INTRODUCTION
1. The Appellant in this matter applied to leave to commence private prosecution which was denied by the learned Honourable Z. Abdul, Senior Resident Magistrate in MCCR, MISC NO. E641 OF 2022, Milimani Law Courts. The appellant dissatisfied with the decision of the court filed the instant appeal raising the following grounds;-
i. THAT the Learned Magistrate erred in law and in fact in failing to apply the guiding principles and conditions enunciated by the courts in the grant of leave to conduct private prosecution.
ii. THAT the Learned Magistrate erred in law and in fact in failing to find and rule that there was cogent, substantial, credible and preponderance of evidence warranting the grant of leave to conduct private prosecution.
iii. THAT the Learned Magistrate erred in law and in fact by failing to exercise her discretion judiciously thereby prejudicing the Appellant's legitimate expectation to fair and just judicial process.
iv. THAT the Learned Magistrate erred in law and in fact in failing to appreciate the length of time taken by the Police and office of the Director of Public Prosecution in investigating and/or concluding the complaints by the Appellant contrary to the right to fair administrative action as espoused under Article 47 of the Constitution of Kenya.
v. THAT the learned Magistrate erred in law and in fact by misapplying the law to the facts whereas the Appellant had met all the conditions required for grant of leave to conduct a private prosecution.
vi. THAT the Learned Magistrate erred in law and in fact in failing to appreciate that the office of the Director of Public Prosecution and the Police did not sufficiently discharge their burden of proof in light of the threshold set out in the FLORICULTURE CASE (MISC C.A NO. 114 OF 1997]
vii. THAT the Learned Magistrate erred in Law in disregarding the documents presented by the Appellant before the court and /or selectively considering evidence by the Appellant thereby unfairly narrowing the evidence of the Appellant.
ISSUES FOR DETERMINATION
2. The issue for determination that arise from the grounds raised by the appellant are;-
a). whether the learned Hon Magistrate correctly applied the principles that guide courts in determining whether or not to grant leave to a party to initiate private prosecution.
b), whether the learned Hon Magistrate properly exercised her discretion in declining to grant leave to commence private prosecution in light of the material placed before the court.
APPELLANT’S SUBMISSIONS
3. The Appellant submitted that the appeal is founded on the Petition of Appeal dated 21st October 2022 and sought a finding that the trial court erred both in law and fact by declining to grant leave for the institution of private prosecution proceedings against the 1st Respondent.
4. The Appellant argued that as a first appellate court, this Court is obligated to reconsider both the factual and legal issues arising from the proceedings before the trial court and determine whether the learned magistrate arrived at the correct conclusion.
5. In support of the applicable appellate principles, the Appellant relied on KAZUNGU KATANA SULUBU V ISSA RAMIYAH & 2 OTHERS [2019] eKLR, wherein the court stated:
"The principles that ought to guide an appellate court of first instance where an appellant seeks to appeal the findings of a lower court on fact are well settled. It is trite that the appellate court will always be reluctant to interfere with the trial magistrate's findings unless it can be clearly demonstrated that in reaching their decision, the magistrate relied on the wrong principles, took into account irrelevant details or failed to consider important matters that ought to have been paid regard to..."
6. The appellant submitted that the appeal revolves around two issues, namely whether the Appellant met the threshold required for leave to institute private prosecution and whether the trial court arrived at the correct decision.
7. On the issue of private prosecution, the appellant submitted that he satisfied all the conditions required by law for the grant of leave to commence private prosecution.
8. The appellant relied on TAJ MALL LIMITED V SIESTA INVESTMENT & 3 OTHERS [2019] eKLR, wherein the court held:
"There is no dispute that any person may be granted leave to institute private prosecution provided such person is able to establish certain conditions precedent. These conditions were set out in the case of Floriculture International Limited & Others -vs- The Attorney General Nairobi High Court Miscellaneous Civil Application No.114 of 1997 and were reiterated, with modifications, in Nairobi High Court Petition No.339 of 2013 Isaac Oluochier -vs- Stephen Kalonzo Musyoka & 217 Others. In this case, Mumbi Ngugi J citing Kuloba J (as he was then) in the Floriculture Case held that for a person to be granted leave to institute private prosecution, he must establish that he had made a complaint to the police and had accorded reasonable opportunity for the police to investigate the case; that the Director of Public Prosecutions had been seized of the case and had declined to institute or conduct criminal proceedings; that the failure by the State agencies to prosecute is culpable, unreasonable and without any legally justifiable reason; that unless the suspect is prosecuted there is likelihood there will be failure of public and private justice; that the person instituting private prosecution has suffered special, exceptional and substantial injury or damage that is personal to him and is not motivated by malice, politics or some other ulterior consideration devoid of good faith, and finally, that there was demonstrable ground that grave social evil will occur if the police and the Director of Public Prosecutions have acted capriciously, corruptly and in a biased manner that the only remedy is to grant leave to the aggrieved party to institute private prosecution."
9. The appellant further submitted that the facts presented before the lower Court satisfied the foregoing criteria.
10. He further argued that a report concerning the alleged offences committed by the 1st Respondent was made to the DCI on or about 13th April 2012, a fact admitted by both the DPP and the DCI before the lower court.
11. The appellant contended that despite the lapse of approximately thirteen years since the complaint was made, no criminal charges had been preferred against the 1st Respondent.
12. The appellant further argued that the last correspondence from the ODPP was in 2021 and that no communication had since been made regarding the progress of the matter.
13. According to the appellant, although the ODPP was fully seized of the complaint, it failed to exercise its constitutional mandate under Article 157(6) of the Constitution and acted unreasonably and arbitrarily by exhibiting disinterest and lethargy in the prosecution of the matter.
14. The appellant further submitted that the failure by the ODPP to prosecute the matter despite being afforded sufficient time is without reasonable cause or legal justification.
