By a petition dated 25 th July, 2023, the petitioner is seeking for the following orders against the respondents: -
A declaration that the 1 st respondent abdicated his constitutional duty under Article 157(1) of the Constitution of Kenya 2010 to prevent the abuse of the legal process.
A declaration that the 3 rd respondent has no authority whatsoever to direct/consent/authorize the 1 st respondent to institute charges against the petitioner and that the same is ultra vires the powers of the 3 rd respondent thus unconstitutional.
A declaration that investigations on the Petitioner by the 1 st and 3 rd respondents and the institution of criminal proceedings by the 1 st and 3 rd respondents’ against the petitioner in Naivasha Chief Magistrate's Criminal Case No.663 of 2023 and E1349 of 2022 to advance what ought to be a civil suit is unlawful, oppressive, malicious and comprise a violation of the petitioner’s constitutional rights thus null and void.
A declaration that maintenance and prosecution of Naivasha Chief Magistrate's Criminal Case No. E1349 of 2022 and 663 of 2022 against the petitioner herein is an abuse of the Criminal Justice System and contravenes the Petitioner's Fundamental Rights and freedoms to freedom and security of the person, right to fair hearing and right to equality and freedom from discrimination.
An order of certiorari to remove and bring to this Honourable court and to quash the decision of the 1 st and 3 rd respondents to prefer criminal charges against the Petitioner in regard to the parcel of land Naivasha/Maraigushu/Missouri Block 1/2900 in Naivasha Chief Magistrate's Criminal Case No. E1349 of 2022 and 663 of 2023.
An order of prohibition directed at the 1 st respondent prohibiting the prosecution of the petitioner for the alleged offences of conspiracy to defraud, making a false statement, obtaining registration by false pretense, and abuse of office with respect to the parcel of land Naivasha/Maraigushu/Missouri Block 1/2900.
An order of prohibition directed at the 4 th respondent being the Chief Magistrates Court Naivasha, barring and forbidding the continuance of Naivasha Chief Magistrate's Criminal Case No. E1349 of 2022 and 663 of 2023 against the petitioner herein.
An order of compensation for the psychological torture, oppression, harassment and ridicule suffered by the petitioner.
Any further order that this Honourable court may deem fit to grant in the circumstances.
Costs of the petition and interest.
The petition is supported by the grounds thereto and an affidavit of the even date sworn by the petitioner wherein she avers that, she is employed as a District Land Registrar and stationed at Naivasha.
That on 15 th May 2019, while in the ordinary course of duty, she was presented with transfer documents in respect of land parcel Naivasha/Maraigushu/Missouri Block 829, registered in the name of Missouri Safari Farmers Co. Ltd. That the parcel of land was to be transferred to the 2 nd interested party. That she verified the documents, registered the transfer and issued a title deed in the name of the 2 nd interested party.
That on 29 th June 2021, the 2 nd respondent informed the Land Registrar at Naivasha that, the 1 st interested party, had lodged a complaint under investigation, to the effect that, he had been defrauded his land; Naivasha/Maraigushu/Missouri Block 1/895. That he purchased in the year 2002, from one Kimani Macharia, and upon the purchase the number changed to Naivasha/Maraigushu/Missouri Block 1/2900. That the 2 nd respondent was requesting for copies of the documents used to effect the transfer.
That in response by a letter dated 26 th August 2021, the Land Registrar informed the 2 nd respondent that the parcel of land; Naivasha/Maraigushu/Missouri Block 1/895 claimed by the 1 st interested party is distinct from the parcel Naivasha/Maraigushu/Missouri Block 1/2900.
Further that the parcel Naivasha/Maraigushu/Missouri Block 1/895 was first registered in the name of; Josephat Buttah Ngugi and later transferred third parties who closed it off for subdivision.
Furthermore, parcel Naivasha/Maraigushu/Missouri Block 1/2900 was first registered in the name of; Missouri Framers Co. Ltd then transferred to the 2 nd interested party on 15 th May 2019, and later to the 3 rd interested party on 16 th March 2020.
The petitioner avers that, on 5 th June 2023, she was summoned to Naivasha Police Station to shed light on the transfer of Naivasha/Maraigushu/Missouri Block 1/2900. That, on arrival, the investigating officer asked her whether it was possible for her to cancel the entries transferring proprietary rights in the subject land to the 2 nd and 3 rd interested parties.
That she responded that it is impossible to cancel the entries, whereupon she was immediately arrested and charged jointly with the interested parties over the offences of; conspiracy to defraud, making a false statement, and obtaining registration by false pretence.
That, on 15 th June 2023, the case was consolidated with Naivasha Chief Magistrate’s Criminal Case No. E1349 of 2022, in which the 2 nd interested party was charged, and wherein she was charged with a fourth count of abuse of office.
The petitioner avers that upon considering the prosecution witness statements she noted that the 1 st interested party’s claim is based on a balloting card number 895 issued in 1989. That all the offences against her are hinged on the 1 st interested party being the registered proprietor of Naivasha/Maraigushu/Missouri Block 1/2900. However, the letter from her office to the 2 nd respondent is clear that, the 1 st interested party has never been a proprietor of the said parcel of land, and therefore the charges against her are not based on any evidence.
The petitioner argues that, in any case, the balloting card became irrelevant when the title deed was issued in the year 1989 and therefore the 1 st interested party cannot use it to lay claim on the property. Further, it is absurd that the person who sold the land to the 1 st interested party in the year 2002 did not have a title deed.
Furthermore, the second charge of making a false statement contrary to section 103(1)(s) of the Land Act is non-existent as section 103 of the Land Act deals with an application for relief by a chargor. That in any event, if a false statement was made to procure the registration then as the Land Registrar she is the victim and not the perpetrator. That, the transfer documents are always prepared by the clerical departments before being presented to the Land Registrar for verification and registration.
Further that, the 1 st respondent being well versed in the law knows that, proof of ownership of land is a title deed, and that a criminal court cannot determine the ownership of land. That, if the 1 st interested party has any claim to the land he should approach the Environmental and Land Court (ELC) to seek a declaration of ownership and cancellation of the title deeds issued.
