REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E212 OF 2023
THE LAW SOCIETY OF KENYA ………………………………1 ST PETITIONER
MOSES ABONG’O OWUOR…………………………………..2 ND PETITIONER
VERSUS
THE DIRECTOR OF CRIMINAL INVESTIGATIONS………..1 ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE………………….2 ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS……………3 RD RESPONDENT
THE ATTORNEY GENERAL…………………………………4 TH RESPONDENT
CHIEF MAGISTRATE COURT, MILIMANI LAW COURTS..5 TH RESPONDENT
AND
WAMUNYORO INVESTMENTS LIMITED……………1 ST INTERESTED PARTY
JOHN MICHAEL OHAS………………………………2 ND INTERESTED PARTY
COLUMBUS TWO THOUSAND LIMITED……………3 RD INTERESTED PARTY
THE CHIEF LAND REGISTRAR………………………4 TH INTERESTED PARTY
JAMES HILLARY PAUL OTHIENO OHAS…………5 TH INTERESTED PARTY
BENARD ABERE OGECHI………………………….6 TH INTERESTED PARTY
JUDGMENT
Petitioners’ case
1. This petition arises from the investigations, arrest and intended prosecution of the 2 nd petitioner, an advocate of the High Court of Kenya. The 2 nd petitioner was arrested within the precincts of the Court in the course of providing professional services to his clients. The petitioners have sought various reliefs, including quashing of Milimani Chief Magistrates Criminal Case No. E424 of 2023-Republic v James Hillary Paul Othieno Ohas & 2 others. The petition is supported by the affidavits of Florence Muturi and the 2 nd petitioner.
2. The facts giving rise to this litigation, were that on 28 th January 2022, the 2 nd petitioner was instructed through the Firm of MMA Advocates LLP, to take over representation of the 2 nd and 3 rd interested parties in Nairobi Environment and Land Case No. E019 of 2021 (ELC E019 of 2021), Michael John Ohas & another v Rigathi Gachagua & others from the firm of Ochangu & Co. Advocates. The matter was in relation to a dispute over property known as L.R No. 209/ 12077 (the suit property).
3. The pleadings including the plaint and accompanying documents and a Notice of Motion application all dated 18 th January 2021 had been filed by the firm of Ochangu & Co. Advocates on behalf of the 2 nd and 3 rd interested parties. The 2 nd petitioner filed a Notice of Change of Advocates taking over representation from the firm of Ochangu & Co. Advocates to the firm of MMA Advocates LLP in which firm the 2 nd petitioner practiced at the time.
4. On 20 th July 2022, the 1 st interested party through the firm of Nyachoti & Company Advocates, filed pleadings in Nairobi ELC No. E242 of 2022, Wamunyoro Investments Limited v John Michael Ohas & 2 others, seeking among others, a declaration that the 1 st interested party is the lawful registered owner of the suit property.
5. On 25 th July 2022, the 2 nd petitioner was again instructed by the 2 nd and 3 rd interested parties, (the 1 st and 2 nd defendants in ELC E242 of 2022), to represent them in that suit. He filed a Memorandum of Appearance dated 25 th July 2022 under the firm of MMA Advocates LLP.
6. Upon leaving the firm of MMA Advocates LLP, the 2 nd and 3 rd interested parties instructed the 2 nd petitioner to continue acting for them in the aforementioned suits under the firm of Ombok & Owuor Advocates LLP. The 2 nd petitioner filed a Notice of Change of advocates dated 20 th September 2022.
7. On 14 th November 2022, the 2 nd petitioner filed a statement of Defence and Counterclaim dated 10 th November 2022 on behalf of the 2 nd and 3 rd interested parties seeking, among others, a declaration that the 3 rd interested party was the lawfully registered owner of the suit property and disputed the validity and legality of the purported title held by the 1 st interested party.
8. After filing the statement of Defence and counterclaim together with other relevant documents, the 4 th respondent issued directives to the 1 st and 2 nd respondents directing them to order their officers to summon the 2 nd and 3 rd interested parties along with key witnesses in the dispute, including the 5 th and 6 th interested parties.
9. Police officers resorted to harassing and intimidating the 2 nd and 3 rd interested parties and their witnesses. On 15 th March 2023 and 28 th March 2023, the 2 nd petitioner wrote to the 1 st respondent protesting the interference with the proceedings in ELC No. E242 of 2022 by its officers.
10. On 15 th June 2023, the 2 nd petitioner was called by the 5 th interested party’s family informing him that the 5 th interested party, had been lured to DCI offices at Kiambu Road by the 1 st and 2 nd respondents’ officers on the pretence that they wanted clarification over statements recorded on 9 th and 16 th March 2023. The 5 th interested party was detained at Muthaiga Police Station and was to be arraigned before the Milimani Chief Magistrates Court the following day.
11. On 16 th June 2023, the 2 nd petitioner went to Milimani Law Court’s basement where the 5 th interested party was being held, but was immediately arrest and informed that he was to be charged as a co-accused. The 2 nd petitioner was not informed of the charges he was to face; had not been asked to record a statement in relation to any matter and was not furnished with a copy of the charge sheet.
12. The 2 nd petitioner only became aware of the charges preferred against him after his advocates obtained a copy of the Charge Sheet from the prosecutor, just before taking plea. Counts 1, 2 and 3 were in relation to Making a Document without Authority Contrary to section 357(a) of the Penal Code. He was accused of making a letter from the National Land Commission Ref 157048 dated 23 rd March addressed to the Director of Survey; making a letter ref. PPD/42/14/IX/96 dated 14 th November 2019 addressed to the Chief Land Registrar from the Ministry of Lands and Physical Planning and making a letter Ref. CID/SEC/4/4/VOL/233 dated 26 th January 2018 addressed to the Chief Land Registrar from the Directorate of Criminal Investigations DCIO Central respectively, purporting them to be genuine.
13. In count 7, he faces the offence of uttering a false document contrary to section 353 read with section 349 of the Penal Code. He was accused of uttering a letter dated 23 rd March 2017 addressed to the Directorate of Survey, a letter Ref. PPD/42/14/IX/96 dated 14 th November 2019 addressed to the Chief land Registrar from the Ministry of Lands and physical planning and a letter Ref CID/SEC/4/4/VOL/233 dated 26 th January 2018 addressed to the Chief Land Registrar from the Directorate of Criminal Investigations DCIO Central.
