Introduction and Background:
1.The Petitioner herein, William Okongo Anyango, instituted the instant proceedings with a view to compel the Police and the Director of Public Prosecutions to undertake criminal charges against the 1st to 6th Respondents herein.
2.The dispute before this Court stems from contested ownership and possession of Land Reference L.R No. Nairobi Block 62/288 (hereinafter the ‘Suit property) between William Okongo Onyango, the Petitioner herein and Bernard Osalo Ochieng, George Otieno Lilian Akira Akoth, Daniel O. Odula, John Olukhanda, Richard Wakhu Livingstone, the 1st to 6th Respondents herein, and the alleged failure of the OCPD Kilimani Police Station, The Inspector General of Police, The Director of Public Prosecutions and the Director of Criminal Investigations, 6th to 10th Respondents herein, to take action against the 1st to 6th Respondents.
3.The Petitioner claim to reside with his family at a place called Olympic in Kibera within Nairobi City County.
4.It is his case that he is in the jua-kali industry of welding.
5.The Petitioner asserts that, through a sale agreement dated 27th July 2015, he purchased the Suit property from one James Kibichi Kangogo (hereinafter referred to as ‘The Vendor’) at the price of KShs, 1,800,000/-.
6.To that end, it is the Petitioner’s case that upon carrying out the necessary due diligence, the vendor effected transfer of the suit property to him on 16th August 2016
7.However, the suit property was not vacant at the time of purchase as there were illegal trespassers.
8.The Petitioner claimed that the vendor, as part of the agreement, was to deliver vacant possession of the property. It is his case that that he (the vendor) did institute Civil Case No. 2189 in a bid to restrain the 1st and the 2nd Respondent and their agents from trespassing or in any manner dealing with the suit property.
9.The Petitioner contends that since he purchased the property on 27th July 2015, he has not been able to take possession due to presence of squatters who are agents of the 1st to 6th Respondents.
10.On 19th January 2021, at a place called fort jesus in Kibera, the Petitioner claimed that the 1st to 6th Respondents and their agents, in the presence of 14 police officers, made utterances to the effect that his family will be physically eliminated and his movable property destroyed.
11.He further claimed that on the same day at about 9.30pm, he received a phone call from the 1st Respondent on his phone number 0739393060 to threatened him about the land to the following effect;
12.It is the foregoing events and the contended failure by the 7th to 10th Respondents to take action against the 1st to 6th Respondents that led to institution of the instant Petition.
13.The Respondents opposed the Petition was.
14.Through the Petition dated 17th March 2021, supported by the Affidavit and supplementary Affidavit William Okongo Onyango deposed to on 17th March 2021 and 27th January 2022 respectively, the Petitioner sought to assert abdication of constitutional mandate by the Respondents.
15.Contemporaneously filed with the Petition was the Notice of Motion Application (hereinafter ‘The Application’) supported by the Affidavit of the Petitioner deposed to similar dated as the Petition.
16.The Application, which was subsumed in the Petition, sought interim reliefs in the following way;
17.In the main Petition the Petitioner pleaded that under section 10(4)(b) of the National Police Service Act, the Inspector General of Police has the requisite powers to uphold the national values and principles and objects set out in Article 10, 232 and 244 of the Constitution.
18.He averred that the Director of Public Prosecutions had abandoned its duties among them undertaking investigations, maintaining law and order apprehending offenders mandated under section 35 of the National Police Service Act.
19.The Petitioner posited that the 1st to 6th Respondent were in violation of to section 35 of the Penal Code, which provides that any person who is in actual possession of land without any colour of right holds possession of it, in a manner likely to cause breach of peace or reasonable apprehension of a breach of peace against a person entitled by law to the possession, is guilty of the misdemeanour of forcible detainer.
20.He further averred that the 1st to the 6th Respondents were caught up by provision of section 223(1) of the Penal Code which provides that any person who without lawful excuse, utters, or directly or indirectly causes any person to receive a threat is guilty of a felony ad us liable to imprisonment for ten years.
