Talai & 4 others v Directorate of Criminal Investigations & 5 others (Constitutional Petition E004 of 2023) [2023] KEHC 26902 (KLR) (15 December 2023) (Judgment)
Neutral citation:
[2023] KEHC 26902 (KLR)
Republic of Kenya
Constitutional Petition E004 of 2023
JRA Wananda, J
December 15, 2023
IN THE MATTER OF CONTRAVENTION OF THE PETITIONERS’ FUNDAMENTAL RIGHTS AND FREEDOM PROTECVTED BY ARTICLES 27, 28, 47, 48 AND 50 OF THE CONSTITUTION OF KENYA (2010)
AND
IN THE MATTER OF CRIMINAL CASE NO. E673/2023, ELDORET CHIEF MAGISTRATE’S COURT
Between
Nancy Talai
1st Petitioner
Margaret Kipkosgei
2nd Petitioner
Lydia Talai
3rd Petitioner
Simon Talai
4th Petitioner
Philemon Kiptoo
5th Petitioner
and
Directorate Of Criminal Investigations
1st Respondent
Director Of Public Prosecutions
2nd Respondent
The Divisional Investigations Officer Langas (Eldoret)
3rd Respondent
Chief Magistrate’s Court Eldoret (Criminal Division)
4th Respondent
Eunice Jebet Rono
5th Respondent
Sudi Oscar Kipchumba
6th Respondent
Judgment
1.The Petition herein is dated 4/04/2023 and was filed on 12/04/2023.
2.The Petitioners describe themselves as residents of Kesses within Eldoret and that they are the beneficiaries of the estate of the late Kibor Arap Talai (deceased), the 1st Petitioner being one of the Administrators, and that they are beneficial owners of the estate which comprises of the property known as LR No. 7991 situate in Kesses area next to Moi University. They state that they have filed this Petition on their own behalf as persons whose rights and enjoyment of the constitutional provisions have been violated and/or are threatened with violation.
3.The orders sought in the Petition are as follows:i.A declaration be and is hereby issued that investigations on the Petitioners by the DCI and the DPP’s institution of criminal proceedings against the Petitioners in Criminal Case No. E673, Eldoret Chief Magistrate’s Court is an abuse of the abuse of the process of the Court and therefore unlawful, null and void ab initio.ii.An order of certiorari be and is hereby issued removing into this Court and quashing the entire charges and charge sheet dated 24th March 2023 and entire proceedings.iii.A declaration be and is hereby issued that the fundamental rights and freedoms of the Petitioners under Article 27, 28, 47 and 50 of the Constitution have been violated by the Respondents.iv.An order of prohibition do and is hereby issued restraining the Respondents from conducting any further investigations on the Petitioners.v.A declaration that the Petitioners’ rights as enshrined and contemplated in Articles 27, 47(1) of the Kenya Constitution, Articles 5, 14, 22 and 28 of the African Charter on Human and People’s Rights and Article 3 of the Universal Declaration of Human Rights have been violated.vi.A declaration that the Petitioners are therefore entitled to general and exemplary damages against the 1st, 2nd, 3rd, 5th and 6th Respondents herein jointly and/or severally, to be determined by the Court.
4.The Petition is supported by the Affidavit sworn by the 1st Petitioner, Nancy Jepkurui Talai who deponed that she is the daughter of the deceased, an Administrator and beneficiary of the estate. She deponed further that 28/05/2020, the Environment and Land Court sitting at Eldoret in ELC No. 19 of 2020 by Hon. Lady Justice M.A. Odeny issued orders against the 6th Respondent restraining him from trespassing into the said property, LR 7991 (hereinafter referred to as “the suit property”) pending hearing and determination of the main suit and which is yet to be determined, the 6th Respondent, while working in cohorts with and/or hiding behind the 5th Respondent encroached onto the suit land and started fencing it on 22/03/2023 contrary to the Court orders given by the Environment & Land Court (ELC) as aforesaid, the actions were also contrary to the orders given on 18/04/2016 by Hon. Lady Justice C. Githua in Eldoret High Court Succession Cause No. 50 of 2014 (in which administration of the said estate is subject of) stopping any dealings with the land, upon the Petitioner’s intervention, the 6th Respondent wrongly arrested them through Langas Police Station officers who did not even have jurisdiction, and framed and charged the Petitioners at the Chief Magistrate’s Court in Criminal Case No. E673 of 2023, abused police powers, denied them cash bail and kept them at the G.K. Prison Eldoret without any grounds at all, the 6th Respondent instructed the 3rd Respondent to illegally hold the Petitioners in police cells and tortured them from 22/03/2023 to 27/03/2023 when they were produced before the Chief Magistrate’s Court alleging that their cash bail was unascertainable despite the charge sheet indicating the value of the property they had allegedly destroyed as Kshs 674,375/-.
5.She deponed that the 5th and 6th Respondents are benefitting from an illegality contrary to the law while the same is openly facilitated by the 1st, 2nd and 3rd Respondents with extreme impunity, the charges instituted against the Petitioners are allegations that are unsubstantiated, they have been condemned without the due process of the law, the charges have no factual or legal foundation, the prosecution was instituted maliciously and unlawfully, the charges are in contravention of Articles 25(a), 27, 28, 47 of the Constitution, the charges have been framed without giving the Petitioners a hearing, and that the 3rd Respondent was shown both Court orders but trashed them and pressed on with the charges.
6.The 1st Petitioner deponed further that in the defence filed by the 6th Respondent in ELC No. 19 of 2020, he admitted that he entered the land through the 5th Respondent, any purported memorandum of understanding or sale agreement between the 5th and 6th Respondents over the land in defiance of the Court orders should be stopped by this Honourable Court, the 6th Respondent addressed the media and claimed that he bought the land, and that whatever the agreement between the 5th and 6th Respondents over the land, is not only an illegality but is total intermeddling with the deceased’s property.
1st, 2nd and 3rd Respondent’s Replying Affidavit
7.The 1st, 2nd, 3rd and 4th Respondents opposed the Petition vide the Replying Affidavit filed on 3/05/2023 and sworn by one Sergeant Sofia Ibrahim, who described herself as an officer attached to Divisional Criminal Investigations Department (DCI) Eldoret South and one of the Investigating Officers in the matter. She deponed that the offices of the 1st and 3rd Respondents are a body under the mandate of the National Police Service whose functions include collecting and providing criminal intelligence, undertaking investigations of crimes, maintenance of law and order and apprehension of offenders, among others. She added that the Petitioners are among the accused persons in Eldoret Chief Magistrate’s Court Criminal Case Number E0673 of 2023 in which the 5th Respondent is the complainant, on 22/03/2023 the 5th Respondent made a report at Kesses police station alleging that the Petitioners had intruded her farm and chased her workers away and that the Petitioners had started cutting down about 700 poles using a power saw, after receiving the report, police officers from the station proceeded to the scene and confirmed that indeed the poles had been damaged, the officers interrogated people at the scene who informed them that the Petitioners were behind the damage, they arrested the Petitioners who were at the scene and escorted them to the police station for further interrogation, on the same date at 2130 hrs, the Petitioners were released on cash bail pending further investigations, the matter was then handed over to the 3rd Respondent - DCIO Langas, Eldoret - for further investigations due to the complex nature of the case, Kesses Police Station falls under the jurisdiction of the 3rd Respondent, the investigations commenced and a statement was recorded from the 5th Respondent who stated that on the material date she was called by one of her workers who informed her that people had invaded her farm and they were using a power saw to cut down fencing poles, that the police proceeded to the scene and indeed found the Petitioners and other people cutting down the fencing poles and barbed wire.
