1. The Petition dated 8th March 2023, is supported by the Petitioner’s affidavit in support of even date and a further affidavit dated 15th November 2023.
2. The Petition is premised on the Petitioner’s grievances that the criminal prosecution against him by the 1st and 2nd Respondents was primarily instituted in order to assist the 3rd Respondent access and obtain the documentary evidence through Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura so as to use them in his civil suit, High Court Civil Suit No. 45 of 2017 Carl Douglas Rusnell & Fernwood Developments Limited-Versus-Joseph Bushebi, hence a violation of his constitutional rights under Articles 27, 28, 31, 35, 39, 40, 43, 47, 49, 50 and 51 of the Constitution.
3. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
a) A declaration be issued that the initiation, maintenance and prosecution of Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura by the Respondents against the Petitioner herein in the absence of proper factual foundation is an abuse of the Criminal Justice process and contravention of the Petitioner’s Constitutional Rights to freedom and security of the person, the Right to freedom of movement and the Right to secure protection of the law.
b) A declaration that the institution, maintenance and prosecution of Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura by the Respondents is oppressive, malicious and an abuse of the Court process contrary to Article 157(11) of the Constitution.
c) A declaration be issued that the ex parte warrants namely Criminal Miscellaneous Application no. 2508 of 2016, Republic Versus Joseph Bushebi; Criminal Miscellaneous Application no. 2722 of 2016, Republic Versus Rafiki Bank DTM Ltd; Criminal Miscellaneous Application No. 2390 of 2016 Republic Versus Equity Bank Ltd; Criminal Miscellaneous Application No. 2391 of 2016, Republic Vs Family Bank; Criminal Miscellaneous Application No. 1916(A) of 2017 Republic Versus Rafiki Microfinance, Joseph Bushebi, Cecilia Nyambura and Carl Rusnell; Criminal Miscellaneous Application No.1916(B) of 2017 Republic Versus Rafiki Microfinance, Joseph Bushebi, Cecilia Nyambura Gachuiri and Carl Rusnell and Criminal Miscellaneous Application No. Republic -Versus-Joseph Bushebi and Cecilia Nyambura, issued by the 4th Respondent to investigate, search and seize properties, documents and items belonging to the Petitioner, breached the Petitioner’s rights and fundamental freedoms under the provisions of Article 27 (1) (2), Article 35 (1), Article 47(1) & (2), Article 50(1), 50(2)(c) and 50(2)(j) of the Constitution, hence void for all intents and purposes.
d) A declaration be issued that the failure by the Respondents to make and file returns in the Chief Magistrate’s Court Milimani pursuant to warrants issued in Criminal Miscellaneous Application no. 2508 of 2016; Criminal Miscellaneous Application no. 2722 of 2016; Criminal Miscellaneous Application No. 2390 of 2016; Criminal Miscellaneous Application No. 2391 of 2016; Criminal Miscellaneous Application No. 1916(A) of 2017 and Criminal Miscellaneous Application No.1916(B) of 2017, their failure to produce the seized articles before the Court was a contravention of Section 121 of the Criminal Procedure Code and was therefore unlawful.
e) A declaration that the failure by the Respondents to notify or furnish the Petitioner with copies of the ex parte warrants and proceedings which adversely affected his Rights and Freedoms, violated his Right to fair trial and equal benefit of law as enshrined in Article 27 (1) (2), Article 27(1) Article 35 (1), Article 47(1) & (2), Article 50(1),50(2)(c) and50(2)(j) of the Constitution.
f) A declaration that the Pre-trial adverse publicity of evidentiary documents, images of the Petitioner and properties searched and seized from the Petitioner orchestrated by the Respondents in the electronic media at http://www.facebook.com/copliberty, contravened the Petitioner’s inherent, inalienable, universal, fundamental, legal and constitutional right to be presumed innocent until proven guilty and the Right to Privacy enshrined in Articles 31, the Right to Fair hearing in Articles 50(1) and 50(2 ) and further contravened Section 79 (2) Evidence Act Cap .80 of the laws of Kenya, Sections 13, 20, 121 and 130 of Proceeds of Crime and Anti Money Laundering Act, sections which provide for preservation of secrecy and control, access and use of such privileged information obtained in the course of investigations and trial.
g) A declaration that the Respondents’ confiscation of Petitioner’s properties, Motor Vehicles Registration No. KBK 500A and KCD 645P is inhumane, demeaning and degrading treatment in contravention of Article 40(1) of the Constitution.
h) A declaration that the Respondents’ confiscation of the Petitioner’s Original Academic certificates and refusal to return them heretofore has violated his Right to work, to free choice of employment based on his academic capabilities and to protection against unemployment as enshrined in Article 31(a) and (b) of the constitution, Article 28, 43(1) and 47(2) of the Constitution and Article 23 (1) of the United Nations Declaration of Human Rights.
i) A declaration that the Respondents’ use of force and threats for the petitioner to sign and accept documentary evidence to be used in High Court Civil Suit No. 45 OF 2017 Carl Douglas Rusnell Fernwood Developments Limited-Versus-Joseph Bushebi while in Muthaiga Police cells without allowing him to read and understand their contents, violated the Petitioner’s rights to dignity (Art. 28), rights of a detained person, arrested and persons held in custody (Art. 49 (1d) & 51), and an abuse of Article 157(11) of the Constitution and Section 193A of the Criminal Procedure Code.
j) A declaration that the Respondents have manipulated and abused the mechanisms of the Criminal Justice system Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura and related Miscellaneous criminal proceedings to aid the civil cause in High Court Civil Suit No. 45 of 2017 Carl Douglas Rusnell Fernwood Developments Limited-Versus-Joseph Bushebi contrary to Article 157(11) of the Constitution.
k) A declaration that it is not constitutionally permissible and in accordance with the rule of law, public interest and public policy for the 3rd Respondent to pursue civil forfeiture of alleged Proceeds of Crime or realizable assets charged in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura, namely a Block of Apartments at Utawala registered as LR NO. 6845/72/36, Property Registered as Nairobi/118/859, Leased Plot at No. 209/28/1, 2 Motor Vehicles Reg. No. KBK 500A make Toyota Land cruiser and KCD 645P make Toyota Axio.