21.Based on the foregoing, the Petitioner, while referring to the Court of Appeal decision in Misc. Application No. 68 of 2011, Michael Monari & Another -vs- Commissioner of Police & 3 Others, averred that the 7th Respondent has a duty to arrest and investigate the 1st to 6th Respondents.
22.It was his case that under Article 157(6)(a)(b) and (c) of the Constitution, the Director of Public Prosecutions had an obligation to institute criminal proceedings against the 1st to 6th Respondents for reach of peace.
23.It was further the Petitioner’s case that according to section 58 of the National Police Service Act, subject to Article 49 of the Constitution, the 1st to 6th Respondents ought to have been arrested without warrant for obstruction police officers from performing their lawful duty of enforcing eviction and for causing disturbance during the eviction.
24.It was his case that the 1st and 6th Respondents stay in the property in s contrary to section 58(c) and (d) of the National Police Service Act.
25.In the supplementary Affidavit, the Petitioner deposed that he did raise a complaint under OB/54/30/10/21 against Alvine Odhiambo, willis Otieno, Vincent Ogara and Sospeter Okinda whereupon they were charged for forcible detainer in Criminal Case No. E1176 of 2021, Republic -vs- Alvine Odhiambo Abdalla and 3 Others.
26.The Petitioner denied the allegation by the 5th and 6th Respondent that the suit property is public land and referred to the statement of George Otieno, the Investigating Officer, who requested the trespassers to move out of the suit property.
27.He deposed further that and the licensed land surveyor, Bibiano Rabuku, who was instructed to visit the area on 19th January 2021 with the aim of identifying the beacons of the suit property faced hostility from the 1st to 6th Respondents.
28.It was his case that the Respondent’s act of erecting structures on the property were aimed at threatening him from claiming ownership.
29.The Petitioner deposed that this Court had the jurisdiction to protect his right to property.
30.On the foregoing factual and legal backdrop, the Petitioner prayed for the following reliefs;
The 5th and 6th Respondents’ Case
37.John Olukhanda and Richard Wakhu Livingstone opposed the Petition and the Application through joint Grounds of Opposition dated 3rd June 2021.They also filed separate Replying Affidavits both deposed to on 3rd June 2021.
38.In the Grounds of Opposition, the 5th and 6th Respondents stated that the Application was bad in law and abuse of Court process since it involved a matter where the police had been involved and visited the property and no charges were preferred against them.
39.It was therefore their case that the Petition does not disclose any known cause of action against them.
40.It was their case further that the Petitioner had come to Court with unclean hands by purporting use the Court process to stifle public dissent on actions of the Petitioner or his agents to grab public land contrary to Articles 40, 60,62 and 62 of the Constitution.
41.In his Replying Affidavit, the 5th Respondent deposed that the 6th Respondent is his biological father and associated himself with the description of the property he occupies and the surrounding since he has been in occupation for over 50 years.
42.It was his deposition that he neither knew the Petitioner, his family nor the fact that he owned the suit property.
43.He deposed that since his childhood, he has known the suit property as a vacant public recreational facility where children play.
44.He denied ever being reported to the Police and making any death threats to the Petitioner.
45.In his Replying Affidavit, the 6th Respondent deposed that apart from making bare allegations, the Petitioner did not provide any evidence to substantiate its claims.
46.He denied there being evidence of police report, in respect the allegation that it had been evicted. It was his case that there was no eviction order.
47.It was his deposition that he had occupied Plot No. LR 2010309740 Bloc 62/26 and has never occupied any property in fort Jesus belonging to the Petitioner.
48.The 6th Respondent deposed that he had never issued any threats and to the Petitioner. He deposed that the allegations are aimed at silencing him and other residents about the land grabbing at Fort Jesus.
49.It was his deposition that since 1970 when he took occupation of the land next to the suit property, the suit property was used a public recreational facility.
50.As a result of the foregoing, it was his case the alleged ownership by the Petitioner is illegal.
