[2017] KEHC 9401 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW NO. 429 OF 2016

(FORMERLY MOMBASA JUDICIAL REVIEW NO. 54 OF 2016)

IN THE MATTER OF AN APPLICATION FOR LEAVE TO FILE FOR JUDICIAL REVIEW ORDERS OF PROHIBITION

AND

IN THE MATTER OF LR NO.209/1817, LR NO.209/12513, LR NO.209/489/34 AND LR DAGORETTI/RIRUTA/2289

AND

IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT

AND

IN THE MATTER OF ARTICLE 29 OF THE CONSTITUTION OF KENYA

REPUBLIC......................................................................... APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTIONS............... RESPONDENT

AND

COMMERCIAL BANK OF AFRICA LIMITED INTERESTED PARTY

EX PARTE:PATRICK KANGETHE NJUGUNA

EDWARD NJUGUNA KANGETHE

GEORGE JAMES KANGETHE

MARGRET WAMBUI KANGETHE

GLADYS NJERI KANGETHE

JUDGEMENT

Introduction

1. By a Notice of Motion dated 21st July, 2016, the applicants herein seek the following orders:

1. An order for judicial review of prohibition directed at the respondent staying any further investigations by its officers intended for the arrest of the applicants or their arraignment of prosecution in criminal courts in regard to matters touching on the legality or otherwise of titles and/or legal charges created over properties known as LR. NO. 209/1817; LR NO. 209/12513; LR NO. 209/2489/34 and Dagoretti/Riruta/2289 all belonging to the companies in which the applicants are directors.

2. Costs be in the cause.

Applicant’s Case

2. According to the applicants, they are Directors in various Companies which own Titles which are the subject matter of the proceedings herein i.e. Ndonga Limited, Wardpa Holdings Ltd and Kinjunje Garden Ltd. It was disclosed that the Properties in issue are LR No. 209/1817; LR No. 209/12513; LR No. 209/2489/34 and Dagoretti/Riruta 2289 (hereinafter referred to as “the suit properties”) whose titles are charged to the interested party herein, Commercial Bank of Africa, (hereinafter referred to as “the Bank”).

3. According to the applicants, following failure by the Companies to service the loan the Bank has exchanged various correspondences with the said Companies and in the recent past instructed Auctioneers to realize the Securities. However, M/s Ndonga Limited has since filed legal action against the Bank.

4. It was disclosed that the Officers of the Respondents from Land fraud department have however on the sides purported to initiate Criminal investigations on the legality or otherwise of the Titles and Charge Documents executed in favour of the Bank which investigation were commenced in June, 2016 secretively without involving or inviting any of the applicants.

5. According to the applicants, on 11th July, 2017 the said Officers of the Respondent issued threats to the Applicants to the effect that they would before the end of week arrest and arraign the Applicants in Criminal Courts on matters touching on the said Titles and which are of a purely commercial nature between the companies and the Bank. It was the Applicants’ case that the said Officers of the Respondent by the said conduct are abusing the Respondent’s mandate in the Criminal sphere and will upset the Applicants fundamental freedom and rights unless halted by an Order of Prohibition.

6. According to the applicants, the Respondent ccompletely failed to explain the reason as to why it decided to arrest one of the Applicants, namely Margaret Wambui Kang’ethe on 16th September, 2016 whereby she was arraigned in Court on 19th September, 2016 despite the fact that on 13th September, 2016 Mr. Joseph Kiragu together with another C.I.D. officer were present in Court before Hon. Justice P.J. Otieno in Mombasa when this matter, then cited as Mombasa Judicial Review Application No. 54 of 2016 came up for hearing whereby the Respondent was represented by Mr. Alexander Muteti, Advocate; when the said Court categorically stated that the Order of stay of the arrest and arraignment of the Applicants was to be maintained pending the placing of this file before the Judicial Review Division in Nairobi High Court.

7. It was averred that the Court file was then subsequently transferred to Nairobi but the Respondent, despite the existence of the said Order restraining the arrest and arraignment of the Applicants in a criminal Court on matters relating to complaints by the Bank, improperly arrested the 4th Applicant and arraigned her in Court on 19th September, 2016.

8. It was the applicants’ case that the Respondent was abusing the process of the Court and pointed out that:

i. The Bank filed Nairobi (Milimani) ELC No. 93 of 2016 against the Applicants and others in respect of their alleged claim against the Applicants and obtained some interim orders. The Applicants filed their response thereto and the matter is still on-going. The said case is a complete replica of the matters raised in the criminal case filed by the Respondent against the Applicants being Nairobi Chief Magistrate’s Criminal Case No. 1021 of 2016, D.P.P. vs Patrick Kang’ethe Njuguna & Others.

ii. The Bank’s claim against the Applicants is really one for monies advanced by the Bank to the Applicants. As aforesaid the said claim is replicated in the said criminal charges so that the criminal case is another attempt by the Bank to prove the allegations are as made against the Applicants in the said civil case.

9. According to the Applicants, when the Bank realized that critical issues arose in the said civil matter, it suddenly introduced a criminal angle to the said matter as is apparent from the analysis of the following facts:

i. The Interested Party referred the issue to the C.I.D. in August, 2016 while the civil case was filed in February, 2016.

ii. It is accordingly untrue for Mr. Joseph Kiragu to allege that the investigations commenced in February, 2016. Indeed if that was so, there is no reason why the Applicants would not have been summoned by the Respondent earlier than August, 2016. On the contrary it is plain that the Bank filed Nairobi (Milimani) ELC No. 93 of 2016on 5th February, 2016. Therefore if the matter herein fell more in the province of criminal law than civil law, the Respondent would have been involved way back in February, 2016.

iii. The involvement of the Respondent in this matter in August, 2016 amounted to abuse of power and it is undeniable that the Bank is owned by members of the family of the President of this country. As such, it seems quite clear that the Respondent has completely thrown caution and reason to the wind in so far as this matter is concerned as the Respondent seems to be bending twice over so as to be seen to please the powers that be. If that was not so, the Respondent should have made it a condition to the Bank to choose whether the Bank wanted to approach the matter through the criminal justice system or the civil justice system.

iv. Moreover, bearing in mind the clear orders made by Hon. Justice Otieno decorum and good manners dictated that before arresting and arraigning any of the Applicants in Court on matters that involved the issues of the loan taken by the Applicants from the Bank and which was subject of the said civil case and this case, the Respondent would have indicated to this Court that it intended to arraign any of the Applicants in a criminal court otherwise the Respondent would appear to be operating outside the court system.

10. The applicants asserted that the fact of the matter is that the Applicants who borrowed some money from Bank and in the process who provided some securities for the said facility are the Defendants in the said civil case. The issue affecting that loan is the one pending in the civil court and also in the said criminal court. It cannot be segmented and it is in that spirit that Hon. Justice Otieno restrained the Respondent from arresting and arraigning the Applicants while this matter is pending.

11. The applicants denied the allegation that either Mr. Kirathe Wandugi, Advocate or Mr. Gikandi Ngibuini, Advocate who were acting for the Applicants acted unprofessionally or unethically as alleged by Mr. Joseph Kiragu in the manner that they have handed the Applicants’ brief otherwise this would have been reported to the trial court or Law Society of Kenya.

12. To the contrary the applicants contended that it is the Respondent who is acting unprofessionally or unethically in that having fully participated in the proceedings herein they proceeded to arraign the 4th Applicant in a criminal court and would have arraigned the other Applicants in court had this court not stepped in, in the nick of time. To the applicants, the Respondent is clearly making a mockery of this Court by pretending that it is superior to this court.

13. According to the applicants, they were only made aware of the Respondent’s involvement in the matter between the Applicants and the Bank vide a letter dated 11th August 2016 from the Respondent, a fact the Respondent never disputed.