14. The petitioners stated that the documents, the subject of the charges against the 2 nd petitioner, related to the two suits before the ELC. All the documents to which the charges related were supporting documents filed by the 2 nd petitioner, on behalf of the 2 nd and 3 rd interested parties, in his capacity as an Advocate of the High Court of Kenya.
15. According to the petitioners, count 2 related to a document filed in E242 of 2022 through the 2 nd and 3 rd interested parties’ List and Bundle of Documents dated 10 th November 2022 and is also part of the supporting documents in ELC No. E019 of 2021.
16. The petitioners contended that in both cases, the 2 nd petitioner is neither the maker, witness nor party to the proceedings. The letter was authored by Z. M. Ndege on behalf of the Chairman of the National Land Commission and was addressed to the Director of Survey confirming that the property was allocated by the Commissioner of Lands through letter ref. No. 88767/IV/142 dated 3 rd February 1994 and PDP No. 42/14/93/14 and makes reference to a letter from the Director of Survey ref. No. 34/65/292 dated 7 th March 2017 and attached certified copies of the allotment which had not been challenged in the civil cases or in the criminal charges. It was a correspondence between two government offices in the ordinary course of duty and had not been authored by the 2 nd petitioner. The certified copies of the allotment attached were not challenged either in the ELC cases or the criminal case.
17. Count 3 related to a document filed as part of the List and Bundle of Documents in support of the Defence in ELC E 242 of 202. It was also part of the supporting documents filed in ELC E019 of 2021 through an affidavit in support of a Notice of Motion dated 18 th January 2021 filed by the firm of Onchangu & Co. Advocates. The letter was authored by the National Director of Physical Planning and addressed to the Chief Land Registrar. It was authored long before the 2 nd petitioner came on record for the 2 nd interested party and was a formal correspondence between two government officials in the usual course of their duties.
18. Count 4 related to a document filed in ELC No. E 242 of 2022 in the Supplementary List & Bundle of Documents dated 6 th March 2023. It was also filed as part of the supporting documents in ELC E019 of 2021 through an affidavit in support of Notice of Motion Application dated 18 th January 2021 and was part of the List and Bundle of Documents filed by Onchangu & Co. Advocates.
19. The petitioners posited, that the document was authored by the DCIO Central and addressed to the Chief Land Registrar reporting the outcome of investigations into possible fraud in the purported registration of the property in favour of the 1 st interested party. It was an official correspondence between two government officials in the ordinary conduct of their duties and was not authored by the 2 nd petitioner.
20. Count 7 related to documents referred to in counts 2, 3 and 4 which were on the production of the purported false or fraudulent documents in the court registry in the ELC cases filed in court. It was the petitioners’ contention, that the ELC is properly seized of the matter and has the jurisdiction to test each averment and evidence produced by witnesses in the civil suits.
21. The petitioners asserted that the 2 nd petitioner’s role in the proceedings is solely that of an advocate representing the plaintiffs in Nairobi ELC E 019 of 2021 and the 1 st and 2 nd defendants in Nairobi ELC E 242 of 2022. That notwithstanding, he was arrested and presented before the Chief Magistrates Court at Milimani for plea and prosecution.
22. It was the petitioners’ case, that the 1 st , 2 nd , 3 rd and 4 th respondents’ actions were in violation of the 2 nd and 3 rd interested parties’ rights to legal representation and access to justice; the rights of the 2 nd petitioner to fair hearing, human dignity, freedom and security of the person, fair administrative action and access to justice; abuse of office; ultra vires and in contravention of the overriding purpose and essence of court processes. It was a deviation from international best practice and standards of independence of the Bar and principles of treating members of the 1 st petitioner.
23. The petitioners asserted that the 1 st , 2 nd , 3 rd and 4 th respondents’ actions had violated articles 10, 25, 28, 29, 47 50, 73, 75, 157 (4) and 245(2) and (4) of the Constitution; section 4 of the Fair Administrative Action Act and article 16, 17 and 20 of the United Nations Basic Principles on the Role of Lawyers. The actions were thus, illegal, ultra vires and an abuse of power and discretion. The actions were biased; marred with procedural impropriety; unreasonable and irrational and violated their legitimate expectation.
24. The petitioners maintained that the actions violated the Law society of Kenya Act since the 2 nd petitioner was discharging his duties since the documents were filed in support of ELC cases where the 2 nd petitioner was not a party, witness or maker of the documents.
25. Based on the foregoing, the petitioners sought several declarations and orders against the respondents.
1 st , 2 nd and 4 th respondents’ case
26. The 1 st , 2 nd and 4 th respondents opposed the petition through a replying affidavit sworn by Chief Inspector Godfrey Mburugu. The 1 st , 2 nd and 4 th respondents stated through CI Mburugu, that investigations were conducted over criminal culpability of the 2 nd petitioner and the parties to Nairobi ELC No. 242 of 2022. The file was forwarded to the 3 rd respondent who exercised his mandate under articles 157(6) and (10) of the Constitution and instituted the prosecution.
27. The 1 st , 2 nd and 4 th respondents asserted that veracity of the evidence gathered in the investigations to establish the 2 nd petitioner’s culpability will be tested during trial. They contended that issues in ELC E019 of 2021 and ELC No. E242 of 2022 are also directly in issue before the trial court in Criminal Case No. E424 of 2023, which is a court with competent jurisdiction to try and determine the criminal case.
28. The 1 st , 2 nd and 4 th respondents asserted that Inspector General of Police cannot be directed by any person or authority how to discharge his mandate except the 3 rd respondent under article 157(4) of the Constitution to investigate any information or allegation of criminal conduct. The 4 th respondent has no role to play in the Criminal justice system.
29. The 1 st and 2 nd respondents performed their duties in accordance with section 24 of the National Police Service Act, hence this court should only interfere if it is demonstrated that criminal proceedings had been instituted for reasons other than enforcement of criminal law or is an abuse of the court process. They denied that the petitioners had discharged the burden of proof.
3 rd respondent’s case
30. The 3 rd respondent opposed the petition through grounds of opposition and a replying affidavit sworn by Vera Omollo-Hamisi.
Grounds of opposition
31. The 3 rd respondent asserted through the grounds of opposition, that the criminal case was instituted against the 2 nd petitioner after being satisfied that the evidence presented was sufficient. The 3 rd respondent denied that the decision to charge and prosecute was ultra vires , unreasonable or illegal. He maintained that he acted in accordance with his mandate under articles 157 of the Constitution.
