1. The applications before this Court are the ones dated 29th August, 2024 and The Notice of Motion dated 9th September, 2024.
2. The application dated dated 9th September, 2024 seeks the following orders:
1. Spent.
2. THAT this Honourable Court be pleased to strike off record, the Interested Party's averments as contained at paragraphs 6 (i), G) and (k) and 23 of his Replying Affidavit sworn on the 6th of September, 2024 together with the annexures contained therein being annexures "ATK-6" and "ATK-8" for being inadmissible as the same is not only hearsay but also violates section 106A and B of the Evidence Act.
3. THAT the costs of this Application be provided for.
2. The application is supported by a Statutory statement dated 27th August, 2024 a Supporting Affidavit by Mercy Wahiga Wanjiku sworn on 9th September, 2024.
3. It is her case that she was arrested on 13th June 2024 following a complaint by the Interested Party alleging fraud related to a false tender, but after reviewing the investigation file, the Respondent found insufficient evidence linking her to the alleged offence, resulting in her release while other implicated individuals were charged.
4. In a surprising turn of events, the Respondent assigned the file to a different Prosecution Counsel who, without any new evidence, directed on 13th August 2024 that the she be charged with conspiracy to commit a felony, revealing a decision that appears arbitrary, malicious, and improperly influenced by the Interested Party, rather than grounded in a legitimate pursuit of justice.
5. It is contended that the decision was made without an honest objective of enforcing criminal law for the following reasons;
a. The original complaint lodged by the Interested Party in April 2024 makes no mention of the Applicant, underscoring the arbitrary and malicious nature of the Respondent's later decision to charge her.
b. There exists no evidence linking the Applicant to the offences complained of or the charges contemplated therein.
c. The Respondent offered no reasonable explanation for the abrupt reversal of its initial decision not to charge the Applicant, nor for the reassignment of the case to a different prosecutor, despite the acknowledged insufficiency of evidence.
6. She is apprehensive that the Respondent has exercising its prosecutorial powers in an arbitrary, biased, and oppressive manner thus infringing on her rights to fair administrative action and equal protection under the law
7. The Applicant further avers that the Interested Party filed a Replying Affidavit on 6th September 2024 in response to her substantive Notice of Motion dated 29th August 2024, and asserts that she is aggrieved by the contents thereof, particularly paragraphs 6(i), (j), and (k), which, in her view, purport to adduce evidence that is incapable of authentication.
8. It is her argument that the evidence adduced lacks a certificate of electronic evidence and is therefore invalid and inadmissible under the Evidence Act, warranting its removal before the substantive application is considered.
9. She contends that the Interested Party unfairly attacked her character in paragraph 23 of his Replying Affidavit, that fails to comply with evidence laws on authentication under sections 106A and 106B of the Evidence Act; therefore, these paragraphs are inadmissible, should be struck off the record to prevent unfair prejudice and violation of my right to a fair hearing.
10. The Applicant submits that under Order 19 of the Civil Procedure Rules, the court has discretion to strike out any affidavit, content that is scandalous, irrelevant, oppressive, or improper, and affidavits must only contain facts within the deponent’s personal knowledge. Additionally, where affidavits include hearsay, arguments, or unnecessary content, the court may order the filing party to bear the costs.
11. The Applicant submits that it is well established that hearsay evidence is inadmissible in court because the person presenting it cannot prove the truth of the matter from their own personal knowledge as was held in the case of Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others [2005] eKLR, where the Court of Appeal held as follows,
“The starting point, we think, is the legislation on affidavit evidence which underscores the obvious position in law that it is sworn testimony on matters of fact. Since 1969 (by Act No. 10/69) the provisions of the Evidence Act have been applied to affidavits and therefore the rules of admissibility and relevancy apply. Hearsay evidence is for exclusion. So are legal opinions.”
12. She placed reliance in Kimaru Jin Albany Taylor & Another v Christopher Taylor & Another [2008) eKLR and Rabote (Suing as the Legal representative of the Estate of Leanrd Taabu Rabote Deceased v Juma (Civil Appeal 44 of 2022) [2022] KEHC 13742 (KLR).
13. Reliance is also placed in the case of Kinyatti v Republic [1984) eKLR where the court pronounced that where an affidavit contains inadmissible hearsay evidence that offends the rules of evidence under Order 19 of the Civil Procedure Rules should be struck out.
14. It is contended that he Respondent found no evidence linking her to the alleged crime, deeming the charge malicious and unlawful, to which the Interested Party replied with contested assertions in his affidavit.
