[2022] KEHC 11751 (KLR)

Republic v The DCI Meru North & 3 others (Judicial Review Application E006 of 2021) [2022] KEHC 11751 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11751 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review Application E006 of 2021

TW Cherere, J

May 12, 2022

In the matter of an application for judicial review orders of Certiorari & Mandamus and in the matter of the law reform act, cap 26 laws of Kenya and in the matter of articles 23 and 165(6) of the constitution and in the matter of order 53 of the civil procedure rules

Between

Republic

Applicant

and

The DCI Meru North

1st Respondent

The Director Of Public Prosecutions

2nd Respondent

The Chief Magistrate At Meru

3rd Respondent

Hon. Attorney General

4th Respondent

Ruling

Background 1. On June 23, 2020, the exparte Applicant and his wife entered into an agreement in which the Interested Party loaned the exparte Applicant Kshs. 6,700,000/- which was secured by title no. Mwimbi/south Mugumango/1355 And Mwimbi/murugi/4376.

2. Upon the loanees’ failure to repay the loan, the Interested Party on 08th March, 2021 filed Chuka Cmcc Elc No. E011 Of 2021 seeking an order That The Exparte Applicant And His Wife Be Compelled To Transfer Title No. Mwimbi/south Mugumango/1355 And Mwimbi/murugi/4376 to the Interested Party.

3. Subsequently on May 13, 2021, officers of the 1st Respondent arrested the exparte Applicant on allegations of non-payment of the loan amount to the Interested Party. He was incarcerated for 5 days and was denied cash bail. On 17th May 2021, he was charged in Meru Chief Magistrate Criminal Case No. E694 of 2021 with the offence of cheating in that he had obtained Kshs. 6,700,000/- from the Interested Party and failed to repay the same or transfer title no. Mwimbi/south Mugumango/1355 And Mwimbi/murugi/4376 to the Interested Party. He was released on a bond of Kshs. 800,000/- pending trial.

4. The exparte Applicant has moved this court by way of a judicial review application dated October 12, 2021, brought under order 53 rule 1 of the Civil Procedure Rules and section 8 & 9 of the Law Reform Act seeking the following orders: - 1. That prerogative orders of Certiorari do issue to remove into this Honorable Court for purpose of its being quashed the decision of the 2nd Respondents made on May 17, 2021 to charge the applicant with an offence of cheating in the Chief Magistrate at Meru Criminal Case No. E694 of 2021.

2. That prerogative orders of Mandamus do issue to compel the Respondents to unconditionally release the applicant and discharge the sureties in the Chief Magistrate at Meru Criminal Case No. E694 of 2021.

3. That prerogative orders of Prohibition do issue to prohibit the Respondents from charging the applicant with an offence of cheating in the Chief Magistrate at Meru Criminal Case No. E694 of 2021.

4. The costs of the suit.

5. The application is premised on grounds set out in the statement of facts, the verifying affidavit and the supporting affidavit of the exparte Applicant Patrick Murithi Mugambi in which he reiterates the grounds on the face of eth application and the background of this application.

6. On behalf of the 1st to 3rd Respondents, No. 94023 PC Isaiah Wafula swore a Replying affidavit dated 28th March 2022 and averred that on 26th April 2021, a report was made by the Interested Party vide OB No. 75 that on 23rd June 2002, she had given Kshs. 6. 7 million to one Patrick Murithi Mugambi who had later surrendered two title deeds to her in the names of Ben Mwirigi Murithi and Doris Churi. He conducted an investigation, recorded statements, proceeded to Chuka Land Office where he obtained two copies of the green cards of the parcels Mwimbi/South Mugumango/1335 in the name of Ben Mwirigi Murithi and Mwimbi/Murugi/4376 in the name of Doris Churi and discovered that cautions had been placed on them. That after investigation, he formed an opinion that the exparte Applicant and his wife jointly conspired to cheat the Interested Party out of Kshs. 6. 7 million as a result of which the exparte Applicant was arrested and charged. He avers that he acted lawfully and urges that the Application be dismissed.

7. The 4th Respondent filed Grounds of Opposition dated 28th April 2022 raising 8 grounds which I have collapsed as follows; - 1. The Notice of Motion is misconceived, misplaced and an abused of the court process as it is a collateral attack on a valid judicial decision.

2. The issue as to whether the cause of action is civil or criminal in nature can only be determined by evidence adduced and evaluated by the trial magistrate court.

3. The Constitution as well as existing law provide sufficient safeguards that the Applicant can seek recourse in the event that he is prejudices by the outcome of the criminal case. Further Court should exercise caution when dealing with an entity that has been conferred power by the Constitution.

Submissions 8. By his submissions dated 1April 4, 2022 contends that his failure to refund the Interested Party’s money is purely a civil dispute, and that to arrest him in a bid to force him to pay the debt is an abuse of power by the police and the prosecution. He faults the 1st and 2nd Respondents for deploy the state’s prosecutorial machinery for malicious purposes. He relied on the case law of Thomas Mboya Oluoch & another v Lucy Muthoni Stephen & another [2005] eKLR and Moses Namayi Anyangu v Ocs, Butere Police Station & 3 others;Molyn Credit Limited & another (Interested Parties) [2020] eKLR.

