[2022] KEHC 16519 (KLR)

Republic v Director of Public Prosecutions & 2 others; Githiomi (Exparte) (Judicial Review Miscellaneous Application E046 of 2022) [2022] KEHC 16519 (KLR) (Judicial Review) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16519 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E046 of 2022

AK Ndung'u, J

December 16, 2022

Between

Republic

Applicant

and

The Director of Public Prosecutions

1st Respondent

Independent Policing Oversight Authority (IPOA)

2nd Respondent

Milimani Law Courts

3rd Respondent

and

Charles Mwai Githiomi

Exparte

Ruling

1. By way of a chamber summons dated April 26, 2022, the Ex-parte Applicant sought for orders:i.That this Application be certified as urgent and service thereof be dispensed with in the first instance.ii.That leave be and is hereby granted to the ex parte applicant to apply for judicial review by way of an order of certiorari to call to this Honourable Court and quash the charge sheet in Criminal Case No E412 of 2022; Republic v Charles Mwai Githiomi.iii.That leave be and is hereby granted to the ex parte applicant to apply for judicial review by way of an order of Prohibition prohibiting the Respondents from further carrying on with the prosecution of Criminal Case No E412 of 2022; Republic v Charles Mwai Githiomi.iv.That the grant of leave in prayers 2 and 3 above do operate as a stay of any other or further proceedings in Criminal Case No E412 of 2022; Republic v Charles Mwai Githiomi.v.The costs be awarded to the Applicant.

2. The Application was supported by a Verifying Affidavit, and a Statutory Statement, both dated April 26, 2022. Further, the ex-parte Applicant filed a Supplementary Affidavit dated April 27, 2022. In summary, the Applicant case was that he [Applicant] was neither informed, nor given an opportunity to state his case in the investigations by the 2nd Respondent. That, thus the prosecution against him, by the 1st Respondent, is unconstitutional, discriminatory, made capriciously and ultra vires, and with malafides.

3. The 1st Respondents opposed the Application. In their Grounds of Opposition, dated July 18, 2022, it is averred;a.That the Applicant has not demonstrated to this court the prejudices he will suffer in the ongoing prosecution in Criminal Case Number E412 of 2022. The Petitioner must demonstrate that substantial injustice would otherwise result if the criminal proceedings are not stayed. The trial court is an impartial arbiter and should be given an opportunity to determine the impugned lower court matter on merit.b.That the 1st Respondent made a decision to charge in accordance with Article 157 (6), thereby upholding the provisions of Article 157 (10) & (11) of theConstitution of Kenya, 2010. Therefore, Criminal Case Number E412 of 2022 is Constitutional and properly instituted.c.That the 1st Respondent made decision to charge the Applicant based on overwhelming evidence on the prosecution file. Therefore, the trial court should be left alone to put the prosecution evidence on the scales of justice for the guilt to be convicted and punished and the innocent, if any, to be acquitted.d.That the Applicant has not demonstrated that the decision by the 1st Respondent to charge him is illegal, unfair and irrational.e.That the Applicant has not persuaded the court that the Application raises a serious issue worth the merits of a judicial review application.f.That it is in the public interest that complaints made to the investigative agency are investigated and the perpetrators of crimes are charged and prosecuted.g.That the Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per Articles 47, 48 and 157 (11) of theConstitution of Kenya, 2010. h.That the orders sought are therefore not tenable against the Respondent as the applicant has not shown how the criminal proceedings in Criminal Case Number E412 of 2022 are unconstitutional and how 1st Respondent has infringed on the Applicant’s constitutional rights worth calling for the orders sought.i.That the Application is without merit and should be dismissed with costs.

4. The 2nd Respondent also opposed the Application and a Replying Affidavit dated and sworn on May 31, 2022 is on record. In sum, it averred that the 2nd Respondent is mandated to investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities as per Section 3, 5, 6, 7, and 25 of the Independent Policing Oversight Authority Act, 2011.

5. That on November 23, 2018, the 2nd Respondent received a complaint regarding the death of Derrick Shinini (deceased), alleged to have been caused by a police officer. That in conducting investigations into the matter, the Applicant herein was given an opportunity to be heard and even gave his statement in relation to the matter. That upon completion of the investigations, and in pursuant to Section 29 of the IPOAAct, the 2nd Respondent forwarded the file, report, and recommendations to the 1st Respondent for perusal and advice in accordance with the law. That the 1st Respondent, pursuant to Article 157 of theConstitution, independently reviewed the file and evidence, and directed that the Applicant herein, be charged with the offence of being an accessory after the fact to murder. This gave rise to the Criminal Case No E412 of 2020 R v Charles Mwai Githiomi in the Chief's Magistrates Court in Nairobi.

6. As directed by court, and in advancing their cases, parties filed their respective submissions in addressing the subject as to whether the leave sought should be granted, and if so; whether the leave should operate as a stay of the criminal charges.

7. In support of the Application, the Applicant in his written submissions dated 19th July 2022 –submitted that the intended prosecution against him ought to be halted and that this Honourable Court has jurisdiction to do so. That the intended prosecution is being undertaken without proper investigations contrary to Article 73 of theConstitution. Also that the Applicant was not notified of any ongoing investigations, was not accorded an opportunity to explain himself and give his version of the events that led to the loss of life subject of the investigations. That therefore, the Applicant's right to fair administrative action was disregarded; and that the entire process did contravene the rules of natural justice. Further, that during the alleged investigations, the Applicant was not subjected to the Internal Affairs Unit of the National Police Service, as envisaged under the provisions of Section 87 of the National Police Service Act. Reliance was placed on the case of Republic v Commissioner of Police & another (2012)eKLR.

