[2023] KEHC 26565 (KLR)

Republic v Director of Public Prosecutions & another; Bajaber (Interested Party); Timimi (Exparte) (Application E183 of 2022) [2023] KEHC 26565 (KLR) (Judicial Review) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26565 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E183 of 2022

J Ngaah, J

December 15, 2023

Between

Republic

Applicant

and

Director of Public Prosecutions

1st Respondent

Inspector General of Police

2nd Respondent

and

Mulyun Muhazim Bajaber

Interested Party

and

Suhayb Yusuf Timimi

Exparte

Judgment

Application 1. The application before court is a motion dated 21 December 2022 in which the applicant seeks the judicial review orders of certiorari and mandamus against the respondents. The prayers for these orders have been framed, thus:1. Orders of certiorari to bring forth to this Honourable Court, for the purposes of their being quashed:a.the recommendation and decision by the 1st respondent to have the applicant arrested and charged vide a letter dated 11th November 2022. 2.Orders of mandamus against the 2nd respondent to investigate the complaint made against the interested party.3. An order to award the costs of this application to the applicants (sic).”

2. The application is made under sections 8 and 9 of the Law Reform Act cap 26 and Order 53 rule 3(1) of the Civil Procedure Rules.

3. It is based on a statutory statement dated 16 December 2022 and an affidavit verifying the facts relied upon sworn on even date by the applicant.

4. According to the applicant, he is married to the interested party; but they are separated and at the time of filing this application, the couple was embroiled in children’s case, more particularly case no. MCCHCC/E459/2022 at Tononoka Magistrates’ Court, in Mombasa. Apparently, the dispute is over custody of a child born between them in the year 2020.

5. On 7 November 2022, the applicant obtained orders from the children’s court to access the child and on 11 November 2022, he sought to serve the order upon the interested party in the presence of a court process server and a uniformed police officer.

6. However, he was confronted with what he described as “belligerence” as a result of which several complaints were lodged with the police at Gigiri police station, in Nairobi. Amongst these complaints was his own complaint of assault against the interested party. The interested party is alleged to have locked the applicant together with their child in a room and also scratched him with a stub.

7. Upon investigations of the complaints, the investigation file is said to have been referred to the 1st respondent for review. By a letter dated 30 November 2022, the 1st respondent is said to have recommended to the couple to resolve their dispute through alternative dispute resolution mechanisms.

8. The applicant went back to the children’s court and obtained another order on 28 November 2022 ordering the production of the minor in court on 7 December 2022; however, the child was not presented in court as directed. The court then ordered the interested party to allow the applicant’s access to the child on Saturdays and Sundays with effect from 10 December 2022.

9. The applicant later learned that by a letter dated 11 November 2022, the 1st respondent had recommended his prosecution. The applicant is aggrieved that in recommending his prosecution, the 1st respondent ignored the applicant’s own complaint against the interested party. For this reason, the applicant believes that his prosecution is what he describes as “a gross injustice and an abuse of the due process and court.”

10. The respondents did not file any response to the application but the interested party did. She filed a replying affidavit opposing the application.

Interested party’s Response 11. The interested party complains that although she is named as an interested party in these proceedings she was never served with the summons seeking leave to file the substantive motion or the substantive motion itself and it is only by chance that her advocates came to learn of this suit.

12. She admits that she got married to the applicant in accordance with the Islamic law on 7 July 2020 and during the marriage, the couple lived in the applicant’s grandfather’s house in Mombasa. They were blessed with one child who was born on 8 September 2020. It is this child who is at the centre of their dispute in the magistrates’ court.

13. In the course of the marriage, the applicant is alleged to have subjected the interested party to both physical and verbal abuse. On one occasion, and in particular on 29 March 2022, the applicant forced 1st interested party to alight from a flight.

14. Due to the physical and mental torture to which the interested party had been subjected, she decided to leave the matrimonial home sometimes in September 2022 and went to live with her mother in Muthaiga, in Nairobi. She left with their child who she says he is diagnosed with ‘chronic constipation’ and, therefore, needs constant care.

15. And even after she left the matrimonial home, the applicant never made any efforts to contact her and only saw him on 11 November 2022 when he forcefully gained access to the interested party’s mother’s house. The applicant wanted to take the minor away but the interested party resisted his attempts. He forcefully gained access to the room where the child was sleeping but the interested party locked him in the room. The applicant then punched the interested party on the chin and abdomen several times as a result of which the interested party fell to the floor. She sustained injuries on the lips, thigh and arm.

16. The interested party reported the incident at Gigiri police station where her complaint against the applicant was entered in the occurrence book as OB. No. 31/11/11/2022. She has sworn that all those who witnessed the incident recorded their statements with the police at Gigiri police station.

