HON. PAUL OTIENDE AMOLO VS ODPP

1. BACKGROUND.
2. The 1^st, 2^nd, 3^rd and 4^th Applicants are all members of the National Assembly representing Rarieda, Kisumu Central, Nyando and Alego Usonga constituencies respectively and were elected on Orange Democratic Movement Party which is an affiliate of the Azimio la Umoja One Kenya Coalition Party which is chaired by Honourable Retired Prime Minister Raila Amollo Odinga.
3. APPLICATION.

B1. Applicant’s Case:

1. On 25^th July 2023 the Applicants moved this court by way of a notice of motion brought under the provisions of article 3, 10, 19, 20, 22, 25, 27, 49(1) (a)(i), (f)(i), 159 and 259 of the Constitution of Kenya 2010 and section 123 of the Criminal Procedure Code and sought the following prayers:
2. Spent.
3. Spent.
4. Spent.
5. THAT at the inter partes hearing of true application, the Inspector General of the National Police Service be and is hereby directed to show cause why anticipatory bail should not be granted to the Applicants and/or why the writ of habeas corpus should not be granted as prayed
6. The costs of this application be provided for.
7. Any further or other orders or directions the Honourable Court considers appropriate in the circumstances.
8. All the Applicants swore supporting affidavit which were replicas of each other and whose general averments were that between 17^th – 20^th July, 2023 the 1^st Respondent had commenced surreptitious apprehension of persons elected vide party tickets of Azimio la Umoja One Kenya Alliance Coalition party due to their flagrant support of National wide demonstrations and picketing.  The Applicants have deposed that they had received credible information of their pending arrest despite the failure by the 1^st Respondent to either summon them as required under section 52 of National Police Service Act or inform them of the reasons for the intended arrest.  The Applicants aver that the national demonstrations and the concomitant arrests of leaders affiliated to the Respondent Azimio La Umoja one Kenya Alliance Party by the 2^nd Respondent is now a matter of public notoriety thus they are inviting this court to take judicial notice on the same.
9. The Applicants have averred that the 2^nd Respondent had abdicated its duty of discharging its mandate independently and was instead being used for political expediency in violation of the provisions of Article 245 (2) (b) & (4) of the Constitution of Kenya 2010.
10. The Applicants maintain that the conduct of the 2^nd Respondent is incompatible with values and principles espoused by the Constitution of Kenya 2010 as pertains to observance of the rule of law, fair administrative action, presumption of innocence and freedom from subjection to inhuman and degrading treatment.
11. The Applicants maintain that given their status as local leaders, their abodes are well known and they are not a flight risk to justify the 2^nd Respondent’s surreptious arrest, and incarceration for periods beyond the legally permissible limitation periods.

B2. Respondent’s Case:

1. This application is resisted by two affidavits of Bernard Mulei and Rose Rohenya sworn on behalf of the 2^nd Respondent as well as grounds of opposition filed by the 1^st Respondent on 27^th July 2023.
2. Benard Mulei deposes that between 19^th to 21^st July 2023 demonstrations were held in Kisumu sub county with resultant destruction of government and private properties.  Further that persons who declined to participate in the demonstrations were assaulted and robbed.  Consequent thereto investigations were commenced and the same are ongoing.  The 2^nd Applicant was adversely mentioned as having participated in the said demonstrations. 
3. Benard Mulei deposes that the 2^nd Respondent was undertaking its constitutional and statutory mandate by collecting information relevant to the said crimes and that once the investigations are concluded the 1^st Respondent will make a decision on whether to prefer charges on implicated individuals.  He thus maintains that his discharge of the mandate of the 2^nd Respondents cannot be termed as a violation of the applicants’ rights. He maintains that the herein is premature and this court should exercise restrain when called upon to intervene when the respondents are discharging their lawful mandates.  This officer states that the 2^nd Respondent is yet to summon the 2^nd Applicant to record his statement in respect of the offence committed during the said demonstrations.  He further states that the Applicants have not disclosed the offences that they suspect will inform their arrest, nor have they tendered any evidence of violations of their fundamental constitutional rights.
4. The 2^nd Respondent maintains that in the event that the Applicants are eventually arraigned in court, then the courts will be vested with requisite jurisdiction to hear and determine such cases otherwise the grant of the orders sought will amount to interference with the investigation that are currently underway.
5. Chief Inspector Rose Roheya from Nyando sub-county Directorate of Criminal Investigations deposes that on or about 20^th July, 2023 demonstrations were conducted in Nyando sub county and the same turned violent thus culminating in the destruction of movement and private property; including but not limited to destruction of Ahero sub County Hospital, and ambulance, police station fence and sign post, attack on police officers at the station causing them bodily injury and damage of their armory.  Further that the demonstrators committed arson on private property belonging to Nyando Social Justice Office.  It is her evidence that the 3^rd Applicant was present during the said demonstrations cumulatively her evidence is a replica of that of Benard Mulei.
6. Submissions
7. Directions were taken for filing of submissions and parties duly complied.  The respective oral submissions of parties have been duly considered.
8. Analysis and Determination:
9. Upon analyzing the application herein and the responses thereto the issues that emerge for determination are as follows:-
10. Whether the Applicants face imminent threat of arrest and unlawful confinement?
11. Whether the Respondent have abdicated their statutory and constitutional mandate due to political expediency?
12. Whether the Applicants have made out a case for the summoning of the Inspector General of the National Police Service to appear before this court and show cause why order of habea corpus and/or anticipatory bail ought not be granted to the Applicants.
13. On whether the Applicants face imminent threat of arrest and unlawful confinement, I wish to dissect the affidavits sworn in support of this application.  Save for the first paragraph, the supporting affidavits are a replica of the other word to word. Whereas the 1^st Applicant is an officer of the court and describes himself as such, the 2^nd to the 4^th Applicants are not yet in paragraph 3 of all their affidavits they have deponed that they are officer of the court.  Wherefore save for the affidavit of the 1^st Applicant, the affidavits of the 2^nd to 4^th Applicants are vitiated by material falsehood.
14. Paul Otiende Amolo SC deposes that he has obtained credible information of the Applicants’ imminent arrest yet he has not made material disclosure of his source of information and the factual context of the said information that lays the foundation of the Applicants general apprehension of risk of arrest and threat of infringement of their freedom of movement through unlawful confinement by the Respondents.
15. It is trite law that he who avers must prove.  Section 107 of the Evidence Act puts the burden of proof on the shoulders of the person who avers thus:

