[2022] KEHC 12905 (KLR)

Republic v Director of Public Prosecutions & 2 others; Pkiach & 6 others (Interested Parties); Rianosa (Exparte) (Judicial Review Application 002 of 2022) [2022] KEHC 12905 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12905 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Judicial Review Application 002 of 2022

WK Korir, J

September 12, 2022

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Directorate of Criminal Investigations

2nd Respondent

Kapenguria Law Courts

3rd Respondent

and

Patrick Pkiach

Interested Party

Paul Pkoron Chepotpot

Interested Party

Benson Naitalima Lomerikor

Interested Party

Pekon Ngoriarita Diakayo

Interested Party

Loliingareng Riwale

Interested Party

Ibrahim Loseker

Interested Party

Joseph Katukumwok Lolem

Interested Party

and

Enos Lomorle Rianosia

Exparte

Judgment

1. The ex parte Applicant, Enos Lomorle Rianosia, through the notice of motion dated February 8, 2022 seek judicial review orders as follows:a)That this Hon. Court be pleased to issue an order of certiorari to remove into this Hon. Court and quash the entire criminal case and the entire proceedings in Kapenguria Principal Magistrate’s Criminal Case No. E001 of 2021: Republic versus Enos Lomorle Rianosia.b)That this Hon. Court be pleased to issue an order of prohibition, to prohibit the 1st, 2nd and 3rd respondents herein, that is the Director of Public Prosecutions (DPP), Directorate of Criminal Investigations and the Principal Magistrate’s Court Kapenguria from prosecuting, trying, hearing or taking of further proceedings whatsoever in Kapenguria Principal Magistrate’s Court Criminal Case No. E1006 of 2021: REpublic versus Enos Lomorle Rianosia.

2. The application is supported by the grounds on its face, the supporting affidavit sworn by the ex-parte Applicant and the application for leave dated January 24, 2022in Kapenguria HC JR Application No. 1 of 2022, Republic v Director of Public Prosecutions & others ex-parte Enos Lomorle Rianosia.

3. The Director of Public Prosecutions, the Directorate of Criminal Investigations and the Principal Magistrate Kapenguria Law Courts are the respective 1st, 2nd and 3rd respondents. Patrick Pkiach, Paul Pkoron Chepotpot, Benson Naitalima Lomerikor, Pekon Ngoriarita Diakayo, Lolingareng Riwale, Ibrahim Loseker and Joseph Katukumwok Lolem who are said to be former representatives of Orwa Group Ranch are named as interested parties. Orwa Group Ranch shall henceforth be simply referred to as the Group.

4. Even though the ex-parte Applicant does not introduce or identify the parties in his pleadings, I will identify them by their constitutional and statutory functions in an attempt to establish the basis upon which they have been made parties to these proceedings. The 1st Respondent, the Director of Public Prosecutions (DPP) by virtue of Article 157 of the Constitution exercises prosecutorial authority in Kenya against any person before any court, except a court martial, with respect of any criminal offence alleged to have been committed. The 2nd Respondent, the Directorate of Criminal Investigations (DCI), is an organ of the National Police Service which is a creature of Article 243 of the Constitution. The DCI which is under the command of the Inspector-General of the National Police Service derives its criminal investigatory powers from its establishing instrument which is the National Police Service Act, 2011.

5. The 3rd Respondent is a subordinate court established pursuant to Article 169(1) of the Constitution and Section 5 of the Magistrates’ Courts Act, 2015. The functions of the 3rd Respondent includes the trial of criminal cases which fall within its jurisdiction.

6. It is the ex-parte Applicant’s case that the charges preferred against him in Kapenguria Principal Magistrate’s Court Criminal Case No. E1006 of 2021, Republic v Enos Lomorle Rianosia are an advancement of a civil dispute between the current and former officials of the Group hence against public interest and amounts to abuse of criminal process by the 1st and 2nd respondents. He avers that the interested parties had vide Kitale ELC Kitale JR App. No. 5 of 2019 sought to quash the certificate of incorporation issued on 5th October, 2016 to the current representatives of the Group and an injunction to restrain subdivision of the land parcels belonging to the Group but the application was struck out with costs for being incompetent. The ex-parte Applicant avers that he is one of the current representatives of the Group.

