[2023] KEHC 26465 (KLR)

Stephenson v Director of Public Prosecutions & 6 others (Constitutional Petition E207 of 2021) [2023] KEHC 26465 (KLR) (Constitutional and Human Rights) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26465 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E207 of 2021

AC Mrima, J

December 15, 2023

Between

Mark Lloyd Stephenson

Petitioner

and

Director of Public Prosecutions

1st Respondent

The Attorney General

2nd Respondent

The Inspector General of Police

3rd Respondent

Abdirahman Jibril

4th Respondent

Michael Gerad Lynch

5th Respondent

Musa Adam

6th Respondent

Simon Mutuku Mutua

7th Respondent

Judgment

Background 1. Mark Lloyd Stephenson, the Petitioner herein, is an Australian National. He is the Chairman of the Board of Directors of Universal Resources International Limited (hereinafter ‘The Company’) a limited liability Company registered and incorporated in Kenya, whose primary purpose is prospecting and extraction of Minerals from various sites in Kenya.

2. Until their removal on 5th December 2015, Michael Gerard Lynch, Musa Adam and Simon Mutuku Mutua the 5th, 6th and 7th Respondents herein respectively were co-directors in the Company.

3. Between the year 2010 and 2012, the Petitioner invested various sums of money in the Company which he claims was misappropriated and stolen by the 5th 6th and 7th Respondents.

4. Upon confronting the 5th, 6th and 7th Respondents, they turned against the Petitioner. They became aggressive, refused to join any sitting with the Board of Directors, used corrupt means to oppose any the Board’s resolutions and referred to the Petitioner as a ‘stranger’ to the Company in all correspondences.

5. On further confrontation by the Petitioner, the 5th 6th and 7th Respondents intimated to the Petitioner that they would use any means necessary to remove him from the Company.

6. On 16th February 2011, the company resolved to source a bank instrument in the form of bank guarantee or stand-by letter of credit to be used as security for a credit line with Diamond Trust Bank.

7. Subsequently, through a letter dated 20th February 2011 to Kenya Commercial bank, the company removed the 5th Respondent as a signatory for having stolen from the company.

8. The Petitioner, through the letter dated 9th March 2011, protested to the Registrar of Companies misappropriation of funds in the Company by the 5th 6th and 7th Respondents.

9. Subsequently, through a letter dated 11th March 2011, the 5th Respondent wrote to the Registrar of Companies complaining about the appointment of the Petitioner and one Francis Strange as Directors of the Company.

10. The foregoing tug of war drove a wedge even further between the Directors of the Company, the Petitioner and the 5th, 6th and 7th Respondents.

11. Consequently, the Petitioner asserted that the internal wrangles was the reason the 4th Respondent was used to harass and press charges of fraud against him.

12. On 23rd April 2011, at Jomo Kenyatta International Airport, enroute to Australia, Abdirahman Jibril, the 4th Respondent herein, presented the Petitioner with an apprehension order dated 3rd March 2011.

13. The Petitioner was arrested, his passport confiscated and was detained overnight.

14. The following day, the Petitioner was handed back his passport and was released.

15. On 13th March 2014, the Petitioner was again arrested by the 4th Respondent in the company of the 5th Respondent. He was escorted to Central Police Station Nairobi where the 4th Respondent interrogated him. He was later released after yielding to the demand of Police Bond of Ksh. 15,000/- for which no receipt was issued.

16. The following day, the 14th March 2014, the Petitioner presented himself in Makadara Law Courts as imposed by the police bail. The Petitioner’s Advocates objected to his plea taking.

17. Thereafter, the Petitioner was not handed back his passport and no inventory over the same was generated by the 4th Respondent.

18. Subsequently, on 8th April 2014, the Petitioner was arrested by Immigration Officers from Isebania Border Control for travelling through Kenya without proper documentation. He was threatened of expulsion from the Country.

19. It is only on his insistence that the Officers make contact with the Australian Embassy that they confirmed the 4th Respondent was holding his passport.

20. The Petitioner claimed that the 4th and 5th Respondents had organized with the Officers from Isebania Immigration border to have him ejected from the country in order to give the 5th Respondent unfettered control of his company using fraudulent documents.