17. Although the office of the Director of Public Prosecutions asked the parties to resolve the matter out of court, she was not ready for this course because the applicant had subjected her to both physical and mental torture, a fact that the applicant has not denied.

Applicant’s submissions 18. In the submissions filed on behalf of the applicant, it was urged that the decision to prosecute carries significant implications for victims, witnesses, the accused and their families, warranting careful consideration and that a misguided decision can erode public trust in the criminal justice system and the prosecution process. The prosecutor must uphold unwavering independence, fairness, and bravery, as these qualities are indispensable to the responsibilities entrusted to the Director of Public Prosecutions and the police.

19. It was also urged that to uphold the rule of law and safeguard the principle of equal accountability, the Director of Public Prosecutions and the police must maintain their independence in accordance with Article 157 (10) of the Constitution. The autonomy, it is urged, is crucial for preserving the integrity of the criminal justice system, as it guarantees that decisions to prosecute individuals are made without any external influences, thereby upholding the system's integrity. In this submission, the applicant’s learned counsel relied on a book called “The Prosecutors Handbook” by Christopher T. Pryde, Director of Public Prosecutions, 2014. It is said to be accessible at http:www.paclii.org/fj/other/prosecutors-handbook.pdf.

20. It was also urged that the Director of Public Prosecutions must prioritise and safeguard public interest rather than private interest when deciding to initiate court proceedings. The decision to prosecute or not carries significant weight, as it can profoundly impact an individual. Even in cases where the accused is acquitted, the consequences of a prosecution can encompass reputational damage, strained personal relationships, loss of employment, financial expenses, as well as the emotional distress and trauma associated with being charged with a criminal offense.

21. The applicant also submitted that both an incorrect decision to prosecute and an incorrect decision not to prosecute have the potential to erode community trust in the criminal justice system. A decision not to prosecute can be distressing for victims and their families. After making the challenging and sometimes traumatic decision to report a crime, the victim may feel dismissed and doubted. Consequently, it is crucial that the prosecution decision undergoes thorough and thoughtful deliberation.

22. On the Director of Public Prosecution’s exercise of discretion to prosecute or not to prosecute, it was urged that the law grants the Director of Public Prosecutions discretionary powers that must be exercised appropriately. However, the grounds for challenging the exercise of such discretion are limited. The exercise of discretion becomes unlawful if the Director of Public Prosecution knowingly uses the power to arrest and prosecute for purposes not intended by the law. The decision to prosecute should be motivated by the objective of ensuring the arrested individual faces justice. Similarly, the decision to terminate ongoing proceedings should be made with the aim of promoting the administration of justice.

23. A criminal prosecution, it is submitted, initiated without a proper factual basis or foundation raises suspicions of ulterior motives or improper intent. In this submission counsel for the applicant relied on Republic versus Attorney General,ex parte ; Arap Ngeny, High Court Civil Application No. 406 OF 2001. It is the applicant’s submission that prior to commencing criminal proceedings, there must be substantial evidence available, allowing the prosecution to assert confidently that they have a viable case to pursue. A diligent and careful prosecutor should be able to establish reasonable and probable cause for initiating a criminal prosecution. Failure to do so may render the prosecution malicious and subject to legal action.

24. It is also submitted that it is not mandatory to prosecute suspected criminal offenses without sufficient evidence. The primary factor in exercising discretion is whether the evidence is substantial enough to warrant initiating or continuing a prosecution. It is the responsibility of the Director of Public Prosecutions to assess whether the presented evidence is adequate to justify a prosecution. A prosecution should not be initiated or continued unless there is admissible, significant, and reliable evidence indicating that the accused has committed a criminal offense recognized by the law.

24. The applicant cited the case of Republic versus Attorney General, ex parte; Arap Ngeny (supra) for the submission thatcourts have a paramount responsibility to uphold justice and prevent injustice. From this duty stems an inherent power to stay an indictment or halt a prosecution if the court determines that allowing it to proceed would constitute an abuse of the court's process or violate the fundamental rights of an individual. In that case, the court is said to have noted as follows:A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motives 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.”

