Brief background:
1. The Ex-parte applicants are jointly charged in Criminal Case No: 336 of 2022 Republic Vs Simon Kamere and Alice Muthoni Mwangi at the Milimani Chief Magistrate’s Court.
2. The particulars of the charge are that the Ex-parte Applicants on or before 29th May 2014, at Ukulima Co-operative House, Haile Sellasie Avenue within Nairobi County, with the intent to defraud the Estate of the Late Pius Kimani Mwaura, jointly forged a certain document namely a will dated 29thMay 2014 purporting it to be a genuine will signed by the late Pius Kimani Mwaura.
3. The 1st Ex-parte applicant is also charged with a second count of uttering a false document contrary to Section 353 as read with section 349 of the Penal Code. The 1st Ex-parte Applicant is said to have on 17th March 2020 at Ukulima Cooperative House, Haile Sellasie Avenue within Nairobi County, Knowingly and fraudulently uttered a certain document namely a forged will dated 29th May 2014 to Monicah Njoki Kimani daughter of the late Pius Kimani Mwaura purporting it to be a genuine will signed by her late father Pius Kimani Mwaura.
4. The Late Pius Kimani Mwaura was the 1st Ex-parte Applicant’s client for a long time beginning the year 1970. His will dated 9th September, 2014 forms the subject matter of the aforesaid criminal proceedings against the Ex-parte Applicants.
5. There are two matters pending before the Milimani High Court, Family Division seeking a determination of inter alia the validity of the Will being P&A E763 OF 2021 and P&A 1486 OF 2019.
6. Through the Notice of Motion dated 14th March 2023,The Applicants are seeking the following orders.
1. THAT an order of Certiorari be and is hereby given removing into this honourable court and quashing the 2nd Respondent’s decision to charge and prosecute the ex-parte Applicants as contained in the charge sheet approved by the 2nd Respondent on 14th June, 2022 in Milimani Chief Magistrate’s Court Criminal Case No: E336 2022: Republic –Versus- Simon Kamere and Alice Muthoni Mwangi.
2. THAT an order of Certiorari be and is hereby given removing into this honourable court and to quashing the 3rd Respondent’s decision to admit the charge sheet approved by the 2ndRespondent on 14th June, 2022.
3. THAT an order of Certiorari be and is hereby given removing into this honourable court and quashing all the proceedings in Milimani Chief Magistrate’s Court Criminal Case No: E3362022: Republic –Versus- Simon Kamere and Alice Muthoni Mwangi in their entirety;
4. THAT an order of Prohibition forbidding the 1st, 2nd and 3rdRespondents from conducting any further proceedings whatsoever in Milimani Chief Magistrate’s Court Criminal Case No: E336 2022: Republic –Versus- Simon Kamere and Alice Muthoni Mwangi be and is hereby issued.
5. THAT an order of Prohibition forbidding the 1st Respondent, its employees, servants and/or agents from harassing, summoning, arresting and/or intimidating the Ex-parte Applicants over the will of Pius Kimani Mwaura (Deceased) be and is hereby issued.
6. THAT an order of Prohibition forbidding the 2nd Respondent from instituting any further or future charges against the ex- parte Applicants based on the same complaint or facts the subject of Milimani Chief Magistrate’s Court Criminal Case No: E336 of 2022: Republic –Versus- Simon Kamere and Alice Muthoni Mwangi be and is hereby issued.
7. THAT Costs be provided for.
7. The application is supported by the Statutory Statement dated 15th July 2022,Verifying Affidavits sworn by Simon Kamere on 15th July, 2022,the Supplementary Affidavit sworn by Simon Kamere on 22nd August, 2022, the Supplementary Affidavit sworn by Alice Muthoni Mwangi on 22ndAugust, 2022,the Supplementary Affidavit sworn by Nancy Wanjiru Kimani on 18thAugust, 2022 and the Affidavit sworn by Moses Kinyanjui Kimani on 19thSeptember, 2022.
8. The Application is vehemently opposed.
THE APPLICANTS’ CASE;
9. The Ex-parte Applicants are aggrieved by the process leading up to the decision to charge them in Criminal Case No: 336 of 2022 Republic Vs Simon Kamere and Alice Muthoni Mwangi and they are asking this court to intervene and halt their prosecution on the grounds that, the criminal proceedings are actuated by ulterior motives, the criminal justice system is being used as a pawn in civil disputes, The criminal proceedings are an abuse of the prosecutorial powers and the criminal justice system, Their prosecution is inimical to public interest and the administration of justice and also that the allegations against them taken at their face value and accepted in their entirety, do not constitute the offence alleged.
