'Introduction
1. The Petition dated 22nd September 2021, is supported by the Petitioner’s affidavit in support of even date.
2. The Petitioner challenges an investigation lodged against him with an intention to prosecute him alleging that it is based on unsubstantiated and malevolent claims that have no legal basis and hence is in violation of his constitutional rights.
3. He thus seeks the following reliefs:
a) A declaration be made that the intended acts of the Respondents to arrest, arraign, charge and or prosecute the Petitioner herein Hon. Dennis Mungai Kivuti over his involvement as an advocate in the dispute over land known as LR No. Gaturi/Githimu/413 in the Kerugoya ELC Case No. 237 of 2013, Embu ELC No. 31 of 2015 and the Runyenje''s Succession Cause no.171 of 2013 is unreasonable, an abuse of the prosecutorial powers and certainly inimical to Article 157(11) of the Constitution as read together with Section 4 of the Office of the Director of Public Prosecutions Act.
b) A judicial review order of prohibition do issue permanently restraining/prohibiting the Respondents either by themselves, agents, officers or employees from arresting, arraigning, charging and/ or prosecuting and/ or continuing any prosecution of the Petitioner herein Hon. Dennis Mungai Kivuti over his involvement as counsel/advocate in the dispute over land known as LR No. Gaturi/Githimu/413 and Gaturi/Githimu/7923 in the Kerugoya ELC Case no.237 of 2013, Embu ELC No.31 of2015 and the Runyenje''s Succession Cause No.171 of 2013.
c) An order for costs and interests at the Court rates.
d) Compensation for the threats and violation of the Petitioner’s rights and any other relief that the Court will deem just and fair in the circumstances.
Petitioner’s Case
4. The Petitioner states that he is Judicial Officer currently serving as a Principal Magistrate at Milimani Commercial Courts in Nairobi.
5. He deponed that sometime in 2016 and prior to his appointment as a Judicial Officer he practiced law in the firm of Mungai Kuvuti and Company Advocates where he served hundreds of residents of Embu as his clients.
6. Among his clients was one Gatumo Muruga (now deceased), whom he represented before the Kerugoya Environment and Land Court in Case No. 237 of 2013.
7. For context, the deceased had lodged the suit against one Perpetual Njoki Githongo and Wambui Ireri who were the defendants. The dispute related to the registration and ownership of a seven-acre piece of land known as L.R. No. GATURI/GITHIMU/413 and an alleged fraudulent transfer of the land from the late Wauga Muruga alias Wauga Waraga to the defendants.
8. Prior to this, the deceased had obtained limited grants in the High Court Succession Cause No.36 of 2012 in the Estate of Wauga Muruga, so as to file a suit for the recovery of the land as it had been fraudulently transferred to the defendants.
9. The Petitioner depones that he agreed with the deceased that since he was not financially able to pay the legal fees, he would compensate with him with an acre of the said land as consideration for the legal services rendered. Agreeable to the terms, the Petitioner proceeded to represent the deceased and his family’s interests in the matter.
10. He avers that the High Court in Kerugoya cancelled and removed the entry of Perpetual Njoki Githongo and Abel Murimi (minor) as the registered owners of land known as Parcel No. Gaturi/Githimu/413 and restored the name of Wauga Muruga as the owner of the land. The Petitioner avers that preceding his passing, the deceased introduced him to his family and informed them that he was supposed to get an acre of the land as previously agreed.
11. It is noted that thereafter in 2015, the land dispute was transferred from Kerugoya Law Courts to Embu, once an Environment and Land Court was established there. The matter was then referenced as ELC No.31 of 2015 between Gatumu Muruga and Perpetual Njoki Githongo.
12. The deceased passed on in 2017 and his name in the suit substituted with those of his wives, Miriam Wanjiru Gatumo and Evalina Wanjira Gatumo. At this time, the suit involved succession of the estate to the wives and children of the deceased.
13. The Petitioner informs that he continued to represent the family in the matter formerly Kerugoya ELC N0.237 OF 2013 now Embu ELC No.31 of 2015 and Runyenje''s Succession Cause no.171 of 2013.Upon fulfilling his legal duty to the family of the deceased, he avers that they parted ways and was soon after appointed as a Judicial Officer.
14. He depones that sometime in 2020 he began receiving incessant demands from the Embu County Regional Police Offices demanding that he avail himself for questioning over the subject land. He presented himself on 19th May 2020 and recorded his statement detailing all the facts of the case.
15. Aggrieved by the police actions, the Petitioner through his Counsel, AKO Advocates LLP wrote to the 3rd Respondent on 4th June 2020 complaining about the intimidation he was receiving and the misguided investigations.
16. In addition, he wrote to the 1st Respondent on 31st August 2021 informing of the malicious concerted efforts by the 2nd and 3rd Respondents officers to cause his prosecution without a reasonable cause.
