[2017] KEHC 9444 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

JUDICIAL REVIEW DIVISION

JR. APPLICATION NO. 12 OF 2017

IN THE MATTER OF APPLICATION FOR AN ORDER FOR CERTIORARI AND PROHIBITION

IN ACCORDANCE WITH ORDER 53 OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT AT KIAMBU

KIAMBU LAW COURTS

CRIMINAL CASE NO. 475 OF 2017

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

VERSUS

THE INSPECTOR GENERAL OF POLICE....................1ST RESPONDENT

THE DIRECTOR OF CID.................................................2ND RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS..........3RD RESPONDENT

THE CHIEF MAGISTRATE KIAMBU..............................4TH RESPONDENT

EX PARTE

LILIAN WANGARI…………………………………….........1STAPPLICANT

DAVID NJEHIAH NGUGI ALIAS DAVID NJIHIA………....2NDAPPLICANT

MARY WANGARI………………………………………….3RDAPPLICANT

ROBERT MUNGAI………………………………………....4THAPPLICANT

AND

STEPHEN NDUNG’U GITAU KINENE…………..1STINTERESTED PARTY

FIKAH ACRES LIMITED………………………...2NDINTERESTED PARTY

JUDGMENT

1. By a Notice of Motion dated 26/04/2017, the Ex Parte Applicants (“Applicants”) seek the following orders:

a) THAT this Honourable Court be pleased to issue orders of Certiorari directed to the 1st, 2nd and 3rd Respondents, by themselves, their servants and/or agents or any other officer acting under their authority to bring to the court for the purpose of being quashed the decision by them made on or about 17th March, 2017 to institute and/or commence criminal proceedings against the Subjects.

b) THAT this Honourable Court be pleased to issue orders of Prohibition directed to the 3rd Respondent, prohibiting the 3rd Respondent or any of other officers acting with her authority, prohibiting him/her and each one of them from proceedings with the conduct and/or prosecution of Criminal Case No. 475 of 2017 with regard to the Subjects and pending before the Chief Magistrate’s Court at Kiambu.

c) THAT this Honourable Court be pleased to issue an order of Prohibition directed against the 4th Respondent, by herself, her servants and/or agents or any other Judicial officer for the time being seized of hearing or the conduct of Criminal Case No. 475 of 2017 from trying and/or carrying on any further proceedings on the matter pending the full hearing and determination of this application or the further orders of the court.

d) THAT the Honourable Court be pleased to quash any proceedings in the said criminal case NO. 475 of 2017;Kiambu as the same are an abuse of process, arbitrary, capricious and brought mala fides by the 1st, 2nd and 3rd Respondents in abuse of due process of the court, and have occasioned the subjects great prejudice.

e) THAT costs of this application be provided for.

2. The subject of this Application is Criminal case No. 475 of 2017 where it is alleged that the Ex Parte Applicants kidnapped Stephen Ndungu Gitau Kinene (the 1st Interested Party) for allegedly trespassing on their property. The Ex Parte Applicants also face a second count of forcible detainer contrary to section 91 of the Penal Code. On this count, the Ex Parte Applicants are accused of jointly and without colour of right taking possession of certain parcels of land belonging to the 2nd Interested Party in a manner likely to cause a breach of the peace.

3. Robert Mungai the 4th Applicant and David Njehiah Ngugi (also known as “David Njihia”), the 2nd Applicant swore supporting affidavits on their own behalf and on behalf of the other Applicants. The 4th Applicant also filed a supplementary affidavit.

4. The Application was canvassed by way of written submissions.

5. The bottom line is that the criminal case which is the subject matter of the present Application emanates from an intense and complex dispute over land involving the 4th Applicant, Kenya Planters Cooperative Union (KPCU) and the Interested Parties. Lately, the 1st – 3rd Applicants have become privy to that dispute as well.

6. The undisputed facts are helpful to understand the context of the present Application. It would appear that the 4th Applicant was the registered owner of the parcel of land formerly known as LR 1363/2. This parcel was subsequently sub-divided into many other parcels including all the parcels mentioned in Count 2 in the charge sheet as the properties over which the Applicants are accused of unlawful detainer.