10. It is the applicant's case that the Office of the Director of Public Prosecution is established under Article 157(1) of the Constitution. Article 157 (6)(a) clothes it with the power to 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.
11. The Applicant also cites Article 157(11) which provides guidelines on how the powers should be exercised. Section 4 of the ODPP Act is also refered to on the fundamental principles which guide the ODPP in prosecution of cases.
12. Reliance is placed in the case of Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021) (Judgment) where the Supreme Court affirmed the position taken by the Court of Appeal in the above quoted case and went ahead to provide guidelines of when the High Court can interfere with criminal prosecution commenced by the Director of Public Prosecution.
13. In another limb of their case, the Applicants argue that the two consolidated suits P&A E763 OF 2021 and P&A 1486 OF 2019 pending in the family division of the High Court and the impugned criminal proceedings all revolve on the issue of whether or not the Will of Pius Kimani Mwaura is a forgery.
14. They argue that while Section 193 A of the Criminal procedure code permits concurrent civil and criminal proceedings the Court should intervene and stop the criminal proceedings in instances where it is clear that the criminal proceedings are being used as a pawn in civil disputes.
15. They believe that the impugned criminal proceedings were instituted with a view of obtaining a conviction against the Ex-parte Applicants which would assist the Complainants prove their allegations of invalidity of the Deceased’s will in the pending succession case.
16. The Applicants argue that the criminal proceedings have been mounted to defeat the will of the Deceased and having his Estate distributed in accordance with the laws of intestacy.
17. The 2nd and the 5th Interested parties are said to have made statements to the DCI indicating that they believed their father’s will was forged. It is the Ex parte Applicant’s case that at Paragraphs 12 to 17 of their Replying affidavit dated 19th September, 2022 they have withdrawn from that position and now state that the 1st Interested Party reported the alleged forgery to the DCI to prejudice the beneficiaries of the will of the Deceased, delay the succession case an attempt by the 1st Interested Party to unjustifiably enrich herself while portraying the other parties as criminals.
18. Further that the complainants in the criminal case were opposed to the reading of the will from the get go even before they knew its contents and that it took one of the beneficiaries to file a citation in P&A 1486 of 2019 for the will to be read.
19. The Ex parte Applicants also state that the witness statements that were recorded at the DCI reveal that the real issue the Interested parties have against the will is the perceived favoritism and leaving out of properties belonging to the deceased and that their wish is to have the properties divided equally.
20. It is also their case that the complainants in the criminal case have petitioned the court for Grant of Letters of Administration Intestate in P&A E763 OF 2021 claiming that the Deceased died intestate.
21. The complainants are said to be claiming that Nancy Wanjiru was favoured in the will contrary to their expectations and therefore the will must be a forgery.
22. The Ex parte Applicant’s cite the case of Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703, while quoting the decision in H.C. Misc. Appl.839 and 1088/99 Vincent Kibiego Saina v. The Attorney-General affirmed the following about the use of criminal justice System;
“It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest.
23. The Ex parte Applicants also cite the Ugandan case of Kigorogolo vs Ruesherika, [1969] EA 426 where it was held that:
“When a remedy is elsewhere provided and available to a person to enforce an order of a civil court in his favour, I see no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved.......................”
“ If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment there under, such an object is unworthy to say the least and cannot be countenanced by this court.”
24. It is their case that the criminal prosecution of the Ex-parte Applicants has been mounted to enable the 1st to the 6th Interested Parties get evidence to support their cause in the pending succession case. Further that if the Court handling the succession case makes a finding that the will was a forgery, the Ex-parte Applicants will be arrested and charged.
25. The applicants believe that Chief Magistrate's Court Criminal Case No. E336 of 2022: Republic –Versus- Simon Kamere and Alice Muthoni Mwangi is an abuse of prosecutorial powers.
26. The applicants appreciate that it is not the duty of the High Court conducting judicial review proceedings to analyse the evidence the ODPP intends to rely on at the criminal trial with a view of deciding its sufficiency or otherwise. Reliance is placed in Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties);Ex-parte Applicant: Pravin Galot [2020] eKLR.