15. The appellant went on to state that the evidence tendered before the magistrate established a prima facie criminal case and that such evidence was reinforced by the judgment in Malindi ELC Suit No. 139 of 2011, which declared the Appellant to be the lawful owner of L.R. KILIFI/JIMBA/332.
16. The appellant contended that the title documents held by the 1st Respondent could therefore only have been acquired through fraud or other unlawful means.
17. According to the appellant the failure to prosecute the 1st Respondent has occasioned a miscarriage of justice and undermined the objectives of criminal law by allowing the alleged perpetrator to avoid accountability.
18. The appellant argued that the application for leave to institute private prosecution was necessitated by the failure of the ODPP to act, as contemplated under Section 28 of the Office of the Director of Public Prosecutions Act.
19. The appellant further submitted that the appellant’s standing to initiate private prosecution arises from the fact of being the registered proprietor of L.R. KILIFI/JIMBA/332 and the victim of the alleged fraudulent conduct.
20. In support of that proposition, reliance was placed on ALBERT GACHERU KIARIE T/A WAMAITU PRODUCTIONS VS JAMES MAINA MUNENE & 7 OTHERS [2016] eKLR, where the court held:
"I do not take issue with the Petitioner having vested interest in the matter because this is the basis upon which he likely suffered injury and is therefore testament to the fact that he indeed has standing to allow him seek and be granted permission to prosecute the case."
21. The appellant therefore submitted that the continued failure to prosecute the 1st Respondent perpetuates a grave social evil because an alleged offence of fraud resulted in the violation of the Appellant’s property rights while the alleged offender has not been held accountable.
22. The appellant denied the Respondents’ contention that the request for private prosecution was motivated by malice or ill will.
23. On whether the lower court arrived at the correct decision, the appellant submitted that the learned magistrate failed to exercise discretion judiciously and disregarded evidence presented to the court demonstrating that the legal threshold for private prosecution had been satisfied.
24. Although the grant of leave under Section 88 of the Criminal Procedure Code is discretionary, the appellant argued that such discretion must be exercised fairly and in accordance with the principles of equity and justice.
25. According to the appellant, the learned magistrate identified the applicable legal principles but failed to apply them to the facts before the court and instead dismissed the application on the grounds that there had been no inordinate delay by the ODPP and that the Appellant was not the proper complainant.
26. Regarding delay, the Appellant submitted that the trial court erred by relying on the ODPP’s letter dated 29th July 2021 requesting a duplicate file from the DCI as evidence that sufficient time had not elapsed.
27. The appellant argued that investigations had already been conducted, witness statements recorded and evidence gathered long before that correspondence.
28. The appellant contended that no criminal charges were brought despite the evidence disclosing a prima facie offence. The Appellant further pointed out that approximately five years had elapsed since the said letter without any meaningful action by the ODPP and that the learned magistrate herself acknowledged the absence of further correspondence. The Appellant therefore maintained that the delay was both inordinate and unexplained.
29. In support of that position, the Appellant relied on CYRUS SHAKHALANGA KHWA JIRONGO V SOY DEVELOPERS LTD & 9 OTHERS [2021] eKLR, wherein the Supreme Court stated:
"The question of delay with respect to the lodging of criminal prosecutions has been addressed by our Courts in several matters. The leading persuasive decisions on the subject are the High Court cases of Githunguri v Republic (1986) KLR 1 and Republic v Attorney General & Another Ex Parte Ng'eny (2001) KLR 612 which both Superior Courts relied on."
30. The Appellant further relied on Githunguri v Republic (1986) KLR 1, where the Court stated:
"In this instance the delay is said to have been nine years, six years and four years. The Court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the Court the reason but it would have made us knowledgeable if told..."
31. The Appellant also relied on Republic V Attorney General & Another Ex Parte Ngeny (2001) KLR 612, where the Court stated:
"In the case before us, the delay was nine years. No attempt has been made to explain it. ... Nine years is too long a delay."
32. On the issue of locus standi, the appellant submitted that as the lawful registered proprietor of the disputed property and a person whose constitutional right to property under Article 40 has allegedly been violated by the intended accused, he possesses the requisite standing to initiate criminal proceedings against the intended accused person.
33. The appellant finally submitted that this was a proper case for appellate intervention. In support of that proposition, reliance was placed on MBOGO V SHAH [1968] EA 93, where the Court held:
"I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or ... or it failed to take into consideration matters which it should have taken into consideration and in so doing, arrived at a wrong decision."
34. The appellant contended that the learned magistrate failed to take into account important aspects of the evidence and consequently misapplied the principles governing private prosecution, thereby arriving at an erroneous decision.
35. It was further submitted that this Court, as the guardian of constitutional rights and freedoms, ought to intervene where a public authority has neglected its legal obligations. The appellant therefore urged this Honourable Court to allow the appeal and grant leave to institute private prosecution proceedings against the 1st Respondent.
1 st RESPONDENT’S SUBMISSIONS
36. The 1st Respondent opposed the Appeal and urged this Honourable Court to uphold the decision of the trial court declining to grant leave to institute private prosecution proceedings.
37. The Respondent submitted that the Appellant had failed to satisfy the legal threshold required for the grant of leave to commence a private prosecution and had equally failed to establish any basis upon which the learned magistrate’s decision ought to be overturned.
38. He further contended that the appellant had not adduced cogent evidence to prove that any serious offences had been committed so as to warrant private prosecution.
39. The Respondent argued that the appellant by way of the application sought to be the investigator, witness and prosecutor by relying on his own documents to institute criminal proceedings.
40. The Respondent further submitted that the appeal is frivolous as it lacks both substantive and procedural foundation. He further argued that the allegation that the Office of the Director of Public Prosecutions failed to exercise its powers under Article 157(6) of the Constitution or showed disinterest in the matter could not be substantiated.
