1. The Application that is before court for determination is the Notice of Motion dated 7th September 2023 wherein the applicants seek the following judicial review reliefs;
1) An Order of Certiorari to bring into this Honourable Court and quash the decision of the 1" Respondent or officers subordinate to him, and or the National Police Service, to charge the applicant with the offences of Conspiracy to defraud contrary to section 37 of the penal code, Making a document without authority contrary to section 357(a) of the penal code Making document without authority contrary to section 357(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary to section 345 as read with 349 of the penal ,Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery of stamp contrary to section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary of section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery of rubber stamp contrary to section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery of stamps contrary to section 354(a) of the penal code, Forgery of stamps contrary to section 352(a) of the penal code, Forgery contrary to section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal Forgery contrary to section 345 as read with 349 of the penal, Forgery contrary to section 345 as read with 349 of the penal, Forgery of stamps contrary of section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal, Forgery of stamps contrary of section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal, Forgery contrary to section 345 as read with 349 of the penal, Forgery of stamps contrary of section 352(a) of the penal code, Obtaining registration by false pretenses contrary to section 320 of the penal code, Uttering a false document contrary to section 353 of the penal code in Milimani Chief Magistrates Criminal Case No. E476 of 2023, Republic versus Francis Nyaga Njeru.
2) Prohibition directed at the 1 Respondent or through officers' subordinate to him, prohibiting him from carrying on with the further prosecution of the Applicant in Milimani Chief Magistrate's Criminal Case Number E476 of 2023 or any other proceedings that may be instituted on the same basis and touching on the subject matter of the impugned investigations.
3) Prohibition directed at the 3 Respondent or through officers' subordinate to him prohibiting him from carrying on with any further investigations touching on the applicant FRANCIS NYAGA NJERU.
4) Prohibition to prohibit the 2"' Respondent from taking evidence, conducting proceedings or carrying on with the trial of the Applicant in Milimani Chief Magistrate's Criminal Case No. E476 Of 2023 REPUBLIC VS FRANCISNYAGANJERUrnyothercriminalproceedingsthatmaybeinstitutedonthesamebasisand touching on the 1 A pplicant relating to the subject matter of the impugned investigations and/or allowing the 1 and 3 Respondents to prosecute any other criminal case relating to the property known as Land Reference Number 3734/27 (L.R No. 3734/3/22) situated along Muthangari Road in Lavington Area, Nairobi. (hereinafter "the property").
5) The costs of this application be in the cause.
The Applicants’ case;
2. The application is predicated on the Statutory statement and the Verifying Affidavit sworn by Fran cis Nyaga Njeru dated 3rd July, 2023.
3. A report was made by Mr. Naresh Kumar Sobhgyachand made a report at the 2nd Respondent's office to the effect that the 1st Applicant defrauded him of the property.
4. On Thursday 22nd June, 2023 officers under the direction of the 1st and 2nd Respondent arrested the Applicant.
5. The 1st applicant was to appear in Court and take a plea on 38 counts on the 29 June 2023 vide Criminal Case No. E476 of 2023 but he did not attend as has been admitted at the Nairobi Hospital since 25 June 2023.
6. There is an ongoing land ownership dispute in Nairobi ELC Case No. No. E054 of 2020 Victor Owuor Ayoki & Another vs. Multistage Invesment Limited & 7 others in respect to the property.
7. In the said ELC suit wherein parties have closed pleadings and a hearing date has been set on the 4thDecember 2023 which will be a must proceed matter.
8. There is every indication that the 1st and 2nd Respondents are acting at the behest of Mr. Naresh Kumar Sobhgyachand with whom they have conspired with intent to use the police to gain an unfair advantage before the ELC Court in order to establish his competing case.
9. It is vital that this Honourable Court intervenes to consider and determine the question as to whether the Respondents have acted properly within their mandates when ordering the prosecution of the Applicant and whether the criminal proceedings are an abuse of the Court process.
10. There is every indication that the 1st and 3rdRespondents are acting at the behest of unknown third parties with whom they have conspired with intent to use the police and the Criminal justice system to harass the Applicants and in essence defraud his company of proprietary rights over the land through intimidation.
11. In purporting to prefer charges against the Applicant and alleging criminal offences relating to ownership of the Property, the 1stRespondent has abused its constitutional powers and the effect of the criminal proceedings will result in an abuse of the court process in disregard to public interest, against the interest of the administration of justice; and have not taken account of the need to prevent and avoid abuse of court process.
