[2023] KEHC 25564 (KLR)

Shiels v Office of the Director Public Prosecution & 4 others (Constitutional Petition 2 of 2022) [2023] KEHC 25564 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25564 (KLR)

Republic of Kenya

In the High Court at Malindi

Constitutional Petition 2 of 2022

SM Githinji, J

November 20, 2023

Between

Simon Harold Shiels

Petitioner

and

Office of the Director Public Prosecution

1st Respondent

Attorney General

2nd Respondent

Michael Otieno

3rd Respondent

Mary Akinyi Okoth

4th Respondent

Anthony Otieno Okoth

5th Respondent

Judgment

1. By a Petition dated 27th June 2022 the Petitioner moved this court seeking the following orders; -a.An Order for judicial review order of certiorari for the purpose of bringing into this Court to quash the 1st Respondent’s charge sheet dated 23rd May 2022 presented before the superior court in HCCR Case No. E8 of 2022 (Malindi) Republic -v- Simon Harold Shiels.b.An Order that the arrest (s), charge (s) and impending prosecution in HCCR Case No. E8 of 2022 (Malindi) Republic -v- Simon Harold Shiels based on unfair an improper practice, false evidence, excessive exercise of discretion and subsequent prosecution of the Petitioner is unlawful, illegal and in breach of Articles 22(1), 23, 25 (c), 28, 29, 47 and 50 of the Constitution and is blatant violation thereof.c.A declaration that the action of the 1st Respondent in presenting the charge sheet dated 23rd May 2022 presented before the superior court in HCCR Case No. E8 of 2022 (Malindi) Republic -v- Simon Harold Shiels is an abuse of the legal process and violation of the provisions of Article 157 (11) of the Constitution.d.A declaration that the 3rd Respondents Affidavit presented before the Superior Court in HCCR Case No. E8 of 2022 (Malindi) Republic -v- Simon Harold Shiels is false evidence and is a breach of the Petitioner’s rights to a fair trial.e.A declaration that the 1st and 3rd Respondents by virtue of swearing and presenting the 3rd Respondent’s affidavit are guilty of an offence under the provisions of section 108 of the Penal Code.f.A declaration that by their acts and omissions the 1st, 3rd, 4th and 5th Respondents have violated breached and/or intend to breach the Petitioner’s fundamental rights and freedoms as provided for in the Constitution and thus the Petitioner is deserving of damages to be assessed by this Honourable Court.g.Costs of the petition.h.Such other orders that may be necessary and fit to grant, to secure the Petitioners Constitutional rights.

2. The Petition is anchored under numerous provisions of the Constitution of Kenya, 2010 to wit Article 2(1), 3(1), 10, 22 (1), 25 (A)29 (f), 50, 157 (10), & (11), 160 (1), 165 (3) (d), 258 and 259; and supported by the Petitioner’s affidavit sworn on the even date.

3. The facts leading to the petition as pleaded by the Petitioner are that on 23rd January 2018, the Petitioner was charged with the offence of causing death by dangerous driving in Malindi Traffic Case No. 67 of 2018. Before the same could be determined, the 4th and 5th Respondents sought to obtain letters of administration of Jecinter Njoki (the deceased) who was their mother and the Petitioner’s wife. That suit was discontinued for want of jurisdiction. Subsequently, the Petitioner filed Malindi High Court Succession Cause No. 9 of 2018 which was determined and a certificate of confirmation of grant issued on 16th August 2021.

4. Thereafter, the Petitioner learnt through a letter by counsel for the 4th and 5th Respondents to the 1st Respondent, that the former demanded that the charge preferred against the Petitioner be murder contrary to section 203 as read with section 204 of the Penal Code. Ultimately, the Petitioner was arraigned before this court in HCCR No. E8 of 2022 (the criminal case) for the offence of murder. According to the Petitioner, the said criminal proceedings were influenced by the 4th and 5th Respondents with the sole purpose of ensuring that the Petitioner will not benefit from the estate of the deceased.

5. The Petition is opposed. The 1st and 3rd Respondent filed a Replying Affidavit sworn on 20th February 2023 by the 3rd Respondent, PC Michael Otieno. According to the 3rd Respondent, following a request for review of the decision to charge lodged at the 1st Respondent headquarter offices, the 1st Respondent via their Malindi office wrote to the DCI Malindi and the Petitioner a letter dated 4th March 2022 instructing the opening of an inquiry file into the death of the deceased. Thereafter, the DCI engaged the Petitioner through his advocates on record seeking his attendance on 14th April 2022 for purposes of crime scene reconstruction.