21. On 14th May 2014, the Petitioner was charged in Makadara Chief Magistrates Criminal Case No. 1334 of 2014 with three counts of the offence of making a false document contrary to section 374(A) of the Penal Code.

22. Upon taking plea, the 4th Respondent yet again refused to hand him his Passport until the Court made an Order to have his release it.

23. On 10th October 2014, the Petitioner wrote to the Principal Immigration Officer against the harassment from one George Mong’are, an officer in charge of Isebania Immigration Office but received no action.

24. On 4th August 2014, the case against the Petitioner in Makadara Chief Magistrates Criminal Case No. 1334 of 2014 was consolidated with Makadara Chief Magistrates Criminal Case No. 2843 of 2012 which the 4th Respondent had registered against one Richard Karikui Githae.

25. The foregoing consolidation resulted in four charge sheets being drawn in, namely; Chief Magistrates Court Criminal Case No. 1693 of 2012 dated 27th March 2012, Chief Magistrates Criminal Case No. 28 43 of 2012 dated 31st May 2012 Chief Magistrates Criminal Case No 1338 of 2014 dated 14th March 2014 and Chief Magistrates Criminal Case No 1338 of 2014.

26. The Petitioner was variously aggrieved by the action of the 4th 5th 6th and 7th’s actions and prosecution hence the instant dispute.

The Petition: 27. Through the Petition dated 22nd January 2021, supported by the Affidavit and Supplementary Affidavit of the Petitioner deposed to 22nd January 2021 and 29th December 2021 respectively, the petitioner sought to claim violation of his constitutional rights.

28. The Petitioner pleaded that during trial of the consolidated cases, the 2nd Respondent had among its witnesses the 5th, 6th and 7th Respondents all of whom did not turn up in Court to testify.

29. It was his case that his testimony in Court, the 4th Respondent stated that he placed s Stop Order at the Airport to bar him from travelling out of the County which greatly inconvenience him until the time when the trial court ordered the investigating officer, Corporal Kipkemboi Langat to vacate the Stop Order.

30. The Petitioner claimed that during his arrest on 13th April 2014, the 4th Respondent did not identify himself as required by law but rather harassed and humiliated the Petitioner.

31. The Petitioner pleaded that during trial the document examiner, PW-6 categorically stated that he had no evidence against the Petitioner.

32. The Petitioner pleaded that in in the consolidated criminal disputes he faced mutating complaints and was not aware exactly who is accusers were to enable him defend himself.

33. He posited that the 2nd Prosecution witness C.I Michira Ndege produced a Prosecution Exhibit 2, a forensic document examination report dated 10th March 2015 which concluded that the 5th, 6th, and 7th Respondents did not make the disputed documents.

34. It was the Petitioner’s case that there was no probable cause for the 5th, 6th and 7th Respondents lodge a complaint with the 3rd Respondent. he further claimed that the 4thRespondnet never conducted comprehensive investigations, if any before instituting the criminal proceedings in The Criminal Case.

35. He posited that on 16th October 2015, the officers of the 1st Respondent submitted that upon conducting an independent review of the case, it became apparent that the case between the Petitioner and the 5th, 6th and 7th Respondents was about ownership of Universal Resources international.

36. He pleaded that at the end of the case on 7th October 2019, the Court acquitted him on all three counts under section 210 of the Criminal procedure Code.

37. The Petitioner stated that the trial magistrate observed that the investigations in the case were one sided and that the dispute was one of ownership of a company which ought to be sorted out as a civil matter.

38. He pleaded that he suit Criminal Case was instituted maliciously and was devoid of facts and wanting in content and as such, the Respondents should be held liable.

39. He averred that the actions of the Respondent violated his freedom of movement and his right to leave Kenya as guaranteed under Article 37 of the Constitution.

40. It was his case further that his right to fair administrative action and the right to be informed promptly in a language that he understands of the reason for his arrest was trampled upon by the actions of the Respondents in violation on his constitutional right under Article 47 as read with section 4 of the Fair Administrative Actions Act and Article 49 as read with Article 50 of the Constitution respectively.

41. The Petitioner posited further that the 4th Respondent arrogated himself the constitutional duty of the 1st Respondent by instituting the criminal proceedings against him, a constitutional mandate of the 1st Respondent.

