[2022] KEHC 10528 (KLR)

Republic v Kibera Chief Magistrates Court & 2 others; Nyukuri (Exparte); County Assembly of Bungoma & another (Interested Parties) (Judicial Review E1089 of 2020) [2022] KEHC 10528 (KLR) (Judicial Review) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10528 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E1089 of 2020

J Ngaah, J

June 10, 2022

Between

Republic

Applicant

and

Kibera Chief Magistrates Court

1st Respondent

Director of Public Prosecutions

2nd Respondent

Directorate of Criminal Investigations

3rd Respondent

and

Baraza Kundu Nyukuri

Exparte

and

County Assembly of Bungoma

Interested Party

County Government of Bungoma

Interested Party

Judgment

1. The application before court is the applicant’s motion dated 3 September 2020 filed under Order 53 Rule 3 of the Civil Procedure Rules, 2010 and section 8 and 9 of the Law Reforms Act, cap. 26. It seeks the following orders:“1. This Honourable Court be pleased to grant an order of certiorari to remove into the High Court for purpose of being quashed the decision of the 2nd respondent to charge the ex parte applicant vide Chief Magistrates Criminal Case No. E842 of 2020 or any (sic) through any other charge sheet before the 1st respondent or any other court relating to the possession of file reference number CS/CO/VOL.1/2020 containing the budget responses of 2020-2021 for public administration and ICT property of Bungoma County Assembly.2. This Honourable Court be pleased to grant an order of prohibition to prohibit the 2nd respondent from charging and/or prosecuting the ex parte applicant relating to the possession of file reference number CS/CO/VOL.1/2020 containing budget responses of 2020-2021 for Public Administration and ICT property of the County government of Bungoma.3. The cost of this Application be borne by the Respondents and interested parties.4. Any other Order that is just and equitable.”

2. The application is based on the Statutory Statement dated 25 August 2020 and a verifying affidavit sworn by the applicant on even date.

3. According to these documents, the applicant was arrested on 7 August 2020 at Bungoma police station where he had presented himself to record complaints of threats on his life. He was detained at the station until the following day when he was transported to Criminal Investigations Department (CID) headquarters in Nairobi and later booked at Kilimani police station. He remained at the station until 10 August 2020 when he was taken to court where the 3rd respondent made an application to hold him longer to enable the 3rd respondent undertake further investigations. The application was rejected and apparently the applicant was released but he was informed to report back at the CID headquarters on 24 August 2020 so that he would be arraigned in court for purposes of taking plea on 25 of August 2020.

4. It is the applicant’s case that the 2nd and 3rd respondents were acting in abuse of their offices in conducting what he regarded as an illegal process against the applicant with the sole intention of harassing him and interfering with his right to petition for the impeachment of the Governor of the County Government of Bungoma.

5. The respondent did not file any response to the motion and so the applicant’s motion is as good as unopposed.

6. Even without the response of the respondents, I had occasion to deal with a similar application in Judicial Review Application No. 1093 of 2020 in which the applicant in that suit had been arraigned for the same charges that have been preferred against the applicant in the instant application. The applicant in application No. 1093 of 2020 was one Francis Simiyu Tome; he was charged in Kibera Chief Magistrates Court Criminal Case No. 810 of 2020 with two counts related to the theft of a file described as file reference number CS/CO/VOL.1/2020 said to belong to Bungoma County Assembly.

7. In particular, on 14 August 2020 he was charged with the offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code, cap. 63; he was also charged with the second count of handling stolen goods, contrary to section 322 (2) of the same code.

8. The particulars of the two counts read respectively as follows:“1. Francis Tome Simiyu; On the 7th day of July 2020 at the county assembly of Bungoma, jointly with others not before court, stole original spring file reference number CS/CO/VOL. 1/ 2020 containing budget responses of 2020-2021 for public administration and ICT the property of Bungoma County Assembly.2. Francis Tome Simiyu: on the 6th day of August 2020 at Total Petrol station along Langáta Road in Nairobi, within Nairobi County otherwise than in the course of stealing dishonestly received stolen goods namely one original spring file reference number CS/CO/VOL. 1/2020 containing budget responses of 2020-21 for public administration and ICT, and assorted copies of documents for count Government of Bungoma knowing or having reason to believe them to be stolen goods.”

9. The charges that were to be preferred against the applicant in the instant application and the particulars supporting them are on all fours with those presented in the criminal case against Francis Tome Simiyu. They have been framed as follows:Stealing contrary to section 268(1) as read with section 275 of the Penal Code1. Barasa Kundu Nyukuri: On the 7th day of July 2020at the County Assembly of Bungoma in Bungoma South Subcounty within Bungoma County, jointly with others not before court, stole one original spring file reference number CS/CO/VOL.1/2020 concerning budget responses of 2020-2021 for public administration and ICT the property of Bungoma County Assembly.COUNT II:Handling stolen goods, contrary to section 322 (2) of the Penal Code.Particulars:Barasa Kundu Nyukuri: On the 6th day of August 2020 at total petrol station along Lang’ata road in Nairobi, within Nairobi County otherwise than in the course of stealing dishonestly received stolen goods namely one original spring file reference number CS/CO/VOL.1/2020 containing budget responses of 2020-2021 for public administration and ICT, and assorted copies of documents for County government of Bungoma, knowing or having reason to believe them to be stolen goods.