17. The Petitioner claims that as Counsel, he was not able to tell whether or not the documents that were availed to him by his clients were forged as had no way of authenticating the same. He claims that after the defendants lost the High Court case, instead of preferring an appeal, they resorted to contracting corrupt police officers to cause the deceased family and him sleepless nights due to their concerted efforts to maliciously charge them for alleged fraud.
18. The Petitioner asserts that the intended prosecution is preposterous as he was only discharging his lawful duty as an advocate. Moreover, he notes that the anticipated arrest is unfair as the accusations are based on documents that were not shown to him by the investigating officers at the time he was recording his statement. He adds that he is reasonably disadvantaged, as he cannot retrieve every single document related to this matter.
19. In his view, the intended prosecution amounts to an abuse of the 1st Respondent’s powers and are a threat to his constitutional rights as is evidently founded on ulterior motives. On this premise, he urges the Court to intervene so as to safeguard him against abuse of police and prosecutorial powers and which will affect his reputation and deny justice to Kenyans that look to him to dispense justice.
1st, 2nd and 3rd Respondents’ Case
20. These Parties’ filed their response through their Grounds of Opposition dated 25th October 2021 on the premise that:
i. Article 157 of the Constitution is to the effect that the 1st Respondent shall institute criminal proceedings only where a criminal offence has been committed.
ii. Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed.
iii. It cannot therefore be said that the 2nd Respondent violated the rights and liberty of the Applicant while in fact they were carrying out their duties within the ambit of the law.
iv. In the instant case, the decision to charge or not to charge the Petitioner has not been made by the 1st Respondent and therefore the Applicant cannot claim protection of the Constitution under Articles 48, 49, 50. To require the Applicant to submit to investigations/prosecution does not in any way amount to a breach of his fundamental rights.
v. It is in the public interest that complaints made to the 2nd Respondent are investigated and the perpetrators of crimes are charged and prosecuted.
vi. The Applicant shall enjoy the right to equal protection of the law and fair administrative action as matters are decided on merit.
vii. The Application has not met the threshold to warrant conservatory orders and the Courts should not interfere with the exercise and discretion of the 1st Respondent in making prosecutorial decision.
viii. The Court should be shy in accepting invitations by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in those cases where such organs and offices are acting ultra vires, outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the doctrine of proportionality in decision making.
ix. In the instant case there is absolutely no reason for the Court to bar investigations and prohibit prosecution since none of the foregoing grounds exists to justify such a decision.
x. The prayers being sought by the Applicant are unconstitutional as they seek to prevent the 1st, 2nd and 3rd Respondent from exercising their mandate as provided for by the law.
4th Respondent’s Case
21. In reaction to the Petition, the 4th Respondent filed a Notice of Preliminary Objection. The Preliminary Objection dated 18th November 2024 is based on the grounds that:
i. By dint of Article 165(5) of the Constitution the Honorable Court lacks the Jurisdiction to hear and determine the both the Application and Petition dated 22nd September, 2021 herein since it is a dispute relating to the environment and the use and occupation of, and title to, land by virtue of the provisions of Article 165(5) of the Constitution which provides that “the High Court shall not have jurisdiction in respect of matters- (b) failing within the jurisdiction of the Court contemplated in Article 162(2)”.
ii. By dint of Section 13(1) of the Environment and Land Court Act No. 19 of 2011 which provides that the Environment and Land Court shall have original and appellant jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution.
iii. By dint of Article 162(2) of the Constitution, the mandate of stipulated Court is outlined under Article 165(3) of the Constitution.
iv. By dint of Section 13(7) of the Environment and Land Court Act No. 19 of 2011 which provides that the Environment and Land Court can issue award of interim order, injunction, orders for restriction and compensation, which provision if read together with the provisions of Article 162(2) of the Constitution oust the jurisdiction of the Court to hear and determine this case.
v. Both the Application and Petition did not disclose any constitutional questions for the determination by this Court neither does it meet the principles on pleadings in constitutional petitions as enunciated in Anarita Karimi Njeru v Republic [1979] 1 KLR 154 and augmented in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR.
Petitioner’s Submissions
22. Musyoki Mogaka and Company Advocates for the Petitioner filed submissions dated 18th January 2024 and supplementary submissions dated 2nd March 2024. Counsel identified the issues for argument as:
“whether the Petitioners prayers for a declaration and an order of prohibition are merited, whether an advocate may be prosecuted for discharge of their duty as Counsel and whether the Petitioner is entitled to an order for compensation.”
23. Counsel on an opening note submitted that the Petitioner seeks to assert that the rule of law prevails and that state agencies are custodians of the powers donated to them by law and thus these powers should not be exercised to vex and harass. Counsel highlighting the Respondents constitutional mandate noted that the Respondents are required to exercise their powers conscientiously. Counsel pointed out that in this suit there is no apparent complainant and the Respondents actions amount to ulterior motives with the intent of vexing, harassing and blackmailing a judicial officer.
24. Reliance was placed in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR where the Supreme Court emphasized that:
“Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders…. 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.”
