[1] The Notice of Motion dated 30th December 2022 was filed by the ex parte applicant, Suhayb Yusuf Timimi, pursuant to Sections 8 and 9 of the Law Reform Act, Chapter 26 of the Laws of Kenya and Order 53 Rule 3(1) of the Civil Procedure Rules, 2010, and all enabling provisions of the law. He thereby prayed for the following orders:
[a] An order of Certiorari to bring forth to this Court for the purpose of quashing the recommendation and decision by the 1st respondent, the Director of Public Prosecutions, to have the applicant arrested and charged vide a letter dated 14th November 2022.
[b] An order of Mandamus against the 2nd respondent to investigate the complaint made against the interested party.
[c] An order that costs of the application be awarded to the applicant.
[2] The application was premised on the grounds set out in the Statutory Statement dated 19th December 2022, annexed to the ex parte application for leave in which the applicant averred that, vide a letter dated 14th November 2022, the 1st respondent made a decision and recommended that he be arrested and charged with the offence of assault following a complaint by Timdhar Said Swaleh, the interested party herein. The assault was alleged to have happened at the applicant’s compound and was reported to the Mjambere Police Station.
[3] The applicant further averred that he had also made a formal complaint at the Mjambere Police Station against the interested party for trespass to his property but the same was ignored and no investigations were conducted. He added that, following the decision by the 1st respondent, heavily armed policemen visited his residence on 22nd November 2022 with a view of arresting him. His contention was therefore that the threats of possible arrest, charging, conviction and sentencing on an allegation of assault amount to a violation of his rights under Articles 27 and 28 of the Constitution, in that he was being subjected to discrimination and indignity, yet his formal complaint against the interested party was ignored by the respondents.
[4] Thus, it was the assertion of the applicant that the 1st respondent’s decision to charge was not only irrational but also biased in so far as it was based on the advice of the 2nd respondent and not on the Constitution and the Office of the Director of Public Prosecutions Act. He impugned the decision-making process on the following grounds:
[a] That the 1st respondent failed to issue any directions and/or decision on his complaint of trespass made at Mjambere Police Station.
[b] The investigations leading to the decision were biased, discriminatory and ill-advised.
[5] The application was resisted by the respondents as well as the interested party. The 1st respondent filed Grounds of Opposition dated 20th March 2023, contending that:
[a] The applicant was made in bad faith and does not disclose all the material facts relevant to the case.
[b] the application is aimed at delaying, frustrating and curtailing the respondents from exercising their respective constitutional mandates and thus an abuse of the court process.
[c] There is not an iota of material evidence placed before the Court to support the application and the claims advanced by the applicant.
[d] The applicant has approached the Court with unclean hands and is therefore undeserving of any equitable remedies.
[e] The orders sought are contrary to public interest.
[6] The 2nd respondent filed a Replying Affidavit sworn on 20th March 2023 by IP Alice Yale who averred that the instant application is an attempt by the applicant to deflect from the issue of assault which she states was reported by the interested party at Nyali Police station on the 2nd November 2022. The 2nd respondent conceded that the applicant also made a report at Mjambere Police station on the 3rd November 2022 of an alleged incident of creating disturbance. She however pointed out that no claim of any physical altercation or trespass was made by the applicant.
[7] The 2nd respondent further stated that applicant applied for review of the decision to arrest him, but was informed that the file had already been forwarded to the 1st respondent and that the 1st respondent had already issued the letter dated 14th November 2022 advising that the applicant be arrested and charged with assault. The 2nd respondent mentioned that the complaint against the applicant by the interested party was that she was assaulted by the applicant when visiting family members staying in the same compound as the applicant. The 2nd respondent stated that the assault was evidenced by a medical report and corroborated by eyewitnesses.
[8] According to the 2nd respondent, the applicant’s complaint, on the other hand, was not backed by credible evidence to warrant the arrest or prosecution of the interested party. The 2nd respondent denied the applicant’s allegations of intimidation and posited that the application is simply an attempt to delay the criminal process. Thus, the 2nd respondent also urged the Court to dismiss the suit.
[9] The matter was canvassed by way of written submissions, pursuant to the directions given herein on 6th March 2023. Consequently, the applicant filed written submissions dated 5th April 2023 proposing the following issues for determination:
[a] Whether the process that led to the decision to have the applicant arrested and charged was just and fair.
[b] Whether the orders of Certiorari and Mandamus should be granted as prayed.
