REPUBLIC OF KENYA
1. The exparte applicants filed the notice of motion dated 15.9.23 seeking:
a. Declaration that the applicants were rightful and dutiful in the discharge of their constitutional mandate on the 27th March 2020 during patrol for enforcement of the Covid 19 nationwide curfew.
b. A declaration that the applicants did not have a premeditated involvement in the incident that resulted in the death of deceased.
c. An order of Certiorari to bring into the High Court for purposes of quashing the decision to charge the ex-parte applicants with the offence of murder and /or further charges in relation to the death of the deceased namely Mr. Hamisi Juma Idd Khaminwa.
d. An order of prohibition prohibiting the respondents from interfering in any way with the discharge of the constitutional mandate of the ex-parte applicants.
The application is based on the annexed affidavits of Peter Nzuyi Kioo the Deputy Officer in Charge Inuka Police Station (dated 15.9.23). Police Constable Muna Mohamed Soba, Police Constable Justus Wafula. Police Constable Paul Wagwa (dated 19.1.23) and Police Constable Ayub Otieno (dated 18.1.23). The affidavits contain similar facts.
2. In their respective affidavits the ex parte applicants deponed that they were assigned duty to patrol along Likoni -Diani road on 27.3.20 by the officer in-charge of their station Mr. Mathew Odongo. This was during day 1 of the Covid 19 curfew. They went to Likoni Ferry station at 7.00pm and there was a crowd of people and they instructed them to head home and that there was a confusion and as the said crowd rushed along the roads while others boarded and alighted from the ferry. While trying to maintain order, they heard a band behind them and on looking behind, they saw a motor cycle whose lights were on and an unknown person who had fallen beside it. The man then woke up and fled away before they reached him. They continued with the patrol. on 28.3.20 two men went to the station at 4.00pm and reported the death of one Hamisi Juma Idd Khaminwa to the OCS. The reportees told the OCS that the deceased sustained fatal injuries caused by police officers who beat him up. Investigations were commenced by police and the report was recorded by Mr. Peter Nzuyi who also gave the reportees an occurrence book number. (As per the OB extract PK 1) The family members were in a hurry to bury the body the same day.
3. They later received information that the burial was stopped by Haki Africa who wanted further investigations to be conducted in the matter. The said officer Nzuyi recovered the motor cycle of the deceased at the cemetery and post mortem was conducted at the cost general hospital. One month later the ex-parte applicants were summoned to record statements with Independent Police Oversight Authority (IPOA). The said statements were annexed to this application. the matters were later referred to DCI and the DPP. The DPP later decided to charge them with murder and they were summoned to appear before the High Court at Mombasa to take plea on 25.1.23. They said that there is no substantial evidence to charge them with murder. They denied that any of the officers in their team on the material day inflicted injuries on any member of public. They termed the prosecution as frivolous, vexatious and inspired by personal vendetta championed by 2nd respondent. They said they were in the course of their lawful duties at the material time.
4. The 1st respondent did not file any response to the application.
5. The 2nd respondent replied to the application vide the affidavit of James Magondu Njuhu the investigating officer working with IPOA. He told this court that the 2nd respondent is a civilian oversight over the work of the police and that its objectives are to hold police account able for their actions and ensure transparency and strive for professionalism and discipline. Further that is also its duty to oversight the duty of police to handle complaints. Mr. Njuhu further told the court that investigations of the death of Hamisi Iddi Khaminwa was assigned to him and he investigated the same and found that deceased lost his life on 27.3.20 and that from witness statements deceased was assaulted by the applicants and other officer and he sustained bodily injures and he later succumbed to the same while undergoing treatment at the Msambweni County Referral Hospital. He admitted that the ex-parte applicants recorded statements with IPOA and the Internal Affairs Unit -Mombasa. He said that the matter was referred to DPP who reviewed the file and advised that the ex-parte applicants be charged with murder of the said Hamisi vide their letter dated 26.10.22 ‘’JN1’. He said that the applicants are seeking that DPP be prohibited from making the decision to charge which is his constitutional mandate under Article 157 of the Constitution. He told this court that the ex-parte applicants have made arguments questioning the sufficiency of evidence and that he has been advised by his counsel on record that this is the essence of trial.