25. Comparable dependence was placed in Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR, Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLR and R.P. Kapur v State of Punjab AIR 1960 SC 866.
26. In the present proceedings, Counsel submitted that the Petitioner invokes the element of public interest. This is owing to the fact that the principle of advocate-client privilege forms the backbone of court litigation, legal practice and the rule of law. As such, the principle should not be varied as it would pose a grave danger to the system of administration of justice and the conduct of legal affairs.
27. On the second issue, Counsel underscored that the United Nations Basic Principles on the Role of Lawyers under Rule 16 to 18 recognize the danger that lawyers face as their carry out their legal obligations. For this reason, these Rules urge governments to guard their lives as guardians of the rule of law. Counsel noted that this Rules have been adopted in various International laws such as Principle 12 of UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (''UN Guidelines on Legal Aid'') (2012) and Principle I of Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) and which Kenya is bound by.
28. Like dependence is placed in Standards for the Independence of the Legal Profession (''IBA Standards'') (1990).
29. In Kenya, Counsel submitted that the Law Society of Kenya in its Code of Ethics and Conduct for Advocates (2016) recognizes professional independence as an overriding principle and recognizes that this independence requires that the Advocate be free from undue influence arising from political, financial, career, personal, emotional or other considerations. Further reliance was placed in Akusala A. Boniface v OCS Langata Police Station & 4 others [2018] eKLR where it was held that:
“Needless to say this court takes judicial notice of the fact that lawyers in this Country have, in recent past, been victimized by police officers while in the normal course of their duties of representing their clients. In this regard the case of lawyer Willy Kimani, who was brutally murdered to circumstances that are reported and alleged to be in the hands of police officers while in the course of representing his client is a case in point which this court cannot ignore. While in the instant case there was no disappearance and murder, the question that this court must ask itself is what if the worst happened" Who will stand up for the rights of the downtrodden in the society" It would appear that the actions of the police if not checked would make the legal practice a matter of life and death."
30. Comparable dependence was placed in Mohamed Feisal& 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR.
31. On this premise, Counsel urged the Court to preserve the dignity of an advocate as a legal representative since if they are prosecuted for performing their duties, the same will have a grave impact on legal representation. According to Counsel, the Respondents acting at the behest of the defendants in the subject land suit, so as to instigate an illegal criminal suit, is an abuse of the process.
32. On the final issue, Counsel submitted that indeed the Petitioner’s rights had been violated and thus was entitled to an order of compensation against the Respondents. Reliance was placed in Edward Akong''o Oyugi & 2 others v Attorney General [2019] eKLR where it was observed that:
“The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting ''compensation'' in proceedings under Article 23 of the constitution or seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ''monetary amends'' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen or by subjecting the citizen to acts which amount to infringement of the constitution.”
33. Similar dependence was placed in Dendy vs University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 and Smt. Nilabati Behera Alias Lalit vs State Of Orissa And Ors, AIR 1993 SC 1960.
1st, 2nd and 3rd Respondents Submissions
34. Senior Principal Prosecution Counsel, Achochi Henry Nyabuto filed submissions dated 24th October 2024.
35. Counsel stated that the Petitioner had not been charged for the offences related to the impugned investigation and neither had the decision to charge him been made. On this basis, Counsel submitted that the Petition is premature and offends the doctrine of ripeness. Counsel urged the Court to restrain itself from determining the issue as it is too early and is simply out of apprehension.
36. Reliance was placed in Kiriro wa Ngugi & 19 Others v Attorney General & 2 others (2020) eKLR where the Court held that:
“The doctrine focuses on the time when a dispute is presented for adjudication….Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies”.
37. Like dependence was placed in National Assembly of Kenya & Another v The Institute for Social Accountability & 6 others [2017] KECA 170 (KLR).
38. Counsel equally accused the Petitioner of failing to exhaust the administrative remedies available to him when he was aggrieved by these Respondents’ actions, before approaching this Court. Dependence was placed in Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR where it was held that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…”
39. Comparable dependence was placed in Anthony Miano & others v Attorney General & others [2021] eKLR.
40. That said, Counsel underscored that Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed. As such, summoning the Petitioner for questioning was in line with the law and the principles of natural justice. Reliance was placed in Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR where it was held that:
“Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the petitioner’s right unless the investigations have been conducted unprocedurally and/or for ulterior motive.”
41. Comparable reliance was placed in Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012)eKLR and Muema Mativo v Director of Criminal Investigation & 2 others; HFC Limited (Interested Party) [2021] KEHC 9000 (KLR).
42. Counsel further submitted that this Court should exercise its jurisdiction sparingly in interference of the Respondents’ mandate unless breach is exposed. Nonetheless, Counsel stressed that the 1st Respondent is yet to exercise his mandate.
43. To buttress this point reliance was placed in Douglas Maina Mwangi vs Kenya Revenue Authority and Another HC Constitutional Petition No. 528 of 2013 where it was held that:
“When dealing with the decision as to whether or not to prosecute, the office of DPP exercises independent judgment and the court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process…I do not find any reason or ground to intervene in that decision nor is it the obligation of the court to supervise the minutae of investigation and prosecution.”