6. The 3rd Respondent averred that although members of the public residing around the crime scene were uncooperative, he managed to secure some new statements in which he established that the Petitioner had attempted to cover up a crime and to interfere with some of the witnesses. According to him, the petition is an attempt by the Petitioner to circumvent the criminal process by raising alarmist statements.

7. In addition, the 1st Respondent filed Grounds of Opposition dated 22nd February 2023 raising six grounds; -1. That it is within the mandate of the Director of Public Prosecutions under Article 157 of the Constitution of Kenya, section 4 of the ODPP Act, 2013 and the Decision to Charge Policy to institute and discontinue criminal proceedings and review a decision to charge. In exercise of the aforestated powers the aforementioned laws and policies do not contemplate that the Director of Public Prosecutions shall require the permission of the petitioner so as to require his acquiescence or acceptance.2. That the DPP in making the decision to charge the petitioner and review the charges against him did not take into consideration irrelevant and/or illegitimate considerations such as the status of the petitioner civil dispute between him and the family members of the deceased in succession causes. The DPP in making the aforementioned decisions considered the evidence and was guided by the relevant laws and policies. Therefore, no basis lies in law to warrant interference with the decision of the DPP.3. That this honourable court ought not to countenance the petitioners abuse of court process after he unsuccessfully opposed before the trial magistrate the application for withdrawal of TR Case (Malindi) No. 67 of 2018 Republic v Simon Harold Shiels. Trial court properly exercising its mind to the issues allowed the prosecution’s application, therefore rendering the matter res judicata in the absence of any revision or appeal.4. That pursuant to section 20 of the Victims Protection Act, 2014 and all other enabling provisions of the law the victims in TR. Case (Malindi) No. 67 of 2018 Republic v Simon Harold Shiels were within their rights to present any information on withdraw and review of the charges for consideration by the DPP.5. That the petitioner’s complaints and requests to the DPP have been addressed fairly on application of the law thereby no discrimination or prejudice has been occasioned whatsoever.6. That the petitioner had notice by dint of section 87 (a) of the Criminal Procedure Code Cap 75 that withdrawal of charges under the said section were not a bar to subsequent charges based on the same facts.

8. The 4th and 5th Respondents filed a response to the petition dated 20th September 2022. According to these Respondents, the Petition is malicious and deliberately filed to drag the disposal of the criminal proceedings. The Respondents denied having any influence in the office of the 1st Respondent and urged the court to dismiss the Petition with costs.

9. The Petition was canvassed by way of written submissions. As at the time of writing this opinion, I could only find submissions for the Petitioner and 1st Respondent which I have summarized as hereunder.

The Petitioner’s Submissions 10. Counsel outlined the circumstances to be considered in deciding whether or not to halt a criminal process as were stated in the case of Paul Stuart Imison & another v The Attorney General & 2 others Petition No. 57 of 2009; and in Benett v Horseferry Magistrates’ Court [1993] ALL .E.R 138, 151, HL. Counsel argued that this court is entitled to intervene where there is a clear imminent violation of an applicant’s right to fair hearing under Article 50 of the Constitution as is in the present case. To buttress this point, counsel relied on the case of Francis Anyango Juma v DPP & another [2012] eKLR.

11. Counsel added that the mere fact that the Petitioner will be subjected to a criminal process where he will get an opportunity to defend himself is not enough reason to allow an unfair trial. According to counsel, the burden was on the prosecution to show by way of evidence that they are in possession of material that discloses a prosecutable case and that criminal process is not used as a tool for settling personal scores. This, he submitted was the position expounded in R -v- Attorney General Exp Kipngeno Arap Ngeny HCCA No. 406 of 2001; Stanley Munga Githunguri v Republic [1986] eKLR; and Kuria & 3 others v Attorney General [2002] eKLR.

1st Respondent’s Submissions 12. Counsel submitted that as provided under Article 157 (6) to (11) of the Constitution and section 14 (5) (b), (c) and (e) of the DPP Act No. 2 of 2013, it is not contemplated that the 1st Respondent shall require the permission of the Petitioner or any other person in institution of criminal proceedings. Counsel added that the 1st Respondent in making the decision to charge the Petitioner and review the charges against him, did not take into consideration irrelevant and or illegitimate factors such as the status of his civil disputes with the deceased’s family.

