[2023] KEHC 22991 (KLR)

Robert v Inspector General of Police & another; Chemweno & another (Interested Parties) (Petition E10 of 2023) [2023] KEHC 22991 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 22991 (KLR)

Republic of Kenya

In the High Court at Eldoret

Petition E10 of 2023

RN Nyakundi, J

October 3, 2023

N THE MATTER OF ARTICLES 47, 50, 157 AND 245 OF THE CONSTITUTION KENYA, 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION AND OR INTENDED BREACH OF ARTICLES 50, 157 AND 159 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION ACY No. 2 OF 2013 AND IN THE MATTER OF THE NATIONAL PROSECUTION POLICY AND IN THE MATTER OF THE INTENDED PROSECUTION/PROSECUTION OF DR. KWENDO JOSEPH ROBERT

Between

Dr, Kwendo Joseph Robert

Petitioner

and

Inspector General of Police

1st Respondent

The Director of Public Prosecutions

2nd Respondent

and

Luka Chemweno

Interested Party

Sylus Limo

Interested Party

Judgment

1. The Petitioner, Dr. Kwendo Joseph Robert filed the petition dated 23/3/2023, against the Inspector General of Police and the Director of Public Prosecutions. The Petitioner seeks the following orders:1. That a declaration do issue that the Respondents have violated and /or are threatening to violate the provisions of Articles 47 and 50 of the Constitution of Kenya, 2010 with regard to fair administrative action, fair hearing, the principles of the Constitution and Article 245 and 157 (11) of the Constitution of Kenya, 2010 on abuse of the legal process coupled with an award of damages to the Petitioner.2. That an order of certiorari do issue to remove to this Honourable Court and quash the decision to prosecute the Petitioner and any charges that may be preferred by the 1st and 2nd Respondents as evidenced by the cash bail receipt dated 28th February, 2023 serial number 1748053 seeking to prosecute the Petitioner over the alleged offence of issuing bouncing cheques.3. That an order of prohibition do issue against the Respondents from proceeding to prosecute and entertaining any criminal trial brought against the Petitioner in respect of issuing bouncing cheques as evidenced by the cash bail receipt dated 28th February, 2023. 4.That costs and interests be granted to the Petitioner.

Petitioner’s Case 2. The grounds upon which this petition is brought are that the Petitioner is a director of Piochem Limited which operates as a chemist operating at Kabuliot House along Uganda Road in Uasin Gishu County. That Piochem Limited Operates a current bank account at Equity Bank Kenya Limited being account No. 0300201313662 which the Petitioner is a signatory.

3. The Petitioner’s case is that the business premises operated by Piochem Limited was broken into and the cheque book of the bank held at Equity Bank of Kenya Limited stolen. The Petitioner deposed that vide a letter he notified that bank of the said theft on 6/2/2023. The Petitioner further deposed that he also notified the police at Eldoret Central Police Station of the theft of the said cheque book.

4. The Petitioner deposed that he obtained a bank statement in respect of the bank account held at Equity Bank Limited and discovered that on 6/2/2023, six cheques all amounting to Kshs.3, 200,000/= had been presented for payment and that all the said cheques were dishonoured for want of sufficient funds. The Petitioner further deposed that he called by the police at Eldoret Central Police Station and he was informed that the Interested Parties herein had filed complaints over the dishonoured cheques which were bow subject of investigations. That on 28/2/2023 while at Eldoret Central Police Station the police informed him that they intended to prefer charges relating to issuing of bouncing cheques and that he granted a cash bail of Kshs.200,000/= to appear before the Eldoret Chief Magistrate’s Court on 9/3/2023.

5. On 4/3/2023, the Petitioner deposed that he was notified by the police in writing that a suspect had been found with some of the cheques and that the police extended his bail to 17/3/2023 and again to 24/3/2023.