51.In reference to the letter dated 10th February 2021, he deposed that the residents of Jamhuri East Neighbourhood Welfare Association, which he is a member wrote to the Ethics and Anti-Corruption Commission, Cabinet Secretary for Interior and National Security and the Directorate of Criminal Investigations complaining of public land grabbing.
52.It was his case that he had never been in occupation of the suit property since he was in Kibera.
53.The 6th Respondent denied knowledge of Civil Suit No 2189 of 2017.
54.The 6th Respondent denied any altercation with the police when they came with the Petitioner to identify the beacons of the suit property.
55.He deposed that subsequent upon the police visiting the suit property, and in response to the Petitioner’s complaint, he was summoned at the Directorate of Criminal Investigations, Kilimani, where he recorded a statement under OB/No. 28/06/02/2021 regarding the plot adjacent to his.
56.To that end, he deposed that the Police never preferred any charges against him.
57.In the end, he maintained that the Petitioner is an illegal occupant of the suit property and the instant Application and Petition were meant to censor and intimidate and the other Respondents. He urged Court to dismiss the Petition and the Application with costs.
58.In their written submissions dated 22nd November 2021, the 5th and 6th Respondents largely reiterated the depositions in their Affidavits.
59.They however added that that the Petitioner might have been duped into buying public land and access way.
60.They maintained that they were strangers to the outcome of Civil Suit No. 2189 of 2017 and denied there ever being eviction orders therein.
61.It was further their case that the Petitioner moved this Court but has continuously violated court orders towards prosecuting this matter and instead chose to file new suits in other courts and using police officers to intimidate them.
62.On totality of the foregoing, the Petitioner submitted that the Petition had failed to meet the threshold of identifying the Constitutional violations and manner of violation as established in the famous case of Anarita Karimi Njeru -vs- Republic.
63.It was urged that the Petition and Application be dismissed with costs.
The 7th to 10th Respondents’ case:
64.Despite service, the OCPD Kilimani Police Station, the Inspector General of Police, the Director of Public Prosecutions and the Director of Criminal Investigations did not participate in the hearing of the Petition.
65.This Court has carefully considered the Petition, the responses, the parties’ submissions as well as the decisions referred to by the parties.
66.The gravamen of the Petition is whether this Court can compel the Police and the Director of Public Prosecutions to institute criminal charges against the 1st to 6th Respondents. In order to get the best way forward in this matter, it is imperative to have a look at, albeit briefly so, the role of the police and the Office of the Director of Public Prosecutions (hereinafter referred to as ‘the DPP’).
67.The roles of the National Police Service as well as the DPP are provided for both in the Constitution and statutes. As such, the Court will first look at how the Constitution ought to be interpreted.
68.This Court has previously dealt with this subject of constitutional interpretation. In Nairobi High Court Constitutional Petitions No. 33 and 42 of 2018 (Consolidated) Okiya Omtatah Okoiti vs. Public Service Commission & 73 Others this Court rendered itself as follows: -
69.In Advisory Opinion Application No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate  eKLR, the Supreme Court spoke to purposive interpretation of the Constitution. It had the following to say: -…The approach is to be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution.
70.Having laid the manner in which Courts ought to interpret the Constitution, this Court will now consider the role of the Police.
71.Article 243 of the Constitution establishes the National Police Service as a national service and functions throughout the country and consists of the Kenya Police Service and the Administration Police Service. Article 244 of the Constitution provides the objects and functions of the National Police Service as follows: -
72.The National Police Service is under the command of the Inspector General of Police, the 8th Respondent herein. The manner in which the 8th Respondent is to carry out its mandate is provided for under Article 245(2)(b) and (4) of the Constitution as follows: -a.……..
74.Article 245(8) of the Constitution accords Parliament the duty to enact legislation to give full effect to the constitutional provision. In line with that calling, Parliament enacted the National Police Service Act, No. 11A of 2011 (hereinafter referred to as ‘the Police Act’) which commenced application on 30th August, 2011.
