[2022] KEHC 16431 (KLR)

Republic v Inspector General of Police & 2 others; Musa (Exparte) (Judicial Review E178 of 2021) [2022] KEHC 16431 (KLR) (Judicial Review) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16431 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E178 of 2021

AK Ndung'u, J

December 16, 2022

Between

Republic

Applicant

and

Inspector General Of Police

1st Respondent

Director Of Public Prosecutions

2nd Respondent

Chief Magistrate, Makadara Law Courts

3rd Respondent

and

Mustafa Mwalim Musa

Exparte

Judgment

1. Mustafa Mwalim Musa (the applicant) moved this court vide the notice of motion dated November 25, 2021 seeking orders:1. This honourable court be pleased to grant an order of Certiorarito remove into this honourable court and quash the decision of the 2nd respondent to institute and continue with criminal proceedings against theex parte applicant vide Criminal Case No 2989 of 2021 Republic v Mustafa Mwalim Musa pending before the 3rd respondent.2. This Honourable be pleased to grant an order of prohibitiondirected to the 1st and 2nd respondent barring them from arresting, incarcerating, instituting and/or undertaking or proceeding with any criminal charge against the ex parte applicant on matters relating to the orders of court issued on August 20, 2021 in Civil Case No E10487 of 2021 Garam Investments Limited v Mustafa Mwalim Musa.3. This honourable court be pleased to grant an order of Prohibitiondirected at the 3rd respondent barring the 3rd respondent from proceeding and conducting the trial of the ex parte applicant in Criminal Case No 2989 of 2021 Republic v Mustafa Mwalim Musa.4. Any other and further orders that this honourable court may deem just and expedient.5. Costs of this application be provided for.

2. The application is premised on the grounds set out in the statutory statement and the verifying affidavit of the applicant the gist of which is that the applicant was arrested when he presented himself at Pangani police station on October 19, 2021 where he had gone to make enquiries in respect of a civil suit being CMCC No E10847 of 2021

3. The applicant avers that he was arraigned in court on charges of obstructing a court officer contrary to section 126 of the Penal Codeand escape from lawful custody contrary to section 129 of the National Police Service Act.

4. The background to the matter as gleaned from the record is that injunctory orders were issued against the applicant in Civil Suit No E10847 of 2021 restraining him from entering, trespassing, occupying, taking possession, transferring, assigning, leasing or in any other manner interfering with the plaintiff’s ownership and possession of unit 3 on ground floor and unit 6 on 6th floor of Sagal Plaza. The OCS Pangani police station was ordered to supervise and ensure compliance with the order.

5. The applicant moved the said court vide an application dated September 10, 2021 seeking stay and the setting aside of the orders above. The court held that the orders issued on August 20, 2021 had lapsed and directed that the status quo be maintained and set the hearing for the September 17, 2021.

6. It is alleged that on September 29, 2021, at Sagal apartments, the police tried to execute orders of eviction based on the orders of August 20, 2021.

7. It is averred that the arrest and charging of the applicant are unlawful, illegal and void ab initio as they were based on non-existent orders.

8. The application having been duly served, there is no reply on record by way of a replying affidavit or otherwise from any of the respondents.

9. Directions were issued that the matter be disposed of by way of written submissions. The applicant’s and 2nd respondent’s submissions are on record.

10. I have had occasion to consider the application, the grounds relied upon as gleaned from the statutory statement and verifying affidavit. I have had due regard to the submissions on record. The issues for determination are; Whether the applicant has established the legal threshold for the grant of the judicial review orders sought and, secondly, who bears the costs of the application.

11. The legal basis for the 2nd respondent's broad and unfettered discretion over public prosecutions is article 157 of the Constitution. The 2nd respondent may initiate criminal actions without obtaining permission from any person or authority, and may carry out his or her duties without being directed or subject to control by anybody. However, he or she must respect public interest, the interests of administering justice, and the necessity to prevent and avoid misuse of the legal system as per the dictates of sub article 11 of article 157 the Constitution.

12. Nonetheless, article 157 is not a carte blanche for the office holder to commit crimes or violate the law. If the office behaves in violation of the law or without following due process, the court will be there to provide redress. By definition, the decision to charge is an administrative action that falls under the Fair Administrative Actions Act's guidelines and is overseen by this court in accordance with article 47 of the Constitution.

13. The court in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR, considered in detail the applicable law and circumstances under which the court could interfere with the exercise of prosecutorial discretion by theDPP. Among the guiding principles outlined in section 4 of theODPP’s Act No 2 of 2013 and the National Prosecution Policy formulated by the DPP pursuant to section 5(1)(c) of the ODPP Act are that; “The decision to prosecute as a concept envisages two basic components namely; that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted”

14. Paragraph 4 (b)(2) of the said policy provides;“the evidence test- 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.”

