1. The Application that is before this court for determination is the one dated 27th November, 2024 wherein the Applicant's seeks the following: -
1) That an Order of Certiorari to issue to remove to this Honourable Court for purposes of being quashed and forthwith quash the 2nd Respondent's decision to charge the Exparte Applicants with the offence of obtaining money by false pretenses contrary to Section 313 of the Penal Code and conspiracy to defraud contrary to Section 317 of the Penal Code.
2) That Order of Prohibition, prohibiting the 2nd Respondent from charging the Exparte Applicants with the offence of obtaining money by false pretenses contrary to Section 313 of the Penal Code and conspiracy to defraud contrary to Section 317 of the Penal Code.
3) A declaration be and is hereby issued that the intended charges of obtaining money by false pretenses contrary to Section 313 of the Penal Code and conspiracy to defraud contrary to Section 317 of the Penal Code are null and void as they are a breach, infringement, violation and denial of the Exparte Applicants' fundamental rights to equality before the law, equal protection, equal protection and equal benefit of the law as enshrined in Article 27 (1) and 50 of the Constitution.
4) That the costs of this Application be borne by the Respondents.
The Applicants’ Case:
2. On or about 2nd May, 2018 the 1st Exparte Applicant entered into a sale agreement with one Stephen Kareithi Mukami for sale of Plot Number 76 in Land Reference Number 7969 with the 1st Exparte Applicant as the vendor and the said Stephen Kareithi Mukami the Complainant for a purchase price was Kenya Shillings Seven Million One Hundred Thousand (Kshs. 7,100,000/= which amount was paid to the 1st Exparte Applicant.
3. That upon completing payment of the purchase price, the complainant let the same out to a third party. The 1st Exparte Applicant had purchased the said property from David Waweru Kahinga and Christine Imbosa Mbogua all that parcel of land known as Land Reference Number 7969 which they had caused to be subdivided into more than 100 plots with Plot Number 76 being one of the subdivisions.
4. The law firm of the 2nd and 3rd Exparte Applicants (Kamau Chege & Kagunyi Advocates) had been retained by the joint owners to specifically handle all conveyancing related transaction involving Land Reference Number 7969 and the subdivisions therein.
5. The said law firm acted for the 1st Exparte Applicant and the Complainant in the sale of the said plot.
6. On or about the 27th March, 2023 the Nairobi Environment & Land Court delivered a judgment in ELC 189 of 2015 whereby the court made a declaration that Kimuri Housing Company Ltd, was the banafide beneficial owner as a purchaser for value of Land Reference Number 7969 and the court restrained the joint owners by themselves, servants and/or agents from interfering with Land Reference Number 7969.
7. The Exparte Applicants argue that they only became aware of Nairobi ELC Number 189 of 2019 after the judgment.
8. It is their case that the said judgment is subject of an ongoing appeal before the Court of Appeal that is Civil Appeal Number 611 of 2023. The Complainant lodged a criminal complaint against the Exparte Applicants.
9. The criminal complaint, on the 7th December, 2023 the 1st and 2nd Exparte Applicants were summoned by Corporal Geoffrey Mwangi an officer with the 1st Respondent with summons.
10. They further argue that they appeared before the said officer on 8th December, 2023 at the Nairobi Regional Command and provided the officer with all the relevant information.
11. It is their case that on 23rd May, 2024 the said officer summoned the 1st Exparte Applicant again.
12. On 13th June, 2024 the 1st Exparte Applicant appeared before the officer ready to give his statement on the transaction but the officer advised him that he was not ready to take his statement and advised him that he will summon him at a later date.
13. On 26th July, 2024 the officer summoned all the Exparte Applicants and after an extensive meeting the officer advised the 1st Exparte Applicant to prepare and deliver to him a draft statement which the 1st Applicant prepared and delivered to the officer who advised that he will have a look at the statement and advice.
14. On 23rd September, 2024 the Exparte Applicants were again summoned and the 1st and 2nd Exparte Applicant who appeared before the officer were informed that the 2ndRespondent had directed and/or consented to criminal charges being preferred against them.
15. Consequently, the 1st and 2nd Exparte Applicants were released on cash bail. The 3rd Exparte Applicant appeared before the officer on 25th September, 2024. They were directed to appear in court on 27th September, 2024. They maintain that they are entitled to the orders sought.
The Applicants’ Submissions:
16. They submit that the issue for determination by the court is whether the decision of the Respondents to charge the Exparte Applicants was legal, rational and procedurally sound.
17. They place reliance in the case of Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300, the court held that:
“In order to succeed in an Application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 CUR).”
