The Exparte Applicant is Heritage Flowers Limited , a Limited Liability Company. By its Notice of motion dated 16 th August 2023, it seeks the following orders:
THAT the Honourable Court be and is hereby pleased to issue a Judicial Review ORDER OF CERTIRARI to call-up, remove, deliver up to this Honourable Court and quash the impugned decision by the 1 st, 2 & 3 rd Respondents, reposed in the prosecution of the interested parties in Milimani Criminal Case No.E604 of 2023 (Republic V Shailesh Kumar Rai & 4 Others) instituted unlawfully on 28 th July,2023.
THAT the Honourable Court be and is hereby pleased to issue a Judicial Review ORDER OF PROHIBITION to restrain the 1 st ,2 nd and 3 rd Respondents or anyone claiming under or pursuant to their authority, from proceedings with the prosecution of the interested parties in Milimani Criminal Case No.E604 of 2023 (Republic v Shailesh Kumar Rai &4 Others) or any other such suit premised on the particular as instituted vide the charge sheet dated 28 th July,2023.
THAT Costs be provided for on a full indemnity basis.
The application is predicated on the statutory statement dated 11 th August 2023 and the verifying affidavit sworn on the even date by Mr. Shailesh Kumar Rai, the 1 st Interested Party and one of the Directors of the exparte applicant.
The Ex parte Applicant’s case is that the instigation of the criminal prosecution against the Interested Parties herein is a criminalization of a shareholder dispute between the 4 th Respondent Riyaz Punjani Muhamadali and the 1 st and 2 nd Interested Parties, Shailesh Kumar Rai and Ranjeeta Pandey Rai as shareholders of the Exparte Applicant company for which the Exparte Applicant has not lodged any complaint with the 2 nd and 3 rd Respondents, who are the DCI and the Inspector General of Police of the National police Service.
It is also the Exparte Applicant’s case that the criminal proceedings are contrived to coerce the 1 st and 2 nd Interested Parties to cede to the 4 th Respondent’s claim as pleaded and sought in Milimani High Court Commercial Case No.E894 of 2021 Punjani Riyaz Mahamadali v Shailesh Rai Kumar & Ranjeeta Pandey Rai.
It is deposed by the 1 st Interested Party that the Exparte Applicant, a reputable and leading exporter of floriculture, incorporated in the year 2014 is a limited liability company comprised of 3 shareholders/directors, constituting the 4 th Respondent Riyaz Punjani Muhamadali as a director in the Exparte Applicant company, holding 50 shares, the 1 st Interested Party who is the Applicant’s Managing Director and holder of 25 shares and the 2 nd Interested Party who is equally a director in the exparte Applicant company and holder of 25 shares.
It is also pleaded and deposed that the 1 st and 2 nd Interested Parties are husband and wife while the 3 rd and 4 th Interested Parties are employed by the Exparte Applicant within its finance and accounting departments respectively. It is also averred that the 5 th Interested Party is a limited liability company and the Applicant’s overseas agent.
According to Mr. Shailesh Kumar Rai, the charges preferred relate to alleged monies stolen from the Exparte Applicant whereas complaints of such monies missing have never been received by the Board of Directors nor has the same been raised by external auditors.
It is the Exparte Applicant’s case that all the offences particularized in the charge sheet dated 28 th July 2023 are founded on the 1 st Respondent’s-DPP’s decision to criminalize contractual documents entered into and/or witnessed by the Interested Parties. Further, that the validity and lawfulness of these documents is uncontroverted and as such, the 4 th Respondent is barred by the doctrine of privity of contract from challenging the same in his personal capacity.
The 1 st Interested Party further depones that the woes between the Interested Parties and the 4 th Respondent began when the 1 st Interested Party declined to advance to the 4 th Respondent a personal loan of Kshs.10,00,000/= from the Exparte Applicant company to enable the 4 th respondent pay the 5 th Respondent as he had obtained a loan of USD 290,000 from the latter.
It is claimed by the Interested Parties through the depositions by the 1 st interested party that when the request was declined, the 4 th Respondent vide a letter dated 1 st July 2021 tendered his resignation as Director and purported to sell his 50 shares to the 1 st and 2 nd Interested Parties at Kshs.200,000,000/=, which transfer notice was accepted by the 1 st and 2 nd Interested Parties pending valuation of shares by the Exparte Applicant’s auditors. However, that the 4 th Respondent communicated that he was not bound by the valuation of the said shares by auditors and demanded for the 1 st and 2 nd Interested Parties to submit an acceptance value of the shares.
It is further averred that in a turn of events, after the appointment of the 2 nd Interested Party as a Director, the 4 th Respondent withdrew his authority to the Board to sell his shares claiming that he was at liberty to sell his shares to a third party, the 5 th Respondent. The 4 th Respondent, it is deposed, started frustrating the operations of the Exparte Applicant and even shared confidential documents such as sales reports to competitors.
The Exparte Applicant’s further case is that the 4 th Respondent purported to forge minutes of the Board which purported to appoint the 5 th Respondent as a Director in the Applicant’s Board. The officers of the 2 nd Respondent are said to have raided the private residence of the 1 st and 2 nd Interested Parties and confiscated several items, which orders to search and seize were set aside, while a search and freeze order over the bank accounts of the 2 nd and 5 th Interested Parties was also issued by the court.
The Exparte Applicant’s further case is that after a long silence, the 1 st Interested Party was summoned by the 2 nd Respondent to confirm the contents of ‘unknown documents’ and that at the same time, the 3 rd and 4 th Interested Parties were arrested and reasons for the arrest were not disclosed.
According to the Exparte Applicant, the 1 st to 3 rd Respondents’ conduct amounts to a gross violation of the Interested Parties’ rights under Articles 27,28,29,39,40,47 and 50 of the Constitution as no evidence has been provided connecting the Interested Parties to the alleged conspiracy to defraud or forgery with regard to the operations of the Exparte Applicant.
It is also asserted that the maintenance of the impugned criminal proceedings exposed the Exparte Applicant and Interested Parties to reputational damage and incurring of daily loses. Further, that the Exparte Applicant faces imminent debt call-ups owing to the huge overdraft facility held with the Bank of India and that there is also a risk of being exposed to law suits from various suppliers of agro-chemical products.
The Ex parte Applicant also filed two further affidavits dated 19 th December 2023 and 4 th March 2024. In which affidavits the Exparte Applicant contends the 1 st Respondent has not discharged the evidential burden to justify prosecutorial discretion and has not controverted key averments in the Exparte Applicant’s affidavit.
