[2022] KEHC 16173 (KLR)

Republic v Director of Public Prosecutions & 2 others; Mahinda (Exparte) (Judicial Review E020 of 2022) [2022] KEHC 16173 (KLR) (Judicial Review) (8 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16173 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E020 of 2022

AK Ndung'u, J

December 8, 2022

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

The Inspector General of Police

2nd Respondent

The Honourable Attorney General

3rd Respondent

and

Joyce Njeri Mahinda

Exparte

Judgment

1. The application before this court is the ex parte applicant’s notice of motion application dated March 4, 2022 which seeks a number of orders as follows;1. That an order of certiorari be and is hereby issued quashing the decision of the 1st respondent to charge the ex parte applicant herein with the offence of obtaining money by false pretence contrary to section 313 of the Penal Code, cap 63, Laws of Kenya in Makadara Law Courts Chief Magistrate’s Court criminal caseNo 1902 of 2021, Republic v Joyce Njeri Mahinda.2. That an order of prohibition be and is hereby issued prohibiting the 2nd respondent from arresting, investigating and/or preferring any charges whatsoever against the ex parte applicant herein on account of the same facts in Makadara Law Courts Chief Magistrate’s Court criminal case No 1902 of 2021; Republic v Joyce Njeri Mahinda.3. Spent4. That the costs of this application as well as the interest thereon be borne by the respondents.” 2. The application is supported by a statutory statement dated February 17, 2022 and a verifying affidavit of even date sworn by the ex parte applicant.

3. The ex parte applicant’ s case is that the respondents’ decision to prefer charges against her of obtaining money by false pretense contrary to section 313 of the Penal Codeis discriminative and an abuse of the 1st respondent’s powers. The brief background of the ex parte applicant’s case is that sometime between 10th and April 12, 2021 while engaged at Puja Prime Motors, she was called by one Brian who also works at the said dealership to assist with the sale of motor vehicle KCA 971A to Ann Adhiambo Okello.

4. Upon successful negotiations the ex parte applicant claims that she filled in the sale agreement and even signed as a witness on behalf of Puja Prime Motors. Subsequently the purchase price was received in part on April 10, 2021 the sum of Kshs 500,000/= and a receipt issued and on April 12, 2021 the sum of Kshs 150,000/= and a receipt also issued. Both of the sums were received by the ex parte applicant and receipts also issued by her.

5. The ex parte applicant argues that before the purchase, the purchaser had conducted due diligence and Josphat Avulwa Musungu made a transfer of the vehicle to Anne Adhiambo Okello on his NTSA TIEMS account. It is argued that difficulties started when the ex parte applicant was summoned by police officers from Nairobi area on June 16, 2021 to explain the circumstances regarding the sale of the said motor vehicle as there was an allegation that it had been stolen. It is contended that she was informed Anne Adhiambo Okello and herself would be called as state witnesses in criminal case number E1130 of 2021 before Kibera law courts. According to the ex parte applicant, the charge sheet in the above case made no reference to motor vehicle KCA 971A.

6. This would later culminate in the ex parte applicant being summoned at the Buru Buru police station to record a statement that she had obtained money by false pretence from the buyer of the said motor vehicle one Anne Adhiambo Okello and later on being charged at the Makadara law courts in criminal case 1902 of 2021 for the said offence.

7. The investigating officer’s witness statement is challenged as it is argued that she had indicated that she would wait for the outcome of the Nairobi area case but contrary to this she went ahead to charge the ex parte applicant on grounds that the said complaint had been referred back to Buruburu police station. The said charges are termed as discriminatory as Puja Prime Motors and Josephat Avulwa Musungu have not also been charged yet they were involved in the said transaction. The complainant is also said to have filed claim No E214 of 2021 at the Small Claims Court against Puja Prime Motors seeking to recover the sum of Kshs 650,000. 00/=.

8. The 1st and 2nd respondents in response filed a replying affidavit sworn by corporal Agnes Adhiambo Otieno. In the affidavit the deponent depones that they received a complaint from Anne Adhiambo Okello (the complainant) and her husband Timothy Kenyala that Joyce Njeri Mahinda, who posing as the owner of motor vehicle KCA 971A, toyota premio white in colour fraudulently obtained money from the complainant. This conclusion was reached when the complainant’s husband while driving the said motor vehicle on June 15, 2021 was arrested by DCIofficers from Nairobi area on grounds that he was in possession of a stolen vehicle.

9. Corporal Agnes avers that upon investigations it was identified that it was indeed the applicant who had handled the transaction and received the sum of Kshs 650,000/=.As evidence the DCI officers relied on a copy of a sale agreement issued by the applicant, a copy of the logbook in respect of the said motor vehicle and receipts with serial numbers 395 and 396 of Kshs 500,000/= and Kshs 150,000/= respectively. This led to the criminal case at Makadara Chief Magistrate’s Court against the applicant herein.