44. Equal dependence was placed in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR.
45. In addition, Counsel submitted that the Petitioner seeks prohibitory orders which in essence prevent a public body or Court from acting beyond its powers in the future. Counsel stressed that this order is discretionary and only tenable where a public body or official acted in excess of their powers. Counsel contended that in absence of demonstrated illegality, irrationality or impropriety, this prayer must fail.
46. Reliance was placed in Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) [2022] KEHC 43 (KLR) where it was held that:
“The power to stop or quash police investigations on a suspected offender must be exercised sparingly and with circumspection and in the rarest of rare cases and the court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power to quash investigations is immense since it amounts to exonerating a suspect before trial. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution”.
47. Comparable dependence was placed in Republic vs The Chief Magistrate, Milimani and 2 Others Ex. P Tusker Mattresses Ltd and 3 Others HC Misc. Civil Application No. 179 of 2012 and Kuria & others versus AG [2002] 2 KLR 69.
4th Respondents Submissions
48. In support of its Preliminary Objection, the 4th Respondent filed submissions dated 18th November 2024 through Litigation Counsel, Wanja Wanjiru. Counsel accentuated the main issues for discussion as: whether the Court has the jurisdiction to hear and determine this matter by virtue of Article 165(5) of the Constitution and Article 162(2) (b) of the Constitution and whether the Petition has been pleaded with specific particularity thus meeting the threshold how the 4th Respondent have violated the Petitioner’s rights.
49. On the first issue, Counsel submitted that the Petition was filed contrary to the provisions of Article 165(5) of the Constitution, which bar this Court from exercising the jurisdiction of the Special Courts, in this case the Environment and Land Court. Counsel pointed out that the claim before this Court is a matter provided for in the Land Registration Act, 2012, being the determination on the subject matter or/and land in L.R No. Gaturi/Githimu/143.
50. Counsel stressed that by dint of Section 13(7) of the Environment and Land Court Act, the Environment and Land Court can issue an award of interim order, conservatory orders, injunction, orders for restriction and compensation, among which are sought herein. For this reason, Counsel submitted that this Court does not have jurisdiction to entertain this matter neither can it arrogate itself the same.
51. Reliance was placed in Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others [2018]eKLR where it was held that:
“The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2) (b) of the Constitution and Section 13 of the Act. In this regard, my view is that the intention in the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. The other closely related issue is the jurisdiction of the Environment and Land Court to deal with issues relating to constitutional interpretation and enforcement of constitutional remedies especially in respect to matters which fall within the ambit of the Environment and Land Court. This is clearly provided for under Section 13 (3) of the Act. Sub- section 7 (b) above allows the Environment and Land Court to grant prerogative orders. It follows that the Environment and Land Court can entertain this Judicial Review application challenging the decision of the Respondent revoking its title to land and grant the prerogative reliefs sought.”
52. Similar reliance was placed in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1 and In the Matter of Interim Independent Electoral Commission [2011] eKLR.
53. On the second issue, Counsel submitted that despite the Petitioner asserting violation of Articles 2, 10, 22, 23, 27, 29, 47, 48, 50, 157 and 258 of the Constitution, he failed to prove how the 4th Respondent contravened these rights as required in Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR).
54. Comparable reliance was placed in Daniel Chacha Muriri vs Attorney General (2012) eKLR.
Analysis and Determination
55. It is my considered opinion that the issues that arise for determination are as follows:
i. Whether this Court has jurisdiction to entertain this matter.
ii. Whether the petitioner is being victimized for performing his role as an advocate in violation of his constitutional rights.
iii. Whether the Petitioner is entitled to the relief sought.
Whether this Court has jurisdiction to entertain this matter.
56. Jurisdiction denotes the legal competence to hear and determine a matter. The Supreme Court in Macharia & another v Kenya Commercial Bank limited & 2 others [2012] KESC 8 (KLR) guided as follows:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
57. The 4th Respondent argued that by dint of Article 165 (5) as read with Article 162 (2) (b) and Section 13 of the Environment and Land Court Act, this Court lacks jurisdiction to entertain this matter because it relates to a land dispute.
58. The Petitioner opposed this argument underscoring that the Petition is founded on violation of his fundamental rights and freedoms arising from a maliciously instigated investigation process which has nothing to do with land.
59. Article 162(2)(b) of the Constitution provides as follows:
Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
a) ….; and
b) the environment and the use and occupation of, and title to, land.
60. The Parliament as empowered by Article 162 of the Constitution enacted the Environment and Land Court Act which deals exclusively with matters falling within its ambit. The Jurisdiction of the Court is defined under Section 13 of the Act as follows:
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—
a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
b) relating to compulsory acquisition of land;
c) relating to land administration and management;
d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
e) any other dispute relating to environment and land.