The Exparte Applicant also states that the 1 st Respondent failed to objectively assess the totality of the evidence both for and against the Interested Parties and to satisfy himself that it established a realistic prospect of conviction.
Tat the criminal proceedings are alleged to be an abuse of the legal process, vexatious, oppressive and motivated by ulterior purposes. The Exparte Applicant asserts that court processes must be used honestly and in good faith and not as a tool for oppression of the Interested Parties for ulterior motives.
It is the Exparte Applicant’s further case that counts I-IV of the charge sheet pertain to offences allegedly occasioned upon the Ex parte Applicant. According to the Exparte Applicant, it is an abuse of process to approve charges related to alleged conspiracy to defraud and money laundering initiated by the 4 th Respondent without a complaint from the Exparte Applicant itself.
The charges, it is claimed, are in the nature of a complaint being pursued on behalf of the Ex parte Applicant, in blatant disregard of the proper legal avenue under section 238 of the Companies Act, 2015.
The deponent further asserts that as shareholders in the Exparte Applicant company, they have no proprietary rights to the company's property apart from the shares they own. It is also the Exparte Applicant’s case that the 1 st Respondent ignored the pending civil suit No. HCOMM E894 of 2021 which suit seeks the same prayers as those being pursued in the impugned trial court proceedings in Criminal Case No. E604 of 2023 risking conflicting outcomes and consequently, abuse of process. Further, that the Ex parte Applicant’s Articles and Memorandum of Association expressly allow it to conduct any business approved by the board of directors and that it has not received any requisition by its members to convene a meeting to rescind the lawful commission agreement as is by law required.
The Exparte Applicant also avers that 2 nd Respondent’s investigations and recommendation to charge the Interested Parties were conducted without confirming whether the Exparte Applicant had resolved to lodge the complaint.
The Exparte Applicant relies on Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC (KLR) to support its position that where either a civil or criminal claim is being employed to perpetuate ulterior motives of general to abuse the process of the court in whatever, manner, then criminal procedure cannot be invoked to aid the unlawful cause of action.
According to the Exparte Applicant, the 2 nd Respondent’s affidavit is tainted with falsehoods and it contradicts the contents of the complaint produced as annexure MM1 which evinces that the Exparte Applicant has 3 directors. The Exparte Applicant also states that it can conduct business with a quorum of 2 members present and as such, the issue of quorum cannot be a factual or legal foundation to mount any of the charges in the impugned charge sheet.
Mr. Shailesh Kumar Rai, the 1 st Interested Party, asserts that his deposing of affidavits as a shareholder is irrelevant as he was authorized by the Board of Directors to plead on behalf of the Applicant. He further claims that the impugned proceedings do not pursue any direct claim vested in him but are rather in the form of a derivative claim properly vested in the Exparte Applicant.
Mr. Shailesh also urges this Court to undertake a merit review having demonstrated the pleaded constitutional violations, pursuant to the holding in Edwin Harold Dayan & 3 Others v The Inspector General, National Police Service & 5 Others[Petition No.6(E007) OF 2022].
Responses
In response, the 1 st to 3 rd Respondents filed Grounds of Opposition dated 2 nd October 2023 and a Replying Affidavit sworn on 4 th October 2023 by Chief Inspector CI Martin Munene. In the affidavit, he deposes that the investigations and subsequent criminal proceedings against the Interested Parties is a lawful process. Further, that upon recommendations by FATF, the DCI formed the Financial Investigation Unit to investigate money laundering and to enforce the Proceeds of Crime and Anti-Money Laundering Act of 2009, (POCAMLA).
The 1 st to 3 rd Respondents contends that the investigations were based on a complaint by the 4 th Respondent as indicated in referral form dated 31 st March 2022. He also deposes that upon subjecting the evidence at hand to the public interest test and the evidentiary threshold test, the 1 st Respondent was satisfied that the evidence at hand supported the proposed charges.
Chief inspector Martin Munene avers that the allegations by the 4 th Respondent that the resolutions giving rise to a contract between the 5 th Interested Party and the Ex parte Applicant were fraudulent and forgery are captured by the cybercrime and forensic report and audit report. The 1 st and 2 nd Interested Parties are said to have, as a result of the forged resolution, signed a commission agreement without involving the majority shareholder/director (4 th Respondent) which agreement allowed for the deduction of 2% of total sale value.
The 2 nd Interested Party is said to have registered Rosalia Bloom Ltd the 5 th Interested Party where the 1 st Interested Party is also a signatory and that the purpose of Rosalia Bloom Limited is to siphon the 1 st and 2 nd Interested Parties’ ill-gotten gains from the fraudulent commission agreement.
The deponent for the 1 st to 3 rd respondents further avers that their investigations unearthed overwhelming evidence to support the charges levelled by the 1 st Respondent. Further, that the Interested Parties have not demonstrated how the 1 st to 3 rd Respondents violated their constitutional rights. CI Munene reiterates that the investigations culminating in the criminal proceedings were undertaken within the confines of the law and further, that the accused persons will be accorded a fair hearing and they will have their day in court. He further deposes that the 2 nd Respondent is not a party to the existing civil suit cited as Milimani High Court Commercial Case No. E894 OF 2021.
The 4 th Respondent Riyaz Punjani Muhamadali in his Replying Affidavit sworn on 27 th September 2023 states that the 1 st Interested Party has no locus standi to execute an Affidavit instituting a judicial review case. Further, that the Exparte Applicant cannot be used as a bargaining tool when officers are charged with criminal offences. Further, that the 1 st and 2 nd Interested Parties have been charged with criminal offences of stealing, forgery, conspiracy to defraud and money laundering which are not shareholder disputes but illegalities.
The 4 th Respondent deposes that the prosecution of the interested parties herein is not based on malice and that the accused persons will have their day in court before the trial court and if the evidence tendered is not sufficient, they will be acquitted. He further takes issue with the fact that the verifying affidavit in support of the application is sworn by the 1 st Interested Party making him on the one hand an accused person while on the other hand, he executes affidavits on behalf of the company to exonerate himself and his wife who is the 2 nd Interested Party.
The 2 nd and 5 th Interested Parties filed a Replying Affidavit sworn by 2 nd Interested Party. Upon examination by the court, I note that the affidavit is a word for word replica of the verifying affidavit sworn my Mr. Shailesh Kumar Rai, the 1 st Interested Party and as such, this Court will not reproduce the contents here, to avoid repetition and wasting of judicial time and resources.
