[2022] KEHC 330 (KLR)

Springboard Capital Limited & another v The Inspector General of Police & another (Constitutional Petition 29 of 2019) [2022] KEHC 330 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 330 (KLR)

Republic of Kenya

In the High Court at Kiambu

Constitutional Petition 29 of 2019

MM Kasango, J

May 5, 2022

IN THE MATTER OF ENFORCEMENT OF CONSTITUTIONAL RIGHTS AND FUNDAMENTAL FREEDOMS

Between

Springboard Capital Limited

1st Petitioner

Wilson Kamau Karanja

2nd Petitioner

and

The Inspector General of Police

1st Respondent

The Director Public Prosecutions

2nd Respondent

Judgment

1. Springboard Capital Limited and Wilson Kamau Karanja the petitioners hereof seek a finding The Inspector General of Police, 1st respondent and the Director of Public Prosecutions, the second respondent breached their constitutional rights in seeking to arrest, charge and prosecute them with offences relating to the sale of propertyL.R. No.Kiambu/Gatuanyaga/1131. They seek order of permanent injunction be issued restraining the respondents from arresting charging or prosecuting them. The said sale of the subject property was to Francis Njage Mwaura, the Interested Party.

2. The petitioners state the 1st petitioner offers Credit and Financial Advisory Services. That business has grown and it has a clientele base of about 2000 customers. It was pleaded that it has established unrivalled reputation and good will amongst its clients. It offers loans to its customers which are secured by motor vehicle logbooks, title deeds, salary check-off and share certificates amongst others. That in that regard, it granted a loan to its customer, namely, Tabitha Wahu Njihia (Tabitha), which loan was secured by title L.R. No. Kiabu/Gatuanyaga/1131 (the subject property) which was in the name of James Njihia Njenga (James). That James guaranteed the loan issued to Tabitha. The petitioners assert that charge over the subject property was registered. Tabitha however failed to repay her loan and after demand to repay was made to both Tabitha and James and after issuing statutory notices to sell the (charged) subject property were issued to James the 1st petitioner was served with a court order to halt the auction of the subject property.

3. That order stopping the auction of the subject property was made in a civil case being Chief Magistrate’s Court Thika Civil Case No. 120 of 2018. In that Thika Magistrate’s Court case, James alleged that his title document of the subject property went missing in the year 2017. He therefore pleaded in that case that he did not charge his property to the 1st petitioner. Judgment in that case was in favour of James. The Thika Chief Magistrate’s Court by its judgment dated 4th July, 2019 made a finding that James had not charged his property to the 1st petitioner.

4. The petitioners averred that they sold by public auction the subject property to the interested party on 24th April, 2019. That following the Thika Magistrate’s Court judgment the Interested Party demanded from the petitioners a refund of the payment he made on purchasing the subject property. James also following the Thika Magistrate’s court judgment demanded from the petitioners his original title documents of the subject property. The petitioners through the affidavit in support of the petitioner deponed that: -“That the borrower, Tabitha Wahu Njirhia, the guarantor James Njihia Njenga and the purchaser the Interested Party herein are all hell bent on harassing us to secure their civil position using the police without undue regard to our rights as an innocent financier caught in between a duel they know nothing about.”

5. The above deposition follows the filing of criminal complaint by the interested party. Following that complaint, the petitioners deponed the 2nd petitioner was summoned by the police and was released on a cash bail of Kshs.50,000. The 2nd petitioner was set to be arraigned and to be charged with criminal offence(s) relating to the auction/sale of the subject property.

6. It is the petitioner’s case that it had lawful and legal right to sell the subject property. That in seeking to charge and prosecute the petitioners the respondents were taking sides in a civil dispute and were allowing themselves to be used by the interested party in order to put pressure on the petitioners to refund the interested party the purchase price of the subject property.

7. The petitioners have in their written submissions averred that the respondents had breached their constitutional rights under Article 19, 20, 22 and 23. These rights according to the petitioners have been breached by the respondents’ threat to arrest and prosecute the petitioners.