6. The Petitioner contends that his intended prosecution and trial would amount to a breach of his right to fair hearing under Article 50 of the Constitution and would be travesty of the Respondents’ powers under Articles 245 and 157 of the Constitution. According the Petitioner, mounting the prosecution is not in the interest of the public as the interests of the administration of justice need to prevent and avoid abuse of legal process for reasons: That the criminal investigations and proceedings are being carried out in breach of his rights under Article 50 of the Constitution. That the alleged offence of issuing bouncing cheques as indicated in the cash bail receipt is unknown in law; the Respondents have converted the Petitioner from a complainant over lost cheques to a criminal offender. That the Petitioner has not been notified of the outcome of his complaint over lost cheques to a criminal offender. That the Petitioner has not been notified of the outcome of his complaint over the stolen cheques and that a clear breach of right to fair administrative action is being occasioned. That the machinery of criminal justice is being used to cause injustice and lastly that the prosecution runs contrary to paragraphs 4 (b) (1) and (2) of he National Prosecution Policy as it has no reasonable prospect of a conviction and that the public interest abhors such prosecution.

7. The Petitioner prayed that a declaration do issue that the Respondents have violated and/ or are threatening to violate the provisions of Articles 47 and 50 of the Constitution of Kenya ,2010 with regard to fair administrative action, fair hearing, the principle of the Constitution and Articles 245 and 157 (11) of the Constitution of Kenya on abuse of the legal process coupled with an award of damages to the Petitioner. The Petitioner also prayed that an order of certiorari do issue to remove into this Court and quash the decision to prosecute the Petitioner and any charges that may be preferred by the 1st and 2nd Respondents as evidenced by the cash bail receipt dated 28/2/2023 serial number 178053 seeking to prosecute the Petitioner over the alleged offence of issuing bouncing cheques. Finally, the Petitioner prayed that an order of prohibition do issue against the Respondents from proceeding to prosecute and entertain any Criminal trial brought against the Petitioner is respect of issuing bouncing cheques as evidenced in the cash bail receipt dated 28/2/2023.

8. The petition is opposed.

The 1st Respondent’s Case 9. The 1st Respondent opposed the petition herein vide the Replying Affidavit sworn on 24/4/2023 by Wesley Kiptanui, a Police Constable of Service Number 102177.

10. He deposed that on or about 28/2/2023, the station received a report of issuance of a bad cheque contrary to Section 316 (a) and 316(a) (4) of the Penal Code. That the same was booked vide OB No. 29/28/02/2023 and he was tasked to investigate the matter together with PC Wilbert Bett.

11. He further deposed that in the course of their investigations, they discovered that sometime around 13/8/2022, the Petitioner and the 1st Interested Party herein into an agreement in which the 1st Interested Party advanced the Petitioner a sum of Kshs.4,400,000 as a loan to boost his business that was run in the name and style of Piochem Ltd. That the Petitioner covenanted to reinvest the money in the business and reimburse the money together with interest as soon as he disposed of his land in Kapseret but in any event the money would be reimbursed before the end of January 2023.

12. He further deposed that on 22/2/2023, the 1st Interested party visited the office of the Petitioner and was issued with the following cheques:a.Cheque No. 312 for Kshs.859,000/=b.Cheque No. 313 for Kshs.152,000/=c.Cheque No.314 for Kshs.660,000/=d.Cheque No. 315 for Kshs.213,000/=e.Cheque No.405 for Kshs.800,000/=f.Cheque No. 406 for Kshs,200,000/=g.Cheque No.616 for Kshs.950,000/=h.Cheque No. 634 for Kshs.375,000/=

13. That the cheques were drawn by Piochem Ltd and were drawn from Equity Bank account No. 0300XXX313662 operated by the aforementioned company. He added that all cheques were signed by the Petitioner herein as the director of Piochem Ltd and not in his private capacity.

