Applicant’s case;
1. The application before this Court is the Notice of Motion dated 28th April, 2024. The application is brought Under Section 8 &9 of the Law Reform Act, Chapter 26 of the laws of Kenya and Order 53 Rule 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following orders:
1) THAT this Honorable Court be pleased to issue an ORDER OF CERTIORARI to quash the 1st Respondents decision to charge the Applicants herein for the offence of Murder.
2) THAT this Honorable Court be pleased to issue an ORDER OF PROHIBITION prohibiting the Respondents from interfering directly and/or indirectly with the discharge of the mandate of the Applicants and or further charges in relation to the Gikomba area incident.
3) THAT any other order that this Honourable Court shall be pleased to issue m the circumstances.
4) THAT the cost suit of this suit be provided for.
2. The application is supported by a statutory statement dated 22nd June, 2023 and Supporting Affidavit of PC Tom Mbuku sworn on 28th April, 2024.
3. The 1st Applicant is introduced as a police officer of service no. 242786 and ID No. 26939609 actively serving as part of the national police service under Kenya Police Unit whose primary function is maintaining law and order as well as protection of property.
4. The 1st Applicant is said to have joined the forces on 22nd February 2009 as an administrative police recruit under the rank of a police constable and worked in various stations including Meru Imenti North Sub county, Lower Yatta Sub county, Kwa Vonza and currently in Kamukunji Police station.
5. It is the Applicants’ case that on the 9th October 2020 they were on patrol within Gikomba area when at about 0700hrs, they heard some commotion around quarry road which prompted them to dash to the area to confirm what was transpiring at that time.
6. On arrival, they found one James Waweru in the company of other people who informed them that there was a gang of around four men that had violently stolen his phone and Kshs 5000.
7. According to the Applicants, the robbers fled which prompted them to pursue them heading towards Nairobi River using new Pumwani Road.
8. The 1st Applicant was engaged on a one on one tussle with one of the said robbers who was wielding a knife and it was during the said tussle that the deceased lost his life.
9. It is contended that the 2nd Applicant tried to talk intervene by even shooting in the air to no avail which resulted in him circumstantially being forced to shoot dead one KELVIN NG'ANGA MAINA who was part of the said gang.
10. It is averred that DCI officers and scene of crime officers arrived at the scene where they took photos of the scene and the body of the deceased was transported to the morgue.
11. It is the Applicants’ case that the deceased was not known to them and the complainant positively identified the deceased as the person who had stolen from him while they were still at the scene.
12. It is further their case that they left the scene and returned their guns to the armory for ballistic examination. They were later summoned to the DCI offices at Kamukunji Police Station where they recorded their statements and were informed by the investigating officer that Inquest file number 25 of 2020 was opened and that the matter was still under investigation.
13. It is posited that on 6th October 2021, the 1st Applicant herein was summoned at the 2nd Respondent's offices to record a statement concerning the events that took place on 9th October 2020 and that on 19th June 2023, the 1st Respondent issued a directive to the 3rd Respondent for the arrest of the Applicants.
14. The Applicants argue that the sixth schedule of the National Police Service Act provides that one of the justifiable uses of a firearm is 'while saving or protecting the life of the life of the officer or other person’. According to them, the 1st Applicant’s life was at risk since the deceased nearly overpowered him and would have taken his life away were it not for the 2nd Applicant’s intervention.
15. They argue that shooting the deceased was necessary in the circumstances and the 2nd Applicant acted within his powers to protect his colleague’s life and argue that the Respondents have violated their rights and due procedure by disregarding the ongoing inquest and preferring charges against them.
16. The Applicants’ canvassed their application by way of written submissions dated 28th June, 2024.
17. In the case of Municipal Council of Mombasa ... Vs... Republic, Umoia Consultant Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal while setting out the purpose of Judicial Review held that: -
“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who make the decision have the power i.e. the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merit of the decision it elf- such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.
18. It is their submission that that their Application is based on the grounds of unreasonableness, and legitimate expectation.
19. On unreasonableness, the Applicants averred that the Respondents’ actions against them are unreasonable as they (Applicants) were fulfilling their lawful mandate and that Applicants took reasonable actions to preserve life before shooting the deceased.
20. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others, O'Regan J approved the reasonableness test which was stated as follows by Lord Cooke in R versus Chief Constable of Sussex, ex parte International Trader's Ferry Ltd
“The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock (1976/ UKHL 6; (1976/ 3 All ER 665 at 697{1976/ UKHL 6; , (1977/ AC
1014 at 1064 as 'conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt'. These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.... Whatever the rubric under which the case is placed, the question here reduces, as I see it, to whether the chief constable has struck a balance fairly and reasonably open to him.”