14. In the meantime, the Respondent had filed Milimani ELC No. 93 of 2016 against Donga Limited which the Applicants have an interest in claiming that the said Donga Limited had acted fraudulently in a manner in which it procured financial accommodation for the Bank. It was therefore the ex parte applicants’ case that the Respondents had completely failed to address themselves to the fact that in respect of the same issue there are now 2 parallel proceedings namely the said civil case and the criminal case.

15. The ex parte applicants averred that there was no evidence that the matter was referred to the Police in February 2016 and even if that was the case, it is apparent that the Bank elected to pursue justice via the civil justice system. It is also apparent that the involvement of the Respondent in the matter appears to have been brought in when the Bank realized that its civil case was not progressing in the manner that the Bank would have wanted. In the circumstances the involvement of the Respondent in the matter was for reasons other than in pursuit of criminal justice.

16. It was therefore the ex parte applicants’ case that to allow the two legal processes to proceed simultaneously would create an awkward situation which would eventually be comical, a scenario the ex parte applicants believed Article 10 of the Constitution of Kenya 2010 outlaws.

17. It was submitted on behalf of the applicants that there are 2 applications before the Court namely Application by the Respondent dated 25th August, 2016 and the Applicants application dated 21st September, 2016.

18. It was reiterated that there exist Nairobi (Milimani) Environment & Land Court suit No. 13 of 2016 filed by the Bank against the Applicants on 6th February, 2016. In the said suit, the Bank refers to the term loan facility offered by it to the Applicants in the sum of KShs.100,000,000/= and alleges that in taking the said loan, the Applicants committed a number of fraudulent acts. To that suit the Applicants filed a Defence and the said matter is still proceeding in the said Environment & Land Court. The Applicants contended that the issue between them and the Bank is one of money that was advanced by the Bank to them. It is as a result of the Interested Party contending that the Applicants committed fraud in procuring the said loan that the said suit was filed. In the fullness of time, it was submitted that the said Court will be required to determine whether or not the Applicants actually committed fraud or not which determination can only be made by that particular Court and nobody else.

19. It was submitted that it is only in the month of August, 2016 that the Bank lodged a complaint of a criminal nature with the Respondent claiming that in procuring the said loan, the Applicants had committed fraudulent acts. It is then that the Respondent moved with a speed and decided to prosecute the Applicants for the said alleged fraud without caring to interrogate the issue with any objectivity principally because the Bank is an entity that is owned by members of the first family, an averment that has not been controverted at all.

20. In support of their submissions the applicants relied on Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR,Linus Nganga Kiongo& 3 Others vs. Town Council of Kikuyu [2012] eKLR,Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001, for the proposition that where a party fails to controvert an averment or evidence given on an issue, that issue is deemed as proved as per the averment or evidence given.

21. In further support of their case the Applicants also pointed out that Hon. Justice P. J. Otieno made categorical orders on 13the September, 2016 to the effect that the Applicants were not to be arrested and arraigned in a Criminal Court on the complaint made by the Bank relating to the issue of the loan advanced to the Applicants by the Bank until the matter had been mentioned before the relevant Court (now this Court) in Nairobi which order the Respondent ignored when he arrested the 4th Applicant on 16th September, 2016 and charged her with the other Applicants with the offence of fraud against the Bank which were a reflection of the claims made in the said civil case. It was therefore the Applicants’ case based on R .v. Town Clerk, Mwingi Town Council (2016) eKLR that the Respondents should not be heard until they purge their contempt.

22. This action, it was submitted was prompted by the need to prove to the members of the first family one of whom is His Excellency President Uhuru Kenyatta who enjoys the Executive Authority of this Republic that the Respondent was on top of the matter in pressing the Applicants to own up to the alleged fraud. It was submitted that having elected to proceed through the civil justice system in the adjudication of their grievance against the Applicants, the Bank and therefore the Respondent have to wait for the said process to be completed before opening another parallel legal process and to fail to do so will result in the following abuses:-

a. An awkward legal situation will be created whereby the High Court, sitting in its civil jurisdiction may return a decision on the alleged issue of fraud, that is dramatically different from the one that the chief magistrate’s criminal court may return on the same issue.

b. Citizens should not be placed on the horns of dilemma, that is, why should the Applicants spend time, energy and money in defending themselves on the very same issue of fraud made by the Bank before the High Court and the Chief Magistrate’s Court.

c. Power must not only be exercised fairly but must be seen to be exercised fairly. Where allegations of bias are made, it is not so much a case of the applicant proving the same but demonstrating that there is a genuine perception that there may be bias. In the circumstances considering the manner that the Respondent has been conducting itself that it even defied a Court Order, public Interest cries out loudly for the Applicants to be protected by the Court.

23. It was the Applicant’s case that the sum total of the application of Articles 10, 47, 157 of Constitution as read together with the Director of Public Prosecutions Act is that the Respondent has to act fairly in all matters. It does not matter whether the complainant is the President or Deputy President or a beggar. The exercise of power by the Respondent has to be fair and it must be seen to be so. Considering the existence of the High Court suit, the Applicants perceives that the Respondent is being unduly pressurized by the Bank to prosecute the Applicants so that the Bank may secure an advantage against the Applicants in the said civil case. In support of this contention the applicants relied on A. G .vs. Anyang Nyongo & Others (2007) 1 EA 12 for the proposition that in matters of bias is really a question of perception. In this case, the manner that the Respondent has conducted itself has left the Applicant with a belief that the Respondent is biased against the Applicants. In further support of their case the applicants cited the following cases:

a. Teddy Ingosi Mudeki .vs. R (2013) eKLR which defines the words “Res Gestae”. To the applicants, the entire issue of the loan taken by the Applicants from the Interested Party is part of the same “Res Gestae”. It is part and parcel of the same issue and cannot be broken into bits and pieces.

b. CID & Others .vs. K.C.B. Ltd & Others (2013) eKLR where the Court of Appeal held viz: Clearly the Company and the guarantor…were employing criminal process to assist them in resolving their civil dispute…we have no doubt in our minds that the belated involvement of the police in this purely civil dispute is an abuse of their power…”

c. Joram M. Guantai .vs. Chief Magistrate, Nairobi (2007) ekLR where the Court of Appeal held the abuse of power in the criminal process would not be upheld.

24. The Applicants were further perturbed by the fact that there was no evidence that the C.I.D. had not referred this matter to the Director of Public Prosecutions so that he could determine whether the prosecution should be undertaken. To them, in the current legal dispensation, the C.I.D. or Police have no authority to present criminal charges before the Director of Public Prosecution has approved the same and relied on Article 157 of the Constitution as read with the Office Director of Public Prosecutions Act. In the applicants’ submissions, as the Police herein are quite biased against the Applicant, the Police will not stop at anything in their quest to short-circuit the system so that they may be seen to be working. In their support the applicants relied on R .vs. Director of Criminal Investigation Department & Others (2016) eKLR where the Court held thus: “……….I am however concerned that it would seem that the Applicants were taken to Court before the D.P.P. made a decision on whether they should be charged or not. That haste on the part of the police is clearly deplorable and cannot escape condemnation.”

25. To the applicants, this matter was always a civil matter that has been turned into a criminal matter so as to assist the Bank to gain an advantage against the Applicants in the said civil matter. Moreover, the Respondent as a state organ is under an obligation placed pursuant to Articles 10 and 47 of the Constitution of Kenya, 2010 to demonstrate that it has acted in an accountable and transparent manner in the way it has handled the issues herein. By dismissing this application, it was argued that the Court would create an absurd legal situation where the said matter is pending in two different Courts i.e. the Civil Court and the Criminal court which may render conflicting decisions in the matter.

26. It was argued that this Court as a defender of the Constitution has a jurisdiction to direct the stoppage of the criminal proceedings herein until the civil case is determined as it is clearly not acceptable in law to have those two parallel processes going on at the same time.

