Introduction
1. The Petition dated 7/8/2024 was amended on 9/12/2024. The Petitioner swore two affidavits in support; the affidavit accompanying the original Petition sworn on 7/8/2024 and the verifying affidavit to the amended Petition sworn on 9/12/2024.
2. The Petitioner challenges the 1 st Respondent’s inconsistency on the decision to charge, whereby on 8/4/2024; the 1 st Respondent declined to charge the Petitioner with the offence of assault causing actual bodily harm relating to a complaint made by the 4 th Respondent against the Petitioner concerning an incident which occurred at Peponi School on 28/1/2024 only for the 1 st Respondent to subsequently change its position on 1/8/2024 by recommending Petitioner be charged with the same offence without any new or additional evidence to justify its position despite having directed the 3 rd Respondent to conduct further investigation.
3. The Petitioner thus contends that the decision to charge is devoid of any factual basis, arbitrary, and constitutes abuse of prosecutorial discretion hence unconstitutional, null and void.
4. Consequently, the petitioner seeks the following reliefs:
1. A declaration that the Directive by the 1st Respondent dated 1 st August 2024 to charge the Petitioner with the offence of Assault Causing Actual Bodily Harm is illegal, unlawful and unconstitutional and null and void ab initio.
2. A declaration that the charging of the Petitioner after investigations were carried out and the police finding that there is was no additional material sufficient to charge the Petitioner is therefore illegal, unlawful, unconstitutional and null and void ab initio.
3. An order of CERTIORARI suspending and/or staying quashing the 1st Respondent’s directive to charge the Petitioner with the offence of Assault Causing Actual Bodily Harm as communicated in their its letter dated 1 st August 2024 and all subsequent consequential actions thereto including the intended arrest, arraignment and charging of the Petitioner.
4. An Order of PROHIBITION prohibiting the Respondents, whether acting by themselves or their agents, servants or any other persons acting under their instructions or authority, from arresting, arraigning, confining, holding, and charging and prosecuting the Petitioner with the alleged offence of assault causing actual bodily harm arising from the incident between him and the 4th Respondent which occurred on 28th January 2024 at Peponi School, Brookside, Kahawa Sukari Area in Ruiru SubCounty within Kiambu County.
5. Damages for violation of the Petitioner’s constitutional rights.
6. Such other orders or reliefs as may be fair, just, necessary and appropriate in the circumstances. 7. The costs of this Amended Petition.
Petitioner’s Case
5. For context, the Petitioner explained that the circumstances leading to the filing of the complaint of assault against him by the 4 th Respondent and the subsequent contradictory decisions by the 1 st Respondent on decision to charge culminating with the latest of 1/8/2024 in which the 1 st Respondent directed the 3 rd Respondent to charge him within 7 days as follows.
6. On 28/1/2024, the Petitioner and the 4 th Respondent, (complainant in the assault case), had attended the Hog Charge , an event held at the Peponi School where they are both parents ( their sons are pupils) to raise funds for conservation.
7. The Petitioner accidentally bumped into the 4 th Respondent who complained that he had been injured as a result hence lodged a complaint against the Petitioner with the 3rd Respondent.
8. The 4 th Respondent was medically examined and his P.3 form filled. According to the Petitioner, despite the 4th Respondent complaining that the point of impact was the chest, the P3 form ( exhibit AF 5 ) which was filled and provided to the 3 rd and the 1st Respondent had no documented injuries on the chest.
9. Nevertheless, as a result of the complaint, the Petitioner was summoned at Kahawa Sukari Police Station and arrested on the 23 rd February 2024. He was subsequently released on cash bail of Kshs. 50,000.00.
10. The Petitioner deposed that on 8 th April 2024, the Office of the Director of Public Prosecution (ODPP), Kiambu County, wrote to the Office of the Director of Public Prosecution in-charge, Ruiru Sub-County ( letter exhibit AF 3 ) indicating that the evidence on record was insufficient to warrant institution of criminal proceedings against the Petitioner and thus directed that the file be closed for lack of sufficient evidence.
11. On 9 th April 2024, via the letter exhibit 4 , ODPP (Ruiru Sub-County) instructed the OCS, Kahawa Sukari Police Station to close the police file with no further action in the light of the findings and direction from the ODPP-Kiambu County.
12. However, on 23rd May 2024, Office of the Director of Public Prosecution, through Senior Principal Prosecution Counsel Amugo Alenga , in a letter to the Officer in Charge, Kahawa Sukari Police Station, ( exhibit AF 5 ) that made reference to the incident of 28 th January 2024 at Peponi School between the Petitioner and the 4th Respondent, directed that further investigations into the matter be conducted and the findings and recommendations be furnished to the DPP.
13. As directed by the letter of 23rd May 2024, further investigations were conducted but no additional evidence or material was found by the 3 rd Respondent to justify a further recommendation for the review of the decision to charge to 1 st Respondent.
14. The Petitioner deposed that a letter from Tariq Khan & Associates Advocates dated 16th April 2024 is referenced in the 1st Respondent’s directive of 23/5/2024 directing further investigations, hence he believes that it had exerted undue influence to the 1 st Respondent to reopen the already closed matter.
15. The Petitioner further deposed that there is a pending civil case Milimani Civil Case No. E094 of 2023 – Colleta Sebby Abonyo vs Gabriel Oser & Joanna Block (the Civil Matter), between the caregiver of the Petitioner’s son and the 4 th Respondent and his wife, in Colleta Sebby Abonyo (the Caregiver) has sued the 4th Respondent and his wife - (Pleadings - exhibit “AF-6”). The civil case arose when the 4 th Respondent’s English bulldogs attacked and severely injured Colleta Sebby Abonyo as she was attempting to shield the Petitioner’s son (Desmond Fiksman Lowitt) from an imminent attack from the 4 th Respondent’s dogs who at the time had visited the 4 th Respondent’s son, Valentine Oser so that they could play.