21. On the issue of Legitimate Expectation, it is their submission that the Applicants are expected to be appropriately armed and use reasonable force. Thus, the Respondents should protect the Applicants from unreasonable prosecutions due to lawful actions in their ordinary duty.
22. They submit that Paragraph 1 of the Sixth Schedule of the National Police Service Act provides as follows:
“A police officer shall always attempt to use non-violent means. first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result."
23. Paragraph 1 (a) of Part B of the Sixth Schedule further provides as follows:
Firearms may only be used when less extreme means are inadequate and for the following purposes-
(a) saving or protecting the life of the officer or other person AND
(b) in self-defense or in defense of other person against imminent threat of life or Serious injury.
24. It is their submission that even though the 1st Respondent has the mandate to Charge the same cannot be exercised in a vacuum and in wanton disregard of the provisions of the National Police Service Act the roles played by the other Investigative bodies such as the Director of Criminal Investigations.
25. It is contended that the decision to prefer charges against them is unreasonable as the inquest file has not taken its course and in violation of the Applicants’ Constitutional rights and an outright illegality.
26. Further, 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 and thus the Applicants pray that this Honourable Court to allows the Motion dated 28th April 2024 as prayed.
The 1st and 3rd Respondents’ case;
27. The 1st and 3rd Respondents’ in response to the Application filed Grounds of Opposition dated 5th June, 2024 where in They oppose the application on the following grounds:
1. The Prayers sought by the Petitioner are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article157 (6) of the Constitution. The prayers if granted would result to a greater injustice in the criminal justice system and public interest.
2. The law as provided for under Article 157(10) of the Kenya Constitution, 2010, as read with Section 6 of the Office of The Director of Public Prosecutions Act, 2013, the 2nd Respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of these powers or functions, shall not be under the direction or control of any person or authority. If the orders as prayed are granted by this honourable Court, it will be as good as this Court controlling the 1st respondent’s power to institute criminal proceedings.
3. The applicants have not adduced reasonable evidence to show that the decision to charge them is mounted for an ulterior motive and in bad faith.
4. The applicants must demonstrate that substantial injustice would otherwise result if the decision to charge is not quashed.
5. In the event the applicants are charged, the trial court is an impartial arbiter dispensing justice as per the law.
6. It is in the public interest that complaints made to the investigative agencies are investigated and the perpetrators of crimes are charged and prosecuted.
7. The Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per spirit in Article 157 (11) of the Constitution of Kenya, 2010.
8. The applicants recorded their statements with the investigator and were notified of the decision to charge them in the spirit of natural justice therefore, the decision by the 1st respondent is not tainted with illegality, irrationality or procedural impropriety.
9. The Application is an invitation to this Honorable Court to intervene against the 1st Respondent’s exercise of its constitutional mandate without proper factual or legal basis.
10. In making the decision to charge the 1st Respondent balanced the rights of the applicants and the public interest to ensure that justice is promoted and upheld.
11. An order of Certiorari in the circumstance is also not applicable because the decision was made intra vires the Constitution and that there was no breach of rules of natural justice or any error of law apparent on the face of the record.
12. Judicial intervention should be limited to acts that are manifestly in breach of the law or where the court is satisfied that the decision-maker made it while under the influence of other considerations other than the law, evidence, and the duty to serve the interests of justice.
13. The application is scandalous, frivolous and vexatious in that it is without substance or groundless or fanciful and it lacks bona fides and is hopeless or offensive and tends to cause the 1st & 2nd respondents unnecessary anxiety, trouble or expenses
28. The 1st and 3rd Respondents’ filed written submissions dated 9th July, 2024.
29. It is contended that the 3rd respondent was legally executing his functions as is provided for under the National Police Service Act. Investigations of crime is a solemn duty imposed by law on police officers and 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.
30. The functions of the National Police Service as enumerated in section 24 of the National Police Service Act include:
…
(e) investigation of crimes;
…
(g) prevention and detection of crime;
(h) apprehension of offenders;
(i) enforcement of all laws and regulations with which it is charged; and
(j) performance of any other duties that may be prescribed by the Inspector- General under this Act or any other written law from time to time.
31. It is submitted that Section 35 of the National Police Service Act provides the functions of the 3rd Respondent include— undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehend offenders; and performing any other function conferred on it by any other written law.
32. They submit that J M Mativo, J citing S. Williams and others 1998 (2) SACR 191 (SCA), as cited by Booysen, Justice, in S v Barnes and Another 1990 (2) SACR 485 (N), did observe that:
“a police’s position is different from that of ordinary citizens in that they cannot simply walk away from a criminal offence that has been reported to them or has been brought to their attention.”
33. It is further submitted that the 1st respondent made the decision to charge in exercise of its constitutional mandate as provided for under article 157 of the Constitution of Kenya, 2010.
