[2022] KEHC 11205 (KLR)

Strack v Director of Criminal Investigations & another; Bulimu (Interested Party) (Petition E355 of 2020) [2022] KEHC 11205 (KLR) (Constitutional and Human Rights) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11205 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E355 of 2020

HI Ong'udi, J

June 16, 2022

IN THE MATTER OF RULE 3(3), (4), (5), 4, 13, 23(1) AND (2) OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS OF THE INDIVIDUAL) PRACTICE AND PROCEDURE RULES, 2013 LEGAL NOTICE 117 OF 2013) AND IN THE MATTER OF HARASSMENT, INDIGNITY, CONTRAVENTION AND INFRINGMENT OF FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL UNDER ARTICLES 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 41, 47, 48, 49, 50A AND 51 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA 2010 AND IN THE MATTER OF SECTIONS 127, 128, 130, 131, 203 AND 238 OF THE PENAL CODE CAP 63 LAWS OF KENYA AND IN THE MATTER OF SECTION 25, 27, 35, 41, 49, 51 AND 95 OF THE NATIONAL POLICE SERVICE ACT NO. 11A OF 2011

Between

Marc Oliver Strack

Petitioner

and

Director of Criminal Investigations

1st Respondent

Inspector General of Police

2nd Respondent

and

Ann Bulimu

Interested Party

Ruling

1. The Petition and notice of motion both dated 2nd November 2020 were filed by the Petitioner. Each is supported by an affidavit sworn by Marc Oliver Strack (petitioner) on even date. The petition is premised on claims that the interested party has been shuttling in various police stations influencing the police against him. As a result he has been summoned to the stations over matters that are not criminal at all. That the respondents have threatened to fabricate criminal charges against him.

2. In his notice of motion dated 2nd November 2020 he seeks the following orders:-(i.& ii)- Spentiii.Pending the hearing and determination of this application and the petition or until further orders of this court, a temporary conservatory order be and is hereby issued prohibiting the 1st and 2nd respondents whether by themselves or their officers, agents, servants or anybody acting under them from investigating, commencing and maintaining and continuance of any criminal charges based on trumped up complaints by the interested party.iv.Pending the hearing and determination of this application and the petition a conservatory order be and is hereby issued to restrain the interested party from harassing and or in any other way from interfering with and or making threats to the petitioner.v.Costs of this petition be provided for.

The Petitioner’s application dated 2nd November 2020 3. The application is supported by the grounds on its face plus the petitioner’s sworn affidavit. A summary of the grounds and the affidavit are that the petitioner owns a company [Exclusive Living East Africa Ltd] which has shares. The shares were allegedly stolen by the interested party who had illegally and unlawfully installed herself as a director. Her actions were reversed by the registrar of companies as per annexture MOS 1.

4. He deponed that the interested party has been using the respondents to threaten him. She has also threatened him through messages using the respondents’ names. He has annexed copies of printout messages sent to him marked annexture MOS 2. He avers that he has been called by the respondents severally and threatened on unclear charges and none is interested in recording his statement.

5. It’s his disposition that the interested party has illegally and without authority sold and rented out units in a project undertaken by the petitioner’s company. That she then reported him to the respondents for having transferred the said units. He avers that the respondents are abusing their discretion with ulterior motives. That they are not keen on dealing with the commission of crime.

6. He further depones that the interested party in her foresaid illegal quest has caused him to be questioned about transfers of units of his company. That the respondents are being used by the interested party to arm twist him so that she can dispose of the assets of his company. He therefore prays that the court allows his notice of motion dated 2nd November 2020.

7. The 1st respondent filed a replying affidavit by No. 91890PC Duncan Maina sworn 5th December 2020. He deponed that he and others were assigned to investigate a case of suspected money laundering and fraudulent transfer of shares by two directors of Exclusive Living East Africa Ltd, a real estate company believed to be associated with the petitioner.

8. He further deponed that investigations commenced and their focus was purely on money laundering. As they continued following up on the matter the petitioner moved the court for conservatory orders to halt the investigations into the suspected money laundering and fraudulent transfer of shares.

