Zacharia Baraza & Others VS ODPP

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR/E096/2023

BETWEEN
ZACHARIA BARAZA & OTHERS……….…EX PARTE APPLICANTS
VS
DIRECTOR OF PUBLIC PROSECUTION ……... 1st RESPONDENT THE INSPECTOR GENERAL OF POLIC AND NATIONAL POLICE SERVICE .... 2ND RESPONDENT
THE DIRECTOR OF CRIMINAL INVESTIGATIONS… THE 3RD RESPONDENT
THE CHIEF MAGISTRATE'S COURT, NAIROBI THE ….4TH RESPONDENT
                                                                                JUDGMENT
1. The applicant that is before this court is the one dated 25.7.23 wherein the Ex parte applicants are seeking the following orders:

1) THAT the Honourable Court be pleased to issue an Order of Certiorari to bring into this Honorable Court and quash the decision of the 1st Respondent or officers subordinate to the 1st Respondent, and on the recommendation of the 2nd and 3rd Respondents, to charge the Applicants with criminal offences before Milimani Chief Magistrates Court Criminal Cases No. E1005 OF 2022, Republic versus Zachary Wakhungu Baraza & Nathaniel Kipkemboi Barmasai, No. E499 of 2023: Republic vs Joel Kiplagat Kipchirchir and Criminal Case No. E1026 of 2022: Republic vs Joel Kipchirchir Kiplangat, Samuel Kipkorir Chepkwony & John Kimaiyo Rotich.

2) THAT an Order of Prohibition to issue directed at the 1st Respondent or through officers’ subordinate to him, prohibiting him from carrying on with the further prosecution of the Applicants in Milimani Chief Magistrate’s Criminal Cases Numbers E1005 of 2022, E499 of 2023 and E1026 of 2022 or any other proceedings that may be instituted on the same basis and touching on the subject matter of the impugned investigations.
3) THAT an Order of Prohibition to issue directed at the 2nd and 3rd Respondents or through officers’ subordinate to them prohibiting them from carrying on with any further investigations touching on the Applicants.
4) THAT an Order of Prohibition to issue to prohibit the 2nd and 3rd Respondents from taking evidence, conducting proceedings or carrying on with the trial of the Applicants in Milimani Chief Magistrate’s Criminal Case No. E1005 Of 2022: Republic vs Zachariah Wakhungu Baraza & Nathaniel Kipkemboi Barmasai, Criminal Case Number E499 of 2023: Republic vs Joel Kiplagat Kipchirchir and Criminal Case No. E1026 of 2023: Republic vs Joel Kipchirchir Kiplagat, Samuel Kipkorir Chepkwony and John Kimaiyo Rotich or any other criminal proceedings that may be instituted on the same basis and touching on the 1st Applicant relating to the subject matter of the impugned investigations and/or allowing the 1st and 3rd Respondents to prosecute any other criminal case relating to the property known as Land Reference Number E366 of 2022 situated within Westlands Area, Nairobi. (hereinafter “the property”).
5) THAT the costs of this suit be awarded to the Applicants.
2. The application is predicated on the Statutory Statement dated 20th July, 2023, a Verifying Affidavits sworn by Zachariah Baraza and Joel Kipchirchir Kiplagat dated 20th July, 2023. The suit is undefended.
3. It is the applicants case that Mukta Batuk Shah suing as the Executrix of the estate of the Late Batuk Lakhamshi Lalji Shah filed a civil suit against Lariak Properties Limited, Zachary Baraza T/A Siuma Auctioneers and Chief Land Registrar and being Nairobi ELC E366 of 2022 and sought the following reliefs:

