FAUSTINA NGINA MASUU VS The Republic AND ELIZABETH MUKULU MULANDI

RULING

1. Michael John Kathuku Mulandi (the deceased) died on the 18^th March 2013.
2. Faustina Ngina Masuu (Faustina) the applicant filed Makueni High Court Succession Cause no. 1 of 2019 with respect to the estate of the deceased stating that she was the widow of the deceased, to the exclusion of the interested parties who claim to be the bona fide beneficiaries of the estate, with Elizabeth Mukulu Mulandi (Elizabeth) stating that she is the actual rightful widow of the deceased.
3. In order to file the cause Faustina obtained a certificate of death with respect to the deceased.
4. This certificate of death is the subject matter of the case Makindu MCCR E419 of 2021 R Vs Faustina Ngina Masuu where she is charged with Giving False Information to person employed in the public Service c/s 129(A) of the Penal Code. The case for the prosecution as per the particulars there is that in order to obtain the certificate of death she lied to the officer at the Sub County Civil Registry that she was the sole wife and next of kin of the deceased.
5. On 1^st December 2022 Faustina filed a Notice of Motion under (Article 22, 23 (1) (2). (3), (b) &9c) of the Constitution of Kenya 2010, Article 165 (6) (&7) of the Constitution of Kenya 2010 Rule 4,13 and 23 of the Constitution of Kenya (Protection of Rights &Fundamental Freedoms) Practice and Procedure Rules, 2013, s. 8 & 9 of the Law Reform Act, Cap 26 of the laws of Kenya and Order 53 5ules 1 & 2 of the CPR, 2010) seeking orders inter alia That there be a stay of proceedings in Makindu PMC Criminal case no.  E419 of 2012 Republic v Faustina Ngina Musau pending the hearing and determination of Makueni HC Succession Cause no. 1 of 2019, and that the 2^nd Respondent be directed to recall the prosecution file in Makindu PMC Criminal case no.  E419 of 2012 Republic v Faustina Ngina Musau for review and verification of the merits of the case
6. The grounds for the application are on its face and the affidavit she swore in its support thereof. Key among the grounds are that the interested parties have filed objection proceedings in the succession cause and the criminal case is in the scheme of things to throw her out of the cause. It is also argued that the case is an affront to the orders of this court in a ruling delivered on the 24^th May 2022 the Succession Cause where this court restrained the interested parties from harassing the applicant pending the hearing and determination of the cause; in addition that the constitutional rights of the applicant , in particular the right to fair trail and fair administrative action continue to be infringed by the existence of those criminal proceedings in the subordinate court yet this court, a superior court, is seized of the same issues, and that those proceedings continue to subject the applicant to suffering , unnecessary expenses, embarrassment , harassment and public ridicule.  In the hand of the 1^st respondent and the parties.
7. Vide a consent between counsel for the applicant Joseph M Mutava (Mbalu & Associates, Advocates) and Ms. Nyakibia M Mburu Prosecuting Counsel for DPP, a stay order was granted in terms of prayer (2) staying the proceedings in the Criminal Case pending the hearing and determination of this application inter partes. In the same consent parties took directions on the manner in which they would proceed with the hearing of the application.
8. On 31^st January 2023, this court (Hon Dulu J) heard the parties and reserved the ruling for 23^rd February 2023 but on 20^th February 2023 the ruling was arrested by the application dated 7^th February 2023. This was brought through Naikuni, Ngaah & Miencha, Advocates under certificate of urgency by the interested parties pursuant to Articles 10, 12, (1) 19, 25(c) 47, 48, 50, & 159 of the Constitution
9. The interested parties were seeking orders inter alia, to have the consent set aside or varied, and for the interested parties to be granted leave to participate in the hearing and determination of the application seeking stay of the proceedings in Makindu PM Criminal Case no E419 of 2022 R vs Faustina Ngina Masuu.
10. The grounds for the application as set out are that the applicant joined the interested parties in the matter but cleverly failed to serve them with the application so as to conceal material information from the court about the case. That the interested parties’ right to fair administrative action, fair hearing and access to justice were contravened by the applicant’s failure to serve them as they are the complainants in the criminal case and the objectors in the Succession Cause; that the consent to stay the proceedings in the criminal case was unconstitutional, illegal and irregular as the proceedings in the criminal matter are before a competent court.
11. The application was supported by the affidavit of Elizabeth Mukulu Mulandi sworn on 6^th February 2023.
12. When the application came for directions the previous application was put on hold to pave way for this new application.
13. On the 9th March 2023, the applicant through her counsel filed a Notice of preliminary objection dated 6^th March 2023  on a point of law  to the interested parties’  Notice of Motion The grounds for the P.O were that the interested parties’ application is an abuse of the court process, misconceived and bad in law; the interested parties lacked the constitutional or any other tenable legal mandate over the DPP regarding the conduct of criminal proceedings against any  person in Kenya; and that this court has the jurisdiction to strike out and dismiss with costs the interested parties’ application for being unconstitutional, in limine  in so far as it seeks to set aside the consent between the DPP and the accused person in Makindu MCCCR E419 of 2022 R Vs Faustina Ngina Masuu.
