[2023] KEHC 26424 (KLR)

Thuo & another v Director of Public Prosecutions & 2 others (Constitutional Petition 269 of 2019) [2023] KEHC 26424 (KLR) (Constitutional and Human Rights) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26424 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 269 of 2019

AC Mrima, J

December 15, 2023

Between

David Chege Thuo

1st Petitioner

Lawrence Magu Kabui

2nd Petitioner

and

The Director of Public Prosecutions

1st Respondent

The Director of Criminal Investigations

2nd Respondent

Enkare Hotel Limited

3rd Respondent

Judgment

Background: 1. The Petitioners herein, David Chege Thuo and Lawrence Magu Kabui are the Directors of Muchewa Limited, a limited liability company. Through a Lease dated 22nd February 2016, the Company leased part of its property, L.R 209/3799, located in Moktar Daddah Street in Nairobi to Enkare Hotel Limited, the 3rd Respondent herein.

2. In the year 2016, Muchewa Limited sought to levy distress against the 3rd Respondent for non-payment of rent.

3. In retaliation, the 3rd Respondent instituted cases against Muchewa Limited including, Business Premises Rent Tribunal Case No. 178 of 2016, Milimani Chief Magistrates Civil Case No. 1198 of 2018, Business Premises Rent Tribunal Case No. 831 of 2017, Environment and Land Court Case No. 26 of 2018.

4. In Milimani Chief Magistrates Civil Case No. 1198 of 2018, The 3rd Respondent obtained an injunction against Muchewa Limited. However, on appeal, the orders were discharged and as such, Muchewa Limited proceeded to take action for non-payment of rent and for repossession of the suit premises.

5. Consequently, the 3rd Respondent instituted Environment and Land Court Case No. 20 of 2019, Milimani Chief Magistrates Civil Case No. 759 of 2019 and Environment and Land Court Case No. 27 of 2019.

6. The Court declined to give orders sought both in Environment and Land Court Case No. 20 of 2019 and in Environment and Land Court Case No. 27 of 2019. Chief Magistrates Civil Case No. 759 of 2019 was struck out.

7. Subsequent to the foregoing, the 3rd Respondent lodged a complaint to the Director of Public Prosecutions and The Director of Criminal Investigations, 1st and 2nd Respondents herein respectively, that Muchewa Limited had broken into its business premises and stolen goods.

8. On 14th March 2019, the 1st Petitioner was arrested. He was held in custody for two days but was released on cash bail of Kshs. 50,000/-

9. On 26th March 2019, the Petitioners were charged in Nairobi Chief Magistrates Court Criminal Case No. 480 of 2019 (hereinafter referred to as ‘the Criminal Case’.

10. In the Criminal Case the Petitioners were jointly charged with Stealing contrary to Section 268(1) of the Penal Code and Forcible entry contrary to Section 90 of the Penal Code. The 1st Petitioner was further charged with Forgery contrary to Section 349 of the Penal Code and Giving False Information to a person employed in the public service contrary to Section 129(a) of the Penal Code.

11. Aggrieved by the institution of the criminal case, the Petitioners instituted the instant Petition.

12. The Petition was vehemently opposed by the 2nd and 3rd Respondents. The 1st Respondent did not participate in the dispute.

The Petition 13. Through the Petition dated 5th July 2019 supported by the Affidavit and Further Affidavit of David Chege Thuo deposed on 5th July 2019 and 27th January 2020 respectively, the Petitioners sought to claim violation of their constitutional rights.

14. Filed together with the main Petition was the Notice of Motion Application (hereinafter ‘the application’) wherein the Petitioners, based on the same set of facts sought interim reliefs.

15. In the main, the Petitioners averred that their prosecution is a total abuse of the Court Process for not disclosing the existence of the civil cases revolving around the disputed suit premises.

16. The Petitioners posited that their arrest was unlawful and illegal since the 2nd Respondent did not carry out proper investigations in order to establish whether there was any criminal act that would warrant their arrest.

17. The Petitioners claimed further that their prosecution is unlawful and illegal as no criminal act was established. They contended that the 3rd Respondent was using the 1st Respondent to settle civil scores.