The 3 rd and 4 th Interested Parties filed their Replying Affidavits both of which are sworn by the said parties on 5 th March 2024. This court observes that the two affidavits are also a replica of the verifying affidavit sworn by the 1 st Interested Party and as such, the court finds no need to repeat the contents of the said affidavits herein.
Submissions
The application was canvassed by way of written submissions. The Ex parte applicant filed written submissions dated 14 th May 2024 arguing that the core issue in the case is the exercise of prosecutorial discretion by the 1 st Respondent. It argues that the ODPP failed to justify this discretion adequately, as it only filed grounds of opposition , not a replying affidavit, thereby failing to controvert the applicant's sworn allegations.
The Exparte Applicant in support of this position relies on the cases of Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR , Attorney General & 6 others v Mohamed Balala & 11 others [2014] eKLR and Gideon Sitelu Konchellah v Julius Lekakeny ole Sunkuli & 2 others [2018] eKLR . It maintains that grounds of opposition, being unsworn, are insufficient to counter affidavit evidence.
On the substantive issue, the applicant submits that although the ODPP is independent under Article 157(10) of the Constitution, it must act within legal limits and be guided by public interest, justice, and the need to prevent abuse of process as stipulated under Article 157(11).
The Exparte applicant relies on the cases of Edwin Harold Dayan supra , Michael Sistu Mwaura Kamau v EACC & 4 others [2017] eKLR and Republic v Director of Public Prosecutions & 2 others; Evanson Muriuki Kariuki (interested party); Ex parte James M. Kahumbura [2019] eKLR to demonstrate that prosecutorial discretion is not absolute and may be reviewed if abused. The Applicant also relies on the Kahumbura case where the court defined abuse of process as a situation where the prosecution is so unjust or improper that, despite the case being otherwise legally sound, the court ought to prevent it from going forward.
Reliance is also placed on the case of Diamond Hashal Lalji & another v Attorney General & 4 others [2018] eKLR citing with approval the case of Jago v District Court (NSW) 168 LLR 23, 87 ALR 57) , where Brennan J explained that abuse of process arises when court proceedings are initiated for reasons that the law does not recognize as legitimate.
The Exparte Applicant further submits that court processes must be used properly, honestly and in good faith and must not be abused or employed to settle personal scores. It relies on the case of Rosemary Wanja Mwagiru & 2 others v Attorney General & 3 others [2013] eKLR to support this position.
The Exparte Applicant further relies on Republic v Attorney General Ex parte Kipngeno arap Ngeny, Civil Application No. 406 of 2001 and Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another [2021] eKLR , arguing that prosecutorial powers must be exercised with caution to avoid oppressive or vexatious prosecutions lacking a prima facie case.
The Exparte Applicant also submits that the charges against the Interested Parties cannot be sustained without a direct complaint by it. It relies on the case of Director of Public Prosecutions v Attorney General & 12 Others, Civil Appeal 206 of 2016 [2022] KECA 397 KLR , where the court is said to have reiterated this position.
The Exparte Applicant stresses that, being a separate legal entity from its members, can only act through resolutions of its members at a general meeting or through its agents, as was established in the case of Nextgen Office Suites Ltd & another v Netcom Investments Limited & another, Shah Minakshi Navichandra [2021] eKLR .
Regarding derivative claims, the Exparte Applicant relies on sections 238 and 239 of the Companies Act and the cases of Ghelani Metals Limited & 3 others v Elesh Ghelani Natwarlal & another [2017] eKLR and Nextgen Office Suites Ltd supra.
According to the Exparte Applicant, the law is not silent in addressing scenarios where a disgruntled shareholder may be keen on pursuing remedies vested in a company. Further, that the position in law regarding the pursuit of an indirect or derivative claim by a disgruntled member of a company is well settled under sections 238 and 239 of the Companies Act which requires that derivative claims, in any form, must be pursued explicitly under the Companies Act, which reserves the forum as being at the High Court.
It is also the Exparte Applicant’s submission that this judicial screening protects the company from a multiplicity of proceedings by a multitude of individual shareholders and other applicants concerning the same wrong inflicted on the company.
The Exparte Applicant invites the court to exercise its inherent power to prevent abuse of court process that is vexatious, oppressive, or otherwise improper. The Applicant relies on the decision in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR , where the court held that all courts possess inherent jurisdiction to prevent their processes from being abused as instruments of oppression.
The Exparte Applicant submits that the impugned criminal proceedings constitute an abuse of process, instituted by the ODPP at the behest of the 4 th Respondent in blatant disregard of company law principles requiring derivative claims under the Companies Act and before the High Court.
The Exparte Applicant alleges forum shopping and misuse of criminal processes to gain advantage in ongoing shareholders’ disputes, citing the Supreme Court’s position in Edward Dande case supra and Jirongo case supra that criminal proceedings should not be used to coerce compromise of pending civil proceedings.
According to the Exparte Applicant, the timing and conduct of the 4 th Respondent’s complaint demonstrates that the proceedings were intended to harass, intimidate and oppress the Interested Parties, akin to the “galloping litigant” phenomenon condemned in the case of Rosemary Wanja Mwagiru & 2 others v Attorney General [2013] eKLR .
The Exparte Applicant further submits that the impugned charges rest on unfair, partisan investigations and lack a reasonable basis, violating the Interested Parties’ right to a fair trial as emphasized in Republic v Director of Public Prosecutions & 2 others; Evanson Muriuki Kariuki; Ex parte James M. Kahumbura .
The Exparte Applicant also relies on the case of Thomas Mboya Oluoch & another v Lucy Muthoni Stephen & another [2005] eKLR , where the court observed that litigation founded on dubious and self-serving evidence constitutes malicious prosecution and abuse of the State’s prosecutorial machinery.
The 1 st to 3 rd Respondents also filed submissions on 3 rd October 2023.
The 1 st Respondent submits that the decision to charge in Criminal Case No. 604 of 2023 – Republic v Shaillesh Kumar Rai & 4 Others was lawful, independent, and grounded in both legal and evidentiary standards. That Article 157 (10) of the Constitution of Kenya, 2010, empowers the DPP to institute criminal proceedings without requiring consent from any person or authority and mandates independence from external direction or control.