7. The ex-parte Applicant also avers that through orders issued on December 18, 2019in Kapenguria HC Miscellaneous Application No. 18 of 2019, this Court reversed and set aside orders issued in Kapenguria PM’s Court Miscellaneous Criminal Application No. 93 of 2019 which had frozen the bank account of the Group held at Equity Bank, Kapenguria Branch. It is the ex-parte Applicant’s case that after the lifting of the freezing orders, he alongside other officials accessed the bank account and withdrew funds which they distributed amongst the Group members. He avers that the said withdrawal and disbursement is the basis of the first count in the criminal proceedings which he seeks to quash through this application. According to the ex-parte Applicant his prosecution is an abuse of the criminal process as it is meant to achieve extraneous goals.

8. The 1st and 2nd respondents opposed the application through a replying affidavit sworn on June 21, 2022 by Inspector of Police Walter Bett of DCI West Pokot County. This affidavit also serves as the 3rd Respondent’s reply to the application because on 11th May, 2022, counsel for the 1st and 2nd respondents had indicated to this Court that the replying affidavit that was going to be filed by his clients would serve as the response for all the respondents.

9. The crux of the respondents’ case is that on January 20, 2021, Inspector Bett was tasked to investigate a complaint raised in regard to the Group. The respondents state that upon finalization of the investigations, the file was forwarded to the DPP who reviewed it and recommended that the ex-parte Applicant should be charged alongside others not before court. They aver that it is upon the independent review of the investigations and the direction of the DPP that the Ex-parte Applicant was charged in Kapenguria Principal Magistrate’s Court Criminal Case No. E1006 of 2021.

10. According to the respondents, the investigations conducted by the DCI revealed that the ex-parte Applicant and his co-conspirators were not members of the Group but had falsified the record of elections and transacted on its behalf. The respondents further assert that JR Application No. 5 of 2019 was struck off on a technicality and was therefore not determined on merit.

11. Finally, the respondents aver that the DCI and the DPP did not violate any provisions of the law in investigating and prosecuting the ex-parte Applicant. This Court is therefore urged to dismiss the application.

12. In submissions dated July 5, 2022, the ex-parte Applicant reaffirms his pleadings and submits that his criminal trial was not commenced in the public interest as it was motivated by extraneous reasons hence the entire criminal process should be quashed by this Court. He submits that in initiating the criminal case against him, the 1st Respondent did not exercise his powers in accordance with Article 157(11) of the Constitution. The ex-parte Applicant relies on the cases of Patrick Ngunjiri Maina v Director of Public Prosecutions & 2 others [2017] eKLR; Republic v Commissioner of Police & another ex-parte Michael Monari & another [2012] eKLR; andRepublic v CMC at Mombasa ex-parte Ganijee & another, Mombasa HC Misc. Application No. 64 of 2001 to highlight the principles underpinning the exercise of the powers of the 1st and 2nd respondents. He further submits that the actions of the 1st and 2nd respondents are meant to help some members of the Group to advance their civil claims which were dismissed by this Court and the Environment & Land Court at Kitale.

13. The ex-parte Applicant also submits that the three counts preferred against him in the lower court are related to a civil suit surrounding the ownership and operations of the Group. He urged this Court to find that the 1st and 2nd respondents have not only abused their powers and discretion, but have also exercised their discretion for an improper purpose.

14. In submissions dated June 21, 2022, the 1st and 2nd respondents argued that the decision to charge the ex-parte Applicant was not an abuse of discretion as it was rational and made pursuant to Article 157(6) of the Constitution. The respondents submitted that the 1st Respondent independently reviewed and analyzed the evidence contained in the file as compiled by the 2nd Respondent before issuing directions that the ex-parte Applicant be charged. They asserted that the decision to charge the ex-parte Applicant was therefore informed by sufficiency of evidence on record and was not arbitrary. Reliance was placed on the case of Republic v Kenya Revenue Authority & 2 others[2013] eKLR to submit that it is only a trial court that can pronounce on the criminal liability of an accused person or make a decision on charges preferred against the accused person.