16. Following this incident, the 4th Respondent and his wife pledged to settle all the medical expenses for Colleta Sebby Abonyo, which at the date of filing the Civil case stood at Kshs. 1,290,698 but the 4 th Respondent and his wife had only settled Kshs. 1,065,488.60, and refused to pay any further medical bills.
17. The Petitioner thus believes that the 4 th Respondent is influencing the reopening of the criminal matter so as to get back at him due to and pile pressure on him in respect of the said civil matter.
18. In the light of the above, the Petitioner avers that 1 st Respondent decision to revive the charge against him is unreasonable, irrational and malicious, violates Article 157 (10) of the Constitution that mandates the Director of Public Prosecution in the exercise of his powers or functions, not be under the direction or control of any person or authority, is against the principle of administration of justice, protection of public interest and an abuse of the legal process, observance of democratic values and principles and promotion of constitutionalism.
Respondent’s Case
19. In opposition to the Petition, the 1 st Respondent filed grounds of opposition dated 16 th September, 2024 through the Senior Principal Prosecution Counsel, Amugo Alenga . The 1 st Respondent grounds are as follows:
1. THAT the Petitioner has not met the threshold for the grant of any of the prayers sought in the instant Petition.
2. THAT the Petition is founded on a misapprehension of the law as relates to the powers of the 1st Respondent to institute and undertake criminal proceedings including the power to review investigation and case files vis-à-vis the investigative powers of the 2nd to 4th Respondents.
3. THAT the 1st Respondent's power to review investigation and case files is a continuous one and can be exercised at any time depending on the circumstances of the case, and the change thereof.
4. THAT the 1st Respondent's review of the decision to charge, and more specifically the change from the decision not to charge vide the letter dated 8th April 2024 to the decision to undertake further investigations vide the letter dated 23rd May 2024, and the decision to charge vide the letter dated 1st August 2024, was based on the foregoing continuous power to review investigation and case files.
5. THAT legitimate expectation can neither rise nor operate contrary to the law.
6. THAT the Petitioner has neither specifically particularized nor proved how any of his rights and fundamental freedoms have been violated and or threatened with violation as alleged or at all.
7. THAT the Petition is further premised on a misapprehension of the law as the existence of a civil suit is not a bar to the intended criminal charges against the Petitioner.
8. THAT the Petition is further founded on controverted facts which would best be tested, weighed and determined by a trial court, and which this Honorable Court is not best suited to consider and determine. 9.
9. THAT the intended prosecution of the Petitioner is informed by, and will be undertaken in strict compliance and conformity to, the Constitution of Kenya, 2010, relevant Statutes and the Office of the Director of Public Prosecutions (ODPP) Decision to Charge Guidelines, 2019, and therefore does not in any way pose any threat of violation of Petitioner's rights and fundamental freedoms.
10. THAT consideration of the instant Petition by this Honorable Court would not only amount to an unjustified interference by the Court in the Respondents' exercise of the 1 st Respondent's constitutional mandate but would also amount to an overreach of subordinate courts' mandate to hear and determine the intended criminal case.
11. THAT the Petition is intended solely to derail and or further delay the institution of the intended criminal proceedings against the Petitioner and is therefore vexatious, frivolous and an abuse of the legal process.
12. THAT it is in the interest of justice and public interest that the prayers sought in the instant application be declined.
4 th Respondent's Grounds Of Opposition
20. The 4 th Respondent filed grounds of opposition dated 15 th September, 2024 through Tariq Khan & Associates Advocates.
21. He objected to the Petition on the following grounds:
1. THAT the Petitioner has not met the threshold for the grant of any of the prayers sought in the instant Petition.
2. THAT the Petition is founded on a misapprehension of the law as relates the powers of the 1 st Respondent to institute and undertake criminal proceedings including the power to review investigation and case files vis-à-vis the investigative powers of the 2nd to 4th Respondents.
3. THAT legitimate expectation can neither rise nor operate contrary to the law.
4. THAT the Petitioner has neither specifically particularized nor proved the manner in which any of his rights and fundamental freedoms have been violated and or threatened with violation as alleged or at all.
5. THAT the Petition is further premised on a misapprehension of the law as the existence of a civil suit is not a bar to the intended criminal charges against the Petitioner.
6. THAT the Petition is further founded on controverted facts which would best be tested, weighed and determined by a trial court, and which this Honorable Court is not best suited to consider and determine.
7. THAT the intended prosecution of the Petitioner is informed by, and will be undertaken in strict compliance and conformity to, the Constitution of Kenya, 2010, relevant Statutes and the Office of the Director of Public Prosecutions (ODPP) Decision to Charge Guidelines, 2019, and therefore does not in any way pose any threat of violation of Petitioner's rights and fundamental freedoms.
8. THAT a consideration of the instant Petition by this Honorable Court would not only amount to an unjustified interference by the Court in the Respondents' exercise of the 1st Respondent's constitutional mandate but would also amount to an overreach of subordinate courts' mandate to hear and determine the intended criminal case.
9. THAT the Petition is intended solely to derail and or further delay the institution of the intended criminal proceedings against the Petitioner and is therefore vexatious, frivolous and an abuse of the legal process.
10. THAT it is in the interest of justice and public interest that the prayers sought in the instant application be declined.
SUBMISSIONS BY THE PARTIES
Petitioner’s Submissions
22. The Petitioner opened his submission by recapitulating the material facts constituting the basis of his case against the Respondents. I shall not reproduce them here as they are already captured in the review of the respective parties’ cases which I have set out in this judgment.
23. The Petitioner picked out and submitted on the following three issues:
1. Whether the directive to charge the Petitioner with Assault Causing Bodily Harm violates his rights to fair administrative action under Article 47 of the Constitution,
2. Whether the decision by the 1st Respondent was influenced by external factors, rendering it unconstitutional and in violation of the principle of prosecutorial independence under Article 157(10) of the Constitution, and
3. Whether the pending civil matter between the parties influenced the 1st Respondent’s decision to prosecute, amounting to an abuse of the legal process.