15. Further in Diamond Hasham Lalji(supra), the court went ahead to hold in para 42 as follows;“The burden of proof rests with the person alleging unconstitutional power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision”

16. At Para.45 it continues to state thus;“(45) In considering the evidential test, the court should only be satisfied that the evidence collected by the investigative agency upon which DPP’s decision is made establishes a prima facie case necessitating prosecution. At this stage, the courts should not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That is the function of the trial court. However, a proper scrutiny of facts and circumstances of the case are absolutely imperative.”

17. Obviously, the standard of review of the discretion of the DPP to prosecute or not to prosecute is high and courts will only interfere with the exercise sparingly. Lenaola J (as he then was) summed it up aptly in Patrick Ngunjiri Muiruri v DPP [2017] eKLR where he stated;“The law and practice, then, are quite clear; while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.”

18. I have reviewed the facts in this case. In my view some special circumstances exist in this matter that require a thorough insight with a view to establishing the propriety of the process leading to the impugned charges and the charges themselves.

19. The charges as framed revolve around the interpretation and execution of orders of court in Civil Suit No E10847 of 2021, Garun Investments Ltd v Mustafa Mwalim Musa. Vide an application dated August 19, 2021, the Plaintiff had in that suit moved the court for injunctory orders against the defendant (the applicant herein) from entering, trespassing, occupying, taking possession of, transferring, assigning or in any manner whatsoever interfering with the plaintiff’s ownership and possession of Unit 3 and 6 at Sagal Plaza. Ex parte orders were issued to that effect.

20. The applicant moved the court on September 10, 2021 seeking to set aside the said orders. The record of the trial court shows that when the applicant’s application dated 10th September was placed before the court, the court (MW Murage SRM) stated;The application dated September 10, 2021 is considered. It is certified ready(sic). Interim orders were issued on August 20, 2021. They have since lapsed. Status quo to be maintained. Hearing on September 17, 2021 before Hon DM Kivuti. Application be served.’’

21. The applicant herein was subsequently charged with a 1st count of obstructing a court officer contrary to section 126 of the penal code. The date of the offence is stated to be September 29, 2021. The particulars in the charge sheet indicate that the applicant obstructed No 238590 IP Peter Mugambi who was lawfully charged with the execution of a court order to wit eviction order issued by Milimani Commercial Court civil case No 10487/2021. The applicant faces a 2nd count of escape from lawful custody.

22. A cursory perusal of the record will show that at no time did the court issue eviction orders. Secondly from the record of the trial court, it is quite clear that as at September 10, 2021, even assuming eviction orders had been issued, the said orders had, as noted by the trial court itself, lapsed. Thirdly, it emerges clearly from the proceedings that the propriety of the orders was under serious challenge vide an application dated September 10, 2021 lodged by the applicant.

23. Whereas am alive to the provision of section 193A of the Criminal Procedure Rules, the institution of the criminal charges herein based on facts arising from execution of an order (eviction order) which the court never issued in the first place or, even assuming such an order had been issued, the same having lapsed, vitiates the charges as framed.

24. Thus, without taking away anything from the constitutional latitude afforded the 2nd respondent in institution of criminal cases, it is manifestly obvious that based on the available facts, the 2nd respondents validation of the charges fails the legal muster. It goes against the guiding principles outlined in section 4 of the ODPP’s Act No 2 of 2013and the National Prosecution Policy formulated by the DPPpursuant to section 5(1)(c) of the ODPP Act which are that; “The decision to prosecute as a concept envisages two basic components namely; that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted” and paragraph 4 (B)(2) of the said policy which provides;“The evidence test- 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.”

25. Guided by the holding in Diamond Hasham Lalji (supra), it is the law that the burden of proof rests with the person alleging unconstitutional power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision. Aware of this court’s limit in considering the evidential test, am not persuaded the investigations and the collected evidence establishes sufficient grounds to initiate a prosecution. It is safe to infer from the circumstances of this case that the criminal process has been unfortunately employed to settle what is otherwise a clear civil claim between the parties. Justice would demand that the parties pursue their respective claims in the court where the civil claim has been instituted.

26. With the result that the notice of motion dated November 25, 2021 is wholly successful. I make the following orders;1. An order of Certiorari be and is hereby issued to remove into this honourable court and quash the decision of the 2nd respondent to institute and continue with criminal proceedings against the ex parte applicant vide Criminal Case No 2989 of 2021 Republic v Mustafa Mwalim Musa pending before the 3rd respondent.2. An order of prohibition be and is hereby issued directed to the 1st and 2nd respondent barring them from arresting, incarcerating, instituting and/or undertaking or proceeding with any criminal charge against the ex parte applicant on matters relating to the orders of court issued on August 20, 2021 in Civil Case No E10487 of 2021 Garam Investments Limited v Mustafa Mwalim Musa.3. An order of Prohibition be and is hereby issued directed at the 3rd respondent barring the 3rd respondent from proceeding and conducting the trial of the ex parte applicant in Criminal Case No 2989 of 2021 Republic v Mustafa Mwalim Musa.4. The 1st and 2nd respondents to bear the costs of this suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER 2022A. K. NDUNG'UJUDGE