41. The Respondent pointed out that the Director of Public Prosecutions requested the Directorate of Criminal Investigations through a letter dated 29th July 2021 to avail the duplicate file.
42. Further, that the Appellant cannot claim inordinate delay on the part of the prosecution authorities and that there exists no prescribed timeline within which the ODPP is expected to prefer charges.
43. The Respondent maintained that the appellant was interfering with a constitutional office in an effort to maliciously prosecute the 1st Respondent.
44. In support of that position, the Respondent relied on Isaac Aluoch Polo Aluochier v Stephen Kalonzo Musyoka & 218 others [2013] eKLR, wherein the Court cited Otieno Clifford Richard vs Republic High Court at Nairobi (Nairobi Law Courts) Misc Civil Suit No. 720 of 2005, and reproduced the following passage:
“Section 85 to Section 88 of the Criminal Procedure Code deal with ‘Appointment of Public Prosecutors and conduct of prosecutions.’ On the other hand, Section 89 to Section 90 of Criminal Procedure Code deal with the ‘Institution of proceedings and making of complaint’. We think that in the case of a private prosecution an application must first be made under Section 88(1) of the Criminal Procedure Code for the Magistrate trying the case to grant or refuse to grant permission to the Plaintiff to conduct a private prosecution. It is after permission has been granted for the private prosecution to be conducted that Section 89 and Section 90 of the Criminal Procedure Code can be brought into effect and the criminal proceedings instituted. We believe that the principles set out in the KAHARA CASE at page 89 are good law and provide guidance to a subordinate court when determining the question whether to allow a private prosecution since it spells out certain issues which must be addressed by the court when considering the application for permission to private prosecute before granting it.”
45. The Respondent also relied on Kimani v Kahara [1983] eKLR and cited the extensive principles set out therein, regarding the exercise of discretion when considering applications for private prosecution, including the requirement that the court ascertain whether a report was made to the Attorney-General or the police, the complainant’s locus standi, whether the complainant has personally suffered injury or damage, whether the application is motivated by malice or political considerations and whether public rights are being improperly asserted through private prosecution.
46. The Respondent submitted that, in light of the foregoing authorities, the appellant had not demonstrated how the alleged failure by state agencies to prosecute the matter was unreasonable or without legal justification.
47. Further, the respondent contended that the appellant merely alleged that the trial court erred without demonstrating that any of the legal requirements for private prosecution have been satisfied.
48. The Respondent further submitted that the appellant had not shown any specific injury suffered as a result of the conduct complained of and that the intended prosecution cannot therefore be said to be motivated either by public interest or personal injury. Instead, the respondent argued that the proceedings are fueled by malice.
49. The Respondent further relied on Communications Commission of Kenya v Office of the Director of Public Prosecution & Another [2018] eKLR, wherein the Court of Appeal stated:
“the decision whether or not to institute criminal proceedings is purely discretionary. That discretion must however be exercised by the DPP within the constitutional limits, that is, with regard to public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.”
50. The Respondent submitted that the Appellant had not demonstrated that the present matter is one of public interest warranting private prosecution and that the motives behind the intended proceedings are not genuine.
51. The Respondent also relied on OTIENO CLIFFORD RICHARD V REPUBLIC [2006] eKLR, where the Court stated:
“When an application is made under section 88 to conduct a private prosecution, we think that the magistrate should question the Plaintiff to ascertain whether a report has been made to the Attorney General or to the Police and with what result. If no such report has been made the magistrate may either adjourn the matter to enable a report to be made and to await a decision thereon or in a simple case of trespass or assault proceed to grant permission and notify the Police of that fact.”
52. The Respondent further relied on FLORICULTURE INTERNATIONAL LIMITED AND OTHERS, HIGH COURT MISC. CIVIL APPLICATION NO. 114 OF 1997, where the Court set out the six conditions that must be satisfied before private prosecution can be permitted, namely:
“For all these reasons criminal proceedings at the instance of a private person shall be allowed to start or to be maintained to the end only where it is shown by the private prosecutor;
(1) that a report of the alleged offence was made to the Attorney General or the Police or other appropriate public prosecutor, to accord either of them a reasonable opportunity to commence or take over the criminal process, or to raise objection (if any) against prosecuting; that is to say, the complainant must firstly exhaust the public machinery of prosecution before embarking on it himself; and
(2) that the Attorney General or other public prosecutor seized of the complaint has taken a decision on the report and declined to institute or conduct the criminal proceedings; or that he has maintained a more than usual and reasonable reticence; and either the decision or reticence must be clearly demonstrated; and
(3) that the failure or refusal by the State agencies to prosecute is culpable and, in the circumstances, without reasonable cause, and that there is no good reason why a prosecution should not be undertaken or pursued; and
(4) that unless the suspect is prosecuted and prosecuted at the given point of time, there is a clear likelihood of a failure of public and private justice; and
(5) the basis for the locus standi, such as, that he has suffered special and exceptional and substantial injury or damage, peculiarly personal to him, and that he is not motivated by malice, politics, or some ulterior considerations devoid of good faith; and
(6) that demonstrable grounds exist for believing that a grave social evil is being allowed to flourish unchecked because of the inaction of a pusillanimous Attorney General or Police force guilty of a capricious, corrupt or biased failure to prosecute, and that the private prosecution is an initiative to counter act the culpable refusal or failure to prosecute or to neutralize the attempts of crooked people to stifle criminal justice.”
53. The Respondent also relied on the passage from the AMWONA CASE and argued that a complainant is only entitled to seek permission to institute a private prosecution after exhausting the available channels through the police and the Attorney-General and after demonstrating that no action has been taken on the complaint.
54. The Respondent further submitted that the appellant has been moving in and out of court without allowing state agencies adequate time to conduct investigations.
