[2009] KEHC 220 (KLR)
The court found that the criminal proceedings against the applicant were improper and constituted an abuse of the court process because the issue of ownership of the motor vehicle had already been conclusively determined in the applicant's favor in a prior civil suit. Allowing the criminal case to proceed would...
Source-derived case information.
- Citation
- [2009] KEHC 220 (KLR)
- Parties
- Applicant: Republic; Respondent: Lalji Remji Chabhadia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 3 of 2008
- Procedural Posture
- Criminal Revision / Ruling on Constitutional Reference Regarding Propriety of Criminal Prosecution After Civil Judgment
- Outcome
- application allowed; criminal proceedings terminated
- Legal Topics
- Abuse of Process, Parallel Proceedings, Prosecutorial Discretion, Ownership Disputes, Private Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Lalji Remji Chabhadia
Respondent
Procedural Posture
Criminal Revision / Ruling on Constitutional Reference Regarding Propriety of Criminal Prosecution After Civil Judgment
Legal Issues
- 1 Whether the Attorney General or a private prosecutor can institute criminal proceedings when ownership of the disputed property has already been determined in a civil court.
- 2 Whether continuation of the criminal case constitutes an abuse of court process given the prior civil judgment.
- 3 Whether the charges against the applicant can stand in light of the civil court's finding on ownership.
Ratio Decidendi
The court found that the criminal proceedings against the applicant were improper and constituted an abuse of the court process because the issue of ownership of the motor vehicle had already been conclusively determined in the applicant's favor in a prior civil suit. Allowing the criminal case to proceed would result in conflicting decisions on the same subject matter and would effectively permit the complainant to use the criminal justice system to overturn or undermine the civil court's judgment. The court emphasized that while the Attorney General has the constitutional authority to initiate criminal prosecutions, such power must be exercised judiciously and not as a tool for...
Court Disposition
application allowed; criminal proceedings terminated
Orders
- The proceedings in criminal case No. Kakamega 1014 of 2007 are terminated forthwith.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Criminal Revision 3 of 2008
REPUBLIC ……………………………………………… APPLICANT
V E R S U S
LALJI REMJI CHABHADIA ………………………. RESPONDENT
R U L I N G
The applicant herein is facing criminal charges, vide Kakamega Criminal Case No.1014 of 2007. He filed this constitutional reference dated 5th March, 2008. The main issue of contention is that the criminal case against the applicant is based on a motor vehicle that has already been adjudged to belong to the applicant in Kakamega Civil Case No. CMCC NO.560 of 2005. Mr. Samba for the applicant did not attend court when the application was listed for hearing on 29th July, 2009.
The application was referred to this court by the Senior Principal Magistrate, for interpretation of the Constitution. The lower court that is trying the criminal case is faced with the accused’s contention that the Attorney General or his representative, the Private prosecutor, has no locus to bring the criminal proceedings against the accused since the accused has a decree in CMCC No. 560 of 2005.
The charge sheet has three counts. In count one the applicant is charged with Robbery with violence contrary to section 296(2) of the Penal Code. He is also charged with handling suspected stolen property contrary to section 322 of the Penal Code and in the third count the applicant is charged with unlawful use of motor vehicle contrary to section 294 of the Penal Code.
The issue for determination is whether the Attorney General can bring criminal charges when ownership of a disputed property has already been resolved in a civil court.
In the civil case No. CMCC 560 of 2005, the applicant is the plaintiff and Winston Keya Alumosi is the defendant. The case was fully heard. The final verdict by the trial court was that motor vehicle registration No. KAK 565 Ybelong to the applicant as the lawful owner and that the same be released to the applicant by the District Criminal Investigations Officer, Kakamega.
The charge facing the applicant is that he violently robbed one Meshack Shinali motor vehicle KAE 802 K Mazda Pick-up on 12th April, 2005. The proceedings in the Civil case show that the issue as to whether motor vehicle KAE 802 K was indeed the same as motor vehicle KAK 565 Y was determined. Two log books were produced and the court found in favour of the applicant.
Since the complainant in the criminal case was the defendant in the civil case, it follows that having lost in the civil case, the complainant wishes to use the criminal proceedings to recover what he could not in the civil case. The exhibit motor vehicle No. KAE 802 K seems not to have been recovered as already a court of law has held that it is not the one registered as No. KAK 565Y.
Allowing the criminal proceedings to proceed is tantamount to saying that the accused person violently stole his own vehicle. There is no indication why the police did not charge the applicant when they recovered the vehicle. The alternative charge of handling stolen property cannot be proved as already the court has ruled that the property the applicant handled was his. Similarly, the count on unlawful use of a motor vehicle cannot stand as the applicant was using his motor vehicle.
Although section 26 of the Constitution empowers the Attorney General to initiate criminal proceedings, such powers cannot be used arbitrarily. The criminal case was initiated after the lower court delivered its judgement in the civil case on 8th May, 2007. This is pure harassment disguised as prosecution. I do find that the prosecution is criminal case No.1014 of 2007 through a private prosecution is not proper and is oppressive to the applicant. Should the trial court reach a verdict that the applicant is guilty, then there would be two parallel decisions on the same subject matter. The complainant should have appealed after the civil suit was finalized.
Al though criminal proceedings can still be instituted even if there are civil proceedings in certain cases, courts have to evaluate the proceedings and determine their suitability. To allow the criminal proceedings in the lower court trial is to create conflict in the legal process. The proceedings are an abuse of the court process. I do order that the proceedings in criminal case No. Kakamega 1014 of 2007 be terminated forthwith.
Delivered, dated and signed at Kakamega this 5th day of November, 2009
SAID J. CHITEMBWE
J U D G E