i. A permanent injunction to issue to restrain the 15t Defendant from entering and or trespassing into the parcel of land known as LR No. 1870/ 111/46 property situated at 12 School Lane which is occupied by the 1st Defendant, his agents, employees or servants.
ii. A declaration that the 15th Defendant’s Title on the parcel of land known as LR No. 1870/111/46 is illegal; and fraudulent.
iii. A declaration that the Defendants violated the Plaintiff's rights over the suit property.
iv. A declaration that the Plaintiff is the lawful owner of the parcel of land known as LR No. 1870/111/46.
v. An order in the nature of a mandatory injunction compelling the 34 Defendant to cancel and or revoke the 1st Defendant’s Title issued on 15th July, 2010 in respect of property known as LR No. 1870/111/46 situated on School Lane Westlands Nairobi.
vi. An order in the nature of a writ of mandamus compelling the 34 Defendant to re-issue the Plaintiff with a Certificate of Lease over the parcel of land known as LR No. 1870/111/46.
vii. The quashing of the proceedings in CMCC ELC 361 of 2022.
viii. A declaration that the eviction of the Plaintiff by the 1ts and 2nd Defendants for property known as LR No. 1870/111/46 situated on School Lane, Westlands, Nairobi was illegal, unlawful and irregular.
ix. Special damages of Kshs. 535,000,000/ - being the value of the suit property by the Defendant). Special damages being rent paid by the Plaintiff from December 2022 to date to be supplied.
x. Special damages of the sum of Kshs. 20,793,851/ being the cost of household fixtures, chattels, personal effects etc. stolen by the 1st and 2nd Defendants.
xi. General damages for illegal, unlawful and irregular eviction of the Plaintiff by the 1st and 2nd Defendants.
xii. Interest at Court rate on (x), (xi) and (xii) from the date of filing suit till payment in full.
xiii. Damages to be ascertain in trial.
xiv. Costs of and incidental to this suit.
xv. Any other and further relief that this Honourable Court may deem fit and just to grant.
4. An order was issued on 18th October, 2022 in Chief Magistrate’s Court in Nairobi ELC No. E361 of 2022 (Lariak Properties Limited vs Metro Pharmaceuticals Limited) to evict the Defendant in the suit property but the Plaintiff avers that the order was used to evict him.
5. The Ex-Parte Applicants were arraigned in Nairobi Chief Magistrate’s Court Criminal Case Numbers E499 of 2023 (Republic vs Joel Kipchirchir Kiplangat), 1005 of 2022 (Republic vs Zacharia Wakhungu Baraza & Nathaniel Kipkemboi Barmasai), MCCR No. 1026 of 2022 (Republic vs John Kimaiyo Rotich and Samuel Kipkorir Chepkwony) and are facing charges of robbery with violence and malicious damages to property on LR No. 1870/111/46 IR No. 848117 which is indicated as the property of Batuk Lakhamshi Lalji Shah.
6. Some of the Accused Persons also face other counts of making a document without authority and being Certificate of Title IR No. 250041 LR No. 1870/111/46 and conspiracy to defraud Batuk Lakhamshi Lalji Shah parcel of land Title Number IR 848117 LR No. 1870/111/46.
7. They argue that the subject matter in the aforesaid civil cases and the criminal cases is the same namely the contested ownership dispute of LR No. 1870/111/46. The Civil Case ELC 366 of 2023 aforesaid is yet to be determined and as such the question of ownership is yet to be adjudicated upon.
8. It is their case that the charges as drawn are seeking to reinforce the Complainant’s case in ELC E366 of 2022 and the have cited for example the claim for damages of Kshs. 535,000,000/ - which is pleaded in both the Charge Sheet and the Plaint and in particular that the Complainant incurred special damages of Kshs. 535,000,000/-.
9. The Respondents have taken a position that the Title held by Lariak Properties Limited is fraudulent and false while on the other hand the Complainant has filed ELC E366 of 2022 and is seeking the Court to make a finding on similar orders upon hearing evidence of both parties which is in violation of the Petitioners fundamental rights.
10. The Complainant’s Amended Plaint dated 23rd June, 2023 seeks an order to compel the Land Registrar to re-issue the Plaintiff with a Certificate of Lease over the parcel of land known as LR No. 1870/111/46 while the Defendant on the other hand in the same case contends that they hold a valid Lease issued by the Ministry of Lands.
11. It is only after the Environment & Land Court has heard evidence in that case to determine who between the two contenders holds a valid Title.
12. The applicants are aggrieved that they were not given an opportunity to be heard or to tender their position prior to the charges being preferred against them.
13. The said action is unfair, amounts to improper exercise of power, is unreasonable, and it has been done in bad faith with the intention to prejudice the Petitioners rights.
14. Articles 157 (II) of the Constitution is also clear that while performing his functions, the 1st Respondent is not under the direction of anybody or authority.
