Daniele Lococo AND Masimo Nativi AND 1 Others VS Director of Criminal Investigation AND David K Siele AND 11 Others

1. The Petitioner filed a Petition dated 31.5.24 against the Respondents, seeking a raft of reliefs, in respect of criminal charges against the 1^st and 2^nd Petitioners relating to sale of villas in Rafiki Village on Plot No. Kilifi/Jimba/1544. Contemporaneously with the Petition, the Petitioners filed an Application of even date seeking the following orders:
2. Spent.
3. Pending the hearing and determination of this application the Court be pleased to prohibit the 1^st Respondent from continued prosecution of the 1^st and 2^nd Petitioners in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.
4. Pending the hearing and determination of this Petition the Court be pleased to prohibit the 1^st Respondent from continued prosecution of the 1^st and 2^nd Petitioners in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.
5. Pending the hearing and determination of this application the Court be pleased to prohibit the 10^th Respondent and any other magistrate from hearing any criminal proceedings against the Petitioners arising from any complaint by the 5^th, 6^th, 7^th, 8^th and 9^th Respondents on the sale of any Villa at Rafiki Village, Watamu.
6. Pending the hearing and determination of this Petition the Court be pleased to prohibit the 10^th Respondent and any other magistrate from hearing any criminal proceedings against the Petitioners arising from any complaint by the 5^th, 6^th, 7^th, 8^th and 9^th Respondents on the sale of any Villa at Rafiki Village, Watamu.
7. Pending the hearing and determination of this application the Court be pleased to prohibit the 2^nd, 3^rd and 4^th Respondents and their officers from any further criminal investigations of the Petitioners on any matter arising from the sale and occupation of any Villa at Rafiki Village, Watamu.
8. Pending the hearing and determination of this Petition the Court be pleased to prohibit the 2^nd, 3^rd, and 4^th Respondents and their officers from any further criminal investigations of the Petitioners on any matter arising from the sale and occupation of < >></></><><><>< >>> >>, >>, 3^rd and 4^th Respondents in the manner in which they should exercise their statutory and constitutional functions and from interfering with the independence of state organs in the Republic of Kenya.
9. Pending the hearing and determination of this application the Court be pleased to restrain and prohibit the 1^st, 2^nd, 3^rd, and 4^th Respondents from taking or complying with any orders and directions from the 5^th Respondent with regard to the discharge of their constitutional and statutory functions.
10. Pending the hearing and determination of this Petition the Court be pleased to restrain and prohibit the 1^st, 2^nd, 3^rd and 4^th Respondents from taking or complying with any orders and directions from the 5^th Respondent with regard to the discharge of their constitutional and statutory functions.
11. Pending the hearing and determination of this application and for purposes of facilitating the fair hearing and determination of this Petition, the Court be pleased to direct the 1^st, 2^nd, 3^rd and 4^th Respondents to explain on oath why they cannot arrest, charge and prosecute the 5^th Respondent for practising law in Kenya without the necessary qualification under the provisions of the Advocates Act in spite of the request by the Law Society of Kenya to do so.
12. The Court be pleased to direct that the Petition be heard and determined on priority basis.
13. The costs of this application be provided for.
14. The grounds upon which the Application is premised are contained in the Application and in the supporting affidavit sworn by the 1^st Petitioner on even date. The Petitioners’ case is that the 1-4^th Respondents conspired to arrest, charge and prosecute the Petitioners in Kilifi Senior Principal Magistrate's Criminal Case No. 506 of 2023 and to obtain unlawful and fraudulent warrants of arrest. Upon learning of the true facts, the 1^st Respondent withdrew that case under Section 87(a) of the Criminal Procedure Code. Thereafter, the 1^st Respondent purported to review the decision to withdraw and directed reinstatement of criminal proceedings. The 1^st and 2^nd Petitioners were subsequently arrested, >>>>>>>>>>><>>>- >> >>>><>>>>>>>, >>>>>>- >>> </>>>>> - >>><>>> >>>>>>>- >>>>- >> > >><>>>>>>>- >>>> >> > >> >> >>>>>>>>>>>> >>>>>, >>>> ></><>>> -<> </>>>>>><>>> >> >> >> >> >> – >> >> >> >> >> >> >> – >> ><>>> >> ><>>> >> ><>><>>> >> >> - >> >> ><>><>>>- >> >>> >>- >> >>- >> >> >>- >> >> ><>>> >> >>- >>><>>> – >> >> >> >> ><>>> - >> >> ><>>> - >> >> ><>>> >> ><>>> - >> ><>>> >> – >> >> >>, >> >>><>>> >> ><>< id>Article 23 of the Constitution has conferred upon this Court, the authority to uphold and enforce the Bill of Rights and grant appropriate relief as follows:
15. The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
16. …
17. In any proceedings brought under Article 22, a court may grant appropriate relief, including––

