Introduction
1. The Petition dated 11 th September 2023 is supported by the Petitioner’s affidavit in support of even date.
2. The Petitioner alleges that the criminal investigation against its employees (Interested Parties herein) by the 1 st Respondent has been instigated at the behest of a Plaintiff in a commercial dispute so as to intimidate and compel the Petitioner to settle the said commercial dispute involving the said Plaintiff and the Petitioner. The Petitioner avers that the 1 st Respondent’s actions are thus in violation of the Constitution, in particular, Articles 10(1), 10(2), 22, 25, 27(1) & (2), 35(1) & (2), 40, 47, 50(1) and (2) and 73 of the Constitution.
3. Consequently, the Petitioner seeks the following reliefs:
i. Pending the hearing and determination of this Petition, an order be issued restraining the Respondents by themselves, their servants, or agents from investigating, summoning, or arresting the Petitioner's officials and/ or former or current employees or in any way howsoever investigating any matter in respect of the RFP issued in January 2016 for the Petitioner's 2 nd Agency for ATL/BTL Creatives and Digital Services pending the hearing and determination of this Petition.
ii. A declaration be issued that the 1 st and 2 nd Respondents investigations relating to the Petitioner's award of the 2 nd Agency for ATL/BTL Creatives and Digital Services have breached the Petitioner's and Interested Parties' fundamental rights under Articles 10(1), 10(2), 22, 25, 27(1) & (2), 35(1) & (2), 40, 47, 50(1) and (2) and 73 of the Constitution.
iii. A declaration be issued that the 1 st and 2 nd Respondents' breach of the Petitioner's and Interested Parties' fundamental rights singularly and cumulatively has caused damage to the Petitioner and the Interested Parties.
iv. A declaration that the continued investigation of the Petitioner and the Interested Parties by the Respondents in relation to commercial disputes emanating from the 2016 Petitioner's RFP for the 2 nd Agency for ATL/BTL Creative and Digital services and/ or dispute between Safaricom Plc and Transcend Media Group Limited is an infringement and threat to the Petitioner's right to a fair trial as guaranteed under Article 50 of the Constitution.
v. The Respondents, either by themselves, their servants and agents, are restrained from investigating, summoning or arresting the Petitioner's employees or former employees' or in any way howsoever from investigating any matter in respect of the dispute between the Petitioner and Transcend Media Group Limited relating to the 2016 2 nd Agency A TL/BTL Creative and Digital Services.
vi. Any other relief or such other orders as this Court shall deem fit and just to grant to the Petitioners.
vii. Costs of this Petition be awarded to the Petitioner.
Petitioner’s Case
4. The Petitioner, through its Senior Manager- Litigation, Legal Services and Secretarial Services, Daniel Ndaba aver that vide a letter dated 5 th September 2023, the 1 st Respondent notified its Chief Executive Officer that it had summoned the Interested Parties on various dates between 11 th September 2023 to 15 th September 2023 to record statements. He notes that the 1 st Respondent had sent a similar communication prior on 27 th July 2023.
5. He depones that the summonses were in relation to investigations into the alleged offences of conflict of interest and theft of intellectual property rights in regard to the tender and award of the Petitioner’s creative and digital agency tender issued on 25 th January 2016. He notes that the tender was dubbed ‘the request for proposal (RFP) for the 2 nd Agency for Safaricom ATL/BTL Creative and Digital Service s’.
6. He contends that the 1 st Respondent’s investigation relates to a matter that is unknown to the Petitioner and the Interested Parties. This is because the 1 st Respondent claims that the tender required a company that could develop software designed to satisfy the needs of the procuring entity yet the Petitioner’s tender was for advertising.
7. He depones that the Petitioner protested the 1 st Respondent’s summons for the interested parties to appear 11 th September 2023-13 th September, 2023. Earlier on, the Petitioner had appeared through Counsel and sought response to its letter dated 28 th July 2023 which sought information on:
a) The comprehensive and thorough investigations ordered by the 2 nd Respondent were in fact conducted as the Petitioner was never contacted in connection with any such investigations.
b) If any such investigations were conducted (to the exclusion of the Petitioner), what the outcome thereof was and the resultant report.
c) The 2 nd Respondent, upon receipt of any resultant investigations file, issued any further directions and requested for a copy of the said directions.
8. The Petitioner contends that its request for information, through its Counsel, has been futile as the 1 st Respondent has refused and neglected to disclose the information requested. He in fact states that the Petitioner was surprised when it received the summon letter dated 5 th September 2023 as the 1 st Respondent had not responded to their correspondence seeking the information.
9. It is contended that it is palpable that the 1 st Respondent intends to withhold crucial information that is material for purposes of addressing the issues raised and for preparing for the scheduled interviews and recording of statements. He informs that the Petitioner is apprehensive that the statements that will be recorded during these interviews will be used as evidence in Court.
10. Further to this, he postulates that the matter being investigated by the 1 st Respondent is the subject matter in High Court Commercial & Tax Division case No. HCCOMM No. E014 of 2022 between Transcend Media Group Limited verses the Petitioner & 10 Others . He states that in the matter, the plaintiff, Transcend Media Group alleges that:
a) The Petitioner along with Saracen Media Kenya Limited (Saracen) and Fieldstone Helms Limited (Fieldstone) conspired with its employees to utilize the Plaintiff's intellectual property and confidential information to bolster the Saracen's bid.
b) The Petitioner induced and caused the resignation of its employees thereby occasioning breach of contract in complete disregard to clauses on noncompete, confidentiality and intellectual property ownership.
c) The Petitioner, through its employees and servants, conspired with Saracen and Fieldstone to deny it a fair tendering process.
d) The Petitioner unlawfully and fraudulently disqualified it from the Tender and awarded the same to Saracen.
e) The Petitioner conducted a tendering process devoid of probity, fairness, accountability, level playing field and in complete disregard to the rules on procurement.
f) The Petitioner engaged in unfair trade practices contrary to the express provisions of the Competition Act.