18. The Petitioners averred that they are entitled to freedom and security of the person as provided for under Article 29(a) of the Constitution.

19. In the application, the Petitioners sought the following reliefs: -1. Spent

2. That a conservatory order be granted restraining and prohibiting the Respondent from proceeding with prosecution of Nairobi Chief Magistrates Criminal Case no. 480 of 2019 against applicants or commencing any other such proceedings in respect of the same facts pending the hearing of this application inter partes.

3. That a conservatory order be granted restraining and prohibiting the Respondents from proceeding with the prosecution of Nairobi Chief Magistrates Criminal Case No. 480 of 2019 against the applicants or commencing any other such proceedings in respect of the same facts pending the hearing and determination of the Petition herein.

4. That the criminal charges preferred by the Respondents in Nairobi Chief Magistrates Court Cr. C. No. 480 of 2019 be quashed and the case be dismissed as an abuse of the Court process.

5. That the costs of this application and Petition be provided for.

20. In the main, the Petitioners prayed for the following reliefs: -a.An order be made to quashing and stopping and further prosecution of Criminal Case No 480 of 2019 or any other proceeding arising out of this same facts.b.The costs be in the cause.

The Submissions: 21. The Petitioners filed two sets of submissions. The initial ones were dated 16th December 2019 and subsequent ones dated 10th March 2022.

22. The Petitioners embellished their case by submitting that the 3rd Respondent only turned to the criminal justice system having failed at all attempts to stop the Company from recovering rent.

23. The Petitioners submitted that Central Police Station declined to take up the matter on the basis that it was a civil dispute between a Landlord and a Tenant.

24. The decision in Mitchell and Others -vs- Director of Public Prosecutions & Ano. 1987 LRC (cost) 128 was relied upon where the need to stop abuse of process was spoken of in the following terms;...there is the inherent jurisdiction of every court of justice to prevent an abuse of process and its duty to intervene and stop proceedings, or put an end to it. This inherent power has been used time and again to put a summary end to a process which seeks to raise and have determined an issue which has been decided against a party issuing it in earlier proceedings between the parties.

25. In response to contention by the 3rd Respondent that there was lack of a Petition by 2nd Petitioner and as such ought to be struck out, the Petitioners submitted that the error was one of typography. And even if the 2nd Petitioner was struck out, it would not render the Petition otiose.

26. The Petitioners further rebutted the 3rd Respondent’s Preliminary Objection on the claim that it had failed to raise a constitutional issue by submitting that it had identified violation of their constitutional right to freedom and security of the person guaranteed under Article 29 of the Constitution.

The 2nd Respondent’s case: 27. The Director of Criminal Investigations opposed the application through Grounds of Opposition dated 25th October 2021.

28. It was its case that the prayers sought in the Petition if granted would result in greater injustice in the criminal justice system and public interest since it would prevent the Respondents from exercising its mandate under Article 157 of the Constitution.

29. It further was its case that the Petitioners neither adduced reasonable evidence to prove that the criminal charges were mounted for an ulterior purpose nor showed that the 2nd Respondent acted with excessive force.

30. It was further its case that the trial Court under the safeguards of Article 50 on fair hearing would allow the Petitioners to raise the issues herein and would ascertain the correctness through the trial process.

31. It reiterated that the quality and sufficiency of evidence gathered in support of the charges ought to be determined on merit by the trial Court.

32. It was its case that the Petitioner merely stated his right and failed to demonstrate how it was violated. In conclusion, it urged that the application and the Petition were without merit and ought be dismissed.

33. The 2nd Respondent did not file written submissions.

The 3rd Respondent’s case: 34. Enkare Hotel Limited opposed the Petition and the application through the Preliminary Objection dated 8th October 2019 and the Replying Affidavit of Charles Njenga Kariuki, its Director deposed to on 17th December 2019.

35. The 3rd Respondent tailored its Preliminary Objection in the following way: -1. There is no Petition filed by the 2nd Petitioner in this matter thus rendering the entire Petition fatally defective.

