[2020] KEHC 461 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. E 361 OF 2020

IN THE MATTER OF ARTICLES 2(1), 2(2), 2(4), 3(1), 10(1), 10(2), 19, 20(1), 20(2), 20(3), (b), 21(1), 22(1), 23(1), 24(1), 165(b), 258(1) & 259 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF VIOLATION AND CONTRAVENTION OF THE PETITIONER’S RIGHTS AND FUNDAMENTAL FREEDOMS ARTICLES 25(c), 27(1), 27(2), 27(4), 28, 29(a)(b)(d), 31, 35, 40(1)(3), 47(1)(2), 49(1)(a)(c)(d)(h), 50(2 & 4), 51, 73, 73(2)(b) and 75(1) OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS AND FUNDAMETNAL FREEDOMS (PRACTICE AND PROCEDURE RULES, AS READ TOGETHER WITH CHAPTER FOUR OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE ALLEGED VIOLATION BY THE DIRECTOR OF CRIMINAL INVESTIGATIONS AND THE INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE, CONTRAVENTION OF THE CRIMINAL PROCEDURE CODE CAP 75, LAWS OF KENYA, NATIONAL POLICE SERVICE ACT CAP 84 AND THE NATIONAL POLICE STANDING ORDERS

IN THE MATTER OF THE ALLEGED VIOLATION BY THE DIRECTOR OF PUBLIC PROSECUTIONS, THE OFFICE OF THE DIRECTOR OF PUBLIC OF PROSECUTIONS ACT NO.2 OF 2013, THE CODE OF CONDUCT AND ETHICS FOR PUBLIC PROSECUTORS REVISED, 2015 AND THE GUIDELINES ON THE DECISION TO CHARGE 2019

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTION 4(2, 3 & 4) OF THE FAIR ADMINISTRATION ACT

IN THE MATTER OF THE ALLEGED VIOLATION OF THE PETITIONER RIGHTS UNDER SECTION 45 OF THE LAW OF SUCCESSION ACT, CAP 160 LAWS OF KENYA

IN THE MATTER OF THE EVIDENCE ACT CAP 80, LAWS OF KENYA

BETWEEN

SARAH WAIRIMU KAMOTHO.................................................. PETITIONER

VERSUS

DIRECTOR OF CRIMINAL INVESTIGATIONS.............1ST RESPONDENT

THE INSPECTOR GENERAL OF POLICE.......................2ND RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS.............3RD RESPONDENT

THE ATTORNEY GENERAL...............................................4TH RESPONDENT

IN THE HIGH COURT, CRIMINAL DIVISION AT

MILIMANI HIGH COURT IN NAIROBI..........................5TH RESPONDENT

DIRECTIONS

1. The Petitioner herein filed this Petition together with Notice of Motion dated 3rd November 2020 seeking several prayers.

2. On 6th November 2020 the Notice of Motion was certified urgent and direction as regards service and filing responses were given by this Honourable Court.

3. On 30th November 2020 when this mater came up for mention the Petitioner’s counsel sought the following orders:-

a) That pending hearing and determination, inter partes, of the application, an order be issued staying the criminal proceedings against the Petitioner in High Court Criminal Case No. 60 of 2020 Republic vs. Sarah Wairimu Kamotho Cohen and another.

b) That pending hearing and determination, inter partes, of the application, an order be issued calling for the Court file in High Court Criminal Case No. 60 of 2020 Republic Vs. Sarah Wairimu Kamotho Cohen and Another to this division.

c) That this Honourable Court be pleased to certify that the Petition herein raises substantial questions of constitutional law, and forthwith refer the case to His Lordship the Honourable Chief Justice, for appointment of a bench of an uneven number of Judges being not less than three (3) judges of the High court, pursuant to Article 165(4) of the Constitution of Kenya 2010.

4. The Petitioner’s Counsel urged that he had complied with the Court’s direction and served all the parties as directed between 9th November 2020 and 10th November 2020. However there was no compliance on part of the Respondents within the timelines given by this Court.

5. The Petitioner’s Counsel urged that on 29th November 2020 the 3rd Respondent, ODPP filed a Replying affidavit, and that the 4th Respondent, the office of the Attorney General filed grounds of opposition on 30th November 2020.

6. The Petitioner’s Counsel state that following the service of extracted orders of this Court, on 19th November 2020 when Criminal Case came up for hearing, the 1st, 2nd and 3rd Respondents sought orders from the 5th Respondent to permit them to file 16 witnesses, statements and 17 documents which they had not filed for 14 months since the matter commenced, which the Petitioner’s counsel opposed; urging the Respondents should not be allowed to regularize the hearing. The petitioner contend that the Court took position that no order of stay had been granted and proceeded as if the present petition do not exist. This then forced the Petitioner to file a supplementary affidavit on 20th November 2020.

7. The Respondents attempted to serve further affidavit which the Petitioner refused to receive.

8. It is Petitioners’ contention that her constitutional rights are being violated and as such prays that this Court do stay the proceedings before the 5th Respondent.

9. The Petitioner further pray that the court do consider the reasons raised in the application and refer this matter to His Lordship the Honourable Chief Justice to empanel a bench of not less than three (3) Judges to hear and determine the matter.

10. The Counsel appearing for 1st, 2nd and 3rd Respondents is opposed to the Petitioner’s application and in doing so, filed a Preliminary Objection dated 27th November 2020 and Replying Affidavit dated 27th November 2020. The 1st, 2nd and 3rd Respondents in their Preliminary Objection urge that the petition raises matters that are sub-judice and res-judicata; that this court has no jurisdiction to grant an order in a matter that is pending before a Court of concurrent jurisdiction nor grant reliefs and orders in a matter pending before a Court of competent and concurrent jurisdiction.

