[2017] KEHC 3036 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION No. 62 of 2016

IN THE MATTER OF: AN APPLICATION BY REGINE BUTT FOR JUDICIAL

REVIEW ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AGAINST THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS,

INSPECTOR OF NATIONAL POLICE SERVICE AND THE DIRECTOR

GENERAL KENYA WILDLIFE SERVICES

AND

IN THE MATTER OF: ARTICLES 22, 23, 27(1), 47 AND 50 (1), 157(11) OF THE CONSTITUTION

AND

IN THE MATTER OF: THE WILDLIFE CONSERVATION AND MANAGEMENT ACT NO. 47 OF 2013

BETWEEN

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

VERSUS

1. DIRECTOR OF PUBLIC PROSECUTIONS

2. INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE

3. DIRECTOR GENERAL KENYA WILDLIFE SERVICE.......RESPONDENTS

RULING OF THE COURT

The Application

1. By way of Notice of Motion dated 24th August, 2016, brought under Section 8(2) and 9(1) (b) of the Law Reform Act, Cap 26, Laws of Kenya and Order 53 of the Civil Procedure Rules, the ex-parte Applicant seeks the following orders:

a) An order of Certiorari to bring to this Honorable Court to be quashed the decision by the Respondents to charge and prosecute the applicant signified by charge sheet dated 3rd August 2016 under Police Case No. PCR 385/2016 in Shanzu Law Courts, Criminal Case No. CR. 607 of 2016.

b) An Order of Prohibition prohibiting the Respondents from harassing intimidating, arresting, detaining or prosecuting the Applicant signified by charge sheet dated 3rd August 2016 under Police Case No. PCR 385/2016 in Shanzu Law Courts, Criminal Case No. CR. 607 of 2016.

c) An Order of Mandamus compelling the 3rd Respondents to duly keep and prevent trespass by wildlife and wildlife trophies under its charge pursuant to the Wildlife Conservation and Management Act, No. 47 of 2013 into private property in general and all or any property where the Applicant or her family reside.

d) Costs.

The application is premised on grounds set out therein and those in the Statement of Facts filed dated 13th August 2016 and the verifying affidavit sworn by REGINE BUTT on 15th August 2016.

2. The Applicant alleges that she is the wife of the late Shahid Pervez Butt with whom they lived at their matrimonial home on Plot No. 1371/1/MN, Mkomani, Mombasa until 2014 when he died. Upon the death of Shahid Pervez Butt, the Applicant claims that the deceased’s former wife one Akhtar Butt evicted her and her children from her matrimonial home.

3. Being rendered homeless, the Applicant alleges that she proceeded to be accommodated by her mother on Plot No. 3267/1/MN situate at Nyali, Mombasa.

4. It is the Applicant’s claim that on 28th May 2016 at around noon, while at her mother’s aforementioned residence, persons claiming to be officers of Kenya Revenue Authority entered into the residence and searched the compound. The Applicant alleges that the said individuals also inquired from her whether there were any tortoise in the compound.

5. The Applicant further claims that on the same day, 28th May 2016, in the afternoon, the said individuals returned accompanied by uniformed officers who claimed to be Kenya Wildlife Officers. The officers claimed that the Applicant was keeping tortoise without a permit, which allegation the Applicant denied and informed the officers that she was not the owner of the said residence.

6. The Applicant alleges that she was then arrested and taken to Bamburi Police Station, charged with the offence of keeping a tortoise without a permit and released on a cash bail of Kshs. 20,000.

7. The Applicant alleges that on 30th May, 2016, she was arraigned before Shanzu Law Courts and charged in Criminal Case No. 4666 of 2016 with the offence of keeping a tortoise without a permit. The Applicant claims that she objected to the charges and applied for the same to be terminated on the grounds that the charge did not disclose sufficient details to enable plea and/or defence. However, the applicant claims that before the court could rule on her application the prosecution withdrew the charge.

8. On 28th July, 2016, the Applicant claims that officers from Kenya Wildlife Services accompanied by several police officers from Bamburi Police Station returned to her mother’s residence this time requiring her to appear in court on 30th July 2016 to take plea on the same charge of keeping a tortoise without a permit. The Applicant claims that she did not take plea on 30th July, 2016 as the plea was deferred to 16th August, 2016.

