JUDGMENT
Introduction
1. The Petitioner vide a Petition dated the 8 th day of July, 2024 sought for the following reliefs:
a. A declaration be and is hereby issued that the Respondents’ conduct and actions jointly and severally contravene the Constitutional and/or are likely to contravene or infringe upon the Petitioners fundamental rights and freedoms guaranteed under Article 2, 3(1), 19, 20, 21, 22, 23, 24, 25(c), 27(1) & (2), 28, 29 (a), (d), 39 (a), 40, 47, 48, 50, 60, 73, 75 (1), 157, 232, 258, and 259 of the Constitution of Kenya 2010.
b. A declaration be and is hereby issued that the Respondents’ conduct and actions which are complained of in the Petition, jointly and/or severally, singularly and/or cumulatively against the Petitioner are oppressive, unfair, unreasonable, irrational, illegal and an abuse of power and the criminal justice system and process.
c. A declaration be and is hereby issued that the Respondents’ investigations jointly and/several, singularly and cumulatively into the alleged forcible retainer and/or with regards to the subject property are tainted with illegality, malafides and are being and/or have been conducted with and/or for an ulterior motive or extraneous purpose.
d. An order of prohibition be and is hereby issued directing the 2 nd -6 th Respondents jointly and severally prohibiting whether by themselves agents and/or servants and whomever acting under their authority or instruction from investigating, arresting, detaining, charging, prosecuting and/or any kind of harassment, questioning, intimidation, apprehension on any matter concerning the Applicant’s occupation and/or use of parcel of number Kitale Municipality Block 5/152.
e. An order of Permanent Injunction be and is hereby issued restraining the Respondents from in any manner whatsoever harassing, intimidating causing the apprehension of the Applicant, considering and/or preferring any criminal charges against the Petitioner as regards Kitale Municipality Block 5/152.
f. An order of Mandamus be and is hereby issued compelling the Respondents to avail to the Petitioner any report prepared by any government agency with regards to the investigations on parcel number Kitale Municipality Block 5/152.
g. General damages for damages caused by mental anguish and psychological torture suffered by the Petitioner.
h. Any other reliefs this Honourable Court deem fit and just.
i. Costs.
j. conduct and actions which are complained of in the Petition, jointly and/or severally, singularly and/or cumulatively against the Petitioner are oppressive, unfair, unreasonable, irrational, illegal and an abuse of power and the criminal justice system and process .
Petitioner’s case
2. The Petitioner has pleaded that he is the holder of an allotment letter over a parcel now known as Kitale Municipality Block 5/152 , on which he has built a perimeter wall approved by the former Municipal Council back in January 2014.
3. He pleaded that he also owns the Aturkan Hotel opposite the plot and had constructed an approved sewer line running through the disputed land to serve it.
4. He pleads that the 1 st Respondent claims the same parcel and has a separate civil suit pending before the Environment and Land Court in Kitale (ELC Case No. 170 of 2017 ) which has not yet been determined.
5. That following complaints about a land cartel allegedly operating out of Ardhi House issuing double allotment letters on prime plots he pleaded that the Cabinet Secretary formed a team to investigate several properties including Kitale Municipality Block 5/152 .
6. That team's original report recommended the 1 st Respondent be prosecuted for forgery, for having altered an earlier report. The Petitioner alleges that this report was subsequently altered again, this time in collusion between the 1 st Respondent and officials at the Directorate of Criminal Investigations, the 3 rd Respondent, in the sense that the recommendation now points toward charging the Petitioner instead with the offence of Forcible Detainer.
7. He pleaded that he has not yet been charged but believes arrest and prosecution by the 2 nd to 6 th Respondents are imminent and on that basis the Petitioner argues that pursuing criminal charges against him while the same land's ownership remains unresolved in a pending civil suit amounts to an abuse of the criminal justice process hence the suit in court.
Respondent’s case
8. The 1 st Respondent in his Replying Affidavit dated the 16 th day of August denied the substance of the allegations that were levelled against him. He pleaded that he does not have the locus to arrest or even arraign the Petitioner as such actions squarely lay with the mandate of the 3 rd Respondent whose statutory role is to investigate reports of infringement made by members of the public.
9. In his pleadings he admitted to having filed ELC No. 170 of 2017 in respect of the suit property and maintained that in doing so and in pursuing both criminal and civil remedies against the Petitioner, he was exercising rights guaranteed to him under Article 40 of the Constitution.
10. That the criminal proceedings served a deterrent purpose while civil proceedings were intended to secure redress for damages and that he was constitutionally entitled to pursue both simultaneously.
11. On the question of the investigation's duration and the Petitioner's correspondence with the Director of Public Prosecutions, the 1 st Respondent pleaded that he was not privy to and was not an expert in matters relating to criminal investigation.
12. That it is the Petitioner who had prematurely approached the 4 th Respondent before investigations by the 3 rd Respondent had been concluded and further stated that the allegations of collusion with government officers are unsubstantiated hearsay stating that he was a stranger to the letter of 10 th September 2018 from the Ministry of Lands and Physical Planning and could not speak to its authenticity.
13. He pleaded that a letter of allotment is not a document of ownership but an invitation to offer and the suit property being public land remained capable of re-issuance by the Government through the Ministry of Lands hence he was a stranger to any allegations of fake documentation as he obtained his lease from the very institution that is mandated to issue the said document.