l) A declaration that, the only body corporate with the legal mandate of combating money laundering is the Assets Recovery Agency as established under Section 53 of the Proceeds of Crime and Anti-Money Laundering Act No.9 of 2009 and Section 131 of the Proceeds of Crime and Anti-Money Laundering Act No.9 of 2009.
m) A declaration that the Petitioner is entitled to damages as redress in respect of each of the above rights that were and continue to be breached by the Respondents.
n) An order of stay of the Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura pending the hearing and determination of this petition.
o) An order of prohibition do issue directed to the 4th Respondent prohibiting it and/or any other Court of concurrent jurisdiction from hearing, proceeding with and determining Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura.
p) An Order of certiorari be issued removing into this Court and quashing the entire proceedings and the charge sheet against the Petitioner before the Chief Magistrates Court at Milimani Law Courts in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura.
q) A Judicial Review order by way of an order of Certiorari be issued to remove into this Court and quash the ex parte warrants namely Criminal Miscellaneous Application no. 2508 of 2016; Criminal Miscellaneous Application no. 2722 of 2016; Criminal Miscellaneous Application No. 2390 of 2016; Criminal Miscellaneous Application No. 2391 of 2016; Criminal Miscellaneous Application No. 1916(A) of 2017 and Criminal Miscellaneous Application No. 1916(B) of 2017.
r) An Order of mandamus be issued compelling the Respondents to return to the Petitioner his Academic Certificates and any documents taken from him, within 14 days of this Order, namely: Original Fulbright FLTA Certificate dated 2010 from Syracuse University; Original Fulbright FLTA Certificate of Attendance dated 13th December, 2009; Original transcripts for academic year 2009-10 from Syracuse University, New York; Original Degree certificate from Kenyatta University; Original Academic transcripts for years 1, 2, 3 and 4, from Kenyatta University; Original Computer studies Certification & Transcripts from Line and Circle Institute of Kenya dated December, 2000; Original Computer studies Certification & transcripts from Horizon Technology Institute of Kenya, dated November, 2000; Original KCSE School Leaving Certificate (1998); Original KCSE result slip issued by KNEC; Original KCPE School Leaving Certificate (1994) issued by KNEC; Original KCPE result slip issued by KNEC.
s) An Order of mandamus be issued compelling the Respondents to return to the Petitioner his Motor Vehicles Registration Nos. KBK 500A and KCD 645P seized from his residence, within 14 days of this Order.
t) A Permanent prohibitory injunction is issued against the 3rd Respondent from using documentary evidence obtained directly from Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura and related ex parte proceedings to support his civil claims.
u) An Order for exemplary and punitive damages be issued against the 1st, 2nd and 3rd Respondents individually, jointly, and severally on account of their gross violation of the Petitioner’s fundamental freedoms and rights as enumerated in the Petition.
v) The 1st, 2nd and 3rd Respondents be directed to bear the costs of this Petition individually, jointly and severally.
w) Further, or other relief, direction, writ or order that the Court may consider appropriate for the purpose of enforcing or securing the enforcement of the provisions of the Constitution that the Petitioner has identified as having been, are being, or are likely to be contravened by the Respondents.
Petitioner’s Case
4. The Petitioner depones that he presented himself to the 2nd Respondent on 30th January 2017. This was in view of a complaint lodged by one, Henrich Neuwirth from Canada on 26th May 2016. The Petitioner was then arrested and arraigned before the 4th Respondent on 31st January 2017.
5. The Petitioner alleges that on the same day, the Chief Inspector of Police, Abel Ongeri alongside a private investigator and the Director of Advanced Forensics Ltd, Sebastian Omboto, came to the police cell and forced him to sign some documents while threatening him with dire consequences if he failed to do so. He alleges that these documents were in relation to the suit in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura which had been instigated against him and his wife, the Interested Party herein.
6. The Petitioner depones that the 1st Respondent on 3rd February 2017 recommended that he be charged in the matter for various counts being, Count I: Conspiracy to defraud contrary to Section 317 of the Penal Code, Count II: Stealing by Directors Contrary to Section 282 of the Penal Code and Count III: Money Laundering contrary to Section 4 as read with Section 16 (I) (a) of the Proceeds of Crime and Anti-Money Laundering Act 2011.
7. He argues that these are false and malicious charges as no proper investigations were carried out prior to this. Moreover, that the suit matter was instigated to aid the 3rd Respondent’s interests, despite this party never having been in Kenya. The Petitioner asserts that the 4th Respondent’s indulgence of this unknown and unverified person who went on to issue his testimony in Court against him in the alleged illegal criminal proceedings, violated his right under Article 50 of the Constitution.
8. He informs that following Henrich Neuwirth’s complaint a series of applications were filed by the 2nd Respondent’s officers before the 4th Respondent wherein court warrants were issued. The Petitioner asserts that these warrants were utilized by the 2nd Respondent’s officers to violate his rights. He adds that he was not issued with the Court proceedings and copies of warrants in the said matter thus violating his right to be issued with reasons and to lodge an appeal.
9. The Petitioner further decries that the police officers who conducted the search at his residence at Kamulu, Nairobi, pursuant to Criminal Miscellaneous Application no. 2508 of 2016, Republic Versus Joseph Bushebi, did not account for the items that they seized. He claims that one of the investigation officers, Walter Oginga uploaded images of the seized items on his personal facebook platform without any Court Order.
10. As a result, he argues that this subjected his private affairs to the public in breach of his and family’s rights and was also in breach of Sections 13, 20, 121 and 130 of Proceeds of Crime and Anti Money Laundering Act which provide for preservation of secrecy and control of access and use of such privileged information acquired during investigations and trial.
11. Furthermore, the Petitioner asserts that the search warrants issued in the said matter, restricted the police officers on the items to be searched for and taken possession of, being, documents, stamps, seals and computers in relation to the alleged committed offenses. It is however stated that on 17th August 2016, the 2nd Respondent’s officers led by Chief Inspector Abel Ongeri and Inspector Walter Oginga defied the Court Order and carried away items and documents which were not sought in the said order.
12. Particularly, the officers confiscated all of the Petitioner’s original Academic Certificates and college transcripts without any justification. His attempts to get these documents back is said to have been futile. As a result, he argues that he is not able to secure meaningful employment. In addition, the Petitioner depones that the officers also seized his Motor Vehicles Reg. No. KBK 500A and KCD 645P which were also not covered in the issued warrant.