55. The respondent further argued that investigations are procedural in nature and require compliance with established processes.
56. The Respondent contended that the pressure that was being exerted upon state agencies by the appellant was motivated by private vindictiveness rather than public interest.
57. The Respondent asserted that the appellant had failed to prove through cogent evidence that the conduct complained of had occasioned any inconvenience or injury.
58. On the challenge to the learned magistrate’s decision, the Respondent submitted that the appeal is an abuse of the court process and an afterthought.
59. According to the 1 st Respondent, the appellant was out to scandalize the trial court’s decision through unsupported allegations of delay by state agencies. The Respondent contended that delay cannot be established merely by stating the dates when the matter was reported and when correspondence was exchanged.
60. The Respondent further relied on Communications Commission of Kenya v ODPP & Another [2018] eKLR, wherein the Court stated:
“we only wish to add that whereas generally speaking a complainant would ordinarily expect the DPP to prosecute suspected offender based on the evidence availed to or gathered by the police, the DPP in exercise of the discretion conferred upon him by the Constitution and statutes, cannot be accused of having breached a complaint's legitimate expectation if he chooses not to institute criminal proceedings.”
61. The Respondent also relied on Rufus Riddle Barger v Brian John [1959] EA 8, where the Court stated:
“a private prosecution can only be given legitimacy and allowed by the court if instituted or maintained if it serves as a remedy against a culpable inertia or partiality on the part the public prosecuting authority.”
62. The Respondent further cited Republic v DPP & Another Ex parte Chamanial Vraslal Kamani & Others [2015] eKLR, where the Court observed:
“.....That a prudent and conscientious Prosecutor must be able to demonstrate that it has a reasonable and probable case for mounting criminal prosecution otherwise the prosecution will be malicious and actionable...”
63. The Respondent also relied on R VS. Attorney General Ex Parte Kipneno Arap Ngeny, High Court Misc. Civil Application No.406 of 2001, where the Court stated:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”
64. The Respondent further relied on Exparte Floriculture International Limited High Court Misc. 144 of 1997, where the Court stated:
“Proceedings taken in bad faith or circumstances yielding an inference that they were up to no good. Criminal law is not to be used oppressively to punish acts which in truth might be technically a breach of the criminal law but which contain no real vice and which can only be best handled under a process other than the criminal process namely any of the different systems of civil remedies. The existence of other remedies which have either already been unsuccessfully sought or which may be open and are less drastic and stigmatic than the criminalization of an otherwise civil dispute is indicative of improper and ulterior purposes.
....it is an abuse of criminal process for a person to launch criminal proceedings against the other, in civil matters which are genuinely disputed on substantial grounds by that other person and the civil dispute cannot be reasonably ventilated and decided with a fair finality in the criminal process.”
65. The Respondent also cited the case of Ndonga v Inspector General & 2 others; Ngotho & 2 others (Interested Parties) (Judicial Review E003 of 2021) [2022] KEHC 12553 (KLR) (5 August 2022) (Ruling), where it was stated:
“That the purpose of criminal proceedings generally speaking, is to hear and determine finally whether the accused engaged in conduct which amounts to an offence and, on that account, is deserving of punishment.”
66. In conclusion, the Respondent submitted that the Appellant had failed to establish a merited appeal or satisfy the principles governing the grant of leave to institute private prosecution proceedings.
67. In the 1 st Respondents view, the Appellant was acting in bad faith and was motivated by ulterior considerations devoid of good faith. The Respondent therefore urged this Honourable Court to uphold the trial court’s decision and find that the threshold for private prosecution had not been met.
2 ND RESPONDENT’S SUBMISSIONS
68. The 2nd Respondent also opposed the appeal and urged this Honourable Court to uphold the ruling delivered on 11th October 2022 dismissing the appellant’s application for leave to institute private prosecution proceedings against the 1st Respondent.
69. The 2 nd Respondent submitted that the trial court correctly found that there are no statutory timelines within which the 2nd Respondent is required to prefer charges and that constitutional offices ought to be afforded sufficient time to discharge their mandates without undue interference through court proceedings.
70. The Respondent identified two issues for determination, namely the powers of the Office of the Director of Public Prosecutions and whether the appellant met the threshold required for the grant of leave to institute private prosecution.
71. On the powers of the Office of the Director of Public Prosecutions, the Respondent set out the provisions of Article 157 of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act, emphasizing the constitutional independence of the DPP in the exercise of prosecutorial powers.
72. The 2 nd Respondent relied on Article 157(6), (7), (8), (9), (10) and (11) of the Constitution and Section 6 of the ODPP Act and submitted that the DPP exercises state powers of prosecution independently, without requiring the consent of any person or authority and without being subject to the direction or control of any person or authority.
73. The Respondent further relied on the National Prosecution Policy, 2015, which provides:
"State powers of prosecution are derived from the people and vest in and shall be exercised by the DPP and the officers subordinate to him or her. Prosecutors therefore, must uphold the supremacy of the constitution and be guided by the national values and principles of governance enshrined in Article 10 of the Constitution.
74. Consequently, the prosecution should uphold respect and promotion of human rights, rule of law, integrity and ethics, independence, professionalism, fairness, impartiality and inter-agency collaboration.
75. The 2 nd respondent argued that in prosecution, prosecutors should be guided by the public interest, the interest of the administration of justice and the need to prevent the abuse of the legal process.
76. The 2 nd respondent went on to submit that the various roles of the prosecutor are aspects of 'administrative action' which must be procedurally fair, expeditious, efficient, lawful, reasoned as envisaged under Article 47.