42. It was his case further that the conduct of the 1st, 3rd and 4th Respondents violated his right to non-discrimination and equal protection and benefit of the law as guaranteed under Article 27 of the Constitution

43. In further protest of the 2nd and 4th Respondents’ conduct, the Petitioner asserted that Article 239(3)(a) of the Constitution forbade them form performing their functions and exercising their powers in a partisan manner.

44. The Petitioner further posited that during the trial, he suffered damages as a result of legal representation and hospital treatment totalling Kshs. 4, 062,000/-

45On the foregoing factual and legal foundation, the Petitioner prayed for the following reliefs;a.A declaration ta the Petitioner was illegally arrested on 23rd April 2011. b.A declaration that the 1st, 3rd and 4th Respondent violated the Petitioner’s right under Article 47 of the Constitution and section 4 of the Fair administrative Actions Act No. 4 of 2015. c.A declaration that the action of the 1st, 3rd and 4th Respondents violated the Petitioner’s rights under Article 27 of the Constitution.d.A declaration that the 3rd and 4th respondent whole arresting the Petitioner violated the Petitioner’s rights under Article 49 of the Constitution of Kenya and Articles 9 and 19 of the International Covenant on Civil and Political Rights.e.A declaration that the 4th Respondent breached Article 17 of the Petitioner’s rights as enshrined under Article 17 of the International Convention on Civil and Political Rights by unlawfully confiscating the Petitioner’s passport.f.A declaration that the 4th Respondent violated the Petitioner’s right under Article 49 of the Constitution and Article 9 and 10 of the International Convention on Civil and Political Rights.g.A declaration that the Petitioner’s rights under Article 50 were violated in Makadara Criminal Case No. 1338 of 2014. h.A declaration that the arrest of the Petitioner by the 4th Respondent on 13th April 2014 was unlawful.i.A declaration that the arrest of the Petitioner by the 4th Respondent on 13th April 2014 was unlawful.j.General Damages for false arrest on 23rd April 2011. k.General damages for unlawful arrest on 13th April 2014. l.General Damages for unlawful detention of the Petitioners Australian Passport No. N.7645239 and property on 13th April 2014. m.Special damages of Kshs. 4,062,000/- (as per paragraph 162 above).n.Interest on (j) (k) (l) (m) and (n) above at court rate until payment in full.o.Costs of the suit.

The submissions 46. The Petitioner further urged his case through written submissions dated 30th May 2022.

47. In demonstrating that his arrest of 23rd Aril 2011 and of 13th April 2014 was unlawful, the Petitioner referred Court to the decision in Mohamed Feisal & 19 Others -vs- Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police Station & 7 Others National Police Service Commission)(2018) eKLR where it was observed;“I’m also tempted to mention that no arrest should be made by a Police Officer without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.”

48. As regards his prosecution, the Petitioner sought to demonstrate that it was malicious by submitting that it remained uncontroverted that as the time of charging him on 14th March 2014, neither the 1st Respondent nor the 4th Respondent had any forensic documents examiner report implicating that he indeed falsely made the documents accused of.

49. He submitted that the 3rd and 4th Respondents did not receive any documentation from the Office of the 2nd Respondent concerning the complaint to enable them investigate the complaint until the 26th April 2016 hence no credible investigations could be done before then.

50. The Petitioner further faulted the propriety of the Charge sheet by submitting that nothing shows that originated from the 1st Respondent. The decision in Africa Spirits Limited -vs- Director of Public Prosecutions & Another (Interested Party) WOW Beverages Limited & 6 Others where it was observed;In performance of his duties, the Directorate of Criminal investigations must exercise deference to other authorities that have been established by statute to fulfil their mandate. See section 64 of the National Police Service Act). In this case, it is evident that there was an element of jurisdictional overreach by the Directorate of Criminal Investigations on matters which are statutorily under the jurisdiction of the Asset Recovery Authority and Kenya Revenue Authority.

51. On the limb regarding violation of his right to fair administrative action, the Petitioner submitted that the decision by the 1st and 4th Respondents to prosecute him without carrying out proper investigations breached his rights under Article 47 of the Constitution as read with Section 4 of the Fair Administrative Actions Act.