13. The petitioner depones that subsequently, the 3rd Respondent instigated a civil suit against the Petitioner in High Court Civil Suit No. 45 of 2017 Carl Douglas Rusnell & Fernwood Developments Limited-Versus-Joseph Bushebi in order to pursue the laundered assets as charged in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura. Specifically, these are: A Block of Apartments at Utawala registered as LR NO. 6845/72/36, Property Registered as Nairobi/118/859, Leased Plot at No. 209/28/1, Motor Vehicles Reg. No. KBK 500A make Toyota Land cruiser and Motor Vehicles Reg. No. KBK 500A KCD 645P make Toyota Axio.
14. The Petitioner claims that to sustain this civil suit the 3rd Respondent relied on the evidence obtained by the 1st and 2nd Respondent’s in the ongoing criminal proceedings before the 4th Respondent. On this premise, the Petitioner postulates that the 3rd Respondent colluded with the 1st and 2nd Respondent to commence the criminal proceedings against him.
15. Furthermore, the Petitioner is aggrieved that the documentary evidence being utilized is part of the privileged prosecution evidence seized on various dates on account of the warrants that were issued. He asserts that instead of returning to Court to file a return of the seized evidence, the 2nd Respondent’s officers proceeded to supply the same to the 3rd Respondent. He additionally contends that he was never supplied with these documents and neither was he given the 3rd Respondent’s complaint that instigated the criminal matter.
16. The Petitioner is grieved that the initiated criminal proceedings are malicious with the key aim of aiding the 3rd Respondent’s civil suit not necessarily to punish the alleged crimes therein. In this regard, the Petitioner contends that the Respondents acted ultra vires and contrary to their constitutional duty and acted ultra vires.
17. The Petitioner further argues that the said civil suit seeks forfeiture of the subject assets, yet such a claim ought to have been filed under the provisions of Proceeds of Crime and Anti-Money Laundering Act, by the director of the Assets Recovery Agency not the 3rd Respondent.
18. In this regard, he further claims that the 3rd Respondent enlisted the help of one, Kennedy Ogetto and the Chairperson of the Anti-Money Laundering Advisory Board, at the time, to pursue civil forfeiture of the alleged proceeds of crime. According to him, the Chairman improperly influenced and furthered the private interests of the 3rd Respondent.
19. In light of the foregoing averments, the Petitioner is certain that his constitutional rights were violated by the Respondents and thus brings this suit against them seeking the sought relief.
1st Respondent’s case
20. The 1st Respondent in response filed Grounds of Opposition dated 12th April 2023 on the premise that:
i. No evidence has been advanced by the Petitioner and the Interested Party to demonstrate that the charges levelled against them in Milimani CMCC No 1315 of 2016 is an abuse of both the 1st Respondent’s prosecutorial powers and an abuse of the court process.
ii. The Petitioner and the Interested Party have not demonstrated to this court the prejudices they will suffer in the ongoing prosecutions of Milimani Criminal Case Number 1315 of 2016. They must demonstrate that substantial injustice would otherwise result if the criminal proceedings are not stayed. The trial court is an impartial arbiter and should be given an opportunity to determine the impugned lower court matter on merit.
iii. The 1st Respondent made a decision to charge in accordance with Article 157 (6), thereby upholding the provisions of Article 157 (10) & (11) of the Constitution. Therefore, Criminal Case Number 1315 of 2016 is constitutional and properly instituted.
iv. The 1st Respondent made decision to charge the Petitioner and the Interested Party based on overwhelming evidence on the prosecution file. Therefore, the trial court should be left alone to weigh the prosecution evidence on the scales of justice for the guilt to be convicted and punished and the innocent, if any, to be acquitted.
v. The Petitioner and the Interested Party have not demonstrated that the decision by the Respondent to charge them is illegal, unfair and irrational, therefore unconstitutional.
vi. The Petitioner and the Interested Party have not persuaded this court that their Petition raises a serious issue worth the determination of this court.
vii. A complaint was made to the police by the 3rd Respondent and it is in the public interest that such complaints made to the investigative agency be investigated and the perpetrators of crimes are charged and prosecuted.
viii. The Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per Articles 47, 48 and 157 (11) of the Constitution.
ix. The accuracy and correctness of evidence or facts in a prosecution file can only be assessed and tested by the trial court which is best placed to analyze the quality and sufficiency of the evidence to be adduced in support of the charges in Milimani Criminal Case number 1315 of 2016.
x. The charge against the Petitioner and the Interested Party are known in law under Section 317 and 282 of the Penal Code and Section 4 and 16 (1) (a) of The Proceeds of Crime and Ant-Money Laundering Act.
xi. It is lawful for both civil and criminal proceedings to run concurrently under Section 193A of the Criminal Procedure Code which provides; ‘Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings’.
xii. The Petitioner has not adduced any iota of evidence to the effect that the 1st Respondent aided officers of the 2nd Respondent to seize documents of the Petitioner and furnished them on the 3rd Respondent so as to commence civil proceedings against the Petitioner.
xiii. The Petitioner has not adduced any iota of evidence to the effect that the 1st Respondent seized documents and motor vehicles registration numbers KBK 500A and KCD 645P, the property of the Petitioner and went away with them.
xiv. The orders and declarations sought are therefore not tenable against the 1st Respondent as the Petitioner and the Interested Party have not shown how the criminal proceedings in Criminal Case Number 1315 of 2016 are unconstitutional and how the 1st Respondent has infringed on their constitutional rights worth calling for the orders sought.
xv. The Petition is without merit and should be dismissed with costs.