[10] The applicant made reference to Section 4 of the Office of the Director of Public Prosecutions Act, which sets out the principles that guide the prosecutorial decisions of the 1st respondent. He proceeded to submit that the decision to prosecute him was flawed and therefore amounted, not only to a violation of his fundamental rights and freedoms, but also a breach of the rules of natural justice. Reliance was placed on High Court Civil Application No. 406 of 2001: Republic v Attorney General, Ex Parte Kipngeno Arap Ngeny, for the proposition that any criminal prosecution not based on factual foundation is suspect for ulterior motive or improper purpose.
[11] On whether his prayer for an order of Certiorari should be granted, the applicant submitted that his application only seeks to have the respondents compelled to act impartially and transparently. He reiterated his stance that the decision to have him charged and prosecuted was irrational, illegal and procedurally flawed, in that there was no justification for his arrest after the decision to prosecute had been halted by the 1st respondent vide a letter dated 16th November 2022. The applicant relied on Council for Civil Service Union v Minister for Civil Service [1985] AC 374, In Re Bukoba Gymkana Club [1963] 1 EA 478 and Thuita Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others, among other authorities, to buttress his argument that the respondents were duty-bound to act reasonably.
[12] The applicant also took issue with the fact that his complaint against the interested party was never acted upon by the 2nd respondent, yet under Section 49(4) and (10) of the National Police Service Act, it is expected that such reports be thoroughly investigated and appropriate action taken, including the recording of the applicant’s statement. The applicant also faulted the approach taken by the interested party in this matter, contending that in the Replying Affidavit, she dealt with the merits of the matter as well as extraneous issues, which ought not to form the subject of judicial review. He referred to High Court Miscellaneous Application No. 293 of 1993: Captain Geoffrey Kugoya Murungi v Attorney General and Jotham Mulati Welamodi v Chairman Electoral Commission of Kenya [2002] 1 KLR 486 as to the scope of the judicial review order of Certiorari and prayed that the orders sought by him be granted.
[13] On behalf of the 1st respondent, written submissions dated 17th April 2023 were filed herein by learned counsel, Ms. Anyumba. She proposed the following issues for determination:
[a] Whether the 1st respondent infringed on the applicant’s constitutional rights as alleged; and
[b] Whether the remedy of Certiorari is available against the 1st respondent.
[14] In respect of the 1st issue, counsel the 1st respondent submitted that, although the applicant alleged that the decision to charge him was based on ulterior motive and therefore in contravention of the Constitution, particularly Articles 2, 10, 22, 23, 25, 27, 47, 50, 53, 57, 159 and 232 of the Constitution, no proof was availed to demonstrate those allegations. In this regard, the 1st respondent relied on Sections 107(1), (2) and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya.
[15] The 1st respondent conceded that, after the decision to charge was taken, the applicant applied for review which prompted stay of any further action against him pending review. The 1st respondent further explained that upon calling for the file and undertaking a review thereof, it was established that there was sufficient evidence to support the charge of assault; whereupon the decision to charge was confirmed. Thus, the 1st respondent explained that it cannot be argued, in the circumstances, that the decision to proceed with the prosecution was based on extraneous considerations. Reliance was placed on Petition No. 376 of 2011: Hon. James Ondicho Gesami v Attorney General & others to augment this argument.
[16] It was further the submission of the 1st respondent that the applicant failed to demonstrate how the prosecutorial decision went contrary to public interest, the interest of the administration of justice, or failed to prevent or avoid abuse of the legal process. Emphasis was placed by the 1st respondent on the prosecutorial mandate provided for in Article 157 of the Constitution and the duty to ensure that offences are prosecuted and those culpable attended to as the law requires. The 1st respondent also mentioned the reciprocal duty to ensure that no person is subjected to an unwarranted prosecution.
[17] Hence, counsel pointed out that, since there was no evidence to support a charge against the interested party, her prosecution was unwarranted. She explained that the fact that no action has been taken against the interested party cannot be construed as an act of partiality; adding that, since the file is still open, appropriate action could still be taken should sufficient evidence become available in the future.
[18] On whether an order of Certiorari should issue against the 1st respondent, counsel relied on Article 157(10) which speaks to the independence of the 1st respondent and urged for restraint on the part of the Court. She submitted that the Court can only intervene where impropriety is established. On the authority of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR and Republic v Commissioner of Police and another, Ex Parte Michael Monari & another [2012] eKLR, the 1st respondent urged for the dismissal of this suit, contending that no evidence has been placed before the Court to demonstrate that the decision-making process was flawed.