The powers under the said Article, it is submitted, are regulated by the Office of the Director of Public Prosecutions Act, No. 3 of 2013 and the Decision to Charge Guidelines, 2019. The Guidelines it is submitted require that the 1 st Respondent subjects all evidence to a two-stage test (Evidential and Public Interest) for making charging decisions.
The evidential test is said to require sufficient, credible, and reliable evidence for a realistic prospect of conviction. The public interest test considers broader justice concerns. It is submitted that the evidence in Criminal Case No. 604 of 2023 satisfied both tests. Further that the DPP exercised discretion based on objective analysis and the wider interest of justice.
The 1 st to 3 rd Respondents submit that the Ex Parte Applicant herein has not demonstrated how, if at all, the 1 st Respondent made the decision to charge the 1 st, 2 nd , 3 rd and 4 th Interested Parties unlawfully and that all that it has done is to claim that its rights were infringed without specifying which rights were infringed and how the 1 st to 3 rd Respondents infringed these rights of the Exparte Applicant.
The 1 st to 3 rd Respondent further submit that the Criminal Procedure Code clearly states that a civil suit is not a bar to criminal proceedings and as such any averment by the Ex Parte Applicant that the existence of Milimani High Court Commercial Case No. E894 of 2021-Punjani Riyaz Mahamadali v Shailesh Rai Kumar & Ranjeeta Pandey Rai is grounds to bar the prosecution of Criminal Case No. 604/2023 Republic v Shaillesh Kumar Rai & 4 Others by the 1 st Respondent is not based on any good law. Reliance is placed in the case of James Mutisya & 5 Others v Alphayo Chimwanga Munala & 2 Others [2021] eKLR .
The 1 st to 3 rd Respondents also submit that there is no requirement in any written law that a complaint must be accompanied by a Company Resolution. Second, that when a director an offence commits they cannot hide behind the lack of a resolution. This, in their view, would be tantamount to expecting an accused person to report himself, terming the arguments by the 1 st Interested Party to be absurd. Third, that Section 23 of the Penal Code requires that where a person is charged with the management and control of a company, their liability is personal.
The 1 st to 3 rd Respondents also submit that a complainant is one who lodges a complaint with the police or any other lawful authority that some offense or criminal act has been committed. In addition, that the Complainant in Criminal trials includes a prosecutor as was held in the case of Republic vs. Mwaura 1979 KLR 209 . This position was also reiterated by the courts in the cases of Ruhi vs. Republic 1985 KLR 373 and Roy Richard Elimma & Another vs. Republic CR. APPEAL N0. 67 of 2002.
It is submitted that the complainant in the criminal case is a natural person, Riyaz Punjani, C/O Heritage Flowers Limited, and that a criminal prosecution does not require a company resolution. The1st to 3 rd Respondents state that criminal trials are determined by the weight of evidence and the law, not by the identity of the complainant or the manner in which the complaint was made.
They also submit that the Directorate of Criminal Investigations is obligated to act on any complaint it receives and that the presence or absence of a company resolution does not invalidate the evidence supporting the charges. At most, that the lack of a company resolution may serve as a defense to be tested during trial.
They argue that more so, the charges conspiracy, stealing, money laundering and forgery are brought against the Interested Parties in their individual capacities and cannot be resolved based on a company resolution.
It is also submitted that the Applicant has not produced the relevant Occurrence Book (OB) entry to substantiate the claim regarding the absence or presence of a resolution. The 1 st to 3 rd Respondents also argue that the 1 st Interested Party was running the company unilaterally and is now aggrieved that the investigation has uncovered evidence of alleged misconduct he believed would remain hidden.
The 1 st to 3rd Respondents submit that, based on the Applicant’s own arguments, there is no company resolution by the Interested Party authorising the commencement of these judicial review proceedings. They argue that judicial review, being civil in nature, requires a formal resolution from the company or its directors indicating the time, place, and minutes of the meeting where the decision to file the proceedings was made.
They note that none of the Applicant’s annexures (SRK-1 to SRK-17) contains such a resolution. Specifically, that SRK-1, dated 1 st April 2019 which predates the alleged offences (which occurred between September 2021 and August 2022) and therefore cannot be construed, even liberally, as authorisation for the present proceedings. To support this position, the 1 st to 3 rd Respondents rely on the case of Bugerere Coffee Growers Limited -versus- Sebaduka & Another [1970] EA 147.
It is submitted that the Applicant must demonstrate with adequate precision the rights that have been violated as was held by the courts in the cases of Anarita Karimi Njeru v Attorney General (1979) KLR 154 and Trusted Society of Human Rights Alliance v AG. & 2 others [2012] eKLR.
The 1 st to 3 rd Respondents also submit that independent institutions such as the 1 st Respondent are not inhibited from carrying out their functions based on one interpretation of the opinion of the Interested Party and Applicant. They urge that instead, the Constitution and the law give liberty and power to independent institutions to carry out their mandate and in particular, the 1 st Respondent is duty bound to exercise constitutional functions with regard to public interest.
On the above submission, the 1 st to 3 rd Respondents rely on the following authorities In the Matter of Interim Independence Electoral Commission (2011) eKLR, Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others [2015] eKLR, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, SC Application No. 2 of 2012, Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] eKLR, Michael Monari & Anor vs. The Commissioner of Police & 3 Others Miscellaneous Application 68 of 2011, Francis Mbugua vs. Commissioner of Police and 2 Others Petition No. 79 of 2012 and Paul Ng'ang'a Nyaga & 2 others v Attorney General & 3 others [2013] eKLR.
On the issue of concurrent proceedings in criminal and civil Courts, reliance is placed in the case of Amir Lodges Ltd & another v Mohammed Omar Shariff & another [2022] eKLR where the court held that the same was permissible unless it can be demonstrated that the prosecution of the criminal case will either result to infringement of the rights and fundamental freedoms of the accused persons or will lead to the contravention of the Constitution.
The 4 th and 5 th Respondents filed written submissions dated 12 th June 2024.
In their submissions, they challenge the locus standi of Heritage Flowers Limited to file the judicial review application seeking to quash and prohibit the prosecution of five individuals in Criminal Case No. E604 of 2023 (Republic v Shailesh Kumar Rai & 4 Others). They argue that the company is not an accused person and has not demonstrated authority, via a board or shareholder resolution, to institute the judicial review proceedings.
