstanding the provisions of any other written law, the fact that any matter in issue in criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”

9. The judicial review proceedings herein appear to be founded principally on the fact of the pendency of the criminal proceedings, where the issues in controversy are the same or similar to the issues in the pending or prior civil proceedings. Pendency of civil proceedings does not prevent the respondent from initiating criminal proceedings over the same matter. After the all the parties in the two sets of proceedings are different. The civil proceedings are between individuals and entities, while the criminal prosecution is at the behest of the republic against individuals or entities. The remedies sought are different. Hence, there should be no reason to treat the causes as being the same or similar. One turns on what are really private law matters, while the other is under public law.

10. The principle of exhaustion of remedies does not apply in this case. It is of application in cases where alternative processes, like arbitration, conciliation, mediation and other alternative modes of dispute resolution are provided for, either under some statute or contract or agreement. The civil process is not an alternative to the criminal process, so one cannot say that you have to exhaust one before you resort to the other. Both can run parallel to each other.

11. On violation of article 157(9), (10) and (11) of the Constitution, the bill of rights, article 3 and the Office of the Director of Public Prosecutions Act article 157(9), (10) and (11) of the Constitution, the bill of rights, article 3 and the Office of the Director of Public Prosecutions Act. I have very closely perused the affidavit sworn in support of the motion, and I have not seen any averment on the alleged violation. It has not been demonstrated that the respondent acted in excess of his powers or did not act independently or impartially or abused his powers. The ex parte applicants’ case is, essentially, that the criminal proceedings are founded on similar facts with the civil cases, and, for that reason, the respondent should not prosecute.

12. On whether the ex parteapplicants ought to have been given a chance to respond to the complaint filed against them before it was presented in court, or should have been involved in the investigations or that they were not heard, nothing has been placed before me, which points to a requirement, under the criminal process, that the respondent must do any of those things before they charge and prosecute a suspect. However, good sense would seem to require that the investigate places the accusations against the suspect or confronts him with the same, so as to hear what he has to say in response. It is possible that such response could be reasonable, and obviate the need to prosecute, if it emerges that that there was reasonable explanation or defence, for it would make no sense to push through with a prosecution that would fail in the end, should the suspects have a reasonable excuse for or defence. However, the failure to confront suspects with the allegations does not in any way render the charges unlawful. In any case, the suspects would have opportunity at the trial to be heard on their defence.

13. On the face of it, there is nothing untoward about the criminal charges brought by the respondent. It was within his powers to initiate the same, despite the pendency of the civil matters, and there is no evidence that he exceeded his powers or abused them in any way or exercised powers that he did not have. Consequently, I do not find basis upon which I can make orders to quash or prohibit the criminal proceedings.

14. There is a prayer for a declaration. That is not available under order 53, for the prerogative orders provided for under that rule are limited to certiorari, prohibition and mandamus. I shall not tax my mind in attempting to establish whether or not I should make the declaration sought.

15. Theex parte applicants also seek stay of the proceedings before the criminal courts pending the hearing and determination of this motion. Stay should only be sought at the stage of seeking leave. When leave was being sought herein, the criminal cases had not been initiated. They were commenced after grant of leave, and that prayer is superfluous. When I granted leave, I was specific that the same was not to operate as stay of the criminal proceedings for no criminal proceedings had not been initiated. So, the consideration of stay of proceedings should not arise at all. For avoidance of doubt, order 53 rule 4 says:“The grant of leave under this rule to apply for an order of prohibition or certiorarishall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise.”

16. The issue of stay of the criminal proceedings is an invitation to consider other procedural issues. I say so because when leave was obtained, the criminal cases cited in the motion dated August 3, 2021, were not in existence, and the leave sought and obtained was not with respect to quashing the criminal cases or prohibiting them, but rather to quash the decision of the respondent to charge the ex parte applicants. The motion dated August 3, 2021 is not attuned to the leave granted on July 16, 2021, and it is not mounted on the basis of that leave. In other words, there was no leave for grant of the orders sought in the said motion. In any case, the motion the quashing and prohibition of court proceedings, yet the court whose proceedings are sought to be quashed or prohibited has not been made a party to the judicial review.

17. The order on the leave granted on July 16, 2021, as per the extracted order dated July 19, 2021, says as follows:1. Thatleave is hereby granted to the applicant to apply for judicial review orders of prohibition and certiorari to quash the decision of the Director of Public Prosecution to charge the applicants with the offences of stealing Kshs 800, 000/= and Kshs 2, 500, 000. 00/=, being the property of PAG Church Kenya, when the subject matte matter is still active before the court in petition No 6 & 7 of 2018 as consolidated with several other suits.2. Thatthe substantive motion to be filed with 21 days.3. Thatthere are no proceedings set at the Vihiga Magistrate’s Court arising from the said decision and therefore there is nothing to stay.”