12. This will aid third parties to gain an unfair benefit and advantage as against the Applicants during the pendency of ownership wrangles in the Environment and Land Court where the same matters are substantially in and pending determination and may convolute the dispute as the criminals are now busy subdividing the applicant's land.
13. This Court has the inherent power to stop a prosecution that amounts to an abuse of the criminal Justice system, of the court process, are oppressive and vexatious.
14. Article 157(11) of the Constitution provides that;
a. “In exercising the powers conferred by Article 157, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
15. The ODPP was not guided by the above principles before making a decision to prefer charges against the Applicant. The dispute that culminated to the preference of the said charges is in relation to suit land herein above which is a land ownership dispute pitting the ex parte and Mr. Naresh Kumar Sobhgyachand.
16. The purported charges which were commenced whimsically relates to the manner in which the Applicant acquired the said title, a question which will be properly answered by the Environment and Land Court in its final judgment upon hearing the parties.
17. The 1st and 3rd Respondents have denied this court the opportunity to see the evidence, if any relating to the ownership of the land in support of the criminal charges facing the applicant.
18. They submit that 38 counts on the Charge Sheet are prejudicial to the 1st applicant and this against the principle of though not invariably no more than a maximum of 12 counts that should be laid in one charge sheet which was dearly laid down in Kipleting Keino & another Vs Republic.
19. There is serious abuse of power in the criminal case herein in the subordinate Court.The 1st respondent is bestowed with power to confirm that investigation report forwarded to it by the 3rd respondent is sufficient to recommend charges. This power is not absolute.
20. They submit that while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, it is not to be exercised whimsically. While the Court can review the DPP's decisions for rationality and procedural infirmities, it cannot review them on merit.
21. Reliance is placed in R v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, this Court explained the application of this principle in the following words:
“It is for this reason that while the DPPhas complete discretion and fullautonomy to determine whether andagainst whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has table case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp. KipngenoArap Ngeny (High Court Civil App. No. 406 0f 2001), the Court stated thus:
i. A criminal prosecution which iscommenced in the absence of properfactual foundation or basis is alwayssuspect 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 criminal prosecution otherwise the prosecution will be malicious and actionable.”
22. In the decision of Republic v County Director of Education, Nairobi & 4 others Ex-parte Abdukadir Elmi Robleh[2018] eKLR learned judge observed as follows in paragraph 27 of his judgment;
“In my view the notice contemplated under Article 47 of the Constitution as read with section 4(3) of the Fair Administrative Action Act must not only be prior to the decision but must also be adequate and must disclose the nature and reasons for the proposed administrative action.”
23. Reliance is placed in the case of Geothermal Development Company Limited vs. Attorney General & 3 Others (2013] eKLR it was held that:
a. “Article 47 enshrines the right of every person to fair administrative action. Article 232 enunciates various values and principles of public service including "(c) responsive, prompt, effective, impartial and equitable provision of services" and "transparency and provision to the public of timely, accurate information."
24. They submit that as a component of due process, it is important that a party has reasonable opportunity to know the basis of allegations against it. Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to present a response. This right is not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well. (See Donoghue v South Eastern Health Board [2005] 4 IR 217). Hilary Delany in his book, Judicial Review of Administrative Action, Thomson Reuters 2nd edition, at page 272, notes that, "Even where no actual hearing is held in relation to the making of an administrative or quasi-judicial decision, an individual may be entitled to be informed that a decision which will have adverse consequences for him may be taken and to notification of the possible consequences of the decision."
25. They submit that in many jurisdictions around the world, it has long been established that notice is a matter of procedural fairness and an important component of natural justice. As such, information provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be.
26. Reliance is placed in Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJon3/11/06) (HCK) (2006] 2 KLR 553 it was held:
"The Court observes firstly that the rules of natural justice "audi alteram partem" hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision
27. Further, they submit that the said decision was dearly based on irrelevant factors, failure to consider relevant factors, was irrational and was breach of the principle of proportionality.
28. It is their submission that clear that the 1 and 3 respondent's actions were tainted with malice and illegalities. The decision miserably fails the test set out in our Constitution as already enunciated above. It also goes contrary to the principles of natural justice that have indeed defined the arena of administrative law for ages.
29. They submit that the appropriate remedy is that of quashing the impugned decision to prosecute the ex-parte applicant and to prohibit from taking evidence, conducting proceedings or carrying on with the trial of the Applicant in Milimani Chief Magistrate's Criminal Case No. E476 of 2023.