2. The reliefs sought by the Petitioner are not within the purview of the constitutional court as there has been no infringement of any right of the Petitioners by any of the Respondents herein.

3. Orders for quashing of Criminal proceedings can only be commenced by way of judicial Review Applications.

4. There is nothing that calls for the interpretation of the Constitution in this matter at all nor has there been any law that is inconsistent with or in contravention of the Constitution.

5. The Institution of the Criminal Case No. 480 of 2019 at the Chief Magistrates Court at Nairobi is in keeping with the provisions of Article 25(c) and 27(1) of the Constitution f Kenya 2010 and the grant of the Orders in this matter will be in contravention of Article 27(1) aforesaid.

36. In the Replying Affidavit, Mr. Kariuki deposed that the 3rd Respondent was a tenant of the Muchewa Limited and it had leased the Mezzanine, 1st, 2nd and 3rd floors where it was operating a restaurant and a hotel business from the year 2015.

37. It was his deposition that the 3rd Respondent had 30 rooms and well stocked bar and kitchen.

38. He conceded that the 3rd Respondent and Muchewa Limited had several civil matters in Courts relating to the tenancy and rent and that on 14th January 2019, the Petitioners in the company of several policemen removed all the 3rd Respondent’s goods including hotel beds, beddings, restaurant furniture, bar and kitchen stocks in purported distress.

39. He deposed further that in the purported distress, the Petitioners were accompanied by one Stevens Nganga T/A Gladsome Auctioneers who, in reference to the affidavit annexed as CNK-1, they learnt on 15th January 2019 that he was not the one who attached and carried away the goods.

40. He deposed that it is after Stevens Nganga discovered that the Petitioners had illegally used his name in carrying out the attachment that he made a complaint to the Director of Criminal investigations.

41. It was his case that the 3rd Respondents goods have never been traced and there was no evidence of there having been public auction to recover the alleged arears of rent.

42. It was his case that the Petitioners in attaching the 3rd Respondent’s goods also impersonated the Auctioneer and forged the letter head and proclamation of Stevens Nganga.

43. In view of the foregoing, Mr. Kariuki deposed that the application and the Petition lack merit and ought to be dismissed with costs.

44. The 3rd Respondent did not file written submissions.

Analysis: 45. Having considered the pleadings, the parties’ submissions and the various decisions refereed to, this Court formulates the following issues for determination: -a.Whether the Petition raises constitutional issues.b.In the event that issue (a) above is answered in the affirmative, whether the Respondents’ actions on the Petitioners contravened Article 29 of the Constitution.

46. This Court will now consider the above issues in seriatim.

a. Whether the Petition raises constitutional issues: 47. 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.

48. 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 v 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 v 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 v 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 v 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...

49. Having delimited the concept of jurisdiction above, the Court now returns to the matter at hand. The 3rd Respondent contended that the Petition herein does not raise any constitutional issue, and as such, it should be struck out at the onset.

50. The Petitioners are of the contrary position. Through the Petition, the Petitioners posited that this Court has jurisdiction over the matter as conferred under Article 165(3) of the Constitution and that the Petition was anchored on several Articles of the Constitution.

51. 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.

52. 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.

53. 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.

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

55. The Supreme Court in Communications Commission of Kenya & 5 Others v 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.

56. 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…

57. 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.

58. 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.

59. The words of Learned Judge Langa, J in Minister of Safety & Security v 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…

60. 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 v Manjit Singh Amrit [2011] eKLR ‘… Courts must interpret it with all liberation they can marshal…’

61. 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.

62. 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.

63. The Petition has been carefully perused and considered. It mainly impugned the manner in which the Respondents discharged their constitutional and statutory duties. To that end, the Petitioners decried that their rights to freedom and security of the person under Article 29 of the Constitution were variously infringed.

64. In other words, the Petitioners sought the intervention of this Court on the basis that the Respondents have confronted their rights and fundamental freedoms guaranteed under the Bill of Rights in the Constitution. In such a scenario, the issues transcend the borders of ordinary issues into the realm of and crystallize into constitutional issues.