11. In view of this, the Plaintiff who is believed to be the complainant herein seeks the following orders against the Petitioner:
a) A declaration that the Petitioner and its named employees' actions amounted to inducement of breach of contract on part of its key employees.
b) A declaration that the Defendants' actions were unlawful interference in the Plaintiffs economic interests and occasioned it loss and damage.
c) A declaration that the Petitioner failed to undertake a fair and transparent tendering process for the 2014 ATL and BTL sole agency and the 2 nd ATL/BTL Creative and Digital services agency.
d) Injunctive orders to restrain the Petitioner, Saracen and Fieldstone from advertising, rolling out and executing the Blaze Kenya campaign through print, out of home communications including billboards, posters, radio, television and all digital platforms and mediums including Twitter, Facebook, websites or in any way howsoever.
e) Monetary claim/awards of a sum of Kshs. 300,000,000.00 being exemplary damages, Kshs.208,734,336.00 for loss of retainer fees for the Blaze contract, Kshs. 288,000,000.00 damages for loss of agency fees and commissions for the Blaze campaign; Kshs.19,560,240.00 damages being the pitching/ tendering/bidding expenses for the ATL/BTL Creative and Digital Agency, Kshs.9,882,500.00 being loss of tendering pitching costs for 2013 sole Safaricom Agency Contract, Kshs.446,400,000.00 for loss of retainer fees for the 2014 sole A TL/BTL advertising agency, and Kshs.396,000,000.00 being loss of commission and agency fees for 2014 sole ATL/ BTL advertising agency.
f) General damages for loss of reputation stemming from bad publicity generated by the Petitioner for awarding the A TL/BTL Creative and Digital Agency to Saracen.
g) General damages for inducement of breach of contract.
h) Interests and costs.
12. He contends that the subject matter of the commercial suit and the purported investigation herein, is the same, as revolves around the question whether there was any conflict of interest and breach of intellectual property rights relating to the tendering and award of the Petitioner's Creative and Digital Services Agency, a fact the Petitioner has persistently informed the 1 st Respondent about.
13. Considering this, he asserts that the instant investigation is being used to coerce the Petitioner to settle the commercial suit by unlawfully intimidating its current and former employees by seeking information which can be used as evidence in the prosecution of the Commercial suit. That notwithstanding, he asserts that the Petitioner will explicitly ventilate on the scope of the RFP, the details of how the evaluation of the bids was carried out and the criteria used to award Saracen the contract in the commercial suit.
14. He informs that upon receipt of the Petitioner's letter dated 16 th July 2021, the 2 nd Respondent wrote to the Inspector General of Police on 2 nd August 2021 directing a comprehensive and thorough investigation be undertaken on the allegations raised in the Petitioner's letter and to forward the resultant investigations file for further directions. He states that the Petitioner has not received any response from either the 1 st and 2 nd Respondent since.
15. In view of the foregoing, he emphasizes that the 1 st Respondent's unreasonable refusal to avail the requested information to enable the Interested Parties prepare to respond to the summonses undermines the rule of law and the principles and values enshrined in the Constitution. Further, infringes on the rights guaranteed to the Petitioner under 10(1), 10(2), 22, 25, 27(1) & (2), 35(1) & (2), 40, 47, 50(1) and (2) and 73 of the Constitution of the Constitution.
16. According to him, the 1 st Respondent’s conduct and refusal to avail the requested information and insistence on interviewing the Interested Parties makes it manifest that it has criminalized the commercial dispute which is a blatant abuse of power and the criminal justice system.
1 st and 2 nd Respondents’ Case
17. In opposition to the Petition, these Respondents’ filed their Replying Affidavit sworn by CPL Charles Maroa on 13 th October 2023.
18. He depones that vide a letter dated 25 th June 2021, they were directed to investigate an issue that was raised by Awa Muhindi of O&M Law LLP acting on behalf of Thomas Omanga, Timla Tieng and Christine Muchedu. The concern was about possible violations of their clients' rights as a result of an ongoing investigation at Nairobi area Regional Criminal Investigation office under Inquiry File No.14 of 2016 .
19. He states that the subject matter of the concern was in respect to a complaint that was lodged by one, Lai Muthoka the Executive Director of Transcend Media Group (TMG) on 25 th May 2016. The complainant in that matter had lodged a complaint of intellectual property theft by the Petitioner herein in collusion with employees of TMG led by the said Thomas Omanga.
20. He depones that the complaint letter particularized that:
a) TMG was invited to participate in the Petitioner’s Creative and Digital Agency Tender on 25 th January, 2016 during which it appointed Thomas Omanga, the company's client service director at the time as agency lead on the project.
b) TMG successfully submitted their proposal via the Petitioner’s S-HUB Portal on 1 st February, 2016.The proposal contained the communication strategy and creative execution of the brief as presented by the Petitioner.
c) On 17 th February, 2016, TMG made their first presentation to the Petitioner’s Evaluation Panel and left behind both a hard copy and CD of their presentation.
d) They then proceeded to the second stage of the bid process which involved the Petitioner’s evaluation team making a visit to the complainant’s offices, and the company was invited to make a presentation to the Petitioner’s Executive Committee on 2 nd March, 2016 in which the following bidders were shortlisted:
i. Transcend Media Group
ii. Brainwave Communications
iii. Saracean Media in collaboration with 5ive Ltd & Bean
e) Before the Petitioner communicated the outcome of the Tender, details emerged that there were some underhand moves happening. Thomas Omanga who had taken some time off was sighted at the Petitioner along with Christine Muchendu (both being employees of TMG) attempting to sell TMG's body of work in their private capacity.
f) Further TMG alleged that Safaricom had reached out to Saracen and coerced them to work with TMG personnel to irregularly move their body of work to Saracen and use it as Safaricom's Communication Campaign strategy to the youth segment.
g) The complainant alleged that a manipulation of their copyrighted work was being illegally used in the Petitioner's advertising campaign dubbed "Blaze Kenya".
