KIPKECH JUMA KHISA VS The Republic AND INSPECTOR GENERAL OF POLICE AND 3 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

JUDICIAL REVIEW NO. E006 OF 2023

IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW FOR ORDER OF CERTIORARI

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE PENAL CODE, CAP 63, LAWS OF KENYA

AND

IN THE MATTER OF KIMILILI PRINCIPAL MAGISTRATE’S COURT CRIMINAL CASE NO. E804 OF 2023

AND

KIMILILI PRINCIPAL MAGISTRATES COURT CRIMINAL CASE NO E805 OF 2003

AND

REPUBLIC……………………………………………………………APPLICANT

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTION………...1^ST RESPONDENT

INSPECTOR GENERAL OF POLICE……………………2^ND RESPONDENT

PRINCIPAL MAGISTRATE’S COURT

KIMILILI LAW COURTS………………………………….3^RD RESPONDENT

AND

GEOFREY KORORIA……………………….……..1^ST INTERESTED PARTY

PC- KENNEDY KIPSOI

C/O DCI MT. ELGON……………………………..2^ND INTERESTED PARTY

AND

KIPKECH JUMA KISIA…………………………….EX-PARTE APPLICANT

JUDGMENT

1. The ex-parte applicant, Kipkech Juma Kisa, has filed a Notice of Motion dated 23^rd October 2023. The application has been brought under Order 53 of the Civil Procedure Rules 2010. The applicant seeks the following orders:
2. THAT this Honourable curt be pleased to grant judicial review order of certiorari to move this court the decision of the 1^st 2^nd and the 3^rd respondents to charge and prosecute the ex-parte applicant in the Kimilili Principal Magistrate’s Court Criminal Cases No. E804 of 2023 and E805 of 2023 and any other arising thereof as per the said OB-report No. 13/23/08/2023.
3. THAT costs be borne by the respondents and the interested parties.
4. The application was filed together with the affidavit sworn by Kipkech Juma Kisa. The application is based on the grounds that the ex-parte applicant has not been supplied with contents of the OB-report No. 13/23/08/2023 before he was charged. He also advanced that the contents of the OB-report No. 13/23/08/2023 differ from the contents of the charge sheet. Similarly, the statement of PC No. 87087 Kennedy Kipsoi is not consistent with the statement of other witnesses.
5. A replying affidavit was filed by No.87087 Kennedy Kipsoi, the investigating officer in Kimilili Criminal Case No E804 and 805 of 2023. He avers that an initial report was made by the complainant, the 2^nd interested party, and it was booked under OB-report No. 13/23/08/2023 which gave rise to the two criminal cases. Subsequent reports relating to this case were also made in OB-report No. 10/19/09/2023 and OB-report No. 06/20/09/2023. The 2^nd interested party reported to Kapsokwony police station that the applicant had sold him a motor cycle which had been reported stolen from Watu Credit Company. In Kimilili Criminal Case No. E804 of 2023, Republic v Kipkech Juma Kisa & Another, the ex-parte applicant has been charged jointly with another person for making a false document contrary to section 347 (a) as read with section 349 of the Penal Code in count I and he also faces the charge of obtaining by false pretences contrary to section 313 of the Penal Code in count II.
6. In Kimilili Criminal Case No. E805 of 2023, Republic v Kipkech Juma Kisa & Another, the ex-parte applicant has been charged jointly with another person with the offence of stealing a motorcycle contrary to section 278 (A) of the Penal Code with an alternative of handling stolen property contrary to section 322 (1) (2) and in count II, he was charged with malicious damage to property contrary to section 339 (1) of the same Act.
7. The respondent advanced that the reports sought by the applicant can only be supplied within the already existing cases. It was further averred that an order of judicial review under Article 23 of the Constitution can be granted where there is a denial, violation, infringement or threat of a fundamental right by a public institution. They explained that the respondents exercised their powers well within their limits and the applicant has not demonstrated impropriety on their part.
8. The respondent also filed the following grounds of opposition:
9. THAT the applicant has not demonstrated that there has been a denial, violation, infringement or threat of any of his fundamental rights and freedoms to warrant being granted the judicial review orders as envisaged under Article 23 (3) of the Constitution.
10. THAT the applicant’s right to a fair trial has not been infringed in any way whatsoever since he has been supplied with all the charge sheets and documents which the 1^st respondent intends to rely on in Kimilili Criminal Case, No. E804 Republic v Kipkech Kisa & another and Kimilili Criminal Case, No. E805 Republic v Kipkech Kisa & another and that he has even attached those documents to this application.
11. THAT the applicant has not demonstrated that he requested for the OB extracts in relation to the cases in question and that his request was denied and that the applicant seems to know the contents of the document he is purporting to have been denied.
12. THAT the application is in bad faith with the sole intention of delaying the cause of justice.
13. The ex-parte applicant in their further supporting affidavit deposed that the applicant’s right to access information was properly demonstrated by the denial of the OB-report. The applicant filed a complaint against PC Kipsoi based at the DCIO Kapsokwony -Mt. Elgon-Sub County with the assistant director of the public prosecution on 1^st September 2023.