15. The respondents also submitted that it is for the trial court to determine whether a charge can be sustained against the ex-parte Applicant based on the evidence relied upon by the 1st Respondent to institute the charges against him. In support of this argument, the respondents placed reliance on the cases of Republic v Commissioner of Police & another ex-parte Michael Monari & another [2012] eKLR and Republic v Kenya Revenue Authority & 2 others [2013] eKLR.

16. In opposition to the prayer for an order of certiorari, the respondents submitted that the 1st Respondent is the only organ constitutionally mandated to undertake criminal prosecutions in Kenya. Further, that the 1st Respondent screens investigation records and evidence before preferring criminal charges. According to the respondents an order of certiorari would infringe upon the independence of the 1st Respondent to assess whether there is indeed a prima facie case against the ex-parte Applicant. Reliance was based on the case of Thuita Mwangi & another v Ethics and Anti-Corruption Commission & 3 others, Petition No. 153 of 2013 to further submit that this Court can only interfere with the actions of the 1st Respondent where it is proved that the powers have been exercised in excess of jurisdiction, which evidence is missing in this application.

17. The 1st and 2nd respondents also urged the Court not to grant the order of prohibition. They submitted that an order of prohibition is discretionary and should only be issued where there is evidence that a public body or individual has acted in excess of their powers. They argued that in this case, the ex-parte Applicant has not tendered any evidence to show that the respondents acted in violation or in excess of their lawful powers. Reliance was placed on the case ofKenya National Examination Council v Republic, Civil Appeal No. 266 of 1996 as stating the circumstances under which an order of prohibition can be issued.

18. Turning to the facts of the case, the respondents submitted that the criminal proceedings against the ex-parte Applicant cannot be said to be an abuse of the court process. They asserted that the allegations and accusations leveled against the 1st and 2nd respondents by the ex-parte Applicant have not been substantiated and there is thus no basis for declaring that the criminal proceedings are an abuse of the court process.

19. In summary, it was the respondents’ submission that they acted within the law, in a rational manner and took into consideration the public interest and policy during the investigations and the prosecution of the ex-parte Applicant. The case of Republic v Commissioner of Police & another ex-parte Michael Monari & another [2012] eKLR was relied upon to urge this Court to find that the 2nd Respondent has unfettered investigatory powers on any criminal complaint raised by members of the public.

20. Upon perusing the notice of motion, the supporting affidavit, the statement of facts, the replying affidavit and submissions by both parties, the issue that emerges for the determination of this Court is whether the 1st and 2nd Respondents acted in excess of their powers.

21. The ex-parte Applicant faces three counts in Kapenguria Principal Magistrate’s Court Criminal Case No. E1006 of 2021, Republic v Enos Lomorle Rianosia. In the first count he is charged with obtaining money by false pretence contrary to Section 313 of the Penal Code. In the second count he is charged with obtaining registration contrary to Section 320 of the Penal Code and in the third count he said to have made a false document contrary to Section 347 of the Penal Code. All these charges emanate from transactions relating to the leadership, operations and dealings in the properties and finances of the Group.

22. As correctly submitted by the respondents, it is not within the ambit of the powers of this Court to delve into the evidence the prosecution intends to adduce at the trial in support of their case. The duty to examine and weigh the evidence in order to determine its veracity and adequacy belongs to the trial court. This principle of law was stated by the Court of Appeal in Uwe Meixner & another v Attorney General[2005] eKLR as follows:“The criminal trial process is regulated by statutes, particularly, the Criminal Procedure Code and the Evidence Act. There are also constitutional safeguards stipulated in section 77 of the Constitution to be observed in respect of both criminal prosecutions and during trials. It is the trial court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. Had leave been granted in this case, the appellants would have caused the Judicial Review court to embark upon an examination and appraisal of the evidence of about 40 witnesses with a view to show their innocence. That is hardly the function of the judicial review court. It would indeed, be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court."

23. In view of the above statement of law, it follows that the only power granted to this Court is to assess whether the decision to charge and prosecute the ex-parte Applicant was made within the legal and constitutional provisions that regulate the operations of the 1st and 2nd respondents. The Constitution establishes the National Police Service under Article 243. Section 24 (e) of the National Police Service Act, 2011 (NPS Act) provides that one of the functions of the police is the investigation of crimes. Section 28 of the NPS Act establishes the DCI and places it under the command and control of the Inspector General of Police.

