Introduction
1. The Petition dated 18th July 2022, is supported by the Petitioner’s affidavit in support of even date and further affidavits dated 15th February 2023 and 7th March 2023.
2. This Petition arises out two complaints that were lodged by the 1st and 3rd Interested Parties against the Petitioner with a view to having her criminally prosecuted for alleged forgery of a Background Check Form that was presented by the Petitioner to the 1st Interested Party for the purposes of her recruitment as its Chief Accountant.
3. The Petitioner claims that both the investigation and prosecution is based on unsupported malevolently instigated complaints which are a violation of her constitutional rights.
4. Consequently, the Petitioner seeks the following reliefs:
a) A declaration be issued that investigations on the Petitioner by the DCI and the DPP’s institution of criminal proceedings against the Petitioner in Criminal Case Number E3070 of 2020, – Republic v Catherine Nyakoboke Nyangau violates her constitutional rights, is an abuse of the process of the court and therefore unlawful, null and void ab initio;
b) An order of certiorari be issued removing into this court and quashing the entire charge sheet dated 9th June 2022 and proceedings against the Petitioner in Criminal Case Number E3070 of 2020, – Republic v Catherine Nyakoboke Nyangau.
c) A declaration be issued that the fundamental rights and freedoms of the Petitioner under Article 27, 28, 31, 35 and 47 of the Constitution have been violated by the Respondents.
d) An order of prohibition be issued restraining the Respondents from conducting any further investigations on the Petitioner.
e) An order of prohibition be issued against the 1st, 2nd & 3rd Respondents from investigating, recommending the prosecution or commencing any prosecution of the Petitioner in respect of which criminal case number E3070 of 2020, – Republic v Catherine Nyakoboke Nyangau was instituted.
f) The Costs of this Petition be provided for.
Petitioner’s Case
5. The Petitioner stated that she was the 1st Interested Party’s Chief Accountant as per the appointment letter dated 31st July 2018 a position she confirmed in on 18th February, 2019.
6. She depones that she served in this position up until 23rd September 2019, when she was directed to go on compulsory leave on account of the pending investigations relating to alleged forgery of the background check documents she had presented to the 1st Interested Party in connection with her recruitment following reports that were circulated in the social media.
7. The 1st Interested Party commenced internal investigations and on 25th October 2019, it issued the Petitioner with a letter of Notice to Show Cause alleging forgery of documents, misrepresentation and failure to declare conflict of interest.
8. The Petitioner responded on 18th November 2019 and also appeared before the 1st Interested Party’s Board’s ad hoc committee on 16th January 2020.
9. The 1st Interested Party’s Chief Executive Officer (CEO) vide a letter dated 16th March 2020 informed the Petitioner that the Board had completed investigations but had resolved to suspend the case pending the investigations by the other external bodies.
10. The 1st Interested Party’s CEO proceeded to report the alleged forgery of documents to the Directorate of Criminal Investigations (DCI) at Kasarani. This is despite the Chair of the Board of the 1st Interested Party having already referred the matter to the 3rd Respondent vide a letter dated 3rd February 2020 and that the 3rd Respondent had in fact her summoned and recorded her statement.
11. It was noted in the further affidavit that the 3rd Respondent investigations concluded that the background check form that the Petitioner had presented to the 1st Interested Party from Avic Shantui Construction Machinery E.A was not a forged document. Additionally, that the 3rd Interested Party (Walter Omwenga Oyugi) assertion that he did not complete the background check form was intended to mislead and obstruct the investigations.
12. The Petitioner depones that on 22nd March 2020, officers from DCI Kasarani, raided her house at Embakasi at 9:00pm with the aim of arresting her. She was however not arrested on that day owing to the help of her neighbours and intervention of her Counsel. She states that she went to the station the next day where she recorded her statement and was later on released on a cash bail.
13. She alleges that upon supplying this information to the DCI, she expected that it would carry forensic investigations which would absolve her but this did not happen. Instead, the DCI proceeded to hurriedly charge her with the offence of making a document without authority contrary to Section 357(a) of the Penal Code at Makadara Law Courts.
14. The Petitioner avers that the 2nd Respondent, through one of its officers Christine Nanjala, in a letter dated 14th April 2020, advised the SCCIO at Kasarani police station not to pursue the forgery charges.
15. The Petitioner informs that in a letter dated 7th May 2020 addressed to the 1st Interested Party and the 3rd Respondent, requested for a copy of its Report on the investigation. This is due to the fact that the 3rd Respondent had been issued with the original documents long before the 1st Respondent procured a forensic examiner.
16. In response, the 3rd Respondent in its letter dated 9th June 2020 informed the Petitioner that investigations were still ongoing. Furthermore, upon conclusion it would submit its findings to the 2nd Respondent as dictated by the law who then would apprise her on the result. This Report was concluded and issued to the 2nd Respondent on 11th November 2020.
17. The Petitioner contends that the 2nd Respondent however disregarded the 3rd Respondent’s investigation results and ensued to rely on the DCI investigation report based on the private forensic investigator findings. The Petitioner decries the manner in which the 2nd Respondent handled this issue and insists that it’s an indication of outright bias and casts doubt on the independence of the 3rd Respondent’s office.
18. The Petitioner depones that on 23rd September 2020 she took a plea for the alleged offense of forgery of the background check form. She claims that this complaint was maliciously instigated by her estranged husband.
19. Moreover, the Petitioner depones that the 2nd Respondent through its officer Christine Nanjala (an assistant director at Makadara Law Courts) issued an advisory to the DCI at Kasarani on why she should not be charged. This is because she asserted that matter was purely a labour issue which can be resolved through internal disciplinary proceedings and the labour Court. The Advisory however underscored that should the labour court determine that there was a criminal element, a comprehensive file should be complied taking into consideration the recommendations.
20. The Petitioner asserts that thereafter, another officer of the 2nd Respondent, Jacinta Nyamosi issued a contradictory recommendation in the letter (Ref: ODDP/CAM/2/1518 Police File Number 123/152/2020). In the letter, she determined that since the background check form had not been presented to the 1st Interested Party by the complainant hence the Petitioner be charged with the offences of making a document without authority contrary to Section 357(a) of the Penal Code and uttering a false document with intent to defraud contrary to Section 357(b) of the Penal Code.
