Background;
1. The application before this Court is the Notice of Motion dated 2nd October, 2023. The application is brought Order 53 Rule 3 (1) of the Civil Procedure Rules, Section 8 and 9 of the Law Reform Act Cap 26, and all other enabling provisions of law It seeks the following orders:
A. AN ORDER OF CERTIORARI to bring before the High Court and quash the charge sheet and subsequent proceedings in Nairobi Criminal Case Number E758 of 2023, Republic versus Micheal Waweru Njenga & Juma Luande.
B. AN ORDER OF MANDAMUS to bring before the High Court and compel the Respondents to stop the commencement and proceedings to try the Petitioners in Nairobi Criminal Case Number E758 of 2023, Republic versus Micheal Waweru Njenga & Juma Luande for charges that he has already been acquitted on.
C. AN ORDER OF PROHIBITION to bring before the High Court and prohibit the Respondent from charging, arraigning and proceeding with any criminal trial against the Petitioners in relation to the offence of conspiracy to defraud, uttering false documents and or making any document without authority in relation to LR. No. 1870/Vl/80 including prohibiting the Respondents from requiring the Petitioner to take plea before any court in Kenya in respect to the aforesaid charges.
2. The application is supported by an amended Verifying Affidavit of one Juma Luande Mudogo sworn on 26thSeptember, 2023 and Statutory statement dated 26thSeptember, 2023.
3. The Applicants aver that by virtue of the Power of Attorney dated 11th October, 2017, the 2nd Applicant appointed the 1stApplicant to be his attorney in all matters related to Land Reference Number 1870/VI/80, which authority included to institute and defend any suit in relation to L.R. No. 1870/VI/80.
4. It is their case that the 2nd Applicant in the year 1997 purchased the disputed property from Consolata Missionary Sisters for the sale price of Kshs. 7,000,000 and together with together with the Consolata Missionary Sisters proceeded to execute an indenture dated 31st December, 1999, which transferred the property rights of the disputed property from Consolata Missionary Sisters to the himself.
5. The Applicants posit that the disputed property being a Government Land Act title, the transfer of ownership was duly registered in the title itself, as done with the previous transactions involving the disputed land, of which the entire history of the transactions over the disputed land exists and having purchased the property, the 2nd Applicant commenced the process of extension of the lease period which was set to lapse in the year 2003.
6. It is their case that in the midst of seeking for extension of the lease over the disputed property, the 2nd Applicant was met with a tirade of challenges from the 5th Respondent as below highlighted: -
a. The 2nd Applicant was accused of having forged and presented various alleged forged documents to have the disputed property transferred to him, culminating into him being charged in Nairobi Criminal Case No. 1955 of 2000, Republic Vs Micheal Waweru Njenga, which was decided in his favour in the year 2003.
b. The 2nd Applicant was incarcerated in police custody for a period of fourteen (14) days without being presented to court, during which period the 5thRespondent proceeded to evict his tenant then occupying the disputed property, Hon. Justice Onesmus Githinji.
c. The 5th Respondent proceeded to fraudulently and with intent to dispossess the 2nd Applicant herein of his property, create unlawfully a title in her name and that of her now deceased husband.
d. The 2nd Applicant in order to gain back his title proceeded to seek remedy at the National Land Commission and Registrar of titles.
i. Both the 2nd Applicant and the 5th Respondent were duly summoned at the National Land Commission and before the Registrar of Titles to present their original documents for verification.
ii. The 2nd Applicant duly complied with the summons, while the 5th Respondent did not comply, leading into both the National Land Commission and Registrar of title concluding that only the 2ndApplicant’s title is valid and that the fake title in custody of the 5th Respondent should be expunged.
iii. The 5th Respondent did not from the time which such decisions were passed seek to set them aside or appeal against the same.
iv. Following the above, the lease as had been sought to be extended was duly registered in the name of the 2nd Applicant as the rightful owner.
v. It is kind to note that the alleged 5th Respondent’s title was allegedly registered prior during the pendency of the initial lease, which was to lapse in the year 2003.
vi. It is also kind to note that at no point was the 2ndApplicant given an opportunity to be heard on any non-extension of the lease and its issuance to the 5thRespondent.
7. The Applicants contend that the 2nd Applicant thereafter proceeded to take steps to gain possession of the suit property, of which after gaining possession was met goons as hired by the 5th Respondent herein and suit Nairobi ELC Case No. E183 of 2021, Jane Wairimu Mwangi vs. Micheal Njenga Waweru & others.
8. It then followed that the 2nd Applicant, through the 1stApplicant as his attorney, proceeded to put in a defence and counterclaim to the suit, of which following pre-trial having been conducted the ELC Case was fixed for hearing on the 21stSeptember, 2023 on which date the 5th Respondent was cross-examined on the genuineness of her alleged title and all documents in relation to L.R. No. 1870/VI/80 (hereinafter the “Disputed Property”, which cross examination was able to establish among others:
(i) That the 5th Respondent (Jane Wairimu Mwangi) did not have any genuine document to prove that she purchased the Disputed Property from anyone including the previous owner of the Disputed Property as per the records at Ministry of Lands.
(ii) That none of the documents as presented by the 5th Respondent alleging she was allotted the Disputed Land, proved her compliance with the terms and conditions of the alleged offer letter allegedly granting her the Disputed land.