9. 2nd Respondent by its submissions dated 25th March 2022 contends that the Office of the Director of Public Prosecution is a constitutional office established under article 157 of the Constitution which empowers it to institute and undertake any criminal proceedings against any person before any court in respect to any offence alleged to have been committed not requiring consent or authority. It is submitted that a complaint was made to the 1st Respondent who had a duty to investigate the same and subsequently the 2nd Respondent acted within its mandate when it made the decision to charge the Applicant. The 2nd Respondent argues the court to find that the existence of the civil suit exists is not a good cause to stay the criminal matter as the Applicant will have an opportunity to challenge the evidence that shall be adduced against him. Finally, the court is urged to find that the Applicant has not shown the manner in which he will be prejudiced, or that his constitutional rights have been infringed, or that the Respondents acted without or in excess of their powers to warrant this court to give any orders of stay. Reliance was placed on Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others [2013] eKLR for the proposition that the decision to institute criminal proceedings by the DPP is discretionary and that such exercise of power is not subject to the direction or control by any authority as per article 157(10), Kipoki Oreu Tasur v Inspector General of Police & 5 others [2014] eKLR, and Paul Stuart Imison & Another vs The Attorney General & 2 Others, Petition No. 57 of 2009 wherein the circumstances which the court takes into consideration in deciding whether or not to halt a criminal process were set out. The Applicant reiterated that in exercise of the discretion to charge a person both the police and 2nd Respondent must do so on the basis of evidence and sound legal principles, and he relied on the decision by Ojwang J. (as he then was) in the case of Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another, Nairobi HCCC No. 1729 of 2001 for this proposition. They also cited the case of Erick Kibiwott Tarus & 2 Others vs Director of Public Prosecutions &7 others, (2014) eKLR for the position that the constitutional discretion given to the 2nd Respondent should not be lightly interfered with, and the Applicant’s innocence is an issue for the trial Court.

10. By its submission dated April 28, 2022, 4th Respondent stated that 1st Respondent acted lawfully, in good faith and in public interest in discharging its statutory mandate. It was additionally submitted that article 157 of the Constitution gives the 2nd Respondent the mandate to prosecute criminal matters and that it does not require consent or authority from anyone and the quality of the evidence will be determined at the trial and that the Applicant’s fear that his rights will be breached is unfounded. Reliance was placed on Meixner &anothervAttorney General (2005) 2KLR 189(PP191), Associated Provincial Picture House V Wednesbury Corporate (1948) 1KB 223.

Analysis and Determination 11. After careful consideration of the pleadings and submissions by the exparte Applicant and Respondents and the authorities that they cited, the gravamen for determination in this petition is whether the parallel civil and criminal proceedings against the exparte Applicant constitute a violation of his fundamental rights under the Constitution.

12. The rule of the thumb in respect of concurrent criminal and civil proceedings based on similar set of facts and circumstances is that the criminal case ought to proceed unless it could be demonstrated that the prosecution of the criminal case would either result to infringement of the rights and fundamental freedoms of the accused persons or would lead to the contravention of the Constitution.

13. It is trite that a Petitioner who desires the court to give judgment in its favour in a constitutional petition must meets the threshold of the principle of sufficient precision settled in the case of Anarita Karimi Njeru v R (No 1)1979 KLR 154. The principles in Anarita Karimi’s case were also cited by Lenaola J (as he then was), in the case ofStephen Nyarangi Onsuma & Another v George Magoha & 7 Others [2014] e KLR as follows-“…. This court has in the past expressed its concern about the manner in which parties coming before the court and alleging a violation to constitutional rights have presented these cases. As a basic minimum, a Petition is required to cite the provisions of the Constitution which have allegedly been violated, and the manner in which they have been violated and the remedy which he seeks, for that violation. In demonstrating the manner in which they have been violated, a Petitioner should present before the court evidence of the factual basis upon which the court can make a determination whether or not there has been a violation.”

14. It therefore behoves on the Applicant to show the rights alleged to be infringed, as well as the basis of each of each of their grievances. This requirement flows from the provisions of sections 107(1), (2) and 109 of the Evidence Act which require whoever desires any court to give judgment as to any legal right or liability and depended on the existence of facts, to prove that those facts exist.

15. A perusal of the application herein demonstrates that other than plead that there are concurrent civil and criminal proceedings arising from the same subject matter, the Applicant has not pleaded the violation of any article of the Constitution. Unless otherwise proved, the arrest and charging of the Applicant in the criminal case per se has not been demonstrated to be in contravention of the Constitution. In this regard, I am content to cite Republic v Chief Magistrate Criminal Division & another Ex-parte Mildred Mbuya Joel [2014] eKLR, where G V Odunga J held:“The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions 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 by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant 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 open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, 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 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.”

16. Whereas the Applicant has a right not to be subjected to an illegal and/or unwarranted criminal process, the DPP is also under a public duty to ensure that offences are prosecuted and those culpable attended to as the law required. As clearly pointed out hereinabove, the Applicant has failed to demonstrate that the DPP has acted contrary to public interest, the interests of the administration of justice or failed to prevent and avoid abuse of the legal process.

17. Consequently, I find that the termination of the prosecution of the Applicant in the circumstances of the instant case would frustrate, instead of advance, the rule of law. The Applicant’s fear is in my considered view unfounded for the reason that he has constitutional safeguards in respect of his rights even when undergoing the criminal trial where he will be accorded an opportunity to challenge the veracity of the evidence including whether the Interested Party’s claim is purely a civil matter.

18. From the material presented before by the parties, this court finds that:1. Applicant has failed to demonstrate that his constitutional rights have been violated and/ or threatened.2. The application dated October 12, 2021 is without merit and it is dismissed3. Each party shall bear its own costs

DATED AT MERU THIS 12THDAY OF MAY2022T. W. CHEREREJUDGECourt Assistant - KinotiFor Applicant - Mr. Muthomi for Muthomi Gitari & Co Advocates1st,2nd & 3rd Respondents - Ms. MwanikiFor 4th Respondent - Ms. Kungú