'INTRODUCTION
1. The Petitioner herein filed Petition dated 14th August, 2023 seeking the following declarations and orders (slightly paraphrased for clarity);
I. A declaration the actions of the police officers of not following the provisions of section 60(1), 57(5) and 49(3) while conducting the search and seizure at the premises of the 1st Petitioner and using an inventory of goods seized from the premises as evidence amounted to a violation of his constitutional right under Article 50(4) of the constitution.
II. A declaration that the act of the ODPP approving the charge sheet against the 1st Petitioner without reputable evidence was contrary to Article 27 of the constitution.
III. A declaration that the act of detaining the 1st Petitioner in custody for a period of 7 days before arraigning him in court amounted to a violation of his right under Article 49(f).
IV. A declaration that the action of denying the 1st Petitioner information amounted to a violation of his constitutional right under Article 25(c), 35(1) and 50(2) (b) (c) and (k).
V. An order of mandamus to compel the OCS Nyanchwa to avail before it all OB entries from 3rd November 2020 to 10th January, 2021 as well as a covering report made in relation to criminal case No. 2289 of 2020 against the 1st Petitioner pending before the chief Magistrate court.
VI. A order to the CCIO-Kisii County directing him to investigate and bring before this court all the GPS locations of the geographical location of all telephone numbers of all the police officers who participated in the raid to 1st petitioners premises on 17th November, 2020 as well as the personal identification numbers.
VII. An order directing the Respondents to supply him with the information he requested by the 1st Petitioner on 21st July, 2021.
VIII. The court issue an order of certiorari quashing the criminal proceeding in case Kisii chief Magistrate case No. 2289 of 2020 pending before chief Magistrate court at Kisii as well as the charge sheet.
IX. The court issue an order of prohibition prohibiting the National Police Service, the ODPP and the CHIEF Magistrate court Kisii from charging, prosecuting, determining or handling in anyway any matter relating to the charge sheet or any allegation relating the events that happened on 17th November, 2020 or anything relating to the properties seized from the 1st Petitioner’s premises or any relating to criminal case Kisii chief Magistrate case No. 2289 of 2020
X. A declaratory order that the charge sheet and the inventory Kisii chief Magistrate case No. 2289 of 2020 were defective
XI. An order compelling the respondents to return all properties that were left out of the inventory attached to the charge sheet in Kisii chief Magistrate case No. 2289 of 2020 to the Petitioners.
XII. An order that the case Kisii chief Magistrate case No. 2289 of 2020 be allocated to a different magistrate.
XIII. An order of adequate compensation for damages of the unlawful arrest, damage of business reputation as well as all violation of rights enlisted in the petition.
XIV. Any other relief this court may deem fit to grant
2. The Petition was supported by lengthy affidavits of the 1st, 2nd and 4th Petitioners which I will endeavor to summarize.
3. The 2nd and 4th Petitioners averred that on 16th November, 2020, at around 2330hrs the 4th Respondent together with several other people in civilian clothes and others with police uniforms broke into 1st Petitioner’s residential home , his two shops, seized several properties and ferried them away in a land cruiser Registration number GK A462H and two motor cycles without taking record any including photograph of them or even videos of the same. The 1st Petitioner was not at home and thus they proceeded to arrest the 2nd and 4th Petitioners on allegations of handling suspected stolen properties. The 2nd Petitioner was set free leaving the 4th Petitioner in detention. However by the time the 2nd Petitioner was being set free she had already spent a night in custody with her two year old child (the 3rd Petitioner) an action she decries to have been a violation of her child’s rights. When the 2nd Petitioner and her child were set free, the child got sick and was treated at KTRH. The 2nd Petitioner claimed that before the said incident happened the 2nd Respondent had been forcing her to have an affair with him but she refused.
4. The 1st Petitioner in his affidavit averred that on 3rd December, 2020 when he arrived from Mombasa where he had attended a funeral, he was confronted by three police officers from Nyanchwa Police station while at one of his shops in Oyugis. The officers handcuffed him and took him to Nyanchwa Police station where he was booked and detained illegally for 4 days. The 1st Petitioner averred that during his arrest and detention he was subjected to psychological torture as he was not informed of his offense but the officers kept reminding him that he was good at snatching people’s phones. He was released and told to disappear from Kisii with a warning that a member of Sungu Sungu was after his life.
5. After his release he went to check on his girlfriend (the 2nd Petitioner) and his two year old son (the 3rd Petitioner). Upon arrival he discovered that the house and his shops had been broken into. The 2nd Petitioner informed him that his house and shops had been broken into by police officers who made away with his properties. She informed him that she had equally been arrested together with the 4th Petitioner on a fabricated allegation of possessing of suspected stolen goods and was later released.
6. The 1st Petitioner averred that he was later charged with the offense of possession of suspected stolen property in Kisii Chief Magistrate Criminal case No. 2289 of 2020 for the offense of handling stolen properties. The 1st Petitioner decried that the said case was not based on any based Occurrence Book(OB) report contrary to the provisions of section 49(3) and 60(1) of the National Police Service Act. He also alleged that all the goods that were collected from his premises were not booked in the OB contrary to section 137(f) of the National Police service Act.
7. The 1st Petitioner claimed that during his arrest the officers acted contrary to section 57(1) of the National Police Service act as they did not introduce themselves before conducting the search to his premises eventually seizing his goods.
8. The 1st Petitioner also claimed that the 3rd Respondent acted unconstitutionally by allowing his prosecution to proceed in the chief Magistrate court while there was no OB report regarding any stolen properties recorded at Nyanchwa Police station. He claims also that the 3rd Respondent acted contrary to his mandate under Article 157(11) for guiding and helping the police during the criminal investigation.