[19] In the 2nd respondent’s written submissions dated 17th April 2023, a reiteration of the factual basis of the application was made. The 2nd respondent then proceeded to submit that judicial review is concerned not with the merits of the decision in respect of which the application is made but the decision-making process itself. In this regard, the 2nd respondent relied on Civil Appeal No. 185 of 2001: Municipal Council of Mombasa v Republic & Umoja Consultants Ltd and Pastoli v Kabale District Local Government Council & others [2008] 2 EA 300 and added that the Court can only interfere with the decision of the 2nd respondent on the grounds of ultra vires, irrationality or procedural impropriety.
[20] The 2nd respondent further submitted that the power to charge and prosecute is vested in the 1st respondent, an independent institution by dint of Article 157(10) of the Constitution. The 2nd respondent also urged the Court to exercise restraint so as not to unduly interfere with the constitutional mandate of the respondents. Counsel relied on cases of Republic v Attorney General & others, Ex Parte Diamond Hashim Lalji & Ahmed Lalji and Kipoki Oreu Tasur v Inspector General of Police & 5 others in this regard.
[21] The factual basis of this suit is largely uncontested. Those facts are that the applicant is a nephew to the interested party. He is also a son in law to the interested party. According to an abstract of the report of creating disturbance filed by the applicant, which was annexed to the 2nd respondent’s Replying Affidavit, the applicant had complained that his mother in law (the applicant) went to his residence and forcefully demanded a divorce and denied him the right to see his two-year-old son. The report further shows that the interested party hurled insults at him and threatened to harm him.
[22] Arising from that incident, the interested party alleged assault and immediately made a report to that effect at Nyali Police Station. The applicant filed his complaint of creating disturbance the following day at Mjambere Police Station. Upon investigations being done, a decision was taken to charge the applicant with the offence of assault. The applicant was aggrieved by that decision, contending that no consideration at all was given to his complaint; and therefore that the decision to prosecute him was made illegally, irrationally and in an improper manner. He accordingly filed this judicial review application for redress.
[23] The judicial review jurisdiction of the Court was extensively discussed in the Ugandan case of Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300, in which it was held:
“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).”
[24] The applicant has, in essence, challenged the decision by the 1st respondent to charge and prosecute him for the offence of assault. Hence the basic issue for consideration is whether the decision can be faulted on the grounds of illegality, irrationality or procedural impropriety.
[25] It is indubitable that the National Police Service is charged with inter alia the duty to carry out investigations into suspected criminal activities and to apprehend those found culpable. Hence, in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR, it was held:
“42. …the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police being carried out with ulterior motives but that the predominant purpose of conducting the investigations is not to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and 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.”
[26] Similarly, in Republic v Commissioner of Police & Another, Ex Parte Michael Monari & Another (supra), it was held:
“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 not 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.”
[27] In the same vein, the 1st respondent has the constitutional mandate to make independent decisions on whether or not a prosecution ought to be mounted. Article 157(10) of the Constitution is explicit that the DPP is not bound by any directions, control or recommendations made by any institution or body, being an independent public office. Consequently, the Court can only intervene in the exercise of the 2nd respondent’s prosecutorial decision where it is shown that the decision was made in disregard of the public interest or for some ulterior motive.
[28] Hence, in Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 (KLR) (16 July 2021) (Judgment), the Supreme Court held:
“81. Under article 157(6) of the Constitution, the DPP is mandated to institute and undertake criminal proceedings against any person before any court. Article 157(6) provides as follows:
(6) 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.”
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.”
However, 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.”
82.Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of article 157(11) have not been met, then the High Court under article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.
[29] Likewise, in the case of Anthony Murimi Waigwe v Attorney General & 4 others [2020] eKLR, the court held: -
48. It is no doubt clear that under Article 157 (1) of the Constitution the ODPP is enjoined in exercising the powers conferred by the aforesaid Article to have regard to public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process. Interest of the administration of justice dictates that only those whom the DPP believes have a prosecutable case against them be arraigned in Court and those who DPP believes have no prosecutable case against them be let free. This is why Article 159(2) of the Constitution is crying loudly everyday, every hour that “justice shall be done to all, irrespective of status". Justice demands that it should not be one way and for some of us but for all of us irrespective of who one is or one has.
