1. Pursuant to leave granted on 30th April, 2024, the ex-parte Applicant filed this Notice of Motion dated 05th May, 2024 under Order 53 Rule 3 of the Civil Procedure Rules, 2010; and Sections 8 and 9 of the Law Reform Act. The Notice of Motion seeks: -
1) An Order of CERTIORARI to quash the decision by the 1st Respondent to charge the Ex-parte Applicant in relation to the award of tenders No.15/Kitchen Items, No.16/Utensils, No. 17/ Kitchen Items, No.18/Plates & Cups and No. 19 Kitchen/Cutlery & Other Items, as communicated through the letter dated 26th April, 2024.
2) An order of PROHIBITION to prohibit the 1st Respondent from preferring any charge/ or prosecuting the Ex-parte Applicant in relation to the award of tenders No.15/Kitchen Items, No.16/Utensils, No. 17/ Kitchen Items, No.18/Plates & Cups and No. 19 Kitchen/Cutlery & Other Items, as communicated through the letter dated 26th April, 2024.
3) Costs of the application.
2. The Application is supported by the grounds in the Statutory Statement and the Verifying Affidavit of Peter Gitaa Kori – both dated 28th April, 2024, the Further Affidavit dated 21st May, 2024 the Second Further Affidavit dated 28th May, 2024.
3. The Applicant’s case is that the 1stRespondent made the decision to charge him despite the Employment and Labour Relations Court reinstating him as the CEO of Bomas of Kenya, in ELRC PET No. E215 of 2023-Peter Gitaa Koria vs The Cabinet Secretary, Ministry of Gender, Culture, Arts and Heritage & others, following his suspension on the recommendation of the 2nd Respondent. That he had been suspended although he had not been charged with any offence.
4. The Applicant contends that the decision to charge him is motivated by malice, is mala fides, unreasonable, and unfair for reason that the motive is to remove him from as the CEO of Bomas of Kenya as demonstrated by the fact that he is the only person who is charged yet other staff of the entity were also involved in the impugned procurement; that whereas he is accused of failure to comply with procurement laws by engaging in a procurement process without an approved budget it is the Finance and Human Resources Committee, the Operations Committee of Bomas of Kenya, which in its meeting of 26th August, 2020, recommended that the Board approve the operationalization of Utamaduni Restaurant at Bomas of Kenya, along with the budget for the same; that thereafter the operationalization and budget was approved by the 213th Full Board meeting of Bomas of Kenya, held on 23rd September, 2020.
5. Further that whereas the Applicant is alleged to have failed to comply with procurement laws, by engaging in a procurement process without an approved plan, the procurement department of the Bomas of Kenya prepared and submitted annual procurement plans for the Financial Year 2020-2021 and submitted them to the Finance and Human Resources committee and the entire Board of Bomas of Kenya; that the Finance and Human Resource committee, in its 81st meeting, discussed the plan and recommended its approval by the full Board and that subsequently the procurement plan was ratified and approved by the full Board in its 213rd meeting.
6. The Applicant averred that upon his appointment in November 2019, he found a pre-existing Inspection & Acceptance Committee consisting of: Ms Melisa Sakwa - Chairlady, Cyrus Maluvu - member, and Alphonce Akondo which handled the procurement in question, which negates the allegation that he willfully failed to comply with procurement law, by failing to establish an Ad Hoc Inspection & Acceptance Committee.
7. The Applicant contends that he is a dedicated public servant who is being subjected to unfettered harassment through a fruitless criminal litigation that is intended to punish, inconvenience, prejudice, ridicule, embarrass, and frustrate him.
8. The application is vehemently opposed. By the Replying Affidavit sworn on 15th May 2024 by Alex Akula, a Senior Principal Prosecution Counsel, the 1st Respondent avers that application is fatally defective and should be dismissed with costs; that the decision to charge was informed by an independent review of the inquiry file it received from the 2nd Respondent; that it found sufficient evidence to warrant the prosecution of the Applicant herein and the case against the Applicant is based on the failure of the Bomas of Kenya Limited to comply with the Public Procurement and Asset Disposal Act, 2015 and the Regulations thereto regarding procurement of certain items valued at kshs8,587,831 during the Financial Year 2020/2021. The 1st Respondent avers that as provided under Section 44 and 48 of the Public Procurement and Asset Disposal Act, 2015 as read with Regulation 23 of the Public Procurement and Asset Disposal Regulations, 2020, the Applicant bears the overall mandate and responsibility to ensure that all procurements conducted by Bomas of Kenya Limited are within the law; that when he made a to the 2nd Respondent, the Applicant admitted that Bomas of Kenya Limited had no budgetary allocations for procurements, never appointed an Inspection and Acceptance Committee for certain items due to downscaling of staff due to Covid-19, and never verified or appointed a representative to verify the delivery of the procured items. Further, that the Board of Directors of Bomas of Kenya Limited denied that it received a request for approval from management or for re-allocating funds, in its 213rd meeting.
