[2022] KEHC 43 (KLR)

Republic v Director of Criminal Investigations & 2 others; Resilient Investments Limited & 3 others (Interested parties); Limited (Exparte) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) (4 February 2022) (Judgment)

Neutral citation number: [2022] KEHC 43 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Application E037 of 2021

JM Mativo, J

February 4, 2022

Between

Republic

Applicant

and

Director of Criminal Investigations

1st Respondent

Inspector General of National Police Service

2nd Respondent

Attorney General

3rd Respondent

and

Resilient Investments Limited

Interested party

Susan Muigai

Interested party

Silverline Developers Limted

Interested party

Everywhere Investments Limited

Interested party

and

Pearl Beach Hotels Limited

Exparte

Judgment

1. Vide the application dated 12thOctober 2021, the applicant prays for an order of certiorari to quash the 1st and 2nd Respondents’ decision contained in a letter referenced DCI/IB/ECCU/SEC/4/4/1/VOL.XLV111/102 dated 13th August 2021. For the sake of brevity, it is good to mention that in the said letter the Director of Criminal Investigations informed the applicant’s managing director that he was undertaking investigations relating to suspected fraud in respect to homeowners’ utility bills at English Point, Marina in Mombasa. To facilitate the investigations and to help him make an informed decision, the 1st Respondent requested the applicant to urgently furnish him with certified copies of: -a.Particulars and contacts of the Directors and Shareholders of English, Marina.b.Management agreements with homeowners.c.Names and contacts of all homeowners and their respective units.d.All the utility bills paid by English Point, Marina including the common areas.e.All the civil and or criminal pending and concluded court suits involving and per unit English Point Marina and its directors in its corporate capacity as well as individual capacity.f.All the annual statutory accounts, reports and audits of the company.g.Any other information that may assist in the investigations.

2. Additionally, the applicant prays for an order of prohibition restraining the Respondents from implementing the said decision. Lastly, the applicant prays that the costs of the application be in the cause.

3. The applicant’s case as I discern it from the pleadings filed is that the sub-lessees at the said premises sued the applicant herein in High Court ELC No. 69 of 2021, William Asiko & 11 others v Amyn Kanji & 4 others which suit is still pending in court, and that some of the issues raised in the said case relate to disputed accounts on bills raised by the applicant as the head lessor for services offered to the sub-lessees at the premises. It is the applicant’s case that on 18th May 2021, the court in the said case issued interim injunctive orders restraining the Director of the applicant herein from interfering with the peaceful enjoyment and possession of the units leased to the Plaintiffs in the said case where appropriate bills had been paid. It states that the applicant being the head lessor is obligated to offer services in the premises to the sub-leases and raise invoices for payment and, in that regard, the applicant raised appropriate invoices and demand payment from the various home owners.

4. It is also the applicant’s case that some of the Plaintiffs have paid the bills while some have failed though they have not raised disputes and notwithstanding the pendency of the said case before the ELC, the applicant the impugned letter from the 1st Respondent requiring the applicant to answer allegations of alleged fraudulent utility bills raised against unknown sub-lessees in the said premises and the above information.

5. The applicant contends that the issues relating to utility bills is the preserve of civil law which is already pending before a court, that the impugned letter was issued in excess of jurisdiction and therefore, it is a nullity; that it is issued in violation of the law and in breach of the rules of natural justice, and ultra vires the 1st Respondent’s powers under the National Police Service Act.11Act No. 11A of 2011.

6. Further, it is the applicant’s case that the impugned decision is preposterous and it is designed to assist unknown individuals to advance their civil cases by attempting to interfere with a fair civil trial, and that, there exists remedies in the civil court so there is no valid reason to invoke the criminal justice to enforce a purely civil claim. Additionally, the applicant states that the impugned decision is based on malice, immaterial and irrelevant facts and is aimed at settling personal vendetta. Further, that it was issued in disregard of constitutional and legal safeguards against such abuse of office. Lastly, that the applicant stands to suffer irreparable damage and loss unless the orders sought are granted.