8.She deponed further that they also recorded statements from other eye-witnesses who saw the fencing poles being damaged by the Petitioners, they also acquired a valuation report which estimated the cost of damages to be Kshs 674,375/-, further investigations revealed that the Petitioners are the children of one Kibor Arap Talai (deceased) and the 5th Respondent is a daughter in law having been married to the 1st born son in the family who is also deceased, it is true that there is a pending Succession Cause No. 50 of 2014 at the Eldoret High Court and an order to the effect that the beneficiaries of the estate are restrained from selling, altering, or charging any land comprising the estate until the matter is determined, they established that the 5th Respondent hived off her parcel of land had been allocated to her late husband and started developing the same, she entered a Memorandum of Understanding and did a joint venture with one Stephen Kiplimo Rono for a period of 5 years, the two would plough and cultivate the land and later share the proceeds, the Petitioners were not happy with this development and this is the reason why they destroyed the fencing poles that had been erected by the 5th Respondent, the Succession Cause is yet to be determined, the order of the Court in the Succession Cause did not give any aggrieved party the mandate to destroy property, if the Petitioners were aggrieved, the appropriate remedy would have been to move the same Court for contempt or report the matter to the police, the Petitioners decided to take the law into their hands and destroyed the property belonging to the 5th Respondent. Sergeant Ibrahim further deponed that from their investigations, through witness statements and documents availed, they formed the opinion that there was sufficient evidence to sustain and charge the Petitioners, they then forwarded the police file to the 2nd Respondent - Director of Public Prosecutions (DPP) - who upon perusal recommended that the Petitioners be charged with the offence of malicious damage to property contrary to Section 339(1) of the Penal Code.
9.She also deponed that the 6th Respondent is not a party to the criminal case and there is no evidence that he is the one who is influencing or who influenced the 5th Respondent to fence the disputed the suit land as alleged by the Petitioners, there is also no evidence availed to support the allegations that the 6th Respondent influenced the arrest and arraignment of the Petitioners, that the offices of the 1st, 2nd and 3rd Respondents are independent offices and perform their duties without fear or favour, the allegations are malicious and aimed at tainting the image of the said offices, the decision to charge the Petitioners was made independently by the 2nd Respondent who after reviewing the evidence on record noted that there was sufficient evidence to mount a prosecution, the Application is an afterthought, the Petitioners have not demonstrated how their rights as guaranteed by the Constitution have been abused, the criminal proceedings were instituted in the public interest, the issues raised would best be determined by the trial Court as the Petitioners are basically raising issues touching on evidence that would ordinarily be adduced at the trial Court, this Application will occasion great prejudice to the 1st, 2nd and 3rd Respondents and the wider public since the 2nd Respondent will not be granted an opportunity to prove its case against the Petitioners if the prayers are granted, and that the powers of the 2nd Respondent to institute criminal proceedings under Article 157(6)(a) of the Constitution will be greatly interfered with and undermined.
5th Respondent’s Replying Affidavit
10.The 5th Respondent also opposed the Petition by swearing the Replying Affidavit filed on 11/05/2023 through Messrs MAC Law Advocates LLP. She deponed that there is no evidence to support the Petition, that the Petitioners have not demonstrated any violation of their constitutional rights to the required level of particularity, the 1st, 2nd and 3rd Respondents have a constitutional mandate to investigate, interrogate, arrest and prosecute crimes whenever a complaint is lodged and reasonable grounds established, on 22/03/2023 she was called by one of her workers who informed her that the Petitioners had invaded her farm, a portion of LR No. 7991 situate at Kesses and chased away her workers, using a power saw they cut down her erected poles on allegations that she had sold the land to the 6th Respondent, she reported the incident at Kesses police station and the police officers visited the scene and confirmed the damage that had been occasioned by the Petitioners, the officers arrested the Petitioners who were at the scene but later released them on cash bail pending further investigations, valuation was done and the value of the damaged poles was assessed at Kshs 674,375/-, a person who feels aggrieved by another has a right to lodge a complaint with the police for them to investigate and effect an arrest if there is a probable cause and/or belief that charges should be preferred, in a case of unlawful arrest such as the one before this Court, it is upon the Petitioners to prove that the arrests had no basis in law and which they have not, the Petitioners have not provided any evidence to prove that the 1st and 2nd Respondents did not have any reasonable grounds to arrest them or that the arrests led to violation of the Petitioner’s constitutional rights, the Petitioners were arrested for an offence of malicious damage to property which is an offence under the law, the Petitioners having been charged and taken plea before the 4th Respondent, it shows that the Petitioners’ right to a fair trial have been and continue to be protected, the 4th Respondent is clothed with proper jurisdiction to hear and determine criminal cases, the Petitioners seeking orders of certiorari to quash the charge sheet is akin to asking this Court to stop the Magistrate Court from exercising its constitutional and statutory duty, and that the Petitioners have not presented any evidence to show that there is misuse of Court process or danger that they will not get a fair trial.
11.The 5th Respondent maintained further that she is not a party to the proceedings in ELC No. 19 of 2020 and therefore she is a stranger to orders made therein, as regards the order issued in Succession Cause No. 50 of 2013, the same allows all beneficiaries of the estate to occupy the parcels of land as occupied as at the date of the deceased’s death and does not restrain her from fencing their parcels, if the Petitioners were aggrieved, the appropriate remedy would have been to move the Court for contempt and not damage her property, she is the complainant in Eldoret Criminal Case No. E673 of 2023 and the Petitioners have not provided any evidence to show that she is being influenced by the 6th Respondent, there is no memorandum of understanding between herself and the 6th Respondent as alleged by the Petitioners, the Petitioners cannot claim that the charges are unsubstantiated as they shall be given a chance to give their evidence in the criminal case and that it will be in the interest that the criminal case proceeds to full hearing.