27. The applicants therefore urged the Court to allow the application made on 21st September, 2016.

The Respondents’ Case

28. The application was opposed by the Respondent.

29. According to the Respondent, the investigation begun after the office of the Director of Criminal Investigations received complaint from the Commercial Bank of Africa through letter dated 14th February 2016, 16th March 2016 and 6th June 2016 requesting for investigations of suspected loan frauds amounting to Ksh.449,051,999. 70/= by the bank’s three customers namely Ndonga Limited, Wardpa Holding Ltd and Kinjunje Garden Ltd in which the applicants are directors. According to the Respondent, the said fraud was unearthed by the Bank on 1st February, 2016, when the bank learnt that one of the properties in the name of M/s Ndonga Limited, whose purported original title deed was in the custody of the bank as security for one of the loans to Ndonga Limited had been advertised in the Daily Nation Newspaper for sale through public auction by Diamond Trust Bank (DTB) for non-payment of a loan facility that Ndonga Limited had secured at DTB but defaulted in paying. This, according to the Respondent, was an indication to the bank that the securities offered by the three customers were possible forgeries that required appropriate investigations.

30. It was the Respondent’s case that the said fraud was perpetrated through conspiracy between the bank employee Stephen Warui Mwaura working as the Relationship Manager, the directors of the above three companies and bank’s external valuation firms M/s Lloyd Masika Limited, Tysons Ltd, Mureithi Valuers Limited and external law firms of M/s Kithi & Co. Advocates and M/s Mboya Wangong’u & Waiyaki Advocates respectively. Upon investigations on all the respective securities that the three companies submitted to the bank to secure the above loans, it was established the securities were all forgeries as detailed here below.

31. It was expounded that loan facility of Kshs. 56 million to Ndonga Limited for property land reference no. 209/2489/34 Ngara was the first credit facility that was advanced by the Bank on 8th August, 2012 to the M/s Ndonga Limited through the introduction by the Bank Relationship Manager named Samuel Warui Mwaura and who was an ex-Fina Bank employee purporting that the borrower was a former valuable customer with Fina Bank (now GT Bank). It was averred that the facility was advanced to purportedly finance a commercial property in Ngara LR. No. 209/2489/34 owned by Glaret Kindergarten and represented by one Edna Khaemba of M/s Khaemba & Khaemba Advocates. The sale agreement and transfer was signed by holders of ID Card number 20354142 which Registrar of Persons indicated belonged to Joycatherine Nyambura Njeru and ID No. 21728317 belonging to Jane Irene Njeri Muchoki. The said security for the loan LR No. 209/2489/34 was approved by the Bank’s external valuers M/s Tysons Ltd through valuation of the property and search at Ministry of Lands who confirmed the property owner as Glaret Kindergarten Ltd. M/s Mboya Wangong’u & Waiyaki Advocates processed the pre and post registration of transfer and caveat searches, booking and registration of transfer and charge in favour of the Bank before approving disbursement of Kshs. 56 million to Glaret Kindergarten Limited account at Equitorial Commercial Bank.

32. The Respondents disclosed that the Registrar of Companies has confirmed that directors/shareholders of Glaret Kindergarten are Margaret Kangethe and her daughter Gladys Kangethe and not Joycatherine Nyambura Njeru and Jane Irene Njeri Muchoki who signed the transfer and sale agreement. Gladys is also a director of Ms Ndonga Limited and hence she was buying what she already owned. It was the Respondent’s case that the transfer and charges purported signed by land registrar Sarah Maina were forged and booking numbers were for different registration according to land officer Onesmus Mwakuni. To the Respondent, the bank account at Equitorial Commercial Bank where the facility was disbursed by the Bank was operated by Margaret Kangethe and Gladys Kangethe. According to the Respondent, the valuation report was processed by Tysons Ltd even before the Bank had given instructions and the transfer stamp duty of Ksh.3,200,040/- was purportedly paid by M/s Khaemba & Khaemba Associates through RTGS transfer from Bank of Baroda who confirmed that the RTGS was a forged document.

33. With respect to the loan facility of Kshs. 28. 8 million to Ndonga Ltd to purchase Mountain View property land reference no. 209/2489/34 (Ngara), it was averred that the facility was secured by a further charge of the Ngara property LR. No. 209/2489/34 and was advanced to purchase the property purportedly owned by GEP Ltd at Mountain View LR. No. 12948/214 I.R 43306. In this case according to the Respondent, the fraud was manifested clearly in the following aspects:-

i. The loan like others was granted through the bank approval process involving external valuers Tysons Ltd and Mboya Wangong’u and Waiyaki Advocates who perfected the securities through booking at Land Registry and registration of further charges purportedly signed by Land Registrar Charles Ngetich. The booking number and registration of further charge is also a forgery according to the statement of Charles Ngetich and Onesmus Mwakuni.

ii. That GEP Ltd who purportedly owned the Mountain View property is owned by Margaret Kangethe and her children Gladys, Edward and George Kangethe who are also the directors of Ndonga Ltd.

iii. The original certificate for Mountain View house LR. No. 12948/214 I.R 43306 (B-32) provided as additional security for 28. 8 million was forged to indicate that it had been transferred from GEP Ltd to Ndonga Limited. It was purportedly signed by Betty Atieno Land Registrar and booking numbers were for different registrations.

34. With respect to loan facility of Kshs. 100 million to Ndonga Limited for property land reference I.R 64007 LR. No. 209/12513 (woodland house), it was averred that the same was secured to finance the purchase of Woodland House along Moi Avenue LR. No. 209/12513 owned by Mr. Rameshchandra Shah and Mr. Navinchander Shah through their advocate Mr. Kirti Chunilal Shah of M/s Shah & Shah Advocates.

i. The loan was approved after a valuation by the Bank’s external valuers M/s Mureithi Valuers who attached a search from the Ministry of Lands to authenticate the security and registered ownership of the property as per Registrar of Lands records, while title security perfection were done by the Bank’s external law firm of M/s Kithi & Co. Advocates.

ii. The title deposited at Commercial Bank of Africa in relation to this property by external lawyers M/s Kithi & Company Advocates was a forgery.

iii. Search by the Bank’s external valuers M/s Mureithi Valuers, registration of transfers, charges in favour of the Bank and pre and post searches processed by Kithi & Co. Advocate purportedly signed on 17th December, 2013 were established to be all forgeries.

iv. The land registrar Charles Ngetich who is purported to have registered the two entries of transfer and charge that gave the Bank right of charge to the security (LR. No. 209/12513) states his signatures were forged as he was on leave the whole of the month of December 2013. Another land officer namely Onesmus Mwakuni charged with maintenance of booking register submitted in his statement that the entry numbers of transfer and the charge were for different registrations.

v. The transfer stamp duty of Ksh.5,000,040/- was purportedly paid by M/s Khaemba and Associates Advocates through an RTGS transfer from Bank of Baroda. The Bank of Baroda have however denied holding any account of M/s Khaemba and Associates Advocates.

35. The Respondent noted that the above property appears to have also been submitted as a security to secure another loan at Diamond Trust Bank by Ndonga Ltd which prompted Diamond Trust Bank to advertise on Daily Nation of 1st February 2016 through Dalali Traders Auctioneers for sale by public auction on the same security which triggered the complaint by the Bank on 6th June, 2016.

36. As regards the loan facility of Kshs. 100 million to Wardpa Holding Limited, it was averred that the facility was secured to finance construction of a 3 Star hotel in Ngara and secured by original title for LR. No. Dagoretti/Riruta/2289.

i. The loan too was granted through the approval processed by external Valuers M/s Lloyd Masika Ltd who provided certified searches purportedly signed by Betty Otieno which were forgeries while the security perfections of booking and registration of charges were done by law firm of M/s Kithi & Company Advocates which are also forgeries as stated by Land Registrar Bernard Leitich.

ii. According to the land records the property has no encumbrance registered in favour of the Bank.

iii.The loan was additionally secured by LR. No. 209/163/1/6 property under which the financed construction was taking place

iv. The construction took place and the hotel is currently known as Verckys Bar and Resort at Ngara.