(iii) That her alleged acquisition of the disputed land by being issued with an alleged title, came prior to the disputed land being surveyed and deed plan being extracted, indicating her forgery of the title to the disputed land.
(iv) That her allegation that the 1st Applicanthad been fraudulent was rebutted as there was an existent judgment, where she was the complainant, in Nairobi Milimani Criminal Case No. 1955 of 2000, of which the 2nd Applicant had been acquitted vide a judgment delivered on the 25th June, 2003 (hereinafter “first criminal case”, following all the witnesses from the Ministry of Lands testifying that all the documents as presented by the 1st Petitioner for registration of the Disputed land in his name were valid and correct.
9. It is their case that the matter was adjourned to 2nd November, 2023 and no sooner had the matter been adjourned, than the 5th Respondent called members of the 2ndRespondent, specifically one Godfrey Mburugu, whom had been adversely mentioned in the ELC Case, to arrest and incarcerate the 1st Applicant on tramped-up charges.
10. The Applicants deponed that on 21st September, 2023, just after leaving the court, but within the Court’s precincts, the 1stApplicant was arrested and driven to the DCI Head Quarters along Kiambu Road, where he was informed of the charges facing the 2nd Defendant and myself including, allegation of making without authority documents in relations to the disputed property to wit, Letter of Extension of Lease and Letter of Allotment for Renewal of Lease.
11. The Applicants contend that the said Charges were similar to those which in the First Criminal Case in which the 2ndApplicant had already been acquitted for. Further, the charges are also the same as those being tried and the 5th Respondent had been cross-examined on in the ELC Case.
12. The 2nd Respondent proceeded to present the Applicants in court on 22nd September on Nairobi Criminal Case Number E758 of 2023, Republic versus Micheal Waweru Njenga & Juma Luande (hereinafter referred to as “Second Criminal Case”), with among other charges of conspiracy to defraud the 5th Respondent, of the disputed land and Making of documents in relation to the disputed property without authority.
13. The Applicants posit that by dint of Section 89(5) of the Criminal Procedure Code, they proceeded to seek to have the plea to the charges preferred deferred in the second criminal case, on the basis among others that the court, as per Section 279 of the Criminal Procedure Code, needed to establish whether the charges could stand in light of the fact that similar charges had already been presented and the accused/petitioner herein acquitted on the same charges (the doctrine of autrefois acquit) which application was opposed by the Respondent.
14. The Applicant’s aver that plea taking was deferred to 2nd October, 2023 in breach of their rights and violation of Articles 50(2)(o), 50(5)(a), 48, 27(1) and 29(d) of the Constitution of Kenya.
15. The Applicants deponed that the following issue are clear with regards their charge sheet:
a. The new charges as drafted relate to the year 2007 and 2010, which dates the 2nd Applicant disputes knowing the 2nd Applicant nor had even been appointed his attorney.
b. The new charges relate exactly to the fact and issues as presented in the first criminal case, which the 2nd Applicant herein (Micheal Njenga Waweru) was acquitted based on various evidences from the officials of the ministry of lands including:
c. That the new charges are backdoor appeal or an attempt to set aside the decision of the National Land Commission given on the 25th April, 2018which confirmed among others that the title of the disputed property actually belonged to the 2ndApplicant thus:
“In the premises, the Chief Land Registrar is hereby directed to effect registration of the property in favour of the Complaint, Micheal Njenga Waweru who is the rightful owner of the property and revoke any other purported registration over the land (L.R. 1870/VI/80) if any.”
d. That only way one would set aside the above two cases and decision would be an appeal to the High Court in respect of the first criminal case and a Judicial Review application in respect to the National Land Commission Decision of 25th April, 2018 and not commence new charges as done in the present case.
16. The Applicants filed their written submissions dated 28th May, 2024 where they submit that the bed rock of their application is that Criminal proceedings cannot and should not be used to force the hand of the accused person to drop a civil claim and make reliance on the case of Jirongo vs. Soy Developers Ltd & 9 Others, [2021]KESC 32 KLR where the Supreme court proceeded to highlight, inter-alia as below:
“We respectfully agree and adopt this position in this case but must add that where it is obvious to a court, as it is to us and was to the learned judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then Section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd Respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book.” (Emphasis ours)
17. They also make reliance to the case of Republic vs. Chief Magistrates’ Court at Mombasa exparte Ganijee & Another [2002] eKLR where it stated:
“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute…when a prosecution is not impartial or when is it being used to further a civil case, the court must put to a halt the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of court, oppressive or vexatious, prohibition and or certiorari will issue and go forth.”
18. It is also their submission that Courts have jurisdiction to review the prosecutorial powers and investigations by the Director of Public prosecution. This is as provided by Article 165(6) of the Constitution of Kenya which stipulates that:
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”
19. They make reliance on the Jirongo Case and Saisi Case, the Supreme Court was categorical thus:
“The Supreme Court of India in RP Kapur v. State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the court when the High Court may review prosecutorial powers. They are as follows:
(i) Where the institution/continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would ensure the ends of justice; or
(ii) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings e.g. want of sanction
(iii) Were the allegations in the first information report or complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged or
(iv) Where the allegations constitute an offence alleged but there is either no legal evidence adduce or evidence adduced clearly or manifestly fails to prove the charge.