9. He deponed that they checked the relevant company account and noticed a number of questionable transactions in and out of the country. It’s their case that the police officers are simply carrying out their mandate which they should be allowed to complete. Granting the orders sought he avers would be clothing the petitioner with investigative and prosecutorial immunity in disregard of the respondents constitutional authority to deal with crime.

10. The interested party did a replying affidavit sworn on 7th April 2021 in respect of both the petition and notice of motion. She deponed that the instant petition has been filed to disguise the marital conflict between the petitioner and herself over the management of the company and its property.

11. She has deponed that there is already a matter between the two parties pending before the Family division namely HCC OS 13 of 2020. Another matter is before the Commercial division namely HC Civil Suit No. E 453 of 2020 in respect of the directorship of the company. She goes onto explain the role she has played in structuring the company. She makes mention of suspicious dealings in the company’s two bank accounts. On mentioning the same to the petitioner he left the matrimonial home. All this affected their marriage and even her status in the company. The Registrar of companies later did a ruling which favoured the petitioner, who started maligning her name to the banks, business associates, inter alia.

12. It’s on the basis of the said happening that she moved to the DCI’s offices to have a forensic audit of the documents presented to the Registrar of Companies, and an investigation on the cash movement from bank accounts. She wanted it confirmed if indeed she forged any documents.

13. She deponed that all the persons concerned recorded statements save for the petitioner who rushed to court to stop the process. She avers that the petitioner through his affidavit (AMB 12) in the case at the Commercial division has stated that he also made a report against her requesting for investigation.

Parties submissions The petitioner/applicant’s submissions 14. The applicant’s submissions are dated 23rd June 2021 and filed by Okoth & Co. advocates. Counsel did a summary of the averments by the petitioner, respondent and interested party. He submits that the Registrar’s ruling (MOS 1) and annexture (MOS 2) confirm that the interested party’s allegations were for the purpose of achieving an ulterior purpose.

15. Counsel submits that the warrants the respondents claim to have received were never annexed to the replying affidavit. He contends that the petitioner’s company is engaged in real estate construction and much of its materials are procured from out of the country hence the transactions of wired money into the account.

16. Counsel further contends that as per paragraph 34 of the interested party’s replying affidavit, the only reason she reported to theDCI is because of her dissatisfaction with the Registrar’s decision. She has however not challenged it. He argues that since the only issue between the petitioner and the interested party is their marital conflict then the respondents have no business handling the matter.

17. On the test for grant of conservatory orders counsel cited The Centre for Human Rights & Democracy & 2 others v. The Judges and Magistrates Vetting Board & 2 others[2012] eKLR where the Court held:-“Under Article 23 (3) (c)of the Constitution of Kenya, 2010, the Court had powers to grant conservatory orders at any stage of the proceedings if it deemed fit to do so…A party seeking a conservatory order only required to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution.”Musinga J (as he then was) in Center for Rights Education and Awareness (CREW) & 7 others v. Attorney General [2011] eKLR stated;“I will not therefore delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”

18. He therefore submits that all the tests have been satisfied for the grant of the conservatory orders sought.

19. Counsel has further submitted that it is clear from the averments by the respondents and the interested party that the interested party is out to punish the petitioner by use of the respondents who have accepted to be so used. Further that it is wrong for the respondent to accept to be so used by the interested party as their actions are illegal, irrational, oppressive, an abuse of power.

The respondents’ submissions. 20. The respondents’ submissions are dated 5th October 2021 and are filed by learned counsel Berryl, Marindah for theDPP. It’s counsel’s submission that the prayers sought are unconstitutional as they seek to inhibit the respondents from performing their duties. All they are doing is conducting investigations after receiving a complaint.

21. She submits that conservatory orders prohibiting investigations would only be allowed if the petitioner demonstrates that the respondents’ conduct so far has been unlawful, unreasonable and contrary public interest, administration of justice or has abused the legal process. It’s her submission that none of the above has been shown to be the case in this matter.