34. It is argued that the Director of Public Prosecutions had regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process as per Article 157(11) of the Constitution of Kenya, 2010.
35. Reliance is placed in the case of Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR where the court pronounced itself as follows:
“To succeed in challenging the constitutional validity of the action or, where he refuses to institute or continue or discontinue a prosecution, inaction of the DPP, an applicant must show that the DPP has failed to give effect, in the particular case, to “public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process”.
36. It is posited that a prohibiting order prevents a public body or court from acting beyond its powers in the future. Prohibiting orders are particularly useful as they may be sought to prevent a decision being made in excess of jurisdiction. The Applicants are seeking for an order of prohibition against the Respondents so as to prohibit them from interfering directly and/or indirectly with the discharge of their mandate and or charges in relation to the Gikomba area incident.
37. Reliance is placed in the cases of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR and Kuria & others versus AG [2002] 2 KLR 69.
38. According the 1st and 3rd Respondents’ the Applicants have not demonstrated to this court how the decision they are challenging is tainted with illegality, irrationality and/or procedural impropriety and thus their application should be dismissed with costs.
The 2nd Respondent’s case;
39. The 2nd Respondent did not file a response to the Applicant’s Notice of Motion dated 28th April, 2024, however they filed written submissions which are undated.
40. It is their submission that the 2nd Respondent acted within its mandate as is stipulated under Section 6 and Section 29(1)(a) of the Independent Policing Oversight Authority Act (hereinafter refered to as the Act). Section 29(1)(a) provides:
“The Authority may after completing an investigation into a complaint under this Act - where the inquiry in the Authority's opinion, discloses a criminal act by a member of the Service, recommend the prosecution of that member to the Director of Public Prosecutions.”
41. It is submitted that having perused the 2nd Respondent's report and Investigation file the 1st Respondent found the Applicants to be culpable for the offence of Murder and found that they should be charged accordingly.
42. They submit that the main issue for consideration is whether the conduct of the investigations is a violation of an Applicants’ constitutional rights.
43. Reliance is placed in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others [2019] eKLR where the Court held: -
“...In our view, it would be within the mandate of an investigative body to receive complaints and to investigate them. Such bodies or entities cannot be faulted for acting on the complaints as in so doing, they would be acting within their constitutional and statutory duty." Further, we rely on the case of Josephat Koli Nanok & another vs. Ethics and Anti-Corruption Commission (2018) eKLR, where Court stated that "by undertaking investigations an investigating entity does not violate any constitutional rights, and that violation of rights may only occur in the manner in which the investigative mandate is executed. In that event, the Petitioner would be under an obligation to demonstrate that his or her rights have been violated by the manner of investigation and attendant processes”
44. It is submitted that Applicants have not demonstrated how the 1st and 2nd Respondents acted in bad faith.
45. Reliance is placed in the case of Joshua Okungu & Another v The Chief Magistrates Court, Nairobi & Another [2014] eKLR where the court held thus:
“...the law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The 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 ...”
46. Reliance is also placed in the case of Eunice Khalwali Miima v Director Public of Prosecutions & 2 others {2017] eKLR where the Court stated:
“The circumstances under which the Court will grant stay of a criminal process in these kinds of proceedings is now well settled. 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. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision-making process. That an applicant has no good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.”
47. It is the 2nd Respondent’s case that the Applicants have not presented nor proved any defects in the decision-making process by the 2nd Respondent as a decision-making body.
Analysis and determination
Issues for determination:
48. Upon perusing the pleadings filed and exchanged by the parties herein, as well as the submissions of the respective parties and the authorities relied upon, this court finds the following to be the issue for determination;
a) Whether or not the court has jurisdiction to determine this suit.
b) Whether submissions amount to evidence.
c) Whether or not the applicant has made out a case for the grant of the orders sought.
d) Who shall bear the costs.
Whether or not the court has jurisdiction to determine this suit;
49. Article 165(6) of the Constitution provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
50. This court has the power to determine the application.
Whether submissions amount to evidence;
51. he 2nd Respondent herein filed submissions but no Replying Affidavit to the Notice of Motion. However this court notes that they had filed a Replying Affidavit dated 10th July, 2023 in response to the Chamber Summons.
52. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, justice GV Odunga as then he was observed as follows: -
“It also relied on submissions of parties to which the no agreed documents were annexed. Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions.”
53. In the case of Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007:
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
54. In Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:
“Indeed, and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So, submissions are not necessarily the case.”
55. In Ng’ang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
56. In Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 held that;
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
57. It is this court’s finding and I so hold that the 2nd Respondents have not tendered any evidence.
58. The 2nd Respondent’s submissions cannot stand on nothing.On their own they cannot assist this court in determining the issues before it and I so hold.