27. According to the Ex parte Applicants the Charge sheet refers to a will dated 29th May, 2014 while all the evidence as contained in the witness statement relate to the will dated 9th September, 2014. It is their case that the witness statements are all based on hearsay evidence based on what the writers of the statements were told by third parties.
28. The Ex-parte Applicants also argue that the statements made to the police do not demonstrate intention to defraud on the part of the Ex-parte Applicants which is a key ingredient in a charge of forgery and uttering false documents. It is also their case that there is no evidence that any of the Ex–parte Applicants was named as a beneficiary in the will of the deceased or took any other benefit from the will.
29. The 1st to the 6th Interested Parties believe their father’s will is a forgery because of several reasons which include that it did not include all his properties, it favored Nancy Wanjiru Kimani,the subdivision of the properties was not according to what they think is fair and that their father’s friends Gabriel Mwaura and Joseph Karanja were not allowed to witness the Deceased’s execution of the will.
30. The Deceased is said to have bequeathed his residuary estate to Monicah Njoki as per clause 19 of the will exhibited as SK II in the Verifying Affidavit dated 15th July, 2023. This provision in the will takes care of all properties of the Deceased not expressly listed in the will.
31. The Ex parte Applicant’s also state that the residuary Estate is bequeathed to Monicah Njoki making her the beneficiary who takes the biggest chunk of the Estate. Further that the will does not favour Nancy Wanjiru Kimani as alleged.
32. They also argue that under the law of succession executors of a Will are not competent witnesses to the said will and therefore Gabriel Mwaura and Joseph Karanja could not have witnessed the deceased’s will.
33. According to the Applicants, if the court allows the criminal proceedings to continue it shall be setting a bad precedent where persons who are not content with documents drawn by an advocate shall be at liberty to drag the advocate to a criminal court and put the advocates liberty at risk. The Applicants refer to the case of Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLR on persecution of advocates for work done for their clients in good faith.
34. The Applicants argue that sufficient evidence in a case such as the instant one would include a holding by the succession court, where the burden of proof is less compared to a criminal court, that the will is a nullity on account of forgery. The Supreme Court in the case of Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021) (Judgment) is refered to on cases giving rise to both civil and criminal proceedings where the court held that “ it is indeed advisable for parties to pursue civil proceedings initially and with firm findings by the civil court on any alleged fraud, proceed to institute criminal proceedings to bring any culprit to book. In addition, we shall, later in this Judgment, express ourselves on the criteria to be used by the High Court before terminating any criminal prosecution”.
35. The Ex-parte Applicants submit that bringing the Criminal case before the determination of the pending civil dispute is putting the cart before the horse and it will be akin to opening a flood gate for the harassment of advocates by persons dissatisfied with the contents of the document drawn by them.
THE RESPONDENTS' CASE;
36. The Respondents’ case is supported by the Replying Affidavit of, service number 236857 CI Brenda Omwenga an investigator. He posits that the DCI has a duty to conduct criminal investigations and process as mandated by section 35 of National Police Service Act, Chapter 84, Laws of Kenya.
37. According to him, on 7th April 2020, a report was lodged at DCI Headquarters by one Monica Njoki vide letter Ref. NJK-333/2020 dated 7th April 2020 that her late father Pius Kimani Mwaura passed on 1st August 2018 leaving behind nine beneficiaries. He is believed to have left a will wherein he had expressed how he wished his estate to be distributed amongst his beneficiaries and appointed Gabriel Mwaura Ng'ang'a and Joseph Karanja Njoroge as the trustees.
38. When the Will was opened and upon perusal the signature appended on the will was suspicious as compared to other signatures appended on other documents. Simon Kamere is said to have provided a certified copy of the alleged will of the late Pius Kimani Mwaura.
39. CI Brenda Omwenga continues to testify that on 11th September 2020 a memo was written to the Document Examiner to confirm on the authenticity of the alleged signature of the late Pius Kimani Mwaura and it was confirmed that the will wasn't signed by the late Pius Kimani Mwaura.
