[2022] KEHC 18103 (KLR)

Republic v Inspector General of Police & 2 others; Muchelule (Exparte) (Application E112 of 2021) [2022] KEHC 18103 (KLR) (Judicial Review) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 18103 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E112 of 2021

J Ngaah, J

November 11, 2022

Between

Republic

Applicant

and

Inspector General Of Police

1st Respondent

Director Of Criminal Investigations

2nd Respondent

Director Of Public Prosecutions

3rd Respondent

and

Hon Justice Aggrey Muchelule

Exparte

Judgment

1At all times material to the application before court, the applicant was a judge of this Honourable Court. He has since been elevated to the Court of Appeal.

2On 22 July 2021, the 1st and 2nd respondents’ officers stormed the applicant’s chambers ostensibly to conduct a search to recover money, in hard cash, which the applicant is alleged to have received either as a bribe or otherwise in perpetuation of a corrupt transaction.

3The respondents’ own inventory of the search conducted in the applicant’s chambers revealed that “nothing was recovered” that would incriminate the applicant on any corruption related offence or on any other criminal offence known in law.

4Even then, the respondents proceeded to arrest the applicant with the intention of prosecuting him on baseless and unsubstantiated suspicions of commission of a crime by the applicant.

5The applicant has taken the view that, in the absence of any warrant authorising the respondents to storm his chambers and, in the absence of any evidence that the purported search yielded anything that would implicate the applicant for having committed the alleged corruption related offence or any other offence, for that matter, the respondents’ conduct was more of abuse of power and authority and less of enforcement of the law and advancement of criminal justice. Their primary intention, according to the applicant, was to subject the applicant in particular, and the institution of the judiciary in general, to public ridicule, scorn and embarrassment.

6It is against this background that the applicant has moved this honourable court by way of a motion dated 29 July 2021 seeking the order of prohibition directed at the respondents to prohibit them from making further arrests of the applicant or preferring any charges against him for alleged offence or offences connected with the unlawful and illegal search conducted in his chambers on 22 July 2021. To be precise, the prayer for this order has been framed in the motion as follows: 1. This Honourable Court be pleased to grant an order of prohibition directed at the respondents prohibiting them from making further arrests of or preferring any charge against the ex parte applicant for alleged offence(s) connected with the unlawful and illegal search conducted in his chambers on 22nd July, 2021 and the result arrest.”

7The application is based on a statutory statement dated 22 July 2021 and an affidavit verifying the facts relied upon sworn by the applicant on even date.

8In the affidavit, the applicant has sworn that on 22 July 2021 officers acting on the instructions of the 1st and 2nd respondents, stormed his chambers at Milimani Law Courts building ostensibly to conduct a search on suspicion that he was about or had received unknown amount of money from undisclosed source.

9The search did not yield anything yet the officers proceeded to arrest the applicant and took him to their offices with the intention of charging him.

10It is the applicant’s case that the respondents have abused their authority and power in arresting him without having conducted any criminal investigations as required under the law. In the circumstances, the respondents ought to be restrained from either arresting the applicant arbitrarily or prosecuting him in a similar manner.

11The applicant has also deposed that the respondent’s conduct has subjected him to public scorn and embarrassment.

12The 1st and 2nd respondents did not file any sort of response to the application. On his part, the 3rd respondent filed both grounds of objection which are dated 10 August 2021 and a replying affidavit sworn on 11 August 2021 by Berryl Akoth Marindah, a prosecution counsel in the office of the Director of Public Prosecutions.

13Basically, the 3rd respondent has denied having taken any action against the applicant and, in particular, he has averred that he has not received any investigation file for perusal and advice from the 1st and 2nd respondents with respect to the applicant. In any event, he is not aware of any evidence of a criminal offence having been committed by the applicant.

14I have had the opportunity to consider the application, the response thereto and the parties’ respective written submissions.

15The allegations which form the basis of the applicant’s application are mainly against the 1st and 2nd respondents. The latter have not responded to the allegations against them and therefore, in the absence of any evidence contrary to what the applicant has deposed in the verifying affidavit, this Honourable Court is entitled to assume that what the applicant has said in his affidavit is true.

16The deposition by Ms. Marindah that the Director of Public Prosecutions is not aware of any evidence which would form the basis of criminal prosecution against the applicant buttresses this point. In paragraph 7 of the replying affidavit, the learned counsel has sworn as follows: 7. That every case investigated by the 2nd respondent and a decision made by the 3rd respondent on whether or not to prefer charges is based on whether or not there is sufficient evidence to make such a decision; as such the 3rd respondent is totally unaware of any evidence, if any, against the ex parte applicant herein.”