9. He however conceded that there was a confession of a convict by the name Thomas Motanya Mogaka who linked him to several criminal activities. He said that he had sought information from the 3rd Respondent regarding the said confession and whether the said Matonya would be a witness to the matter but was unable to get any response and as such his right to access information under Article 35 of the constitution was violated by the 3rd Respondent. The 1st Petitioner claimed that the said convict had through a sworn affidavit disputed the allegations of ever linking the 1st Petitioner to the any criminal activity. He attached the said Affidavit as evidence in support of his said averment.
10. He alleged that some of the goods taken away from his premises had been left out of the inventory amended on 18th November, 2020. He stated that the properties so left out of the amended inventory have never been returned to him.
11. The 1st Petitioner thus urged this court to issue an order stopping his prosecution in the trial court as he deemed the same as being malicious and an instigation of the 2nd Respondent whom he accuses of pushing the same having a relationship with the 1st Petitioner.
12. In response the Attorney general on behalf of the respondent filed grounds of opposition dated 5th May 2022 which were that;
a) That the Application is bad in law, incompetent, and misconceived reasons being;
b) That the Application is fatally defective, incompetent, and untenable both in substance and form as it does not meet the threshold for grant of the orders sought thus proper candidate for dismissal.
c) The Petitioners have failed to sufficiently demonstrate either by facts or evidence how the Respondents have breached his fundamental rights as enshrined in the constitution through the ongoing criminal prosecution.
d) That the Petitioners have not laid any basis through evidence that respondent’s action to investigate and charge the 1st Petitioner was tainted with illegality of procedure to warrant the issuance of orders of certiorari, mandamus and prohibition against the Respondents.
e) That the actions that the actions the Petitioners seek are within the constitutional and statutory mandate of the respondents.
f) That that the respondents acted within their constitutional and statutory mandates to charge the 1st Petitioner before a competent court of law and with an offence known in Law.
g) That 3rd Respondent who is constitutionally empowered under article 157(6) of the constitution of Kenya to institute and undertake criminal proceedings against any persons before the court in respect of any offence alleged to have been committed and that under article 157(10) does not require consent of any person or authority for commencement of criminal proceedings and in the exercise of his powers or functions shall not be under direction or control of any person or Authority.
h) That there are established legal process and remedy of judicial review which is concerned with reviewing the decision making process and is available to the petitioners.
i) That the orders sought in the petition have been overtaken by events and if granted by the court at this time it will amount to the court exercising and usurping the mandate of an independent constitutional body.
j) That the prosecution has not formerly commenced nor closed his case (KISII CRIMINAL CASE NO. 2289 OF 2020) and that Petitioners innocence can be determined by the trial court once the prosecution has tendered its evidence and closed the case.
k) That since the criminal case has not been concluded this court cannot be invited to find that there is no sufficient evidence to charge the Applicants or make a determination whether the contents of the charges facing that Applicants are in breach of applicants right to fair trial.
l) That the 1st Petitioner is trying to ventilate his defense before this court and that they should not be allowed to convert the constitutional court into a trial court which is the placed to deal with the issue.
m) That the petitioners have not placed any material evidence before this court to demonstrate how the respondents have discharged there constitutional mandate in breach of the law.
n) THAT that the petition and application is frivolous and an abuse of court process and meant to circumvent the criminal justice system.
o) That article 244 of the constitution of Kenya and section 24 of the National police service Act gives the 2nd Respondent powers to undertake independent investigations into any conduct or complaint lodged against any person.
p) That the petition has no foundation, lacks merit, offends settled legal principles and fails the test of constitutional petition and that the Chamber summons dated 14th August 2023 is misconceived, premature, premised on hearsay, without merit and intends to serve fishing expedition and an abuse of court process that the same should be dismissed with costs.
13. The Respondents equally filed a replying affidavit sworn by PC ALEX MUTISYA on 6th October 2023. He said that he is based at Nyanchwa police station . PC Alex averred that the petition is bad in law, lacks Merit and is gross abuse of the process of this Honourable court and it is brought in bad faith, that the 1st Petitioner is an accused person in KISII Chief magistrates court case No. 2289 of 2020 which is ongoing and that the same has been delayed by tactics of accused persons therein .
14. He narrated that a report of burglary had been made to their station and the same was alleged to have occurred on the night of 6th November 2020 at unknown time . Also that on 7th November 2020, he joined his colleagues namely CPL George Nyaoke, IP Stephen Chege, and PC Weldon Korir, to visit the scene of burglary at Botori area within Nyanchwa and upon visiting the scene of crime they found that several household items had stolen been stolen. On 15th of November 2020 together with CPL George Nyakoe they received information that two suspects had been arrested in connection with the offence and some exhibits recovered from one of the suspects. They proceeded to the station and collected the two suspects whom he came to know as Thomas Mogaka and Muthiani Mutua. They also collected the exhibits which were later identified positively by the owner one Fred Momanyi. A cautionary statement was handed over to them from there station having been recorded from the first suspect. The two suspects were interrogated at the station. Thomas Mogaka narrated that he has been involved in a series of crimes such as housebreaking and stealing. He implicated the 1st Petitioner among other people whom he was working with in the burglaries . Thomas also revealed to them that the 1st Petitioner has a motor vehicle make of Toyota Probox which they always used to ferry the goods after stealing but could not disclose the number plate of the said vehicle. Mokua told them where they had kept the stolen goods and led them to the house of Petitioner at Junction area. When they arrived at that place ,they found 1st Petitioner''s wife, the 2nd petitioner herein and their baby. They proceeded to conduct a search and recovered assorted items and later proceeded to the 1st Petitioner''s shop where Thomas Mogaka identified more items and the said items were taken to the Police station as the 1st Petitioner remained at large, though his wife was arrested and later released. The 1st petitioner claimed the ownership of the property but failed to prove ownership and thus the goods remained and are still kept at Nyanchwa police station in the exhibit store. The 1st Petitioner was later arrested and placed in custody and charged for the offence. The other two suspects were arraigned in court and charged accordingly and there cases have been concluded where Thomas Mogaka pleaded guilty and was sentenced vide Kisii Chief magistrate’s Case No 1737 OF 2020 and Muthiani Mutua was acquitted in Kisii Chief magistrate’s Case No. 642 OF 2021
15. The PC Alex further deponed that on 26th August 2021 when the matter was scheduled for hearing the accused 1st petitioner herein did not appear in court but sent his brother the 4th Petitioner. The 4th Petitioner informed was unwell and could not attend court. He also informed the court that his brother had been charged with the wrong name and that thus the charge sheet was amended to reflect the Petitioners. PC Alex also averred that he informed the court that 1st Petitioner had even taken plea and the matter had been mentioned several times, he had never availed himself in court for the hearing of the case and would always come with reasons to have hearing deferred.