6. The 1st respondent neither filed a reply nor submissions herein. The 2nd respondent filed submissions dated in which it submitted that IPOA and DPP acted within their lawful Mandates and so the threshold for granting judicial review was not met. They cited case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019]. Also that granting the orders sought would amount to interfering with prosecutorial power of DPP under Article 157 of the constitution. IPOA further submitted that insufficiency of evidence does not fall within the purview of Judicial review and cited the case of Uwe Meixner & Another vs Attorney General (2005) eKLR Ezekiel A. Omolo v DPP & 2 others 2021 eKLR to support this point.
7. I have carefully considered the application, the reply and the annextures.
8. The issue for determination is whether the application had met the threshold for judicial review.
9. The exparte applicants are challenging the decision of DPP to charge them with murder contrary to section 203 of the Penal Code. I have perused the letter dated 26.10.22 (‘’JN 1’’) by DPP, it recommends that the exparte applicants be charged with murder as there is evidence of a dying declaration made by the deceased implicating them. The IPOA investigator told this court that he investigated this case and took witness statements and he was convinced that there was evidence to show that they assaulted the deceased and caused him fatal injuries.
10. Article 157 of the constitution empowers the director of public prosecutions (DPP) to evaluate the evidence before it and make the decision to charge. The said article provides that – ‘’
. | Director of Public Prosecutions
|
11. It is clear from the fore going that the DPP has the general prosecutorial powers in criminal matters save for court martial matters. Sub- Article 10 stresses the decisional independence of the office of the DPP.
|
|
12. Sub -Article 11 provides that in exercise of his duties the DPP must act in the public interest, interest of justice and the need to avoid or prevent abuse of court process. It thus follows that the decision to charge can only be challenged under the parameters set out in Article 157 (11) of the Constitution of Kenya.
13. Article 47 of the Constitution of Kenya provides for a right to fair administrative action to wit- 47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is Constitution of Kenya, 2010 33 likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
14. Section 6(a) of the said IPOA Act donates investigative powers to IPOA. It provides that-
6. | Functions of the Authority. The functions of the Authority shall be to—
|
15. The ex-parte applicants sought the writs of certiorari and prohibition against the DPP on account of the insufficiency of evidence to charge them. The writs of prohibition and certiorari are usually issued to check the decision making process of bodies whose decisions can be subjected to judicial review as was held in the case of Uwe Meixner & Another vs Attorney General (2005) eKLR. In the case of Ezekiel, A Omolo v DPP & 2 others 2021 eKLR it was held that in determining whether the DPP followed due process the court should be careful not to usurp the constitutional powers and statutory mandate of IPOA and can only intervene where the discretion was exercised unlawfully. In the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019], it was held that” In our view, it would be within the mandate of an investigative body to receive complaints and to investigate them. Such bodies or entities cannot be faulted for acting on the complaints as in so doing, they would be acting within their constitutional and statutory duty. It was stated in Josephat Koli Nanok & another v Ethics and Anti-Corruption Commission (2018) eKLR, that by undertaking investigations an investigating entity does not violate any constitutional rights, and that violation of rights may only occur in the manner in which the investigative mandate is executed. In that event, the Petitioner would be under an obligation to demonstrate that his or her rights have been violated by the manner of investigation and attendant processes.
16. It is trite law under Section 109 of the Law of evidence Act that he who alleges must prove. No evidence has been placed before this court to show that the DPP acted capriciously or whimsically in arriving at the decision to charge the ex-parte applicants herein. The exparte applicants alleged that IPOA acted maliciously in investigating this matter. The IPOA investigator told this court that he acted in accordance with their mandate under Section 6(a) and section 29 (1) (a) of the Independent Policing Oversight Authority Act in investigating the shooting of deceased by the ex-parte applicants and in making his conclusion and that there is no evidence that he received any material gain or that he acted out of vengeance during the said investigations. I do not see any iota of evidence that the IPOA acted in a malicious manner in carrying out its investigative duties in this case. The application herein raises the issue of the weight of evidence whereas Judicial review looks at the issue of decision making by a public body or person and violation of fundamental rights of the exparte applicants. The issue of the weight of evidence which exparte applicants have cited herein is a matter for trial and thus not within the purview of Judicial review as correctly submitted by the 2nd respondent.
17. The application is does not meet the threshold for granting the writs of prohibition and certiorari and I proceed to dismiss it.
18. The stay orders dated 4.8.23 are hereby lifted.
19. Each party to bear its own costs.
Delivered virtually Via Teams Platform in the presence of:
Court Assistant- Aphline
Parties - Absent