13. To counsel, the 1st Respondent acted within its constitutional mandate to prosecute and any allegation otherwise ought to be proved. The burden rests with the person making the allegation, in this case the Petitioner. Counsel argued that the Petition did not raise any basis to warrant interference with the 1st Respondent’s decision to charge the Petitioner. Counsel relied on the cases of Regina v DPP exp-parte Manning and another [2001] QB 330; Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR; and Petition No. 6 (E007) of 2022 consolidated with Petition No. 4 (E005) & 8 (E010) of 2022, the Supreme Court of Kenya Edwin Harold Dayan Dande & 3 others v Inspector General of Police & 5 Others.

14. Counsel added that the Petition offends the clear provisions of section 87 (a) of the Criminal Procedure Code. Counsel urged the court to consider the victim’s rights under the Victim Protection Act No. 17 of 2014 and dismiss the Petition to ensure that justice is served to both parties.

15. Having considered the Petition, affidavits, responses, submissions and authorities presented by parties, I find that the following issues arise for determination; -i.Whether the Petitioner’s rights as guaranteed under Articles 22(1), 23, 25 (c), 28, 29, 47, and 50 of the Constitution stands violated in sustaining the criminal case.ii.Whether the remedies sought are valid.

16. In the wording of Article 19(2) of the Constitution ‘the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings’. It is for such reasons that the rights and fundamental freedoms are inherent, to the extent that they are not granted by the State, and can only be limited as provided for by the Constitution.

17. There is also no dispute that the National Police Service is charged with inter alia the duty to carry out investigations into suspected criminal activities and to apprehend those culpable. Further, there is no doubt that the Director of Public Prosecutions exercises the state’s power of prosecution of criminal cases. However, in carrying out their respective mandates, both are subject to the Constitution and other applicable laws.

18. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions. It also stipulates the scope of the mandate 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.

19. To give effect to the above provisions of the Constitution, Parliament enacted the Office of Director of Public Prosecutions Act No 2 of 2013 (‘the ODPP Act’) which provides the guiding principles in prosecution of cases outlined in section 4 as follows:(4)In fulfilling its mandate, the office shall be guided by the Constitution and the following fundamental principles—(a)the diversity of the people of Kenya;(b)impartiality and gender equity;(c)the rules of natural justice;(d)promotion of public confidence in the integrity of the office;(e)the need to discharge the functions of the office on behalf of the people of Kenya;(f)the need to serve the cause of justice, prevent abuse of the legal process and public interest;(g)protection of the sovereignty of the people;(h)secure the observance of democratic values and principles; and(i)promotion of constitutionalism.

20. Courts have, numerous times, dealt with the manner in which the investigative and prosecutorial agents are to discharge their mandates. The Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others [supra], cited to me by counsel for the 1st Respondent, stated as follows: -“(41)Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions of Mauritius [2006] 5LRC 234:these factors necessarily mean that the threshold of a successful challenge is a high one. It is however one thing to conclude that the courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all…In Regina v. Director of Public Prosecutions ex-parte Manning and Another [2001] QB 330, the English High Court said partly at para 23 page 344:At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting, an effective remedy could be denied.Although the standard of review is exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP.(42)The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.In Ramahngam Ravinthram v Attorney General (supra) the Court of Appeal of Singapore said at p. 10. Para 28:however, once the offender shows on the evidence before the court, that there is a prima facie breach of fundamental liberty (that the prosecution has a case to answer), the prosecution will indeed be required to justify its prosecutorial decision to the court. If it fails to do so, it will be found to be in breach of the fundamental liberty concerned. At this stage the prosecution will not be able to rely on its discretion under Article 35(8) of the Constitution without more, as a justification for its prosecutorial decision.”

21. Similarly, the Court of Appeal in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR referred to the Supreme Court of India in State of Maharashtra & Others v. Arun Gulab & Others, Criminal Appeal No. 590 of 2007, where the Court stated:“The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./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 to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it soft-pedal the course of justice at a crucial stage of investigation/proceedings.The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”) are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers.”

22. The Petitioner in this case pleads that proceeding with the criminal case against him is in breach of Articles. 22(1), 23, 25 (c), 28, 29, 47, and 50 of the Constitution.