The 1st & 3rd Respondents’ Case;
30. It is their case that the subject matter of the Application and the Petition are live before the Milimani Chief Magistrate’s Courts vide MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU.They argue that the existence of a civil suit does not any way estop the Office of the Director of Public Prosecutions from instituting criminal proceedings against a person if the ingredients of the offence one is charged with are met and the evidence supports the charge therein.
31. According to them,the Applicant in his Application incorrectly lays out the law in paragraph 10 of his Application. The Law as it was then held by Justice M.K Ibrahim (as he then was) in Kipleting Keino Cheres& Another v Republic [2006] eKLRwas that: “…However, it is my opinion that the said recommendations regarding a maximum of 12 counts in any single case does not lay down a mandatory direction but is one for precaution in order to ensure a fair trial of an accused person. This ought to be the usual trend but is not invariable. The court itself stated “.....Usually, though not invariably, no more than twelve counts should be laid in one charge sheet.....” (emphasis mine) This still recognizes the powers and discretion of the prosecution in preferring charges, preparing the charge sheet and prosecuting. However, if this power and discretion is exercised leading to overloading of a charge sheet that could lead to prejudice, it would be subject to challenge and intervention by the courts…”
32. They argue that the charge sheet as prepared in the Criminal matter is clear and sets out specific counts that are comprehensible and not overloaded. The Accused therein can understand the counts and defend himself as envisioned under Article 50 of the Constitution of Kenya, 2010.
33. According to them the 1st Respondent subjects each and every matter before him to the evidential test and the public interest tests as outlined in the National Prosecutions policy and the Decision to Charge guidelines. The criminal case MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU like all cases was subjected to the test and the accused person was found culpable.
34. They submit that the 1st Respondent, the Director of Public Prosecutions, is an independent Office holder under Article 157(10) as read with Article 248(1) of the Constitution of Kenya,2010, and consequently, does not require the consent of any person or authority for the commencement of any proceedings and in the exercise of his powers and functions, does not act under the directions and/or control of any person or authority.
35. They urge this Honourable Court should vacate its orders of stay of the lower court case MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU as the allegations as set out in the Applicant’s Application do not meet the high standard set by the Court of Appeal in Gordon Ngatia Muriuki v DPP & 2 Others [2017] Eklr where the Honourable Court set out instances where a court can issue a stay or freeze proceedings of a court of law exercising criminal jurisdiction in instances: “…Courts are reluctant to freeze proceedings before a court of law that has jurisdiction to try criminal cases; only in instances where there are trumped up charges that cannot be founded in law or the prosecution is not undertaken according to law, or it is actuated by malice and meant to harass the appellant, having no basis at all in law and fact…”
36. They submit that the court should kindly appreciate the court’s considerations in Patrick Muturi Ihungi v Inspector General of Police & 2 others; NamoyaInterested Party Petition No. EP40 of 2021 where it was held that: “..The inherent jurisdiction of this court to stop investigations or a prosecution is to be exercised only in exceptional circumstances…”
37. It is their case that the Applicant herein has not shown any exceptional circumstances that require this Honourable Court to stay the matter in the lower court as the Honourable Chief Magistrate at Milimani is a fair adjudicator and has all the skills to adjudicate over
38. They rely on the case of the Commissioner of Police & the Director of Criminal Investigations Department & another v Kenya Commercial Bank Ltd & 4 Others [2013] Eklr, the Court of Appeal stated resoundingly that: …..By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions 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 abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090. It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua V. R.[2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR.”
39. Neither the Inspector General of the National Police Service nor the Director of Public Prosecutions has mishandled any aspect of the lower court matter MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU
40. The 1st Respondent is driven only by his constitutional mandate as enshrined in Article 157 of the Constitution of Kenya, 2010 and his constitutional obligation to uphold the public good.
41. The criminal proceedings were instituted by competent officers after following all due process of law and the decision to charge the Applicant in MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU was made after following due process.
42. They argue that the law requires that officers of the 1st Respondents peruse the evidence on record and only charge an accused person based on the evidence at hand. This is the process followed by the office of the 1st Respondent in all criminal matters.
43. They argue that the application is an attempt by the Applicant herein to appeal the 1stRespondent’s decision to charge.
44. The Constitution of Kenya, 2010 jealously safeguards the 1st Respondent’s independence on the decision to institute criminal charges.
45. It argues that there is no likelihood that the officers of the 1st and 3rd Respondents have been compromised as they are both steadfast servants of justice.
46. The lower court is well equipped to adjudicate criminal matter MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU and they would like the matter to proceed before the lower court as the record is before that court and as the trial court they are well suited to adjudicate the matter.