21. Pursuant to this directive, the matter was transferred from Makadara Law Courts to Milimani Law Courts where the Petitioner was charged. The suit Milimani MCCR E3070 of 2020 was set for hearing on 28th July 2022. It claimed that the 2nd Respondent relied on a photocopy of the original document as the original form was still being held by the 3rd Respondent. The Petitioner in like manner emphasizes that the 2nd Respondent proceeded to prosecute the matter despite the 3rd Respondent’s contrary findings thus terming it as an unwarranted prosecution. A follow up on the matter vide letters dated 13th October 2020, 29th October 2020 and 11th November 2021 by her Counsel is said to have been futile.
22. In the Petitioner’s view, the decision to charge her was made without regard to the Guidelines on the Decision to Charge and geared towards serving personal interests hence an abuse of the legal process. Further the transfer of the suit and contradictory directives by the 2nd Respondent raises integrity questions. What is more, the Petitioner is apprehensive that the Respondents will continue subjecting her to mistreatment and unnecessary litigation on unsubstantiated allegations.
23. The Petitioner in her further affidavit depones that the 2nd Respondent on 22nd February 2022 withdrew the Criminal Case No.E3070 /2020 under Section 87 of the Criminal Procedure Code. The Petitioner contends that this is clear indication that the prosecution that against her was unjust and malicious and based on ulterior motive from the beginning. Furthermore, that the manner in which the 2nd Respondent conducted itself in this matter was unlawful and did not adhere to the procedural guidelines.
1st and 2nd Respondents’ Case
24. The 1st and 2nd Respondents through Sgt. Muthoka Ngolya from DCI Kasarani filed their Replying affidavit sworn on 22nd February 2023.
25. He affirms that the Petitioner was the 1st Interested Party’s Chief Accountant. Prior to this, she had worked at Avic Shantui Construction Machinery (EA) Company Limited and previously at Kenya Revenue Authority (KRA). He informs that the Petitioner had been dismissed from KRA for receiving a bribe near Yukos Petrol Station.
26. He avers that while at Avic Ltd, the Petitioner held the position of Financial and Administration Assistant from 24th September 2014 to 27th March 2015.He informs that the Petitioner was on 27th March 2015 summarily dismissed from her position due to disciplinary issues that revolved around integrity and transparency. It is noted that the company only issued her with a Certificate of Service. No recommendation letter or background check form was issued.
27. He depones that following a complaint by the 3rd Interested Party at Kasarani Police Station on 16th March 2020 vide OB.No.61/16/3/2020, an investigation was lodged. It is at this point that the investigating officer alongside other officers went to the Petitioner’s house. He asserts that contrary to the Petitioner’s allegation, the investigating officer considering the Petitioner’s children asked her to report to Kasarani Police Station the following day on 23rd March 2020 instead of arresting her.
28. He avers that the Petitioner reported to the police station the next day where she was arrested and taken to Court. In her recorded Statement, the Petitioner stated that she had been given a background check form (KNATCOM Form 2A) which she issued to her husband for transmission to the 3rd Interested Party, who she said was General Manager at Avic Ltd. for signing. He depones that the 3rd Interested Party contrary to the Petitioner’s assertion was not the General Manager but Sales Manager.
29. It is stated that the 2nd Respondent in a letter dated 18th November 2022 requested the 3rd Respondent to issue the Petitioner’s original documents which were in its possession in light of the criminal case. He notes that a copy of the background form (KNATCOM Form 2A) was obtained together with the specimen handwriting and signature for forensic examination analysis.
30. He avers that while the 3rd Respondent’s investigations established that the Background Check Form was authentic, their investigations revealed that Form was a forgery as deduced from the forensic examination analysis of the signatures and handwritings. It is stated that in a letter dated 8th September 2020, the 2nd Respondent advised the 1st Respondent to charge the Petitioner under Section 357(a)(b) of the Penal Code.
31. It is asserted that the Petitioner in her assertions did not demonstrate how the DCI Kasarani Division acted contrary to the advisory issued in Ref: ODPP/CAM/2/1518 Police File Number 123/152/2020 dated 14th April 2020. He enlightens that this advisory had at first considered that the matter ought to be resolved through the 1st Interested Party’s internal disciplinary mechanisms in light of the circumstances at the moment. He avers that thereafter, the 2nd Respondent on 8th September 2020 recommended that the Petitioner be charged with making a document without authority and uttering a false document.
32. According to him, all the requisite legal procedures were adhered to before the Petitioner was arraigned in Court and that they had acted within their respective legal mandates. Considering this, he argues that these Respondents in instigating Criminal Case No.E3070 of 2020 did not violate the Petitioner’s constitutional rights.
3rd Respondent’s Case
33. The 3rd Respondent through Abdirizack Abduba, an Ethics Compliance Officer filed its Replying Affidavit sworn on 20th September 2022.
34. He depones that the 3rd Respondent received a letter dated 3rd February 2020 from the Chairman of the 1st Interested Party’s Board to investigate whether the Petitioner had issued a forged background check form at the time of her employment. Additionally, it was alleged that the Petitioner had falsely informed that she had been employed by Avic Shantui Construction Machinery (EA) Co. Ltd as a Financial and Administration Assistant Manager.
35. On the flipside, he makes known that the Petitioner had lodged a complaint against the 1st Interested Party’s CEO for sending her and two other colleagues on compulsory leave without following the due process. He notes that both complaints were linked to Cyprian Nyakundi’s blog post that ran in September 2019.
36. He depones that their investigations established the Petitioner was employed by the 1st Interested Party in July 2018 and was previously employed at Avic Shantui Construction Machinery (EA) Co. LTD as a Financial and Administration Assistant from 24th September 2012 to 27th March 2015.
37. On the original background check form which was submitted for forensic examination, it was established that the author of the form was the 3rd Interested Party who worked with the Petitioner at Avic Shantui Ltd. The handwriting and signatures on the form were determined to belong to the 3rd Interested Party. As such, the 3rd Respondent determined that the background check form was not a forged document as supposed by the 1st Interested Party.
38. He informs that the 3rd Interested Party was questioned by the 3rd Respondent he initially denied the claim through his Counsel and further to the investigators. He asserts that in this way, the 3rd Interested Party misled and obstructed the investigations.
39. It is further stated that the investigations found that the Petitioner had been sent on compulsory leave based on the social media report and an unverified report from a person alleged to be her spouse from Dinak Limited Company.
40. He avers that on 17th March 2020, the 1st Interested Party’s Chairman requested that the original documents be returned so as to facilitate investigations. This was however not possible as the 3rd Respondent’s investigations were ongoing as communicated in its response dated 19th March 2020. The 1st Interested Party did a follow up letter on 17th April 2020 seeking the documents once more, however the investigations were yet to be completed.
41. It is noted that in line with the Multi Agency Team collaboration, the 3rd Respondent wrote to the DCI informing that their office was investigating the matter which was similar to the allegations under OB.No.61/61/2/2020, although from a different complainant.
42. Upon conclusion of their investigations and pursuant to Section 4(4) and 42(8) of the Leadership and Integrity Act and Regulation 30 of the Leadership and Integrity Regulations, the 3rd Respondent made the following recommendations:
i. Prosecution of Walter Omwenga Oyugi for deceiving Ethics and Anti-Corruption Commission contrary to Section 46(1) (b) as read with Section 46 (2) of the Leadership and Integrity Act.
ii. Issuance of advisory opinion to the Office of the Cabinet Secretary for Education to address governance issues in KNATCOM.
iii. Issuance of a caution to the CEO of KNATCOM, Dr. Evangeline Njoka for failing to adhere to the recommendation of the ad hoc investigation committee of the Board to reinstate the Officers. This omission led to the loss of public funds through paying full salaries to three (3) officers who were not on duty for ten months.
43. It is stated that upon conclusion of the investigations, the 3rd Respondent is required by law to submit the results of the investigation to the 2nd Respondent. Equally, it is averred that the 3rd Respondent was not obliged to divulge the details of the investigation as requested by the Petitioner as may constitute a criminal offense under Section 33 of the Anti – Corruption and Economic Crimes Act. Nonetheless, he notes that the Petitioner would be informed of the findings once the 2nd Respondent considers the matter.
4th Respondent’s Case
44. This Party’s response and submissions in view of the Petition are not in the Court file or Court Online Platform (CTS).
1st and 2nd Interested Parties’ Case
45. The 1st and 2nd Interested Parties filed their Replying Affidavit sworn on 17th January 2023 by the 2nd Interested Party.
46. She depones that the Petitioner who had worked as the Chief Accountant, had her employment terminated lawfully on grounds of gross misconduct. This was following the internal disciplinary procedures which established that she was culpable.
47. She avers that the Petitioner ensued to file a plethora of cases against them and the 1st Respondent being Nairobi ELRC Petition No. 38 of 2020, Catherine Nyakoboke Nyang'au vs. Kenya National Commission for UNESCO & 6 Others and Nairobi E&LRC Judicial Review No. 9 of 2020, Catherine Nyakoboke Nyang'au vs. Kenya National Commission for UNESCO & Another as well as ELRC Petition 82 of 2020 Catherine Nyakoboke Nyang'au v Evangeline Njoka & 3 others [2021] eKLR seeking to block her employment termination and prosecution. She however informs that all these suits were dismissed and that the instant suit is equally aimed at taking the Court in circles.
48. She stresses that the Petitioner in accusing the Respondents has failed to cite the provisions of law which were violated and the manner in which they were violated. In light of the foregoing, she avers that the Petition ought to be dismissed.
3rd Interested Party’s Case
49. The 3rd Interested Party in rejoinder filed his replying affidavit sworn on 31st December 2022.
50. He informs that around September 2019, he read from a newspaper article that the Petitioner had used his signature on the impugned background check form which she submitted to the 1st Interested Party.
51. In reaction, through his advocate, he wrote to the 1st Interested Party’s Secretary General on 16th September 2019 requesting a copy of the recommendation letter. When he received the copy on the same day, he confirmed that the background check form bore his name and signature. It further stated that he was the General Manager which was false.
52. He avers that on 25th September 2019, Avic Ltd also wrote a letter denying the background check form which they also claimed was a forgery.
53. He depones that grieved by the Petitioner’s action, he reported the matter at DCI Kasarani vide OB No. 61/16/3/2020. Following the investigations, he states that the 2nd Respondent on 8th September 2020 recommended that the Petitioner be charged under Section 357 (a) and (b) of the Penal Code in Criminal Case No. E3070 of 2020, wherein he and the 1st Interested Party are the complainants.
54. The Petitioner subsequently took a plea on 21st September 2020. He asserts that the Petitioner has since been filing various suits and seeking adjournments with the aim of quashing the criminal suit.
55. He asserts that the Petitioner has not demonstrated how the Respondents in carrying out the investigations and instigating the criminal suit acted unlawfully. Correspondingly not shown how his complaint contravened the Constitution. He asserts that his complaint was not based on any labour issue but the alleged forgery purporting to be him.
Petitioner’s Submissions
56. On 7th March 2023, the Petitioner through Otwal and Manwa Associate Advocates filed submissions where the issues for argument were identified as: whether the Petitioners Constitutional rights has been threatened, violated and infringed; whether the investigations, arrest and prosecution of the Petitioner were selective and maliciously instigated to selfish ends; whether the Petitioner was charged against express instructions not to charge due to non-conclusive investigations, whether the Petitioners right of access to information was threatened and violated, whether the withdrawal of the case by the DPP amounts to an admission that the Petitioner’s rights were infringed and whether the Petitioner is entitled to damages.
57. Counsel in the first issue argued that the criminal prosecution had been instigated maliciously with the ulterior motive being settling of a personal score. As a result, Counsel stressed that the Petitioner’s constitutional rights had been violated. Furthermore, Counsel stressed that the manner in which the 1st and 2nd Respondent conducted this matter raises suspicion. In that, the 1st Respondent arrested the Petitioner without having conducted independent investigations into the complaints made by the 1st Interested Party on the alleged offence of forgery.
58. Reliance was placed in Republic vs Attorney General Exparte Kipngeno Arap Ngeny HC Civil Application 406/2001 where it was held that:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.
59. Comparable dependence was placed in Gulam & Anor vs Chief Magistrate's Court & Anor [2006] eKLR, Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR, Kasio Matuku & Kenya Post Office Savings Bank v James Kipkemboi Cheruiyot; Inspector General of Police & Attorney General (Interested Parties) [2019] eKLR and Kenya Fluorspar Company Limited v William Mutua Maseve & another [2014] eKLR.
60. In light of the foregoing, Counsel submitted in the second issue that the 3rd Interested Party had denied signing the background check form yet the 3rd Respondent established that the form was authentic in that he was the author. On this premise Counsel contended that the charge of forgery cannot stand. Counsel submitted that there was evidence in favour of the Petitioner which the 2nd Respondent deliberately chose to ignore thus making it clear that the criminal proceedings were maliciously instigated.
61. Reliance was placed in Agnes Ngenesi Kinyua (supra) where it was held that:
“However, adopting an equivocal approach to investigations by deliberately denying a suspect an opportunity to put forward his version before a person is arraigned in court surely amounts to maladministration of justice. Similarly, where exculpatory evidence is presented to the police in the course of investigation and for some reasons known to them, they deliberately decide to ignore the same one may be justified in concluding that the police are driven by collateral considerations other than genuine vindication of the criminal judicial process. Neglect to make a reasonable use of the sources of information available before instituting proceedings may therefore be evidence of malice and hence abuse of discretion and power.”
62. Similar dependence was placed in Republic v Director of Public Prosecutions & 2 others ex-parte Joseph Gathuku Kamuiru & another [2014] eKLR.
63. Moving to the third issue, Counsel submitted that the 2nd Respondent had proceeded to charge the Petitioner without conclusive evidence. Counsel stressed that without this evidence, there would not be probable cause for continuing prosecution of the Petitioner. Counsel argued therefore that the Petitioner had a legitimate expectation that the decision to prosecute her would be dictated by the existence of a probable cause as made manifest from conclusive independent investigations.
64. Furthermore, Counsel noted that the 2nd Respondent in its letter dated 14th April 2020 had advised against prosecution of the Petitioner yet still in the end proceeded to charge the Petitioner. According to Counsel, the impugned prosecution is tantamount to vexing the Petitioner with a prosecution without any probable cause.
65. Reliance was placed in Republic vs Judicial Commission of Inquiry into the Goldenberg Affair & 2 Others Ex-Parte George Saitoti [2006] eKLR where it was held that:
“if the decision maker unreasonably departs from the publicly stated policy or customary practice or reneges on an earlier decision or undertaking thus confounding the applicant’s legitimate expectations from the decision maker, then it can also be argued that there has been a breach of the duty to act fairly...”
66. Counsel considering this submitted that a prosecution which lacks a foundational basis must not be allowed to stand as held in Republic v Director of Public Prosecutions & another ex parte Patrick Ogola Onyango & 8 other [2016] eKLR.
67. Comparable dependence was placed in Thuita Mwangi & 2 Others v Ethics & Anti-Corruption Commission and 3 Others [2013] eKLR, Njuguna S. Ndungu v Ethics & Anti-Corruption Commission (EACC) & 3 others [2018] eKLR, Diamond Hasham Lalji & another v Attorney General and 4 others [2018] eKLR and Jago v District Court (NSW) [1989] HCA 46: (1989) 168 CLR 23 (12 October 1989) among others.
68. On the fourth issue, Counsel submitted that the Petitioner’s right of access to information was violated in that the 3rd Respondent failed to issue its Report to the Petitioner on the forgery allegations. This was despite several follow ups on the same. To buttress this point reliance was placed in Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR where the Court stated that:
“The Constitution is therefore clear that information held by the state is accessible by citizens and that information is available on request. What this means is that once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that information be in possession of the state, state officer or public body.
For purposes of actualizing Article 35, parliament enacted Access to Information Act 2016. Section 4 of the Act which is material provides that access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.”
69. Comparable reliance was placed in Trusted Society of Human Rights Alliance & 3 Others Judicial Service Commission [2016] eKLR, George N. Juma & 2 Others – V- A.G, HC (Nairobi) Misc. Cim App. No. 345 of 2001 and Court of Appeal Case of R vs Ward (1993).
70. On the fifth issue, Counsel submitted that the 1st and 2nd Respondents’ officers are guilty of dereliction of their duty as they exercised the powers conferred upon them arbitrarily and capriciously and so their actions were unconstitutional and unlawful. Counsel contended that this was evident from the withdrawal of the criminal suit by the 2nd Respondent. It is his assertion therefore that the Respondents actions were an abuse of the Court process and were a clear indication that the investigations were a sham with the goal of harassing the Petitioner.
71. To buttress this point reliance was placed in Peter George Anthony Costa v. Attorney General & Another Nairobi Petition No. 83/2010 where it was held that:
“The process of the court must be used properly, honestly and in good faith, and must not be abused This means that the court will not allow its function as a court of law to be misused and will summarily prevent its machinery from being used as a means of vexation or of oppression in the process of litigation. It follows that where there is an abuse of the court process there is a breach of the petitioner’s fundamental rights as the petitioner will not receive a fair trial. It is the duty of the court to stop such abuse of the justice system.”
72. Comparable reliance was placed in Meme -vs- Republic & Another (2004) eKLR and Kelly Kass Bunjika V Director of Public Prosecutions (DPP) & Another [2018]eKLR.
73. To this end, Counsel submitted that the Petitioner was entitled to the reliefs sought including an award of damages for compensation for violation of rights. Reliance was placed in Peter Mauki Kaijenja & 9 others vs Chief of the Defence Forces & another [2019] eKLR where it was held that:
“Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Courts…”
74. Additional dependence was placed in Gitobu Imanyara & 2 o
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1. The Petition dated 18th July 2022, is supported by the Petitioner’s affidavit in support of even date and further affidavits dated 15th February 2023 and 7th March 2023.
2. This Petition arises out two complaints that were lodged by the 1st and 3rd Interested Parties against the Petitioner with a view to having her criminally prosecuted for alleged forgery of a Background Check Form that was presented by the Petitioner to the 1st Interested Party for the purposes of her recruitment as its Chief Accountant.
3. The Petitioner claims that both the investigation and prosecution is based on unsupported malevolently instigated complaints which are a violation of her constitutional rights.
4. Consequently, the Petitioner seeks the following reliefs:
a) A declaration be issued that investigations on the Petitioner by the DCI and the DPP’s institution of criminal proceedings against the Petitioner in Criminal Case Number E3070 of 2020, – Republic v Catherine Nyakoboke Nyangau violates her constitutional rights, is an abuse of the process of the court and therefore unlawful, null and void ab initio;
b) An order of certiorari be issued removing into this court and quashing the entire charge sheet dated 9th June 2022 and proceedings against the Petitioner in Criminal Case Number E3070 of 2020, – Republic v Catherine Nyakoboke Nyangau.
c) A declaration be issued that the fundamental rights and freedoms of the Petitioner under Article 27, 28, 31, 35 and 47 of the Constitution have been violated by the Respondents.
d) An order of prohibition be issued restraining the Respondents from conducting any further investigations on the Petitioner.
e) An order of prohibition be issued against the 1st, 2nd & 3rd Respondents from investigating, recommending the prosecution or commencing any prosecution of the Petitioner in respect of which criminal case number E3070 of 2020, – Republic v Catherine Nyakoboke Nyangau was instituted.
f) The Costs of this Petition be provided for.
Petitioner’s Case
5. The Petitioner stated that she was the 1st Interested Party’s Chief Accountant as per the appointment letter dated 31st July 2018 a position she confirmed in on 18th February, 2019.
6. She depones that she served in this position up until 23rd September 2019, when she was directed to go on compulsory leave on account of the pending investigations relating to alleged forgery of the background check documents she had presented to the 1st Interested Party in connection with her recruitment following reports that were circulated in the social media.
7. The 1st Interested Party commenced internal investigations and on 25th October 2019, it issued the Petitioner with a letter of Notice to Show Cause alleging forgery of documents, misrepresentation and failure to declare conflict of interest.
8. The Petitioner responded on 18th November 2019 and also appeared before the 1st Interested Party’s Board’s ad hoc committee on 16th January 2020.
9. The 1st Interested Party’s Chief Executive Officer (CEO) vide a letter dated 16th March 2020 informed the Petitioner that the Board had completed investigations but had resolved to suspend the case pending the investigations by the other external bodies.
10. The 1st Interested Party’s CEO proceeded to report the alleged forgery of documents to the Directorate of Criminal Investigations (DCI) at Kasarani. This is despite the Chair of the Board of the 1st Interested Party having already referred the matter to the 3rd Respondent vide a letter dated 3rd February 2020 and that the 3rd Respondent had in fact her summoned and recorded her statement.
11. It was noted in the further affidavit that the 3rd Respondent investigations concluded that the background check form that the Petitioner had presented to the 1st Interested Party from Avic Shantui Construction Machinery E.A was not a forged document. Additionally, that the 3rd Interested Party (Walter Omwenga Oyugi) assertion that he did not complete the background check form was intended to mislead and obstruct the investigations.
12. The Petitioner depones that on 22nd March 2020, officers from DCI Kasarani, raided her house at Embakasi at 9:00pm with the aim of arresting her. She was however not arrested on that day owing to the help of her neighbours and intervention of her Counsel. She states that she went to the station the next day where she recorded her statement and was later on released on a cash bail.
13. She alleges that upon supplying this information to the DCI, she expected that it would carry forensic investigations which would absolve her but this did not happen. Instead, the DCI proceeded to hurriedly charge her with the offence of making a document without authority contrary to Section 357(a) of the Penal Code at Makadara Law Courts.
14. The Petitioner avers that the 2nd Respondent, through one of its officers Christine Nanjala, in a letter dated 14th April 2020, advised the SCCIO at Kasarani police station not to pursue the forgery charges.
15. The Petitioner informs that in a letter dated 7th May 2020 addressed to the 1st Interested Party and the 3rd Respondent, requested for a copy of its Report on the investigation. This is due to the fact that the 3rd Respondent had been issued with the original documents long before the 1st Respondent procured a forensic examiner.
16. In response, the 3rd Respondent in its letter dated 9th June 2020 informed the Petitioner that investigations were still ongoing. Furthermore, upon conclusion it would submit its findings to the 2nd Respondent as dictated by the law who then would apprise her on the result. This Report was concluded and issued to the 2nd Respondent on 11th November 2020.
17. The Petitioner contends that the 2nd Respondent however disregarded the 3rd Respondent’s investigation results and ensued to rely on the DCI investigation report based on the private forensic investigator findings. The Petitioner decries the manner in which the 2nd Respondent handled this issue and insists that it’s an indication of outright bias and casts doubt on the independence of the 3rd Respondent’s office.
18. The Petitioner depones that on 23rd September 2020 she took a plea for the alleged offense of forgery of the background check form. She claims that this complaint was maliciously instigated by her estranged husband.
19. Moreover, the Petitioner depones that the 2nd Respondent through its officer Christine Nanjala (an assistant director at Makadara Law Courts) issued an advisory to the DCI at Kasarani on why she should not be charged. This is because she asserted that matter was purely a labour issue which can be resolved through internal disciplinary proceedings and the labour Court. The Advisory however underscored that should the labour court determine that there was a criminal element, a comprehensive file should be complied taking into consideration the recommendations.
20. The Petitioner asserts that thereafter, another officer of the 2nd Respondent, Jacinta Nyamosi issued a contradictory recommendation in the letter (Ref: ODDP/CAM/2/1518 Police File Number 123/152/2020). In the letter, she determined that since the background check form had not been presented to the 1st Interested Party by the complainant hence the Petitioner be charged with the offences of making a document without authority contrary to Section 357(a) of the Penal Code and uttering a false document with intent to defraud contrary to Section 357(b) of the Penal Code.
21. Pursuant to this directive, the matter was transferred from Makadara Law Courts to Milimani Law Courts where the Petitioner was charged. The suit Milimani MCCR E3070 of 2020 was set for hearing on 28th July 2022. It claimed that the 2nd Respondent relied on a photocopy of the original document as the original form was still being held by the 3rd Respondent. The Petitioner in like manner emphasizes that the 2nd Respondent proceeded to prosecute the matter despite the 3rd Respondent’s contrary findings thus terming it as an unwarranted prosecution. A follow up on the matter vide letters dated 13th October 2020, 29th October 2020 and 11th November 2021 by her Counsel is said to have been futile.
22. In the Petitioner’s view, the decision to charge her was made without regard to the Guidelines on the Decision to Charge and geared towards serving personal interests hence an abuse of the legal process. Further the transfer of the suit and contradictory directives by the 2nd Respondent raises integrity questions. What is more, the Petitioner is apprehensive that the Respondents will continue subjecting her to mistreatment and unnecessary litigation on unsubstantiated allegations.
23. The Petitioner in her further affidavit depones that the 2nd Respondent on 22nd February 2022 withdrew the Criminal Case No.E3070 /2020 under Section 87 of the Criminal Procedure Code. The Petitioner contends that this is clear indication that the prosecution that against her was unjust and malicious and based on ulterior motive from the beginning. Furthermore, that the manner in which the 2nd Respondent conducted itself in this matter was unlawful and did not adhere to the procedural guidelines.
1st and 2nd Respondents’ Case
24. The 1st and 2nd Respondents through Sgt. Muthoka Ngolya from DCI Kasarani filed their Replying affidavit sworn on 22nd February 2023.
25. He affirms that the Petitioner was the 1st Interested Party’s Chief Accountant. Prior to this, she had worked at Avic Shantui Construction Machinery (EA) Company Limited and previously at Kenya Revenue Authority (KRA). He informs that the Petitioner had been dismissed from KRA for receiving a bribe near Yukos Petrol Station.
26. He avers that while at Avic Ltd, the Petitioner held the position of Financial and Administration Assistant from 24th September 2014 to 27th March 2015.He informs that the Petitioner was on 27th March 2015 summarily dismissed from her position due to disciplinary issues that revolved around integrity and transparency. It is noted that the company only issued her with a Certificate of Service. No recommendation letter or background check form was issued.
27. He depones that following a complaint by the 3rd Interested Party at Kasarani Police Station on 16th March 2020 vide OB.No.61/16/3/2020, an investigation was lodged. It is at this point that the investigating officer alongside other officers went to the Petitioner’s house. He asserts that contrary to the Petitioner’s allegation, the investigating officer considering the Petitioner’s children asked her to report to Kasarani Police Station the following day on 23rd March 2020 instead of arresting her.
28. He avers that the Petitioner reported to the police station the next day where she was arrested and taken to Court. In her recorded Statement, the Petitioner stated that she had been given a background check form (KNATCOM Form 2A) which she issued to her husband for transmission to the 3rd Interested Party, who she said was General Manager at Avic Ltd. for signing. He depones that the 3rd Interested Party contrary to the Petitioner’s assertion was not the General Manager but Sales Manager.
29. It is stated that the 2nd Respondent in a letter dated 18th November 2022 requested the 3rd Respondent to issue the Petitioner’s original documents which were in its possession in light of the criminal case. He notes that a copy of the background form (KNATCOM Form 2A) was obtained together with the specimen handwriting and signature for forensic examination analysis.
30. He avers that while the 3rd Respondent’s investigations established that the Background Check Form was authentic, their investigations revealed that Form was a forgery as deduced from the forensic examination analysis of the signatures and handwritings. It is stated that in a letter dated 8th September 2020, the 2nd Respondent advised the 1st Respondent to charge the Petitioner under Section 357(a)(b) of the Penal Code.
31. It is asserted that the Petitioner in her assertions did not demonstrate how the DCI Kasarani Division acted contrary to the advisory issued in Ref: ODPP/CAM/2/1518 Police File Number 123/152/2020 dated 14th April 2020. He enlightens that this advisory had at first considered that the matter ought to be resolved through the 1st Interested Party’s internal disciplinary mechanisms in light of the circumstances at the moment. He avers that thereafter, the 2nd Respondent on 8th September 2020 recommended that the Petitioner be charged with making a document without authority and uttering a false document.
32. According to him, all the requisite legal procedures were adhered to before the Petitioner was arraigned in Court and that they had acted within their respective legal mandates. Considering this, he argues that these Respondents in instigating Criminal Case No.E3070 of 2020 did not violate the Petitioner’s constitutional rights.
3rd Respondent’s Case
33. The 3rd Respondent through Abdirizack Abduba, an Ethics Compliance Officer filed its Replying Affidavit sworn on 20th September 2022.
34. He depones that the 3rd Respondent received a letter dated 3rd February 2020 from the Chairman of the 1st Interested Party’s Board to investigate whether the Petitioner had issued a forged background check form at the time of her employment. Additionally, it was alleged that the Petitioner had falsely informed that she had been employed by Avic Shantui Construction Machinery (EA) Co. Ltd as a Financial and Administration Assistant Manager.
35. On the flipside, he makes known that the Petitioner had lodged a complaint against the 1st Interested Party’s CEO for sending her and two other colleagues on compulsory leave without following the due process. He notes that both complaints were linked to Cyprian Nyakundi’s blog post that ran in September 2019.
36. He depones that their investigations established the Petitioner was employed by the 1st Interested Party in July 2018 and was previously employed at Avic Shantui Construction Machinery (EA) Co. LTD as a Financial and Administration Assistant from 24th September 2012 to 27th March 2015.
37. On the original background check form which was submitted for forensic examination, it was established that the author of the form was the 3rd Interested Party who worked with the Petitioner at Avic Shantui Ltd. The handwriting and signatures on the form were determined to belong to the 3rd Interested Party. As such, the 3rd Respondent determined that the background check form was not a forged document as supposed by the 1st Interested Party.