14. He further deposed that after cashing the cheques, the 1st Interested Party was notified by his bank that the cheques had been returned dishonoured due to insufficient funds on the drawer’s account. Further that efforts to amicably resolve the situation bore no efforts because the Petitioner became extremely hostile towards the 1st Interested Party leaving him with no further recourse but to report the matter to the police.

15. In a bid to find out his side of the story, he summoned the Petitioner to explain whether he had drawn the cheques and why had the cheques been dishonoured by the bank. That the Petitioner alleged that the pharmacy was burgled into and that some of the company’s property including cheques had been stolen.

16. He then successfully filed an application vide Eldoret CM Misc. App No. E139/2023 seeking for orders to investigate the account and ascertain the true reason why the cheques were dishonoured. He further deposed that he was able to receive the bank statement from Equity Bank Ltd with respect to account No. 0300XXX313662 operated by Piochem Ltd which showed that as at 22/2/2023 when the Petitioner drew the cheques, the account held Kshs.100,200/= which would have been insufficient to satisfy the cheques of Kshs.4,200,000 drawn in favour of the 1st Interested Party. he added that he was therefore satisfied that the reason for dishonouring the cheques was not because they were stolen as alleged by the Petitioner but because of insufficient funds.

17. In view of the foregoing, he was therefore caused to arrest the Petitioner to be charged for the offence of issuing a bad cheque contrary to Section 316 (a) (1) as read together with Section 316 (a) (4) of the Penal Code. That the Petitioner was on the same day released on cash bail to attend Court for plea taking.

18. He further deposed that he later learnt that the Petitioner had filed this instant Petition challenging the investigations and seeking to thwart the intended prosecution. He maintained that he is aware that members of the National Police Service are under Section 24 of the National Police Service Act, required to investigate the commission of offences where there is reasonable basis that a crime has been committed and that it is therefore legal to query how and why the cheques drawn by the Petitioner on behalf of Piochem Ltd were dishonoured.

19. He added that he is yet presented the copy of the investigations file to the 2nd Respondent for purposes of charging and thus the decision to charge is yet to be made. He maintained that the decision to institute criminal proceedings falls squarely within the powers of the Director of Public Prosecution, the 2nd Respondent herein, by virtue of Article 157 (6) (a) of the Constitution.

20. He contended that it possible that the 2nd Respondent may refer the matter to diversion pursuant to the office’s diversion policy and guidelines and such the Petitioner cannot claim to know with certainty the outcome of the 2nd Respondent’s decision to charge.

21. He further contended that Courts shy away from interfering with the mandate of other constitutional offices unless the decision complained of is tainted with irrationality and or illegality which is not the case here. Further that he in the vent that the Petitioner herein is charged in Court for issuing a bad cheque, then investigations, arrest and arraignment of the suspect in Court are known procedures that are not only known but allowed by the Criminal Procedure Act and that there is nothing unconstitutional about it. He maintained that it would be thus unjust and contrary to public opinion for the Court herein to issue an order barring the Respondents from charging the Petitioner as prayed, especially where the evidence is so glaring and so overwhelming.

22. He added that the allegations of his constitutional rights being violated only exist in the mind of the Petitioner and have no been supported by the facts in at hand.

23. In the end, he deposed that the Petitioner herein was filed to thwart a lawful process of bringing the Petitioner to answer for his crimes and it is therefore misconceived, frivolous, vexatious and abuse of the Court process and should be dismissed in its entirety.