77. The Respondent therefore submitted that the decision whether or not to charge remained within the sole discretion of the DPP, provided that the discretion was exercised law
[...truncated]
1. The Appellant in this matter applied to leave to commence private prosecution which was denied by the learned Honourable Z. Abdul, Senior Resident Magistrate in MCCR, MISC NO. E641 OF 2022, Milimani Law Courts. The appellant dissatisfied with the decision of the court filed the instant appeal raising the following grounds;-
i. THAT the Learned Magistrate erred in law and in fact in failing to apply the guiding principles and conditions enunciated by the courts in the grant of leave to conduct private prosecution.
ii. THAT the Learned Magistrate erred in law and in fact in failing to find and rule that there was cogent, substantial, credible and preponderance of evidence warranting the grant of leave to conduct private prosecution.
iii. THAT the Learned Magistrate erred in law and in fact by failing to exercise her discretion judiciously thereby prejudicing the Appellant's legitimate expectation to fair and just judicial process.
iv. THAT the Learned Magistrate erred in law and in fact in failing to appreciate the length of time taken by the Police and office of the Director of Public Prosecution in investigating and/or concluding the complaints by the Appellant contrary to the right to fair administrative action as espoused under Article 47 of the Constitution of Kenya.
v. THAT the learned Magistrate erred in law and in fact by misapplying the law to the facts whereas the Appellant had met all the conditions required for grant of leave to conduct a private prosecution.
vi. THAT the Learned Magistrate erred in law and in fact in failing to appreciate that the office of the Director of Public Prosecution and the Police did not sufficiently discharge their burden of proof in light of the threshold set out in the FLORICULTURE CASE (MISC C.A NO. 114 OF 1997]
vii. THAT the Learned Magistrate erred in Law in disregarding the documents presented by the Appellant before the court and /or selectively considering evidence by the Appellant thereby unfairly narrowing the evidence of the Appellant.
ISSUES FOR DETERMINATION
2. The issue for determination that arise from the grounds raised by the appellant are;-
a). whether the learned Hon Magistrate correctly applied the principles that guide courts in determining whether or not to grant leave to a party to initiate private prosecution.
b), whether the learned Hon Magistrate properly exercised her discretion in declining to grant leave to commence private prosecution in light of the material placed before the court.
APPELLANT’S SUBMISSIONS
3. The Appellant submitted that the appeal is founded on the Petition of Appeal dated 21st October 2022 and sought a finding that the trial court erred both in law and fact by declining to grant leave for the institution of private prosecution proceedings against the 1st Respondent.
4. The Appellant argued that as a first appellate court, this Court is obligated to reconsider both the factual and legal issues arising from the proceedings before the trial court and determine whether the learned magistrate arrived at the correct conclusion.
5. In support of the applicable appellate principles, the Appellant relied on KAZUNGU KATANA SULUBU V ISSA RAMIYAH & 2 OTHERS [2019] eKLR, wherein the court stated:
"The principles that ought to guide an appellate court of first instance where an appellant seeks to appeal the findings of a lower court on fact are well settled. It is trite that the appellate court will always be reluctant to interfere with the trial magistrate's findings unless it can be clearly demonstrated that in reaching their decision, the magistrate relied on the wrong principles, took into account irrelevant details or failed to consider important matters that ought to have been paid regard to..."
6. The appellant submitted that the appeal revolves around two issues, namely whether the Appellant met the threshold required for leave to institute private prosecution and whether the trial court arrived at the correct decision.
7. On the issue of private prosecution, the appellant submitted that he satisfied all the conditions required by law for the grant of leave to commence private prosecution.
8. The appellant relied on TAJ MALL LIMITED V SIESTA INVESTMENT & 3 OTHERS [2019] eKLR, wherein the court held:
"There is no dispute that any person may be granted leave to institute private prosecution provided such person is able to establish certain conditions precedent. These conditions were set out in the case of Floriculture International Limited & Others -vs- The Attorney General Nairobi High Court Miscellaneous Civil Application No.114 of 1997 and were reiterated, with modifications, in Nairobi High Court Petition No.339 of 2013 Isaac Oluochier -vs- Stephen Kalonzo Musyoka & 217 Others. In this case, Mumbi Ngugi J citing Kuloba J (as he was then) in the Floriculture Case held that for a person to be granted leave to institute private prosecution, he must establish that he had made a complaint to the police and had accorded reasonable opportunity for the police to investigate the case; that the Director of Public Prosecutions had been seized of the case and had declined to institute or conduct criminal proceedings; that the failure by the State agencies to prosecute is culpable, unreasonable and without any legally justifiable reason; that unless the suspect is prosecuted there is likelihood there will be failure of public and private justice; that the person instituting private prosecution has suffered special, exceptional and substantial injury or damage that is personal to him and is not motivated by malice, politics or some other ulterior consideration devoid of good faith, and finally, that there was demonstrable ground that grave social evil will occur if the police and the Director of Public Prosecutions have acted capriciously, corruptly and in a biased manner that the only remedy is to grant leave to the aggrieved party to institute private prosecution."
9. The appellant further submitted that the facts presented before the lower Court satisfied the foregoing criteria.
10. He further argued that a report concerning the alleged offences committed by the 1st Respondent was made to the DCI on or about 13th April 2012, a fact admitted by both the DPP and the DCI before the lower court.
11. The appellant contended that despite the lapse of approximately thirteen years since the complaint was made, no criminal charges had been preferred against the 1st Respondent.
12. The appellant further argued that the last correspondence from the ODPP was in 2021 and that no communication had since been made regarding the progress of the matter.
13. According to the appellant, although the ODPP was fully seized of the complaint, it failed to exercise its constitutional mandate under Article 157(6) of the Constitution and acted unreasonably and arbitrarily by exhibiting disinterest and lethargy in the prosecution of the matter.
14. The appellant further submitted that the failure by the ODPP to prosecute the matter despite being afforded sufficient time is without reasonable cause or legal justification.