16. PC Alex Averred revealed on 11.08.23 the court allowed an application for scene visit with the court and hearing at Nyanchwa police station and that despite the 1st petitioner who was informed about the date failed to attend court. The Court noting his absence, ordered for the production and verification of the exhibits which were found to be in order as per the inventory. The court proceed to cancel the 1st Petitioners bond and issued a warrant of arrest against him. The matter was mentioned on 27th September 2023, when the warrant of arrest was lifted on account that the Petitioner explained that had an accident in August.
17. PC Alex contended that the 1st Petitioner is using the other petitioners to push the stay of the criminal proceedings against him. He contended that there is no pending criminal case for the other petitioners and that the 3rd Petitioner is a minor who has no capacity to sue or be sued.
18. PC Alex contended that the documents annexed to the Petition have a lot of discrepancies in reports and allegations made by the petitioner to suit their time and place the events, including changing dates.
19. He also averred that the allegation on the issue of relationship between inspector Nyaoke and his wife and the alleged loss of Kshs 200,000 were mere allegations meant to taint the characters of the police officers who have been handling the case. He revealed that the said allegations had been brought after the IPOA and County Commander found the said allegations to be baseless. He also averred that the petitioners’ affidavits were marred with lies meant to try hoodwink the court that the Petitioners are victims of malicious prosecution and that they have been unfairly targeted.
20. He contended that the criminal case has not been concluded and 1st Petitioners innocence or guilt had not been established. He also and that the allegations are not true and are meant to derail the pending criminal court case hence the 1st Petitioner has been making so many allegations to various offices including the county commander, IPOA but upon inquiry the allegations have been found fabricated to defame the police officers.
21. He contended equally that the petition is premature as the criminal case against the first petitioner are still pending before the court and the 1st petitioner will have their day in court to defend themselves and examine the evidence placed before the court. He deponed too that the respondents do not have any motive for arresting and charging them but were simply carrying out the mandate as required by law. He also maintained that there is no pending order to arrest the 2nd and 4th petitioners.
22. PC Alex also averred that the documents that are being sought by the petitioners have been provided in the criminal case and are on record, and the same are annexed by the petitioners as the evidence, and that the 1st petitioner has not sought any additional documents from the police as alleged. He urged this court to allow the trial process be allowed to proceed as the 1st petitioner will have the opportunity to challenge all the evidence presented against him and present his defence while enjoying his constitutional right to a fair trial.
23. It is also the averment that the litigation must come to an end. He also contended that applicant herein has not come to equity with clean hands hence the same are not entitled to the relief sought both in the notice of motion application and the petition and that it lacks merit, is malicious and an abuse of the court process.
24. This court directed the Petition be disposed of by way of written submissions. This court notes that it is only Petitioner who filed written submissions.
DETERMINATION.
25. Having considered the Petition, the supporting affidavits of 1st 2nd and 4th Petitioners, the respondent’s replying affidavit and grounds of opposition as well the written submissions filed the Petitioner I find that the sole issue for determination is Whether the orders in this Petition have been overtaken by events.
26. The respondents contend orders sought in the petition have been overtaken by events given that the same have been addressed by the chief Magistrate court in the criminal case against the 1st Petitioner. They also contend that the documents that are being sought by the petitioners have been provided in KISII CRIMINAL CASE NO. 2289 OF 2020 and are on record and that the same are annexed by the petitioners as the evidence, and that the 1st petitioner has not sought any additional documents
27. Basically the Respondent is questioning this jurisdiction of this court in hearing and determination of this matter. It is trite law that Jurisdiction of the court is everything and where there court establishes that it has no jurisdiction to here and determine a matter it must down its tools.
28. I have taken my time to review the final orders outlined in the Petition and it is outright that the same relate to the arrest, prosecution and trial of the 1st Petitioner in relation to KISII CRIMINAL CASE NO. 2289 OF 2020 wherein the 1st Petitioner was charged with handling stolen property. The question I have grapple with is whether all the above issues were addressed significantly by the chief Magistrate court in to criminal case No. 2289 of 2020.
29. Interestingly the 1st Petitioner attached part of proceedings of the lower court as evidence in support of his case. In order to address the above question it would be important to highlight the said proceedings. From the proceedings the 1st Petitioner took plea on 30th December, 2020 wherein he pleaded not guilty and was released on cash bail of Kshs. 50,000. The matter was mentioned on 21st January, 2021 wherein the matter was fixed for hearing on 22nd June, 2021. On 26th June, 2021 the 1st Petitioner indicated that he was not ready to proceed because he was yet to be issued with witness statements. The prosecution proceeded to supply him with statements. The hearing of the prosecution case was postponed to 26th August, 2021. The 1st Petitioner raised an issue of cash bail which he paid to the police but was not refunded to him. The prosecution made a prayer that the investigation officer be summoned to address the same. However on 26th August, 2021 the accused person was absent. His brother the 4th Petitioner who was present in court informed the court that he was sick and thus the hearing was once again deffered to 8th November, 2021. On 8th November, 2021 the petitioner again was not ready to proceed as he stated that he had only received three witness statements and that he needed the OB extract for the month of November, 2020 a prayer he equally seeks in this Petition. The court noted that the investigating officer had been summoned to highlight certain issues. The court thus directed that the matter be mentioned 24th January 2022 to enable the investigating officer who is the 2nd Respondent herein. On the said date, the investigating officer appeared in court and raised all the issues highlighted in the replying affidavit filed by the respondents herein which I see no need of rehashing. The investigating officer raised concern that the Applicant had come to court on several occasion without raising any issues and thus he contended that the 1st petitioner was buying time with the false accusations all over. The accused person who was given an opportunity to cross-examine the accused person chose not to do so and prayed to given a video recording of the items seized he also sought for a refund of his cash bail of 5000 allegedly by the investigating officer. The prosecution objected the prayers and stated that the 1st Petitioner was taking the court into circles.