65. The Petition raises pure and serious constitutional issues for consideration by this Court. This Court is duty bound under Article 165(3) of the Constitution to determine any question as to whether a right or fundamental freedom in a Bill of Rights has been infringed, denied, violated or threatened.

66. In this case, even by taking the caution in Hakizimana Abdoul Abdulkarim -vs- Arrow Motors (EA) Ltd & Anor case (supra), into account, still the Petition, no doubt, reveal that it has fully complied with Rule 10(1) and (2) of the Mutunga Rules as well as the requirements in Communications Commission case (supra).

67. This Court, hence, finds that the contention that the Petition is devoid of raising any constitutional issue cannot be maintained and the same is for rejection.

68. The Court will also deal with the issue as to whether the 2nd Petitioner has a holding Petition before Court. The Petition has been carefully perused. It wholly relates to the 1st Petitioner herein, David Chege Thuo. From the way it was drafted to the contents of the affidavit in support, the 2nd Respondent was nowhere. As such, the name of the 2nd Petitioner herein, Lawrence Magu Kabui, is hereby struck out of the instant Petition and the Petition shall proceed on the basis of David Chege Thuo as the sole Petitioner.

69. Having answered the first issue in the affirmative, a consideration of the next issue now follows.

b. Whether the Respondents’ actions contravened the Petitioner’s right under Article 29 of the Constitution: 70As a precursor, suffice to remind ourselves that the Constitution is a solemn and sacred instrument which inter alia guarantees people’s rights and fundamental freedoms as well as appropriate legal redresses in protecting the Constitution itself and the said rights and fundamental freedoms.

71. Perhaps the sovereignty of the people, guaranteed under Article 1 of the Constitution, seals the unalienable right for a litigant to invoke this Court’s jurisdiction as established under Article 165 of the Constitution. There is indeed a calling on this Court to uphold and defend the Constitution as structured in Article 3 of the Constitution. Ultimately, a breach of the Constitution or any of the human rights and fundamental freedoms in the Bill of Rights is shunned and condemned.

72. The resolution of this issue calls for a scrutiny of the legal regime giving the 1st, 2nd and 3rd Respondents herein the mandate to investigate offences and to prosecute those culpable and to interrogate whether the Respondents exercised those powers within the constitutional and legal limits.

73. This Court has previously, and so broadly, discussed this issue in Nairobi High Court Constitutional Petition No. E033 of 2021 Maura Muigana vs. Stellan Consult Limited & 2 Others and also in Nairobi High Court Constitutional Petition No. E216 of 2020 Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties) [2021] eKLR.

74. As part of the introduction to the subject in Maura Muigana vs. Stellan Consult Limited & 2 Others case (supra), this Court acknowledged the many writings by legal scholars and decisions by Courts and appreciated that whereas it would have been desirable to come up with all the marvellous work on the issue in a ‘one-stop shop’, that was a tall order given the time constraints and the need for expeditious disposal of cases. The Court, however, rendered a concise discussion on the subject.

75. The Court then traced the legal basis of the exercise of prosecutorial powers in Kenya to the Constitution and the law. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as under: -1. There is established the office of Director of Public Prosecutions.2. The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President.3. The qualifications for appointment as Director of Public Prosecutions are the same as for the appointment as a Judge of the High Court.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.5. The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.6. The Director of Public Prosecutions shall exercise State powers of prosecution and may--a.institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;b.take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; andc.subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).7)If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.8)The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.9. The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.10. The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.11In 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.12. Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

76. There is, as well, the Office of Director of Public Prosecutions Act No. 2 of 2013 (hereinafter referred to as ‘the ODPP Act’). It is an Act of Parliament aimed at giving effect to Articles 157 and 158 of the Constitution and other relevant Articles of the Constitution and for connected purposes. The ODPP Act provides in Section 4 the guiding principles in prosecution of cases as follows:(4)In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—(a)the diversity of the people of Kenya;(b)impartiality and gender equity;(c)the rules of natural justice;(d)promotion of public confidence in the integrity of the Office;(e)the need to discharge the functions of the Office on behalf of the people of Kenya;(f)the need to serve the cause of justice, prevent abuse of the legal process and public interest;(g)protection of the sovereignty of the people;(h)secure the observance of democratic values and principles; and(i)promotion of constitutionalism.