18. In Philomena Mbete Mwilu v D.P.P & 3 Others [2019] eKLR the learned judge stated that:
“With regard to the process or manner of the conduct of investigations, the court in Josephat Koli Nanok & Another v Ethics & Anti-Corruption Commission (supra) went on to consider what an investigation process might entail. It stated that the person subject of the investigation would be entitled to fair administrative action, so that before a decision is taken for the prosecution of the suspect, the investigative agency must observe that person's rights by granting him or her the opportunity to respond to the allegation. It was observed that there would be as a matter of course, a preliminary inquiry, conducted internally, before the formal investigations, and that it should be at the formal investigation stage that the suspect is entitled to be heard”
19. They submit that the 1st Respondent failed to accord them an opportunity to be heard. Despite the investigating officer summoning them he deliberately and maliciously failed to conduct investigations on the issues raised by the Exparte Applicants and also deliberately and with hidden intent failed to record their statements.
20. The 1st Respondent proceeded to forward the file to the 2ndRespondent without the statements and documentary evidence submitted to it by the Exparte Applicants.
21. The investigations officer at paragraph 18 of his affidavit admits that he did not carry out investigations on the issues raised by the Exparte Applicants. He stated:
“That in response to paragraphs 37,38,39,40,41,42,43 and 44 the Exparte Applicants are introducing facts strange to the 1st and 2nd Respondents as the same does not form part of the matter that was investigated.”
22. They submit that the decision to charge the Exparte Applicants is a result of the misguided notion by the Respondents that the Exparte Applicant were aware of the existence of Nairobi ELC No. 189 of 2015 at the time of selling the property to the complainant.
23. The facts and issues raised by the Exparte Applicants were explanations that the Exparte Applicants proffered against the accusations levelled against them.
24. The Exparte Applicants by the said explanation sought to debunk and deconstruct the erroneous notion that they were aware of Nairobi ELC No. 189 of 2015 at the time of sale of the property to the complainant.
25. The Exparte Applicants clearly explained that upon the 1st Exparte Applicant selling the property to the complainant he entered into an agreement with RAJPAL KATANA KAZUNGU and LILIAN RIZIKI KAHINDI for sale and purchase of Plot No. 86 contained as subdivision in L.R. No. 7969 as the property sold to the complainant.
26. The 1st Exparte Applicant further explained that the funds he received from the complainant is what he used to purchase the other parcel from Rajpal Katana Kazungu and Lilian Riziki Kahindi Kenya Shillings Two Million Eight Hundred Thousand (Kshs. 2,800,000/=) only as a refund to Edward Kimani who had initially purchased the land from Rajpal Katana Kazungu and Lilian Riziki Kahindi but failed/and or was unable to complete the transaction and Kenya Shillings One Million Five Hundred Thousand (KShs. 1,500,000/=) only paid to Rajpal Katana Kazungu and Lilian Riziki Kahindi.
27. The Exparte Applicants contended that the 2nd and 3rd Exparte Applicants are also beneficial owners for value of plots within L.R. No. 7969 which have substantially been developed and as such were also affected by the decision in Nairobi ELC No. 189 of 2015.
28. They submit that the foregoing issues, facts and evidence that the investigating officer contends at paragraph 18 of the replying affidavit did not form part of the matter and thus were not investigated.
29. Article 244 of the Constitution and Section 24 of the National Police Service Act vests the powers and mandate of investigations of crimes upon the police.
30. They submit that it was stated thus in Republic v Service & 2 others; Resilient investments Limited & 3 others (Interested Party); Limited (Exparte) (Judicial Review Application E037 of 2021) [2022/KEHC 43 (KLR):
"Investigation of the crime is a solemn duty imposed by law on the police officers. The duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the courts to record convictions but to bring out the real unvarnished truth."
31. It was incumbent upon the 1st Respondent to investigate all the issues and facts as raised by both the complainant and the Exparte Applicant and to not only focus its attention on the issues raised by the complainant in an obvious attempt to bolster the prosecution case.
32. Had the 1st Respondent conducted proper investigations including recording of the Exparte Applicants' statements, scrutinizing the documents submitted by the Exparte Applicants and all the details given by the Exparte Applicants they would have definitely arrived at the inescapable conclusion that the Exparte Applicants were not aware of Nairobi ELC 189 of 2015 and thus the intended charges of obtaining money through false pretenses cannot stand.
33. The Applicants beseech the court to review the decision as the 1st Respondent failed to take into account relevant consideration.
34. In Republic v Kenya School of Law & another; Abdi (Exparte) (Judicial Review MiscellaneousApp1ication E088 of2022) [2023] KEI-IC 17633 (KLR), the court held:
"The right to be heard is protected under Article 50 of the Constitution it is an inalienable right it is a cardinal principle that is protected under Article 25 of the Constitution, In MWN v/DK eKLR the court had occasion to consider the question of the right to be heard. It pronounced itself that the interests of justice lead a court to exercise discretion.”
