[2022] KEHC 604 (KLR)

Republic v Inspector General of Police & 2 others; Njenga (Exparte); Premium Movers Limited & 2 others (Interested Party) (Judicial Review Miscellaneous Application E039 of 2021) [2022] KEHC 604 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 604 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Miscellaneous Application E039 of 2021

JM Mativo, J

May 6, 2022

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

Between

Republic

Applicant

and

Inspector General of Police

1st Respondent

Director of Public Prosecutions

2nd Respondent

Director of Criminal Investigations

3rd Respondent

and

Anthony Murigi Njenga

Exparte

and

Premium Movers Limited

Interested Party

Loise Kaguongo Kabari

Interested Party

Nyakundi Josephat

Interested Party

Judgment

1. Vide a Notice of Motion dated 20th September 2021 filed pursuant to this courts leave granted on 9th September 2021, the applicant seeks to prohibit the Respondents, their officers and or any other person/authority acting on its instructions from charging and prosecuting him over issues related to stealing money from the Interested Parties. Also, he prays that this court be at liberty to make such further and other orders as it deems fit to meet the ends of justice. Lastly, he prays for costs of this application be provided for.

2. The grounds in support of the application as I glean them from the Statutory Statement dated 6th September 2021 are that the applicant undertakes transporter business in Mombasa mainly transporting construction materials. He states that the Interested Parties who are based in Nairobi were issued with a Local Purchase Order to supply construction materials to two Chinese firms and himself and the Interested Parties entered into a contract pursuant to which he was to use his motor vehicle to supply the said materials and he would be paid as per based on the number of vehicles delivered. He states that the Interested Parties mandated him to manage their motor vehicles and also to ensure that deliveries are done and the invoices issued, and he did issue invoices worth millions on behalf of the Interested Parties which were paid.

3. He states that after the Interested Parties noticed he was growing his business, they alleged that he used their money. He avers that no reconciliation has been done and he continues to invoice the Interested Parties to date. He states that he has received phone calls from strangers claiming to be police officers threatening him with arrest, harassment and prosecution if he does not pay the sums owed to the Interested Parties. He avers that the Regional Commander called and told him to report to Capitol Hill Police Station over a debt owed to the 2nd Interested Party without informing him the amounts. He states that he cannot be coerced by the Respondents because they are not parties to the contract nor are they debt collectors. He avers that the Interested Parties are using the Respondents to frustrate their agreement and he is ready to refund any monies owed to them. Lastly, he contends that the Respondents are misusing their powers.

4. The 1st and 3rd Respondents filed the Replying affidavit of Idd Amina, a police officer attached to Mombasa Central Police Station dated 21st January 2022. The crux of his affidavit is that the application is bad in law; it seeks to undermine the constitutional and Statutory duties of the 1st and 2nd Respondents who are legally mandated to investigate, arrest and forward the investigation file to the 2nd Respondent.

5. The 3rd Respondent (the DPP) did not file a Reply or grounds of opposition.

6. The Interested Parties filed a Replying Affidavit sworn by a one Nyakundi Josephat, the 3rd Interested Party dated 11th November 2021, who is a director of the 1st Interested Party. The salient features of the affidavit are that the 1st Interested Party and the applicant entered into the aforesaid contract and also the 1st Interested Party engaged the applicant to supervise its operations in Mombasa.

7. He denied that the applicant was to be paid 15% commission and averred that their relationship was cordial until 2020 or thereabouts when one of its customers in Mombasa M/S China Civil Construction Corporation (Kenya) Limited delayed payments and upon inquiring, they said the deliveries could not be settled because other suppliers were claiming the same deliveries, so, the 1st Interested Party’s requested the said company to stop all payments pending investigations. He averred internal investigations revealed that some of its staff were colluding with its competitors by illegally transferring the 1st Interested Party’s delivery notes to its competitors who would then raise invoices and then pay them a commission.

8. He averred that the 1st Interested Party sought to meet him to unravel the theft but he was evasive and he never turned up for the meetings despite numerous reminders. He averred that the 1st Interested Party sued China Civil Engineering Construction Corporation (Kenya) Limited in CMCC No. E1167 of 2021 seeking to restrain it from paying the stolen delivery notes and the said company agreed not to pay the disputed deliveries pending completion of investigations by the police and prosecution. Additionally, Mr. Nyakundi averred that the application is misconceived, that the Respondents are independent bodies and they cannot be controlled by the Interested Parties, and, judicial review cannot be used to stop statutory bodies from lawfully exercising their powers.