6th Respondent’s Replying Affidavit
12.The 6th Respondent also opposed the Petition vide the Response filed on 25/05/2023 through Messrs Tororei & Co. Advocates. It was contended therein that the Petitioners have not demonstrated the violation of their constitutional rights to the required level, that the 6th Respondent denies erecting any fences on the suit property as alleged, it is apparent that the Petitioners have an issue with the 5th Respondent, they should deal with the matter without dragging the 6th Respondent’s name into it, the 6th Respondent has not lodged any criminal complaint and neither is he interested in the criminal proceedings, he is incapable of influencing how officers of independent institutions exercise their constitutional/statutory functions, to the extent that the Petition challenges the decision of officers of independent institutions from discharging their constitutional/statutory functions, the Petition is incurably defective, the Petition is an attempt to torpedo the criminal proceedings against the Respondents in a blatant abuse of the process of the Court, the Courts dealing with the two cases, Eldoret ELC No. 19 of 2020 and Eldoret High Court Succession Cause 50 of 2014 are empowered by law to deal with any violation of its orders and may cite parties for contempt, in exercise of their right the Petitioners indeed filed such Application in ELC No. 19 of 2020 seeking enforcement of the restraining orders issued on 28/05/2022, it is therefore an abuse of Court proceedings to relitigate on the same issue in a Constitutional Court, the orders in Eldoret ELC No. 19 of 2020 were issued on 28/05/2022, close to 3 years ago, the same automatically lapsed and were never reinstated or extended, and it is therefore apparent that there are no orders capable of enforcement. In conclusion, it was stated that the decision by the 1st – 3rd Respondents to charge was well within the law and that the Petition is devoid of merit.
13.A keen eye will immediately notice that a substantial portion of the 6th Respondent’s said Response advances factual matters. Having not sworn any Affidavit to support such factual matters, this Court will ignore such offending portions of the 6th Respondent’s Response.
Petitioner’s Further Affidavit
14.The Petitioner then filed a rather lengthy 80-paragraphed Further Affidavit, again, sworn by 1st Petitioner. She deponed no investigations were carried out by the 3rd Respondent as falsely alleged, that instead, the 3rd Respondent only called the workers of the 6th Respondent who had invested interests in the said parcel of land, the said never saw any one of the Petitioners allegedly destroy the said poles yet they are alleged to have written statements which statements are not even attached, none exists unless they intend to manufacture them, any report hat has ever been made to the 3rd Respondent concerning the illegal invasion of the land by the 5th and 6th Respondent contrary to the existing Court orders has always been ignored by the 3rd Respondent, when the Petitioners were presented to the Court on 27/03/2023, the Respondents informed the Court that they could not ascertain cash bail yet the charge sheet indicates that the value of what was damaged was Kshs 674,375/-.
15.The rest of the matters set out in the Further Affidavit are repetitions and reproduction of the same matters already deponed in the Petitioners’ Supporting Affidavit and others are legal arguments which belong to the realm of final Submissions and are not factual statements which is what an Affidavit should contain.
Hearing of the Petition
16.Pursuant to the directions given, the Application was canvassed by way of written submissions. The Petitioners filed their Submissions on 25/07/2023, the 1st, 2nd and 3rd Respondents filed their joint Submissions on 11/08/2023, the 5th Respondent filed on 9/08/2023 and the 6th Respondent filed on 23/08/2023. The Petitioner then filed Supplementary Submissions on 28/09/2023.
Petitioners’ Submissions
17.Counsel for the Petitioners basically reiterated the matters and narratives already exhaustively set out in the Petitioner’s Supporting and Further Affidavits. I will not therefore again recount the same. He however added that within the realm of Article 25(a), 27, 28 and 47 of the Constitution, the terrain under the current prosecutorial regime has changed and the discretion given to the DPP (2nd Respondent), under Article 157(6) is not absolute but must be exercised within certain laid down standards provided under the Constitution and the ODPP Act, in the present case these standards have not been adhered to, it behoves this Court to investigate the allegations and make a determination, the argument by the 3rd Respondent that its decision to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and the Constitution, this Court has unfettered discretion to interpret the Constitution and give effect to the letter and spirit thereof, the manner in which the 2nd and 3rd Respondents arraigned the Petitioners and charged them clearly demonstrates that the discretion is being exercised with a view to achieving certain extraneous goals, pursuant to Section 5(1)(c ) of the DPP Act, the ODPP formulated the “ODPP Guidelines on the Decision to Charge” which envisages two basic concepts, namely, that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted, paragraph 4(b)(2) of the said Policy provides “the evidence test – public prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction, in other words, public prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available?
18.Counsel cited the Court of Appeal case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR and the Supreme Court case of Saisi & 7 others vs The Director of Public Prosecutions and 2 Others, Petitions 39 & 40 of 2019 (Consolidated) (2023) KESC 6 and submitted in the instant case, while allegations of malicious damage to property have been levied, there is no scintilla of evidence adduced in support. He also cited the case of R v Attorney General ex parte Kipngeno arap Ngeny, HCCC Application No. 406/2001 and submitted that the recommended prosecution was based on insufficient and inconsistent evidence which cannot sustain a conviction.
19.He further submitted that Courts have time after time held that it is the constitutional mandate of the High Court to interfere with the prosecutorial powers of the DPP where an intended prosecution is based on an oppressive or vexatious investigation and is contrary to public policy. He cited the Supreme Court case of Jirongo vs Developers Ltd & 9 others (Petition 38 of 2019) KESC32 (KLR). He maintained that the 6th Respondent is hiding his face behind the 5th Respondent, and that the Petitioners were charged without any no investigations being carried out. He cited the case of Republic v Director of Public Prosecutions & Another ex parte Patrick Kangethe Njuguna & 4 Others [2017] eKLR and listed the instances when the Court can interfere.
1 st, 2ndand 3rd Respondent’s Submissions
20.Senior Prosecution Counsel, Emma Okok filed Submissions on behalf of the 1st, 2nd and 3rd Respondents. She cited Section 24 of the National Police Service Act which sets out the functions of the Kenya Police Service as earlier set out in the Replying Affidavit of Sergeant Sofia Ibrahim. Counsel submitted that as deponed in the said Replying Affidavit, the Petitioners were arrested on 24/03/2023 which was a Friday after preliminary investigations revealed that they were culpable, and arraigned in Court on 27/03/2023, this was well within the 24-hour rule as provided for in the Constitution, this decision by the 1st and 3rd Respondents was not influenced by the 6th Respondent as alleged by the Petitioners, that Sergeant Ibrahim has clearly stated how investigations were conducted in this matter and that the allegations that investigations were not carried out is false, it is evident from the Replying Affidavit that the Petitioners were aggrieved by the decision of the 5th Respondent to erect fencing poles in a parcel of land which they claim is subject of a dispute that is in Court but instead of filing contempt proceedings or reporting to relevant authorities, they chose to take the law into their own hands, contrary to the Petitioners’ criticism of the process and manner of valuation of the alleged damaged property, the valuation report forms part of the exhibits that the prosecution will be relying on during the trial, in any event, failure to prove the value of destroyed property is not fatal to the prosecution case, what is important is for the prosecution to prove that property was destroyed unlawfully, and that investigations were properly and independently conducted by the 1st and 3rd Respondents in accordance with the law.
