REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. E190 OF 2023
REPUBLIC…………………………….…………………………. APPLICANT
VERSUS
INSPECTOR GENERAL OF POLICE………..….... 1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS ……. 2ND RESPONDENT
CHIEF MAGISTRATES COURT AT
MILIMANI……………..…..............................….. 3RD RESPONDENT
AND
MERCY WANGUI GICHEMA…. …………….............. 1ST EX-PARTE
JAMES WARUTERE NJEGE…. …………………………2ND EX-PARTE
AND
JANE WANJIRU ABIRURI……..…........….. INTERESTED PARTY
JUDGMENT
1. The Application that is before this court for determination is the Notice of Motion dated 3.12.23 wherein the Applicant, seeks the following orders: -
1) THAT this Honourable Court be pleased to grant an Order of CERTIORARI to bring into this Honourable Court and quash the charges in the charge sheet dated the 21st November 2023 and any further/other criminal proceedings/charges as arising therein.
2) THAT this Honourable Court be pleased to grant an Order of PROHIBITION directed at the 1st and 2nd Respondents barring them from arresting, incarcerating, instituting and/or proceeding with the intended criminal charges against the as contained in and/or based on the particulars of the charges in the charge sheet dated the 21st of November 2023. Filed on: -
3) THAT this Honourable Court be pleased to grant an Order of PROHIBITION directed at the 3rd Respondent barring it from conducting and/or proceedings against the Applicants herein as contained in and/or based on the particulars of the charges in the charge sheet dated 21st November 2023 including the taking of plea as intended on the 27th of November 2023 or otherwise.
4) THAT this Honourable Court be pleased to grant such further orders and reliefs that it may deem to be just and expedient.
5) Cost of this application be borne by the Respondents.
2. The Application is opposed by the Replying Affidavits filed by the Respondents herein. The common ground and reason advanced by the Respondents and the Interested Party is that the Applicants were directors of the companies at the material time and heard knowledge of the transaction in issue. No further evidence was adduced to demonstrate or support the allegation that the Applicants had knowledge of the facts of the transactions leading to the alleged offence.
3. However, it is apparent that none of the Respondents or the Interested Party has in anyway implicated or adduced evidence or reasonable grounds showing that the Applicants were at the material time charged with, concerned or acting in the control or management of the affairs or activities of the companies in issue.
4. Mr. Paul Mwangi Warutere sworn affidavits indicated that he was the one incharge of the activities of the companies in issue which fact has been rebutted by any of the Respondents herein. In fact, the Interested Party did confirm that her interactions at all-time were with Mr. Paul Mwangi.
5. It is apparent that the Applicants were summoned by the 1st Respondent and upon responding to the summons, they recorded statements with the 1st Respondent at Central Police Station in Nairobi and have been available for further questioning.
6. It is worthwhile noting that both Applicants were released on free bond in December of 2020 when the investigating officer indicated that they were to be called upon to testify as witnesses for the state upon arrest and charging of Mr. Paul Mwangi Warutere.
7. The Applicants cause of action is premised on the grounds stated in the Statutory Statement dated 21st November 2023. The grounds may be summarized as follows: -
a) The Applicants were to be charged with an alleged offence of conspiracy to defraud, obtaining money by false pretense to the tune of about Kshs. 13,746,205.00 and issuing bad cheques sometime between July 2016 and October 2017.
b) The Applicants were to be charged with the aforesaid offences in their alleged capacities as directors of Newtral Enterprises Ltd and Top Max Media Ltd which company’s transactions with the interested party gave rise to the aforesaid charges as is evident in the particulars of the said charges.
c) The Applicants herein resigned as directors of the aforesaid companies I 2015 before the alleged transactions supposedly took place and the sole remaining director/shareholder of the aforesaid companies one Paul Mwangi Warutere.
d) The remaining director Paul Mwangi Warutere admitted having personally conducted all businesses and transactions of the aforementioned two companies.
e) The 1st and 2nd Respondents are insisting on charging the Applicants with the alleged offences after a period of more than 3 years since the criminal case was filed against the Director who was in conduct of the Companies businesses.
f) There is no nexus between the complaint by the Interested Party herein and the Applicants and that the intended prosecution of the Applicants is an abuse of criminal justice system and the Court process at large.
g) The 1st and 2nd Respondents have failed to discharge their mandate in accordance with the constitution and the law in force within the Republic of Kenya.
8. It is their case that the facts stated therein and the Response filed by the Respondents may give rise to the following issues: -
a) Whether the Honourable Court has jurisdiction to hear and determine the Application herein?
b) Whether charging the Applicants herein would be an abuse of Court process?
c) Whether there is probable cause against the Applicants to sustain the charge?
d) Whether charging the Applicants would be in the interest of justice?
e) Whether the Applicants are justified in their actions and decision to charge the Applicants?
f) Whether the Court has Jurisdiction to hear and determine this matter?
9. The jurisdiction of the Honourable Court in Judicial Review matters has been the subject of many decisions in our jurisdiction. The Courts jurisdiction is settled that the Court has jurisdiction to examine the procedure by which the decision was made and not the merits of the decision.
10. The Applicants has presented a case questioning the decision-making process by the 1st and 2nd Respondents and more specifically the decision to charge them in court for the criminal acts/omission by the Companies in which they are directors.
11. The Applicants are seeking for prayers that this Honourable has jurisdiction to grant upon being presented with evidence of the impropriety of the decisions making process by both the 1st and 2nd Respondents. The Applicants have also demonstrated that the intended charges are an abuse of court process and are not supported by any facts whatsoever.
12. In this case the 1st Respondent purportedly conducted investigations and formed an opinion that there is an offence that had been committed by the company. The 1st Respondent did forward the file to the Director of Public Prosecution and with the approval by the 2nd Respondent one Mr. Paul Mwangi Warutere a Director of both Companies was charged in Milimani Magistrates Court Criminal Case No. 2155 of 2019 being Republic vs Paul Mwangi Warutere, Topmax Media and Newtral Enterprises Limited, which case is pending determination before the Court.
13. Mr. Paul Mwangi Warutere is a Director of both companies and is in-charge of the day to day running of both companies. His directorship was confirmed by the CR 12 of both companies. He has also sworn an affidavit affirming that he is the one in-charge of the affairs of both companies.
14. The Interested Party herein made a complaint against the said Mr. Paul Mwangi Warutere personally which fact is also contained in her Replying Affidavit at paragraph where it is stated as follows: -
“THAT I met Paul Mwangi Warutere in July 2016 through a referral from Stephen Ndiritu Ndungu who by then was my financial adviser assigned to me by the Barclays Bank, he introduced Paul Mwangi as a very prominent businessman, one of the director and shareholder of family companies Filed on: - No Paid- - BY: Ogado & Company Advocates - Reference: E3DQAGCX - KSH. 0.00 5 dealing with constructions among other business namely Topmax Media Limited and Newtral Enterprises Limited which companies were overwhelmed by many contracts and works and were looking for a capable and competent business person and or company to subcontract.”
15. The 1st and 2nd Respondents are established by Article 245 and 157 of the Constitution respectively. Their decisions are amenable to review by this Honourable Court exercising jurisdiction in accordance with the Constitution and the provisions of Order 53 of the Civil Procedure Rules 2010. For avoidance of doubt the Applicants have moved the Honourable Court under the provisions of Order 53 of the Civil Procedure Rules without raising any allegation on a violation or threat to breach of their fundamental rights.
