[2022] KEHC 26920 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL REVISION

MISCELLANEOUS CRIMINAL APPLICATION NO. E079 OF 2021

IN THE MATTER OF ARTICLE 2, 19, 20, 22, 23, 25, 27, 29, 47, 48, 49, 50, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF FREEDOM OF SECURITY OF PERSONS

BETWEEN

YOBESH ONWONG’A OYARO...............................................................APPLICANT

-V/S-

DIRECTOR OF PUBLIC PROSECUTION.................................1ST RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATION

MOMBASA CID HEADQUARTERS...........................................2ND RESPONDENT

INSPECTOR GENERAL OF POLICE........................................3RD RESPONDENT

ALIAS MLATIA LAWRENCE.....................................................4TH RESPONDENT

RULING

Application

1. The application dated 30th August 2021 was brought under Articles 19, 21, 22, 28, 29, 49 165 (5), 285 & 257 of the Constitution of Kenya, Section 123 (1) part 5 of the Criminal Procedure Code cap 75, Section 1A, 1B & 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, Bail and Bond Policy of 2015, Rules 3 (1)(2) of the High Court (Practice and Procedure Rules), Section 10 of the Judicature Act, and all other provisions of the law.

2. The Applicant seeks for the following orders from the Honourable Court:-

1. Spent

2. That the Honourable Court does make the following orders in terms of the 4th Respondent:

a. Order completion of investigations by the 2nd Respondent on the Complainant OB No. 46/21/12/20.

b. Order the recommendations for prosecution by the 1st Respondent of the complaint made against the 4th Respondent on the Complainant OB No. 46/21/12/20 at the 2nd Respondent offices within 7 days.

3. That the Honourable Court be pleased to issue the following orders in terms of arrest:

a. An arrest warrant be issued against the 4th Respondent.

b. The 2nd Respondent be compelled to effect the warrant of arrest.

c. In the alternative the Honourable Court does direct an alternative security agency subject to its discretion to effect the said arrest.

4. That the Honourable Court be pleased to order for the immediate investigation, issue arrest warrants for the holders of and or registered owners of the telephone numbers:

a. 010xxxxxxx

b. 011xxxxxxx

c. 079xxxxxx

d. 074xxxxxxx

e. 011xxxxxxx

f. 0712xxxxxx

g. 070xxxxxxx

h. 0720xxxxxx

i. +1253xxxxxxx

j. 0773xxxxxx

5. That the Honourable Court does order for the subsequent arraignment, charging of and prosecution of the arrestees, and or suspects in prayer 2

6. That costs of the suit be in the cause.

3. The application is supported by the Affidavit of Yobesh Onwong’a Oyaro, the Applicant herein, sworn on 30th August 2021 where he stated that he is a retiree being a former employee of the Kenya Ports Authority in the position of Head of Strategies, Kisumu County, and he has been retired since June 2021. That since his retirement after over 39 years of loyal service to the Kenya Ports Authority with a clean record and without any incident, he has since been running his private business with the help of his family. That he is an accountant by profession and is the basis for the business that he currently runs.

4. That on or about December 2020, he became aware of a stranger who introduced himself to him as an investigator and offered unsolicited information of his wife’s alleged indiscretion with others not known to him. That the Applicant did rebuff him after realizing his allegations to be untruthful and thought it the end of the matter. That unbeknownst to him the same individual had approached his wife, Mrs. Truphena Nyaboke and offered a similar proposal to track and inform her of his whereabouts or indiscretions he claimed to know about. That the Applicant’s wife did enlist his services and he did come up with several salacious and scandalous evidence in a bid to cause the Applicant’s wife to open up to him about their personal and business holdings.

5. That on or about the same time, the Applicant and his wife were approached by the 4th Respondent where the Applicant began to receive communication from several unknown numbers by persons unknown to him. That the Applicant being clueless rebuffed the approaches, while the said messages were being collected and forwarded to his wife in the name of the said allegers. That the said con and or fraud was successful and the Applicant’s wife was convinced of the Applicant’s indiscretions and subsequently, she opened up to the 4th Respondent about their private business. That the 4th Respondent did take the information gathered and continued to harass the Applicant for payoffs, threatening him with police action and caused a great rift in the family.