30. Having listened to all the parties the court stated as follows;
“I shall direct that the accused person be supplied with the OB extract for 17th November, 2020. The issue of a recording is a matter of evidence that shall be raised during the hearing. The accused person is at liberty to file a report of the alleged payment of cash bail.”
31. The accused person thereafter asked prosecution to confirm the witnesses they wished to rely on and the prosecution indicated that it was going to rely on 4 witness and also promised to supply all the statement to the accused. The court directed the hearing to proceed on 23rd March, 2022 and that all documents to be supplied to the accused person. It is not clear whether hearing of the matter did proceed on 23rd March, 2022 the 1st Petitioner choose not to share further proceeding from that end. However the PC Alex in his affidavit did give snippets further proceedings of the lower court. He revealed that on 11.08.23 the court allowed an application for scene visit. The hearing proceeded at Nyanchwa police station in the absence of the 1st petitioner who was well aware of the date. The Court noting his absence, ordered for the production and verification of the exhibits which were found to be in order as per the inventory. The court proceed to cancel the 1st Petitioners bond and issued a warrant of arrest against him. The matter was mentioned on 27th September 2023, when the warrant of arrest was lifted on account that the Petitioner explained that had an accident in August.
32. Article 50 of the Constitution of Kenya guarantees fair hearing to all citizens . This includes the right to be heard by an impartial court ,body or tribunal , right to be provided with the evidence that prosecution seek to rely on in advance . Article 22 on the Constitution provides that any person has a right to move the court to seek enforcement of the fundamental rights and freedoms. Article 23 of the Constitution empowers the high court to enforce and uphold the Bill of rights From the above summary of proceedings before the trial court, I do not find any iota of reason as to why I should issue an of certiorari quashing the criminal proceeding in case Kisii chief Magistrate case No. 2289 of 2020 or on order of prohibition prohibiting the prosecution of the 1st Petitioner. The 1st Petitioner was given enough opportunity to challenge the actions of the respondents. In fact the trial court was candid enough to summon the investigating officer, the 4th Respondent herein, to shade light on issues of relating to the OBs and the Petitioners cash bail. The 4th Respondent became candid enough to give summary of the reasons of the arrest, the actual arrest and the confiscation of the 1st Petitioner’s goods. The 1st Petitioner was given an opportunity to cross-examine the 4th Respondent and all she did was to request for a recording of the goods confiscated and the court informed him that such was an issue that could addressed during the hearing. Having been granted sufficient opportunity to challenge the process of his arrest and prosecution by the trial court through the summoning of the 4th Respondent and squandered the same I see no reason for prohibiting the proceedings of the trial court. As a matter of interest I have also noted that the 1st Petitioner herein was found guilty of the offense and convicted and sentenced to one year in prison in July 2024. I have equally as a matter of interest noted that the Petitioner has appealed against his conviction and sentence which Appeal is pending hearing and determination of this court. This therefore means that there are no proceedings pending before the trial court to be prohibited.
33. Regarding the prayer for an order of mandamus to compel the OCS Nyanchwa to avail before this court all OB entries as well as a covering report made in relation to criminal case No. 2289 of 2020 against the 1st Petitioner pending before the chief Magistrate court, from the proceedings of the trial court which I have taken my time to summarize herein, the trial court on 24th January 2022 did direct that the 1st Petitioner be supplied with OB entry for November 2020 which he had prayed for all documents to relied upon in the trial and all other documents that the prosecution wished to rely on in its case. The trial court having made such a direction it was prudent for the 1st Petitioner move it that the prosecution had not complied with its order issued on 24th January, 2022 instead of filing this Petition seeking the same orders. This an abuse of the court process which this court cannot tolerate.
34. I have seen the judgment of the trial court dated 25.7.24 in Kisii CMCR 2289 of 2020 in which 1st petitioner was convicted of the offence of having suspected stolen goods . I note that the 1st petitioner has also filed Criminal appeal no. E084 of 2024 against the said judgment which appeal is pending hearing and determination before this court. The issues of arrest , recovery , inventory , fair trial , whether the charge sheet is defective are matters to be dealt with in the appeal .
35. The Petitioner has not pointed out any instance where the ODPP derogated from its mandate under the constitution. All he has done is to refer this court to the provisions of the National Police service Act which grants no mandate to the ODPP to investigate or arrest as suspect. The ODPP did prosecute the matter according to his mandate under Article 157 of the Constitution. The merits and demerits of the case and all the incidental issues shall be dealt with in the said appeal .
36. Regarding the prayer of referring the matter to another magistrate, I have noted hereinabove, the proceedings of the trial court have since been concluded and thus this prayer is moot.
37. As to whether the Petitioners entitled to damages for violation of rights by the respondents while investigating the case that arrest and prosecution of the 1st Petitioner it is out right that no violation has been proved at in this petition to warrant an award of damages .
38. From the forgoing therefore I find that petition herein has been overtaken by events as the issues herein were determined in Kisii CMCR No. 2289 of 2020 and there is High court Criminal appeal no E084 OF 2024 pending in this court against the decision in the said lower court criminal case.
CONCLUSION
39. From the forgoing therefore, I find that the instant petition is not merited and I proceed to dismiss the same with no orders as to costs..