14. The 1^st Interested party swore a replying affidavit opposing Faustina’s application. She set out in detail the grounds upon which the applicant was being prosecuted in the criminal case. In brief summary that; the deceased died while undergoing treatment in Kenyatta National Hospital while undergoing treatment for a specified ailment as supported by the documents she attached. That as the widow she was issued with the burial permit and later obtained a certificate of death whose particulars she set out.  That she was surprised to learn that the applicant had obtained another certificate of death and filed Makueni HC Succession Cause no 1 of 2019 with respect to the deceased’s estate and proceeded to report the matter to the 1^st respondent who conducted investigations, was satisfied that there was evidence of a crime and placed the matter before the 2^nd respondent who arraigned the applicant in the case at Makindu Magistrate’s court. That if the applicant was acting in good faith she would have sought stay of the Succession Cause pending the hearing and determination of the criminal proceedings as they are at the centre of the cause and not vice versa.
15. The main complaint is that when the application seeking the stay of the proceedings in the criminal case was heard, the interested parties and especially Elizabeth who is the complainant was not heard yet her advocate was in court the same day. That by not involving her the DPP violated her rights as the victim, to be heard, and that the court misdirected itself on the issue, as she had not been served with the application and had not been given the opportunity to respond. That even her own counsel had not been served with the application, violating her right to be heard. She deponed further that she has legal counsel that he applicant and the DPP cannot consent to stay proceedings before a competent court.
16. In addition, it is argued that there is no bar to there being parallel proceedings as provided for under s. 193 of the Criminal Procedure Code, that Ruling delivered by Hon. Dulu J in the succession matter did not bar any criminal prosecution against the applicant. That the applicant would not suffer any prejudice.
17. On the same date Faustina filed a reply to the application filed by the 1^st interested party on 7^th February 2023. She reiterated that the charge was harassment , intimidation against her; that the interested parties’ counsel was not denied audience, that the interested parties cannot seek the setting aside of the consent between her and the DPP, that the application is an affront to the constitutional powers of the DPP, that the interested parties could be heard subject to the powers of the DPP; that she needed the stay to enable her prosecution the succession cause, and in the interest of justice and equity.
18. Parties took directions to file submission but none filed any by the time a date for ruling was given.
19. I have carefully considered the applications before me, the supporting affidavits and he annexures and the P.O. I have also considered the record and the proceedings before Hon Dulu J.
20. The issues for determination are whether the P.O against the interested parties’ application has any merit, whether the application for stay has merit, whether the interested party has a right to participate in that application and ultimately, whether the interested party’s application flies in the face of the DPP’s constitutional power.
21. I must warn myself of the risk in the determination of this matter:  it creates a situation where this court may have to render itself on matters that are before the trial court in the criminal court. So the court must exercise great caution so that Faustina does not turn around and say that this court pronounced itself in a manner that was prejudicial to the trial.
22. What emerges is that Faustina did obtain a certificate of death, a letter from the chief and filed a succession cause where she indicated that she was the sole wife of the deceased. The certificate of death she obtained bears different details from the one obtained by Elizabeth. The DCI conducted investigations and formed the view that there was sufficient evidence to charge her, and the DPP approved the charge and arraigned her before the magistrate court in Makindu.
23. It is also emerging that in that cause she filed an application for injunction against the interested parties restraining them from interfering with her occupation of one specific asset of the estate of the deceased.
24. The consent between Faustina and the Prosecuting Counsel was for stay of those proceedings pending the hearing and determination of her application for stay, which is the application proceeding before me.
25. The record will show that the respondents, despite being named in Faustina’s application they were never served. They were not involved in the determination of the application yet they are the complainants in the criminal matter and the objectors in the Succession cause proceedings. I need not belabor the provisions of Article 50 and the Victims Protection Act. The DPP cannot be directed in the manner he/she exercises the powers bestowed by Article 157 of our Katiba but that power is limited. It says

(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;

(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and

(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

(7) If the discontinuance of any proceedings under clause (6)(c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.

