[2023] KEHC 23733 (KLR)

Republic v Director of Public Prosecutions & 2 others; Ayoo (Exparte Applicant) (Judicial Review Miscellaneous Application E045 of 2022) [2023] KEHC 23733 (KLR) (Judicial Review) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23733 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E045 of 2022

JM Chigiti, J

October 16, 2023

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Director of Criminal Investigations

2nd Respondent

Chief Magistrates, Milimani Law Courts

3rd Respondent

and

Gilbert Oketch Ayoo

Exparte Applicant

The Office of the Director of Public Prosecutions is required to furnish a suspect with information including considerations and factors considered in arriving at a decision to charge

The applicant challenged the respondents’ decision and action to summon and charge him for being unconstitutional and an infringement of his fundamental rights. The court highlighted factors to consider in making the decision to charge a person suspected of committing an offence. The court held that the Office of the Director of Public Prosecutions was under a duty to furnish a suspect with all the information including the considerations and factors that the prosecution considered in arriving at a decision to charge.

Reported by Kakai Toili

Constitutional Law– Director of Public Prosecutions (DPP) – role of the DPP – institution of charges against persons suspected to have committed a criminal offence - factors to consider in making the decision to charge - whether the fostering good diplomatic relations was a consideration in deciding whether or not to charge an accused person - whether the DPP was required to furnish a suspect with the considerations and factors that the prosecution considered in arriving at a decision to charge - when could a court interfere with the DPP’s discretion to prosecute criminal offences – Constitution of Kenya, 2010, articles 1, 50 and 157; Office of the Director of Public Prosecutions Act, Cap 6B, section 4; Privileges and Immunities Act, Cap 179, section 4; Convention the Vienna Convention on Diplomatic Relations, 1961, article 22.

Brief facts The applicant argued that he undertook survey work and presented the computation file to the Director of Surveys who upon checking and due diligence authorized the production of survey map and deed plan for the property. He was later called to the Directorate of Criminal Investigations, Muthaiga to explain how he undertook the survey work, which he explained to their satisfaction and was let go. Later the applicant received summons that he was required to plead to charges of conspiracy to commit a felony. He honoured the summons but did not take plea and filed the application against the respondents for the wrong decision to summon and prosecute him.According to the applicant the respondents’ decision and action to summon and charge him were unprocedural, unreasonable, illegal, unconstitutional and an infringement of his fundamental rights, as the applicant complied with all regulatory requirements of the survey work done. The applicant sought among other orders; an order of certiorari to quash the decision of the 1st and 2nd respondents to charge and prosecute him.

Issues

What were the factors to consider when making the decision to charge a person suspected of committing an offence? Whether the fostering good diplomatic relations was a consideration in deciding whether or not to charge an accused person.

Whether the Director of Public Prosecutions was required to furnish a suspect with the considerations and factors that the prosecution considered in arriving at a decision to charge.

When could a court interfere with the Director of Public Prosecutions discretion to prosecute criminal offences?

Held

Clause 3 of the Guidelines on the Decision to Charge, 2019 gave the prosecution’s counsel’s the discretionary power to determine whether evidence availed by an investigator or investigative agencies was sufficient to warrant the institution of prosecution proceedings against an accused person in a court of law. The decision maker must exercise due care in making the decision to charge. As the decision was being made, the prosecutor must always remember that there was a need to balance between the rights of an accused person and the rights of victims. It was the duty of the prosecutor to ensure that Fair Administrative Action was invoked during the decision, making process.

According to the Guidelines on the Decision to Charge, 2019, the standards required when making the decision to charge was whether there was a reasonable prospect of conviction. The prosecutor must consider key evidence and certain minimum requirements of a file which would apply depending on which test (the two-stage test or the threshold test) was applied.

The decision-making process was a very critical phase in the prosecution journey. The decision must disclose what went through the mind of the decision maker in arriving at the conclusion. In order for such a decision to be seen to be a fair decision, it must fall within the framework of the right to fair administrative action as guaranteed under the Constitution in the eyes of the victim and the accused person.

It was not for the court to ascertain, whether or not the accused persons, or the applicant was innocent or guilty. The applicant was presumed innocent until proven guilty under article 50 of the Constitution. The judicial review court was interested and limited to the question of whether or not the procedure, that was adopted in arriving at the impugned decision to charge the applicant was illegal, irregular or tainted with procedural impropriety.

Somebody dropped the ball or shifted the goalposts in the middle of the prosecution match to the detriment of the applicant. The fact that the applicant was initially lined up as a prosecution witness generated a legitimate expectation in the mind of the applicant. The court just like the applicant did not understand, or know what made the ODPP to change the decision to change the status of the applicant from the status of a witness into that of an accused person. The prosecution did not make any efforts to explain.

The prosecution had initially considered the available evidence, the accessibility, the credibility and veracity of the evidence, the witnesses inter alia when it concluded that the applicant was a good witness. Probably the accused applicant understood the reasons informing that. Since the applicant had challenged the decision to charge, the court would have expected the prosecution to bring evidence to the court to explain or justify the change in the decision to convert the applicant from a witness to an accused person. That would have helped the applicant and the court to appreciate the decision. That would have promoted the right to access to information under article 35 and the right to fair hearing as guaranteed under article 50 of the Constitution.