20. The Applicants submit that Nairobi ELC Case No. 183 of 2021, Jane Wairimu vs. Micheal Njenga Waweru & others was pending and had not been concluded and that the issues raised therein were directly those that the Respondents herein were attempting to resolve through the criminal process, the same is indeed an abuse of the court process.
21. It’s their case that the 1st and 2nd Respondents fell short of the Constitutional expectation of independence, impartiality and objectivity. As noted above, neither of them is supposed to take directions from or act at the behest of any third party in the discharge of their respective obligations. However, they fell short of this requirement by acting at the behest of the 5thRespondent.
22. They contend that the charges against them could not stand as the doctrine of autre-foise acquit had caught up with the said charges.
23. The Applicants also contend that the 1st and 2nd Respondents actions reek of bias and fall short of the various constitutional principles and values that underlie the exercise of their respective powers. Also the The 3rd Respondent as per the Constitution of Kenya is required to be impartial and not taking the position of either accused or prosecution.
24. The Applicants urge this court to be guided by the findings in the cases of
a. Njuguna S. Ndung’u vs. Ethics & Anti-Corruption Commission (EACC) & 3 others [2018]eKLR where the court found thus: this court would have failed at its duty by allowing the trial to proceed in Nairobi MCCR No. E758 OF 2023, REPUBLIC VS. MICHEAL NJENGA & ANOTHER, where the Court of Appeal stated:
“In my respectful view, the High Court erred in law by failing to scrutinize the charges, the relevant documents including the decision of the Evaluation Committee, Tender Committee, Review Board and the High Court proceedings and reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction.”
b. Philomena Mbete Mwilu vs. Director of Public Prosecution & 3 Others (2019) eKLR, this court should not turn a blind eye on abuse of prosecutorial powers thus:
“…Should there be credible evidence that the prosecution is being used or may be appear to a reasonable man to be deployed for an ulterior or collateral motive other than for advancing the ends of justice, the scrutiny of the facts and circumstances of the case is not only necessary but desirable. This is because it would enhance the administration of justice if the challenged charges were to be properly tested so that any fears of ill motive are dispelled.”
25. On the issue of releifs sought, the Applicants make reliance on the case of Republic Vs. Director of Public Prosecution & 2 others ex-parte Azim Jiwa Rajwani & another [2022] eKLR elaborated on these grounds in the following terms:
“The ex-parte applicant was therefore required to establish the prosecution acted illegally, irrationally, or that there was procedural impropriety in arriving at its decision. In the Ugandan case of Pastoli V. Kabale District Local Government Council & Others (2008) 2 EA 300 at pages 303 to 304 thus:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of id tainted with illegality, irrationality and procedural impropriety…
Illegality is when the decision-making authority commits an error in law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards…
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural justice or to act with procedural fairness towards one affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which an authority exercises jurisdiction to make a decision…”
26. It is their submission that all the three grounds outlined in the above case have been satisfied. As regards illegality, the Applicants have belabored to demonstrate that the 1st and 2ndRespondents’ decisions and actions fell way short of the constitutional parameters that govern the exercise of their respective state powers of investigation, arrest and prosecution. The Respondents’ abuse of their state powers, in themselves, constitutes an illegality that renders their respective actions ultra vires.
1st Respondent’s case;
27. In opposition to the Applicants’ Application, the Respondent filed their Replying Affidavit sworn by CI Godfrey Mburugu on 29th February, 2024 and written submission dated 4th September, 2024.
28. It is its case that a complaint was made on 19th May, 2021 by the 5th Respondent after a forceful eviction of her employees from her parcel of Land Ref IR 88087 LR 1870/Vl/80 location within Westland area in Nairobi.
29. It is its case that all has been normal until the year 2010when one Michael Njenga Waweru (2nd Applicant) emerged claiming ownership of the said land. The matter was reported at Parklands Police Station vide OB 40/12/7/20 10.
30. It argues that in the year 2011 the 5th Respondent and Standard Chartered Bank were summoned by the Principal Land Registrar of titles Ardhi House Nairobi to surrender the original title deed for LR. No. 1870/vi/80 for cancellation in compliance to a purported Court Ordervide Civil Suit No. ELC 395/2010. Through their lawyer one Mahinda & Moina Company Advocates it was discovered that the order was not genuine since the quoted civil suit had different parties. This prompted the Principal Land Registrar of Titles to withdraw the summons which had been served to Standard Chartered Bank who were the custodian of the ownership documents.
31. The 1st Respondent posits that efforts to summon the Applicants have been fruitless and despite the non-corporation of the Applicants they have managed to get various documents especially which the Applicants had been using to lay claim of the disputed land.
32. It is deponed that from the various documents obtained in the investigations they found that the disputed land had two copies of Deed plans: -
i. Deed plan number 48196 of Jane Wairimu Mwangi and Samuel Mwangi Njau (deceased)was prepared for a job done vide Survey PlanF/R No. 412/120 comps. No. 48196 as a Grant Survey carried out in May, 2002.
33. It further deponed that the Applicants have made several attempts to defraud the 5th Respondent even after criminal case number 1955 of 2000 was filed and the new charges being levelled against the Applicants are for various offences which occurred and/or discovered in the process of investigations.
34. It contends that when Criminal Case number 1955/2000was filed the 5th Respondent had not yet been issued with a title deed and its only until 1st July, 2002 that she acquired the Title Deed.