9. The applicant filed a supplementary affidavit on 10th January 2022 essentially reiterating his issues raised in his earlier affidavit. Also, he averred that the Interested Parties have not disputed that the report to the police was meant to harass the applicant.

10. The application was canvassed by way of written submissions. The nub of the applicant’s submission is that the dispute is civil in nature, so, the police ought not to be involved nor are they debt collectors. He submitted that charging him with the offence of stealing is abuse of the law and the powers vested on the Respondents and cited Commissioner of Police and Director of Criminal Investigations Department v Kenya Commercial Bank and others1which the court held that while section 193A of the Criminal Procedure Code2 allows concurrent civil and criminal proceedings arising from the same issues, the police must exercise their power in accordance with the law and in good faith. He argued that the best forum for the parties to resolve the dispute is a civil court.1Nairobi Civil Appeal No. 56 of 2012, [2013] e KLR.2Cap 75, Laws of Kenya.

11. The 1st and 3rd Interested Parties submitted that the power to charge and prosecute is vested in the DPP, an independent institution under Article 157(10) of the Constitution. They submitted that the applicant is seeking to stop the DPP from exercising its constitutional mandate and cited Republic v Attorney General & others ex parte Diamond Hashim Lalji & Ahmed Lalji3 which held that the court ought to be extremely cautious in its findings so as not to prejudice intended or pending proceedings. They submitted that once a complaint is reported to the police, the police are required to investigate, while the DPP independently decides whether or not to prosecute. They cited Republic v Commissioner of Police & another ex parte Michael Monari & another4andDavid Ndolo Ngiali & 2 others v Director of Criminal Investigations & 4 others5which held that the Police have a duty to investigate any complaint once it is reported to them. They also cited Kipoki Oreu Tasur v Inspector General of Police & 5 others6 which urged courts to exercise restraint while interfering with the criminal justice system, and only to intervene in clear cases where violation of fundamental rights have been demonstrated. They submitted that no evidence has been offered to warrant court intervention.3[2014] e KLR.4[2014] e KLR.5[2015] e KLR.6[2014] e KLR.

12. Also, the 1st to 3rd Interested Parties submitted that section 193A of the Criminal Procedure Code7 permits parallel criminal and civil proceedings. They submitted that the fact that the applicant risks being charged with a criminal offence is not evidence of malice or abuse of process and cited Daniel Ndungu v Director of Public Prosecutions and another8in support of the holding that the applicant ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the law should he be culpable.7Cap 75. Laws of Kenya.8[2013] e KLR.

13. The applicant in his supplementary submissions cited Article 47 of the Constitution and Patoli v Kabale District Local Government Council & others9 and argued that procedural impropriety is where a decision-making authority fails to act fairly or failure to adhere to procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction. (Citing Al-Mehdawi v Secretary of State for Home Affairs Department10).9[2008] 2EA 300. 10[1990] AC 876.

14. The DPP distinguished its constitutional functions from the functions of the National Police under Articles 243 and 245 of the Constitution and sections 24 of the National Police Service Act11 and argued that the actions of the 1st and 3rd Respondents cannot be said to be actions of the DPP. He submitted that in instituting charges, the DPP actsindependently as provided under Article 157(10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions.1211Act No. 11A of 2011. 12Act No. 2 of 2013.

15. The DPP argued that a prohibition can only issue if it is demonstrated that the conduct complained of is unlawful, unreasonable, contrary to public interest and administration of justice or it is abuse of legal process. The DPP citedJustus Mwenda Kathenge v Director of Public Prosecutions & 2 others13 in support of the holding that courts cannot interfere with the DPP’s constitutional mandate unless it can be shown that he has acted without due regard to public interest, or he has acted against the interests of the administration of justice or he has not taken into account the need to prevent or avoid abuse of court process. The DPP submitted that the instant application seeks to usurp the constitutional and statutory powers of the DPP and argued that the 1st and 2nd Respondents are mandated to investigate any complaint of a criminal nature and relied on Pauline Adhiambo Raget v DPP & 5 others.1413[2014] e KLR.14[2016] e KLR.