37. According to the Respondent, the title deed No. 209/163/1/6 is also a forgery as the day book No. 340 dated 3/5/2012 for transfer to Wardpa Holdings Ltd was a forgery according to Land Registrar Betty Atieno. The facility was secured to purchase Princess hotel owned by Ms Henkam Limited under Provisional Certificate of Title IR 2630 LR No. 209/1817 and the loan was processed and securities perfected by M/s Lloyd Masika valuers and law firm of M/s Kithi & Company Advocates through booking, registration of transfer and charges. It was disclosed that the Advocate who acted for both the vendors (Henkam Limited) and the purchaser (Kinjunje Gardens Limited) is Edna Khaemba of Khaemba and Associates Advocates according to sale agreement and transfer instrument.

38. The Respondent contended that on instruction of the firm of M/s Khaemba and Associates Advocates through M/s Kithi & Company Advocates, the Bank disbursed the loan to the NIC Bank account of Edna Khaemba & Company Advocate at NIC Bank of Ksh.160 million while payment of Ksh.8,000,040/= transfer stamp duty was purported to have been paid to Commissioner of Domestic Taxes through the firm of M/s Khaemba & Associates Advocates at Bank of Baroda but the Bank denied having any such account with Khaemba & Associates Advocates in their books hence this document was a forgery.

39. According to the Respondent, the property LR No. 209/1817 Nairobi was sold by Ms Henkam Limited to Kinjunje Garden Limited through M/s LJA Associates Advocates at a price of Ksh.160 million through an Equity Bank Limited loan facility advanced to Kinjunje Garden Limited. A joint sale agreement prepared by LJA Associates Advocates between both parties is dated 14th February, 2014. It was averred that the Directors of Henkam Limited Ms Cecilia Kahigu and John Kahigu Magu have confirmed to have sold the said property to Kinjunje Garden Limited and payment made by Equity Bank Limited. According to the Respondent, M/s Khaemba and Associates Advocates made another sale agreement for property LR No. 209/1817 purporting to represent both Henkam Limited (vendor) and Kinjunje Garden Ltd (purchaser) dated 20th January, 2014. Further, the said M/s Khaemba and Associates Advocates made another agreement purporting that Patrick Kangethe Njuguna of Kinjunje Garden Ltd (vendor) was selling LR No. Kitengela/Kajiado/2260 to Henkam Limited (purchaser) for Ksh.40,500,000/- which was to be a part payment for the property LR No. 209/1817. M/s Khaemba and Associates Advocates made a transfer instrument for property LR No. 209/1817 from Henkam Limited (vendor) to Kinjunje Garden Limited (purchaser) purportedly signed by Cecilia Kahigu and John Kahigu Magu. It was averred that the Directors of Henkam Limited have confirmed that the photographs appearing on the transfer document prepared by M/s Khaemba and Associates Advocates were fictitious Directors of Henkam Limited and that their purported signatures were forged.

40. It was further disclosed that the Directors of Kinjunje Garden Limited and M/s Khaemba and Associates Advocates requested for a loan to purchase property LR No. 209/1817 Nairobi from Commercial Bank of Africa and the Bank advanced a loan of Ksh.160 million (the security being title for the said property LR No. 209/1817) to the account of M/s Khaemba and Associates Advocates at NIC Bank and that M/s Khaemba and Associates Advocates transferred the amount of Ksh.139,500,000/- to the account of Ndonga Limited, Kshs. 20,000,000/- to the account of Gituthu Gikonyo while Kshs.500,000/- was withdrawn in cash by Edna Khaemba. According to the Respondent, the loan amounting to Kshs. 160 million advanced by Commercial Bank of Africa Limited was not used for the purpose it was requested for and further all the documents including the title deed, transfer instrument and the charge were forgeries according to statements of Land Registrar Betty Atieno and Onesmus Mwakuni.

41. The Respondent’s case was therefore that the loan amounting to Kshs. 449,051,999. 50 disbursed by the Bank was secured using forged facilities and the bank therefore does not hold any legal charge against any of the property it is holding. The bank could not therefore exercise any right to the charges as the charges are all forgeries. Upon conclusion of investigations the investigation files were forwarded to the DPP to make a decision to charge and the applicants have been charged in Milimani Criminal case no. 1419 of 2016 upon the decision of the DPP to charge them as recommended by the Directorate of Criminal Investigation.

42. It was the Respondent’s position that both the Investigations and the decision to charge the applicants were arrived at in strict compliance and adherence to the law without any breach of the law or the constitution.

43. It was submitted on behalf of the Respondent that they were acting within the law in that:-

a. that the 2nd Respondent is mandated to investigate all possible criminal offences and an attempt to stop such execution of mandate would result to an even greater injustice in the criminal justice system;

b. that the Applicants are seeking to pre-empt and curtail the mandate of the law enforcement agency (investigative department) as enshrined within the Constitution of Kenya;

c. that the Applicants have not adduced sufficient evidence before this Court on merit to show that prejudice has been occasioned;

d. that the 1st Respondent does not require the consent of any person or authority for the commencement of criminal proceedings;

e. that the Respondents are not acting under the direction or control of any person or authority;

f. that the Applicants have not demonstrated that in executing their mandate, the Respondents have acted without or in excess of the powers as conferred by the law or acted maliciously, infringed, violated, contravened or in any other manner failed to comply with or respect and observe the foregoing provisions of the Constitution or any other provision thereof.

44. It was the Respondent’s case that the Applicants failed to demonstrate that the Respondents had not acted independently or have acted capriciously, in bad faith or abused the legal process in a manner to trigger the High Court’s intervention. According to the Respondent, upon conclusion of investigation by the 2nd Respondent, the DPP analyzed the evidence presented and upon being satisfied on the sufficiency of evidence made a decision to prosecute, without any bias, influence and in an independent manner giving due regard to Article 157 of constitution and principles enunciated thereunder and the Office of the Director of Public Prosecution Act (No. 2 of 2013).

45. The Court was therefore urged not to usurp the constitutional mandate of the Director of Public Prosecution conferred pursuant to Article 157 of the Constitution and they relied on Kenya Commercial Bank Limited & 2 others vs. Commissioner of Police and Another, Nairobi Petition No. 218 of 20122 (2013) eKLR,where Majanja J. held that:

“the office of the Director of Public Prosecution and Inspector General of the National Police Service are independent and this court would not ordinarily interfere in the running of their offices and exercise of their discretion within the limits provided by the law. But these offices are subject to the Constitution and the Bill of Rights contained therein and in every case, the High Court as the custodian of the Bill of Rights is entitled to intervene where the facts disclose a violation of the rights and fundamental freedoms guaranteed under the constitution”.

46. As to the circumstances under which the court will grant an order prohibiting the commencement or continuation of Criminal Proceeding, the Respondents relied on George Joshua Okungu and Another vs. Chief Magistrate Court Anti Corruption Court at Nairobi and Another (2014) eKLR where the Court summarized some of the considerations that will not form the basis for the court to interfere with the DPP’s Constitutional mandate thus:

“The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defense is always open to the Petitioner in those proceedings. The fact however that the facts constituting the basic of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the petitioner to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim”.

47. They also relied on Republic vs. Commissioner of Police and Another exparte Michael Monari & Another (2012) eKLR where it was held that:

“The police have a duty to investigate on any complaint once a complaint is made.Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.

48. It was the Respondents’ position that the prayers in the Application for determination thereof require the court to analyze and examine facts and evidence on the basis of which the guilt, innocence or otherwise of the Applicant shall be determined and the proper forum for consideration and resolution of the factual and evidentiary matter is the trial court and relied on William Ruto & Another vs. Attorney General HCC No. 1192 of 2004 where it was held that analysis of evidence should be done at the trial and not in the constitutional Court.