7. It is also undisputed that the 4th Applicant entered into a Mortgage Agreement with KPCU sometime back and at least part of the property was used as collateral. A dispute arose between the 4th Applicant and KPCU respecting the mortgage and KPCU sought to exercise its statutory power of sale. The 4th Applicant responded by filing suit at Milimani being Milimani HCCC No. 542 of 1991(renamedMilimani ELC No. 1469 of 2016). It would appear that this suit and dispute has spawned several other disputes including Milimani HCCC No. 779 of 2009 (KPCU v KCB & Others);Thika CMCC No. 41 of 2015 (Fikah Acres Limited v Robert Mungai); andNairobi ELC No 1377 of 2016 (Robert Mungai v Fikah Acres Limited). All these cases are active and pending and all touch on ownership and possession of at least part of the land originally covered by Parcel No. LR 1363/2 (now subdivided).

8. It is also not disputed that along the way, after the 4th Applicant obtained interim relief against KPCU from the High Court in Milimani HCCC No. 542 of 1991, he proceeded to sub-divide Parcel No. 1363/2 and then sold some of the sub-divided portions to the 1st – 3rd Applicants. These Applicants have now also applied to be enjoined as parties to the case against KPCU.

9. Meanwhile, it would appear (and it is not disputed by the Respondents) that KPCU also managed, somehow, to sell the same parcels of land to the 2nd Interested Party. It is not clear how KPCU was able to do that in the face of the interim injunctive relief granted by the Court in Milimani HCCC No. 542 of 1991. Suffice to say that, KPCU managed that legal feat – and the 2nd Interested Party ended up with (disputed) titles to the parcels.

10. Armed with these titles, the 2nd Interested Party approached the Thika Chief Magistrate’s Court in CMCC 41 of2015and, in following an application heard ex parte, obtained an order to the effect that “the Defendant (Robert Kinuthia Mungai [the 4thApplicant] by himself, his agents, servants, assigns, persons acting under him or employees were ordered to stop any further trespass, entry, interference and/or ingress into the suit premises being L.R. No. 1363/10; L.R. No. 1363/11;L.R. No. 1363/12;L.R. No. 1363/13;L.R. No. 1363/14;L.R. No. 1363/16;L.R. No. 1363/22;L.R. No. 1363/24;L.R. No. 1363/26;L.R. No. 1363/27;L.R. No. 1363/128; and L.R. No. 1363/33. ”

11. Needless to say, the jurisdiction of the Thika Magistrate's Court as well as the propriety of those orders is challenged inNairobi ELC No 1377 of 2016 (Robert Mungai v Fikah Acres Limited). In any event, it is not denied that those Court orders are still extant and valid.

12. It was, apparently, pursuant to these Court orders that the 1st Interested Party, under instructions from the 2nd Interested Party visited the Suit Premises on 18/10/2016 ostensibly to take photographs which were to establish the extent of the damage occasioned to the premises by the 4th Applicant for use in the civil cases.

13. By his own rendering contained in his Witness Statement which was recorded on 19/10/2016 at the CID Nairobi Area Headquarters, the 1st Interested Party says that when he visited the land on 18/10/2016, he found that a new gate had been installed and there were guards on duty. These guards allegedly initially prevented him from leaving the land but later agreed to do so when they spoke with the 2nd Applicant on the phone. The 1st Interested Party then says he was instructed by the 2ndApplicant to go to a hotel in Thika town to meet him. He obeyed the instructions and drove to Cravers Hotel where he met the 2nd Applicant in the company of the other Applicants. The 1st Interested Party claims that the group shouted at him and otherwise intimidated him.

14. I would guess the paragraph that supposedly lays the basis for the charges of kidnapping is in the last paragraph of his statement. It reads as follows:

They ordered the hotel guards not to let me leave and after pleading with them and showing them copies of four title deeds, they ordered me to leave my car in the hotel and I was taken into a Range Rover car belonging to Lillian Mungai driven by his driver, accompanied by both Mr. Robert Kinuthia Mungai and David Njihia while Lillian Wangari and the other lady, Mary, followed us and I was driven up to Gituamba Police Station where I was accused by them of trespassing into their land. The Police booked the report and give (sic) me a P22 Form requiring my boss, Joel Kibe, to report to them on 21/10/2016.