Clause 3. 1.1 of the Guidelines on the Decision to Charge stipulated that the decision to charge or not to charge required an objective and independent analysis of the case. That sat well with the Fair Administrative Action Act. When making decision to charge, the prosecutors must be objective and must not let personal views based on ethnic or national origin, gender, disability, age, religion or belief, sexual orientation, status, or gender identity of a suspect, accused person, victim or any witness influence their decision. They must at all times remain apolitical.

In all cases prosecutors must complete the Decision to Charge Form ODPP 1A and file it in the relevant prosecution file. That form was not availed to the applicant. The decision to charge the applicant was informed through a fundamental procedural impropriety. The decision to charge the applicant was arrived at in a manner that offended the rule of law. Given that everybody had a right to access to information, a constitutional body like the Office of the Director of Public Prosecutions (the ODPP) while exercising, it’s powers under article 157 of the Constitution must be at the forefront in, ensuring that suspects of crime were informed in very clear terms how the decision to charge was arrived at.

The ODPP was under a duty to furnish a suspect with all the information including the considerations and factors that the prosecution considered in arriving at a decision to charge. The importance of the disclosure obligation that was always owed to an accused person could not be gainsaid. The ODPP would not suffer any prejudice if that kind of information was disclosed to a suspect or an accused person immediately the decision to charge was made. The disclosure or the discovery would go a long way in promoting, Kenya’s national values and the principles of governance in so far as the criminal justice system was concerned. In any event, the Decision to Charge Guidelines, 2019, was a public document that was not supposed to benefit only the ODPP ‘s office, but all citizens.

A time had come when more awareness creation programmes were rolled out to inform Kenyans and in particular suspects upon arrest that they had a right to access to the Decision to Charge Guidelines, 2019. That would go a long way in promoting the tenets of the social transformation through access to justice. The decision to charge marked a point in the prosecution journey, when a suspect, or an accused person was a very vulnerable member of the society. The decision to charge form ODPP 1A must be availed to an accused person immediately and without delay, the minute the decision to charge was made.

The requirement that in all cases prosecutors must complete the decision to charge form ODPP 1A was well intended. That form must at all times be accessible to the accused persons. An early disclosure and discovery would help open up early alternative dispute resolution possibilities at the decision to charge phase and reduce the number of cases in the criminal court. It would speak to an open-door approach to access to justice and encourage early diversion and reconciliation and alternative justice redress mechanisms.

The well-intended guidelines and the decision to charge in Form ODPP 1 could not be said to be in conformity with section 6 of the Fair Administrative Actions Act if all that the ODPP did was to complete the decision to charge form ODPP 1A before shuttling the accused person to court.

Once the decision to charge was made, then the status of the potential accused person changed. He was now a vulnerable person who was materially or adversely affected by the administrative action in the decision to charge and he had a right to be supplied with such information as may be necessary to facilitate his or her application for a review within the space of the right to fair hearing under article 50 of the Constitution.

The Guidelines on the Decision to Charge, 2019, must be aligned to the call for an early disclosure of information contained in the decision to the affected person if the same was to be counted as a tool that would form part of the social transformation through access to justice dream. The right to fair hearing would not be complete without that kind of dialogue. The applicant had proven that there was a serious level of procedural impropriety.

Whereas the court fully subscribed to the importance of Kenya’s international duties as set out in section 4 of the Privileges and Immunities Act, Cap 179 of the Laws of Kenya and article 22 the Convention the Vienna Convention on Diplomatic Relations, 1961, the court must uphold the national values and principles of governance as set out under article 10 of the Constitution and in particular democracy, human rights and the rule of law.

The applicants right to fair administrative action could not be compromised nor sacrificed at the alter of good diplomatic relations and the preservation of the good image of the Republic of Kenya as a member of the comity of nations. The court could only take away the rights of the applicant through the structure of article 24 of the Constitution which the respondents had not raised. That would accord with section 4 of the Office of the Director of Public Prosecutions Act, No. 2 of 2013 which provided in fulfilling its mandate, the ODPP shall be guided by the Constitution and the fundamental principles.

Clause 3 of the Guidelines on the Decision to Charge did not set the spirit of fostering good diplomatic relations and also for the purposes of preserving the good image of the Republic of Kenya as a member of the comity of nations as one of the considerations that the ODPP was supposed to invoke while deciding whether or not to charge an accused person. Even if it was a consideration, the court would not hesitate to declare the same unconstitutional and against article 1 of the Constitution in an appropriate suit.

Article 1 of the Constitution stipulated the sovereignty power belonged to the people. Kenyans’ rights under the Bill of Rights must at all times remain supreme and the need to preserve the good image of the Republic of Kenya as a member of the comity of nations must at all times remain subservient to the national values especially when dealing with matters that could take away the liberty of a Kenyan. To do otherwise would offend the fundamental principle of protection of the sovereignty of the people.