(a)  a declaration of rights;

(b)  an injunction;

(c)  a conservatory order;

(d)  a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e)  an order for compensation; and

(f)  an order of judicial review.

1. A conservatory order is one of the appropriate reliefs available to a party who alleges and proves denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The purpose of conservatory orders is to preserve the substratum of a petition before court, pending the hearing and determination of the same. Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides that despite any provision to the contrary, a Judge before whom a petition is presented shall hear and determine an application for conservatory or interim orders.
2. The threshold for the grant of conservatory orders was established by the Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows:

[86]  “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.

[87]  The issue before us, therefore, is whether this is a proper case where the interlocutory reliefs sought by the applicant should be granted. The principles to be considered before a Court of law may grant stay of execution have been crystallized through a long line of judicial authorities at the High Court and Court of Appeal. Before a Court grants an order for stay of execution, the appellant, or intending appellant, must satisfy the Court that:

(i) the appeal or intended appeal is arguable and not frivolous; and that

(ii) unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.

[88]  These principles continue to hold sway not only at the lower Courts, but in this Court as well. However, in the context of the Constitution of Kenya, 2010, a third condition may be added, namely:

(iii)  that it is in the public interest that the order of stay be granted.

[89]  This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution. 

1. A party seeking conservatory orders must demonstrate to the Court that first, the petition is arguable and not frivolous. Second that unless the orders sought are granted, the suit, were it to succeed, would be rendered nugatory. Though linked to injunctions in private party matters, these 2 limbs are also applicable in public law. The Supreme Court added the third test in the context of the Constitution, namely, that it is in the public interest that the orders sought are granted.
2. The prayers that the Petitioners seek herein are that pending the hearing and determination of the Petition, the Court suspends the proceedings in the criminal case against them. They further seek that the 1-4^th Respondents be prohibited from further investigating the Petitioners on issues arising from any complaint by the 5^th - 9^th Respondents on the sale of any villa at Rafiki Village, Watamu.
3. It is well settled that constitutional and statutory bodies such as the 1^st -3^rd Respondents herein, must be given the space to discharge their mandate and to exercise their discretion in doing so. A court will only intervene where it is demonstrated that such institution or organ in question has acted ultra vires or in breach of the Constitution or the law. This was the holding of Ngugi, J. (as she then was) in the case of Kipoki Oreu Tasur v Inspector General Of Police & 5 others [2014] eKLR. The learned Judge stated:

The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated.

1. Additionally, stay of proceedings is a serious judicial action that inevitably interferes with the right of a litigant to conduct his litigation. It undermines the right of access to justice, right to be heard without delay and overall, right to fair trial. The discretion to stay proceedings should therefore be exercised cautiously and only in cases where the Court is satisfied that proceedings ought not to be allowed to continue.
2. In the case of Katangi Developers Limited v Prafula Enterprises Limited & another [2018] eKLR, the Court of Appeal stated as follows:

What is in issue before us is simply an application for stay of proceedings under Rule 5(2)(b) of the Court Rules. As noted in Halsbury’s Laws of England 4^th edition volume 37 at paragraph 330:

“the stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and, therefore, the Courts general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue”.

