1.By way of a Notice of Motion dated 24th February 2021 and filed under Articles 20, 22, 50(1), 23(3), 159(2)(d), 162(2), 165(5), and 258 of the Constitution and Sections 18, 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and all other enabling provisions of the Law, the petitioner seeks to amend his petition dated 24th September 2020.
2.Accordingly the application seeks the following orders:
The Petitioner/Applicant’s case
3.The application was founded on the following grounds:
4.The application was supported by the petitioner’s sworn affidavit of even date where he averred that the application and the petition concern the implementation and defence of the Constitution of Kenya, enjoyment of the fundamental rights and freedoms and the application of the national values and principles of governance in Article 10 of the Constitution. In view of this he avers that the application raises matters of grave public concern and so it is imperative that the violations and threats to the Constitution be stopped by this Court.
The 1st Respondent’s case
5.The 1st respondent in opposing the application filed its grounds of opposition dated 24th March 2021 highlighting their grounds as follows:
The 2nd Respondent’s Case
6.Counsel for the 2nd respondent informed the Court that the 2nd respondent did not wish to participate in any of the applications.
The Interested Parties’ case
The 1st & 2nd Interested Parties
7.The 1st and 2nd interested parties were not opposed to the application.
The 3rd Interested Party
8.The 3rd Interested Party although opposed to the amendments to the petition, did not wish to defend the application.
The 4th Interested Party
9.The 4th Interested party in response to the petition filed its replying affidavit dated 16th March 2021 sworn by Bonnie Okumu, its director, legal services. He deposes that the amendments to the petition are to additionally challenge the constitutionality of the National Prosecution Policy, 2015 and the Diversion guidelines, 2019 for want of public participation. He avers that the application is an afterthought prompted by the Bank's response to the said petition as originally filed.
10.He deposes that the amendments raise a substantially different claim from what the Bank had responded to and will therefore prejudice the bank. This is because it would have to significantly change its line of defence given the amendments. He further avers that there is no justifiable reason why the amendments were not included in the petition initially yet the National Prosecution Policy and Diversion Guidelines are public documents that were available at the time of filing this suit. In view of this he says that the amendments are frivolous and made in bad faith.
11.On the issue of discovery, he avers that an application for discovery ought to be limited solely to the matters in contention. Considering this he avers that the existence of the Deferred Prosecution Agreement (DPA) is an acknowledged fact that does not need to be proved by production of the agreement. He further avers that the petitioner has not demonstrated how production of the agreement will assist the Court make a determination.
12.He avers furthermore that the agreement was confidentially negotiated and signed by the Bank and the 1st respondent without supervision of the court as the dispute was yet to reach the Court. In fact he notes that among the documents annexed to the original petition is a redacted copy of a DPA said to have been executed between the 1st respondent and one of the banks in this case. He argues that the petitioner produced the document in Court without authenticating its source, yet still wants this court to compel the 1st respondent and the Bank to produce a document of the same nature. On the whole, he depones that the application is an abuse of the Court process since it is a fishing expedition to assist the petitioner make his case, which should not be allowed.
The 5th Interested Party
13.The 5th interested party similarly filed its response vide a replying affidavit dated 26th March 2021 sworn by Christine Akinyi Browne, it’s group director legal services and company secretary. The contents of her affidavit repeated the averments made in the 4th interested party’s replying affidavit verbatim.
The 6th Interested Party
14.In response to the application the 6th interested party filed its replying affidavit dated 21st June 2021 through its head of legal service Dr. Davidson Mwaisaka who avers that the application is an abuse of the court process as it lacks legal basis. He deposes that the petitioner has not demonstrated how his rights will be violated by failure to be issued with the documents sought. He adds that the DPA was entered into between the Bank and the 1st respondent under its constitutional mandate.
15.In view of this, he avers that the Bank has fulfilled the immediate and continuing obligations set out in the agreement and so its rights would be violated if the order is issued. This is because the same would amount to self-incrimination which is guarded against under the Constitution. Correspondingly, its production would be against its constitutional right to privacy. To this end he urges the court to dismiss the application.