The petitioner further avers that, from the charge sheet it is apparent that the decision to charge her is unconstitutional as it was made by the 1 st and 3 rd respondent in violation of Article 157 (10) of the Constitution of Kenya which confers upon the 2 nd respondent sole power to make a decision to prosecute without the authority of any other person.
That the 1 st , 2 nd , and 3 rd respondents are abusing the criminal process to aid the 1 st interested party and that she is a pawn used to achieve an ulterior motive of intimidating and oppressing the 2 nd and 3 rd interested parties so that they surrender the land to the 1 st interested party.
Further, criminal process herein is being used to embarrass, persecute, harass and frustrate her from doing her lawful duties and to advance what ought to be a civil claim. Furthermore, that the lack of material evidence to support the charges against her is a clear indication that the charges against her are frivolous, oppressive and made in bad faith.
That the court has powers to halt the flawed charges against her and urges that the prayers sought are merited and should be allowed as prayed.
However, the 1 st respondent opposed the petition vide a replying affidavit dated 24 th August 2023 sworn by Serling Joyce an Advocate of the High Court of Kenya and a Prosecution Counsel in the Office of the 1 st respondent. She averred that, she in charge of prosecuting the Chief Magistrate’s Criminal Case No. E1349 of 2022.
That as regard this matter, the investigation file and all requisite documents were presented before the 1 st respondent and it was revealed that, the complainant in the criminal case lodged a complaint with the 2 nd respondent claiming that his land had been wrongly registered without his consent and that there was conspiracy to defraud him of his land.
That as per the investigations it was found that the petitioner had issued the 2 nd interested party with a title deed without proving ownership. That, the conduct of the petitioner to issue her co-accused with a title deed in order to defraud the complainant fitted the definition of conspiracy under the Black’s Law Dictionary and satisfied the ingredients of common intent under section 21 of the Penal Code. Further, the petitioner’s allegation that her work was to stamp documents approved by her clerk showed complacency of her duties.
That, the 1 st respondent made the decision to charge the petitioner in line with Article 157 of the Constitution of Kenya. That no malice has been exhibited by the respondents and the mere fact that the petitioner is a Land Registrar does not give her immunity from prosecution where she had committed a cognizable offence.
Furthermore, the petition is an abuse of the court process as the petitioner is attempting to malign constitutional offices that are doing their jobs. That the court should allow the criminal case No. E1349 of 2023 to be heard and determined by the trial court where the petitioner will have ample opportunity to give her defence.
The 5 th respondent in response to the petition entered appearance on behalf of the 2 nd , 3 rd , 4 th , and 5 th respondents vide a statement of response dated 17 th October 2023. In a nutshell, it is argued that, the 2 nd respondent is mandated under section 35 of the National Police Service Act to investigate the petitioner with regards to the impugned transaction relating to Naivasha/Maraigushu/Missouri Block 1/2900.
That at the close of its investigations, the 2 nd respondent recommended that James Mwaniki Kirathi and Peter Mwangi Kimaru be charged and exonerated Daniel Kimana Ndungu of any criminal liability. That the decision to charge the petitioner is taken within the respondents’ mandate as provided by law.
The respondents denied using the criminal justice system to aid the 1 st interested party acquire ownership of the disputed, however, the respondents conceded that, a balloting card is not proof of ownership of land; and that the criminal justice system is not the right forum to solve land ownership dispute and that indeed the Environmental and Land Court is the right forum.
However, the respondents further argued that the petition as filed does not meet the threshold of; Anarita Karimi Njeru vs Republic (1979) 1 KLR 154 reiterated in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 in that the petition does not specifically demonstrate with reasonable precision the manner in which the respondents have violated and/or limited the petitioner’s constitutional and human rights, and whether any such limitation is contrary to Article 24 and/or does not qualify under Article 25 of the Constitution of Kenya 2010.
The respondents argued that, in light of the afore the petitioner is not entitled to any of the orders sought as the petition is devoid of merit and should be dismissed with costs to the respondents.
Similarly, the 1 st interested party opposed the petition vide a replying affidavit dated 16 th August 2023, wherein he averred that he is the complainant in Naivasha Chief Magistrate's Criminal Case No(s). 1347 of 2022 and No. 663 of 2023. That he is the owner of land parcel No. Naivasha/Maraigushu/Missouri Block 1/2900 formerly Land Ballot No. 895 Missouri Safari Farmers Company.
That he purchased the land on 1 st October 2002, from Kimani Macharia and had left it in the care of his brother, Paul Mbugua, as he was residing in Nairobi. That on 27 th June 2021, his brother informed him that there was an ongoing construction on the said land by the purported owner named Ndungu. That, the following day he proceeded to Naivasha Police Station where he reported the matter to the Directorate of Criminal Investigations, recorded his statement and handed over the agreement of sale, ballot card number, identity card of the vendor, and a receipt from the advocates for purposes of investigations.
That at the end of investigations it was revealed that, land ballot number 895 Missouri Safari Farmers Company was resurveyed, allocated a new number 2900, and a title deed number Naivasha/Maraigushu/Missouri Block 1/2900 registered. That clearance certificate was fraudulently issued to the 2 nd interested party as it was revealed that the 2 nd interested party had no links to the suit property, not a member of the company nor a purchaser of land from the company.
Furthermore, no stamp duty, land registration fees and land rates had been paid during registration of the title deed, being clear evidence that the petitioner, and the 2 nd and 3 rd interested parties had conspired to defraud him of his land. That in addition, the title deed for Naivasha/Maraigushu/Missouri Block 1/2900 was issued on 15 th May 2019, before the issuance of the clearance certificate on 24 th June 2019.
The 1 st interested party denied the claim by the petitioner that he is not the proprietor of the subject land and argued that no title deed has ever being issued in reference to ballot card No. 895 and therefore the ballot card is the only valid evidence of ownership. Further, his name is duly entered in the register of members of Missouri Safari Farmers Company which shows both the old and new numbers of the plot being 895 and 2900 respectively.
He argued that the petition is a desperate attempt to avoid the cause of justice as there is overwhelming evidence against the petitioner and the 2 nd and 3 rd interested parties thus the criminal cases against is lawful and should be allowed to proceed to its logical conclusion.