15. The appellant went on to state that the evidence tendered before the magistrate established a prima facie criminal case and that such evidence was reinforced by the judgment in Malindi ELC Suit No. 139 of 2011, which declared the Appellant to be the lawful owner of L.R. KILIFI/JIMBA/332.
16. The appellant contended that the title documents held by the 1st Respondent could therefore only have been acquired through fraud or other unlawful means.
17. According to the appellant the failure to prosecute the 1st Respondent has occasioned a miscarriage of justice and undermined the objectives of criminal law by allowing the alleged perpetrator to avoid accountability.
18. The appellant argued that the application for leave to institute private prosecution was necessitated by the failure of the ODPP to act, as contemplated under Section 28 of the Office of the Director of Public Prosecutions Act.
19. The appellant further submitted that the appellant’s standing to initiate private prosecution arises from the fact of being the registered proprietor of L.R. KILIFI/JIMBA/332 and the victim of the alleged fraudulent conduct.
20. In support of that proposition, reliance was placed on ALBERT GACHERU KIARIE T/A WAMAITU PRODUCTIONS VS JAMES MAINA MUNENE & 7 OTHERS [2016] eKLR, where the court held:
"I do not take issue with the Petitioner having vested interest in the matter because this is the basis upon which he likely suffered injury and is therefore testament to the fact that he indeed has standing to allow him seek and be granted permission to prosecute the case."
21. The appellant therefore submitted that the continued failure to prosecute the 1st Respondent perpetuates a grave social evil because an alleged offence of fraud resulted in the violation of the Appellant’s property rights while the alleged offender has not been held accountable.
22. The appellant denied the Respondents’ contention that the request for private prosecution was motivated by malice or ill will.
23. On whether the lower court arrived at the correct decision, the appellant submitted that the learned magistrate failed to exercise discretion judiciously and disregarded evidence presented to the court demonstrating that the legal threshold for private prosecution had been satisfied.
24. Although the grant of leave under Section 88 of the Criminal Procedure Code is discretionary, the appellant argued that such discretion must be exercised fairly and in accordance with the principles of equity and justice.
25. According to the appellant, the learned magistrate identified the applicable legal principles but failed to apply them to the facts before the court and instead dismissed the application on the grounds that there had been no inordinate delay by the ODPP and that the Appellant was not the proper complainant.
26. Regarding delay, the Appellant submitted that the trial court erred by relying on the ODPP’s letter dated 29th July 2021 requesting a duplicate file from the DCI as evidence that sufficient time had not elapsed.
27. The appellant argued that investigations had already been conducted, witness statements recorded and evidence gathered long before that correspondence.
28. The appellant contended that no criminal charges were brought despite the evidence disclosing a prima facie offence. The Appellant further pointed out that approximately five years had elapsed since the said letter without any meaningful action by the ODPP and that the learned magistrate herself acknowledged the absence of further correspondence. The Appellant therefore maintained that the delay was both inordinate and unexplained.
29. In support of that position, the Appellant relied on CYRUS SHAKHALANGA KHWA JIRONGO V SOY DEVELOPERS LTD & 9 OTHERS [2021] eKLR, wherein the Supreme Court stated:
"The question of delay with respect to the lodging of criminal prosecutions has been addressed by our Courts in several matters. The leading persuasive decisions on the subject are the High Court cases of Githunguri v Republic (1986) KLR 1 and Republic v Attorney General & Another Ex Parte Ng'eny (2001) KLR 612 which both Superior Courts relied on."
30. The Appellant further relied on Githunguri v Republic (1986) KLR 1, where the Court stated:
"In this instance the delay is said to have been nine years, six years and four years. The Court has not been told why these offences have been unearthed after they remained buried for so long. What caused turning up the soil! It is too long, too much of delay. The Attorney-General is not bound to tell the Court the reason but it would have made us knowledgeable if told..."
31. The Appellant also relied on Republic V Attorney General & Another Ex Parte Ngeny (2001) KLR 612, where the Court stated:
"In the case before us, the delay was nine years. No attempt has been made to explain it. ... Nine years is too long a delay."
32. On the issue of locus standi, the appellant submitted that as the lawful registered proprietor of the disputed property and a person whose constitutional right to property under Article 40 has allegedly been violated by the intended accused, he possesses the requisite standing to initiate criminal proceedings against the intended accused person.
33. The appellant finally submitted that this was a proper case for appellate intervention. In support of that proposition, reliance was placed on MBOGO V SHAH [1968] EA 93, where the Court held:
"I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its discretion is clearly wrong because it has misdirected itself or ... or it failed to take into consideration matters which it should have taken into consideration and in so doing, arrived at a wrong decision."
34. The appellant contended that the learned magistrate failed to take into account important aspects of the evidence and consequently misapplied the principles governing private prosecution, thereby arriving at an erroneous decision.
35. It was further submitted that this Court, as the guardian of constitutional rights and freedoms, ought to intervene where a public authority has neglected its legal obligations. The appellant therefore urged this Honourable Court to allow the appeal and grant leave to institute private prosecution proceedings against the 1st Respondent.
1 st RESPONDENT’S SUBMISSIONS
36. The 1st Respondent opposed the Appeal and urged this Honourable Court to uphold the decision of the trial court declining to grant leave to institute private prosecution proceedings.
37. The Respondent submitted that the Appellant had failed to satisfy the legal threshold required for the grant of leave to commence a private prosecution and had equally failed to establish any basis upon which the learned magistrate’s decision ought to be overturned.
38. He further contended that the appellant had not adduced cogent evidence to prove that any serious offences had been committed so as to warrant private prosecution.
39. The Respondent argued that the appellant by way of the application sought to be the investigator, witness and prosecutor by relying on his own documents to institute criminal proceedings.