“Section 107

1. So far the Applicants have not adduced an iota of evidence to substantiate the information that they aver is within their knowledge and which they categorise as credible.  Section 108 of the Evidence Act outlines the incidence of burden of proof as follows:

“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence a all were given on either side.”

1. The Applicants herein cannot shift the burden of proof to this court by inviting it to take judicial notice of what they term as surreptious arrest that are a matter of common notoriety.  This court makes determination of disputes upon analysis of evidence adduced before it.  Sadly in this instance there is non save for un substantiated  averments.  The Applicants have failed to demonstrate that indeed they face any risk of imminent arrest and subsequent unlawful confinement.
2. I will now address the issue whether the Respondents have abdicated their statutory and constitutional mandate due to political expediency.
3. The Respondents have in the replying affidavit stated that investigations have been commenced in respect of crimes committed during the demonstrations and that members of the public have been invited to give information relevant thereto.  It is also disclosed that several leaders including but not limited to the 2^nd and the 3^rd Applicants were present during the demonstrations that led to destruction of public and private properties in Kisumu Central and Nyando sub-counties respectively and whereas the 2^nd Respondent is statutory mandated to summon the leaders mentioned, it is yet to do so.
4. It is instructive to note that the office of the Inspector General is an independent office with the powers to investigate any offence, it is created by Article 243 of the constitution which establishes the National Police Service and Article 245(4) and (5) provide as follows: -

“(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector- General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—

(a) the investigation of any particular offence or offences;

(b) the enforcement of the law against any particular person or persons; or

(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.

(5) Any direction given to the Inspector-General by the Cabinet secretary responsible for police services under clause (4), or any direction given to the Inspector-General by the Director of Public Prosecutions under Article 157(4), shall be in writing.”

1. The specific roles and duties are further provided for under Section 24 of the National Police Service Act. The directorate of criminal investigations being a branch of the National Police Service has its roles spelt out in Section 35 of the National Police Service Act which provides;

(a) collect and provide criminal intelligence;

(b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others;

(c) maintain law and order;

(d) detect and prevent crime;

(e) apprehend offenders;

(f) maintain criminal records;

(g) conduct forensic analysis;

(h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;

(i) co-ordinate country Interpol Affairs;

(j) investigate any matter that may be referred to it by the Independent Police Oversight Authority; and

(k) perform any other function conferred on it by any other written law.

1. The office of the Director of the Public Prosecution on the other hand is a creation of Article 157 (4) of the Constitution of Kenya 2010 which provides;

(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

1. The specific powers donated to the office of the Director of Public Prosecution are provided for in Article 157(6) of the Constitution and Section 5 of the Office of the Director of Public Prosecutions Act. Article 157(6) provides that the Director of Public Prosecution has the following powers;

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

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

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

1. Specific instances under which this court can interfere with the functions of such offices has been the extensively discussed and there exists a plethora of judicial pronouncements on the subject. In Republic v Commissioner of Police & another Ex parte Michael Monari & another [2012] eKLR. The court rendered itself on this issue thus:-

“It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party.  It is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person.  It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it.   There is no evidence to show that the respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants.  The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct, which amounts to an offence and on that account is deserving punishment.”

1. In Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR, the learned judges of appeal stated;

“However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual”.

1. Lastly, in Khalwali Miima v Director Public of Prosecutions & 2 others [2017] eKLR, the Court stated:

“The circumstances under which the Court will grant stay of a criminal process in these kinds of proceedings is now well settled. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for halting those proceedings…………..

That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings”.

1. It is crystal clear from a reading of the principles enunciated from the afore cited precedents that for this court to interfere and forestall the intended prosecution, the Petitioner ought to establish the existence of the said principles which in case as I have already stated, they have failed so to do.
2. On the balance I do find that this application is devoid of merit and I thus disallow it with no orders as to costs.

It is hereby so ordered.

Delivered, signed and dated at Kisumu this 20^th day of March 2024.

In the presence of:

Ms. Muema for the 1^st Respondent

No appearance by Otieno David for the Applicants

No appearance by Ms. Masaka for 2^nd and 3^rd Respondents