16. The 1st and 2nd Respondents in the execution of their mandate must be guided by the principles enshrined in the Constitution and the relevant Acts of Parliament. In this case the Applicants are not contesting that the 1st Respondent had the responsibility to conduct investigations into the alleged commission and/or omission by Topmax Media Limited and Newtral Enterprises Limited as against the Interested Party.
17. The Applicants are not contesting the 2nd Respondent’s responsibility to make a decision whether to charge them for the alleged commission and/or omission by Topmax Media Limited and Newtral Enterprises Limited; but the issue before the Court is the process of making of the decision to charge them for any offence if at all by the said companies.
18. The relevant provision of law under which a manager or director of a body corporate may be held liable for the offences by a body corporate is found in Section 23 of the Penal Code Cap 63 Laws of Kenya. 22. Section 23 of the Penal Code Cap 63 Laws of Kenya provides for the Directors Criminal Liability. The Section states as follows: -
“23. Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is Filed on: - No Paid- - BY: Ogado & Company Advocates - Reference: E3DQAGCX - KSH. 0.00 6 proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.”
19. In Clay City Developers Limited v Chief Magistrate’s Court At Nairobi & 2 others [2014] eKLR the court stated as follows: -
“25. The law relating to corporations is well known. A company may in many ways be linked to a human body. It has a brain and nerve centre, which control what it does. It also has hands, which hold the tools and act in accordance with the directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work. Others are directors and managers who represent the mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by law as such. However, a corporation is an abstract. It has no mind of its own; its active and directing will most consequently be sought in the persons of somebody who for some purpose may be called an agent and will of the corporate, the very ego and centre of the personality of the corporation in such a case as the present one that the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondent superior, but somebody for whom the company is liable because his action is the very action of the company itself. See Lenard’s Carrying Co. vs. Astatic Petroleum [1915] AC 705 H.L AT P. 713-714.”
20. The above cited section brings out the following criteria forming the basis of making a decision whether to charge a director of directors of a company in criminal matters. It is evident that the following are the essential components of Section 23 of the Penal Code. a. Whether an offence has been committed by a company? and b. Whether the person to be prosecuted is charged with, or concerned or acting in, the control of management of the affairs or activities of the company?
21. The Applicants humbly submit that any investigation should gather evidence indicating that the company committed an offence and a director of directors having control of management of the affairs of the company. Any decision should therefore be based on the evidence and the criminal justice system would therefore step in to determine the culpability of the company and/or the directors. The 1st and 2nd Respondents are enjoined to conduct themselves in such a manner that the culpability of the Ex-parte Applicants arises from the offence committed by the companies, that the Applicants are charged or concerned or acting in the control of management of the affairs of activities of the company and that there is sufficient evidence or reasonable suspicion implicating the Applicants to the offence.
22. Reliance is placed in Republic V. Commissioner of Police and Another (2012) eKLR the Honourable Court stated what the police are required to establish in the investigation of an offence. The Court thus stated: - “The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner, the High Court would be reluctant to intervene.”
23. The 1st Respondent investigation and the findings are stated in the Replying Affidavit sworn by the Investigating Officer dated 20th December 2023. The 1st Respondent at paragraph 10 of the said Affidavit did establish certain facts that inter alia found that the two Companies had been in business and had been awarded tenders by the Ministry of Public Works as contained in the contract reference No. D113NB/NB/NB/1601 JOB NO/014 under Newtral Enterprises Limited.
24. The investigation also established that the Applicants did execute documents that are to executed by directors including bank opening forms and the bank mandate for the companies’ accounts. These are documents which were executed at the time of opening of the bank accounts and not that the said bank accounts were opened for the purposes of committing the alleged offences the subject of the impugned charges.
25. The 1st Respondent stated at paragraph 12 that the Interested Party transacted with Mr. Paul Mwangi Warutere and that produced evidence of money being sent to him through various bank deposits and Mpesa. My Lord it is apparent that Mr. Paul Mwangi Warutere was the one conducting or transacting with the Interested Party. It is apparent that the Applicants did not conduct or transact any business with the Interested Party and that they were not in control of the management of the said companies.
26. The 1st Respondent alludes to the provisions of Section 23 of the Penal Code and has reproduced the provisos of Section 23 at paragraph 16 of his affidavit. This clearly shows that he is aware of the requirements of the law in relation to the offences by a company and the culpability of the directors. However, the 1st Respondent has not based the decision on reasons that are consistent with that provision of the law; the decision is therefore unreasonable and the resultant prosecution of the Applicants will be an abuse of court process.
27. The 1st and 2nd Respondents and the Interested Party do prove that they have not demonstrated that there is a reasonable and probable cause for mounting a criminal prosecution against the Applicants.
28. In R V. Attorney General Ex-Parte Kipngeno Arap Ngeny in High Court Civil Application No. 406 of 2001 it was held that: -
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”
29. In Royal Group Industries Kenya Limited v Kenya Bureau of Standards [2019] eKLR the Honourable Court in affirming the judicial review province cited the holding in the following cases: -
“37. The holding in North Wales Police v Evans [1982] 1 WLR is famous for stating the correct standard of review and deference poise of the Court in Judicial Review Applications. The Court held that: - “The Court will not, however, on Judicial Review application act as a Court of Appeal from the body concerned, nor will the Court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within the body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the Court is to see that lawful authority is not abused by unfair treatment. If the Court were to attempt itself the task entrusted to that authority by law, the Court would under the guise of preventing abuse of power be guilty itself of usurping power.” The holding in that case is the main theme in the treatise, The Supreme Court Practice, 1997 Vol. 53/1-14/6 which is in the following words: - “The remedy of Judicial Review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.” In the case of Municipal Council of Mombasa –v- Republic & Umoja Consultants Ltd Civil Appeal No.185 of 2001 it was held: - “Judicial review proceedings is concerned with the decision making process, not with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…...The court should not act as Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was not sufficient evidence to support the decision.” 38. The Honourable Court guided by the above quoted decisions then rendered itself as follows: - “26. Hence, as our Courts have said before, “where a public authority has acted in exercise of its discretion, the Court is only entitled to interfere with the exercise of discretion in the following situations: - (i) where there is an abuse of discretion; (ii) where the decision-maker exercises discretion for an improper purpose; (iii) where the decision maker is in breach of the duty to act fairly; (iv) where the decision maker has failed to exercise statutory discretion reasonably; (v) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (vi) where the decision-maker fetters the discretion given; (vii) where the decision-maker fails to exercise discretion; (viii) where the decision-maker is irrational and unreasonable.” See Republic vs. Minister for Home Affairs and Others Ex Parte Sitamze.” 39. The Applicants humbly submit that in the absence of any evidence that the investigations and/or the decision to charge is based on probable cause or reasonable grounds that an offence was committed by the Topmax Media Limited and Newtral Enterprises; and that the Applicants were in charge of the management and/or control of the affairs of the said companies; the said charge or intended charge is an abuse of court process.”
3RD RESPONDENTS’ GROUNDS OF OPPOSITION
The Hearing of the Notice of motion application is opposed on the following grounds as set hereunder; -
1) THAT the Application herein is unmerited and therefore an abuse of the due process of the Court.