35. The complainant contended that since the 1st Exparte Applicant's ownership of the property had been compromised, the contract was incapable of being performed in the foreseeable future. The complainant therefore sought to invoke the default clause by demanding refund of the purchase price.
36. They submit that the Exparte Applicants were of a contrary view and opined that the parties should await the outcome in Civil Appeal Number 611 of 2023 which was filed against the judgment in Nairobi ELC No. 189 of 2015.
37. Reliance is placed in Paul Stuart Imison Another vs. the Attorney General & 2 Others Petition No. 57 of 2009 in the following manner:
"The instances in which a court can declare a prosecution to be improper were well considered in Macharia & Another — vs- Attorney General & Another (2001) KLR 448. A prosecution is improper if:
a) It is fora purpose other than upholding the criminal law; (b) It is meant to bring pressure to bear upon the Applicant/accused to settle a civil dispute;
b) It is an abuse of the criminal process ofthe court;
c) It amounts to harassment and is contrary to public policy;
d) It is in contravention of the Applicant's constitutional right to freedom. (Emphasis added).”
38. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, the High Court held:
“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society's senses of fair play and decency and/or where the proceedings are oppressive or vexatious... The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court's) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer... In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the Applicants in order to settle the civil dispute.”
39. They decry the usage of the criminal proceedings by the complainant while being propped by the 1st Respondent to arm twist and/or coerce the Exparte Applicants to refund the purchase price.
The Respondents’ Case:
40. The Respondents oppose the Application vehemently through the investigating officer.
41. It is the investigating officer’s case that he received a complaint from the complainants in relation to the land they had purchased from the Applicants which they believed tainted with fraud.
42. It is his case that upon conducting investigation, he found that the Applicants had received money as consideration from a sale from the complainants which they had shared between themselves.
43. This was established from their bank statements and cheques that were paid to the Applicants.
44. It is his case that in order to complete the investigation he recorded the complainant’s statements and summoned Applicants who refused to record their statements. He was forced to forwarded the investigations report to the 2nd Respondent who returned the file for further investigation
45. He summoned and issued the Applicants a charge and caution before sending the file back to the 2nd Respondent who made a decision to charge the Applicants. It is his case that according to him there was a crime that had been committed by the Applicants.
46. It is the investigating officers' case that the Applicants knew of the existence of the civil suit at the time of selling the land to the complainants.
47. The 1st Respondent argues that the decision to charge the Applicants was pegged on the fact that the investigations established that there was a prima facie case that the Applicant's had committed fraud.
The 2nd Respondent's Submissions:
48. It submits that under Article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any court.
“The Director of Public Prosecutions shall exercise state powers of prosecution and may-(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”
49. Reliance is placed in the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated:
“It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities. On the other hand, members of the public are also morally obligated to report incidents of crime to the ODPP and DCI.”
50. Moreover, in the case of Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & another Misc. ApplicationNo. 68 of 2011, Nairobi, in determining whether the ODPP and DCI had abused their statutory and constitutional powers, the Learned Judge stated that:
“…. the Police have a duty to investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.”
51. Article 157(4) provides that: -
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the national police service to investigate any information or allegation of criminal conduct and the Inspector General shall comply with any such direction.
52. Article 157(11) stipulates that:
(11) In exercising the powers conferred by this article, the director of public prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
53. It is submitted that the DPP was presented with a complete investigative file and made the Decision to Charge and that this decision was not made on a whim but guided by the Constitution, the ODPP Act, 2012 and the Decision to Charge Guidelines.
54. It is the 2nd Respondents’ submission that The DPP in its Guidelines on the Decision to Charge, 2019 (the Guidelines to charge) also correctly captured the role of the prosecutor once investigations are completed.
55. The 2nd Respondent in making the decision to charge the petitioner acted within his constitutional mandate.
56. Upon concluding investigations, the DCI established that there was a reasonable suspicion that an offence had been committed, hence prompting them to forward the investigation file to the 2nd Respondent for review and directions.
57. In the Michael Monari Case (Supra) the court stated that the police only need to establish reasonable suspicion that an offence had been committed before any charges can be preferred.
58. In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014 High court, Murang’a the court stated as follows-
“…. In my view, as long as the enabling legislation is constitutional, the Respondent’s actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the ODPP and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates.”
59. It is further submitted that Section 193A of the Criminal Procedure Code mandates civil proceedings to be heard concurrently with any criminal matter.