40. The Respondent further submitted that the appeal is frivolous as it lacks both substantive and procedural foundation. He further argued that the allegation that the Office of the Director of Public Prosecutions failed to exercise its powers under Article 157(6) of the Constitution or showed disinterest in the matter could not be substantiated.
41. The Respondent pointed out that the Director of Public Prosecutions requested the Directorate of Criminal Investigations through a letter dated 29th July 2021 to avail the duplicate file.
42. Further, that the Appellant cannot claim inordinate delay on the part of the prosecution authorities and that there exists no prescribed timeline within which the ODPP is expected to prefer charges.
43. The Respondent maintained that the appellant was interfering with a constitutional office in an effort to maliciously prosecute the 1st Respondent.
44. In support of that position, the Respondent relied on Isaac Aluoch Polo Aluochier v Stephen Kalonzo Musyoka & 218 others [2013] eKLR, wherein the Court cited Otieno Clifford Richard vs Republic High Court at Nairobi (Nairobi Law Courts) Misc Civil Suit No. 720 of 2005, and reproduced the following passage:
“Section 85 to Section 88 of the Criminal Procedure Code deal with ‘Appointment of Public Prosecutors and conduct of prosecutions.’ On the other hand, Section 89 to Section 90 of Criminal Procedure Code deal with the ‘Institution of proceedings and making of complaint’. We think that in the case of a private prosecution an application must first be made under Section 88(1) of the Criminal Procedure Code for the Magistrate trying the case to grant or refuse to grant permission to the Plaintiff to conduct a private prosecution. It is after permission has been granted for the private prosecution to be conducted that Section 89 and Section 90 of the Criminal Procedure Code can be brought into effect and the criminal proceedings instituted. We believe that the principles set out in the KAHARA CASE at page 89 are good law and provide guidance to a subordinate court when determining the question whether to allow a private prosecution since it spells out certain issues which must be addressed by the court when considering the application for permission to private prosecute before granting it.”
45. The Respondent also relied on Kimani v Kahara [1983] eKLR and cited the extensive principles set out therein, regarding the exercise of discretion when considering applications for private prosecution, including the requirement that the court ascertain whether a report was made to the Attorney-General or the police, the complainant’s locus standi, whether the complainant has personally suffered injury or damage, whether the application is motivated by malice or political considerations and whether public rights are being improperly asserted through private prosecution.
46. The Respondent submitted that, in light of the foregoing authorities, the appellant had not demonstrated how the alleged failure by state agencies to prosecute the matter was unreasonable or without legal justification.
47. Further, the respondent contended that the appellant merely alleged that the trial court erred without demonstrating that any of the legal requirements for private prosecution have been satisfied.
48. The Respondent further submitted that the appellant had not shown any specific injury suffered as a result of the conduct complained of and that the intended prosecution cannot therefore be said to be motivated either by public interest or personal injury. Instead, the respondent argued that the proceedings are fueled by malice.
49. The Respondent further relied on Communications Commission of Kenya v Office of the Director of Public Prosecution & Another [2018] eKLR, wherein the Court of Appeal stated:
“the decision whether or not to institute criminal proceedings is purely discretionary. That discretion must however be exercised by the DPP within the constitutional limits, that is, with regard to public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.”
50. The Respondent submitted that the Appellant had not demonstrated that the present matter is one of public interest warranting private prosecution and that the motives behind the intended proceedings are not genuine.
51. The Respondent also relied on OTIENO CLIFFORD RICHARD V REPUBLIC [2006] eKLR, where the Court stated:
“When an application is made under section 88 to conduct a private prosecution, we think that the magistrate should question the Plaintiff to ascertain whether a report has been made to the Attorney General or to the Police and with what result. If no such report has been made the magistrate may either adjourn the matter to enable a report to be made and to await a decision thereon or in a simple case of trespass or assault proceed to grant permission and notify the Police of that fact.”
52. The Respondent further relied on FLORICULTURE INTERNATIONAL LIMITED AND OTHERS, HIGH COURT MISC. CIVIL APPLICATION NO. 114 OF 1997, where the Court set out the six conditions that must be satisfied before private prosecution can be permitted, namely:
“For all these reasons criminal proceedings at the instance of a private person shall be allowed to start or to be maintained to the end only where it is shown by the private prosecutor;
(1) that a report of the alleged offence was made to the Attorney General or the Police or other appropriate public prosecutor, to accord either of them a reasonable opportunity to commence or take over the criminal process, or to raise objection (if any) against prosecuting; that is to say, the complainant must firstly exhaust the public machinery of prosecution before embarking on it himself; and
(2) that the Attorney General or other public prosecutor seized of the complaint has taken a decision on the report and declined to institute or conduct the criminal proceedings; or that he has maintained a more than usual and reasonable reticence; and either the decision or reticence must be clearly demonstrated; and
(3) that the failure or refusal by the State agencies to prosecute is culpable and, in the circumstances, without reasonable cause, and that there is no good reason why a prosecution should not be undertaken or pursued; and
(4) that unless the suspect is prosecuted and prosecuted at the given point of time, there is a clear likelihood of a failure of public and private justice; and
(5) the basis for the locus standi, such as, that he has suffered special and exceptional and substantial injury or damage, peculiarly personal to him, and that he is not motivated by malice, politics, or some ulterior considerations devoid of good faith; and
(6) that demonstrable grounds exist for believing that a grave social evil is being allowed to flourish unchecked because of the inaction of a pusillanimous Attorney General or Police force guilty of a capricious, corrupt or biased failure to prosecute, and that the private prosecution is an initiative to counter act the culpable refusal or failure to prosecute or to neutralize the attempts of crooked people to stifle criminal justice.”
53. The Respondent also relied on the passage from the AMWONA CASE and argued that a complainant is only entitled to seek permission to institute a private prosecution after exhausting the available channels through the police and the Attorney-General and after demonstrating that no action has been taken on the complaint.