15. In Stackelberg v Obst; Boko Boko Investments Limited (Objector) (Civil Case 133 of 2007) [2023] KEHC 1999 (KLR) where Olga Sewe J as guided by the Court of Appeal's decision in John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others {20181 eKLR affirmed this position as follows;
“No such certificate was annexed to the objector's supporting affidavit along with the photographs as contemplated under Section 106 B (4) of the Evidence Act. In the case of John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR the Court of Appeal had occasion to deliberate on the import of the above provision. Here is what it had to say: - It is at this juncture that the provisions of section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do... In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced...... We therefore find that the election court did not err in finding the electronic evidence inadmissible, and therefore this ground of appeal must fail.”
16. The Applicant submits that pursuant to Article 157 of the Constitution, the Director of Public Prosecutions (DPP) has exclusive authority to initiate criminal proceedings independently, but must exercise this power lawfully, reasonably, and in line with constitutional values, and the courts may intervene if the DPP acts ultra vires or abuses these powers for improper motives.
17. It is her case that her assertions remain uncontested as the Respondent failed to rebut them or justify the decision to charge, which initially found no sufficient evidence linking her to the complaint of conspiracy to defraud made by the Interested Party, leading to her release while others were charged.
18. In Gulleid v Registrar of Persons & another (Petition E007 of 2021) [2021] KEHC 110 (KLR), where Ogola J affirmed the decision in Peter 0. Nyakundi & 68 others v Principal Secretary, State Department of Plamning, Misnistry of Devolution and Planning & another the court held as follows,
“As stated earlier the Respondents did not file any replying affidavit to challenge and/or controvert the sworn averment by the Petitioners... Failure to file a replying affidavit can only mean that those facts are admitted.”
19. Similarly, the Court of Appeal in Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR, affirmed the decision by Mativo Jin Phillip Tirop Kitur v Attorney General [2018] eKLR, that in the absence of a replying affidavit or oral evidence from a Respondent in a Petition, the Petitioner's affidavit evidence stood unchallenged.
20. The Applicant contends that the Respondent’s decision to charge her was influenced and not independent, as it involved collusion with the Interested Party to obtain a fresh statement specifically implicating her, without any new evidence, demonstrating malice and an ulterior motive, thus constituting an abuse of the court’s process.
21. She relies in the case of Shamsher Kenya Limited v Director of Public Prosecutions & 2 others [2018] eKLR, where the court highlighted this in detail as follows,
“It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution. There must be sufficient evidence to mount a prosecution. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. It is for the DPP to determine that the evidence presented is sufficient to justify a prosecution. In my view, a prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused.
It is also true that the decision as to whether there is a reasonable prospect of conviction requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence.
The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the accused and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction. This assessment may be a difficult one to make, and of course, there can never be an assurance that a prosecution will succeed. Indeed, it is inevitable that some will fail However, application of this test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and pursuing a futile prosecution resulting in the unnecessary expenditure of public funds.
When evaluating the evidence regard should be had to the following matters:- (a) Are there grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common law and under statute (b) If the case depends in part on admissions by the accused, are there any grounds for believing that they are of doubtful reliability having regard to the age, intelligence and apparent understanding of the accused"(c) Does it appear that a witness is exaggerating, or that his or her memory is faulty, or that the witness is either hostile or friendly to the accused, or may be otherwise unreliable" (d) Does a witness have a motive for telling less than the whole truth" (e)Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute. (/). whether the alleged offence is of considerable public concern and (g) the necessity to maintain public confidence. As a matter of practical reality. the proper decision in most cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution.
The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions. No evidence has been tendered to show that the DPP abused his discretion or powers under the Constitution. The duty of the prosecutor is to seek justice not merely to convict or parade people in court without sufficient evidence."
22. The Applicant argues that people should never be subjected to criminal proceedings arbitrarily or without proper evidence simply because the Respondent has the power to charge. The Respondent must ensure there is sufficient evidence, act independently, and uphold justice not charge someone just because the complainant demands it. In this case, she was charged despite insufficient evidence, showing undue influence over the Respondent’s independence.
The Respondent’s case;
23. The Respondent in rebuttal filed Grounds of Opposition dated 3rd September, 2024 raising the following grounds:
1) That pursuant to Article 157 of the Constitution of Kenya 2010, the Respondent has the mandate to institute and undertake Criminal proceedings and the exercise of this mandate cannot be interfered with unless in exceptional and clearest circumstances where there is infringement of fundamental freedoms, violation of the Constitution and the law or where there is abuse of the legal process.
2) That the Director of Public Prosecutions makes decisions to charge or otherwise while having regard to the evidential threshold, public interest, interest of administration of justice and the need to prevent and avoid abuse of the legal process.
3) That the orders being sought are not tenable against the Respondent as the Applicant has not demonstrated how the decision made is unconstitutional, irrational and unfair.
4) That the Applicant is undeserving the reliefs being sought as he has failed to show a predominant ulterior motive underlying the decision that was made.