60. Section 193 A of the Criminal Procedure Code provides that ‘any matter in issue in any criminal proceedings which was also directly or substantially in issue in any pending civil proceedings could not be a ground for any stay, prohibitions or delay of the Criminal proceedings. Concurrent proceedings meant independent, simultaneous investigations and prosecutions involving substantially the same matter and parties.
61. It was submitted that whereas the Applicants had the right not to be subjected to an illegal and /or unwarranted criminal process, the DPP was also under a public duty to ensure that offences were prosecuted and those culpable attended to as the law required.
62. Reliance is placed in the case of Maina & 4 others vs Director of Public Prosecutions & 4 Others 9 Constitutional Petition E106 & 160 of 2021 (Consolidated) (2022) KEHC 15 (KLR) (Constitutional and Human Rights) (27 January 2022) (Judgment).
63. It is the 2nd Respondent’s submission that the considerations that guide courts when considering an Application such as this were best captured in the words of Mason CJ in William and Others v Spautz [1993] 2 LRC 659 at 667 where the High Court of Australia stated as follows:
“It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercise, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an Application for stay, unless once again the interests of justice demand it.”
64. Further, it is an established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights with precision and how the same have been or will be infringed in respect to him.
65. The Honorable Justice J. Mativo aptly held as follows in Leonard Otieno v Airtel Kenya Limited [2018] eKLR It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.
66. Article 160 of the constitution provides; in the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall not be subject to the control or direction of any person or authority.
67. They submit that the Applicants shall enjoy the right to equal protection in any court of law and a fair administrative process.
68. They submit that the Applicants have not set out with precision the manner in which the 2ndRespondent has infringed their fundamental rights and freedoms to warrant the intervention of this Honourable Court.
69. In the case of Anarita Karimi Njeru v Republic (No.1)-[1979] KLR 154 the Court stated;
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
70. They also rely on the Court of Appeal in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR, where it stated that:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle”
71. The 2nd Respondents submit that the Applicants have not indicated the rights which have been breached with clarity, apart from enumerating the Articles in the Constitution.
Analysis and determination;
Issues for determination:
1) Whether civil and criminal proceedings can move concurrently.
2) Whether an advocate can be charged for offences committed by their client.
3) Whether the Application has merit.
4) Costs.
72. Section 193A of the Criminal Procedure Code Cap 75 Laws of Kenya provides for parallel trial of civil and criminal proceedings. The Section reads:
“193A. Concurrent criminal and civil proceedings
Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”
73. In Republic v Inspector General of the National Police Service & another Ex parte Beatrice Hilda Omunia; Peter Nganga Chege & 2 others (Interested Parties) [2019] eKLR, Hon. Justice John Mativo J. as he was then, while commenting on the above provision held as follows at paragraph 32 of his Judgment:
"Even though it is not for this court to consider the defense of the accused persons, which is basically a function of the trial court, the core issue raised by the ex parte Applicant is that the dispute is purely civil. Section 193A of the Criminal Procedure Code permits parallel civil and criminal proceedings, hence, even if there was a civil suit in court, the existence of a parallel civil case is not bar to criminal proceedings. [14] The offence being investigated is known to the law, hence, the cited provision. The conduct under investigation can attract a criminal sanction if proved.”
74. The fact that there are civil proceeding that are pending before another forum is not a bar to the criminal prosecution that is pending before the criminal court that the Applicants think to challenge. The court agrees with the 1st Respondent on this.
The second issue is whether an advocate can be charged for offences committed by their client.
75. Though advocates enjoy certain privileges owing to the nature of their profession, the same is not absolute. An advocate can be charged with a criminal offence. In the instant case it is not clear whether the cheques that were paid to 2nd and 3rd Applicants were part of the fruits of the crime that the complainants were pursuing.
76. This court cannot delve into a merit analysis that would help settle that issue. That is what the criminal court or the Advocates disciplinary Tribunal would determine upon hearing witness testimonies and upon production of documents like the retainer between the Applicants. That is not for the judicial review court.
77. In so holding, Iam guided by the Court of Appeal at Nairobi [Coram: W. Karanja, Tuiyott & Nyamweya JJ. A] Civil Appeal No. 337 Of 2019 Between Dr. Gabriel MukuriaMuturi And Director, Kenya Forestry Research Institute (Kefri) And Dr. Jane Wangu Njuguna, where that court referred to the Supreme Court in Saisi & 7 others vs Director of Public Prosecutions & 2 others [supra] it is not the purpose and intent of a merit review in judicial review to undertake full-fledged inquiry into the merits of a matter. The Supreme Court explained as follows:
“76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full -fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to do so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing Page 20 of 24Judgment- NAI Civil Appeal No 337 of 2019. Testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.”