Whereas the discretion given to the ODPP to prosecute criminal offences was not to be lightly interfered with, that discretion must be properly exercised and where the court found that the discretion was being abused or was being used to achieve some collateral purposes which were not geared towards the vindication of the commission of a criminal offence, the court would not hesitate to bring such proceedings to a halt.

The prosecutorial regime had changed and the discretion given to the ODPP was not absolute but had be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Where it was alleged that those standards had not been adhered to, it was the duty of the court to interrogate the allegations and make a determination thereon. The ODPP acted illegally and with procedural impropriety and the decision to charge was illegal.

Application partly allowed.

Orders

An order of certiorari was issued removing into the court and quashing the decision of the 1st and 2nd respondents to charge and prosecute the applicant in Milimani Chief Magistrates Court Criminal Case No. E328 of 2022 pending the hearing and determination of ELC No.394 of 2021 before the Employment and Labour Relations Court.

A declaration was issued that the charges of conspiracy to defraud the complainant in Milimani Chief Magistrates Court Criminal Case Number E328 of 2022 were null and void as they were a breach, infringement, violation and denial of the applicants' fundamental rights, to equality before the law, equal protection, equal benefit of law as enshrined in article 27(l) and 50 of the Constitution.

A declaration was issued dismissing criminal case No. E328 of 2022 against the 3rd accused.

Costs to the applicant.

Citations Cases Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated); [2023] KESC 40 (KLR)) — Applied

Jipe Kindergatten Limited v City Council of Nairobi (Miscellaneous Civil Appeal 63 of 2011; [2012] KEHC 3268 (KLR)) — Mentioned

Lt. Col Peter Ngari Kagume & 7 Others v Attorney General (Constitutional Application 128 of 2006; [2009] KEHC 4179 (KLR)) — Mentioned

Murungaru v Kenya Anti-Corruption Commission & another ([2006] 1 KLR 77) — Applied

Nakusa v. Tororei & 2 Others (HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565) — Applied

Republic v Director of Public Prosecutions & 3 others Ex-Parte Bedan Mwangi Nduati & another (Judicial Review 332 of 2014; [2015] KEHC 6048 (KLR)) — Applied

Republic v Water Services Regulatory Board and 3 Others Ex-parte Paul Mwangi Mwaniki (Miscellaneous Civil Case 369 of 2016; [2017] KEHC 2098 (KLR)) — Applied

Taib A. Taib v. The Minister for Local Government & Others Mombasa (? 158 of 2006; [2006] KEHC 3166 (KLR)) — Applied

Trusted Society of Human Rights Alliance v Matemo & 5 others (Civil Application 29 of 2014; [2014] KESC 6 (KLR); [2014] KLR-SCK; [2014] 3 KLR 368) — Applied

Wabwire, Christian Juma v Attorney General (Petition 50 of 2013; [2019] KEHC 1049 (KLR)) — Applied

Council of Civil Service Unions v Minister for the Civil Service ([1985] AC 374,) — Applied

R (H). v Ashworth Special Hospital Authority ((2003) 1 WLR 127) — Applied

Statutes Civil Procedure Rules (cap 21 Sub Leg) — order 53 Rule 1(4) — Cited

Constitution of Kenya, 2010 — article 1, 10, 24, 27(1); 35; 40; 50; 157; 244; 245(1)(b) & (4); Chapter IV — Cited

Constitution of Kenya, repealed (1963 Constitution) — section 77(1); 79(9) — Cited

Court of Appeal Rules (cap 9 Sub Leg) — rule 5(2)(b) — Cited

Criminal Procedure Code (cap 75) — section 193A — Cited

Evidence Act (cap 80) — section 107 — Cited

Fair Administrative Action Act (cap 7L) — section 2, 4, 6(1) — Cited

National Police Service Act (cap 84) — section 34, 35 — Cited

National Police Service Standing Orders (cap 84 Sub Leg) — Cited

Office of The Director of Public Prosecutions Act (cap 6B) — section 4 — Cited

Privileges And Immunities Act (cap 179) — section 4 — Cited

Survey Act (cap 299) — Cited

Texts M V Pylee (2012), Constitutions of the World

International Instruments Vienna Convection on Diplomatic Relations, 1961 — article 22

AdvocatesNone mentioned

Judgment

1. The applicant before me is dated May 9, 2023 wherein the applicant is seeking the following reliefs:1. That an order of certiorari to remove into this honourable court and quash the decision of the 1st and 2nd respondents to charge and prosecute the applicant in Milimani Chief Magistrates Court Criminal Case No. E328 of 2022 pending the hearing and determination of ELC No 394 OF 2021 before Justice Ogutu Mboya.2. That the order of prohibition does act as a stay order of the charges/proceedings against the applicant in Milimani Chief Magistrates Court Criminal Case Number E328 of 2022. 3.That a declaration that the charges of conspiracy to defraud the complainant in Milimani Chief Magistrates Court Criminal Case Number E328 of 2022 be found null and void as they are a breach, infringement, violation and denial of the applicants ‘fundamental rights, equality before the law, equal protection, equal benefit of law as enshrined in article 27(1) and 50 of the Constitution.4. That a declaration that the criminal case No E328 of 2022 be dismissed forth against the 3rd Accused as it amounts to a pawn meant to frustrate the ongoing civil case of ELC No 394 of 2021 before Justice Ogutu Mboya.5. That such other orders or directions as shall be considered fit by this honourable court to grant in the circumstances.6. That the costs of this application be provided for.