(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.

(9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.

(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. (emphasis added)

26. Let us begin with whether the interested parties’ application and the P.O have merit. Elizabeth is the complainant in the criminal matter. She cannot be wished away by the DPP or Faustina in a matter relating to her complaint. As the victim of the alleged criminal actions by Faustina she has rights.  The administration of justice requires the participation of the victim of a crime see s. 4 of the Victim Protection Act which states

4.General Principles

(1) A court, administrative body or a person performing any function under this Act, shall respect and uphold the values and principles in the Constitution, and in particular, be guided be the provisions of Article 10, 27(4), 47, 48 and 49 of the Constitution.

(2) Subject to subsection (1), a court, administrative authority or person performing functions under this Act shall ensure that—

(a)the court, administrative body or person does not discriminate against any victim on the basis of race, colour, gender, age, language, creed, religion, nationality, political or other opinion, cultural belief or practices, property, birth or family status, ethnic or social origin, disability, or any other grounds;

(b)every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken;

Evidently the Elizabeth has the right to be heard before any decision that affects her case before the Magistrate’s case is made. This is the import of the Katiba when it states that DPP in exercising the powers conferred by Constitution under Article 157 shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process

27.Elizabeth’s request to be heard in the application brought by Faustina cannot be deemed in any way at all to be an attempt to interfere with the powers of the DPP. Under Article 50 of the Constitution she has as much a stake as Faustina to be heard. Hence it is my view that the request by the interested parties to be heard is within the law.

28. The P.O appears to suggest that the court had already allowed the application through consent of parties. However, that stay was temporary to allow the hearing of this application and seeking to set it aside cannot be said to fly in the face of the powers of the DPP. The applicant is the one who did not serve Elizabeth, and the DPP did not recall that there was a victim who needed to be consulted. The P. O has no merit.

29. Is the application for stay of the proceedings in Makindu MCCR E419 of 2021 tenable?

30. To begin with, I have read Hon Justice Dulu’s ruling in the succession cause and found that it had nothing to do with criminal proceedings. It cannot therefor be said that the bringing of the charges against Faustina is in violation of the orders of this court.

31. The DPP is not a party to the Succession Cause. From what has been placed before me, the DPP was persuaded by other facts other than just the succession cause that there was reasonable ground to exercise his decision to charge. The veracity of those facts cannot be tested by this this court. They can only be tested in the criminal proceedings where both Faustina and the DPP together with the victim will have the opportunity to present their evidence.  There is nothing significant placed before me to require the DPP to recall their file in the criminal matter. What emerges is that the criminal court needs to hear and determine the issues before it.

32. I find that it would therefore not be right for anyone to argue that the DPP was influenced to charge Faustina as part of the scheme to throw her out of the estate of the deceased. In any event, S. 193A of the Criminal Procedure Code speaks for itself

Concurrent criminal and civil proceedings

Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings

33. It is only proper that the issue of the alleged forgery of documents be dealt with and be determined by the magistrate’s court.

34. Article 50(1) on the equality before the law, both the complainant and the accused have an equal right to be heard. And to have their matter determined. Faustina’s rights as an accused person are protected by Constitution and in 50(2) in particular that she is innocent until proven guilty. I am not persuaded that the continuing of the prosecution negates any rights she may have under the Law of Succession Act in the estate of the deceased. The issues there will be determined in accordance with that law which is self-sufficient in determining the matters there under.

35. In the circumstances, there is nothing before me to support the claim that this court’s injunction against the harassment of Faustina by the interested parties included staying the criminal proceedings, neither is there anything to show that this is merely harassment. The DPP should be allowed to proceed with their case to wherever they want to take it.

36. Ultimately, the application to stay the proceedings in Makindu MCCR E019 of 2021 is without merit and is dismissed with costs to the interested parties. 

37. The Deputy Registrar to Communicate this order to the Magistrate in Charge Makindu Law Courts for necessary action. 

Dated, signed and delivered on 2^nd May 2024