The next issue whether the Application has merit:
78. In order to determine this issue the court is guided by the case of JGH Marine A/S Western Ma
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1) That an Order of Certiorari to issue to remove to this Honourable Court for purposes of being quashed and forthwith quash the 2nd Respondent's decision to charge the Exparte Applicants with the offence of obtaining money by false pretenses contrary to Section 313 of the Penal Code and conspiracy to defraud contrary to Section 317 of the Penal Code.
2) That Order of Prohibition, prohibiting the 2nd Respondent from charging the Exparte Applicants with the offence of obtaining money by false pretenses contrary to Section 313 of the Penal Code and conspiracy to defraud contrary to Section 317 of the Penal Code.
3) A declaration be and is hereby issued that the intended charges of obtaining money by false pretenses contrary to Section 313 of the Penal Code and conspiracy to defraud contrary to Section 317 of the Penal Code are null and void as they are a breach, infringement, violation and denial of the Exparte Applicants' fundamental rights to equality before the law, equal protection, equal protection and equal benefit of the law as enshrined in Article 27 (1) and 50 of the Constitution.
4) That the costs of this Application be borne by the Respondents.
The Applicants’ Case:
2. On or about 2nd May, 2018 the 1st Exparte Applicant entered into a sale agreement with one Stephen Kareithi Mukami for sale of Plot Number 76 in Land Reference Number 7969 with the 1st Exparte Applicant as the vendor and the said Stephen Kareithi Mukami the Complainant for a purchase price was Kenya Shillings Seven Million One Hundred Thousand (Kshs. 7,100,000/= which amount was paid to the 1st Exparte Applicant.
3. That upon completing payment of the purchase price, the complainant let the same out to a third party. The 1st Exparte Applicant had purchased the said property from David Waweru Kahinga and Christine Imbosa Mbogua all that parcel of land known as Land Reference Number 7969 which they had caused to be subdivided into more than 100 plots with Plot Number 76 being one of the subdivisions.
4. The law firm of the 2nd and 3rd Exparte Applicants (Kamau Chege & Kagunyi Advocates) had been retained by the joint owners to specifically handle all conveyancing related transaction involving Land Reference Number 7969 and the subdivisions therein.
5. The said law firm acted for the 1st Exparte Applicant and the Complainant in the sale of the said plot.
6. On or about the 27th March, 2023 the Nairobi Environment & Land Court delivered a judgment in ELC 189 of 2015 whereby the court made a declaration that Kimuri Housing Company Ltd, was the banafide beneficial owner as a purchaser for value of Land Reference Number 7969 and the court restrained the joint owners by themselves, servants and/or agents from interfering with Land Reference Number 7969.
7. The Exparte Applicants argue that they only became aware of Nairobi ELC Number 189 of 2019 after the judgment.
8. It is their case that the said judgment is subject of an ongoing appeal before the Court of Appeal that is Civil Appeal Number 611 of 2023. The Complainant lodged a criminal complaint against the Exparte Applicants.
9. The criminal complaint, on the 7th December, 2023 the 1st and 2nd Exparte Applicants were summoned by Corporal Geoffrey Mwangi an officer with the 1st Respondent with summons.
10. They further argue that they appeared before the said officer on 8th December, 2023 at the Nairobi Regional Command and provided the officer with all the relevant information.
11. It is their case that on 23rd May, 2024 the said officer summoned the 1st Exparte Applicant again.
12. On 13th June, 2024 the 1st Exparte Applicant appeared before the officer ready to give his statement on the transaction but the officer advised him that he was not ready to take his statement and advised him that he will summon him at a later date.
13. On 26th July, 2024 the officer summoned all the Exparte Applicants and after an extensive meeting the officer advised the 1st Exparte Applicant to prepare and deliver to him a draft statement which the 1st Applicant prepared and delivered to the officer who advised that he will have a look at the statement and advice.
14. On 23rd September, 2024 the Exparte Applicants were again summoned and the 1st and 2nd Exparte Applicant who appeared before the officer were informed that the 2ndRespondent had directed and/or consented to criminal charges being preferred against them.
15. Consequently, the 1st and 2nd Exparte Applicants were released on cash bail. The 3rd Exparte Applicant appeared before the officer on 25th September, 2024. They were directed to appear in court on 27th September, 2024. They maintain that they are entitled to the orders sought.
The Applicants’ Submissions:
16. They submit that the issue for determination by the court is whether the decision of the Respondents to charge the Exparte Applicants was legal, rational and procedurally sound.
17. They place reliance in the case of Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300, the court held that:
“In order to succeed in an Application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 CUR).”