40. It is so ordered.
'
1. The Petitioner herein filed Petition dated 14th August, 2023 seeking the following declarations and orders (slightly paraphrased for clarity);
I. A declaration the actions of the police officers of not following the provisions of section 60(1), 57(5) and 49(3) while conducting the search and seizure at the premises of the 1st Petitioner and using an inventory of goods seized from the premises as evidence amounted to a violation of his constitutional right under Article 50(4) of the constitution.
II. A declaration that the act of the ODPP approving the charge sheet against the 1st Petitioner without reputable evidence was contrary to Article 27 of the constitution.
III. A declaration that the act of detaining the 1st Petitioner in custody for a period of 7 days before arraigning him in court amounted to a violation of his right under Article 49(f).
IV. A declaration that the action of denying the 1st Petitioner information amounted to a violation of his constitutional right under Article 25(c), 35(1) and 50(2) (b) (c) and (k).
V. An order of mandamus to compel the OCS Nyanchwa to avail before it all OB entries from 3rd November 2020 to 10th January, 2021 as well as a covering report made in relation to criminal case No. 2289 of 2020 against the 1st Petitioner pending before the chief Magistrate court.
VI. A order to the CCIO-Kisii County directing him to investigate and bring before this court all the GPS locations of the geographical location of all telephone numbers of all the police officers who participated in the raid to 1st petitioners premises on 17th November, 2020 as well as the personal identification numbers.
VII. An order directing the Respondents to supply him with the information he requested by the 1st Petitioner on 21st July, 2021.
VIII. The court issue an order of certiorari quashing the criminal proceeding in case Kisii chief Magistrate case No. 2289 of 2020 pending before chief Magistrate court at Kisii as well as the charge sheet.
IX. The court issue an order of prohibition prohibiting the National Police Service, the ODPP and the CHIEF Magistrate court Kisii from charging, prosecuting, determining or handling in anyway any matter relating to the charge sheet or any allegation relating the events that happened on 17th November, 2020 or anything relating to the properties seized from the 1st Petitioner’s premises or any relating to criminal case Kisii chief Magistrate case No. 2289 of 2020
X. A declaratory order that the charge sheet and the inventory Kisii chief Magistrate case No. 2289 of 2020 were defective
XI. An order compelling the respondents to return all properties that were left out of the inventory attached to the charge sheet in Kisii chief Magistrate case No. 2289 of 2020 to the Petitioners.
XII. An order that the case Kisii chief Magistrate case No. 2289 of 2020 be allocated to a different magistrate.
XIII. An order of adequate compensation for damages of the unlawful arrest, damage of business reputation as well as all violation of rights enlisted in the petition.
XIV. Any other relief this court may deem fit to grant
2. The Petition was supported by lengthy affidavits of the 1st, 2nd and 4th Petitioners which I will endeavor to summarize.
3. The 2nd and 4th Petitioners averred that on 16th November, 2020, at around 2330hrs the 4th Respondent together with several other people in civilian clothes and others with police uniforms broke into 1st Petitioner’s residential home , his two shops, seized several properties and ferried them away in a land cruiser Registration number GK A462H and two motor cycles without taking record any including photograph of them or even videos of the same. The 1st Petitioner was not at home and thus they proceeded to arrest the 2nd and 4th Petitioners on allegations of handling suspected stolen properties. The 2nd Petitioner was set free leaving the 4th Petitioner in detention. However by the time the 2nd Petitioner was being set free she had already spent a night in custody with her two year old child (the 3rd Petitioner) an action she decries to have been a violation of her child’s rights. When the 2nd Petitioner and her child were set free, the child got sick and was treated at KTRH. The 2nd Petitioner claimed that before the said incident happened the 2nd Respondent had been forcing her to have an affair with him but she refused.
4. The 1st Petitioner in his affidavit averred that on 3rd December, 2020 when he arrived from Mombasa where he had attended a funeral, he was confronted by three police officers from Nyanchwa Police station while at one of his shops in Oyugis. The officers handcuffed him and took him to Nyanchwa Police station where he was booked and detained illegally for 4 days. The 1st Petitioner averred that during his arrest and detention he was subjected to psychological torture as he was not informed of his offense but the officers kept reminding him that he was good at snatching people’s phones. He was released and told to disappear from Kisii with a warning that a member of Sungu Sungu was after his life.
5. After his release he went to check on his girlfriend (the 2nd Petitioner) and his two year old son (the 3rd Petitioner). Upon arrival he discovered that the house and his shops had been broken into. The 2nd Petitioner informed him that his house and shops had been broken into by police officers who made away with his properties. She informed him that she had equally been arrested together with the 4th Petitioner on a fabricated allegation of possessing of suspected stolen goods and was later released.
6. The 1st Petitioner averred that he was later charged with the offense of possession of suspected stolen property in Kisii Chief Magistrate Criminal case No. 2289 of 2020 for the offense of handling stolen properties. The 1st Petitioner decried that the said case was not based on any based Occurrence Book(OB) report contrary to the provisions of section 49(3) and 60(1) of the National Police Service Act. He also alleged that all the goods that were collected from his premises were not booked in the OB contrary to section 137(f) of the National Police service Act.
7. The 1st Petitioner claimed that during his arrest the officers acted contrary to section 57(1) of the National Police Service act as they did not introduce themselves before conducting the search to his premises eventually seizing his goods.
8. The 1st Petitioner also claimed that the 3rd Respondent acted unconstitutionally by allowing his prosecution to proceed in the chief Magistrate court while there was no OB report regarding any stolen properties recorded at Nyanchwa Police station. He claims also that the 3rd Respondent acted contrary to his mandate under Article 157(11) for guiding and helping the police during the criminal investigation.