24. It submits that it is an independent body established under Article 157 of the Constitution of Kenya ,2010. Under section 5 (4) (e) of the Office of the Director of Public Prosecutions Act,2013 states thus;
5. Powers and functions of the Director: -
5(4) The Director shall: -
5(4) (e) review a decision to prosecute, or not to prosecute, any criminal offence.
25. The Respondent contends that the Applicant has failed to satisfy the court that it acted in bad faith or that it has abused the process in exercising its prosecutorial powers.
26. The Respondent maintains that after a complaint was lodged with the Director of Public Prosecutions, the case file was rightfully recalled and assigned to a different Prosecution Counsel with instructions to gather more information, which falls within the DPP’s constitutional mandate under Article 157(9) to act personally or through subordinate officers and that the decision to charge the Applicant was based on further evidence obtained after directing additional investigations, which evidence had not been available when the initial decision not to charge was made.
27. In Douglas Maina Mwangi vs. KRA & Another, 213 eKLR, Majanja J addressed the issue as follows:
“15. The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases ………’’
28. Reliance is also placed in the case of Peter Ngunjiri Maina v Director of Public Prosecutions and 2 others [2017] eKLR the court held thus:
“The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the court can review the DPP’s decision for rationality and procedural infirmities it cannot review them on merit...’’
29. The Respondent contends that its decision to charge the Applicant was lawfully based on new evidence obtained through further investigations.
30. In the case of Kuria & 3 others versus Attorney General (2002) 2KLR 69 the court of Appeal stated:
“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score settling or vilification or issue not pertaining to that which the system was formed to perform... A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious.... It is through this mandate of the court to guard its process form being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the court’s) independence and impartiality.... In the same case it was held that: “It would be a travesty of justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter....”
31. The Respondent urges that the application be dismissed with costs.
The Interested Party’s case;
32. The interested party in rebuttal of the Applicant’s application filed a Replying Affidavit by Abraham Kipkemboi Tarbey sworn on 6th September, 2024 and written submissions dated 14th September, 2024.
33. He is a director of Frontline Tarkipa Media Ltd, claims he was defrauded of goods worth over USD 2.2 million after being misled into believing he had won a World Food Programme tender in Janaury 2024, following meetings with individuals posing as WFP and UN staff namely Kelvin Kemboi Victor Ayumba and Caroline Kiburu alias Elizabeth Mutua, who later arranged for collection of the goods under false pretenses.
34. He alleges that after delivering goods under a fraudulent tender scheme, the goods were traced to warehouses owned by the Applicant, Mercy Wahiga who despite an initial decision not to charge her, the Applicant was later charged with conspiracy to commit a felony based on further statements and voice call evidence, leading to her prosecution in Milimani Criminal Case No. E1117 of 2024, which forms the basis of the present judicial review application.
35. The matter was reported under OB No. 32/15/04/2024 and subsequent police investigations revealed that the Applicant, Mercy Wanjiku, was identified as the main beneficiary of the fraud, being responsible for the handling, storage, and disposal of the stolen goods. Kelvin Kemboi also confirmed that negotiations regarding the matter would not be fruitful without involving the Applicant, further implicating her in the fraudulent scheme.
36. The interested party deposed that it is in the interest of justice that the Respondent be allowed to proceed with charging her accordingly.
37. According to him, he believes that justice must not only be done but also seen to be done, and any attempt to prevent the Respondent from carrying out its constitutional and legal mandate would amount to interference with its powers and a defeat of the administration of justice.
38. He argues that the decision to charge the Applicant, along with other implicated individuals, meets the required evidentiary threshold.
39. The interested party deposes that the Applicant has failed to rebut the evidence implicating her, particularly regarding the warehouses in Donholm and Njiru used in the handling and disposal of stolen goods.
40. It is contended that the Respondent acted fairly and objectively in deciding to charge the Applicant, in accordance with its legal mandate. He argues that the Applicant’s constitutional rights to a fair trial remains intact, and she will not be prejudiced by the prosecution.
41. It is further contended that the truck drivers who collected goods and delivered them to the Applicant for handling, storage, and disposal are prosecution witnesses, with some having already recorded statements.
42. The interested party asserts that the Applicant knowingly benefited from the fraud and is now abusing the court process by challenging the Respondent’s lawful decision to prosecute, thereby obstructing justice. He rejects the Applicant’s claims that there is insufficient evidence, calling them baseless.
43. According to him, the Applicant has a questionable character, with a pattern of similar pending cases and attempts to evade prosecution by seeking to quash charges.
44. It is his case that the Respondent is an independent constitutional office under Article 157 of the Constitution and does not require consent or direction from any person or authority when initiating criminal proceedings.
45. Similarly, the Directorate of Criminal Investigations (DCI) is mandated under Articles 244 and 245 of the Constitution and the National Police Service Act to investigate offences and uphold the law.