24. On the first issue of whether the directive to charge the Petitioner with Assault Causing Bodily Harm violates his rights to fair administrative action under Article 47 of the Constitution, the Petitioner alluded to Article 47 of the Constitution of Kenya, 2010 which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. The Petitioner submitted that the 1st Respondent’s directive to charge him, after previously deciding that there was insufficient evidence, is irrational and unreasonable.
25. The Petitioner argued that although Article 157 of the Constitution, 2010 gives DPP independence in the exercise of its duties, Article 157(11) enjoins the DPP to have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process.
26. The Petitioner argued that through the letter of 8th April 2024, the 1st Respondent wrote to the ODPP in-charge, Ruiru Sub-County, informing them of their finding that the evidence on record was insufficient to warrant the institution of criminal proceedings against the Petitioner and directed that the file be closed for lack of sufficient evidence. Further, they recommended that the 4th Respondent, who is the Complainant, and the Petitioner resolve their existing dispute by way of Alternative Dispute Resolution.
27. The Petitioner highlighted the 1 st Respondent opinion on the evidence which was outlined in the said letter as follows:
“… The Petitioner and the 4th Respondent have a history of civil litigation and that had clearly brought bad blood between them; The incident of an alleged assault on 28th January 2024 at Peponi School, Brookside, Kahawa Sukari Area occurred at a public function and, while there were many people in attendance, there was no independent witness to corroborate the 4th Respondent's version and that of his wife; It was difficult to reconcile how the chest injury complained on by the 4th Respondent caused stiffness of the neck documented in the P3 form; The Petitioner is alleged to have hit the 4th Respondent on the chest where no injuries or even pain was documented on the medical documents; The injuries complained of were on the neck which the 4th Respondent himself confirmed to have had a history of injury; It was difficult to answer the question whether the Incident was an intentional assault or an accident; and Therefore, a charge of assault causing bodily harm could not stand as it could not be demonstrated that the 4th Respondent had actually suffered injuries occasioned by the alleged acts of the Petitioner.”
28. As a result, 1 st Respondent, the Prosecution Counsel at the 1st Respondent’s Ruiru Sub-County Office on 9th April 2024, instructed the 3rd Respondent to close the police file with no further action based on the findings from the ODPP Kiambu County.
29. The Petitioner submitted that based on the aforementioned letter, that the 1 st Respondent’s decision not to charge the Petitioner and consequential instructions to the 3rd Respondent to close the police file created a legitimate expectation in the Petitioner that the Incident had been exhaustively investigated and that no criminal proceedings in respect thereof would be instituted against the Petitioner hence it was inexplicable that later on 23rd May 2024, the 1st Respondent through Senior Principal Prosecution Counsel Amugo Alenga, wrote a letter to the 3rd Respondent, walking back on its instructions that the police be closed and instead directing the 3rd Respondent to conduct further investigations into the Incident and cover three specific areas:
a) Record statements of the witnesses who had been mentioned and any others that could be availed by the 4th Respondent to buttress his allegations;
b) Record further statements for the 4th Respondent and his wife to ascertain his state before the Incident; and
c) Find out if there is any medical history of when last the 4th Respondent has been treated for the neck injury.
30. That even after further investigations were conducted as directed by the 1st Respondent no evidence or material that could warrant a review of the initial decision not to charge. That the subsequent decision to charge the Petitioner with Assault Causing Bodily Harm was not supported by any new finding, yet the 1 st Respondent in its letter dated 1 st August 2024, directed the 3rd Respondent to charge the Petitioner with the offence of Assault within Seven (7) days.
31. The Petitioner contended that the reversal of the decision to charge was made in the circumstances that did not satisfy the standards of objectivity as required by the Decision to Charge Guidelines as there was no new evidence or material that could have warranted a review of the earlier decision by the 1st Respondent not to charge the Petitioner. He argued that a reasonable prosecutor acting on the facts presented by the 3rd Respondent would not have arrived at the decision to charge the Petitioner the decision to charge him did satisfy the evidential test as defined by the Guidelines. The Petitioner referred to the ‘ Decision to charge guidelines’ which state thus:
“… The decision to charge is the Prosecution Counsel’s determination as to whether evidence availed by an investigator or investigative agencies is sufficient to warrant the institution of prosecution proceedings against an accused person in a Court of law. Due to its intrusive nature and potential adverse effect of the decision on the life, liberty or property of an accused person, it is the most important decision that is made by any prosecutor. The independence of the DPP and other institutions of prosecution revolves around this decision. Prosecutors are required to, and must exercise, due care in making the decision to charge…. The decision to charge or not to charge requires an objective and independent analysis of the case. Whilst the roles of the investigator and prosecutor are complementary, ultimately the decision to charge rests with the prosecutor, who must assess whether it is appropriate and what charges to prefer for a court to consider. It is the duty of a prosecutor to ensure that the right person is prosecuted for the right offence, properly applying the law and ensuring that relevant evidence is submitted before the court and that disclosure obligations are complied with…”
32. The Petitioner further submitted that the 1 st Respondent was influenced by the 4 th Respondent thereby contravening the principle of prosecutorial independence in violation of Article 157(11) of the Constitution as read together with Section 4 and 6B of the Office of the Director of Public Prosecution Act rendering the decision unlawful and unconstitutional. He argued that in revising the initial decision not to charge dated 9/4/2024 and substituting it with the decision to chare dated 1/8/2024; the 1 st Respondent was influenced by the 4 th Respondent’s legal counsel, a fact that is apparent in the 1 st Respondent’s letter of 23rd May 2024, where the 1 st Respondent mentions the intervention by the 4 th Respondent’s Advocate. The Petitioner submitted thus:
“… Though the Petitioner does not know or had sight of the contents of the mentioned letter of Tariq Khan Advocate dated 16th April 2024 in the 1 st Respondent letter dated 23rd May 2024 (annexure marked “AF5” in the Petitioner’s Supporting Affidavit), we suspect that the same might have had some kind of influence, some authority that might have had some kindle in the issuance of the directive to charge the Petitioner…”
33. Counsel underscored the critical significance of the independence of the Director of Public Prosecution by citing an excerpt in the case of Thuita Mwangi & Anor vs. The Ethics and Anti-Corruption Commission & 3 Others Petition No. 153 & 369 of 2013 in which the Court observed thus:
“The decision to institute criminal proceedings by the DPP is discretionary. Such exercise of power is not subject to the direction or control by any authority as Article 157(10) …These provisions are also replicated under Section 6 of the Office of the Director Public Prosecutions Act, No. 2 of 2013…”
34. Additionally, the case of Regina v Director of Public prosecution ex parte Kebeline and others [1999] 4 All ER which emphasized that the DPP’s decision to institute charges is rarely interfered with unless actuated by dishonesty, bad faith, or exceptional circumstances.