75.Sections 24 and 27 of the Police Act respectively provides for the functions of the Kenya Police Service and the Administration Police Service and as follows: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; andj.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.The functions of the Administration Police Service shall be the—
76.Part V of the Police Act establishes the Directorate of Criminal Investigations which is under the direction, command and control of the Inspector-General.
77.The functions of the Directorate are provided for in Section 35 of the Police Act as follows: -
78.From the above analysis of the Constitution and the law, it comes to the fore that the National Police Service is a vital national organ with defined roles. Further, the Service’s independence and that of the 8th Respondent is constitutionally-insulated from any form of interference or directional command. Apart from the Director of Public Prosecutions and only to the extent so provided, no other person, body or entity has the power to give any form of directives to the 8th Respondent on how to discharge its functions.
79.The independence is further ring-fenced in that even the power donated to the Cabinet Secretary under Article 254(4) of the Constitution to issue any directives to the 8th Respondent is only limited to policy issues.
80.The Supreme Court In the Matter of Interim Independent Electoral Commission  eKLR, discussed the meaning and extent of the independence in relation to constitutional Commissions and independent offices. The Court emphasized the need for such entities to co-ordinate for effective service delivery, but delineated the discharge of their respective mandates as follows: -
81.Having dealt with the role of the National Police Service, the Court will now deal with the role of the DPP.
82.As said above, the basis of the exercise of prosecutorial powers in Kenya is the Constitution and the law. Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as under: -
83.Further to the foregoing, the Office of Director of Public Prosecutions Act No. 2 of 2013 (hereinafter referred to as ‘the ODPP Act’) is an Act of Parliament aimed at giving effect to Articles 157 and 158 of the Constitution and other relevant Articles of the Constitution and for connected purposes. The ODPP Act provides in Section 4 the guiding principles which must guide the DPP in prosecution of cases as follows:
84.Suffice to say the ODPP Act and other statutes variously provide for the manner in which the DPP ought to discharge its mandate.
85.The exercise of prosecutorial powers by the DPP has been subjected to legal scrutiny and appropriate principles and guidelines developed. I have, hereinabove, endeavoured to capture several decisions which were referred to by the parties in their respective submissions. To that end, this Court is grateful to the parties for such diligence.
86.Having said so, this Court recalls that it recently discussed the exercise of prosecutorial powers by the DPP in Nairobi High Court Constitutional Petition No. E216 of 2020 Reuben Mwangi v Director of Public Prosecutions & 2 others; UAP Insurance & another (Interested Parties)  eKLR. Since I am still of that persuasion, I will reproduce what was stated in that case and as follows: -95.The High Court in Bernard Mwikya Mulinge case (supra) expressed itself as follows: -14.As has been held time and time again the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. An applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon.….
97.In Meixner & Another vs. Attorney General  2 KLR 189 the Court stated as follows: -The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion is acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening their fundamental rights and freedoms enshrined in the Constitution particularly the right to the protection by law enshrined in section 77 of the Constitution….
98.Mumbi Ngugi, J (as she then was), in Kipoki Oreu Tasur vs. Inspector General of Police & 5 Others (2014) eKLR stated that:The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior Courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated…
99.In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another  eKLR the Court held that:… the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court...As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene....
100.Recently, the High Court in Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties)  eKLR dealt with several instances where a Court may intervene and stop a prosecution. They include where: -i.There is no ostensible complainant in respect to the complaint;ii.The prosecution fails to avail witness statements and exhibits without any justification;iii.There is selective charging of suspects; oriv.An Advocate is unfairly targeted for rendering professional services in a matter.
101.It is, hence, a settled legal principle and position that whenever a Petitioner sufficiently demonstrates the stifling of or threats of infringement of rights, fundamental freedoms, the Constitution and/or the law by the investigative and prosecutorial agencies, a Court should not hesitate to intervene and stop such a prosecution. Such intervention by the Courts should, however, be in clearest of the cases.