54. The Respondent further submitted that the appellant has been moving in and out of court without allowing state agencies adequate time to conduct investigations.
55. The respondent further argued that investigations are procedural in nature and require compliance with established processes.
56. The Respondent contended that the pressure that was being exerted upon state agencies by the appellant was motivated by private vindictiveness rather than public interest.
57. The Respondent asserted that the appellant had failed to prove through cogent evidence that the conduct complained of had occasioned any inconvenience or injury.
58. On the challenge to the learned magistrate’s decision, the Respondent submitted that the appeal is an abuse of the court process and an afterthought.
59. According to the 1 st Respondent, the appellant was out to scandalize the trial court’s decision through unsupported allegations of delay by state agencies. The Respondent contended that delay cannot be established merely by stating the dates when the matter was reported and when correspondence was exchanged.
60. The Respondent further relied on Communications Commission of Kenya v ODPP & Another [2018] eKLR, wherein the Court stated:
“we only wish to add that whereas generally speaking a complainant would ordinarily expect the DPP to prosecute suspected offender based on the evidence availed to or gathered by the police, the DPP in exercise of the discretion conferred upon him by the Constitution and statutes, cannot be accused of having breached a complaint's legitimate expectation if he chooses not to institute criminal proceedings.”
61. The Respondent also relied on Rufus Riddle Barger v Brian John [1959] EA 8, where the Court stated:
“a private prosecution can only be given legitimacy and allowed by the court if instituted or maintained if it serves as a remedy against a culpable inertia or partiality on the part the public prosecuting authority.”
62. The Respondent further cited Republic v DPP & Another Ex parte Chamanial Vraslal Kamani & Others [2015] eKLR, where the Court observed:
“.....That a prudent and conscientious Prosecutor must be able to demonstrate that it has a reasonable and probable case for mounting criminal prosecution otherwise the prosecution will be malicious and actionable...”
63. The Respondent also relied on R VS. Attorney General Ex Parte Kipneno Arap Ngeny, High Court Misc. Civil Application No.406 of 2001, where the Court stated:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”
64. The Respondent further relied on Exparte Floriculture International Limited High Court Misc. 144 of 1997, where the Court stated:
“Proceedings taken in bad faith or circumstances yielding an inference that they were up to no good. Criminal law is not to be used oppressively to punish acts which in truth might be technically a breach of the criminal law but which contain no real vice and which can only be best handled under a process other than the criminal process namely any of the different systems of civil remedies. The existence of other remedies which have either already been unsuccessfully sought or which may be open and are less drastic and stigmatic than the criminalization of an otherwise civil dispute is indicative of improper and ulterior purposes.
....it is an abuse of criminal process for a person to launch criminal proceedings against the other, in civil matters which are genuinely disputed on substantial grounds by that other person and the civil dispute cannot be reasonably ventilated and decided with a fair finality in the criminal process.”
65. The Respondent also cited the case of Ndonga v Inspector General & 2 others; Ngotho & 2 others (Interested Parties) (Judicial Review E003 of 2021) [2022] KEHC 12553 (KLR) (5 August 2022) (Ruling), where it was stated:
“That the purpose of criminal proceedings generally speaking, is to hear and determine finally whether the accused engaged in conduct which amounts to an offence and, on that account, is deserving of punishment.”
66. In conclusion, the Respondent submitted that the Appellant had failed to establish a merited appeal or satisfy the principles governing the grant of leave to institute private prosecution proceedings.
67. In the 1 st Respondents view, the Appellant was acting in bad faith and was motivated by ulterior considerations devoid of good faith. The Respondent therefore urged this Honourable Court to uphold the trial court’s decision and find that the threshold for private prosecution had not been met.
2 ND RESPONDENT’S SUBMISSIONS
68. The 2nd Respondent also opposed the appeal and urged this Honourable Court to uphold the ruling delivered on 11th October 2022 dismissing the appellant’s application for leave to institute private prosecution proceedings against the 1st Respondent.
69. The 2 nd Respondent submitted that the trial court correctly found that there are no statutory timelines within which the 2nd Respondent is required to prefer charges and that constitutional offices ought to be afforded sufficient time to discharge their mandates without undue interference through court proceedings.
70. The Respondent identified two issues for determination, namely the powers of the Office of the Director of Public Prosecutions and whether the appellant met the threshold required for the grant of leave to institute private prosecution.
71. On the powers of the Office of the Director of Public Prosecutions, the Respondent set out the provisions of Article 157 of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act, emphasizing the constitutional independence of the DPP in the exercise of prosecutorial powers.
72. The 2 nd Respondent relied on Article 157(6), (7), (8), (9), (10) and (11) of the Constitution and Section 6 of the ODPP Act and submitted that the DPP exercises state powers of prosecution independently, without requiring the consent of any person or authority and without being subject to the direction or control of any person or authority.
73. The Respondent further relied on the National Prosecution Policy, 2015, which provides:
"State powers of prosecution are derived from the people and vest in and shall be exercised by the DPP and the officers subordinate to him or her. Prosecutors therefore, must uphold the supremacy of the constitution and be guided by the national values and principles of governance enshrined in Article 10 of the Constitution.
74. Consequently, the prosecution should uphold respect and promotion of human rights, rule of law, integrity and ethics, independence, professionalism, fairness, impartiality and inter-agency collaboration.
75. The 2 nd respondent argued that in prosecution, prosecutors should be guided by the public interest, the interest of the administration of justice and the need to prevent the abuse of the legal process.
76. The 2 nd respondent went on to submit that the various roles of the prosecutor are aspects of 'administrative action' which must be procedurally fair, expeditious, efficient, lawful, reasoned as envisaged under Article 47.
77. The Respondent therefore submitted that the decision whether or not to charge remained within the sole discretion of the DPP, provided that the discretion was exercised law
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