18. In Philomena Mbete Mwilu v D.P.P & 3 Others [2019] eKLR the learned judge stated that:
“With regard to the process or manner of the conduct of investigations, the court in Josephat Koli Nanok & Another v Ethics & Anti-Corruption Commission (supra) went on to consider what an investigation process might entail. It stated that the person subject of the investigation would be entitled to fair administrative action, so that before a decision is taken for the prosecution of the suspect, the investigative agency must observe that person's rights by granting him or her the opportunity to respond to the allegation. It was observed that there would be as a matter of course, a preliminary inquiry, conducted internally, before the formal investigations, and that it should be at the formal investigation stage that the suspect is entitled to be heard”
19. They submit that the 1st Respondent failed to accord them an opportunity to be heard. Despite the investigating officer summoning them he deliberately and maliciously failed to conduct investigations on the issues raised by the Exparte Applicants and also deliberately and with hidden intent failed to record their statements.
20. The 1st Respondent proceeded to forward the file to the 2ndRespondent without the statements and documentary evidence submitted to it by the Exparte Applicants.
21. The investigations officer at paragraph 18 of his affidavit admits that he did not carry out investigations on the issues raised by the Exparte Applicants. He stated:
“That in response to paragraphs 37,38,39,40,41,42,43 and 44 the Exparte Applicants are introducing facts strange to the 1st and 2nd Respondents as the same does not form part of the matter that was investigated.”
22. They submit that the decision to charge the Exparte Applicants is a result of the misguided notion by the Respondents that the Exparte Applicant were aware of the existence of Nairobi ELC No. 189 of 2015 at the time of selling the property to the complainant.
23. The facts and issues raised by the Exparte Applicants were explanations that the Exparte Applicants proffered against the accusations levelled against them.
24. The Exparte Applicants by the said explanation sought to debunk and deconstruct the erroneous notion that they were aware of Nairobi ELC No. 189 of 2015 at the time of sale of the property to the complainant.
25. The Exparte Applicants clearly explained that upon the 1st Exparte Applicant selling the property to the complainant he entered into an agreement with RAJPAL KATANA KAZUNGU and LILIAN RIZIKI KAHINDI for sale and purchase of Plot No. 86 contained as subdivision in L.R. No. 7969 as the property sold to the complainant.
26. The 1st Exparte Applicant further explained that the funds he received from the complainant is what he used to purchase the other parcel from Rajpal Katana Kazungu and Lilian Riziki Kahindi Kenya Shillings Two Million Eight Hundred Thousand (Kshs. 2,800,000/=) only as a refund to Edward Kimani who had initially purchased the land from Rajpal Katana Kazungu and Lilian Riziki Kahindi but failed/and or was unable to complete the transaction and Kenya Shillings One Million Five Hundred Thousand (KShs. 1,500,000/=) only paid to Rajpal Katana Kazungu and Lilian Riziki Kahindi.
27. The Exparte Applicants contended that the 2nd and 3rd Exparte Applicants are also beneficial owners for value of plots within L.R. No. 7969 which have substantially been developed and as such were also affected by the decision in Nairobi ELC No. 189 of 2015.
28. They submit that the foregoing issues, facts and evidence that the investigating officer contends at paragraph 18 of the replying affidavit did not form part of the matter and thus were not investigated.
29. Article 244 of the Constitution and Section 24 of the National Police Service Act vests the powers and mandate of investigations of crimes upon the police.
30. They submit that it was stated thus in Republic v Service & 2 others; Resilient investments Limited & 3 others (Interested Party); Limited (Exparte) (Judicial Review Application E037 of 2021) [2022/KEHC 43 (KLR):
"Investigation of the crime is a solemn duty imposed by law on the police officers. The duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the courts to record convictions but to bring out the real unvarnished truth."
31. It was incumbent upon the 1st Respondent to investigate all the issues and facts as raised by both the complainant and the Exparte Applicant and to not only focus its attention on the issues raised by the complainant in an obvious attempt to bolster the prosecution case.
32. Had the 1st Respondent conducted proper investigations including recording of the Exparte Applicants' statements, scrutinizing the documents submitted by the Exparte Applicants and all the details given by the Exparte Applicants they would have definitely arrived at the inescapable conclusion that the Exparte Applicants were not aware of Nairobi ELC 189 of 2015 and thus the intended charges of obtaining money through false pretenses cannot stand.
33. The Applicants beseech the court to review the decision as the 1st Respondent failed to take into account relevant consideration.
34. In Republic v Kenya School of Law & another; Abdi (Exparte) (Judicial Review MiscellaneousApp1ication E088 of2022) [2023] KEI-IC 17633 (KLR), the court held:
"The right to be heard is protected under Article 50 of the Constitution it is an inalienable right it is a cardinal principle that is protected under Article 25 of the Constitution, In MWN v/DK eKLR the court had occasion to consider the question of the right to be heard. It pronounced itself that the interests of justice lead a court to exercise discretion.”