The 2nd Respondent’s Case 24. The Petition is opposed by the 2nd Respondent vide the Grounds of Opposition dated 25/1/2023 on the following grounds:1. That there is no legal authority by way of lawful resolution, or any other legal instrument, under the sea of Piochem Ltd duly executed by the known directors and accompanied by the requisite minutes that have been availed before and filed in his Honourable Court authorising the institution of the instant Petition against the Respondents herein with respect to investigations into issuance of bad cheques issued by Piochem Ltd, which is the subject and sole focus of the investigations.2. That there is no legal authority by way of lawful resolution, or any other legal instrument, under the seal of Piochem Ltd duly executed by the known directors and accompanied by the requisite minutes that have been availed before and filed in this Honourable Court authorising the Petitioner to swear the Supporting Affidavit sworn on the 23rd day of March , 2023 on its behalf deponing facts regarding the investigations into the issuance of bad cheques by Piochem Ltd which is the subject and sole focus of the investigations into issuance of bad cheques.3. That the Petition and the accompanying supporting affidavit of Dr. Kwendo Joseph Robert are inadmissible and bad in law and the same should be struck out.4. That under Article 157 (6) and (10) of the Constitution, the 1st Respondent exercises State powers of prosecution and may institute or undertake criminal proceedings against any person without the consent, direction or control of any person or authority.5. That this Honourable Court lacks supervisory jurisdiction to intervene, supervise and direct other Constitutional bodies, the Respondents included, in the of discharging their constitutional mandates.6. That the 2nd Respondent has not yet made the decision to charge as such the allegations of breach of the Petition’s constitution rights are not only pre-emptive and premature but also wholly unfounded.7. That it is possible that the 2nd Respondent, upon review of the evidence, will settle on a decision not to charge or refer the matter for resolution before another forum apart from the criminal Court.8. That the investigations by the 1st Respondent were instituted with the intention to serve justice for the complainant and is without extraneous or ulterior purposes.9. That the Petitioner has not demonstrated a prima facie arguable case on breach of any Constitutional provision or fundamental human right or any other provision of the law the Respondent; or that the Respondent exceeded his jurisdiction, breached the rules of natural justice or considered extraneous matters.10. That the petition is an afterthought, misconceived, unfounded in law, frivolous and a gross abuse of the Court process that furtively intends to delay the prosecution and any consequent criminal process by engaging in frivolous side shows.

The 1stInterested Party’s Case 25. The Petition is opposed vide the 1st Interested Party’s Replying Affidavit sworn on 27/4/2023.

26. According to the 1st Interested Party the petition herein is premature , devoid of merit and an abuse of Court process.

27. He deposed that sometimes in June and August, 2022 he gave the Petitioner herein a friendly loan of Kshs.4,400,000/=. That as repayment of the said loan the Petitioner in June 2022 and February, 2022 respectively issued him with Equity Bank cheques Nos. 000638, 000312, 000313, 000314, 000315, 000405, 000406, 000616 and 000634 of Kshs.200,000/=, Kshs.850,000/=, Kshs.152,000/=, Kshs.660,000/=, Kshs.213,000/=, Kshs.800,000/= Kshs.200,000/=, Kshs.950,000/= and Kshs.375,000/= respectively. However, to his surprise and shock the said cheques were all dishonoured upon presentation to the bank.

28. He then reported the matter to the police who proceeded to investigate the matter and summoned the Petitioner. He further maintained that all the aforesaid cheques were duly signed by the Petitioner herein and added that he has no doubt whatsoever that the signatures appearing in the aforementioned cheques are the Petitioners.

29. He alleged that it is clear that the Petitioner executed a scheme to obtain money from him by false pretences when all along he knew that he had no intention of repaying the same. He further deposed that the issue at hand revolves around fraud and issuance of bounced cheques and that stopping the investigations of such serious matter which in fact has not been concluded would be greatly prejudicial to the integrity of the Criminal justice system.

30. He contended that the Respondents herein have not committed any wrong but are rather discharging their statutory obligations and that the Petitioner ought to allow due process to follow its cause to the very end. He added that the allegations that the Petitioner’s premises were broken into are merely afterthoughts, alarming and sensational calculated at attempting at avoiding criminal responsibility. Further that the Petitioner is therefore calling upon the Court to usurp the powers of the Respondents herein which is definitely unacceptable. He maintained that the Respondents herein are only discharging their legal obligations.