14. The 1 st Respondent further stated that the Petitioner's conduct was that of a person acting on unsubstantiated rumor rather than due process and accused him of writing unnecessary letters to senior government officials to shield himself from the consequences of an illegal acquisition of the suit property.
15. He pleaded that the Petitioner's own averment of having issued " insistence and threats " to the Land Registrar as demonstrating a want of integrity and an attempt to circumvent the cause of justice and maintained that the 3 rd Respondent’s summons issued to the Petitioner was a lawful exercise of its mandate to establish the true ownership of the property and did not infringe any of the Petitioner's constitutional rights.
16. He pleaded that the conservatory orders sought by the Petitioner were a tactic designed to estop the government agencies from executing their lawful mandate and urged that it be dismissed with costs.
17. The 2 nd to 6 th Respondent did not file any replying Affidavit in opposition of the Petition herein.
The Petitioners’ Submissions
18. The Petitioner's submissions were founded on the contention that the intended and ongoing investigations, and the probable prosecution of the Petitioner over Kitale Municipality Block 5/152, amount to an unconstitutional abuse of the criminal justice process given that a civil suit over the very same property being Kitale ELC No. 170 of 2017 remains pending in court.
19. Counsel submitted that this state of affairs offends the sub judice rule as codified in Section 6 of the Civil Procedure Act which bars a court from proceeding with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted, still-pending suit between the same parties.
20. It was submitted that the offence likely to be preferred against the Petitioner, that of Forcible Detainer under Section 91 of the Penal Code would require the criminal court to determine possession and by extension the ownership of the suit property which was the very question the Environment and Land Court is already seized of and in this regard Counsel relied on the case Albert Ouma Matiya v Republic, Criminal Appeal No. 8 of 2012 which set out the two ingredients the prosecution must establish for a conviction under that section.
21. Going further in anchoring the constitutional basis of the Petition, Counsel invoked Article 157(11) of the Constitution of Kenya, 2010 which obliges the Director of Public Prosecutions, that while in exercising prosecutorial powers to 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 submitting that the 1 st Respondent's collaboration with government agencies to procure the Petitioner's arrest and prosecution offended this constitutional threshold.
22. Counsel further place relied in the case of Anarita Karimi Njeru v Republic, Misc. Application No. 4 of 1979 which requires a petitioner alleging constitutional violation to set out with reasonable precision the provisions said to be infringed and the manner of infringement, a standard Counsel submitted had been met through the particulars pleaded in the Supporting Affidavit.
23. Counsel submitted on the doctrine of abuse of court of process and subjudice and relied extensively on the case of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others; Law Society of Kenya, HCJR No. E045 of 2020 (Mativo, J. ), in which the court held that pursuing parallel proceedings on the same subject matter creates a risk of conflicting court decisions and embarrasses the judicial system also that that litigation is not a game of chess in which parties should outmaneuver one another but a contest conducted with transparency through due judicial process. It was submitted that the 1 st Respondent's simultaneous pursuit of civil and criminal remedies over the same property fell squarely within this mischief.
24. As to the threshold for restraining arrest or prosecution Counsel submitted and cited Hassan Ali Joho v The Inspector General of Police and 3 Others, Constitutional Petition No. 15 of 2017 for the proposition that a threat of arrest per-se is not unconstitutional and that the true test being whether the investigation and probable charge amount to an abuse of the criminal process and or is unfair to the applicant, and lastly whether it offends public interest.
25. In applying the above test Counsel submitted that the investigations here were not conducted fairly or expeditiously as they were tainted by ulterior motive and were designed to serve the 1 st Respondent's personal interest in the suit property rather than any legitimate public interest and that this was reinforced by the 1 st Respondent's own admission in his Replying Affidavit about pursuing both civil and criminal avenues against the Petitioner.
26. Counsel further submitted on the grounds upon which criminal proceedings may be prohibited and the case of Director of Public Prosecutions vs Martin Maina & 4 Others [2017] eKLR which cited with approval the Supreme Court of India decision in State of Maharastra & Others v Arun Gulab Gawali & Others Criminal Appeal No. 590 of 2007 .
27. Lastly counsel submitted that the inherent jurisdiction of the High Court is to protect citizens from oppressive or vexatious prosecution which supported the reliefs sought in the Petition and relied on Reuben Njuguna Gachukia vs Inspector General of the National Police Service and 5 Others, Constitutional Petition No. 436 of 2017 , which applied Regina vs Ittoshat [1970] CRNS 385 for the principle that the court has a duty to protect citizens against harsh and unfair treatment and to ensure the law is applied in a just and equitable manner.
28. Counsel further relied on the case of Joram Mwenda Guantai vs The Chief Magistrate [2007] 2 E.A. 170 , as applied in Stephen Muregi Chege vs The Inspector General of Police and 3 Others, Civil Appeal No. 77 of 2017 for the proposition that the High Court has inherent jurisdiction to prohibit oppressive or vexatious prosecution of a person charged, or about to be charged, before a subordinate court.
Respondents’ submissions
29. The Respondents did not file any written submissions in opposition of the Petitioners case herein.
Analysis and Determination
30. Having carefully considered the petitioner’s pleadings and the 1 st Respondent’s Replying Affidavit, I find the following issues to arise for determination:
i. What is the implication of the 2 nd to 6 th Respondent’s failure to file a response to the petition?
ii. Whether the reliefs sought should be granted?