21.Counsel then cited Article 157 of the Constitution, which establishes the office of the 2nd Respondent (DPP) and referred to sub-Articles (6), (10) and (11) which provide for his functions and the fact he that he shall not require the consent of any person for the commencement of criminal proceedings and in exercising his functions, and requires him to exercise his powers by having regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. Counsel submitted further that the police file was forwarded to the 2nd Respondent’s office by the investigating officers upon conclusion of the investigations, that upon thorough investigation of the complaint the 2nd Respondent was satisfied that a criminal offence had been committed, as a result, criminal proceedings were instituted against the Petitioners who were therefore charged with the offence of malicious damage to property contrary to Section 339(1) of the Penal Code which is an offence known in law, the 2nd Respondent thoroughly analyzed the evidence available, established that the same was admissible and sufficient and that public interest required institution of criminal proceedings against the Petitioners, and that the decision was made independently and without any undue influence from the 5th and 6th Respondents as alleged.
22.She cited the case of Republic v Chief Magistrate, Milimani Criminal Division & 4 others Ex-Parte John Wachira Wambugu & another [2018] eKLR Misc. Application No. 620 of 2017 and submitted that the Petitioners have not demonstrated that while making the decision to charge, the 2nd Respondent abused this power or acted with bias or maliciously, the Court should not therefore be quick to entertain this Petition as it is aimed at interfering with the constitutional mandate of the 2nd Respondent. She cited the case of Diamond Hasham Laji (supra) and submitted that the decision to charge is not absolute, the Courts can interfere in exceptional circumstances. She also cited the case of R.P. Kapur vs The State of Punjab on 25 March, 1960 SC 866 and also Robert Waweru Maina & 3 others v The Director of Public Prosecutions & 3 others KEHC 15 (KLR) and submitted further that it is trite law that he who alleges must prove, and that it is upon the Petitioners to prove that their case falls within the instances that warrant interference by the Court. According to Counsel, the Petitioners had not done so.
23.Counsel submitted further that some of the issues raised by the Petitioners are issues touching on evidence that would ordinarily be adduced at the trial court and would best be determined by that Court. Regarding the Petitioners’ challenge on the truthfulness and validity of the valuation report and the allegation that the investigating officers did not carry out any investigations, Counsel submitted that the officers are prosecution witnesses and the proper forum to deal with these allegations would be the trial Court. She cited the case of Republic v Chief Magistrate, Milimani Criminal Division & 4 others Ex-Parte John Wachira Wambugu & another [2018] eKLR Misc. Application 620 of 2017 and maintained that the Petitioners have not given sufficient reason to warrant the grant of the orders prayed for, specifically the order of certiorari seeking the quashing of the criminal proceedings. She submitted that the same should be allowed to proceed to its logical conclusion.
5th Respondent’s Submissions
24.On his part, the 5th Respondent’s Counsel submitted that the institution of Eldoret Criminal Case No. E673 of 2023 is not an abuse of the process of the Court having been instituted legally, the Petitioners were arrested after a complaint had been filed by the 5th Respondent that the Petitioners had damaged her erected poles valued at Kshs 674,375/= using a power saw, the arrests were effected after the police officers visited the scene and confirmed the damage, the Petitioners were then charged with an offence of malicious damage to property where they took plea and pleaded not guilty, criminal procedure dictates that once plea has been taken, the accused person is to be supplied with witness statements and exhibits that the prosecution intends to rely on during prosecution and which has been done, the 1st, 2nd and 3rd Respondents have a constitutional duty to investigate, interrogate, arrest and/or prosecute crimes whenever complaints are made and reasonable cause of arrest established, the Petitioners were arrested and charged under Section 339(1) of the Penal Code which is an offence under the law and by a constitutional body, Sections 49(4) and (10) of the National Police Service Act mandates the police to conduct thorough investigations, compile all evidence and submit relevant information and/or evidence to the 2nd Respondent for review in order for the 2nd Respondent to form an opinion whether to charge a person or not, the Petitioners have been supplied with witness statements from the police file, an indication that investigations have been done, concluded and the 2nd Respondent formed an opinion to charge the Petitioners based on the fact that there was incriminating evidence connecting the Petitioners to the offences they were charged with. He cited the case of Republic v Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR and submitted that the decision to charge the Petitioners in the criminal case does not amount to an abuse of the Court process.
25.Counsel also cited the Court of Appeal case of Meme v Republic & Another (2004) eKLR and also O’hara v Chief Constable of the Royal Ulster Constabulary (1997) A.C. 286 and submitted that there was damage occasioned by the Petitioners and therefore the charges preferred are not being used for ulterior motives. On the allegation that the Petitioners were condemned without due process of the law or that they were not afforded a hearing, Counsel submitted that the 3rd Respondent having taken statements from eye-witnesses and preferring charges against the Petitioners, needed not to hear the side of the story of the Petitioners, all the police were required to do is to uphold the law and in particular, the provisions of Article 49 of the Constitution to wit, the Petitioners were made aware of the charges of malicious damage of property, and that the charging of the Petitioners was done within the legal confines, was constitutional and lawful and not an abuse of the Court process.
26.Counsel submitted further that it is an established principle in law that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights with precision and how the same have been infringed upon. He cited the case of Anarita Karimi Njeru v The Republic [1976- 1980] KLR and submitted that the threshold has not been met by the Petitioners as all the Petitioners have done is list the constitutional rights and failed to state in precision how the said rights have been breached by the 5th Respondent. He also cited the case of Bunge Mashinani Initiative vs County Governor of Kiambu & 2 Others - Constitutional Petition No. 4 of 2023 and submitted further that Article 24(1) of the Constitution provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and only to the extent that the limitation is reasonable and justifiable. He also cited the case of Leonard Otieno vs Airtel Kenya Limited [2018] eKLR and submitted that the Petitioners were arrested on 22/03/2023 and released at 7:00 pm only to be re-arrested on 24/03/2023 and held at Eldoret G.K Prison until 27/03/2023 when they were produced before the 4th Respondent (Magistrate’s Court), the Petitioners were on 22/03/2023 arrested and released on a cash bail pending investigations where they were to go back to the police station on 24/03/2023, on 24/03/2023 investigations had been completed and the Petitioners were put in custody to be produced in Court in 27/03/2023, the Petitioners could not be produced before the Magistrate on 25/03/2023 since it was a Saturday while 26/03/2023 fell on a Sunday, the Petitioners have not listed Article 49 of the Constitution as a right that was breached. According to Counsel therefore, it can only be said that the Petitioners were brought before Court in compliance with Article 49(l)(f)(ii) that requires any arrested person to be brought to Court not later than the end of the next day when the arrest has been done when the 24 hours ends outside ordinary Court hours and therefore their rights were not breached. He cited the case of Michael Kungu Kigia v Lydia Gatwiri & 6 Others [2018] eKLR and submitted that the Petitioners have failed to discharge the burden of proof.