2nd and 4th Respondents’ Case
21. These Respondents’ in opposition to the Petition filed their Grounds of Opposition dated 5th May 2023 on the basis that:
i. Arrest and detention of a person are legal processes provided for by law with specific constitutional safeguards, and do not amount to infringement on the fundamental rights and freedoms of the Petitioner.
ii. The Petitioners’ rights under Article 27, 28, 31, 35, 39, 40, 43, 47, 47, 49, 50 and 51 of the Constitution are not absolute and are subject to limitations contemplated under Article 24 of the Constitution.
iii. By dint of section Article 245(4)(a) and (b) of the Constitution and section 24, 27 and 35 of the National Police Service Act Cap 84, the 2nd Respondent has a constitutional and statutory duty to investigate offences.
iv. The petition runs afoul to the authority and exercise of constitutional and statutory powers and functions vested upon the 2nd Respondent under Article 245 of the Constitution and relevant provisions of the National Police Service Act Cap 84.
v. In exercise of their constitutional powers and functions, the Respondents are bound by the national values and principles of governance as provided for under Article 10 and the duty to comply with constitutional standards of human rights and fundamental as provided for under Article 244 of the Constitution.
vi. The constitutional and statutory mandate conferred upon the respondents can only be interfered with by the Court where it has been sufficiently demonstrated that they have acted arbitrarily and contrary to their constitutional powers and mandates.
vii. No evidence has been adduced before this Court demonstrating any prejudice, damage, harm or injury suffered by the Petitioner as a result of the arrest, detention, charge or other alleged illegal actions of the 2nd and 4th Respondents.
viii. Both the Application and petition are based on mere apprehension and unfounded fears; they preempt the presentation of evidence and are presumptive of the finding by the trial court; the Petitioner by dint of Article 50 of the Constitution can challenge the veracity of the evidence against him including whether the evidence was properly obtained.
ix. Grant of the reliefs sought in the circumstances of this case will frustrate, rather than advance the rule of law. The Petitioner’s constitutional safeguards in respect of his rights while undergoing trial are still guaranteed.
x. Grant of the reliefs sought potentially threatens the Petitioners’ right under Article 50, in particular, the right to have the trial begin and conclude without unreasonable delay.
xi. He who alleges must prove. The petitioner has failed to evidentially demonstrate how the 2nd Respondent acted illegally, arbitrarily, unjustly, irregularly or oppressively in conducting investigations against him or how any of his rights so far have been violated or are being threatened with violation by the on-going prosecution against him.
xii. On the strength of Section 193A of Criminal Procedure Code, the Petitioner’s Application and petition are a non-starter, untenable and misconceived. The fact that there exist civil proceedings emanating from the same subject matter is not a bar to institution and continuation of criminal proceedings.
xiii. Section 34 of the Evidence Act Cap 80 allows for the admission of evidence in judicial proceedings in subsequent proceedings, including those of a civil nature.
xiv. The Petitioners are merely apprehensive having failed to demonstrate that the trial magistrate is or will be biased, not accord them a fair hearing, has acted contrary to the constitution, the criminal procedure code or any other written law or has acted contrary to judicial code of conduct therefore not able to dispense justice accordingly.
xv. The criminal process provides for a process of an appeal where the accused if aggrieved by the decision in question, can pursue. Furthermore, the petitioner can pursue compensation by way of a claim for malicious prosecution.
xvi. The Petitioner’s Application and Petition are unmeritorious, an abuse of the court process and an attempt by the Petitioner to delay the hearing and determination of the criminal case against him.
22. The 2nd Respondent additionally filed a Replying Affidavit sworn by its officer in the Economic and Commercial Crimes Unit, Francis Mulinga on 3rd May 2023.
23. He depones that the 2nd Respondent has been investigating the allegations of fraud lodged by the 3rd Respondent through the High Commission of Canada in Nairobi on 26th May 2016.
24. He stated that the 3rd Respondent a Canadian citizen lodged a complaint of fraud to the Royal Canadian Mounted Police who carried out their investigations and referred the matter to the High Commission of Canada in Kenya. The Commission conversely forwarded the matter to the 2nd Respondent for further investigations being that the alleged crime had occurred in Kenya.
25. To commence its investigations, the 2nd Respondent’s officers obtained several applications in Court so as to investigate the matter. Particularly, the financial trail on how the money had been deposited and withdrawn. He informs that the investigations team also recorded statements from owners of hardware’s whom invoices had been used and sent to the 3rd Respondent by the Petitioner.
26. It is stated that the investigations unearthed that the 3rd Respondent had transferred Kshs.62,233,650 into account No.041000016467 at Family Bank, under the name of Bushnell Developers Limited wherein the Petitioner and the 3rd Respondent are the directors. To procure these monies, the Petitioner had told the 3rd Respondent that the amount was going to be used for construction of warehouses which they would thereafter lease and get revenue.
27. He avers that the Petitioner sent several warehouse rental lease agreements to the 3rd Respondent purporting that the warehouses had been completed and leased to various companies. The investigations however established that no such warehouses had ever been constructed. Instead, the Petitioner used the monies to build a bungalow for his residence registered under plot No.LR. No.6845/72/36, several rental units along Thika Road and also purchased the two seized vehicles. The Petitioner in addition edited the said account to account number 041000016400 under the name Wekesa Consultants.
28. It is claimed that when the Petitioner became aware of the instant investigations, he went into hiding for six months. The Petitioner later resurfaced after the Interested Party had been arrested and arraigned in Court as one of his accomplices.
29. He refutes the Petitioner’s claims that the 2nd Respondent’s officers went to his cell and forced him to sign various documents. He notes that the Petitioner had a right to lodge a complaint in that regard with the OCS however no evidence was adduced to indicate that such a complaint was made.
30. He makes known that the 3rd Respondent was sick and frail hence could not make a flight to Kenya to testify physically. As a result, the 2nd Respondent applied for a video link testimony so that he could testify. He informs further that all the evidence obtained in this matter was supplied to the Petitioner in 2018 and received by his Counsel who signed the inventory. As such, the claim otherwise is said to be false.
31. In like manner an inventory of the seized items from the Petitioner’s house was supplied and signed by the parties present and filed in Court. The seized vehicles are said to have been confiscated as were procured from proceeds of crime and money laundering, which the Petitioner has already been charged with before the criminal court.
32. He asserts in light of the foregoing that the Petitioner has not demonstrated how the criminal justice system was manipulated. As a consequence, he reasons that the Petition is vexatious and an abuse of the court process.