31. The petitioner submitted that since the 2 nd to 6 th Respondents failed to respond to the petition, the facts remain uncontroverted and orders sought should be granted.
32. In Philip Tirop Kitur v Attorney General [2018] eKLR , while addressing the issue of the Attorney General failing to file a response to the petition therein, the court held:
“11. Before addressing the above issues, I find it necessary to address the issue of the respondent's failure to file a replying affidavit to this petition and failure to call witnesses. The petitioners counsel citing Harun Thungu Wakaba v AG, argued that in absence of a replying affidavit, hence the petitioner’s averments remain uncontested. The respondents' counsel did not specifically address this issue.
12.It is common ground that the only evidence on record is the evidence tendered by the petitioner. Failure to file a replying affidavit or adduce evidence on the part of the respondent means that the evidence adduced by the petitioner is uncontroverted and therefore unchallenged. In Interchemie EA Limited v Nakuru Veterinary Centre Limited, it was held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted.
13.A similar position was held in the case of Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others that it
"is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged."
14.The respondent in this case did not adduce evidence, but cross-examined the petitioner. The purpose of cross-examination is three-fold; (a) to elicit evidence in support of the party cross-examining; (b) to cast doubts on, or undermine the witness’s evidence so as to weaken the opponent’s case; (c) to undermine the witness’s credibility; (d) to put the party's case and challenge disputed evidence. But once a party cross-examines an opponent's witness, he can only rebut the issues raised during cross-examination by calling witnesses. Thus, failure on the part of the respondent to adduce evidence or file response to the petition means that the petitioners case remains unchallenged.
33. In the case of Peter O Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another [2016] Eklr, Odero, J while addressing a claim where the Attorney General as the respondent failed to file a replying affidavit stated:
“As stated earlier the respondents did not file any replying affidavit to challenge and/or controvert the sworn averment by the petitioners that they were victims of the post-election violence. Ground of opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath. ( See Mereka & Co Advocates vs UNESCO Co Ltd 2015 eKLR, Prof Olaka Onyango & 10 Others vs Hon Attorney General Constitution Petition No 8 of 2014 and Eliud Nyauma Omwoyo & 2 Others vs Kenyatta University ) . The respondents have failed to refute specifically the allegations in the petitioner’s sworn affidavit in support. Failure to file a replying affidavit can only mean that those facts are admitted. Therefore, in the absence of any evidence to the contrary I find that the petitioners are indeed victims of the 2007/2008 post-election violence.”
34. In Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR , the court stated:
“(34) The position before us is that the appellants averred to certain facts under oath in an affidavit. These facts were not controverted by the respondents either through an affidavit in response or through cross examination. An affidavit is sworn evidence. It occupies a higher pedestal than grounds of opposition that are basically issues of law intended to be argued. Two things flow from this. First, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted. Secondly, a question arises regarding the weight or probative value of the averred factual evidence. In other words, are the facts as averred in the affidavits sufficient to prove the appellants’ claims?
35. The Supreme Court in the case of Gideon Sitelu Konchellah v Julius Lekakony Ole Sunkuli & 2 others [2018] eKLR held:
“A replying affidavit is the principal document wherein a respondent’s reply is set and the basis of any submissions and/or list of authorities that may be subsequently filed. Absence of this foundational pleading, the replying affidavit, it follows that even the written submissions purportedly filed by the 1st respondent ... are of no effect.
Be that as it may as a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted.
36. The court in Alloys Otieno Aboka v Kenya National Highway Authority & 2 Others [2020] eKLR borrowing from the above case, held that;
“Similarly, with the absence of a replying affidavit, the written submissions of the Respondents herein are of no legal effect and the petition stands unopposed. This, however, does not discharge the court of its duty to determine whether the petition is meritorious and deserving of the orders sought.
37. The fact that the 2 nd to 6 th Respondents did not file any response does not dispense with the Petitioners’ burden of proof. Sections 107 and 109 of the Evidence Act Cap. 80 place the burden of proving an asserted fact upon the party who seeks the Court to give judgment based on the existence of that fact. The Petitioner must therefore establish on the evidence before the Court that the alleged violation or threatened violation of their constitutional rights actually occurred.
38. In the case of Christian Juma Wabwire v Attorney General [2019] eKLR the court held:
“23. Section 107 of the Evidence Act provides, that he who alleges must prove. The petitioner failed to call evidence to prove his allegation. In the case of Lt. Cl Peter Ngari Kaguma and others vs AG, Constitutional Application No 128 of 2006, it was held:
“…. it is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened….."
39. In Car Importers Association of Kenya v County Government of Mombasa [2021] eKLR , the court held:
“26. Similarly, in Phillip Tirop Kitur v Attorney General [2018] eKLR , the Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the petitioner’s evidence stood unchallenged. In addition, the High Court rejected the Attorney General’s contention that the delay in filing the Petition had caused it prejudice, ruling that in the absence of a replying affidavit or oral evidence, the court had no facts upon which it could make such a finding. Therefore, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted. Secondly, a question arises regarding the probative value of the averred factual evidence. In other words, are the facts as averred in the affidavits sufficient to prove the petitioner’s claims? The above question will be answered in the next issue.
40. From the authorities cited above it follows that the failure by the 2 nd to 6 th Respondents to file a response to the petition the petitioner’s facts as alleged against them remain uncontroverted and may be admitted. However, that position does not automatically mean that the orders sought by the petitioner have to be granted without proof as the petitioner still has the duty to prove his case on merit and I so hold.