9. He however conceded that there was a confession of a convict by the name Thomas Motanya Mogaka who linked him to several criminal activities. He said that he had sought information from the 3rd Respondent regarding the said confession and whether the said Matonya would be a witness to the matter but was unable to get any response and as such his right to access information under Article 35 of the constitution was violated by the 3rd Respondent. The 1st Petitioner claimed that the said convict had through a sworn affidavit disputed the allegations of ever linking the 1st Petitioner to the any criminal activity. He attached the said Affidavit as evidence in support of his said averment.
10. He alleged that some of the goods taken away from his premises had been left out of the inventory amended on 18th November, 2020. He stated that the properties so left out of the amended inventory have never been returned to him.
11. The 1st Petitioner thus urged this court to issue an order stopping his prosecution in the trial court as he deemed the same as being malicious and an instigation of the 2nd Respondent whom he accuses of pushing the same having a relationship with the 1st Petitioner.
12. In response the Attorney general on behalf of the respondent filed grounds of opposition dated 5th May 2022 which were that;
a) That the Application is bad in law, incompetent, and misconceived reasons being;
b) That the Application is fatally defective, incompetent, and untenable both in substance and form as it does not meet the threshold for grant of the orders sought thus proper candidate for dismissal.
c) The Petitioners have failed to sufficiently demonstrate either by facts or evidence how the Respondents have breached his fundamental rights as enshrined in the constitution through the ongoing criminal prosecution.
d) That the Petitioners have not laid any basis through evidence that respondent’s action to investigate and charge the 1st Petitioner was tainted with illegality of procedure to warrant the issuance of orders of certiorari, mandamus and prohibition against the Respondents.
e) That the actions that the actions the Petitioners seek are within the constitutional and statutory mandate of the respondents.
f) That that the respondents acted within their constitutional and statutory mandates to charge the 1st Petitioner before a competent court of law and with an offence known in Law.
g) That 3rd Respondent who is constitutionally empowered under article 157(6) of the constitution of Kenya to institute and undertake criminal proceedings against any persons before the court in respect of any offence alleged to have been committed and that under article 157(10) does not require consent of any person or authority for commencement of criminal proceedings and in the exercise of his powers or functions shall not be under direction or control of any person or Authority.
h) That there are established legal process and remedy of judicial review which is concerned with reviewing the decision making process and is available to the petitioners.
i) That the orders sought in the petition have been overtaken by events and if granted by the court at this time it will amount to the court exercising and usurping the mandate of an independent constitutional body.
j) That the prosecution has not formerly commenced nor closed his case (KISII CRIMINAL CASE NO. 2289 OF 2020) and that Petitioners innocence can be determined by the trial court once the prosecution has tendered its evidence and closed the case.
k) That since the criminal case has not been concluded this court cannot be invited to find that there is no sufficient evidence to charge the Applicants or make a determination whether the contents of the charges facing that Applicants are in breach of applicants right to fair trial.
l) That the 1st Petitioner is trying to ventilate his defense before this court and that they should not be allowed to convert the constitutional court into a trial court which is the placed to deal with the issue.
m) That the petitioners have not placed any material evidence before this court to demonstrate how the respondents have discharged there constitutional mandate in breach of the law.
n) THAT that the petition and application is frivolous and an abuse of court process and meant to circumvent the criminal justice system.
o) That article 244 of the constitution of Kenya and section 24 of the National police service Act gives the 2nd Respondent powers to undertake independent investigations into any conduct or complaint lodged against any person.
p) That the petition has no foundation, lacks merit, offends settled legal principles and fails the test of constitutional petition and that the Chamber summons dated 14th August 2023 is misconceived, premature, premised on hearsay, without merit and intends to serve fishing expedition and an abuse of court process that the same should be dismissed with costs.
13. The Respondents equally filed a replying affidavit sworn by PC ALEX MUTISYA on 6th October 2023. He said that he is based at Nyanchwa police station . PC Alex averred that the petition is bad in law, lacks Merit and is gross abuse of the process of this Honourable court and it is brought in bad faith, that the 1st Petitioner is an accused person in KISII Chief magistrates court case No. 2289 of 2020 which is ongoing and that the same has been delayed by tactics of accused persons therein .
14. He narrated that a report of burglary had been made to their station and the same was alleged to have occurred on the night of 6th November 2020 at unknown time . Also that on 7th November 2020, he joined his colleagues namely CPL George Nyaoke, IP Stephen Chege, and PC Weldon Korir, to visit the scene of burglary at Botori area within Nyanchwa and upon visiting the scene of crime they found that several household items had stolen been stolen. On 15th of November 2020 together with CPL George Nyakoe they received information that two suspects had been arrested in connection with the offence and some exhibits recovered from one of the suspects. They proceeded to the station and collected the two suspects whom he came to know as Thomas Mogaka and Muthiani Mutua. They also collected the exhibits which were later identified positively by the owner one Fred Momanyi. A cautionary statement was handed over to them from there station having been recorded from the first suspect. The two suspects were interrogated at the station. Thomas Mogaka narrated that he has been involved in a series of crimes such as housebreaking and stealing. He implicated the 1st Petitioner among other people whom he was working with in the burglaries . Thomas also revealed to them that the 1st Petitioner has a motor vehicle make of Toyota Probox which they always used to ferry the goods after stealing but could not disclose the number plate of the said vehicle. Mokua told them where they had kept the stolen goods and led them to the house of Petitioner at Junction area. When they arrived at that place ,they found 1st Petitioner''s wife, the 2nd petitioner herein and their baby. They proceeded to conduct a search and recovered assorted items and later proceeded to the 1st Petitioner''s shop where Thomas Mogaka identified more items and the said items were taken to the Police station as the 1st Petitioner remained at large, though his wife was arrested and later released. The 1st petitioner claimed the ownership of the property but failed to prove ownership and thus the goods remained and are still kept at Nyanchwa police station in the exhibit store. The 1st Petitioner was later arrested and placed in custody and charged for the offence. The other two suspects were arraigned in court and charged accordingly and there cases have been concluded where Thomas Mogaka pleaded guilty and was sentenced vide Kisii Chief magistrate’s Case No 1737 OF 2020 and Muthiani Mutua was acquitted in Kisii Chief magistrate’s Case No. 642 OF 2021
15. The PC Alex further deponed that on 26th August 2021 when the matter was scheduled for hearing the accused 1st petitioner herein did not appear in court but sent his brother the 4th Petitioner. The 4th Petitioner informed was unwell and could not attend court. He also informed the court that his brother had been charged with the wrong name and that thus the charge sheet was amended to reflect the Petitioners. PC Alex also averred that he informed the court that 1st Petitioner had even taken plea and the matter had been mentioned several times, he had never availed himself in court for the hearing of the case and would always come with reasons to have hearing deferred.