(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local trib
[...truncated]
1. The Petition dated 22nd September 2021, is supported by the Petitioner’s affidavit in support of even date.
2. The Petitioner challenges an investigation lodged against him with an intention to prosecute him alleging that it is based on unsubstantiated and malevolent claims that have no legal basis and hence is in violation of his constitutional rights.
3. He thus seeks the following reliefs:
a) A declaration be made that the intended acts of the Respondents to arrest, arraign, charge and or prosecute the Petitioner herein Hon. Dennis Mungai Kivuti over his involvement as an advocate in the dispute over land known as LR No. Gaturi/Githimu/413 in the Kerugoya ELC Case No. 237 of 2013, Embu ELC No. 31 of 2015 and the Runyenje''s Succession Cause no.171 of 2013 is unreasonable, an abuse of the prosecutorial powers and certainly inimical to Article 157(11) of the Constitution as read together with Section 4 of the Office of the Director of Public Prosecutions Act.
b) A judicial review order of prohibition do issue permanently restraining/prohibiting the Respondents either by themselves, agents, officers or employees from arresting, arraigning, charging and/ or prosecuting and/ or continuing any prosecution of the Petitioner herein Hon. Dennis Mungai Kivuti over his involvement as counsel/advocate in the dispute over land known as LR No. Gaturi/Githimu/413 and Gaturi/Githimu/7923 in the Kerugoya ELC Case no.237 of 2013, Embu ELC No.31 of2015 and the Runyenje''s Succession Cause No.171 of 2013.
c) An order for costs and interests at the Court rates.
d) Compensation for the threats and violation of the Petitioner’s rights and any other relief that the Court will deem just and fair in the circumstances.
Petitioner’s Case
4. The Petitioner states that he is Judicial Officer currently serving as a Principal Magistrate at Milimani Commercial Courts in Nairobi.
5. He deponed that sometime in 2016 and prior to his appointment as a Judicial Officer he practiced law in the firm of Mungai Kuvuti and Company Advocates where he served hundreds of residents of Embu as his clients.
6. Among his clients was one Gatumo Muruga (now deceased), whom he represented before the Kerugoya Environment and Land Court in Case No. 237 of 2013.
7. For context, the deceased had lodged the suit against one Perpetual Njoki Githongo and Wambui Ireri who were the defendants. The dispute related to the registration and ownership of a seven-acre piece of land known as L.R. No. GATURI/GITHIMU/413 and an alleged fraudulent transfer of the land from the late Wauga Muruga alias Wauga Waraga to the defendants.
8. Prior to this, the deceased had obtained limited grants in the High Court Succession Cause No.36 of 2012 in the Estate of Wauga Muruga, so as to file a suit for the recovery of the land as it had been fraudulently transferred to the defendants.
9. The Petitioner depones that he agreed with the deceased that since he was not financially able to pay the legal fees, he would compensate with him with an acre of the said land as consideration for the legal services rendered. Agreeable to the terms, the Petitioner proceeded to represent the deceased and his family’s interests in the matter.
10. He avers that the High Court in Kerugoya cancelled and removed the entry of Perpetual Njoki Githongo and Abel Murimi (minor) as the registered owners of land known as Parcel No. Gaturi/Githimu/413 and restored the name of Wauga Muruga as the owner of the land. The Petitioner avers that preceding his passing, the deceased introduced him to his family and informed them that he was supposed to get an acre of the land as previously agreed.
11. It is noted that thereafter in 2015, the land dispute was transferred from Kerugoya Law Courts to Embu, once an Environment and Land Court was established there. The matter was then referenced as ELC No.31 of 2015 between Gatumu Muruga and Perpetual Njoki Githongo.
12. The deceased passed on in 2017 and his name in the suit substituted with those of his wives, Miriam Wanjiru Gatumo and Evalina Wanjira Gatumo. At this time, the suit involved succession of the estate to the wives and children of the deceased.
13. The Petitioner informs that he continued to represent the family in the matter formerly Kerugoya ELC N0.237 OF 2013 now Embu ELC No.31 of 2015 and Runyenje''s Succession Cause no.171 of 2013.Upon fulfilling his legal duty to the family of the deceased, he avers that they parted ways and was soon after appointed as a Judicial Officer.
14. He depones that sometime in 2020 he began receiving incessant demands from the Embu County Regional Police Offices demanding that he avail himself for questioning over the subject land. He presented himself on 19th May 2020 and recorded his statement detailing all the facts of the case.
15. Aggrieved by the police actions, the Petitioner through his Counsel, AKO Advocates LLP wrote to the 3rd Respondent on 4th June 2020 complaining about the intimidation he was receiving and the misguided investigations.
16. In addition, he wrote to the 1st Respondent on 31st August 2021 informing of the malicious concerted efforts by the 2nd and 3rd Respondents officers to cause his prosecution without a reasonable cause.
17. The Petitioner claims that as Counsel, he was not able to tell whether or not the documents that were availed to him by his clients were forged as had no way of authenticating the same. He claims that after the defendants lost the High Court case, instead of preferring an appeal, they resorted to contracting corrupt police officers to cause the deceased family and him sleepless nights due to their concerted efforts to maliciously charge them for alleged fraud.