46. It is submitted that there are plenty of judicial pronouncements that provide authoritative guidance on instances where the court can intervene criminal proceedings. Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR referred to the Supreme Court of India in State of Maharashtra & others v Arun Gulab & others, Criminal Appeal No 590 of 2007, Kipoki Oreu Tasur v Inspector General of Police & 5 others (2014) eKLR where the courts held that courts should only intervene and grant such orders where the Respondent has acted illegally and beyond its mandate or if the rights of the Applicant have been infringed upon.
47. It is also submitted that it is inherent to appreciate the procedure followed from the stage when a complaint is lodged until when a decision to charge is entered.
48. The interested party invokes Article 243 (1) of the Constitution which establishes the National Police Service, and the National Police Service Act gives full effect to this Article. Part V of the Act establishes the Directorate of Criminal Investigations and among its functions under Section 35 of the Act include to detect and prevent crime, undertake investigations of serious crimes and apprehend offenders.
49. He avers that the Police have a duty to receive complaints from the public and undertake their own independent investigation to determine whether a crime has been committed.
50. Reliance is placed in Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR the Court had the following to say regarding investigative agencies:
“In our view, it would be within the mandate of an investigative body to receive complaints and to investigate them. Such bodies or entities cannot be faulted for acting on the complaints as in so doing, they would be acting within their constitutional and statutory duty.”
51. It is his also his submission that the Applicant has not challenged the investigation process but alleges that the Respondent’s decision to charge violates constitutional prosecutorial principles without specifying how.
52. He maintains that despite the baseless claims by the Applicant, the Respondent, acted independently under Article 157 and properly exercised its prosecutorial powers supported by evidence and multiple witnesses.
53. It is further submitted that the Applicant has fallen short in substantiating the grounds to be taken into consideration for the review of the prosecutorial powers as was held in Jirongo Cyrus Shakhalanga Khwa v Soy Developers Ltd & 9 others Petition 38 of 2019; [2021] eKLR, where the Court cited with approval the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866 which laid down the following guidelines to be considered by the Court on when the High Court may review prosecutorial powers as follows:
i. Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or
ii. Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or
iii. Where the allegations in the First Information Report or the 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 adduced or evidence adduced clearly or manifestly fails to prove the charge.
54. The interested party submits that the Applicant claims that her rights have been violated under articles 2(1) and 2(2),10,19,20,21,22,23,25(a) and (c), 29(d), 47 and 157(11) and 159 Constitution but has not demonstrated how the said rights have been violated.
55. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance and others [2013] eKLR to wit the Court held that;
“We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims…. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The Principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”
56. The interested party contends that the Prohibition prayers sought have been overtaken by events and places reliance in the case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4(E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) [2023] KESC 40 (KLR) where the court held thus:
“Thus, it is our finding that there exists no live controversy on the question of restraining the Inspector General, DCI and DPP from arresting and charging the appellants as the adverse decision to prosecute the appellants has already taken place and on the existing facts, there is no imminent threat to arrest or charge the appellant again”
57. It is urged that this Honourable Court should grant him leave to avail the electronic certificate as this would be in the interest of justice.
58. In George Gabriel Kiguru & another v Republic [2022] eKLR it was held that:
“…Article 159(2) (d) of the Constitution states that “justice shall be administered without undue regard to procedural technicality”. The certificate is available. Would it be fair and just to deny the prosecution the opportunity to produce the documents which have already been marked for the reason that the certificate that has always been available may have been left out while serving the documents? I am alive to the fact that the applicants are not fighting the contents of the documents but the lack of the certificate. I agree with the learned trial magistrate that it is in the interests of justice that the respondent be allowed to produce the certificate and for the court to deal with the evidence on its merits.”
59. The interested party argues that the Applicant has failed to show how the decision to charge her violates her constitutional rights or meet the threshold for the relief sought, and since the Court lacks jurisdiction to assess evidence intended for trial, therefore the application dated 9th September 2024 should be dismissed, allowing her to prove her innocence during criminal proceedings.
Analysis and determination;
60. Upon perusing the application as well as the affidavits and rival submissions, this court identifies the following to be the issues for determination:
1) Whether the application has merit.
2) Who should bear the costs.
Whether the application has merit;
61. In the case of Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR the court had this to say in regards to the jurisdiction and powers of the Judicial Review Court.
“63. Judicial Review is about the decision-making process, not the decision itself. The role of the court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the 'forbidden appellate approach'. Judicial Review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. 64. Judicial Review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision.”