35. The complainant contended that since the 1st Exparte Applicant's ownership of the property had been compromised, the contract was incapable of being performed in the foreseeable future. The complainant therefore sought to invoke the default clause by demanding refund of the purchase price.
36. They submit that the Exparte Applicants were of a contrary view and opined that the parties should await the outcome in Civil Appeal Number 611 of 2023 which was filed against the judgment in Nairobi ELC No. 189 of 2015.
37. Reliance is placed in Paul Stuart Imison Another vs. the Attorney General & 2 Others Petition No. 57 of 2009 in the following manner:
"The instances in which a court can declare a prosecution to be improper were well considered in Macharia & Another — vs- Attorney General & Another (2001) KLR 448. A prosecution is improper if:
a) It is fora purpose other than upholding the criminal law; (b) It is meant to bring pressure to bear upon the Applicant/accused to settle a civil dispute;
b) It is an abuse of the criminal process ofthe court;
c) It amounts to harassment and is contrary to public policy;
d) It is in contravention of the Applicant's constitutional right to freedom. (Emphasis added).”
38. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, the High Court held:
“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society's senses of fair play and decency and/or where the proceedings are oppressive or vexatious... The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court's) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer... In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely the bear pressure on the Applicants in order to settle the civil dispute.”
39. They decry the usage of the criminal proceedings by the complainant while being propped by the 1st Respondent to arm twist and/or coerce the Exparte Applicants to refund the purchase price.
The Respondents’ Case:
40. The Respondents oppose the Application vehemently through the investigating officer.
41. It is the investigating officer’s case that he received a complaint from the complainants in relation to the land they had purchased from the Applicants which they believed tainted with fraud.
42. It is his case that upon conducting investigation, he found that the Applicants had received money as consideration from a sale from the complainants which they had shared between themselves.
43. This was established from their bank statements and cheques that were paid to the Applicants.
44. It is his case that in order to complete the investigation he recorded the complainant’s statements and summoned Applicants who refused to record their statements. He was forced to forwarded the investigations report to the 2nd Respondent who returned the file for further investigation
45. He summoned and issued the Applicants a charge and caution before sending the file back to the 2nd Respondent who made a decision to charge the Applicants. It is his case that according to him there was a crime that had been committed by the Applicants.
46. It is the investigating officers' case that the Applicants knew of the existence of the civil suit at the time of selling the land to the complainants.
47. The 1st Respondent argues that the decision to charge the Applicants was pegged on the fact that the investigations established that there was a prima facie case that the Applicant's had committed fraud.
The 2nd Respondent's Submissions:
48. It submits that under Article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any court.
“The Director of Public Prosecutions shall exercise state powers of prosecution and may-(a)institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”
49. Reliance is placed in the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated:
“It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities. On the other hand, members of the public are also morally obligated to report incidents of crime to the ODPP and DCI.”
50. Moreover, in the case of Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & another Misc. ApplicationNo. 68 of 2011, Nairobi, in determining whether the ODPP and DCI had abused their statutory and constitutional powers, the Learned Judge stated that:
“…. the Police have a duty to investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.”
51. Article 157(4) provides that: -
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the national police service to investigate any information or allegation of criminal conduct and the Inspector General shall comply with any such direction.
52. Article 157(11) stipulates that:
(11) In exercising the powers conferred by this article, the director of public prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
53. It is submitted that the DPP was presented with a complete investigative file and made the Decision to Charge and that this decision was not made on a whim but guided by the Constitution, the ODPP Act, 2012 and the Decision to Charge Guidelines.
54. It is the 2nd Respondents’ submission that The DPP in its Guidelines on the Decision to Charge, 2019 (the Guidelines to charge) also correctly captured the role of the prosecutor once investigations are completed.
55. The 2nd Respondent in making the decision to charge the petitioner acted within his constitutional mandate.
56. Upon concluding investigations, the DCI established that there was a reasonable suspicion that an offence had been committed, hence prompting them to forward the investigation file to the 2nd Respondent for review and directions.
57. In the Michael Monari Case (Supra) the court stated that the police only need to establish reasonable suspicion that an offence had been committed before any charges can be preferred.
58. In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014 High court, Murang’a the court stated as follows-
“…. In my view, as long as the enabling legislation is constitutional, the Respondent’s actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the ODPP and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates.”
59. It is further submitted that Section 193A of the Criminal Procedure Code mandates civil proceedings to be heard concurrently with any criminal matter.