49. The Respondents therefore submitted that the Applicants failed to prove violation of his fundamental freedoms and rights and/or infringement of any law or regulation or abuse of discretion and breach of Rules of Natural Justice and the Application should therefore be dismissed with costs.

The Interested Party’s Case

50. The interested party herein, the Bank, similarly opposed the application.

51. According to the Bank, it holds the following legal charges over the properties that are the subject of these proceedings:

a. Legal charge dated 20th July, 2012 for Kshs 56,000,000/= over L.R No. 209/2489/34 and a further charge dated 27th March, 2013 for Kshs 28,800,000/= registered in the name of Ndonga Limited.

b. Legal charge dated 11th December, 2013 for Kshs 100,000,000/= over L.R No. 209/12513 registered in the name of Ndonga Limited.

c. Legal charge dated 22nd January, 2014 for Kshs 100, 000,000/= over Dagoretti/Riruta/2289 registered in the name of Wardpa Holdings Limited.

d. Legal charge dated 9th July, 2014 for Kshs 160,000,000/= over L.R No. 209/1817 registered in the name of Kinjunje Gardens Limited.

52. According to the Bank, the ex parte applicants are directors of Ndonga Limited; Wardpa Holdings Limited and Kinjunje Gardens Limited. It was disclosed that the Bank advanced Kshs 100,000,000/= to Ndonga Limited to facilitate the acquisition of L. R No. 209/12513 by Ndonga Limited and as security therefor, the Charge dated 11th December, 2013 was executed by Ndonga Limited and registered with the transfer of the property on 17th December, 2013 and the Bank retained the provisional certificate of title I.R 64007 as security for the facility a copy of which is at pages 1 to 8 of the exhibit hereto. It was revealed that on 1st February, 2016 Dalali Traders Auctioneers advertised L.R. No. 209/12513 for sale by public auction on 17th February, 2016 in the Daily Nation. Upon inquiry the Bank learnt that Dalali Traders Auctioneers were acting under instructions from Diamond Trust Bank Limited.

53. It was averred that on 5th February, 2016 the Bank filed Nairobi ELC Case No. 93 of 2016 against Ndonga Limited, Diamond Trust Bank and Dalali Traders Auctioneers seeking an injunction to stop the sale of L.R. No. 209/12513. The Defence filed by Diamond Trust Bank in Nairobi ELC Case No. 93 of 2016, according to the Bank, stated that Diamond Trust Bank advanced Ndonga Limited a Loan Facility of Kshs 80,000,000/= for the purchase of L.R No. 209/12516 secured by a charge dated 15th February, 2014 over L.R No. 209/12513.

54. It was further contended that the Bank advanced Kshs 100, 000,000/= to Wardpa Holdings Limited secured by a Charge dated 22nd January, 2014 over Dagoretti/Riruta/2289. The Charge was executed by Wardpa Holdings Limited and registered on 23rd January, 2014 and the original title was retained by the Bank. However, on 18th July 2016 Leakey’s Auctioneers advertised Dagoretti/Riruta/2289 for sale by public auction on 5th August, 2016 in the Daily Nation which advertisement stated that the Dagoretti/Riruta/2289 was registered in the name of Patrick Kangethe & Sons. Upon inquiry the Bank was informed that Leakey’s Auctioneers were acting on the instructions of Co-operative Bank. Similarly, the Bank filed Nairobi ELC No. 947 of 2016 against Wardpa Holdings Limited, Co-operative Bank, Leaky’s Auctioneers and others seeking an injunction to stop the sale of Dagoretti/Riruta/2289 to protect its right under the Charge. This suit was consolidated with Nairobi ELC No. 941 of 2016 filed by Equity Bank Limited against Kinjunje Gardens Limited, Co-operative Bank Limited and the first ex parte applicant who also sought an injunction to stop the sale.

55. It was deposed by the Bank that it received a copy of an affidavit sworn by the third ex parte applicant in Mombasa HCCC 50 of 2016 in which the first three ex parte applicants assert their ownership of Dagoretti/Riruta/2289 and that it is charged to Co-operative Bank of Kenya Limited. The Bank received copies of a Title Deed and Official Search showing that Dagoretti/Riruta/2289 is owned by Kinjunje Gardens Limited and charged to Equity Bank Limited to secure Shs. 80,000,000/= while an official search of Dagoretti/Riruta/2289 at the Lands Registry on 3rd February, 2016 shows the registered owners of the property as Patrick Kangethe Njuguna t/a Patrick Kangethe & Sons, Edward Njuguna Kangethe and George James Kangethe and there are no encumbrances registered against the title.

56. Consequent upon this information the Bank reported the matter to the Directorate of Criminal Investigations to investigate the validity of the titles held by the interested party. The Bank however disclosed that on 12th July, 2016 the ex parte applicants wrote to the Bank and admitted that there were “anomalies with the security documentation of the properties offered as security”.

57. According to the Bank on 14th July, 2016 the Directorate of Criminal Investigations informed it that the securities held by the Bank were forged.

58. On behalf of the interested party Bank, it was submitted that from these affidavits sworn herein it is clear that the request of the Bank was for the Police to investigate the securities that had been taken by the interested party in the light of the claims by two other banks to have securities over the same properties.

59. It was therefore the Bank’s case that it is the duty of the Police to investigate such matters and if a criminal offence is disclosed to forward the investigation files to the respondent for his recommendations and this was done.

60. According to the Bank, the decision to prosecute was taken by the respondent in the exercise of its independent mandate, without the direction or control of any person or authority, including the interested party pursuant to Article 157(10) of the Constitution. In this respect, the Bank relied on Egbema vs. West Nile District Administration [1972] EA 60.

61. The Bank asserted that it has the right to be treated equally before the law and has an equal right to protection of the law as stated in Article 27 of the Constitution. It was therefore the Bank’s case that there is no basis in the complaint that the investigations are not in good faith.

62. In the Bank’s view, there is no restriction on criminal investigations or even prosecutions on the same transactions as are the subject of a civil case. On the contrary section 193 A of the Criminal Procedure Code specifically provides that the existence of civil proceedings is not a ground for stay, prohibition or delay of criminal proceedings. In this respect, the Bank relied on Kuria & Others vs. Attorney General [2000] 1 KLR 69. It was submitted that the banker-customer relationship at the base of the investigations is between the Bank and its customers, the companies, Ndonga Limited, Wardpa Holdings Limited and Kinjunje Gardens Limited hence the ex-parte applicants have no right to claim any banker-customer relationship. Based on section 32 (2) of the Banking Act and Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 it was submitted that there is no protection of the customer from investigations by the Police or any other investigating authority into the conduct of a customer’s bank accounts in advocate-client privilege.

63. It was the Bank’s case that the ex parte applicants have failed to establish any basis on which the court should grant orders of judicial review by way of prohibition to stop the action of the respondent in prosecuting the ex parte applicants and prayed that the application be dismissed.

Determinations

64. I have considered the issues raised by the parties herein. The applicants’ case seems to be hinged on the fact that since there exist proceedings of a civil nature, to commence criminal proceedings on the same subject matter is likely to lead to a situation where both the criminal court and the civil court might arrive at diametrically opposed conclusions. It was further contended that the dispute herein is purely civil in nature and that in fact the interested party herein who claims to have been defrauded has taken appropriate legal steps towards the recovery of the alleged sums.

65. According to the applicants, there exist Nairobi (Milimani) Environment & Land Court suit No. 13 of 2016 filed by the Bank against the Applicants on 6th February, 2016. In the said suit, the Bank refers to the term loan facility offered by it to the Applicants in the sum of KShs.100,000,000/= and alleges that in taking the said loan, the Applicants committed a number of fraudulent acts. To that suit the Applicants filed a Defence and the said matter is still proceeding in the said Environment & Land Court. The Applicants contended that the issue between them and the Bank is one of money that was advanced by the Bank to them. It is as a result of the Interested Party Bank contending that the Applicants committed fraud in procuring the said loan that the said suit was filed. In the fullness of time, it was submitted that the said Court will be required to determine whether or not the Applicants actually committed fraud or not which determination can only be made by that particular Court and nobody else.