7. The nub of the 1st, 2nd and 3rd Respondents’ case as disclosed from the affidavits filed is that the application seeks to restrain the 1st Respondent from undertaking its legal mandate under that Article 245 of the Constitution and the National Police Service Act which mandates the it to investigate offences. It is their case on 23rd August 2021 the 1st Respondent received a complaint regarding uncorroborated and fraudulent bills from English Point, Marina, which accusations indicate illicit activities on the part of the applicant’s agents.

8. It is their case that the criminal investigation pertains to complaints of fraudulent billings and thefts while the civil case relates to access, trespass and homeownership rights, and, that preliminary investigations relating to fraud and money laundering which can only be proved or disapproved by analysis of the documents requested. Further, that the law permits parallel civil and criminal proceedings.

9. The 1st and 2nd Respondents also maintain that the functions of the Directorate of Criminal Investigations as provided under section 35 of the National Police Service Act include investigating serious crimes including money laundering, detecting and preventing crime, and maintaining law and order and performing any other function conferred on it by the law, so the impugned actions were within the law. Also, that the police have a duty to investigate crime once a complaint is made.

10. The Interested Parties case as I glean it from the affidavits filed is that they are apartment owners at the English Point Marina, that they never received a detailed breakdown of their water, electricity and service charge bills or statutory tax reports nor have they been provided with any explanation by the applicant, so, they lodged a complaint with the police.

11. The applicant’s counsel adopted his written submissions. He submitted that the dispute on the utility bills is the preserve of civil law which is subject to the dispute resolution process outlined in the sub-lease to which the homeowners are parties. Also, he argued that the impugned letter was issued in excess of the 1st Respondent’s mandate, so, it’s a nullity. He submitted that the Respondents acted in utter violation of the law, in breach of the Rules of natural justice and ultra vires the powers vested upon the 1st Respondent under the National Service Police Act. He submitted that the applicant risks criminal prosecution on a civil dispute in breach of its constitutional right to a fair trial under Article 50 of the Constitution.

12. Additionally, the applicant’s counsel submitted that the investigations are oppressive and vexatious because the have been directed by hidden individuals with the sole objective of intimidating the applicant and relied on Commissioner of Police & Director of Criminal Investigations Department & another v Kenya Commercial Bank Limited & 4 others2in support of the proposition that an oppressive or vexatious investigation is contrary to public policy. He also cited Kenya Commercial Bank of Kenya Limited & 2 others v Commissioner of Police and Director of Criminal Investigations Department & another; Interested Party Benjoh Amalgamated Ltd3 which underscored that the court is entitled to intervene where the circumstances call for it to act especially where it is satisfied that fundamental rights and freedoms are threatened or where the proceedings are vexatious.2{2013} e KLR.3{2012} e KLR.

13. To buttress his argument, he cited De Smith’ Judicial Reviewwhich cited R v Secretary of State for the Home Department ex parte Daly4which stated that the test of unreasonableness allows a decision to be reviewed where there is material defect in the decision-making process, where the decision violates constitutional principles governing the exercise of power and oppressive decisions. He also cited Republic v Chief Magistrates Court at Mombasa ex parte Ganijee & another5which held that were a remedy is elsewhere provided and available, there is no reason to invoke the assistance of criminal law. (Also cited Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others (Supra). Further,4{2001] UK.5{2002 e KLR.

14. Also, he argued that the rationale deployed by the 1st Respondent in arriving at the decision to investigate utility bills cannot be justified considering the nature of offences provided under section 35 of the National Police Service Act. Lastly, he cited R v Attorney General and another ex parte Hussein Mudobe6 which held that a civil right or obligation cannot be determined in a criminal court and any attempt to determine such a right in a criminal court violates the constitution.6High Court Misc. Application No. 898 of 2003 (Unreported).