The 2 nd interested party filed a replying affidavit dated 4 th August 2023 in support of the petition. He avers that, he is charged together with the petitioner and other persons in Naivasha Chief Magistrates criminal case No. 1349 of 2022.
That the land Naivasha/Maraigushu/Missouri Block 1/2900 initially belonged to Missouri Farmers Company Limited and he was the 1 st registered proprietor. That on 27 th June 2019, he sold the land to the 3 rd interested party and executed the sale agreement, application for land control board consent and transfer forms. Subsequently, the documents were presented to the Naivasha Land Registry in the normal course of business and title deed issued in favour of the 3 rd interested party. That there was no collusion between him and the petitioner.
That, the charges against him are civil in nature and therefore the claim should have been filed before the Environment and Land Court. Further, that there is a current civil proceedings; Environmental and land Court Case No. E041 of 2023, Daniel K. Kimana Ndungu vs Peter Mwangi Kimaru , Land Registrar Naivasha and The Honourable Attorney General.
That, the criminal case against the accuseds are oppressive and a total abuse of the court process. He prays that the petition be allowed.
Similarly, the 3 rd interested party supported the petition vide replying affidavit dated 3 rd October 2023, and avers that he is a bona fide purchaser of; Naivasha/Maraigushu/Missouri Block 1/2900 and has a valid title deed thereto. That the charges against him are fictious and are being used by the 1 st interested party and the respondents to oppress him.
That, the petition is relevant as it addresses the issue of abuse of his rights to freedom, dignity, fair treatment, ownership of property and enjoyment of public service. Further, he has filed a civil suit and seeks that the same should be heard and determined first.
At the conclusion of the arguments by the parties the parties filed their respective submissions considered herein. The petitioner filed submissions dated; 15 th May 2024 and argued that it is only the Office of the Directorate of Public Prosecution and not the Officer Commanding Station (OCS), that is empowered to draft the charges, stamp, sign and place their initials and rank on the charge sheet, as provided for under Chapter 4.3 of the ODPP Decision to Charge Guidelines 2019.
That the charge sheet herein was signed and stamped by the OCS, an indication of authority to prefer the charges. Further, although the charge sheet bears a stamp and signature of the Office of the Director of Public Prosecution, the initials and rank of the prosecutor are not indicated. Furthermore, the 1 st respondent used Police Form No. 5 that emanates from the Police Standing Orders instead of Form ODPP2 Appendix 3 from their own guidelines. That, taking into consideration the foregoing, it is clear that the charge sheet as presented is defective.
The petitioner submitted that, the decision to charge was not properly reached. That before making a decision to charge, a prosecution is required to consider whether the material before it pass the threshold of evidential and public interest tests. That in this case there is no proper evidence to support the charges against her.
That, the 1 st interested party’s claim is anchored on a sale agreement dated 1 st October 2002, between him and Kimani Macharia in relation to parcel; Naivasha/Maraigushu/Missouri Block 1/895. However, at the time of the sale plot No. 895 was registered in the name of Josephat Buttah Ngugi who had a valid title deed.
Furthermore, despite Kimani Macharia alleging to have bought the land from Josephat Buttah Ngugi before selling it to the 1 st interested party, there is no sale agreement between Josephat Buttah Ngugi and Kimani Macharia in support of the same.
That, the balloting card forming crucial prosecution evidence does not bear the name nor the size of the plot. That in any case Plot No. 2900 is a subdivision of 89 and not 895 which two plot are distinct from each other.
The petitioner submitted that page 19 of the ODPP Decision to Charge Guidelines stress that a case that does not pass the evidential stage must not proceed regardless of how serious or sensitive the case may be. The petitioner relied on the case of; R vs attorney General ex parte Kipngeno Arap Ngeny (2001) KLR 612 where the High Court stated that, a criminal prosecution commenced in absence of factual foundation raises suspicion of ulterior motive and that a prosecutor must demonstrate there is reasonable and probable cause for a criminal prosecution.
The petitioner further submitted that, she was charged in count (2) with non-existent offence of making a false statement contrary to section 103(1)(A) of the Lands Act. However, that section relates to application for relief by a chargor. Further, the respondents forced her to take plea on the same despite it not disclosing an offence.
The petitioner relied on, Article 50(2)(b) of the Constitution of Kenya which provides that an accused must be informed of the charge with sufficient detail to answer it, while Article 50(2)(n) states that an accused can only be charged and convicted for an act or omission that is either an offence in Kenya or under international law.
She further relied on the case of; Henry O Edwin vs Republic [2015] eKLR where the Court of Appeal observed that the appellant was charged under section 5(b) of the Narcotic Drugs and Psychotropic Substances Control Act No 4 of 1994. which was non-existent and held that the charge sheet was fatally defective.
The petitioner reiterated that, the 1 st interested party’s claim is for ownership of land and ought to have been filed before the Environmental and Land Court.
The case of, Kangwana & 2 others vs Director of Public Prosecutions & 3 others; Monarch Insurance Company Ltd & another (Interested Party) [2022] eKLR where the High Court stated that the complainants who were seeking recovery of the suit property were expected to institute civil proceedings for nullification of the title deed, failure of which the petitioners were well within their right to argue that criminal process was being used to achieve what ought to have been achieved through the civil process, if they were not time barred.
The petitioner argued that, the 1 st interested party could not institute a civil suit before the Environmental and Land Court as his claim that was to be filed within twenty (20) years was statute barred.
The petitioner reiterated that, the criminal charges herein are meant to harass her. She relied on the case of; Cyus Shakhalanga Jirongo vs Soy Developers Ltd & 9 Others [2021] eKLR where the Supreme Court of Kenya held that the Office of Director of Public Prosecution in instituting prosecution should act judiciously and not perpetuate an unfair and malicious criminal complaint and must always be guided by the principle that the right to fair trial cannot be limited raising the bar of whether to prosecute or not.
The petitioner submitted that regarding the issue of violation of her rights, the court set the threshold in the case of; Anarita Karimi Njeru vs Republic [1979] eKLR where the Court of Appeal stated that a petitioner must plead with reasonable degree of precision the rights and constitutional provisions alleged to have been violated, and the jurisdictional basis for it.