32. The 3 rd respondent contended that this court can only interfere where it has been shown that criminal proceedings had been instituted for reasons other than enforcement of criminal law or otherwise are an abuse of the court process in violation of article 157(11) of the Constitution.
Replying affidavit
33. In the replying affidavit, the 3 rd respondent stated through Ms. Hamisi, investigations over the complaint regarding registration of the suit property established that the 3 rd interested party was allocated an un-surveyed industrial plot by the Commissioner of Lands through letter ref.88767/IV/142 dated 2 nd February 1994. The allotment was based on a Part Development Plan Number 42/14/93/14 prepared by the Department of Physical planning.
34. The 3 rd respondent asserted that part of the conditions in the letter were that acceptance and payment be received within 30 days failure to which the offer would lapse. The 3 rd interested party did not accept the offer or make payment within the timelines until 7 th May 1996 when the 3 rd interested party wrote accepting the offer.
35. The parcel of land was therefore allocated to Nduati Mbugua, Pauline Mulinge and Karandi Farms Limited as IR 90923/1 dated 31 st December 2002. According to the records held at the Nairobi Central Registry, land LR. No.209/12077 lR. No. 90923 was registered on 31 st December, 2002 pursuant to a grant issued by the Commissioner of Lands for a term of 99 years from 1 st May 1999 at an annual rent of Kshs. 110,800. The land is delineated on Survey Plan Number 192966.
36. The 3 rd respondent stated that despite the fact that a grant to the suit property had earlier been processed and issued to Peter Nduati Mbugua, Pauline Mulinge and Karandi Farms Limited as IR 90923/1, the office of the Commissioner Lands went ahead and processed another title in favour of the 3 rd interested party. The second registration as IR 213652 would therefore be irregular, null and void.
37. The 3 rd respondent asserted that the register held at the Nairobi Central Land Registry was reported missing and a reconstruction of the register initiated through Deed of indemnity registered on 26 th April 2011. The Chief Land Registrar requested for the verification of Title IR 90923, LR No. 209/12077 and it was confirmed that the 1 st interested party had genuine title and forms part of the Land Registry’s Records.
38. The office of the Chief Land Registrar had learnt that in 2019 another Lease in respect of the same land was prepared in favour of the 3 rd interested party for a term of 99 years from February, 1994 at an annual rent of Kshs 138,400 and on 11 th September 2019, a Certificate of Title- IR 213652 I.R. No. 209/12077 issued in favour of the 3 rd interested party. From the records, it was noted that Deed Plan Number 192966 used to prepare the Title for the 3 rd interested party was a Certified Copy of the original Deed Plan annexed to the 1 st interested party’s Title.
39. The 3 rd respondent, upon analyzing the documentary evidence in the investigations file noted that the 2 nd petitioner was at all times counsel for the 3 rd interested party and he rendered services to his client in respect of the suit property. He therefore should take responsibility for every document relating to transactions surrounding the suit property that investigations revealed was fraudulently acquired.
40. The 3 rd respondent maintained that in making the decision to charge the 2 nd petitioner, he relied on the evidence from the investigations which established the 2 nd petitioner’s culpability which should be tested during trial. The 2 nd petitioner having not denied knowledge of the documents and having presented the documents culminating into the fraudulent registration of the certificate of lease to his clients, should undergo trial with the co-accused in the Criminal case.
41. The issues the 2 nd petitioner has raised before this court are issues that relate to the ELC cases over the suit property have little relation with the Criminal Case, hence are separate and distinct to this petition.
2 nd and 3 rd interested parties’ case
42. The 2 nd and 3 rd interested parties filed a replying affidavit sworn by John Michael Ohas in support of the petition. They stated that there was a land ownership dispute involving the 3 rd interested party and the 1 st interested party over L.R No. 209/12077.
43. In 1993, the 2 nd interested party submitted an application for allocation of land on behalf of the 3 rd interested party through the Commissioner of Lands and Settlement Schemes. The application was considered and approved in 1994 and the 3 rd interested party was issued with an Allotment Letter. Payment of Kshs. 50,000, part payment for the allotment was made and receipted through receipt No. D448385. Further payments of Kshs. 814,550 was made through cheque No. 150995, file No. 157048 on 16 th May 1996.
44. The 3 rd interested party was also issued with copies of a memo, valuation form drawing and Part Development Plan under Ref No. PPD/42/14/IX/96 from the Ministry of Lands and Physical Planning. Letter of acceptance of the allotment was submitted intended to complete the process of allotment and give way to processing of survey and registration of the lease.
45. The 3 rd interested party contracted Victoria Land Surveyors Limited to undertake the survey and draw the survey plan to enable preparation of a Deed plan. The Survey Plan was submitted to the Director of Survey of Kenya for preparation of the Deed Plan. The Director of Survey developed and issued Deed Plan No. 192966 to the 3 rd interested party on 25 th January 1995 which was submitted at the Ministry of Lands for preparation and registration of the Lease. The Director of Land Registration prepared the Indent Letter.
46. The 2 nd and 3 rd interested party contended that the Deed Plan represented a binding document signifying that allotment had been completed and was ready for registration by the Commissioner of Lands. It was therefore inexcusable that the Commissioner of Lands issued a grant over the same property to Peter Nduati Mbugua, Pauline Mulinge and Karandi Farm Limited.
47. The 2 nd and 3 rd interested parties maintained that there was no gazette notice or advertisement on the reallocation of the property. The 3 rd interested party was not given notice over cancellation of the allotment neither was the money paid towards the allotment of the land refunded.
48. According to the 2 nd and 3 rd interested parties, in September 2017, file No. 157048 with respect to the 3 rd interested party’s registration said to have been lost at the Lands Registry resurfaced but without the original Deed Plan in favour of the 3 rd interested party. The missing Deed Plan was later used to register the property in favour of the 1 st interested party. Following a request by the 4 th interested party, the 1 st respondent conducted investigations which revealed that the registration in favour of the 1 st interested party was marred with fraud and recommended that it be revoked to enable the 3 rd interested party proceed with registration of its property. These findings were communicated by the 1 st respondent to the 4 th interested party through letter dated 26 th January 2018 and which is subject of count 4 in the criminal proceedings.