10. It is clear from the charges levelled against the applicant in the instant suit and those preferred against Francis Tome Simiyu in Criminal Case No. 810 of 2020 revolved around the same subject matter which is a file reference number CS/CO/VOL.1/2020. They are both accused to have stolen and handled the file at the same time and in similar circumstances. For this reason, I need not say anything about these charges different from what I said in Judicial Review Application No. 1093 of 2020.

11. In that case, I noted, inter alia, that one of the persons who was identified as one of the police officer who arrested the applicant on 13 August 2020 was police constable Peter Orwa. Constable Orwa swore an affidavit in Kibera Chief Magistrates Court Miscellaneous Application No. 389 of 2020 in which he apparently sought for more time to undertake investigations against Barasa Kundu Nyukuru, the applicant in the present case. The investigations were, of course, about the alleged loss of the subject file. The affidavit was sworn on 10 August 2020 and, among other depositions, constable Orwa swore as follows:“1. That, I am a male adult Kenyan of sound mind, police officer based at the County DCI Headquarters-Nairobi County, resident of Nairobi City County and I do swear this affidavit in that capacity.2. That, the police have been investigating a case of stealing contrary to section 268 as read with section 275 of the Penal Code and handling stolen property contrary to section 322 of the penal code and a complaint booked vide OB/3/8/8/2020. 3.That between 30th July 2020 and 3rd August 2020 the accused person together with others still at large stole an original file reference CS/CO/VOL.1/2020 for the assembly committee on public administration and ICT belonging to Bungoma County Government.4. The respondent and others still at large gained access to the Bungoma County Government offices and stole assorted documents.5. That the respondent was arrested in Nairobi along Lang’ata road while in possession of some of the documents.6. …7. That the applicant intends to extend his investigations to Bungoma and Kakamega counties to record statements and trace another accomplice of the respondent.8. That the applicant seeks to carry out search at the respondent’s home in Bungoma after recording statements from county officials.9. That investigations are still ongoing and more time is required to explore the call data records of the respondent.”

12. As the applicant has himself stated in this application, constable Orwa’s affidavit was sworn while he was in the custody of the police. He was to be charged on 25 August 2020 but an order he obtained from this Honouarble Court on the same day shows that his prosecution was stayed pending the hearing and determination of the instant application.

13. I noted further that the conclusions that may otherwise have been made from constable Orwa’s affidavit and the particulars of offence with respect to the charge against Nyukuri are first, that the loss of the subject file was reported at a certain police station and a report of the loss duly entered at the station. Secondly, both Nyukuri and the applicant stole the file in question on 7 July 2020 from the offices of the County Assembly of Bungoma. Thirdly, considering that the second count was not presented as an alternative count, both Nyukuri and Tome (the applicant in case No. 1093 of 2020) were at Total Petrol station on Langata Road on 6 August 2020 and were in possession of the file that was allegedly stolen. Indeed, according to paragraph 5 of Orwa’s affidavit, Nyukuri was arrested while in possession of the file.

14. I did not find these conclusions to be viable for various reasons. First, there is no evidence or proof of any report having been made and recorded at any police concerning loss of property belonging to the County Assembly of Bungoma. The Clerk to the county assembly denied that any such report was made either by himself or any other officer of the County Government of Bungoma. The contention that a report had been booked in respect of the loss of the file and that the police had been investigating its loss before the applicant was arraigned was simply not true.

15. Secondly, according to the affidavit of constable Orwa, Nyukuri and Tome stole the subject file between 30th July 2020 and 3rd August 2020. This is contrary to what is stated in the charge sheets that the two men stole the file on 7th July 2020.