47. It is their case that the Applicant is attempting to stop the 1st, 2nd and 3 rd respondents from enforcing their constitutional and statutory duties.
48. They argue that it is in the public interest that complaints made to the police are investigated and the 1st Respondent is allowed to enforce its Constitutional mandate whenever a matter meets the tests as described in the necessary laws.
49. They submit that the Applicants herein have not provided any proof to substantiate his rather lofty accusations against officers of the 1st and 3rd Respondents.
The 1 st& 3 rd Respondent’s Submissions;
50. It is submitted that the principles for Judicial Review were set out in a land mark case of; Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996, where the Court of Appeal stated inter alia:
'It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted un-procedurally, that his decision was unreasonable and that the impugned decision was illegal.
51. Judicial Review is about the decision-making process, not the decision itself. The role of the court in judicial review is supervisory Jurisdiction. It is not an appeal. Judicial Review more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the process followed by the decision-maker arc proper, and the decision is within the confines of the Law, a Court will not interfere."
52. In the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2()()2) cKLR the Court of Appeal held that:
Judicial Review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.
53. They submit that from the above cited cases it is clear that in order for the applicant to succeed in an application for judicial review the applicant must demonstrate that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
54. They submit that the court should concern itself with process of the decision making and not the merit of the decision being challenged.
55. Article 157 (6a) of the Constitution of Kenya provides that:
The Director of Public Prosecutions shall exercise state powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged 10 have been committed.
56. Under Article 157(10) of the Constitution provides;
"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 powers or functions, shall not be under the direction or control of any person or authority.
57. They submit that from the foregoing there is no doubt that the 1 st Respondent is an independent office clothed with the mandate of instituting and undertaking criminal prosecutions in the public interest in all courts other than the court martial.
58. They also submit that the 2nd Respondent is clothed with both constitutional and statutory mandate to investigate every criminal complaint reported or lodged with it.
59. Section 24 of the National Police Service Act provide;
The functions of the Kenya police services shall he
a) Provision of assistance to the public in need
b) Maintenance of law and order
c) Preservation of peace
d) Protection of life and property
e) Investigation crimes
f) Collection of criminal intelligence
g) Prevention and detection of crime
h) Apprehension of offenders
i) Enforcing of all laws and regulations with which it is charge
60. They place reliance in the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated: "It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1 st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities.
61. On the other hand, members of the public are also morally obligated to report incidents of crime to the and DCI.
62. In the case of Republic v The Commissioner of Police the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Nairobi, in determining whether the ()I)PP and I)CI had abused their statutory and constitutional powers, the learned Judge stated that:
the Police have a duly 10 investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.
63. It is their submission that in the instant case, the applicant on 19th January , 2019 , reported allegations that unknown people were claiming land reference LR3734/27 belonging to Multistage Investment Iimited where is a director together with is wife the 2nd applicant while the complainant Naresh Kumar Sabhagyachand Metha on 30th January 202() Reported allegation of fraudulently registration of title of land reference number IR 3734/27 belonging to Multistage Investment Iimited where is one of the a director consequently the 3 rd Respondent undertook a lawful duty by investigating the complaints that had been lodged by the both parties. In fact, the Applicants have failed to demonstrate that the 3 rd Respondent undertook investigations into the complaint lodged by the Interested party through coercion and without regard to the standing orders.
64. They submit that it is noteworthy that in compliance with the principles of natural justice, the Applicants were summoned by the 3 rd Respondent and given an opportunity to present their version of the incident and recorded statements.
65. Upon concluding investigations, the 3 rd Respondent established that there was a reasonable suspicion that an offence had been committed, hence prompting them to forward the investigation file to the I st Respondent for review and directions.
66. Reliance is placed in the Michael Monari Case (Supra) the court stated that the police only need to establish reasonable suspicion that an offence had been committed before any charges can be preferred.
67. In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) Others, Petition No. 7 of 2014 High court, Murang'a the court stated as follows-
68. In my view, as long as the enabling legislation is constitutional, the respondent 's actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates.
69. they submit that in the instant case, the 3 rd Respondent commenced investigations upon receiving a complaint lodged by the Interested Party and the applicant;the 1 st Respondent instituted the Criminal proceedings according to his constitutional mandate upon satisfying himself that the evidence on record was sufficient to mount a criminal trial, and that it would be in the public interest to do so.