6. That the Applicant reported the incident at the Mombasa CID Headquarters on 21 December, 2020 through OB No. 46/21/12/20. That the Applicant did record a statement the same day detailing the harassment by the 4th Respondent and his various other contact numbers. That on various dates between the report and August 2021, the 4th Respondent and/or others unknown to the Applicant have reached out and made threats, scandalous accusations and/or caused a rift by reaching out to his family and himself. That the Applicant has made several attempts to reach out to the police through the 2nd Respondent to have the suspects arrested but no action has been taken since his initial report in December 2020. That he did make an inquiry through one of the advocates, Lumatete Muchai & Co. Advocates enquiring about the status of the matter through its letter dated 11th August 2021. That he did receive a non-committal response from the CID through the Mombasa Regional Commander on 16th August 2021. That the Applicant did reach out to the 1st Respondent through his other advocates on record, Musyoki Mogaka & Co. Advocates, seeking their guidance and protection as well as a conclusion to the investigations.

7. That the private investigator whom the Applicant has raised several complaints about has been extorting the Applicant based on information he collected out of fraudulent means from the Applicant’s wife. That it is the Applicant’s reasonable suspicion that the investigator who is currently receiving police protection is the basis upon which his current legal issues began.

Response

8. In the Replying Affidavit sworn on 15th August 2021 by Simon Odala Wabwire of DCI Coast Region, in response to Miscellaneous Criminal Application Nos. E077 and E079 of 2020, it is admitted that the Applicant made a complaint vide OB No. 46/21/12/2020 and an investigation file was opened where witness statements were recorded as per annexture SOW 1. It was deponed further that investigations revealed that one of the mobile phones that was used to send messages to the Applicant was registered in the name of his wife Truphena Nyaboke Onwongá who surrendered the phone for analysis but declined to record a statement.

9. That the deponent received a letter dated 12th July 2021 from the firm of Billy Amendi & Co. Advocates addressed to DCI Nairobi and Inspector General of Police complaining about alleged misconduct towards Truphena Nyaboke Onwongá as unethical behavior. The letter alleges that the deponent of the Replying Affidavit forced the wife of the Applicant to surrender her mobile phone and her pin number under threats of physical harm and detention incommunicado which she refused to comply. The advocates demanded for investigations against the deponent with a view to punish him for misconduct and dismissal from duty.

10. Mr. Simon Odala Wabwire also stated that he received a letter dated 10th August 2021 from the firm of Lumatete Muchai & Co. Advocates on behalf of the Applicant requesting for a copy of his witness statement which was availed to them.

11. He further stated that they are in the process of tracking down two suspect in regard to the complaint and that the two suspects are always on the move which has posed a challenge to them as they did not know them physically. Simon Odala Wabwire promised to forward the investigation file to the office of the DPP for review, recommendation and direction once the ongoing investigations are concluded.

12. Although the Applicant filed a Supplementary Affidavit sworn on 12th October 2021 in response to Miscellaneous Criminal Application No. E077 of 2021, the said affidavit makes reference more to the application herein than in Miscellaneous Criminal Application No. E077 of 2021. The Supplementary Affidavit makes reference to parties other than the ones in court and confirms the averments by the Respondents as to the extent of investigations having been carried out and goes further to urge that in the event that his wife Truphena Nyaboke Onwongá is found to be culpable, then she should be considered for mental assessment as she has been treated before for deteriorating mental state and is currently having a difficult time discerning facts from fiction.

13. This application was canvassed by way of written submissions filed on 29th October 2021 and 5th November 2021 by the Applicant and Respondents respectively. The submissions filed were to apply to the applications in Miscellaneous Criminal Application No. E077 of 2021 and Miscellaneous Criminal Application No. E079 of 2021.

Applicants’ Submissions

14. The Applicant’s submissions in respect to the Notice of Motion application dated 30th August 2021 are to the effect that the Respondent having admitted that they have identified the crime having been committed and that they have identified the assailants, the suspects should be arrested immediately and arraigned before the appropriate court to answer to the charge they have committed against the Applicant.