41. On the second issue for determination, the question is whether the Petitioners have established that their constitutional rights and fundamental freedoms have been violated, or are under imminent threat of violation by the Respondents.
42. Article 22(1) of the Constitution gives every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened, whereas Article 23(1) confers upon this Court jurisdiction to hear and determine applications for redress of a denial or violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. It follows that the Petitioner must demonstrate an actual violation or a real and identifiable threat of violation of a right protected under the Constitution.
43. It is also a settled principle that a party alleging violation of constitutional rights must plead with reasonable precision the constitutional provisions alleged to have been violated and the manner in which the alleged violation has occurred. This principle was established in Anarita Karimi Njeru v Republic [1979] eKLR and subsequently reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR . This Court must therefore consider whether the evidence placed before it demonstrates the alleged infringement of each of the constitutional rights relied upon by the Petitioner.
44. The gist of the Petitioner's complaint is not that he has already been arrested, detained or prosecuted but rather that he is facing an investigation and that he opines that he may be arrested and prosecuted for the offence of forcible detainer in relation to Kitale Municipality Block 5/152 . He further contends that such investigation and intended prosecution constitute an abuse of the criminal justice process because ownership and/or entitlement to the suit property is the subject of pending proceedings in Kitale ELC Case No. 170 of 2017 .
45. This Court notes that indeed the evidence before the Court establishes that there is a pending dispute concerning the suit property as the 1 st Respondent has admitted that he instituted ELC Case No. 170 of 2017 in respect of the suit property hence the existence of the civil proceedings is therefore not disputed but the Petitioner's apprehension of criminal proceedings must be considered separately from the existence of the civil dispute.
46. Further this Court notes that the existence of a civil dispute concerning land does not preclude the commencement or even the continuation of criminal investigations arising from the same factual circumstance as civil and criminal proceedings serve different purposes and may may in appropriate circumstances proceed concurrently therefore the critical consideration is whether the criminal process is being undertaken for a legitimate investigative or prosecutorial purpose or whether it was employee for ulterior motives or in bad faith as a means of settling a purely civil dispute.
47. The Petitioner principally seeks to stop prosecution for the offence of forcible detainer contrary to Section 91 of the Penal Code which criminalizes the unlawful occupation or retention of land or premises in circumstances prescribed by the provision and that the intended criminal proceedings would necessarily offend the sub judice rule under Section 6 of the Civil Procedure Act also requires consideration.
48. It is trite that Section 6 bars a court from proceeding with the trial of a suit or proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a competent court. This doctrine is intended to prevent parallel adjudication of the same dispute and the possibility of conflicting decisions.
49. Nonetheless I am of the considered view that the sub judice rule cannot be invoked for the reasons that a criminal investigations and civil proceedings arise from the same factual background as the criminal justice process serves a different juridical purpose from civil proceedings.
50. To this end I rely in Section 193(A) of the Criminal Procedure Code which provides that a party has a right to pursue a Criminal action as well as a Civil proceeding.
“193A. Concurrent criminal and civil proceedings. Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition, or delay of the criminal proceedings”.
51. Therefore, filing a Civil action will not bar the Police from investigating an alleged offence or pressing criminal charges if the facts reveal the commission of a criminal offence.
52. Further pursuant to Article 245 (4) of the Constitution , the Inspector General of Police is an independent constitutional office holder. The office is insulated from directions or instructions from anyone, subject to the Constitution. The 2 nd Respondent carries out his duties and is answerable to the 3 rd Respondent. That is pursuant to Section 28 and 29(7) of The National Police Service Act Cap 85 of the Laws of Kenya .
53. The following decisions have considered the question of issuance of injunctions orders restraining the Respondents from proceeding with criminal investigations or processes (See Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) and Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR ).
54. While therefore I do not find that the Pendency of ELC Case No. 170 of 2017 renders the investigation or possible prosecution of the Petitioner unconstitutional, I deem that proceeding with the criminal prosecution where the issue in the civil process is likely to determine the dispute, could place the courts in the situation contemplated by the court in the above case cited of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others; Law Society of Kenya, HCJR No. E045 of 2020 (Mativo, J. ), in which the courts making different determinations held in parallel proceedings on the same subject matter creates a risk of conflicting court decisions and embarrasses the judicial system. It is also worth noting the different standards of proof required in the two cases, especially where they run parallel.
55. It would be desirable for the Directorate of Criminal Investigations to prepare their report and participate in the civil proceedings to assist the ELC Court come up with a wholesome determination as opposed to keeping the outcome of their investigations away from the ELC Court, only to unleash them in the criminal proceedings.
56. At this stage, the court must ask, what is the Petitioner is convicted in the criminal proceedings and the ELC Court declares him the rightful allottee of the parcel of land in dispute?
57. Going further Article 157(11) of the Constitution is material in this regard since it expressly provides that, in exercising the powers conferred by Article 157, 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, this is to say that although the 3 rd Respondent enjoys constitutional independence in the exercise of prosecutorial powers, that independence is not a license to institute or sustain criminal proceedings for an ulterior purpose or as a means of settling what is essentially a private dispute.
