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Bromine Investment Limited & 3 others v Mbitha & 6 others (Constitutional Petition 9 of 2021) [2022] KEHC 12756 (KLR) (4 May 2022) (Judgment)
Neutral citation:
[2022] KEHC 12756 (KLR)
Republic of Kenya
Constitutional Petition 9 of 2021
SM Githinji, J
May 4, 2022
IN THE MATTER OF VIOLATION/INFRINGEMENT OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE BILL OF RIGHTS ARTICLE 22 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THREATENED VIOLATION OR INFRINGEMENT OF RIGHTS AND FUNDAMENTAL FREEDOMS
AND
IN THE MATTER OF ARTICLE 10,21,22,23,27,29,50, 165, & 258 OF THE CONSTITUTION OF KENYA
Between
Bromine Investment Limited
1st Petitioner
Bharat Narandas Odhavji Ruparelia
2nd Petitioner
Bhavna Bharat Ruparelia
3rd Petitioner
Shreenal Bharat Narandas Odhavji
4th Petitioner
and
Kalume Karisa Mbitha
1st Respondent
The Director of Public Prosecution
2nd Respondent
The Inspector General of Police
3rd Respondent
The Director of Criminal Investigations
4th Respondent
The Regional Police Co-Ordinator/Officer, Coast
5th Respondent
The County Police Commander, Kilifi
6th Respondent
County Criminal Investigation Officer, Kilifi
7th Respondent
Judgment
1.By a petition dated August 17, 2021, the petitioners moved this court challenging the manner in which the 2nd -7th respondents exercise their powers.
2.The gist of the petition is that following the decisions delivered by this court and the Court of Appeal in High Court Civil Case No 606 of 2001[Bromine Investments Limited v Kalume Karisa Mbitha & Nancy Khanjila Kalume] and Civil Case No 26 of 2013 [Kalume Karisa Mbitha v Bromine Investments Limited] respectively; and in Malindi ELC Case No 119 of 2016 [Kalume Karisa Mbitha v Bromine Investment Limited] the 1st petitioner was declared the rightful owner of Kilifi/Mtondia/61 and/or 48.
3.That despite the above decisions, the 1st respondent proceeded to file a criminal complaint with the police at the county criminal investigation office, Kilifi on the same issue. The 2nd -7th respondents then summoned the 2nd-4th petitioners to record statements on the complaint. That despite complying with those summons, the 7th respondent summoned the petitioners once more with the threat of filing charges against them before the subordinate court.
4.To the petitioners, the actions by the respondents are in breach of public policy and the rule of law guaranteed under article 10 of the Constitution, and an abuse of power donated by articles 157, 244, and 247 as read with cap 84 and Act No 2 of 2013 laws of Kenya.
5.The petition is supported by the affidavit of the 2nd petitioner dated August 17, 2021 wherein he avers that they bought the land Kilifi/Mtondia/61 from one Zakaria Orwa Ogoye at a consideration of Kshs 900,000/-. That as per the land records, that land was registered to Zakaria on September 11, 1974. Sometime in 1993 when he visited the land, he found the 1st respondent on the land claiming to have purchased the land in 1990 from an alleged original allottee, one Charo Randu Nzai. It is against this background that HCCC 606 of 2001 was successfully instituted by the petitioners.
6.That in the process of enforcing the decree in the aforementioned suit, he discovered that the 1st respondent had filed Constitutional Petition 57 of 2011 against the director of adjudication and district adjudication officer, Kilifi who in turn commenced a process of rearrangement of the area survey map with the intention of interchanging plot location layout within Mtondia Settlement Scheme. In the result, the location of plot No 61 was swapped with that of plot No 48 on the map without the petitioners’ consent thus frustrating the execution process.
7.Petition 57 of 2011 was consequently transferred to the Environment and Land Court where it was consolidated with ELC No 272 of 2014 and allocated case number 119 of 2016. This case was equally heard on merit and determined on May 6, 2020 in favour of the 1st petitioner. The amendments of Mtondia Settlement Scheme Map were consequently declared unconstitutional, null and void. The court also nullified the letter of allotment and title for Kilifi/Mtondia/48.
