[2023] KEHC 17704 (KLR)

Republic v Director of Public Prosecutions & 2 others; Kaithungu & another (Exparte Applicants) (Judicial Review Application E001 of 2022) [2023] KEHC 17704 (KLR) (25 May 2023) (Judgment)

Neutral citation: [2023] KEHC 17704 (KLR)

Republic of Kenya

In the High Court at Chuka

Judicial Review Application E001 of 2022

LW Gitari, J

May 25, 2023

IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

IN THE MATTER OF: ARTICLES 22, 23, 47, & 50 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF: THE LAW REFORM ACT, CAP 26 OF THE LAWS OF KENYA

IN THE MATTER OF: ORDER 53 OF THE CIVIL PROCEDURE RULES 2010

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Director of Criminal Investigations

2nd Respondent

Inspector General of Police

3rd Respondent

and

Njue Kaithungu

Exparte Applicant

Micheni Kibati Samson

Exparte Applicant

Judgment

1. Through the notice of motion application dated March 17, 2022, the ex-parte applicants herein, Njue Kaithingu and Micheni Kibati Samson, pray for the following orders:i.That an order of certiorari do issue to remove this honourable court and quash the decision of the 2nd respondent to arrest theex-parte applicants and the decision of the 1st respondent to recommend the prosecution of the ex-parte applicants on allegations of neglect to protect coffee factories against fictitious renovations projects.ii.That an order of prohibition do issue directed to the respondents, their officers and any other authority acting on their instructions from arresting or prosecuting the ex-parte applicants on allegations of neglect to protect coffee factories against fictitious renovations projects.iii.That the costs of this application be provided for.

2. The 1st, 2nd and 3rd respondents herein are the Director of Public Prosecution, the Director of Criminal Investigations, and the Attorney General respectively.

3. On the other hand, the ex-parte applicants’ state that they are employees of the County Government of Tharaka NIthi where the 1st ex-parte applicant holds the position of the County Executive Committee Member for Agriculture, Livestock, Fisheries and Co-operatives while the 2nd ex-parte applicant holds the position of Chief Officer, Agriculture and Co-operative.

4. A brief background of theex-parte applicants’ case is that on the morning of February 22, 2022, the 2nd respondent arrested and locked up the ex-parte applicants at Chuka Police Station and denied them the right to be released on cash bail. That the ex-parte applicants were later released from the police station at night and were not presented before any court of law.

5. It is further the ex-parte applicants’ case that the 1st respondent recommended that theex-parte applicants be charged with the offence of neglect in the performance of public duties contrary to section 128 of the Penal Code (chapter 63 of the Laws of Kenya) and the offence of aiding and facilitating of a felony contrary to section 128A(a) of the Penal Code.

6. Theex-parteapplicants consequently moved this court on February 23, 2022 seeking leave to commence judicial review proceedings against the respondents and the leave, if so granted, to act as a stay of any decision by the respondents to arrest, commence, or conduct criminal proceedings against the ex-parte applicants. On February 25, 2022, this court granted the leave sought by the ex-parte applicants and ordered that the leave to act as a stay of any decision by the respondents against theex-parte applicants.

7. Despite the respondents being duly served with said orders of the court, the 1st respondent, on March 10, 2022, presented a charge sheet at Chuka Magistrates’ Court under Criminal CaseNo 150 of 2022 with the intention to charge the ex-parte applicants for various offences. The court however ordered that the ex-parte applicants could not be charged as there was an existing valid order barring their prosecution.

8. It is the thus theex-parte applicants case that the 2nd respondent’s decision to arrest theex-parte applicants and the 1st respondent’s decision to charge them were tainted with illegality. Further, that the ex-parte applicants had nothing to do with the offences contained in the aforesaid charge sheet which offences related to the alleged fraudulent dealings in several Co-operative Societies in Tharaka Nithi county.

9. According to the ex-parte applicants, it had been alleged that the management committees of the said co-operative societies had entered into contracts with 3rd parties for renovations of their coffee factories. The ex-parte applicants maintained that as employees of the County Government of Tharaka Nithi County, they had no control, direct or otherwise, over the governance of the said co-operative societies.