58. Similarly, the investigative mandate of the National Police Service and the Directorate of Criminal Investigations the 2 nd and
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Introduction
1. The Petitioner vide a Petition dated the 8 th day of July, 2024 sought for the following reliefs:
a. A declaration be and is hereby issued that the Respondents’ conduct and actions jointly and severally contravene the Constitutional and/or are likely to contravene or infringe upon the Petitioners fundamental rights and freedoms guaranteed under Article 2, 3(1), 19, 20, 21, 22, 23, 24, 25(c), 27(1) & (2), 28, 29 (a), (d), 39 (a), 40, 47, 48, 50, 60, 73, 75 (1), 157, 232, 258, and 259 of the Constitution of Kenya 2010.
b. A declaration be and is hereby issued that the Respondents’ conduct and actions which are complained of in the Petition, jointly and/or severally, singularly and/or cumulatively against the Petitioner are oppressive, unfair, unreasonable, irrational, illegal and an abuse of power and the criminal justice system and process.
c. A declaration be and is hereby issued that the Respondents’ investigations jointly and/several, singularly and cumulatively into the alleged forcible retainer and/or with regards to the subject property are tainted with illegality, malafides and are being and/or have been conducted with and/or for an ulterior motive or extraneous purpose.
d. An order of prohibition be and is hereby issued directing the 2 nd -6 th Respondents jointly and severally prohibiting whether by themselves agents and/or servants and whomever acting under their authority or instruction from investigating, arresting, detaining, charging, prosecuting and/or any kind of harassment, questioning, intimidation, apprehension on any matter concerning the Applicant’s occupation and/or use of parcel of number Kitale Municipality Block 5/152.
e. An order of Permanent Injunction be and is hereby issued restraining the Respondents from in any manner whatsoever harassing, intimidating causing the apprehension of the Applicant, considering and/or preferring any criminal charges against the Petitioner as regards Kitale Municipality Block 5/152.
f. An order of Mandamus be and is hereby issued compelling the Respondents to avail to the Petitioner any report prepared by any government agency with regards to the investigations on parcel number Kitale Municipality Block 5/152.
g. General damages for damages caused by mental anguish and psychological torture suffered by the Petitioner.
h. Any other reliefs this Honourable Court deem fit and just.
i. Costs.
j. conduct and actions which are complained of in the Petition, jointly and/or severally, singularly and/or cumulatively against the Petitioner are oppressive, unfair, unreasonable, irrational, illegal and an abuse of power and the criminal justice system and process .
Petitioner’s case
2. The Petitioner has pleaded that he is the holder of an allotment letter over a parcel now known as Kitale Municipality Block 5/152 , on which he has built a perimeter wall approved by the former Municipal Council back in January 2014.
3. He pleaded that he also owns the Aturkan Hotel opposite the plot and had constructed an approved sewer line running through the disputed land to serve it.
4. He pleads that the 1 st Respondent claims the same parcel and has a separate civil suit pending before the Environment and Land Court in Kitale (ELC Case No. 170 of 2017 ) which has not yet been determined.
5. That following complaints about a land cartel allegedly operating out of Ardhi House issuing double allotment letters on prime plots he pleaded that the Cabinet Secretary formed a team to investigate several properties including Kitale Municipality Block 5/152 .
6. That team's original report recommended the 1 st Respondent be prosecuted for forgery, for having altered an earlier report. The Petitioner alleges that this report was subsequently altered again, this time in collusion between the 1 st Respondent and officials at the Directorate of Criminal Investigations, the 3 rd Respondent, in the sense that the recommendation now points toward charging the Petitioner instead with the offence of Forcible Detainer.
7. He pleaded that he has not yet been charged but believes arrest and prosecution by the 2 nd to 6 th Respondents are imminent and on that basis the Petitioner argues that pursuing criminal charges against him while the same land's ownership remains unresolved in a pending civil suit amounts to an abuse of the criminal justice process hence the suit in court.
Respondent’s case
8. The 1 st Respondent in his Replying Affidavit dated the 16 th day of August denied the substance of the allegations that were levelled against him. He pleaded that he does not have the locus to arrest or even arraign the Petitioner as such actions squarely lay with the mandate of the 3 rd Respondent whose statutory role is to investigate reports of infringement made by members of the public.
9. In his pleadings he admitted to having filed ELC No. 170 of 2017 in respect of the suit property and maintained that in doing so and in pursuing both criminal and civil remedies against the Petitioner, he was exercising rights guaranteed to him under Article 40 of the Constitution.
10. That the criminal proceedings served a deterrent purpose while civil proceedings were intended to secure redress for damages and that he was constitutionally entitled to pursue both simultaneously.
11. On the question of the investigation's duration and the Petitioner's correspondence with the Director of Public Prosecutions, the 1 st Respondent pleaded that he was not privy to and was not an expert in matters relating to criminal investigation.
12. That it is the Petitioner who had prematurely approached the 4 th Respondent before investigations by the 3 rd Respondent had been concluded and further stated that the allegations of collusion with government officers are unsubstantiated hearsay stating that he was a stranger to the letter of 10 th September 2018 from the Ministry of Lands and Physical Planning and could not speak to its authenticity.
13. He pleaded that a letter of allotment is not a document of ownership but an invitation to offer and the suit property being public land remained capable of re-issuance by the Government through the Ministry of Lands hence he was a stranger to any allegations of fake documentation as he obtained his lease from the very institution that is mandated to issue the said document.
14. The 1 st Respondent further stated that the Petitioner's conduct was that of a person acting on unsubstantiated rumor rather than due process and accused him of writing unnecessary letters to senior government officials to shield himself from the consequences of an illegal acquisition of the suit property.