77. The ODPP Act, among other statutes, variously provide for the manner in which the DPP ought to discharge its mandate. Suffice to say, the exercise of prosecutorial powers by the DPP has been subjected to legal scrutiny and appropriate principles and guidelines developed.

78. Article 239 of the Constitution provides for the national security organs. They include the National Police Service. The primary object of the national security organs and security system is to promote and guarantee national security in accordance with the principles mentioned in Article 238(2).

79. Article 243 of the Constitution establishes the National Police Service. Under Article 244, the Constitution provides the objects and functions of the National Police Service as follows: -(a)strive for the highest standards of professionalism and discipline among its members;(b)prevent corruption and promote and practice transparency and accountability;(c)comply with constitutional standards of human rights and fundamental freedoms;(d)train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and(e)foster and promote relationships with the broader society.

80. The National Police Service is under the command of the Inspector-General of Police. The manner in which the Inspector-General of Police is to carry out its mandate is provided for under Article 245(2)(b) and (4) of the Constitution as follows: -1. The Inspector General –a.……..b.shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.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; or(c)the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.5. Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), shall be in writing.

81. Article 157(4) of the Constitution provides that: -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.

82. The independence of the Inspector-General of Police is constitutionally-insulated from any form of interference or directional command. Apart from the Director of Public Prosecutions and only to the extent so provided, no other person, body or entity has the power to give any form of directives to the 2nd Respondent on how to discharge its functions. The position is further ring-fenced in that even the power donated to the Cabinet Secretary under Article 254(4) of the Constitution to issue any directives to the Inspector-General of Police is only limited to policy issues.

83. Pursuant to the provisions of Article 239(6) of the Constitution, The National Police Service Act, No. 11A of 2011 (hereinafter referred to as ‘the Police Act’) was enacted on 30th August, 2011. It is an Act of Parliament to give effect to Articles 243, 244 and 245 of the Constitution; to provide for the operations of the National Police Service; and for connected purposes.

84. Sections 24, 27 and 35 of the Police Act variously provide for the functions of the Kenya Police Service, the Administration Police Service and the Directorate of Criminal Investigations respectively as follows: -24. The Functions of the Kenya Police ServiceThe functions of the Kenya Police Service shall be the—a.provision of assistance to the public when in need;b.maintenance of law and order;c.preservation of peace;d.protection of life and property;e.investigation of crimes;f.collection of criminal intelligence;g.prevention and detection of crime;h.apprehension of offenders;i.enforcement of all laws and regulations with which it is charged; andj.performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.27. The Functions of the Administration Police ServiceThe functions of the Administration Police Service shall be the—(a)provision of assistance to the public when in need;(b)maintenance of law and order;(c)preservation of peace;(d)protection of life and property;(e)provision of border patrol and border security;(f)provision of specialized stock theft prevention services;(g)protection of Government property, vital installations and strategic points as may be directed by the Inspector-General;(h)rendering of support to Government agencies in the enforcement of administrative functions and the exercise of lawful duties;(i)co-ordinating with complementing Government agencies in conflict management and peace building;(j)apprehension of offenders;(k)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.35. Functions of the DirectorateThe Directorate shall —a.collect and provide criminal intelligence;b.undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;c.maintain law and order;d.detect and prevent crime;e.apprehend offenders;f.maintain criminal records;g.conduct forensic analysis;h.execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;i.co-ordinate country Interpol Affairs;j.investigate any matter that may be referred to it by the Independentk.Police Oversight Authority; and perform any other function conferred on it by any other written law.

85. The above is the constitutional and statutory regime within which the Respondents must exercise their various powers. Suffice to say that the manner in which the Respondents ought to exercise such powers has been, over time, subject of many Court decisions.