35. Concerning the pending civil case (Milimani Civil Case No. E094 of 2023) between the Petitioner’s caregiver and the 4th Respondent, the Petitioner submitted that the actions of the 4 th Respondent were motivated by ulterior motives and the intended criminal prosecution is a retaliatory measure designed to pressure the Petitioner in the pending civil matter hence abuse of the legal process. He urged the Court to reject attempts to allow the criminal justice system to be used for personal vendettas.
1 st RESPONDENTS’ SUBMISSIONS
36. The 1st Respondent filed written submissions dated 7 th November, 2024 through Victor John Owiti , the Principal Prosecution Counsel .
37. He reiterated that the Petition was opposed by the Respondents through the Statement of Grounds of Opposition dated 16th September 2024.
38. He identified and submitted on the following issues:
(a) Whether the Petition is founded on a misapprehension of the law.
(b) Whether the Petitioner can properly claim legitimate expectation as a bar to the intended criminal charges against him.
(c) Whether the existence of a civil suit is a bar to the intended criminal charges against the Petitioner.
(d) Whether controverted facts can be the basis of a Petition seeking the prohibition of the exercise of Respondents’ respective mandate.
39. On whether the petition is founded on a misapprehension of the law; the 1 st Respondent argued that the Petition challenges the powers of the 1 st Respondent to institute and undertake criminal proceedings vis-à-vis the investigative powers of the 2nd to 4th Respondents. He submitted that the 1 st Respondent is vested with State powers of prosecution including the power to institute criminal proceedings from which flows the power to make the decision to charge, and to continuously review the such decisions depending on the circumstances of the case, in accordance with the Constitution, the Office of the Director of Public Prosecutions Act, and the Office of the Director of Public Prosecutions Decision to Charge Guidelines.
40. The 1 st Respondent submitted that its power of review can be exercised at any time depending on the circumstances of the case.
41. In regard to the 1 st Respondent’s review of the decision to charge, from the decision not to charge communicated through the letter of 8 th April 2024 to the decision to undertake further investigations as conveyed in the letter dated 23rd May 2024, and subsequently the decision to charge as directed in the letter dated 1st August 2024, the 1 st Respondent submitted that it was based on the ongoing continuous power to review investigation and case files in which the 1 st Respondent established that there, in fact, existed sufficient factual and legal basis for the institution of criminal proceedings against the Petitioner.
42. On the question of whether the existence of the civil suit is a bar to the intended criminal charges, the 1 st Respondent, citing Section 193A of the Criminal Procedure Code, submitted that the existence of a civil suit is not a bar to the concurrent criminal proceedings
43. On whether the petitioner can properly claim legitimate expectation as a bar to the intended charges; the 1 st Respondent submitted that legitimate expectation can neither rise nor operate contrary to the law. To buttress this position, the 1 st Respondent relied on
Risk Africa Innovatis Limited v. Smartmatic International Holdings B.V.A & 3 Others , where the Court of Appeal stated inter alia that:
“… We do not agree with the appellant’s counsel assertion that the mere listing of the appeal for hearing created a legitimate expectation that the appeal would be heard and determined on its merits. It is trite law that legitimate expectation cannot operate contrary to the law...”
44. Further the Mombasa High Court decision of Republic v. Kenya Revenue Authority ex parte Proto Energy Limited the Court found holding that the applicant had not satisfied the tests for the doctrine of legitimate expectation, stated inter alia that:
“Statutory words override an expectation howsoever founded. A decision maker cannot be required to act against clear provisions of a statute just to meet one’s expectations otherwise his decision would be out rightly illegal and a violation of the principle of legality, a key principle in Rule of Law. There cannot be legitimate expectation against the clear provisions of a statute...”
45. On the issue of whether controverted facts can be the basis of the prayers sought urged the Court to reject the invitation to undertake a merit-review of the controverted evidence, and exercise deference to the trial court which is supposed to analyze the merits of the disputed facts in a trial after hearing testimony, cross-examination of witnesses and examining evidence adduced.
46. The 1 st Respondent submitted that the Petitioner has attempted to characterize the criminal matter as a civil dispute by providing alternative facts from those relied on by the Respondents. Counsel submitted this variance between the relied upon the Petitioner and Respondents means there are controverted facts which should best be tested, weighed and determined by the trial court, which this Honorable Court is not best suited to consider and determine.
47. The 1 st Respondent relied on the Supreme Court in Praxidis Namoni Saisi & 7 Others v. DPP in which the court in emphasized that such controverted facts are not suited for determination by a Judicial Review Court but by a trial court, by inter alia stating thus:
“ In order for the court to get through this extensive examination of Section 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence . The controverted evidence is best addressed by the person, body or authority in charge… Be that as it may, it is the Court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter . Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialized institutions are better placed to do so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in Section 11 (1) and (2) of the Fair Administrative Actions Act. Third, the Court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an im
[...truncated]
1. The Petition dated 7/8/2024 was amended on 9/12/2024. The Petitioner swore two affidavits in support; the affidavit accompanying the original Petition sworn on 7/8/2024 and the verifying affidavit to the amended Petition sworn on 9/12/2024.