15. He pleaded that the Petitioner's own averment of having issued " insistence and threats " to the Land Registrar as demonstrating a want of integrity and an attempt to circumvent the cause of justice and maintained that the 3 rd Respondent’s summons issued to the Petitioner was a lawful exercise of its mandate to establish the true ownership of the property and did not infringe any of the Petitioner's constitutional rights.
16. He pleaded that the conservatory orders sought by the Petitioner were a tactic designed to estop the government agencies from executing their lawful mandate and urged that it be dismissed with costs.
17. The 2 nd to 6 th Respondent did not file any replying Affidavit in opposition of the Petition herein.
The Petitioners’ Submissions
18. The Petitioner's submissions were founded on the contention that the intended and ongoing investigations, and the probable prosecution of the Petitioner over Kitale Municipality Block 5/152, amount to an unconstitutional abuse of the criminal justice process given that a civil suit over the very same property being Kitale ELC No. 170 of 2017 remains pending in court.
19. Counsel submitted that this state of affairs offends the sub judice rule as codified in Section 6 of the Civil Procedure Act which bars a court from proceeding with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted, still-pending suit between the same parties.
20. It was submitted that the offence likely to be preferred against the Petitioner, that of Forcible Detainer under Section 91 of the Penal Code would require the criminal court to determine possession and by extension the ownership of the suit property which was the very question the Environment and Land Court is already seized of and in this regard Counsel relied on the case Albert Ouma Matiya v Republic, Criminal Appeal No. 8 of 2012 which set out the two ingredients the prosecution must establish for a conviction under that section.
21. Going further in anchoring the constitutional basis of the Petition, Counsel invoked Article 157(11) of the Constitution of Kenya, 2010 which obliges the Director of Public Prosecutions, that while in exercising prosecutorial powers to 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 submitting that the 1 st Respondent's collaboration with government agencies to procure the Petitioner's arrest and prosecution offended this constitutional threshold.
22. Counsel further place relied in the case of Anarita Karimi Njeru v Republic, Misc. Application No. 4 of 1979 which requires a petitioner alleging constitutional violation to set out with reasonable precision the provisions said to be infringed and the manner of infringement, a standard Counsel submitted had been met through the particulars pleaded in the Supporting Affidavit.
23. Counsel submitted on the doctrine of abuse of court of process and subjudice and relied extensively on the case of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others; Law Society of Kenya, HCJR No. E045 of 2020 (Mativo, J. ), in which the court held that pursuing parallel proceedings on the same subject matter creates a risk of conflicting court decisions and embarrasses the judicial system also that that litigation is not a game of chess in which parties should outmaneuver one another but a contest conducted with transparency through due judicial process. It was submitted that the 1 st Respondent's simultaneous pursuit of civil and criminal remedies over the same property fell squarely within this mischief.
24. As to the threshold for restraining arrest or prosecution Counsel submitted and cited Hassan Ali Joho v The Inspector General of Police and 3 Others, Constitutional Petition No. 15 of 2017 for the proposition that a threat of arrest per-se is not unconstitutional and that the true test being whether the investigation and probable charge amount to an abuse of the criminal process and or is unfair to the applicant, and lastly whether it offends public interest.
25. In applying the above test Counsel submitted that the investigations here were not conducted fairly or expeditiously as they were tainted by ulterior motive and were designed to serve the 1 st Respondent's personal interest in the suit property rather than any legitimate public interest and that this was reinforced by the 1 st Respondent's own admission in his Replying Affidavit about pursuing both civil and criminal avenues against the Petitioner.
26. Counsel further submitted on the grounds upon which criminal proceedings may be prohibited and the case of Director of Public Prosecutions vs Martin Maina & 4 Others [2017] eKLR which cited with approval the Supreme Court of India decision in State of Maharastra & Others v Arun Gulab Gawali & Others Criminal Appeal No. 590 of 2007 .
27. Lastly counsel submitted that the inherent jurisdiction of the High Court is to protect citizens from oppressive or vexatious prosecution which supported the reliefs sought in the Petition and relied on Reuben Njuguna Gachukia vs Inspector General of the National Police Service and 5 Others, Constitutional Petition No. 436 of 2017 , which applied Regina vs Ittoshat [1970] CRNS 385 for the principle that the court has a duty to protect citizens against harsh and unfair treatment and to ensure the law is applied in a just and equitable manner.
28. Counsel further relied on the case of Joram Mwenda Guantai vs The Chief Magistrate [2007] 2 E.A. 170 , as applied in Stephen Muregi Chege vs The Inspector General of Police and 3 Others, Civil Appeal No. 77 of 2017 for the proposition that the High Court has inherent jurisdiction to prohibit oppressive or vexatious prosecution of a person charged, or about to be charged, before a subordinate court.
Respondents’ submissions
29. The Respondents did not file any written submissions in opposition of the Petitioners case herein.
Analysis and Determination
30. Having carefully considered the petitioner’s pleadings and the 1 st Respondent’s Replying Affidavit, I find the following issues to arise for determination:
i. What is the implication of the 2 nd to 6 th Respondent’s failure to file a response to the petition?
ii. Whether the reliefs sought should be granted?
31. The petitioner submitted that since the 2 nd to 6 th Respondents failed to respond to the petition, the facts remain uncontroverted and orders sought should be granted.