8. Additionally, the Applicant posited that there is no basis at all to commence the intended prosecution. That the particulars of the offence, as set out in the charge sheet do not meet the threshold of the offence of accessory after the fact to murder as has been established by various decisions of this Honourable Court. The case of Bernard Sanya Okello v Republic, Criminal Appeal No 7 of 2015 was relied on.

9. In opposition to the Application, the 1st Respondent in their written submission dated July 27, 2022 maintained that in prosecuting the Applicant, it [1st Respondent] was executing its mandate within parameters stipulated under Article 157 of theConstitution. The case of Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR was relied upon.

10. On leave for order of certiorari to quash the decision made by the Director of Public Prosecutions to charge the Applicant, it was the 1st Respondent’s submissions that it holds no water. That the Applicant has not demonstrated that the decision of the 1st Respondent was an abuse of the court process, illegal, unfair, and irrational these being the legal threshold. Thus, that as the Applicant has failed to demonstrate as aforesaid, the Application is thus a nullity. The case of Agutu Wycliffe Nelly v Office of The Registrar Academic Affairs Dedan Kimathi University of Technology Dekut [2016] eKLR was cited in that regard. On leave for order of prohibition to stop/prohibit from charging, prosecuting, proceeding and/or conducting the trial of the Applicant in Criminal Case No E412 of 2022; the 1st Respondent posited that prohibiting orders are particularly useful as they may be sought to prevent a decision being made in excess of jurisdiction even if there is a right to appeal the decision. Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, and Kuria &othersv AG[2002] 2 KLR 69 cases were relied upon.

11. The 1st Respondent contended that the leave stage in Judicial Review proceedings is used to identify and filter out at an early stage, claims which may be trivial or without merit. That the present Application does not raise serious issues to be determined by this court; and particularly, the ex-parte Applicant was given an opportunity to record his statement on February 13, 2019, thus the investigations satisfied the principles of natural justice.

12. Additionally, the 2nd Respondent opposed the Petition [sic], and filed their written submissions dated June 24, 2022. It is noteworthy, that the 2nd Respondent apparently through inadvertence directed the submissions to a petition instead of the chamber summons herein but notably the contents refer to the instant application. That omission is a minor infraction that takes nothing away from their case. I, however, note too that the submissions extend to limits outside the necessary material for consideration in the chamber summons herein and I will thus restrict my focus to what is relevant at this stage of the proceedings.

13. I have considered the Chamber Summon, Verifying Affidavit, Statutory Statement, and the Further Affidavit. I have had due regard to the responses on record and the learned submissions by counsel. The issue for determination is: Whether the Application for leave to commence judicial review proceedings is merited and if in the affirmative, whether the leave, if granted, should operate as a stay of the prosecution of the Applicant.

14. On the issue of leave, it is a requirement of the law under Order 53 Rule 1 of the Civil Procedure Rules 2010, that an Applicant must seek leave to institute judicial review proceedings.

15. Leave is meant to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless; to ensure that the Applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration; to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error; and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. This reason for leave was discussed in the case of Republic v County Council of Kwale &anotherEx Parte Kondo & 57others, Mombasa HCMCA No 384 of 1996.

16. The Learned Judge in R v County Council of Kwale Ex Parte Kondo and 57others (supra) further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.

17. From the foregoing, in an Application for leave, such as the instant one, this court ought not to delve deeply into the arguments of the parties; but should make cursory perusal of the evidence before it [court] and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave.

18. In the instant matter, the gist of the Application before this court is that the Applicant is seeking to stop prosecution by the 1st Respondent, and challenges the decision by the 2nd Respondent to recommend him [Applicant] to be subjected for consideration by the 1st Respondent for prosecution based on their [2nd Respondent] investigations and recommendations thereof.

19. The 1st Respondent is legally mandated by Article 157 of theConstitution to carry out prosecution; while the 2nd Respondent is legally mandated under Section 3, 5, 6, 7, and 25 of the Independent Policing Oversight Authority Act, 2011 to investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, in this case the 1st Respondent.

20. The Applicant invited this court to examine the merits of the charge sheet; alleging that the particulars of the offence do not meet the threshold of the offence as charged/drafted.

21. As was held in Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji (2014) eKLR: -“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......."

22. By invoking the judicial review jurisdiction of this court, it was incumbent upon the Applicant to demonstrate an arguable case that requires ventilation at a substantive hearing. I have carefully perused the facts and legal arguments in counsels’ submissions. The 2nd Respondent has demonstrated that investigations to the incident were conducted and that the 2nd Respondent was legally mandated to conduct such investigations. The file was forwarded to the 1st Respondent, who exercising the unfettered powers to institute criminal prosecution without direction or permission from any person, reviewed the matter and made a decision to prosecute. On the facts of the case, no arguable case has been established that would require further inquiry at a substantive hearing. In the premises no prima facie case is established to warrant the grant of the leave sought.

23. With the result that I find the chamber summons application dated April 26, 2022 without merit and dismiss it. Each party is to bear their own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER 2022. …………………………………….A.K. NDUNGUJUDGE