The 7th Interested Party
16.The 7th interested party filed a replying affidavit dated 21st June 2021 in response to the application. It was sworn by its company secretary and head of legal and debt recovery, Stephen Kodumbe. This affidavit equally reiterated the averments made in the 6th interested party’s replying affidavit verbatim.
The Petitioner/Applicant’s submissions
17.The petitioner filed written submissions dated 10th October 2021 and further supplementary submissions dated 28th March 2022 which echoed his position as contained in the application and affidavit in support. He submits that the rules relating to amendments of pleadings must be interpreted in the context of the principle that one is bound by their own pleadings. In view of this he states that Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, allows for correction so that injustice is not occasioned.
20.In light of this the petitioner submits that it is clear that a court has a very wide berth in granting leave to amend and so amendments of pleadings should be allowed before the final judgment is delivered.
21.On the issue of prejudice as pleaded by the respondents and 4th and 8th interested parties, the petitioner submits that the amendment sought is not a new issue and does not introduce a new cause of action that is substantially different from the one already existing. Thus he argues that the respondent will not be prejudiced in any manner since the provisions of law under Section 146 (4) of the Law of Evidence Act offer a chance to the respondents to recall witnesses for further examination, cross examination and or re-examination so as to get to the bottom of issues raised in the amended claim in the suit.
22.He submits that this element reduces the probability of prejudice on the part of the respondent. This is because it allows the parties to be on equal arms so that their case can be heard on merits rather than letting the same be decided by procedural technicalities.
24.Speaking on the issue of production of the DPAs, the petitioner submits that this court’s power to order discovery is provided for under Section 22(a) of the Civil Procedure Act. In this way he states that Article 35 (1) & (3) of the Constitution as read together with Section 5 of the Access to information Act, No. 31 of 2016, guarantees every citizen the right to access any information that is held by another. Further it imposes an obligation on the State to disclose information.
25.The petitioner argues that since the respondents and 4th to 8th interested parties admitted having entered into the impugned agreements, it is material for the court to examine the contents of the DPAs to determine whether they violate the Constitution. For this reason, he states that the court will not be able to get to the root of this dispute unless the DPAs are produced.
27.The petitioner while replying on Rick Okeyo v County Government of Kisumu & 2 Others  eKLR, urged the court to award him costs.
29.Turning to the issue of whether the application raises a new and different cause of action, the petitioner asserts that the circumstances of the Merry Beach Case (supra) cited by the 1st respondent were different from the circumstances of this case. He submits that the information sought by the petitioner will assist this court to determine the real issues in controversy due to the fact that the instant petition is on the irregular debits in the accounts of the 1st respondent. To buttress this point reliance was placed on the case of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited  eKLR where it was noted that most cases have their own peculiar circumstances in such considerations.
The 1st Respondent’s submissions
30.The 1st Respondent through learned Counsel, Victor Juma Owiti filed written submissions dated 26th May 2021. He identifies the issues for determination as:
32.Counsel on the second issue submits that the intended amended petition seeks to introduce a new cause of action purely to convolute the matter. This is by requiring production of the DPA’s from the 4th to 8th interested parties while the petition dated 24th September 2020 was not based on any of the documents. It is his argument that if the application is allowed it will change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action. He refers to the case of Merry Beach Limited v Barclays Bank of Kenya Limited & Another  eKLR.
33.Turning to the 3rd issue, he submits that by seeking to have the 1st respondent and other parties furnish the petitioner with copies of the DPAs, the petitioner seeks to shift the burden of proof to the 1st respondent. This he says is against the burden of proof set out for constitutional petitions. To buttress this point counsel relied on the case of Peter Ngari Kagume & 7 Others v Attorney General  eKLR where it was observed that it is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms.