18. The Petitioner asserts that the intended prosecution is preposterous as he was only discharging his lawful duty as an advocate. Moreover, he notes that the anticipated arrest is unfair as the accusations are based on documents that were not shown to him by the investigating officers at the time he was recording his statement. He adds that he is reasonably disadvantaged, as he cannot retrieve every single document related to this matter.
19. In his view, the intended prosecution amounts to an abuse of the 1st Respondent’s powers and are a threat to his constitutional rights as is evidently founded on ulterior motives. On this premise, he urges the Court to intervene so as to safeguard him against abuse of police and prosecutorial powers and which will affect his reputation and deny justice to Kenyans that look to him to dispense justice.
1st, 2nd and 3rd Respondents’ Case
20. These Parties’ filed their response through their Grounds of Opposition dated 25th October 2021 on the premise that:
i. Article 157 of the Constitution is to the effect that the 1st Respondent shall institute criminal proceedings only where a criminal offence has been committed.
ii. Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed.
iii. It cannot therefore be said that the 2nd Respondent violated the rights and liberty of the Applicant while in fact they were carrying out their duties within the ambit of the law.
iv. In the instant case, the decision to charge or not to charge the Petitioner has not been made by the 1st Respondent and therefore the Applicant cannot claim protection of the Constitution under Articles 48, 49, 50. To require the Applicant to submit to investigations/prosecution does not in any way amount to a breach of his fundamental rights.
v. It is in the public interest that complaints made to the 2nd Respondent are investigated and the perpetrators of crimes are charged and prosecuted.
vi. The Applicant shall enjoy the right to equal protection of the law and fair administrative action as matters are decided on merit.
vii. The Application has not met the threshold to warrant conservatory orders and the Courts should not interfere with the exercise and discretion of the 1st Respondent in making prosecutorial decision.
viii. The Court should be shy in accepting invitations by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in those cases where such organs and offices are acting ultra vires, outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the doctrine of proportionality in decision making.
ix. In the instant case there is absolutely no reason for the Court to bar investigations and prohibit prosecution since none of the foregoing grounds exists to justify such a decision.
x. The prayers being sought by the Applicant are unconstitutional as they seek to prevent the 1st, 2nd and 3rd Respondent from exercising their mandate as provided for by the law.
4th Respondent’s Case
21. In reaction to the Petition, the 4th Respondent filed a Notice of Preliminary Objection. The Preliminary Objection dated 18th November 2024 is based on the grounds that:
i. By dint of Article 165(5) of the Constitution the Honorable Court lacks the Jurisdiction to hear and determine the both the Application and Petition dated 22nd September, 2021 herein since it is a dispute relating to the environment and the use and occupation of, and title to, land by virtue of the provisions of Article 165(5) of the Constitution which provides that “the High Court shall not have jurisdiction in respect of matters- (b) failing within the jurisdiction of the Court contemplated in Article 162(2)”.
ii. By dint of Section 13(1) of the Environment and Land Court Act No. 19 of 2011 which provides that the Environment and Land Court shall have original and appellant jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution.
iii. By dint of Article 162(2) of the Constitution, the mandate of stipulated Court is outlined under Article 165(3) of the Constitution.
iv. By dint of Section 13(7) of the Environment and Land Court Act No. 19 of 2011 which provides that the Environment and Land Court can issue award of interim order, injunction, orders for restriction and compensation, which provision if read together with the provisions of Article 162(2) of the Constitution oust the jurisdiction of the Court to hear and determine this case.
v. Both the Application and Petition did not disclose any constitutional questions for the determination by this Court neither does it meet the principles on pleadings in constitutional petitions as enunciated in Anarita Karimi Njeru v Republic [1979] 1 KLR 154 and augmented in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR.
Petitioner’s Submissions
22. Musyoki Mogaka and Company Advocates for the Petitioner filed submissions dated 18th January 2024 and supplementary submissions dated 2nd March 2024. Counsel identified the issues for argument as:
“whether the Petitioners prayers for a declaration and an order of prohibition are merited, whether an advocate may be prosecuted for discharge of their duty as Counsel and whether the Petitioner is entitled to an order for compensation.”
23. Counsel on an opening note submitted that the Petitioner seeks to assert that the rule of law prevails and that state agencies are custodians of the powers donated to them by law and thus these powers should not be exercised to vex and harass. Counsel highlighting the Respondents constitutional mandate noted that the Respondents are required to exercise their powers conscientiously. Counsel pointed out that in this suit there is no apparent complainant and the Respondents actions amount to ulterior motives with the intent of vexing, harassing and blackmailing a judicial officer.
24. Reliance was placed in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR where the Supreme Court emphasized that:
“Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders…. 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.”
25. Comparable dependence was placed in Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR, Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLR and R.P. Kapur v State of Punjab AIR 1960 SC 866.