35. It is its case that:
a) that the 2nd Respondent is mandated to investigate all possible criminal offences and an attempt to stop such execution of mandate would result to an even greater injustice in the criminal justice system;
b) that the applicants are seeking to pre-empt and curtail the mandate of the law enforcement agency (investigative department) as enshrined within the Constitution of Kenya;
c) that if at all a crime has been committed, 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 the criminal proceedings;
d) that the applicants have not adduced sufficient evidence before this Court on merit to show that prejudice has been occasioned;
e) that the respondents do not require the consent of any person or authority for the commencement of criminal proceedings;
f) that the respondents are not acting under the direction or control of any person or authority;
g) that the applicants have not demonstrated that the 1st Respondent in executing its mandate, it has acted without or in excess of the powers as conferred by the law or acted maliciously, infringed
36. The 1st Respondent submits that The Office Director of Public Prosecutions is an Independent body established under Article 157 of the Constitution of Kenya, 2010mandated under sub-Articles 10 and 11 respectively which provide that:
i) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers of functions, shall not be under the direction or control of any person or authority.
ii) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the Public interest, the interest of the administration of Justice and the need to prevent and avoid abuse of the legal process.
37. It invokes Section 6 of The Office of the Director of Public Prosecutions Act ,2013 which provides thus:
‘’ Pursuant to Article 157(10) of the Constitution, the Director shall –
a) Not require the consent of any person or authority for the commencement of criminal proceedings.
b) Not to be under the direction or control of any person or authority in the exercise of his or her powers or functions under the Constitution, this Act or any written law; and
c) Be subject to the constitution and the Law.”
38. It further submits that decision on whether or not to prosecute as guaranteed by the Constitution only resides in the independent office of the Director of Public Prosecutions which decision cannot be arrogated by any person or state organ.
39. It makes reliance on the case of David Kipruto Chingi &Another V Director of Public Prosecutions & 2 Others [2016] eKLR, the Court of Appeal held that:
“..In the Kenya Constitution , the Office of Director of Public Prosecution is an independent Office with clearly defined functions. In principle, it is not the work of the courts to interfere with other State Organs unless it can be shown that they violate the Constitution; each State Organ must be allowed to function without interference.”
40. Further, in Thuita Mwangi & 2 Others V Ethics & Anti-Corruption Commission & 3 Others [2013] eKLR, the court stated thus;
“The decision to institute criminal proceedingsby the DPP is discretionary. Such exercise of power is not subject to the direction or control by any authority as Article 157(10) … Theseprovisions are also replicated under section 6of the Office of the Director f Public Prosecutions Act, No. 2 of 2013.”
41. It submits that in the case of Pauline Odhiambo Raget v Director of public Prosecutions & 5 Others [2016] eKLR the court observed at paragraph 47 and 59 thus;
“47…. It is not for this court to sieve through the evidence and determine whether or not the Petitioner ought to be prosecuted. It would not only be speculative for the court to state that it is wrong to prosecute the Petitioner when the decision is yet to be made but also a usurpation of a role which has been exclusively reserved both by statute as well as by the Constitution for another office in the 3rd Respondent.
59. It must be first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1stRespondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any Criminal activities.”
42. The 1st Respondent also invokes Article 50(2) of the Constitution of Kenya, 2010 states thus;
“Every accused person has the right to a fair trial, which includes the right-
(o) not to be tried for an offence in respect of an actor omission for which the accused person has previously been either acquitted or convicted.’’
43. It aruges that in so far as the accused person was acquitted in criminal case No. 1955 of 2000, it was not Pari material with the instant case. The complainant is different, the facts are different, the charges are different. The offence in respective files was committed at different period of time.
44. In the case of Conelley Vs DPP 1964 2 All ER 401 the accused was prosecuted on a charge of Murder and a second charge of Robbery with Aggravation was held in abeyance. The accused was convicted on the charge of murder which conviction was later quashed. He was then tried on the count of Robbery with Aggravation. The accused objected to this second trial and pleaded ‘autrefois acquit’. The House of Lords in England rejected this plea and held that a plea of ‘autrefois acquit’ does not protect a person from further prosecution for a different offence on the same facts simply because he had been prosecuted on those facts and acquitted.
The court in that case set out the principle as follows:
(iv) that one test whether the rule applies is whether the facts which constitute the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a conviction on the first indictment either as to the offence charged or as to an offence which on the indictment the accused could have been found guilty.
(v) That this test must be subject to the proviso that the offence charged in the second indictment had in fact been committed at the time of the first charge;
(vi) That on a plea of autrefois acquit convict or autre fois convict a man in not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but that he may prove by evidence all such questions as to the identity of persons, dates and facts as are necessary to enable him show that he is being charged with an offence which is either the same or is substantially the same as one in respect of which he has been acquitted or convicted or as one in respect of which he could have been convicted;
(vii) That what has to be considered is whether the crimeor offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged in a former indictment and it is immaterial that facts under examination or the witnesses being called in the later proceedings are the same as those earlier proceedings;
(viii) That apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies”
45. The 1st Respondent contends that The investigation of a complaint and prosecution thereof cannot be said to be violation of the Applicants Constitutional rights. In the case of Kipoki Oreu Tasur V Inspector General of Police & 5Others [2014] eKLR where it was held: -
“The criminal justice system is critical pillar of our society. It is underpinned by the constitution and its proper functioning is at the core of the rule of law and good order in society, that it should be allowed to function with no interference from any quarter or restraining from the superior courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated.”