16. PC Alex Averred revealed on 11.08.23 the court allowed an application for scene visit with the court and hearing at Nyanchwa police station and that despite the 1st petitioner who was informed about the date failed to attend court. The Court noting his absence, ordered for the production and verification of the exhibits which were found to be in order as per the inventory. The court proceed to cancel the 1st Petitioners bond and issued a warrant of arrest against him. The matter was mentioned on 27th September 2023, when the warrant of arrest was lifted on account that the Petitioner explained that had an accident in August.
17. PC Alex contended that the 1st Petitioner is using the other petitioners to push the stay of the criminal proceedings against him. He contended that there is no pending criminal case for the other petitioners and that the 3rd Petitioner is a minor who has no capacity to sue or be sued.
18. PC Alex contended that the documents annexed to the Petition have a lot of discrepancies in reports and allegations made by the petitioner to suit their time and place the events, including changing dates.
19. He also averred that the allegation on the issue of relationship between inspector Nyaoke and his wife and the alleged loss of Kshs 200,000 were mere allegations meant to taint the characters of the police officers who have been handling the case. He revealed that the said allegations had been brought after the IPOA and County Commander found the said allegations to be baseless. He also averred that the petitioners’ affidavits were marred with lies meant to try hoodwink the court that the Petitioners are victims of malicious prosecution and that they have been unfairly targeted.
20. He contended that the criminal case has not been concluded and 1st Petitioners innocence or guilt had not been established. He also and that the allegations are not true and are meant to derail the pending criminal court case hence the 1st Petitioner has been making so many allegations to various offices including the county commander, IPOA but upon inquiry the allegations have been found fabricated to defame the police officers.
21. He contended equally that the petition is premature as the criminal case against the first petitioner are still pending before the court and the 1st petitioner will have their day in court to defend themselves and examine the evidence placed before the court. He deponed too that the respondents do not have any motive for arresting and charging them but were simply carrying out the mandate as required by law. He also maintained that there is no pending order to arrest the 2nd and 4th petitioners.
22. PC Alex also averred that the documents that are being sought by the petitioners have been provided in the criminal case and are on record, and the same are annexed by the petitioners as the evidence, and that the 1st petitioner has not sought any additional documents from the police as alleged. He urged this court to allow the trial process be allowed to proceed as the 1st petitioner will have the opportunity to challenge all the evidence presented against him and present his defence while enjoying his constitutional right to a fair trial.
23. It is also the averment that the litigation must come to an end. He also contended that applicant herein has not come to equity with clean hands hence the same are not entitled to the relief sought both in the notice of motion application and the petition and that it lacks merit, is malicious and an abuse of the court process.
24. This court directed the Petition be disposed of by way of written submissions. This court notes that it is only Petitioner who filed written submissions.
DETERMINATION.
25. Having considered the Petition, the supporting affidavits of 1st 2nd and 4th Petitioners, the respondent’s replying affidavit and grounds of opposition as well the written submissions filed the Petitioner I find that the sole issue for determination is Whether the orders in this Petition have been overtaken by events.
26. The respondents contend orders sought in the petition have been overtaken by events given that the same have been addressed by the chief Magistrate court in the criminal case against the 1st Petitioner. They also contend that the documents that are being sought by the petitioners have been provided in KISII CRIMINAL CASE NO. 2289 OF 2020 and are on record and that the same are annexed by the petitioners as the evidence, and that the 1st petitioner has not sought any additional documents
27. Basically the Respondent is questioning this jurisdiction of this court in hearing and determination of this matter. It is trite law that Jurisdiction of the court is everything and where there court establishes that it has no jurisdiction to here and determine a matter it must down its tools.
28. I have taken my time to review the final orders outlined in the Petition and it is outright that the same relate to the arrest, prosecution and trial of the 1st Petitioner in relation to KISII CRIMINAL CASE NO. 2289 OF 2020 wherein the 1st Petitioner was charged with handling stolen property. The question I have grapple with is whether all the above issues were addressed significantly by the chief Magistrate court in to criminal case No. 2289 of 2020.
29. Interestingly the 1st Petitioner attached part of proceedings of the lower court as evidence in support of his case. In order to address the above question it would be important to highlight the said proceedings. From the proceedings the 1st Petitioner took plea on 30th December, 2020 wherein he pleaded not guilty and was released on cash bail of Kshs. 50,000. The matter was mentioned on 21st January, 2021 wherein the matter was fixed for hearing on 22nd June, 2021. On 26th June, 2021 the 1st Petitioner indicated that he was not ready to proceed because he was yet to be issued with witness statements. The prosecution proceeded to supply him with statements. The hearing of the prosecution case was postponed to 26th August, 2021. The 1st Petitioner raised an issue of cash bail which he paid to the police but was not refunded to him. The prosecution made a prayer that the investigation officer be summoned to address the same. However on 26th August, 2021 the accused person was absent. His brother the 4th Petitioner who was present in court informed the court that he was sick and thus the hearing was once again deffered to 8th November, 2021. On 8th November, 2021 the petitioner again was not ready to proceed as he stated that he had only received three witness statements and that he needed the OB extract for the month of November, 2020 a prayer he equally seeks in this Petition. The court noted that the investigating officer had been summoned to highlight certain issues. The court thus directed that the matter be mentioned 24th January 2022 to enable the investigating officer who is the 2nd Respondent herein. On the said date, the investigating officer appeared in court and raised all the issues highlighted in the replying affidavit filed by the respondents herein which I see no need of rehashing. The investigating officer raised concern that the Applicant had come to court on several occasion without raising any issues and thus he contended that the 1st petitioner was buying time with the false accusations all over. The accused person who was given an opportunity to cross-examine the accused person chose not to do so and prayed to given a video recording of the items seized he also sought for a refund of his cash bail of 5000 allegedly by the investigating officer. The prosecution objected the prayers and stated that the 1st Petitioner was taking the court into circles.
