REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CR. CONSTITUTION PETITION NO. 1 OF 2015

CYRUS NJERU IRERI………...................……..….1ST PETITIONER

NYAGA KIANYA.........................................................2ND PETITIONER

VERSUS

     REPUBLIC…………………………….…………………. RESPONDENT

J U D G M E N T

1. This is the petition dated 3/2/2015 seeking for orders that the respondents appeal be dismissed with costs and that there be a declaration that the respondent lacks the right to prosecute the petitioner  under Article 23(3)(a) of the Constitution. The petition is supported by the affidavit of Cyrus Njeru Ireri.

2. In the supporting affidavit, it is stated that the 1^st petitioner and the complainant one Njeru S. Kathuri had a sale agreement which the complainant later repudiated.  The complainant filed two civil suits against the petitioner and caused him to be arrested by the police. The petitioner applied and was issued with an injunction in Embu HCC No. 74 of 2006 restraining the complainant from harassing and arresting him together with his witnesses. The respondent in an act of impunity  arrested the petitioner and his witness and put them in remand.  The petitioner was charged with fraud while his witness was charged with conspiracy to defraud. The court acquitted the petitioner on grounds that he had no case to answer.

3. The petitioners argue that the prosecution by the respondent was an abuse the due process of the court. On 21/6/2013 after full hearing of the respondent's application to appeal out of time, the court dismissed the application stating that it was not merited.  The respondent made another application and the court allowed it. The petitioners state that they was denied their right to a fair trial and that they are entitled to redress for violation of human rights or threat to a fundamental right under article 25 and 50 of the constitution. Article 159 requires that justice be administered without undue regard to procedural technicalities.

4. In a replying affidavit the respondent's counsel stated that the petitioners were charged with the offence of forgery in Embu Cr 1070 of 2010.The court acquitted both petitioners under section 210 of the CPC. The respondent filed an application no 44 of 2011 seeking leave to file an appeal out of time on 4/11/2011 which was allowed. 

5. The respondent erroneously filed another application on 26/11/2010 seeking extension of time within which to file an appeal on grounds that the respondents file could not be traced. The application was dismissed by the court. The matter was later taken over by counsel who erroneously filed appeal No. 34 of 2013.  The appeal was however withdrawn by a notice dated 5/7/2013. At the time of filing Appeal No. 34 of 2013 as well as the application to enlarge time for filing appeal on 26/11/2012, there was already valid appeals numbers 56 and 57 of 2012 filed earlier by the respondent. 

6. The respondent filed another application dated 15/5/20 explaining the errors made by its office which application was allowed on 18/7/2014.  In July 2014 the petitioners served the respondents with a notice of appeal dated 31/7/2014 where the petitioners intended to lodge an appeal against the ruling delivered on 18/7/2014.

7. The respondent argues that the petitioners have been involved in the hearings and that there is no violation of human rights to warrant dismissal of appeals 56 and 57 of 2012. The respondent argues that it has a constitutional mandate to prosecute appeals Nos. 56 and 57 of 2011 under Article 157. The respondent dismisses the grounds in the petition as a misrepresentation  on the part of the petitioners for the reason that the orders cited emanate from a civil case between the petitioners and the complainant in Criminal case No. 1079 of 2010 where the respondent was not a party.

8. The petition was disposed off by way of written submissions.

9. The petitioners in their submissions stated that on 1^st petitioner was buying land from the complainant. The petitioner paid the complainant money in consideration but the complainant later denied having received the consideration. The matter of forgery of the agreement and transfer was reported to the police by the complainant. The complainant then filed two civil suits and got the petitioners arrested on false allegations.

10. The petitioners sought for help from the court and the high court on 2/12/2009 issued an injunction restraining the complainant from trespassing the suit land or getting the police to harass the petitioners. The order  was duly served on the complainant. The complainant  in contempt of the said orders got the petitioners  arrested and remanded in custody.

11. The petitioners were then tried in the criminal case and acquitted on no case to answer under Section 210 of the Criminal Procedure Code. Despite this, the DPP appealed against the ruling on no case to answer. The    civil cases against the petitioners by the complainant     were never prosecuted. The DPP did  not appeal within time.