The petitioner reiterated that her right to fair trial under Article 50 of the Constitution of Kenya have been violated on the grounds that; she is charged with a non-existent offence; that the decision to charge her was not properly arrived at as there is no evidence in support of the charges; and that the charges against her were preferred by the police.
She further submitted that, her right to equality and freedom from discrimination under Article 27 of the Constitution of Kenya have been violated as she has been subjected to frivolous charges meant to intimidate her by the entities that are meant to protect her right.
That in additionally, her arbitrary arrest, detention and charge of frivolous offence without just cause, has denied her right to freedom and security of the person. That the investigative agencies ought o have conducted proper investigations before subjecting her to such a process.
She relied on the case of; Okiya Omtatah Okoiti vs the Director of Public Prosecution; Inspector General of National Police Service & another (Interested Parties) International Commission of Jurists (Kenya Section) (Amicus Curiae) [2022] eKLR where the High Court stated that, the Police, State organs or any person should not arrest a person without justifiable reason and take them through the criminal justice system just for the sake of it. That there must be a basis for making a person a suspect and/or an accused person.
Further, the police can only take action once satisfied that an offence has been committed and the prosecutor must be satisfied there are legitimate reasons for obtaining certain orders before moving the court.
The petitioner further submitted that, being subjected to a flawed criminal process violates her right to human dignity as provided for under Article 28 of the Constitution. She referred to the case of; Ahemd Isaack Hassan vs Auditor General [2015] eKLR where the High Court stated that right of human dignity is promoted and protected if a person enjoys all other rights in the bill of rights but it will be violated where the other rights are violated.
The petitioner submitted that Article 23 (3) of the Constitution of Kenya, outlines the orders grantable in a constitutional petition and urged the court to uphold the constitutional values and principles and find that the charges herein amounts to an abuse of the court process, are null and void, should be quashed and an order of prohibition be issued against the respondent to prohibit her continued harassment.
However, the 1 st respondent in submissions dated 19 th September 2023, relied on Article 157(6) of the Constitution of Kenya, and argued that it has the mandate to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed.
Further, Article 157(10) of the Constitution of Kenya, replicated in section 6 of the Office of the Director of Public Prosecutions Act, 2013, provides that the 1 st respondent does not require the consent of any person or authority for the commencement of criminal proceeding neither does not act under the direction or control of any person or authority.
The 1 st respondent submitted that, the complainant lodged a complaint by the 1 st respondent led to the decision to charge the petitioner. That, in making that decision the 1 st respondent considered the sufficiency of evidence gathered by the investigating officer, the culpability of the petitioner as an accused and the relevant laws among others.
Further, in exercising it duty the 1 st respondent upheld professionalism and ensured that the spirit of Chapter 6 (six) of the Constitution of Kenya was observed. That the decision to < >><>>> >> ><>< >>> ><>>><>Lastly, the 1 st respondent submitted that, the petitioner had failed to demonstrate how her right has been violated through the decision to charge her. The court was urged to dismiss the petition for being an abuse of the court process and all0w the criminal case to proceed to its logical conclusion.
The 5 th respondent filed submissions dated; 16 th April 2024 on behalf of the 2 nd to 5 th respondents and argued that, the actions of the respondents did not infringe on the rights of the petitioner. That, the 1 st interested party raised on complaint and the 2 nd and 3 rd respondents investigated it and found discrepancies in the documents provided by the petitioner’s office. That at the close of investigations the 2 nd and 3 rd respondents wrote to the 1 st respondent recommending that; James Mwaniki Kirathi and Peter Mwangi Kimaru, the 2 nd interested party, be charged under section(s) 313, 317, and 320 of the Penal Code.
However, the 1 st respondent recommended that James Mwaniki Kirathi and the 2 nd interested party be charged under section 317 and 320 of the Penal Code; and the 2 nd interested party be further charged under section 103(1)(a) of the Land Registration Act No. 3 of 2012 and section 313 of the Penal Code.
That on the 18 th April 2023, the 1 st respondent wrote to the 2 nd and 3 rd respondents and directed that the petitioner be charged together with the afore persons and that pursuant to section 29(9) of the National Police Service Act No. 11A of 2011, the 2 nd respondent’s complied with the directions of the 1 st respondent.
Further, that the 1 st respondent has powers to institute proceedings against a party in a criminal case and the decision to charge squarely lies with it as provided for in section 29 of the Office of Public Prosecutions Act
The 5 th respondent stated that the person who submits forged and/or false documents to the land registry should bear the blame. Furthermore, the law provides mechanisms for rectification where it is established that there is fraud or misrepresentation either through the Environmental and Land Court, or the Registrar.
That, The 5 th respondent reiterated that, the petition does not meet the threshold set out in the case of Anarita Karimi Njeru v Republic (supra) and Mumo Matemo v Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 . That the petitioner has failed to lay any claims against the 4 th and 5 th respondents and therefore the suit against them should be dismissed with costs.
The 2 nd interested party in submissions dated 16 th November 2023, reiterated his averments in his response to the petition
That, on 27 th June 2019, he sold the property to the 3 rd interested party and a new titled deed was issued. That he is aware that the 3 rd interested party started construction on the said property. However, in the year 2022 he was charged in criminal case no. 1349 of 2022 jointly with one James Mwaniki Kirathi and in the year 2023 the petitioner and the 3 rd interested party were joined in the criminal case.
The 2 nd interested party submitted that, he obtained registration of the land parcel legally and there was no conspiracy between him, the petitioner and the 3 rd interested party.
He reiterated that the matter herein is a subject of a civil nature and the criminal proceedings are an attempt to short circuit the course of justice and it is oppressive to him. He relied on the case of; Reuben Mwangi vs Director Of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties) [2021] eKLR where the High Court quoted with approval the case of; R vs Attorney General exp arap Ngeny Civil Application No 406 of 2001 and stated that the Court will interfere with a criminal trial in a subordinate court if it is determined that the prosecution is an abuse of the court and is oppressive and vexatious.