15. The Respondents’ counsel submitted that prosecution is a product of a police investigation which discloses an offence known to the law and relied on Patrick Muturi Ihungi v The Inspector General of the National Police Service & another ex parte Beatrice Hilda Omunia;Peter Nganga Chege & 2 others (Interested Parties)7which held that an offence can only be prosecuted if it is known to the law. Responding to the argument that the investigation is vexatious, he cited Patrick Muturi Ihungi v The Inspector General of the National Police Service & another ex parte Beatrice Hilda Omunia; Peter Nganga Chege & 2 others (Interested Parties)8 which held that vexatious means to harass by the process of law and lacking in justification. He argued that the Respondents were acting on complaints lodged by the complainants. Additionally, counsel argued that the Police have a duty to investigate crime once reported and cited Republic v Commissioner of Police & another ex parte Michael Monari & another9which underscored that the Police have a constitutional mandate to investigate crime once committed.7{2021} e KLR.8{2021} e KLR.9{2012} e KLR.

16. Counsel submitted that the applicants have not shown what loss they stand to suffer if the investigations continue and cited section 193A of the Criminal Procedure Code10 which provides that the pendency of a civil suit is not a ground to stay criminal proceedings. (Citing the Court of Appeal in Lalchand Fulchand v Investments & Mortgages Bank Limited & 5 others11). He submitted that the power to prohibit police investigation must be exercised sparingly such as where the criminal process is being abused. He argued that the judicial review orders sought in this case are discretionary only to be to be exercised on sound legal principles. Additionally, he argued that it is not for this court to determine the veracity of the evidence tendered. He relied on Patrick Muturi Ihungi v Inspector General of Police & 2 others; Namoya Interested Party12 and submitted that the inherent jurisdiction of this court to stop investigations or a prosecution is to be exercised only in exceptional circumstances.10Cap 75, Laws of Kenya.11{2013} e KLR.12Petition No. EP40 of 2021.

17. On behalf of the Interested Party, associated himself with the Respondent’s advocates submissions and submitted that the civil suit relates to homeownership rights while the criminal complaints relate to complaints on theft, fake bills, money laundering and fraud. He submitted that there is a reasonable and probable cause to justify the investigations.

18. Additionally, counsel submitted that the application does not meet the tests in Anarita Karimi Njeru v The Republic13nor has the applicant proved the alleged violation of rights. (Citing Leonard Otieno v Airtel Kenya Limited.14He argued that if charged the applicant will enjoy the protection of the court and a fair trial. He submitted that courts ought not to usurp the constitutional mandate of the 1st and 2nd Respondents provided it acts in a justifiable manner. (Citing Michael Monari & another v Commissioner of Police & 3 others15). He submitted that this court can only interfere with the functions of independent constitutional institutions if the actions contravene the Constitution. To support this proposition, he citedPaul Nganga Nyaga v Attorney General & 3 others16and argued that the Respondents draws its authority from Article 245 & 247 of the Constitution and sections 24, 28 and 35 of the National Police Service Act. To fortify his argument, he cited Daniel Ogwoka Manduku v Dirctor of Public Prosecutions & 2 others17 which held that the powers of the police to investigate crime cannot challenged because the police exist to combat crime, so, it is not possible to stop a criminal investigations unless the foundation of such investigations is malicious or is an abuse of power.13{1976-1980] KLR 1272. 14{2018} e KLR.15Misc. App. No. 68 of 2011. 16{2013} e KLR.17{2019} e KLR.

19. To further buttress his argument, he cited Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others18 and Pauline Adhiambo Raget v DPP & 5 Others19 both of which underscored that the police are mandated to investigate crime. He submitted that the applicant has failed to demonstrate how the investigation will violate its constitutional rights nor did they demonstrate that the police exceeded its powers. He submitted that the applicant has not satisfied the tests for judicial review set out in section 4 of the Fair Administrative Action Act.20 He asserted that the Respondents are simply undertaking their duties are relied on Republic v The Commissioner of Police & the Director of Public Prosecutions ex parte Michael Monari & another.21 Lastly, the Interested Party submitted that the applicant has failed to prove illegality, irrationality, impropriety or unreasonableness on the part of the Respondents or ultra vires and cited the {{>http:kenyalaw.org/caselaw/cases/view/108937/Cascade Company Limited v Kenya Association of Music Production (KAMP) & others}//}.2218{2016} e KLR.19{2016} e KLR.20Act No. 4 of 2015. 21Misc. Application No. 68 of 2011. 22Petition No. 7 of 2014