10. It is thus the ex-parte applicants’ case that unless the judicial review orders sought herein are granted by this court, they will be unfairly subjected to an unprocedural and unlawful judicial criminal process.

11. The present application was strongly opposed by the respondents vide the replying affidavit sworn by one PC Stephen Waweru on May 16, 2022. It was their case that the present application ought to be dismissed for being premature, frivolous, vexatious, bad in law, and fatally defective.

12. The said PC Stephen Waweru stated that he is a police officer attached to the Directorate of Criminal Investigations, Meru South and that he is the investigation officer in the case against the ex-parte applicants, which case forms the basis of the instant application.

13. Further, the said PC Stephen Waweru deposed that in the month of October, 2021, the DCI Tharaka Nithi county received information that there were several coffee factories within the said county that had been deceived into entering into fictitious agreements for the refurbishment or construction of the coffee factories, by one Caroline Kuthie Karanja, who was representing herself as a representative of the International Coffee Organization.

14. That the said Caroline Kuthie Karanja had engaged various coffee factories and informed them that she had been funded by donors and that she was spearheading plans to renovate the coffee factories in the county. Further, that the said Caroline Kuthie Karanja advised managers of various factories to advertise for tenders and that contractors were selected and awarded contracts to renovate the factories against the tender processes.

15. PCStaphen Waweru avers that he conducted his investigations into the matter and established that the said Caroline Kuthie Karanja was not an employee or representative of the International Coffee Organization as she had alleged. Further, that she was working with unscrupulous county employees, particularly theex-parte applicants herein, to further her illegal activities of deceiving factory managers and society officials into entering into fictitious projects. It is thus the respondents’ case that the decision to charge the ex-parte applicants was arrived at fairly after a careful evaluation of the evidence that had been collected and that the issues they are raising should be best addressed before the trial court in their defence.

16. In responding to the affidavit of the above named PC Stephen Waweru, the ex-parte applicants filed a supplementary affidavit sworn on August 15, 2022 by the 1st ex-parte applicant on his own behalf and on behalf of the 2nd respondent. It is deposed therein that the affidavit of PC Stephen Waweru is incompetent and inadmissible as the saidPCStephen Waweru is neither an employee of the 1st respondent nor is his authorized by law or by the 1st respondent to swear affidavits on behalf of the 1st respondent.

17. The ex-parte applicants further denied attending any meetings that the above-mentioned Caroline Kuthie Karanja had organized. They also denied ever launching any renovation exercise in any coffee factory in Tharaka Nith County with the said Caroline Kuthie Karanja. They thus maintained that they only became aware of the alleged fictitious projects after the 1st respondent took over the investigations.

18. The present application was canvassed by way of written submissions which I have hereunder highlighted.

The Ex-Parte Applicants’ Submissions 19. It is the submission by the ex-parteapplicants that the process followed by the respondents throughout the investigation stage, arrest and intended prosecution was neither fair nor objective or procedural. That the conduct of the 1st respondent in presenting a charge sheet before court on March 10, 2022 with the intent of prosecuting the ex-parteapplicants was in violation of a valid court order and an indication of the extent the 1st respondent is willing to go in an attempt to achieve ulterior motives. Further, it was the submission by theex-parte applicants that unless the orders of judicial review sought herein are granted, the stand to suffer irreparable harm and injury.

20. In relying on various decisions including the cases of Council of Mombasa v Republic & Umoja Consultants Ltd civil appeal No 185 of 2002; and Isaac Gathungu Wanjohi & another v Director of City Planning of Nairobi & another[2014] eKLR, the ex-parte applicants submitted that this court is empowered to oversee that the offices of the 1st and 2nd respondents undertake their mandated functions in accordance with the law. That while the remedy of judicial review has always been concerned with the decision-making process and not the merits of the case, article 47 of the Constitution has now expanded the grounds of judicial review to include reasonableness of a decision while section 7(2)(1) of the Fair Administrative Action Act provides for proportionality as a ground for statutory judicial review. It was thus the ex-parte applicants’ submissions that the interest of justice dictates that the orders sought herein be issued as prayed.