9. Also, that the Board of Directors of Bomas of Kenya Limited clarified that the approved budget for FY 2020/2021, dated 3rd August, 2020 lacked budgetary provisions for the procured items and which are the subject of the charges.
10. In regard to the argument that there was a pre-existing Inspection & Acceptance Committee appointed in 2012 under the Public Procurement and Disposal Act. 2005 (repealed), it is averred that the same ceased to function as it was not saved under the transitional provisions of the Public Procurement and Asset Disposal Act, 2015.
11. The 1st Respondent pointed out that the Applicant has neither alleged nor demonstrated that the 1st Respondent violated his constitutional rights and/or fundamental freedoms and/or acted ultra vires when making the decision to charge; that the application is intended to interfere with the 1st Respondent's statutory and constitutional mandate; that there is no evidence of mala fides, bias, or excess exercise of its powers and, that the Applicant has been accorded a fair trial and enjoys the presumption of innocence as guaranteed in the Constitution.
12. The 1st Respondent contends that should the orders sought be granted, it shall suffer prejudice as the right to exercise its constitutional mandate and it’s right to a fair trial will be lost. Also, that that the Applicant has not raised any serious legal or factual issues that warrant the court's orders as the issues raised are a defense that should be presented at the trial court; that the Applicant will have a chance to defend himself and that the balance of convenience favors the 1st Respondent.
13. On its part, the 2nd Respondent relied on a Replying Affidavit, sworn on 17th May, 2024 by Peter Khamala, a forensic investigator where he deposes that it received information that there was a scheme by officials of the Bomas of Kenya to embezzle and misappropriate public finds amounting to Kes. 8,587,831 through irregular award of tenders. That the 2nd Respondent conducted investigations and established that the Bomas of Kenya is said to have procured cutlery and crockery items through the Request for Quotation method during the financial year 2020/2021 wherein awards were issued to several companies and payments made. That the awards were made between 29th December 2020 and 18th May 2021 with regards to the following items: Quotation no. 17 for kitchen items dated 29th December 2020; Quotation no. 16 for Utensils dated 20th January 2021; Quotation no. 15 for kitchen items dated 4th February 2021; Quotation no. 19 for cutlery and other items dated 12th May 2021; and Quotation no. 18 for plates and cups dated 18th May 2021; that there was no approved budget for procurement of the said items in that financial year 2020/2021. That moreover, whereas the budget document clearly indicated that there was no allocation for purchases for the restaurant and the ex parte Applicant did not seek the approval of the Board of Directors to reallocate funds before commencing the procurement of the said items.
14. According to the 2nd Respondent the Bomas of Kenya paid a total of Kes. 4,364,868.60 from its main account No. 1108985580 held at KCB Bank to the following firms: Bamyoung A/c No. 0100006174447 Stanbic Bank (Kes1,035,000.00) on 03/03/2021; Dyesma A/c No. 01148708677500 Cooperative Bank (Kes. 999,964.75) on 05/05/2021; Grasonnel Ventures A/c No. 0161019000069 Credit Bank (Kes. 890,000) on 15/02/2021; and Arwin Gold Limited A/c No. 1157648940 KCB Bank Kes. 1,439,294.00 on 12/02/2021.
15. The procurement process was commenced after the goods were delivered, with delivery notes from Dyesma showing that the goods were delivered on 20th January, 2021 before the quotation was sent to the suppliers on 22nd January, 2021 and the invoice raised on 21st January, 2021. That so as to circumvent the threshold during floating of the tender for purchase of cutlery the institution engaged in splitting of tenders that for instance two (2) quotations for the same items were sent on 4th and 22nd January, 2021 as well as on 17th and 19th May 2021.
16. That as for the Quotation 17/Kitchen items the professional opinion was made on 11th January, 2021 a day before the opening of the bids; that delivery notes from Arwin Gold Limited show that goods were delivered on 12th January 2021 before the issuance of an LPO on 13th January 2021, indicating the procurement process was flawed.