25. Also cited in the same breath is the decision in Kuria & 3 Others versus Attorney General (2002) 2klr 69.

26. This Honourable Court, it is urged, possesses inherent powers to quash, stay, or prohibit criminal proceedings. These powers are extensive as they allow for the exoneration of the accused even before the proceedings have reached the stage of trial. The applicant’s learned counsel also relied on the Supreme Court of India in the case of Maharashtra vs Arun Gulab Gawali (the full citation is not given) in which the extent of these inherent powers was discussed. The court held that ‘these powers should be exercised sparingly and should not carry an effect of frustrating the judicial process.’ The said court delineated the law in the following terms: -The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and in the rarest of rare cases and the Court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at uncalled for stage nor can it ‘soft-pedal the course of justice’ at a crucial stage of proceedings…The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of the power of the court, but the more the power, the more due care and caution is to be exercised in invoking these powers” (State of West Bengal & others Vs Swapan Kumar Guha& Others, Air, 1982, SC 949)”

27. The English case ofBennet vs Horseferry Magistrates Court & Another (1993) All ER 138, 151, House of Lords was also cited for the submission 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 or 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.

Interested Party’s submissions 28. In response to the applicant’s submissions, the interested party relied on the decision in Republic versus Kenya National Examination Council, ex parte Gathenji & Others Appeal No. 266 of 1996 for the submission that the order of certiorari can only quash a decision made in excess of jurisdiction or was made in abuse of the rules of natural justice.

29. Based on the same decision, it was also urged that the remedy of judicial review is not concerned with the merit but with the decision making process and that in order for an applicant to succeed in judicial review, he must satisfy the court that a public officer has acted uprocedurally or that his decision is unreasonable or that it is illegal.

30. Contrary to these principles, it is urged, the applicant’s application seeks to impeach the merits of the Director of Public Prosecution’s decision to prosecute. The applicant has also failed to demonstrate that the decision is tainted by the illegality, impropriety or procedural impropriety.

31. The interested party insists that an offence of assault was committed and the applicant will have chance to defend himself at the trial. If it turns out that the criminal case is without substance, the interested party is prepared to face a case of malicious prosecution. The cases of Ndaa versus Republic (1985) eKLR and Lachand Fulchand Shah versus Investments & Mortgages Bank Limited & 5 Others (2018) eKLR have been cited on what constitutes the offence of assault causing actual bodily harm.

32. The interested party has also cited the case of Municipal Council of Mombasa versus Republic & Umoja Consultants Ltd (2002) eKLR for the argument that judicial review is concerned with process and not the merits of the decision. Other cases cited in the same vein are Republic versus Director of Immigration Services & 2 Others ex parte Olamilekan Gbenga Fasuyi & 2 Others (2018) eKLR; and Chief Constable of the North Wales Police versus Evans (1982) 1WLR.

33. On the power of quashing criminal proceedings, the learned counsel for the interested party relied on the Supreme Court of India decision in State of Mahashtra & Others versus Arun Gulab & Others, Criminal Appeal No. 590 of 2007 where it was held:The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction to the court to act according to its whims or caprice. However, the court under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigations/proceedings. The provisions of articles 226, 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “CrPC”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the court, but the more the power, the more due care and caution is to be exercised in invoking these powers.”

34. The cases of Republic versus Director of Public Prosecutions & 2 Others ex parte Doyphine Chemos Sakong; Maurine Chebet Sakong & Another (2021) eKLR in which the decision in Republic versus Commissioner of Police and Anor ex parte Michale Monari & Another (2012) eKLR were cited for the proposition that the police have a duty to investigate a complaint once a complaint has been made. It was held in that case that the police have a constitutional mandate to detect and prevent crime and that they only need reasonable suspicion before preferring charges. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, this Honourable Court would be reluctant to intervene. It is not the task of the court to weigh the merits of the charges to be preferred.

Analysis and Determination 35. I have considered the application before me and the interested party’s response. I have also considered the submissions of both the applicant and the interested party.

36. It is not in dispute that the interested party filed a complaint with the police alleging that she had been assaulted by the applicant. Part of the evidence the Director of Public Prosecutions was presented with is a police medical examination report (P3) form that showed the extent of injuries which the interested party sustained in the course of the assault. The Director of Public Prosecutions was also presented with the witness statements on the interested party’s complaint. Based on this evidence the Director of Public Prosecutions formed the opinion that the applicant ought to be charged with the offence of assault causing actual bodily harm contrary to section 251 of the penal code.

37. In taking this decision the Director of Public Prosecutions exercised his discretion under article 157 (6) (a) of the Constitution according to which he may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.

38. And there should not be anything untoward in the Director of Public Prosecutions taking the decision he took. Nowhere have I found a more persuasive argument on this question than the applicant’s own submissions. To quote the learned counsel for the applicants:…both an incorrect decision to prosecute and an incorrect decision not to prosecute have the potential to erode community trust in the criminal justice system. A decision not to prosecute can be distressing for victims and their families.After making the challenging and sometimes traumatic decision to report a crime, the victim may feel dismissed and doubted. Consequently, it is crucial that the prosecution decision undergoes thorough and thoughtful deliberation.” (Emphasis added).