Finally, the 2 nd interested party submitted that, his prosecution is oppressive, totally unmerited and that the charges are in contravention of the Constitution of Kenya 2010 and urged that the petition be allowed as prayed
The 1 ST and 3 RD interested parties did not file any s
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A declaration that the 1 st respondent abdicated his constitutional duty under Article 157(1) of the Constitution of Kenya 2010 to prevent the abuse of the legal process.
A declaration that the 3 rd respondent has no authority whatsoever to direct/consent/authorize the 1 st respondent to institute charges against the petitioner and that the same is ultra vires the powers of the 3 rd respondent thus unconstitutional.
A declaration that investigations on the Petitioner by the 1 st and 3 rd respondents and the institution of criminal proceedings by the 1 st and 3 rd respondents’ against the petitioner in Naivasha Chief Magistrate's Criminal Case No.663 of 2023 and E1349 of 2022 to advance what ought to be a civil suit is unlawful, oppressive, malicious and comprise a violation of the petitioner’s constitutional rights thus null and void.
A declaration that maintenance and prosecution of Naivasha Chief Magistrate's Criminal Case No. E1349 of 2022 and 663 of 2022 against the petitioner herein is an abuse of the Criminal Justice System and contravenes the Petitioner's Fundamental Rights and freedoms to freedom and security of the person, right to fair hearing and right to equality and freedom from discrimination.
An order of certiorari to remove and bring to this Honourable court and to quash the decision of the 1 st and 3 rd respondents to prefer criminal charges against the Petitioner in regard to the parcel of land Naivasha/Maraigushu/Missouri Block 1/2900 in Naivasha Chief Magistrate's Criminal Case No. E1349 of 2022 and 663 of 2023.
An order of prohibition directed at the 1 st respondent prohibiting the prosecution of the petitioner for the alleged offences of conspiracy to defraud, making a false statement, obtaining registration by false pretense, and abuse of office with respect to the parcel of land Naivasha/Maraigushu/Missouri Block 1/2900.
An order of prohibition directed at the 4 th respondent being the Chief Magistrates Court Naivasha, barring and forbidding the continuance of Naivasha Chief Magistrate's Criminal Case No. E1349 of 2022 and 663 of 2023 against the petitioner herein.
An order of compensation for the psychological torture, oppression, harassment and ridicule suffered by the petitioner.
Any further order that this Honourable court may deem fit to grant in the circumstances.
Costs of the petition and interest.
The petition is supported by the grounds thereto and an affidavit of the even date sworn by the petitioner wherein she avers that, she is employed as a District Land Registrar and stationed at Naivasha.
That on 15 th May 2019, while in the ordinary course of duty, she was presented with transfer documents in respect of land parcel Naivasha/Maraigushu/Missouri Block 829, registered in the name of Missouri Safari Farmers Co. Ltd. That the parcel of land was to be transferred to the 2 nd interested party. That she verified the documents, registered the transfer and issued a title deed in the name of the 2 nd interested party.
That on 29 th June 2021, the 2 nd respondent informed the Land Registrar at Naivasha that, the 1 st interested party, had lodged a complaint under investigation, to the effect that, he had been defrauded his land; Naivasha/Maraigushu/Missouri Block 1/895. That he purchased in the year 2002, from one Kimani Macharia, and upon the purchase the number changed to Naivasha/Maraigushu/Missouri Block 1/2900. That the 2 nd respondent was requesting for copies of the documents used to effect the transfer.
That in response by a letter dated 26 th August 2021, the Land Registrar informed the 2 nd respondent that the parcel of land; Naivasha/Maraigushu/Missouri Block 1/895 claimed by the 1 st interested party is distinct from the parcel Naivasha/Maraigushu/Missouri Block 1/2900.
Further that the parcel Naivasha/Maraigushu/Missouri Block 1/895 was first registered in the name of; Josephat Buttah Ngugi and later transferred third parties who closed it off for subdivision.
Furthermore, parcel Naivasha/Maraigushu/Missouri Block 1/2900 was first registered in the name of; Missouri Framers Co. Ltd then transferred to the 2 nd interested party on 15 th May 2019, and later to the 3 rd interested party on 16 th March 2020.
The petitioner avers that, on 5 th June 2023, she was summoned to Naivasha Police Station to shed light on the transfer of Naivasha/Maraigushu/Missouri Block 1/2900. That, on arrival, the investigating officer asked her whether it was possible for her to cancel the entries transferring proprietary rights in the subject land to the 2 nd and 3 rd interested parties.
That she responded that it is impossible to cancel the entries, whereupon she was immediately arrested and charged jointly with the interested parties over the offences of; conspiracy to defraud, making a false statement, and obtaining registration by false pretence.
That, on 15 th June 2023, the case was consolidated with Naivasha Chief Magistrate’s Criminal Case No. E1349 of 2022, in which the 2 nd interested party was charged, and wherein she was charged with a fourth count of abuse of office.
The petitioner avers that upon considering the prosecution witness statements she noted that the 1 st interested party’s claim is based on a balloting card number 895 issued in 1989. That all the offences against her are hinged on the 1 st interested party being the registered proprietor of Naivasha/Maraigushu/Missouri Block 1/2900. However, the letter from her office to the 2 nd respondent is clear that, the 1 st interested party has never been a proprietor of the said parcel of land, and therefore the charges against her are not based on any evidence.
The petitioner argues that, in any case, the balloting card became irrelevant when the title deed was issued in the year 1989 and therefore the 1 st interested party cannot use it to lay claim on the property. Further, it is absurd that the person who sold the land to the 1 st interested party in the year 2002 did not have a title deed.
Furthermore, the second charge of making a false statement contrary to section 103(1)(s) of the Land Act is non-existent as section 103 of the Land Act deals with an application for relief by a chargor. That in any event, if a false statement was made to procure the registration then as the Land Registrar she is the victim and not the perpetrator. That, the transfer documents are always prepared by the clerical departments before being presented to the Land Registrar for verification and registration.
Further that, the 1 st respondent being well versed in the law knows that, proof of ownership of land is a title deed, and that a criminal court cannot determine the ownership of land. That, if the 1 st interested party has any claim to the land he should approach the Environmental and Land Court (ELC) to seek a declaration of ownership and cancellation of the title deeds issued.