46. The 1st Respondent submits that the Application/Petition isunassailable and urges this court to dismiss it.
2nd, 3rd and 4th Respondents’ case;
47. In opposition to the Applicants’ Application, the Respondent filed their Replying Affidavit sworn by CI Godfrey Mburugu on 2nd November, 2023 and written submission dated 4th June, 2024.
48. It is their case that on 19th May, 2021, the 5thRespondent reported to DCI Headquarters vide DCI Complaints referral form ref. CID/C/GEN/COMP/6/11/2021/1013 dated 19th May, 2021 (A1) after a forceful eviction of her employees from her parcel of Land Ref; IR 88087 LR 1870/VI/80 located within Westland area in Nairobi, measuring 0.2020 hectors. She alleged that one Michael Njenga Waweru and Juma Luande Mudogo had fraudulently attempted to grab land Ref; IR 88087 LR 1870/VI/80 jointly owned by herself and her now deceased husband Samuel Mwangi Njau.
49. The 5th Respondent stated that she was allocated land Ref; IR 88087 LR 1870/VI/80 on 28th May, 1999 jointly with her now deceased husband Samuel Mwangi Njau and a title deed for Grant No. 88987 LR No. 1870/VI/80 issued on 01st June, 1999. She supported her claim with a Land Payment receipt of Kshs 252, 460/- as proof of payment, and Deed Plan Number 243139 for LR No. 1870/VI/80 dated 26thJune, 2002.
50. It is their case that the 5th Respondent was directed to the Land Fraud Unit for assistance whereby officers of the 2nd Respondent proceeded to summon the 2ndExparte Applicants to their offices with the aim of aiding in investigations into the allegations raised against them by the 5th Respondent.
51. They posit that the 2nd Exparte Applicant through his Advocates failed to Honour the summons on the grounds that he had earlier been charged vide Milimani Criminal Case No. 1995 of 2000 with the offence of making a false document contrary to Section 347 (a) of the penal code and had later been acquitted under Section 215 of the Criminal Procedure Code on 25th June, 2003.
52. They argue that the 5th Respondent proceeded to file a civil suit against the Ex parte applicants Milimani ELC No. 183 of 2021 which is still pending determination by court.
53. It is deponed that the Ex parte Applicants ‘whereabouts remained unknown up until when Milimani ELC No. 183 of 2021 came up for hearing on 21st September, 2021. And the 2nd Respondents, at the request of the 1st Respondents arrested the 1stApplicant on 21st September, 2023 to answer to fresh charges of fraud. The 1st ex- parte Applicant was presented before the 3rd Respondents to answer to the said charges in Milimani Criminal Case Number E758 of 2023 and by that time, the 2nd ex-parte Applicant had not been apprehended.
54. The Ex-parte Applicants have now filed this Judicial Review proceedings in a bid to defeat justice and deceive this Honourable court of the correct status and ownership regarding Land Ref; IR 88087 LR 1870/VI/80.
55. They argue that the fair administrative Action Act under Section 9 provides for the procedure of the procedure of Judicial Review and states as follows under Sub Section 2;
9. Procedure for Judicial Review
(2) The High court or a subordinate court under Sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
56. Thus they contend that from the above provisions of the law, the High Court cannot review administrative decisions unless the applicants have exhausted all remedies available under any written law – including internal mechanisms of review and appeal.
57. They make reliance on the case of Republic versus Kenya Revenue Authority Ex parte Style Industries Limited [2019 ]Eklr where the court clearly explained the provisions of Section 9 (2) and (3) of the FAAA and stated as follows;
“A proper construction of Section 9(2) and (3) of the FAA Act leads to the conclusion that they are couched in mandatory terms. The only way out is the exception provided by Section 9(4) which provides that;-
“notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above subsection. First, the applicant must demonstrate “exceptional circumstances”.
“The second requirement is that on application by the applicant, the court may grant an exemption. My reading of the Law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of successful application under Section 9(4) of the FAA Act.
58. They submit that Section 35 of the National Police Service Act provides that;
“The Directorate shall—
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 cybercrime among others;
c) Detect and prevent crime;
d) Apprehend offenders;
e) Maintain criminal records;
f) Conduct forensic analysis;
g) Execute the directions given to the Inspector-Generalby the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;”
59. The 2nd 3rd and 4th Respondents contend that Applicant is trying to block the evidence presented by the 2ndRespondents upon realizing the true status of the subject parcel of Land is that the same is duly registered in favour of the 5th Respondent who has tendered all the relevant documentation to prove the true ownership of land Ref; IR 88087 LR 1870/VI/80.
60. They invoke the doctrine of judicial immunity as provided for Article 160(5) of the Constitution, 2010 the which states that;
A member of the judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.
61. Additionally, under statute law the Judicature Act Section 6provides that;
“ No judge or magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that at the time, in good faith believed himself to have jurisdiction to do or order the act complained of; and no officer of a court or other person bound to execute the lawful warrants, orders or other process of a judge or such person shall be liable to be sued in any court for the execution of a warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it.”
62. In the case of Maina Gitonga versus Catherine Nyawira Maina and Another [2015] Eklr where High Court stated as follows;
“It is undoubted that under the established doctrine of judicial immunity, a judicial officer is absolutely immune from a criminal or civil suit arising from acts taken within or even in excess of his jurisdiction.”