8. The petitioners also stated that their rights under Article 27 and 28 of the Constitution had been breached. The petitioners supported that submission by stating:-“The constitution provides for the petitioners to be protected against any violation against his (sic) rights and fundamental freedoms. The respondents have brandished state power against the petitioners by their adverse actions and hence house violated the petitioners’ rights as a charger.”

9. The petitioners also submitted that the respondents had wrongly exercised their power, more particularly the prosecutorial power under Article 157 of the Constitution, in seeking to prosecute the petitioners.

10. Further, the petitioners submitted that the respondents had violated their right to fair administrative action under Article 47 of the Constitution. In support of that pleading, the petitioners submitted:-“The respondents are irrationally and unreasonably using their administrative powers to confer charges against us to settle what is clearly within the preview (sic) of civil dispute as opposed to a criminal dispute as between us and interested party in violation of our rights protected under Article 47(1) of the Constitution. The respondents’’ actions are tainted with illegality which the honourable court should not countenance.”

11. The petitioners cited cases in support of their petition. In the case High Court Miscellaneous Application No. 206 of 2014 Republic vs. Director of Public Prosecutions which they relied on the court’s holding was that criminal prosecution which is commenced in the absence of proper factual foundation is always suspect. In the case High Court Miscellaneous No. 36 of 2014 Patrick Gahcoka vs. Director of Public Prosecutions the court held that it is not the purpose of criminal investigation or criminal charge or prosecution to help individual in the advancement of frustration of their civil cases. In furtherance of their submissions that the respondents were being misused to advance a civil claim disguised as a criminal matter, the petitioners relied on the case High Court Miscellaneous Application No. 206 of 2014 Republic vs. Director of Public Prosecutions where the judge stated:-“In exercising their discretion to the charge, a person both the police and the DPP’s office must take into account and must exercise their discretion on the evidence of sound legal principles.”

12. The petitioners also stated that the 1st petitioner had been a reputable financial institution for 10 years and would suffer irreparable injury if an injunction was not granted. In this regard, the petitioners relied on the definition of irreparable injury set out in the case Paul Gitonga Wanjau vs. Gathuthi Tea Farmers HCCC No 28 of 2015eKLRthus:-“By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, … and the fact that the plaintiff may have a right to recover damages is not objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages.”

13. The petition is opposed by the respondents who relied on the replying affidavit of PC. Christine Naomi Njeri, the Investigating Officer (I.O.) in the proposed criminal prosecution against the petitioners. The I.O. stated that the interested party made a complaint at Thika Police Station on 9th July, 2019 which was reflected in the OB No. 57/07/09/2019. He reported in that complaint that the petitioners with others had defrauded him of his money by selling to him land that had a pending case which was not disclosed to him. That following that complaint being made investigations, were commenced and those investigations established that there were criminal elements attached to the transaction of the sale of the subject property to the Interested Party. Tabitha was consequently arrested and charged with the offence of conspiracy. The 2nd petitioner was also summoned to appear before the police and he was released on police cash bail of Kshs.50,000. 2nd petitioner was due to take plea on 12th September, 2019 in Thika Chief Magistrate’s court in Criminal Case No. 4630 of 2019. That plea was however barred by this Court in this petition cause.

14. The investigating officer denied that that respondents were being directed, manipulated or controlled by the interested party. She also denied the allegation that the respondents had violated or threatened to violate petitioners’ rights under the Constitution.

15. The deponents also stated in the replying affidavit that:-“That the intended prosecution against the petitioners/applicants is not actuated by malice ill motive or intended to ruin the reputation of the petitioners/applicants but rather actuated after (sic) a complainant made a complaint to the 1st respondent and the said complaint subjected to thorough and impartial investigations.”