15. The 1st Respondent has a Constitutional obligation to ensure public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process in the performance of his duties.
16. The applicants’ complaint is that the criminal case is based on malice, bad faith without giving them an opportunity to say anything on the matter.
17. Section 49 of the Police Service Act contains general powers of police officers which are subject to Article 24 of the Constitution and the Bill of Rights.
18. Under Section 24 of the Police Service Act, functions of the police service include investigating crime maintenance of law and order and protection of life and property.
19. Section 22 of the Act gives police officers power to summon any person, in writing, where an officer has reason to believe that the person has information that may assist in the investigation of an alleged offence.
20. Section 52 (4) requires the police officer to record any statement made to him by the person he has summoned whether the person be a suspect of the commission of the crime or not.
21. Before recording the person’s statement, the officer is required to warn the person of the fact that the statement he is recording may be used against him. Under Sub-Section (5), the statement should be in writing and signed by the person.
22. The applicants’ contention is that the police did not carry out any investigations against them and they are not aware of any such investigations.
23. They have maintained that they were not summoned by the police, never recorded a statement and were not aware of any pending investigations following a complaint against them by anyone. These averments and submissions therefore remain uncontroverted.
24. The decision to prosecute is the mandate of the 1st Respondent. Article 157 (6) of the Constitution contains the powers and functions of the 15th Respondent. Of more importance is Sub-Article (II) which states that in the exercise of its powers, the 1st Respondent should have regard to the public interest, interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
25. These powers are reproduced in Section 23 of the Office of the Director of Public Prosecutions Act, 2013 which provides that:
“(1) Notwithstanding the provisions of any other law, it shall be the function of the Director to:
a) Decide to prosecute or not to prosecute in relation to an offence.
b) Institute, conduct and control prosecutions for any offence.
c) Carty out any necessary functions incidental to instituting and conducting such criminal prosecutions; and d) Take over and conduct a prosecution for an offence brought by any person or authority with the consent of that person or authority.”
26. The decision to charge is usually pegged on the investigations conducted by police officers under the Police Service Act. No investigations were conducted as a result of which the decision to charge was without a basis.
27. Article 10 (1) (b) of the Constitution is clear on the force of these values and principles when it provides that national values and principles of governance bind all State organs, state officers, public officers and all persons whenever any of them;
(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions. Article 28 which is one of the Articles in the Bill of Rights provides that every person has inherent dignity and the right to have that dignity respected and protected.
28. The police failed to respect the Applicants dignity since their arrived at a decision without hearing their side of the story. Article 47 of the Constitution also makes it clear that;
“(1) every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative section, the person has the right to be given written reasons for the action. Article 47 (1) creates an expectation that public officers will act fairly whenever performing public duties and respect peoples’ rights.”
29. When conducting investigations and making decisions to prosecute, the police and 1st Respondent were performing administrative functions and their decisions amounted to administrative actions. To that extent they had a constitutional obligation to act fairly.
30. The police cannot be said to have acted fairly when they purported to conduct investigations and have a decision made to prosecute the Petitioners without their knowledge.
31. Article 50 (2) (b) and (c) of the Constitution is also important when it comes to affording one a fair trial. It states that every accused person has the right to a fair trial, which includes the right
“(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defense. The right to a fair trial does not begin at the trial of the case.”
32. The words used in the Sub-Article are that the rights to a fair trial which means the right is inclusive and not exhaustive. The right to a fair trial would, in my view, include giving one an opportunity to say something during investigations to enable investigators make a balanced and informed decision on the way forward which did not happen in this case.