27.Counsel submitted further that the 2nd Respondent (DPP) is mandated under Article 157 of the Constitution and Section 6 of the ODPP Act to institute and undertake criminal against any person before any Court of law. He cited the case of James Ondicho Gesami vs The Attorney General & Others, Petition No. 376 of 2011 and submitted that the Petitioners have not proved the particulars of any violation of their constitutional rights or any commission of illegality, irrationality, impropriety or unreasonable acts. On the issue of quashing the charge sheet, Counsel submitted that the criminal case should be allowed to proceed as the same was instituted in the public interest. He cited the case of Henry Aminga Nyabere v Director of PublIc Prosecutions & 2 others: Sarah Joslyn & Another (Interested Parties) 2021 eKLR.
28.On the allegation that the Petitioners intervened because the 5th Respondent was in breach of Court order in Eldoret Succession Cause No. 50 of 2014 and Eldoret ELC No. 19 of 2020, Counsel submitted that the 5th Respondent is not a party to the ELC suit while the Order in Succession Cause allowed all the beneficiaries to occupy the parcels they occupied as at the date of the deceased’s death, it never restrained parties from fencing, as a daughter-in-law to the deceased, the 5th Respondent is on the land legally, if at all the Petitioners were aggrieved with the fencing by the 5th Respondent, the appropriate remedy would have been to move the Court for contempt instead of damaging the same.
6th Respondents’ Submissions
29.Counsel for the 6th Respondent submitted that the 6th Respondent denies erecting any fences on the suit property as alleged, that Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 requires the disclosure of the constitutional provision violated or threatened with violation to be cited and also the nature of injury caused or likely to be caused to the Petitioner or any other person in whose name the Petition has been instituted. He cited the case of International Centre for Policy & Conflict & 5 others v. Attorney General & 5 others (2013) eKLR and submitted that mere citing of the Constitution is not enough to elevate the dispute to a constitutional matter and that for a suit to be instituted as a constitutional Petition, it must meet the threshold of proof as set in the case of Anarita Karimi Nieru v Republic (1976-1980) KLR 1272 and as emphasized in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance (2014)eKLR. Counsel urged that the Petitioner has only alleged contravention of fundamental rights and freedoms by listing various Articles of the Constitution but has not indicated in specificity how the same has been contravened, and that the Petition is therefore not only lacking in particularity, but contains speculative disputes camouflaged as constitutional disputes that are unspecified.
30.Counsel further urged that the 6th Respondent has been unnecessarily dragged into this matter considering the fact that he is not aware of nor does he have any interest in the Criminal Suit No. E673 of 2023, and there is no single evidence presented by the Petitioner to prove the allegations that the Petition is anchored on. He submitted that the Evidence Act applies to Constitutional Petitions and cited Section 107(1), (2) and 109 thereof and contended that under those provisions, the burden of proof lies on the Petitioner. He also cited the Supreme Court case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR and also the case of Erick Kibiwitt & 2 Others vs Director of Public Prosecutions & 7 Others [2014] eKLR and added that without proof of any infringements of constitutional rights, the Petition must fail. He argued further that should the Petitioner have had issues with the 6th Respondent in respect of the ELC suit and the Succession Cause, the Courts dealing with those suits are empowered by law to deal with any violation of its orders, that indeed the Petitioners did file such Application in the ELC suit wherein by the decision delivered by Hon. Justice Obaga on 27/03/2023, the Court found no contempt of Court, and that it is therefore an abuse of the Court process to re-litigate on the same issue in a Constitutional Court.
31.Counsel contended further that the Petitioners are inviting this Court to interfere with criminal proceedings which are yet to be concluded in a criminal Court without demonstrating any particular infringement of rights, that the Petitioner has invited this Court to deal with issues arising out of ELC Court matters as well as a Succession Cause matter seeking reliefs which they can seek from those Courts without hiding behind non-existent issues. He cited the case of Republic v Attorney General & 4 Others ex parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2018] eKLR and submitted that Article 157 of the Constitution and Section 6 of the ODPP Act allow the 2nd Respondent to institute and undertake criminal proceedings against any person and does not require the consent of anyone. He also cited the cases of Republic v Damfond Kabage Mwangi [2016] eKLR, Hussein Khalid and 16 Others v Attorney General & 2 others [2019] eKLR and Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 Others [2018] eKLR.
Appellant’s Supplementary Submissions
32.In his Supplementary Submissions, Counsel for the Petitioners maintained that the the institution was made in bad faith and is intended to achieve other purposes apart from acting on a genuine complaint, the same was instituted as a way of silencing the Petitioners in order to give way for the 5th and 6th Respondents to sell and/or use the land against the existing Court orders cited, the Petitioners fault the manner in which they were being handled throughout the arrests and detention, from the flow of events, it is evident that the decision to arrest the Petitioners was premeditated from acts of the Respondents openly disobeying the Court orders, the compliant was never diligently investigated by the Respondents as required by law and it is for this reason that to date, there are no witness statements supplied to the Petitioners, the police ought to have recorded statements from the neighbours and the Petitioners instead of relying solely on the falsified statements of the workers of the 6th Respondent alone. He cited the cases of Anthony Murimi Waigwe v Attorney General & 4 Others [2020] eKLR, Bitange Ndemo v Director of Public Prosecutions & 4 Others [2016] eKLR and Republic v Commissioner of Co-operatives ex parte Kirinyaga Tea Growers Co-operative Savings & Credit Society Limited CA 39/97 [1991] EALR.
Analysis & Determination
33.Upon carefully considering the record including the Affidavits, Submissions and authorities presented, I find that the matters raised herein can all be summarized into one broad issue as follows:
34.Before answering the said question, I first address the challenge raised by the 5th and 6th Respondent’s Counsel to the effect that the threshold for Constitutional Petitions has not been met by the Petitioners because, in their view, all the Petitioners have done is to list constitutional rights without stating in precision how such rights have been breached.