1. The Petitioners challenge the constitutionality and legality of actions of the Respondents and more specifically, the propriety of the criminal proceedings against them. They contend that the purpose of the charges against them is to compel them to settle civil disputes with the 7^th and 9^th Respondents. They seek that the charges be halted. At this preliminary stage, the Court may only examine and evaluate the material placed before it, to determine whether the Petitioners have made out a prima facie case to warrant grant of conservatory orders. 
2. In the case of Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR, the Court of Appeal defined a prima facie case to mean:

4.  A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

1. In the case of Free Kenya Initiative & 6 others v Independent Electoral & Boundaries Commission & 4 others; Kenya National Commission on Human Rights (Interested party) [2022] eKLR, Mrima, J. stated:

32.   In sum, therefore, in determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22(1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or the when the Constitution has been contravened, or is threatened with contravention.

1. I have considered all the issues raised by the Petitioners concerning the institution of the criminal proceedings against them. I am keenly aware I cannot at this stage delve into the merits of the case which must await the full hearing of the Petition. Suffice it to say however, the petition raises critical issues, namely, whether the issues arising from any complaint by the 5^th - 9^th Respondents on the sale of any villa at Rafiki Village, Watamu should be the subject of criminal investigations and charges or civil proceedings, is critical; whether the decision to charge the Petitioners in Kilifi and not Malindi over an offence allegedly committed in Watamu is fair and whether the continued investigations and prosecution of the Petitioners will result in violation of their constitutional rights. There is also the question as to whether the 1^st -4^th Respondents exercised their mandate in line with the law.  These are matters that can only be dealt with at the main hearing of the Petition. In light of the foregoing, I have no difficulty in finding that the Petitioners have established a prima facie case with a probability of success.  

1. Further, since the main Petition is pending, I must caution myself not to make definite and final findings on the issues raised, before parties have been heard substantively, which would prejudice the main suit. In this regard, I follow the reasoning of Ibrahim, J. (as he then was) in the case of Muslims for Human Rights (Muhuri) & 2 others v Attorney General & 2 Others [2011 eKLR where he stated:

The court must be careful for it not to reach final conclusions and to make final findings. By the time the application is decided, all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis- a-vis the case of either parties. This principle is similar to that in temporary at or interlocutory injunctions in civil matters.

This is a cardinal principle and happily makes my function and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.

1. It is clear from the cited authority that at this stage, the court must resist the temptation to make any conclusive findings of fact or law on the matter before it. 
2. In Prasul Jayantilal Shah v Republic; Joseph Karuoro Claudio (Interested Party) [2022] eKLR, Odunga, J. (as he then was) considered a similar case and in granting conservatory orders stated:

57.  In the premises, I find that it is only just to temporarily hold further proceedings in the criminal case in abeyance so as to avoid a situation where the Applicant might lose his liberty when the subject matter’s status is yet to be determined and this Court is yet to determine the proprietary of the criminal proceedings.

1. I concur with the learned Judge. The propriety of the criminal proceedings in question is yet to be determined. Further given the nature of the matter herein, I find that if the substratum of the Petition is not preserved by having in place conservatory orders, there is imminent danger of rendering the Petition nugatory and a mere academic exercise, as the investigations and criminal case will have proceeded. Indeed, a determination in favour of the Petitioners will be of no use to them if in the meantime, they are subjected to the investigations and criminal proceedings under challenge. It is therefore necessary that the said proceedings be stayed pending the hearing and determination of the Petition.  
2. Accordingly, I do allow the Application dated 31.5.24 on the following terms:
3. Pending the hearing and determination of this Petition the Court hereby prohibits the 1^st Respondent from continued prosecution of the 1^st and 2^nd Petitioners in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.
4. Pending the hearing and determination of this Petition the Court hereby prohibit the 2^nd, 3^rd, and 4^th Respondents and their officers from any further criminal investigations of the Petitioners on any matter arising from the sale and occupation of ><>></><><>>> ></><><> </></><><> </></>