22. Counsel submits that it is not sufficient ground to grant conservatory orders to halt criminal investigations. She cited the case of Republic v. Kenya Anti-Corruption Commission & 2 others Exparte Wildlife Lodges Limited [2014] eKLR where the court held:-“The mere fact that the allegations made are likely to be found worthless, it is not a ground for halting investigations into the complaints made or brought to the attention of the 1st Respondent since the purpose of a criminal investigations conducted bon fide is to consider both incriminating and exculpatory material and not just to collect evidence on the basis of which a criminal charge may be laid.”

23. Referring to paragraph 3 of the 1st respondent’s replying affidavit counsel submits that the investigations target both the petitioner and interested party. Therefore the petitioner should not be allowed to use the process as he wants. That the petitioner does not make out a prima facie case since his case is based on a wrong premise that “baseless” and “unfounded allegations” need not be investigated even if they raise reasonable suspicion that a crime may have been committed.

24. Counsel further submits that the petitioner will not suffer any prejudice if investigations are allowed to continue. She referred to the case of Jonathan Kilonzo Kisee v. Inspector General of Police & 3 others [2019] eKLR where the Court held:-“12. A Court of Law would not interfere with investigations because the individual suspected is apprehensive of being arrested and charged. The Court can only interfere with investigations if it is demonstrated that the purpose of investigations is to abuse due course of investigations.13. The police are acting within their mandate. The Applicant has been summoned but not arrested. In case he is arrested and arraigned in Court his constitutional rights will not be violated. The Court of Law will ensure the trial is fair. In the premises the Application will not suffer any prejudice if the orders sought are not granted.14. In the result, I decline to grant orders sought. The Application is therefore dismissed with no orders as to costs.”

The Interested party’s submissions. 25. These were filed by Gideon Nakhone & Associates and are dated 19th July 2021. Counsel has submitted that there were issues of directorship of the company known as Exclusive Living East Africa Ltd. The interested party was accused of forging the petitioner’s signature and the Registrar of Companies found in favour of the petitioner. She did so without verifying the authenticity of the documents, and expunged the interested party’s name from the company’s directorship.

26. He referred to the case of Edwin Kipng’eno Rono v. Leawin Ltd & another [2019] eKLR where the Court stated:-“I find that the claim of forgery and fraud, in the scale that has been alleged by the petitioner, are matters that fall within the purview of criminal investigation by the relevant government agencies and not an inspector appointed by this court. I further find that in instant case, the petitioner has not established that the subjected he alleged forged signatures and stamps of the said Mwangi Ngugi to the expert examination by the document examiner so as to justify his claim that hey were forged and that the forgery was perpetrated by the 2nd respondent. Needless to say, it is trite law that fraud must not only be specifically pleaded but must also be distinctly proved. I find that even through fraud was pleaded, for the reasons that I have stated hereinabove, I am not satisfied that the petitioner proved the alleged fraud to the required standards or at all.” (Emphasis is mine)

27. He contends that the Registrar’s ruling was not based on examined documents.

28. Referring to Sections 35, 52(1) of the National Police Service Act on the duties of the Directorate of Criminal Investigation, he submits that the same cannot be curtailed. He further relied on the case of Isaac Tumunu Njunge v. DPP & 2 others [2016] eKLR where Odunga J stated:-“42. It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”

29. Further in Pauline Adhiambo Rarget v. DPP & 5 others [2016] eKLR the late Onguto J held:-“I have also been unable to see how in investigating an alleged criminal conduct or activity there could be discrimination or a practice of inequality before the law. The respondents are enjoined to investigate any allegations of criminal activity or conduct both by statute as well as by the Constitution. The investigations may take them to anyone including the petitioner. They could investigate on their own prompting or upon being prompted by any member of the public as did the interested party in this case. In so doing, it is a legal mandate they would be undertaking.”

30. Counsel argues that the interested party invited the DCI to investigate if she falsified, forged and or in any other illegal way caused the directorship of the company to be changed in her favour, and that there was no malice in this. He contends that the petitioner happily relies on the registrar’s ruling but he does not want the factual basis of the ruling investigated. All those involved in the matter before the Registrar of companies have willingly recorded statements save for the petitioner.

31. Counsel submits that the petitioner’s actions are full of hypocrisy and he cannot seek to stop the police from doing their work. On the issue of money laundering it is in the interest of any law abiding citizen to report the commission of a crime to the relevant authorities.