21. He avers that the complainant made a follow up on the investigations vide letters 27 th April 2021 and 10 th June 2021.The complainant stressed that the alleged offences emanating from the subject tendering process are covered under the Copy right Act, Bribery Act and Anti-corruption and Economics Crimes Act. He states that these offences fall within the 1 st Respondent’s jurisdiction.
22. Following this, the 1 st Respondent issued summons vide letters dated 29 th June 2021 and 15 th July 2021, to the Petitioner, to appear at the 1 st Respondent’s office at Nairobi Area. He states that these summonses were not responded to by the Petitioner.
23. He avers that subsequently, the Petitioner through its Counsel, MMC ASAFO wrote to the 1 st Respondent on 16 th July 2021 raising concerns on the subject investigations in which they sought the 2 nd Respondent’s intervention, arguing that the subject is purely a civil matter that should not invite police action. This correspondence triggered the 2 nd Respondent’s communication dated 2 nd August 2021 addressed to the Inspector General highlighting the issues raised by the Petitioner and directing comprehensive investigations to be undertaken and findings be forwarded to enable the making of a decision.
24. He depones that to ensure a fair investigation, they summoned the Interested Parties herein, who had played various roles in the tendering and evaluation processes, vide summons through the Petitioner’s Chief Executive officer. He asserts that this was meant to offer the Petitioner an opportunity to address the concerns through recorded statements which would aid the 1 st Respondent to complete investigations and 2 nd Respondent in making a fair and objective review of the investigation file. He states that these summonses were also not honoured by the Petitioner.
25. He contends that the Petitioner’s consistent failure to honour the summons has been an impediment in addressing the concerns in the investigation. He informs that on 1 st December 2022 the investigation file, Inquiry file No.14 of 2016 , was forwarded to the 2 nd Respondent without the Petitioner’s and Interested Parties input.
26. He depones that the 2 nd Respondent vide a letter dated 11 th April 2023, advised on areas to be covered by way of further investigations before the office could make a decision to charge or not to charge. He points out that among the areas highlighted was, recording of statements from the Petitioner’s representatives.
27. He states that in compliance with the 2 nd Respondent’s directions, they prepared and served summons to the Interested Parties through the Petitioner in letters dated 24 th July 2023 and 5 th September 2023. He states that the summons were likewise not honoured by the Petitioner.
28. It is asserted that the 2 nd Respondent is empowered in law to give directions to the Inspector General with respect to an investigation of any particular offence while the National Police Service Act mandates the police to investigate any complaint lodged against any person including the Petitioner.
29. He stresses that the summons were issued to enable the cited allegations to be investigated. He points out that whether or not the investigations will unearth material information which will be the basis of a decision to instigate prosecution of the Petitioner or any of the Interested Parties is a matter which is premature at this stage.
30. In light of this, he emphasizes that the 1 st and 2 nd Respondents have acted in good faith and in the interest of justice. He contends that the Petitioner’s allegations of violation of fundamental freedoms is merely speculative, frivolous, misleading and a waste of the Court’s time. He maintains that the prayers sought are merely geared towards causing further delay and frustrating the ongoing investigation and likely to prejudice the interests of justice.
3 rd Respondents’ Case
31. The 3 rd Respondent’s response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s and Interested Parties Submissions
32. Njoroge, Regeru and Company Advocates for the Petitioner filed submissions dated 19 th September 2024 where Counsel identified the issues for discussion as: whether the investigations have violated the Petitioner's and Interested Parties constitutional rights and whether the Respondents, their servants be restrained from summoning, arresting and or investigating any matter in respect of the Petitioner's 2 nd Agency ATL/BTL creative and digital services .
33. Counsel answering in the affirmative in the first issue submitted that in the circumstances of this case, this Court’s intervention is imperative owing to the abuse of power and violation of fundamental rights since the investigations were made in bad faith with the aim of achieving an ulterior motive. Counsel recapped that the genesis of the matter was the complaint lodged by TMG’s Executive Director Lai Muthoka against the Petitioner, in relation to the award of the Petitioner's Creative and Digital Agency tender dubbed as "request for proposal (RFP)" for the 2 nd Agency for Safaricom's ATL/BTL Creative and Digital Services, to Saracen Media Kenya Limited. Counsel noted that this issue as deponed by the Petitioner is the subject of numerous commercial suits before the High Court Commercial and Tax Division.
34. Counsel contended that while the Constitution under Article 245(4) and Sections 24 and 28 of the National Police Service Act empowers the Inspector General and the 1 st Respondent to investigate crime, such power is not absolute. Counsel emphasized that they are obligated to conduct their mandate with the highest standards of competence and integrity.
35. In this matter, Counsel pointed out that the 1 st Respondent ought to have understood the nature of the alleged offence before instigating the investigations. Accordingly, Counsel faulted the Respondents decision-making process arguing that it did not adhere to the constitutional and statutory principles.
36. For this reason, Counsel urged that this Court should interfere and issue appropriate orders. To buttress this point reliance was placed in Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR where it was held that:
“The Court on the other hand is required to oversee that the DPP and the inspector General undertake these functions in accordance and compliance with the law If it comes to the attention of the Court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice and restrain above of power that may lead to harassment or persecution.”
37. Like dependence was placed in Republic -vs- Wellington Kihato & 3 Others Ex Parle Kenyatta University & 3 Others, Miscellaneous Application 61 of 2017 .