40. She states that The Office of Directorate of Public Prosecution recommended that Simon Kamere and Alice Mwangi be charged with the offence of forgery of Will vide letter dated 25th October 2021 after which the Applicants were arraigned before the Magistrate' court at Milimani in Criminal Case No. E336/2022: Republic vs Simon Kamere and Alice Mwangi. It is her case that the process is in accordance with the law and is validly within the meaning and intents of Criminal prosecution.
41. Further that the prosecution of the Applicants was instituted according to findings of the investigations and at the time of making the decision to charge, the evidence gathered supported the ingredient of charges preferred against the Applicants and there was an indication that a crime had been committed.
42. It is the Deponent’s argument that the trial process is an avenue for the Applicants to defend themselves on the allegations made against them and further that they have failed to demonstrate that the Respondents has acted capriciously, in bad faith or abused the legal process in a manner to trigger the High Court's intervention.
43. It is the Respondent’s case that the Applicants’ presumption of innocence and their fundamental rights and freedom are guaranteed and jealously guarded by the Constitution and do not vanish by their prosecution before a competent court of law.
1ST INTERESTED PARTY’S CASE
44. Monicah Njoki Kimani,the 1st Interested Party who has the authority of the 2nd, 3rd ,4th ,5th ,6th ,11th ,12th and 13th Interested Parties to swear and plead on their behalf in her Replying Affidavit she argues that the affidavit of Moses Kinyanjui Kimani purportedly sworn on 19th September 2022 is a forgery and the purported deponent has said as much.
45. She also states that the Ex-parte applicants have been jointly charged and they have been enjoying all their rights to a fair trial before the criminal court. Further that the court should not usurp the mandate of other competent bodies to decide on contested matters currently before competent bodies.
46. It is also her testimony that the behavior of the 1st Ex-parte applicant of witnessing his client's will was very questionable.
47. The Interested Parties’ argue that they are total strangers to the orders referred to at paragraphs 7(23) and 7(24) of the verifying affidavit as annexure "SKVI" and that the same cannot be termed as evidence of a court order.
48. According to her, it is a clear admission by the ex parte applicant at paragraph 12 of his verifying affidavit that his judgment was always highly clouded to the extent that he could have been instructing a firm acting against his own clients to issue a demand letter against his very same own clients. The firm of Mokua Nyambati Mongare & Associates which is said to have filed the several applications that have been filed as deponed to at paragraph 20 of the verifying affidavit is said to be more of a proxy for the firm managed by the 1st Ex-parte applicant.
2ND AND 5' INTERESTED PARTIES' CASE.
49. MOSES KINYANJUI KIMANI swore an affidavit for himself and on the instructions and/or authority from the 5th interested party.
50. It is his case that the 1st Ex-parte applicant has been his father's lawyer, Pius Kimani Mwaura (deceased) and was handling various issues for the family for over 30 years.
51. It is his case that a Will dated 9th September 2014 was executed by his father through the firm of Kamere & Co Advocates.
52. Further that on 11th September 2019 a letter was written by the said firm requesting them to fix a date for reading of the will after which the 7th Interested Party and Jackson Miringu Kimani moved court vide citation cause No.1486 of 2019 citing the 1st,2nd,3rd,4th,5th and 6th Interested Parties to accept or refuse citation after which the court further directed that the parties do file the Will in court within 7 days.
53. Even after the court's directions and the parties attending a meeting wherein the will was read in the presence of the family members, the 1st Interested Party (Monica Njoki) lodged a complaint to the DCI headquarters alleging that the aforesaid will had been forged.
54. The 2nd and 5th Interested Party argue that is clear that the actions of the 1st Interested Party to approach the DCI and report the purported forgery of the will is and/or was meant to prejudice the true beneficiaries of the will in an attempt to further delay the succession cases.
55. The actions by the 1st Interested Party is calculated to unjustifiably enrich her while portraying the other parties as criminals.
56. On her part, Juliet Wambui Nganga a co- administrator of the Estate of Jackson Miring'u Kimani with authority from her co-administrator Mr Francis Ng'ang'a Miring'u argued that they as the family of the late Jackson Miringu Kimani do support the application herein as it touches on matters they are contesting in the High court family division.
57. It is also her case that the proper forum and court to determine the validity and or otherwise of the Will is the Family Division of the High Court. According to her, the proceedings in Milimani Chief Magistrates court criminal case No:E336 of 2022 Republic -versus - Simon Kamere and Alice Muthoni Mwangi have been lodged to frustrate and delay the proceedings in the said pending matters in the High Court Family Division touching on the contested Will.