63. Further in Michael Osundwa Sakwa versus the ChiefJustice and the President of the Supreme Court of Kenya and 5 others [2016] Eklr the Court stated that;
“In effect the immunity accorded to the Judiciary by Article 160(5) of the Constitution only remains valid and insurmountable as long as its members are exercising their functions in good faith in the lawful performance of such judicial functions.”
64. It is their submission that once the Court is satisfied that the grounds for prohibiting a criminal trial have not been established, it cannot go ahead to try and determine the innocence or otherwise of an accused person. Odunga, J emphasized this point in Republic v Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR when he stated that:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the Court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant.
Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.”
65. They further submit that even if the criminal proceedings in Milimani Chief Magistrates Criminal Case No. E758 of 2023 are unmerited, there exists an avenue for compensation on malicious prosecution and we rely on the case of Ex-parte Ewart Frey Salins (2018) eKLR andRepublic v inspector General of police & 2 others ex-parte Jimi Richard Wanjigi (2019) eKLR where it was held that;
“24. Further, that if it turns out that the proceedings were unwarranted, there exists an avenue for compensation for malicious prosecution and that because of this the power of quashing or prohibiting is used sparingly. Therefore, that the Court in judicial review cannot convert itself as a trial court and determine the merit of the intended or continuing criminal trial or prosecution. It was the Interested Party’s submission in this regard that it is the trial court with the mandate to determine the sufficiency of a charge or otherwise, and is the correct court to do so.”
66. The 2nd, 3rd and 4th Respondents thus pray that the application dated 30th May, 2023 should be dismissed with costs to the Respondents and the 3rdRespondents be given the opportunity to make a determination in Milimani Criminal Case Number E758 of 2023 based on evidence adduced by the 2nd Respondents.
5th Respondent’s case;
67. In opposition to the Applicants’ Application, the 5thRespondent filed their Replying Affidavit sworn by Jane Wairimu Mwangi on 6th March, 28th 2024 and written submission dated 28th July, 2024.
68. It is her case that she is the registered owner of the suit property known as L.R No. 1870/VI/80 having been allocated the same on 28th May 1999 jointly with her deceased husband Samuel Mwangi Njau and a title deed was issued on 1st June 1999. Having paid all the requisite fees and has been paying land rates yearly in respect to the property which she charged to Family Bank where she had been remitted monthly repayments to reduce her loan facility.
69. It is also her case that she has been in occupation of the suit property since 1999 until 19th May 2021 when the Ex-parte Applicants unlawfully and illegally evicted her from the property. The 1st Applicant citing he was acting on behalf of the 2nd Ex-parte Applicant who purported to be the registered owner of the suit property.
70. She deponed that she instituted criminal proceedings against the 2nd Ex-parte Applicant who was charged in Milimani Criminal Case No. 1995 of 2000 with the offence of making a false document contrary to Section 347(a) of the Penal Code and was later acquitted under Section215 of the Criminal Procedure Code on 25th June 2003.
71. She further deponed that the 1st Ex-parte Applicant was never charged with the offence of making a false document.
72. It followed that the 5th Respondent instituted a civil suit against both the Ex-parte Applicants in Milimani ELCNo.183 of 2021, which is a part heard matter and still pending determination by the Court.
73. The 1st Ex-parte applicant was arrested by the 2ndRespondent on 21st September 2023 to answer a charge on fraud on inquiry documents after failing to appear before the 1st Respondent. The 2nd Ex-parte Applicant was however not arrested and the claim by the Ex-parte Applicants that the 5th Respondent intend to salvage the criminal proceedings is false.
74. The 5th Respondent contends that The Ex-parte Applicants have filed these judicial review proceedings to waste this Honourable time since the Ex-Parte Applicants are being charged with forgery of new documents. The charges do not relate to the same charges in Milimani ELC No.183 of 2021: Republic v Michael Njenga Waweru.
75. She avers that the whereabouts of the Applicants remain unknown therefore the instant suit is intended to deceive this Honourable Court into concluding that the procedure used by the 1st and 2nd Respondent was unlawful therefore should be dismissed.
76. The 5th Respondent submits that that actions by the 1st and 2nd Respondents does not amount to autre-foise acquit. 'autrefois convict’ or ‘autrefois acquit' which literally means 'previously convicted or acquitted. It is a rule against double jeopardy and there was a constitutional backing for it in section 75 (5) of the retired Constitution, which provided thus:
“No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence, save
upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.”
77. The 5th Respondent invokes section 138 of the CPC which provides that that a person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts or for the same offence.
78. She avers that It is not in dispute that the 2nd Ex-parte Applicant was acquitted of the charges Nairobi Criminal Case No. 1955 of 2000: Republic v Michael Njenga Waweru, but that does mean that the 1st Ex-parte Applicant, Juma Luande Mudogo was also acquitted of a charge he was not accused of in the first place.
79. The 5th Respondent urges this Honourable Court to take this into consideration and dismiss the judicial review proceedings since they are devoid of merit. The complainant in the matter Nairobi Criminal Case No. 1955 of 2000 was the then Commissioner of Lands Mr. Clement Gachanja who raised a complaint to the 1st Respondent that the Property had been fraudulently transferred to the 2nd Ex-parte Applicant. A judgement was delivered dated 25th June 2003 where the 2ndEx-parte Applicant was acquitted under Section 215 of the Criminal Procedure Code by G.N.Ombongi (MRS) SRM.