49. The 2 nd and 3 rd interested parties asserted that they proceeded with the process of registering Title in favour of the 3 rd interested party; applied for certified copies of the Deed Plan from the Director of survey through the Licensed Surveyor who conducted the survey for the 3 rd interested party and certified copies were issued. Neither the Deed nor the certified copies had been contested or impugned at any point in the ELC or criminal cases.
5 th interested party’s case
50. The 5 th interested party, one of the directors of the 3 rd interested party also filed a replying affidavit in support of the petition. He is a joint donee of the Specific Power of Attorney by the 2 nd interested party dated 21 st September 2021.
51. The 5 th interested party stated that it was the 6 th interested party who collected the Title and he believed that registration of the property was legally and procedurally done. The 5 th interested party stated that he is not a party in the EL cases. His interest is strictly as a director of the 3 rd interested party under which circumstances he cannot be held personally liable for any controversy.
52. The 5 th interested party asserted that he was kept aware of the progress and proceedings in both civil suits in the event he was required to stand in for the 2 nd interested party in his capacity as director and witness for the 3 rd interested party. This made him a target for harassment and threats from the 1 st 2 nd , 3 rd and 4 th respondents on behalf of the 1 st and 4 th interested party.
53. The 5 th interested party stated that on 9 th and 16 th March 2023, he was summoned to the 1 st respondent’s offices to record a statement regarding his directorship and the power of attorney donated to him which he did. The 2 nd petitioner protested through letters dated 15 th March 2023 and 28 th March 2023 over the interference with court proceedings in ELC No. E242 of 2022.
54. On 15 th June 2023, the 1 st respondent’s officers asked him to go to their offices on pretext that they wanted clarification over statements he had previously recorded but instead, he was arrested and detained overnight at Muthaiga Police station.
55. On 16 th June 2023, he was taken the Milimani Law Courts Basements Cells awaiting to be arraignment before the 5 th respondent. The 2 nd petitioner went to court to represent him but was arrested.
56. The 5 th interested party asserted that the criminal charges preferred against the 2 nd petitioner, 6 th interested party and himself are unfair, biased and intended to harass and intimidate them to defeat the 3 rd interested party’s claim over the property. The charges further violate their constitutional rights.
6 th interested party’s case
57. The 6 th interested party filed a replying affidavit stating that had always performed duties with integrity and professionalism and had never been authorized by the Director of Surveys in the line of duty to carry out survey; alter or delete any mark on survey documents; search for files containing survey plans; retrieve computation files and prepare registrable documents with respect to the suit property.
58. The 6 th interested party maintained that he had never been the Land Administrator or Officer of the National Land Commission. He was therefore not in the business of allocating land and did not take part in the allocation of the suit property to the 3 rd interested party. He stated that he is not a Land Registrar and did not have authority to register Title and issue Certificates of Title and/or Lease Documents. He was not party to the registration of Title in favour of the 3 rd interested party.
59. The 6 th interested party stated that on 24 th February 2023, he was summoned by police officers who informed him that they were investigating registration of the suit property and wanted him to record a statement on the matter. On 16 th June 2023, he learnt through the 2 nd petitioner that the 5 th interested party and the 2 nd petitioner had been arrested and charged and that he was to be charged as a co-accused.
60. The 6 th interested party contended that the allegations that he authored or doctored documents, the subject of the impugned charges, are malicious since he had never been under the employment of any of the offices from which the alleged forged documents emanated. On 23 rd June 2023 police officers contacted him and asked him to go to their offices to collect summons in relation to the charges.
61. He requested the 2 nd petitioner’s Law firm to represent him and collect the summons. The 2 nd petitioner contacted the police officers concerned and informed them that the summons would be collected by an advocate in due course.
62. On 29 th June 2023, the 6 th interested party appeared before the 5 th respondent together with the 2 nd petitioner and the 5 th interested party. The 6 th interested party asserted that the 4 th interested party is the custodian of all files relating to registration of titles and the documents contained in the files on whose basis land transactions are completed and he had nothing to do with the accusations leveled against him with regard to the suit property.
Submissions
63. The petition was disposed of through written submissions with brief oral highlights
Petitioners’ submissions
64. The petitioners argued that the decision to institute criminal proceedings though a discretionary power, must be exercised in accordance with article 157(10) of the Constitution. This was not, however, the case because investigations leading to the arrest and charge the 2 nd petitioner, the 5 th and 6 th interested parties were conducted at the behest at the 4 th respondent. Such a decision cannot result in a fair trial for the 2 nd petitioner thus, the court should interfere with the decision by the DPP. They relied on the decision in Walton v Gardiner (1993) 177 CLR 378.
65. The petitioners argued that the criminal case is based on matters which the ELC is seized of and which it should be left to determine. The criminal proceedings are therefore an abuse of power. They relied on the decisions in Rosemary Wanja Mwagiru & others v Attorney General & 3 others [2013] eKLR and Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR.
66. The petitioners cited article 47 of the Constitution, section 7(2) of the Fair Administrative Action Act and the decisions in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Alfred Nyandieka v Director of Public Prosecutions & 2 others [2020] eKLR for the position that in initiating the criminal prosecution against the 2 nd petitioner who was merely discharging his professional duties as an advocate, the respondents violated the Constitution and the law.
67. The petitioners again relied on article 28 of the Constitution and the decisions in S v Makwanyane and another (CCT3/94) [1995] ZACC 3; MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR) and Republic v Attorney General Ex parte Kipngeno Arap Ngeny [2001] eKLR to contend that the respondents’ actions had tarnished the 2 nd petitioner’s image and reputation by violating his inherent dignity.
68. The petitioners argued that the charges in the criminal case relate to supporting documents filed in the ELC cases which had been pending in court for some years. The same documents had previously been relied on and were filed by advocates other than the 2 nd petitioner and had never been the subject of any criminal investigation for more than 10 years during which ownership of the suit property had been in dispute. What is before court is weaponization of prosecutorial power to settle personal scores which this court should not allow.
69. The petitioners relied on among others, the decision in Alfred Nyandieka v Director of Public Prosecutions & 2 others (supra) for the position that the court should allow the petition and award the 2 nd petitioner damages.