2. The Petitioner challenges the 1 st Respondent’s inconsistency on the decision to charge, whereby on 8/4/2024; the 1 st Respondent declined to charge the Petitioner with the offence of assault causing actual bodily harm relating to a complaint made by the 4 th Respondent against the Petitioner concerning an incident which occurred at Peponi School on 28/1/2024 only for the 1 st Respondent to subsequently change its position on 1/8/2024 by recommending Petitioner be charged with the same offence without any new or additional evidence to justify its position despite having directed the 3 rd Respondent to conduct further investigation.
3. The Petitioner thus contends that the decision to charge is devoid of any factual basis, arbitrary, and constitutes abuse of prosecutorial discretion hence unconstitutional, null and void.
4. Consequently, the petitioner seeks the following reliefs:
1. A declaration that the Directive by the 1st Respondent dated 1 st August 2024 to charge the Petitioner with the offence of Assault Causing Actual Bodily Harm is illegal, unlawful and unconstitutional and null and void ab initio.
2. A declaration that the charging of the Petitioner after investigations were carried out and the police finding that there is was no additional material sufficient to charge the Petitioner is therefore illegal, unlawful, unconstitutional and null and void ab initio.
3. An order of CERTIORARI suspending and/or staying quashing the 1st Respondent’s directive to charge the Petitioner with the offence of Assault Causing Actual Bodily Harm as communicated in their its letter dated 1 st August 2024 and all subsequent consequential actions thereto including the intended arrest, arraignment and charging of the Petitioner.
4. An Order of PROHIBITION prohibiting the Respondents, whether acting by themselves or their agents, servants or any other persons acting under their instructions or authority, from arresting, arraigning, confining, holding, and charging and prosecuting the Petitioner with the alleged offence of assault causing actual bodily harm arising from the incident between him and the 4th Respondent which occurred on 28th January 2024 at Peponi School, Brookside, Kahawa Sukari Area in Ruiru SubCounty within Kiambu County.
5. Damages for violation of the Petitioner’s constitutional rights.
6. Such other orders or reliefs as may be fair, just, necessary and appropriate in the circumstances. 7. The costs of this Amended Petition.
Petitioner’s Case
5. For context, the Petitioner explained that the circumstances leading to the filing of the complaint of assault against him by the 4 th Respondent and the subsequent contradictory decisions by the 1 st Respondent on decision to charge culminating with the latest of 1/8/2024 in which the 1 st Respondent directed the 3 rd Respondent to charge him within 7 days as follows.
6. On 28/1/2024, the Petitioner and the 4 th Respondent, (complainant in the assault case), had attended the Hog Charge , an event held at the Peponi School where they are both parents ( their sons are pupils) to raise funds for conservation.
7. The Petitioner accidentally bumped into the 4 th Respondent who complained that he had been injured as a result hence lodged a complaint against the Petitioner with the 3rd Respondent.
8. The 4 th Respondent was medically examined and his P.3 form filled. According to the Petitioner, despite the 4th Respondent complaining that the point of impact was the chest, the P3 form ( exhibit AF 5 ) which was filled and provided to the 3 rd and the 1st Respondent had no documented injuries on the chest.
9. Nevertheless, as a result of the complaint, the Petitioner was summoned at Kahawa Sukari Police Station and arrested on the 23 rd February 2024. He was subsequently released on cash bail of Kshs. 50,000.00.
10. The Petitioner deposed that on 8 th April 2024, the Office of the Director of Public Prosecution (ODPP), Kiambu County, wrote to the Office of the Director of Public Prosecution in-charge, Ruiru Sub-County ( letter exhibit AF 3 ) indicating that the evidence on record was insufficient to warrant institution of criminal proceedings against the Petitioner and thus directed that the file be closed for lack of sufficient evidence.
11. On 9 th April 2024, via the letter exhibit 4 , ODPP (Ruiru Sub-County) instructed the OCS, Kahawa Sukari Police Station to close the police file with no further action in the light of the findings and direction from the ODPP-Kiambu County.
12. However, on 23rd May 2024, Office of the Director of Public Prosecution, through Senior Principal Prosecution Counsel Amugo Alenga , in a letter to the Officer in Charge, Kahawa Sukari Police Station, ( exhibit AF 5 ) that made reference to the incident of 28 th January 2024 at Peponi School between the Petitioner and the 4th Respondent, directed that further investigations into the matter be conducted and the findings and recommendations be furnished to the DPP.
13. As directed by the letter of 23rd May 2024, further investigations were conducted but no additional evidence or material was found by the 3 rd Respondent to justify a further recommendation for the review of the decision to charge to 1 st Respondent.
14. The Petitioner deposed that a letter from Tariq Khan & Associates Advocates dated 16th April 2024 is referenced in the 1st Respondent’s directive of 23/5/2024 directing further investigations, hence he believes that it had exerted undue influence to the 1 st Respondent to reopen the already closed matter.
15. The Petitioner further deposed that there is a pending civil case Milimani Civil Case No. E094 of 2023 – Colleta Sebby Abonyo vs Gabriel Oser & Joanna Block (the Civil Matter), between the caregiver of the Petitioner’s son and the 4 th Respondent and his wife, in Colleta Sebby Abonyo (the Caregiver) has sued the 4th Respondent and his wife - (Pleadings - exhibit “AF-6”). The civil case arose when the 4 th Respondent’s English bulldogs attacked and severely injured Colleta Sebby Abonyo as she was attempting to shield the Petitioner’s son (Desmond Fiksman Lowitt) from an imminent attack from the 4 th Respondent’s dogs who at the time had visited the 4 th Respondent’s son, Valentine Oser so that they could play.