Whether or not the applicant has made out a case for the grant of the orders sought;
59. The Director of Public Prosecutions the ODPP has powers to prosecute all crimes under Article157 (6) of the Constitution.
60. The Applicants argue inter alia that they were serving at the time the shooting incident took place.
61. The 3rd Respondent raises a ground that the prayers if granted would result to a greater injustice in the criminal justice system and public interest.
62. There is no reason why the 3rd Respondent failed to tender evidence to demonstrate how the decision to charge would result to a greater injustice in the criminal justice system and public interest.
63. This court reaffirms that Article 157(10) of the Kenya Constitution, 2010, as read with Section 6 of the Office of The Director of Public Prosecutions Act, 2013, the ODPP does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of these powers or functions, shall not be under the direction or control of any person or authority.
64. According to the Grounds raised by the 1st and 3rd Respondent The Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per spirit in Article 157 (11) of the Constitution of Kenya, 2010.
65. According to the Grounds raised by the 1st and 3rd Respondent,The Applicants recorded their statements with the investigator and were notified of the decision to charge them in the spirit of natural justice therefore, the decision by the 1st respondent is not tainted with illegality, irrationality or procedural impropriety.
66. The Respondents could have sworn an affidavit wherein they would have articulated and demonstrated what they raise in the grounds of opposition through evidence.
67. The investigating officer did not swear any affidavit which would have helped to shed light and brought out evidence around the decision to charge, the public interest, the decision to charge, inter alia. They did not.
68. The foregoing critical information is within the 1st and 3rd Respondent’s reach as the decision makers. From the Application they could clearly see and appreciate what the Applicants case was all about.
69. In Phillip Tirop Kitur v Attorney General [2018] eKLR, Mativo J dealt with a similar situation in which the petitioner a former university student sued for violation of his fundamental rights and swore an affidavit in support of his petition, averring that he was arrested, subjected to torture, inhuman and degrading treatment, charged, convicted for sedition, and sentenced to a term of imprisonment without proper due process being followed. In response to the petition as in the present appeal, the Attorney -General only filed grounds of opposition, but did not file any replying affidavit or call any oral evidence. The High Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the petitioner’s evidence stood unchallenged.
70. In the case of Peter O. Nyakundi & 68 others v Principal Secreary, State Department of Planning, Ministry of Devolution and Planning & another [2016] eKLR it was held:
“As stated earlier the Respondents did not file any Replying Affidavit to challenge and/or controvert the sworn averment by the Petitioners that they were victims of the post-election violence. Ground of Opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath. (see Mereka & Co. Advocates Vs Unesco Co. Ltd 2015 Eklr, Prof Olaka Onyango & 10 Others Vs Hon. Attorney General Constitution Petition No. 8 Of 2014 And Eliud Nyauma Omwoyo & 2 Others –Vs Kenyatta University). The Respondents have failed to refute specifically the allegations in the Petitioner’s sworn affidavit in support. Failure to file a Replying Affidavit can only mean that those facts are admitted. Therefore, in the absence of any evidence to the contrary I find that the petitioners are indeed victims of the 2007/2008 post-election violence.”
71. In Daniel Kibet Mutai & 68 others v PS State department of Planning, Ministry of Devolution and Planning (2016)eKLR, the court had the following to say;
“First, the learned Judge failed to distinguish ‘admission of the claim’ from ‘admission of the facts alleged in support of the claim’. The respondent did not file any replying affidavit challenging the facts that were alleged. However, the respondent filed grounds of opposition maintaining that it was not liable to the appellants basically on grounds of law, to wit that the petition was incurably defective; that it does not rise to the threshold of a constitutional petition as envisaged by Article 22 of the Constitution; that there has been undue laches running into thirty years; that the Department of Defence was entitled under the Armed Forces Act to take certain disciplinary measures; and that the petitioners were subjected to due process.”
In Kennedy O. Otieno & 12 others v Kenya Electricity Generating Co. Ltd (2010) eKLR, the High court stated;
“The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the applicant in its supporting affidavit. Thus what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant. In this regard, the court held in KipyatorNicholas Kiprono Biwott .v. George Mbugussand Kalamka Ltd Ciivil case no. 2143 of 199 “…….From the facts and the law I have analyzed in this case, I do find the Defendants have no defence to this suit………having filed no replying a
[...truncated]
1. The application before this Court is the Notice of Motion dated 28th April, 2024. The application is brought Under Section 8 &9 of the Law Reform Act, Chapter 26 of the laws of Kenya and Order 53 Rule 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following orders:
1) THAT this Honorable Court be pleased to issue an ORDER OF CERTIORARI to quash the 1st Respondents decision to charge the Applicants herein for the offence of Murder.