62. In the book; Public Law in East Africa published by Law Africa as quoted in National Social Security Fund v Sokomania Ltd & another [2021] eKLR, the author, Ssekaana Musa st
[...truncated]
2. The application dated dated 9th September, 2024 seeks the following orders:
1. Spent.
2. THAT this Honourable Court be pleased to strike off record, the Interested Party's averments as contained at paragraphs 6 (i), G) and (k) and 23 of his Replying Affidavit sworn on the 6th of September, 2024 together with the annexures contained therein being annexures "ATK-6" and "ATK-8" for being inadmissible as the same is not only hearsay but also violates section 106A and B of the Evidence Act.
3. THAT the costs of this Application be provided for.
2. The application is supported by a Statutory statement dated 27th August, 2024 a Supporting Affidavit by Mercy Wahiga Wanjiku sworn on 9th September, 2024.
3. It is her case that she was arrested on 13th June 2024 following a complaint by the Interested Party alleging fraud related to a false tender, but after reviewing the investigation file, the Respondent found insufficient evidence linking her to the alleged offence, resulting in her release while other implicated individuals were charged.
4. In a surprising turn of events, the Respondent assigned the file to a different Prosecution Counsel who, without any new evidence, directed on 13th August 2024 that the she be charged with conspiracy to commit a felony, revealing a decision that appears arbitrary, malicious, and improperly influenced by the Interested Party, rather than grounded in a legitimate pursuit of justice.
5. It is contended that the decision was made without an honest objective of enforcing criminal law for the following reasons;
a. The original complaint lodged by the Interested Party in April 2024 makes no mention of the Applicant, underscoring the arbitrary and malicious nature of the Respondent's later decision to charge her.
b. There exists no evidence linking the Applicant to the offences complained of or the charges contemplated therein.
c. The Respondent offered no reasonable explanation for the abrupt reversal of its initial decision not to charge the Applicant, nor for the reassignment of the case to a different prosecutor, despite the acknowledged insufficiency of evidence.
6. She is apprehensive that the Respondent has exercising its prosecutorial powers in an arbitrary, biased, and oppressive manner thus infringing on her rights to fair administrative action and equal protection under the law
7. The Applicant further avers that the Interested Party filed a Replying Affidavit on 6th September 2024 in response to her substantive Notice of Motion dated 29th August 2024, and asserts that she is aggrieved by the contents thereof, particularly paragraphs 6(i), (j), and (k), which, in her view, purport to adduce evidence that is incapable of authentication.
8. It is her argument that the evidence adduced lacks a certificate of electronic evidence and is therefore invalid and inadmissible under the Evidence Act, warranting its removal before the substantive application is considered.
9. She contends that the Interested Party unfairly attacked her character in paragraph 23 of his Replying Affidavit, that fails to comply with evidence laws on authentication under sections 106A and 106B of the Evidence Act; therefore, these paragraphs are inadmissible, should be struck off the record to prevent unfair prejudice and violation of my right to a fair hearing.
10. The Applicant submits that under Order 19 of the Civil Procedure Rules, the court has discretion to strike out any affidavit, content that is scandalous, irrelevant, oppressive, or improper, and affidavits must only contain facts within the deponent’s personal knowledge. Additionally, where affidavits include hearsay, arguments, or unnecessary content, the court may order the filing party to bear the costs.
11. The Applicant submits that it is well established that hearsay evidence is inadmissible in court because the person presenting it cannot prove the truth of the matter from their own personal knowledge as was held in the case of Kamlesh Mansukhlal Damji Pattni v Nasir Ibrahim Ali & 2 others [2005] eKLR, where the Court of Appeal held as follows,
“The starting point, we think, is the legislation on affidavit evidence which underscores the obvious position in law that it is sworn testimony on matters of fact. Since 1969 (by Act No. 10/69) the provisions of the Evidence Act have been applied to affidavits and therefore the rules of admissibility and relevancy apply. Hearsay evidence is for exclusion. So are legal opinions.”
12. She placed reliance in Kimaru Jin Albany Taylor & Another v Christopher Taylor & Another [2008) eKLR and Rabote (Suing as the Legal representative of the Estate of Leanrd Taabu Rabote Deceased v Juma (Civil Appeal 44 of 2022) [2022] KEHC 13742 (KLR).
13. Reliance is also placed in the case of Kinyatti v Republic [1984) eKLR where the court pronounced that where an affidavit contains inadmissible hearsay evidence that offends the rules of evidence under Order 19 of the Civil Procedure Rules should be struck out.
14. It is contended that he Respondent found no evidence linking her to the alleged crime, deeming the charge malicious and unlawful, to which the Interested Party replied with contested assertions in his affidavit.