Analysis and determination. 32. I have considered the application, affidavits, rival submissions, cited cases and the Law and find the issue for determination to be whether the petitioner has met the threshold for issuance of the conservatory orders sought, in terms of prayers 2 & 3 of the notice of motion, dated 2nd November 2020.

33. A conservatory order is issued to ensure things do not change while a case is being decided. It preserves the status quo. The Applicant has to satisfy the court that he has an arguable case.

34. This is what Musinga J (as he then was) stated in the case ofCentre for Rights Education and Awareness (CREWW) & 7 others v. Attorney General, Petition No. 16 of 2011[2011]eKLR:-“I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the constitution.”

35. It is therefore the duty of the applicant to demonstrate that if the order is not given he will suffer prejudice. An evaluation of the material before this court confirms the following:-i.The petitioner and the interested party were in a love relationship that turned sour. The interested party filed a matter in the Family division Milimani where the petitioner is the respondent.ii.There is another beef in respect of a company (Exclusive Living East Africa Limited). The petitioner claims that the interested party was never a director of the said company while the interested party insists she was. In respect of this the petitioner and the said company have sued the interested party. The said matter is in the Commercial & Tax division, Milimani. The nature of the claims is unknown to this court as the pleadings are not annexed.

36. Both parties i.e. the petitioner and the interested party accuse each other of very serious criminal acts. Both claim to have reported the same to the police though the petitioner says no investigations have been conducted in respect of his complaint. In this case the punching bags are the police officers.

37. In their replying affidavit the respondents confirm receiving the reports and as they had started doing their work the petitioner filed this petition. The record shows that a conservatory order was issued on 11th November 2020, in terms of prayer No. 2 of the application. The petitioner has therefore enjoyed the interim orders to date which is 1 ½ years. It explains why this matter has been moving at snail’s place.

38. The 1st and 2nd respondents fall under the National Police Service. Article 245 of theConstitution outlines some of the duties of the police. It provides thus:-“Article 245. (1)There is established the office of the Inspector-General of the National Police Service.(3)The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.(4)The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—(a)the investigation of any particular offence or offences;(b)the enforcement of the law against any particular person or persons;”

39. In this matter the police received a complaint and acted on it as is revealed in the replying affidavit of P.C. Duncan Maina. They received warrants to investigate the accounts, (Annexture AMB 1). Paragraphs 6 – 9 of the said affidavit reveal part of the results of the investigations. The investigation was in line with Section 35(b) of the National Police Service Act. These facts have not been rebutted through any further affidavit.

40. The next issue this court must deal with is what violation the respondents committed as they carried out their constitutional mandate. It is the petitioner’s case that the police have been calling him and issuing threats of unclear charges. The 1st and 2nd respondents are established offices. If anyone called and threatened the petitioner and they are police officers they can easily be identified. The petitioner further claims that the police have refused to record his statement on his complaint. However, he does not say whether he has recorded any statement in respect of the interested party’s complaint. He produced no O.B. number to confirm his report.

41. Nothing has been placed before this court to show that police officers have been calling the petitioner and or even issuing him with threats. A catalogue from the service provider would have confirmed the allegations by the petitioner. As concerns the messages (MOS 2) - these are conversations between the petitioner and the interested party who are processing a broken love relationship. What she has stated in the messages concerning the reports she has allegedly made, will need to be confirmed by way of evidence and so cannot be taken on face value.

42. Without any proof of misuse of the police or prosecutorial power the petitioner cannot get the kind of orders he has prayed for. Infact the investigations could end up exonerating him, one never knows until a matter is heard. An applicant must satisfy the court as to why the respondent must be stripped off their mandate especially in carrying out investigations when a report has been lodged in that office. If it is also true that the petitioner has lodged a complaint against the interested party, that complaint must equally be investigated. Such an exercise will determine if the complaints are genuine or not.

43. From the above it’s clear that the petitioner has failed to satisfy this court as to the need of issuance of conservatory orders at this stage of the proceedings. The application fails and the conservatory orders earlier on issued on 11th November 2020 are hereby vacated. The application stands dismissed with costs.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 16TH DAY OF JUNE, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT