A. Introduction
The brief facts of the case can be summarized as follows: The Petitioners are embroiled in various civil disputes relating to Mbirikani Group Ranch Cooperative Society Limited. On 15th October, 2024, the 1st Respondent, through CI Margaret Awino Ong'ale, filed a miscellaneous criminal application (MCCR/MISC E724/24) in the Chief Magistrate's Court at Nakuru seeking ex parte orders to access and freeze the Petitioners' bank account statements, the bank account statements of Mbirikani Group Ranch, and the Petitioners' M-Pesa records. The said orders were granted ex-parte by the ruling of the subordinate court dated 15th October 2024. The petitioners then moved to this court vide this constitutional petition dated 23rd October 2024 seeking the orders that:
a. A declaration that the Respondents have violated Articles 31, 47, 50 and 244 of the Constitution of Kenya, 2010.
b. A permanent order can be issued quashing the orders dated 15th October 2024 in the miscellaneous criminal case MCCR/MISC E724/24 DCI RCIO RIFT VALLEY VS EQUITY BANK AND SAFARICOM (K) LTD.
c. An Order of prohibition stopping the prosecution of the Criminal Case no. MCCR/MISC E724/24 DCI RCIO RIFT VALLEY VS EQUITY BANK AND SAFARICOM (K) LTD.
d. A permanent injunction do issue Restraining the Respondents from arresting, intimidating, harassing, charging afresh and/or interfering with the freedom or liberties of the Petitioners in any manner on account of facts and/or issues arising from/relating to civil proceedings in MCCOMMSU E005 OF 2024, MCELC/E118 OF 2024 and the criminal proceedings in MCCR/MISC E724/24 DCI RCIO RIFT VALLEY VS EQUITY BANK AND SAFARICOM (K) LTD.
e. General damages for violation of Petitioner’s rights
f. Exemplary damages for violation of Petitioner’s rights
g. Costs of the application and Petition together with interests.
h. Any other orders the court may deem fit and just to grant.
The Respondents have not made any appearance or filed any Replying Affidavits or submissions in opposition to the Petition. While leave was granted for Mbirikani Group Ranch Cooperative Society Limited to formally apply to be joined in the suit as a respondent, the application for joinder was not made and hence the Petition proceeded undefended.
The Petition
The Petitioners allege that on the 15th of October 2024, the 1st Respondent, through CI Margaret Awino Ong’ale (Officer No. 237690), maliciously filed miscellaneous application MCCR/MISC E724/24 in the Chief Magistrate's Court at Nakuru seeking orders inter alia to access the bank account statements of the Petitioners and those of Mbirikani Group Ranch, to freeze the Petitioners' bank accounts, and to access their M-Pesa records.
It is alleged that the said orders were obtained ex parte, without the Petitioners being joined as parties to the miscellaneous case, whether as respondents or interested parties, and without affording them any opportunity to be heard before the subordinate court, despite the proceedings being of a criminal nature.
The Petitioners allege that they were not joined as parties to the said miscellaneous case as either respondents or even interested parties. They were thus were not afforded any opportunity to be heard despite the proceedings being of a criminal nature.
The Petitioners contend that the said criminal proceedings were maliciously intended to defeat ongoing civil proceedings before the Magistrate's Court at Kajiado in MCCOMMSU E005 OF 2024 and MCELC/E118 OF 2024, where similar attempts by certain individuals to freeze the bank accounts of Mbirikani Group Ranch and the Petitioners had previously failed.
It is further alleged that having failed to succeed through the available civil justice system, the Petitioners' opponents resorted to weaponising the criminal justice process against them in order to frustrate the said ongoing civil proceedings.
In particular, the Petitioners contend that the actions of the 1st Respondent constitute an abuse of the criminal justice system, citing the following reasons in support:
a. The criminal proceedings were commenced in Nakuru, a jurisdiction with no demonstrated connection to any alleged criminal activity of the Petitioners, who are residents of Kajiado where the said accounts and alleged activities are situated.
b. The Petitioners were not enjoined in the miscellaneous application filed in Nakuru whereas they have had their personal and business bank accounts frozen without being heard.
c. The freezing of the said bank accounts was without any basis or probable cause, as the Petitioners are not facing any criminal proceedings for the offences alleged in the miscellaneous criminal application.
d. There are ongoing civil disputes involving the Petitioners and other parties revolving around the same subject matter of Mbirikani Group Ranch, in which previous attempts to freeze the Petitioners’ accounts were termed an abuse of court process by the Learned Chief Magistrate Hon. Oganyo.
Additionally, the Petitioners allege that they had been receiving threats and intimidation, being told “mambo bado," and that it is suspicious that immediately following the said threats, a criminal miscellaneous file was lodged in Nakuru.
With respect to specific constitutional violations, the Petitioners allege that their right to a fair hearing as protected under Article 50 was infringed by the 1st and 3rd Respondents, who deliberately excluded them from the miscellaneous application, whether as respondents or interested parties, in order to steal a march and obtain orders in their absence.
The Petitioners further allege that their right to fair administrative action under Article 47 was infringed, in that the 1st and 3rd Respondents obtained and issued orders freezing bank accounts and accessing bank statements without probable cause or justification. The investigations are said to have been oppressive, vexatious, unreasonable, and conducted in bad faith, contrary to public interest, as they were aimed at compromising the pending civil proceedings before the Magistrate's Court at Kajiado.
It is also alleged that the Petitioners' right to privacy under Article 31 was infringed, their properties having been searched and seized without any reasonable cause or justification.
The Petitioners further contend that the conduct of the 1st and 2nd Respondents has tainted the National Police Service among the general public, contrary to Article 244 of the Constitution as read together with Chapter 22 Order 3(1) of the NPS Force Standing Orders.
The Petitioners allege that the Respondents' actions have caused them anxiety, emotional distress and mental anguish arising from criminal processes maliciously instituted against them without reasonable cause and with the intention of defeating civil proceedings. Further, the freezing of their bank accounts has adversely affected their businesses and personal activities, rendering them unable to transact or make necessary payments.
Submissions
The Petitioners filed their submissions dated 14th February 2025 wherein they reiterated the background facts pertaining to this dispute. The Petitioners identified the following issues for determination:
a) Whether the constitutional petition herein is competent?
b) Whether the rights of the Petitioners under Articles 10, 31, 47, 50 and 244 of the Constitution were violated by the Respondents?
c) The amount of damages due to the Petitioners.
The Petitioners submit that the constitutional petition herein is competent on the basis that it is predicated on the blatant breach and violation of the Constitution by the Respondents and raises substantial issues on the violation of rights and fundamental freedoms.
In support, the Petitioners rely on the decision of this Court in John Juma & 2 others v Patrick Lihanda & another; Zedekiah Orera & 4 others (Interested Parties) (2018) eKLR, where it was held that only the High Court has jurisdiction to determine issues relating to the breach of fundamental rights.
The Petitioners have precisely laid down the alleged infringements on their constitutional rights citing constitutional, statute and case law.
The Petitioners further rely on the decision of the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR , where it was emphasised that the primary purpose of a constitutional remedy is not compensatory or punitive, but to vindicate the rights violated and to prevent or deter future infringements.
The Respondents have not filed any submissions in opposition to the Petition.
Analysis and determination of the court
Having considered the pleadings and submissions on record, the issues that arise for determination are:
i) Whether this Petition is competent.
ii) Whether the criminal process complained of constitutes an abuse of the court process.
iii) Whether the Petitioners’ rights under Articles 31, 47, 50 and 244 of the Constitution have been violated.
iv) Whether the Petitioners are entitled to the reliefs sought, including damages.
Issue 1 - whether the Petition is competent
Article 165(3)(b) of the Constitution vests this Court with jurisdiction to determine questions whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) emphasized that a constitutional petition must set out with reasonable precision the rights alleged to have been violated and the manner of violation.
In the present Petition, the Petitioners have pleaded with precision the specific constitutional provisions alleged to have been infringed and the factual basis thereof, including the impugned miscellaneous criminal proceedings and the ex parte freezing orders.
This Court is therefore satisfied that the Petition meets the constitutional threshold and is properly placed before it.
Issue 2 - Whether the criminal process complained of constitutes an abuse of the court process.
It is not in dispute that the 1st Respondent filed Miscellaneous Criminal Application No. MCCR/MISC E724/24 in Nakuru seeking orders to access and freeze the Petitioners’ bank accounts and M-Pesa accounts. The Petitioners have produced the said ex parte notice of motion application before this court together with the supporting affidavit of C.I Margaret Awino Ong’ale, a police officer attached at the DCI regional office Nakuru.
The orders were obtained ex-parte. The Petitioners were neither joined nor afforded an opportunity to be heard.
The Petitioners contend that the criminal process was weaponized to defeat ongoing civil proceedings in Kajiado.
The Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013] KECA 182 (KLR) held that whereas the police have a constitutional mandate to investigate crime, that mandate must be exercised within the confines of the law and the Constitution, and courts will intervene where the criminal justice process is used oppressively or for ulterior motives.
In reaching its determination in the case above, the Court of Appeal considered that the matter before it had been subject to various litigations before courts of competent jurisdiction; most of which, the Petitioner had lost. In the matter before this court, the Petitioners have submitted that there are ongoing civil disputes between the Petitioners and the other parties concerning the freezing of the Petitioners’ bank accounts which attempts have failed and have subsequently been termed as an abuse of court process by the learned chief magistrate Hon. Oganyo.
I have had the opportunity to look at the two orders of the learned Magistrate Hon. Oganyo; the orders dated 19th August 2024 freezing the Petitioners’ bank accounts and the orders of 26th August 2024 setting aside the said orders of 19th August for the reason that the Applicant therein, Mbirikani Group Ranch Cooperative Society Limited, was in abuse and misuse of the court process.
Mbirikani Group Ranch Cooperative Society would have been in the best position to explain to this court the circumstances which led to the setting aside of the court orders of the subordinate court. However, while it had the opportunity to formally apply to be enjoined in this suit as respondents, it failed to make a formal application within the timelines set by this court.
This not being an appeal, I cannot interrogate the discretion of the learned magistrate to set aside the freezing orders.
Having said so, the material placed before this Court demonstrates:
1 That there exist parallel civil proceedings in Kajiado touching on the same subject matter;
2 That attempts to freeze accounts through civil process had previously failed;
3 That the impugned criminal miscellaneous application was instituted in Nakuru without a demonstrated nexus to the alleged offences; and
4 That the Petitioners were excluded from proceedings directly affecting their proprietary and privacy interests.
In the absence of any rebuttal from the Respondents, and guided by the above appellate authorities, this Court finds that the impugned criminal proceedings were instituted in a manner that amounts to an abuse of the criminal justice process.
Issue 3- whether the Petitioners’ rights were violated
Article 50 of the Constitution guarantees every person the right to a fair and public hearing before an independent and impartial tribunal or body.
Although ex-parte orders may, in appropriate circumstances, be issued in investigative matters, such orders must be accompanied by procedural safeguards and prompt opportunity to be heard.
The Court of Appeal in Judicial Service Comission v Mutava & another [2015] KECA 741 (KLR) underscored that the right to fair hearing is a non-derogable cornerstone of justice. The court, citing with approval the landmark case of Ridge v Baldwin stated thus;
“The right to fair hearing under the common law is a general right, albeit, a universal one. It refers to the three features of natural justice identified by Lord Hodson in Ridge v Baldwin (supra)”
In the instant case, the Petitioners were neither joined nor accorded any opportunity to challenge the freezing orders, yet the orders directly curtailed their proprietary rights and commercial activities. In the circumstances, I find that the Petitioners’ rights as protected under Article 50 were infringed.
The Petitioners have alleged that their rights have been infringed contrary to article 47 of the Constitution. Article 47 guarantees the right to administrative action that is lawful, reasonable and procedurally fair. The Petitioners have submitted that the 1st and 2nd Respondents’ failure to summon the Petitioners even after obtaining the orders denied them an opportunity to be heard. The Petitioners have further submitted that the Respondents lacked lawful justification to freeze the Petitioners’ accounts, and the timing and nature of the orders demonstrate a deliberate attempt to defeat the two civil cases before the magistrates court in Kajiado.
I have held above that the Respondents actions amounted to abuse of the court process. I am guided by the Court of Appeal decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR) which affirmed that administrative actions must meet the constitutional threshold of reasonableness, legality and procedural propriety.
I hereby find that the ex-parte freezing of accounts without disclosure of probable cause to the affected parties and without affording them an opportunity to respond falls short of the constitutional standard of fair administrative action.
The Petitioners have also complained of the violation of their right to privacy by the Respondents. Article 31 protects the right not to have one’s person, home or property searched or information relating to one’s private affairs unnecessarily required or revealed.
Accessing personal bank statements and M-Pesa records exposes informational privacy. Such intrusion must be justified, lawful and proportionate.
In the absence of demonstrated probable cause and procedural safeguards, I hereby find that the impugned actions violated the Petitioners’ right to privacy contrary to article 31.
Article 244 mandates the National Police Service to comply with constitutional standards of human rights and fundamental freedoms.
Where investigative powers are deployed to settle civil disputes or exert pressure in parallel proceedings, such conduct undermines public confidence in law enforcement and offends Article 244.
The court of appeal in Commissioner of Police & Director of Criminal Investigation Department & another (supra) status thus;
“…The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions(the powers to investigate) in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain above of power that may lead to harassment or persecution. See Githunguri V. Republic [1985] LLR 3090.”
The Supreme Court in the case of Jirongo v Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) while agreeing with the findings of the Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & another (supra), had the following to say about the use of criminal justice machinery in the prosecution of a civil case;
“We respectfully agree and adopt this position in this case but must add that where it is obvious to a court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book.”
Guided by the above precedents and analysis, this Court therefore finds that the 1st and 2nd Respondents acted in a manner inconsistent with Article 244 of the Constitution.
Issue 4 - Whether the Petitioners Are Entitled to the Reliefs Sought
Having found that the impugned proceedings constitute an abuse of court process and violated constitutional rights, an order of certiorari is merited to quash the orders issued on 15th October 2024 in MCCR/MISC E724/24.
An order of prohibition is also warranted to restrain further criminal proceedings founded on the same facts, unless commenced in strict compliance with the Constitution and the law.
The principles governing constitutional damages were articulated by the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General civil appeal No. 98 of 2014 {2016} eKLR, where the Court held that the primary purpose of constitutional damages is vindication of rights and deterrence of future violations.
The freezing of bank accounts, interference with business operations, and mental distress suffered by the Petitioners warrant compensation.
In the circumstances, I award:
a) General damages of Kenya Shillings four hundred thousand (KES 400,000.00) to each petitioner for violation of their rights and fundamental freedoms under Articles 31, 47 and 50.
Disposition
Accordingly, this Court makes the following orders:
a) A declaration is hereby issued that the Respondents violated the Petitioners’ rights under Articles 31, 47, 50 and 244 of the Constitution.
b) An order of certiorari is hereby issued quashing the orders dated 15th October 2024 in MCCR/MISC E724/24 DCI RCIO Rift Valley vs Equity Bank and Safaricom (K) Ltd.
c) An order of prohibition is hereby issued prohibiting the prosecution or continuation of criminal proceedings founded on the same facts, unless conducted in strict compliance with the Constitution.
d) General damages of Kenya Shillings four hundred thousand (KES 400,000.00) each to the Petitioners for violation of their rights and fundamental freedoms Articles 31, 47 and 50.
The brief facts of the case can be summarized as follows: The Petitioners are embroiled in various civil disputes relating to Mbirikani Group Ranch Cooperative Society Limited. On 15th October, 2024, the 1st Respondent, through CI Margaret Awino Ong'ale, filed a miscellaneous criminal application (MCCR/MISC E724/24) in the Chief Magistrate's Court at Nakuru seeking ex parte orders to access and freeze the Petitioners' bank account statements, the bank account statements of Mbirikani Group Ranch, and the Petitioners' M-Pesa records. The said orders were granted ex-parte by the ruling of the subordinate court dated 15th October 2024. The petitioners then moved to this court vide this constitutional petition dated 23rd October 2024 seeking the orders that:
a. A declaration that the Respondents have violated Articles 31, 47, 50 and 244 of the Constitution of Kenya, 2010.
b. A permanent order can be issued quashing the orders dated 15th October 2024 in the miscellaneous criminal case MCCR/MISC E724/24 DCI RCIO RIFT VALLEY VS EQUITY BANK AND SAFARICOM (K) LTD.
c. An Order of prohibition stopping the prosecution of the Criminal Case no. MCCR/MISC E724/24 DCI RCIO RIFT VALLEY VS EQUITY BANK AND SAFARICOM (K) LTD.
d. A permanent injunction do issue Restraining the Respondents from arresting, intimidating, harassing, charging afresh and/or interfering with the freedom or liberties of the Petitioners in any manner on account of facts and/or issues arising from/relating to civil proceedings in MCCOMMSU E005 OF 2024, MCELC/E118 OF 2024 and the criminal proceedings in MCCR/MISC E724/24 DCI RCIO RIFT VALLEY VS EQUITY BANK AND SAFARICOM (K) LTD.
e. General damages for violation of Petitioner’s rights
f. Exemplary damages for violation of Petitioner’s rights
g. Costs of the application and Petition together with interests.
h. Any other orders the court may deem fit and just to grant.
The Respondents have not made any appearance or filed any Replying Affidavits or submissions in opposition to the Petition. While leave was granted for Mbirikani Group Ranch Cooperative Society Limited to formally apply to be joined in the suit as a respondent, the application for joinder was not made and hence the Petition proceeded undefended.
The Petition
The Petitioners allege that on the 15th of October 2024, the 1st Respondent, through CI Margaret Awino Ong’ale (Officer No. 237690), maliciously filed miscellaneous application MCCR/MISC E724/24 in the Chief Magistrate's Court at Nakuru seeking orders inter alia to access the bank account statements of the Petitioners and those of Mbirikani Group Ranch, to freeze the Petitioners' bank accounts, and to access their M-Pesa records.
It is alleged that the said orders were obtained ex parte, without the Petitioners being joined as parties to the miscellaneous case, whether as respondents or interested parties, and without affording them any opportunity to be heard before the subordinate court, despite the proceedings being of a criminal nature.
The Petitioners allege that they were not joined as parties to the said miscellaneous case as either respondents or even interested parties. They were thus were not afforded any opportunity to be heard despite the proceedings being of a criminal nature.
The Petitioners contend that the said criminal proceedings were maliciously intended to defeat ongoing civil proceedings before the Magistrate's Court at Kajiado in MCCOMMSU E005 OF 2024 and MCELC/E118 OF 2024, where similar attempts by certain individuals to freeze the bank accounts of Mbirikani Group Ranch and the Petitioners had previously failed.
It is further alleged that having failed to succeed through the available civil justice system, the Petitioners' opponents resorted to weaponising the criminal justice process against them in order to frustrate the said ongoing civil proceedings.
In particular, the Petitioners contend that the actions of the 1st Respondent constitute an abuse of the criminal justice system, citing the following reasons in support:
a. The criminal proceedings were commenced in Nakuru, a jurisdiction with no demonstrated connection to any alleged criminal activity of the Petitioners, who are residents of Kajiado where the said accounts and alleged activities are situated.
b. The Petitioners were not enjoined in the miscellaneous application filed in Nakuru whereas they have had their personal and business bank accounts frozen without being heard.
c. The freezing of the said bank accounts was without any basis or probable cause, as the Petitioners are not facing any criminal proceedings for the offences alleged in the miscellaneous criminal application.
d. There are ongoing civil disputes involving the Petitioners and other parties revolving around the same subject matter of Mbirikani Group Ranch, in which previous attempts to freeze the Petitioners’ accounts were termed an abuse of court process by the Learned Chief Magistrate Hon. Oganyo.
Additionally, the Petitioners allege that they had been receiving threats and intimidation, being told “mambo bado," and that it is suspicious that immediately following the said threats, a criminal miscellaneous file was lodged in Nakuru.
With respect to specific constitutional violations, the Petitioners allege that their right to a fair hearing as protected under Article 50 was infringed by the 1st and 3rd Respondents, who deliberately excluded them from the miscellaneous application, whether as respondents or interested parties, in order to steal a march and obtain orders in their absence.
The Petitioners further allege that their right to fair administrative action under Article 47 was infringed, in that the 1st and 3rd Respondents obtained and issued orders freezing bank accounts and accessing bank statements without probable cause or justification. The investigations are said to have been oppressive, vexatious, unreasonable, and conducted in bad faith, contrary to public interest, as they were aimed at compromising the pending civil proceedings before the Magistrate's Court at Kajiado.
It is also alleged that the Petitioners' right to privacy under Article 31 was infringed, their properties having been searched and seized without any reasonable cause or justification.
The Petitioners further contend that the conduct of the 1st and 2nd Respondents has tainted the National Police Service among the general public, contrary to Article 244 of the Constitution as read together with Chapter 22 Order 3(1) of the NPS Force Standing Orders.
The Petitioners allege that the Respondents' actions have caused them anxiety, emotional distress and mental anguish arising from criminal processes maliciously instituted against them without reasonable cause and with the intention of defeating civil proceedings. Further, the freezing of their bank accounts has adversely affected their businesses and personal activities, rendering them unable to transact or make necessary payments.
Submissions
The Petitioners filed their submissions dated 14th February 2025 wherein they reiterated the background facts pertaining to this dispute. The Petitioners identified the following issues for determination:
a) Whether the constitutional petition herein is competent?
b) Whether the rights of the Petitioners under Articles 10, 31, 47, 50 and 244 of the Constitution were violated by the Respondents?
c) The amount of damages due to the Petitioners.
The Petitioners submit that the constitutional petition herein is competent on the basis that it is predicated on the blatant breach and violation of the Constitution by the Respondents and raises substantial issues on the violation of rights and fundamental freedoms.
In support, the Petitioners rely on the decision of this Court in John Juma & 2 others v Patrick Lihanda & another; Zedekiah Orera & 4 others (Interested Parties) (2018) eKLR, where it was held that only the High Court has jurisdiction to determine issues relating to the breach of fundamental rights.
The Petitioners have precisely laid down the alleged infringements on their constitutional rights citing constitutional, statute and case law.
The Petitioners further rely on the decision of the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR , where it was emphasised that the primary purpose of a constitutional remedy is not compensatory or punitive, but to vindicate the rights violated and to prevent or deter future infringements.
The Respondents have not filed any submissions in opposition to the Petition.
Analysis and determination of the court
Having considered the pleadings and submissions on record, the issues that arise for determination are:
i) Whether this Petition is competent.
ii) Whether the criminal process complained of constitutes an abuse of the court process.
iii) Whether the Petitioners’ rights under Articles 31, 47, 50 and 244 of the Constitution have been violated.
iv) Whether the Petitioners are entitled to the reliefs sought, including damages.
Issue 1 - whether the Petition is competent
Article 165(3)(b) of the Constitution vests this Court with jurisdiction to determine questions whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) emphasized that a constitutional petition must set out with reasonable precision the rights alleged to have been violated and the manner of violation.
In the present Petition, the Petitioners have pleaded with precision the specific constitutional provisions alleged to have been infringed and the factual basis thereof, including the impugned miscellaneous criminal proceedings and the ex parte freezing orders.
This Court is therefore satisfied that the Petition meets the constitutional threshold and is properly placed before it.
Issue 2 - Whether the criminal process complained of constitutes an abuse of the court process.
It is not in dispute that the 1st Respondent filed Miscellaneous Criminal Application No. MCCR/MISC E724/24 in Nakuru seeking orders to access and freeze the Petitioners’ bank accounts and M-Pesa accounts. The Petitioners have produced the said ex parte notice of motion application before this court together with the supporting affidavit of C.I Margaret Awino Ong’ale, a police officer attached at the DCI regional office Nakuru.
The orders were obtained ex-parte. The Petitioners were neither joined nor afforded an opportunity to be heard.
The Petitioners contend that the criminal process was weaponized to defeat ongoing civil proceedings in Kajiado.
The Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013] KECA 182 (KLR) held that whereas the police have a constitutional mandate to investigate crime, that mandate must be exercised within the confines of the law and the Constitution, and courts will intervene where the criminal justice process is used oppressively or for ulterior motives.
In reaching its determination in the case above, the Court of Appeal considered that the matter before it had been subject to various litigations before courts of competent jurisdiction; most of which, the Petitioner had lost. In the matter before this court, the Petitioners have submitted that there are ongoing civil disputes between the Petitioners and the other parties concerning the freezing of the Petitioners’ bank accounts which attempts have failed and have subsequently been termed as an abuse of court process by the learned chief magistrate Hon. Oganyo.
I have had the opportunity to look at the two orders of the learned Magistrate Hon. Oganyo; the orders dated 19th August 2024 freezing the Petitioners’ bank accounts and the orders of 26th August 2024 setting aside the said orders of 19th August for the reason that the Applicant therein, Mbirikani Group Ranch Cooperative Society Limited, was in abuse and misuse of the court process.
Mbirikani Group Ranch Cooperative Society would have been in the best position to explain to this court the circumstances which led to the setting aside of the court orders of the subordinate court. However, while it had the opportunity to formally apply to be enjoined in this suit as respondents, it failed to make a formal application within the timelines set by this court.
This not being an appeal, I cannot interrogate the discretion of the learned magistrate to set aside the freezing orders.
Having said so, the material placed before this Court demonstrates:
1 That there exist parallel civil proceedings in Kajiado touching on the same subject matter;
2 That attempts to freeze accounts through civil process had previously failed;
3 That the impugned criminal miscellaneous application was instituted in Nakuru without a demonstrated nexus to the alleged offences; and
4 That the Petitioners were excluded from proceedings directly affecting their proprietary and privacy interests.
In the absence of any rebuttal from the Respondents, and guided by the above appellate authorities, this Court finds that the impugned criminal proceedings were instituted in a manner that amounts to an abuse of the criminal justice process.
Issue 3- whether the Petitioners’ rights were violated
Article 50 of the Constitution guarantees every person the right to a fair and public hearing before an independent and impartial tribunal or body.
Although ex-parte orders may, in appropriate circumstances, be issued in investigative matters, such orders must be accompanied by procedural safeguards and prompt opportunity to be heard.
The Court of Appeal in Judicial Service Comission v Mutava & another [2015] KECA 741 (KLR) underscored that the right to fair hearing is a non-derogable cornerstone of justice. The court, citing with approval the landmark case of Ridge v Baldwin stated thus;
“The right to fair hearing under the common law is a general right, albeit, a universal one. It refers to the three features of natural justice identified by Lord Hodson in Ridge v Baldwin (supra)”
In the instant case, the Petitioners were neither joined nor accorded any opportunity to challenge the freezing orders, yet the orders directly curtailed their proprietary rights and commercial activities. In the circumstances, I find that the Petitioners’ rights as protected under Article 50 were infringed.
The Petitioners have alleged that their rights have been infringed contrary to article 47 of the Constitution. Article 47 guarantees the right to administrative action that is lawful, reasonable and procedurally fair. The Petitioners have submitted that the 1st and 2nd Respondents’ failure to summon the Petitioners even after obtaining the orders denied them an opportunity to be heard. The Petitioners have further submitted that the Respondents lacked lawful justification to freeze the Petitioners’ accounts, and the timing and nature of the orders demonstrate a deliberate attempt to defeat the two civil cases before the magistrates court in Kajiado.
I have held above that the Respondents actions amounted to abuse of the court process. I am guided by the Court of Appeal decision in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR) which affirmed that administrative actions must meet the constitutional threshold of reasonableness, legality and procedural propriety.
I hereby find that the ex-parte freezing of accounts without disclosure of probable cause to the affected parties and without affording them an opportunity to respond falls short of the constitutional standard of fair administrative action.
The Petitioners have also complained of the violation of their right to privacy by the Respondents. Article 31 protects the right not to have one’s person, home or property searched or information relating to one’s private affairs unnecessarily required or revealed.
Accessing personal bank statements and M-Pesa records exposes informational privacy. Such intrusion must be justified, lawful and proportionate.
In the absence of demonstrated probable cause and procedural safeguards, I hereby find that the impugned actions violated the Petitioners’ right to privacy contrary to article 31.
Article 244 mandates the National Police Service to comply with constitutional standards of human rights and fundamental freedoms.
Where investigative powers are deployed to settle civil disputes or exert pressure in parallel proceedings, such conduct undermines public confidence in law enforcement and offends Article 244.
The court of appeal in Commissioner of Police & Director of Criminal Investigation Department & another (supra) status thus;
“…The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions(the powers to investigate) in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain above of power that may lead to harassment or persecution. See Githunguri V. Republic [1985] LLR 3090.”
The Supreme Court in the case of Jirongo v Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) while agreeing with the findings of the Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & another (supra), had the following to say about the use of criminal justice machinery in the prosecution of a civil case;
“We respectfully agree and adopt this position in this case but must add that where it is obvious to a court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book.”
Guided by the above precedents and analysis, this Court therefore finds that the 1st and 2nd Respondents acted in a manner inconsistent with Article 244 of the Constitution.
Issue 4 - Whether the Petitioners Are Entitled to the Reliefs Sought
Having found that the impugned proceedings constitute an abuse of court process and violated constitutional rights, an order of certiorari is merited to quash the orders issued on 15th October 2024 in MCCR/MISC E724/24.
An order of prohibition is also warranted to restrain further criminal proceedings founded on the same facts, unless commenced in strict compliance with the Constitution and the law.
The principles governing constitutional damages were articulated by the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General civil appeal No. 98 of 2014 {2016} eKLR, where the Court held that the primary purpose of constitutional damages is vindication of rights and deterrence of future violations.
The freezing of bank accounts, interference with business operations, and mental distress suffered by the Petitioners warrant compensation.
In the circumstances, I award:
a) General damages of Kenya Shillings four hundred thousand (KES 400,000.00) to each petitioner for violation of their rights and fundamental freedoms under Articles 31, 47 and 50.
Disposition
Accordingly, this Court makes the following orders:
a) A declaration is hereby issued that the Respondents violated the Petitioners’ rights under Articles 31, 47, 50 and 244 of the Constitution.
b) An order of certiorari is hereby issued quashing the orders dated 15th October 2024 in MCCR/MISC E724/24 DCI RCIO Rift Valley vs Equity Bank and Safaricom (K) Ltd.
c) An order of prohibition is hereby issued prohibiting the prosecution or continuation of criminal proceedings founded on the same facts, unless conducted in strict compliance with the Constitution.
d) General damages of Kenya Shillings four hundred thousand (KES 400,000.00) each to the Petitioners for violation of their rights and fundamental freedoms Articles 31, 47 and 50.