15. It was further submitted that the actions of the respondents and the intended interested party contravenes the 1st Applicant’s rights as protected under Article 31 as read with Article 50(4) of the Constitution and as such the application ought to be allowed as prayed.

Respondents’ Submissions

16. In the Respondents’ submissions, the issue for determination is whether for recommendation of prosecution of the 4th Respondent by the 1st Respondent should issue.

17. It was submitted that the High Court is established under Article 165 of the Constitution, 2010 and is conferred with the jurisdiction to determine questions whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened as provided in Articles 165 (3) (b) among others. The Respondents further submitted that Articles 258, 259 and 260 provides for enforcement of rights or fundament freedoms in the Bill of Rights by every person irrespective of their standing. In that respect, it was argued that the Applicant herein had a right to move the court under Articles 22, 23, 25, 27, 29, 47, 48, 49, 50, 259, and 260 of the Constitution for the remedies set out in Article 23 of the Constitution, among others.

18. The Respondents were cognizant of the fact that under the Constitution there is a duty by the court to protect the functional administrative and operational independence of the 2nd and 3rd Respondents but also, there is also a corresponding duty to protect citizens against exercise of functions by state agencies in a manner that violates the Constitution, and in the context of the present cause, to ensure that the 2nd and 3rd Respondents exercise their functions with due regard to public interest, the interest of public administration of justice and the need to prevent and avoid abuse of the legal process.

19. They submitted that there is usually a need to safeguard the sanctity of the criminal process and avoid any gross abuse from the onset of criminal proceedings to their finality. Reliance was placed on the decision in Investments & Mortgagees Bank Limited (I&M) v Commissioner of Police and the Director of Criminal Investigations Department & DPP, & 2 Others [2013] eKLR where the court asserted its duty to ensure that its process IS not abused or otherwise used to perpetuate injustice or for improper motives.

20. Regarding the mandate of the Respondents as provided for under Section 24 of the National Police Service Act No. 11 A of 2011, the Respondents prayed that in consideration of the Applicant’s Supplementary Affidavit, it is only fair that the police are allowed to complete their investigations as they had already tracked down two suspects connected with the complaint made by the Applicant before forwarding the file to the DPP for review and comments before making the decision to charge.

21. The Respondents relied on the holdings in Cape Holdings Limited v Attorney General & Another [2012] eKLR and Charles Okello Mwenda v Ethics and Anti-corruption Commission & 3 Others [2014] eKLR to emphasize on their mandate under the Constitution and the Police Service Act.

Analysis and Determination

22. This court has considered the Notice of Motion Application dated 30th August 2021, the Supporting Affidavit thereto sworn by the Applicant, Yobesh Onwong’a Oyaro on the same day, the Replying Affidavit sworn by Simon Odala Wabwire on 15th August 2021 in Miscellaneous Criminal Application No. E077 of 2021 and the Supplementary Affidavit sworn by the Applicant on 12th October 2021 and coupled with the submissions filed by the parties herein as well as all enabling provisions of the law, the following issues arise for determination:-

a) Whether an order should be issued compelling the 2nd Respondent to investigate the Applicant’s Complaint in OB No. 46/21/12/20.

b) Whether an order should be issued for arrest and prosecution of the 4th Respondent by the 2nd and the 1st Respondent.

Whether an order should be issued compelling the 2nd Respondent to investigate the Applicant’s Complaint in OB No. 46/21/12/20.

23. The Applicant recorded a complaint on 21st December 2020 against the 4th Respondent at Mombasa CID Headquarters under OB No. 46/21/12/20 for a number of crimes which include but are not limited to harassment, impersonating an investigator, impersonating female persons unknown to the Applicant, and fraud.

24. From the response by Simon Odala Wabwire in the Replying Affidavit sworn on 15th August 2021, there is evidence that investigations into the Applicant’s complaints have reached at an advanced stage despite inordinate delay which haven explained to be as a result of the suspects always being on the move and the fact that one of the suspects who has failed to cooperate with the police is the Applicant’s own spouse. She has refused to record a statement regarding the use of her mobile phone to send messages to the Applicant. In the Applicant’s Supplementary Affidavit he confirms the averments by the Respondents as to the extent of investigations having been carried out and goes further to urge that in the event that his wife Truphena Nyaboke Onwongá is found to be culpable, then she should be considered for mental assessment as she has been treated before for deteriorating mental state and is currently having a difficult time discerning facts from fiction.