33. They rely on the case of Onyango Oloo vs Attorney General (1986-1989) EA 456 the Court of Appeal stated:

“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard. There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice.”
34. The Court of Appeal revisited the issue in the case of Central Organisation of Trade Unions vs Benjamin K. Nzioka & Others, Civil Appeal No. 166 of 1993 where the Court stated:
“This principle of law is well settled and was recently confirmed in the ruling of this Court in Central Organisation of Trade Unions (Kenya) and Benjamin K. Nzioka and Others, Civil Application No. NAI 249 of 1993 (108/93) (UR) in the following words:
“As a concept, it is derived from the Latin maxim ‘audialteram partem’ which in English means ‘hear the other party’.
This rule obliges Judges or an adjudicator faced with the task of making a choice between two opposing stories to listen to both sides. He should not base his decision only on hearing one side. In the case of a judge, he should give equal opportunity to both parties to present their cases or divergent viewpoints. And in doing so, should hold the scales fairly and evenly between them.”
35. The above decisions emphasize on the importance of hearing both parties before making a decision that may affect either of them. This should not only be done in actual trials but also when making a decision whether to prosecute or not because the fairness of a decision will depend on the information obtained from both sides during investigations and the basis of which prosecution has been mounted.

36. It should not be the case that the police simply hear the complainant’s side of the story and proceed to recommend prosecution which is acted upon by the 1st Respondent yet the person to be prosecuted was not given an opportunity to tell what he knows about the report made against him.

37. The Court of Appeal was emphatic in Meixner & Another vs Attorney General (1993) KLR 189, that:

“The Attorney General is not subject to the control of any other person or authority in exercising that discretion (Section 26 (8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion, is acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the Appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution.”

38. The second concern is whether the Prosecution is intended to achieve collateral purpose rather than the course of justice. The Petitioners contended that the decision to charge and prosecute the Petitioners was meant to bring pressure to bear in order to force them to settle a civil debt. To back this up, it was submitted that investigations and decisions to charge the Petitioners was shrouded in secrecy so that it could catch them unaware.