66. However in the month of August, 2016 that the Bank lodged a complaint of a criminal nature with the Respondent claiming that in procuring the said loan, the Applicants had committed fraudulent acts. It is then that the Respondent moved with a speed and decided to prosecute the Applicants for the said alleged fraud without caring to interrogate the issue with any objectivity principally because the Bank is an entity that is owned by members of the first family, an averment that has not been controverted at all.

67. It was however the applicants’ case that pursuant to Articles 10, 47, 157 of Constitution as read together with the Director of Public Prosecutions Act, the Respondent has to act fairly in all matters and it does not matter whether the complainant is the President or Deputy President or a beggar. The exercise of power by the Respondent has to be fair and it must be seen to be so. Considering the existence of the High Court suit, the Applicants perceives that the Respondent is being unduly pressurized by the Bank to prosecute the Applicants so that the Bank may secure an advantage against the Applicants in the said civil case.

68. In response to the application, the Respondent contended that the complaint it received from the Bank was therefore that the loan amounting to Kshs. 449,051,999. 50 disbursed by the Bank was secured using forged facilities and the Bank therefore does not hold any legal charge against any of the property it is holding. The bank could not therefore exercise any right to the charges as the charges are all forgeries. Upon conclusion of investigations the investigation files were forwarded to the DPP to make a decision to charge and the applicants were charged in Milimani Criminal case no. 1419 of 2016 upon the decision of the DPP to charge them as recommended by the Directorate of Criminal Investigation.

69. It was the Respondent’s case that the Applicants failed to demonstrate that the Respondents had not acted independently or have acted capriciously, in bad faith or abused the legal process in a manner to trigger the High Court’s intervention. According to the Respondent, upon conclusion of investigation by the 2nd Respondent, the DPP analyzed the evidence presented and upon being satisfied on the sufficiency of evidence made a decision to prosecute, without any bias, influence and in an independent manner giving due regard to Article 157 of constitution and principles enunciated thereunder and the Office of the Director of Public Prosecution Act (No. 2 of 2013).

70. The Court was therefore urged not to usurp the constitutional mandate of the Director of Public Prosecution conferred pursuant to Article 157 of the Constitution.

71. Article 157(10) of the Constitution provides that 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. However, Article 157(11) provides:

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.

72. Apart from that, section 4 of the Office of Public Prosecutions Act, No. 2 of 2013 provides:

In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—

(a) the diversity of the people of Kenya;

(b) impartiality and gender equity;

(c) the rules of natural justice;

(d) promotion of public confidence in the integrity of the Office;

(e) the need to discharge the functions of the Office on behalf of the people of Kenya;

(f) the need to serve the cause of justice, prevent abuse of the legal process and public interest;

(g) protection of the sovereignty of the people;

(h) secure the observance of democratic values and principles; and

(i) promotion of constitutionalism.

73. It is therefore clear that the terrain under the current prosecutorial regime has changed and that the discretion given to the DPP is not absolute but must be exercised within certain laid down standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Where it is alleged that these standards have not been adhered to, it behoves this Court to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that :

“the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system….. In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…….. In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.”

74. Whereas this is not the forum to determine the applicant’s innocence or culpability, the DPP owes this Court a duty of placing before this Court material upon which this Court can feel that he is justified in mounting the prosecution. Where therefore it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under the Constitution and the Office of the Director of Public Prosecutions Act, that would, in my view, constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. As was held by Wendoh, J in Koinange vs. Attorney General and Others [2007] 2 EA 256:

“Under section 26 of the Constitution the Attorney General has unfettered discretion to undertake investigations and prosecute. The Attorney Generals inherent powers to investigate and prosecute may be exercised through other offices in accordance with the Constitution or any other law. But, if the Attorney General exercises that power in breach of the constitutional provisions or any other law by acting maliciously, capriciously, abusing the court process or contrary to public policy the Court would intervene under section 123(8) of the Constitution and in considering what constitutes an abuse of the court process the following principles are relevant: (i) Whether the criminal prosecution is instituted for a purpose other than the purpose for which it is properly designed; (ii) Whether the person against whom the criminal proceedings are commenced has been deprived of his fundamental right of a fair trial envisaged in the provisions of the constitution; (iii) Whether the prosecution is against public policy.”

75. It is now clear that even in the exercise of what may appear to be prima facie absolute discretion conferred on the executive the Court may interfere. The Court can only intervene in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323.

76. However, it is upon the ex parte applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute ought to be interfered with. It is clear that in exercising their discretion to charge a person both the police and the DPP’s office must take into account and must exercise the discretion on the evidence of sound legal principles. As was held by Ojwang, J (as he then was) in Nairobi HCCC No. 1729 of 2001 – Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another:

“...policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense...I do not expect that any reasonable police officer or prosecution officer would lay charges against anyone, on the basis of evidence so questionable, and so obviously crafted to be self-serving. To deploy the State’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes”.

77. Therefore the police are expected to be professional in the conduct of their investigations and ought not to be driven by malice or other collateral considerations. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. I say ordinarily because the mere fact that the version of one of the parties is not considered is not necessarily fatal to the prosecution. However, whereas it is alleged in this case exculpatory evidence is presented to the police in the course of investigation and for some reasons unknown to them they deliberately decide to ignore the same one can only conclude that the police are driven by collateral considerations other than genuine vindication of the criminal judicial process. Neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of malice and hence abuse of discretion and power.

78. In my view, the correct prosecution policy is the one expounded in Code for Prosecutors of the Crown Prosecution Service of the United Kingdom (“the Code”) as reflected in our own prosecution policy, The National Prosecution Policy, revised in 2015 which was relied upon by the Petitioners herein. The Code, provides, inter alia that:

4. 4Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

4. 5 The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.”

79. In Githunguri vs. Republic [1986] KLR 1 at page 18 and 19 a three Judge bench High Court constituted of Ag. Chief Justice Madan and Justices Aganyanya and Gicheru expressed themselves as follows:

“But from early times… the Court had inherently its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the Court had the right to protect itself against such an abuse…The power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure...every Court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the Court…Mr Chunga argued that to grant the application would be tantamount to curtailing or interfering with the powers of the Attorney-General under section 26 of the Constitution. This argument of his compels us to say that he kept freewheeling for a long time before us because perhaps he did not understand the real purport of the application. No one has made any challenge to the powers of the Attorney-General, nor would any one succeed if he were to say that the Attorney-General’s powers under section 26 can be interfered with. What this application is questioning is the mode (emphasis ours) of exercising those powers…No one will succeed in convincing us that the Court does not have inherent powers to exercise supervisory jurisdiction over tribunals and individuals acting in administrative or quasi-judicial capacity…A prosecution is not to be made good by what it turns up. It is good or bad when it starts. The long and short of it is that in our opinion it is not right to prosecute the applicant as proposed.”

80. Similarly, in Mohammed Gulam Hussein Fazal Karmali & Another vs. Chief Magistrate’s Court Nairobi & Another[2006]eKLR whereNyamu, J examined the policy considerations for halting criminal proceedings, noting that the court has two fundamental policy considerations to take into account which were enunciated in the case of M. Devao vs. Department of Labour (190) in sur 464at 481 as:

“The first is that the public interests in the administration of justice require that the court protects its ability to function as a court of law, by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court processes may lend themselves to oppression and injustice…the court grants a permanent stay in order to prevent the criminal process from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes that the court processes are being employed for ulterior purposes or in such a way as to cause improper vexation and oppression.”