2) THAT the Application herein is intended to curtail the statutory obligations and duties of the 3rd Respondents herein.
3) THAT the Applicants are inviting this court to trespass into the arena specifically reserved for the criminal trial process and ought not to usurp the constitutional or statutory mandate of the 3rd Respondent. Filed on: - No Paid- - BY: State Law - Reference: E3BQU9AW - KSH. 0.00
4) THAT the charges in the charge sheet dated the 21st of November 2023 were brought without any ulterior motive nor is there any impropriety, illegality and irrationality on the part of the 3rd Respondent.
5) THAT this Honorable Court would be usurping the statutory mandate of the 3rd Respondents if it were to take up that role as proposed by the Ex-parte Applicants.
6) THAT a prerogative order is of serious nature and should not be granted lightly. It should be granted where there is abuse of the law.
7) THAT the Applicants have failed to show how the acts complained are tainted with illegality, irrationality and procedural impropriety.
8) THAT the prosecution of the Applicant was instituted with reasonable and probable cause and was not actuated by any malice from the 2nd Respondent.
9) THAT the application is capricious, a legal misadventure and an abuse of the court process intending to delay the prosecution and any consequent criminal process by engaging in frivolous sideshows and applications.
10) THAT the application is devoid of any legal or factual merit.
11) THAT the application is based on a reactionary afterthought and is not founded on any genuine concerns or legal principles.
12) THAT the presumption of innocence and protection of the Applicant fundamental rights and freedoms are guaranteed and jealous guarded by the constitution and do not vanish by their prosecution before a competent court of law: The applicants are therefore not prejudiced in any way.
13) THAT the Applicants in essence, seeks that this honorable Court to directs a Public officer to exercise or not to exercise his/her statutory discretion in a particular manner hence usurp the said officer’s authority.
14) THAT the judicial review orders should not be granted and as such the application herein should be dismissed with Costs to the Respondents.
IN OPPOSING THE APPLICATION,THE INTERESTED PARTY FILED A REPLYING AFFIDAVIT
30. According to her, the substantive Notice of Motion is incurably defective and bad in law, is frivolous, vexatious and is otherwise an abuse of court process and ought to be dismissed with costs.
31. She operate a business in Nairobi namely Janetek Enterprises Registered in Kenya in 2002 dealing with general supply of goods and printing services and construction under women AGPO category.
32. She argues that all her investment and income by Paul Mwangi Warutere, Stephen Ndiritu, Topmax Media Limited and Newtral Enterprises Limited.
33. She met Paul Mwangi Warutere in July 2016 through a referral from Stephen Ndiritu Ndungu who by then was her financial adviser who introduced Paul Mwangi as a very prominent businessman , one of the director and shareholder of family companies dealing with constructions among other business namely Topmax Media Limited and Newtral Enterprises Limited which companies were overwhelmed by many contracts and works and were looking for a capable and competent business person and or company to subcontract.
34. At the meeting she was shown the following documents:
TOPMAX MEDIA LIMITED
a) Certificate of Incorporation for documents for Topmax Media Limited;
b) CR 12 for Topmax Media Limited showing the list of director as and resolutions Paul Mwangi Warutere and Mercy Wangui Gichema ( whom was introduced me as his wife) and;
c) A Topmax Media Limited resolution of a meeting held late June 2016 signed by both Paul Mwangi Warutere and Mercy Wangui Gichema resolving the companies to subcontract.
NEWTRAL ENTERPRISES LIMITED
a) Certificate of Incorporation for documents for Newtral Enterprises Limited;
b) CR 12 for Newtral Enterprises Limited showing the list of director as and resolutions Paul Mwangi Warutere and b) James Njege Warutere (whom was introduced her as his father cum Managing director) and;
c) A Newtral Enterprises Limited resolution of a meeting held in June 2016 signed by both Paul Mwangi Warutere and James Njege Warutere resolving the companies to subcontract.
d) Several awarded tenders by government ministries among them Ministry of transport, infrastructure, housing and urban developments (State Department of Public Works); Ministry of Sports & public works tenders award letter; Ministry of Labour and Human Resources, Office of the president Among others.
35. She was subcontracted by the Topmax Media Limited and Newtral Enterprises Limited as follows:
6.1. To fabricate a containers at Ligi Ndogo which tender was awarded by Kenya Football Federation, which she invoiced the said limited companies;
a) The later he was approached with Purchase Order (LPO) issued by Kenya Football Federation to Newtral Enterprises Limited and was requested to partner with the said company to supply of the containers which she agreed to and contributed Immersive towards the same.
b) She was also subcontracted on refurbishment of Moi International Stadium, Kasarani. Stadium- civil works for the Main Stadium which was awarded to Newtral Enterprises Limited which she contributed immersive;
c) She was also contracted by Topmax Media Limited in fabrication of containers, Construction of Carwash at Masai Market & Cultural Centre, Ngong Road;
d) On or about 11/02/2017 she was contracted by the Newtral Entrprises ordered and the plaintiff delivered to the 5th defendant Ten (10) pieces Dustcoats, ten (10) pieces Helments, forty (40) pieces reflectors/ branded – Sackets and one (1) roll warning tape;
e) Branding and delivery of assorted branded campaign materials which included, aprons, posters, umbrella, soko umbrella and success cards being the Topmax Media Limited and Newtral Enterprises Limited supports towards the Hon. Martha Wangari campaign which items were delivered by the plaintiff to Hon. Martha Wangari home at Nairobi along Thika Road as directed by the 1st the Ex-parte Applicant;
f) Among others;
36. It is her case that the ex-parte applicants herein and others indeed defrauded her and exhausted all her monies including loans and left her with nothing, as confirmed confirmed by the independent investigation of the 1st Respondent.
37. On 02/01/2020 the ex-parte applicants herein who personally committed to paying her the entire defrauded amount. The ex-parte applicant herein acting on the said commitments and personal guarantee brought in one Ken Ochora to pay initial deposit of Kshs. 5,000,000/= and in place they would cause the transfer of land to him being title no. Kajiado/Ntashart/2252 registered favour of their trustee one of their trustees Hezborn Ngugi Kamande which title turned to be forged title as it has no records at land registry thus the transaction failed. In fact, the 2nd ex-parte applicant was a part to the said agreement.
38. Further, the supporting documents are questionable and are manufactured documents merely meant to deceive this court as the CR 12 issued at as 16/02/2018 and 09/09/2019 reveals that the ex- parte applicants were the directors of the subject companies as charged.
39. She submits that she was defrauded by the Newtral Enterprises Limited and Topmax Media Limited between years June 2016 to year 2018 which by the directorship are as follows: -
i. TOPMAX MEDIA LIMITED
a) PAUL MWANGI WARUTERE: 50 shares
b) MERCY WANGUI GICHEMA :50 shares
ii. NEWTRAL ENTERPRISES LIMITED
a) PAUL MWANGI WARUTERE: 63 shares
b) JAMES NJEGE WARUTERE: 37 shares.
40. If the ex- parte applicants resigned as alleged in year 2015 and 2012 respectively, the record by the company registrar should have reflected the same.
41. There is nothing placed before this court by the ex –parte applicants as having ceased to be a director cum shareholders of the subject companies as alleged.