According to the 4th and 5th Respondents, the application, executed by the 1 st Interested Party, is a misuse of the company’s corporate identity to shield individuals from prosecution for serious offences incl
[...truncated]
THAT the Honourable Court be and is hereby pleased to issue a Judicial Review ORDER OF CERTIRARI to call-up, remove, deliver up to this Honourable Court and quash the impugned decision by the 1 st, 2 & 3 rd Respondents, reposed in the prosecution of the interested parties in Milimani Criminal Case No.E604 of 2023 (Republic V Shailesh Kumar Rai & 4 Others) instituted unlawfully on 28 th July,2023.
THAT the Honourable Court be and is hereby pleased to issue a Judicial Review ORDER OF PROHIBITION to restrain the 1 st ,2 nd and 3 rd Respondents or anyone claiming under or pursuant to their authority, from proceedings with the prosecution of the interested parties in Milimani Criminal Case No.E604 of 2023 (Republic v Shailesh Kumar Rai &4 Others) or any other such suit premised on the particular as instituted vide the charge sheet dated 28 th July,2023.
THAT Costs be provided for on a full indemnity basis.
The application is predicated on the statutory statement dated 11 th August 2023 and the verifying affidavit sworn on the even date by Mr. Shailesh Kumar Rai, the 1 st Interested Party and one of the Directors of the exparte applicant.
The Ex parte Applicant’s case is that the instigation of the criminal prosecution against the Interested Parties herein is a criminalization of a shareholder dispute between the 4 th Respondent Riyaz Punjani Muhamadali and the 1 st and 2 nd Interested Parties, Shailesh Kumar Rai and Ranjeeta Pandey Rai as shareholders of the Exparte Applicant company for which the Exparte Applicant has not lodged any complaint with the 2 nd and 3 rd Respondents, who are the DCI and the Inspector General of Police of the National police Service.
It is also the Exparte Applicant’s case that the criminal proceedings are contrived to coerce the 1 st and 2 nd Interested Parties to cede to the 4 th Respondent’s claim as pleaded and sought in Milimani High Court Commercial Case No.E894 of 2021 Punjani Riyaz Mahamadali v Shailesh Rai Kumar & Ranjeeta Pandey Rai.
It is deposed by the 1 st Interested Party that the Exparte Applicant, a reputable and leading exporter of floriculture, incorporated in the year 2014 is a limited liability company comprised of 3 shareholders/directors, constituting the 4 th Respondent Riyaz Punjani Muhamadali as a director in the Exparte Applicant company, holding 50 shares, the 1 st Interested Party who is the Applicant’s Managing Director and holder of 25 shares and the 2 nd Interested Party who is equally a director in the exparte Applicant company and holder of 25 shares.
It is also pleaded and deposed that the 1 st and 2 nd Interested Parties are husband and wife while the 3 rd and 4 th Interested Parties are employed by the Exparte Applicant within its finance and accounting departments respectively. It is also averred that the 5 th Interested Party is a limited liability company and the Applicant’s overseas agent.
According to Mr. Shailesh Kumar Rai, the charges preferred relate to alleged monies stolen from the Exparte Applicant whereas complaints of such monies missing have never been received by the Board of Directors nor has the same been raised by external auditors.
It is the Exparte Applicant’s case that all the offences particularized in the charge sheet dated 28 th July 2023 are founded on the 1 st Respondent’s-DPP’s decision to criminalize contractual documents entered into and/or witnessed by the Interested Parties. Further, that the validity and lawfulness of these documents is uncontroverted and as such, the 4 th Respondent is barred by the doctrine of privity of contract from challenging the same in his personal capacity.
The 1 st Interested Party further depones that the woes between the Interested Parties and the 4 th Respondent began when the 1 st Interested Party declined to advance to the 4 th Respondent a personal loan of Kshs.10,00,000/= from the Exparte Applicant company to enable the 4 th respondent pay the 5 th Respondent as he had obtained a loan of USD 290,000 from the latter.
It is claimed by the Interested Parties through the depositions by the 1 st interested party that when the request was declined, the 4 th Respondent vide a letter dated 1 st July 2021 tendered his resignation as Director and purported to sell his 50 shares to the 1 st and 2 nd Interested Parties at Kshs.200,000,000/=, which transfer notice was accepted by the 1 st and 2 nd Interested Parties pending valuation of shares by the Exparte Applicant’s auditors. However, that the 4 th Respondent communicated that he was not bound by the valuation of the said shares by auditors and demanded for the 1 st and 2 nd Interested Parties to submit an acceptance value of the shares.
It is further averred that in a turn of events, after the appointment of the 2 nd Interested Party as a Director, the 4 th Respondent withdrew his authority to the Board to sell his shares claiming that he was at liberty to sell his shares to a third party, the 5 th Respondent. The 4 th Respondent, it is deposed, started frustrating the operations of the Exparte Applicant and even shared confidential documents such as sales reports to competitors.
The Exparte Applicant’s further case is that the 4 th Respondent purported to forge minutes of the Board which purported to appoint the 5 th Respondent as a Director in the Applicant’s Board. The officers of the 2 nd Respondent are said to have raided the private residence of the 1 st and 2 nd Interested Parties and confiscated several items, which orders to search and seize were set aside, while a search and freeze order over the bank accounts of the 2 nd and 5 th Interested Parties was also issued by the court.
The Exparte Applicant’s further case is that after a long silence, the 1 st Interested Party was summoned by the 2 nd Respondent to confirm the contents of ‘unknown documents’ and that at the same time, the 3 rd and 4 th Interested Parties were arrested and reasons for the arrest were not disclosed.
According to the Exparte Applicant, the 1 st to 3 rd Respondents’ conduct amounts to a gross violation of the Interested Parties’ rights under Articles 27,28,29,39,40,47 and 50 of the Constitution as no evidence has been provided connecting the Interested Parties to the alleged conspiracy to defraud or forgery with regard to the operations of the Exparte Applicant.
It is also asserted that the maintenance of the impugned criminal proceedings exposed the Exparte Applicant and Interested Parties to reputational damage and incurring of daily loses. Further, that the Exparte Applicant faces imminent debt call-ups owing to the huge overdraft facility held with the Bank of India and that there is also a risk of being exposed to law suits from various suppliers of agro-chemical products.
The Ex parte Applicant also filed two further affidavits dated 19 th December 2023 and 4 th March 2024. In which affidavits the Exparte Applicant contends the 1 st Respondent has not discharged the evidential burden to justify prosecutorial discretion and has not controverted key averments in the Exparte Applicant’s affidavit.