The petitioner further avers that, from the charge sheet it is apparent that the decision to charge her is unconstitutional as it was made by the 1 st and 3 rd respondent in violation of Article 157 (10) of the Constitution of Kenya which confers upon the 2 nd respondent sole power to make a decision to prosecute without the authority of any other person.
That the 1 st , 2 nd , and 3 rd respondents are abusing the criminal process to aid the 1 st interested party and that she is a pawn used to achieve an ulterior motive of intimidating and oppressing the 2 nd and 3 rd interested parties so that they surrender the land to the 1 st interested party.
Further, criminal process herein is being used to embarrass, persecute, harass and frustrate her from doing her lawful duties and to advance what ought to be a civil claim. Furthermore, that the lack of material evidence to support the charges against her is a clear indication that the charges against her are frivolous, oppressive and made in bad faith.
That the court has powers to halt the flawed charges against her and urges that the prayers sought are merited and should be allowed as prayed.
However, the 1 st respondent opposed the petition vide a replying affidavit dated 24 th August 2023 sworn by Serling Joyce an Advocate of the High Court of Kenya and a Prosecution Counsel in the Office of the 1 st respondent. She averred that, she in charge of prosecuting the Chief Magistrate’s Criminal Case No. E1349 of 2022.
That as regard this matter, the investigation file and all requisite documents were presented before the 1 st respondent and it was revealed that, the complainant in the criminal case lodged a complaint with the 2 nd respondent claiming that his land had been wrongly registered without his consent and that there was conspiracy to defraud him of his land.
That as per the investigations it was found that the petitioner had issued the 2 nd interested party with a title deed without proving ownership. That, the conduct of the petitioner to issue her co-accused with a title deed in order to defraud the complainant fitted the definition of conspiracy under the Black’s Law Dictionary and satisfied the ingredients of common intent under section 21 of the Penal Code. Further, the petitioner’s allegation that her work was to stamp documents approved by her clerk showed complacency of her duties.
That, the 1 st respondent made the decision to charge the petitioner in line with Article 157 of the Constitution of Kenya. That no malice has been exhibited by the respondents and the mere fact that the petitioner is a Land Registrar does not give her immunity from prosecution where she had committed a cognizable offence.
Furthermore, the petition is an abuse of the court process as the petitioner is attempting to malign constitutional offices that are doing their jobs. That the court should allow the criminal case No. E1349 of 2023 to be heard and determined by the trial court where the petitioner will have ample opportunity to give her defence.
The 5 th respondent in response to the petition entered appearance on behalf of the 2 nd , 3 rd , 4 th , and 5 th respondents vide a statement of response dated 17 th October 2023. In a nutshell, it is argued that, the 2 nd respondent is mandated under section 35 of the National Police Service Act to investigate the petitioner with regards to the impugned transaction relating to Naivasha/Maraigushu/Missouri Block 1/2900.
That at the close of its investigations, the 2 nd respondent recommended that James Mwaniki Kirathi and Peter Mwangi Kimaru be charged and exonerated Daniel Kimana Ndungu of any criminal liability. That the decision to charge the petitioner is taken within the respondents’ mandate as provided by law.
The respondents denied using the criminal justice system to aid the 1 st interested party acquire ownership of the disputed, however, the respondents conceded that, a balloting card is not proof of ownership of land; and that the criminal justice system is not the right forum to solve land ownership dispute and that indeed the Environmental and Land Court is the right forum.
However, the respondents further argued that the petition as filed does not meet the threshold of; Anarita Karimi Njeru vs Republic (1979) 1 KLR 154 reiterated in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 in that the petition does not specifically demonstrate with reasonable precision the manner in which the respondents have violated and/or limited the petitioner’s constitutional and human rights, and whether any such limitation is contrary to Article 24 and/or does not qualify under Article 25 of the Constitution of Kenya 2010.
The respondents argued that, in light of the afore the petitioner is not entitled to any of the orders sought as the petition is devoid of merit and should be dismissed with costs to the respondents.
Similarly, the 1 st interested party opposed the petition vide a replying affidavit dated 16 th August 2023, wherein he averred that he is the complainant in Naivasha Chief Magistrate's Criminal Case No(s). 1347 of 2022 and No. 663 of 2023. That he is the owner of land parcel No. Naivasha/Maraigushu/Missouri Block 1/2900 formerly Land Ballot No. 895 Missouri Safari Farmers Company.
That he purchased the land on 1 st October 2002, from Kimani Macharia and had left it in the care of his brother, Paul Mbugua, as he was residing in Nairobi. That on 27 th June 2021, his brother informed him that there was an ongoing construction on the said land by the purported owner named Ndungu. That, the following day he proceeded to Naivasha Police Station where he reported the matter to the Directorate of Criminal Investigations, recorded his statement and handed over the agreement of sale, ballot card number, identity card of the vendor, and a receipt from the advocates for purposes of investigations.
That at the end of investigations it was revealed that, land ballot number 895 Missouri Safari Farmers Company was resurveyed, allocated a new number 2900, and a title deed number Naivasha/Maraigushu/Missouri Block 1/2900 registered. That clearance certificate was fraudulently issued to the 2 nd interested party as it was revealed that the 2 nd interested party had no links to the suit property, not a member of the company nor a purchaser of land from the company.
Furthermore, no stamp duty, land registration fees and land rates had been paid during registration of the title deed, being clear evidence that the petitioner, and the 2 nd and 3 rd interested parties had conspired to defraud him of his land. That in addition, the title deed for Naivasha/Maraigushu/Missouri Block 1/2900 was issued on 15 th May 2019, before the issuance of the clearance certificate on 24 th June 2019.
The 1 st interested party denied the claim by the petitioner that he is not the proprietor of the subject land and argued that no title deed has ever being issued in reference to ballot card No. 895 and therefore the ballot card is the only valid evidence of ownership. Further, his name is duly entered in the register of members of Missouri Safari Farmers Company which shows both the old and new numbers of the plot being 895 and 2900 respectively.
He argued that the petition is a desperate attempt to avoid the cause of justice as there is overwhelming evidence against the petitioner and the 2 nd and 3 rd interested parties thus the criminal cases against is lawful and should be allowed to proceed to its logical conclusion.