Submissions by the Parties

1. The application was canvased by was canvassed by written submissions and the parties have filed their respective submissions.
2. The applicant submits that the refusal of the respondent to give out the Kapsokwony police OB report to the applicant amounted to unfair administrative action and the infringement of the applicant’s right to information violating Article 35 and 47 of the Constitution. He maintained that the statements of the witnesses in the two criminal cases were contradictory.
3. He furthers submits that the failure of the 3^rd respondent and 1^st interested party to respond to the judicial review proceedings amounts to an admission of false evidence and their wrong doing against the ex-parte applicant. They submit that the two criminal cases before the subordinate court were filed contrary to the provisions of Article 10, 35, 47, 50, 157(II) and 259 of the Constitution and therefore ought to be quashed. They submit that the balance of probability and convenience in regard to this judicial review proceedings tilts in favour of the applicant and urged the court to grant the orders sought. They relied on the case of Commissioner of Police & the Director of Criminal Investigation Department & Another v Kenya Commercial Bank Limited & 4 Others (2013) eKLR where the court held that the decision to investigate a crime or prosecute in the case of the DPP, must not be unreasonable or made in bad faith or intended to achieve ulterior motive or used as a tool for personal score.
4. The 1^st respondent in their submissions argue that the are no sufficient grounds to warrant the quashing of charges against the applicant, The charged are well grounded as there is a victim seeking justice as a result of the applicant’s illegal actions in dealing with motor cycle registration no. KMFP 256V. The link between the applicant and the offence has been established and it is just and fair to let the matters against the applicant proceed to logical conclusion. They argue that the grounds raised by the applicant are but a defence that should be raised before the subordinate court dealing with the criminal matters where the applicant will have the opportunity to cross-examine witnesses. They urged the court to allow the respondent exercise their lawful mandate as no abuse of office or constitutional mandate has been proved.

ANALYSIS AND DETERMINATION

1. In this case, the main complaint by the applicant is that he was denied the OB-report No. 13/23/08/2023 and he has also pointed out that the prosecution case in the subordinate court is marred with contradictions. Interestingly, he seeks an order of certiorari to quash the decision of the 1^st, 2^nd and 3^rd respondents to charge and prosecute the ex-parte applicant in the Kimilili Principal Magistrate’s Court Criminal Cases No. E804 of 2023 and E805 of 2023.
2. An order of certiorari can quash a decision already made and an order of certiorari will be issued if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. (See the Court of Appeal held in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996).
3. Article 157 (6) (a) of the Constitution mandated the Director of Public Prosecution to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. The Director of Public Prosecution in exercising its mandate shall not require the consent of any person for the commencement of criminal proceedings – see Article 157 (10) of the Constitution.
4. The applicant has not demonstrated that the 1^st respondent acted in excess of its jurisdiction when it made the decision to initiate his prosecution. His application touches on the issue of contradictions in the prosecution case, an issue that can be raised and determined by the Magistrate court where the criminal cases have been initiated.
5. He also complains that his right to have access to information as envisioned under Article 35 of the Constitution has been violated. However, the Access to Information Act, 2016 has an elaborate process for obtaining information that is held by the state.
6. In light of the foregoing observations and findings, the ex parte Applicants’ Notice of Motion application dated 23^rd October 2023 is found to be unmerited. The same is hereby dismissed with no order as to costs.

Dated, Signed and Delivered at BUNGOMA this 3^rd day of April 2024

R.E. OUGO

JUDGE

In the presence of:

Kipkech Juma Kisa Ex-parte Applicant   -  in person

Respondents  - Absent

Interested Parties   - Absent

Wilkister   C/A