70. They submit that the 1st Applicant is charged with 38 counts including conspiracy to defraud contrary to section 37 of the Penal Code, forgery contrary to section 34 as read to
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1) An Order of Certiorari to bring into this Honourable Court and quash the decision of the 1" Respondent or officers subordinate to him, and or the National Police Service, to charge the applicant with the offences of Conspiracy to defraud contrary to section 37 of the penal code, Making a document without authority contrary to section 357(a) of the penal code Making document without authority contrary to section 357(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary to section 345 as read with 349 of the penal ,Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery of stamp contrary to section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery contrary of section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery of rubber stamp contrary to section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery contrary to section 345 as read with section 349 of the penal code, Forgery of stamps contrary to section 354(a) of the penal code, Forgery of stamps contrary to section 352(a) of the penal code, Forgery contrary to section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal Forgery contrary to section 345 as read with 349 of the penal, Forgery contrary to section 345 as read with 349 of the penal, Forgery of stamps contrary of section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal, Forgery of stamps contrary of section 352(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal, Forgery contrary to section 345 as read with 349 of the penal, Forgery of stamps contrary of section 352(a) of the penal code, Obtaining registration by false pretenses contrary to section 320 of the penal code, Uttering a false document contrary to section 353 of the penal code in Milimani Chief Magistrates Criminal Case No. E476 of 2023, Republic versus Francis Nyaga Njeru.
2) Prohibition directed at the 1 Respondent or through officers' subordinate to him, prohibiting him from carrying on with the further prosecution of the Applicant in Milimani Chief Magistrate's Criminal Case Number E476 of 2023 or any other proceedings that may be instituted on the same basis and touching on the subject matter of the impugned investigations.
3) Prohibition directed at the 3 Respondent or through officers' subordinate to him prohibiting him from carrying on with any further investigations touching on the applicant FRANCIS NYAGA NJERU.
4) Prohibition to prohibit the 2"' Respondent from taking evidence, conducting proceedings or carrying on with the trial of the Applicant in Milimani Chief Magistrate's Criminal Case No. E476 Of 2023 REPUBLIC VS FRANCISNYAGANJERUrnyothercriminalproceedingsthatmaybeinstitutedonthesamebasisand touching on the 1 A pplicant relating to the subject matter of the impugned investigations and/or allowing the 1 and 3 Respondents to prosecute any other criminal case relating to the property known as Land Reference Number 3734/27 (L.R No. 3734/3/22) situated along Muthangari Road in Lavington Area, Nairobi. (hereinafter "the property").
5) The costs of this application be in the cause.
The Applicants’ case;
2. The application is predicated on the Statutory statement and the Verifying Affidavit sworn by Fran cis Nyaga Njeru dated 3rd July, 2023.
3. A report was made by Mr. Naresh Kumar Sobhgyachand made a report at the 2nd Respondent's office to the effect that the 1st Applicant defrauded him of the property.
4. On Thursday 22nd June, 2023 officers under the direction of the 1st and 2nd Respondent arrested the Applicant.
5. The 1st applicant was to appear in Court and take a plea on 38 counts on the 29 June 2023 vide Criminal Case No. E476 of 2023 but he did not attend as has been admitted at the Nairobi Hospital since 25 June 2023.
6. There is an ongoing land ownership dispute in Nairobi ELC Case No. No. E054 of 2020 Victor Owuor Ayoki & Another vs. Multistage Invesment Limited & 7 others in respect to the property.
7. In the said ELC suit wherein parties have closed pleadings and a hearing date has been set on the 4thDecember 2023 which will be a must proceed matter.
8. There is every indication that the 1st and 2nd Respondents are acting at the behest of Mr. Naresh Kumar Sobhgyachand with whom they have conspired with intent to use the police to gain an unfair advantage before the ELC Court in order to establish his competing case.
9. It is vital that this Honourable Court intervenes to consider and determine the question as to whether the Respondents have acted properly within their mandates when ordering the prosecution of the Applicant and whether the criminal proceedings are an abuse of the Court process.
10. There is every indication that the 1st and 3rdRespondents are acting at the behest of unknown third parties with whom they have conspired with intent to use the police and the Criminal justice system to harass the Applicants and in essence defraud his company of proprietary rights over the land through intimidation.
11. In purporting to prefer charges against the Applicant and alleging criminal offences relating to ownership of the Property, the 1stRespondent has abused its constitutional powers and the effect of the criminal proceedings will result in an abuse of the court process in disregard to public interest, against the interest of the administration of justice; and have not taken account of the need to prevent and avoid abuse of court process.
