[2023] KEHC 26788 (KLR)

Wangila & another v Nzowasco Co. Ltd & 4 others (Petition E003 of 2023) [2023] KEHC 26788 (KLR) (21 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26788 (KLR)

Republic of Kenya

In the High Court at Bungoma

Petition E003 of 2023

REA Ougo, J

December 21, 2023

IN THE MATTER OF ARTICLE 2 (1), 2(4), 3(2), 10, 19, 20 (1) (2) (3), 21 (1), 22, 23,24, 165, 258 and 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF CONTRAVENTION OF ARTICLE 2, 3(1), 10, 19, 20, 21(1), 24, 25(C), 28, 29, 47, 50, 157(11), OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 25(C), 28, 29 (a) (d), 47, 49 and 50 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF ENFORCEMENT OF ARTICLES 2, 3 (1), 10, 19, 20, 21 (1), 22, 23, 24, 25 (C), 29, 29, 47, 50 and 259 OF THE CONSTITUTION OF KENYA

Between

Benjamin Wachiye Wangila

1st Petitioner

Adline Singhe Munengwa

2nd Petitioner

and

Nzowasco Co. Ltd

1st Respondent

The O.C.S – Kimilili Police Station

2nd Respondent

The Principal Magistrate Kimilili

3rd Respondent

The Attorney General

4th Respondent

The Director of Public Prosecution

5th Respondent

Ruling

1. The petitioners herein have filed a notice of motion dated 15/9/2023brought under sections 1A, 1B, 3, 3A & 6 of the Civil Procedure Act and Orders 51 Rule 1 of the Civil Procedure Rules seeking an order for stay of proceedings in Kimilili Criminal Case No. 279 of 2023 between Republic v Adline Zinghe and Kimilili Criminal Case No. 401 of 2023 between Republic v Adline Munengwa pending the hearing and determination of this suit.

2. The application is based on the grounds that the petitioners have filed a constitutional petition challenging the validity and legality of the two criminal cases. If any order were to be made in this instant suit then it would have an adverse consequence on the conduct of the criminal cases. It was alleged that it is in the interest of justice that the criminal proceedings be stayed and in the event that they are not stayed, the petitioners’ rights to fair hearing shall be trampled upon. The petitioners further advanced that if the proceedings in the criminal matters proceed to conclusion and this court eventually rules in favour of the petitioners, then the said criminal proceedings shall be an exercise in futility.

3. The application was also supported by the grounds contained in the affidavit dated 15/9/2023 sworn by Adline Singhe Munengwa. She averred that on 28/5/2023, the 5th respondent preferred charges against her in Kimilili Criminal Case No. 279 of 2023 and was charged with the offence of illegal connection of water contrary to section 145 (e) as read with section 147 of the Water Act. She was arraigned before the trial magistrate to answer the charges and thereafter released on bail. Subsequently on 8/5/2023, the 5th respondent instituted another suit,Kimilili Criminal Case No. 401 of 2003,and was charged with the offence of illegal connection of water contrary to section 145 (e) as read with section 147 of the Water Act. She advanced that she was charged with the same offence twice contrary to the provisions of Article 50 of the Constitution. She explained that during both times she was arrested, she was not arraigned within 24 hours in violation of Article 49 (f) of the Constitution of Kenya 2010. It was also averred that this court has supervisory jurisdiction over the subordinate courts and has powers to make orders of stay of proceedings.

4. The application was met by the 1st respondent’s replying affidavit dated 29/11/2023. The reginal manager of the 1st respondent deposed that the 1st respondent gets its mandate from section 78 of the Water Act 2016. He explained that the Water Act prohibits individuals from illegally connecting themselves to the main water supply lines. In 2014 the applicants made an application to be supplied with piped water on their residential plot and upon payment of the requisite fees gave domestic water supply meter no. 13001211. Later on, they built a commercial/rental house on a different plot but within the same area and fraudulently and illegally connected water supply directly from the old domestic house. The petitioners were advised to make a separate application for the second meter as the old one could not sustain the increased demand for eater but they failed to do so.