2. According to the applicant, an arguable or prima facie case has been judicially defined in the context of an application for injunction pending appeal as one that is not frivolous in Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & another [2006] eKLR (Omolo, Tunoi & O'Kubasu, JJA) (as they then were) where the Court of Appeal stated:“The principles which the court applies in applications of this nature are now old-hat - an applicant under rule 5(2)(b) must show an arguable appeal, i.e., an appeal which is not frivolous and next he must show that if the stay or the injunction sought is not granted, the intended appeal, if it were to be successful, would have been rendered nugatory by the refusal to grant the stay."

3. The applicant argues that he was contracted by one Neeraj Jayatilal Kalaiya to undertake a new grant survey for property known as L.R.No.1/1392(IRNo 235130) belong to the same. He undertook the survey work and presented the computation file to the Director of Surveys who upon checking and due diligence authorized the production of survey map and deed plan for the property. He was later called to the Directorate of Criminal Investigations, Muthaiga to explain how he undertook the survey work, which he explained to their satisfaction and was let go. Later he received summons through his mobile phone that he is required to plead to charges of conspiracy to commit a felony. He honoured the summons but did not take plea and filed this application against the respondents for the wrong decision to summon and prosecute him for the malicious, trumped-up charges which have violated his fundamental rights guaranteed under the Constitution 2010.

4. According to the applicant the respondents decision and action to summon and charge him are unprocedural, unreasonable, illegal, unconstitutional and an infringement of his fundamental rights under the law, as the applicant did comply with all regulatory requirements of the survey work done.

5. On the question of whether the said leave can operate as a stay he relies on order 53 rule 1(4) of the Civil Procedure Rules which provides as follows in this respect:“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, 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."

6. He relies on the case of R (H) v Ashworth Special Hospital Authority (2003) 1 WLR 127, where it was held that such a stay halts or suspends proceedings that are challenged by a claim for judicial review, and the purpose of a stay is to preserve the status quo pending the final determination of the claim for judicial review (substantive motion), and to ensure that a party who is eventually successful in his or her challenge is not denied the full benefit of the success.

7. Taib A Taib v The Minister for Local Government & others Mombasa HCMISCA. No 158 of 2006 expressed himself on this factor as follows:“... The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is however not appropriate to compel a public body to act...."

8. The respondents have just summoned the applicant to face charges in MCCR/E328 of 2022, however he has not taken plea. He prays that the orders (leave and stay) sought in the exparte chamber summons dated the 14th Apri1,2022 before this court be granted.

9. The applicant invites this court to find that the ex parte applicant has met the threshold of an arguable case, and is therefore entitled to the leave sought to commence judicial review proceedings against the respondents.

2nd and 3rd Respondents’ Case: 10. The respondents rely on the grounds of opposition dated July 10, 2023 and filed on July 14, 2023 and the submissions in opposition of the applicant’s notice of motion dated May 9, 2023.

11. The 2nd and 3rd respondents argue that article 245(1)(b) & (4) of the Constitution of Kenya, 2010 guarantees the 2nd respondent is functional independence in discharging its duties. Sections 34 and 35 of the National Police Service Act No.11A of 2011 outlines the functions of the 2nd respondent as inter alia; collection and provision of criminal intelligence, conducting investigations on serious crimes, detecting and preventing crime and apprehending offenders.

12. The Ministry of Foreign affairs on receipt of a complaint vide Note Verbale No 204/2021 dated October 13, 2021 from the Zambian High Commission over alleged fraudulent transfer or claim of the Zambian High Commission Land LR No 209/5450(LR No 1/9B) relayed the same to the 2nd respondent vide a Letter dated October 18, 2021.

13. The 2nd respondent commenced and progressed with investigations and upon establishing that the applicant and other persons had committed various criminal offences, recommended that he and co-accused be charged as contained in the charge sheet case No 328 of 2022.

14. In carrying out the above mentioned duties up to the point of recommending of charges on the applicant and co accused in Milimani Criminal Case No 328 of 2022, the 2nd respondent was bound by the constitutional values enunciated under articles 10 and 244 of the Constitution and the National Police Service Standing Orders, which values were observed in the investigations against the applicant.

15. They submit that the 2nd respondent’s actions on the aforesaid matter were carried out purely in discharge of its constitutional and statutory mandate and in strict conformity with the law and the process in reaching the decision was duly followed.

16. In this regard, the case of Republic v Water Services Regulatory Board and 3 others ex-parte Paul Mwangi Mwaniki [2017] eKLR the court reiterated the decision in Jipe Kindergatten Limited v City Council of Nairobi [2012] eKLR where it was stated that the court cannot issue orders of prohibition to prevent public bodies from performing their statutory functions and duties when the same are executed in accordance with the law.

