[2014] KEHC 6493 (KLR)
The court found that the dispute arose from ongoing land cases in the ELC Division, with the rights of the parties yet to be conclusively determined. The court held that while the Director of Public Prosecutions has constitutional authority to prosecute, this discretion must be exercised in the public interest and...
Source-derived case information.
- Citation
- [2014] KEHC 6493 (KLR)
- Parties
- Applicant: Stephen Mungania; Applicant: Isaa Mangushia; Applicant: John Kamau; Applicant: Stanley Mwatha; Applicant: Richard Okello; Respondent: Director of Public Prosecution; Respondent: Director of Criminal Investigations; Respondent: Arthur Mwaniki Gakuya; Respondent: Chege Mugo t/a Haraka Timber Ltd; Respondent: P.D. Wachira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 376 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
- Outcome
- Petitioners granted conservatory orders restraining arrest or prosecution in relation to the disputed properties.
- Judges
- DAS Majanja
- Legal Topics
- Abuse of Process, Prosecutorial Discretion, Interim Injunctions, Land Disputes, Civil and Criminal Overlap
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mungania
Applicant
Isaa Mangushia
Applicant
John Kamau
Applicant
Stanley Mwatha
Applicant
Richard Okello
Applicant
Director of Public Prosecution
Respondent
Director of Criminal Investigations
Respondent
Arthur Mwaniki Gakuya
Respondent
Chege Mugo t/a Haraka Timber Ltd
Respondent
P.D. Wachira
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the respondents should be restrained from arresting or charging the petitioners in relation to the disputed properties pending determination of civil suits.
- 2 Whether the exercise of prosecutorial discretion by the Director of Public Prosecutions in this context would amount to abuse of process.
- 3 Whether the existence of parallel civil proceedings justifies the grant of conservatory orders restraining criminal prosecution.
Ratio Decidendi
The court found that the dispute arose from ongoing land cases in the ELC Division, with the rights of the parties yet to be conclusively determined. The court held that while the Director of Public Prosecutions has constitutional authority to prosecute, this discretion must be exercised in the public interest and not as a tool for harassment or to circumvent civil proceedings. Given the existence of interim orders in the civil cases and the risk of conflicting outcomes, the court exercised its jurisdiction to restrain the respondents from arresting or charging the petitioners and interested parties in relation to the disputed properties, unless otherwise directed by the civil court. This...
Court Disposition
Petitioners granted conservatory orders restraining arrest or prosecution in relation to the disputed properties.
Orders
- The respondents are restrained from arresting and/or charging the petitioners and/or the interested parties and parties involved in civil disputes concerning Mutarakwa Road Jua Kali – Kariobangi South unless otherwise directed by the Court acting in the Civil Cases filed in relation thereto upon an appropriate...
- This ruling shall be brought to the attention of the Presiding judge in the ELC Division and in particular in ELC No. 439 of 2013.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 376 OF 2013
BETWEEN
STEPHEN MUNGANIA ………………....................................……… 1ST PETITIONER
ISAA MANGUSHIA …………………..................................………... 2ND PETITIONER
JOHN KAMAU ……….……..…….................................…………… 3RD PETITIONER
STANLEY MWATHA ……………………...................................…... 4TH PETITIONER
RICHARD OKELLO ……………………...................................……. 5TH PETITIONER
AND
DIRECTOR OFPUBLIC PROSECUTION ….....…………..…..... 1ST RESPONDENT
DIRECTOR OFCRIMINAL INVESTIGATIONS …........……….. 2ND RESPONDENT
AND
ARTHUR MWANIKI GAKUYA …...................................…1ST INTERESTED PARTY
CHEGE MUGO T/AHARAKA TIMBER LTD ………..… 2ND INTERESTED PARTY
P.D. WACHIRA ............................................................... 3RD INTERESTED PARTY
RULING
1. I have given the parties the opportunity to resolve this matter but without avail.
2. I have considered the matter and in my view it arises from various land disputes concerning premises in Mutarakwa Road Jua Kali. The plots in these are subject to various suits existing in the ELC Division of this court particularly HCCC 439 of 2013, HCCC 40 of 2012 and HCCC 721 of 2006 and others which have not been identified. These cases have not been determined hence the parties are in a situation where there rights are yet to be determined conclusively by the court.
3. It is in this light that I see these proceedings. The petitioners seek orders to restrain the respondents from arresting, summoning and or preferring criminal charges against them in relation to the matter concerning the suit properties.
4. Whereas I am alive to the fact that the Director of Public Prosecutions has the authority under Article 157 to investigate and prosecute offences, Article 157(11) states that this discretion must be used in the public interest and with regard to ensuring that there is no abuse of the legal process.
5. It is not uncommon to find in the courts matters where there are land cases and criminal cases going on together but unless the underlying issues are resolved the allegations and counter allegations or criminal conduct will continue to consume the court’s time and resources.
6. As a result I am inclined to exercise my jurisdiction to restrain the 1st and 2nd respondents from prosecuting and/or arresting any of the parties herein on account of the properties in dispute.
7. My reason is fortified by the fact that there are interim orders for and against the petitioners and interested parties in the High Court and whether there is disobedience of such orders, the Court should be able to take necessary action when moved appropriately.
8. In the circumstances, I make the following orders;
(i) The respondents are restrained from arresting and/or charging the petitioners and/or the interested parties and parties involved in civil disputes concerning Mutarakwa Road Jua Kali – Kariobangi South unless otherwise directed by the Court acting in the Civil Cases filed in relation thereto upon an appropriate application.
(ii) This ruling shall be brought to the attention of the Presiding judge in the ELC Division and in particular in ELC No. 439 of 2013.
(iii) The Deputy Registrar is directed to investigate the allegation contained in the letter dated 6th August 2013 from Mutisya Ngala & Co. Advocates and report to the Court in 21 days for directions/further orders.
(iv) There shall be no order as to costs.
DATED and DELIVERED at NAIROBI this 17th March 2014.
D.S. MAJANJA
JUDGE
Mr Kurauka instructed by Kurauka and Company Advocates for the petitioners.
Mr Orende instructed by Mbeya and Company Advocates for the 2nd interested party
Mr Ngala instructed by Mutisya Ngala and Company Advocated for the 1st and 3rd respondents.