31. He further deposed that the Petitioner herein has failed to demonstrated how his constitutional rights have been infringed.

32. According to the 1st Interested Party, this instant Petition is only calculated at circumventing and short-circuiting due process.

33. The petition was canvassed vide written submissions. The Petitioner through his Advocates, Wambua Kigamwa filed submissions dated 17/7/2023 whereas the 1st Interested Party through his Advocates, Limo R.K. filed submissions dated 25/5/2023. The Respondents however did not file any.

The Petitioner’s Submissions 34. Counsel for the with regard to the nature of the dispute hearing submitted the dispute at hand involves the repayment of a loan and thus civil nature. Counsel contended the intended prosecution and trial of the Petitioner is thus a backdoor attempt by the Respondents and the Interested Parties to recover the alleged loan through criminal process when there exists a comprehensive framework for handing civil disputes. With regard to the dispute at hand being civil in nature, Counsel urged the Court to be guided by the case of Commissioner of Police & Director of Criminal Investigation Department & Another V Kenya Commercial Bank Ltd & 4Others [2013] eKLR and also the case of Lalchand Fulchand Shah V Investments & Mortgages Bank Limited & 5 others.

35. According to Counsel, the criminal investigations and proceedings being carried out, threatened the Petitioner’s right to a fair hearing under Article 50 of the Constitution of Kenya, 2010. Counsel submitted that the Petitioner herein did report a complaint over stolen cheques which report is yet to be acted upon and conclusive finding made by the police. Counsel maintained that the Petitioner herein is yet to be informed about the outcome of the aforesaid complaint but have now converted the Petitioner from a complainant over lost cheques into a criminal offender. Further that the alleged offence of issuing bouncing cheques as indicated in the cash bail receipt is unknown in law. Counsel argued that it would be therefore a travesty of the Respondent’s power under Article 245 and 157 of the Constitution as to mount the intended prosecution is not in the interest and the interests of administration of justice. Counsel urged the Court to be guided by the decision in Walton v Gardener [1993] 177 CLR 378.

36. Counsel further submitted that the intended prosecution runs contrary to paragraphs 4 (b) (1) and (2) of the National Prosecution Policy as it has no reasonable prospect of a conviction, has a consequence of occasioning injustice upon the Petitioner and the pubic abhors such a prosecution.

37. Counsel reiterated that it would be thus an unlawful exercise of prosecutorial powers to not only institute criminal proceedings over aa civil dispute , but to also prosecute an offence that is strange in law. According to Counsel, unless the intended prosecution is prevented, it may result to a loss of the confidence in the integrity of the judicial system. Counsel relied on the Court of Appeal case of Diamond Hasham Lalji & Another V Attorney General & 4 others [2018] eKLR.

38. Counsel also submitted that in the absence of a handwriting expert report on the cheques allegedly drawn by the Petitioner, the Respondents do not have sufficient evidence to mount a prosecution against the Petitioner since they are yet to investigate and making a finding on the Petitioner’s complaints over the stolen cheques. Counsel argued that the Respondents thus fall short of the evidential test envisaged in the National Prosecution Policy. Counsel also relied on the case of Njuguna S. Ndung’u v Ethics & Anti- Corruption Commission (EACC) & 3 Others, [2018] eKLR.

39. Finally, Counsel submitted that this court has the inherent jurisdiction to prevent an abuse of Court and judicial process such as the one intended by respondents. In this regard Counsel cited the case of Joram Mwendwa Guantai v Chief Magistrate Nairobi; Civil Appeal No, 228 of 2003.

The 1stInterested Party’s Submissions 40. With regard to whether the Petitioner’s fundamental rights have been breached, Counsel submitted that the issue at hand revolves fraud and the issuance of bounced cheques. Counsel argued the Respondents herein are doing what they are required under their mandate by investigating the same. Counsel argued that stopping the investigation of such serious matter which in fact has not been concluded would be greatly prejudicial to the integrity of the Criminal justice system. Counsel maintained that the Respondents herein have not committed any wrong but are rather discharging their statutory obligations and the Petitioner thus ought to allow due process to follow it cause to the very end.