10. I have considered the application, the affidavit evidence as well as the submissions before this court, it is my view that the issues for determination are; Whether the applicant has established the legal threshold for the grant of the judicial review orders sought and, secondly, who bears the costs of the application.

11. The legal basis for the 2nd respondent's broad and unfettered jurisdiction over public prosecutions is article 157 of the Constitution. The 2nd respondent may initiate criminal actions without obtaining permission from any person or authority, and may carry out his or her duties without being directed or subject to control by anybody. However, he or she must respect public interest, the interests of administering justice, and the necessity to prevent and avoid misuse of the legal system as per the dictates of sub article 11 of article 157 the Constitution.

12. 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'sguidelines and is overseen by this court in accordance with article 47 of the Constitution.

13. 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 ODPPActare 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”

14. Paragraph 4 (B)(2) 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.”

15. Further in Diamond Hasham Lalji (supra), the court 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”

16. At para 45 it continues 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.”

17. Obviously, the standard of review of the discretion of the DPP to prosecute or not to prosecute is high and courts will only interfere with the exercise sparingly. Lenaola J (as he then was) summed it up aptly in Patrick Ngunjiri Muiruri v DPP [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.”

18. In the case before me it is not in dispute that the complainant purchased a motor vehicle KCA 971A at the sum of Kshs 650,000/= and that it is the ex parte applicant who, although alleging to been handling the said transaction on behalf of one Brian who also works at the said dealership and Puja Prime Motors, undertook the said transaction up to completion, evidence to that effect has been adduced.

19. The applicant is now 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 theDPP's constitutional authority under article 157, evidence was gathered and presented to the 1st respondent before charges against the applicant were instituted.

20. The applicant before this court contends that criminal case number 1902 of 2021 before Makadara Law courts is frivolous, vexatious and an abuse of court process and to buttress this argument the case of Kuria & 3 others v The Attorney General[2002] eKLR is cited.

21. 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. The ex parte applicant also refers to the case of Benard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR on the role of the director of public prosecutions.

22. The respondents on the other hand contend that the 2nd respondent’s authority to investigate is derived from article 245 of the Constitution,2010 and section 35 of the National Police Serves Act,2013. This, it is urged, is what allows the DCIand any other investigative agency to investigate the ex parte applicant if there is probable cause to do so and it is only when the applicant establishes that the DCI is acting ultra vires its powers that the court can interfere.

23. In support of this argument the cases of Dr Alfred N. Mutua v The Ethics and Anti-Corruption Commission & others,Misc application No 31 of 2016,Republic v The Commissioner of Police & the Director of Public Prosecutionex parteMichael Monari & another Misc application No 68 of 2011 and Cascade Company Limited v Kenya Association of Music Production (KAMP) & others, petition No7 of 2014 are cited.

24. It is also the respondent’s case that the 1st respondent’s prosecutorial powers are stipulated under article 157 of the Constitution and restated under section 5 of theOffice of Director of Public Prosecutions Act. This authority has also been restated by the courts in cases such as HonJames Ondicho Gesami v The Attorney General & others, petition No 376 of 2011. a.It is argued for the respondents that the primary test in making of a prosecutorial decision on the part of the 1st respondent is whether or not the material gathered meets the evidential and public interest threshold. In addition, that the emasculation of independent constitutional offices and organs would be dangerous for a country that believes in the rule of law and separation of powers.

25. The respondents contend that where a litigant brings before a judicial review court contested matters of facts and urges it to determine the merits of the two or more versions presented before it the court would not have the jurisdiction to determine such a matter. For this proposition, the case of Republic v Attorney General & 4 others ex parte Kenneth Kariuki Githii [2014] eKLR is cited.

26. I have considered the rival positions taken by the parties herein. I have put into account the replying affidavit of corporal Agnes Adhiambo Otieno 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.

27. 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. I acknowledge the contested set of facts presented in this application. This court would, however, 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.

28. 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.”

29. Ultimately, the burden of proving that the decision to prefer charges against her is discriminative and an abuse of the 1st respondent’s powers falls on the ex parte applicant. From the material before court, the ex parte applicant has not discharged this burden. I find no basis upon which to interfere with the constitutional mandate of the 1st respondent. The applicant shall have her day in court to meet her accusers and her rights to a fair trial are properly secured under articles 49 and 50 of the Constitution. She will also be able to ventilate her case including, but not limited to, the right to examine witnesses.

30. From the foregoing and for reasons above stated, I make a finding that theex parteapplicant’s notice of motion dated March 4, 2022 is without merit and I therefore dismiss it. Each party to bear its own costs. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2022. ....................................................A. K. NDUNG'UJUDGE