9. It is the Applicant’s case that the charge brought a second time lacks sufficient detail necessary for plea and defence and that the charge is malicious, in bad faith and an abuse of power.

10. Further, the Applicant contends that the real intention of the charges is to harass, frustrate and force her to abandon her civil cases in respect of her late husband’s estate by unfairly portraying her as a criminal.

11. The Applicant claims that the Respondents have abused the power granted to them by exercising that power arbitrarily without due investigations. In support of this claim, the applicant argues that the Respondents impugned charges through the Bamburi Police Station and not Nyali Police Station within whose jurisdiction the alleged tortoise was found and further that no statement was sought from the applicant neither were investigations undertaken in the matter.

12. It is the Applicant’s case that the actions of the Respondents of arresting and preferring charges against her do not promote the objects and intention of the Wildlife Conservation and Management Act No. 47 of 2013 and violate her right to fair administrative action and the criminal justice process.

Response

13. The 1st and 2nd Respondents responded to the application by way of Grounds of Opposition filed on 31st July 2017. The 1st and 2nd Respondents claim that the application undermined the 1st and 2nd Respondents statutory mandate under the Constitution and that the application was premature and speculative as it raised issues that can only be determined during trial.

14. The 1st and 2nd Respondents further allege that the application is malicious as the 1st Respondent is under no Constitutional or statutory duty to explain its decision to charge the Applicant and that the Applicant has the recourse, if aggrieved by the decision of the subordinate court, to appeal or review it.

15. It is the 1st and 2nd Respondents’ case that this application is misconceived and a dilatory tactic meant to delay the hearing of the criminal case before the subordinate court.

16. The 3rd Respondent did not respond to the application.

Submissions

17. The Applicant filed submissions on 20th June 2017 while the 1st and 2nd Respondents filed submissions on 31st July 2016. The 3rd Respondent did not file any submissions.

18. Mr. Miyare, learned counsel for the Applicant submitted that the Applicant was not the registered owner nor the beneficial owner of Plot No. 3267/1/MN Nyali where the alleged tortoise was found thus she has no control over any reptiles that move/live on land or any creatures that roam around the subject premises.

19. Counsel submitted that there was no sufficient evidence to warrant the purported charge against the applicant. Specifically, counsel pointed out that the charge as drawn lacked sufficient particulars, for instance, the specific place to create a nexus between the applicant and the place, to enable the applicant take a plea and prepare a defence.

20. Mr. Miyare submitted that the applicant does not operate a zoo on the suit premises therefore she has not committed any acts which are sufficient to warrant the offence of keeping a tortoise. Further, Counsel contended that no sufficient investigations have been undertaken by the Respondents to warrant commencement of criminal charges.

21. Mr. Miyare submitted that the prosecution of the charge is in derogation of the Applicant’s right to freedom and security of the person and the right to human dignity as the mode in which the officers of the 2nd and 3rd Respondents visited the subject premises revealed foul play and an intent to prosecute the Applicant at all costs.

22. Mr. Miyare submitted that in halting the criminal proceedings before the subordinate court this court should be guided by two considerations: to ensure that the court process is used fairly by both state and its citizens and secondly to instill public confidence in the courts and prevent courts from being used as tools of oppression and injustice. Counsel further submitted that whenever the institution of criminal proceedings is marred with ulterior purposes, such proceedings cause undue oppression to an accused person and a court of law should intervene to prevent the abuse of such power and of court processes. Counsel referred the court to the case of Republic versus AG Ex Parte Kipngeno Arap Ngeny HC Misc. Application No. 406 of 2001 that was quoted in Mohammed Gulam Hussein Fazal Karmali & Another versus Chief Magistrate’s Court Nairobi & Another [2006] eKLR where it was held:

“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 reasonable and probable case for mounting a criminal prosecution, otherwise, the prosecution will be malicious and actionable.”

23. Mr. Miyare submitted that the actions of the 1st Respondent of withdrawing charges against the Applicant on 30th May 2016 only re-enforces the fact that the charges are unsubstantiated. Mr. Miyare submitted that the decision by the Respondents to charge and prosecute the ex-parte applicant with the offence of keeping a tortoise without a permit is unreasonable, unfair, in bad faith and amounts to violation of the ex-parte Applicant’s fundamental rights and freedoms.