34.Lastly, Counsel submits that the petition is vexatious, frivolous, misconceived and an outright abuse of the legal process. He asserts that the amendments are not done in good faith and so should not be allowed as discussed in Uchumi Supermarkets Ltd (supra).
The Interested parties’ submissions
The 4th,5th & 6th Interested parties
36.Citing St. Patrick Hill School Limited v Bank of Africa Kenya Limited  eKLR and in support Counsel notes that the court stated that amendments to pleadings sought before the hearings should be freely allowed. This is only if they can be made without injustice to the other side. Further that there is no injustice if the other side can be compensated by costs. Additional support was placed on Kassam v Bank of Baroda  eKLR.
37.On whether the interested parties should produce the DPAs, Counsel submits that the petitioner in his written submissions dated 10th October, 2021 seems to be seeking production of the original or certified copies of the DPAs as opposed to the copies of the DPAs pleaded in the motion. He submits that parties are bound by their pleadings as seen in the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018] eKLR.
38.Furthermore, Counsel argues that no explanation has been offered to the court to show why production of the DPAs is necessary in the circumstances of this case. This is albeit their existence already within the petitioner’s knowledge as can be seen from prayer number two (2) in the petition. Counsel contends that access to information under Article 35 of the Constitution is unnecessary since the concerned DPAs were highlighted in a press statement issued by the 2nd respondent who made known the outcome of the negotiations and the fact that the DPAs were signed. In light of this the petitioner does not tell the Court which specific information was not captured and that such information will be crucial in the determination of this petition.
39.From the foregoing Counsel submits that on a balance of the interest of the public, the petitioner's interest and the circumstances under which the DPAs were negotiated the Court ought to favour the argument to dismiss the production of the DPAs.
The 7th and 8th Interested Parties
40.The 7th and 8th interested parties through the firm of Oraro and company advocates filed written submissions dated 30th November 2021. Counsel submits that the issues that arise for determination are:
42.He argues that in the circumstances, failure to make an appropriate request for information pursuant to the provisions of the Act means that the application for discovery is premature. Additionally Counsel contends that the petitioner is insincere in his averment that the need for disclosure and production of the DPAs only crystalized upon the filing of responses by the respondents and interested parties. This is because his claim is majorly founded on the existence of the said DPAs and the powers of the 1st respondent to enter into the same.
43.Counsel further submits that the right to access information can be limited by virtue of Article 24 of the Constitution as set out under Section 6 of the Act. This was equally affirmed by the Court in the case of Zebedeo John Opore v Independent Electoral & Boundaries Commission (2017) eKLR. He urges the Court to balance between the petitioners' rights to access information as guaranteed under Article 35 against the protection afforded to both the 1st respondent and the banks herein, pursuant to Section 6(1)(g) of the Act.
44.Turning to the third issue, Counsel submits that the petitioner’s main contention revolves around the powers of the 1st respondent under the Constitution, as taken in conjunction with the ODPP Act, and whether such powers allow the 1st respondent to enter into DPAs. He argues that the amended petition seeks production of the DPAs without any reason as to how the terms thereof have any bearing on the dispute before this Court. Considering these, Counsel argues that a Court is to deal with the real and not hypothetical or perceived disputes as held in the case of Timothy Njoya v Attorney General & Another  eKLR.
45.Further, Counsel argues that in seeking discovery of the DPAs, which are not the subject of challenge before this Court, the petitioner has conflated the issues in dispute in effect abusing the 1st respondent’s and banks right to have fair notice of the issues in controversy. He says this is in breach of the parties rights under Article 50 of the Constitution. Counsel emphasized the need of precision and accuracy in framing of legal issues as held by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others  eKLR.
47.In spite of this Counsel notes that the petitioner has come to this Court with unclean hands. This is because annexed to the his supporting affidavit sworn on 30th September 2020 is an alleged copy of a DPA dated 15th January 2020 entered into between the 1st respondent and the 5th interested party.