23. Article 22(1) establishes the Petitioner’s right to file the petition. Article 23 establishes the authority of courts to uphold and enforce the Bill of Rights. Article 25 (c) provides that the right to a fair trial cannot be limited. Article 28 guarantees the right to human dignity. Article 29 further provides that every person has the right to freedom and security which includes the right not be treated or punished in a cruel, inhuman or degrading manner. Article 47 and 50 further provide as follows:47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.50. Fair hearing(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.(2)Every accused person has the right to a fair trial, which includes the right—(a)to be presumed innocent until the contrary is proved;(b)to be informed of the charge, with sufficient detail to answer it;(c)to have adequate time and facilities to prepare a defence;(d)to a public trial before a court established under this Constitution;(e)to have the trial begin and conclude without unreasonable delay;(f)to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;(i)to remain silent, and not to testify during the proceedings;(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;(k)to adduce and challenge evidence;(l)to refuse to give self-incriminating evidence;(m)to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;(n)not to be convicted for an act or omission that at the time it was committed or omitted was not—(i)an offence in Kenya; or(ii)a crime under international law;(o)not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.(3)If this Article requires information to be given to a person, the information shall be given in language that the person understands.(4)Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.(5)An accused person—(a)charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and(b)has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law.(6)A person who is convicted of a criminal offence may petition the High Court for a new trial if—(a)the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and(b)new and compelling evidence has become available.(7)In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.(8)…(9)…

24. It follows therefore that the burden of proof rests with the Petitioner alleging unconstitutional exercise of prosecutorial power by the 1st Respondent. It must also be remembered that Constitutional violations must be pleaded with a reasonable degree of precision. (See Anarita Karimi Njeru -v- The Republic (1976-1980) KLR 1272).

25. The Petitioner alleged that the 1st Respondent’s decision to charge him with murder while the proceedings in the traffic case are pending is an abuse of the criminal justice process. The 1st Respondent on the other hand stated that the traffic case was withdrawn hence the preferred murder charge. A perusal of the lower court’s proceedings on the traffic case produced by the Petitioner reveals that the last time that suit was in court was on 28th October 2021. On that date, the court indicated that the hearing would proceed on 25th February 2022. Evidently, there are no further proceedings to show that the traffic case continued or is still pending. In the circumstances, I am inclined to believe the 1st Respondent which is the office in charge of prosecution of criminal cases. On a balance of probability, it is evident to me that the traffic case was indeed abandoned or withdrawn. Therefore, the Petitioner’s allegations on abuse of court process do not have any basis.

26. Further, the Petitioner was apprehensive that his rights under Article 47 and 50 stands to be violated should the criminal case be sustained. As already established, it is within the mandate of the DPP to instruct the police to conduct investigations on any information or criminal allegations and to subsequently conduct criminal proceedings in court; and in doing so, its independence is guaranteed by the Constitution and the law (See Article 157 (10).

27. It follows therefore that this court can only intervene if there are cogent allegations of violation of the Constitution or the law or in clear circumstances where it is evident that a citizen is being prosecuted for a non-existent offence or an offence unknown to the law. The court can also intervene where it is clear that the DPP has abused or acted in excess of its powers. In addition, the court will intervene in cases where it would be impossible to give the accused a fair trial. The question is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted.

28. In the present case, the Petitioner did not demonstrate that the DPP acted illegally, irregularly or in excess of their powers by opting to charge him with murder. The undisputed allegation is that an offence occasioned by the Petitioner occurred resulting to loss of a life. Whichever charge the DPP prefers against the Petitioner is not for this constitutional court to decide.

29. The Petitioner’s allegations that the criminal case is being used by the 4th and 5th Respondents to score points and deprive the Petitioner of his rights to enjoy the property of the deceased as per the judgment in the succession cause is neither here nor there. The court will consider the evidence that the DPP shall put forth in the criminal case and make a determination therein on merit. In the given circumstances, I see no reason to interfere with the 1st Respondent’s decision to institute the murder charge and to withdraw the charge in the Traffic Case. In other words, the Petitioner has not demonstrated how his constitutional rights have been or will be violated should the criminal case be sustained. He will have his day in court to present his case in the best way he knows how.

30. The outcome is that this Petition is devoid of merit: It is hereby dismissed with no order as to costs.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 20TH DAY OF NOVEMBER, 2023. ...................................S.M.GITHINJIJUDGEIn the Presence of; -1. Ms Mutua for ODPP2. Presence of the Petitioner3. Dr Khaminwa for the Petitioner