5. On 10/11/2021, the 1st respondent while doing routine inspections of water lines and meter readings discovered that the petitioners had illegal connections. The 1st respondent collected evidence of the illegal connection and imposed a Kshs 30,000/- penalty. The 1st petitioner moved to court to have the fine lifted vide Kimilili Civil Suit No 240 of 2021 but the suit was dismissed for want of prosecution. The 1st respondent as a result of two different illegal connections, reported the matter to Kimilili police station on 23/3/2023 and 6/5/2023. The petitioner was consequently charged inKimilili Criminal Case No. 279 of 2023 and Kimilili Criminal Case No. 401 of 2023.

6. The 1st respondent contends that the petitioners are serial offenders and the criminal charges against the 2nd petitioner are not malicious as she blatantly broke the law on several occasions. The 5th respondent rightfully discharged its mandate as per Article 157 of the Constitution. The 1st respondent advanced that no material was placed before the court to show that the 5th respondent acted contrary to the provisions of Article 157 of the Constitution. In this circumstance, stopping the criminal proceedings will be tantamount to usurping the mandate of the 5th respondent.

Submissions By Parties Petitioners’ Submission 7. The petitioners filed their submissions dated 27/11/2023 and identified the sole issue as whether the applicant is entitled to an order of stay of the proceedings before the lower court. They submit that the factors to be considered for stay of proceedings were laid down by the court in Prasul Jayantilal Shah v Republic; Joseph Claudio (Interested Party) [2022] eKLR where the court held that:44. The law guiding stay of criminal proceedings in our jurisdiction can now be said to be well settled. Of relevance to the matter at hand is the holding in Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, where the Court of Appeal held that:“…the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”

8. The petitioners submit that the 2nd petitioner is a victim of oppression having been charged with the same offence twice. In fact, the second suit,Kimilili Criminal Case No. 401 of 2023, suggest that she committed the offence while she was in custody. Therefore, the two criminal cases against the 2nd applicant in the subordinate court are a witch hunt, instigated by malice, vexatious and an abuse of the court process. They urged the court to stay the proceedings of the subordinate court pending the hearing and determination of this petition.

1st Respondent’s Submissions 9. The respondent filed their submissions dated 29/11/2023 opposing the petitioners’ application. Its sole issue for the court’s consideration is whether the court should stay the proceedings in Kilimili Criminal Case No. 279 and 401 of 2023 pending the hearing and determination of this suit. The 1st respondent submits that the applicant has failed to meet the evidentiary threshold for stay of proceedings and called into aid the decision by the court in Amir Lodges Ltd & Another v Mohammed Omar Shariff & another [2022] eKLR where the court stated:“62. In an Article titled ‘Unjust Justice in Parallel Proceedings: Preventing Circumvention of Criminal Discovery Rules, the author, Randy S. Eckers, defines concurrent proceedings as independent, simultaneous investigations and prosecutions involving substantially the same matter and parties.63. More often than not, the currency of the twin proceedings is challenged before Courts. In the above article, the author reiterates that a determination to either stay or allow the continuation of parallel proceedings depend on existence of certain requirements. He observes: -The Courts only block parallel proceedings in special circumstances. A defendant may move for a stay to block parallel proceedings, which will be granted only if the defendant can prove either that the government is acting in bad faith and using malicious tactics to circumvent the strict criminal discovery rules, or that there is a due process violation….Even if a defendant meets one of these requirements, a stay is not guaranteed. The Court takes many other factors into account in deciding whether a stay is appropriate in a specific situation. These factors include the commonality of the transaction or issues, the timing of the motion, judicial efficiency, the public interest, and whether or not the movant is intentionally creating an impediment." Absent special circumstances, both cases will probably proceed.”

10. The petitioner has not demonstrated instances of illegality, irrationality and procedural impropriety. They also relied on the holding of the court of the Supreme Court of India, Criminal Appeal No 590 of 2007, State of Maharashtra & others v Arun Gulab & Others that was cited inAmir Lodges Ltd & another v Mohammed Omar Shariff & another [2022] eKLR.

11. The 1st respondent argues that the mere fact that a person has been charged in court does not in itself amount to a violation of constitutional rights. The legality of the said charges or their success thereof can only be determined by the trial court.

Analysis And Determination 12. I have considered the pleadings, the evidence on the record as well as the rival submissions by the parties. The only issue for the consideration of the court is whether the petitioners have demonstrated a case for the grant of a stay of proceedings before the Kimilili Magistrates Court.