81. Based on the decision of Musinga, J (as he then was) in Paul Stuart Imison Another vs. The Attorney General & 2 Others Petition No. 57 of 2009, it was submitted that the circumstances which the Court should take into consideration in grant of stay were laid out in the following manner:

“The instances in which a court can declare a prosecution to be improper were well considered in Macharia & Another –vs- Attorney General & Another (2001) KLR 448. A prosecution is improper if:

a. It is for a purpose other than upholding the criminal law;

b. It is meant to bring pressure to bear upon the applicant/accused to settle a civil dispute;

c. It is an abuse of the criminal process of the court;

d. It amounts to harassment and is contrary to public policy;

e. It is in contravention of the applicant’s constitutional right to freedom.

82. In Bennett vs. Horseferry Magistrates' Court(1993) 3 AllE.R. 138, 151, HL, it was held that an abuse of process justifying the stay of a prosecution could arise in the following circumstances:

a. where it would be impossible to give the accused a fair trial; or

b. Where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

83. The NationalProsecution Policy, revised in 2015 provides at page 5 that:-

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?

84. The said policy further states that:

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

85. It must be appreciated that the investigatory and prosecutorial agencies may have to consider a lot of factors in deciding whether or not a prosecution is prudent as long as the said factors are relevant. In the course of making such a decision there may even be differences in opinion between the investigatory agencies and the prosecutorial agencies. However, the mere fact that the DPP’s decision differs from the opinion formed by the investigators is not a reason for interfering with the constitutional and statutory mandate of the DPP as long as he/she believes that he/she has in his/her possession evidence on the basis of which a prosecutable case may be mounted. Conversely, the mere fact that the investigators believe that there is a prosecutable case does not necessarily bind the DPP. As is rightly recognised by Sir Elwyn Jones in Cambridge Law Journal – April 1969 at page 49:

“The decision when to prosecute, as you may imagine is not an easy one. It is by no means in every case where a law officer considers that a conviction might be obtained that t is desirable to prosecute. Sometimes there are reasons of public policy which make it undesirable to prosecute the case. Perhaps the wrongdoer has already suffered enough. Perhaps the prosecution would enable him present himself as a martyr. Or perhaps he is too ill to stand trial without great risk to his health or even to his life. All these factors enter into consideration.”

86. I associate myself with the decision of the High Court of Uganda in the case of Uganda vs. Jackline Uwera NsengaCriminal Session Case No. 0312 of 2013,to the effect that:

“...the DPP is mandated by the Constitution (See Art. 120(3)(a)) to direct the police to investigate any information of a criminal nature and report to him or her expeditiously…Only the DPP, and nobody else, enjoys the powers to decide what the charges in each file forwarded to him or her should be. Although the police may advise on the possible charges while forwarding the file to DPP … such opinion is merely advisory and not binding on the DPP (See Article 120(6) Constitution). Unless invited as witness or amicus curiae (friend of Court), the role of the police generally ends at the point the file is forwarded to the DPP.”

87. In my view, the exercise of discretion though quasy-judicial, the decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution and it is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must under our constitution be considered in deciding whether or not to institute prosecution. See The International and Comparative Law Quarterly Vol. 22 (1973):

88. However, it is upon the DPP to consider those factors and not upon this Court to determine for him/her when such factors militate against the institution of criminal proceedings.

89. This position was similarly appreciated in Charles Okello Mwanda vs. Ethics and Anti-Corruption Commission & 3 Others(2014) eKLR in which Mumbi Ngugi, J held that:

“I would also agree with the 4th Respondent (DPP) that the Constitutional mandate under 2010 Constitution with respect to prosecution lies with the 4th Respondent, and that the 1st Respondent has no power to ‘absolve’ a party and thereby stop the 4th Respondent from carrying out his constitutional mandate. Article 157(10) is clear…However, in my view, taking into account the clear constitutional provisions with regard to the exercise of prosecution powers by the 4th Respondent set out in Article 157(10) set out above, the 1st respondent (EACC) has no authority to ‘absolve’ a person from criminal liability…so long as there is sufficient evidence on the basis of which criminal prosecution can proceed against a person, the final word with regard to the prosecution lies with the 4th Respondent (DPP) …”

90. However the discretion is given to the Director of Public Prosecution and where it is shown that what he is exercising is not his own discretion but another’s discretion he shall have abdicated his duty and this Court will be entitled to intervene. This must be so because section 7(2)(a) of the Fair Administrative Action Act empowers a court or tribunal to review an administrative action or decision, if the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions; the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant; the administrative action or decision was made in bad faith; or that the administrative action or decision is taken or made in abuse of power.

91. In this case, it is contended that the decision to prosecute the applicants was prompted by the need to prove to the members of the first family one of whom is His Excellency President Uhuru Kenyatta who enjoys the Executive Authority of this Republic that the Respondent was on top of the matter in pressing the Applicants to own up to the alleged fraud. In my view if it is proved that the alleged first family influenced the decision to have the applicant’s charged, that decision would be a candidate for judicial review as the same would have been influenced by irrelevant factors and the same would not have been as a result of the exercise of the DPP’s discretion but that of the said first family. Further, it would amount to abuse of power if the President would influence the decision to prosecute a particular person.

92. Dealing with abuse of power, Nyamu, J (as he then was) in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] 2 KLR 240 while citing Reg vs. Secretary of State for the Environment Ex Parte NottinghamShire Country Council[1986] AC expressed himself as hereunder:

“A power which is abused should be treated as a power which has not been lawfully exercised…A public authority must not be allowed by the court to get away with illogical, immoral or an act with conspicuous unfairness as has happened in this matter, and in so acting abuse its powers... Abuse of power includes the use of power for a collateral purpose, as set out inex-parte Preston,reneging without adequate justification on an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals.”

93. It is therefore clear that power ought to be properly exercised and ought not to be misused or abused. According to Prof Sir William Wade in his Book Administrative Law:

“The powers of public authorities are…essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land…regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them…”

94. In Liverside vs. Anderson [1942] AC 206 at 244, Lord Atkin held that:

“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified in law.”

95. If therefore it is clear that a party’s remedy fell within the realm of civil remedy which he had opted for but due to the fact that the same was not forthcoming as fast as he thought and decided to commence criminal proceedings with a view to put pressure of the Defendant to settle the civil claim, such action would not be countenanced by a Court of law since criminal justice system ought only to be invoked to vindicate the commission of a criminal offence and not to aid the litigants in the settlement of their civil claims.

96. I accordingly agree with Majanja, J in Petition No. 461 of 2012 – Francis Kirima M’ikunyua & Others vs. Director of Public Prosecutions, when he expressed himself as hereunder:

“It is very clear that the criminal process and the resultant court proceedings are being used to settle what is otherwise civil dispute which has been the subject of several court cases and indeed decisions. It is clear to me that the contending parties wish to use the criminal process to score points against each side in order to assert the rights of ownership. The use of the criminal process in this manner is not uncommon within this jurisdiction to find that intractable land disputes mutate into criminal matters. It is not difficult to see why. In criminal cases the State’s coercive power is brought to bear upon the individual and where we have an inefficient system to settle civil claims, a person who can tie his opponent in the criminal justice system and ultimately secure a conviction will no doubt have an advantage over his opponent.”

97. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69,the High Court held:

“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious…The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer... In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the applicants in order to settle the civil dispute”.