16. Following this incident, the 4th Respondent and his wife pledged to settle all the medical expenses for Colleta Sebby Abonyo, which at the date of filing the Civil case stood at Kshs. 1,290,698 but the 4 th Respondent and his wife had only settled Kshs. 1,065,488.60, and refused to pay any further medical bills.
17. The Petitioner thus believes that the 4 th Respondent is influencing the reopening of the criminal matter so as to get back at him due to and pile pressure on him in respect of the said civil matter.
18. In the light of the above, the Petitioner avers that 1 st Respondent decision to revive the charge against him is unreasonable, irrational and malicious, violates Article 157 (10) of the Constitution that mandates the Director of Public Prosecution in the exercise of his powers or functions, not be under the direction or control of any person or authority, is against the principle of administration of justice, protection of public interest and an abuse of the legal process, observance of democratic values and principles and promotion of constitutionalism.
Respondent’s Case
19. In opposition to the Petition, the 1 st Respondent filed grounds of opposition dated 16 th September, 2024 through the Senior Principal Prosecution Counsel, Amugo Alenga . The 1 st Respondent grounds are as follows:
1. THAT the Petitioner has not met the threshold for the grant of any of the prayers sought in the instant Petition.
2. THAT the Petition is founded on a misapprehension of the law as relates to the powers of the 1st Respondent to institute and undertake criminal proceedings including the power to review investigation and case files vis-à-vis the investigative powers of the 2nd to 4th Respondents.
3. THAT the 1st Respondent's power to review investigation and case files is a continuous one and can be exercised at any time depending on the circumstances of the case, and the change thereof.
4. THAT the 1st Respondent's review of the decision to charge, and more specifically the change from the decision not to charge vide the letter dated 8th April 2024 to the decision to undertake further investigations vide the letter dated 23rd May 2024, and the decision to charge vide the letter dated 1st August 2024, was based on the foregoing continuous power to review investigation and case files.
5. THAT legitimate expectation can neither rise nor operate contrary to the law.
6. THAT the Petitioner has neither specifically particularized nor proved how any of his rights and fundamental freedoms have been violated and or threatened with violation as alleged or at all.
7. THAT the Petition is further premised on a misapprehension of the law as the existence of a civil suit is not a bar to the intended criminal charges against the Petitioner.
8. THAT the Petition is further founded on controverted facts which would best be tested, weighed and determined by a trial court, and which this Honorable Court is not best suited to consider and determine. 9.
9. THAT the intended prosecution of the Petitioner is informed by, and will be undertaken in strict compliance and conformity to, the Constitution of Kenya, 2010, relevant Statutes and the Office of the Director of Public Prosecutions (ODPP) Decision to Charge Guidelines, 2019, and therefore does not in any way pose any threat of violation of Petitioner's rights and fundamental freedoms.
10. THAT consideration of the instant Petition by this Honorable Court would not only amount to an unjustified interference by the Court in the Respondents' exercise of the 1 st Respondent's constitutional mandate but would also amount to an overreach of subordinate courts' mandate to hear and determine the intended criminal case.
11. THAT the Petition is intended solely to derail and or further delay the institution of the intended criminal proceedings against the Petitioner and is therefore vexatious, frivolous and an abuse of the legal process.
12. THAT it is in the interest of justice and public interest that the prayers sought in the instant application be declined.
4 th Respondent's Grounds Of Opposition
20. The 4 th Respondent filed grounds of opposition dated 15 th September, 2024 through Tariq Khan & Associates Advocates.
21. He objected to the Petition on the following grounds:
1. THAT the Petitioner has not met the threshold for the grant of any of the prayers sought in the instant Petition.
2. THAT the Petition is founded on a misapprehension of the law as relates the powers of the 1 st Respondent to institute and undertake criminal proceedings including the power to review investigation and case files vis-à-vis the investigative powers of the 2nd to 4th Respondents.
3. THAT legitimate expectation can neither rise nor operate contrary to the law.
4. THAT the Petitioner has neither specifically particularized nor proved the manner in which any of his rights and fundamental freedoms have been violated and or threatened with violation as alleged or at all.
5. THAT the Petition is further premised on a misapprehension of the law as the existence of a civil suit is not a bar to the intended criminal charges against the Petitioner.
6. THAT the Petition is further founded on controverted facts which would best be tested, weighed and determined by a trial court, and which this Honorable Court is not best suited to consider and determine.
7. THAT the intended prosecution of the Petitioner is informed by, and will be undertaken in strict compliance and conformity to, the Constitution of Kenya, 2010, relevant Statutes and the Office of the Director of Public Prosecutions (ODPP) Decision to Charge Guidelines, 2019, and therefore does not in any way pose any threat of violation of Petitioner's rights and fundamental freedoms.
8. THAT a consideration of the instant Petition by this Honorable Court would not only amount to an unjustified interference by the Court in the Respondents' exercise of the 1st Respondent's constitutional mandate but would also amount to an overreach of subordinate courts' mandate to hear and determine the intended criminal case.
9. THAT the Petition is intended solely to derail and or further delay the institution of the intended criminal proceedings against the Petitioner and is therefore vexatious, frivolous and an abuse of the legal process.
10. THAT it is in the interest of justice and public interest that the prayers sought in the instant application be declined.
SUBMISSIONS BY THE PARTIES
Petitioner’s Submissions
22. The Petitioner opened his submission by recapitulating the material facts constituting the basis of his case against the Respondents. I shall not reproduce them here as they are already captured in the review of the respective parties’ cases which I have set out in this judgment.
23. The Petitioner picked out and submitted on the following three issues:
1. Whether the directive to charge the Petitioner with Assault Causing Bodily Harm violates his rights to fair administrative action under Article 47 of the Constitution,
2. Whether the decision by the 1st Respondent was influenced by external factors, rendering it unconstitutional and in violation of the principle of prosecutorial independence under Article 157(10) of the Constitution, and
3. Whether the pending civil matter between the parties influenced the 1st Respondent’s decision to prosecute, amounting to an abuse of the legal process.
