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JudgmentMUTHEE AND PARTNERS LLP ADVOCATES VS ODPP10 min read

MUTHEE AND PARTNERS LLP ADVOCATES VS ODPP

High Court at Mombasa High Court · · Wendy Micheni


  1. The Applicant filed a Notice of Motion alongside a Certificate of Urgency on the 25th of November 2024 seeking inter alia, orders that the Respondents and all officers subordinate to them be restrained by an order of injunction from arbitrarily summoning, arresting, incarcerating, and/or charging the applicants in relation to conveyancing transactions related to Title Number CR 47319 and Title Number CR 47319 pending the hearing and determination of the instant Application.
  2. The Applicant further sought orders to be granted anticipatory bail pending contemplated arrests or charges and/or any action by the Respondents and/or their agents and/or any other person who may be instructed by the Respondents to undertake any such arrest and/or adverse action.
  3. The Application is further supported by the Affidavit sworn by the  applicant on the grounds that determination of the matters revolving around the transactions to do with the parcel of land for which she is being investigated for, ought to be by way of civil proceedings.
  4. She stated that she acted as the Vendor’s and the Purchaser’s Advocates in a conveyancing transaction in respect to a parcel of land being Title Number CR 47319 and Title Number CR 47319. 4. THAT the Applicant was unable to proceed with the transaction after the Purchaser in the said transaction was unable to complete the transaction within the completion period and the Vendor collected the Original Title from the Applicant’s Offices.
  5.   THAT she has undertaken to refund the deposit paid by the Purchaser and has been in communication with the Purchaser.
  6.   THAT she  is fully aware that the Purchaser has been advised to report the matter at the Mombasa DCI Offices and the Respondents now intend to commence criminal proceedings against her on account of the said conveyancing transaction
  7. The Applicant is further apprehensive in her belief that the Respondents’ actions are malicious and intend to coerce her to surrender the Title Deed in her possession. She further anticipates that her Constitutional rights are going to be infringed upon based on the denial of a cash bail in a previous instance and the recent arrest where she was granted bail of Kshs. 5,000,000 past 2pm on a Friday afternoon; that did not take into account the procedural intricacies required in the approval of bail.
  8. The respondents filled grounds of opposition pointing out that they are carrying out their constitutional mandate.

ISSUE(S) FOR DETERMINATION:

  1. Whether the Applicant has demonstrated sufficient grounds to warrant issuance of the Orders sought.
  2. THE LAW:
  3. As rightly pointed out by Gikonyo, J, in the case of Paul Ole Kuyana & Another vs Director of Public Prosecution & 2 Others (Misc. Criminal Application No. 2 of 2021), anticipatory bail is a special relief in criminal cases and the core, character and the scope of anticipatory bail may be problematic requiring a careful stitching of the relief.  In Kenya, there are no specific provisions on anticipatory bail save for the constitutional provisions under the Bill of Rights.  The Constitution of Kenya 2010 provides for;
  4. Bail of arrested person under Article 49(1)(h)
  5. Appropriate relief under Article 23(3) for breach of the Bill of Rights.

7.In other jurisdictions for instant India, a common law jurisdiction, there exists a specific Section 438 on anticipatory bail which states as follows:-

  1. Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or to the court of session for a direction under this section that in the event of such arrest he shall be released on bail and the court may after taking into considerations, interalia the following factors namely:-
  2. The incident and gravity of the accusations
  3. The antecedents of the applicants including the facts as to whether he has previously undergone imprisonment or conviction by a court in respect of any cognizable offence.
  4. The probability of the applicant to flee from justice and
  5. Where the accusation has been made with the object of injuring or humiliating the applicant by having him arrested, either reject the application forthwith or issue an interim order for grant of anticipatory bail.

8.The Constitutional Court of India went further to consider the fundamental aspects of anticipatory bail to be of such importance and anchored on the right to life and liberty of a person.

9. As earlier stated, in Kenya, there are no specific provisions on anticipatory bail.  However, where the remedy has been considered, the courts have applied the threshold for an application for violation or threatened violation of rights under Article 23 and 165(3) of the Constitution.

10. Under Article 29 of the Constitution, every person has the right to freedom and security of the person, which includes the rights not to be (a) deprived of freedom arbitrarily or without just cause.

11, In dealing with an application of this nature, it is the constitutional duty of this court to go to the lengths and breadths of the constitution to protect the rights and fundamental freedoms of Kenyans where need be, but is should be alive to its obligation not to curtail the other organs of state from carrying out their constitutional mandate.  It is a very delicate balance which this court is expected to carry out. 

12. In the case cited by the 1st Respondent above , that is  of Republic vs Chief Magistrate Milimani & Another Exparte Tusker Mattresses Limited & 3 Others [2013]  eKLR  the relevant paragraph is as follows:

“However, before going to the merits of the instant application it is important to note that what is sought to be prohibited is the continuation of investigation other than a criminal trial.  The court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial…, the High Court ought not to interfere with the investigative process conferred upon the police or the Director of Public Prosecutions unless cogent reasons are given for doing so”

13.In the case of Mandiki Luyeye vs Republic [2015] eKLR, the court held thus;

“Similar sentiments were observed in the case of Eric Mailu vs Republic and 2 Others, Misc. Criminal Application No. 24 of 2013 in which it was emphasized that anticipatory bail would only issue when there was serious breach of a citizen’s rights by organs of the State.