15. In Stackelberg v Obst; Boko Boko Investments Limited (Objector) (Civil Case 133 of 2007) [2023] KEHC 1999 (KLR) where Olga Sewe J as guided by the Court of Appeal's decision in John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others {20181 eKLR affirmed this position as follows;
“No such certificate was annexed to the objector's supporting affidavit along with the photographs as contemplated under Section 106 B (4) of the Evidence Act. In the case of John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR the Court of Appeal had occasion to deliberate on the import of the above provision. Here is what it had to say: - It is at this juncture that the provisions of section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do... In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B (2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced...... We therefore find that the election court did not err in finding the electronic evidence inadmissible, and therefore this ground of appeal must fail.”
16. The Applicant submits that pursuant to Article 157 of the Constitution, the Director of Public Prosecutions (DPP) has exclusive authority to initiate criminal proceedings independently, but must exercise this power lawfully, reasonably, and in line with constitutional values, and the courts may intervene if the DPP acts ultra vires or abuses these powers for improper motives.
17. It is her case that her assertions remain uncontested as the Respondent failed to rebut them or justify the decision to charge, which initially found no sufficient evidence linking her to the complaint of conspiracy to defraud made by the Interested Party, leading to her release while others were charged.
18. In Gulleid v Registrar of Persons & another (Petition E007 of 2021) [2021] KEHC 110 (KLR), where Ogola J affirmed the decision in Peter 0. Nyakundi & 68 others v Principal Secretary, State Department of Plamning, Misnistry of Devolution and Planning & another the court held as follows,
“As stated earlier the Respondents did not file any replying affidavit to challenge and/or controvert the sworn averment by the Petitioners... Failure to file a replying affidavit can only mean that those facts are admitted.”
19. Similarly, the Court of Appeal in Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR, affirmed the decision by Mativo Jin Phillip Tirop Kitur v Attorney General [2018] eKLR, that in the absence of a replying affidavit or oral evidence from a Respondent in a Petition, the Petitioner's affidavit evidence stood unchallenged.
20. The Applicant contends that the Respondent’s decision to charge her was influenced and not independent, as it involved collusion with the Interested Party to obtain a fresh statement specifically implicating her, without any new evidence, demonstrating malice and an ulterior motive, thus constituting an abuse of the court’s process.
21. She relies in the case of Shamsher Kenya Limited v Director of Public Prosecutions & 2 others [2018] eKLR, where the court highlighted this in detail as follows,
“It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution. There must be sufficient evidence to mount a prosecution. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. It is for the DPP to determine that the evidence presented is sufficient to justify a prosecution. In my view, a prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the accused.
It is also true that the decision as to whether there is a reasonable prospect of conviction requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence.
The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the accused and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction. This assessment may be a difficult one to make, and of course, there can never be an assurance that a prosecution will succeed. Indeed, it is inevitable that some will fail However, application of this test dispassionately, after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and pursuing a futile prosecution resulting in the unnecessary expenditure of public funds.
When evaluating the evidence regard should be had to the following matters:- (a) Are there grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common law and under statute (b) If the case depends in part on admissions by the accused, are there any grounds for believing that they are of doubtful reliability having regard to the age, intelligence and apparent understanding of the accused"(c) Does it appear that a witness is exaggerating, or that his or her memory is faulty, or that the witness is either hostile or friendly to the accused, or may be otherwise unreliable" (d) Does a witness have a motive for telling less than the whole truth" (e)Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute. (/). whether the alleged offence is of considerable public concern and (g) the necessity to maintain public confidence. As a matter of practical reality. the proper decision in most cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution.
The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions. No evidence has been tendered to show that the DPP abused his discretion or powers under the Constitution. The duty of the prosecutor is to seek justice not merely to convict or parade people in court without sufficient evidence."
22. The Applicant argues that people should never be subjected to criminal proceedings arbitrarily or without proper evidence simply because the Respondent has the power to charge. The Respondent must ensure there is sufficient evidence, act independently, and uphold justice not charge someone just because the complainant demands it. In this case, she was charged despite insufficient evidence, showing undue influence over the Respondent’s independence.
The Respondent’s case;
23. The Respondent in rebuttal filed Grounds of Opposition dated 3rd September, 2024 raising the following grounds:
1) That pursuant to Article 157 of the Constitution of Kenya 2010, the Respondent has the mandate to institute and undertake Criminal proceedings and the exercise of this mandate cannot be interfered with unless in exceptional and clearest circumstances where there is infringement of fundamental freedoms, violation of the Constitution and the law or where there is abuse of the legal process.
2) That the Director of Public Prosecutions makes decisions to charge or otherwise while having regard to the evidential threshold, public interest, interest of administration of justice and the need to prevent and avoid abuse of the legal process.
3) That the orders being sought are not tenable against the Respondent as the Applicant has not demonstrated how the decision made is unconstitutional, irrational and unfair.
4) That the Applicant is undeserving the reliefs being sought as he has failed to show a predominant ulterior motive underlying the decision that was made.