12. This will aid third parties to gain an unfair benefit and advantage as against the Applicants during the pendency of ownership wrangles in the Environment and Land Court where the same matters are substantially in and pending determination and may convolute the dispute as the criminals are now busy subdividing the applicant's land.
13. This Court has the inherent power to stop a prosecution that amounts to an abuse of the criminal Justice system, of the court process, are oppressive and vexatious.
14. Article 157(11) of the Constitution provides that;
a. “In exercising the powers conferred by Article 157, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
15. The ODPP was not guided by the above principles before making a decision to prefer charges against the Applicant. The dispute that culminated to the preference of the said charges is in relation to suit land herein above which is a land ownership dispute pitting the ex parte and Mr. Naresh Kumar Sobhgyachand.
16. The purported charges which were commenced whimsically relates to the manner in which the Applicant acquired the said title, a question which will be properly answered by the Environment and Land Court in its final judgment upon hearing the parties.
17. The 1st and 3rd Respondents have denied this court the opportunity to see the evidence, if any relating to the ownership of the land in support of the criminal charges facing the applicant.
18. They submit that 38 counts on the Charge Sheet are prejudicial to the 1st applicant and this against the principle of though not invariably no more than a maximum of 12 counts that should be laid in one charge sheet which was dearly laid down in Kipleting Keino & another Vs Republic.
19. There is serious abuse of power in the criminal case herein in the subordinate Court.The 1st respondent is bestowed with power to confirm that investigation report forwarded to it by the 3rd respondent is sufficient to recommend charges. This power is not absolute.
20. They submit that while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, it is not to be exercised whimsically. While the Court can review the DPP's decisions for rationality and procedural infirmities, it cannot review them on merit.
21. Reliance is placed in R v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, this Court explained the application of this principle in the following words:
“It is for this reason that while the DPPhas complete discretion and fullautonomy to determine whether andagainst whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has table case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp. KipngenoArap Ngeny (High Court Civil App. No. 406 0f 2001), the Court stated thus:
i. A criminal prosecution which iscommenced in the absence of properfactual foundation or basis is alwayssuspect 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 criminal prosecution otherwise the prosecution will be malicious and actionable.”
22. In the decision of Republic v County Director of Education, Nairobi & 4 others Ex-parte Abdukadir Elmi Robleh[2018] eKLR learned judge observed as follows in paragraph 27 of his judgment;
“In my view the notice contemplated under Article 47 of the Constitution as read with section 4(3) of the Fair Administrative Action Act must not only be prior to the decision but must also be adequate and must disclose the nature and reasons for the proposed administrative action.”
23. Reliance is placed in the case of Geothermal Development Company Limited vs. Attorney General & 3 Others (2013] eKLR it was held that:
a. “Article 47 enshrines the right of every person to fair administrative action. Article 232 enunciates various values and principles of public service including "(c) responsive, prompt, effective, impartial and equitable provision of services" and "transparency and provision to the public of timely, accurate information."
24. They submit that as a component of due process, it is important that a party has reasonable opportunity to know the basis of allegations against it. Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to present a response. This right is not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well. (See Donoghue v South Eastern Health Board [2005] 4 IR 217). Hilary Delany in his book, Judicial Review of Administrative Action, Thomson Reuters 2nd edition, at page 272, notes that, "Even where no actual hearing is held in relation to the making of an administrative or quasi-judicial decision, an individual may be entitled to be informed that a decision which will have adverse consequences for him may be taken and to notification of the possible consequences of the decision."
25. They submit that in many jurisdictions around the world, it has long been established that notice is a matter of procedural fairness and an important component of natural justice. As such, information provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be.
26. Reliance is placed in Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJon3/11/06) (HCK) (2006] 2 KLR 553 it was held:
"The Court observes firstly that the rules of natural justice "audi alteram partem" hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision
27. Further, they submit that the said decision was dearly based on irrelevant factors, failure to consider relevant factors, was irrational and was breach of the principle of proportionality.
28. It is their submission that clear that the 1 and 3 respondent's actions were tainted with malice and illegalities. The decision miserably fails the test set out in our Constitution as already enunciated above. It also goes contrary to the principles of natural justice that have indeed defined the arena of administrative law for ages.
29. They submit that the appropriate remedy is that of quashing the impugned decision to prosecute the ex-parte applicant and to prohibit from taking evidence, conducting proceedings or carrying on with the trial of the Applicant in Milimani Chief Magistrate's Criminal Case No. E476 of 2023.