41. According to Counsel, the allegations that the Petitioner’s premises were broken into are merely afterthoughts, alarming and sensational and are only calculated at attempting criminal responsibility. Counsel argued that the Petitioner herein is therefore calling upon the Honourable Court to usurp the powers of the Respondents herein which is definitely unacceptable. Counsel maintained that the Respondents as independent bodies are given authority to conduct their own businesses without interference from Court so long as the same does not infringe on the rights and freedoms of an individual. Counsel urged the Court to be guided by the following authorities in support of his submissions; Simon Mwaniki & 2 others V Director of Public Prosecution & 2 others [2021] eKLR, Republic v Director of Public Prosecutions & Another; Mukesh Patel & another Ex parte Warsama Ismail [2019] eKLR and Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR.

42. Counsel further submitted that the Petitioner herein has alleged violation of his rights without specifying how the conduct of the Respondents has resulted in or pose a risk of violation. That Petitioner has not pointed out any right and or fundamental freedom that has been violated. Counsel argued that the investigations have not in any way infringed on the Petitioner’s rights. Counsel maintained that investigations are a fundamental step in the justice chain to ensure that people are not unnecessarily and therefore cannot be said to be a threat to the Petitioner’s right unless the investigations have been conducted unprocedurally and/ or for ulterior motive which is not the case in this scenario. Counsel argued that the Petitioner herein issued cheques drawn on Equity Bank, Eldoret Branch, A/c No. 201313662 on behalf of Piochem Limited knowing well that A/c No. 201313662 had no sufficient funds. Counsel submitted that under Section 316 (a) (1) and 316 (1) (c) of the Penal Code, Cap 63 Laws of Kenya it is a crime to issue a bad cheque. Counsel submitted that the same is under investigation hence no right and/ or fundamental freedom has been infringed.

Analysis and Determination 43. There is only one issue for determination: -a.Whether the Petitioner has demonstrated a violation of his constitutional rights

44. The office of the Inspector General is an independent office with the power to investigate any offence. The Constitution at Article 243 establishes the National Police Service and at Article 245(1) the office of the Inspector– General of the National Police Service is created. Article 245(4) and (5) are relevant to this petition. They provide as follows:-“(4)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(c)the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.(5)Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), shall be in writing.”

45. Section 51 of the National Police Service Act, Cap. 84 provides the powers of a police officer as follows:-“51. Obedience to orders and warrants and detection of crimes, etc.(1)A police officer shall—(a)obey and execute all lawful orders in respect of the execution of the duties of office which he may from time to time receive from his superiors in the Service;(b)obey and execute all orders and warrants lawfully issued;(c)provide assistance to members of the public when they are in need;(d)maintain law and order;(e)protect life and property;(f)preserve and maintain public peace and safety;(g)collect and communicate intelligence affecting law and order;(h)take all steps necessary to prevent the commission of offences and public nuisance;(i)detect offenders and bring them to justice;(j)investigate crime; and(k)apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient ground exists.”

46. In Republic v Commissioner of Police and Another Ex Parte Michael Monari & Another[2012] eKLR, it was observed thus:“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court…As long as the prosecution and those charged with the responsibility of making the decisions to charge or act in a reasonable manner, the High Court would be reluctant to intervene.”

47. The powers of the police to investigate crime were outlined by Warsame, J (as he then was) in Ex-parte Michael Monari (supra) as follows:-“Under Article 157(4) of the Constitution, the Director shall have power to direct police to investigate any information or allegation of a criminal conduct and it is mandatory for the police to comply with any directions or instructions given by the Director of Public Prosecution. Under article 157(10) the Director of Public Prosecution shall not require the consent of any person or authority for commencement of criminal proceedings and shall not be under the direction or control of any person. It is also clear in my mind that the police have a duty to investigate on any complaint once a complaint is made. In deed the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said not to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party. It is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person. It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it. There is no evidence to show that the respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct, which amounts to an offence and on that account is deserving punishment.”

48. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions. It also stipulates the scope of the mandate as follows in sub-articles (4), (6), (10) and (11) as follows: -(4)The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may—(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(b)take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and(c)subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).(10)The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.(11)In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

49. The Court in Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR had the following to say about the role of the Director of Public Prosecutions in prosecuting criminal offences: -25. It is therefore clear that the current prosecutorial regime does not grant to the DPP a carte blanche to run amok in the exercise of his prosecutorial powers. Where it is alleged that the standards set out in the Constitution and in the aforesaid Act have not been adhered to, this Court cannot shirk its Constitutional mandate to investigate the said allegations and make a determination thereon. To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and above all, the Constitution itself. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that:the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…….. In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.

50. Mumbi Ngugi, J (as she then was),in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Others (2014) eKLR stated that:The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…

51. The Court in Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLR dealt with several instances where a Court may intervene and stop a prosecution. They include where: -(i)There is no ostensible complainant in respect to the complaint;(ii)The prosecution fails to avail witness statements and exhibits without any justification;(iii)There is selective charging of suspects; or(iv)An Advocate is unfairly targeted for rendering professional services in a matter.

52. Flowing from the above it is clear that as creatures of the Constitution, the Respondents can only perform their duties within the confines of the Constitution and the law and Court will only interfere if a Petitioner sufficiently demonstrates the stifling of or threats of infringement of rights, fundamental freedoms, the Constitution and/or the law by the investigative and prosecutorial agencies.

53. From the pleadings on the record, it is clear that the Petitioner filed this instant petition alleging violation of his Constitutional rights under Articles 47 and 50 of the Constitution of Kenya, 2010. From the chronology of facts herein, it is evident that there are on going investigations in view of cheques that were allegedly issued to the 1st Interested Party by the Petitioner herein as a director of Piochem Limited that allegedly bounced.

54. The police are thus constitutionally mandated to carry out investigations upon being in receipt of any complaint, make findings of their own before forwarding their investigative report to the 2nd Respondent herein who then makes the decision of whether to charge the suspect or not. The Petitioner save for highlighting that his fundamental rights and freedoms are likely to infringed has not furnished this Court with evidence to demonstrate how his rights under Articles 47 and 50 of the Constitution have been breached are likely to be breached by Respondents.