18. Using the leave granted on July 16, 2021, theex parte applicants brought the motion, dated August 3, 2021, which seeks the following orders:1. Stay of proceedingsin SPMCCC No 723 of in Vihiga pending determination of this judicial review.2. An order of certioraraito remove into the High Court and to quash the entire criminal case and the entire proceedings in Vihiga Magistrate’s Court criminal case No E723 of 2021 Republic v Patrick Lihanda & others.An order of prohibtionis hereby issued to prohibiting the respondent from prosecuting or taking any further proceedings whatsoever in Vihiga Magistrate’s Court Criminal Case No E723 of 2021 Republic v Patrick Lihanda.3. A declarationto the effect that the action to charge without applicants4. Costs of this application be provided for.”

19. It is plainly clear that leave was not granted for the orders sought in the motion dated August 3, 2021. It, therefore, means that the said orders are sought without leave, which makes the motion incompetent. An applicant for judicial review orders is bound strictly by the leave granted, he cannot possibly seek any order beyond what is stated in the order for leave. He can only apply for the prerogatory orders the subject of the leave obtained. No departure is allowed. Where the circumstances change, and a need arises to apply for orders other than those for which leave had been obtained, then the ex parte applicant will have no option but to initiate fresh proceedings for leave, or obtain leave to amend his papers as indicated here below.

20. Moreover, the motion for substantive relief, filed based on the leave granted, should not be ground ed on any new affidavit or other evidence, for the case for the ex parte applicant is founded on the statutory statement and the affidavits verifying it, as required by order 53 rule 1(2). The substantive motion, to be filed after the leave is obtained, is provided for under order 53 rule 3(1). There is no requirement under order 53 rule 3(1) that the said motion ought to be supported by or filed together with any supporting affidavit. Rule 3(1) should be read together with rule 4(1), which gives a pointer on the evidence upon which the substantive motion is to be founded. Rule 4(1) requires that the statement and affidavits filed at the leave stage should be served together with the application filed under rule 3(1). That means that no fresh affidavits are to be filed with the application to be filed under rule 3(1), for that application is founded on the same material as the application filed under rule 1(2). In other words, the foundation of the application under rule 1(2) and that filed under rule 3(1) should be one, the statement and the affidavits filed under rule 3(1). The ex parte applicant cannot state one case in the application filed under rule 1(2) and another in that filed under rule 3(1).

21. For avoidance of doubt, order 53 rules 1(2), 3(1) and 4(1) state as follows:“1(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.”“3(1).When leave has been granted to apply for an order of mandamus, prohibition and certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting the leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.”“4(1).Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement.”

22. It should be clear therefore that the substantive motion should not be accompanied by any new material, other than that filed at the leave stage, and the said motion should not be founded on any new grounds and for any new relief other that set out in the statement filed at the leave stage. Anything outside that would render the process fatally defective.

23. Order 53 does allow amendment of the statement. It also allows the filing of further affidavits. However, the filing of further affidavits is dependent only on new matters being raised in the affidavits filed in response to the substantive motion by the other parties. In other words, the further affidavit can only be in response to any new matters raised in the affidavits filed in reply to the application by the other parties. That is the purport of order 53 rule 4(2), which states as follows:“The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application …”

24. The substantive motion herein, dated August 3, 2021, seeks prayers that are different from those in the statement, the basis of which leave was granted. Secondly, the court did not grant leave for amendment of the statement to introduce the prayers or reliefs sought in the motion of August 3, 2021. Thirdly, the applicant ought not file any other affidavit after leave has been granted, unless with the leave of court. The affidavit, sworn on August 3, 2021, purported to be in support of the motion, ought not have been filed in the first place, as it is not provided for under rule 3(1). It was filed without leave. And it introduces new material, which was not in the statement and the affidavit that verified it. The said affidavit is not a response to any of the affidavits filed by the other parties. It also annexes material that was not in the initial affidavit, and some of which did not exist as at July 16, 2021.

25. I believe I have said enough to demonstrate that no orders ought to be granted on the basis of the motion dated August 3, 2021. It was filed in abuse of process. That application has no merits. I shall accordingly dismiss the same, with costs. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7th DAY OF OCTOBER 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Dr. Oloo, instructed by Oloo & Oloo, Advocates for the ex parte applicant.Mr. Chigiti, instructed by the Director of Public Prosecutions, for the respondent.Mr. Oginga, instructed by Ochieng Oginga & Company, Advocates for the 1st interested party.Mr. Mokua, instructed by Zablon Mokua & Company, Advocates for the 2nd interested party.