The 2 nd interested party filed a replying affidavit dated 4 th August 2023 in support of the petition. He avers that, he is charged together with the petitioner and other persons in Naivasha Chief Magistrates criminal case No. 1349 of 2022.
That the land Naivasha/Maraigushu/Missouri Block 1/2900 initially belonged to Missouri Farmers Company Limited and he was the 1 st registered proprietor. That on 27 th June 2019, he sold the land to the 3 rd interested party and executed the sale agreement, application for land control board consent and transfer forms. Subsequently, the documents were presented to the Naivasha Land Registry in the normal course of business and title deed issued in favour of the 3 rd interested party. That there was no collusion between him and the petitioner.
That, the charges against him are civil in nature and therefore the claim should have been filed before the Environment and Land Court. Further, that there is a current civil proceedings; Environmental and land Court Case No. E041 of 2023, Daniel K. Kimana Ndungu vs Peter Mwangi Kimaru , Land Registrar Naivasha and The Honourable Attorney General.
That, the criminal case against the accuseds are oppressive and a total abuse of the court process. He prays that the petition be allowed.
Similarly, the 3 rd interested party supported the petition vide replying affidavit dated 3 rd October 2023, and avers that he is a bona fide purchaser of; Naivasha/Maraigushu/Missouri Block 1/2900 and has a valid title deed thereto. That the charges against him are fictious and are being used by the 1 st interested party and the respondents to oppress him.
That, the petition is relevant as it addresses the issue of abuse of his rights to freedom, dignity, fair treatment, ownership of property and enjoyment of public service. Further, he has filed a civil suit and seeks that the same should be heard and determined first.
At the conclusion of the arguments by the parties the parties filed their respective submissions considered herein. The petitioner filed submissions dated; 15 th May 2024 and argued that it is only the Office of the Directorate of Public Prosecution and not the Officer Commanding Station (OCS), that is empowered to draft the charges, stamp, sign and place their initials and rank on the charge sheet, as provided for under Chapter 4.3 of the ODPP Decision to Charge Guidelines 2019.
That the charge sheet herein was signed and stamped by the OCS, an indication of authority to prefer the charges. Further, although the charge sheet bears a stamp and signature of the Office of the Director of Public Prosecution, the initials and rank of the prosecutor are not indicated. Furthermore, the 1 st respondent used Police Form No. 5 that emanates from the Police Standing Orders instead of Form ODPP2 Appendix 3 from their own guidelines. That, taking into consideration the foregoing, it is clear that the charge sheet as presented is defective.
The petitioner submitted that, the decision to charge was not properly reached. That before making a decision to charge, a prosecution is required to consider whether the material before it pass the threshold of evidential and public interest tests. That in this case there is no proper evidence to support the charges against her.
That, the 1 st interested party’s claim is anchored on a sale agreement dated 1 st October 2002, between him and Kimani Macharia in relation to parcel; Naivasha/Maraigushu/Missouri Block 1/895. However, at the time of the sale plot No. 895 was registered in the name of Josephat Buttah Ngugi who had a valid title deed.
Furthermore, despite Kimani Macharia alleging to have bought the land from Josephat Buttah Ngugi before selling it to the 1 st interested party, there is no sale agreement between Josephat Buttah Ngugi and Kimani Macharia in support of the same.
That, the balloting card forming crucial prosecution evidence does not bear the name nor the size of the plot. That in any case Plot No. 2900 is a subdivision of 89 and not 895 which two plot are distinct from each other.
The petitioner submitted that page 19 of the ODPP Decision to Charge Guidelines stress that a case that does not pass the evidential stage must not proceed regardless of how serious or sensitive the case may be. The petitioner relied on the case of; R vs attorney General ex parte Kipngeno Arap Ngeny (2001) KLR 612 where the High Court stated that, a criminal prosecution commenced in absence of factual foundation raises suspicion of ulterior motive and that a prosecutor must demonstrate there is reasonable and probable cause for a criminal prosecution.
The petitioner further submitted that, she was charged in count (2) with non-existent offence of making a false statement contrary to section 103(1)(A) of the Lands Act. However, that section relates to application for relief by a chargor. Further, the respondents forced her to take plea on the same despite it not disclosing an offence.
The petitioner relied on, Article 50(2)(b) of the Constitution of Kenya which provides that an accused must be informed of the charge with sufficient detail to answer it, while Article 50(2)(n) states that an accused can only be charged and convicted for an act or omission that is either an offence in Kenya or under international law.
She further relied on the case of; Henry O Edwin vs Republic [2015] eKLR where the Court of Appeal observed that the appellant was charged under section 5(b) of the Narcotic Drugs and Psychotropic Substances Control Act No 4 of 1994. which was non-existent and held that the charge sheet was fatally defective.
The petitioner reiterated that, the 1 st interested party’s claim is for ownership of land and ought to have been filed before the Environmental and Land Court.
The case of, Kangwana & 2 others vs Director of Public Prosecutions & 3 others; Monarch Insurance Company Ltd & another (Interested Party) [2022] eKLR where the High Court stated that the complainants who were seeking recovery of the suit property were expected to institute civil proceedings for nullification of the title deed, failure of which the petitioners were well within their right to argue that criminal process was being used to achieve what ought to have been achieved through the civil process, if they were not time barred.
The petitioner argued that, the 1 st interested party could not institute a civil suit before the Environmental and Land Court as his claim that was to be filed within twenty (20) years was statute barred.
The petitioner reiterated that, the criminal charges herein are meant to harass her. She relied on the case of; Cyus Shakhalanga Jirongo vs Soy Developers Ltd & 9 Others [2021] eKLR where the Supreme Court of Kenya held that the Office of Director of Public Prosecution in instituting prosecution should act judiciously and not perpetuate an unfair and malicious criminal complaint and must always be guided by the principle that the right to fair trial cannot be limited raising the bar of whether to prosecute or not.
The petitioner submitted that regarding the issue of violation of her rights, the court set the threshold in the case of; Anarita Karimi Njeru vs Republic [1979] eKLR where the Court of Appeal stated that a petitioner must plead with reasonable degree of precision the rights and constitutional provisions alleged to have been violated, and the jurisdictional basis for it.