38. He informs that the 3rd Interested Party was questioned by the 3rd Respondent he initially denied the claim through his Counsel and further to the investigators. He asserts that in this way, the 3rd Interested Party misled and obstructed the investigations.
39. It is further stated that the investigations found that the Petitioner had been sent on compulsory leave based on the social media report and an unverified report from a person alleged to be her spouse from Dinak Limited Company.
40. He avers that on 17th March 2020, the 1st Interested Party’s Chairman requested that the original documents be returned so as to facilitate investigations. This was however not possible as the 3rd Respondent’s investigations were ongoing as communicated in its response dated 19th March 2020. The 1st Interested Party did a follow up letter on 17th April 2020 seeking the documents once more, however the investigations were yet to be completed.
41. It is noted that in line with the Multi Agency Team collaboration, the 3rd Respondent wrote to the DCI informing that their office was investigating the matter which was similar to the allegations under OB.No.61/61/2/2020, although from a different complainant.
42. Upon conclusion of their investigations and pursuant to Section 4(4) and 42(8) of the Leadership and Integrity Act and Regulation 30 of the Leadership and Integrity Regulations, the 3rd Respondent made the following recommendations:
i. Prosecution of Walter Omwenga Oyugi for deceiving Ethics and Anti-Corruption Commission contrary to Section 46(1) (b) as read with Section 46 (2) of the Leadership and Integrity Act.
ii. Issuance of advisory opinion to the Office of the Cabinet Secretary for Education to address governance issues in KNATCOM.
iii. Issuance of a caution to the CEO of KNATCOM, Dr. Evangeline Njoka for failing to adhere to the recommendation of the ad hoc investigation committee of the Board to reinstate the Officers. This omission led to the loss of public funds through paying full salaries to three (3) officers who were not on duty for ten months.
43. It is stated that upon conclusion of the investigations, the 3rd Respondent is required by law to submit the results of the investigation to the 2nd Respondent. Equally, it is averred that the 3rd Respondent was not obliged to divulge the details of the investigation as requested by the Petitioner as may constitute a criminal offense under Section 33 of the Anti – Corruption and Economic Crimes Act. Nonetheless, he notes that the Petitioner would be informed of the findings once the 2nd Respondent considers the matter.
4th Respondent’s Case
44. This Party’s response and submissions in view of the Petition are not in the Court file or Court Online Platform (CTS).
1st and 2nd Interested Parties’ Case
45. The 1st and 2nd Interested Parties filed their Replying Affidavit sworn on 17th January 2023 by the 2nd Interested Party.
46. She depones that the Petitioner who had worked as the Chief Accountant, had her employment terminated lawfully on grounds of gross misconduct. This was following the internal disciplinary procedures which established that she was culpable.
47. She avers that the Petitioner ensued to file a plethora of cases against them and the 1st Respondent being Nairobi ELRC Petition No. 38 of 2020, Catherine Nyakoboke Nyang'au vs. Kenya National Commission for UNESCO & 6 Others and Nairobi E&LRC Judicial Review No. 9 of 2020, Catherine Nyakoboke Nyang'au vs. Kenya National Commission for UNESCO & Another as well as ELRC Petition 82 of 2020 Catherine Nyakoboke Nyang'au v Evangeline Njoka & 3 others [2021] eKLR seeking to block her employment termination and prosecution. She however informs that all these suits were dismissed and that the instant suit is equally aimed at taking the Court in circles.
48. She stresses that the Petitioner in accusing the Respondents has failed to cite the provisions of law which were violated and the manner in which they were violated. In light of the foregoing, she avers that the Petition ought to be dismissed.
3rd Interested Party’s Case
49. The 3rd Interested Party in rejoinder filed his replying affidavit sworn on 31st December 2022.
50. He informs that around September 2019, he read from a newspaper article that the Petitioner had used his signature on the impugned background check form which she submitted to the 1st Interested Party.
51. In reaction, through his advocate, he wrote to the 1st Interested Party’s Secretary General on 16th September 2019 requesting a copy of the recommendation letter. When he received the copy on the same day, he confirmed that the background check form bore his name and signature. It further stated that he was the General Manager which was false.
52. He avers that on 25th September 2019, Avic Ltd also wrote a letter denying the background check form which they also claimed was a forgery.
53. He depones that grieved by the Petitioner’s action, he reported the matter at DCI Kasarani vide OB No. 61/16/3/2020. Following the investigations, he states that the 2nd Respondent on 8th September 2020 recommended that the Petitioner be charged under Section 357 (a) and (b) of the Penal Code in Criminal Case No. E3070 of 2020, wherein he and the 1st Interested Party are the complainants.
54. The Petitioner subsequently took a plea on 21st September 2020. He asserts that the Petitioner has since been filing various suits and seeking adjournments with the aim of quashing the criminal suit.
55. He asserts that the Petitioner has not demonstrated how the Respondents in carrying out the investigations and instigating the criminal suit acted unlawfully. Correspondingly not shown how his complaint contravened the Constitution. He asserts that his complaint was not based on any labour issue but the alleged forgery purporting to be him.
Petitioner’s Submissions
56. On 7th March 2023, the Petitioner through Otwal and Manwa Associate Advocates filed submissions where the issues for argument were identified as: whether the Petitioners Constitutional rights has been threatened, violated and infringed; whether the investigations, arrest and prosecution of the Petitioner were selective and maliciously instigated to selfish ends; whether the Petitioner was charged against express instructions not to charge due to non-conclusive investigations, whether the Petitioners right of access to information was threatened and violated, whether the withdrawal of the case by the DPP amounts to an admission that the Petitioner’s rights were infringed and whether the Petitioner is entitled to damages.
57. Counsel in the first issue argued that the criminal prosecution had been instigated maliciously with the ulterior motive being settling of a personal score. As a result, Counsel stressed that the Petitioner’s constitutional rights had been violated. Furthermore, Counsel stressed that the manner in which the 1st and 2nd Respondent conducted this matter raises suspicion. In that, the 1st Respondent arrested the Petitioner without having conducted independent investigations into the complaints made by the 1st Interested Party on the alleged offence of forgery.