15. It was on this factual basis that the Police and the DPP preferred charges against the four Applicants. The Applicants are persuaded that the Respondents have permitted their officers to abuse their offices in letting themselves to be used at the instigation of the Interested Parties and arranging for them to be arraigned before the criminal Court as a way of advancing their civil claim on the subject properties.

16. The Director of Public Prosecutions resisted the Application. The DPP filed a Replying Affidavit and a further Affidavit by PC Chris Gatembu and also filed their Written Submissions. The DPP submits that the case meets the threshold of public interest test and the evidentiary test to warrant a charge, thus the decision to charge the Applicants cannot be said to be irrational or actuated by ulterior motive or malice as alleged by the Applicants.

17. DPP submitted that Article 157 of the Constitution confers prosecutorial powers thus to quash the charges would be tantamount to ordering DPP not to discharge its constitutional mandate. The DPP placed reliance on Meixner & Another vsAttorney General, Beatrice Ngonyo Kamau & 2 others vs Commissioner of police and the Director of Criminal Investigations Department & Another Petition 251 of 2012 (2013)eKLRandSurjit Singhhunjam vs The PrincipalMagistrate Kibera Misc. Appl. No. 519 of 2005.

18. Further, DPP submitted that judicial review proceedings are not concerned with the merits but with the decision making process. Further, the DPP urged that the concurrent existence of the criminal proceedings and civil proceedings does not constitute abuse of the process of the court unless the criminal proceeding is meant to force the applicant to submit to the civil claim. He further submitted that all ingredients of the offences as stated in the charge sheet have been met and they have a probable case of making a prima facie case against the applicants.

19. Lastly, DPP submitted that the applicants have not proved their allegations of malice and abuse of the process with respect to the DPP’s exercise of its constitutional mandate.

20. The proper province of Judicial Review was stated in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd(Civil Appeal No. 185 of 2001). In that case, the Court of Appeal held that:-

Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the 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…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.

21. The Office of the Director of Public Prosecutions (ODPP) is established under Article 157 of the 2010 Constitution as an independent office with the monopoly of prosecutorial powers (complete with the power to direct the Inspector General of Police to do investigations) and the only person with the authority to exercise State powers of prosecution – including the power to:

(1) 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;

(2) 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

(3) 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).

22. The Constitution also requires that “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.”

23. While our Courts now recognize the express powers and authority of the DPP as enshrined in the Constitution and the fact that the DPP must exercise those powers independent of any individual or institution including the Courts, like all other constitutional authority, our Courts have equally recognized that the authority must be exercised in an accountable way tethered to the precepts of “public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” (Article 157(11) of the Constitution).

24. Ultimately, our decisional law is now clear that the Courts have the ultimate duty to ensure that this triple check on the authority of the DPP is exercised judiciously. As our case law has now firmly established, “the Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation.” (Kuria & 3 Others v Attorney General [2002] 2KLR 69. ) Indeed, this position, although now expressly scripted into our Constitution is of vintage judicial ancestry in Kenya. As early as 2001, the High Court had expressed this view which is now scripted in our Constitution in the following iconic words:

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 a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.

25. Similarly, in the more recent R v Director of PublicProsecutions & 2 Others Ex Parte Praxidis Nomoni Saisi [2016] eKLR, Justice Odunga, after analysing a long history of similar cases concluded that “where it is clear that the [prosecutorial] discretion is being exercised with a view to achieving certain extraneous goals other than those recognised under the Constitution and the Office of the Director of PublicProsecutions Act, that would….constitute an abuse of the legalprocess and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion.”