The Exparte Applicant also states that the 1 st Respondent failed to objectively assess the totality of the evidence both for and against the Interested Parties and to satisfy himself that it established a realistic prospect of conviction.
Tat the criminal proceedings are alleged to be an abuse of the legal process, vexatious, oppressive and motivated by ulterior purposes. The Exparte Applicant asserts that court processes must be used honestly and in good faith and not as a tool for oppression of the Interested Parties for ulterior motives.
It is the Exparte Applicant’s further case that counts I-IV of the charge sheet pertain to offences allegedly occasioned upon the Ex parte Applicant. According to the Exparte Applicant, it is an abuse of process to approve charges related to alleged conspiracy to defraud and money laundering initiated by the 4 th Respondent without a complaint from the Exparte Applicant itself.
The charges, it is claimed, are in the nature of a complaint being pursued on behalf of the Ex parte Applicant, in blatant disregard of the proper legal avenue under section 238 of the Companies Act, 2015.
The deponent further asserts that as shareholders in the Exparte Applicant company, they have no proprietary rights to the company's property apart from the shares they own. It is also the Exparte Applicant’s case that the 1 st Respondent ignored the pending civil suit No. HCOMM E894 of 2021 which suit seeks the same prayers as those being pursued in the impugned trial court proceedings in Criminal Case No. E604 of 2023 risking conflicting outcomes and consequently, abuse of process. Further, that the Ex parte Applicant’s Articles and Memorandum of Association expressly allow it to conduct any business approved by the board of directors and that it has not received any requisition by its members to convene a meeting to rescind the lawful commission agreement as is by law required.
The Exparte Applicant also avers that 2 nd Respondent’s investigations and recommendation to charge the Interested Parties were conducted without confirming whether the Exparte Applicant had resolved to lodge the complaint.
The Exparte Applicant relies on Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC (KLR) to support its position that where either a civil or criminal claim is being employed to perpetuate ulterior motives of general to abuse the process of the court in whatever, manner, then criminal procedure cannot be invoked to aid the unlawful cause of action.
According to the Exparte Applicant, the 2 nd Respondent’s affidavit is tainted with falsehoods and it contradicts the contents of the complaint produced as annexure MM1 which evinces that the Exparte Applicant has 3 directors. The Exparte Applicant also states that it can conduct business with a quorum of 2 members present and as such, the issue of quorum cannot be a factual or legal foundation to mount any of the charges in the impugned charge sheet.
Mr. Shailesh Kumar Rai, the 1 st Interested Party, asserts that his deposing of affidavits as a shareholder is irrelevant as he was authorized by the Board of Directors to plead on behalf of the Applicant. He further claims that the impugned proceedings do not pursue any direct claim vested in him but are rather in the form of a derivative claim properly vested in the Exparte Applicant.
Mr. Shailesh also urges this Court to undertake a merit review having demonstrated the pleaded constitutional violations, pursuant to the holding in Edwin Harold Dayan & 3 Others v The Inspector General, National Police Service & 5 Others[Petition No.6(E007) OF 2022].
Responses
In response, the 1 st to 3 rd Respondents filed Grounds of Opposition dated 2 nd October 2023 and a Replying Affidavit sworn on 4 th October 2023 by Chief Inspector CI Martin Munene. In the affidavit, he deposes that the investigations and subsequent criminal proceedings against the Interested Parties is a lawful process. Further, that upon recommendations by FATF, the DCI formed the Financial Investigation Unit to investigate money laundering and to enforce the Proceeds of Crime and Anti-Money Laundering Act of 2009, (POCAMLA).
The 1 st to 3 rd Respondents contends that the investigations were based on a complaint by the 4 th Respondent as indicated in referral form dated 31 st March 2022. He also deposes that upon subjecting the evidence at hand to the public interest test and the evidentiary threshold test, the 1 st Respondent was satisfied that the evidence at hand supported the proposed charges.
Chief inspector Martin Munene avers that the allegations by the 4 th Respondent that the resolutions giving rise to a contract between the 5 th Interested Party and the Ex parte Applicant were fraudulent and forgery are captured by the cybercrime and forensic report and audit report. The 1 st and 2 nd Interested Parties are said to have, as a result of the forged resolution, signed a commission agreement without involving the majority shareholder/director (4 th Respondent) which agreement allowed for the deduction of 2% of total sale value.
The 2 nd Interested Party is said to have registered Rosalia Bloom Ltd the 5 th Interested Party where the 1 st Interested Party is also a signatory and that the purpose of Rosalia Bloom Limited is to siphon the 1 st and 2 nd Interested Parties’ ill-gotten gains from the fraudulent commission agreement.
The deponent for the 1 st to 3 rd respondents further avers that their investigations unearthed overwhelming evidence to support the charges levelled by the 1 st Respondent. Further, that the Interested Parties have not demonstrated how the 1 st to 3 rd Respondents violated their constitutional rights. CI Munene reiterates that the investigations culminating in the criminal proceedings were undertaken within the confines of the law and further, that the accused persons will be accorded a fair hearing and they will have their day in court. He further deposes that the 2 nd Respondent is not a party to the existing civil suit cited as Milimani High Court Commercial Case No. E894 OF 2021.
The 4 th Respondent Riyaz Punjani Muhamadali in his Replying Affidavit sworn on 27 th September 2023 states that the 1 st Interested Party has no locus standi to execute an Affidavit instituting a judicial review case. Further, that the Exparte Applicant cannot be used as a bargaining tool when officers are charged with criminal offences. Further, that the 1 st and 2 nd Interested Parties have been charged with criminal offences of stealing, forgery, conspiracy to defraud and money laundering which are not shareholder disputes but illegalities.
The 4 th Respondent deposes that the prosecution of the interested parties herein is not based on malice and that the accused persons will have their day in court before the trial court and if the evidence tendered is not sufficient, they will be acquitted. He further takes issue with the fact that the verifying affidavit in support of the application is sworn by the 1 st Interested Party making him on the one hand an accused person while on the other hand, he executes affidavits on behalf of the company to exonerate himself and his wife who is the 2 nd Interested Party.
The 2 nd and 5 th Interested Parties filed a Replying Affidavit sworn by 2 nd Interested Party. Upon examination by the court, I note that the affidavit is a word for word replica of the verifying affidavit sworn my Mr. Shailesh Kumar Rai, the 1 st Interested Party and as such, this Court will not reproduce the contents here, to avoid repetition and wasting of judicial time and resources.