42. Further, the record of the registrar of companies is elaborate that the ex-parte Applicants were the beneficiaries of the proceed of the subject company and more so the mind behind their conduct and every transaction they took including the conspiracy to defraud the interested party.
43. The charges before the court are not against the ex-parte applicants personally but against Topmax Media Limited and Newtral Enterprises limited, which limited liability company which the ex-parte applicants are directors and as the company does not act on its mind but the minds of the director they have been summoned to plead and defended the charges on behalf of the said companies.
44. In civil suit being HCC NO. 68 OF 2020, she sued the ex-parte applicants for their personal commitment and guarantee to pay the amount defrauded and not as directors of the subject charged companies.
45. The fact that the transactions subject of these proceedings also bears elements of civil or contract law is not a bar to the criminal proceedings under section 193A of the Criminal Procedure Code.
46. Acting on the complaint she lodged, carried independent investigation and there is therefore no malice or bad faith and or any abuse of the criminal procedure on their part as the respondents are performing their functions as provided for under the Constitution, the National Police Service Act, Criminal Procedure Code and Penal code among other relevant provisions of the Law.
47. Further, vide the consent decree the said, Paul Mwangi Warutere, Topmax Media Limited and Newtral Enterprises Limited were all held liable to pay the defrauded amount and furthermore to meet the costs of the suit as per clause 1 & 3 of the consent decree.
48. In answer to contents of paragraph 15 of the verifying affidavit she wishes states that the ex-parte applicants have failed to demonstrate how the respondents have violated the constitution and statutory as alleged.
49. Section 23 of the Penal Code which provides that ‘Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.’
50. She submits that this court should dismiss the application herein and accord the 1st and 2nd Respondents’ tender evidence to prove the charges before the 3rd respondent and the ex-parte applicants will not suffer any prejudice as they will be accorded chances to challenges the evidence tendered before the court and cross-examine the witness and if the court finds that they have a case to answer be accorded chance to tender their evidence to contrary.
51. She believes that the ex-parte applicant are jumping the gun with view of preventing the due process of the law and to deny justice to her by preventing my complaint be heard on merit. No single evidence placed before this Honourable court that the ex- parte applicants will not be accorded fair hearing as provided by the constitution , or their right will be violated and or the due criminal procedure will not be followed and or adhered to.
52. Hence, the ex- parte applicant ought to take plea to charges, prove their innocence or otherwise and submit to the consequences of the Law should they be found culpable. The ex- eparte applicants will not suffer any prejudice as they will be afforded an opportunity to defend themselves, cross-examine witnesses and adduce evidence in support of their case and no doubt the proper course of justice will take place to take in the circumstances of this case.
53. The 3rd respondent has the Jurisdiction and competence to hear and determine the charges before it.
Analysis and determination:
54. The court has to determine whether the applicant is entitled to the prayers sought.
55. In order to determine whether or not the applicant has made out a case he must demonstrate and prove that the prosecution and those charged with the responsibility of making the decisions to charge acted in an unreasonable manner.
56. In order to apply my mind to the issue, this court is guided by Section 35 of the National Police Service Act which sets the duties out the Directorate of Criminal Investigations as below;
“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.”
57. In the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR where it was held:
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene".
58. This court is cognizant of the fact that there is need to uphold victims’ rights and this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act.
59. The interested party has come out in opposing the application strongly. She has pointed out that she interacted with the applicants in several contractual relationships in their various capacities and she has an interest in the criminal case.
60. Having cautioned myself as a judicial review court that I should not delved into the merits of the case I have observed that in her detailed affidavit that the interested party indicates that she is a victim of the misdeeds of the applicants and she has a right to be heard.
61. Section 9(2) (a) of the Victims Protection Act Provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission.
62. Victim participation should meaningfully contribute to the justice process. Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic [2020] eKLR.
63. This court does not see any illegality or procedural impropriety in the manner in which the respondents are discharging their respective mandates as to warrant the interference of this court.
64. I am satisfied that the victims have an interest in the outcome of the criminal case.
65. I am in agreement with the interested party that the ex- parte applicant ought to take plea to charges, prove their innocence or otherwise and submit to the consequences of the Law should they be found culpable and that The ex- eparte applicants will not suffer any prejudice as they will be afforded an opportunity to defend themselves, cross-examine witnesses and adduce evidence in support of their case and no doubt the proper course of justice will take place to take in the circumstances of this case. Allowing the Application will deny the interested party to their right to fair hearing.
66. Prosecution of crime is an important component of the criminal justice system and it should not be stopped whimsically. The Applicants will have their day before the trial court.
67. In the case of Pastoli vs KabaleDistrict Local Government Council & Others, (2008) 2 EA 300, that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis BahikirweMuntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
68. Judicial review is now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action, and Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision.
69. I do not find any breach of the right to fair administrative action against the applicants. To allow the application will amount to deny of the right to fair hearing for the interested party, and I so hold.
70. Article 165(6) of the Constitution provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights.
71. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office.
72. The merits of the case, and particularly whether the criminal proceedings have a likelihood of success, or that the Applicant has a good defence is not a ground for halting criminal proceedings by way of judicial review, in light of the purpose and limits of judicial review explained in the foregoing.
73. Where an Applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process, this Court will not hesitate in putting a halt to such proceedings, as that fall squarely within its mandate as a judicial review Court.
74. The cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions as follows: (a) Where there is an abuse of discretion; (b) Where the decision-maker exercises discretion for an improper purpose; (c) Whether decision-maker is in breach of the duty to act fairly; (d) Whether decision-maker has failed to exercise statutory discretion reasonably; (e) Where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (f) Where the decision-maker fetters the discretion given; (g) Where the decision-maker fails to exercise discretion; and (h) Where the decision-maker is irrational and unreasonable.
75. The fact that there exists a civil suit is not a bar to any criminal proceedings or investigations.
76. In HCC NO. 68 OF 2020, the interested party sued the ex-parte applicants for their personal commitment and guarantee to pay the amount defrauded and not as directors of the subject charged companies.
77. It is this court’s finding and I so hold that the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court as recognised by Section 193 A of the Criminal Procedure Code; unless the commencement of the criminal proceedings is meant to force the Applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim.
78. Section 193A of the Criminal Procedure Code on this issue provides that, “notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings."
79. In Republic vs Commissioner of Police and Another ex parte Michael Monari& Another, [2012] eKLR where it was held that:
“the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.
80. The Applicant has failed and I so hold to prove that the Director of Public Prosecutions has abused discretion or exercised his discretion for an improper purpose; or acted in a manner that amounted to a breach of the duty to act fairly; the Respondents have failed to exercise statutory discretion reasonably; or that the Respondents acted in a manner to frustrate the purpose of the Act donating the power, have fettered the discretion given or failed to exercise discretion; or that the Respondent has acted irrational and unreasonable.
81. Further ashore, it is this court’s finding that the 3rd Respondent has the Jurisdiction and competence to hear and determine the charges before it.
82. The Applicant has also sought orders of prohibition.
83. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
84. It is my finding and I hold that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the applicant did not prove the 1st prayer, and I so hold. Prayers b,c and d are declined.
Disposition:
85. The Application lacks merit.
ORDER:
The Notice of Motion dated 3.12.23 is dismissed with costs.