1 st , 2 nd and 4 th respondents’ submissions
70. The 1 st , 2 nd and 4 th respondents submitted that they acted within the Constitution and the law and the onus was on the petitioners to prove otherwise. They relied on articles 243 and 2
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E212 OF 2023
THE LAW SOCIETY OF KENYA ………………………………1 ST PETITIONER
MOSES ABONG’O OWUOR…………………………………..2 ND PETITIONER
VERSUS
THE DIRECTOR OF CRIMINAL INVESTIGATIONS………..1 ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE………………….2 ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS……………3 RD RESPONDENT
THE ATTORNEY GENERAL…………………………………4 TH RESPONDENT
CHIEF MAGISTRATE COURT, MILIMANI LAW COURTS..5 TH RESPONDENT
AND
WAMUNYORO INVESTMENTS LIMITED……………1 ST INTERESTED PARTY
JOHN MICHAEL OHAS………………………………2 ND INTERESTED PARTY
COLUMBUS TWO THOUSAND LIMITED……………3 RD INTERESTED PARTY
THE CHIEF LAND REGISTRAR………………………4 TH INTERESTED PARTY
JAMES HILLARY PAUL OTHIENO OHAS…………5 TH INTERESTED PARTY
BENARD ABERE OGECHI………………………….6 TH INTERESTED PARTY
JUDGMENT
Petitioners’ case
1. This petition arises from the investigations, arrest and intended prosecution of the 2 nd petitioner, an advocate of the High Court of Kenya. The 2 nd petitioner was arrested within the precincts of the Court in the course of providing professional services to his clients. The petitioners have sought various reliefs, including quashing of Milimani Chief Magistrates Criminal Case No. E424 of 2023-Republic v James Hillary Paul Othieno Ohas & 2 others. The petition is supported by the affidavits of Florence Muturi and the 2 nd petitioner.
2. The facts giving rise to this litigation, were that on 28 th January 2022, the 2 nd petitioner was instructed through the Firm of MMA Advocates LLP, to take over representation of the 2 nd and 3 rd interested parties in Nairobi Environment and Land Case No. E019 of 2021 (ELC E019 of 2021), Michael John Ohas & another v Rigathi Gachagua & others from the firm of Ochangu & Co. Advocates. The matter was in relation to a dispute over property known as L.R No. 209/ 12077 (the suit property).
3. The pleadings including the plaint and accompanying documents and a Notice of Motion application all dated 18 th January 2021 had been filed by the firm of Ochangu & Co. Advocates on behalf of the 2 nd and 3 rd interested parties. The 2 nd petitioner filed a Notice of Change of Advocates taking over representation from the firm of Ochangu & Co. Advocates to the firm of MMA Advocates LLP in which firm the 2 nd petitioner practiced at the time.
4. On 20 th July 2022, the 1 st interested party through the firm of Nyachoti & Company Advocates, filed pleadings in Nairobi ELC No. E242 of 2022, Wamunyoro Investments Limited v John Michael Ohas & 2 others, seeking among others, a declaration that the 1 st interested party is the lawful registered owner of the suit property.
5. On 25 th July 2022, the 2 nd petitioner was again instructed by the 2 nd and 3 rd interested parties, (the 1 st and 2 nd defendants in ELC E242 of 2022), to represent them in that suit. He filed a Memorandum of Appearance dated 25 th July 2022 under the firm of MMA Advocates LLP.
6. Upon leaving the firm of MMA Advocates LLP, the 2 nd and 3 rd interested parties instructed the 2 nd petitioner to continue acting for them in the aforementioned suits under the firm of Ombok & Owuor Advocates LLP. The 2 nd petitioner filed a Notice of Change of advocates dated 20 th September 2022.
7. On 14 th November 2022, the 2 nd petitioner filed a statement of Defence and Counterclaim dated 10 th November 2022 on behalf of the 2 nd and 3 rd interested parties seeking, among others, a declaration that the 3 rd interested party was the lawfully registered owner of the suit property and disputed the validity and legality of the purported title held by the 1 st interested party.
8. After filing the statement of Defence and counterclaim together with other relevant documents, the 4 th respondent issued directives to the 1 st and 2 nd respondents directing them to order their officers to summon the 2 nd and 3 rd interested parties along with key witnesses in the dispute, including the 5 th and 6 th interested parties.
9. Police officers resorted to harassing and intimidating the 2 nd and 3 rd interested parties and their witnesses. On 15 th March 2023 and 28 th March 2023, the 2 nd petitioner wrote to the 1 st respondent protesting the interference with the proceedings in ELC No. E242 of 2022 by its officers.
10. On 15 th June 2023, the 2 nd petitioner was called by the 5 th interested party’s family informing him that the 5 th interested party, had been lured to DCI offices at Kiambu Road by the 1 st and 2 nd respondents’ officers on the pretence that they wanted clarification over statements recorded on 9 th and 16 th March 2023. The 5 th interested party was detained at Muthaiga Police Station and was to be arraigned before the Milimani Chief Magistrates Court the following day.
11. On 16 th June 2023, the 2 nd petitioner went to Milimani Law Court’s basement where the 5 th interested party was being held, but was immediately arrest and informed that he was to be charged as a co-accused. The 2 nd petitioner was not informed of the charges he was to face; had not been asked to record a statement in relation to any matter and was not furnished with a copy of the charge sheet.
12. The 2 nd petitioner only became aware of the charges preferred against him after his advocates obtained a copy of the Charge Sheet from the prosecutor, just before taking plea. Counts 1, 2 and 3 were in relation to Making a Document without Authority Contrary to section 357(a) of the Penal Code. He was accused of making a letter from the National Land Commission Ref 157048 dated 23 rd March addressed to the Director of Survey; making a letter ref. PPD/42/14/IX/96 dated 14 th November 2019 addressed to the Chief Land Registrar from the Ministry of Lands and Physical Planning and making a letter Ref. CID/SEC/4/4/VOL/233 dated 26 th January 2018 addressed to the Chief Land Registrar from the Directorate of Criminal Investigations DCIO Central respectively, purporting them to be genuine.
13. In count 7, he faces the offence of uttering a false document contrary to section 353 read with section 349 of the Penal Code. He was accused of uttering a letter dated 23 rd March 2017 addressed to the Directorate of Survey, a letter Ref. PPD/42/14/IX/96 dated 14 th November 2019 addressed to the Chief land Registrar from the Ministry of Lands and physical planning and a letter Ref CID/SEC/4/4/VOL/233 dated 26 th January 2018 addressed to the Chief Land Registrar from the Directorate of Criminal Investigations DCIO Central.