58. Reliance was placed in Republic vs Attorney General Exparte Kipngeno Arap Ngeny HC Civil Application 406/2001 where it was held that:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable”.
59. Comparable dependence was placed in Gulam & Anor vs Chief Magistrate's Court & Anor [2006] eKLR, Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR, Kasio Matuku & Kenya Post Office Savings Bank v James Kipkemboi Cheruiyot; Inspector General of Police & Attorney General (Interested Parties) [2019] eKLR and Kenya Fluorspar Company Limited v William Mutua Maseve & another [2014] eKLR.
60. In light of the foregoing, Counsel submitted in the second issue that the 3rd Interested Party had denied signing the background check form yet the 3rd Respondent established that the form was authentic in that he was the author. On this premise Counsel contended that the charge of forgery cannot stand. Counsel submitted that there was evidence in favour of the Petitioner which the 2nd Respondent deliberately chose to ignore thus making it clear that the criminal proceedings were maliciously instigated.
61. Reliance was placed in Agnes Ngenesi Kinyua (supra) where it was held that:
“However, adopting an equivocal approach to investigations by deliberately denying a suspect an opportunity to put forward his version before a person is arraigned in court surely amounts to maladministration of justice. Similarly, where exculpatory evidence is presented to the police in the course of investigation and for some reasons known to them, they deliberately decide to ignore the same one may be justified in concluding that the police are driven by collateral considerations other than genuine vindication of the criminal judicial process. Neglect to make a reasonable use of the sources of information available before instituting proceedings may therefore be evidence of malice and hence abuse of discretion and power.”
62. Similar dependence was placed in Republic v Director of Public Prosecutions & 2 others ex-parte Joseph Gathuku Kamuiru & another [2014] eKLR.
63. Moving to the third issue, Counsel submitted that the 2nd Respondent had proceeded to charge the Petitioner without conclusive evidence. Counsel stressed that without this evidence, there would not be probable cause for continuing prosecution of the Petitioner. Counsel argued therefore that the Petitioner had a legitimate expectation that the decision to prosecute her would be dictated by the existence of a probable cause as made manifest from conclusive independent investigations.
64. Furthermore, Counsel noted that the 2nd Respondent in its letter dated 14th April 2020 had advised against prosecution of the Petitioner yet still in the end proceeded to charge the Petitioner. According to Counsel, the impugned prosecution is tantamount to vexing the Petitioner with a prosecution without any probable cause.
65. Reliance was placed in Republic vs Judicial Commission of Inquiry into the Goldenberg Affair & 2 Others Ex-Parte George Saitoti [2006] eKLR where it was held that:
“if the decision maker unreasonably departs from the publicly stated policy or customary practice or reneges on an earlier decision or undertaking thus confounding the applicant’s legitimate expectations from the decision maker, then it can also be argued that there has been a breach of the duty to act fairly...”
66. Counsel considering this submitted that a prosecution which lacks a foundational basis must not be allowed to stand as held in Republic v Director of Public Prosecutions & another ex parte Patrick Ogola Onyango & 8 other [2016] eKLR.
67. Comparable dependence was placed in Thuita Mwangi & 2 Others v Ethics & Anti-Corruption Commission and 3 Others [2013] eKLR, Njuguna S. Ndungu v Ethics & Anti-Corruption Commission (EACC) & 3 others [2018] eKLR, Diamond Hasham Lalji & another v Attorney General and 4 others [2018] eKLR and Jago v District Court (NSW) [1989] HCA 46: (1989) 168 CLR 23 (12 October 1989) among others.
68. On the fourth issue, Counsel submitted that the Petitioner’s right of access to information was violated in that the 3rd Respondent failed to issue its Report to the Petitioner on the forgery allegations. This was despite several follow ups on the same. To buttress this point reliance was placed in Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR where the Court stated that:
“The Constitution is therefore clear that information held by the state is accessible by citizens and that information is available on request. What this means is that once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that information be in possession of the state, state officer or public body.
For purposes of actualizing Article 35, parliament enacted Access to Information Act 2016. Section 4 of the Act which is material provides that access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.”
69. Comparable reliance was placed in Trusted Society of Human Rights Alliance & 3 Others Judicial Service Commission [2016] eKLR, George N. Juma & 2 Others – V- A.G, HC (Nairobi) Misc. Cim App. No. 345 of 2001 and Court of Appeal Case of R vs Ward (1993).
70. On the fifth issue, Counsel submitted that the 1st and 2nd Respondents’ officers are guilty of dereliction of their duty as they exercised the powers conferred upon them arbitrarily and capriciously and so their actions were unconstitutional and unlawful. Counsel contended that this was evident from the withdrawal of the criminal suit by the 2nd Respondent. It is his assertion therefore that the Respondents actions were an abuse of the Court process and were a clear indication that the investigations were a sham with the goal of harassing the Petitioner.
71. To buttress this point reliance was placed in Peter George Anthony Costa v. Attorney General & Another Nairobi Petition No. 83/2010 where it was held that:
“The process of the court must be used properly, honestly and in good faith, and must not be abused This means that the court will not allow its function as a court of law to be misused and will summarily prevent its machinery from being used as a means of vexation or of oppression in the process of litigation. It follows that where there is an abuse of the court process there is a breach of the petitioner’s fundamental rights as the petitioner will not receive a fair trial. It is the duty of the court to stop such abuse of the justice system.”
72. Comparable reliance was placed in Meme -vs- Republic & Another (2004) eKLR and Kelly Kass Bunjika V Director of Public Prosecutions (DPP) & Another [2018]eKLR.
73. To this end, Counsel submitted that the Petitioner was entitled to the reliefs sought including an award of damages for compensation for violation of rights. Reliance was placed in Peter Mauki Kaijenja & 9 others vs Chief of the Defence Forces & another [2019] eKLR where it was held that:
“Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Courts…”
74. Additional dependence was placed in Gitobu Imanyara & 2 o
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