3rd Respondent’s Case
33. The 3rd Respondent in reaction to the Petition filed his Replying Affidavit sworn on 23rd March 2023.On the onset, he makes known that the Petitioner has filed numerous applications before the High Court and Magistrates Court in an effort to frustrate the criminal and civil suits instigated against him. He asserts therefore that the instant suit is an abuse of the Court process and has not
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2. The Petition is premised on the Petitioner’s grievances that the criminal prosecution against him by the 1st and 2nd Respondents was primarily instituted in order to assist the 3rd Respondent access and obtain the documentary evidence through Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura so as to use them in his civil suit, High Court Civil Suit No. 45 of 2017 Carl Douglas Rusnell & Fernwood Developments Limited-Versus-Joseph Bushebi, hence a violation of his constitutional rights under Articles 27, 28, 31, 35, 39, 40, 43, 47, 49, 50 and 51 of the Constitution.
3. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
a) A declaration be issued that the initiation, maintenance and prosecution of Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura by the Respondents against the Petitioner herein in the absence of proper factual foundation is an abuse of the Criminal Justice process and contravention of the Petitioner’s Constitutional Rights to freedom and security of the person, the Right to freedom of movement and the Right to secure protection of the law.
b) A declaration that the institution, maintenance and prosecution of Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura by the Respondents is oppressive, malicious and an abuse of the Court process contrary to Article 157(11) of the Constitution.
c) A declaration be issued that the ex parte warrants namely Criminal Miscellaneous Application no. 2508 of 2016, Republic Versus Joseph Bushebi; Criminal Miscellaneous Application no. 2722 of 2016, Republic Versus Rafiki Bank DTM Ltd; Criminal Miscellaneous Application No. 2390 of 2016 Republic Versus Equity Bank Ltd; Criminal Miscellaneous Application No. 2391 of 2016, Republic Vs Family Bank; Criminal Miscellaneous Application No. 1916(A) of 2017 Republic Versus Rafiki Microfinance, Joseph Bushebi, Cecilia Nyambura and Carl Rusnell; Criminal Miscellaneous Application No.1916(B) of 2017 Republic Versus Rafiki Microfinance, Joseph Bushebi, Cecilia Nyambura Gachuiri and Carl Rusnell and Criminal Miscellaneous Application No. Republic -Versus-Joseph Bushebi and Cecilia Nyambura, issued by the 4th Respondent to investigate, search and seize properties, documents and items belonging to the Petitioner, breached the Petitioner’s rights and fundamental freedoms under the provisions of Article 27 (1) (2), Article 35 (1), Article 47(1) & (2), Article 50(1), 50(2)(c) and 50(2)(j) of the Constitution, hence void for all intents and purposes.
d) A declaration be issued that the failure by the Respondents to make and file returns in the Chief Magistrate’s Court Milimani pursuant to warrants issued in Criminal Miscellaneous Application no. 2508 of 2016; Criminal Miscellaneous Application no. 2722 of 2016; Criminal Miscellaneous Application No. 2390 of 2016; Criminal Miscellaneous Application No. 2391 of 2016; Criminal Miscellaneous Application No. 1916(A) of 2017 and Criminal Miscellaneous Application No.1916(B) of 2017, their failure to produce the seized articles before the Court was a contravention of Section 121 of the Criminal Procedure Code and was therefore unlawful.
e) A declaration that the failure by the Respondents to notify or furnish the Petitioner with copies of the ex parte warrants and proceedings which adversely affected his Rights and Freedoms, violated his Right to fair trial and equal benefit of law as enshrined in Article 27 (1) (2), Article 27(1) Article 35 (1), Article 47(1) & (2), Article 50(1),50(2)(c) and50(2)(j) of the Constitution.
f) A declaration that the Pre-trial adverse publicity of evidentiary documents, images of the Petitioner and properties searched and seized from the Petitioner orchestrated by the Respondents in the electronic media at http://www.facebook.com/copliberty, contravened the Petitioner’s inherent, inalienable, universal, fundamental, legal and constitutional right to be presumed innocent until proven guilty and the Right to Privacy enshrined in Articles 31, the Right to Fair hearing in Articles 50(1) and 50(2 ) and further contravened Section 79 (2) Evidence Act Cap .80 of the laws of Kenya, Sections 13, 20, 121 and 130 of Proceeds of Crime and Anti Money Laundering Act, sections which provide for preservation of secrecy and control, access and use of such privileged information obtained in the course of investigations and trial.
g) A declaration that the Respondents’ confiscation of Petitioner’s properties, Motor Vehicles Registration No. KBK 500A and KCD 645P is inhumane, demeaning and degrading treatment in contravention of Article 40(1) of the Constitution.
h) A declaration that the Respondents’ confiscation of the Petitioner’s Original Academic certificates and refusal to return them heretofore has violated his Right to work, to free choice of employment based on his academic capabilities and to protection against unemployment as enshrined in Article 31(a) and (b) of the constitution, Article 28, 43(1) and 47(2) of the Constitution and Article 23 (1) of the United Nations Declaration of Human Rights.
i) A declaration that the Respondents’ use of force and threats for the petitioner to sign and accept documentary evidence to be used in High Court Civil Suit No. 45 OF 2017 Carl Douglas Rusnell Fernwood Developments Limited-Versus-Joseph Bushebi while in Muthaiga Police cells without allowing him to read and understand their contents, violated the Petitioner’s rights to dignity (Art. 28), rights of a detained person, arrested and persons held in custody (Art. 49 (1d) & 51), and an abuse of Article 157(11) of the Constitution and Section 193A of the Criminal Procedure Code.
j) A declaration that the Respondents have manipulated and abused the mechanisms of the Criminal Justice system Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura and related Miscellaneous criminal proceedings to aid the civil cause in High Court Civil Suit No. 45 of 2017 Carl Douglas Rusnell Fernwood Developments Limited-Versus-Joseph Bushebi contrary to Article 157(11) of the Constitution.
k) A declaration that it is not constitutionally permissible and in accordance with the rule of law, public interest and public policy for the 3rd Respondent to pursue civil forfeiture of alleged Proceeds of Crime or realizable assets charged in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura, namely a Block of Apartments at Utawala registered as LR NO. 6845/72/36, Property Registered as Nairobi/118/859, Leased Plot at No. 209/28/1, 2 Motor Vehicles Reg. No. KBK 500A make Toyota Land cruiser and KCD 645P make Toyota Axio.
l) A declaration that, the only body corporate with the legal mandate of combating money laundering is the Assets Recovery Agency as established under Section 53 of the Proceeds of Crime and Anti-Money Laundering Act No.9 of 2009 and Section 131 of the Proceeds of Crime and Anti-Money Laundering Act No.9 of 2009.