SUBMISSIONS BY THE 1ST -6TH,11TH ,12TH AND 13TH INTERESTED PARTIES
58. They submit that in their endeavor to obtain the orders sought, the Ex parte applicants have asserted that the criminal proceedings against them were instituted for ulterior or improper motive and that other than the bare assertion of ulterior or improper motive in the criminal proceedings against them, the most that the Ex parte applicants have attempted to buttress their unsupported claim is the mere mention of the existence of two (2) succession causes in which some of the Interested Parties are said to be parties.
59. It is also submitted that the Ex parte applicants claim that their eventual conviction in the criminal proceedings sought to be quashed and/or prohibited will aid some of the Interested Parties in the mentioned succession cases.
60. They also submit that no evidence has been tendered to demonstrate that the impugned criminal proceedings are an abuse of the prosecutorial powers and the criminal justice system.
61. Further that the Ex parte applicants have engaged in a merit review of the case facing them at trial and they are asking this court to determine whether the allegations against them taken at their face value and accepted in their entirety constitute the alleged offences.
62. They submit that it is inappropriate for this Honourable Court to engage in the determination of the issue of admissibility of evidence to be adduced at the trial court.
63. Also, that the applicants have not tendered any evidence to prove that their prosecution is inimical to public interest and the administration of justice and the application should be dismissed.
64. His case is advanced through the affidavit of Gabriel Mwaura Ng’ang’a. In his affidavit he focuses on the circumstances under which the impugned Will is alleged to have been executed by Pius Kimani Mwaura (deceased).
65. According to him, Pius Kimani Mwaura(deceased),Joseph Karanja Njoroge(deceased) have been long-term friends from their childhood and trusted each other with many of the issues that they faced through life and neither him nor Joseph Njoroge Karanja (deceased) would have had any reservations if Pius Kimani Mwaura (deceased) nominated them as his executors as the subject of their possible deaths is something they occasionally discussed as friends and would assure each other of taking up the role whenever any of them was to pass on leaving the others behind as happened with Pius.
66. He recalls that sometimes in the year 2014 which could be the 9th September 2014 mentioned by the 1st Ex parte applicant his friend Pius Kimani Mwaura (deceased) requested him and Joseph Njoroge Karanja (deceased) to accompany him to the offices of the 1st Ex parte applicant herein to act as witnesses when he was executing his Will.
67. The contents of that will had, however, up to that point not been disclosed by Pius Kimani Mwaura(deceased) neither to him nor to Joseph Njoroge Karanja(deceased) out of a mutual understanding between the three(3) of them that the contents of our respective wills would be confidential to each of us. He states that he is not aware if the deceased actually made them his executors.
68. It is his case that the deceased did not sign any will on the day they accompanied him to the offices of the 1st Ex parte applicant and that upon arriving at the offices of the 1st Ex parte applicant on the material day, the deceased was ushered into an inner office by the reception team while they remained at the reception area and that after approximately 15 minutes in the inner office they left.
69. The deceased is said to have appeared rather disappointed as they left the office which was understandable given that neither the deponent nor Joseph Njoroge Karanja (deceased) witnessed the signing of any Will on that day.
70. As they drove back the deceased explained to them that the exercise for which they accompanied him to the offices of the Ex parte applicant could not be accomplished on that day since the 1st Ex parte applicant informed him that the necessary documents were not ready.
71. The deceased is said to have unfortunately passed on four (4) years later before that exercise was completed. According to the 12th Interested Party the alleged will emanating from the 1st Ex parte Applicant purporting to have been executed by the deceased could very well have been a forgery, and the criminal justice system should be left to take its course without being interfered with by this Honourable Court.
72. It is also his argument that in any event, the reason given by the 1st Ex parte Applicant as to why himself and the 2nd Ex parte Applicant ended up attesting the execution of the alleged will dated 9th September 2014 does not add up looking at against Section 14 of the Law of Succession Act(Cap 160 Laws of Kenya).
73. The 12th Interested Party prays that the application be dismissed with costs.
ANALYSIS AND DETERMINATION;
74. Upon considering the arguments advanced by the parties I find the following to be the issues for determination;
i. Whether this court has jurisdiction?
ii. Whether the applicants are entitled to the orders sought?