2) THAT this Honorable Court be pleased to issue an ORDER OF PROHIBITION prohibiting the Respondents from interfering directly and/or indirectly with the discharge of the mandate of the Applicants and or further charges in relation to the Gikomba area incident.
3) THAT any other order that this Honourable Court shall be pleased to issue m the circumstances.
4) THAT the cost suit of this suit be provided for.
2. The application is supported by a statutory statement dated 22nd June, 2023 and Supporting Affidavit of PC Tom Mbuku sworn on 28th April, 2024.
3. The 1st Applicant is introduced as a police officer of service no. 242786 and ID No. 26939609 actively serving as part of the national police service under Kenya Police Unit whose primary function is maintaining law and order as well as protection of property.
4. The 1st Applicant is said to have joined the forces on 22nd February 2009 as an administrative police recruit under the rank of a police constable and worked in various stations including Meru Imenti North Sub county, Lower Yatta Sub county, Kwa Vonza and currently in Kamukunji Police station.
5. It is the Applicants’ case that on the 9th October 2020 they were on patrol within Gikomba area when at about 0700hrs, they heard some commotion around quarry road which prompted them to dash to the area to confirm what was transpiring at that time.
6. On arrival, they found one James Waweru in the company of other people who informed them that there was a gang of around four men that had violently stolen his phone and Kshs 5000.
7. According to the Applicants, the robbers fled which prompted them to pursue them heading towards Nairobi River using new Pumwani Road.
8. The 1st Applicant was engaged on a one on one tussle with one of the said robbers who was wielding a knife and it was during the said tussle that the deceased lost his life.
9. It is contended that the 2nd Applicant tried to talk intervene by even shooting in the air to no avail which resulted in him circumstantially being forced to shoot dead one KELVIN NG'ANGA MAINA who was part of the said gang.
10. It is averred that DCI officers and scene of crime officers arrived at the scene where they took photos of the scene and the body of the deceased was transported to the morgue.
11. It is the Applicants’ case that the deceased was not known to them and the complainant positively identified the deceased as the person who had stolen from him while they were still at the scene.
12. It is further their case that they left the scene and returned their guns to the armory for ballistic examination. They were later summoned to the DCI offices at Kamukunji Police Station where they recorded their statements and were informed by the investigating officer that Inquest file number 25 of 2020 was opened and that the matter was still under investigation.
13. It is posited that on 6th October 2021, the 1st Applicant herein was summoned at the 2nd Respondent's offices to record a statement concerning the events that took place on 9th October 2020 and that on 19th June 2023, the 1st Respondent issued a directive to the 3rd Respondent for the arrest of the Applicants.
14. The Applicants argue that the sixth schedule of the National Police Service Act provides that one of the justifiable uses of a firearm is 'while saving or protecting the life of the life of the officer or other person’. According to them, the 1st Applicant’s life was at risk since the deceased nearly overpowered him and would have taken his life away were it not for the 2nd Applicant’s intervention.
15. They argue that shooting the deceased was necessary in the circumstances and the 2nd Applicant acted within his powers to protect his colleague’s life and argue that the Respondents have violated their rights and due procedure by disregarding the ongoing inquest and preferring charges against them.
16. The Applicants’ canvassed their application by way of written submissions dated 28th June, 2024.
17. In the case of Municipal Council of Mombasa ... Vs... Republic, Umoia Consultant Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal while setting out the purpose of Judicial Review held that: -
“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who make the decision have the power i.e. the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merit of the decision it elf- such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.
18. It is their submission that that their Application is based on the grounds of unreasonableness, and legitimate expectation.
19. On unreasonableness, the Applicants averred that the Respondents’ actions against them are unreasonable as they (Applicants) were fulfilling their lawful mandate and that Applicants took reasonable actions to preserve life before shooting the deceased.
20. In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others, O'Regan J approved the reasonableness test which was stated as follows by Lord Cooke in R versus Chief Constable of Sussex, ex parte International Trader's Ferry Ltd
“The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock (1976/ UKHL 6; (1976/ 3 All ER 665 at 697{1976/ UKHL 6; , (1977/ AC
1014 at 1064 as 'conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt'. These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.... Whatever the rubric under which the case is placed, the question here reduces, as I see it, to whether the chief constable has struck a balance fairly and reasonably open to him.”
21. On the issue of Legitimate Expectation, it is their submission that the Applicants are expected to be appropriately armed and use reasonable force. Thus, the Respondents should protect the Applicants from unreasonable prosecutions due to lawful actions in their ordinary duty.
22. They submit that Paragraph 1 of the Sixth Schedule of the National Police Service Act provides as follows:
“A police officer shall always attempt to use non-violent means. first and force may only be employed when non-violent means are ineffective or without any promise of achieving the intended result."
23. Paragraph 1 (a) of Part B of the Sixth Schedule further provides as follows:
Firearms may only be used when less extreme means are inadequate and for the following purposes-
(a) saving or protecting the life of the officer or other person AND
(b) in self-defense or in defense of other person against imminent threat of life or Serious injury.
24. It is their submission that even though the 1st Respondent has the mandate to Charge the same cannot be exercised in a vacuum and in wanton disregard of the provisions of the National Police Service Act the roles played by the other Investigative bodies such as the Director of Criminal Investigations.
25. It is contended that the decision to prefer charges against them is unreasonable as the inquest file has not taken its course and in violation of the Applicants’ Constitutional rights and an outright illegality.
26. Further, 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 and thus the Applicants pray that this Honourable Court to allows the Motion dated 28th April 2024 as prayed.
The 1st and 3rd Respondents’ case;
27. The 1st and 3rd Respondents’ in response to the Application filed Grounds of Opposition dated 5th June, 2024 where in They oppose the application on the following grounds:
1. The Prayers sought by the Petitioner are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article157 (6) of the Constitution. The prayers if granted would result to a greater injustice in the criminal justice system and public interest.
2. The law as provided for under Article 157(10) of the Kenya Constitution, 2010, as read with Section 6 of the Office of The Director of Public Prosecutions Act, 2013, the 2nd Respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of these powers or functions, shall not be under the direction or control of any person or authority. If the orders as prayed are granted by this honourable Court, it will be as good as this Court controlling the 1st respondent’s power to institute criminal proceedings.
3. The applicants have not adduced reasonable evidence to show that the decision to charge them is mounted for an ulterior motive and in bad faith.
4. The applicants must demonstrate that substantial injustice would otherwise result if the decision to charge is not quashed.
5. In the event the applicants are charged, the trial court is an impartial arbiter dispensing justice as per the law.
6. It is in the public interest that complaints made to the investigative agencies are investigated and the perpetrators of crimes are charged and prosecuted.
7. The Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per spirit in Article 157 (11) of the Constitution of Kenya, 2010.
8. The applicants recorded their statements with the investigator and were notified of the decision to charge them in the spirit of natural justice therefore, the decision by the 1st respondent is not tainted with illegality, irrationality or procedural impropriety.
9. The Application is an invitation to this Honorable Court to intervene against the 1st Respondent’s exercise of its constitutional mandate without proper factual or legal basis.
10. In making the decision to charge the 1st Respondent balanced the rights of the applicants and the public interest to ensure that justice is promoted and upheld.
11. An order of Certiorari in the circumstance is also not applicable because the decision was made intra vires the Constitution and that there was no breach of rules of natural justice or any error of law apparent on the face of the record.
12. Judicial intervention should be limited to acts that are manifestly in breach of the law or where the court is satisfied that the decision-maker made it while under the influence of other considerations other than the law, evidence, and the duty to serve the interests of justice.
13. The application is scandalous, frivolous and vexatious in that it is without substance or groundless or fanciful and it lacks bona fides and is hopeless or offensive and tends to cause the 1st & 2nd respondents unnecessary anxiety, trouble or expenses
28. The 1st and 3rd Respondents’ filed written submissions dated 9th July, 2024.
29. It is contended that the 3rd respondent was legally executing his functions as is provided for under the National Police Service Act. Investigations of crime is a solemn duty imposed by law on police officers and 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.
30. The functions of the National Police Service as enumerated in section 24 of the National Police Service Act include:
…
(e) investigation of crimes;
…
(g) prevention and detection of crime;
(h) apprehension of offenders;
(i) enforcement of all laws and regulations with which it is charged; and
(j) performance of any other duties that may be prescribed by the Inspector- General under this Act or any other written law from time to time.
31. It is submitted that Section 35 of the National Police Service Act provides the functions of the 3rd Respondent include— undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehend offenders; and performing any other function conferred on it by any other written law.
32. They submit that J M Mativo, J citing S. Williams and others 1998 (2) SACR 191 (SCA), as cited by Booysen, Justice, in S v Barnes and Another 1990 (2) SACR 485 (N), did observe that:
“a police’s position is different from that of ordinary citizens in that they cannot simply walk away from a criminal offence that has been reported to them or has been brought to their attention.”
33. It is further submitted that the 1st respondent made the decision to charge in exercise of its constitutional mandate as provided for under article 157 of the Constitution of Kenya, 2010.
34. It is argued that the Director of Public Prosecutions had regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process as per Article 157(11) of the Constitution of Kenya, 2010.
35. Reliance is placed in the case of Kelly Kases Bunjika v Director of Public Prosecutions (DPP) & another [2018] eKLR where the court pronounced itself as follows:
“To succeed in challenging the constitutional validity of the action or, where he refuses to institute or continue or discontinue a prosecution, inaction of the DPP, an applicant must show that the DPP has failed to give effect, in the particular case, to “public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process”.
36. It is posited that a prohibiting order prevents a public body or court from acting beyond its powers in the future. Prohibiting orders are particularly useful as they may be sought to prevent a decision being made in excess of jurisdiction. The Applicants are seeking for an order of prohibition against the Respondents so as to prohibit them from interfering directly and/or indirectly with the discharge of their mandate and or charges in relation to the Gikomba area incident.
37. Reliance is placed in the cases of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR and Kuria & others versus AG [2002] 2 KLR 69.
38. According the 1st and 3rd Respondents’ the Applicants have not demonstrated to this court how the decision they are challenging is tainted with illegality, irrationality and/or procedural impropriety and thus their application should be dismissed with costs.
The 2nd Respondent’s case;
39. The 2nd Respondent did not file a response to the Applicant’s Notice of Motion dated 28th April, 2024, however they filed written submissions which are undated.
40. It is their submission that the 2nd Respondent acted within its mandate as is stipulated under Section 6 and Section 29(1)(a) of the Independent Policing Oversight Authority Act (hereinafter refered to as the Act). Section 29(1)(a) provides:
“The Authority may after completing an investigation into a complaint under this Act - where the inquiry in the Authority's opinion, discloses a criminal act by a member of the Service, recommend the prosecution of that member to the Director of Public Prosecutions.”
41. It is submitted that having perused the 2nd Respondent's report and Investigation file the 1st Respondent found the Applicants to be culpable for the offence of Murder and found that they should be charged accordingly.
42. They submit that the main issue for consideration is whether the conduct of the investigations is a violation of an Applicants’ constitutional rights.
43. Reliance is placed in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others [2019] eKLR where the Court held: -
“...In our view, it would be within the mandate of an investigative body to receive complaints and to investigate them. Such bodies or entities cannot be faulted for acting on the complaints as in so doing, they would be acting within their constitutional and statutory duty." Further, we rely on the case of Josephat Koli Nanok & another vs. Ethics and Anti-Corruption Commission (2018) eKLR, where Court stated that "by undertaking investigations an investigating entity does not violate any constitutional rights, and that violation of rights may only occur in the manner in which the investigative mandate is executed. In that event, the Petitioner would be under an obligation to demonstrate that his or her rights have been violated by the manner of investigation and attendant processes”
44. It is submitted that Applicants have not demonstrated how the 1st and 2nd Respondents acted in bad faith.
45. Reliance is placed in the case of Joshua Okungu & Another v The Chief Magistrates Court, Nairobi & Another [2014] eKLR where the court held thus:
“...the law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The 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 ...”
46. Reliance is also placed in the case of Eunice Khalwali Miima v Director Public of Prosecutions & 2 others {2017] eKLR where the Court stated:
“The circumstances under which the Court will grant stay of a criminal process in these kinds of proceedings is now well settled. 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. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision-making process. That an applicant has no good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.”
47. It is the 2nd Respondent’s case that the Applicants have not presented nor proved any defects in the decision-making process by the 2nd Respondent as a decision-making body.
Analysis and determination
Issues for determination:
48. Upon perusing the pleadings filed and exchanged by the parties herein, as well as the submissions of the respective parties and the authorities relied upon, this court finds the following to be the issue for determination;
a) Whether or not the court has jurisdiction to determine this suit.
b) Whether submissions amount to evidence.
c) Whether or not the applicant has made out a case for the grant of the orders sought.
d) Who shall bear the costs.
Whether or not the court has jurisdiction to determine this suit;
49. Article 165(6) of the Constitution provides that the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
50. This court has the power to determine the application.
Whether submissions amount to evidence;
51. he 2nd Respondent herein filed submissions but no Replying Affidavit to the Notice of Motion. However this court notes that they had filed a Replying Affidavit dated 10th July, 2023 in response to the Chamber Summons.
52. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, justice GV Odunga as then he was observed as follows: -
“It also relied on submissions of parties to which the no agreed documents were annexed. Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions.”
53. In the case of Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007:
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
54. In Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 expressed himself as follows:
“Indeed, and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So, submissions are not necessarily the case.”
55. In Ng’ang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
56. In Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 held that;
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
57. It is this court’s finding and I so hold that the 2nd Respondents have not tendered any evidence.
58. The 2nd Respondent’s submissions cannot stand on nothing.On their own they cannot assist this court in determining the issues before it and I so hold.
Whether or not the applicant has made out a case for the grant of the orders sought;
59. The Director of Public Prosecutions the ODPP has powers to prosecute all crimes under Article157 (6) of the Constitution.