The 1st Respondent’s Submissions 21. Citing the case of Republic v National Employment Authority & 3 others Ex-Parte Middle East Consultancy Services Limited[2018] eKLR, it is the respondents’ submission that the ex-parte applicants have not demonstrated a case worth this court’s intervention through judicial review. That the role of this court in judicial review is to look at the decision making process of a given decision, and not at the merits of the decision complained of.

22. According to the respondents, the ex-parte applicants committed an offence that is known in law, leading to their arrest and subsequent prosecution. That the ex-parte applicants are using these judicial proceedings to raise a defence to the commission of an offence yet it is the trial court, in which they are charged, that has the requisite jurisdiction to hear and determine the respective cases by the parties. The respondents thus urged this court to dismiss the present application.

Issues for Determination 23. From the above summarized allegations and submissions by the parties, it is my view that the following issues arise for determination by this court:i.Whether the decisions by the respondents to arrest, detain, and prosecute the ex-parte applicants were unlawful.ii.Whether the ex-parte applicants are entitled to the orders sought in the present application.

Analysis 24. The case by the ex-parte applicants is that their arrest and intended prosecution was unlawful, unreasonable, made in bad faith, and intended to achieve ulterior motive.

25. The starting point here will be to state that the offices of the 2nd and 1st respondents are empowered by the law to investigate and prosecute criminal offences [see section 24 of the National Police Service Act and articles 243, 245 and 157 of the Constitution]. However, the powers of the respondents must be exercised in accordance with the law. Where investigations are conducted outside the confines of the law, and where the DPP continues with prosecution in abuse of power, the courts are empowered to quash such prosecution. In this case, the onus lay with the ex-parte applicants to prove that their prosecution was hinged on bad faith or illegality.

26. Theex-parte applicants herein have all throughout maintained that their arrest and the recommendation of their prosecution were procedurally unfair and unreasonable. That they have no supervisory powers over co-operative societies and hence should not be prosecuted for their mismanagement. Further, that the conduct of the 2nd and 1st respondents of arresting them deprived them of their freedom and that their prosecution was politically instigated.

27. I have carefully considered the annexture attached to the affidavit sworn on May 16, 2022 by PC Stephen Waweru. In my view, the ex-parte Applicants have not demonstrated that there is an element of illegality in the conduct of the respondents. It is alleged that they colluded with one Carroline Karanja and allegedly engaged in fraudulent activities, all in the while the said Caroline Karanja was representing herself as an official of International Coffee Organization. If the allegation is true, then the only way to establish the innocence or guilt of the ex-parte applicants is through a criminal trial. This court cannot sit as a trial court and hear the witnesses to be called in order to return the verdict of whether or not the ex-parte applicants are guilty. That duty lies with the trial court and the ex-parte applicants are guaranteed a fair trial by virtue of the provisions in the Evidence Act and article 50 of the Constitution.

28. In the end, it is my view that the respondents have clearly demonstrated that the 2nd respondent received a complaint of the commission of an offence. Following the same, the 2nd respondent were duty bound to investigate the complaint raised against theex-parte applicants herein as the law required them to do so.

29. In addition, article 157 of the Constitution vests state power of prosecution upon the Director of Public Prosecution, which power is reinstated in pari materia under section 5 of the Office of Director of Public Prosecutions Act, where it is provided in no uncertain terms that in the exercise of this power, the 1st respondent is not under the direction or control of any person, body or authority as provided for under article 157(10) of the Constitution. The prosecutorial decision of the 1st respondent is therefore not subject to the power and control of any one while discharging its mandate and that the courts would only interfere where it is shown the DPP acted ultravires, unreasonably, without procedural fairness, malafides and in total disregard of proportionality in decision making. In this case, it is my view that no reasons have been advanced by theex-parte applicants to that effect and to justify this court’s interference and proceeding to grant the orders sought.

Conclusion 30. For the reasons given herein above, it is my view that the present application is without merits.I order that:-1. This petition is dismissed2. I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 25TH DAY OF MAY 2023. L.W. GITARIJUDGE25/5/2023Mr. Muthomi for ApplicantMs Mbithe for RespondentThe Judgment has been read out in open court.L.W. GITARIJUDGE25/5/2023