26. In the present proceedings, Counsel submitted that the Petitioner invokes the element of public interest. This is owing to the fact that the principle of advocate-client privilege forms the backbone of court litigation, legal practice and the rule of law. As such, the principle should not be varied as it would pose a grave danger to the system of administration of justice and the conduct of legal affairs.
27. On the second issue, Counsel underscored that the United Nations Basic Principles on the Role of Lawyers under Rule 16 to 18 recognize the danger that lawyers face as their carry out their legal obligations. For this reason, these Rules urge governments to guard their lives as guardians of the rule of law. Counsel noted that this Rules have been adopted in various International laws such as Principle 12 of UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (''UN Guidelines on Legal Aid'') (2012) and Principle I of Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) and which Kenya is bound by.
28. Like dependence is placed in Standards for the Independence of the Legal Profession (''IBA Standards'') (1990).
29. In Kenya, Counsel submitted that the Law Society of Kenya in its Code of Ethics and Conduct for Advocates (2016) recognizes professional independence as an overriding principle and recognizes that this independence requires that the Advocate be free from undue influence arising from political, financial, career, personal, emotional or other considerations. Further reliance was placed in Akusala A. Boniface v OCS Langata Police Station & 4 others [2018] eKLR where it was held that:
“Needless to say this court takes judicial notice of the fact that lawyers in this Country have, in recent past, been victimized by police officers while in the normal course of their duties of representing their clients. In this regard the case of lawyer Willy Kimani, who was brutally murdered to circumstances that are reported and alleged to be in the hands of police officers while in the course of representing his client is a case in point which this court cannot ignore. While in the instant case there was no disappearance and murder, the question that this court must ask itself is what if the worst happened" Who will stand up for the rights of the downtrodden in the society" It would appear that the actions of the police if not checked would make the legal practice a matter of life and death."
30. Comparable dependence was placed in Mohamed Feisal& 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR.
31. On this premise, Counsel urged the Court to preserve the dignity of an advocate as a legal representative since if they are prosecuted for performing their duties, the same will have a grave impact on legal representation. According to Counsel, the Respondents acting at the behest of the defendants in the subject land suit, so as to instigate an illegal criminal suit, is an abuse of the process.
32. On the final issue, Counsel submitted that indeed the Petitioner’s rights had been violated and thus was entitled to an order of compensation against the Respondents. Reliance was placed in Edward Akong''o Oyugi & 2 others v Attorney General [2019] eKLR where it was observed that:
“The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court molds the relief by granting ''compensation'' in proceedings under Article 23 of the constitution or seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ''monetary amends'' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental rights of the citizen or by subjecting the citizen to acts which amount to infringement of the constitution.”
33. Similar dependence was placed in Dendy vs University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 and Smt. Nilabati Behera Alias Lalit vs State Of Orissa And Ors, AIR 1993 SC 1960.
1st, 2nd and 3rd Respondents Submissions
34. Senior Principal Prosecution Counsel, Achochi Henry Nyabuto filed submissions dated 24th October 2024.
35. Counsel stated that the Petitioner had not been charged for the offences related to the impugned investigation and neither had the decision to charge him been made. On this basis, Counsel submitted that the Petition is premature and offends the doctrine of ripeness. Counsel urged the Court to restrain itself from determining the issue as it is too early and is simply out of apprehension.
36. Reliance was placed in Kiriro wa Ngugi & 19 Others v Attorney General & 2 others (2020) eKLR where the Court held that:
“The doctrine focuses on the time when a dispute is presented for adjudication….Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies”.
37. Like dependence was placed in National Assembly of Kenya & Another v The Institute for Social Accountability & 6 others [2017] KECA 170 (KLR).
38. Counsel equally accused the Petitioner of failing to exhaust the administrative remedies available to him when he was aggrieved by these Respondents’ actions, before approaching this Court. Dependence was placed in Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR where it was held that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…”
39. Comparable dependence was placed in Anthony Miano & others v Attorney General & others [2021] eKLR.
40. That said, Counsel underscored that Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed. As such, summoning the Petitioner for questioning was in line with the law and the principles of natural justice. Reliance was placed in Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR where it was held that:
“Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the petitioner’s right unless the investigations have been conducted unprocedurally and/or for ulterior motive.”
41. Comparable reliance was placed in Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012)eKLR and Muema Mativo v Director of Criminal Investigation & 2 others; HFC Limited (Interested Party) [2021] KEHC 9000 (KLR).
42. Counsel further submitted that this Court should exercise its jurisdiction sparingly in interference of the Respondents’ mandate unless breach is exposed. Nonetheless, Counsel stressed that the 1st Respondent is yet to exercise his mandate.
43. To buttress this point reliance was placed in Douglas Maina Mwangi vs Kenya Revenue Authority and Another HC Constitutional Petition No. 528 of 2013 where it was held that:
“When dealing with the decision as to whether or not to prosecute, the office of DPP exercises independent judgment and the court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process…I do not find any reason or ground to intervene in that decision nor is it the obligation of the court to supervise the minutae of investigation and prosecution.”