26. Indeed, in this and other cases, Justice Odunga, with whom I entirely agree, located the duty and authority of the Court in reviewing the exercise of the unfettered discretion of the DPP in the same mould as the exercise of any other executive discretionary power to which Judicial review is available. Hence, he states

It is now clear that even in the exercise of what may appear to be prima facie absolute discretion conferred on the executive, the Court may interfere. The Court can only intervene in the following situations:

1) Where there is an abuse of discretion;

2) Where the decision-maker exercises discretion for an improper purpose;

3) Where the decision-maker is in breach of the duty to act fairly;

4) Where the decision-maker has failed to exercise statutory discretion reasonably;

5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power;

6) where the decision-maker fetters the discretion given;

7) where the decision-maker fails to exercise discretion;

8) where the decision-maker is irrational and unreasonable.

27. Consequently, our decisional law has now laid out the role of the Court in policing the exercise of the DPP’s constitutional authority: the Court has the duty and authority to review the charging decisions of the DPP. However, what also emerges from our decisional law is that the Court is extremely cautious in performing that duty. Hence in the Kuria Case (supra), the Court expressed itself thus:

There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial...In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.

28. And more recently in Republic vs. Commissioner ofPolice and Another ex parte Michael Monari & Another[2012] eKLRthus:

The police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.

29. As this Court remarked in Patrick Ngunjiri Muiruri v DPP [2017] eKLR:

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 untrammelled, 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.

30. This is the standard of review to be applied to the instant Application. Here the DPP argues that he analyzed the facts and circumstances and confirmed that it passed both the public interest and evidentiary threshold sufficiently to bring charges against the Applicants. I must observe that the DPP has been unusually scanty in supplying the details that led to his decision to charge in this case. Instead, the DPP merely urges the Court to respect the decisional autonomy of the DPP’s office in making charging decisions and urges the Court not to be “hoodwinked” by the detailed history of the complex civil disputes between the parties. The co-existence of civil disputes is not a bar to criminal prosecution, the DPP reminded the Court.

31. I will begin my analysis by pointing out that where parties have been involved in a civil dispute, the DPP ought to be circumspect and have his antennae up when one of such parties turns up to his office seeking initiation of criminal charges based on the same facts as those traversed by the civil dispute which is pending in Court. In such a case, there is at least a suspicion that such a party may be hoping to enlist the criminal justice system in aid of his civil dispute.

32. In this particular case, there are a number of tell-tale factors which should have given the DPP pause before accepting the Interested Party’s victimhood narrative lock, stock and barrell. This include the following:

a. First, the first Count is one of kidnapping the 1st Interested Party. There is something curious about the scenario. As the 1st Interested Party himself renders his story, he does not really talk of being kidnapped at all. Instead he says the Applicants asked the guards not to let him leave but that once he showed them the titles he had they asked him to accompany them to the Police Station instead. No crime at all is disclosed in these facts.

b. Second, by the 1st Interested Party’s own rendering, the Applicants drove him to Gituamba Police Station where they reported the trespass. He was then asked to go back with his employer a few days later. It would be quite odd for people to kidnap one and then take them to a Police Station.

c. Third, if this were a case of true kidnap and detention, the 1st Interested Party would have used the opportunity of being at the Police Station to report. Instead, he watched by as a report of trespass by the Applicants was made (as confirmed by the Witness Statement by the Duty Officer, PC Alex Thoya). Then, the 1st Interested Party left the Police Station and did not report any incident until the day after when he apparently reported – not in Thika where the incident apparently occurred – but at Nairobi Area CID Headquarters. This seems quite curious to say the least.

d. Fourth, it appears equally curious that no charges at all and no investigations appear to have been done after this ostensible report of 18/10/2016 until sometime in April, 2017. While there is no limitation on when the Police can commence investigations into a reported crime, the time lag here seems particularly bothersome considering that no further investigations was really required.

e. Fifth, the charges of unlawful detainer are particularly suspicious considering that they traverse exactly the same parcels of land over which there is an intense dispute of ownership. It is particularly strange that the DPP decided to charge the Applicants yet both the 4th Applicant and the 2ndInterested Party have valid Court orders injuncting other parties from interfering the quiet possession of the Suit Property: the former with orders from the High Court in Milimani HCCC No. 542 of 1991 (renamed Milimani ELC No. 1469 of 2016); the latter fromThika CMCC No. 41 of 2015 (Fikah Acres Limited v Robert Mungai). Considering the duelling injunctive orders the parties have, it appears particularly likely that the Interested Parties are utilizing the Criminal Justice System to advance their claims in the civil cases.

