[2022] KEHC 371 (KLR)

Republic v Prosecution & 2 others; Maina (Exparte); Mutuma (Interested Party) (Judicial Review 1 of 2020) [2022] KEHC 371 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 371 (KLR)

Republic of Kenya

In the High Court at Embu

Judicial Review 1 of 2020

LM Njuguna, J

May 11, 2022

Between

Republic

Applicant

and

Director of Public Prosecution

1st Respondent

Director of Criminal Investigations

2nd Respondent

Chief Magistartes Court at Embu

3rd Respondent

and

Geoffrey Muthui Maina

Exparte

and

Luiser Nthambi Mutuma

Interested Party

Judgment

1. The applicant herein moved this court by way of notice of motion dated June 2, 2020 and wherein he seeks for orders that:i.This Honourable court be pleased to issue an order of prohibition to prohibit the chief Magistrate’s Court at Embu from taking further proceedings and executing any further orders, decrees, warrants or any other kind of execution in Criminal Case No.63 of 2020(Republic v Geoffrey Muthui Maina).ii.This Honourable court be pleased to issue an order of certiorari to bring to this court and quash the instituted proceedings in Embu Criminal Case No.63 of 2020 (Republic v Geoffrey Muthui Maina).iii.The Honourable Court be pleased to make any further or such orders as it may deem fair and just.iv.Costs of this application be in the cause.

2. The said application is premised on the grounds on its face and it’s supported by the verifying affidavit by the applicant. In a nut shell, it is the applicant’s case that on November 12, 2019, the interested party entered into a loan facility agreement with Progressive Credit Limited, who is the employer of the applicant and was thus granted a loan of which repayment was to commence on December 15, 2019. That the interested party defaulted in repaying the loan and the Auctioneers were instructed to attach and repossess the assets/properties of the interested party herein. He avers that the issues between the applicant and the interested party relates to repossession and attachment of the assets after breach of the loan facility agreement by the interested party which is not criminal in nature and should not warrant the intervention of the 1st and 2nd respondents. In the end, he averred that the actions of 1st and 2nd respondents are ultra vires and called upon this court to intervene.

3. The 1st respondent filed a replying affidavit wherein it was deponed that the applicant is undeserving of the orders sought as he failed to demonstrate the breach of any of his rights as alleged. That the process of instituting charges against the applicant emanated from a lawful process that was initiated on January 30, 2020 when the applicant took plea before the Chief Magistrate’s Court at Embu. It was deponed that the applicant has not demonstrated how the formulation of the charges against him by the 1st respondent is a contravention of his rights. That upon receiving complaint from the interested party herein, the 2nd respondent was duty bound to conduct investigations and thereafter forward full particulars and findings of the investigations to the 1st respondent who made decision to charge the applicant.

4. It was the 1st respondent’s case that this application is an attempt by the applicant to obstruct justice and interfere with the statutory and constitutional mandate of the respondents herein. That the Embu Criminal Case No. 63 of 2020 (Republic v Geoffrey Muthui Maina) is before a court of competent jurisdiction and in the absence of evidence of bias or unfairness on the part of the 1st, 2nd and 3rd respondents while in execution of their respective duties, this application remains vexatious, frivolous and an abuse of the court process aimed at defeating justice. In the end, it was deponed that the application is premature, misconceived and devoid of merit.

5. Directions were taken that the matter be disposed off by way of written submissions which parties were directed to file and exchange.

6. The applicant submitted that the manner in which the 1st and 2nd respondents acted in arresting and charging the ex parte applicant in criminal proceedings based on repossession and attachment of goods by the auctioneer who was duly instructed by the employer of the applicant is malicious. That there are correspondences between the interested party’s advocates and the applicant’s employer wherein it is admitted that she owes money and that her motor vehicle registration number KBM 273E and some goods had been attached. In the end, the applicant, questioned the interest of the 1st and 2nd respondents in the case. Reliance was placed on the case ofStella Richard & 13 others v DPP & 2 others; Daniel Kyalo Lua & another (Interested Parties)[2019] eKLR. The applicant thus submitted that the decision by the 1st and 2nd respondents to aid the interested party not to honour her financial obligations under a legally binding agreement is actuated by malice and that they have acted ultra vires. This court was urged to allow the application herein.

7. The 1st respondent submitted that from the outset, it is important to note that proceedings are quashed in the rarest of cases and that, this court’s discretionary power should be exercised sparingly once the petitioners prove the grounds set out in law for the court to grant the orders sought. Reliance was placed on the case of Kelvin Mwiti & Others v Kenya School of Law (Supra). It was submitted that the charge against the applicant is proper and legal pursuant to Article 157 of the constitution and further that, the 2nd respondent was exercising the powers granted to it pursuant to Article 243 of the constitution. Reliance was placed on the case of State of Maharastra & Others v Arun Gulab Gawaniin Criminal Appeal 590 of 2007. In the end, it was the 1st respondent’s case that the petition herein lacks merit and it’s just a delaying tactic and that Criminal Case No. 63 of 2020 should be allowed to proceed to its logical conclusion.

8. The Honourable Attorney General submitted that the 2nd respondent derives its mandate under Article 243 of the constitution and Section 24 of the National Police Act. Reliance was placed on the case of Republic v Commissioner of Police & Another ex parte Michael & another [2012] eKLR. That the 2nd respondent never acted in ultra vires as they only carried out their duties as enshrined in the Constitution and the National Police Act. Further that, the applicant is undeserving of the orders sought since the same would lead to departure from the rules of natural justice. Reliance was made on the case of Joram Mwenda Guantai v The Chief Magistrate Nairobicivil Appeal No. 228 of 2003 [2007] 2 EA 170.