14. The petitioners stated that the documents, the subject of the charges against the 2 nd petitioner, related to the two suits before the ELC. All the documents to which the charges related were supporting documents filed by the 2 nd petitioner, on behalf of the 2 nd and 3 rd interested parties, in his capacity as an Advocate of the High Court of Kenya.
15. According to the petitioners, count 2 related to a document filed in E242 of 2022 through the 2 nd and 3 rd interested parties’ List and Bundle of Documents dated 10 th November 2022 and is also part of the supporting documents in ELC No. E019 of 2021.
16. The petitioners contended that in both cases, the 2 nd petitioner is neither the maker, witness nor party to the proceedings. The letter was authored by Z. M. Ndege on behalf of the Chairman of the National Land Commission and was addressed to the Director of Survey confirming that the property was allocated by the Commissioner of Lands through letter ref. No. 88767/IV/142 dated 3 rd February 1994 and PDP No. 42/14/93/14 and makes reference to a letter from the Director of Survey ref. No. 34/65/292 dated 7 th March 2017 and attached certified copies of the allotment which had not been challenged in the civil cases or in the criminal charges. It was a correspondence between two government offices in the ordinary course of duty and had not been authored by the 2 nd petitioner. The certified copies of the allotment attached were not challenged either in the ELC cases or the criminal case.
17. Count 3 related to a document filed as part of the List and Bundle of Documents in support of the Defence in ELC E 242 of 202. It was also part of the supporting documents filed in ELC E019 of 2021 through an affidavit in support of a Notice of Motion dated 18 th January 2021 filed by the firm of Onchangu & Co. Advocates. The letter was authored by the National Director of Physical Planning and addressed to the Chief Land Registrar. It was authored long before the 2 nd petitioner came on record for the 2 nd interested party and was a formal correspondence between two government officials in the usual course of their duties.
18. Count 4 related to a document filed in ELC No. E 242 of 2022 in the Supplementary List & Bundle of Documents dated 6 th March 2023. It was also filed as part of the supporting documents in ELC E019 of 2021 through an affidavit in support of Notice of Motion Application dated 18 th January 2021 and was part of the List and Bundle of Documents filed by Onchangu & Co. Advocates.
19. The petitioners posited, that the document was authored by the DCIO Central and addressed to the Chief Land Registrar reporting the outcome of investigations into possible fraud in the purported registration of the property in favour of the 1 st interested party. It was an official correspondence between two government officials in the ordinary conduct of their duties and was not authored by the 2 nd petitioner.
20. Count 7 related to documents referred to in counts 2, 3 and 4 which were on the production of the purported false or fraudulent documents in the court registry in the ELC cases filed in court. It was the petitioners’ contention, that the ELC is properly seized of the matter and has the jurisdiction to test each averment and evidence produced by witnesses in the civil suits.
21. The petitioners asserted that the 2 nd petitioner’s role in the proceedings is solely that of an advocate representing the plaintiffs in Nairobi ELC E 019 of 2021 and the 1 st and 2 nd defendants in Nairobi ELC E 242 of 2022. That notwithstanding, he was arrested and presented before the Chief Magistrates Court at Milimani for plea and prosecution.
22. It was the petitioners’ case, that the 1 st , 2 nd , 3 rd and 4 th respondents’ actions were in violation of the 2 nd and 3 rd interested parties’ rights to legal representation and access to justice; the rights of the 2 nd petitioner to fair hearing, human dignity, freedom and security of the person, fair administrative action and access to justice; abuse of office; ultra vires and in contravention of the overriding purpose and essence of court processes. It was a deviation from international best practice and standards of independence of the Bar and principles of treating members of the 1 st petitioner.
23. The petitioners asserted that the 1 st , 2 nd , 3 rd and 4 th respondents’ actions had violated articles 10, 25, 28, 29, 47 50, 73, 75, 157 (4) and 245(2) and (4) of the Constitution; section 4 of the Fair Administrative Action Act and article 16, 17 and 20 of the United Nations Basic Principles on the Role of Lawyers. The actions were thus, illegal, ultra vires and an abuse of power and discretion. The actions were biased; marred with procedural impropriety; unreasonable and irrational and violated their legitimate expectation.
24. The petitioners maintained that the actions violated the Law society of Kenya Act since the 2 nd petitioner was discharging his duties since the documents were filed in support of ELC cases where the 2 nd petitioner was not a party, witness or maker of the documents.
25. Based on the foregoing, the petitioners sought several declarations and orders against the respondents.
1 st , 2 nd and 4 th respondents’ case
26. The 1 st , 2 nd and 4 th respondents opposed the petition through a replying affidavit sworn by Chief Inspector Godfrey Mburugu. The 1 st , 2 nd and 4 th respondents stated through CI Mburugu, that investigations were conducted over criminal culpability of the 2 nd petitioner and the parties to Nairobi ELC No. 242 of 2022. The file was forwarded to the 3 rd respondent who exercised his mandate under articles 157(6) and (10) of the Constitution and instituted the prosecution.
27. The 1 st , 2 nd and 4 th respondents asserted that veracity of the evidence gathered in the investigations to establish the 2 nd petitioner’s culpability will be tested during trial. They contended that issues in ELC E019 of 2021 and ELC No. E242 of 2022 are also directly in issue before the trial court in Criminal Case No. E424 of 2023, which is a court with competent jurisdiction to try and determine the criminal case.
28. The 1 st , 2 nd and 4 th respondents asserted that Inspector General of Police cannot be directed by any person or authority how to discharge his mandate except the 3 rd respondent under article 157(4) of the Constitution to investigate any information or allegation of criminal conduct. The 4 th respondent has no role to play in the Criminal justice system.
29. The 1 st and 2 nd respondents performed their duties in accordance with section 24 of the National Police Service Act, hence this court should only interfere if it is demonstrated that criminal proceedings had been instituted for reasons other than enforcement of criminal law or is an abuse of the court process. They denied that the petitioners had discharged the burden of proof.
3 rd respondent’s case
30. The 3 rd respondent opposed the petition through grounds of opposition and a replying affidavit sworn by Vera Omollo-Hamisi.
Grounds of opposition
31. The 3 rd respondent asserted through the grounds of opposition, that the criminal case was instituted against the 2 nd petitioner after being satisfied that the evidence presented was sufficient. The 3 rd respondent denied that the decision to charge and prosecute was ultra vires , unreasonable or illegal. He maintained that he acted in accordance with his mandate under articles 157 of the Constitution.