80. It is her case that charges do not relate to the charges concluded vide the Judgement delivered in Nairobi Criminal Case No. 1955 of 2000 since they relate to forgery of different documents as follows:
i) Making a false document Contrary to Section 347 (a) of the Penal Code Particulars: On the 31st day of December, 1997 in Nairobi within Nairobi area, jointly with others not before Court, made a false document, a conveyance between Trustees of Consolata Missionary Sisters and Michael Njenga Waweru for Land Reference Number 1870/VI/80original 69/2 purporting to be a genuine and drawn by Owino and Company Advocates.
ii) Uttering a false document contrary to Section 353 of the Penal Code Particulars: On the 4th day of February 1998 at Land Registry in Nairobi within Nairobi area, jointly with others not before Court, knowingly and fraudulently uttered a certain forged conveyance of land reference number 1870/VI/80 original 69/2 to Samson Maina purporting to be a genuine, valid for registration and drawn by Omino and Company Advocates.
81. The 5th Respondent’s submits that Article 157(6) & (10) of the Constitution grants powers to prosecute criminal cases and the actual prosecution of the same to the DPP and from the constitutional and statutory foundation of the National Police Service that the DCI has a constitutional mandate to investigate any crimes and offenses suspected to have been committed by any person. Upon finalizing this duty, the DCI is then required to submit its findings to the DPP whose mandate is to independently assess the findings of the DCI and if satisfied that a crime might have been committed, prosecute the matter by preferring charges against the subject of the investigation.
82. She makes reliance on the case Republic v Director of Public Prosecutions & 2 others; Pkiach & 6 others(Interested Parties); Rianosa (Exparte) (Judicial Review Application 002 of 2022) [2022] KEHC 12905 (KLR) (12 September 2022) (Judgment) cited with approval the case of Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR held that:
“(41)Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases…Although the standard of review is exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP.(42)The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.”
83. The 5th Respondent submits the 1st and 2nd Respondents have been empowered by the Constitution to investigate on crimes committed and prosecute the matter by preferring charges against the subject of the investigation thus the decision by the 1st and 2nd Respondent to charge the Ex-parte Applicants is therefore justified.
84. The 5th Respondent urges this Court that the judicial proceedings herein ought to be dismissed to enable the Ex-parte Applicants proceed to take plea.
Analysis and determination;
85. The issue for determination by this court is whether the applicant is entitled to the prayers sought.
86. In the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, it was held that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
87. Section 35 of the National Police Service Act sets the duties of the Directorate of Criminal Investigations as below;
“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.”
88. In the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR it was held that:
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.
89. The applicant has not tendered any evidence to prove that the investigations were carried out maliciously so as to enable this court to interfere with the investigations which it finds to be independent.
90. The 1st Respondent argued that from the various documents obtained in the investigations they found that the disputed land had two copies of Deed plans: -
i. Deed plan number 48196 of Jane Wairimu Mwangi and Samuel Mwangi Njau (deceased)was prepared for a job done vide Survey Plan F/R No. 412/120 comps. No. 48196 as a Grant Survey carried out in May, 2002.
91. The 1st respondent also argued that the Applicants have made several attempts to defraud the 5th Respondent even after criminal case number 1955 of 2000 was filed and the new charges being levelled against the Applicants are for various offences which occurred and/or discovered in the process of investigations.
92. The 1st Respondent further argued that when Criminal Case number 1955/2000 was filed the 5th Respondent had not yet been issued with a title deed and its only until 1st July, 2002 that she acquired the Title Deed.
93. This court holds the view that indeed the credibility of the foregoing can only be ascertained through trial during cross examination of witnesses.
94. The applicants also raise the issue of atrocious acquit autrefois convict.
95. In Nairobi Criminal Case No. 1955 of 2000 a judgement was delivered on 25th June 2003.
96. The 2nd Ex-parte Applicant was acquitted of the charges Nairobi Criminal Case No. 1955 of 2000: Republic v Michael Njenga Waweru.
97. There allegations that the new charges do not relate to the charges concluded vide the Judgement delivered in Nairobi Criminal Case No. 1955 of 2000 since they relate to forgery of different documents as follows:
i) Making a false document Contrary to Section 347 (a) of the Penal Code Particulars: On the 31st day of December, 1997 in Nairobi within Nairobi area, jointly with others not before Court, made a false document, a conveyance between Trustees of Consolata Missionary Sisters and Michael Njenga Waweru for Land Reference Number 1870/VI/80original 69/2 purporting to be a genuine and drawn by Owino and Company Advocates.
ii) Uttering a false document contrary to Section 353 of the Penal Code Particulars: On the 4th day of February 1998 at Land Registry in Nairobi within Nairobi area, jointly with others not before Court, knowingly and fraudulently uttered a certain forged conveyance of land reference number 1870/VI/80 original 69/2 to Samson Maina purporting to be a genuine, valid for registration and drawn by Omino and Company Advocates.
98. This court cannot ascertain with accuracy whether this is true or not without carrying out a merit analysis.
99. The trial court will give the applicants and the respondents a chance to prove whether or not this is the position through expert witnesses, documents examiners and other the criminal justice system mechanisms of proof in the trial Court when the time comes.