9. The interested party submitted that the applicant went to great lengths to detail the circumstances of the alleged loan default without disclosing the source of that information. That the question of the purported loan facility, the alleged default and the alleged repossession are matters that go beyond the personal knowledge of the applicant and if those matters have any truth, then they are matters that should be presented before the court as evidence. It was submitted further that, there is no justification for stopping or quashing the trial and that, the matters raised herein should constitute the applicant’s evidence in defence and the veracity of that evidence be tested during cross examination. That this court exercising its supervisory jurisdiction is ill equipped to deal with the matters of evidence that the applicant herein has presented before it. In the end, it was submitted that if indeed there was any justification for removal of those items in the first place, there is no reason why they were released to the owner instead of being preserved and handed over to Progressive Credit Limited who were alleged to be the attaching creditor. That the applicant did not object to the release of the items to the owner and so it was prayed that this court dismisses the application herein and allow the criminal case to proceed.

10. I have considered the application herein and I have perused through the annexures thereto. I have further considered the parties’ written submissions and it is my considered view that the main issue for determination is whether the orders sought herein can be granted.

11. The applicant’s case is hinged on the allegation that the 1st and 2nd respondents acted ultra vires in deciding to investigate, charge and thereafter prosecute the applicant herein. The question that I therefore have to determine is whether the 1st and 2nd respondents acted ultra vires.

12. It is trite that judicial review proceedings are mainly concerned with the process leading to the making of the decision and not the merits of the decision. The purpose of the remedy of judicial review is therefore to ensure that an individual is given fair treatment by the authority to which he or she has been subjected, and it is not part of that purpose to substitute the opinion of an individual judge for that of the authority constituted by law to decide the matter in question. The court in the case of Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited, [2008] eKLR, held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. (See also the case of Municipal Council of Mombasa v Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007[2002] eKLR).

13. The broad grounds on which the court exercises its judicial review jurisdiction were restated in the Uganda case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 and wherein the court citing with approval the decision in Council of Civil Unions v Minister for the Civil Service [1985] AC 2 and an application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:-“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality....Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.........Procedural Impropriety are when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”

14. It must be kept in mind that judicial review orders are concerned with the decision-making process rather than the merits of the decision. Therefore, judicial review proceedings ought not to be modified into a vehicle through which matters which ought to be ventilated in other forums are to be determined. [See John Fitzgerald Kennedy Omanga v The Postmaster General Postal Corporation of Kenya & 2 others Nairobi HCMA No. 997 of 2003].

15. It is trite that the prosecutorial powers of Director of Public Prosecution are constitutionally and statutorily provided for under Article 157 (10) of the Constitution and Section 4 of the Office of the Director of Public Prosecution ActNo. 2 of 2013, which provides that the DPP does not require the consent of any person or authority to commence any criminal proceedings and in exercise of his/her powers and functions, shall not be under the direction or control of any person or authority. The exercise of that power is however subject to Subsection (11) of Article 157 and Section 4 of the DPP Act, which provides that in exercise of the said power, the Director of Public Prosecution shall have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of legal process. InR v Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 the Court held that:“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".

16. When faced with a petition seeking to arrest a criminal prosecution, the factors which a court ought to account for are well settled. For a start, the court ought to be extremely cautious in making its determination so as to avoid prejudicing the intended or pending criminal proceedings. The court ought not to usurp the constitutional and statutory mandate of the Director of Public Prosecutions and neither should it curtail the investigatory mandate of the 2nd respondent. However, the court may intervene where the said discretion is exercised unlawfully and in bad faith. [See George Joshua Okungu & another v The Chief Magistrates Court, Nairobi & another [2014] eKLR]. The court proceeded to state that:“50. The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the petitioner in those proceedings. However, if the Petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the petitioner’s Constitutional rights, the Court will not hesitate in putting a halt to such proceedings. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore, the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the petitioner/ applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim. In the exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration.[See R v Monopolies and Mergers Commission Ex Parte Argyll Group Plc [1986] 1 WLR 763 and Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK).”]

17. I have had an opportunity to peruse the charges preferred against the applicant in Criminal Case No. 63 of 2020 and the annexed witness statements and without pre-empting the trial, I adopt the view that the applicant herein is seeking to jump the gun by urging this Court to interfere prematurely with the laid-out process to be followed in any criminal prosecution. The matters that he has raised in this application ostensibly would be his defence in the criminal proceedings against him. [See Eng. Michael Kamau and 12 others v EACC and 4 others [2016] eKLR] where the court observed that:“It follows that where an applicant brings such proceedings with a view to determining contested matters of facts and in fact urges the court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction to determine such a matter and will leave the parties to resort to the usual forums where such matters ought to be resolved.”

18. The fact that judicial review only deals with the procedure and not substance, I find that the applicant’s case is really not related to the process per se but rather to substance (that is arrest, investigation and thereafter prosecution).

19. In view of the foregoing, I am also guided by the finding by Lenaola J (as he then was) in Daniel Ndungu v Director of Public Prosecutions & another [2013] eKLR:“…. the applicant ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the Law should he be found culpable”

20. The applicant will have ample opportunity to ventilate his case in the more befitting forum that is the trial court as opposed to this court.

21. In view of the foregoing, the application is hereby dismissed but with no orders as to costs.

22. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L. NJUGUNAJUDGE.....................................for the Applicant................................for the Respondents...........................for the Interested Party.......................................for the Ex Parte