24. On the first issue of whether the directive to charge the Petitioner with Assault Causing Bodily Harm violates his rights to fair administrative action under Article 47 of the Constitution, the Petitioner alluded to Article 47 of the Constitution of Kenya, 2010 which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. The Petitioner submitted that the 1st Respondent’s directive to charge him, after previously deciding that there was insufficient evidence, is irrational and unreasonable.
25. The Petitioner argued that although Article 157 of the Constitution, 2010 gives DPP independence in the exercise of its duties, Article 157(11) enjoins the DPP to have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of the legal process.
26. The Petitioner argued that through the letter of 8th April 2024, the 1st Respondent wrote to the ODPP in-charge, Ruiru Sub-County, informing them of their finding that the evidence on record was insufficient to warrant the institution of criminal proceedings against the Petitioner and directed that the file be closed for lack of sufficient evidence. Further, they recommended that the 4th Respondent, who is the Complainant, and the Petitioner resolve their existing dispute by way of Alternative Dispute Resolution.
27. The Petitioner highlighted the 1 st Respondent opinion on the evidence which was outlined in the said letter as follows:
“… The Petitioner and the 4th Respondent have a history of civil litigation and that had clearly brought bad blood between them; The incident of an alleged assault on 28th January 2024 at Peponi School, Brookside, Kahawa Sukari Area occurred at a public function and, while there were many people in attendance, there was no independent witness to corroborate the 4th Respondent's version and that of his wife; It was difficult to reconcile how the chest injury complained on by the 4th Respondent caused stiffness of the neck documented in the P3 form; The Petitioner is alleged to have hit the 4th Respondent on the chest where no injuries or even pain was documented on the medical documents; The injuries complained of were on the neck which the 4th Respondent himself confirmed to have had a history of injury; It was difficult to answer the question whether the Incident was an intentional assault or an accident; and Therefore, a charge of assault causing bodily harm could not stand as it could not be demonstrated that the 4th Respondent had actually suffered injuries occasioned by the alleged acts of the Petitioner.”
28. As a result, 1 st Respondent, the Prosecution Counsel at the 1st Respondent’s Ruiru Sub-County Office on 9th April 2024, instructed the 3rd Respondent to close the police file with no further action based on the findings from the ODPP Kiambu County.
29. The Petitioner submitted that based on the aforementioned letter, that the 1 st Respondent’s decision not to charge the Petitioner and consequential instructions to the 3rd Respondent to close the police file created a legitimate expectation in the Petitioner that the Incident had been exhaustively investigated and that no criminal proceedings in respect thereof would be instituted against the Petitioner hence it was inexplicable that later on 23rd May 2024, the 1st Respondent through Senior Principal Prosecution Counsel Amugo Alenga, wrote a letter to the 3rd Respondent, walking back on its instructions that the police be closed and instead directing the 3rd Respondent to conduct further investigations into the Incident and cover three specific areas:
a) Record statements of the witnesses who had been mentioned and any others that could be availed by the 4th Respondent to buttress his allegations;
b) Record further statements for the 4th Respondent and his wife to ascertain his state before the Incident; and
c) Find out if there is any medical history of when last the 4th Respondent has been treated for the neck injury.
30. That even after further investigations were conducted as directed by the 1st Respondent no evidence or material that could warrant a review of the initial decision not to charge. That the subsequent decision to charge the Petitioner with Assault Causing Bodily Harm was not supported by any new finding, yet the 1 st Respondent in its letter dated 1 st August 2024, directed the 3rd Respondent to charge the Petitioner with the offence of Assault within Seven (7) days.
31. The Petitioner contended that the reversal of the decision to charge was made in the circumstances that did not satisfy the standards of objectivity as required by the Decision to Charge Guidelines as there was no new evidence or material that could have warranted a review of the earlier decision by the 1st Respondent not to charge the Petitioner. He argued that a reasonable prosecutor acting on the facts presented by the 3rd Respondent would not have arrived at the decision to charge the Petitioner the decision to charge him did satisfy the evidential test as defined by the Guidelines. The Petitioner referred to the ‘ Decision to charge guidelines’ which state thus:
“… The decision to charge is the Prosecution Counsel’s determination as to whether evidence availed by an investigator or investigative agencies is sufficient to warrant the institution of prosecution proceedings against an accused person in a Court of law. Due to its intrusive nature and potential adverse effect of the decision on the life, liberty or property of an accused person, it is the most important decision that is made by any prosecutor. The independence of the DPP and other institutions of prosecution revolves around this decision. Prosecutors are required to, and must exercise, due care in making the decision to charge…. The decision to charge or not to charge requires an objective and independent analysis of the case. Whilst the roles of the investigator and prosecutor are complementary, ultimately the decision to charge rests with the prosecutor, who must assess whether it is appropriate and what charges to prefer for a court to consider. It is the duty of a prosecutor to ensure that the right person is prosecuted for the right offence, properly applying the law and ensuring that relevant evidence is submitted before the court and that disclosure obligations are complied with…”
32. The Petitioner further submitted that the 1 st Respondent was influenced by the 4 th Respondent thereby contravening the principle of prosecutorial independence in violation of Article 157(11) of the Constitution as read together with Section 4 and 6B of the Office of the Director of Public Prosecution Act rendering the decision unlawful and unconstitutional. He argued that in revising the initial decision not to charge dated 9/4/2024 and substituting it with the decision to chare dated 1/8/2024; the 1 st Respondent was influenced by the 4 th Respondent’s legal counsel, a fact that is apparent in the 1 st Respondent’s letter of 23rd May 2024, where the 1 st Respondent mentions the intervention by the 4 th Respondent’s Advocate. The Petitioner submitted thus:
“… Though the Petitioner does not know or had sight of the contents of the mentioned letter of Tariq Khan Advocate dated 16th April 2024 in the 1 st Respondent letter dated 23rd May 2024 (annexure marked “AF5” in the Petitioner’s Supporting Affidavit), we suspect that the same might have had some kind of influence, some authority that might have had some kindle in the issuance of the directive to charge the Petitioner…”
33. Counsel underscored the critical significance of the independence of the Director of Public Prosecution by citing an excerpt in the case of Thuita Mwangi & Anor vs. The Ethics and Anti-Corruption Commission & 3 Others Petition No. 153 & 369 of 2013 in which the Court observed thus:
“The decision to institute criminal proceedings by the DPP is discretionary. Such exercise of power is not subject to the direction or control by any authority as Article 157(10) …These provisions are also replicated under Section 6 of the Office of the Director Public Prosecutions Act, No. 2 of 2013…”
34. Additionally, the case of Regina v Director of Public prosecution ex parte Kebeline and others [1999] 4 All ER which emphasized that the DPP’s decision to institute charges is rarely interfered with unless actuated by dishonesty, bad faith, or exceptional circumstances.