35.In determining the said challenge, I agree that there is a long-standing principle in Constitutional Petitions that a Petitioner must identify the constitutional entitlement threatened, infringed or violated and to demonstrate with some level of precision the manner of violation as to enable the Respondent mount a defence. This was the holding in the oft cited decision in Miscellaneous Criminal Application 4 of 1979, Anarita Karimi Njeru v Republic [1979] eKLR when the Court remarked as follows:
36.This position has been affirmed in many subsequent decisions particularly, in the Court of Appeal case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the Court reiterated the importance of compliance with procedure despite the provisions of Article 159 of the Constitution and despite the overriding objective principle under Section 1A and 1B of the Civil Procedure Act. The Court affirmed that there is always need for precision in the framing issues in constitutional petitions and pronounced itself in the following terms:
37.The Supreme Court, too, weighed on the issue in the case of Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR where it stated as follows:
38.I have carefully gone through the Petition and observe that under the section titled “Locus, Jurisdiction and Legal Foundation of the Petition”, the Petitioners have, in paragraphs 2 – 8 thereof, laid out the constitutional provisions that, they believe, warrant the Court’s intervention, with paragraph 8 identifying the grounds and the manner in which those Articles and rights therein are alleged to have been infringed or violated. A reading of the facts set out and the prayers sought reveals that the Petitioner is seeking declaratory orders arising from alleged violations of Articles 25, 27, 28, 47 and 50 of the Constitution, among others. The Petition has also laid out the factual matrix upon which the Petition is based.
39.Although the drafting part is not what I would call the “epitome of precise, comprehensive or elegant drafting” as was referred to in Annarita Karimi (supra) and might do with a little bit of improvement on presentation, articulation and eloquence, I am nevertheless satisfied that, despite the absence of sufficient coherence, organization and clarity in the Petitioners’ pleadings leading to avoidable verbosity and unnecessary repetitions, in turn, forcing the Court to spend much longer time to unravel what is being advanced, the Petitioner has to an acceptable standard, brought out the alleged violations to a reasonable degree. In the circumstances, I am prepared to find that despite its apparent deficiencies, the Petition meets the threshold required for constitutional petitions as set out in Annarita Karimi (supra).
40.Turning now to the substantive matters, the Petitioners contend that their arrest and detention by the 1st, 2nd and 3rd Respondents on 22/03/2023 and again, on 24/03/2023 to 27/03/2023 was a violation of their constitutional rights under Articles 25(a) as read with Articles 27(1) and (2) of the Constitution. They therefore allege that the investigations by the 1st and 3rd Respondents and the institution of criminal proceedings by the 2nd Respondent against the Petitioners in Criminal Case No. E673, Eldoret Chief Magistrate’s Court is an abuse of the process of the Court and therefore unlawful, null and void.
41.The Petitioners have placed much reliance on their argument that they were arrested when all they had gone to do at the scene was to “intervene” against disobedience of Court orders given in two cases, namely, Eldoret ELC No. 19 of 2020 and Eldoret High Court Succession Cause 50 of 2014. They have not however explained what sort of “intervention” they put in place.
42.Article 25 of the Constitution provides as follows;
43.On their part, Article 27(1) and (2) provide as follows:1.Every person is equal before the law and has the right to equal protection and equal benefit of the law.2.Equality includes the full and equal enjoyment of all rights and fundamental
44.It is true that the 2nd Respondent, office of the Director of Public Prosecution (ODPP) is not subject to the control of any person or authority in exercising his mandate as conferred by the Constitution. It is however equally true that the exercise of that power and discretion must be exercised in accordance with the law. Where it is demonstrated that the DPP has overstepped his mandate by misusing the powers, the High Court can and should intervene. Such abuse of powers would include for instance, the employment of extraneous factors to achieve ulterior goals separate from ends of justice. In regard thereto in the case of Kuria v Attorney General [2002], the Court made the following statements:
45.Similarly, in Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held as follows:
46.Basically, the Petitioners allege that their tribulations are instigated or influenced by the 6th Respondent. A foreigner reading the Petition herein would, no doubt, wonder what is it about the 6th Respondent that makes him so powerful to the extent that he is being alleged to have influenced a whole investigatory arm of the government and also a whole prosecutorial arm to arrest, detain and charge the Petitioners without legal basis. Although they have not expressly stated it, this Court takes judicial notice of the fact that the 6th Respondent is a Member of Parliament and, either correctly or erroneously, is generally perceived to be “close or part of the powers that be”, politically speaking. It is apparent that it is on this basis that he is “believed” by the Petitioners to have invoked such perceived “powers” to instigate the actions taken by the 1st, 2nd and 3rd Respondents against the Petitioners.
47.According to the Petitioners, their father died in the year 2012 and the distribution of his estate is still the subject of Court proceedings in Eldoret High Court Succession Cause No. 50 of 2014. They claim that the 5th Respondent is married in their family, as a wife to their late elder brother and that instead of waiting for the conclusion of Succession Cause, has sold or is in the process of selling part of the family/estate parcel of land - a portion of LR No. 7991 situate in Kesses area - to the 6th Respondent. The Petitioners are opposed to the alleged sale and have even filed a suit against the 6th respondent in Eldoret Environment & Land Court (ELC) Case No. 19 of 2020. They therefore claim that it is because of the 6th Respondent’s alleged interest over the parcel of land that he is using his “powers” to instigate and “influence” the persecution of Petitioners by using the 1st, 2nd and 3rd Respondents to torment them. In their own words, the 6th Respondent is “hiding his face behind the 5th Respondent”. The Petitioners have also alleged that on the date of the incident – 22/03/2023 - the 6th Respondent addressed the media and claimed that he bought the land. They exhibited an extract from a newspaper.
48.The Petitioners have also submitted that by entering into transactions over the land before conclusion of the Succession Cause, the 5th and 6th Respondents are guilty of intermeddling in the estate of the deceased contrary to the law.
49.The 6th Respondent has not sworn any Affidavit in this matter. On her part, the 5th Respondent denies that she has sold nor is she is in the process of selling the said portion of land to the 6th Respondent and states that the only arrangement she has with the 6th Respondent is that she has allowed the 6th Respondent to cultivate the portion in exchange to the 6th Respondent paying school fees for her children. However, I have seen pleadings exhibited herein by the Petitioners filed in the ELC suit which includes an exhibit described as a “Memorandum of Understanding”, dated 31/08/2017 entered into between the 5th and 6th Respondents. It is indicated therein that the 6th Respondent would meet the school needs and subsistence of the 5th Respondent’s children at a cost of Kshs 4,000,000/- and in return, the 5th Respondent shall upon conclusion of the Succession Cause allocate to the 6th Respondent some land from the 5th Respondent’s entitlement to the estate. The document further indicates that pending conclusion of the Succession Cause, the 6th Respondent would be utilizing a portion of the land.