20. The issues presented in this case are a direct invitation to this court to restate the circumstances, under which the High Court in exercise of its vast jurisdiction conferred upon it by the Constitution can halt, stop, prohibit or quash a police investigation. The answer to the question will turn on the scope and ambit of the constitutional and statutory mandate of the 1st and 2nd Respondent and whether by writing the impugned letter, the 1st Respondent acted ultra vires his constitutional and statutory mandate.

21. Article 245 (4) provides that the Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or… These provisions are meant to guarantee the independence of the National Police Service in the performance of its functions.

22. The functions of the National Police Service enumerated in section 24 of the National Police Service Act include (e) investigation of crimes; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time

23. Section 35 of the National Police Service Act provides the functions of the 1st Respondent include—undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehend offenders; and performing any other function conferred on it by any other written law.

24. A reading of the above provisions leave no doubt that the police are legally obligated, once they witness or are informed of a crime, to investigate the offence. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. These obligations arise from the Constitution and are affirmed by the National Police Service Act. In terms of the above provisions, the functions of the police is to investigate crimes. Any other answer would give rise to indignation.

25. Investigation of the crime is a solemn duty imposed by law on the police officers. The duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the courts to record convictions but to bring out the real unvarnished truth. I may point out that courts have insisted on the observance of certain principles – a code of investigation ethics – to be observed by the investigating officers. Observance of these rules is essential to protect life and liberty of the people and create public confidence in the criminal investigatory process.

26. A police’s position is different from that of ordinary citizens in that they cannot simply walk away from a criminal offence that has been reported to them or has been brought to their attention. This position was accentuated in S v Williams and Others: -23231998 (2) SACR 191 (SCA), citing Booysen, Justice, in S v Barnes and Another 1990 (2) SACR 485 (N).“Although mere failure to report the crime to the authorities would not render a member of the public guilty of being an accessory after the fact of that crime ... a police officer is in a different position as it is his legal duty to bring criminals to book.”

27. The legislative intent in that the investigating officer records statements of persons acquainted with the facts of the case promptly to preserve the best evidence and to check any manipulation on the part of witnesses. It is presumed that spontaneity ensures the truth of details of incident and participants therein and delay generally occasions manipulations and colouring. Therefore, the investigating officers are required to record statements of persons acquainted with the facts promptly and failure to do so is a serious matter. It is prudent for an investigator to give precedent to the examination of witnesses who are easily available at scene of crime in natural order of priority. Delay in recording statements may not by itself amount to be a serious infirmity but may assume such a character if there are concomitant circumstances to suggest the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case. Delayed recording of statements by the investigating officer of the material witnesses renders their evidence unreliable.

28. It is the duty of the investigating officer to take into possession any document which has a bearing on the case. The reason for such a necessity is that such document may have effect on the culpability or innocence of the accused. It is the duty of the investigating officers to ensure that the law is observed not only in letters but in spirit during the investigations and arrest and to ensure that they observe the provisions of law scrupulously and do not exceed their powers. It is the duty of the police to investigate the case with utmost impartiality and fairness, both to the suspect as well as to the aggrieved person. If the police adopt an impartial attitude, it will further the cause of justice. If police adopt partial attitude and in conducting investigation malice is apparently reflected, then this will be a ground for the court to intrude.

29. There is no dispute that the process of establishing whether or not to prosecute usually starts when the police present a docket to the prosecutor. The police are yet to forward the investigation file to the DPP who will evaluate the evidence and independently decide whether or not to prosecute. Importantly, it has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution. There must be sufficient evidence to mount a prosecution. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. It is for the DPP to determine that the evidence presented is sufficient to justify a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused. It is not for this court to weigh the veracity of the evidence. This court can only intervene where there is proven breach of the Constitution or the law. I am afraid, a review of the material presented before me does not suggest that the police exceeded their mandate. On the contrary, the impugned actions are grounded on the enabling provisions of the Constitution and the Constitution.