Dated, signed and delivered at Nairobi this 8th Day of April 2024
……………………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW CASE NO. E190 OF 2023
REPUBLIC…………………………….…………………………. APPLICANT
VERSUS
INSPECTOR GENERAL OF POLICE………..….... 1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS ……. 2ND RESPONDENT
CHIEF MAGISTRATES COURT AT
MILIMANI……………..…..............................….. 3RD RESPONDENT
AND
MERCY WANGUI GICHEMA…. …………….............. 1ST EX-PARTE
JAMES WARUTERE NJEGE…. …………………………2ND EX-PARTE
AND
JANE WANJIRU ABIRURI……..…........….. INTERESTED PARTY
JUDGMENT
1. The Application that is before this court for determination is the Notice of Motion dated 3.12.23 wherein the Applicant, seeks the following orders: -
1) THAT this Honourable Court be pleased to grant an Order of CERTIORARI to bring into this Honourable Court and quash the charges in the charge sheet dated the 21st November 2023 and any further/other criminal proceedings/charges as arising therein.
2) THAT this Honourable Court be pleased to grant an Order of PROHIBITION directed at the 1st and 2nd Respondents barring them from arresting, incarcerating, instituting and/or proceeding with the intended criminal charges against the as contained in and/or based on the particulars of the charges in the charge sheet dated the 21st of November 2023. Filed on: -
3) THAT this Honourable Court be pleased to grant an Order of PROHIBITION directed at the 3rd Respondent barring it from conducting and/or proceedings against the Applicants herein as contained in and/or based on the particulars of the charges in the charge sheet dated 21st November 2023 including the taking of plea as intended on the 27th of November 2023 or otherwise.
4) THAT this Honourable Court be pleased to grant such further orders and reliefs that it may deem to be just and expedient.
5) Cost of this application be borne by the Respondents.
2. The Application is opposed by the Replying Affidavits filed by the Respondents herein. The common ground and reason advanced by the Respondents and the Interested Party is that the Applicants were directors of the companies at the material time and heard knowledge of the transaction in issue. No further evidence was adduced to demonstrate or support the allegation that the Applicants had knowledge of the facts of the transactions leading to the alleged offence.
3. However, it is apparent that none of the Respondents or the Interested Party has in anyway implicated or adduced evidence or reasonable grounds showing that the Applicants were at the material time charged with, concerned or acting in the control or management of the affairs or activities of the companies in issue.
4. Mr. Paul Mwangi Warutere sworn affidavits indicated that he was the one incharge of the activities of the companies in issue which fact has been rebutted by any of the Respondents herein. In fact, the Interested Party did confirm that her interactions at all-time were with Mr. Paul Mwangi.
5. It is apparent that the Applicants were summoned by the 1st Respondent and upon responding to the summons, they recorded statements with the 1st Respondent at Central Police Station in Nairobi and have been available for further questioning.
6. It is worthwhile noting that both Applicants were released on free bond in December of 2020 when the investigating officer indicated that they were to be called upon to testify as witnesses for the state upon arrest and charging of Mr. Paul Mwangi Warutere.
7. The Applicants cause of action is premised on the grounds stated in the Statutory Statement dated 21st November 2023. The grounds may be summarized as follows: -
a) The Applicants were to be charged with an alleged offence of conspiracy to defraud, obtaining money by false pretense to the tune of about Kshs. 13,746,205.00 and issuing bad cheques sometime between July 2016 and October 2017.
b) The Applicants were to be charged with the aforesaid offences in their alleged capacities as directors of Newtral Enterprises Ltd and Top Max Media Ltd which company’s transactions with the interested party gave rise to the aforesaid charges as is evident in the particulars of the said charges.
c) The Applicants herein resigned as directors of the aforesaid companies I 2015 before the alleged transactions supposedly took place and the sole remaining director/shareholder of the aforesaid companies one Paul Mwangi Warutere.
d) The remaining director Paul Mwangi Warutere admitted having personally conducted all businesses and transactions of the aforementioned two companies.
e) The 1st and 2nd Respondents are insisting on charging the Applicants with the alleged offences after a period of more than 3 years since the criminal case was filed against the Director who was in conduct of the Companies businesses.
f) There is no nexus between the complaint by the Interested Party herein and the Applicants and that the intended prosecution of the Applicants is an abuse of criminal justice system and the Court process at large.
g) The 1st and 2nd Respondents have failed to discharge their mandate in accordance with the constitution and the law in force within the Republic of Kenya.
8. It is their case that the facts stated therein and the Response filed by the Respondents may give rise to the following issues: -
a) Whether the Honourable Court has jurisdiction to hear and determine the Application herein?
b) Whether charging the Applicants herein would be an abuse of Court process?
c) Whether there is probable cause against the Applicants to sustain the charge?
d) Whether charging the Applicants would be in the interest of justice?
e) Whether the Applicants are justified in their actions and decision to charge the Applicants?
f) Whether the Court has Jurisdiction to hear and determine this matter?
9. The jurisdiction of the Honourable Court in Judicial Review matters has been the subject of many decisions in our jurisdiction. The Courts jurisdiction is settled that the Court has jurisdiction to examine the procedure by which the decision was made and not the merits of the decision.
10. The Applicants has presented a case questioning the decision-making process by the 1st and 2nd Respondents and more specifically the decision to charge them in court for the criminal acts/omission by the Companies in which they are directors.
11. The Applicants are seeking for prayers that this Honourable has jurisdiction to grant upon being presented with evidence of the impropriety of the decisions making process by both the 1st and 2nd Respondents. The Applicants have also demonstrated that the intended charges are an abuse of court process and are not supported by any facts whatsoever.
12. In this case the 1st Respondent purportedly conducted investigations and formed an opinion that there is an offence that had been committed by the company. The 1st Respondent did forward the file to the Director of Public Prosecution and with the approval by the 2nd Respondent one Mr. Paul Mwangi Warutere a Director of both Companies was charged in Milimani Magistrates Court Criminal Case No. 2155 of 2019 being Republic vs Paul Mwangi Warutere, Topmax Media and Newtral Enterprises Limited, which case is pending determination before the Court.
13. Mr. Paul Mwangi Warutere is a Director of both companies and is in-charge of the day to day running of both companies. His directorship was confirmed by the CR 12 of both companies. He has also sworn an affidavit affirming that he is the one in-charge of the affairs of both companies.
14. The Interested Party herein made a complaint against the said Mr. Paul Mwangi Warutere personally which fact is also contained in her Replying Affidavit at paragraph where it is stated as follows: -
“THAT I met Paul Mwangi Warutere in July 2016 through a referral from Stephen Ndiritu Ndungu who by then was my financial adviser assigned to me by the Barclays Bank, he introduced Paul Mwangi as a very prominent businessman, one of the director and shareholder of family companies Filed on: - No Paid- - BY: Ogado & Company Advocates - Reference: E3DQAGCX - KSH. 0.00 5 dealing with constructions among other business namely Topmax Media Limited and Newtral Enterprises Limited which companies were overwhelmed by many contracts and works and were looking for a capable and competent business person and or company to subcontract.”
15. The 1st and 2nd Respondents are established by Article 245 and 157 of the Constitution respectively. Their decisions are amenable to review by this Honourable Court exercising jurisdiction in accordance with the Constitution and the provisions of Order 53 of the Civil Procedure Rules 2010. For avoidance of doubt the Applicants have moved the Honourable Court under the provisions of Order 53 of the Civil Procedure Rules without raising any allegation on a violation or threat to breach of their fundamental rights.