17. On the arrest of the Nyukuri and Tome, this is what Orwa stated in the statement he recorded in the course of the investigations:“I do recall on the 6th day of August 2020, when I was together with C.I. Wanga Masange, we went to total petrol station along langata road where C.I. Wanga was to wait for his family who had travelled to Busia.“…while at the petrol station together with my colleague C.I. Wanga Masake, a young man came out of a car Reg KBU where we had parked near the mini supermarket at the petrol station carrying a heavy black bag from the boot of the said car to the rear seat of the car.“The said black bag that was being carried by the said young man was so heavy and raised suspicion that caught our attention. We intercepted the young man who came to introduce himself as Dennis Wasike. The said Wasike was with two other men whom when we intercepted Dennis and still talking to him, they ran away. When asking the contents of the bag, the young man Dennis Wasike refused to open the same and said that the said bag belonged to one Barasa Nyukuri Kungu. We took Dennis Wasike to our offices at DCI Nairobi area upon introducing ourselves.“At the offices of the DCI Nairobi area, the said black bag was opened in the presence of the young man Denis Wasike. Upon opening the same, we found out that it contained the documents not related to him (Denis Wasike) and told us that the same belonged to one Barasa Kungu Nyukuri, and the County Giovernmentsof Bungima, Trans Nzoia, Vihiga, Kakamega and Busia counties respectively.“…Inside the said bag we also recovered an original file reference CS/CO/VOL.I/2020 containing budget response of Bungoma County, Public Administration and ICT.“…we followed Barasa Nyukuri to westlands where his mobile network was but we were not able to trace him since he had switched off his phone. On the 7th day of August 2020 in the morning Barasa Nyukuri escaped by taking a flight from JKIA to Kisumu then to Bungoma. He was arrested upon arrival at Bungoma.“upon interviewing Barasa, he disclosed to us that the said documents was (sic) given to him by Francis Tome plus original file and the assorted documents…we arrested Francis Tome Simiyu for the offence of stealing of the original file…we confirmed that he had signed for the same file.”

18. I established as a fact that there was no proof that one Dennis Wasike was arrested at a petrol station on the 6 August 2020 or that he recorded any statement as alleged. No evidence was provided that he was booked in any police station and neither was there any inventory shown to have been taken of what was found in his possession at the time of the arrest.

19. It was not logical that the alleged stolen file was reported to have been booked as a stolen property at unknown police station on 8 August 2020 yet it was found in possession of one Dennis Wasike on 6 August 2020 and the person who is alleged to have stolen it was arrested on 7 August 2020. The allegation that Nyukuri was arrested on 7 August 2020 is even compounded further by Orwa’s evidence on oath that:“1. That the respondent was arrested in Nairobi along Lang’ata road while in possession of some of the documents.”

20. The respondent referred to in this deposition was of course Nyukurui. I noted that the deposition contradicted Orwa’s own assertion that the Nyukuri was arrested in Bungoma on 7 August 2021. To quote him:“On the 7th day of August 2020 in the morning Barasa Nyukuri escaped by taking a flight from JKIA to Kisumu then to Bungoma. He was arrested upon arrival at Bungoma.”

21. This statement also contradicts Orwa’s statement that it was one Dennis Wasike and not Nyukuri who was found in possession of the file. Considering these contradictions, and in the absence of any evidence to the contrary, I noted that there was nothing to suggest that either the Tome or Nyukuri or both of them were in Nairobi on 6 August 2020 and that they were found in possession of the file in issue.

22. I finally came to the conclusion that, against this background, I am satisfied, I was indeed satisfied in this application, that the charges against the applicant were made in bad faith. Just as I held in application no. E093 of 2020, I also hold here that the charges smack of irrationality, illegality and procedural impropriety. These grounds of judicial review have been satisfactorily explained in Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 where Lord Diplock said of then as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. 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.By “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.By “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.I 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.”

23. These grounds are not necessarily exclusive; they do overlap at times and the applicant’s case is one such instance where they overlap and, for this reason, they are conveniently dealt with together. In other words, there are elements of illegality, irrationality and procedural impropriety in the impugned decision to arrest and prosecute the applicant.

24. For instance, upon analysis of the facts, it is obvious that there was no factual basis upon which the applicant could be charged with the offences stipulated in the charge sheet. The offence of stealing or handling could only be sustained if the facts pointed to those offences. But they do not. So the decision to charge in the absence of the facts necessary to support the charge is, on the one hand, illegal and on the other hand, procedurally improper. It is also irrational or unreasonable in the Wednesbury sense (See Associated Provincial Picture Houses Ltd versus Wednsebury Corporation (1948) 1KB 223) because it defies logic; no person or tribunal, looking at the same facts with an objective mind could possibly reach the same decision.

25. I am persuaded that the applicant has made out a case for grant of the orders of certiorari and prohibition. Accordingly, the application is allowed in terms of prayers 1 and 2 of the Notice of Motion; in particular:1. An Order of certiorari be and is hereby issued removing into this Honourable Court for purposes of it being quashed the decision of the 2nd Respondent to charge the Applicant before the 1st respondent in Kibera Chief Magistrates Court Criminal Case No. E842 of 2020 or any other Court on offences relating to the possession of file reference number CS/CO/OL. 1/2020 containing the budget responses of 2020-2021 for public administration and ICT with respect to Bungoma County Assembly. The impugned decision is hereby quashed.2. An order of prohibition is hereby issued prohibiting the 2nd respondent from preferring any charge or charges against the applicant for offences relating to the possession of file reference number CS/CO/ VOL.1/2020 containing budget responses of 2020-2021 for Public Administration and ICT Committee with respect to Bungoma County Assembly.3. The Applicant will have costs of the suit.Orders accordingly.

SIGNED, DATED AND DELIVERED VIA VIDEO LINK ON 10 JUNE 2022. NGAAH JAIRUSJUDGE