24. Section 35 of the NPS Act provides the functions of the DCI thus:“(a)collect and provide criminal intelligence;(b)undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;(c)maintain law and order;(d)detect and prevent crime;(e)apprehend offenders;(f)maintain criminal records;(g)conduct forensic analysis;(h)execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;(i)co-ordinate country Interpol Affairs;(j)investigate any matter that may be referred to it by the Independent Police Oversight Authority; and(k)perform any other function conferred on it by any other written law.”

25. As for the decision to prosecute criminal cases and the actual prosecution of the same, Article 157(6) & (10) of the Constitution grant those powers to the DPP as follows:“(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(b)take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and(c)subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b)…(10)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.”

26. The powers granted to the DPP are, however, not limitless and must be exercised within the boundaries set by Article 157 (11) which states that:“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.”

27. The cited provisions not only outline the functions but also the basic standards that the 1st and 2nd respondents must adhere to in the discharge of their mandates. Article 157(11) of the Constitution specifically set the factors to be taken into account by the DPP prior to making any decision in the line of duty.

28. It is apparent from the constitutional and statutory foundation of the National Police Service that the DCI has a constitutional mandate to investigate any crimes and offenses suspected to have been committed by any person. Upon finalizing this duty, the DCI is then required to submit its findings to the DPP whose mandate is to independently assess the findings of the DCI and if satisfied that a crime might have been committed, prosecute the matter by preferring charges against the subject of the investigation.

29. The question then is whether in investigating the ex-parte Applicant and preferring charges against him, the 1st and 2nd respondents exercised their constitutional mandates with malicious intention thereby occasioning an abuse of the criminal process. Whereas courts do recognize the independence of the 1st and 2nd respondents, the courts are empowered by the Constitution and the laws of this country to check any wayward action by the 1st and 2nd respondents and give appropriate relief to any victim. In this regard the Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR held that:“(41)Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases…Although the standard of review is exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP.(42)The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.”

30. In Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR the High Court stated that it has the power to review the foundational basis of the DPP’s decision to charge. The Court stated that:“243. We agree that there is a real danger of courts overreaching if they were to routinely question the merit of the DPP’s decisions. However, there are circumstances where the type of scrutiny set out in the majority decision of Njuguna S. Ndungu (supra) is called for. Should there be credible evidence that the prosecution is being used or may appear to a reasonable man to be deployed for an ulterior or collateral motive other than for advancing the ends of justice, then a scrutiny of the facts and circumstances of the case is not only necessary but desirable. This is because it would enhance the administration of justice if the challenged charges were to be properly tested so that any fears of ill motive are dispelled.244. To be underscored is that judicial review of the foundational basis of a charge should only be undertaken when an applicant has first established that there are reasonable grounds that the challenged proceedings are a vehicle for a purpose other than a true pursuit of criminal justice. To allow a willy-nilly and casual review of the foundational basis of criminal charges would be to turn judicial review proceedings into criminal mini-trials, a prospect that anyone keen to stop a criminal trial would relish. The question is whether the present case fits into the latter scenario."

31. The jurisprudence from the cited decisions point to the fact that courts have a duty to promote justice and prevent injustice. The inherent power bestowed upon this Court to issue judicial review orders can only be exercised where it has been demonstrated by the applicant that to allow the prosecution to continue would be against the public interest and would amount to an abuse of the process of the court or infringe on the rights of the subject of the prosecution. In exercising the said power, this Court must be guided by the need to advance justice and not to frustrate it. It is therefore the duty of he who alleges abuse of power by the investigator and or the prosecutor to present evidence to the Court in support of the allegation that the powers granted to the said officers have been exercised unconstitutionally and in violation of statute. Without such evidence, the supplicant will leave this Court empty-handed to go and face the investigator and prosecutor at the trial.