39. The Court is not supposed to interfere with the functions of the 1st Respondent while conducting prosecutions in accordance with his constitutional mandate.  However, the Court will do so where circumstances demand and more so where it is shown that the prosecution is for an improper purpose.
40. In the case of Republic vs Director of Public Prosecution & 2 Others, Ex-Parte Francis Njakwe Maina & Another (2015) eKLR the Court observed that: 
“The Court ought not to usurp the constitutional mandate of the Director of 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 these 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. The fact however that the facts constituting the basis of a criminal proceedings may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence.
Therefore, the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the Court unless the commencement of the criminal proceedings is meant to force the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than that its legally recognized aim.”
41. The same issue was addressed in Republic vs Attorney General Ex-Parte Kipngeno Arap Ngeny, High Court Civil Application No. 46 of 2001, where the Court stated:
“Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognized, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognized law parameters.”
42. In the case of Kuria & 3 Others vs Attorney General (2002) 2 KLR it was held that:
“The Court has power and indeed the duty to prohibit continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their investigation. It is a duty of the Court to ensure that its process does not degenerate into tools for personal score settling or vilification on issues not 12 pertaining to that which the system was even formed to perform. A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious. The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta.”
Analysis and determination:
The issue that arises for determination is whether the Applicants are entitled to the orders sought?
43. In the Ugandan case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu andothers v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision.  The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision.  It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
44. The above decisions emphasize on the importance of hearing both parties before making a decision that may affect either of them. This should not only be done in actual trials but also when making a decision whether to prosecute or not because the fairness of a decision will depend on the information obtained from both sides during investigations and the basis of which prosecution has been mounted.
45. It should not be the case that the police simply hear the complainant’s side of the story and proceed to recommend prosecution which is acted upon by the 1st Respondent yet the person to be prosecuted was not given an opportunity to tell what he knows about the report made against him.
46. Investigations that are done without giving the person being investigated an opportunity to say what he knows or does not know about the allegations made against them, cannot be said to be conclusive investigations.
47. Article 47 of the Constitution also makes it clear that;
“(1) every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative section, the person has the right to be given written reasons for the action. Article 47 (1) creates an expectation that public officers will act fairly whenever performing public duties and respect peoples’ rights.”
48. When conducting investigations and making decisions to prosecute, the police and 1st Respondent were performing administrative functions and their decisions amounted to administrative actions.
49. Iam satisfied that the Applicants were not summoned by the police, they never recorded any statements and were not aware of any pending investigations following a complaint against them by anyone. These averments and submissions therefore remain uncontroverted. This amounts to a procedural impropriety.
50. The decision to prosecute is the mandate of the 1st Respondent. To that extent they had a Constitutional obligation to act fairly. Procedural impropriety takes place when there is failure to act fairly on the part of the decision making authority in the process of taking a decision.  The unfairness may be in non-observance of the Rules of Natural Justice.
51. The process of arriving at a decision to charge the Applicants in the foregoing circumstances no doubt amounts to a procedural impropriety and I so hold.
Disposition;
52. The applicants have made out a case that fits into the principles set out in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, that the decision of the respondents as complained of is tainted with illegality, irrationality and procedural impropriety.
Order;
The Application dated 25.7.23 is allowed in the following terms:
1) An Order of Certiorari is hereby issued to bring into this Honorable Court and quash the decision of the 1t Respondent or officers subordinate to the 1st Respondent, and on the recommendation of the 2nd and 3rd Respondents, to charge the Applicants with criminal offences before Milimani Chief Magistrates Court Criminal Cases No. E1005 OF 2022, Republic versus  Zachary Wakhungu Baraza & Nathaniel Kipkemboi Barmasai, No. E499 of 2023: Republic vs Joel Kiplagat Kipchirchir and Criminal Case No. E1026 of 2022: Republic vs Joel Kipchirchir Kiplangat, Samuel Kipkorir Chepkwony & John Kimaiyo Rotich.
2) An Order of prohibition is hereby issued to directed at the 1st Respondent or through officers’ subordinate to him, prohibiting him from carrying on with the further prosecution of the Applicants in Milimani Chief Magistrate’s Criminal Cases Numbers E1005 of 2022, E499 of 2023 and E1026 of 2022 or any other proceedings that may be instituted on the same basis and touching on the subject matter of the impugned investigations.
3) An Order of prohibition is hereby issued to directed at the 2nd and 3rd Respondents or through officers’ subordinate to them prohibiting them from carrying on with any further investigations touching on the Applicants.
4) An Order of prohibition is hereby issued to prohibit the 2nd and 3rd Respondents from taking evidence, conducting proceedings or carrying on with the trial of the Applicants in Milimani Chief Magistrate’s Criminal Case No. E1005 Of 2022: Republic vs Zachariah Wakhungu Baraza & Nathaniel Kipkemboi Barmasai, Criminal Case Number E499 of 2023: Republic vs Joel Kiplagat Kipchirchir and Criminal Case No. E1026 of 2023: Republic vs Joel Kipchirchir Kiplagat, Samuel Kipkorir Chepkwony and John Kimaiyo Rotich or any other criminal proceedings that may be instituted on the same basis and touching on the 1st Applicant relating to the subject matter of the impugned investigations and/or allowing the 1st and 3rd Respondents to prosecute any other criminal case relating to the property known as Land Reference Number E366 of 2022 situated within Westlands Area, Nairobi. (hereinafter “the property”).
5) Costs to the Applicants.
Dated, Signed, and Delivered at NAIROBI on this 4th day of April, 2024.
………………………………………
J. CHIGITI (SC
JUDGE