86. For instance, the Supreme Court in Petition No. 38 of 2019 Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR discussed some of the applicable parameters. On whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions contrary to the Constitution, the Supreme Court stated as follows: -(79)The High Court in its finding, prohibited the Respondents from proceeding with any criminal proceedings against the Appellant in relation to the suit property or any subject matter and transaction connected to the suit property. The Court of Appeal reversed this judgment by holding that the High Court had interfered with the discretion given to the Director of Public Prosecutions (DPP) to initiate and conduct prosecution. Essentially, the Court of Appeal found that the High Court went against public interest in preventing investigation and prosecution of allegations relating to fraudulent transfer and acquisition of the suit property and that the learned Judge interfered with the prosecutorial mandate of the DPP to decide on whether to charge or not to charge an individual.[80]The 5th, 6th and 7th Respondents on their part, maintain the position that the decision to commence investigations against the Appellant was consistent with the provisions of Article 157 of the Constitution and Section 6 of the Office of Director of Public Prosecutions Act. They also submitted that the decision to institute criminal proceedings by the DPP is discretionary and that such exercise of power is not subject to the direction or control by any authority as provided for under Article 157(10) of the Constitution.(81)Under Article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any Court. Article 157(6) provides as follows:(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may-(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”Article 157(4) provides that:(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.However, Article 157(11) stipulates that:(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.(82)Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.(83)In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that: -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 Others V. Attorney General [2002] 2KLR. (emphasis supplied)(84)Furthermore, the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the Court on when the High Court may review prosecutorial powers. They are as follows:(I) Where institution/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; or(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; or(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; or(IV) Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.(85)We are persuaded that this is a good guide in the interrogation of alleged abuse of prosecutorial powers and read alongside Article 157(11) of the Constitution, we have sufficiently expressed ourselves elsewhere in this Judgment to show that the unconstitutional continuance of the criminal proceedings against the Appellant amounts to abuse of Court process and that, balancing the scales of justice, the weight would favor the Appellant and not the Respondents.

87. On public interest, the Supreme Court expressed itself as follows: -(86)On public interest, what is in issue is a dispute arising from a commercial transaction 24 years ago where the complainants have not denied receiving part payment of the purchase price. There is hardly any public interest element in such a transaction save the wide interest of the law to apprehend criminals.(87)The learned Judge of the High Court, in our view, was well within his mandate under Article 165(3)(d)(ii) as read with Article 157(11) of the Constitution to curtail the Appellant’s prosecution and the DPP’S powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court.

88. This Court summed up the instances in which a Court may intervene and stop any prosecutions against a person in Maura Muigana vs. Stellan Consult Limited & 2 Others case (supra) as follows: -(i)Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court;(ii)Where the quashing of the impugned proceedings would secure the ends of justice;(iii)Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;(iv)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;(v)Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.(vi)The prosecution is not in public interest;(vii)The prosecution is not in the interests of the administration of justice;(viii)The prosecution is oppressive, vexatious and an abuse of the court process;(ix)The prosecution amounts to a breach of rights and fundamental freedoms;(x)The investigation and prosecution amounts to abuse of power and discretion and is aimed at achieving an ulterior or improper motive;(xi)The investigation and the prosecution are tainted with illegality, irrationality and procedural impropriety;(xii)The investigation and prosecution is in gross contravention of the Constitution and the law;

89. It is, therefore, not contested that Courts have the powers to speak against a prosecution. However, in doing so, a Court must not lose focus of the required balance created by the Constitution and the law to the extent that lawful organs must be accorded space to discharge their mandates and that in doing so, such discharge must be within the Constitution and the law.

90. The institutions are also supposed to be independent in the manner they function. The Supreme Court of Kenya underscored the independence of Commissions and Independent offices in Re The matter of Interim Independent Electoral Commission [2011] eKLR as follows: -It is a matter of which we take judicial notice that the real purpose of the “independence clause”, with regard to Commissions and independent offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government. Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of the individual. The Constitution established the several independent Commissions, alongside the Judicial Branch, entrusting to them special governance-mandates of critical importance in the new dispensation; they are the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation. The several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and, to perform this role effectively, they must operate without improper influences, fear or favour: this, indeed, is the purpose of the “independence clause.