32. A perusal of the ex-parte Applicant’s pleadings disclose that the main ground of his application is that the investigation and subsequent prosecution were lodged in furtherance of a civil dispute. In order to reach a fair conclusion, the chronology of the events leading to this application is relevant. The ex-parte Applicant traces the origin of the dispute to Kitale ELC JR Application No. 5 of 2019 where the interested parties herein are said to have moved the Court to quash the certificate of incorporation dated October 5, 2016issued to the ex-parte Applicant. The interested parties also allegedly sought to bar the current officials from subdividing the Group’s land. The application was dismissed. Subsequently, the 2nd Respondent vide Kapenguria PM’s Court Misc. Criminal Application No. 93 of 2019 sought and obtained orders freezing the accounts of the Group. The ex-parte Applicant avers that the freezing orders were later vacated on December 18, 2019 by this Court in Kapenguria HC Misc. Criminal Application No. 18 of 2019. It is the ex-parte Applicant’s argument that the charges against him in Kapenguria Principal Magistrate’s Court Criminal Case No. E1006 of 2021, Republic v Enos Lomorle Rianosia are meant to serve as an appeal in furtherance of the case and against the orders issued in Kitale ELC JR Application No. 5 of 2019.

33. On its part, the 2nd Respondent averred that the investigations into the alleged offences were commenced as a result of a formally lodged complaint. Inspector Bett averred that he was assigned the case on January 20, 2021. This is approximately one year after the Kitale Environment and Land Court orders that went in favour of the ex-parte Applicant were issued. The 2nd Respondent has disclosed the evidence gathered on the matter and which formed the basis upon which the 1st Respondent independently reviewed the file and recommended prosecution.

34. The only disturbing thing about the respondents’ case is that the complaint letter addressed to the 2nd Respondent was not attached as evidence in this matter. In my view, this letter would have informed this Court the basis upon which the complaint was made and the contents or facts surrounding the complaint. Be that as it may, I note from the replying affidavit of Inspector Bett that the complaint to the 2nd Respondent was made in April 2019. JR No. 5 of 2019 was filed at Kitale Environment and Land Court in May, 2019 and the ruling delivered on November 19, 2019. The application before Kapenguria Magistrate’s Court seeking to freeze the Group’s bank account was made by the 2nd Respondent on October 14, 2019 before the interested parties’ judicial review application was dismissed by the Environment and Land Court at Kitale.

35. From the highlighted chronology of events, it is apparent that the investigations which are the subject of the ex-parte Applicant’s criminal prosecution in Kapenguria Principal Magistrate’s Court Criminal Case No. E1006 of 2021 were set in motion prior to the lodging of Kitale ELC JR No. 5 of 2019. Therefore, even though the decision to charge was made after the ruling in Kitale ELC JR No. 5 of 2019, the same cannot be said to have been borne of malice or an attempt to appeal the ruling as alleged by the ex-parte Applicant.

36. I therefore find that despite alleging that his prosecution is as a result of unconscionable exercise of powers by the 1st and 2nd respondents, the ex-parte Applicant has not put forth concrete evidence to affirm this notion. It is also important to point out that the current constitutional dispensation requires the 1st and 2nd respondents to act independently of each other. For one to succeed in a matter like the one before this Court, it is advisable to launch a twin-pronged attack against both the investigator and the prosecutor’s actions and decisions. Evidence ought to be adduced establishing the fact that the two-tier process or part of it was marred with unfairness, unjust, extra-constitutional or unconscionable exercise of duty by either or both the 1st and 2nd respondents. In this case, no such evidence was placed before the Court. Indeed, the reply of the respondents is that the ex-parte Applicant is an imposter who has captured the interested parties’ entity and used it for economic gain. They allege that he is not a member of the Group. That is a serious allegation which the ex-parte Applicant must answer to at the trial. I therefore find that the ex parte Applicant has not advanced a case to warrant the issuance of the orders sought in the notice of motion dated 8th February, 2022. His application for judicial review orders is therefore dismissed.

37. Even though the general rule is that costs follow the event, the discretionary power of the court on the award of costs remains unfettered. In this matter, the respondents are public entities while the interested parties are complainants and or witnesses with interest or stake in the pending criminal case against the ex-parte Applicant. I take cognizance of the good conduct of the parties in this matter. I also bear in mind that although the ex-parte Applicant has not been successful, his application was not frivolous as it is aligned to the advancement of constitutional rights and principles. This being the case, I will not saddle the ex-parte Applicant with costs. I therefore direct each party to meet own costs of the proceedings.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF SEPTEMBER, 2022. W. KORIR,JUDGE OF THE HIGH COURT