30. Having listened to all the parties the court stated as follows;
“I shall direct that the accused person be supplied with the OB extract for 17th November, 2020. The issue of a recording is a matter of evidence that shall be raised during the hearing. The accused person is at liberty to file a report of the alleged payment of cash bail.”
31. The accused person thereafter asked prosecution to confirm the witnesses they wished to rely on and the prosecution indicated that it was going to rely on 4 witness and also promised to supply all the statement to the accused. The court directed the hearing to proceed on 23rd March, 2022 and that all documents to be supplied to the accused person. It is not clear whether hearing of the matter did proceed on 23rd March, 2022 the 1st Petitioner choose not to share further proceeding from that end. However the PC Alex in his affidavit did give snippets further proceedings of the lower court. He revealed that on 11.08.23 the court allowed an application for scene visit. The hearing proceeded at Nyanchwa police station in the absence of the 1st petitioner who was well aware of the date. The Court noting his absence, ordered for the production and verification of the exhibits which were found to be in order as per the inventory. The court proceed to cancel the 1st Petitioners bond and issued a warrant of arrest against him. The matter was mentioned on 27th September 2023, when the warrant of arrest was lifted on account that the Petitioner explained that had an accident in August.
32. Article 50 of the Constitution of Kenya guarantees fair hearing to all citizens . This includes the right to be heard by an impartial court ,body or tribunal , right to be provided with the evidence that prosecution seek to rely on in advance . Article 22 on the Constitution provides that any person has a right to move the court to seek enforcement of the fundamental rights and freedoms. Article 23 of the Constitution empowers the high court to enforce and uphold the Bill of rights From the above summary of proceedings before the trial court, I do not find any iota of reason as to why I should issue an of certiorari quashing the criminal proceeding in case Kisii chief Magistrate case No. 2289 of 2020 or on order of prohibition prohibiting the prosecution of the 1st Petitioner. The 1st Petitioner was given enough opportunity to challenge the actions of the respondents. In fact the trial court was candid enough to summon the investigating officer, the 4th Respondent herein, to shade light on issues of relating to the OBs and the Petitioners cash bail. The 4th Respondent became candid enough to give summary of the reasons of the arrest, the actual arrest and the confiscation of the 1st Petitioner’s goods. The 1st Petitioner was given an opportunity to cross-examine the 4th Respondent and all she did was to request for a recording of the goods confiscated and the court informed him that such was an issue that could addressed during the hearing. Having been granted sufficient opportunity to challenge the process of his arrest and prosecution by the trial court through the summoning of the 4th Respondent and squandered the same I see no reason for prohibiting the proceedings of the trial court. As a matter of interest I have also noted that the 1st Petitioner herein was found guilty of the offense and convicted and sentenced to one year in prison in July 2024. I have equally as a matter of interest noted that the Petitioner has appealed against his conviction and sentence which Appeal is pending hearing and determination of this court. This therefore means that there are no proceedings pending before the trial court to be prohibited.
33. Regarding the prayer for an order of mandamus to compel the OCS Nyanchwa to avail before this court all OB entries as well as a covering report made in relation to criminal case No. 2289 of 2020 against the 1st Petitioner pending before the chief Magistrate court, from the proceedings of the trial court which I have taken my time to summarize herein, the trial court on 24th January 2022 did direct that the 1st Petitioner be supplied with OB entry for November 2020 which he had prayed for all documents to relied upon in the trial and all other documents that the prosecution wished to rely on in its case. The trial court having made such a direction it was prudent for the 1st Petitioner move it that the prosecution had not complied with its order issued on 24th January, 2022 instead of filing this Petition seeking the same orders. This an abuse of the court process which this court cannot tolerate.
34. I have seen the judgment of the trial court dated 25.7.24 in Kisii CMCR 2289 of 2020 in which 1st petitioner was convicted of the offence of having suspected stolen goods . I note that the 1st petitioner has also filed Criminal appeal no. E084 of 2024 against the said judgment which appeal is pending hearing and determination before this court. The issues of arrest , recovery , inventory , fair trial , whether the charge sheet is defective are matters to be dealt with in the appeal .
35. The Petitioner has not pointed out any instance where the ODPP derogated from its mandate under the constitution. All he has done is to refer this court to the provisions of the National Police service Act which grants no mandate to the ODPP to investigate or arrest as suspect. The ODPP did prosecute the matter according to his mandate under Article 157 of the Constitution. The merits and demerits of the case and all the incidental issues shall be dealt with in the said appeal .
36. Regarding the prayer of referring the matter to another magistrate, I have noted hereinabove, the proceedings of the trial court have since been concluded and thus this prayer is moot.
37. As to whether the Petitioners entitled to damages for violation of rights by the respondents while investigating the case that arrest and prosecution of the 1st Petitioner it is out right that no violation has been proved at in this petition to warrant an award of damages .
38. From the forgoing therefore I find that petition herein has been overtaken by events as the issues herein were determined in Kisii CMCR No. 2289 of 2020 and there is High court Criminal appeal no E084 OF 2024 pending in this court against the decision in the said lower court criminal case.
CONCLUSION
39. From the forgoing therefore, I find that the instant petition is not merited and I proceed to dismiss the same with no orders as to costs..
40. It is so ordered.
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