17. The respondents argue that to grant orders sought will not only render the efforts of the respondents nugatory in the subject case but will also defeat the legal mandate of the Respondents and the interest of justice.

18. They argue that the application and supporting documents do not disclose and/or demonstrate any element of illegality, irrationality, impropriety or otherwise on the part of the respondents and he has failed to discharge the legal burden borne by the ex-parte applicant under section 107 of the Evidence Act cap 80.

19. They argue that the instant dispute borders on diplomatic relations between the Republic of Kenya and the Republic of Zambia by the fact that the land which legitimately belongs to the Zambian High Commission is being adversely claimed by fraudulent means.

20. By dint of section 4 of the Privileges and Immunities Act, cap 179 of the Laws of Kenya, Kenya has domesticated the Vienna Convention on Diplomatic Relations 1961. Under article 22 the Convention states;“...the premises of the mission shall be inviolable thus Kenya is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”

21. They argue that granting the sought orders directly counters the aforesaid obligation. Thus in the spirit of fostering good diplomatic relations but also preserving the good image of the Republic of Kenya as a member of the Comity of nations, it will be in public interest and justice that this honourable court declines grant of sought orders for the subject matter in Milimani Criminal Case No. E328 of 2022 to be substantively heard and determined.

22. On the issue whether the court should grant a declaratory order affirming the charges of conspiracy to defraud the complainant in Milimani Criminal Case No E328 of 2022 a violation of the ex parte applicant’s fundamental rights.

23. It is no doubt that the Constitution of Kenya,2010 under the Bill of Rights, Chapter IV went to elaborate length in comprehensively protecting the fundamental rights and freedoms of the citizenry.

24. The ex-parte applicant does not disclose even an iota of illegality, arbitrariness, professional impropriety, irrationality constituting violation of the ex-parte applicant’s rights and/or fundamental freedoms enshrined in the Constitution of Kenya 2010 on the part of the 2nd respondent’s said officer nor has the ex-parte applicant elucidated procedural impropriety and/or irregularity or otherwise on the part of the 3rd respondent.

25. In Christian Juma Wabwire v Attorney General [2019] eKLR the court relied on the decision of Lt Col Peter Ngari Kagume & 7 others v Attorney General Constitutional Application number 128 of 2006 where it was held that: -“23. It is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violation of rights could be true but the court is enjoined by law to go by evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence. The court is dead to speculation and imaginations and must be guided by evidence of probative value. When the court is faced with a scenario where one rival side alleges and the other side disputes and denies, the one alleging assumes the burden of proving the allegations.”

26. In Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others [eKLR] the court obligated the petitioner to demonstrate that each of the right alleged to be violated meets the standard. It thus follows that it is not enough to merely mention that a right or fundamental freedom has been violated. We submit that neither has the ex-parte applicant identified the rights violated nor demonstrated the acts constituting violations on the part of the respondents.

27. Article 24 of the Constitution of Kenya 2010 outlines principles under which certain fundamental rights and freedoms can be limited to include inter alia the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.

28. The acts by the ex-parte applicant to fraudulently facilitate acquisition of the subject Land LR NO 209/5450(LR NO 1/9B) by his core- accused in Milimani Criminal Case No 327 of 20 22 of land LR 1/9B by submitting false documents purporting them to be survey documents done by him is not only a criminal offence but also infringes on the rights of the complainant to peaceful and quiet occupation and ownership of the said property which is guaranteed under article 40 of the Constitution of Kenya, 2010.

29. Thus investigations, arrest and prosecution of the applicant for purpose of giving effect to article 40 of the Constitution cannot by any stretch of imagination be considered to be a violation of the applicant’s rights and freedom where the same are sanctions of the law and are conducted within the statutory and constitutional confines. It is also worth to note that the declaration orders are not within the purview of Judicial Review and such the same should not be granted.

30. Section 193A of the Criminal Procedure provides as hereunder; -“Notwithstanding the provisions of any other written law, the fact that any matter in issue in a criminal proceeding 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.”

31. They argue that the proceedings in Milimani Criminal Case No 327 of 2022 were commenced and reasonably undertaken in good faith and upon lawful and relevant grounds anchored upon the Constitution and Statute law. Thus the allegation that the same were intended to frustrate the ongoing proceedings in Civil Case ELC No 394 of 2021 is negated by dint of the above-stated section.

32. The applicant is not a party to Civil case ELC No 394 OF 2021 which his co-accused filed after being informed that the applicant was summoned by the 2nd respondent. In this regard, they submit that the only reasonable inference in the circumstance is that the present application is a scheme by the applicant and co-accused in Milimani Criminal Case No 327 of 2022 to delay and/or frustrate prosecution in the said matter. They also submit that from the foregoing the applicant’s application is malafide, an abuse of the process of the court but also an attempt to bend the course of justice.

33. They strongly believe that the applicant has failed to sufficiently demonstrate how prosecutions in Criminal Case No E327 stand to prejudice proceedings in Civil Case ELC No 394 of 2021, we urge this honorable court to dismiss the application in its entirety.