m) A declaration that the Petitioner is entitled to damages as redress in respect of each of the above rights that were and continue to be breached by the Respondents.
n) An order of stay of the Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura pending the hearing and determination of this petition.
o) An order of prohibition do issue directed to the 4th Respondent prohibiting it and/or any other Court of concurrent jurisdiction from hearing, proceeding with and determining Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura.
p) An Order of certiorari be issued removing into this Court and quashing the entire proceedings and the charge sheet against the Petitioner before the Chief Magistrates Court at Milimani Law Courts in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura.
q) A Judicial Review order by way of an order of Certiorari be issued to remove into this Court and quash the ex parte warrants namely Criminal Miscellaneous Application no. 2508 of 2016; Criminal Miscellaneous Application no. 2722 of 2016; Criminal Miscellaneous Application No. 2390 of 2016; Criminal Miscellaneous Application No. 2391 of 2016; Criminal Miscellaneous Application No. 1916(A) of 2017 and Criminal Miscellaneous Application No. 1916(B) of 2017.
r) An Order of mandamus be issued compelling the Respondents to return to the Petitioner his Academic Certificates and any documents taken from him, within 14 days of this Order, namely: Original Fulbright FLTA Certificate dated 2010 from Syracuse University; Original Fulbright FLTA Certificate of Attendance dated 13th December, 2009; Original transcripts for academic year 2009-10 from Syracuse University, New York; Original Degree certificate from Kenyatta University; Original Academic transcripts for years 1, 2, 3 and 4, from Kenyatta University; Original Computer studies Certification & Transcripts from Line and Circle Institute of Kenya dated December, 2000; Original Computer studies Certification & transcripts from Horizon Technology Institute of Kenya, dated November, 2000; Original KCSE School Leaving Certificate (1998); Original KCSE result slip issued by KNEC; Original KCPE School Leaving Certificate (1994) issued by KNEC; Original KCPE result slip issued by KNEC.
s) An Order of mandamus be issued compelling the Respondents to return to the Petitioner his Motor Vehicles Registration Nos. KBK 500A and KCD 645P seized from his residence, within 14 days of this Order.
t) A Permanent prohibitory injunction is issued against the 3rd Respondent from using documentary evidence obtained directly from Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura and related ex parte proceedings to support his civil claims.
u) An Order for exemplary and punitive damages be issued against the 1st, 2nd and 3rd Respondents individually, jointly, and severally on account of their gross violation of the Petitioner’s fundamental freedoms and rights as enumerated in the Petition.
v) The 1st, 2nd and 3rd Respondents be directed to bear the costs of this Petition individually, jointly and severally.
w) Further, or other relief, direction, writ or order that the Court may consider appropriate for the purpose of enforcing or securing the enforcement of the provisions of the Constitution that the Petitioner has identified as having been, are being, or are likely to be contravened by the Respondents.
Petitioner’s Case
4. The Petitioner depones that he presented himself to the 2nd Respondent on 30th January 2017. This was in view of a complaint lodged by one, Henrich Neuwirth from Canada on 26th May 2016. The Petitioner was then arrested and arraigned before the 4th Respondent on 31st January 2017.
5. The Petitioner alleges that on the same day, the Chief Inspector of Police, Abel Ongeri alongside a private investigator and the Director of Advanced Forensics Ltd, Sebastian Omboto, came to the police cell and forced him to sign some documents while threatening him with dire consequences if he failed to do so. He alleges that these documents were in relation to the suit in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura which had been instigated against him and his wife, the Interested Party herein.
6. The Petitioner depones that the 1st Respondent on 3rd February 2017 recommended that he be charged in the matter for various counts being, Count I: Conspiracy to defraud contrary to Section 317 of the Penal Code, Count II: Stealing by Directors Contrary to Section 282 of the Penal Code and Count III: Money Laundering contrary to Section 4 as read with Section 16 (I) (a) of the Proceeds of Crime and Anti-Money Laundering Act 2011.
7. He argues that these are false and malicious charges as no proper investigations were carried out prior to this. Moreover, that the suit matter was instigated to aid the 3rd Respondent’s interests, despite this party never having been in Kenya. The Petitioner asserts that the 4th Respondent’s indulgence of this unknown and unverified person who went on to issue his testimony in Court against him in the alleged illegal criminal proceedings, violated his right under Article 50 of the Constitution.
8. He informs that following Henrich Neuwirth’s complaint a series of applications were filed by the 2nd Respondent’s officers before the 4th Respondent wherein court warrants were issued. The Petitioner asserts that these warrants were utilized by the 2nd Respondent’s officers to violate his rights. He adds that he was not issued with the Court proceedings and copies of warrants in the said matter thus violating his right to be issued with reasons and to lodge an appeal.
9. The Petitioner further decries that the police officers who conducted the search at his residence at Kamulu, Nairobi, pursuant to Criminal Miscellaneous Application no. 2508 of 2016, Republic Versus Joseph Bushebi, did not account for the items that they seized. He claims that one of the investigation officers, Walter Oginga uploaded images of the seized items on his personal facebook platform without any Court Order.
10. As a result, he argues that this subjected his private affairs to the public in breach of his and family’s rights and was also in breach of Sections 13, 20, 121 and 130 of Proceeds of Crime and Anti Money Laundering Act which provide for preservation of secrecy and control of access and use of such privileged information acquired during investigations and trial.
11. Furthermore, the Petitioner asserts that the search warrants issued in the said matter, restricted the police officers on the items to be searched for and taken possession of, being, documents, stamps, seals and computers in relation to the alleged committed offenses. It is however stated that on 17th August 2016, the 2nd Respondent’s officers led by Chief Inspector Abel Ongeri and Inspector Walter Oginga defied the Court Order and carried away items and documents which were not sought in the said order.
12. Particularly, the officers confiscated all of the Petitioner’s original Academic Certificates and college transcripts without any justification. His attempts to get these documents back is said to have been futile. As a result, he argues that he is not able to secure meaningful employment. In addition, the Petitioner depones that the officers also seized his Motor Vehicles Reg. No. KBK 500A and KCD 645P which were also not covered in the issued warrant.