17. For Quotation 15/Kitchen Items it is averred that delivery was on 1st February, 2021 before the request for quotation was sent to the supplier [Dyesma] on 8th February, 2021 meaning the procurement process was commenced after the goods were delivered; that the process for Quotation 16/utensil was commenced after the goods had been delivered as evidenced by the delivery note from Dyesma which shows that the goods were delivered on 20th January, 2021 and the invoice raised on 21st January 2021 yet the quotation was sent to the suppliers on 22nd January, 2021.
18. It is contended that immediately she received Kes 890,000 from the Bomas of Kenya, Grace Nyakinyua Gitahi, the proprietor of Grassonel Ventures, immediately transferred Kes. 125,000 to Moses Konga Chebon through her mobile wallet 0722976xxx, who in turn transferred Kes. 240,000.00 to Josiah Magut, the Chairman of the Bomas of Kenya, who then transferred Kes. 200,000.00 to Mr. Peter Gitaa, the CEO of Bomas of Kenya who is the ex-parte Applicant herein.
19. It is also contended that the ex-parte Applicant neglected to appoint an Inspection and Acceptance Committee to receive the goods, instead using an Inspection and Acceptance Committee appointed in 2016.
20. The ex-parte Applicant, as the Accounting Officer, has been accused of abdicating his responsibility of ensuring procurement of goods within the approved budget of the institution, contrary to Section 44 (2) (a) of the PPADA 2015 and that he also violated Section 53 (8) of the PPAD Act, which requires an Accounting Officer to ensure there are sufficient funds in its approved budget estimates before commencing any procurement proceeding. It is also contended the Applicant was also responsible for ensuring resources were used in accordance with existing government financial and procurement laws and regulations but to the contrary he authorized payment for a tender whose process was grossly flawed.
21. It is further averred that the Director of Public Prosecutions independently reviews evidence and makes the decision to charge, and it is not in the ex-parte Applicant's place to decide who else should be charged alongside him.
22. It is maintained that the ex-parte Applicant has not demonstrated that in arriving at the decision to investigate and prefer charges, the 1st Respondent exceeded its powers, acted irrationally, arbitrarily, un-procedurally , or breached the rules of natural justice and hence to quash the decision to charge the ex-parte Applicant and prohibit his prosecution will be tantamount to curtailing the statutory mandate of investigating and prosecuting authorities under the law.
Submissions
23. The Applicant’s written submissions are dated 24th May, 2024; the 1stRespondent’s are dated 12th June, 2024 and those of the 2nd Respondents 7th June, 2024. The Applicant was represented by MR Bryan Khaemba, MR Ken Nyaudi and MR Danstan Omari. The 1st Respondent was represented by Prosecution Counsel MR Akula and MR Matwa and the 2nd Respondent by State Counsel Mrs. Lena Litoro.
24. While acknowledging the mandate, powers, independence, and limitations of the 1st Respondent in regard to criminal proceedings, as provided in Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act, Counsel for the Applicant submitted that the criminal proceedings against the ex-parte Applicant were pre-planned and executed with a motive of isolating, discriminating, and persecuting him so as to prevent him from returning to office. That the nature of the charges against him speaks to the ulterior motives of the criminal proceedings in that they include offences not only unknown in law, but also arising from decisions made or ratified by the Board of Directors of the Bomas of Kenya Ltd. That ulterior motive is also evident in the timing of the decision to charge and the discriminative and selective manner in which they chose to prosecute him. Counsel reiterated the averments in the Notice of Motion and affidavits and urged this court to find the application merited and allow it as prayed.
25. For the 1st Respondent it was submitted as follows: that the charges brought against the Applicant are founded on specified provisions of the law indicated clearly in a manner understandable to the Applicant as to enable him to adequately respond as provided in Section 134 of the Criminal Procedure Code; that pursuant to Section 85(5) of the Criminal Procedure Code, the learned trial magistrate had the opportunity to look into the charges and was satisfied that the charge sheet disclosed an offence and caused the ex-parte Applicant to take plea, without any objection therefore, that the ex-parte applicant has failed to demonstrate any prejudice and hence his averments are mere allegations that ought to be dismissed.
26. On whether the Board of the Bomas of Kenya is a known procurement committee or organ under the procurement law, the 1st Respondent submitted that in executing the decision and resolutions of the Board of Bomas of Kenya, the Applicant violated the provisions of the Public procurement and Asset Disposal Act, 2015, more specifically Sections 44, 45, and 53 and the Public Procurement and Asset Disposal Regulations, 2020.