38. Counsel further submitted that the 1 st Respondent had violated the Petitioner’s and Interested Parties rights under Article 35 of the Constitution for failing to provide the information sought as detailed in the Petitioner’s affidavit. To support this point reliance was placed in Mercy Nyawade vs Banking Fraud Investigations Department & 2 others [2017] eKLR where it was held that:
“Right to Information laws and policies create mechanisms whereby an individual can access information that may have an impact on them, in order to meaningfully exercise other tights in the Bill of Rights.”
39. Counsel contended moreover that the Respondents had violated the Petitioner’s right to a fair hearing under Article 50(1) of the Constitution by the extent of the delay in completing the investigations and making a decision on whether to charge on not, coupled up with the fact that their investigations had been marred with secrecy on account of their deliberate failure to give crucial information and documentation to enable the Petitioner and Interested Parties effectively prepare an appropriate defense on the allegations levelled against them.
40. Reliance was placed in Robert Waweru Maina & 4 others v Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR) where it was held that:
“It is therefore settled law that all persons who come to any court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution in Article 25(c) placed a bar on limitation f the right to a fair trial in civil and criminal matters.”
41. Equally, Counsel submitted that the Respondents had violated the rights under Article 10, 27, 28, 29, 40, 47 and 73 of the Constitution. Counsel proclaimed that the investigations had been marred with secrecy, a lack of transparency and accountability, in breach of the rule of law. Counsel added that the Respondents had failed to act diligently and expeditiously by allowing themselves to be dragged into a purely commercial dispute.
42. On the second issue, Counsel submitted that while the operation of Section193A of the Penal Code is appreciated and acknowledged, it was underscored that the Respondent's investigations are highly malicious as are aimed at forcing the Petitioner's hand in the commercial dispute before the High Court Commercial and Tax Division, which is the bedrock of their investigations.
43. To buttress this point, reliance was placed in Kuria & 3 others (supra) where it was held that this Court is empowered to ensure that its process do not degenerate into tools for personal score-settling or vilification and on issues which would otherwise violate the fundamental principles of justice which underlie the society’s sense of fair play and decency. Equally that, the machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. Accordingly, Counsel submitted that the Respondents actions in sum are illegal, highly irrational and a blatant abuse of the rights and fundamental freedoms of the Petitioner and Interested Parties.
1 st and 2 nd Respondents Submissions
44. Senior Principal Prosecution Counsel, Achochi Henry Nyabuto filed submissions dated 20 th November 2024.
45. On an opening note, Counsel underscored that the Petitioner and Interested Parties had not been charged for offences related to the impugned investigation neither a decision to charge by the 2 nd Respondent made. Counsel stressed that these parties were acting out of the apprehension of the purported charges thus matter is premature and without any basis.
46. Counsel submitted that Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed. Consequently, Counsel submitted that the outcome of the investigations can either exonerate or incriminate the Petitioner and the Interested Parties. Nonetheless, it was maintained that summoning of the Petitioner and Interested Parties was in line with the law and principles of natural justice thus their rights were not violated as alleged.
47. To buttress this point reliance was placed in Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR where it was held that:
“Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the petitioner’s right unless the investigations have been conducted unprocedurally and/or for ulterior motive.”
48. Comparable reliance was placed in Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012) eKLR .
49. Further to this, Counsel submitted that the Petition offends the doctrine of ripeness as the suit was filed on an anticipatory basis. Counsel thus urged that this Court should refrain from entertaining the matter. To support this point reliance was placed in Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020) eKLR where it was noted that:
“The doctrine focuses on the time when a dispute is presented for adjudication. Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies”.
50. Similar reliance was placed in National Assembly of Kenya & another v Institute for Social Accountability & 8 others [2017] KECA 170 (KLR) .
51. The Petitioner was also accused of breaching the doctrine of exhaustion as failed to exhaust the administrative remedies available to it. Dependence was placed in Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR where it was held that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brew.”
52. Like dependence was placed in Anthony Miano & others v Attorney General & others [2021] eKLR and Douglas Maina Mwangi vs Kenya Revenue Authority and Another HC Constitutional Petition No. 528 of 2013 .
53. Furthermore, Counsel submitted that the 2 nd Respondent had not executed his mandate under Article 157 (6) of the Constitution and therefore there were no violations of the Constitution and the law. Equally, Counsel reiterated that the police are legally obligated to investigate alleged offences and thus investigation of the Petitioner does not amount to a violation of fundamental rights as long as it is done within the parameters of the law. Dependence was placed in Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) [2022] KEHC 43 (KLR) where it was held that:
“The power to stop or quash police investigations on a suspected offender must be exercised sparingly and with circumspection and in the rarest of rare cases and the court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power to quash investigations is immense since it amounts to exonerating a suspect before trial. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution”.
54. Parallel reliance was placed in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR, Republic vs The Chief Magistrate, Milimani and 2 Others Ex. P Tusker Mattresses Ltd and 3 Others HC Misc. Civil Application No. 179 of 2012 and Kuria & others versus AG [2002] 2 KLR 69 .
Analysis and Determination
55. It is my considered opinion that the issues that arise for determination are as follows:
i. Whether the Petition is premature and offends the doctrine of ripeness.
ii. Whether the Respondents decision to initiate an investigation into the Petitioner’s employees (Interested Parties) was, in the circumstance of this case motivated by malice.
iii. Whether the investigation amounts to violation of the constitutional rights of the Petitioner and Interested Parties under Articles 10 (1) & (2), 22, 25, 27 (1), 35 (1) & (2), 40, 47, 50 (1) & (2) and 73 of the Constitution.
iv. Whether the Petitioner and Interested Parties are entitled to the relief sought.
Whether the Petition is premature and offends the doctrine of ripeness.
56. The 1 st and the 2 nd Respondent submitted that the Petitioner and Interested Parties had not been charged with any offences relating to the impugned inves
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1. The Petition dated 11 th September 2023 is supported by the Petitioner’s affidavit in support of even date.