30. The power of stop or quash police investigations on a suspected offender must be exercised sparingly and with circumspection and in the rarest of rare cases and the court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power to quash investigations is immense since it amounts to exonerating a suspect before trial. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution. These considerations are absent in this case.

31. The core argument mounted by the applicant is that there is a pending civil dispute touching on the same issues and that these proceedings are aimed at assisting “unknown individuals.” The above argument collapses not on one but on two fronts. One, the argument ignores the provisions of section 193A of the Criminal Procedure Code which provides: -Notwithstanding the provisions of any other written law the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceeding.

32. Clearly, the mere pendency of the civil proceedings is not a bar to continuation of the criminal proceedings. The law permits parallel criminal and civil proceedings. The second ground upon which the applicant’s argument collapses lies in the nomenclature deployed in its pleadings and submissions. The phrase to assist “unknown individuals” used severally in the pleadings and the submissions is self-defeating, speculative and lacks clarity. How can the applicant expect the court to make a finding based on conjecture, speculation and guesswork? Pleadings are supposed to be lucid. The core issue here is to understand the function of and purpose of good pleadings. In this regard, I may profitably cite the words of the Australian Court24 on the principles of good pleading: -24In SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd {2011} VSC 492 at [3]-[6]“In a mathematical proof, elegance is the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance is minimum motion with maximum effect. In filmmaking, elegance is a simple message with complex meaning. The most challenging games have the fewest rules, as do the most dynamic societies and organizations. An elegant solution is quite often a single tiny idea that changes everything. … Elegance is the simplicity found on the far side of complexity.While elegance in a pleading is not a precondition to its legitimacy, it is an aspiration which, if achieved, can only but advance the interests of justice. A poorly drawn pleading, on the other hand, which does not tell a coherent story in a well ordered structure, will fail to achieve the central purpose of the exercise, namely communication of the essence of case which is sought to be advanced.… Crafting a good pleading calls for precision in drafting, diligence in the identification of the material facts marshalled in support of each allegation, an understanding of the legal principles which are necessary to formulate complete causes of action and the judgment and courage to shed what is unnecessary.Although a primary function of a pleading is to tell the defending party what claim it has to meet, an equally important function is to inform the court or tribunal of fact precisely what issues are before it for determination.”25 (Emphasis supplied)25See also Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77 [1-4]; Hoh v Frosthollow Pty Ltd and Ors [2014] VSC 77 at [13] – [20].

33. The function of a pleading in civil proceedings is to alert the other party to the case they need to meet, (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial. The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action.

34. It is of course, a basic principle that particulars of claim should be so phrased that a defendant may reasonably and fairly be required to plead thereto. This must be seen against the background of the further requirement that the object of pleadings is to enable each side to come to trial prepared to meet the case of the other and not be taken by surprise. Pleadings must therefore be lucid and logical and in an intelligible form; the cause of action or defence must appear clearly from the factual allegations made. The applicant cannot make such an unclear and vague allegation and expect to persuade the court the investigations are meant to serve an ulterior purpose without disclosed the persons it alleges stand to benefit.

35. The applicants pray for a writ of certiorari. Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. No material has been presented before me to show that the investigations are tainted with illegality or procedural impropriety to warrant the writ of certiorari.

36. The applicant seeks an order of prohibition to stop the investigations. A writ of Prohibition arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation. However, the illegality of the impugned decision has not been established nor has it been established that the Respondents acted illegally or in excess of their powers, hence the writ of prohibition cannot issue in this case.

37. Flowing from my discussion on the issues addressed above and the conclusions arrived, I find and hold that the application dated 12thOctober 2021 is unmerited. I dismiss it with costs to the Respondents and the Interested Parties.

Orders accordinglySIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 4TH DAY OF FEBRUARY 2022JOHN M. MATIVOJUDGE