Analysis and determination Issues for determination: Whether the applicant has made out a case for the grant of the judicial review orders. 34. In Council of Civil Service Unions v Minister for the Civil Service(1985) AC 374,410; Lord Diplock spoke of these grounds 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] AC 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.”

35. Clause 3 of the guidelines on the Decision to Charge, 2019 gives the prosecution’s counsel’s the discretionary power to determine whether evidence availed by an investigator or investigative agencies is sufficient to warrant the institution of prosecution proceedings against an accused person in a court of law.

36. Due to its intrusive nature and potential adverse effect of the decision on the life, liberty or property of an accused person, it is one of the most critical decisions that is made by any prosecutor. The decision maker must exercise due care in making the decision to charge.

37. As the decision is being made, the prosecutor must always remember that there is a need to balance between the rights of an accused person and the rights of victims. It is the duty of the prosecutor to ensure that Fair Administrative Action is invoked during the decision, making process.

38. According to the Guidelines on the Decision to Charge, 2019, the standards required in making the decision to charge is whether there is a reasonable prospect of conviction. The prosecutor must consider key evidence and certain minimum requirements of a file which would apply depending on which test (the Two Stage Test or the Threshold Test) is applied.

39. The decision making process is a very critical phase in the prosecution journey. The decision must disclose what went through the mind of the decision maker in arriving at the conclusion. In order for such a decision to be seen to be a fair decision, it must fall within the framework of The right to fair administrative action as guaranteed under the Constitution in the eyes of the victim and the accused person.

40. In order to decide whether or not the office of the ODPP was guided by the guidelines during the decision making process I have gleaned at the following submissions as highlighted by the applicant:“The exparte applicant in this case is a registered licensed Surveyor mandated by Institute of Surveys and Director of Surveys Kenya to carry out survey works as per The Survey Regulations of 1994 (Sections 26-30) under the Survey Act, chapter 299 Laws of Kenya.The applicant carried out surveys for property known as LR No 1/1392(IR No 235130) previous number 1/9B belonging to one Neeraj Jayatilal Kalaiya.All approvals were obtained and the Director of Survey also confirmed the same through a letter dated 7thFebruary,2018 he wrote to the Director of Land Administration and Physical Planning which was responded to by letters dated 9thFebruary,2018 and 14th March,2018 respectively validating the ex-parte applicant work.There was no impropriety issue raised by the director of survey. The ex-parte applicant also explained the same to the Investigation Officer and was told to go home.The ODPP now has released the 4th and 5th accused persons in this matter after a review of their cases in line with the new charge sheet in MCCR/E328 of 2022. The said Ministry Officers as per documents supplied herein authenticated the PDP, Letter of Allotment, Indent for Deed Plan etc.”

41. I have also reminded myself of the principles as set out in Supreme Court in Petition No 6(E007) of 2022 Edwin Dande & Others v Inspector General, National Police Service & others where the court concluded at paragraph 85 [see page 33]and held as follows:“It is clear from the above decisions that when party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.

42. It is not for this court to ascertain, whether or not the accused persons, or the applicant is innocent or guilty. The applicant is presumed innocent until proven guilty under article 50 of the Constitution.

43. The judicial review court is interested and limited to the question of whether or not the procedure, that is adopted in arriving at the impugned decision to charge the Applicant is illegal, irregular or tainted with Procedural impropriety as set out in the case of Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374,410.

44. I have placed above factors in the lens of the guidelines on the decision to charge 2019 and I am persuaded that somebody dropped the ball or shifted the goalposts in the middle of the prosecution match to the detriment of the applicant.

45. The fact that the applicant was initially lined up as a prosecution witness generated a legitimate expectation in the mind of the applicant.

46. This court just like the applicant does not understand, or know what made the ODPP to change the decision to change the status of the applicant from the status of a witness into that of an accused person. The prosecution did not make any efforts to explain.

47. Clearly, the prosecution had initially considered the available evidence, the accessibility, the credibility and veracity of the evidence, the witnesses interalia when it concluded that the applicant was a good witness. Probably the accused applicant understood the reasons informing that.

48. Since the applicant has challenged the decision to charge, I would have expected The prosecution to bring evidence to this court to explain or justify the change in the decision to convert the applicant from a witness to an accused person.

49. No doubt that would have helped the applicant and this court to appreciate the decision. That would have promoted the right to access to information under article 35 and the right to fair hearing as guaranteed under article 50 of the Constitution.

50. Clause 3. 1.1 of the guidelines on the decision to charge stipulates that the decision to charge or not to charge requires an objective and independent analysis of the case. This sits well with the Fair Administrative Action Act.

51. When making decision to charge,the prosecutors must be objective and must not let personal views based on ethnic or national origin, gender, disability, age, religion or belief, sexual orientation, status, or gender identity of a suspect, accused person, victim or any witness influence their decision. They must at all times remain apolitical.

52. In all cases prosecutors must complete the Decision to Charge Form ODPP 1A and file this in the relevant Prosecution File. This form was not availed to the applicant. The only plausible conclusion that I can safely arrive at in the case of the Applicant is that the decision to charge him was informed through a fundamental procedural impropriety.

