[2022] KEHC 13970 (KLR)

Republic v Director of Public Prosecutions & 2 others; Lightwares Company Limited (Interested Party); Wagude (Exparte) (Judicial Review Miscellaneous Application E175 of 2021) [2022] KEHC 13970 (KLR) (Judicial Review) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13970 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E175 of 2021

AK Ndung'u, J

October 13, 2022

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Inspector General of Police

2nd Respondent

Chief Magistrate's Court Milimani Law Courts

3rd Respondent

and

Lightwares Company Limited

Interested Party

and

Lui Omullo Wagude

Exparte

Judgment

1. Theex parte applicant herein is before this court vide a notice of motion application filed under section 3 and 3A of the Civil Procedure Act, order 53 rule 1(1) and 2 of the Civil Procedure Rulesand section 8 of the Law Reform Act.

2. The motion seeks the following orders;1. That an order of certiorari to move into this court and quash the entire proceedings in the Milimani Chief Magistrates Court criminal case No E553 of 2021 and the decisions therein.

2. That an order of prohibition directed to the respondents, prohibiting further proceedings in Milimani Chief Magistrates Court criminal case No E553 of 2021 and further prohibiting the first and second respondents from instituting any future charges against the ex parte applicant in respect to the subject.

3. That the honourable court be pleased to grant such other or further relief as it may deem fit, necessary and expedient in the circumstances.

4. That the costs of this application be provided for.

3. The application is supported by a statutory statement dated November 15, 2021, and the facts set out in the verifying affidavit of Lui Omullo Wagude sworn on even date.

4. The ex parte applicant herein is the Executive Director of CISSABI Associates whose business includes offering financing expertise with a view to securing capital sourcing from international institutional investors and private debt institutions. The business is said to partner with 3rd party institutions such as inter fund which provides banking advisory services.

5. The interested party herein is said to have submitted a proposal to secure financing to the tune of five hundred thousand euros (€500,000. 00) and upon consideration CISSABI tendered its letter of intent dated January 3, 2020 in which it confirmed interest in arranging for the financing and advancing preliminary terms and conditions of the financing.

6. The interested party and CISSABI Associates entered into an agreement for Strategic Investment(capital procurement)/ Strategic Investment Option Contract (SIOC) which agreement also outlined the further terms of service to be offered.

7. In accordance with the terms of the letter of intent dated January 3, 2021 and the agreement for strategic investment the interested party was required to deposit a refundable fee of fifty thousand euros only (€50,000. 00) to ING Bank Amsterdam, the same being 10% of the required financing to secure an international insurance cover and/or bank guarantee to cushion any investor in the instance where a borrower defaults in repayment of any financing advanced.

8. The interested party proceeded to deposit on diverse dates with CISSABI Associates the refundable fee, in the sum of five million seven hundred and fifty thousand Kenya shillings only (Kshs5,750,000. 00/=) and CISSABI Associates duly issued a receipt for the same in acknowledgement of the deposited amount as the said sums were a reimbursement to CISSABI Associates which had duly paid the collateral on behalf of the interested party as it was unable to pay the full amount at once.

9. The financing sought by the interested party from inter fund, was not immediately available owing to the covid-19 pandemic that affected businesses globally and as such it sought a refund of the fee that had been paid to secure an international insurance cover and bank guarantee.

10. In order to facilitate the refund, CISSABI Associates duly requested the interested party to execute a formal letter terminating the instructions for capital sourcing as well as deed of final settlement between CISSABI associates and the interested party for contractual and anti-money laundering requirements and regulations, the two documents are essential in securing the release of the funds from the financing entity that had advanced the bank guarantee since CISSABI Associates will be receiving the funds from abroad.

11. The interested party is said to have refused to execute the documents and instead opted to institute Mariakani PMCC civil suit No 155 of 2021 and another suit Milimani Chief Magistrates Court criminal case No E553 of 2021 instituted by a representative of the interested party.

12. The deponent was arrested on March 3, 2021 and released on a cash bail of kshs 70,000. 000 and upon arraignment before the court in Milimani Chief Magistrates Court criminal case No E553 of 2021 on a cash bail of kshs 500,000. 00/=.

13. The 1st and 2nd respondents filed grounds of opposition dated November 9, 2021 and a replying affidavit sworn on January 11, 2022 by Benjamin Chelanga,the investigating officer. The respondents’ case is that the application before this court is baseless and only meant to scuttle the hearing of Milimani Chief Magistrates Court criminal case No E553 of 2021 as the 1st respondent in deciding to prefer criminal charges based his decision on sufficient evidence with a realistic prospect of conviction and this decision has not in any way infringed or violated any provision of the Constitution, written law or regulations or any human and fundamental rights.