The 3 rd and 4 th Interested Parties filed their Replying Affidavits both of which are sworn by the said parties on 5 th March 2024. This court observes that the two affidavits are also a replica of the verifying affidavit sworn by the 1 st Interested Party and as such, the court finds no need to repeat the contents of the said affidavits herein.
Submissions
The application was canvassed by way of written submissions. The Ex parte applicant filed written submissions dated 14 th May 2024 arguing that the core issue in the case is the exercise of prosecutorial discretion by the 1 st Respondent. It argues that the ODPP failed to justify this discretion adequately, as it only filed grounds of opposition , not a replying affidavit, thereby failing to controvert the applicant's sworn allegations.
The Exparte Applicant in support of this position relies on the cases of Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR , Attorney General & 6 others v Mohamed Balala & 11 others [2014] eKLR and Gideon Sitelu Konchellah v Julius Lekakeny ole Sunkuli & 2 others [2018] eKLR . It maintains that grounds of opposition, being unsworn, are insufficient to counter affidavit evidence.
On the substantive issue, the applicant submits that although the ODPP is independent under Article 157(10) of the Constitution, it must act within legal limits and be guided by public interest, justice, and the need to prevent abuse of process as stipulated under Article 157(11).
The Exparte applicant relies on the cases of Edwin Harold Dayan supra , Michael Sistu Mwaura Kamau v EACC & 4 others [2017] eKLR and Republic v Director of Public Prosecutions & 2 others; Evanson Muriuki Kariuki (interested party); Ex parte James M. Kahumbura [2019] eKLR to demonstrate that prosecutorial discretion is not absolute and may be reviewed if abused. The Applicant also relies on the Kahumbura case where the court defined abuse of process as a situation where the prosecution is so unjust or improper that, despite the case being otherwise legally sound, the court ought to prevent it from going forward.
Reliance is also placed on the case of Diamond Hashal Lalji & another v Attorney General & 4 others [2018] eKLR citing with approval the case of Jago v District Court (NSW) 168 LLR 23, 87 ALR 57) , where Brennan J explained that abuse of process arises when court proceedings are initiated for reasons that the law does not recognize as legitimate.
The Exparte Applicant further submits that court processes must be used properly, honestly and in good faith and must not be abused or employed to settle personal scores. It relies on the case of Rosemary Wanja Mwagiru & 2 others v Attorney General & 3 others [2013] eKLR to support this position.
The Exparte Applicant further relies on Republic v Attorney General Ex parte Kipngeno arap Ngeny, Civil Application No. 406 of 2001 and Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another [2021] eKLR , arguing that prosecutorial powers must be exercised with caution to avoid oppressive or vexatious prosecutions lacking a prima facie case.
The Exparte Applicant also submits that the charges against the Interested Parties cannot be sustained without a direct complaint by it. It relies on the case of Director of Public Prosecutions v Attorney General & 12 Others, Civil Appeal 206 of 2016 [2022] KECA 397 KLR , where the court is said to have reiterated this position.
The Exparte Applicant stresses that, being a separate legal entity from its members, can only act through resolutions of its members at a general meeting or through its agents, as was established in the case of Nextgen Office Suites Ltd & another v Netcom Investments Limited & another, Shah Minakshi Navichandra [2021] eKLR .
Regarding derivative claims, the Exparte Applicant relies on sections 238 and 239 of the Companies Act and the cases of Ghelani Metals Limited & 3 others v Elesh Ghelani Natwarlal & another [2017] eKLR and Nextgen Office Suites Ltd supra.
According to the Exparte Applicant, the law is not silent in addressing scenarios where a disgruntled shareholder may be keen on pursuing remedies vested in a company. Further, that the position in law regarding the pursuit of an indirect or derivative claim by a disgruntled member of a company is well settled under sections 238 and 239 of the Companies Act which requires that derivative claims, in any form, must be pursued explicitly under the Companies Act, which reserves the forum as being at the High Court.
It is also the Exparte Applicant’s submission that this judicial screening protects the company from a multiplicity of proceedings by a multitude of individual shareholders and other applicants concerning the same wrong inflicted on the company.
The Exparte Applicant invites the court to exercise its inherent power to prevent abuse of court process that is vexatious, oppressive, or otherwise improper. The Applicant relies on the decision in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR , where the court held that all courts possess inherent jurisdiction to prevent their processes from being abused as instruments of oppression.
The Exparte Applicant submits that the impugned criminal proceedings constitute an abuse of process, instituted by the ODPP at the behest of the 4 th Respondent in blatant disregard of company law principles requiring derivative claims under the Companies Act and before the High Court.
The Exparte Applicant alleges forum shopping and misuse of criminal processes to gain advantage in ongoing shareholders’ disputes, citing the Supreme Court’s position in Edward Dande case supra and Jirongo case supra that criminal proceedings should not be used to coerce compromise of pending civil proceedings.
According to the Exparte Applicant, the timing and conduct of the 4 th Respondent’s complaint demonstrates that the proceedings were intended to harass, intimidate and oppress the Interested Parties, akin to the “galloping litigant” phenomenon condemned in the case of Rosemary Wanja Mwagiru & 2 others v Attorney General [2013] eKLR .
The Exparte Applicant further submits that the impugned charges rest on unfair, partisan investigations and lack a reasonable basis, violating the Interested Parties’ right to a fair trial as emphasized in Republic v Director of Public Prosecutions & 2 others; Evanson Muriuki Kariuki; Ex parte James M. Kahumbura .
The Exparte Applicant also relies on the case of Thomas Mboya Oluoch & another v Lucy Muthoni Stephen & another [2005] eKLR , where the court observed that litigation founded on dubious and self-serving evidence constitutes malicious prosecution and abuse of the State’s prosecutorial machinery.
The 1 st to 3 rd Respondents also filed submissions on 3 rd October 2023.
The 1 st Respondent submits that the decision to charge in Criminal Case No. 604 of 2023 – Republic v Shaillesh Kumar Rai & 4 Others was lawful, independent, and grounded in both legal and evidentiary standards. That Article 157 (10) of the Constitution of Kenya, 2010, empowers the DPP to institute criminal proceedings without requiring consent from any person or authority and mandates independence from external direction or control.