2. The Petitioner alleges that the criminal investigation against its employees (Interested Parties herein) by the 1 st Respondent has been instigated at the behest of a Plaintiff in a commercial dispute so as to intimidate and compel the Petitioner to settle the said commercial dispute involving the said Plaintiff and the Petitioner. The Petitioner avers that the 1 st Respondent’s actions are thus in violation of the Constitution, in particular, Articles 10(1), 10(2), 22, 25, 27(1) & (2), 35(1) & (2), 40, 47, 50(1) and (2) and 73 of the Constitution.
3. Consequently, the Petitioner seeks the following reliefs:
i. Pending the hearing and determination of this Petition, an order be issued restraining the Respondents by themselves, their servants, or agents from investigating, summoning, or arresting the Petitioner's officials and/ or former or current employees or in any way howsoever investigating any matter in respect of the RFP issued in January 2016 for the Petitioner's 2 nd Agency for ATL/BTL Creatives and Digital Services pending the hearing and determination of this Petition.
ii. A declaration be issued that the 1 st and 2 nd Respondents investigations relating to the Petitioner's award of the 2 nd Agency for ATL/BTL Creatives and Digital Services have breached the Petitioner's and Interested Parties' fundamental rights under Articles 10(1), 10(2), 22, 25, 27(1) & (2), 35(1) & (2), 40, 47, 50(1) and (2) and 73 of the Constitution.
iii. A declaration be issued that the 1 st and 2 nd Respondents' breach of the Petitioner's and Interested Parties' fundamental rights singularly and cumulatively has caused damage to the Petitioner and the Interested Parties.
iv. A declaration that the continued investigation of the Petitioner and the Interested Parties by the Respondents in relation to commercial disputes emanating from the 2016 Petitioner's RFP for the 2 nd Agency for ATL/BTL Creative and Digital services and/ or dispute between Safaricom Plc and Transcend Media Group Limited is an infringement and threat to the Petitioner's right to a fair trial as guaranteed under Article 50 of the Constitution.
v. The Respondents, either by themselves, their servants and agents, are restrained from investigating, summoning or arresting the Petitioner's employees or former employees' or in any way howsoever from investigating any matter in respect of the dispute between the Petitioner and Transcend Media Group Limited relating to the 2016 2 nd Agency A TL/BTL Creative and Digital Services.
vi. Any other relief or such other orders as this Court shall deem fit and just to grant to the Petitioners.
vii. Costs of this Petition be awarded to the Petitioner.
Petitioner’s Case
4. The Petitioner, through its Senior Manager- Litigation, Legal Services and Secretarial Services, Daniel Ndaba aver that vide a letter dated 5 th September 2023, the 1 st Respondent notified its Chief Executive Officer that it had summoned the Interested Parties on various dates between 11 th September 2023 to 15 th September 2023 to record statements. He notes that the 1 st Respondent had sent a similar communication prior on 27 th July 2023.
5. He depones that the summonses were in relation to investigations into the alleged offences of conflict of interest and theft of intellectual property rights in regard to the tender and award of the Petitioner’s creative and digital agency tender issued on 25 th January 2016. He notes that the tender was dubbed ‘the request for proposal (RFP) for the 2 nd Agency for Safaricom ATL/BTL Creative and Digital Service s’.
6. He contends that the 1 st Respondent’s investigation relates to a matter that is unknown to the Petitioner and the Interested Parties. This is because the 1 st Respondent claims that the tender required a company that could develop software designed to satisfy the needs of the procuring entity yet the Petitioner’s tender was for advertising.
7. He depones that the Petitioner protested the 1 st Respondent’s summons for the interested parties to appear 11 th September 2023-13 th September, 2023. Earlier on, the Petitioner had appeared through Counsel and sought response to its letter dated 28 th July 2023 which sought information on:
a) The comprehensive and thorough investigations ordered by the 2 nd Respondent were in fact conducted as the Petitioner was never contacted in connection with any such investigations.
b) If any such investigations were conducted (to the exclusion of the Petitioner), what the outcome thereof was and the resultant report.
c) The 2 nd Respondent, upon receipt of any resultant investigations file, issued any further directions and requested for a copy of the said directions.
8. The Petitioner contends that its request for information, through its Counsel, has been futile as the 1 st Respondent has refused and neglected to disclose the information requested. He in fact states that the Petitioner was surprised when it received the summon letter dated 5 th September 2023 as the 1 st Respondent had not responded to their correspondence seeking the information.
9. It is contended that it is palpable that the 1 st Respondent intends to withhold crucial information that is material for purposes of addressing the issues raised and for preparing for the scheduled interviews and recording of statements. He informs that the Petitioner is apprehensive that the statements that will be recorded during these interviews will be used as evidence in Court.
10. Further to this, he postulates that the matter being investigated by the 1 st Respondent is the subject matter in High Court Commercial & Tax Division case No. HCCOMM No. E014 of 2022 between Transcend Media Group Limited verses the Petitioner & 10 Others . He states that in the matter, the plaintiff, Transcend Media Group alleges that:
a) The Petitioner along with Saracen Media Kenya Limited (Saracen) and Fieldstone Helms Limited (Fieldstone) conspired with its employees to utilize the Plaintiff's intellectual property and confidential information to bolster the Saracen's bid.
b) The Petitioner induced and caused the resignation of its employees thereby occasioning breach of contract in complete disregard to clauses on noncompete, confidentiality and intellectual property ownership.
c) The Petitioner, through its employees and servants, conspired with Saracen and Fieldstone to deny it a fair tendering process.
d) The Petitioner unlawfully and fraudulently disqualified it from the Tender and awarded the same to Saracen.
e) The Petitioner conducted a tendering process devoid of probity, fairness, accountability, level playing field and in complete disregard to the rules on procurement.
f) The Petitioner engaged in unfair trade practices contrary to the express provisions of the Competition Act.