49. The Petitioner in support of interest of administration of justice Dictates referred to the National Prosecution policy, revised in 2015 at page 5 where it provides that: "Public Prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, Public Prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available?
50. In the case of Republic v. Director of Public Prosecution & Another ex parte Kamani, Nairobi Judicial Review Application No. 78 of 2015 while quoting the case of R vs. Attorney general ex Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001; the Court held;
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.”
[30] In the Jirongo Case (supra) the Supreme Court relied on a decision rendered by the Supreme Court of India, namely RP Kapur v State of Punjab AIR 1960 SC 866 in which the factors to be considered by the court in similar circumstances were discussed. Hence, it was held that the Court can only intervene by way of judicial review in the following instances:
[a] Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or where it is shown that the quashing of the impugned proceedings would secure the ends of justice; or
[b] Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or
[c] Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; or
[d] Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
[31] In this instance, the respondents contend that complaints were filed which were investigated by the 2nd respondent and the respective files forwarded to the 1st respondent for appraisal. The 1st respondent thereupon made an independent decision to prosecute. The decisions to arrest and prosecute were therefore within the respective mandates of the 1st and 2nd respondents. None of the factors set out in the Jirongo Case above have been established by the applicant. As to whether there is sufficient evidence to back up the decisions is an entirely different matter that can only be tried before the subordinate court handling the criminal trial. Similarly, whether or not the interested party was the aggressor is an issue that falls squarely within the purview of the criminal trial.
[32] Indeed, authorities abound to show that the best forum for testing the sufficiency or otherwise of evidence is the trial court itself. For instance, in Erick Kibiwott & 2 Others v Director of Public Prosecution & 2 Others [2014] eKLR it was held that:
“…In determining the issues raised herein the Court will therefore avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or trial court. In dealing with the merits of the application, it is trite that 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 under Article 157 of the Constitution. There mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings…”
[33] Additionally, and more importantly, Article 50(1) of the Constitution provides that:
“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
[34] Needless to mention that the essence of Article 50(1) of the Constitution is the concept of a fair hearing; and that it envisages the context of the fair hearing to be a public hearing before “…a court or, if appropriate, another independent and impartial tribunal or body…” in which the accused person is afforded all the safeguards set out in Article 50(2) of the Constitution. It is for the foregoing reasons that it is always preferable that disputes about facts, such as those raised herein by the applicant, be ventilated before the subordinate court seized of the trial, which is itself a creature of the Constitution pursuant to Article 162 and 169 of the Constitution.
[35] In Michael Sistu Kamau & 12 Others v Ethics and Anti-Corruption Commission & 4 Others [2016] eKLR, a three-judge bench held that:
“The trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence and even after placing the accused on their defence, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words, unless the Petitioners demonstrate that the circumstances of the impugned process render it impossible for them to have a fair trial, the High Court ought not to interfere with the trial … “
[36] Accordingly, the Supreme Court pointed out in Saisi & 7 Others v the DPP that:
“88. It is our considered opinion that these are not issues concerning the propriety or otherwise of the decision by the DPP to charge them. These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction. In Hussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR this court held that it was not for the High Court as a constitutional court to go through the merits and demerits of the case as that is the duty of the trial court. Similarly, and as we have held hereinabove, it not for the judicial review court to undertake the merits and demerits of a matter based on controverted evidence and contested interpretations of the law.
89.We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court in Hussein Khalid and 16 others v Attorney General & 2 others [supra] as follows;
“[105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added]
[37] Similarly, in the case of Republic v Betting Control and Licensing Board & another Ex parte Outdoor Advertising Association of Kenya [2019] eKLR, it was held:
“34. Safeguarding legality is the most important purpose for the judicial review of administrative actions. Thus, in most administrative law systems, a person seeking judicial review of an administrative decision must be able to persuade the court that there are grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there must always be the premise of “want of legality.” This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures.
35. The most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and, second, that they may exercise those powers only after compliance with such procedural prerequisites as exist. So long as administrators comply with these two rules, their decisions are safe. From the perspective of administrators and statutory bodies, this fundamental principle generally requires that the exercise of powers of administrators and statutory bodies must strictly comply with the law both substantively and procedurally…”
[38] For the foregoing reasons, it is my considered finding that the Notice of Motion dated 30th December 2022 lacks merit. The same is hereby dismissed with an order for each party to bear their own costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 4TH DAY OF NOVEMBER 2024