55. In the present case it also evident that the Petitioner herein is yet to be charged and thus cannot argue that offence that he likely to be charged with is unknown in law. A cash bail receipt is not a charge sheet and thus cannot be used as a measure to gauge whether an offence in known in law or not. Being arrested and being subjected to a lawful process on suspicion of crime is not a violation of Constitutional right in itself. In the instant case I am satisfied that the petitioner has not put forth a prima facie case of malafides, malice, improper motive, against either of the respondents with regard to this petition. I am of the considered view that the factual matrix appearing from the affidavits and annexed document do not exclude the reasonable possibility of a proper and valid decision by the National Police Service a creature of the constitution in Article 244 to investigate the petitioner including to recommend a prosecution by the Director of Public Prosecution under Article 157 (6) & (7) of the Constitution. It is trite as expounded by the court in the persuasive case of Monaghan v DPP unreported High Court (IR) 14th March, 2007. The court dealt with the special protection enjoyed by the DPP guaranteed universally in the various National and International Legal Instruments. In this regard the court stated:“In fulfilling his function, the Director of Public Prosecution is not to be obliged to give reasons for his decision as to whether to prosecute or not unless it can be demonstrated that such a decision was made in bad faith or under the influence of an improper motive or policy; The State (McCormack) v. Curran [1987] I.L.R.M. 225. Partly, the reasoning behind the series of decisions which later upheld that principle may be based on public policy in the sense that for reasons to be given as to why a prosecution should not be initiated, for instance due to lack of evidence, or the loss of evidence, such a declaration might undermine the presumption of innocence in favour of the accused. In addition, an extra administrative burden might be unjustifiably thrust upon the office of The Director of Public Prosecutions in explaining, and then defending, every decision made pursuant to the powers vested in the office by the Prosecution of Offences Act, 1974. Once there is a reasonable possibility that a valid decision has been made by the Director not to prosecute, or to prosecute, a decision by the Director is not reviewable by the High Court; H v. D.P.P. [1994] 2 I.L.R.M. 285. The Director is not exempt from the general constitutional requirements of fairness and fair procedures. The proof of the absence of such principles in any decision made by the Director of Public Prosecutions cannot be gathered through a speculative application for discovery; Dunphy [a minor] v. D.P.P. [2005] I.E.S.C. 75. There must be, at the least, evidence suggestive of an impropriety before the court would allow a proceeding for discovery to be initiated against the Director of Public Prosecutions. An exception may arise where a decision has been communicated to an accused person that they will not be prosecuted but where that decision has been changed in favour of prosecution without the existence of any fresh evidence; Eviston v. D.P.P. [2002] 3 I.R. 260. In that case the applicant was told that she was not to be prosecuted in respect of a fatal road traffic accident but, following the receipt of a letter, an internal review was initiated which caused the decision to be reversed. It had been explained by the Director of Public Prosecutions that an internal review had caused the reversal of the decision. The Director cannot be called upon to explain his decision or to give the reasons for it or to explain the sources of information on which it is based. But, where a decision has been communicated and then withdrawn, the absence of fair procedures may make the decision reviewable. It would be otherwise where the review was conducted within the internal administration as a means of checking files and the correctness of decisions reached thereon, and only communicated when a final decision had been made”

56. The invalidity of a decision by the respondents must be established by the petitioner and cannot be presumed. It would be consistent with the constitution if a court will exercise its supervisory jurisdiction in proceedings before the National Police Service and the Director of Public Prosecution properly constituted for a mere allegation by the petitioner to render the decision reached to have any legal effect upon the rights and duties in enforcing public policy. A decision by the respondents is an extremely broad function used to cover virtually all actions taken in the exercise of Public law powers legislated by parliament within the context of the law. It is therefore not the duty of the court except in very clear circumstances to impair the performance of a co-executive constitutional function. The distinguishing feature of this case is a criminal element of the legal instruments duly presented for payment and without any substantive explanation the did not meet the test of the definition of a cheque as known in law as a mode of settling the payment. Whether in the particular circumstances of this case fair procedures were not in fact observed is a difficult question which was never answered by the petitioner. From the point of view of this court the writs of certiorari, prohibition or mandamus are not available to impact on the validity of the decision by the 1st respondent to proffer charges provided for under the penal code, let alone to freeze the investigations by the 1st respondent. I confess in the sense of this petition the reliefs under the constitution had not ripened to result for an interference with the judicial process properly legislated by parliament to govern the affairs in the administration of justice.

60. For those reasons the philosophy and the underlying principles upon which this court exercises judicial review jurisdiction to grant judicial remedies in Article 23 of the Constitution by dint of the law have not ripened to be granted to the petitioner. The entire petition is just suspect in relation to the applicability of the fundamental rights and freedoms guaranteed by the 2010 constitution. It is sufficiently good for dismissal with costs to the respondents.

61. It is so ordered.

DATED SIGNED AND DELIVERED AT ELDORET THIS 3RD DAY OF OCTOBER, 2023. R. NYAKUNDIJUDGEIn the Presence ofMr. T. Mogambi for the Petitionerwakigamwa@yahoo.com, uasingishu@adpp.go.ke