The petitioner reiterated that her right to fair trial under Article 50 of the Constitution of Kenya have been violated on the grounds that; she is charged with a non-existent offence; that the decision to charge her was not properly arrived at as there is no evidence in support of the charges; and that the charges against her were preferred by the police.
She further submitted that, her right to equality and freedom from discrimination under Article 27 of the Constitution of Kenya have been violated as she has been subjected to frivolous charges meant to intimidate her by the entities that are meant to protect her right.
That in additionally, her arbitrary arrest, detention and charge of frivolous offence without just cause, has denied her right to freedom and security of the person. That the investigative agencies ought o have conducted proper investigations before subjecting her to such a process.
She relied on the case of; Okiya Omtatah Okoiti vs the Director of Public Prosecution; Inspector General of National Police Service & another (Interested Parties) International Commission of Jurists (Kenya Section) (Amicus Curiae) [2022] eKLR where the High Court stated that, the Police, State organs or any person should not arrest a person without justifiable reason and take them through the criminal justice system just for the sake of it. That there must be a basis for making a person a suspect and/or an accused person.
Further, the police can only take action once satisfied that an offence has been committed and the prosecutor must be satisfied there are legitimate reasons for obtaining certain orders before moving the court.
The petitioner further submitted that, being subjected to a flawed criminal process violates her right to human dignity as provided for under Article 28 of the Constitution. She referred to the case of; Ahemd Isaack Hassan vs Auditor General [2015] eKLR where the High Court stated that right of human dignity is promoted and protected if a person enjoys all other rights in the bill of rights but it will be violated where the other rights are violated.
The petitioner submitted that Article 23 (3) of the Constitution of Kenya, outlines the orders grantable in a constitutional petition and urged the court to uphold the constitutional values and principles and find that the charges herein amounts to an abuse of the court process, are null and void, should be quashed and an order of prohibition be issued against the respondent to prohibit her continued harassment.
However, the 1 st respondent in submissions dated 19 th September 2023, relied on Article 157(6) of the Constitution of Kenya, and argued that it has the mandate to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed.
Further, Article 157(10) of the Constitution of Kenya, replicated in section 6 of the Office of the Director of Public Prosecutions Act, 2013, provides that the 1 st respondent does not require the consent of any person or authority for the commencement of criminal proceeding neither does not act under the direction or control of any person or authority.
The 1 st respondent submitted that, the complainant lodged a complaint by the 1 st respondent led to the decision to charge the petitioner. That, in making that decision the 1 st respondent considered the sufficiency of evidence gathered by the investigating officer, the culpability of the petitioner as an accused and the relevant laws among others.
Further, in exercising it duty the 1 st respondent upheld professionalism and ensured that the spirit of Chapter 6 (six) of the Constitution of Kenya was observed. That the decision to < >><>>> >> ><>< >>> ><>>><>Lastly, the 1 st respondent submitted that, the petitioner had failed to demonstrate how her right has been violated through the decision to charge her. The court was urged to dismiss the petition for being an abuse of the court process and all0w the criminal case to proceed to its logical conclusion.
The 5 th respondent filed submissions dated; 16 th April 2024 on behalf of the 2 nd to 5 th respondents and argued that, the actions of the respondents did not infringe on the rights of the petitioner. That, the 1 st interested party raised on complaint and the 2 nd and 3 rd respondents investigated it and found discrepancies in the documents provided by the petitioner’s office. That at the close of investigations the 2 nd and 3 rd respondents wrote to the 1 st respondent recommending that; James Mwaniki Kirathi and Peter Mwangi Kimaru, the 2 nd interested party, be charged under section(s) 313, 317, and 320 of the Penal Code.
However, the 1 st respondent recommended that James Mwaniki Kirathi and the 2 nd interested party be charged under section 317 and 320 of the Penal Code; and the 2 nd interested party be further charged under section 103(1)(a) of the Land Registration Act No. 3 of 2012 and section 313 of the Penal Code.
That on the 18 th April 2023, the 1 st respondent wrote to the 2 nd and 3 rd respondents and directed that the petitioner be charged together with the afore persons and that pursuant to section 29(9) of the National Police Service Act No. 11A of 2011, the 2 nd respondent’s complied with the directions of the 1 st respondent.
Further, that the 1 st respondent has powers to institute proceedings against a party in a criminal case and the decision to charge squarely lies with it as provided for in section 29 of the Office of Public Prosecutions Act
The 5 th respondent stated that the person who submits forged and/or false documents to the land registry should bear the blame. Furthermore, the law provides mechanisms for rectification where it is established that there is fraud or misrepresentation either through the Environmental and Land Court, or the Registrar.
That, The 5 th respondent reiterated that, the petition does not meet the threshold set out in the case of Anarita Karimi Njeru v Republic (supra) and Mumo Matemo v Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012 . That the petitioner has failed to lay any claims against the 4 th and 5 th respondents and therefore the suit against them should be dismissed with costs.
The 2 nd interested party in submissions dated 16 th November 2023, reiterated his averments in his response to the petition
That, on 27 th June 2019, he sold the property to the 3 rd interested party and a new titled deed was issued. That he is aware that the 3 rd interested party started construction on the said property. However, in the year 2022 he was charged in criminal case no. 1349 of 2022 jointly with one James Mwaniki Kirathi and in the year 2023 the petitioner and the 3 rd interested party were joined in the criminal case.
The 2 nd interested party submitted that, he obtained registration of the land parcel legally and there was no conspiracy between him, the petitioner and the 3 rd interested party.
He reiterated that the matter herein is a subject of a civil nature and the criminal proceedings are an attempt to short circuit the course of justice and it is oppressive to him. He relied on the case of; Reuben Mwangi vs Director Of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties) [2021] eKLR where the High Court quoted with approval the case of; R vs Attorney General exp arap Ngeny Civil Application No 406 of 2001 and stated that the Court will interfere with a criminal trial in a subordinate court if it is determined that the prosecution is an abuse of the court and is oppressive and vexatious.
Finally, the 2 nd interested party submitted that, his prosecution is oppressive, totally unmerited and that the charges are in contravention of the Constitution of Kenya 2010 and urged that the petition be allowed as prayed
The 1 ST and 3 RD interested parties did not file any s
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