13. The main complaint by the petitioners was that the respondents violated her right under Article 49 (1) (f) of the Constitution which provides as follows:“49. Rights of arrested persons(1)An arrested person has the right—(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;”

14. The petitioners were able to demonstrate that when the 2nd petitioner was first arrested on 23/03/2023 she was arraigned on 28/03/2023. The 2nd petitioner was not presented to take plea within 24 hours as required under Article 49 (1) (f) (i) of the Constitution. However, her second arrest was lawful as it complied with the provisions of Article 49 (1) (f) (i) of the Constitution. She was arrested on 06/05/2023 (Saturday) and arraigned before court on 08/05/2023 (Monday).

15. It is on this account that the petitioners seek a stay of the criminal proceedings before the lower court. The 5th respondent is mandated to commence criminal proceedings and Article 157 of the Constitution of Kenya provides that:“157. Director of Public Prosecutions1)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.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.12)Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.

16. The 5th respondent in performing its mandate under Article 157 of the Constitution,is not obligated to obtain consent from any individual or be subject to the control of any person or authority. Consequently, the courts are typically reluctant to interfere with the discretion exercised by the 5th respondent. The Court in Maina & 4 others v Director of Public Prosecutions & 4 others (Constitutional Petition E106 & 160 of 2021 (Consolidated)) [2022] KEHC 15 (KLR) (Constitutional and Human Rights) (27 January 2022) (Judgment) held that:“(41)Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions of Mauritius [2006] 5LRC 234:these factors necessarily mean that the threshold of a successful challenge is a high one. It is however one thing to conclude that the courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all…”

17. The court in Republic vs Chief Magistrate, Kilgoris; Ex Parte Johana Kipngeno Langat (2021) eKLR stated:“…. For the Court to stay a criminal proceeding, the applicant must show that the criminal proceeding is being used oppressively or it was instituted for reasons other than to bring the accused to justice. Abuse of process should be established.I must repeat that DPP has a constitutional mandate under article 157 to prosecute criminal cases. The mandate should not be disrupted unless for good reason; that it is being exercised in violation of the Constitution or rights and fundamental freedoms of the applicant. I should also quickly state that a criminal trial is constitutionally mandated and is clothed with staple protection for the accused. Therefore, being subjected to a criminal trial is not per se oppressive or a violation of a person’s rights. Such succinct factors that the process is being used oppressively or on a charge of an offence not know to law, or for purposes of obtaining collateral or other advantages other than bringing the applicant to justice, etc must be established. I find none of these things here. Accordingly, I reject the request for stay of criminal proceedings at Kilgoris CMCCR No. 873 of 2018….”

18. The 1st respondent averred that the petitioners were charged with the offence of illegal connection of water contrary to section 145 (e) as read with section 147 of the Water Act after it carried out inspections and filed an office complaint with the police. The 1st respondent’s evidence regarding the alleged criminal offence is uncontroverted. Further, there was no evidence availed to show that the criminal proceedings were intended to bring the 2nd petitioner injustice and were oppressive.

19. The petitioner’s contention is the illegal detention, in my view that alone should not warrant the stay of the criminal proceedings against the 2nd petitioner, as the same can be remedied by way of damages. I agree with the court’s holding inRepublic v Beatrice Wanthi Musembi [2020] eKLR:“56. Failure to be arraigned in court within 24 hours alone is not an automatic ground for acquittal. Such a claim would require an investigation. The best way of handling it would be to file a claim for damages for unlawful detention among others.”

20. The 2nd petitioner also claimed that she had been charged with two similar charges before the lower court. However, the 1st respondent demonstrated on the contrary that she was again found to have engaged in an illegal connection with the water. The framing of the charge sheet and the defence of double jeopardy can be raised before the trial court.

21. In the end, I find that thenotice of motion dated 15/9/2023 is without merit and is hereby dismissed.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 21ST DAY OF DECEMBER 2023. R.E. OUGOJUDGEIn the presence of:Mr. Ogutu -For the 1st & 2nd PetitionersMr. Oundo -For the 1st Respondent2nd Respondent – Absent3rd Respondent – AbsentRespondent - Absent5th Respondent – AbsentWilkister - C/A