100. The trial court will no doubt give them an opportunity to tender evidence under Article 50 of the Constitution.
101. The Applicants have not advanced any evidence to show that the trial court lacks jurisdiction to conduct the trial.
“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 merits of the case, and particularly whether the criminal proceedings have a likelihood of success, or that the Applicant has a good defence is not a ground for halting criminal proceedings by way of judicial review, in light of the purpose and limits of judicial review explained in the foregoing.
If an Applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process, this Court will not hesitate in putting a halt to such proceedings, as that fall squarely within its mandate as a judicial review Court.
The cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions as follows: (a) Where there is an abuse of discretion; (b) Where the decision-maker exercises discretion for an improper purpose; (c) Whether decision-maker is in breach of the duty to act fairly; (d) Whether decision-maker has failed to exercise statutory discretion reasonably; (e) Where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (f) Where the decision-maker fetters the discretion given; (g) Where the decision-maker fails to exercise discretion; and (h) Where the decision-maker is irrational and unreasonable.
102. The Ex parte Applicants should have presented themselves before the trial court, for plea taking, where they would have availed themselves of the plea and the procedure in section 207(5)(a) of the Criminal Procedure Code.
Section 207(5)(a) of the Criminal Procedure Code states:“
If the accused pleads—
(a)that he has been previously convicted or acquitted on the same facts of the same offence; or
(b)…“the court shall first try whether the plea is true or not, and if the court holds that the evidence adduced in support of the plea does not sustain it, or if it finds that the plea is false, the accused shall be required to plead to the charge.”
103. This court cannot enter into the arena of the trial court where the applicants can raise the defence of the principles of Autrefois acquit and autrefois.
104. In so finding I am guided by the case of Republic v Office of Director of Public Prosecutions; Bungoma Line Sacco & 6 others (Exparte) (Judicial Review E001 of 2023) [2023] KEHC 27053 (KLR) (20 December 2023) where the court held that,
“section 207(5)(a) of the Criminal Procedure Code, and they enable an accused person to plead that he had previously been convicted or acquitted of the same facts of the same offence. The provision is echoed in the constitutional fair trial principles, stated in Article 50(2)(o) of the Constitution. These 2 concepts fall within the general principle in criminal law known as the rule against double jeopardy. It is these principles that the ex parte applicants should have cited, instead of the civil process principle of res judicata. Autrefois acquit and autrefois convict are pleas at arraignment, so that, upon criminal charges being read out to an accused person, instead of him pleading guilty or not guilty, it should be open to him to plead autrefois acquit or autrefois convict, and the Criminal Procedure Code has a procedure for dealing with that. There is no necessity for lodging Judicial Review proceedings, pegged on autrefois acquit and autrefois convict, when the Criminal Procedure Code has a clear procedure on what should happen”
105. On another front, the concurrent existence of criminal proceedings and civil proceedings cannot, ipso facto, constitute an abuse of the process of the court as recognised by Section 193A of the Criminal Procedure Code; unless the commencement of the criminal proceedings is meant to force the Applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim.
106. Section 193A of the Criminal Procedure Code on this issue provides that;
“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."
107. This court is in agreement with the 1st,2nd,3rd nd 4th Respondents that even if the criminal proceedings in Milimani Chief Magistrates Criminal Case No. E758 of 2023 are unmerited, there exists an avenue for redress or compensation on malicious prosecution.
108. The court is guided by the case of Ex-parte Ewart Frey Salins (2018) eKLR and Republic v inspector General of police & 2 others ex-parte Jimi Richard Wanjigi (2019) eKLR where it was held that;
“24. Further, that if it turns out that the proceedings were unwarranted, there exists an avenue for compensation for malicious prosecution and that because of this the power of quashing or prohibiting is used sparingly.Therefore, that the Court in judicial review cannot convert itself as a trial court and determine the merit of the intended or continuing criminal trial or prosecution. It was the Interested Party’s submission in this regard that it is the trial court with the mandate to determine the sufficiency of a charge or otherwise, and is the correct court to do so.”
109. In Republic vs Commissioner of Police and Another ex parte Michael Monari & Another, [2012] eKLR it was held that:
“the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.
110. In the case of Jirongo vs. Soy Developers Ltd & 9 Others, [2021]KESC 32 KLR the Supreme court held as follows:
“We respectfully agree and adopt this position in this case but must add that where it is obvious to a court, as it is to us and was to the learned judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then Section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd Respondents have done. It is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book.” (Emphasis ours)
111. It is this court’s finding and I so hold that the Applicants have failed to prove that the Director of Public Prosecutions has abused discretion or exercised his discretion for an improper purpose; or acted in a manner that amounted to a breach of the duty to act fairly or that the Respondents have failed to exercise statutory discretion reasonably; or that the Respondents acted in a manner to frustrate the purpose of the Act donating the power, have fettered the discretion given or failed to exercise discretion; or that the Respondent has acted irrational and unreasonable.
112. An order of Mandamus cannot avail in the circumstances.
The Applicants have also sought orders of prohibition.
113. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai AdamaliDar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
“The Order of "Prohibition” issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
114. It is my finding that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the applicants did not prove the 1st and 2nd prayers, and I so hold. The Prayer for an order of prohibition is declined.
Disposition:
115. The Application lacks merit.
ORDER:
The application is dismissed with costs.