35. Concerning the pending civil case (Milimani Civil Case No. E094 of 2023) between the Petitioner’s caregiver and the 4th Respondent, the Petitioner submitted that the actions of the 4 th Respondent were motivated by ulterior motives and the intended criminal prosecution is a retaliatory measure designed to pressure the Petitioner in the pending civil matter hence abuse of the legal process. He urged the Court to reject attempts to allow the criminal justice system to be used for personal vendettas.
1 st RESPONDENTS’ SUBMISSIONS
36. The 1st Respondent filed written submissions dated 7 th November, 2024 through Victor John Owiti , the Principal Prosecution Counsel .
37. He reiterated that the Petition was opposed by the Respondents through the Statement of Grounds of Opposition dated 16th September 2024.
38. He identified and submitted on the following issues:
(a) Whether the Petition is founded on a misapprehension of the law.
(b) Whether the Petitioner can properly claim legitimate expectation as a bar to the intended criminal charges against him.
(c) Whether the existence of a civil suit is a bar to the intended criminal charges against the Petitioner.
(d) Whether controverted facts can be the basis of a Petition seeking the prohibition of the exercise of Respondents’ respective mandate.
39. On whether the petition is founded on a misapprehension of the law; the 1 st Respondent argued that the Petition challenges the powers of the 1 st Respondent to institute and undertake criminal proceedings vis-à-vis the investigative powers of the 2nd to 4th Respondents. He submitted that the 1 st Respondent is vested with State powers of prosecution including the power to institute criminal proceedings from which flows the power to make the decision to charge, and to continuously review the such decisions depending on the circumstances of the case, in accordance with the Constitution, the Office of the Director of Public Prosecutions Act, and the Office of the Director of Public Prosecutions Decision to Charge Guidelines.
40. The 1 st Respondent submitted that its power of review can be exercised at any time depending on the circumstances of the case.
41. In regard to the 1 st Respondent’s review of the decision to charge, from the decision not to charge communicated through the letter of 8 th April 2024 to the decision to undertake further investigations as conveyed in the letter dated 23rd May 2024, and subsequently the decision to charge as directed in the letter dated 1st August 2024, the 1 st Respondent submitted that it was based on the ongoing continuous power to review investigation and case files in which the 1 st Respondent established that there, in fact, existed sufficient factual and legal basis for the institution of criminal proceedings against the Petitioner.
42. On the question of whether the existence of the civil suit is a bar to the intended criminal charges, the 1 st Respondent, citing Section 193A of the Criminal Procedure Code, submitted that the existence of a civil suit is not a bar to the concurrent criminal proceedings
43. On whether the petitioner can properly claim legitimate expectation as a bar to the intended charges; the 1 st Respondent submitted that legitimate expectation can neither rise nor operate contrary to the law. To buttress this position, the 1 st Respondent relied on
Risk Africa Innovatis Limited v. Smartmatic International Holdings B.V.A & 3 Others , where the Court of Appeal stated inter alia that:
“… We do not agree with the appellant’s counsel assertion that the mere listing of the appeal for hearing created a legitimate expectation that the appeal would be heard and determined on its merits. It is trite law that legitimate expectation cannot operate contrary to the law...”
44. Further the Mombasa High Court decision of Republic v. Kenya Revenue Authority ex parte Proto Energy Limited the Court found holding that the applicant had not satisfied the tests for the doctrine of legitimate expectation, stated inter alia that:
“Statutory words override an expectation howsoever founded. A decision maker cannot be required to act against clear provisions of a statute just to meet one’s expectations otherwise his decision would be out rightly illegal and a violation of the principle of legality, a key principle in Rule of Law. There cannot be legitimate expectation against the clear provisions of a statute...”
45. On the issue of whether controverted facts can be the basis of the prayers sought urged the Court to reject the invitation to undertake a merit-review of the controverted evidence, and exercise deference to the trial court which is supposed to analyze the merits of the disputed facts in a trial after hearing testimony, cross-examination of witnesses and examining evidence adduced.
46. The 1 st Respondent submitted that the Petitioner has attempted to characterize the criminal matter as a civil dispute by providing alternative facts from those relied on by the Respondents. Counsel submitted this variance between the relied upon the Petitioner and Respondents means there are controverted facts which should best be tested, weighed and determined by the trial court, which this Honorable Court is not best suited to consider and determine.
47. The 1 st Respondent relied on the Supreme Court in Praxidis Namoni Saisi & 7 Others v. DPP in which the court in emphasized that such controverted facts are not suited for determination by a Judicial Review Court but by a trial court, by inter alia stating thus:
“ In order for the court to get through this extensive examination of Section 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence . The controverted evidence is best addressed by the person, body or authority in charge… Be that as it may, it is the Court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter . Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialized institutions are better placed to do so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in Section 11 (1) and (2) of the Fair Administrative Actions Act. Third, the Court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an im
[...truncated]