14. The respondents also argue that the accuracy and correctness of evidence or facts can only be assessed and tested by the trial court. Some of the issues raised by the ex parte applicant according to the respondents amount to a defence which ought to be canvassed before the trial court.

15. Mr Chelanga in his deposition swears that on March 3, 2021 the office of Directorate of Criminal Investigations received a report from Mr Buhanudin Adamali Jahoowalla one of the directors of the interested party herein and a sole director of Al-burhani enterprises.

16. In his report Mr Adamali stated that sometime in October and November 2019 he met Leon Lubanga who was working with Premier Savings Company in Mombasa. Mr Lubanga informed Mr Adamali that he was aware of an international company that could provide capital financing procurement to entrepreneurs.

17. Subsequently, Lubanga organized a meet up between Lui Omullo Wagude, the director of Cissabi Associates an agent of Inter-Fund Netherlands in Kenya and the complainant Mr Adamali where he was informed of the merits of financial capital. Mr Omullo informed the complainant that in order to procure a capital investment of €500,000 he had to pay a deposit of €50,000 an amount that he went ahead to pay with the expectation that within 60 days as had been agreed he would receive the €500,000 as agreed. This according to the respondents never came to pass and all efforts by Mr Adamali to get the capital investment bore no fruits.

18. Mr Adamali lodged a complaint with the 2nd respondent that was recorded as OB No 04/03/03/2021 and upon investigations by IP Benjamin Chelanga and PC Billy Kenei the investigation file was forwarded to the office of the 1st respondent. The 1st respondent issued directions for Mr Lui Omollo Wagude to be arrested and charged.

Determination 19. Having considered the pleadings as well as the submissions and the arguments advanced by the parties herein, it is my view that the issues for determination are;a.Whether the applicant has established the legal threshold for the grant of the judicial review orders sought.b.Who bears the costs of the application?

20. Article 157 of the Constitution provides the legal foundation for the 2nd respondent’s expansive and unrestricted control over public prosecutions. according to the article, the 2nd respondent may begin criminal proceedings without the approval of any person or authority and may exercise his or her powers or functions without being subject to the direction or control of anyone. However, according to sub article 11 of the Constitution, he or she must respect public interest, the interests of administering justice, and the need to prevent and avoid abuse of the legal system.

21. Nonetheless, article 157 is not a carte blanche for the office holder to commit crimes or violate the law. If the office behaves in violation of the law or without following due process, the court will be there to provide redress. By definition, the decision to charge is an administrative action that falls under the Fair Administrative Actions Act's guidelines and is overseen by this court in accordance with article 47 of the Constitution.

22. The court in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR, considered in detail the applicable law and circumstances under which the court could interfere with the exercise of prosecutorial discretion by the DPP. Among the guiding principles outlined in section 4 of the ODPP’s Act No 2 of 2013 and the National Prosecution Policy formulated by the DPP pursuant to section 5(1)(c) of the ODPPAct are that; “The decision to prosecute as a concept envisages two basic components namely; that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted”

23. Paragraph 4 (b)(z) of the said policy provides;“the Evidence test- public prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, public prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available”

24. The court in Diamond Hasham Lalji (supra), went ahead to hold in para 42 as follows;“The burden of proof rests with the person alleging unconstitutional power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision”

25. In para 45 the court went further to state thus;“(45)In considering the evidential test, the court should only be satisfied that the evidence collected by the investigative agency upon which DPP’s decision is made establishes a prima facie case necessitating prosecution. At this stage, the courts should not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That is the function of the trial court. However, a proper scrutiny of facts and circumstances of the case are absolutely imperative.”

26. From the foregoing, it is obvious that the standard of review of the discretion of the DPP to prosecute or not to prosecute is high and courts will interfere with the exercise sparingly. Lenaola J (as he then was) summed it up aptly in Patrick Ngunjiri Muiruri vDPP [2017] eKLR where he stated;“The law and practice, then, are quite clear; while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.”

27. It is common ground that the ex parte applicant herein and Mr Adamali, a director in the interested party entered into an agreement where Mr Omullo was to provide capital financing procurement to the tune of €500,000. 00. This would only be possible if Mr Adamali paid a deposit of €50,000. The issue arose when upon payment of the deposit and the lapse of over a year the ex parte applicant failed to fulfil his part of the agreement that Mr Adamali lodged a complaint with the 2nd respondent.