24. It submits that it is an independent body established under Article 157 of the Constitution of Kenya ,2010. Under section 5 (4) (e) of the Office of the Director of Public Prosecutions Act,2013 states thus;
5. Powers and functions of the Director: -
5(4) The Director shall: -
5(4) (e) review a decision to prosecute, or not to prosecute, any criminal offence.
25. The Respondent contends that the Applicant has failed to satisfy the court that it acted in bad faith or that it has abused the process in exercising its prosecutorial powers.
26. The Respondent maintains that after a complaint was lodged with the Director of Public Prosecutions, the case file was rightfully recalled and assigned to a different Prosecution Counsel with instructions to gather more information, which falls within the DPP’s constitutional mandate under Article 157(9) to act personally or through subordinate officers and that the decision to charge the Applicant was based on further evidence obtained after directing additional investigations, which evidence had not been available when the initial decision not to charge was made.
27. In Douglas Maina Mwangi vs. KRA & Another, 213 eKLR, Majanja J addressed the issue as follows:
“15. The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases ………’’
28. Reliance is also placed in the case of Peter Ngunjiri Maina v Director of Public Prosecutions and 2 others [2017] eKLR the court held thus:
“The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the court can review the DPP’s decision for rationality and procedural infirmities it cannot review them on merit...’’
29. The Respondent contends that its decision to charge the Applicant was lawfully based on new evidence obtained through further investigations.
30. In the case of Kuria & 3 others versus Attorney General (2002) 2KLR 69 the court of Appeal stated:
“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score settling or vilification or issue not pertaining to that which the system was formed to perform... A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious.... It is through this mandate of the court to guard its process form being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the court’s) independence and impartiality.... In the same case it was held that: “It would be a travesty of justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter....”
31. The Respondent urges that the application be dismissed with costs.
The Interested Party’s case;
32. The interested party in rebuttal of the Applicant’s application filed a Replying Affidavit by Abraham Kipkemboi Tarbey sworn on 6th September, 2024 and written submissions dated 14th September, 2024.
33. He is a director of Frontline Tarkipa Media Ltd, claims he was defrauded of goods worth over USD 2.2 million after being misled into believing he had won a World Food Programme tender in Janaury 2024, following meetings with individuals posing as WFP and UN staff namely Kelvin Kemboi Victor Ayumba and Caroline Kiburu alias Elizabeth Mutua, who later arranged for collection of the goods under false pretenses.
34. He alleges that after delivering goods under a fraudulent tender scheme, the goods were traced to warehouses owned by the Applicant, Mercy Wahiga who despite an initial decision not to charge her, the Applicant was later charged with conspiracy to commit a felony based on further statements and voice call evidence, leading to her prosecution in Milimani Criminal Case No. E1117 of 2024, which forms the basis of the present judicial review application.
35. The matter was reported under OB No. 32/15/04/2024 and subsequent police investigations revealed that the Applicant, Mercy Wanjiku, was identified as the main beneficiary of the fraud, being responsible for the handling, storage, and disposal of the stolen goods. Kelvin Kemboi also confirmed that negotiations regarding the matter would not be fruitful without involving the Applicant, further implicating her in the fraudulent scheme.
36. The interested party deposed that it is in the interest of justice that the Respondent be allowed to proceed with charging her accordingly.
37. According to him, he believes that justice must not only be done but also seen to be done, and any attempt to prevent the Respondent from carrying out its constitutional and legal mandate would amount to interference with its powers and a defeat of the administration of justice.
38. He argues that the decision to charge the Applicant, along with other implicated individuals, meets the required evidentiary threshold.
39. The interested party deposes that the Applicant has failed to rebut the evidence implicating her, particularly regarding the warehouses in Donholm and Njiru used in the handling and disposal of stolen goods.
40. It is contended that the Respondent acted fairly and objectively in deciding to charge the Applicant, in accordance with its legal mandate. He argues that the Applicant’s constitutional rights to a fair trial remains intact, and she will not be prejudiced by the prosecution.
41. It is further contended that the truck drivers who collected goods and delivered them to the Applicant for handling, storage, and disposal are prosecution witnesses, with some having already recorded statements.
42. The interested party asserts that the Applicant knowingly benefited from the fraud and is now abusing the court process by challenging the Respondent’s lawful decision to prosecute, thereby obstructing justice. He rejects the Applicant’s claims that there is insufficient evidence, calling them baseless.
43. According to him, the Applicant has a questionable character, with a pattern of similar pending cases and attempts to evade prosecution by seeking to quash charges.
44. It is his case that the Respondent is an independent constitutional office under Article 157 of the Constitution and does not require consent or direction from any person or authority when initiating criminal proceedings.