50.If the said document is genuine, then it is indeed true that the 6th Respondent has an interest over the parcel of land. Is it therefore true that the 6th Respondent, in view of this interest coupled, with the Petitioners’ stiff opposition to the arrangement with the 5th Respondent, has used his “influence” to instigate the arrest, detention and arraignment of the Petitioners? The position taken by the Petitioners is that this was the case. They may or not be right but it is they who bear the burden of proof to prove this very serious allegation.
51.The Petitioners’ claim is that on 22/03/2023, the 6th Respondent started fencing the disputed land contrary to orders of injunction issued in the said ELC case and also contrary to preservatory orders issued in the Succession Cause. They claim that upon “intervention” by the Petitioners and other family members, the police came and arrested and detained them in the police cells, that they were later released on the same day on police cash bail but were re-arrested on 24/03/2023 and detained in custody until 27/03/2023 when they were presented to Court and charged with the offence causing damage to property. They allege that no investigations were conducted before they were charged.
52.On their part, the 1st, 2nd and 3rd Respondents, through the Replying Affidavit filed on their behalf, claim that on the afternoon of the said 22/03/2023, the 5th Respondent made a report at the Kesses Police Station alleging that the Petitioners had invaded her farm, chased away her workers and, using a power saw, began cutting down 700 fencing poles erected thereon. The police Occurrence Book (OB) capturing this report has been exhibited. It is then claimed that police officers were then sent to the scene in the company of the 5th Respondent where after some inquiries and observing that indeed the damage had been committed, they arrested the Petitioners who were at the scene and escorted them to the Police Station for interrogation, that due to the complex nature of the matter, it was handed over to the 3rd Respondent (DCIO Langas Eldoret) for further investigations, that statements from eye-witnesses were collected, a Valuation Report to ascertain the value of the property damaged was also obtained and the same damage was valued at Kshs 674,375/-, that in the course of the investigations it was established that the 5th Respondent had entered into a Memorandum of Understanding and did a joint venture with one Stephen Kiplimo Rono in which the two would plough and cultivate a portion of the said land and later share the proceeds, that the Petitioners were opposed to this arrangement and that this is why they destroyed the fencing poles.
53.Up to this point, I observe with a lot of curiosity, that the deponent of the Respondent’s Replying Affidavit has made no mention whatsoever of the presence of the 6th Respondent at the scene at the time of the incident as has been alleged by the Petitioners. Further, no mention of the Memorandum of Understanding entered into between the 5th and 6th Respondent has been made and instead, the Memorandum of Understanding referred to is one allegedly entered into between the 5th Respondent and one Stephen Kiplimo Rono which has not even been exhibited. Is the 6th Respondent being deliberately “shielded” by the Respondents or is his alleged presence at the scene a figment of the Petitioner’s imagination? It can only be one of the two. Secondly, is it that the police, in their investigations, never came across the Memorandum of Understanding entered into between the 5th and 6th Respondents? Thirdly, did the 1st and 3rd Defendants mention anything to the 2nd Respondent (DPP) about the alleged presence of the 6th Respondent at the scene to enable the 2nd Respondent reach an informed decision on whether to charge? Fourthly, did the 1st and 3rd Defendants mention anything to the 2nd Respondent (DPP) about the 6th Respondent’s Memorandum of Understanding, again to enable the 2nd Respondent reach an informed decision on whether to charge?
54.I cannot tell who between the two parties is being truthful or candid but as I already stated, the burden of proof lies with the Petitioner.
55.I am also curious why the witness statements alleged by the Respondents to have been taken from eye-witnesses have not been exhibited. Without having sight of the Witness Statements, how will the Court interrogate what the witnesses stated or whether any statements were taken in the first place?
56.Back to the Replying Affidavit filed on behalf of the 1st, 2nd and 3rd Respondent, it is stated that upon conclusion of the investigations, the 1st and 3rd Respondent formed the opinion that there was sufficient evidence to sustain and charge the Petitioners, that the police file was then forwarded to the 2nd Respondent who upon perusal, and as its mandate entails, recommended that the Petitioners be charged with the offence of malicious damage contrary to Section 339(1) of the Penal Code. Accordingly, the Petitioners were arraigned and charged in Court along those terms. It is therefore claimed that the decision to charge the Petitioners was made independently.
57.There is however no disclosure as to the timelines within which the Kesses Police Station forwarded their file to the 3rd Respondent (DCIO at Langas Police Station), when the DCIO conducted and completed the investigations, when the DCIO then forwarded the police file to the 2nd Respondent (DPP) for scrutiny nor when the DPP returned the file to the DCIO recommending the decision to charge or sanctioning the same. This is because the period involved is only 3 days; the incident occurred on 22/03/2023 on which date the Petitioners were arrested and later released and re-arrested on 24/03/2023. I wonder therefore whether 3 days would have been sufficient to conduct all that has been alleged to have been done.
58.I also wonder why, after the Petitioners were re-arrested on Friday, 24/03/2023, their police cash bail, which they had already deposited on 22/03/2023, could not simply have been extended to allow them to present themselves before Court on Monday, 27/03/2023? Was it really necessary to detain them in custody for the entire weekend when according to the Respondents, the investigations were already complete? I am aware that releasing of a suspect on police cash bail is at the discretion of the police. I however ask myself these questions because nothing has been mentioned by the 1st and 3rd Respondents about how this discretion was exercised.
59.Had it not been for the matters that I will set out hereinbelow, I would have, for the reasons recounted above, ordered for the immediate termination of the criminal proceedings.
60.Be that as it may, in coming to the end of my analysis and determination, after exhaustively considering this matter, my honest opinion is that although the Petitioners have established strong and plausible suspicion that indeed their arrest, incarceration and arraignment was instigated and influenced by “outside forces”, the Petitioners have left it at that – suspicion that the 6th Respondent is using the 5th Defendant as a disguise. Can the Court make the inferences invited by the Petitioners on the basis of only suspicion, conjecture or what I would call “connecting the dots”? I do not think so.
61.For instance, I observe that the Petitioners claim that the charges brought against them are unsubstantiated and that they have been condemned unheard. However, this nature of allegation can only be determined by the trial Court after receiving full evidence, not by a Constitutional Court at this stage.
62.Secondly, it is not disputed that the 2nd Respondent is established under Article 157 of the Constitution which grants it prosecutorial powers and gives it independence to exercise the same. In order for the Court to interfere with such a decision, the Petitioners must show that there is malice or impropriety involved. In Douglas Maina Mwangi v KRA & Another, Constitutional Petition No. 528 of 2013, the Court addressed the issue as follows:
63.My view is that although the Petitioners have raised serious questions over the manner in which the matter were handled, the Petitioners have not sufficiently demonstrated that such handling met the threshold of being described as violation of their rights under Articles 25 and/or Article 27 of the Constitution.