28. The applicant is charged in a criminal case before the Magistrate’s Court. This is the result of investigations in which, according to the investigating officer, fraud and deception were uncovered and a motive established. It is unnecessary to discuss the specifics of the investigations because this is not the appropriate forum for doing so. It is sufficient to note that, in accordance with the DPP's constitutional authority under article 157, evidence was gathered and presented to him before he decided to charge the applicant.

29. The applicant before this court contends that the respondents’ decision to institute criminal proceedings against him are malicious, irrational, unreasonable, made in bad faith and a violation of legitimate expectation. Further, it is the ex parte applicant’s case that although the court must be careful not to usurp or stall the constitutional mandate of the 1st respondent there is need to ensure that the DPP does not abuse his powers to prosecute possible criminal offenders as was held in the case of David Gicheru Gichugu v Director of Public Prosecutions & 3 others [2021] eKLR.

30. Criminal investigations or prosecution as was reiterated in Republic v Chief Magistrates Court at Mombasa Ex Parte Ganijee & another [2002] 2 KLR 703 must not be entertained if the purpose is to help in advancing an individual’s civil and private rights.

31. The ex parte applicant also contends that there being a commercial dispute Mariakani PMCC civil suit No 155 of 2021 filed by interested party herein, his arrest, decision to charge him and continued prosecution of the Milimani Chief Magistrates Court criminal case No E553 of 2021 is an abuse of the court process.

32. The conduct of the 3rd respondent is also said to be tainted with procedural impropriety, unfairness and arbitrariness as the ex parte applicant was arrested on a civil dispute, admitted to pay a cash bail of kshs 500,000. 00/= before taking plea and the 3rd respondent receiving a medical report of the ex parte applicant’s condition. In addition, not giving the ex parte applicant an opportunity to be heard and to make representation before being admitted to bail. The decision of the respondent is said to violate the legitimate expectations of the applicant and members of the public on equal application of the law.

33. The 1st and 2nd respondents on the other hand contend that the law allows the DCI and any other investigative agency to investigate the ex parte applicant if there is probable cause to do so the status of the applicant notwithstanding. This was the position in the cases of Dr Alfred N Mutua v The Ethics and Anti-Corruption Commission & others,Misc application No31 of 2016 and Republic v The Commissioner of Police & the Director of Public Prosecutionex parteMichael Monari & another Misc application No 68 of 2011.

34. The respondents also contend that 1st respondent pursuant to article 157 is not under the direction or control of any person, body or authority and that the primary test as enunciated in the National Prosecutorial Policy is whether or not the material gathered meets the evidential and public interest threshold.

35. It is also the respondents’ case that as has been held in several decisions of the courts, the court should be shy in accepting invitations by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in cases where such organs are acting ultra vires,outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the doctrine of proportionality in decision making.

36. Further that a person who alleges a breach of fundamental rights and freedoms must state and identify with precision how the same has been or will be infringed upon.

37. I have considered the rival positions taken by the parties herein. I have put into account the replying affidavit of Inspector Benjamin Chelanga and the annexures thereto. Am alive to the fact that it is not my duty within my limited jurisdiction in judicial review to test the sufficiency of evidence that led to the charges preferred against the applicant. Am also cognizant of the provision of the law that in terms of section 193A of the Criminal Procedure Code, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings does not bar the commencement of criminal proceedings or investigations. My considered view is that this court would fall into great error if it was to usurp the duty of the trial court by evaluating the sufficiency or otherwise of the evidence and to make a finding whether the same can sustain a conviction.

38. The decision in Erick Kibiwott Tarus & 2 others v Director of Public Prosecutions & 7 others[2014] eKLR illuminates this. The court stated;“100. 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.”

39. The burden of proving that the respondents, and especially the 2nd respondent, violated his constitutional rights, acted with malice or ulterior motives, acted without due regard to public interest, acted against the interest of justice or abetted abuse of the court process fell on the ex parte applicant.

40. From the material before court, he has failed to do so. I find no basis upon which to interfere with the constitutional mandate of the 1st respondent. The applicant shall have his day in court to meet his accusers and his rights to a fair trial are properly secured under articles 49 and 50 of the Constitution. He will also be able to ventilate his case including the right to examine witnesses.

41. The applicant having fallen short of the threshold required for the exercise of this court's powers under judicial review to quash and prohibit the prosecution herein, the notice of motion fails and is dismissed. In the circumstances of this case, I direct that each party is to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER 2022. A. K. NDUNG'UJUDGE