53. The decision to charge the applicant was arrived at in a manner that offends the rule of law. Given that everybody has a right to access to information, a Constitutional body like the ODPP while exercising, it’s powers under article 157 must be at the forefront in, ensuring that suspects of crime are informed in very clear terms how the decision to charge was arrived at.

54. The ODPP is under a duty to furnish a suspect with all the information including the considerations and factors that the prosecution considered in arriving at a decision to charge. The importance of the disclosure obligation that is always owed to an accused person cannot be gainsaid.

55. The ODPP will not suffer any prejudice if that kind of information is disclosed to a suspect or an accused person immediately the decision to charge is made. The disclosure or the discovery will go a long way in promoting, our national values and the principles of governance in so far as the criminal justice system is concerned. In any event, the decision to charge guidelines 2019 are a public document that is not supposed to benefit only the ODPP ‘s office, but all citizens.

56. A time has come when more awareness creation programmes were rolled out to inform Kenyans and in particular suspects upon arrest that they have a right to access to the guidelines. This will go a long way in promoting the tenets of the social transformation through access to justice. The decision to charge marks a point in the prosecution Journey, when a suspect, or an accused person is a very vulnerable member of the society. The Decision to Charge Form ODPP 1A must be availed to an accused person immediately and without delay, the minute the decision to charge is made.

57. Section 2 of the Fair Administrative Action Act provides that;“administrative action" includes-any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;"administrator" means a person who takes an administrative action or who makes an administrative decision. This includes the ODPP when deciding to charge.

58. Section 4 further stipulates that;(1)Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.(2)Every person has the right to be given written reasons for any administrative action that is taken against him.(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-(d) a statement of reasons pursuant to section 6.

59. The requirement that in all cases prosecutors must complete the Decision to Charge Form ODPP 1A was well intended. This Form must at all times be accessible to the accused persons. An early disclosure and discovery will help open up early alternative dispute resolution possibilities at the decision to charge phase and reduce the number of cases in the criminal court. It will speak to an open door approach to access to justice and encourage early diversion and reconciliation and Alternative Justice redress mechanisms.

60. An early discovery will also help reduce the traffic of cases in the judicial review court where the judges have to deal with applications for certiorari orders like the one before the court where many accused persons are seeking to stop prosecutions in the criminal courts after plea has been taken. That approach will save the Nation a lot of time, resources and taxpayers money.

61. Section 6(1) of the FAA provides that Every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review in accordance with section 5. (2) The information referred to in subsection (1), may include-(a) the reasons for which the action was taken; and(b) any relevant documents relating to the matter. (3) The administrator to whom a request is made under subsection (1) shall, within thirty after receiving the request, furnish the applicant, in writing, the reasons for the administrative action.

62. The well-intended guidelines and the decision to charge in Form ODPP 1 cannot be said to be in conformity with section 6 of the FAA if all that the ODPP does is to complete the Decision to Charge Form ODPP 1A before shuttling the accused person to court.

63. Once the decision to charge is made, then the status of the potential accused person changes. He is now a vulnerable person who is materially or adversely affected by the administrative action in the decision to charge and he has a right to be supplied with such information as may be necessary to facilitate his or her application for a review within the space of the right to fair hearing under article 50 of the Constitution.

64. The guidelines must be aligned to the call for an early disclosure of information contained in the decision to the affected person if the same is to be counted as a tool that will form part of the social transformation through access to justice dream. The right to fair hearing will not be complete without this kind of dialogue.

65. Contrary to the respondent’s argument that the applicant’s supporting documents do not disclose and/or demonstrate any element of illegality, irrationality, impropriety or otherwise on the part of the respondents and the argument that he has failed to discharge the legal burden under section 107 of the Evidence Act cap 80, i find that the applicant has proven that there was a serious level of procedural impropriety as set out in my analysis.

66. He has made out a case that fits into the principles as enunciated in the case of Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374,410.

67. The respondent argues that the instant dispute borders on diplomatic relations between the Republic of Kenya and the Republic of Zambia by the fact that the land which legitimately belongs to the Zambian High Commission is being adversely claimed by fraudulent means.

68. They argue that by dint of section 4 of the Privileges and Immunities Act, cap 179 of the Laws of Kenya, Kenya has domesticated the Vienna Convention on Diplomatic Relations 1961. Under article 22 the Convention states;“​...the premises of the mission shall be inviolable thus Kenya is​ under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”

69. The respondent argues that allowing the orders sought counters the aforesaid obligation. Thus in the spirit of fostering good diplomatic relations but also preserving the good image of the Republic of Kenya as a member of the comity of nations, it will be in public interest and justice that this honourable court declines grant of sought orders for the subject matter in Milimani Criminal Case No. E328 of 2022 to be substantively heard and determined.