39. And on the particular question of exercise of discretion in the decision to prosecute or not to prosecute, I also agree with the applicant’s submissions that on the one hand, the Director of Public Prosecutions discretionary powers must be exercised appropriately but, on the other hand, the grounds for challenging the exercise of such discretion are, more often than not, limited.

40. It is only when the discretion is exercised to arrest and prosecute for purposes not intended by law or for ulterior motives or, generally, for purposes other than foradministration of justice that the exercise of discretion becomes unlawful. There would be no need for this court’s intervention in the prosecution process if the decision to prosecute is motivated by the sole objective of ensuring a suspect faces justice. Equally, in the event the court reaches a decision that investigation, arrest or prosecution of a suspect is necessary, that decision should be made with the aim of promoting the administration of justice.

41. Looking at the circumstances of the applicant’s case, it is possible that based on the materials with which the Director of Public Prosecutions was presented and which have also been presented before this Honourable Court by both the applicant and the interested party, an offence may have been committed during the confrontation between the applicant and his wife at the latter’s mother’s house at Muthaiga when the applicant sought to either access the child or remove him from his mother’s custody. The Director of Public Prosecutions made up his mind that he has a viable case against the applicant. The ultimate decision whether there is sufficient evidence to support the charge is not for this court to determine; that is certainly the province of the trail court.

42. And since the court will not delve into interrogating the sufficiency of the evidence it will be hesitant, to stop the arrest and prosecution of a suspect. And this is the reason I find the words of the Supreme Court of India in Mahashtra & Others versus Arun Gulab & Others (supra) to be so apt. They are worth repeating here:

43. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction to the court to act according to its whims or caprice. However, the court under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigations/proceedings.

44. It is true, as stated by the applicant, and there is evidence to the effect that, at the backdrop of the interested party’s complaint to the Director of Public Prosecution and the latter’s decision, is a court dispute between the applicant and the interested party over the custody or access to their child. But the pendency of the dispute does not preclude the Director of Public Prosecution from exercising his discretion to charge both or any of the parties in the dispute if he is persuaded they, or either of them, has committed an offence known in law.

45. Narrowing this question to judicial review, a judicial review court will be hesitant to intervene and interfere with the exercise of discretion unless it can be demonstrated that the discretion was exercised whimsically or capriciously rather than judiciously. This principle has been captured in Chief Constable of the North West Police vs Evans (supra) where it was stated as follows:The remedy by way of judicial review under RSC…is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and …administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner…and not to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.” (Per Lord Hailsham at 1160E-H).”

46. Similar observations were made by Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan BC [1976] 3 All ER 665 at 695, [1977] AC 1014 at 1064 where he noted:The very concept of administrative discretion involves a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred.”

47. Courts may intervene to review a power conferred by statute on the ground of unfairness but only if the unfairness in the purported exercise of the power be such as to amount to an abuse of the power. See Preston v IRC [1985] 2 All ER 327, [1985] AC 835, per Lord Templeman.

48. In conclusion, therefore, I am not satisfied that the applicant has demonstrated that the learned magistrates’ decision is tainted by any of the grounds of judicial review of illegality, irrationality or procedural impropriety. (See the Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410).

49. There is absolutely no evidence that in reaching his decision, the Director of Public Prosecutions did not understand correctly and give effect the relevant constitutional and statutory provisions relating to his exercise of discretion to prosecute the applicant. He properly understood the extent of his powers in making the decision he made.

50. Again, there is no basis upon which it can be urged that the respondent’s decision was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. In other words, there is no basis for faulting the Director of Public Prosecution’s decision on the ground of unreasonableness.

51. The applicant’s statement regarding the incident out of which the interested party’s complaint arose was recorded. As a matter of fact, he is said to have also lodged his own complaint. His side of the story will certainly be taken into account in the trial court’s decision on whether he has a case to answer or whether, ultimately he is guilty of the offence with which he is charged. As to whether his own complaint has been investigated, there is no evidence that the respondents have declined to investigate it. The point is, there is no case for faulting the Director of Public Prosecution’s decision on the ground of procedural impropriety.

52. In the ultimate, I am not convinced that the applicant has made a case capable of persuading me to exercise my discretion and grant the orders for judicial review. The applicant’s motion is thus dismissed. However, considering the family ties between the applicant and the interested party, I make no order as to costs. Orders accordingly.

SIGNED, DATED AND DELIVERED AT NAIROBI VIA VIDEO LINK ON 15 DECEMBER, 2023. Ngaah JairusJUDGE