8.The prayers sought in the petition are as follows:a.Declaration as unlawful, null and void the 1st-7th respondents’ invocation of criminal process in matters of ownership of Kilifi/Mtondia/61 and Kilifi/Mtondia/48 that have and are legally deemed finally determined by superior courts in Mombasa HCCC No 606 of 2001, Court of Appeal at Mombasa Civil Case No 26 of 2013 and Malindi ELC Case No 119 of 2016.b.An order prohibiting the 2nd -7th respondents from in any way by themselves or any other person, body or authority under their directions and/or command from continuing with any criminal process of recording further statements and/or preferring criminal charges against the petitioners on the ownership of Kilifi/Mtondia/61 & 48 the same having been determined by superior courts in Mombasa HCCC No 606 of 2001, Court of Appeal at Mombasa Civil Case No 26 of 2013 and Malindi ELC Case No 119 of 2016.c.An order directing the 2nd -7th Respondents to provide security and prevent breach of peace in the course of enforcement/execution of the superior courts’ decree in Mombasa HCCC No 606 of 2001, Court of Appeal at Mombasa Civil Case No 26 of 2013 and Malindi ELC Case No 119 of 2016.d.Such other orders as this honourable court shall deem just.e.Costs be provided.
9.The respondents opposed the petition.
10.On its part, the 2nd respondent filed a replying affidavit sworn on September 9, 2021 by PC Phenix Oduya HSC. He averred that the complaint filed by the 1st respondent was based on the process that led to the land Kilifi/Mtondia/61 being allocated to the said Zakaria Orwa. He added that aside from this complaint, the petitioners filed a complaint dated April 8, 2021 to the 2nd respondent’s office in Malindi seeking intervention to avoid police officers from engaging in matters already settled. This prompted the 2nd respondent to call for the police inquiry file which was sent to them by the 7th respondent on May 15, 2021.
11.According to Phenix, the summons issued to the petitioners to attend police and record further statements, was only to enable the 2nd respondent review and respond to the petitioners’ own complaint dated April 8, 2021.
12Phenix deposed that the police were only investigating the documents and whether an offence was committed but not on ownership of the land. That the 4th respondent has a constitutional mandate to investigate whether a crime has been committed. According to him, the petitioners have not demonstrated how their constitutional rights have been violated as a result of the ongoing investigations.
13.The 1st respondent equally filed a replying affidavit sworn by himself on September 17, 2021. He narrated how he acquired the land Kilifi/Mtondia/61 and how he was at one point arrested and charged for being in possession of plot no 61/Tezo/Roka/Mtondia in a manner likely to cause breach of peace against the 1st petitioner. He acknowledged the previously mentioned suits.
14.The 1st respondent deposed that for various reasons and obtained legal counsel, he was convinced that the certificate of lease registered in favour of the 1st petitioner on February 21, 1992 was tainted with fraud as the said Zakaria held a certificate of lease for the plot no 61D/Tezo/Roka which to him, is a different parcel from Kilifi/Mtondia/61.
15It is for this reason that he wrote a complaint letter on July 6, 2020 to the 2nd respondent who in turn requested the 7th respondent to investigate the matter.
16.The 3rd- 7th respondents filed grounds of opposition dated September 23, 2021. They contend that the petition is frivolous and an abuse of the court process. That the respondents are vested with constitutional powers to investigate and prosecute crimes, therefore their action herein is within their mandate and confines of the law.
17.That this court lacks the mandate to direct investigations and the decision to prefer charges which is a preserve of the DPP. That the petitioners have failed to demonstrate how any law has been breached. In any case, so they averred, the investigations are ongoing making this petition premature.
18.The petition was canvassed by way of written submissions which I summarize as herein below; -
Petitioners’ Submissions
19.The petitioners identified 3 issues for determination.
a. Whether the impugned criminal process amounts to a collateral attack on the superior courts’ decisions.
20.The petitioners largely reiterated the facts leading to this petition. They submitted that the impugned criminal process is a collateral attack, ridicule of superior courts’ constitutional authority and an affront to the rule of law hence a violation of article 10 and 27 of the Constitution. They relied on the cases of Republic v Fazul Mohamed & 3 others exparte Okiya Omtatah Okoiti [2018] eKLR, Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR and The Commissioner of Police, DCI & anor v Kenya Commercial Bank Limited & 4 others [2013] eKLR.
21.They added that section 193A of the Criminal Procedure Code was not applicable in this case since the civil cases are not pending to proceed concurrently with the intended criminal process.
b. Whether the impugned criminal process is vexatious, unreasonable, oppressive, abuse of legal process and power contrary to public policy and interest.