87.I have also come across several other decisions on the subject. I will refer to only some few. In Anthony Murimi Waigwe v Attorney General & 4 others [2020) eKLR, the Court held that the Prosecutor has a duty to analyze the case before prosecuting it and it should let free those whom there is no prosecutable case against them. It expressed itself thus: -
51.In a democratic society like ours, no one should be charged without the authorities conducting proper investigation. The prosecutor on the other hand is under duty to consider both incriminating and exculpating evidence, In the case of Republic v. Director of Public Prosecutions & Another ex parte Kaman/ Nairobi Judicial Review Application Nog 78 of2015 (supra), the court expressed itself as follows:this court appreciates that the court should not simply fold its arms and stare at the squabbling litigants/disputants parade themselves before the criminal court in order to show-case dead cases. The seat of •justice is a hallowed lace and ought to be reserved for those mattes in which the protagonists have a conviction stand a chance of seeing the light of the day. In my view the prosecution ought not to institute criminal cases with a view of obtaining an acquittal. It is against the public interest as encapsulated in section 4 of the Office of the Director of Public Prosecutions Act to stage-manage criminal proceedings in a manner intended to obtain an acquittal. A criminal trial is neither a show-biz nor a catwalk.
88.In Meme v Republic & Another  eKLR the Court of Appeal discussed abuse of the Court process thus: -
89.In quashing a criminal prosecution on the basis of abuse of Court process, the Court in Peter George Anthony Costa v. Attorney General & Another Nairobi Petition No. 83/2010 expressed itself thus:-
90.Still on abuse of Court process in using Court to settle personal scores, the Court in Rosemary Wanja Mwagiru & 2 Others V Attorney General & 2 Others, Mumbi J (as she then was) stated that: -
91.On the need for a Prosecutor to act within the law, the Court in Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others stated that: -
92.In Republic v. Commissioner of Co-operatives ex parte Kirinyaga Tea Growers Cooperative Savings & Credit Society Ltd CA 39/97 119991 EALR 245 the Court of Appeal warned against the improper use of power in the following words: -
93.The above position was amplified in Nairobi High Court Miscellaneous Application No. 1769 of 2003 Republic vs. Ministry of Planning and Another ex-parte Professor Mwangi Kaimenyi, where It was held:
94.The need for Courts to act with deference and accord constitutional and legal entities to discharge their mandates was revisited in Paul Ng’ang’a Nyaga vs Attorney General & 3 Others (2013) eKLR, where it was held that: -…. this Court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.
95.The Court believes that it has sufficiently rendered itself on the general exercise of prosecutorial powers and for the purposes of this case. I will now look at whether the prayers sought by the Petitioner ought to issue.
96.It is simply the Petitioner’s case that he lodged criminal complaints against the 1st to 6th Respondents herein and that the Police and the DPP ought to be compelled to institute criminal charges accordingly.
97.From the discussion above, the position on the way forward in the matter is well set out. Whereas the Petitioner was within his right to lodge complaints against the Respondents, the Police were under a duty to independently investigate those complaints and at the completion of the said investigations, the DPP reserved the right to decide on whether to institute any criminal charges.
98.The main prayers in the Petition seek to compel the police to investigate the complaints and the DPP to institute any criminal charges. There is no evidence that the investigations are not ongoing or that there has been inordinate and unexplained delay on the part of the Police. In fact, the Petitioner admits that the investigations are on-going. The Petitioner has, hence, failed to demonstrate the infringement of any of the provisions of the Constitution by any of the Respondents.
99.With such a state of affairs, there was no need of dragging any of the Respondents to this Court. The Petitioner ought to have followed up the matter with the Police and the DPP until such a time when a case against both or either would consolidate and on the basis of apparent infringement of his rights and fundamental freedoms. In the meantime, the Petition is premature and uncalled for.
100.Having said so, there is nothing meaningful that this Court may engage itself in going forward. The upshot is, therefore, that the matter ought to come to an end and the following final orders do hereby issue: -a. The Petition is hereby dismissed.b. The Petitioner shall shoulder the entire costs of the proceedings.It is so ordered.