48.On the 4th issue he submits that the petitioner has failed to demonstrate to a reasonable degree how the documents sought are necessary to enable him to enforce his rights under the Constitution as appreciated by the Court of Appeal in the Timothy Njoya case (supra). For this reason, Counsel argues that the petitioner has failed to establish a nexus between the information sought and the fundamental rights and freedoms he is complaining about. In the circumstances he argues that the petitioner's right to access information cannot be said to have crystalized. To the contrary, the banks rights to privacy pursuant to Article 31 of the Constitution take precedence.
49.Finally, Counsel submits that production of the DPAs will result in infringement on the banks’ right to be presumed innocent until proven otherwise and the right to refuse to give self-incriminating evidence, as enshrined under Articles 50(2)(b) and 50(2)(d) of the Constitution. To buttress this position he relied on the case of Republic v Mark Lloyd Steveson  eKLR where it was observed that the privilege against compulsory self-incrimination is part of the common law of human rights. It is based on the desire to protect personal freedom and human dignity. That it protects the innocent as well as the guilty from the indignity and invasion of privacy which occurs in compulsory self-incrimination. To this end Counsel submits that the application lacks merit.
Analysis and Determination
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 16TH DAY OF JUNE 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT
50.I have carefully considered the pleadings, rival submissions, authorities cited and the law. I have considered the issues underscored in the notice of motion dated February 2021 and as such find that the issues that arise at this point for determination are:
Whether the Petitioner should be granted leave to file the amended Petition
52.The aforementioned rule divulges that such an amendment is not spontaneous. The Court must examine the factors of each case to ascertain whether the set principles have been adhered to and in its discretion proceed to make a determination. A three judge bench in addressing the question of amendment of pleadings and factors to be considered noted as follows in the case of Institute for social accountability & another v Parliament of Kenya & 3 others  eKLR
55.Turning to the averments by the parties, the petitioner asserts that the amendment is intended to clarify the real issues in the dispute with regards to the nature of the DPAs and the 1st respondent’s power to make such agreements. He challenges their legal basis a fact he seeks to be determined by this Court in his petition as against the set constitutional principles. This he argues is not a new cause of action as it’s essentially pegged on the main issue which is the 1st respondent’s exercise of its constitutional mandate under the enabling law of the Office of the Director of Public Prosecutions Act.
56.The 1st respondent and the 4th to 8th interested parties on the other hand argue that the petitioner seeks to introduce a new claim which could more conveniently be made the subject of a fresh action. They argue additionally that the petitioner was aware of the impugned DPAs prior to the institution of this suit. That the parties noted that there was undue delay in filing the amended petition and the petitioner failed to state his reasons for the same.
57.An interrogation of the proposed amendments divulges that the amendments revolve around two main issues. One is the constitutional and legal validity of the National Prosecution Policy, 2015 and the Diversion Policy, 2019.The other is with regard to the DPAs. I take note that the issue of the DPAs was already in issue in the petition save for the additional claims that have been included in the proposed amended petition.
58.The legal parameters set in determination of this question as provided in law and pronounced in the cited authorities above is clear. The amendment should not introduce a new or inconsistent cause of action, cause undue delay and cause injustice to the opposing parties. Moreover, it is appreciated that courts in determining whether to exercise their discretion in such applications ought to generally allow them unless they fail these elements.
59.It is my considered view that the questions raised are imperative and need determination by this court. I say so because this court and all persons are required to defend constitutional values and principles. In this regard Article 165(3)(d)(i)& (ii) obliges this court to make determinations on questions as to whether any law is inconsistent with or in contravention of the Constitution and the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
60.The opposing parties have stated that the amendments would be prejudicial to them. The parties did not however demonstrate how the amendments and timelines would prejudice them. This is keeping in mind the fact that the amendments primarily challenge the 1st respondent’s exercise of its constitutional mandate which is the subject of the main petition.