45. Similarly, the Directorate of Criminal Investigations (DCI) is mandated under Articles 244 and 245 of the Constitution and the National Police Service Act to investigate offences and uphold the law.
46. It is submitted that there are plenty of judicial pronouncements that provide authoritative guidance on instances where the court can intervene criminal proceedings. Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR referred to the Supreme Court of India in State of Maharashtra & others v Arun Gulab & others, Criminal Appeal No 590 of 2007, Kipoki Oreu Tasur v Inspector General of Police & 5 others (2014) eKLR where the courts held that courts should only intervene and grant such orders where the Respondent has acted illegally and beyond its mandate or if the rights of the Applicant have been infringed upon.
47. It is also submitted that it is inherent to appreciate the procedure followed from the stage when a complaint is lodged until when a decision to charge is entered.
48. The interested party invokes Article 243 (1) of the Constitution which establishes the National Police Service, and the National Police Service Act gives full effect to this Article. Part V of the Act establishes the Directorate of Criminal Investigations and among its functions under Section 35 of the Act include to detect and prevent crime, undertake investigations of serious crimes and apprehend offenders.
49. He avers that the Police have a duty to receive complaints from the public and undertake their own independent investigation to determine whether a crime has been committed.
50. Reliance is placed in Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR the Court had the following to say regarding investigative agencies:
“In our view, it would be within the mandate of an investigative body to receive complaints and to investigate them. Such bodies or entities cannot be faulted for acting on the complaints as in so doing, they would be acting within their constitutional and statutory duty.”
51. It is his also his submission that the Applicant has not challenged the investigation process but alleges that the Respondent’s decision to charge violates constitutional prosecutorial principles without specifying how.
52. He maintains that despite the baseless claims by the Applicant, the Respondent, acted independently under Article 157 and properly exercised its prosecutorial powers supported by evidence and multiple witnesses.
53. It is further submitted that the Applicant has fallen short in substantiating the grounds to be taken into consideration for the review of the prosecutorial powers as was held in Jirongo Cyrus Shakhalanga Khwa v Soy Developers Ltd & 9 others Petition 38 of 2019; [2021] eKLR, where the Court cited with approval the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866 which laid down the following guidelines to be considered by the Court on when the High Court may review prosecutorial powers as follows:
i. Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or
ii. Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or
iii. Where the allegations in the First Information Report or the 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 adduced or evidence adduced clearly or manifestly fails to prove the charge.
54. The interested party submits that the Applicant claims that her rights have been violated under articles 2(1) and 2(2),10,19,20,21,22,23,25(a) and (c), 29(d), 47 and 157(11) and 159 Constitution but has not demonstrated how the said rights have been violated.
55. In Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance and others [2013] eKLR to wit the Court held that;
“We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims…. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The Principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”
56. The interested party contends that the Prohibition prayers sought have been overtaken by events and places reliance in the case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4(E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) [2023] KESC 40 (KLR) where the court held thus:
“Thus, it is our finding that there exists no live controversy on the question of restraining the Inspector General, DCI and DPP from arresting and charging the appellants as the adverse decision to prosecute the appellants has already taken place and on the existing facts, there is no imminent threat to arrest or charge the appellant again”
57. It is urged that this Honourable Court should grant him leave to avail the electronic certificate as this would be in the interest of justice.
58. In George Gabriel Kiguru & another v Republic [2022] eKLR it was held that:
“…Article 159(2) (d) of the Constitution states that “justice shall be administered without undue regard to procedural technicality”. The certificate is available. Would it be fair and just to deny the prosecution the opportunity to produce the documents which have already been marked for the reason that the certificate that has always been available may have been left out while serving the documents? I am alive to the fact that the applicants are not fighting the contents of the documents but the lack of the certificate. I agree with the learned trial magistrate that it is in the interests of justice that the respondent be allowed to produce the certificate and for the court to deal with the evidence on its merits.”
59. The interested party argues that the Applicant has failed to show how the decision to charge her violates her constitutional rights or meet the threshold for the relief sought, and since the Court lacks jurisdiction to assess evidence intended for trial, therefore the application dated 9th September 2024 should be dismissed, allowing her to prove her innocence during criminal proceedings.
Analysis and determination;
60. Upon perusing the application as well as the affidavits and rival submissions, this court identifies the following to be the issues for determination:
1) Whether the application has merit.
2) Who should bear the costs.
Whether the application has merit;
61. In the case of Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR the court had this to say in regards to the jurisdiction and powers of the Judicial Review Court.
“63. Judicial Review is about the decision-making process, not the decision itself. The role of the court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the 'forbidden appellate approach'. Judicial Review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. 64. Judicial Review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision.”
62. In the book; Public Law in East Africa published by Law Africa as quoted in National Social Security Fund v Sokomania Ltd & another [2021] eKLR, the author, Ssekaana Musa st
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