16. The 1st and 2nd Respondents in the execution of their mandate must be guided by the principles enshrined in the Constitution and the relevant Acts of Parliament. In this case the Applicants are not contesting that the 1st Respondent had the responsibility to conduct investigations into the alleged commission and/or omission by Topmax Media Limited and Newtral Enterprises Limited as against the Interested Party.
17. The Applicants are not contesting the 2nd Respondent’s responsibility to make a decision whether to charge them for the alleged commission and/or omission by Topmax Media Limited and Newtral Enterprises Limited; but the issue before the Court is the process of making of the decision to charge them for any offence if at all by the said companies.
18. The relevant provision of law under which a manager or director of a body corporate may be held liable for the offences by a body corporate is found in Section 23 of the Penal Code Cap 63 Laws of Kenya. 22. Section 23 of the Penal Code Cap 63 Laws of Kenya provides for the Directors Criminal Liability. The Section states as follows: -
“23. Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is Filed on: - No Paid- - BY: Ogado & Company Advocates - Reference: E3DQAGCX - KSH. 0.00 6 proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.”
19. In Clay City Developers Limited v Chief Magistrate’s Court At Nairobi & 2 others [2014] eKLR the court stated as follows: -
“25. The law relating to corporations is well known. A company may in many ways be linked to a human body. It has a brain and nerve centre, which control what it does. It also has hands, which hold the tools and act in accordance with the directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work. Others are directors and managers who represent the mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by law as such. However, a corporation is an abstract. It has no mind of its own; its active and directing will most consequently be sought in the persons of somebody who for some purpose may be called an agent and will of the corporate, the very ego and centre of the personality of the corporation in such a case as the present one that the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondent superior, but somebody for whom the company is liable because his action is the very action of the company itself. See Lenard’s Carrying Co. vs. Astatic Petroleum [1915] AC 705 H.L AT P. 713-714.”
20. The above cited section brings out the following criteria forming the basis of making a decision whether to charge a director of directors of a company in criminal matters. It is evident that the following are the essential components of Section 23 of the Penal Code. a. Whether an offence has been committed by a company? and b. Whether the person to be prosecuted is charged with, or concerned or acting in, the control of management of the affairs or activities of the company?
21. The Applicants humbly submit that any investigation should gather evidence indicating that the company committed an offence and a director of directors having control of management of the affairs of the company. Any decision should therefore be based on the evidence and the criminal justice system would therefore step in to determine the culpability of the company and/or the directors. The 1st and 2nd Respondents are enjoined to conduct themselves in such a manner that the culpability of the Ex-parte Applicants arises from the offence committed by the companies, that the Applicants are charged or concerned or acting in the control of management of the affairs of activities of the company and that there is sufficient evidence or reasonable suspicion implicating the Applicants to the offence.
22. Reliance is placed in Republic V. Commissioner of Police and Another (2012) eKLR the Honourable Court stated what the police are required to establish in the investigation of an offence. The Court thus stated: - “The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner, the High Court would be reluctant to intervene.”
23. The 1st Respondent investigation and the findings are stated in the Replying Affidavit sworn by the Investigating Officer dated 20th December 2023. The 1st Respondent at paragraph 10 of the said Affidavit did establish certain facts that inter alia found that the two Companies had been in business and had been awarded tenders by the Ministry of Public Works as contained in the contract reference No. D113NB/NB/NB/1601 JOB NO/014 under Newtral Enterprises Limited.
24. The investigation also established that the Applicants did execute documents that are to executed by directors including bank opening forms and the bank mandate for the companies’ accounts. These are documents which were executed at the time of opening of the bank accounts and not that the said bank accounts were opened for the purposes of committing the alleged offences the subject of the impugned charges.
25. The 1st Respondent stated at paragraph 12 that the Interested Party transacted with Mr. Paul Mwangi Warutere and that produced evidence of money being sent to him through various bank deposits and Mpesa. My Lord it is apparent that Mr. Paul Mwangi Warutere was the one conducting or transacting with the Interested Party. It is apparent that the Applicants did not conduct or transact any business with the Interested Party and that they were not in control of the management of the said companies.
26. The 1st Respondent alludes to the provisions of Section 23 of the Penal Code and has reproduced the provisos of Section 23 at paragraph 16 of his affidavit. This clearly shows that he is aware of the requirements of the law in relation to the offences by a company and the culpability of the directors. However, the 1st Respondent has not based the decision on reasons that are consistent with that provision of the law; the decision is therefore unreasonable and the resultant prosecution of the Applicants will be an abuse of court process.
27. The 1st and 2nd Respondents and the Interested Party do prove that they have not demonstrated that there is a reasonable and probable cause for mounting a criminal prosecution against the Applicants.
28. In R V. Attorney General Ex-Parte Kipngeno Arap Ngeny in High Court Civil Application No. 406 of 2001 it was held that: -
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”
29. In Royal Group Industries Kenya Limited v Kenya Bureau of Standards [2019] eKLR the Honourable Court in affirming the judicial review province cited the holding in the following cases: -
“37. The holding in North Wales Police v Evans [1982] 1 WLR is famous for stating the correct standard of review and deference poise of the Court in Judicial Review Applications. The Court held that: - “The Court will not, however, on Judicial Review application act as a Court of Appeal from the body concerned, nor will the Court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within the body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the Court is to see that lawful authority is not abused by unfair treatment. If the Court were to attempt itself the task entrusted to that authority by law, the Court would under the guise of preventing abuse of power be guilty itself of usurping power.” The holding in that case is the main theme in the treatise, The Supreme Court Practice, 1997 Vol. 53/1-14/6 which is in the following words: - “The remedy of Judicial Review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.” In the case of Municipal Council of Mombasa –v- Republic & Umoja Consultants Ltd Civil Appeal No.185 of 2001 it was held: - “Judicial review proceedings is concerned with the decision making process, not with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…...The court should not act as Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was not sufficient evidence to support the decision.” 38. The Honourable Court guided by the above quoted decisions then rendered itself as follows: - “26. Hence, as our Courts have said before, “where a public authority has acted in exercise of its discretion, the Court is only entitled to interfere with the exercise of discretion in the following situations: - (i) where there is an abuse of discretion; (ii) where the decision-maker exercises discretion for an improper purpose; (iii) where the decision maker is in breach of the duty to act fairly; (iv) where the decision maker has failed to exercise statutory discretion reasonably; (v) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (vi) where the decision-maker fetters the discretion given; (vii) where the decision-maker fails to exercise discretion; (viii) where the decision-maker is irrational and unreasonable.” See Republic vs. Minister for Home Affairs and Others Ex Parte Sitamze.” 39. The Applicants humbly submit that in the absence of any evidence that the investigations and/or the decision to charge is based on probable cause or reasonable grounds that an offence was committed by the Topmax Media Limited and Newtral Enterprises; and that the Applicants were in charge of the management and/or control of the affairs of the said companies; the said charge or intended charge is an abuse of court process.”
3RD RESPONDENTS’ GROUNDS OF OPPOSITION
The Hearing of the Notice of motion application is opposed on the following grounds as set hereunder; -
1) THAT the Application herein is unmerited and therefore an abuse of the due process of the Court.