22.It was the petitioners’ submission that the 2nd respondent’s action directing the 3rd-7th respondents to act on the 1st respondent’s complaint on matters determined by superior courts was unreasonable and procedurally unfair in breach of article 47 of the Constitution. To buttress this point, they cited the case of The Commissioner of Police, DCI & anor v Commercial Bank Limited & 4 others [2013] eKLR and Cyrus Shakhalanga Khwa Jirongo v Soy Developers Limited & 9 others [2021] eKLR.
c. Whether there is unexplained unreasonable delay that infringes on the Constitution and Petitioners’ rights to fair administrative action and trial.
23.The petitioners explained that in a previously filed criminal case against the 1st respondent and his wife over the same parcel of land, as Criminal Case No 1371 of 2000, was concluded on July 10, 2001, the prosecution failed to conduct the present investigation then, and no explanation has been given why the current investigations had to wait for 21 years to be done. The petitioners relied on the case of Diamond Hasham Lalji & anor v AG & 4 others [2018] eKLR and Cyrus Shakhalanga Khwa Jirongo v Soy Developers Limited & 9 others [2021] eKLR.
1st Respondent’s Submissions
24.The 1st respondent submitted on the three issues as identified by the petitioner.
25.On the first issue, the 1st respondent submitted that the petitioners have failed to meet the threshold set out in the case of Anarita Karimi Njeru v Republic [1976-80] 1 KLR 1272; Trusted Society of Human Rights Alliance v AG & others High Court Petition No 229 of 2012; and Florence Dorothy Seyenaoi Kibera Moschion & anor v Director of Public Prosecution & 5 others [2013] eKLR that such a petitioner has a duty to demonstrate with a degree of precision the articles of the Constitution that have been violated and the manner in which they have been violated.
26.It is his submission that their complaint letter to the 2nd respondent dated July 6, 2020 was being dealt with by the respondents within the provisions of articles 157, 244 and 245 of the Constitution. He added that the particulars of the said complaint were of criminal nature thus rightfully being investigated by the respondent.
27.On the second issue, the 1st respondent, relying on the case of Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others, submitted that no evidence was tendered to prove that the investigations being undertaken by the 3rd to 6th respondents are oppressive, vexatious or contrary to public policy.
28.To the 1st respondent, the petitioners have not demonstrated how in discharging their constitutional and statutory mandate, the respondents have abused power or legal process. To buttress this point, he relied on the case of Francis Anyango Juma v The Director of Public Prosecutions & another, Petition No 160 of 2012.
29.On the final issue, the 1st respondent argued that there has not been any unreasonable delay in investigating the matter since the letter of complaint was filed on July 6, 2020. In any event, so they argued, the right to a fair hearing guaranteed under article 50 relates to proceedings in a trial. To him, until the petitioners’ trial if any, has commenced, any allegation of violation of the right to a fair hearing has no basis.
2nd Respondent’s Submissions
30.Similarly, the 2nd respondent submitted against the issues as framed by the petitioners. On the first two issues, the 2nd respondent’s submitted that under article 47 and the Fair Administrative Action Act, 2015, a complainant is entitled to a response to their complaint. For the 2nd respondent to respond to a complaint, investigations are necessary, and by virtue of article 157(4) of the Constitution, the 2nd respondent directs the 3rd to 7th respondents to investigate and submit an inquiry file. It is for this same reason that the petitioners also sought the 2nd respondent’s intervention.
31.To the 2nd respondent, the impugned investigations were a reaction of both the petitioners’ and 1st respondent’s complaints, and is not a collateral attack on the decisions delivered by the courts.
32.The 2nd respondent added that chapter IX of the Penal Code on offences relating to the administration of justice contemplates criminal investigations and subsequent prosecutions arising during or after judicial based proceedings. It argued that this amounts to permissible collateral attack which to it, is intended to address criminalities related to administration of justice. This, the 2nd respondent added, was supported by article 50 (6) of the Constitution.
33.Quoting the definition of direct attack in the Black’s Law Dictionary 4th edition [1968], and the case of Mitchell v Village Creek Drainage Dist, 158 F 2d 475- Circuit Court of Appeals, 8th Circuit 1946 [US], the 2nd respondent submitted that the petition fails to demonstrate that its decision to direct criminal investigations was intended to overturn the civil judgments.
34.It submitted that the petitioners have failed to demonstrate how the investigations are opening them up for a retrial before another court. It relied on the case of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 to explain abuse of process.