64.The Petitioners allege that by being detained in custody, their rights under Articles 28 and 49(1)(a) of the Constitution were violated. Article 28 provides as follows;
65.On the other hand, Article 49(1)(a) is premised in the following terms:(1)An arrested person has the right—(a)to be informed promptly, in language that the person understands, of(i)the reason for the arrest;(ii)the right to remain silent; and(iii)the consequences of not remaining silent;
66.However, the Petitioners have not demonstrated or even alleged that they were deprived of any of the above constitutional safeguards. They have alleged torture but have not in any way given any explanation of such torture.
67.On its part, Article 49(1)(f) provides as follows;
68.Again, it has not been demonstrated or even alleged that the Petitioners were deprived of any of the above constitutional safeguards. Regarding the confinement of the Petitioners in custody from 24/03/2023 to 27/03/2023, Seargent Sophia Ibrahim deponed that the Petitioners were first arrested on 22/03/2023 and released on cash bail on the same day pending investigations, that they were directed to report back to the police station on 24/03/2023, that on 24/03/2023 investigations had been completed and the Petitioners were put in custody to be produced in Court on 27/03/2023, that the Petitioners could not be produced before the Magistrate on 25/03/2023 since it was a Saturday while 26/03/2023 fell on a Sunday. Although I have raised questions on why the Petitioners had to be detained in custody for the entire weekend, it follows that such detention was well within the law since the next working day after the Petitioners were arrested was a Monday, 27/03/2023. No violation of the rights of the Petitioners under Article 49 of the Constitution has therefore been demonstrated.
69.As to whether the Petitioners were charged without evidence, the correct forum to determine that is the trial Court. Contestations on factual evidentiary matters cannot be determined in a Constitutional Petition.
70.As regards the allegation that the Petitioners were arrested by officers from Langas Police Station officers who according to the Petitioners, did not have jurisdiction, Sergeant Sofia Ibrahim has given an explanation on how the Langas Police Station became involved. She deponed that the Petitioners were arrested by police officers from Kesses Police Station on 22/03/2023, that they were later released on cash bail on the same day pending further investigations, that the matter was then handed over to the 3rd Respondent - DCIO Langas, Eldoret - for further investigations due to the complex nature of the case, that in any event, Kesses Police Station falls under the jurisdiction of the 3rd Respondent - DCIO Langas, Eldoret. This explanation was not challenged or controverted by the Petitioners.
71.The Petitioners also seek declaratory orders over alleged violation of their rights under Articles 47 and 50 of the Constitution. Article 47 (1) provides as follows;1.Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
72.On its part, Article 50 provides as follows;1.Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.(2)Every accused person has the right to a fair trial, which includes the right—a.to be presumed innocent until the contrary is proved;b.to be informed of the charge, with sufficient detail to answer it;c.to have adequate time and facilities to prepare a defence;d.to a public trial before a court established under this Constitution;e.to have the trial begin and conclude without unreasonable delay;f.to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;g.to choose, and be represented by, an advocate, and to be informed of this right promptly;h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;i.to remain silent, and not to testify during the proceedings;j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;k.to adduce and challenge evidence;l.to refuse to give self-incriminating evidence;m.to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;n.not to be convicted for an act or omission that at the time it was committed or omitted was not—(i)an offence in Kenya; or(ii)a crime under international law;o.not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;p.to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; andq.if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
73.There is no demonstration or even allegation that the Petitioners have been deprived of any of the rights outlined above. From the record, and form their own admission, it is evident that that the Petitioners were informed of the charge as set out in the charge sheet. The Petitioners were also presented to the Court and released on bail. The Petitioners have alleged that to date they have not been supplied with witness statements by the prosecution. However, they do not disclose whether they have brought such omission to the attention of the trial Court which is the one empowered to direct the prosecution to do so. Violation of any of their rights under Article 50 has therefore not been demonstrated.
74.As I have also already alluded to hereinabove, the Petitioners have placed much reliance on their argument that they were arrested when all they had gone to do at the scene was to “intervene” against disobedience of Court orders given in two cases, namely, Eldoret ELC No. 19 of 2020 and Eldoret High Court Succession Cause 50 of 2014. They have not however explained what sort of “intervention” they put in place. According to the Respondents, this so-called “intervention” was in fact unlawful as it was in the nature of the Petitioners taking the law into their own hands and cutting down fencing poles using a power saw. Well, I have no mechanism of verifying this allegation and as already stated, that, too, is a matter of evidence which the trial Court is the forum best suited to unravel.
75.All I can say at the moment is that if indeed there is disobedience of the orders issued by the two respective Courts, then the Petitioners have the recourse of going back to those Courts for remedy. Those two Courts are empowered by law to deal with any violation of its orders including the power to cite and punish parties for contempt of Court. Indeed, I note that the Respondents claim that the Petitioners did file such Application in the ELC suit and that Hon. Justice Obaga has already delivered a decision thereon.
76.In conclusion therefore, I have to state that although I have raised a number of disturbing questions on the manner and procedure in which this matter was handled by the police, I am satisfied that it has been demonstrated that the criminal charges were preferred after the carrying out of investigations. Apart from mere suspicions, no evidence has been presented by the Petitioners to controvert or challenge the account or narrative given by Seargent Sofia Ibrahim that the police officers who went to the scene indeed found the Petitioners and other people cutting down the fencing poles and barbed wire and saw for themselves the damage that had allegedly been done by the Petitioners, that witness interviews were conducted and that eye-witness statements taken. There is therefore no material before the Court to justify a finding that there was no reasonable suspicion before preferring the charges or that the Respondents acted in an unreasonable manner. Indeed, the Constitution and the National Police Service Act give the Police the mandate to investigate. On this aspect, I refer to the sentiments of Warsame J (as he then was), in the case of Republic v Commissioner of Police and Another ex-parte Michael Monari & Another [2012] eKLR, where he stated as follows:
77.It is therefore my finding that the Petitioner has not provided sufficient evidence at this stage to demonstrate that there was any malice or impropriety in the decision to charge them. In Douglas Maina Mwangi v KRA & Another, 213 eKLR, Majanja J addressed the issue as follows:
78.Applying the principles enunciated in the authorities cited above, it is my considered view that the Petitioners has not demonstrated that the 1st, 2nd and 3rd Respondents acted in bad faith or that they have abused the process in exercising their investigatory and prosecutorial powers.
79.I however believe that while determining the criminal proceedings, the trial Court shall take into account the matters that this Court has raised hereinabove concerning the unexplained rather opaque and not so transparent manner in which the police appear to have handled the matter.
Final Orders
80.In the premises, I rule as follows:i.The Petition dated 04/04/2023 is hereby dismissed.ii.In view of the not so satisfactory manner in which the matter was handled, I make no order on costs.
DELIVERED, DATED AND SIGNED AT ELDORET THIS 15TH DAY OF DECEMBER 2023...........................WANANDA J. R. ANUROJUDGE