2) THAT the Application herein is intended to curtail the statutory obligations and duties of the 3rd Respondents herein.
3) THAT the Applicants are inviting this court to trespass into the arena specifically reserved for the criminal trial process and ought not to usurp the constitutional or statutory mandate of the 3rd Respondent. Filed on: - No Paid- - BY: State Law - Reference: E3BQU9AW - KSH. 0.00
4) THAT the charges in the charge sheet dated the 21st of November 2023 were brought without any ulterior motive nor is there any impropriety, illegality and irrationality on the part of the 3rd Respondent.
5) THAT this Honorable Court would be usurping the statutory mandate of the 3rd Respondents if it were to take up that role as proposed by the Ex-parte Applicants.
6) THAT a prerogative order is of serious nature and should not be granted lightly. It should be granted where there is abuse of the law.
7) THAT the Applicants have failed to show how the acts complained are tainted with illegality, irrationality and procedural impropriety.
8) THAT the prosecution of the Applicant was instituted with reasonable and probable cause and was not actuated by any malice from the 2nd Respondent.
9) THAT the application is capricious, a legal misadventure and an abuse of the court process intending to delay the prosecution and any consequent criminal process by engaging in frivolous sideshows and applications.
10) THAT the application is devoid of any legal or factual merit.
11) THAT the application is based on a reactionary afterthought and is not founded on any genuine concerns or legal principles.
12) THAT the presumption of innocence and protection of the Applicant fundamental rights and freedoms are guaranteed and jealous guarded by the constitution and do not vanish by their prosecution before a competent court of law: The applicants are therefore not prejudiced in any way.
13) THAT the Applicants in essence, seeks that this honorable Court to directs a Public officer to exercise or not to exercise his/her statutory discretion in a particular manner hence usurp the said officer’s authority.
14) THAT the judicial review orders should not be granted and as such the application herein should be dismissed with Costs to the Respondents.
IN OPPOSING THE APPLICATION,THE INTERESTED PARTY FILED A REPLYING AFFIDAVIT
30. According to her, the substantive Notice of Motion is incurably defective and bad in law, is frivolous, vexatious and is otherwise an abuse of court process and ought to be dismissed with costs.
31. She operate a business in Nairobi namely Janetek Enterprises Registered in Kenya in 2002 dealing with general supply of goods and printing services and construction under women AGPO category.
32. She argues that all her investment and income by Paul Mwangi Warutere, Stephen Ndiritu, Topmax Media Limited and Newtral Enterprises Limited.
33. She met Paul Mwangi Warutere in July 2016 through a referral from Stephen Ndiritu Ndungu who by then was her financial adviser who introduced Paul Mwangi as a very prominent businessman , one of the director and shareholder of family companies dealing with constructions among other business namely Topmax Media Limited and Newtral Enterprises Limited which companies were overwhelmed by many contracts and works and were looking for a capable and competent business person and or company to subcontract.
34. At the meeting she was shown the following documents:
TOPMAX MEDIA LIMITED
a) Certificate of Incorporation for documents for Topmax Media Limited;
b) CR 12 for Topmax Media Limited showing the list of director as and resolutions Paul Mwangi Warutere and Mercy Wangui Gichema ( whom was introduced me as his wife) and;
c) A Topmax Media Limited resolution of a meeting held late June 2016 signed by both Paul Mwangi Warutere and Mercy Wangui Gichema resolving the companies to subcontract.
NEWTRAL ENTERPRISES LIMITED
a) Certificate of Incorporation for documents for Newtral Enterprises Limited;
b) CR 12 for Newtral Enterprises Limited showing the list of director as and resolutions Paul Mwangi Warutere and b) James Njege Warutere (whom was introduced her as his father cum Managing director) and;
c) A Newtral Enterprises Limited resolution of a meeting held in June 2016 signed by both Paul Mwangi Warutere and James Njege Warutere resolving the companies to subcontract.
d) Several awarded tenders by government ministries among them Ministry of transport, infrastructure, housing and urban developments (State Department of Public Works); Ministry of Sports & public works tenders award letter; Ministry of Labour and Human Resources, Office of the president Among others.
35. She was subcontracted by the Topmax Media Limited and Newtral Enterprises Limited as follows:
6.1. To fabricate a containers at Ligi Ndogo which tender was awarded by Kenya Football Federation, which she invoiced the said limited companies;
a) The later he was approached with Purchase Order (LPO) issued by Kenya Football Federation to Newtral Enterprises Limited and was requested to partner with the said company to supply of the containers which she agreed to and contributed Immersive towards the same.
b) She was also subcontracted on refurbishment of Moi International Stadium, Kasarani. Stadium- civil works for the Main Stadium which was awarded to Newtral Enterprises Limited which she contributed immersive;
c) She was also contracted by Topmax Media Limited in fabrication of containers, Construction of Carwash at Masai Market & Cultural Centre, Ngong Road;
d) On or about 11/02/2017 she was contracted by the Newtral Entrprises ordered and the plaintiff delivered to the 5th defendant Ten (10) pieces Dustcoats, ten (10) pieces Helments, forty (40) pieces reflectors/ branded – Sackets and one (1) roll warning tape;
e) Branding and delivery of assorted branded campaign materials which included, aprons, posters, umbrella, soko umbrella and success cards being the Topmax Media Limited and Newtral Enterprises Limited supports towards the Hon. Martha Wangari campaign which items were delivered by the plaintiff to Hon. Martha Wangari home at Nairobi along Thika Road as directed by the 1st the Ex-parte Applicant;
f) Among others;
36. It is her case that the ex-parte applicants herein and others indeed defrauded her and exhausted all her monies including loans and left her with nothing, as confirmed confirmed by the independent investigation of the 1st Respondent.
37. On 02/01/2020 the ex-parte applicants herein who personally committed to paying her the entire defrauded amount. The ex-parte applicant herein acting on the said commitments and personal guarantee brought in one Ken Ochora to pay initial deposit of Kshs. 5,000,000/= and in place they would cause the transfer of land to him being title no. Kajiado/Ntashart/2252 registered favour of their trustee one of their trustees Hezborn Ngugi Kamande which title turned to be forged title as it has no records at land registry thus the transaction failed. In fact, the 2nd ex-parte applicant was a part to the said agreement.
38. Further, the supporting documents are questionable and are manufactured documents merely meant to deceive this court as the CR 12 issued at as 16/02/2018 and 09/09/2019 reveals that the ex- parte applicants were the directors of the subject companies as charged.
39. She submits that she was defrauded by the Newtral Enterprises Limited and Topmax Media Limited between years June 2016 to year 2018 which by the directorship are as follows: -
i. TOPMAX MEDIA LIMITED
a) PAUL MWANGI WARUTERE: 50 shares
b) MERCY WANGUI GICHEMA :50 shares
ii. NEWTRAL ENTERPRISES LIMITED
a) PAUL MWANGI WARUTERE: 63 shares
b) JAMES NJEGE WARUTERE: 37 shares.
40. If the ex- parte applicants resigned as alleged in year 2015 and 2012 respectively, the record by the company registrar should have reflected the same.
41. There is nothing placed before this court by the ex –parte applicants as having ceased to be a director cum shareholders of the subject companies as alleged.
42. Further, the record of the registrar of companies is elaborate that the ex-parte Applicants were the beneficiaries of the proceed of the subject company and more so the mind behind their conduct and every transaction they took including the conspiracy to defraud the interested party.