Jurisdiction;
75. Article 165(3)(d)(ii) gives the High Court jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
76. Pursuant to Article 165(3)(d)(ii), the High Court can interrogate the exercise of the powers of the Director of Public Prosecution to check if the exercise is in accordance with Article 157(11) of the Constitution and Section 4 of the ODPP Act.
77. The Court of Appeal in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR while affirming the above position held as follows:
“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.”
“By the same token and in terms of Article 157 (11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri V. Republic [1985] LLR 3090.”
78. This court is of the view that the following questions do not fall within the ambit of the judicial review court. The Charge sheet refers to a Will dated 29th May, 2014 while all the evidence as contained in the witness statement relate to the will dated 9th September, 2014. The question whether or not the witness statements are all based hearsay evidence based on what the writers of the statements were told by third parties cannot be determined by this court.
79. This court lacks the jurisdiction to ascertain whether or not the statements made to the police demonstrate the intention to defraud on the part of the Ex- parte Applicants which is a key ingredient in a charge of forgery and uttering false documents. The question of intention can only be determined through viva voce evidence.
80. These can be determined in Milimani Chief Magistrate’s Court Criminal Case No: E336 of 2022: Republic –Versus- Simon Kamere and Alice Muthoni Mwangi and I so hold.
81. The judicial review court cannot delve into nor purport to determine the question whether or not there is enough evidence that any of the Ex–parte Applicants was named as a beneficiary in the will of the deceased or took any other benefit from the Will. The same applies to issues around the executors of a Will.
82. Whether or not the Will included all his properties, favored Nancy Wanjiru Kimani, The subdivision of the properties was not according to what they think is fair can only be raised before the Family Court.
83. The argument as fronted by the Applicants that the Deceased bequeathed his residuary estate to Monicah Njoki as per clause 19 of the will exhibited as ‘SK II’ in the Verifying Affidavit dated 15th July, 2023 calls for the tendering of viva voce evidence which this court cannot do. The issues of the residuary Estate and the requirement that a Will distributes the Estate equitably are not judicial review issues.
84. The question of whether or not the Will was a forgery can only be determined in the impugned Criminal proceedings. In any event, The Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others held that;
“
(b) Judicial review was entrenched in the Constitution of 2010 to a substantive and justiciable right under Article 47 [see paragraph 78-page 301. The court concluded in paragraph 85 [see page 33]and held as follows:
'It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action is taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.”
85. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules but it has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.
86. In order to invoke the judicial review powers to do a substantive or a merit analysis of its case, the Applicants must demonstrate how their right was threatened or violated with precision so as to enable the Respondents to counter the allegation within Article 24 of the Constitution of Kenya.
87. The burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation within Section 107 of The Evidence Act. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice, or damage.
88. An Applicant who is inviting or expecting the court to carry out a merit analysis must do so within the dictates of Section 11 of the Fair Administrative Action Act demonstrating through evidence that the Respondents violated the concerned rights.
89. Upon perusing the application, the verifying affidavit, the supplementary affidavits in support of the application and the statutory statement this court has arrived at a conclusion that the Applicants through their Affidavits are inviting the court to conduct a merit analysis.
90. The Respondents and the Interested Parties have in the process of responding adopted the same trajectory to a large extent. It is this court’s finding that the Ex parte applicants have not fulfilled nor met the foregoing minimum standards that would persuade this court to carry out a merit analysis and I so hold.
91. In order to apply my mind to the issue, this court is guided by Section 35 of the National Police Service Act which sets out the duties of the Directorate of Criminal Investigations as below;
“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.”
92. In the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR it was held that;
“The police have a duty to investigate on 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. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene".
93. This court is cognizant of the fact that there is need to uphold victims’ rights and this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act.
94. The Applicants have not proven that the investigations are actuated by malice and/or bad faith.
95. The Interested Party has come out in opposing the application strongly. She has pointed out that she interacted with the applicants in several contractual relationships in their various capacities and she has an interest in the criminal case.
96. Having cautioned myself as a judicial review court that I should not delved into the merits of the case I have observed that in her detailed affidavit that the interested party indicates that she is a victim of the misdeeds of the applicants and she has a right to be heard.
97. Section 9(2) (a) of the Victims Protection Act Provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission.
98. Victim participation should meaningfully contribute to the justice process. Article 50 of the Constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and to participate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic [2020] eKLR.