17This statement is pregnant with the undisputed truth that as between Inspector General of National Police Service, under whose docket the Directorate of Criminal Investigations falls, and the Director of Public Prosecutions, it is the latter who is the repository of the power and the authority to prosecute. What’s more, it is only the Director of Public Prosecutions who will make a decision on whether or not to prosecute any person based on the sufficiency or otherwise of the evidence collected after investigations have been carried out.

18This position is consistent with Article 157 (4) as read with Article 157(6)(a) of the Constitution. Article 157(4) reads as follows:(4)The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

19And Article 157(6)(a) reads as follows:(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

20It follows that, it would be out of order, and certainly against the Constitution, for the Inspector General of Police or the Director of Criminal Investigations under him to arrest and purport to prosecute any person without the blessings of the Director of Public Prosecutions.

21Yet this is what the Inspector General of National Police Service and the Director of Public Prosecutions purported to do when they searched the applicant’s chambers and arrested him with a view to charging him.

22It is worth noting that the 1st and 2nd respondents never provided any basis why they suspected that the applicant had received money for corrupt purposes and which they suspected was in the applicant’s chambers. In their own inventory which they recorded after the search, they stated as follows:Inventory To (sic) The Search Carried Out On 22/7/2021 At Hon. Justice Muchelule’s Office At Milimani High Court At 14:00 Pm.

23A thorough search was conducted in the said Hon, Justice Muchelules (sic) office/chambers in the presence of the owner and nothing was recovered after searching every corner of the office/chambers. Search conducted in the presence of the following: 1. Mr. Kuria Obadiah (signed)

2. C.I. Marubu (signed)

3. C.I. Karisa (signed)

4. Sgt. Mwangi (signed)

5. APC Philip Orego (signed)

6. Hon. Justice Muchelule” (Underlining mine).

24Although their purported search yielded nothing, the 1st and 2nd respondents still arrested the applicant and subjected him to interrogations at the Directorate of Criminal Investigations offices.

25I would agree with the applicant’s learned counsel that the storming of the applicant’s chambers and the purported search were unwarranted considering that no evidence has been provided of any conduct that may have led the 1st and the 2nd respondents to suspect that the applicant was involved in a corrupt conduct. And having not found anything suspicious either in the applicant’s chambers or on his person, his arrest and subsequent interrogation at the 2nd respondent’s headquarters was demeaning not only to the person of the applicant but also to the office which he holds.

26In these circumstances, I have no hesitation in reaching the conclusion that the 1st and 2nd respondent’s conduct smacked of illegality, irrationality and procedural impropriety. These three grounds of judicial review were explained by Lord Diplock in the English decision of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. The learned judge explained these grounds as follows:Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

27By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

28By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is 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. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.

29I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

30The 1st and 2nd respondents’ conduct was illegal because first, they arrested the applicant without any investigations and without any basis of suspicion that the applicant had been engaged in any criminal conduct and, secondly, assuming investigations had been conducted, they arrested the applicant without the Director of Public Prosecutions having been given the opportunity to consider the evidence collected and make a decision whether or not to charge the applicant. In other words, the 1st and 2nd respondents flouted Articles 157(4) as read with Articles 157(6) (a) of the Constitution. It can be concluded that they neither understood the law regulating their power nor gave effect to it.

31More or less for the same reasons, the 2nd and 3rd respondents’ conduct can properly be described as irrational. It is irrational because even assuming that the 1st and 2nd respondents were justified in storming and searching the applicant’s chambers, they had no reason to arrest him and drag him to their headquarters when the outcome of their search vindicated the applicant of any crime that they suspected he may have committed. In these circumstances, the decision to arrest the applicant and take him to the 2nd respondent’s headquarters can properly be said to have been 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.

32Finally, in the absence of any evidence of investigations by the 1st and 2nd respondents or any basis to suspect that the applicant had received money for corrupt purposes or had, for that matter, committed any offence; and, considering that the 2nd and 3rd respondents deliberately sidestepped the 3rd respondent’s role in investigations and prosecutions, the decision to charge the applicant smacked or procedural impropriety. The 1st and 2nd respondent failed to act with any procedural fairness when they arbitrarily arrested the applicant without any basis for their suspicion that the applicant had committed a crime.

33For the reasons I have given, I am satisfied that the applicant merits the order of prohibition as sought in his motion dated 29 July 2021. An order of prohibition is hereby granted as prayed in the said motion. The applicant will also have costs against the 1st and 2nd respondents. It is so ordered.

SIGNED, DATED AND DELIVERED ON 11 NOVEMBER 2022NGAAH JAIRUSJUDGE