43. The charges before the court are not against the ex-parte applicants personally but against Topmax Media Limited and Newtral Enterprises limited, which limited liability company which the ex-parte applicants are directors and as the company does not act on its mind but the minds of the director they have been summoned to plead and defended the charges on behalf of the said companies.
44. In civil suit being HCC NO. 68 OF 2020, she sued the ex-parte applicants for their personal commitment and guarantee to pay the amount defrauded and not as directors of the subject charged companies.
45. The fact that the transactions subject of these proceedings also bears elements of civil or contract law is not a bar to the criminal proceedings under section 193A of the Criminal Procedure Code.
46. Acting on the complaint she lodged, carried independent investigation and there is therefore no malice or bad faith and or any abuse of the criminal procedure on their part as the respondents are performing their functions as provided for under the Constitution, the National Police Service Act, Criminal Procedure Code and Penal code among other relevant provisions of the Law.
47. Further, vide the consent decree the said, Paul Mwangi Warutere, Topmax Media Limited and Newtral Enterprises Limited were all held liable to pay the defrauded amount and furthermore to meet the costs of the suit as per clause 1 & 3 of the consent decree.
48. In answer to contents of paragraph 15 of the verifying affidavit she wishes states that the ex-parte applicants have failed to demonstrate how the respondents have violated the constitution and statutory as alleged.
49. Section 23 of the Penal Code which provides that ‘Where an offence is committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.’
50. She submits that this court should dismiss the application herein and accord the 1st and 2nd Respondents’ tender evidence to prove the charges before the 3rd respondent and the ex-parte applicants will not suffer any prejudice as they will be accorded chances to challenges the evidence tendered before the court and cross-examine the witness and if the court finds that they have a case to answer be accorded chance to tender their evidence to contrary.
51. She believes that the ex-parte applicant are jumping the gun with view of preventing the due process of the law and to deny justice to her by preventing my complaint be heard on merit. No single evidence placed before this Honourable court that the ex- parte applicants will not be accorded fair hearing as provided by the constitution , or their right will be violated and or the due criminal procedure will not be followed and or adhered to.
52. Hence, the ex- parte applicant ought to take plea to charges, prove their innocence or otherwise and submit to the consequences of the Law should they be found culpable. The ex- eparte applicants will not suffer any prejudice as they will be afforded an opportunity to defend themselves, cross-examine witnesses and adduce evidence in support of their case and no doubt the proper course of justice will take place to take in the circumstances of this case.
53. The 3rd respondent has the Jurisdiction and competence to hear and determine the charges before it.
Analysis and determination:
54. The court has to determine whether the applicant is entitled to the prayers sought.
55. In order to determine whether or not the applicant has made out a case he must demonstrate and prove that the prosecution and those charged with the responsibility of making the decisions to charge acted in an unreasonable manner.
56. In order to apply my mind to the issue, this court is guided by Section 35 of the National Police Service Act which sets the duties out the Directorate of Criminal Investigations as below;
“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.”
57. In the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR where it was held:
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene".
58. This court is cognizant of the fact that there is need to uphold victims’ rights and this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act.
59. The interested party has come out in opposing the application strongly. She has pointed out that she interacted with the applicants in several contractual relationships in their various capacities and she has an interest in the criminal case.
60. Having cautioned myself as a judicial review court that I should not delved into the merits of the case I have observed that in her detailed affidavit that the interested party indicates that she is a victim of the misdeeds of the applicants and she has a right to be heard.
61. Section 9(2) (a) of the Victims Protection Act Provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission.
62. Victim participation should meaningfully contribute to the justice process. Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic [2020] eKLR.
63. This court does not see any illegality or procedural impropriety in the manner in which the respondents are discharging their respective mandates as to warrant the interference of this court.
64. I am satisfied that the victims have an interest in the outcome of the criminal case.
65. I am in agreement with the interested party that the ex- parte applicant ought to take plea to charges, prove their innocence or otherwise and submit to the consequences of the Law should they be found culpable and that The ex- eparte applicants will not suffer any prejudice as they will be afforded an opportunity to defend themselves, cross-examine witnesses and adduce evidence in support of their case and no doubt the proper course of justice will take place to take in the circumstances of this case. Allowing the Application will deny the interested party to their right to fair hearing.
66. Prosecution of crime is an important component of the criminal justice system and it should not be stopped whimsically. The Applicants will have their day before the trial court.
67. In the case of Pastoli vs KabaleDistrict Local Government Council & Others, (2008) 2 EA 300, that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis BahikirweMuntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
68. Judicial review is now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action, and Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision.
69. I do not find any breach of the right to fair administrative action against the applicants. To allow the application will amount to deny of the right to fair hearing for the interested party, and I so hold.
70. Article 165(6) of the Constitution provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights.
71. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office.
72. The merits of the case, and particularly whether the criminal proceedings have a likelihood of success, or that the Applicant has a good defence is not a ground for halting criminal proceedings by way of judicial review, in light of the purpose and limits of judicial review explained in the foregoing.
73. Where an Applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process, this Court will not hesitate in putting a halt to such proceedings, as that fall squarely within its mandate as a judicial review Court.
74. The cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions as follows: (a) Where there is an abuse of discretion; (b) Where the decision-maker exercises discretion for an improper purpose; (c) Whether decision-maker is in breach of the duty to act fairly; (d) Whether decision-maker has failed to exercise statutory discretion reasonably; (e) Where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (f) Where the decision-maker fetters the discretion given; (g) Where the decision-maker fails to exercise discretion; and (h) Where the decision-maker is irrational and unreasonable.
75. The fact that there exists a civil suit is not a bar to any criminal proceedings or investigations.
76. In HCC NO. 68 OF 2020, the interested party sued the ex-parte applicants for their personal commitment and guarantee to pay the amount defrauded and not as directors of the subject charged companies.
77. It is this court’s finding and I so hold that the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court as recognised by Section 193 A of the Criminal Procedure Code; unless the commencement of the criminal proceedings is meant to force the Applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim.
78. Section 193A of the Criminal Procedure Code on this issue provides that, “notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings."
79. In Republic vs Commissioner of Police and Another ex parte Michael Monari& Another, [2012] eKLR where it was held that:
“the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.
80. The Applicant has failed and I so hold to prove that the Director of Public Prosecutions has abused discretion or exercised his discretion for an improper purpose; or acted in a manner that amounted to a breach of the duty to act fairly; the Respondents have failed to exercise statutory discretion reasonably; or that the Respondents acted in a manner to frustrate the purpose of the Act donating the power, have fettered the discretion given or failed to exercise discretion; or that the Respondent has acted irrational and unreasonable.
81. Further ashore, it is this court’s finding that the 3rd Respondent has the Jurisdiction and competence to hear and determine the charges before it.
82. The Applicant has also sought orders of prohibition.
83. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
84. It is my finding and I hold that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the applicant did not prove the 1st prayer, and I so hold. Prayers b,c and d are declined.
Disposition:
85. The Application lacks merit.
ORDER:
The Notice of Motion dated 3.12.23 is dismissed with costs.
Dated, signed and delivered at Nairobi this 8th Day of April 2024
……………………………………
J. CHIGITI (SC)
JUDGE