70. Whereas I appreciate and fully subscribe to the importance of Kenya’s international duties as set out in section 4 of the Privileges and Immunities Act, cap 179 of the Laws of Kenya and article 22 the Convention the Vienna Convention on Diplomatic Relations 1961 this court must uphold the National Values and Principles of Governance as set out under article 10 of the Constitution and in particular Democracy, Human rights and the rule of Law.

71. This court does not agree with the respondents argument that allowing the sought orders directly counter the aforesaid obligation and the argument that in the spirit of fostering good diplomatic relations and also for the purposes of preserving the good image of the Republic of Kenya as a member of the comity of nations, it will be in public interest and justice that this honourable court declines grant of sought orders.

72. The applicants right to fair administrative action cannot be compromised nor sacrificed at the alter of good diplomatic relations and the preservation of the good image of the Republic of Kenya as a member of the comity of nations. This court can only take away the rights of the applicant through the structure of article 24 which the respondents have not raised. This will accord with section 4 of the Office of Public Prosecutions Act, No 2 of 2013 which provides in fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—(c)the rules of natural justice;(g)protection of the sovereignty of the people;(h)secure the observance of democratic values and principles; …

73. In any event, Clause 3 of the guidelines on the decision to charge does not set “the spirit of fostering good diplomatic relations and also for the purposes of preserving the good image of the Republic of Kenya as a member of the Comity of nations” as one of the considerations that the ODPP is supposed to invoke while deciding whether or not to charge an accused person. Even if it was a consideration, this court would not hesitate to declared the same unconstitutional and against article 1 of the Constitution in an appropriate suit.

74. The reasons that the ODPP has advanced cannot and must never form a basis or a reason to charge any Kenyan with any offence. Article 1 of the Constitution stipulates the sovereignty power belongs to the people. Kenyans rights under the Bill of Rights must at all times remain supreme and the need to preserve the good image of the Republic of Kenya as a member of the comity of nations must at all times remain subservient to our national values especially when dealing with matters that can take away the liberty of a Kenyan. To do otherwise would offend the fundamental principle of protection of the sovereignty of the people and I so hold.

75. The court in Republic v Director of Public Prosecutions & 3 others Ex-Parte Bedan Mwangi Nduati & another [2015] eKLR held as follows;“In Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the High Court held:The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform. A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious. The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution - repealed in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilization is far that which the courts indeed the entire system is constitutionally mandated to administer...It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilise the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The intrusion of judicial review remedies in criminal proceedings would have the effect of requiring a much broader approach, than envisaged in civil law...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilised. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus, where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop the court from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...”I also agree with the decision in R v Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No 406 of 2001 that:“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.It is therefore clear that whereas the discretion given to the 1st respondent to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised and where the court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence, the court will not hesitate to bring such proceedings to a halt.Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the court to determine the merits of two or more different versions presented by the parties the court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The court in judicial review proceedings is mainly concerned with the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the jurisdiction of the trial court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the court abetting abuse of the court process by the prosecution.Whereas article 157(10) of the Constitution provides that the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority, article 157(11) provides:In exercising the powers conferred by this article, the Director of Public Prosecutions shall 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.Apart from that, section 4 of the Office of Public Prosecutions Act, No 2 of 2013 provides:In fulfilling its mandate, the office shall be guided by the Constitution and the following fundamental principles—(a)the diversity of the people of Kenya;(b)impartiality and gender equity;(c)the rules of natural justice;(d)promotion of public confidence in the integrity of the Office;(e)the need to discharge the functions of the Office on behalf of the people of Kenya;(f)the need to serve the cause of justice, prevent abuse of the legal process and public interest;(g)protection of the sovereignty of the people;(h)secure the observance of democratic values and principles; and(i)promotion of constitutionalism.It is therefore clear that the current prosecutorial regime has changed and that the discretion given to the ODPP is not absolute but must be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Where it is alleged that these standards have not been adhered to, it is the duty of this court to interrogate the said allegations and make a determination thereon.I associate myself with the sentiments expressed in Nakusa v. Tororei & 2 others (No. 2) Nairobi HCEP No 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that:“the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo v Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…….. In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.”I find that the respondent the ODPP acted illegally and with procedural impropriety and the decision to charge is illegal and I so hold.

Disposition: 76. The applicant has made out a case that meets the standards for the grant of judicial review orders.Orders:The application dated May 9, 2022 is allowed in the following terms:1. That an order of certiorari is hereby issued removing into the honourable court and quashing the decision of the 1st and 2nd respondents to charge and prosecute the applicant in Milimani Chief Magistrates Court Criminal Case No E328 of 2022 pending the hearing and determination of ELC No 394 of 2021 before Justice Ogutu Mboya.2. A declaration is hereby issued that the charges of conspiracy to defraud the complainant in Milimani Chief Magistrates Court Criminal Case Number E328 of 2022 are null and void as they are a breach, infringement, violation and denial of the applicants' fundamental rights, to equality before the law, equal protection, equal benefit of law as enshrined in article 27(l) and 50 of the Constitution.3. That a declaration is hereby issued dismissing criminal case No. E328 of 2022 against the 3rd accused.4. Costs to the applicant.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF OCTOBER 2023………………………………………J.CHIGITI (SC)JUDGE