32. The 3 rd respondent contended that this court can only interfere where it has been shown that criminal proceedings had been instituted for reasons other than enforcement of criminal law or otherwise are an abuse of the court process in violation of article 157(11) of the Constitution.
Replying affidavit
33. In the replying affidavit, the 3 rd respondent stated through Ms. Hamisi, investigations over the complaint regarding registration of the suit property established that the 3 rd interested party was allocated an un-surveyed industrial plot by the Commissioner of Lands through letter ref.88767/IV/142 dated 2 nd February 1994. The allotment was based on a Part Development Plan Number 42/14/93/14 prepared by the Department of Physical planning.
34. The 3 rd respondent asserted that part of the conditions in the letter were that acceptance and payment be received within 30 days failure to which the offer would lapse. The 3 rd interested party did not accept the offer or make payment within the timelines until 7 th May 1996 when the 3 rd interested party wrote accepting the offer.
35. The parcel of land was therefore allocated to Nduati Mbugua, Pauline Mulinge and Karandi Farms Limited as IR 90923/1 dated 31 st December 2002. According to the records held at the Nairobi Central Registry, land LR. No.209/12077 lR. No. 90923 was registered on 31 st December, 2002 pursuant to a grant issued by the Commissioner of Lands for a term of 99 years from 1 st May 1999 at an annual rent of Kshs. 110,800. The land is delineated on Survey Plan Number 192966.
36. The 3 rd respondent stated that despite the fact that a grant to the suit property had earlier been processed and issued to Peter Nduati Mbugua, Pauline Mulinge and Karandi Farms Limited as IR 90923/1, the office of the Commissioner Lands went ahead and processed another title in favour of the 3 rd interested party. The second registration as IR 213652 would therefore be irregular, null and void.
37. The 3 rd respondent asserted that the register held at the Nairobi Central Land Registry was reported missing and a reconstruction of the register initiated through Deed of indemnity registered on 26 th April 2011. The Chief Land Registrar requested for the verification of Title IR 90923, LR No. 209/12077 and it was confirmed that the 1 st interested party had genuine title and forms part of the Land Registry’s Records.
38. The office of the Chief Land Registrar had learnt that in 2019 another Lease in respect of the same land was prepared in favour of the 3 rd interested party for a term of 99 years from February, 1994 at an annual rent of Kshs 138,400 and on 11 th September 2019, a Certificate of Title- IR 213652 I.R. No. 209/12077 issued in favour of the 3 rd interested party. From the records, it was noted that Deed Plan Number 192966 used to prepare the Title for the 3 rd interested party was a Certified Copy of the original Deed Plan annexed to the 1 st interested party’s Title.
39. The 3 rd respondent, upon analyzing the documentary evidence in the investigations file noted that the 2 nd petitioner was at all times counsel for the 3 rd interested party and he rendered services to his client in respect of the suit property. He therefore should take responsibility for every document relating to transactions surrounding the suit property that investigations revealed was fraudulently acquired.
40. The 3 rd respondent maintained that in making the decision to charge the 2 nd petitioner, he relied on the evidence from the investigations which established the 2 nd petitioner’s culpability which should be tested during trial. The 2 nd petitioner having not denied knowledge of the documents and having presented the documents culminating into the fraudulent registration of the certificate of lease to his clients, should undergo trial with the co-accused in the Criminal case.
41. The issues the 2 nd petitioner has raised before this court are issues that relate to the ELC cases over the suit property have little relation with the Criminal Case, hence are separate and distinct to this petition.
2 nd and 3 rd interested parties’ case
42. The 2 nd and 3 rd interested parties filed a replying affidavit sworn by John Michael Ohas in support of the petition. They stated that there was a land ownership dispute involving the 3 rd interested party and the 1 st interested party over L.R No. 209/12077.
43. In 1993, the 2 nd interested party submitted an application for allocation of land on behalf of the 3 rd interested party through the Commissioner of Lands and Settlement Schemes. The application was considered and approved in 1994 and the 3 rd interested party was issued with an Allotment Letter. Payment of Kshs. 50,000, part payment for the allotment was made and receipted through receipt No. D448385. Further payments of Kshs. 814,550 was made through cheque No. 150995, file No. 157048 on 16 th May 1996.
44. The 3 rd interested party was also issued with copies of a memo, valuation form drawing and Part Development Plan under Ref No. PPD/42/14/IX/96 from the Ministry of Lands and Physical Planning. Letter of acceptance of the allotment was submitted intended to complete the process of allotment and give way to processing of survey and registration of the lease.
45. The 3 rd interested party contracted Victoria Land Surveyors Limited to undertake the survey and draw the survey plan to enable preparation of a Deed plan. The Survey Plan was submitted to the Director of Survey of Kenya for preparation of the Deed Plan. The Director of Survey developed and issued Deed Plan No. 192966 to the 3 rd interested party on 25 th January 1995 which was submitted at the Ministry of Lands for preparation and registration of the Lease. The Director of Land Registration prepared the Indent Letter.
46. The 2 nd and 3 rd interested party contended that the Deed Plan represented a binding document signifying that allotment had been completed and was ready for registration by the Commissioner of Lands. It was therefore inexcusable that the Commissioner of Lands issued a grant over the same property to Peter Nduati Mbugua, Pauline Mulinge and Karandi Farm Limited.
47. The 2 nd and 3 rd interested parties maintained that there was no gazette notice or advertisement on the reallocation of the property. The 3 rd interested party was not given notice over cancellation of the allotment neither was the money paid towards the allotment of the land refunded.
48. According to the 2 nd and 3 rd interested parties, in September 2017, file No. 157048 with respect to the 3 rd interested party’s registration said to have been lost at the Lands Registry resurfaced but without the original Deed Plan in favour of the 3 rd interested party. The missing Deed Plan was later used to register the property in favour of the 1 st interested party. Following a request by the 4 th interested party, the 1 st respondent conducted investigations which revealed that the registration in favour of the 1 st interested party was marred with fraud and recommended that it be revoked to enable the 3 rd interested party proceed with registration of its property. These findings were communicated by the 1 st respondent to the 4 th interested party through letter dated 26 th January 2018 and which is subject of count 4 in the criminal proceedings.