60. The Applicants argue inter alia that they were serving at the time the shooting incident took place.
61. The 3rd Respondent raises a ground that the prayers if granted would result to a greater injustice in the criminal justice system and public interest.
62. There is no reason why the 3rd Respondent failed to tender evidence to demonstrate how the decision to charge would result to a greater injustice in the criminal justice system and public interest.
63. This court reaffirms that Article 157(10) of the Kenya Constitution, 2010, as read with Section 6 of the Office of The Director of Public Prosecutions Act, 2013, the ODPP does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of these powers or functions, shall not be under the direction or control of any person or authority.
64. According to the Grounds raised by the 1st and 3rd Respondent The Director of Public Prosecutions made decision to charge while having regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process as per spirit in Article 157 (11) of the Constitution of Kenya, 2010.
65. According to the Grounds raised by the 1st and 3rd Respondent,The Applicants recorded their statements with the investigator and were notified of the decision to charge them in the spirit of natural justice therefore, the decision by the 1st respondent is not tainted with illegality, irrationality or procedural impropriety.
66. The Respondents could have sworn an affidavit wherein they would have articulated and demonstrated what they raise in the grounds of opposition through evidence.
67. The investigating officer did not swear any affidavit which would have helped to shed light and brought out evidence around the decision to charge, the public interest, the decision to charge, inter alia. They did not.
68. The foregoing critical information is within the 1st and 3rd Respondent’s reach as the decision makers. From the Application they could clearly see and appreciate what the Applicants case was all about.
69. In Phillip Tirop Kitur v Attorney General [2018] eKLR, Mativo J dealt with a similar situation in which the petitioner a former university student sued for violation of his fundamental rights and swore an affidavit in support of his petition, averring that he was arrested, subjected to torture, inhuman and degrading treatment, charged, convicted for sedition, and sentenced to a term of imprisonment without proper due process being followed. In response to the petition as in the present appeal, the Attorney -General only filed grounds of opposition, but did not file any replying affidavit or call any oral evidence. The High Court accepted the affidavit evidence, and ruled that in the absence of a replying affidavit or oral evidence from the Attorney General, the petitioner’s evidence stood unchallenged.
70. In the case of Peter O. Nyakundi & 68 others v Principal Secreary, State Department of Planning, Ministry of Devolution and Planning & another [2016] eKLR it was held:
“As stated earlier the Respondents did not file any Replying Affidavit to challenge and/or controvert the sworn averment by the Petitioners that they were victims of the post-election violence. Ground of Opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath. (see Mereka & Co. Advocates Vs Unesco Co. Ltd 2015 Eklr, Prof Olaka Onyango & 10 Others Vs Hon. Attorney General Constitution Petition No. 8 Of 2014 And Eliud Nyauma Omwoyo & 2 Others –Vs Kenyatta University). The Respondents have failed to refute specifically the allegations in the Petitioner’s sworn affidavit in support. Failure to file a Replying Affidavit can only mean that those facts are admitted. Therefore, in the absence of any evidence to the contrary I find that the petitioners are indeed victims of the 2007/2008 post-election violence.”
71. In Daniel Kibet Mutai & 68 others v PS State department of Planning, Ministry of Devolution and Planning (2016)eKLR, the court had the following to say;
“First, the learned Judge failed to distinguish ‘admission of the claim’ from ‘admission of the facts alleged in support of the claim’. The respondent did not file any replying affidavit challenging the facts that were alleged. However, the respondent filed grounds of opposition maintaining that it was not liable to the appellants basically on grounds of law, to wit that the petition was incurably defective; that it does not rise to the threshold of a constitutional petition as envisaged by Article 22 of the Constitution; that there has been undue laches running into thirty years; that the Department of Defence was entitled under the Armed Forces Act to take certain disciplinary measures; and that the petitioners were subjected to due process.”
In Kennedy O. Otieno & 12 others v Kenya Electricity Generating Co. Ltd (2010) eKLR, the High court stated;
“The respondents only filed grounds of opposition to the application reproduced elsewhere in this ruling. Grounds of opposition addresses only issues of law and no more. The grounds of opposition aforesaid are basically general averments and in no way respond to the issues raised by the applicant in its supporting affidavit. Thus what was deponed to was not countered nor rebutted by the respondents. It must be taken to be true. In the absence of the replying affidavit rebutting the averments in the applicant’s supporting affidavit, means that the respondents have no claim against the applicant. In this regard, the court held in KipyatorNicholas Kiprono Biwott .v. George Mbugussand Kalamka Ltd Ciivil case no. 2143 of 199 “…….From the facts and the law I have analyzed in this case, I do find the Defendants have no defence to this suit………having filed no replying a
[...truncated]