13. The petitioner depones that subsequently, the 3rd Respondent instigated a civil suit against the Petitioner in High Court Civil Suit No. 45 of 2017 Carl Douglas Rusnell & Fernwood Developments Limited-Versus-Joseph Bushebi in order to pursue the laundered assets as charged in Milimani Criminal Case No. 1315 of 2016 Republic Vs Joseph Bushebi & Cecilia Nyambura. Specifically, these are: A Block of Apartments at Utawala registered as LR NO. 6845/72/36, Property Registered as Nairobi/118/859, Leased Plot at No. 209/28/1, Motor Vehicles Reg. No. KBK 500A make Toyota Land cruiser and Motor Vehicles Reg. No. KBK 500A KCD 645P make Toyota Axio.
14. The Petitioner claims that to sustain this civil suit the 3rd Respondent relied on the evidence obtained by the 1st and 2nd Respondent’s in the ongoing criminal proceedings before the 4th Respondent. On this premise, the Petitioner postulates that the 3rd Respondent colluded with the 1st and 2nd Respondent to commence the criminal proceedings against him.
15. Furthermore, the Petitioner is aggrieved that the documentary evidence being utilized is part of the privileged prosecution evidence seized on various dates on account of the warrants that were issued. He asserts that instead of returning to Court to file a return of the seized evidence, the 2nd Respondent’s officers proceeded to supply the same to the 3rd Respondent. He additionally contends that he was never supplied with these documents and neither was he given the 3rd Respondent’s complaint that instigated the criminal matter.
16. The Petitioner is grieved that the initiated criminal proceedings are malicious with the key aim of aiding the 3rd Respondent’s civil suit not necessarily to punish the alleged crimes therein. In this regard, the Petitioner contends that the Respondents acted ultra vires and contrary to their constitutional duty and acted ultra vires.
17. The Petitioner further argues that the said civil suit seeks forfeiture of the subject assets, yet such a claim ought to have been filed under the provisions of Proceeds of Crime and Anti-Money Laundering Act, by the director of the Assets Recovery Agency not the 3rd Respondent.
18. In this regard, he further claims that the 3rd Respondent enlisted the help of one, Kennedy Ogetto and the Chairperson of the Anti-Money Laundering Advisory Board, at the time, to pursue civil forfeiture of the alleged proceeds of crime. According to him, the Chairman improperly influenced and furthered the private interests of the 3rd Respondent.
19. In light of the foregoing averments, the Petitioner is certain that his constitutional rights were violated by the Respondents and thus brings this suit against them seeking the sought relief.
1st Respondent’s case
20. The 1st Respondent in response filed Grounds of Opposition dated 12th April 2023 on the premise that:
i. No evidence has been advanced by the Petitioner and the Interested Party to demonstrate that the charges levelled against them in Milimani CMCC No 1315 of 2016 is an abuse of both the 1st Respondent’s prosecutorial powers and an abuse of the court process.
ii. The Petitioner and the Interested Party have not demonstrated to this court the prejudices they will suffer in the ongoing prosecutions of Milimani Criminal Case Number 1315 of 2016. They must demonstrate that substantial injustice would otherwise result if the criminal proceedings are not stayed. The trial court is an impartial arbiter and should be given an opportunity to determine the impugned lower court matter on merit.
iii. The 1st Respondent made a decision to charge in accordance with Article 157 (6), thereby upholding the provisions of Article 157 (10) & (11) of the Constitution. Therefore, Criminal Case Number 1315 of 2016 is constitutional and properly instituted.
iv. The 1st Respondent made decision to charge the Petitioner and the Interested Party based on overwhelming evidence on the prosecution file. Therefore, the trial court should be left alone to weigh the prosecution evidence on the scales of justice for the guilt to be convicted and punished and the innocent, if any, to be acquitted.
v. The Petitioner and the Interested Party have not demonstrated that the decision by the Respondent to charge them is illegal, unfair and irrational, therefore unconstitutional.
vi. The Petitioner and the Interested Party have not persuaded this court that their Petition raises a serious issue worth the determination of this court.
vii. A complaint was made to the police by the 3rd Respondent and it is in the public interest that such complaints made to the investigative agency be investigated and the perpetrators of crimes are charged and prosecuted.
viii. The Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per Articles 47, 48 and 157 (11) of the Constitution.
ix. The accuracy and correctness of evidence or facts in a prosecution file can only be assessed and tested by the trial court which is best placed to analyze the quality and sufficiency of the evidence to be adduced in support of the charges in Milimani Criminal Case number 1315 of 2016.
x. The charge against the Petitioner and the Interested Party are known in law under Section 317 and 282 of the Penal Code and Section 4 and 16 (1) (a) of The Proceeds of Crime and Ant-Money Laundering Act.
xi. It is lawful for both civil and criminal proceedings to run concurrently under Section 193A of the Criminal Procedure Code which provides; ‘Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings’.
xii. The Petitioner has not adduced any iota of evidence to the effect that the 1st Respondent aided officers of the 2nd Respondent to seize documents of the Petitioner and furnished them on the 3rd Respondent so as to commence civil proceedings against the Petitioner.
xiii. The Petitioner has not adduced any iota of evidence to the effect that the 1st Respondent seized documents and motor vehicles registration numbers KBK 500A and KCD 645P, the property of the Petitioner and went away with them.
xiv. The orders and declarations sought are therefore not tenable against the 1st Respondent as the Petitioner and the Interested Party have not shown how the criminal proceedings in Criminal Case Number 1315 of 2016 are unconstitutional and how the 1st Respondent has infringed on their constitutional rights worth calling for the orders sought.
xv. The Petition is without merit and should be dismissed with costs.
