[2022] KEHC 1572 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

PETITION NUMBER E068 OF 2021

SUSAN JEPICHI CHEPKIYENG...................................................PETITIONER

VERSUS

JAMES KIPKOROS KENEI...................................................1ST RESPONDENT

CHRISTOPHER KANGOGO CHEBOIBOCH....................2ND RESPONDENT

THE OFFICER COMMANDING,

ITEN POLICE STATION.....................................................3RD RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS...........4TH RESPONDENT

RULING

1. This is a Ruling on the Notice of Motion dated 18th October 2021 where the Applicant seeks, mainly, the following order;

a) stay of proceedings in Iten Criminal Case E708 of 2021 pending the determination of the main suit.

2. The application is supported by an affidavit sworn on 18/10/2021 by the applicant a further affidavit filed on 10th November 2021, a second further affidavit filed 19th November 2021, a supplementary affidavit and submissions filed on 9th December 2021. The respondents filed replying affidavits on 25th November 2021, 26th November 2021, 30th November 2021 and submissions on 14th December 2021.

3. The application is based on the grounds that the petitioner, who is the owner of all that parcel of land known as Land Reference No. IRONG/ITEN/760 obtained a decree on 3rd March 2020 directing that the defendant, who is the owner of all that parcel of land known as Land Reference No. IRONG/ITEN/911 remove his fence from her portion of land or the same be demolished.

4. The petitioner proceeded with the demolitions on 24th and 25th of September 2021. She was then charged with two counts of malicious damage to property contrary to section 339 (1) as read together with section 393 (b) of the Penal Code and interference with boundary feature contrary to section 24 (1) of the Land Registered Act respectively in Iten Criminal Case No. E708 of 2021.

5. The petitioner contends that the main issue of contention touches on a civil dispute and the said criminal proceedings are a violation of the applicant’s constitutional rights and should be stopped.

6. The 1st and second respondents maintained that they were aggrieved by the petitioner’s conduct in destroying the boundary. The police investigated and found that a crime had been committed hence the petitioner was charged in the criminal case.

7. The 1st and 2nd respondents submitted that the application lacked merit and substance as the issue on whether the criminal case is justified will be determined after the hearing of the criminal case. They contended that it is possible to commit a crime in the process of enforcing a court order and the petitioners defence that she is being prosecuted for enforcing an order is better raised at the hearing of the criminal case.

8. The 4th respondent submitted that the decision to charge was within the law and cited Article 157 of the Constitution in support of this submission. The DPP has discretion in determining which complainant should be charged and the applicant has not demonstrated that the DPP abused this power or acted maliciously.

9. Upon considering the pleadings, submissions by rival parties and all the authorities relied on I have identified the following issue for determination whether there should be stay of proceedings of Criminal Case No. Iten E708 of 2021 pending determination of the petition.

10. Halsbury’s Law of England,4th Edition. Vol. 37page 330 and 332 states that:

“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”

“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”

“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

11. In The State of Maharastra & Others vs Arun Gulab & Others, Criminal Appeal No 590 of 2007,the Supreme Court of India set out the grounds upon which a prosecution may be prohibited as follows: -

(i) Where institution or continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(ii) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;

(iii) Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; and

(iv) Where the allegations constitute an offence alleged but there is either no legal evidence adduced clearly or manifestly fails to prove the (iv) Charge.

12. In order to determine whether the prayers for stay should be granted the court would have to go into the merits of the criminal case and determine whether there exists an actual cause of action.

13. It is my considered opinion that it is not in the interest of justice to grant the stay of proceedings as that will delay the matter in the trial court. I am not satisfied that the applicant has shown that there are constitutional rights that have been violated to warrant stay of proceedings.

14. In the premises I find that prima facie application has not been proved. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF MARCH 2022.

E.K. OGOLA

JUDGE