52. It was further his case that the failure by the arresting officer to inform him of the reasons for his arrest and the drafting of the charge sheet by the Police Officer as opposed to the 1st Respondent violated his right to legitimate expectation.

53. In conclusion, the Petitioner submitted that he was entitled to the prayers sought and that he should be awarded exemplary damages since the conduct of the Respondents was arbitrary and oppressive. Support to that end was drawn from the decision in Kampala City Council -vs- Nakaye (1971) EA p448 where it was observed;As regards exemplary damages, these are awards on the principle that there has been wanton or oppressive and high-handed conduct by the defendant in respect of which there must be a punishment as a deterrent other who may act in a similar manner.

The 2nd, 3rdand 4thRespondents’ Case 54. The Attorney General, The Inspector General of Police and Abdirahman Jibril opposed the Petition through the Replying Affidavit of Abdirahman Jibril, a former Investigator of the 3rd Respondent at the Directorate of Criminal Investigations Central Police Station, deposed to on 22nd November 2021.

55. He denied directorship of the Company as averred by the Petitioner by deposing that a compliant was lodged to the Registrar of Companies on 9th December 2011 and further by the 7th Respondent to the Central Police Station.

56. It was his case that he did not act in furtherance of the illegal actions of 5th, 6th and 7th Respondents but was duly instructed by then DCIO Central One Mr. Peter Mabeya to take over the conduct of the investigations.

57. He deposed that Milimani Miscellaneous Criminal Application No. 2065 of 2011 was in relation to a totally different matter regarding the freezing of the Company’ bank accounts and no offences of forgeries were subject of his investigations.

58. He deposed that the complaint subject of this dispute was the investigation of making false documents without authority and forgery that was reported at Central Police Station through Occurrence Book of 1st December 2011 by Gerard Director of The Company.

59. He deposed that he registered the case at Makadara Law Courts against the Petitioner and Lloyd Stephenson and Richard Kariuki vide Criminal Case No. 1693 of 2012 but no one took pleas to the charges therein.

60. He deposed that to the contrary the said case was registered for purposes of obtaining arrest warrant against the Petitioner and two co-accused persons and despite the arrest warrant remaining in force, the case was eventually withdrawn under section 87(a) of the Criminal Procedure Code after failing to arrest the suspects.

61. Mr. Jibril deposed further that it was not true that his letters of complaint were never acted upon. It was his case that any illegalities or criminalities alluded to by the Petitioner could not be attributed to him or officers of the 3rd Respondent.

62. It was his case that he was a stranger to the averments regarding transactions that were done DTB bank, the bank guarantee issued and the freezing order issued therein.

63. Mr. Jibril further deposed that the Petitioner’s claims of intimidation and harassment were unsubstantiated. It was his case further the Petitioner was issued with a cash bail official receipt of Kshs.15,000/-.

64. As regards withholding of his passport, he deposed that it was meant to ensure he did not escape out of the country but was immediately released once he took plea.

65. Mr. Jibril further denied the claim that the forensic examination report and stated that the Petitioner was not only charged based on forensic evidence alone but other evidence obtained during the investigations.

66. In response to the Petitioner’s claim that the offence was committed on 14th September 2011, some three months after it was reported, he deposed that the claim was not true since the complaint on the change of shares and introduction of the Petitioner as a Director was lodged on 6th May 2011 by the 7th Respondent, not the 5th Respondent as alleged.

67. In reference to annexture ‘AJ5’ and ‘AJ6’ Mr. Jibril further deposed that contrary to the Petitioner’s claim that his letter of complaint to the 1st and 2nd Respondents was not responded to, it was his case that the Director of Criminal Investigation called for the police Investigation file and it was for forwarded through the County Criminal Investigation vide a letter Ref CID/COM/3/Vol.VI/(31) dated 7th April 2014 where it was directed that the matter proceeds to its logical conclusion.

68. He deposed that there was nothing wrong in consolidation of the charge sheet since the 5th 6th and 7th Respondents were complainants in the three counts.

69. The Deponent stated that the Stop Order complained about by the Petitioner was received by the Immigration Office when the Petitioner was out of the Country. He deposed further that he came back to the country and left at will and no arrest was made by the immigration officers

71. From the foregoing, The Deponent stated that the Petitioner had failed to prove how his constitutional right under Article 37, 47,49, 50 of the Constitution and Article 9, 10 14 and 17 of the International Covenant on Civil and Political Rights had been violated. He urged the Court to dismiss the Petition with costs.

The Submissions 71. In its written submissions dated 5th May 2022, the 2nd, 3rd and 4th Respondents submitted that he totality of the Petition is based on a flawed interpretation of the constitutional and statutory powers, duties and functions of the 2nd and 3rd Respondents.

72. It was their case that Article 157 and the Office of the Director of Public Prosecutions Act No. 2 of 2013 establish and vest the 1st Respondent with prosecutorial powers.

73. With respect to the 2nd Respondent, it was submitted that under Article 245(4)(a) & (b) of the Constitution, it is insulated from external interference in the investigation of offences and enforcement of the law.

74. Based on the foregoing, it was submitted that investigations were commenced following a complaint made to the police by the 5th and 7th respondents. The Petitioner was then arrested and released him on police bail the same day.

75. The Respondents submitted that the Petitioner could not claim that his arrest was unlawful since arrests by a police officer with or without a warrant of arrest are provided for under the law section 21 & 29 of the Criminal Procedure Code.

76. To buttress its position, the decision in Thuita Mwangi & 2 Others v Ethics & Anti-Corruption Commission and 3 Others [2013] eKLR, David Ndulo Ngiali & 2 Others v DPP & 4 Others [2015] eKLR citing Erick Kibiwott & 2 Others v Director of Public Prosecutions & 2 Others (JR No. 89 of 2010) and in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR was referred to where it was observed;“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.

77. It was their submission that upon arrest, the petitioner was charged the following day in Makadara Criminal Case No. 1338 of 2014 with the offence of making a false document contrary to Section 347(a) of the Penal Code and once again released on bond and was acquitted under section 210 of the CPC.

78. The Respondents submitted that the Petitioner was accorded all his rights as an arrested person and as an accused person provided and guaranteed under Article 49 and 50 of the Constitution.

79. The Respondents rebuffed violation of the right to non-discrimination provided for under Article 27 of the Constitution by submitting that it was only discharging gits mandate and to that end, the 1st Respondent cannot be directed either by the petitioner or this Honourable court on who to prosecute, when to prosecute or whether to prosecute or not to prosecute.

80. As regards violation of the right to Fair Administrative Action, the Respondents submitted that the petitioner did not demonstrate how it happened.

81. It was their case that once forgery of documents was reported, the 2nd Respondent directed that the matter be pursued to its logical conclusion.

82. Further to the foregoing, the Respondents submitted that the Petitioner could not claim Malicious prosecution and seek damages for being acquitted on Makadara Criminal Case No. 1338 of 2014.

83. To that end, the Respondents submitted that the Petitioner had not satisfied the requirements for malicious prosecution as was discussed in the case of James Karuga Kiiru v Joseph Mwamburi & 2 others [2001] eKLR. In Muranga -V- Attorney General (1976-80) 1 KLR 1251 in the following way;In proceedings for malicious prosecution, the plaintiff must show: -(1)That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.(2)That the prosecution terminated in the plaintiff’s favour.(3)That the prosecution was instituted without reasonable or probable cause.(4)That it was actuated by malice.

84. In respect to the alleged prejudice suffered as a result of the defective charge sheet occasioned by the three counts the Petitioner was charged with, the Respondents submitted that the technical deficiency in the charge sheet that the petitioner pleaded to was curable under section 382 of the Criminal Procedure Code as a harmless error which did not occasion miscarriage of justice.

85. In rejecting the Petitioner’s claim for damages, The Respondents submitted that he was not entitled since all they did was act within the limits of their constitutional and statutory powers.

86. It was their case further that the Petitioner had not specifically proved the damage sought of Kshs. 4,062,000/- a requirement in special damages. Support was drawn from the Court of Appeal decision in Hahn vs Singh 1985 Kenya Law Reports 716 where it was observed;“…special damages which must not only be claimed specifically but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty of certainty and particularity of proof required depends on the circumstances and the nature of the act themselves”

87. In conclusion, the Respondents submitted that the impugned actions of the 3rd and 4th Respondents were reasonably undertaken in good faith and upon lawful and relevant grounds anchored upon the Constitution and statute law. It was urged that the Petition be dismissed with costs.