24. Mr. Wangila, learned counsel for the 1st and 2nd Respondents, submitted that the 1st Respondent acted within its constitutional mandate under Article 157 (4) by directing the 2nd Respondent through delegated authority to the 3rd Respondent to investigate the information of criminal conduct after terminating the case against the applicant in Criminal Case No. 466 of 2016 which later culminated into fresh charges in Criminal Case No. 607 of 2016. Counsel emphasized that there was no violations of any of the Applicant’s rights.

25. Mr. Wangila submitted that the orders sought if granted would offend the doctrine of separation of powers for there is no action of the Executive in this case that is ultra vires. Counsel further submitted that the Constitution of Kenya provide essential safeguards for a fair trial and it has not been demonstrated that the ex-parte applicant will not be accorded a fair trial before the subordinate court to warrant the granting of the orders sought. In support of this assertion counsel cited the case of Alfred N. Mutua versus Ethics & Anti-Corruption (EACC) & 4 Others [2016] eKLR where the Court of Appeal stated that:

“The Kenya Constitution is replete with the provision on separation of roles, powers and functions. The office of Director of Public Prosecutions is an independent office with clear defined functions. In principle, it is not the work of courts to interfere with other state organs unless it can be shown that they violate the Constitution; each state organ must be allowed to function without interference…It is the duty of this court to protect not only the functional, administrative and operational independence of the Office of Director of Public Prosecution but also to protect the applicant and ensure that in exercise of his functions, the DPP must have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of legal process.”

26. Mr. Wangila submitted that Section 87(a) of the Criminal Procedure Code, Cap 75, Laws of Kenya empowers the 1st Respondent to withdraw charges against an accused person and bring fresh charges on account of the same facts as was the case in the ex-parte Applicant’s case before the subordinate court.

27. Mr. Wangila stated that the allegations that the 1st and 2nd Respondents acted on the whims of the ex-parte Applicant’s opponent in a civil case by instituting the criminal charges are non-factual, malicious and baseless as the two are unrelated an in the unlikely event that they are, Section 193A Criminal Procedure Code allows both proceedings to run concurrently.

28. Mr. Wangila submitted that Section 95 of the Wildlife Conservation and Management Act. No. 47 of 2013 discloses a prosecutable public interest offence and thus it is imperative upon the 1st Respondent to present evidence against the ex parte Applicant for the same to be rebutted and challenged by the evidence presented by the ex-parte Applicant.

29. Mr. Wangila submitted that this application was merely a dilatory tactic meant to delay the hearing of the criminal case and if the orders sought are granted there will be a miscarriage of justice as it will offend the cardinal principle of natural justice. Counsel submitted that the ex-parte applicant ought to, if she believes in her innocence, undergo the vigors of trial where she will be able to examine and interrogate the evidence by the 1st Respondent against her and defend herself if so required by the subordinate court.

Determination

30. I have carefully analyzed this application and the submissions by Counsel. I find that the issue for determination is simply whether in that application orders of judicial review are merited.

31. The ex-parte Applicant claimed that she was not the registered nor the beneficial owner of Plot No. 3267/1/MN Nyali where the purported tortoises were found. The applicant further claimed that she has no control over any reptiles that move/live on land or any creatures that roam around the subject premises thus she has not committed any acts, particulars of which are sufficient for the offence of keeping of tortoise or to warrant prosecution thereto.

32. The ex-parte Applicant also claimed that there was no sufficient investigations undertaken by the Respondents to warrant commencement of criminal charges thus the criminal proceedings are marred with ulterior motives and are brought in bad faith. The ex-parte Applicant also alleged that the criminal proceedings before the subordinate court are simply a ploy to distract her from prosecuting Mombasa High Court Civil Case No. 8 of 2014: Regine Butt versus Akhtar Butt & Another.

33. In the case of Cortec Mining Kenya Limited v. Cabinet Secretary, Attorney General & 8 others [2015] eKLR the Court of Appeal stated that:

“…certiorari issues to quash decisions for errors of law in making such decisions or for failure to act fairly towards the person who may be adversely affected by such decision. Prohibition is directed to an inferior tribunal or body from continuing proceedings in excess of its jurisdiction or in contravention of the laws of the land. The order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refuses to perform the same.”