11. In view of this, the Plaintiff who is believed to be the complainant herein seeks the following orders against the Petitioner:
a) A declaration that the Petitioner and its named employees' actions amounted to inducement of breach of contract on part of its key employees.
b) A declaration that the Defendants' actions were unlawful interference in the Plaintiffs economic interests and occasioned it loss and damage.
c) A declaration that the Petitioner failed to undertake a fair and transparent tendering process for the 2014 ATL and BTL sole agency and the 2 nd ATL/BTL Creative and Digital services agency.
d) Injunctive orders to restrain the Petitioner, Saracen and Fieldstone from advertising, rolling out and executing the Blaze Kenya campaign through print, out of home communications including billboards, posters, radio, television and all digital platforms and mediums including Twitter, Facebook, websites or in any way howsoever.
e) Monetary claim/awards of a sum of Kshs. 300,000,000.00 being exemplary damages, Kshs.208,734,336.00 for loss of retainer fees for the Blaze contract, Kshs. 288,000,000.00 damages for loss of agency fees and commissions for the Blaze campaign; Kshs.19,560,240.00 damages being the pitching/ tendering/bidding expenses for the ATL/BTL Creative and Digital Agency, Kshs.9,882,500.00 being loss of tendering pitching costs for 2013 sole Safaricom Agency Contract, Kshs.446,400,000.00 for loss of retainer fees for the 2014 sole A TL/BTL advertising agency, and Kshs.396,000,000.00 being loss of commission and agency fees for 2014 sole ATL/ BTL advertising agency.
f) General damages for loss of reputation stemming from bad publicity generated by the Petitioner for awarding the A TL/BTL Creative and Digital Agency to Saracen.
g) General damages for inducement of breach of contract.
h) Interests and costs.
12. He contends that the subject matter of the commercial suit and the purported investigation herein, is the same, as revolves around the question whether there was any conflict of interest and breach of intellectual property rights relating to the tendering and award of the Petitioner's Creative and Digital Services Agency, a fact the Petitioner has persistently informed the 1 st Respondent about.
13. Considering this, he asserts that the instant investigation is being used to coerce the Petitioner to settle the commercial suit by unlawfully intimidating its current and former employees by seeking information which can be used as evidence in the prosecution of the Commercial suit. That notwithstanding, he asserts that the Petitioner will explicitly ventilate on the scope of the RFP, the details of how the evaluation of the bids was carried out and the criteria used to award Saracen the contract in the commercial suit.
14. He informs that upon receipt of the Petitioner's letter dated 16 th July 2021, the 2 nd Respondent wrote to the Inspector General of Police on 2 nd August 2021 directing a comprehensive and thorough investigation be undertaken on the allegations raised in the Petitioner's letter and to forward the resultant investigations file for further directions. He states that the Petitioner has not received any response from either the 1 st and 2 nd Respondent since.
15. In view of the foregoing, he emphasizes that the 1 st Respondent's unreasonable refusal to avail the requested information to enable the Interested Parties prepare to respond to the summonses undermines the rule of law and the principles and values enshrined in the Constitution. Further, infringes on the rights guaranteed to the Petitioner under 10(1), 10(2), 22, 25, 27(1) & (2), 35(1) & (2), 40, 47, 50(1) and (2) and 73 of the Constitution of the Constitution.
16. According to him, the 1 st Respondent’s conduct and refusal to avail the requested information and insistence on interviewing the Interested Parties makes it manifest that it has criminalized the commercial dispute which is a blatant abuse of power and the criminal justice system.
1 st and 2 nd Respondents’ Case
17. In opposition to the Petition, these Respondents’ filed their Replying Affidavit sworn by CPL Charles Maroa on 13 th October 2023.
18. He depones that vide a letter dated 25 th June 2021, they were directed to investigate an issue that was raised by Awa Muhindi of O&M Law LLP acting on behalf of Thomas Omanga, Timla Tieng and Christine Muchedu. The concern was about possible violations of their clients' rights as a result of an ongoing investigation at Nairobi area Regional Criminal Investigation office under Inquiry File No.14 of 2016 .
19. He states that the subject matter of the concern was in respect to a complaint that was lodged by one, Lai Muthoka the Executive Director of Transcend Media Group (TMG) on 25 th May 2016. The complainant in that matter had lodged a complaint of intellectual property theft by the Petitioner herein in collusion with employees of TMG led by the said Thomas Omanga.
20. He depones that the complaint letter particularized that:
a) TMG was invited to participate in the Petitioner’s Creative and Digital Agency Tender on 25 th January, 2016 during which it appointed Thomas Omanga, the company's client service director at the time as agency lead on the project.
b) TMG successfully submitted their proposal via the Petitioner’s S-HUB Portal on 1 st February, 2016.The proposal contained the communication strategy and creative execution of the brief as presented by the Petitioner.
c) On 17 th February, 2016, TMG made their first presentation to the Petitioner’s Evaluation Panel and left behind both a hard copy and CD of their presentation.
d) They then proceeded to the second stage of the bid process which involved the Petitioner’s evaluation team making a visit to the complainant’s offices, and the company was invited to make a presentation to the Petitioner’s Executive Committee on 2 nd March, 2016 in which the following bidders were shortlisted:
i. Transcend Media Group
ii. Brainwave Communications
iii. Saracean Media in collaboration with 5ive Ltd & Bean
e) Before the Petitioner communicated the outcome of the Tender, details emerged that there were some underhand moves happening. Thomas Omanga who had taken some time off was sighted at the Petitioner along with Christine Muchendu (both being employees of TMG) attempting to sell TMG's body of work in their private capacity.
f) Further TMG alleged that Safaricom had reached out to Saracen and coerced them to work with TMG personnel to irregularly move their body of work to Saracen and use it as Safaricom's Communication Campaign strategy to the youth segment.
g) The complainant alleged that a manipulation of their copyrighted work was being illegally used in the Petitioner's advertising campaign dubbed "Blaze Kenya".