The powers under the said Article, it is submitted, are regulated by the Office of the Director of Public Prosecutions Act, No. 3 of 2013 and the Decision to Charge Guidelines, 2019. The Guidelines it is submitted require that the 1 st Respondent subjects all evidence to a two-stage test (Evidential and Public Interest) for making charging decisions.
The evidential test is said to require sufficient, credible, and reliable evidence for a realistic prospect of conviction. The public interest test considers broader justice concerns. It is submitted that the evidence in Criminal Case No. 604 of 2023 satisfied both tests. Further that the DPP exercised discretion based on objective analysis and the wider interest of justice.
The 1 st to 3 rd Respondents submit that the Ex Parte Applicant herein has not demonstrated how, if at all, the 1 st Respondent made the decision to charge the 1 st, 2 nd , 3 rd and 4 th Interested Parties unlawfully and that all that it has done is to claim that its rights were infringed without specifying which rights were infringed and how the 1 st to 3 rd Respondents infringed these rights of the Exparte Applicant.
The 1 st to 3 rd Respondent further submit that the Criminal Procedure Code clearly states that a civil suit is not a bar to criminal proceedings and as such any averment by the Ex Parte Applicant that the existence of Milimani High Court Commercial Case No. E894 of 2021-Punjani Riyaz Mahamadali v Shailesh Rai Kumar & Ranjeeta Pandey Rai is grounds to bar the prosecution of Criminal Case No. 604/2023 Republic v Shaillesh Kumar Rai & 4 Others by the 1 st Respondent is not based on any good law. Reliance is placed in the case of James Mutisya & 5 Others v Alphayo Chimwanga Munala & 2 Others [2021] eKLR .
The 1 st to 3 rd Respondents also submit that there is no requirement in any written law that a complaint must be accompanied by a Company Resolution. Second, that when a director an offence commits they cannot hide behind the lack of a resolution. This, in their view, would be tantamount to expecting an accused person to report himself, terming the arguments by the 1 st Interested Party to be absurd. Third, that Section 23 of the Penal Code requires that where a person is charged with the management and control of a company, their liability is personal.
The 1 st to 3 rd Respondents also submit that a complainant is one who lodges a complaint with the police or any other lawful authority that some offense or criminal act has been committed. In addition, that the Complainant in Criminal trials includes a prosecutor as was held in the case of Republic vs. Mwaura 1979 KLR 209 . This position was also reiterated by the courts in the cases of Ruhi vs. Republic 1985 KLR 373 and Roy Richard Elimma & Another vs. Republic CR. APPEAL N0. 67 of 2002.
It is submitted that the complainant in the criminal case is a natural person, Riyaz Punjani, C/O Heritage Flowers Limited, and that a criminal prosecution does not require a company resolution. The1st to 3 rd Respondents state that criminal trials are determined by the weight of evidence and the law, not by the identity of the complainant or the manner in which the complaint was made.
They also submit that the Directorate of Criminal Investigations is obligated to act on any complaint it receives and that the presence or absence of a company resolution does not invalidate the evidence supporting the charges. At most, that the lack of a company resolution may serve as a defense to be tested during trial.
They argue that more so, the charges conspiracy, stealing, money laundering and forgery are brought against the Interested Parties in their individual capacities and cannot be resolved based on a company resolution.
It is also submitted that the Applicant has not produced the relevant Occurrence Book (OB) entry to substantiate the claim regarding the absence or presence of a resolution. The 1 st to 3 rd Respondents also argue that the 1 st Interested Party was running the company unilaterally and is now aggrieved that the investigation has uncovered evidence of alleged misconduct he believed would remain hidden.
The 1 st to 3rd Respondents submit that, based on the Applicant’s own arguments, there is no company resolution by the Interested Party authorising the commencement of these judicial review proceedings. They argue that judicial review, being civil in nature, requires a formal resolution from the company or its directors indicating the time, place, and minutes of the meeting where the decision to file the proceedings was made.
They note that none of the Applicant’s annexures (SRK-1 to SRK-17) contains such a resolution. Specifically, that SRK-1, dated 1 st April 2019 which predates the alleged offences (which occurred between September 2021 and August 2022) and therefore cannot be construed, even liberally, as authorisation for the present proceedings. To support this position, the 1 st to 3 rd Respondents rely on the case of Bugerere Coffee Growers Limited -versus- Sebaduka & Another [1970] EA 147.
It is submitted that the Applicant must demonstrate with adequate precision the rights that have been violated as was held by the courts in the cases of Anarita Karimi Njeru v Attorney General (1979) KLR 154 and Trusted Society of Human Rights Alliance v AG. & 2 others [2012] eKLR.
The 1 st to 3 rd Respondents also submit that independent institutions such as the 1 st Respondent are not inhibited from carrying out their functions based on one interpretation of the opinion of the Interested Party and Applicant. They urge that instead, the Constitution and the law give liberty and power to independent institutions to carry out their mandate and in particular, the 1 st Respondent is duty bound to exercise constitutional functions with regard to public interest.
On the above submission, the 1 st to 3 rd Respondents rely on the following authorities In the Matter of Interim Independence Electoral Commission (2011) eKLR, Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others [2015] eKLR, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, SC Application No. 2 of 2012, Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] eKLR, Michael Monari & Anor vs. The Commissioner of Police & 3 Others Miscellaneous Application 68 of 2011, Francis Mbugua vs. Commissioner of Police and 2 Others Petition No. 79 of 2012 and Paul Ng'ang'a Nyaga & 2 others v Attorney General & 3 others [2013] eKLR.
On the issue of concurrent proceedings in criminal and civil Courts, reliance is placed in the case of Amir Lodges Ltd & another v Mohammed Omar Shariff & another [2022] eKLR where the court held that the same was permissible unless it can be demonstrated that the prosecution of the criminal case will either result to infringement of the rights and fundamental freedoms of the accused persons or will lead to the contravention of the Constitution.
The 4 th and 5 th Respondents filed written submissions dated 12 th June 2024.
In their submissions, they challenge the locus standi of Heritage Flowers Limited to file the judicial review application seeking to quash and prohibit the prosecution of five individuals in Criminal Case No. E604 of 2023 (Republic v Shailesh Kumar Rai & 4 Others). They argue that the company is not an accused person and has not demonstrated authority, via a board or shareholder resolution, to institute the judicial review proceedings.
According to the 4th and 5th Respondents, the application, executed by the 1 st Interested Party, is a misuse of the company’s corporate identity to shield individuals from prosecution for serious offences incl
[...truncated]