The 5thRespondent’s Case 88. Michael Gerald Lynch responded to the Petition through the Preliminary Objection dated 16th May 2022. It was tailored as follows;Take notice that at the hearing of the Petitioner’s Petition, the 5th Respondent will raise a preliminary Objection that the Petitioner’s Advocate is conflicted having acted for the Petitioner, the 4th, 5th 6th and 7th Respondent herein in various engagements subject of some of the orders raised in the Notice of Motion Application, thus his participation as Counsel for the Petitioner will prejudice the 5th Respondent

89. The 5th Respondent did not file written submissions.

Analysis: 90. Having carefully considered the Petition, the responses, the voluminous annextures, the Preliminary Objection, the written submissions and the decisions referred to, there seems to be an issue which ought to be addressed in the first instance. The issue is whether the Petition as presented raises constitutional issues.

91. Although the issue was not formally raised by the parties, this Court has a duty to, in the first instance, satisfy itself in a matter that it is possessed of jurisdiction otherwise it may end up acting in vain.

92. In dealing with the issue, it is imperative to look at what a constitutional issue is.

93. The jurisdiction of the High Court in dealing with Constitutional Petitions is properly invoked once a Petition that complies with the constitutional and legal requirements is lodged. The Court must, therefore, decline any invitation by a Petitioner to deal with an alleged Petition which falls short of the laid down parameters on Constitutional Petitions.

94. Any challenge on the jurisdiction of the High Court to handle a Constitutional Petition ought to be addressed at the onset. In Petition No. E282 of 2020 David Ndii and & 4 Others -vs- The Attorney General & Others, this Court discussed the legal concept of jurisdiction at length. This is what the Court stated: -24. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”. Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.25. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows: -By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.26. That, jurisdiction is so central in judicial proceedings, is a well settled principle in law. A Court acting without jurisdiction is acting in vain. All it engages in is nullity. Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 expressed himself as follows on the issue of jurisdiction: -Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…27. Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR stated as follows: -Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577, as follows;1)……..2)The jurisdiction either exists or does not ab initio …3)Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.4)Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.28. On the centrality of jurisdiction, the Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR stated that: -So central and determinative is the jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings in concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cui-de-sac. Courts, like nature, must not sit in vain.29. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Constitutional Application No. 2 of 2011 In the Matter of Interim Independent Electoral Commission (2011) eKLR held that: -29. Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid down in judicial precedent ….30. Later, in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & Others (2012) eKLR Supreme Court stated as follows: -A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.31. And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated:(44)…. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...

95. Having delimited the concept of jurisdiction above, the Court now returns to the matter at hand; that is whether the Petition raises constitutional issues.

96. Long before the downing of the new constitutional dispensation under the Constitution of Kenya 2010, Courts have variously emphasized the need for clarity of pleadings. That position is echoed.

97. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’) also provide for the contents of Petitions. Rule 10 thereof provides seven key contents of a Petition as follows:Form of petition.10. (1)An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.(2)The petition shall disclose the following—(a)the petitioner’s name and address;(b)the facts relied upon;(c)the constitutional provision violated;(d)the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;(e)details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;(f)the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner.

98. Rule 10(3) and (4) of the Mutunga Rules also have a bearing on the form of Petitions. They provide as follows: -(3)Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.(4)An oral application entertained under sub rule (3) shall be reduced into writing by the Court.

99. Rules 9 and 10 are on the place of filing and the Notice of institution of the Petition respectively.

100. The Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others case (supra) had the following to say on Constitutional Petitions: -Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

101. The South African Constitutional Court in Fredricks & Other vs. MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC), rightly so, delimited what a constitutional issue entails and the jurisdiction of a Constitutional Court. It stated as follows: -The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…

102. In the United States of America, a constitutional issue refers to any political, legal, or social issue that in some way confronts the protections laid out in the US Constitution.

103. Taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or the rest of the Constitution. In any case, the issue in dispute must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.