25. In consideration of the above findings, this court can only urge the Respondent to expedite on their investigations within the next 30 days and forward the investigation file to the DPP for recommendations whether to prosecute or not.

Whether an order should be issued for arrest and prosecution of the 4th Respondent by the 2nd and the 1st Respondent.

26. In the Notice of Motion application dated 30th August 2021 the Applicant prayed for orders of arrest to be issued against the 4th Respondent and that the 2nd Respondent be compelled to execute warrants of arrest, and that in the alternative the Honourable Court does direct an alternative security agency subject to its discretion to effect the said arrest.

27. Having found in the first issue that investigations are ongoing and are at an advanced stage, it would be arbitrary to make an order for arrest before the conclusion and recommendation for prosecution particularly where the Applicant’s own spouse is not cooperating and where the Applicant has given caution in his Supplementary Affidavit at paragraph 23 that this criminal issue is also a family issue and should be handled with some care and caution by the state.

28. AlthoughSection 24of theNational Police Service Act No 11 A of 2011sets out functions of the Kenya Police Service including apprehension of offenders among other duties, the exercise of those duties must guard against violation of rights and fundamental freedom in the Bill of Rights under Chapter 4, Articles 19 to 51 of the Constitution of Kenya, 2010.

29. In the case of Anthony Njenga Mbuti & 5 others v Attorney General & 3 others [2015] eKLR,it was held as follows:-

“That the conduct by law enforcement officers profiling suspects on mere suspicion, arresting and detaining them with no evidence of crime committed is arbitrary and discriminatory guaranteed in our constitution.”

30. Regarding whether an order should issue for prosecution of the 4th Respondent, the same is also dependant on the conclusion of investigations and forwarding of the file to the DPP for recommendations as to whether to arrest and prosecute or not.

31. The mandate of the office of the DPP is clearly provided for under Article 157of theConstitution of Kenyaas follows:-

157 (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 and

c) Subject to clause (7) and (8) discontinue at any stage before Judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions under paragraph (b).

32. Section 6 of the Office of the Director of Public Prosecution Act, 2013also states:-

“Pursuant to Article 157(10) of the Constitution, the Director shall:-

a) Not require the consent of any person or authority for the commencement of criminal proceedings;

b) Not be under the direction or control of any person or authority in the exercise of his or her powers or functions under the constitution, this Act or any other written law and;

c) Be subject only to the constitution and the law.”

33. This courts finds that the decision as to whether or not to commence criminal proceedings lies with the DPP exercising discretion, and guided by the evidence available, public interest considerations, as well as the need to prevent and avoid abuse of criminal justice process. If the DPP’s decision to charge is legal and within the bounds of legal reasonableness, the court cannot interfere with that role. If the DPP acts outside the bounds of legal reasonableness, they act ultra vires and at that point the court can intervene because it is the court’s high responsibility and inherent power to secure fair treatment for all persons brought before it and to prevent an abuse of the court’s process. As it stands, the application before court is premature because investigations have not been concluded and there is no evidence that the 2nd Respondent has failed to prosecute where evidence has been availed sufficient to register a charge against any suspect.

34. In conclusion and for the avoidance of doubt, the application dated 30th August 2021 is not allowed save that the 2nd and 3rd Respondents are hereby ordered to undertake and conclude the investigations herein within 30 days of the date of this ruling and forward the investigations file for their prompt action as to prosecution or otherwise.

35. In consideration of the nature of this application, parties will bear their own costs. Orders accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 4TH DAY OF FEBRUARY 2022

HON. LADY JUSTICE A. ONG’INJO

JUDGE

In the presence of:-

Ogwel- Court Assistant

Ms. Ongeti holding brief for Mr. Mulamula for 1st Respondent

Ms. Ongeti holding brief for Mr. Makuto for 2nd and 3rd Respondents

Mr. Mogaka for Applicants - present

HON. LADY JUSTICE A. ONG’INJO

JUDGE