44. Equal dependence was placed in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR.
45. In addition, Counsel submitted that the Petitioner seeks prohibitory orders which in essence prevent a public body or Court from acting beyond its powers in the future. Counsel stressed that this order is discretionary and only tenable where a public body or official acted in excess of their powers. Counsel contended that in absence of demonstrated illegality, irrationality or impropriety, this prayer must fail.
46. Reliance was placed in Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) [2022] KEHC 43 (KLR) where it was held that:
“The power to stop or quash police investigations on a suspected offender must be exercised sparingly and with circumspection and in the rarest of rare cases and the court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power to quash investigations is immense since it amounts to exonerating a suspect before trial. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution”.
47. Comparable dependence was placed in Republic vs The Chief Magistrate, Milimani and 2 Others Ex. P Tusker Mattresses Ltd and 3 Others HC Misc. Civil Application No. 179 of 2012 and Kuria & others versus AG [2002] 2 KLR 69.
4th Respondents Submissions
48. In support of its Preliminary Objection, the 4th Respondent filed submissions dated 18th November 2024 through Litigation Counsel, Wanja Wanjiru. Counsel accentuated the main issues for discussion as: whether the Court has the jurisdiction to hear and determine this matter by virtue of Article 165(5) of the Constitution and Article 162(2) (b) of the Constitution and whether the Petition has been pleaded with specific particularity thus meeting the threshold how the 4th Respondent have violated the Petitioner’s rights.
49. On the first issue, Counsel submitted that the Petition was filed contrary to the provisions of Article 165(5) of the Constitution, which bar this Court from exercising the jurisdiction of the Special Courts, in this case the Environment and Land Court. Counsel pointed out that the claim before this Court is a matter provided for in the Land Registration Act, 2012, being the determination on the subject matter or/and land in L.R No. Gaturi/Githimu/143.
50. Counsel stressed that by dint of Section 13(7) of the Environment and Land Court Act, the Environment and Land Court can issue an award of interim order, conservatory orders, injunction, orders for restriction and compensation, among which are sought herein. For this reason, Counsel submitted that this Court does not have jurisdiction to entertain this matter neither can it arrogate itself the same.
51. Reliance was placed in Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others [2018]eKLR where it was held that:
“The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2) (b) of the Constitution and Section 13 of the Act. In this regard, my view is that the intention in the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. The other closely related issue is the jurisdiction of the Environment and Land Court to deal with issues relating to constitutional interpretation and enforcement of constitutional remedies especially in respect to matters which fall within the ambit of the Environment and Land Court. This is clearly provided for under Section 13 (3) of the Act. Sub- section 7 (b) above allows the Environment and Land Court to grant prerogative orders. It follows that the Environment and Land Court can entertain this Judicial Review application challenging the decision of the Respondent revoking its title to land and grant the prerogative reliefs sought.”
52. Similar reliance was placed in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1 and In the Matter of Interim Independent Electoral Commission [2011] eKLR.
53. On the second issue, Counsel submitted that despite the Petitioner asserting violation of Articles 2, 10, 22, 23, 27, 29, 47, 48, 50, 157 and 258 of the Constitution, he failed to prove how the 4th Respondent contravened these rights as required in Anarita Karimi Njeru v Republic [1979] KECA 12 (KLR).
54. Comparable reliance was placed in Daniel Chacha Muriri vs Attorney General (2012) eKLR.
Analysis and Determination
55. It is my considered opinion that the issues that arise for determination are as follows:
i. Whether this Court has jurisdiction to entertain this matter.
ii. Whether the petitioner is being victimized for performing his role as an advocate in violation of his constitutional rights.
iii. Whether the Petitioner is entitled to the relief sought.
Whether this Court has jurisdiction to entertain this matter.
56. Jurisdiction denotes the legal competence to hear and determine a matter. The Supreme Court in Macharia & another v Kenya Commercial Bank limited & 2 others [2012] KESC 8 (KLR) guided as follows:
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
57. The 4th Respondent argued that by dint of Article 165 (5) as read with Article 162 (2) (b) and Section 13 of the Environment and Land Court Act, this Court lacks jurisdiction to entertain this matter because it relates to a land dispute.
58. The Petitioner opposed this argument underscoring that the Petition is founded on violation of his fundamental rights and freedoms arising from a maliciously instigated investigation process which has nothing to do with land.
59. Article 162(2)(b) of the Constitution provides as follows:
Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
a) ….; and
b) the environment and the use and occupation of, and title to, land.
60. The Parliament as empowered by Article 162 of the Constitution enacted the Environment and Land Court Act which deals exclusively with matters falling within its ambit. The Jurisdiction of the Court is defined under Section 13 of the Act as follows:
(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—
a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
b) relating to compulsory acquisition of land;
c) relating to land administration and management;
d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
e) any other dispute relating to environment and land.
(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local trib
[...truncated]