27. On whether the items procured were factored in the budget, Counsel for the 1st Respondent stated that the ex-parte Applicant had admitted that in the FY2020/2021 the Bomas of Kenya did not have an approved budget for the subject procurements; that re-allocation of funds is provided for under Section 43(2) of the Public Finance Management Act, but the ex-parte Applicant did not explore and seek authority from National Treasury to go that route. Counsel stated that Sections 44(2)(a), 45(3)(a), and 53(8) of the PPADA, 2015 places personal culpability upon the ex-parte Applicant for failing to ensure that the subject procurement was within the approved budget for FY 2020/2021 hence the ex-parte Applicant has not demonstrated that the 1st Respondent acted ultra vires in preferring the said charge.
28. As to whether there was a procurement plan for the items, the 1st Respondent stated that Regulation 40 (4) of the PPDR, 2020 places the responsibility upon the ex-parte Applicant to prepare the consolidated procurement plans in line with the approved budget, and submit the same for approval by the Board. Further, that Section 53(2) of the PPAD Act, 2015 provides that procurement plans shall be made within an approved budget. That however, the procurement plan approved by the Board of the Bomas of Kenya was in breach of Section 53(2) of the PPAD Act, 2015 as it was prepared without an approved budget, and the items procured were not factored in the approved procurement plan.
29. As to whether there was a requirement for appointment of an Inspection and Acceptance Committee Counsel submitted that the ex-parte Applicant was required to either, personally receive the goods or appoint an Inspection and Acceptance Committee to do so under Section 45(3)(b) of the PPADA, 2015 and Second Schedule of the PPDR, 2020. That Section 182(2) of the PPADA, 2015 only provided for specific offices to remain valid, and not the procurement committees in existence under the PPDA, 2005 (repealed).
30. As to whether the timing and the decision to charge was selective, Counsel submitted that the decision to charge was made taking into account the sufficiency of the evidence availed by the 2nd Respondent. That the ex-parte Applicant has not placed any material before this court to demonstrate that the decision to charge him was mala fides or made in bad faith.
31. Also, that he has not denied that he committed an offence during the subject procurement, but is instead lamenting that his colleagues have not been charged. Counsel argued that that such factors do not amount to discrimination or selective prosecution. For this Counsel relied on the cases of Kiboinett v Office of the Director of Public Prosecutions & 5 others (Constitutional Petition 01 of 2O23) [2023] KEHC 26378 (KLR) (8 December 2O23) (Ruling); and Mwangi v Director of Public Prosecutions & another (Anti-Corruption and Economic Crime Petition E005 of 202l) [2O22] KEHC 10573 (KIR) (Anti-Corruption and Economic Crime) (9 June 2022) (Judgment).
32. As to the issues raised by the ex-parte Applicant which are tantamount to mounting a defense, it was submitted that the best forum to canvas the issues and is in the trial court, but not in proceedings for judicial review. Further that in absence of allegations of threats or infringement of any of his rights the court should not review the merit of the case. Reliance was placed on the cases of SGS Kenya Limited v Energy Regulatory Commission & 2 others SC Petition No. 2 of 20l9 [2020] eKLR, and the case of Republic v Mombasa Liquor Licensing Court & 2 others (1994) eKLR.
33. Counsel urged this court to find that the ex-parte Applicant has not demonstrated that he is deserving of the orders sought and hence dismiss the application with costs to the 1st Respondent.
34. For the 2nd Respondent, reliance being placed on the case of Paul Ng'anq'a & 2 others -v-Attorney General & 3 others [2013] eKLR, it is submitted that courts are hesitant to interfere with the constitutional and statutory mandates of other institutions unless it is demonstrated that they have contravened the law; that in judicial review proceedings, an ex-parte Applicant ought to comply with Section 7 of the Fair Administrative Act, which sets out the various circumstances under which a party can seek Judicial Review orders and that it is not within the purview of a Judicial Review court to evaluate the sufficiency of evidence in support of a charge; that, it is a reserve of the trial court to examine the quality and sufficiency of any evidence gathered while Judicial Review is concerned with the decision-making process and not the merit of the decision itself. Reliance was placed on the case of Hussein Khalid and 16 others vs. Attorney General & 2 others, SC Petition No. 21 of 2017; [2019] eKLR; and S.C. Pet. No 39 & 40 of 2019, and the case of Praxidis Namoni Saisi & 7 Others v OPP & 2 Others.
35. On the averment of the charges being unknown in law, it was contended that all the ex-parte Applicant needed to do was to move the trial magistrate to strike out the charge for being incompetent rather than apply for judicial review. Reliance was placed on the case of William S. K. Ruto & Another v Attorney General [2010] eKLR).