61.I find the proposed amendments imperative in determining the real disputes in the matter which is in the interest of the public. In making this consideration I am guided by Ann Muthoni Karanu v La Nyavu Gardens Limited NBI ELC  eKLR which opined as follows:
62.I am persuaded that the proposed amendments will not occasion any prejudice to the parties and if any prejudice is occasioned the same can be compensated for by way of costs. To that end I am satisfied that the proposed amendments are necessary in the interest of the administration of justice for all the parties involved.
Whether this Court should issue an order of discovery for production of the Deferred Prosecution Agreements made between the 1st respondent and the 4th to 8th interested parties.
63.On the second issue, the petitioner seeks production of the DPAs by the opposing parties. The petitioner asserts that this court will not be able to get to the root of this dispute unless the DPAs are produced before it. This he says is because the court has to examine the contents of the DPAs to determine if they violate the Constitution.
64.The opposing parties fervently opposed this prayer owing to its implication on their constitutional rights to privacy and protection from adducing self-incriminating evidence. It was noted moreover that the right to access information was limitable subject to the provisions of the Access to Information Act.
65.The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is silent on the production of documentation as sought by the petitioner. Naturally where there is a lacuna in these rules the Civil Procedure Act, Cap 21 becomes applicable. In this regard Section 22 of the Act provides as follows:-Power to order discovery and the like Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—
66.While this is the position it is palpable that the dictates of the Constitution override the provisions of statutes especially where the law purports to infringe on a fundamental right or freedom without a legal justification. One of the rights guaranteed by the Constitution is access to information. Article 35 of the Constitution provides as follows:(1)Every citizen has the right of access to—(a)information held by the State; and(b)information held by another person and required for the exercise or protection of any right or fundamental freedom.
68.Likewise the Court of Appeal in the case of Timothy Njoya (supra) affirming the importance of the right stated that:-
69.To give effect to the right to access information the Access to Information Act (No. 31 of 2016) was enacted. This Act in essence provides the procedures to be applied when seeking any information held by the State or another person. While it is certain that citizens enjoy the right to access information held by the state and private bodies, citizens are required to request this information as prescribed by the Act, of relevance to the present matter is the argument that the petitioner by passed the dictates of the Act making his request premature.
70.A party seeking to access information held by the state or private body is first required to address the request to the designated information access officer provided under Section 7 of the Act. To access this request the party under Section 8(1) of the Act is required to make an application to access the information and to provide details and sufficient particulars for the public officer to understand what information is being requested.
71.The public officer will under Section 9 process the application and make a decision on the application as soon as possible. Once the party receives a response on the request but is disgruntled, the Act under Section 14 provides that the party can then make an application to the Commission on Administrative Justice to review the decision. Where also aggrieved by the Commission’s decision a party can further make an appeal to the High Court.
73.It is certain that the petitioner albeit relying on his right to access information under Article 35 of the Constitution failed to exhaust the mechanisms set in place before invoking this Court’s jurisdiction under Section 23 of the Act for the orders under Section 22 of the Civil Procedure Act. Evidently no request was made to the opposing parties before approaching this Court. On the flipside the petitioner states that the information is to enable the Court make a definitive determination, this aspect is not proved or demonstrated in a satisfactory manner to justify this Court’s intervention.
74.In light of the foregoing I find that allowing this prayer will occasion an infringement of the opposing parties right to privacy without any justification. Moreover the same will cause genuine prejudice to the 1st respondent and 4th to 8th interested parties. It is crucial to emphasize that as the guardian of the Constitution this Court is mandated to guard against unwarranted violations of the fundamental rights and freedoms of all parties. I find that grant of the discovery order is not merited and is declined.
75.The outcome of the foregoing and for the reasons set out above, I find that the notice of motion dated 24th February 2021 partially succeeds and I hereby issue the following orders:-i.Leave is granted to the petitioner to amend his petition dated 24th September, 2020.ii.The amended petition dated 23rd February 2021 is admitted as having been amended filed and served with leave of the court.iii.Prayer No. (a), (b), (c), (d), (e) of the notice of motion seeking discovery of PDAs is declined.iv.Costs of the application shall be in the cause.