21. He avers that the complainant made a follow up on the investigations vide letters 27 th April 2021 and 10 th June 2021.The complainant stressed that the alleged offences emanating from the subject tendering process are covered under the Copy right Act, Bribery Act and Anti-corruption and Economics Crimes Act. He states that these offences fall within the 1 st Respondent’s jurisdiction.
22. Following this, the 1 st Respondent issued summons vide letters dated 29 th June 2021 and 15 th July 2021, to the Petitioner, to appear at the 1 st Respondent’s office at Nairobi Area. He states that these summonses were not responded to by the Petitioner.
23. He avers that subsequently, the Petitioner through its Counsel, MMC ASAFO wrote to the 1 st Respondent on 16 th July 2021 raising concerns on the subject investigations in which they sought the 2 nd Respondent’s intervention, arguing that the subject is purely a civil matter that should not invite police action. This correspondence triggered the 2 nd Respondent’s communication dated 2 nd August 2021 addressed to the Inspector General highlighting the issues raised by the Petitioner and directing comprehensive investigations to be undertaken and findings be forwarded to enable the making of a decision.
24. He depones that to ensure a fair investigation, they summoned the Interested Parties herein, who had played various roles in the tendering and evaluation processes, vide summons through the Petitioner’s Chief Executive officer. He asserts that this was meant to offer the Petitioner an opportunity to address the concerns through recorded statements which would aid the 1 st Respondent to complete investigations and 2 nd Respondent in making a fair and objective review of the investigation file. He states that these summonses were also not honoured by the Petitioner.
25. He contends that the Petitioner’s consistent failure to honour the summons has been an impediment in addressing the concerns in the investigation. He informs that on 1 st December 2022 the investigation file, Inquiry file No.14 of 2016 , was forwarded to the 2 nd Respondent without the Petitioner’s and Interested Parties input.
26. He depones that the 2 nd Respondent vide a letter dated 11 th April 2023, advised on areas to be covered by way of further investigations before the office could make a decision to charge or not to charge. He points out that among the areas highlighted was, recording of statements from the Petitioner’s representatives.
27. He states that in compliance with the 2 nd Respondent’s directions, they prepared and served summons to the Interested Parties through the Petitioner in letters dated 24 th July 2023 and 5 th September 2023. He states that the summons were likewise not honoured by the Petitioner.
28. It is asserted that the 2 nd Respondent is empowered in law to give directions to the Inspector General with respect to an investigation of any particular offence while the National Police Service Act mandates the police to investigate any complaint lodged against any person including the Petitioner.
29. He stresses that the summons were issued to enable the cited allegations to be investigated. He points out that whether or not the investigations will unearth material information which will be the basis of a decision to instigate prosecution of the Petitioner or any of the Interested Parties is a matter which is premature at this stage.
30. In light of this, he emphasizes that the 1 st and 2 nd Respondents have acted in good faith and in the interest of justice. He contends that the Petitioner’s allegations of violation of fundamental freedoms is merely speculative, frivolous, misleading and a waste of the Court’s time. He maintains that the prayers sought are merely geared towards causing further delay and frustrating the ongoing investigation and likely to prejudice the interests of justice.
3 rd Respondents’ Case
31. The 3 rd Respondent’s response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s and Interested Parties Submissions
32. Njoroge, Regeru and Company Advocates for the Petitioner filed submissions dated 19 th September 2024 where Counsel identified the issues for discussion as: whether the investigations have violated the Petitioner's and Interested Parties constitutional rights and whether the Respondents, their servants be restrained from summoning, arresting and or investigating any matter in respect of the Petitioner's 2 nd Agency ATL/BTL creative and digital services .
33. Counsel answering in the affirmative in the first issue submitted that in the circumstances of this case, this Court’s intervention is imperative owing to the abuse of power and violation of fundamental rights since the investigations were made in bad faith with the aim of achieving an ulterior motive. Counsel recapped that the genesis of the matter was the complaint lodged by TMG’s Executive Director Lai Muthoka against the Petitioner, in relation to the award of the Petitioner's Creative and Digital Agency tender dubbed as "request for proposal (RFP)" for the 2 nd Agency for Safaricom's ATL/BTL Creative and Digital Services, to Saracen Media Kenya Limited. Counsel noted that this issue as deponed by the Petitioner is the subject of numerous commercial suits before the High Court Commercial and Tax Division.
34. Counsel contended that while the Constitution under Article 245(4) and Sections 24 and 28 of the National Police Service Act empowers the Inspector General and the 1 st Respondent to investigate crime, such power is not absolute. Counsel emphasized that they are obligated to conduct their mandate with the highest standards of competence and integrity.
35. In this matter, Counsel pointed out that the 1 st Respondent ought to have understood the nature of the alleged offence before instigating the investigations. Accordingly, Counsel faulted the Respondents decision-making process arguing that it did not adhere to the constitutional and statutory principles.
36. For this reason, Counsel urged that this Court should interfere and issue appropriate orders. To buttress this point reliance was placed in Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR where it was held that:
“The Court on the other hand is required to oversee that the DPP and the inspector General undertake these functions in accordance and compliance with the law If it comes to the attention of the Court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice and restrain above of power that may lead to harassment or persecution.”
37. Like dependence was placed in Republic -vs- Wellington Kihato & 3 Others Ex Parle Kenyatta University & 3 Others, Miscellaneous Application 61 of 2017 .