16. Additionally, the DPP submitted that the mere fact that the applicant has not been arraigned in court is sufficient proof that the DPP had not made a recommendation to charge him and cited Eunice Khalwali Miima v Director of Public Prosecutions & 2 others15which held that the mere fact that the intended prosecution is likely to fail is not enough. The DPP also relied on Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 others16 which underscored the tests for granting conservatory orders. He also cited section 107(1) (2) of the Evidence Act17 and submitted that the applicant has failed to discharge the burden of prove. Lastly, the DPP relied on Municipal Council of Mombasa v Republic & Umoja Consultants Ltd18 and argued that the applicant has failed to prove illegality, irrationality or procedural impropriety.15[2017] e KLR.16[2014] e KLR.17Cap 80. Laws of Kenya.18Civil Appeal No. 185 of 2001.

17. In determining the issues raised in this Judicial Review proceedings, it is important at the earliest opportunity possible to mention that the applicant’s core grievance is that the dispute between himself and the Interested Parties is civil in nature and therefore the police have no business at all to be involved. Notably, the applicant heavily relied on Commissioner of Police and the Director of Criminal Investigations Department v Kenya Commercial Bank and others(supra). Specifically, the applicant relied on excerpt from the said decision. However, a reading of the excerpt shows that the facts presented in the said case were totally different from the instant case. At line 5 of the excerpt from the top, the court stated: -“…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 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 a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court.”

18. A reading of the above excerpt shows that unlike the instant case, the dispute in the cited case was the subject of previous civil litigation since 1992, ten years before the case challenging the criminal proceedings was filed. It is settled law that a case is only an authority for what it decides. This is correctly captured in the following passage: -1919As observed in State of Orissa v Sudhansu Sekhar Misra MANU/SC/0047/1967“A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. ... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. ...a case is only an authority for what it actually decides...." (Emphasis added)

19. The ratio of any decision must be understood in the background of the facts of the particular case.20 It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.21 It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.2220Ambica Quarry Works v State of Gujarat and Ors.MANU/SC/0049/198621Ibid22Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59)

20. Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect.23In deciding cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another.24 To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Clearly, the cited decision has no application to this case. Section 193A of the Criminal Procedure Code provides: -23In the High Court of Delhi at New Delhi February 26, 2007 W.P.(C).No.6254/2006, Prashant Vats Versus University of Delhi & Anr. (Citing Lord Denning).24IbidNotwithstanding the provisions of any other written law the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceeding.

21. Clearly, the law permits parallel criminal and civil proceedings. The argument that the dispute is civil in nature collapses.

22. I now address the question whether the applicant has established any basis for the court to grant the prohibition sought. In answering this question, it is important to appreciate the scope of the 1st and 2nd Respondents constitutional and statutory mandate and decide whether by summoning the applicant, they acted ultra vires their constitutional and statutory mandate. Granted, law enforcement agencies are entrusted with a diverse set of tasks requiring a high degree of integrity.

23. Article 245 (4) provides that the Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or… These provisions are meant to guarantee the independence of the National Police Service in the performance of its functions.

24. Undisputedly, the police are an important cog in the security sector. The functions of the National Police Service enumerated in section 24 of the National Police Service Act include (e) investigation of crimes; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

25. Section 35 of the National Police Service Act provides the functions of the 3rd Respondent include—undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehend offenders; and performing any other function conferred on it by any other written law.

26. Clearly, the police are legally obligated, once they witness or are informed of a crime, to investigate the offence. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. These obligations arise from the Constitution and are affirmed by the National Police Service Act. The functions of the police is to investigate crimes. Any other answer would give rise to indignation.

27. In order to carry out the above functions, the police have certain powers, namely the power to summon, arrest and detain and the power to use reasonable force. It is precisely this monopoly of power which places the police in a unique and sensitive position such that adequate control mechanisms are required to ensure that these powers are consistently used in the public interests. Like any other public service, the Police must operate with impartiality.

28. Investigation of the crime is a solemn duty imposed by law on the police officers. I have severally stated in my previous decision that a police man’s position is different from that of ordinary citizen in that they cannot simply walk away from a criminal offence that has been reported to them or has been brought to their attention. As was held in S v Williams and others: 25251998 (2) SACR 191 (SCA), citing Booysen, Justice, in S v Barnes and Another 1990 (2) SACR 485 (N).“Although mere failure to report the crime to the authorities would not render a member of the public guilty of being an accessory after the fact of that crime ... a police officer is in a different position as it is his legal duty to bring criminals to book.”