16. The petition was also opposed by the interested party. In his replying affidavit, the interested party confirmed that he purchased the subject property at a public auction held on 24th April, 2019. He made the final payment for that purchase to the 1st petitioner on 29th April, 2019 but that despite that payment, the 1st petitioner requested him to enter into another transaction of the purchase of the same subject property whereby the interested party had to make a further payment, this time to Tabitha of Kshs.1million.

17. That on making that further payment, the petitioners released to him title documents of the subject property but on carrying out an official search of the subject property, he confirmed that there was a subsisting court order barring the sale of that property. That following legal advice he obtained he made a formal demand for refund of the purchase price he expended. He also lodged a complaint with the police. He however denied taking any active role in the police investigation of his complaint. He further denied having requested police to obtain a refund from the petitioners on his behalf.

18. The interested party, by his written submissions reminded this Court that the burden of proof on the allegations in the petition lay on the petitioners. He cited the case Diamond Hasham Lalji & Another vs. Attorney General & 4 Others [2018] eKLR thus:-“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.”

19. The interested party also cautioned the court from delving into the facts because those facts rightly should be determined by the trial court handling the criminal trial. On this, the interested party relied on the case cited above Diamond Hasham Lalji & Another vs. Attorney General (supra) as follows:-“In considering the evidential tests, the court should only be satisfied that the evidence collected by the investigative agency upon which DPP’s decision is made establishes a prima facie case necessitating prosecution. At this stage the court should not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That is the function of the trial court.”

20. The interested party after narrating the factual background which led to the intent to prosecute the petitioners submitted that the respondents were justified in arresting and charging the petitioners. That if the respondents had failed to so act, they would have been abdicating their mandate under the constitution. The interested party cited the case Republic vs. Commissioner of Polcie and Another Ex-parte Michael Monari & Another [2012] eKLR as follows:-“It is also clear in my mind that 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.”

21. The interested party further countered the petitioners claim that the respondents were abusing their law enforcement powers by stating that Section 193A of the Criminal Procedure Code provides that concurrent criminal proceedings and civil proceedings arising from the same subject matter is permissible in law. That although that is the position in law, there are instances where concurrent criminal proceedings can be stayed or prohibited where the former is used for the advancement of the latter. Interested party however, submitted that the petitioners had failed to prove their arrest and intended prosecution was improper or unlawful. That therefore, there was no basis for intervention by this Court.

22. The interested party, citing a decision of Justice Mrima, the case Maina & 4 Others vs. The Director of Public Prosecutions & 4 Others (Constitutional Petition No. E106 & 160 of 2021 (consolidated) (2022) KEH 15 (KLR) (Constitutional and Human Rights) (27th January, 2022) (Judgment) stated that commercial transaction can also have a criminal element. This is what Justice Mrima stated:-“… whereas parties are at liberty to engage in private and commercial transactions, that does not preclude the commission of crimes and as such, the police are at liberty to investigate such transactions either when a complaint is lodged or when the police acts on its own motion in a bid to fight crime.113. That is the position I still hold in this matter. In a nutshell, whereas the Land Registration Act, 2021 or any other law may provide remedies in mortgage transactions, that does not preclude the police from investigating the possible commission of crime in the process of the parties’ dealings. The Petitioners ought to have demonstrated how the law was unequally applied to them or how they were discriminated against. That, they failed to do. The parties’ contention under article 27 of the Constitution is, therefore, unsuccessful.”

23. The interested party repudiated petitioners’ allegation that Article 40 had been violated that is the Article that protects the right to property. Interested party submitted that rights under Article 40(6) do not extend to property unlawfully acquired. See the case cited above Maina & 4 Others vs. The Director of Public Prosecutions (supra).

Analysis and Determination 24. I am grateful to the learned counsels’ industry in providing through their written submissions, well researched authorities which revealed the jurisprudence that has developed on the constitutional provisions relating to the office of DPP.

25. In considering the powers of the office of the DPP as they relate to this matter, I shall look at Article 157(4) and (11). Those Articles provide:-“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.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.”

26. It will be seen that DPPhas the power to direct police to investigate a complaint. There is suggestion that that power was violated by the police in that the police took sides and favoured the interested party to recover money from the petitioners. Although the petitioners alleged harassment by the respondents, no such evidence, as rightly submitted by the interested party, was provided to this Court. The respondents through their replying affidavit denied such harassment and because the petitioners had the burden to prove their allegation through evidence, this Court find that no such harassment occurred since it was not proved. There is therefore, no proof that the police in carrying out their mandate to investigate, they in any way assisted the interested party.

27. Following that investigation by the police, is there evidence that DPP improperly invoked his power to prosecute the petitioners? As it will be recalled, Article 157(11) requires DPP to have regard to public interest and needs to avoid abuse of the legal process in invoking his powers. It follows that extent of that Sub-Article that the powers of DPP are not absolute. It is worth considering the Court of Appeal holding in the case Lalchand Fulchand Shah Vs. Investments & Mortgate Bank Limited & 5 Others [2018] eKLR stated:-“In Commissioner of Police & The Director of Criminal Investigation Department & Another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR, this Court pronounced itself regarding that issue when it observed:-“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.”By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic[1985] LLR 3090. ‘It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v. R.[2002] 1ea 205. See also Kuria & 3 Othersv.Attorney General[2002] 2KLR.’”(Emphasis supplied)”

28. The crux of this matter before this Court is whether the petitioners’ prosecution should be prohibited.

29. The petitioners alleged various rights under the constitution were violated by the respondents. Their case is that their prosecution violates Article 47(1) of the Constitution. The petitioners advanced this argument by stating that the respondents violated their rights under Article 47 by irrationally and unreasonably using administrative power. The petitioners said no more to explain the irrationality or unreasonableness of the investigation or prosecution. This is in the light of what was deponed by the respondents that following the filing of a complaint by the interested party and on investigation being undertaken the police found criminal elements in the transaction. How is that decision reached by police and DPP irrational or unreasonable? The petitioners did not enlighten the court on this.

30. Similarly the petitioners failed to prove their prosecution violate their rights of equality and freedom from discrimination under Article 27, or their right to human dignity under Article 28. They also did not prove their right to freedom from detention without trial, freedom from being subjected to violence or all the other violations under Article 29. They too failed to show how the respondents failed to afford them fair administrative action as provided under Article 47.

31. The petitioners failed to bring to this Court any evidence of serious abuse of power by the respondents. The respondents have clearly shown that they properly exercised their mandate as provided by the constitution following the filing of a complaint by the interested party. And the fact that the interested party had made a claim for compensation by the petitioner is no bar to prosecution under the criminal law in view of the provisions under Section 193A of the Criminal Procedure Code which provides:-“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”

32. The petitioners therefore failed to satisfy this Court that DPP’s power ought to be interfered with: See the case Republic vs. Attorney General & 4 Others Ex-parte Kenneth Kariuki Githii[2014] eKLR as follows:-“However, it is upon the ex parte applicant to satisfy the Court that the discretion given to the DPP to investigate and prosecute ought to be interfered with. Such a power ought not to be lightly invoked and it is not enough to simply inform the Court that the intended trial is bound to fail or that the complaints constitute both criminal offence as well civil liability. Nor is it enough to display to the Court the nature of the defence the applicant intends to bring forward in the criminal proceedings. The High Court ought not to interfere with the investigative or prosecutorial powers conferred upon the police or the Director of Public Prosecution unless cogent reasons are given for doing so.”

33. In the end, the judgment of this Court is that the petition fails and it is dismissed with costs. The orders staying the prosecution of the petitioners in Thika Chief Magistrate’s Court Criminal Case No. 120 of 2018 are hereby vacated.

JUDGMENT, SIGNED DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceFor Petitioners : not presentFor Respondents : Mr. KasyokaCOURTJudgment delivered virtually.MARY KASANGOJUDGE