104. The words of Learned Judge Langa, J in Minister of Safety & Security vs. Luiters, (2007) 28 ILJ 133 (CC) captured the essence of a constitutional issue. The Judge had the following to say: -… When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…

105. Whereas it is largely agreed that the Constitution of Kenya, 2010 is transformative and that the Bill of Rights has been hailed as one of the best in any Constitution in the world, as Lenaola, J (as he then was) firmly stated in Petition No. 236 of 2011 Rapinder Kaur Atal vs. Manjit Singh Amrit (2011) eKLR ‘… Courts must interpret it with all liberation they can marshal…’

106. Resulting from the above discussion, this Court agrees with the position in Turkana County Government & 20 Others vs. Attorney General & Others (2016) eKLR where a Multi-Judge bench affirmed the profound legal standing that claims of statutory violations cannot give rise to constitutional violations.

107. This Court will now apply the foregoing in determining whether the jurisdiction of this Court was properly invoked by way of a Petition that raised at least a single constitutional issue.

108. The Petition has been carefully perused and considered. Its basis is in the manner in which the Respondents variously dealt with the Petitioner especially in coming up and sustaining several criminal cases against him. The criminal cases were all determined in favour of the Petitioner. The background thereof was extensively captured in the Petition.

109. It is the Petitioner’s conviction that the criminal cases were maliciously instigated with a view to elbow him from the control and ownership of his company. In paragraph 131 of the Petition, the Petitioner enumerated the particulars of malicious prosecution as follows: -a.Charging the Petitioner under a section section 347(a) of the Penal Code, a section that does not create an offence by itself that isb.Charging the Petitioner with an offence not known to law and thus the charge were defective and could not invoke the jurisdiction of the Honourable Courtc.To prefer a charge in Makadara CMCR 1693 of 2012 on 27th March 2012, and withdrawing the same on the 28th May 2012. d.The prosecutor preferred the same charges that were withdrawn on 31st May 2013 against the Petitioner vide Makadara CMCR No. 1338 of 2014 on.

110. Therefore, for this Court to address the Petitioner’s concerns in the Petition, a determination as to whether the prosecution of the Petitioner was malicious must first be made. It is only after finding in the affirmative that the Petitioner was prosecuted maliciously that the issue as to whether his rights and fundamental freedoms were infringed would then follow.

111. Malicious prosecution is a civil wrong. A tort. There are settled legal principles guiding a Court in determining whether a prosecution was malicious. As discussed in Murang’a -vs- Attorney General (1976-80) 1 KLR 1251, for a party to succeed in proving a tort of malicious prosecution, the following elements must be proved: -(a)That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.(b)That the prosecution terminated in the plaintiff’s favour.(c)That the prosecution was instituted without reasonable or probable cause.(d)That it was actuated by malice.

112. In this matter, if a determination is made to the effect that the prosecution of the Petitioner was not malicious, then it all ends there. In other words, the constitutional infractions, if any, can only be addressed after a determination that the Petitioner was maliciously prosecuted.

113. The mandate and jurisdiction of the High Court as a Constitutional Court has been discussed above. That mandate is distinct from the High Court sitting as a Civil Court. However, when the High Court sitting as a civil Court determines that a prosecution was malicious, then it has jurisdiction to address concerns of violations of constitutional human rights and fundamental freedoms in that very matter. There is no necessity of fresh proceedings being initiated in the Constitutional and Human Rights Division of the High Court.

114. The above discussion, therefore, renders the Petition herein as premature. The Petitioner must, in the first instance, succeed in proving that his prosecution was malicious before the alleged infraction of his rights and fundamental freedoms can be dealt with.

115. To that end, the jurisdiction of this Court was improperly invoked and this Court hereby declines the invitation to deal further.

116. Consequently, the Petition suffers a false start and the following final orders do hereby issue: -a.The Petition dated 22nd January, 2021 is hereby struck out.b.Each party shall bear its own costs since the jurisdictional issue that led to the determination of the Petition was raised by the Court suo moto.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 15TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Kago, Learned Counsel for the Petitioner.Miss Achochi Learned Counsel for the 1st Respondent.N/A for the 2nd, 3rd and 4th Respondents.N/A for the 5th Respondent.Chemosop/Duke – Court Assistants.