60. Section 193 A of the Criminal Procedure Code provides that ‘any matter in issue in any criminal proceedings which was also directly or substantially in issue in any pending civil proceedings could not be a ground for any stay, prohibitions or delay of the Criminal proceedings. Concurrent proceedings meant independent, simultaneous investigations and prosecutions involving substantially the same matter and parties.
61. It was submitted that whereas the Applicants had the right not to be subjected to an illegal and /or unwarranted criminal process, the DPP was also under a public duty to ensure that offences were prosecuted and those culpable attended to as the law required.
62. Reliance is placed in the case of Maina & 4 others vs Director of Public Prosecutions & 4 Others 9 Constitutional Petition E106 & 160 of 2021 (Consolidated) (2022) KEHC 15 (KLR) (Constitutional and Human Rights) (27 January 2022) (Judgment).
63. It is the 2nd Respondent’s submission that the considerations that guide courts when considering an Application such as this were best captured in the words of Mason CJ in William and Others v Spautz [1993] 2 LRC 659 at 667 where the High Court of Australia stated as follows:
“It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercise, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an Application for stay, unless once again the interests of justice demand it.”
64. Further, it is an established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights with precision and how the same have been or will be infringed in respect to him.
65. The Honorable Justice J. Mativo aptly held as follows in Leonard Otieno v Airtel Kenya Limited [2018] eKLR It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.
66. Article 160 of the constitution provides; in the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall not be subject to the control or direction of any person or authority.
67. They submit that the Applicants shall enjoy the right to equal protection in any court of law and a fair administrative process.
68. They submit that the Applicants have not set out with precision the manner in which the 2ndRespondent has infringed their fundamental rights and freedoms to warrant the intervention of this Honourable Court.
69. In the case of Anarita Karimi Njeru v Republic (No.1)-[1979] KLR 154 the Court stated;
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
70. They also rely on the Court of Appeal in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR, where it stated that:
“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle”
71. The 2nd Respondents submit that the Applicants have not indicated the rights which have been breached with clarity, apart from enumerating the Articles in the Constitution.
Analysis and determination;
Issues for determination:
1) Whether civil and criminal proceedings can move concurrently.
2) Whether an advocate can be charged for offences committed by their client.
3) Whether the Application has merit.
4) Costs.
72. Section 193A of the Criminal Procedure Code Cap 75 Laws of Kenya provides for parallel trial of civil and criminal proceedings. The Section reads:
“193A. Concurrent criminal and civil proceedings
Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”
73. In Republic v Inspector General of the National Police Service & another Ex parte Beatrice Hilda Omunia; Peter Nganga Chege & 2 others (Interested Parties) [2019] eKLR, Hon. Justice John Mativo J. as he was then, while commenting on the above provision held as follows at paragraph 32 of his Judgment:
"Even though it is not for this court to consider the defense of the accused persons, which is basically a function of the trial court, the core issue raised by the ex parte Applicant is that the dispute is purely civil. Section 193A of the Criminal Procedure Code permits parallel civil and criminal proceedings, hence, even if there was a civil suit in court, the existence of a parallel civil case is not bar to criminal proceedings. [14] The offence being investigated is known to the law, hence, the cited provision. The conduct under investigation can attract a criminal sanction if proved.”
74. The fact that there are civil proceeding that are pending before another forum is not a bar to the criminal prosecution that is pending before the criminal court that the Applicants think to challenge. The court agrees with the 1st Respondent on this.
The second issue is whether an advocate can be charged for offences committed by their client.
75. Though advocates enjoy certain privileges owing to the nature of their profession, the same is not absolute. An advocate can be charged with a criminal offence. In the instant case it is not clear whether the cheques that were paid to 2nd and 3rd Applicants were part of the fruits of the crime that the complainants were pursuing.
76. This court cannot delve into a merit analysis that would help settle that issue. That is what the criminal court or the Advocates disciplinary Tribunal would determine upon hearing witness testimonies and upon production of documents like the retainer between the Applicants. That is not for the judicial review court.
77. In so holding, Iam guided by the Court of Appeal at Nairobi [Coram: W. Karanja, Tuiyott & Nyamweya JJ. A] Civil Appeal No. 337 Of 2019 Between Dr. Gabriel MukuriaMuturi And Director, Kenya Forestry Research Institute (Kefri) And Dr. Jane Wangu Njuguna, where that court referred to the Supreme Court in Saisi & 7 others vs Director of Public Prosecutions & 2 others [supra] it is not the purpose and intent of a merit review in judicial review to undertake full-fledged inquiry into the merits of a matter. The Supreme Court explained as follows:
“76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full -fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to do so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing Page 20 of 24Judgment- NAI Civil Appeal No 337 of 2019. Testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.”
The next issue whether the Application has merit:
78. In order to determine this issue the court is guided by the case of JGH Marine A/S Western Ma
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