2nd and 4th Respondents’ Case
21. These Respondents’ in opposition to the Petition filed their Grounds of Opposition dated 5th May 2023 on the basis that:
i. Arrest and detention of a person are legal processes provided for by law with specific constitutional safeguards, and do not amount to infringement on the fundamental rights and freedoms of the Petitioner.
ii. The Petitioners’ rights under Article 27, 28, 31, 35, 39, 40, 43, 47, 47, 49, 50 and 51 of the Constitution are not absolute and are subject to limitations contemplated under Article 24 of the Constitution.
iii. By dint of section Article 245(4)(a) and (b) of the Constitution and section 24, 27 and 35 of the National Police Service Act Cap 84, the 2nd Respondent has a constitutional and statutory duty to investigate offences.
iv. The petition runs afoul to the authority and exercise of constitutional and statutory powers and functions vested upon the 2nd Respondent under Article 245 of the Constitution and relevant provisions of the National Police Service Act Cap 84.
v. In exercise of their constitutional powers and functions, the Respondents are bound by the national values and principles of governance as provided for under Article 10 and the duty to comply with constitutional standards of human rights and fundamental as provided for under Article 244 of the Constitution.
vi. The constitutional and statutory mandate conferred upon the respondents can only be interfered with by the Court where it has been sufficiently demonstrated that they have acted arbitrarily and contrary to their constitutional powers and mandates.
vii. No evidence has been adduced before this Court demonstrating any prejudice, damage, harm or injury suffered by the Petitioner as a result of the arrest, detention, charge or other alleged illegal actions of the 2nd and 4th Respondents.
viii. Both the Application and petition are based on mere apprehension and unfounded fears; they preempt the presentation of evidence and are presumptive of the finding by the trial court; the Petitioner by dint of Article 50 of the Constitution can challenge the veracity of the evidence against him including whether the evidence was properly obtained.
ix. Grant of the reliefs sought in the circumstances of this case will frustrate, rather than advance the rule of law. The Petitioner’s constitutional safeguards in respect of his rights while undergoing trial are still guaranteed.
x. Grant of the reliefs sought potentially threatens the Petitioners’ right under Article 50, in particular, the right to have the trial begin and conclude without unreasonable delay.
xi. He who alleges must prove. The petitioner has failed to evidentially demonstrate how the 2nd Respondent acted illegally, arbitrarily, unjustly, irregularly or oppressively in conducting investigations against him or how any of his rights so far have been violated or are being threatened with violation by the on-going prosecution against him.
xii. On the strength of Section 193A of Criminal Procedure Code, the Petitioner’s Application and petition are a non-starter, untenable and misconceived. The fact that there exist civil proceedings emanating from the same subject matter is not a bar to institution and continuation of criminal proceedings.
xiii. Section 34 of the Evidence Act Cap 80 allows for the admission of evidence in judicial proceedings in subsequent proceedings, including those of a civil nature.
xiv. The Petitioners are merely apprehensive having failed to demonstrate that the trial magistrate is or will be biased, not accord them a fair hearing, has acted contrary to the constitution, the criminal procedure code or any other written law or has acted contrary to judicial code of conduct therefore not able to dispense justice accordingly.
xv. The criminal process provides for a process of an appeal where the accused if aggrieved by the decision in question, can pursue. Furthermore, the petitioner can pursue compensation by way of a claim for malicious prosecution.
xvi. The Petitioner’s Application and Petition are unmeritorious, an abuse of the court process and an attempt by the Petitioner to delay the hearing and determination of the criminal case against him.
22. The 2nd Respondent additionally filed a Replying Affidavit sworn by its officer in the Economic and Commercial Crimes Unit, Francis Mulinga on 3rd May 2023.
23. He depones that the 2nd Respondent has been investigating the allegations of fraud lodged by the 3rd Respondent through the High Commission of Canada in Nairobi on 26th May 2016.
24. He stated that the 3rd Respondent a Canadian citizen lodged a complaint of fraud to the Royal Canadian Mounted Police who carried out their investigations and referred the matter to the High Commission of Canada in Kenya. The Commission conversely forwarded the matter to the 2nd Respondent for further investigations being that the alleged crime had occurred in Kenya.
25. To commence its investigations, the 2nd Respondent’s officers obtained several applications in Court so as to investigate the matter. Particularly, the financial trail on how the money had been deposited and withdrawn. He informs that the investigations team also recorded statements from owners of hardware’s whom invoices had been used and sent to the 3rd Respondent by the Petitioner.
26. It is stated that the investigations unearthed that the 3rd Respondent had transferred Kshs.62,233,650 into account No.041000016467 at Family Bank, under the name of Bushnell Developers Limited wherein the Petitioner and the 3rd Respondent are the directors. To procure these monies, the Petitioner had told the 3rd Respondent that the amount was going to be used for construction of warehouses which they would thereafter lease and get revenue.
27. He avers that the Petitioner sent several warehouse rental lease agreements to the 3rd Respondent purporting that the warehouses had been completed and leased to various companies. The investigations however established that no such warehouses had ever been constructed. Instead, the Petitioner used the monies to build a bungalow for his residence registered under plot No.LR. No.6845/72/36, several rental units along Thika Road and also purchased the two seized vehicles. The Petitioner in addition edited the said account to account number 041000016400 under the name Wekesa Consultants.
28. It is claimed that when the Petitioner became aware of the instant investigations, he went into hiding for six months. The Petitioner later resurfaced after the Interested Party had been arrested and arraigned in Court as one of his accomplices.
29. He refutes the Petitioner’s claims that the 2nd Respondent’s officers went to his cell and forced him to sign various documents. He notes that the Petitioner had a right to lodge a complaint in that regard with the OCS however no evidence was adduced to indicate that such a complaint was made.
30. He makes known that the 3rd Respondent was sick and frail hence could not make a flight to Kenya to testify physically. As a result, the 2nd Respondent applied for a video link testimony so that he could testify. He informs further that all the evidence obtained in this matter was supplied to the Petitioner in 2018 and received by his Counsel who signed the inventory. As such, the claim otherwise is said to be false.
31. In like manner an inventory of the seized items from the Petitioner’s house was supplied and signed by the parties present and filed in Court. The seized vehicles are said to have been confiscated as were procured from proceeds of crime and money laundering, which the Petitioner has already been charged with before the criminal court.
32. He asserts in light of the foregoing that the Petitioner has not demonstrated how the criminal justice system was manipulated. As a consequence, he reasons that the Petition is vexatious and an abuse of the court process.
3rd Respondent’s Case
33. The 3rd Respondent in reaction to the Petition filed his Replying Affidavit sworn on 23rd March 2023.On the onset, he makes known that the Petitioner has filed numerous applications before the High Court and Magistrates Court in an effort to frustrate the criminal and civil suits instigated against him. He asserts therefore that the instant suit is an abuse of the Court process and has not
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