36. Further, that the ex-parte Applicant has not demonstrated that the 1st Respondent acted in an illegal, irrational or un-procedural manner in making the decision to charge him so as to warrant the issuance of an order of certiorari to quash the said decision; that the parameters for grant of orders of prohibition were set out by the Court of Appeal in Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996; that a prohibition order is a discretionary remedy and is only tenable where a public body or official has acted in excess of its powers. The writ of Prohibition ought to be exercised sparingly and cautiously. Counsel cited the case of Republic v Director of Public Prosecutions & 2 others; the case of the case of Evanson Muriuki Kariuki (Interested Party); Ex parte James M. Kahumbura [2019] eKLR; and Total Kenya Limited & 9 Others V Director of Criminal Investigations Department & 3 others [2013] eKLR and contended that the writ of Prohibition cannot issue in the circumstances of this case and therefore this application should be dismissed with cost to the Respondents.
Issues For Determination
37. Having considered the pleadings, the affidavits, the rival submissions, the cases cited thereat and the law, I surmise the following to be the issues which arise for determination:-
• First, whether the 1st and 2nd Respondents’ decisions to investigate and to charge the Applicant are an abuse of their powers, and/or are motivated by ulterior motives as would warrant this court to issue orders to quash them.
• Second, whether the Applicant is entitled to the relief sought.
Analysis and Determination
38. The principles which should guide this court in the exercise of its discretion in an application for judicial review are now moot and I have no intention of reinventing the wheel. Previously judicial review orders could only be granted under the purview of the Law Reform Act and the Civil Procedure Rules and the court was confined to considering the process leading to the decision but not the merits of the decision. However Judicial review is now entrenched as a constitutional remedy under Article 23(3)(f) of the Constitution. pursuant to the provisions of Article 47 of the Constitution. Section 7 of the Fair Administrative Action Act which was enacted to give effect to Article 47 of the Constitution also provides an avenue for aggrieved persons to apply for a judicial review order.
39. There is now authority that when hearing a constitutional petition, a court is entitled to go into merit review. For instance in the case of Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, [2016] eKLR the Court of Appeal was emphatic that Article 47 of the Constitution as read with the grounds for review provided by Section 7 of the Fair Administrative Action Act reveals an implicit shift of judicial review to include aspects of merit review of administrative action, even though the reviewing court has no mandate to substitute its own decision for that of the administrator.
40. However, a party coming to court under the provisions of the Law Reform Act and the Civil Procedure Rules as has the ex Parte Applicant has must contend himself to the jurisdiction of the court in that regard. There the court cannot go beyond looking into the process. It cannot consider the merit of the decision. This was the decision of the Supreme Court in the case of John Florence Maritime Services Limited & another v Cabinet Secretary, transport and Infrastructure & 3 others [2021] eKLR where the court stated: -
“102. Despite the shift from common law to codification in the Constitution and the Fair Administrative Action Act, the purpose of 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. This finding is further reinforced by the fact that though the court in determining a judicial review application may look at certain aspects of merit and even set aside a decision, it may not substitute its own decision on merit but must remit the same to the body or office with the power to make that decision. In this regard we cite the decision of Lord Hailsham LC in Chief Constable of North Wales Police v Evans (1982) 3 All ER at pg 141 said of the remedy of judicial review as follows: 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. The court will not, however, on a 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 the law the court would, under the guise of preventing the abuse of power be guilty itself of usurping power.” [Emphasis added]
108. We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.
109. The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.”
41. Similarly, whereas this court is very alive to the principle that the DPP’s decision to charge is not absolute, as it can be fettered by the High Court, it is important to keep in mind that in view of the above decision of the Supreme Court, I cannot delve into the merit of the decision. It is however evident from the submissions of Counsel that what is in contention is actually the merits of that decision. That is why Counsel has gone into the merit or otherwise of the charges and so to speak done what amounts to adducing evidence to counter the charges.
42. 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 also not a ground for halting criminal proceedings by way of judicial review, in light of the purpose and limits of judicial review as explained earlier. It is only where the Applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process, that this Court will not hesitate in putting a halt to such proceedings, as that fall squarely within its mandate as a judicial review Court. The cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR isolated the following to be some of the aspects which 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;
h) Where the decision-maker is irrational and unreasonable.