34. The ex-parte Applicant herein does not dispute the jurisdiction of the subordinate court to hear the matter before it nor does she claim any errors of law in the decision of the subordinate court.

35. In the case of REPUBLIC VS. IEBC & 3 OTHERS EX-PARTE HON. WAVINYA NDETI, NAIROBI HC MISC. APP. NO. JR 301/2017, Odunga J. held that:

“..by parity of reasoning where for example in judicial review proceedings the Court finds that a party who ought to have been heard was not heard, it is not for the Court to proceed and determine whether a hearing would have changed the decision. Once it is found that the party was not heard that is the end of the matter and the decision must be set aside”.

In the criminal case before the subordinate court, the ex-parte Applicant was not denied the opportunity to be heard. It should be noted that the proceedings before the lower court were just beginning and were at the plea stage. Up to this point, the ex-parte Applicant had not been denied the opportunity to be heard thus it can be said that the proceedings before the lower court were in line with the principles of natural justice.

36. The ex-parte Applicant claims that she is neither the registered owner nor the beneficial owner of the subject premises in the criminal case. The ex-parte Applicant also contends that she has no control over reptiles that roam within the premises. By making these allegations, the ex-parte Applicant is inviting this court to examine the merits and demerits of the case before the lower court which is not the realm of judicial review proceedings. In the case of REPUBLIC VS. ATTORNEY-GENERAL & 4 OTHERS, ex parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014], the court held that:

“Judicial review applications do not deal with merits of the case but only with the process. In other words judicial review only determines whether decision-maker had jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision-maker took into account relevant matters or did take into account irrelevant matters.”

37. This court observes that Article 157 (6), (10) and (11) of the Constitution provides:

“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may —

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.

(11) 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.”

The 1st Respondent herein is an independent office and this court cannot interfere with its independence and dictate to it when it should commence and when it should not commence criminal proceedings against any person. This court can only interfere with the mandate of the 1st Respondent where there is disregard for public interest, administration of justice and abuse of the legal process. See the case of Alfred Mutua versus Ethics & Anti-Corruption Commission (EACC) & 4 others (supra). The ex-parte Applicant has not proved that the criminal proceedings before the lower court are contrary to public interest, administration of justice or that there has been an abuse of legal process.

38. Similarly, this court cannot interfere with the mandate of the 2nd Respondent to carry out investigations where it suspects that a crime has been committed. The ex-parte Applicant cannot therefore claim that the investigations conducted by the 2nd Respondent were not sufficient to warrant institution of criminal charges. The ex-parte Applicant should instead challenge the sufficiency of the investigations during the trial before the lower court.

39. In addition Section 87 (a) of the Criminal Procedure Code provides that in a trial before a subordinate court, a public prosecutor may with the consent of the court or on the instruction of the Director of Public Prosecutions, before Judgment is pronounced withdraw any charges against any person and further that if this is done before an accused has been called upon to make his defence, the accused person shall be discharged but the discharge shall not operate as a bar to subsequent proceedings against the accused person on account of the same facts. I therefore find that the 1st Respondent was well within its mandate and or authority when it withdrew Criminal Case No. 466 of 2016 and subsequently lodged Criminal Case No. 607 of 2016 against the ex-parte Applicant on the same facts. The ex-parte Applicant has not proved any malicious intent by the 1st Respondent in deciding to bring for a second time charges against the ex-parte Applicant based on the same facts.

40. This court finds that the ex-parte Applicant’s case does not warrant issuance of the orders sought. The charges against the ex-parte Applicant were properly brought before the lower court and the said court has the jurisdiction to hear and determine the case without any interference from this court.

41. For the foregoing reasons the application dated 24th August 2016 is dismissed.

42. Costs to the Respondents.

Dated, Signed and Delivered in Mombasa this 5th day of October 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Obinju holding brief Miyare for Ex parte Applicant

M/s. Karuga for DPP

Mr. Makuto for Hon. Attorney General

Mr. Kaunda Court Assistant