99. The victim of an offense lodged a complaint with the police who initiated investigations. By filing a replying affidavit through the investigating officer, the respondent has been very forthright and candid with how he is conducting the investigations.
100. This court does not see any illegality or procedural impropriety in the manner in which the respondents are discharging their respective mandates as to warrant the interference of this court.
101. From the reading of the Replying Affidavits I am satisfied that the victims who are the Interested Parties herein have an interest in the outcome of the criminal case.
102. The Ex- parte applicants will not suffer any prejudice as they will be afforded an opportunity to defend themselves, cross-examine witnesses and adduce evidence in support of their case.
103. This court has the duty to protect, promote and fulfill the rights of the victims who are the Interested Parties and the families that have been left behind by the deceased. Allowing the Application before this Court will deny the Interested Parties their right to fair hearing.
104. The Applicants have not proven that the criminal prosecution was mounted so as to enable the 1st to 6th Interested Parties get evidence to support their cause in the pending succession case.
105. The Prosecution of crime is an important component of the criminal justice system and it should not be stopped whimsically. The Applicants will have their day before the trial court.
106. In the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, 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 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
107. Judicial review is now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action.
108. Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision.
109. I do not find any breach of the right to fair administrative action against the applicants. To allow the application will amount to deny of the right to fair hearing for the Interested Party, and I so hold.
110. Article 165(6) of the Constitution provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights.
111. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office.
112. The merits of the criminal case, and particularly whether the criminal proceedings have a likelihood of success, or that the Applicant has a good defence is not a ground for halting criminal proceedings by way of judicial review.
113. Where an Applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process, this Court should not hesitate in putting a halt to such proceedings, as that falls squarely within its mandate as a judicial review Court.
114. In the cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions as follows: (a) Where there is an abuse of discretion; (b) Where the decision-maker exercises discretion for an improper purpose; (c) Whether decision-maker is in breach of the duty to act fairly; (d) Whether decision-maker has failed to exercise statutory discretion reasonably; (e) Where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (f) Where the decision-maker fetters the discretion given; (g) Where the decision-maker fails to exercise discretion; and (h) Where the decision-maker is irrational and unreasonable.
115. The Applicants have not tendered any evidence towards demonstrating that their case fulfills the principles as enunciated in the case of Peter Ngunjiri Maina v DPP & 2 Others.
116. It is this court’s finding and I so hold that the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court as recognised by Section 193A of the Criminal Procedure Code; unless the commencement of the criminal proceedings is meant to force the Applicants to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim.
117. Section 193A of the Criminal Procedure Code on this issue provides that, “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."
118. In Republic vs Commissioner of Police and Another ex parte Michael Monari& Another, [2012] eKLR it was held that:
“the police have a duty to investigate on 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. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.
119. The Applicant has failed and I so hold to prove that the Director of Public Prosecutions has abused discretion or exercised his discretion for an improper purpose; or acted in a manner that amounted to a breach of the duty to act fairly; the Respondents have failed to exercise statutory discretion reasonably; or that the Respondents acted in a manner to frustrate the purpose of the Act donating the power, have fettered the discretion given or failed to exercise discretion; or that the Respondent has acted irrational and unreasonable.
120. In any event, it is this court’s finding that the trial court has the Jurisdiction and competence to hear and determine the charges before it.
121. The Applicant has also sought orders of prohibition.
122. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
123. It is my finding and I so hold that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the Applicants did not prove that they are entitled to the orders of Certiorari as sought in prayers 1,2 and 3,then Prayers 4,5 and 6 are declined and I so hold.
Disposition:
The accuracy and correctness of the evidence or facts gathered in an investigation can only be assessed and tested by the trial court which is best equipped to deal with quality and sufficiency of evidence gathered and properly adduced in support of the charges.
The Applicants seek to curtail the mandate of the criminal justice system actors as set out in the Constitution by attempting to circumvent a foreseeable trial process against them without any justifiable reasons as they have failed to demonstrate with specificity how the Respondent has acted ultra vires or in bad faith.
Order:
The Notice of Motion dated 14th March 2023 lacks merit and the same is dismissed with costs
Dated, signed and delivered through CTS on this 17th day of May 2024.
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J. CHIGITI (SC)
JUDGE