f. Sixth, in the two affidavits filed by the Investigating Officer, there no factual basis at all is laid for the criminal charges other than the frequent reiteration that he conducted investigations and came to the conclusion that criminal offences had been committed. The Investigating Officer does not controvert the factual averments by the Applicants in any meaningful way. He also does not give a glimpse of the investigations done. He does not explain why he did not question or interrogate the Applicants before preferring charges against them based on the say- so of the 1st Interested Party. The Investigating Officer does not say that he examined the Court orders in the various cases to determine who had rightful possession of the land. He does not explain why a kidnap case allegedly reported on 18/10/2016 took more than six months to ripen into charges even though no other investigations seem to have been on-going. The Investigating Officer does not refer to the puzzle of the same case having been reported by the Applicants on 18/10/2016 as a trespass case to Gituamba Police Station and the fact that the Officer on duty at that station, PC Alex Thoya opened a file and summoned the 1st Interested Party’s employer. Lastly, the Investigating Officer does not explain how and why the investigations over trespass against the 1st Interested Party at Gituamba Police Station (which has geographical jurisdiction over the Suit Properties and whose OCS had been directed to enforce the Court order in Thika CMCC No. 41 of 2015 (Fikah Acres Limited v Robert Mungai) became kidnap investigations against the Applicants.

33. All in all, the factual background of this case gives a rather transparent indication that the Investigating agencies here were actuated by something other than a good faith desire to enforce the law in the public interest. The Court has a duty to ensure that its processes are used fairly by the State and citizens alike: to prevent the State from using its processes oppressively and to ensure that the citizens do not abuse its processes. Both types of misuse of the Court’s processes lead to injustice and erosion of public confidence in the Courts.

34. It is for this reason that while the DPP has complete discretion and full autonomy to determine whether and against whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has a prosecutable case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp. Kipngeno Arap Ngeny (High Court Civil App. No. 406 of 2001), the Court stated thus:

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 a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.

35. When the principles outlined above are properly applied, it will be a rare case when professional decisions by the DPP are reviewed by the Court. However, in the instant case, even while exercising extreme caution and circumspection before reviewing the charging decision of the DPP, there is little factual basis for bringing the charges against the Applicants. The circumstances reek of manipulation by the Interested Parties born out of a burning desire to secure an advantage in the civil cases they have against the Applicants. Criminal proceedings commenced to advance other gains other than the promotion of the goals of the criminal justice system are an abuse of the process of the Court and should not be allowed to stand. So it will be here.

36. It is for this reason that I find merit in the Notice of Motion dated 26/04/2017 and grant the following orders:

(1) An order of Certiorari directed to the 1st, 2ndand 3rdRespondents, by themselves, their servants and/or agents or any other officer acting under their authority bringing to this Court for the purpose of being quashed the decision by themmade on or about 17thMarch, 2017 to institute and/or commence criminal proceedings against the Subjects and quashing that decision.

(2) An order of Prohibition directed to the 3rdRespondent, prohibiting the 3rdRespondent or any of other officers acting with her authority, prohibiting him and each one of them from proceedings with the conduct and/or prosecution of Kiambu Criminal Case No. 475 of 2017 with regard to the Subjects and pending before the Chief Magistrate’s Court at Kiambu.

(3) An order of Prohibition directed against the 4thRespondent, by herself, her servants and/or agents or any other Judicial officer for the time being seized of hearing or the conduct of Criminal Case No. 475 of 2017 prohibiting themfrom trying and/or carrying on any further proceedings Kiambu Criminal Case No. 475 of 2017.

37. The costs of this Application are awarded to the Applicants against the 3rd Respondent.

38. Orders accordingly.

Dated and delivered at Kiambu this 12thday of October , 2017.

………………

JOEL NGUGI

JUDGE