32. In Philip Tirop Kitur v Attorney General [2018] eKLR , while addressing the issue of the Attorney General failing to file a response to the petition therein, the court held:
“11. Before addressing the above issues, I find it necessary to address the issue of the respondent's failure to file a replying affidavit to this petition and failure to call witnesses. The petitioners counsel citing Harun Thungu Wakaba v AG, argued that in absence of a replying affidavit, hence the petitioner’s averments remain uncontested. The respondents' counsel did not specifically address this issue.
12.It is common ground that the only evidence on record is the evidence tendered by the petitioner. Failure to file a replying affidavit or adduce evidence on the part of the respondent means that the evidence adduced by the petitioner is uncontroverted and therefore unchallenged. In Interchemie EA Limited v Nakuru Veterinary Centre Limited, it was held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted.
13.A similar position was held in the case of Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others that it
"is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged."
14.The respondent in this case did not adduce evidence, but cross-examined the petitioner. The purpose of cross-examination is three-fold; (a) to elicit evidence in support of the party cross-examining; (b) to cast doubts on, or undermine the witness’s evidence so as to weaken the opponent’s case; (c) to undermine the witness’s credibility; (d) to put the party's case and challenge disputed evidence. But once a party cross-examines an opponent's witness, he can only rebut the issues raised during cross-examination by calling witnesses. Thus, failure on the part of the respondent to adduce evidence or file response to the petition means that the petitioners case remains unchallenged.
33. In the case of Peter O Nyakundi & 68 others v Principal Secretary, State Department of Planning, Ministry of Devolution and Planning & another [2016] Eklr, Odero, J while addressing a claim where the Attorney General as the respondent failed to file a replying affidavit stated:
“As stated earlier the respondents did not file any replying affidavit to challenge and/or controvert the sworn averment by the petitioners that they were victims of the post-election violence. Ground of opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath. ( See Mereka & Co Advocates vs UNESCO Co Ltd 2015 eKLR, Prof Olaka Onyango & 10 Others vs Hon Attorney General Constitution Petition No 8 of 2014 and Eliud Nyauma Omwoyo & 2 Others vs Kenyatta University ) . The respondents have failed to refute specifically the allegations in the petitioner’s sworn affidavit in support. Failure to file a replying affidavit can only mean that those facts are admitted. Therefore, in the absence of any evidence to the contrary I find that the petitioners are indeed victims of the 2007/2008 post-election violence.”
34. In Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR , the court stated:
“(34) The position before us is that the appellants averred to certain facts under oath in an affidavit. These facts were not controverted by the respondents either through an affidavit in response or through cross examination. An affidavit is sworn evidence. It occupies a higher pedestal than grounds of opposition that are basically issues of law intended to be argued. Two things flow from this. First, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted. Secondly, a question arises regarding the weight or probative value of the averred factual evidence. In other words, are the facts as averred in the affidavits sufficient to prove the appellants’ claims?
35. The Supreme Court in the case of Gideon Sitelu Konchellah v Julius Lekakony Ole Sunkuli & 2 others [2018] eKLR held:
“A replying affidavit is the principal document wherein a respondent’s reply is set and the basis of any submissions and/or list of authorities that may be subsequently filed. Absence of this foundational pleading, the replying affidavit, it follows that even the written submissions purportedly filed by the 1st respondent ... are of no effect.
Be that as it may as a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted.
36. The court in Alloys Otieno Aboka v Kenya National Highway Authority & 2 Others [2020] eKLR borrowing from the above case, held that;
“Similarly, with the absence of a replying affidavit, the written submissions of the Respondents herein are of no legal effect and the petition stands unopposed. This, however, does not discharge the court of its duty to determine whether the petition is meritorious and deserving of the orders sought.
37. The fact that the 2 nd to 6 th Respondents did not file any response does not dispense with the Petitioners’ burden of proof. Sections 107 and 109 of the Evidence Act Cap. 80 place the burden of proving an asserted fact upon the party who seeks the Court to give judgment based on the existence of that fact. The Petitioner must therefore establish on the evidence before the Court that the alleged violation or threatened violation of their constitutional rights actually occurred.
38. In the case of Christian Juma Wabwire v Attorney General [2019] eKLR the court held:
“23. Section 107 of the Evidence Act provides, that he who alleges must prove. The petitioner failed to call evidence to prove his allegation. In the case of Lt. Cl Peter Ngari Kaguma and others vs AG, Constitutional Application No 128 of 2006, it was held:
“…. it is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened….."
39. In Car Importers Association of Kenya v County Government of Mombasa [2021] eKLR , the court held:
“26. Similarly, in Phillip Tirop Kitur v Attorney General [2018] eKLR , the Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the petitioner’s evidence stood unchallenged. In addition, the High Court rejected the Attorney General’s contention that the delay in filing the Petition had caused it prejudice, ruling that in the absence of a replying affidavit or oral evidence, the court had no facts upon which it could make such a finding. Therefore, by the mere fact of the affidavits not having been controverted, there is an assumption that what is averred in the affidavit as factual evidence is admitted. Secondly, a question arises regarding the probative value of the averred factual evidence. In other words, are the facts as averred in the affidavits sufficient to prove the petitioner’s claims? The above question will be answered in the next issue.