91. The Supreme Court further exposited on the Commission’s autonomy in Communication commission of Kenya & 5 Others vs. Royal Media Services limited & 5 others [2014] eKLR as follows: -[I]ndependence’ is a shield against influence or interference from external forces. In this case, such forces are the Government, political interests, and commercial interests. The body in question must be seen to be carrying out its functions free of orders, instructions, or any other intrusions from those forces. However, such a body cannot disengage from other players in public governance… How is the shield of independence to be attained" In a number of ways. The main safeguard is the Constitution and the law. Once the law, more so the Constitution, decrees that such a body shall operate independently, then any attempt by other forces to interfere must be resisted on the basis of what the law says. Operationally however, it may be necessary to put other safeguards in place, in order to attain ‘independence’ in reality. Such safeguards could range from the manner in which members of the said body are appointed, to the operational procedures of the body, and even the composition of the body. However, none of these ‘other safeguards’ can singly guarantee ‘independence’. It takes a combination of these, and the fortitude of the men and women who occupy office in the said body, to attain independence.

92. This Court also finds wisdom in the pronouncements of the South African Constitutional Court in New National Party v Government of Republic of South Africa & others (CCT9/99) [1999] ZACC5 on the aspect of independency of Commissions. The Court expressed itself thus: -In dealing with the independence of the Commission, it is necessary to make a distinction between two factors, both of which, in my view, are relevant to “independence”. The first is “financial independence” … The second factor, “administrative independence”, implies that there will be control over those matters directly connected with the functions which the Commission has to perform under the Constitution and the Act.

93. With the above regulatory framework, this Court will now ascertain if the Petitioner’s rights and fundamental freedoms were impugned.

94. In this case, and as stated elsewhere above, the Petitioner took issue with the manner in which the investigations were carried out and the decision to charge him arrived at. The Petitioner posited that the matter concerned recovery of rent and repossession of property which matters were still in active litigations before various Courts, hence, the Respondents’ intervention remains unwarranted.

95. This Court has carefully considered the Petition, the facts thereto and the charges in the criminal case. The 3rd Respondent’s complaint to the police arose from its realization that the distress for rent which was undertaken by the Landlord was tainted with criminal culpability.

96. Apart from the charges on Stealing and Forcible entry into the disputed premises, the Petitioner faced three more charges. One of the charges was impersonation. It was alleged that he presented himself as an Auctioneer one Stephen Kori Nganga, a Director of Gladsom Auctioneer. There was also the charge on giving false information to a person employed in public service. The Petitioner was also charged with forgery.

97. Even if it were to be found that levying of distress was permissible, still the other charges stand outside the confines of the dispute between the Petitioner and the 3rd Respondent.

98. Having conducted investigations and recommended that the charges be preferred, and the 1st Respondent having approved of the charges, without more, the matter was then to be left to the criminal Court to deal with it. In this case, there is no demonstration that the Respondents acted outside the Constitution and the law. The Petition was mainly premised on the fact that the parties were engaged in civil litigations.

99. Granted, the law, in Section 193A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya allows for concurrent proceedings. The provision states as follows: -193A. Concurrent criminal and civil proceedingsNotwithstanding 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.

100. There was, therefore, the need for the Petitioner to demonstrate that the criminal case did not come under the rubric of Section 193A of the Criminal Procedure Code. The Petitioner did not do so.

101. It is, therefore, this Court’s finding that the Petitioner failed to demonstrate how the Respondents infringed his right under Article 29 of the Constitution. The Petitioner also failed to distinguish the criminal case from the contemplation of Section 193A of the Criminal Procedure Code.

102. The Petition, hence, seems to suffer unsustainability. It is not proved and is hereby declined.

Disposition: 103. In the end, the Petition is hereby determined in the following terms:a.The name of the 2nd Petitioner herein, Lawrence Magu Kabui, is hereby struck out of the Petition.b.The remainder of the Petition dated 5th July, 2019 be and is hereby dismissed.c.Any orders issued in this matter staying the Nairobi Chief Magistrates Court Criminal Case No. 480 of 2019, if at all any, be and are hereby discharged and/or set-aside accordingly.d.Both Petitioners shall jointly and severally bear the costs of the Petition.

Orders accordingly.

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