11. The 1st – 3rd Respondents’ position in the matter is therefore this Court has no jurisdiction to handle issues, that it is being invited to deal with, thus the order of stay of the criminal proceedings against the Petitioner in High Court Criminal Case No. 60 of 2020 Republic vs. Sarah Wairimu Kamotho Cohen and Another and for an order calling for the Court file in High Court Criminal Case No. 60 of 2020 Republic Vs. Sarah Wairimu Kamotho Cohen and Another.

12. It is 1st – 3rd Respondents contention that it matters not, that this is a constitutional court as the jurisdiction exercised by this court is the same as that of the Judge in the Criminal Proceedings before the 5th Respondent.

13. It is further submitted that this Court cannot pursuant to Article 165(6) and (7) of the Constitution purport to exercise supervisory jurisdiction over a court of concurrent jurisdiction.

14. On issue of empanelling of a bench, it is 1st – 3rd Respondents contention, that the allegation regarding infringement, violation of fundamental rights, the same can be urged before the trial Judge in the criminal matter as the court is also vested with power to hear and determine such violations. The 1st – 3rd Respondents urged this Court to resist the temptation to oust the jurisdiction of the trial judge.

15. The 1st – 3rd Respondents content that the first issue on jurisdiction should be dealt with first. The other subject orders can be addressed thereafter.

16. The 1st – 3rd Respondents further stated that no substantial question of law has been raised in the Petition to justifying certification of the Petition as sought. It is urged all questions raised can be dealt with by the trial Judge.

17. The 1st – 3rd Respondents submitted that they have no objection to the 1st and 2nd proposed interested parties being enjoined in this petition, so that the Court can deal with the issue of jurisdiction in their presence.

18. The counsel for 4th and 5th Respondents stated that she filed grounds of opposition of the application dated 26th November 2020 and rely on the same. She also associated herself fully to the submissions by Counsel for 1st – 3rd Respondents on the issue of jurisdiction.

19. She further urged the application has not established a prima facie case nor has the Petitioner established the prejudice that will be suffered if orders sought are declined.

20. The Counsel for 1st and 2nd proposed Interested parties Barnard Cohen and Miss Sharon Van Tienhoven - Cohen urged that, the 1st proposed Interested Party is a co-executor of the deceased will whereas the 2nd proposed interested party is said to be a beneficially of the deceased estate Tom Cohen. The Petitioner is alleged to be seeking access to control assets to be bequeathed to certain parties and that these proceedings are of great interest to the 1st and 2nd Proposed Interested Parties and that the joinder of the two would assist the court in determination of the matter.

21. Mr. Shadrack Wambui, Advocate for proposed 3rd Interested Party Gabriele Van Straton Cohen, made an oral application for joinder, of Gabriele Van Straton Cohen being a sister to the deceased Tom Cohen; whose murder is alleged to have been committed by the petitioner herein and who is facing criminal proceedings before the 5th Respondent.

22. The 3rd proposed Interested Party herein urges the Petitioner herein seeks to stay proceedings before the 5th Respondent by seeking conservatory orders staying the proceedings so as to stop proceedings for murder of Tom Cohen. The three proposed Interested Parties contend that they are victims and have a stake with the proceedings before this Court. The proposed Interested Parties, urged they are beneficiaries of the deceased estate Tom Cohen.

23. The proposed Interested Parties have demonstrated that they have identifiable stake in the proceedings before this Court.

24. The Petitioner’s Counsel is opposed to the application for joinder urging the proposed interested parties are after the deceased properly and contends that this is not a forum for joinder of the proposed parties without a formal application.

25. On issue of jurisdiction the Petitioner concede that issue must be resolved first.

26. Having considered the counsel rival submissions and the issue raised herein I proceed in the interest of substantive justice to issue directions as follows:-

A. (i) In pursuance of Rule 7(2) of the Mutunga Rules; Article 159(2)(a)(b)(d)(e), Article 47(1) and Article 50 of the Constitution the proposed Interested Parties herein are joined to these proceedings as follows:-

Mr. Bernard Cohen - 1st Interested Party

Miss Sharon Van Tienhoven – Cohen – 2nd Interested Party

Gabriele Van Straton Cohen - 3rd Interested Party.

ii) The joinder of the 1st, 2nd and 3rd Interested Parties is for the time being limited to participation on the issue of jurisdiction of the Court at this stage so as to afford them fair hearing.

iii) The 1st, 2nd and 3rd Interested Parties to file and serve their responses limited to (ii) above within 7 days from the date hereby and serve within the same period.

B. i) The 1st, 2nd and 3rd Respondents to file submissions with regard to their Preliminary Objection dated 27th November 2020 within 14 days from today and serve within the same period.

ii) The Petitioner and other Respondents as well as Interested Parties to file submissions in response (if need be) within 14 days from the date of service with the 1st, 2nd and 3rd Respondents’ submissions.

iii) Prayers sought herein in the application dated 3rd November 2020 to await the outcome of the 1st – 3rd Respondents Preliminary Objection on this Court’s jurisdiction.

iv) Mention on 19th January 2021 to confirm compliance.

Dated, Signed and Delivered at Nairobion this1stday ofDecember, 2020.

………………………

J. A. MAKAU

JUDGE