The 1st & 3rd Respondents’ Case;
30. It is their case that the subject matter of the Application and the Petition are live before the Milimani Chief Magistrate’s Courts vide MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU.They argue that the existence of a civil suit does not any way estop the Office of the Director of Public Prosecutions from instituting criminal proceedings against a person if the ingredients of the offence one is charged with are met and the evidence supports the charge therein.
31. According to them,the Applicant in his Application incorrectly lays out the law in paragraph 10 of his Application. The Law as it was then held by Justice M.K Ibrahim (as he then was) in Kipleting Keino Cheres& Another v Republic [2006] eKLRwas that: “…However, it is my opinion that the said recommendations regarding a maximum of 12 counts in any single case does not lay down a mandatory direction but is one for precaution in order to ensure a fair trial of an accused person. This ought to be the usual trend but is not invariable. The court itself stated “.....Usually, though not invariably, no more than twelve counts should be laid in one charge sheet.....” (emphasis mine) This still recognizes the powers and discretion of the prosecution in preferring charges, preparing the charge sheet and prosecuting. However, if this power and discretion is exercised leading to overloading of a charge sheet that could lead to prejudice, it would be subject to challenge and intervention by the courts…”
32. They argue that the charge sheet as prepared in the Criminal matter is clear and sets out specific counts that are comprehensible and not overloaded. The Accused therein can understand the counts and defend himself as envisioned under Article 50 of the Constitution of Kenya, 2010.
33. According to them the 1st Respondent subjects each and every matter before him to the evidential test and the public interest tests as outlined in the National Prosecutions policy and the Decision to Charge guidelines. The criminal case MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU like all cases was subjected to the test and the accused person was found culpable.
34. They submit that the 1st Respondent, the Director of Public Prosecutions, is an independent Office holder under Article 157(10) as read with Article 248(1) of the Constitution of Kenya,2010, and consequently, does not require the consent of any person or authority for the commencement of any proceedings and in the exercise of his powers and functions, does not act under the directions and/or control of any person or authority.
35. They urge this Honourable Court should vacate its orders of stay of the lower court case MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU as the allegations as set out in the Applicant’s Application do not meet the high standard set by the Court of Appeal in Gordon Ngatia Muriuki v DPP & 2 Others [2017] Eklr where the Honourable Court set out instances where a court can issue a stay or freeze proceedings of a court of law exercising criminal jurisdiction in instances: “…Courts are reluctant to freeze proceedings before a court of law that has jurisdiction to try criminal cases; only in instances where there are trumped up charges that cannot be founded in law or the prosecution is not undertaken according to law, or it is actuated by malice and meant to harass the appellant, having no basis at all in law and fact…”
36. They submit that the court should kindly appreciate the court’s considerations in Patrick Muturi Ihungi v Inspector General of Police & 2 others; NamoyaInterested Party Petition No. EP40 of 2021 where it was held that: “..The inherent jurisdiction of this court to stop investigations or a prosecution is to be exercised only in exceptional circumstances…”
37. It is their case that the Applicant herein has not shown any exceptional circumstances that require this Honourable Court to stay the matter in the lower court as the Honourable Chief Magistrate at Milimani is a fair adjudicator and has all the skills to adjudicate over
38. They rely on the case of the Commissioner of Police & the Director of Criminal Investigations Department & another v Kenya Commercial Bank Ltd & 4 Others [2013] Eklr, the Court of Appeal stated resoundingly that: …..By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions 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 abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090. It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua V. R.[2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR.”
39. Neither the Inspector General of the National Police Service nor the Director of Public Prosecutions has mishandled any aspect of the lower court matter MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU
40. The 1st Respondent is driven only by his constitutional mandate as enshrined in Article 157 of the Constitution of Kenya, 2010 and his constitutional obligation to uphold the public good.
41. The criminal proceedings were instituted by competent officers after following all due process of law and the decision to charge the Applicant in MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU was made after following due process.
42. They argue that the law requires that officers of the 1st Respondents peruse the evidence on record and only charge an accused person based on the evidence at hand. This is the process followed by the office of the 1st Respondent in all criminal matters.
43. They argue that the application is an attempt by the Applicant herein to appeal the 1stRespondent’s decision to charge.
44. The Constitution of Kenya, 2010 jealously safeguards the 1st Respondent’s independence on the decision to institute criminal charges.
45. It argues that there is no likelihood that the officers of the 1st and 3rd Respondents have been compromised as they are both steadfast servants of justice.
46. The lower court is well equipped to adjudicate criminal matter MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU and they would like the matter to proceed before the lower court as the record is before that court and as the trial court they are well suited to adjudicate the matter.