40. From the authorities cited above it follows that the failure by the 2 nd to 6 th Respondents to file a response to the petition the petitioner’s facts as alleged against them remain uncontroverted and may be admitted. However, that position does not automatically mean that the orders sought by the petitioner have to be granted without proof as the petitioner still has the duty to prove his case on merit and I so hold.
41. On the second issue for determination, the question is whether the Petitioners have established that their constitutional rights and fundamental freedoms have been violated, or are under imminent threat of violation by the Respondents.
42. Article 22(1) of the Constitution gives every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened, whereas Article 23(1) confers upon this Court jurisdiction to hear and determine applications for redress of a denial or violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. It follows that the Petitioner must demonstrate an actual violation or a real and identifiable threat of violation of a right protected under the Constitution.
43. It is also a settled principle that a party alleging violation of constitutional rights must plead with reasonable precision the constitutional provisions alleged to have been violated and the manner in which the alleged violation has occurred. This principle was established in Anarita Karimi Njeru v Republic [1979] eKLR and subsequently reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR . This Court must therefore consider whether the evidence placed before it demonstrates the alleged infringement of each of the constitutional rights relied upon by the Petitioner.
44. The gist of the Petitioner's complaint is not that he has already been arrested, detained or prosecuted but rather that he is facing an investigation and that he opines that he may be arrested and prosecuted for the offence of forcible detainer in relation to Kitale Municipality Block 5/152 . He further contends that such investigation and intended prosecution constitute an abuse of the criminal justice process because ownership and/or entitlement to the suit property is the subject of pending proceedings in Kitale ELC Case No. 170 of 2017 .
45. This Court notes that indeed the evidence before the Court establishes that there is a pending dispute concerning the suit property as the 1 st Respondent has admitted that he instituted ELC Case No. 170 of 2017 in respect of the suit property hence the existence of the civil proceedings is therefore not disputed but the Petitioner's apprehension of criminal proceedings must be considered separately from the existence of the civil dispute.
46. Further this Court notes that the existence of a civil dispute concerning land does not preclude the commencement or even the continuation of criminal investigations arising from the same factual circumstance as civil and criminal proceedings serve different purposes and may may in appropriate circumstances proceed concurrently therefore the critical consideration is whether the criminal process is being undertaken for a legitimate investigative or prosecutorial purpose or whether it was employee for ulterior motives or in bad faith as a means of settling a purely civil dispute.
47. The Petitioner principally seeks to stop prosecution for the offence of forcible detainer contrary to Section 91 of the Penal Code which criminalizes the unlawful occupation or retention of land or premises in circumstances prescribed by the provision and that the intended criminal proceedings would necessarily offend the sub judice rule under Section 6 of the Civil Procedure Act also requires consideration.
48. It is trite that Section 6 bars a court from proceeding with the trial of a suit or proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a competent court. This doctrine is intended to prevent parallel adjudication of the same dispute and the possibility of conflicting decisions.
49. Nonetheless I am of the considered view that the sub judice rule cannot be invoked for the reasons that a criminal investigations and civil proceedings arise from the same factual background as the criminal justice process serves a different juridical purpose from civil proceedings.
50. To this end I rely in Section 193(A) of the Criminal Procedure Code which provides that a party has a right to pursue a Criminal action as well as a Civil proceeding.
“193A. Concurrent criminal and civil proceedings. Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition, or delay of the criminal proceedings”.
51. Therefore, filing a Civil action will not bar the Police from investigating an alleged offence or pressing criminal charges if the facts reveal the commission of a criminal offence.
52. Further pursuant to Article 245 (4) of the Constitution , the Inspector General of Police is an independent constitutional office holder. The office is insulated from directions or instructions from anyone, subject to the Constitution. The 2 nd Respondent carries out his duties and is answerable to the 3 rd Respondent. That is pursuant to Section 28 and 29(7) of The National Police Service Act Cap 85 of the Laws of Kenya .
53. The following decisions have considered the question of issuance of injunctions orders restraining the Respondents from proceeding with criminal investigations or processes (See Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) and Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR ).
54. While therefore I do not find that the Pendency of ELC Case No. 170 of 2017 renders the investigation or possible prosecution of the Petitioner unconstitutional, I deem that proceeding with the criminal prosecution where the issue in the civil process is likely to determine the dispute, could place the courts in the situation contemplated by the court in the above case cited of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others; Law Society of Kenya, HCJR No. E045 of 2020 (Mativo, J. ), in which the courts making different determinations held in parallel proceedings on the same subject matter creates a risk of conflicting court decisions and embarrasses the judicial system. It is also worth noting the different standards of proof required in the two cases, especially where they run parallel.
55. It would be desirable for the Directorate of Criminal Investigations to prepare their report and participate in the civil proceedings to assist the ELC Court come up with a wholesome determination as opposed to keeping the outcome of their investigations away from the ELC Court, only to unleash them in the criminal proceedings.
56. At this stage, the court must ask, what is the Petitioner is convicted in the criminal proceedings and the ELC Court declares him the rightful allottee of the parcel of land in dispute?
57. Going further Article 157(11) of the Constitution is material in this regard since it expressly provides that, in exercising the powers conferred by Article 157, 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, this is to say that although the 3 rd Respondent enjoys constitutional independence in the exercise of prosecutorial powers, that independence is not a license to institute or sustain criminal proceedings for an ulterior purpose or as a means of settling what is essentially a private dispute.
58. Similarly, the investigative mandate of the National Police Service and the Directorate of Criminal Investigations the 2 nd and
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