43. In this case other than asserting that he was discriminated against because his colleagues were not charged and that the charges were brought so as to remove him from office the rest of the issues raised relate to contested issues of fact. That the tender was urgent hence the procurement method used; whether there was a budget or not and whether or not the procurement was approved by the Board and further, whether or not the Applicant should have appointed an Inspection and Acceptance Committee are all contested issues which require adduction of evidence and which this court cannot determine on the material before it and hence should be best left to the trial court to determine. This is more so in light of some of his own depositions such as, that there no budget, which would suggest that there was something amiss in the procurement and that therefore the decision to charge was reasonable.
44. As to whether or not the charges disclose an offence known in law, that again is an issue for the trial court and cannot form the basis to quash the proceedings. That the Applicant was charged but his colleagues were not cannot also be a ground to grant the orders sought as this court cannot dictate to the DPP on how it should conduct its case. It is trite that the court should always be cautious not to usurp the power of the DPP even where circumstances permit it to do a merit review of his decision. Certainly, this case is distinguishable from the cases of Diamond Hisham Lalji and another v Attorney General and 4 others (supra) and Prof Njuguna Ndung’u v Ethics and Anti-Corruption Commission and 3 others (supra) as those were constitutional petitions where the courts could delve into the merits of the evidence that the prosecution proposed to adduce to prove its case. So was the case of Bitange Ndemo v Director of Public Prosecutions & 4 others(supra).
45. More recently in the case of Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27th January 2023)(Judgment), the Supreme Court expressed itself as follows-
“75. In order for the court to get through this extensive examination of section 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & another v Lucy Muthoni Njora, Civil Appeal 486 of 2019; [2021] eKLR there is nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against article 259 of the Constitution which requires us to interpret it in a manner that inter alia advances the rule of law, permits the development of the law and contributes to good governance.
76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
77. For the avoidance of doubt, we see no reason to depart from our findings in SGS Kenya Limited v Energy Regulatory Commission & 2 others [supra] and John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others [supra].
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84. The following facts of the present Appeals are not contested. The appellants charges are hinged on their conduct in their capacity as members of the GDC Tender Committee for the acquisition of rig moves in tender No Ref GDC/HQS/086/2011-2012. More specifically the difference in the procurement of the rig-move services for the year 2011/2012 at a cost of Kshs 42,746,000/= from BCFCL while the previous year the same services were tendered at a cost of Kshs 19,550,000/= to the same company, BCFCL, at a cost of per rig move. It is also not controverted that the price was considered higher than comparable similar rig move services by the same provider, BCFCL, by other government institutions more specifically KenGen for rig move services at Olkaria and Eburru Geothermal fields vide tender no. KGN-OLK-179-2012 resulted in an agreement dated 5th February 2014 at a cost ranging between Kshs 13,565,040 and Kshs 24,429,600.
85. Due to this, DPP on the recommendation of EACC, elected to charge the appellants with various offences including wilful failure to comply with the law relating to procurement contrary to section 45(2)(b) as read with section 48 of the Anti-Corruption and Economic Crimes Act No 3 of 2003 and Inappropriate influence on evaluation contrary to section 38(1)(b) as read with 38(2)(a) of Public Procurement and Disposal Act and Abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act No 3 of 2003.
86. The 1st appellant’s defence against the charges preferred against her in count III and IV consists of contentions that she merely witnessed the signature of the accounting officer on whom section 27(3) of the Public Procurement and disposal Act 2005 and regulation 7(c) of the Public Procurement and Regulations 2006 places the duty to sign the contract.
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88. It is our considered opinion that these are not issues concerning the propriety or otherwise of the decision by the DPP to charge them. These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction. In Hussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR this court held that it was not for the High Court as a constitutional court to go through the merits and demerits of the case as that is the duty of the trial court. Similarly, and as we have held hereinabove, it not for the judicial review court to undertake the merits and demerits of a matter based on controverted evidence and contested interpretations of the law.
89. We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court in Hussein Khalid and 16 others v Attorney General & 2 others [supra] as follows; “[105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added]
90. From the circumstances of this case, we agree with the determination of the Court of Appeal that a distinction of the applicable procurement laws and whether the appellants participated in the tender process hence liable to prosecution is a determination best arrived at upon consideration of viva voce evidence and through cross examination of witnesses. We therefore come to the conclusion that the Court of Appeal did not err in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.”
46. From the foregoing rendition it would not be remiss of me to find and I do so find that the Applicant has not satisfied the conditions which would warrant this court to grant him the prayers sought. In the premises the Application is dismissed with costs to the Respondents.
It is so ordered.
Signed, dated and delivered virtually on this 25th day of July 2024.