49. The 2 nd and 3 rd interested parties asserted that they proceeded with the process of registering Title in favour of the 3 rd interested party; applied for certified copies of the Deed Plan from the Director of survey through the Licensed Surveyor who conducted the survey for the 3 rd interested party and certified copies were issued. Neither the Deed nor the certified copies had been contested or impugned at any point in the ELC or criminal cases.
5 th interested party’s case
50. The 5 th interested party, one of the directors of the 3 rd interested party also filed a replying affidavit in support of the petition. He is a joint donee of the Specific Power of Attorney by the 2 nd interested party dated 21 st September 2021.
51. The 5 th interested party stated that it was the 6 th interested party who collected the Title and he believed that registration of the property was legally and procedurally done. The 5 th interested party stated that he is not a party in the EL cases. His interest is strictly as a director of the 3 rd interested party under which circumstances he cannot be held personally liable for any controversy.
52. The 5 th interested party asserted that he was kept aware of the progress and proceedings in both civil suits in the event he was required to stand in for the 2 nd interested party in his capacity as director and witness for the 3 rd interested party. This made him a target for harassment and threats from the 1 st 2 nd , 3 rd and 4 th respondents on behalf of the 1 st and 4 th interested party.
53. The 5 th interested party stated that on 9 th and 16 th March 2023, he was summoned to the 1 st respondent’s offices to record a statement regarding his directorship and the power of attorney donated to him which he did. The 2 nd petitioner protested through letters dated 15 th March 2023 and 28 th March 2023 over the interference with court proceedings in ELC No. E242 of 2022.
54. On 15 th June 2023, the 1 st respondent’s officers asked him to go to their offices on pretext that they wanted clarification over statements he had previously recorded but instead, he was arrested and detained overnight at Muthaiga Police station.
55. On 16 th June 2023, he was taken the Milimani Law Courts Basements Cells awaiting to be arraignment before the 5 th respondent. The 2 nd petitioner went to court to represent him but was arrested.
56. The 5 th interested party asserted that the criminal charges preferred against the 2 nd petitioner, 6 th interested party and himself are unfair, biased and intended to harass and intimidate them to defeat the 3 rd interested party’s claim over the property. The charges further violate their constitutional rights.
6 th interested party’s case
57. The 6 th interested party filed a replying affidavit stating that had always performed duties with integrity and professionalism and had never been authorized by the Director of Surveys in the line of duty to carry out survey; alter or delete any mark on survey documents; search for files containing survey plans; retrieve computation files and prepare registrable documents with respect to the suit property.
58. The 6 th interested party maintained that he had never been the Land Administrator or Officer of the National Land Commission. He was therefore not in the business of allocating land and did not take part in the allocation of the suit property to the 3 rd interested party. He stated that he is not a Land Registrar and did not have authority to register Title and issue Certificates of Title and/or Lease Documents. He was not party to the registration of Title in favour of the 3 rd interested party.
59. The 6 th interested party stated that on 24 th February 2023, he was summoned by police officers who informed him that they were investigating registration of the suit property and wanted him to record a statement on the matter. On 16 th June 2023, he learnt through the 2 nd petitioner that the 5 th interested party and the 2 nd petitioner had been arrested and charged and that he was to be charged as a co-accused.
60. The 6 th interested party contended that the allegations that he authored or doctored documents, the subject of the impugned charges, are malicious since he had never been under the employment of any of the offices from which the alleged forged documents emanated. On 23 rd June 2023 police officers contacted him and asked him to go to their offices to collect summons in relation to the charges.
61. He requested the 2 nd petitioner’s Law firm to represent him and collect the summons. The 2 nd petitioner contacted the police officers concerned and informed them that the summons would be collected by an advocate in due course.
62. On 29 th June 2023, the 6 th interested party appeared before the 5 th respondent together with the 2 nd petitioner and the 5 th interested party. The 6 th interested party asserted that the 4 th interested party is the custodian of all files relating to registration of titles and the documents contained in the files on whose basis land transactions are completed and he had nothing to do with the accusations leveled against him with regard to the suit property.
Submissions
63. The petition was disposed of through written submissions with brief oral highlights
Petitioners’ submissions
64. The petitioners argued that the decision to institute criminal proceedings though a discretionary power, must be exercised in accordance with article 157(10) of the Constitution. This was not, however, the case because investigations leading to the arrest and charge the 2 nd petitioner, the 5 th and 6 th interested parties were conducted at the behest at the 4 th respondent. Such a decision cannot result in a fair trial for the 2 nd petitioner thus, the court should interfere with the decision by the DPP. They relied on the decision in Walton v Gardiner (1993) 177 CLR 378.
65. The petitioners argued that the criminal case is based on matters which the ELC is seized of and which it should be left to determine. The criminal proceedings are therefore an abuse of power. They relied on the decisions in Rosemary Wanja Mwagiru & others v Attorney General & 3 others [2013] eKLR and Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR.
66. The petitioners cited article 47 of the Constitution, section 7(2) of the Fair Administrative Action Act and the decisions in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Alfred Nyandieka v Director of Public Prosecutions & 2 others [2020] eKLR for the position that in initiating the criminal prosecution against the 2 nd petitioner who was merely discharging his professional duties as an advocate, the respondents violated the Constitution and the law.
67. The petitioners again relied on article 28 of the Constitution and the decisions in S v Makwanyane and another (CCT3/94) [1995] ZACC 3; MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR) and Republic v Attorney General Ex parte Kipngeno Arap Ngeny [2001] eKLR to contend that the respondents’ actions had tarnished the 2 nd petitioner’s image and reputation by violating his inherent dignity.
68. The petitioners argued that the charges in the criminal case relate to supporting documents filed in the ELC cases which had been pending in court for some years. The same documents had previously been relied on and were filed by advocates other than the 2 nd petitioner and had never been the subject of any criminal investigation for more than 10 years during which ownership of the suit property had been in dispute. What is before court is weaponization of prosecutorial power to settle personal scores which this court should not allow.
69. The petitioners relied on among others, the decision in Alfred Nyandieka v Director of Public Prosecutions & 2 others (supra) for the position that the court should allow the petition and award the 2 nd petitioner damages.
1 st , 2 nd and 4 th respondents’ submissions
70. The 1 st , 2 nd and 4 th respondents submitted that they acted within the Constitution and the law and the onus was on the petitioners to prove otherwise. They relied on articles 243 and 2
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