12. The petitioners stated that the 2nd application for extension of time was dismissed. It was agreed that there is   no provision for review of an order made under Section 348 of the CPC.  Under Article 23(1)(b) of the  Constitution, the court has power to deal with an application concerning redress denial, violation and  infringement of freedom or right. He cited and attached the authority of UNITED INSURANCE VS STEPHEN NGARE NYAMBOKI Civil Application No. 295 of 2001 Kisumu where the court granted stay pending  appeal as the appeal would have been rendered nugatory.

13. The Counsel for the respondent submitted that the the respondents appealed after the petitioners were     acquitted on no case to answer by the lower court. The respondents filed an application No. 44 of 2011 for leave to appeal out of time. The respondent successfully applied to the court for an order that appeals No. 56 and 57 of 2012 to be deemed as duly filed. The respondent then erroneously filed another application seeking extension of time to file an appeal  after the matter was taken over by a different state counsel.  The application was dismissed and the appeal   No. 34 of 2013 later withdrawn through a notice dated    5/7/2013.

14. The respondent later filed an application dated 15/5/2014 where the state counsel explained the errors which had occurred. The application was allowed by the judge who held that Criminal Appeals No. 56 and 57 of   2012 be deemed as duly filed and served.  The petitioners thereafter served the respondent with a  notice of appeal with the intention to appeal to the Court of Appeal. The respondent contends that it has  a constitutional mandate under Article 157 (6)(a) of the   Constitution and also under Section 23(1) of the Director of Public Prosecution Act    to prosecute the pending appeals. The orders issued  on 2/12/2009 in  HCCC No.74 of 2012 prevented the complainant  from getting police to harass or arrest the 1^st petitioner but did not affect the respondent in its independent investigations. The orders were interim orders pending   hearing of the main suit. The petitioners  did not tell   this court the outcome  of civil suits Embu   HCC 74 of 2006 and Runyenjes SPMCC No. 4 of 2009   both of   which are complained of. The respondent further argues   that appeals No. 57 and 56 of 2012 have a high  chances of success and should not  be dismissed.  Further that the  petitioner does not indicate which individual rights have been violated by the respondent.

15. The law applicable in this petition is Articles 157(6), 25,  23, 159 of the constitution and section 348 A of the     criminal Procedure Code. The petitioners have a right under Article 22 of the constitution to bring a  petition of this nature and this court has the mandate under Article 165(3) to determine the petition concerning alleged violation of any right or  fundamental freedom.

16. The respondent filed an application dated 15/5/2014   whose  ruling was  delivered on 18/7/2014. The court        set aside the  orders extending time to appeal made  on 22/3/2012 in Misc. Criminal Application No. 44 of   2011.  The court then ordered that leave to file appeals Nos. 56 and 57 out of time be granted and that  the  petitions be deemed as duly filed and served.

17. The court orders made by Ong'udi, J. have not been set    aside by way of either appeal or review and are still in   force. The respondent annexed to the replying  affidavit annexture CM 8 which is a notice of appeal to   the Court   of Appeal against the ruling delivered on   18/7/2014.  However, it appears that no appeal was lodged despite the filing and serving of the notice.

18. The Appeals No. 56 & 57 of 2012 are against the ruling   on no case to answer in CM Criminal case No. 1079 of       2009 delivered on 14/10/2012. The mandate of the  respondents to handle criminal proceedings emanates    from the following provisions of the law:-

Article 157(6) of the Constitution. The section provides that;

The Director of Public Prosecutions shall exercise State powers of prosecution and may—

(a)    institute and undertake criminal proceedings against  any person before any court (other than a court martial) in respect of any offence  alleged to have been committed;

(b)    take over and continue any criminal proceedings   commenced in any court (other than a court       martial) that have been instituted or undertaken  by another person or authority,with the permission    of the person or authority; and

(c)    subject to clauses (7) and (8), discontinue at any   stage before judgment is delivered any criminal  proceedings instituted by the Director of Public  Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).

19. Section 23(1) of the Office of the DPP Act 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)    carry 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.