Accordingly, it is salient that anticipatory bail is aimed at giving remedy for breach of infringement of fundamental constitutional rights in conformity with what the constitutional envisages constitutes protection of fundamental rights and freedoms of a citizen.  It cannot issue where an applicant labours under apprehension founded on unsubstantiated claims.  The fear of breach of fundamental rights must demonstrate the breach by acts and facts constituting the alleged breach”

  1. Section 193A of the Criminal Procedure Code states:-

“ 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.”

  1. The construction of the above provision as to concurrent proceedings was provided in the case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR that stated that:-

“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith.”

  1. The powers granted to the Office of the Director of Public Prosecutions are delineated in Article 157(6) of the Constitution of Kenya as follows:-

“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may--

  1. institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;”
  2. The above powers are further buttressed by guiding principles as set out in Section 4 of the ODPP Act that provides as follows: -

“In fulfilling its mandate, the Office shall be guided by the Constitution and the

following fundamental principles—

(a) the diversity of the people of Kenya;

(b) impartiality and gender equity;

(c) the rules of natural justice;

(d) promotion of public confidence in the integrity of the Office;

(e) the need to discharge the functions of the Office on behalf of the

people of Kenya;

(f) the need to serve the cause of justice, prevent abuse of the legal

process and public interest;

(g) protection of the sovereignty of the people;

(h) secure the observance of democratic values and principles; and

(i) promotion of constitutionalism.”

  1. The guidelines that aid the ODPP in making the decision to charge are set out in the Guidelines on the Decision to Charge (2019) that sets out the following:-

“3.2 The Two-Stage Test The Two Stage Test, comprising an ‘evidential test’ followed by a ‘public interest test’ should be applied: when all outstanding reasonable lines of enquiry have been pursued or; prior to an investigation being completed, where the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Two Stage Test whether in favour or against a prosecution.”

APPLYING THE TEST:

  1. I have considered the grounds  in the Notice of Motion filed by the Applicant and the 1st Respondent’s Written Submissions as well as the Grounds for Opposition.
  2. The Applicant sought the orders aforementioned based on the belief that the Respondents should be restrained in carrying out investigations regarding the subject matter in dispute in a civil proceeding, as they intend to utilise their prosecutorial powers to dispossess her of the Title Deed in an unlawful and malicious manner.
  3. The 1st Respondent’s position is, that the investigations carried out were strictly guided by the law, particularly Article 157(11) that requires that the powers conferred to the Office of the Director of Public Prosecutions be exercised with regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
  4. The 1st Respondent further states that the investigation was initiated by numerous complaints filed at the DCI Land Fraud Office in Mombasa with regards to the applicant’s apprehension to do with title No. CR 11673 subdivision 1270/I/MN that prompted investigations by the 2nd Respondent who diligently carried out investigations before submitting the file to the 1st Respondent for a decision to charge. It is their submission that the investigation and decision to charge were carried out independently and lawfully.
  5. While balancing these two positions the court must  bear in mind that all players in the criminal justice sector, the courts inclusive, ought to be careful not to breach any constitutional rights when there is a matter of public interest.  It is true that justice must be met, but it is justice to all parties.

24.In an earlier matter  of as similar nature  , I stated that’  What the investigators must be concerned with, are fair but through investigations and then they can be assured of a verdict which gives the appropriate justice.  I repeat here, that quick arrests which are highly published but not based on concreate evidence may win  a headline or so, and many social media likes , but these are like a house built  on quick sand which cannot stand the test of time , constitutional scrutiny and cross examination. 

25. I must emphasize that all players must play by the book and   if any side breaks the chain, and the case collapses  and often  times the court is left to bear the blame.

26. The court is minded not to derail or fix shackles on of the investigative or prosecution bodies.  Each entity must play their role unhindered.  The court only steps in when either side appears to be operating outside the constitutional mandate.  In this case, the Applicant says that she was arrested and held in custody for two days and eventually granted bond terms which could not be met in time.

  1. The court therefore finds that the application has merit and is allowed in the following terms;
  2. The Applicant is hereby admitted to anticipatory bail/bond.
  3. The  terms are a  bond  of Kshs. 500, 000 with 1 surety and a contact person and  in the alternative a cashbail of Kshs.200,000 with 1 contact person. 
  4. The Applicant to deposit her passport in court and she may not leave the jurisdiction without the knowledge and permission of the court.
  5. The security  or cash bail should be deposited within the next 21 days from today.
  6. The Applicant, if called upon , should  to avail herself to the Officers of the Respondents  co-operate with the investigators. 
  7. If and when the said investigations are complete and if a decision is made to charge the Applicant, then the respondents should  issue a bond or obtain summons  to attend court and the Applicant should obey. 
  8. The bond bail and cash bail will be processed in the High Court since there are no charges as yet.
  9. The investigations should be finalized within the next 6 months.

Dated, signed and delivered in Open Court/online through MS TEAMS,

this ………14th………day of ………APRIL…………………2025

HON. LADY JUSTICE W. K. MICHENI

JUDGE

In the presence of: 

MR NGIRI ...PROSECUTOR

MR GATHU

BEBORA COURT

…………………………….

HON. LADY JUSTICE W. K. MICHENI

JUDGE

    MUTHEE AND PARTNERS LLP ADVOCATES VS ODPP MUTHEE AND PARTNERS LLP ADVOCATES VS ODPP