98. The Court went further to hold that:

“It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilise the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The fact that it has not been argued before however does not mean that the law stops dead at its tracks. An order of prohibition looks to the future and not to the past; it is concerned with the happenings of future events and little, if any, of past events...So long as the orders by way of judicial review remain the only legally practicable remedies for the control of administrative decisions, and in view of the changing concepts of good governance which demand transparency by any body of persons having legal authority to determine questions affecting the rights of subjects under the obligation for such a body to act judicially, the limits of judicial review shall continue extending so as to meet the changing conditions and demands affecting administrative decisions...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilised. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop the Court from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...However, it does not mean that a civil suit and a criminal case cannot co-exist at any one particular time. This is because the section envisages the re-prosecution of a criminal case substantially dealt with either in fact or law, a case in which issues have been laid to rest. There is no mention in the section that the simultaneous existence of a civil and criminal cases is constituting double jeopardy. The courts have, however stated that the power to issue an order of prohibition to stop a criminal prosecution does not endow a court to say that no criminal prosecution should be instituted or continued side by side with a civil suit based on the same or related facts, or to say that a person should never be prosecuted in criminal proceedings when he has a civil suit against him relating to matters in the criminal proceedings....”

99. It is therefore clear that this Court has the power and indeed the duty to bring to a halt, criminal proceedings where the same are being brought for ulterior motives or for achievement of some collateral purposes notwithstanding the constitutional and legal powers conferred upon the DPP and the police.

100. In Meixner & Another vs. Attorney General [2005] 2 KLR 189,the same Court expressed itself as hereunder:

“The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion if acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution...Judicial review is concerned with the decision making process and not with the merits of the decision itself. Judicial review deals with the legality of the decisions of bodies or persons whose decisions are susceptible to judicial review. A decision can be upset through certiorari on a matter of law if on the face of it, it is made without jurisdiction or in consequence of an error of law. Prohibition restrains abuse or excess of power.”

101. The rationale for not permitting criminal process to assist the litigants in the settlement of their civil disputes as appreciated in Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, where it was held that:

“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth...When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in... In this case it is asked to step in to grant an order of prohibition. Prohibition looks into the future and can only stop what has not been done. It is certiorari that would be efficacious in quashing that which has been done but it is not prayed for in this matter. There was no order granted for stay of further proceedings when leave was granted and it is possible that the private prosecution has proceeded either to its conclusion or to some extent. In the former event an order of prohibition has no efficacy and the court would be acting in vain to grant one. What is done will have been done. If there is anything that remains to be done in those proceedings, however, the order of prohibition will issue to stop further proceedings.”

102. That there is a duty cast upon the prosecutor to ensure that he has conviction that the criminal process is appropriate to the circumstances of the case was placed beyond doubt in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 where it was held that:

“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.

103. In the said case, the Court expressed itself inter alia as follows:

“The function of any judicial system in civilized nations is to uphold the rule of law. To be able to do that, the system must have power to try and decide cases brought before the Courts according to the established law. The process of trial is central to the adjudication of any dispute and it is now a universally accepted principle of law that every person must have his day in court. This means that the judicial system must be available to all...Although the Attorney General enjoys both constitutional and statutory discretion in the prosecution of criminal cases and in doing so he is not controlled by any other person or authority, this does not mean that he may exercise that discretion arbitrarily. He must exercise the discretion within lawful boundaries...Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognised, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognised lawful parameters...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious...In doing so the Court may be guided by the following principles: (i). Where the criminal prosecution amounts to nothing more than an abuse of the process of the court, the Court will employ its inherent power and common law to stop it. (ii). A prosecution that does not accord with an individual’s freedoms and rights under the constitution will be halted: and (iii). A prosecution that is contrary to public policy (or interest) will not be allowed...A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case. Evidence of extraneous purposes may also be presumed where a prosecution is mounted after a lengthy delay without any explanation being given for that delay...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...A criminal prosecution that does not accord with an individual’s freedoms and rights, such as where it does not afford an individual a fair hearing within a reasonable time by an independent and impartial court, will be the clearest case of an abuse of the process of the Court. Such a prosecution will be halted for contravening the constitutional protection of individual’s rights...In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.”

104. Unless the prosecutor exercises his powers in accordance with the law and the Constitution, the Court will intervene in order to bring him back on track. In Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held:

“........the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

105. In this case however apart from bare allegations that the impugned decision was prompted by the need to prove to the members of the first family one of whom is His Excellency President Uhuru Kenyatta who enjoys the Executive Authority of this Republic that the Respondent was on top of the matter in pressing the Applicants to own up to the alleged fraud, there are no facts in support of this contention. The applicants have for example not specified who in the first family is the culprit. Whereas the President is mentioned, he is just given as an example of members of the first family without him being mentioned as the culprit. To my mind members of the first family, just like any other person or family have the right to venture into business in this country. Similarly their ventures have rights whenever they feel aggrieved to lodge complaints where there are reasonable grounds to believe that criminal offences have been committed against them and the fact that investigations are commenced pursuant thereto ought not to be automatically construed to mean that the same has been prompted by the status of the first family.

106. Whereas some sections of the society may perceive that such action is informed by the status of the complainants, as was held in East African Community vs. Railways African Union (Kenya) And Others (No. 2) Civil Appeal No. 41 of 1974 [1974] EA 425, the onus lies on a person seeking the grant of a prerogative order to establish that it is essential for it to issue since these are not orders that are lightly made. Judicial review or prerogative writs as they were known in the past, it has been held are orders of serious nature and cannot and should not be granted lightly. They should only be granted where there are concrete grounds for their issuance. It is not enough to simply state that grounds for their issuance exist; there is a need to lay basis for alleging that there exist grounds which justify the grant of the said orders. I associate myself with the holding in Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR to the effect that:

“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.”

107. Similar sentiments were expressed in Kuria & 3 Others vs. Attorney General (supra) where it was held:

“A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution...In the instant case there is no evidence of malice, no evidence of unlawful actions, no evidence of excess or want of authority, no evidence of harassment or intimidation or even of manipulation of court process so as to seriously deprecate the likelihood that the applicants might not get a fair trial as provided under section 77 of the Constitution..”

108. In this case there is no evidence on the basis of which I can make a definite finding that the decision to commence criminal action against the applicants was prompted by the desire to please the first family or any of its members or that it was as a result of the pressure exerted by them.

109. That however is not the end of the matter. In this case it is clear that the civil proceedings seeking recovery of the proceeds of the alleged fraud were instituted before the criminal process was commenced. Whereas the mere fact that the facts of the case constitute both criminal and civil liability does not warrant the halting of the criminal case as stated Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another(supra) it is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases otherwise it would amount to abuse of the process of the court. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process.

110. It was similarly held by the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and OthersNairobi Civil Appeal No. 56 of 2012 [2013]eKLR that:

“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations.”

111. In this case it is not denied that the facts forming the subject of the civil proceedings are the same facts upon which the criminal proceedings are to be based. The offence in question is that of fraud. Similarly the tort in issue is fraud. The standard of proof in criminal cases is beyond reasonable doubt while the standard in civil suits is below that in criminal cases. If the criminal proceedings are determined in favour of the complainant which is the interested party herein and the civil proceedings are unsuccessful, the judicial process would be made to look like a circus.

112. In the circumstances of this case, it is my view that the proceedings which were commenced first in time ought to be permitted to proceed to their logical end.

113. Accordingly, it is my view and I hold that the criminal proceedings ought to be suspended in the meanwhile.

Order

114. In the premises, the order which commends itself to me and which I hereby issue is as follows:

1. An order of prohibition will issue directed at the respondent staying any further investigations by its officers intended for the arrest of the applicants or their arraignment of prosecution in criminal courts in regard to matters touching on the legality or otherwise of titles and/or legal charges created over properties known as LR. No. 209/1817; LR NO. 209/12513; LR NO. 209/2489/34 and Dagoretti/Riruta/2289 all belonging to the companies in which the applicants are directors pending the hearing and determination ofNairobi (Milimani) Environment & Land Court suit No. 13 of 2016,Nairobi ELC Case No. 93 of 2016, Nairobi ELC No. 947 of 2016 and Nairobi ELC No. 941 of 2016.

2. Each party will bear own costs of these proceedings.

Dated at Nairobi this 10th day of October, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Dr Khaminwa with Mr Gikandi for the applicants

Mr Ashimosi for the Respondent

Miss Olbara for the interested party