29. Addressing a similar issue in Republic v Director of Criminal Investigations & 2 others and Resilient Investments Limited & 3 others (Interested Oarties) ex parte Pearl Beach Hotels Limited26I stated that the legislative intent in that the investigating officer records statements of persons acquainted with the facts of the case promptly to preserve the best evidence and to check any manipulation on the part of witnesses. It is presumed that spontaneity ensures the truth of details of incident and participants therein and delay generally occasions manipulations and colouring. Therefore, the investigating officers are required to record statements of persons acquainted with the facts promptly and failure to do so is a serious matter. Delayed recording of statements by the investigating officer of the material witnesses renders their evidence unreliable.26Judicial Review Application No. E037 of 2021.

30. Additionally, in the above case I stated that it is the duty of the investigating officer to take into possession any document or exhibit which has a bearing on the case. The reason for such a necessity is that such document may have effect on the culpability or innocence of the accused. It is the duty of the investigating officers to ensure that the law is observed not only in letters but in spirit during the investigations and arrest and to ensure that they observe the provisions of law scrupulously and do not exceed their powers. It is the duty of the police to investigate the case with utmost impartiality and fairness, both to the suspect as well as to the aggrieved person. If the police adopt an impartial attitude, it will further the cause of justice. If police adopt partial attitude and in conducting investigation malice is apparently reflected, then this will be a ground for the court to intrude. There is no argument before me that the police broke the law or acted outside their powers by summoning the applicant. In fact, they did what they are legally obligated to do. A review of the material presented before me does not suggest that the police exceeded their mandate.

31. There is no dispute that the process of establishing whether or not to prosecute usually starts when the police present a docket to the prosecutor. The police are yet to investigate and forward the investigation file to the DPP who will evaluate the evidence and independently decide whether or not to prosecute. This being the position, there is no basis at all for suing the DPP in this case. The case against the DPP is a non-starter.

32. Importantly, it has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution. The applicant should be bold enough to face the investigators and await the outcome of the investigations. For this court to halt investigations, there must be sufficient evidence to show that the investigation is inherently unfounded, malicious and without foundation and or the same is being done in gross abuse of the law.

33. The power of stop or quash police investigations on a suspected offender must be exercised 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. The power to stop investigations is immense since it amounts to exonerating a suspect before a decision is made whether or not to prosecute him. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution. The issues cited by the applicant are essentially what should be his defence should the decision to charge him be made. It is not for this court to weight the innocence or otherwise of a suspect.

34. The applicant seeks an order of prohibition to stop the investigations. A writ of Prohibition arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. However, the applicant has not cited any single act of illegality on the part of the Police. It has not been suggested that the Police have no power to summon him or investigate the alleged offence. There is nothing to suggest that Respondents acted illegally or in excess of their powers, hence the writ of prohibition cannot issue in this case.

35. It should be emphasized that there is a strong public interest in the investigation and prosecution of crime. The court can only prohibit criminal investigations where the prohibition is necessary to protect the integrity of the criminal justice system, this is where the court considers that the investigation is manifestly unwarranted and or it is being undertaken in total disregard of the law and fundamental rights. Cases where it will be unfair to investigate a suspect will include, and are not confined to those cases where there has been bad faith, unlawfulness or gross misconduct by the investigators/police. In such cases the touchstone is the integrity of the criminal justice system.

36. The need for an applicant seeking to prohibit police investigations to prove the breach or omission complained of and also to demonstrate the prejudice to be suffered cannot be over emphasized. The starting point is whether or not there is a duty on the part of the police to investigate. That question was answered positively earlier. Breach of that duty must be proved. It is not enough to claim as has happened in this case that the issues are civil in nature of the police are not debt collectors. The test is whether the police are investigating a crime known to the law pursuant to a complaint.

37. It is important to recognize thar the decision as to whether to prosecute or not involves many interlinking factors and considerations. Once the police finalize their investigation, they are required to forward the docket to the DPP who independently evaluates the evidence and independently decides whether or not to prosecute. Courts must ensure that those under lawful police investigations or those charged with criminal offences do not simply procrastinate and seek to undermine the investigation or prosecution by creating hurdles to overcome all in the hope that at some stage, a particular hurdle will cause the investigation or prosecution to fail.

38. Flowing from my discussion on the issues addressed above and the conclusions arrived, I find and hold that the applicant’s application dated 20thOctober 2021 is unmerited. I dismiss it with no orders as to costs.Right of appeal

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF MAY 2022. John M. MativoJudge