35.To the 2nd respondent, it could not be said that it was a vexatious litigant, as it was explained in Brown v Canada [Attorney General], 2019 YKSC 21, against a party it had never charged in court. It added that the petitioners should not be allowed to undertake a peremptory attack on the mandate of the 2nd respondent before any decision is made. It relied on the case of Republic v Attorney General ex-parte Kipngeno Arap Ngeny High Court Civil Application No 406 of 2001.
36.On whether this court could halt the criminal investigations, the 2nd respondent was guided by the court in Douglas Maina Mwangi v Kenya Revenue Authority & another HC Constitutional Petition No 528 of 2013; Reuben Wamburu Karoba v Director of Public Prosecutions & another; John Karoba Iroha & another (Interested Parties) [2021] eKLR; Republic v Attorney General & 4 others ex-parte Kenneth Kariuki Githii [2014] eKLR; and Joshua Okungu & another v The Chief Magistrate’s Court Anti-corruption Court at Nairobi & another Petition No 227 and 230 of 2009.
3rd – 7th Respondents’ Submissions
37.In their well written submissions, the 3rd to 7th respondents laid out the constitutional and statutory mandate to investigate crimes; the functions of the police set out under section 24 of the National Police Service Act; the command of the National Police Service under article 245 of the Constitution; and the role of the 2nd respondent in investigating crimes under article 157(4) of the Constitution. Similarly, as set out in the case of Republic v Commissioner of Police and another ex-parte Michael Monari & another [2012] eKLR; Florence Dorothy Seyanoi Kibera Moschion & another v Director of Public Prosecution & 5 others [2013] eKLR.
38.They submitted that the present petition was prematurely filed considering that the complaint filed by the petitioners was still pending consideration by the 2nd respondent. To them, interfering with the investigations, would amount to interfering with the respondents’ mandate in law contrary to article 157(10) of the Constitution.
39.The respondents submitted that the petition did not disclose any violation of the petitioners’ rights on the part of the respondents and did not meet the threshold of constitutional litigation discussed in Anarita Karimi Njeru v Republic [1979] KLR 154.
40.They added that section 193A of the Criminal Procedure Code provides that civil and criminal proceedings can run concurrently and that the determination of the civil proceedings does not invalidate the mandate of the respondents in criminal proceedings.
41.To the respondents, the petitioners are not entitled to the orders of judicial review for failure to demonstrate that the respondents acted in breach of the rules of natural justice, or that their actions were irrational, illegal and unprocedural. They relied on the case of Kenya National Examination Council v Republic ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR.
42.It is these respondents’ submission that the petitioners ought to have filed execution proceedings to the court that passed the decree in accordance with section 34(1) of the Civil Procedure Act. They urged the court to dismiss the petition.
Issues for Determination
43.The court in Anarita Karimi Njeru v Attorney General [1979] KLR 154, which I believe is still the locus classicus in this subject, despite more recent decisions, and the criticisms it has elicited, stated:
44.The petitioners’ case as I understand it, is not so much about violation of their fundamental rights and freedoms, or human rights, but that the respondents acted in a manner that did not measure up to the constitutional values and principles required of them by article 10 of the Constitution of Kenya. That is to say that they violated the Constitution itself in the process of attempting to perform their statutory duties, and in turn infringed the petitioner’s rights to equal protection of the law enshrined under article 27 of the Constitution. I am persuaded that the petition herein is properly anchored in the Constitution, and it meets the standard of what a constitutional petition is about.
45.It is not in dispute that the 3rd to 7th respondents are tasked with the duty to carry out investigations into suspected criminal activities and to apprehend those culpable. It is also not in doubt that the 2nd respondent (‘the DPP’) exercises the State’s power of prosecution of criminal cases. However, in carrying out these duties, the respondents are subject to the Constitution and the law in general.
46.The gist of the petition is that the 2nd to 7th respondents have shown extreme reluctance to assist in providing and ensuring maintenance of peace in the enforcement and execution of the decrees issued in MSA HCCC No 606 of 2001, Civil Appeal No 26 of 2013 and Malindi ELC No 119 of 2016. Instead, the respondents opted to invoke criminal proceedings against the petitioners in utter violation of article 10, 27, 47 and 50 of the Constitution.