20. THUITA MWANGI & 2 OTHERS VS ETHICS & ANTI- CORRUPTION COMMISSION & 3 OTHERS [2013]         eKLR where the court held that;

The State’s prosecutorial powers are vested in the DPP under Article 157 of the Constitution, the pertinent part which provides as follows;

(6)    The Director of Public Prosecutions shall exercise powers of prosecution and may—

a.     institute and undertake criminal proceedings against any person before any court (other than a     court martial)  in respect of any offence alleged to have been committed.

21. Section 348A of the Criminal Procedure code provides that;

When an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court, the Director of Public Prosecutions may appeal to the High Court from the acquittal or order on a matter of law.

In the case of REPUBLIC V ROSE ODHIAMBO  OMBEWA & ANOTHER [2015] EKLR the court held that;

As a matter of information, I wish to draw attention to the fact that during the pendency of these proceedings, Section 348A of the Criminal Procedure Code was amended by the Security Laws (Amendment) Act, 2014.  this section now allows the Director of Public Prosecutions to appeal against an acquittal on the basis of fact and law.  It provides as follows:-

348A. (1) when an accused person has been acquitted on  trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.

23. The issues relating to the duplication of the application   to appeal out of time and the filing of a second appeal  No. 34 of 2013 (which was later withdrawn) were dealt   with in the ruling of Ong'udi, J. in Misc. Criminal Application No. 56 of 2012. In her ruling,the Judge said that when the court was hearing Misc criminal  Application No. 44 of 2011, it was not informed that  appeals No. 56 and 57 had already been filed and as such the Judge proceeded to make orders allowing the respondent to appeal.

24. In the same ruling delivered on 18/7/2014 the judge observed that Appeals Nos. 56 and 57 had  been filed     out of time with 6 days. She granted extension of time and validated the petitions of appeal. The appeals were consolidated and are now pending hearing.

25. The petitioners are required to demonstrate in this petition that their rights were violated in the    prosecution in Criminal case  No. 1079 of 2009. It was argued there was an injunction restraining the respondent from harassing or arresting the petitioners. However, the annexed order issued in HCCC No 74 of  2006 show that the parties were one Njeru S. Kathuri  as the plaintiff and 1^st petitioner as the defendant. The  2^nd petitioner was not a party to that case and neither was the Director of Public Prosecutions who is the  respondent in this case.

26. The said order therefore did not protect the 2^nd petitioner from being arrested and charged in Criminal case No. 1079 of 2010 since he was not a party. The  respondent herein was not a party and could not be affected by the order. In any way If the 1^st petitioner  intended to have the respondent bound by the order he  should have an independent  suit against the respondent. The suit in which the order was issued  was   between the complainant  Njeru S.Kathuri and the 1^st petitioner. As such the  order issued could only bind  or  protect the parties in the suit. The orders were actually directed to the complainant.

27. On the allegations that the petitioners rights were violated, the petitioners have not demonstrated which  rights were violated or how they were violated. The Criminal trial where the petitioners were represented  proceeded to conclusion without the petitioners opposing the trial or instituting a constitutional petition to have the charges quashed. The two were acquitted of  the charges and one asking this court to dismiss the  appeal. it is not procedural for the petitioners to as this  court to stop the hearing of the appeal when they did    not oppose the criminal trial.

28. As I have said earlier,the respondent has a right of  appeal against a ruling of no case to answer. The        respondent acted within his mandate under Article 157(6) in prosecuting the petitioners. The prayers to dismiss the appeal cannot be granted in this constitutional petition. For the appellate court   should proceed  to hear the appeal and either allow it or   dismiss it. The petitioners should let the appeal be heard on its merits.

29. It is my considered opinion that the petitioners have failed to satisfy this court that their rights were violated       by  the respondent herein.

30. In view of the foregoing reasoning, the upshot is that     this petition has  no merit and it is hereby dismissed.

31. The parties to meet their own costs.

DELIVERED, DATED AND SIGNED AT EMBU THIS 29TH  DAY OF DECEMBER, 2015.

F. MUCHEMI

JUDGE

In the presence of:-

Both petitioners present

Mr. P.N. Mugo for petitioners

Ms. Nandwa for Respondents