47. It is their case that the Applicant is attempting to stop the 1st, 2nd and 3 rd respondents from enforcing their constitutional and statutory duties.
48. They argue that it is in the public interest that complaints made to the police are investigated and the 1st Respondent is allowed to enforce its Constitutional mandate whenever a matter meets the tests as described in the necessary laws.
49. They submit that the Applicants herein have not provided any proof to substantiate his rather lofty accusations against officers of the 1st and 3rd Respondents.
The 1 st& 3 rd Respondent’s Submissions;
50. It is submitted that the principles for Judicial Review were set out in a land mark case of; Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996, where the Court of Appeal stated inter alia:
'It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted un-procedurally, that his decision was unreasonable and that the impugned decision was illegal.
51. Judicial Review is about the decision-making process, not the decision itself. The role of the court in judicial review is supervisory Jurisdiction. It is not an appeal. Judicial Review more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the process followed by the decision-maker arc proper, and the decision is within the confines of the Law, a Court will not interfere."
52. In the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2()()2) cKLR the Court of Appeal held that:
Judicial Review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.
53. They submit that from the above cited cases it is clear that in order for the applicant to succeed in an application for judicial review the applicant must demonstrate that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
54. They submit that the court should concern itself with process of the decision making and not the merit of the decision being challenged.
55. Article 157 (6a) of the Constitution of Kenya provides that:
The Director of Public Prosecutions shall exercise state powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged 10 have been committed.
56. Under Article 157(10) of the Constitution provides;
"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 powers or functions, shall not be under the direction or control of any person or authority.
57. They submit that from the foregoing there is no doubt that the 1 st Respondent is an independent office clothed with the mandate of instituting and undertaking criminal prosecutions in the public interest in all courts other than the court martial.
58. They also submit that the 2nd Respondent is clothed with both constitutional and statutory mandate to investigate every criminal complaint reported or lodged with it.
59. Section 24 of the National Police Service Act provide;
The functions of the Kenya police services shall he
a) Provision of assistance to the public in need
b) Maintenance of law and order
c) Preservation of peace
d) Protection of life and property
e) Investigation crimes
f) Collection of criminal intelligence
g) Prevention and detection of crime
h) Apprehension of offenders
i) Enforcing of all laws and regulations with which it is charge
60. They place reliance in the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated: "It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1 st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities.
61. On the other hand, members of the public are also morally obligated to report incidents of crime to the and DCI.
62. In the case of Republic v The Commissioner of Police the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Nairobi, in determining whether the ()I)PP and I)CI had abused their statutory and constitutional powers, the learned Judge stated that:
the Police have a duly 10 investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.
63. It is their submission that in the instant case, the applicant on 19th January , 2019 , reported allegations that unknown people were claiming land reference LR3734/27 belonging to Multistage Investment Iimited where is a director together with is wife the 2nd applicant while the complainant Naresh Kumar Sabhagyachand Metha on 30th January 202() Reported allegation of fraudulently registration of title of land reference number IR 3734/27 belonging to Multistage Investment Iimited where is one of the a director consequently the 3 rd Respondent undertook a lawful duty by investigating the complaints that had been lodged by the both parties. In fact, the Applicants have failed to demonstrate that the 3 rd Respondent undertook investigations into the complaint lodged by the Interested party through coercion and without regard to the standing orders.
64. They submit that it is noteworthy that in compliance with the principles of natural justice, the Applicants were summoned by the 3 rd Respondent and given an opportunity to present their version of the incident and recorded statements.
65. Upon concluding investigations, the 3 rd Respondent established that there was a reasonable suspicion that an offence had been committed, hence prompting them to forward the investigation file to the I st Respondent for review and directions.
66. Reliance is placed in the Michael Monari Case (Supra) the court stated that the police only need to establish reasonable suspicion that an offence had been committed before any charges can be preferred.
67. In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) Others, Petition No. 7 of 2014 High court, Murang'a the court stated as follows-
68. In my view, as long as the enabling legislation is constitutional, the respondent 's actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates.
69. they submit that in the instant case, the 3 rd Respondent commenced investigations upon receiving a complaint lodged by the Interested Party and the applicant;the 1 st Respondent instituted the Criminal proceedings according to his constitutional mandate upon satisfying himself that the evidence on record was sufficient to mount a criminal trial, and that it would be in the public interest to do so.
70. They submit that the 1st Applicant is charged with 38 counts including conspiracy to defraud contrary to section 37 of the Penal Code, forgery contrary to section 34 as read to
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