47.The legal basis of the exercise of prosecutorial powers in Kenya is found in the Constitution and some other legislations. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as under: -
48.Article 243 establishes the National Police Service, while 245 the Inspector General of the National Police Service. Article 245[4] further establishes the independence of the Inspector General in the following terms:(4)The Cabinet Secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—(a)the investigation of any particular offence or offences;(b)the enforcement of the law against any particular person or persons; or(c)the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
49.The Office of the Director of Public Prosecutions Act No 2 of 2013 provides in section 4 the guiding principles in prosecution of cases as follows:(4)In fulfilling its mandate, the Office shall be guided by the Constitution and the following fundamental principles—(a)the diversity of the people of Kenya;(b)impartiality and gender equity;(c)the rules of natural justice;(d)promotion of public confidence in the integrity of the Office;(e)the need to discharge the functions of the Office on behalf of the people of Kenya;(f)the need to serve the cause of justice, prevent abuse of the legal process and public interest;(g)protection of the sovereignty of the people;(h)secure the observance of democratic values and principles; and(i)promotion of constitutionalism.
50.Section 24 of the National Police Service Act No 11A of 2012 establishes the functions of the police as follows:(a)provision of assistance to the public when in need;(b)maintenance of law and order;(c)preservation of peace;(d)protection of life and property;(e)investigation of crimes;(f)collection of criminal intelligence;(g)prevention and detection of crime;(h)apprehension of offenders;(i)enforcement of all laws and regulations with which it is charged; and(j)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
51.The circumstances of this case are that the respondents are purporting to investigate an alleged crime which to the petitioners is an issue already determined in the civil proceedings. The respondents on the contrary contest that the issue being investigated is only on the authenticity of the documents that led to the lease Kilifi/Mtondia/61 being issued to one Zakaria Orwa, as opposed to ownership of the said plot; and that in any case, the law allows the concurrent existence of civil and criminal litigation over the same issue.
52.I am alive to the law that allows the concurrent litigation of civil and criminal proceedings arising from the same issues [section 193A of the Criminal Procedure Code], however the peculiar circumstances of this case are that the civil litigation was finalized and judgments entered in favour of the 1st petitioner in all the cases.
53.In the case cited by the petitioners, Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [supra] the Court of Appeal stated that:
54.Similarly, in the present case, the main issue in the intended criminal proceedings revolves around ownership of the plot Kilifi/Mtondia/63. The claim by the respondents that the investigations being conducted are purely on authenticity of documents, is in my view not plausible. I say so because the result of those investigations will in one way or another affect the question of ownership of the said plot.
55.Like the court of appeal above I do ask, what is it that the 1st respondent was not able to do to prove its claim against the 1st petitioner in the previous civil cases that must be done through the institution of criminal proceedings?
56.I have perused the judgments delivered in the previous civil cases and it is vivid on how the said Zakaria obtained the lease in the first place and that issue was aptly discussed and determined.
57.I have equally perused the complaint letter dated July 6, 2020 filed on behalf of the 1st respondent and the 2nd respondent’s letter dated June 9, 2021. What is evident from these letters is that the impugned investigations were prompted by the 1st respondent’s complaint. The complaint on behalf of the 1st petitioner was in my view a reaction to the 1st respondent’s complaint and investigations. The respondents’ argument that the investigations were necessitated as well by the 1st petitioner’s complaint has no foundation.
58.In the circumstances, I am strongly inclined to a finding that the 2nd -7th respondents have acted contrary to the national values and principles established under article 10 of the Constitution, and in turn violated the petitioners’ rights to fair administrative action guaranteed under article 47 thereon.
59.Articles 10 and 47 provide as follows:10 National values and principles of governance(1)The national values and principles of governance in this article bind all State organs, State officers, public officers and all persons whenever any of them—(a)applies or interprets this Constitution;(b)enacts, applies or interprets any law; or(c)makes or implements public policy decisions.(2)The national values and principles of governance include—(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;(b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;(c)good governance, integrity, transparency and accountability; and(d)sustainable development.47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.
59.As far as article 50 of the Constitution is concerned, the petitioners failed to demonstrate how their rights thereunder have been violated by the respondents. That article, in my view, provides for the right to a fair hearing before a court, tribunal or body. There is no proof of any hearing before any of those forums. As such I do not find legitimate basis in this claim.
60.The bottom line is that prayers a, b, and e are merited and are granted as prayed. The petitioners have not sufficiently demonstrated why this court should grant prayer c in their favour. The petition therefore succeeds in terms of prayers (a), (b) and (e). Parties to bear own costs.
RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 4TH DAY OF MAY, 2022....................................SM GITHINJIJUDGEIn the Presence of:-1. Mr Mogaka for the petitioner.2. Mr Mkala for the 3rd to 7th respondents.3. Miss Katana holding brief for Mr Lewa for the 1st respondent.4. Mr Jami for the 2nd respondent.