38. Counsel further submitted that the 1 st Respondent had violated the Petitioner’s and Interested Parties rights under Article 35 of the Constitution for failing to provide the information sought as detailed in the Petitioner’s affidavit. To support this point reliance was placed in Mercy Nyawade vs Banking Fraud Investigations Department & 2 others [2017] eKLR where it was held that:
“Right to Information laws and policies create mechanisms whereby an individual can access information that may have an impact on them, in order to meaningfully exercise other tights in the Bill of Rights.”
39. Counsel contended moreover that the Respondents had violated the Petitioner’s right to a fair hearing under Article 50(1) of the Constitution by the extent of the delay in completing the investigations and making a decision on whether to charge on not, coupled up with the fact that their investigations had been marred with secrecy on account of their deliberate failure to give crucial information and documentation to enable the Petitioner and Interested Parties effectively prepare an appropriate defense on the allegations levelled against them.
40. Reliance was placed in Robert Waweru Maina & 4 others v Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR) where it was held that:
“It is therefore settled law that all persons who come to any court are entitled to a fair hearing whether the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution in Article 25(c) placed a bar on limitation f the right to a fair trial in civil and criminal matters.”
41. Equally, Counsel submitted that the Respondents had violated the rights under Article 10, 27, 28, 29, 40, 47 and 73 of the Constitution. Counsel proclaimed that the investigations had been marred with secrecy, a lack of transparency and accountability, in breach of the rule of law. Counsel added that the Respondents had failed to act diligently and expeditiously by allowing themselves to be dragged into a purely commercial dispute.
42. On the second issue, Counsel submitted that while the operation of Section193A of the Penal Code is appreciated and acknowledged, it was underscored that the Respondent's investigations are highly malicious as are aimed at forcing the Petitioner's hand in the commercial dispute before the High Court Commercial and Tax Division, which is the bedrock of their investigations.
43. To buttress this point, reliance was placed in Kuria & 3 others (supra) where it was held that this Court is empowered to ensure that its process do not degenerate into tools for personal score-settling or vilification and on issues which would otherwise violate the fundamental principles of justice which underlie the society’s sense of fair play and decency. Equally that, the machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. Accordingly, Counsel submitted that the Respondents actions in sum are illegal, highly irrational and a blatant abuse of the rights and fundamental freedoms of the Petitioner and Interested Parties.
1 st and 2 nd Respondents Submissions
44. Senior Principal Prosecution Counsel, Achochi Henry Nyabuto filed submissions dated 20 th November 2024.
45. On an opening note, Counsel underscored that the Petitioner and Interested Parties had not been charged for offences related to the impugned investigation neither a decision to charge by the 2 nd Respondent made. Counsel stressed that these parties were acting out of the apprehension of the purported charges thus matter is premature and without any basis.
46. Counsel submitted that Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed. Consequently, Counsel submitted that the outcome of the investigations can either exonerate or incriminate the Petitioner and the Interested Parties. Nonetheless, it was maintained that summoning of the Petitioner and Interested Parties was in line with the law and principles of natural justice thus their rights were not violated as alleged.
47. To buttress this point reliance was placed in Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR where it was held that:
“Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the petitioner’s right unless the investigations have been conducted unprocedurally and/or for ulterior motive.”
48. Comparable reliance was placed in Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012) eKLR .
49. Further to this, Counsel submitted that the Petition offends the doctrine of ripeness as the suit was filed on an anticipatory basis. Counsel thus urged that this Court should refrain from entertaining the matter. To support this point reliance was placed in Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020) eKLR where it was noted that:
“The doctrine focuses on the time when a dispute is presented for adjudication. Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies”.
50. Similar reliance was placed in National Assembly of Kenya & another v Institute for Social Accountability & 8 others [2017] KECA 170 (KLR) .
51. The Petitioner was also accused of breaching the doctrine of exhaustion as failed to exhaust the administrative remedies available to it. Dependence was placed in Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR where it was held that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brew.”
52. Like dependence was placed in Anthony Miano & others v Attorney General & others [2021] eKLR and Douglas Maina Mwangi vs Kenya Revenue Authority and Another HC Constitutional Petition No. 528 of 2013 .
53. Furthermore, Counsel submitted that the 2 nd Respondent had not executed his mandate under Article 157 (6) of the Constitution and therefore there were no violations of the Constitution and the law. Equally, Counsel reiterated that the police are legally obligated to investigate alleged offences and thus investigation of the Petitioner does not amount to a violation of fundamental rights as long as it is done within the parameters of the law. Dependence was placed in Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) [2022] KEHC 43 (KLR) where it was held that:
“The power to stop or quash police investigations on a suspected offender must be exercised sparingly and with circumspection and in the rarest of rare cases and the court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power to quash investigations is immense since it amounts to exonerating a suspect before trial. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution”.
54. Parallel reliance was placed in Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR, Republic vs The Chief Magistrate, Milimani and 2 Others Ex. P Tusker Mattresses Ltd and 3 Others HC Misc. Civil Application No. 179 of 2012 and Kuria & others versus AG [2002] 2 KLR 69 .
Analysis and Determination
55. It is my considered opinion that the issues that arise for determination are as follows:
i. Whether the Petition is premature and offends the doctrine of ripeness.
ii. Whether the Respondents decision to initiate an investigation into the Petitioner’s employees (Interested Parties) was, in the circumstance of this case motivated by malice.
iii. Whether the investigation amounts to violation of the constitutional rights of the Petitioner and Interested Parties under Articles 10 (1) & (2), 22, 25, 27 (1), 35 (1) & (2), 40, 47, 50 (1) & (2) and 73 of the Constitution.
iv. Whether the Petitioner and Interested Parties are entitled to the relief sought.
Whether the Petition is premature and offends the doctrine of ripeness.
56. The 1 st and the 2 nd Respondent submitted that the Petitioner and Interested Parties had not been charged with any offences relating to the impugned inves
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