applicant s’ case:
3.It is the applicant s case that she was engaged in a business relationship with the complainant and that the dispute between the parties escalated to a complaint before the police that spilled over to the Office of the Director of Public Prosecution (the 1st Respondent).
4.The applicant points out that the 2nd Respondent through a Misc. Application E073 OF 2021 sought to have the applicant 's goods seized during her investigations.
5.The applicant avers that the 2nd Respondent through the advice of the 1st Respondent withdrew the criminal investigation after advice that the matter was Civil in nature.
6.The applicant indicated that the complainant filed a civil suit being CMCC E462 of 2022 seeking a judgment against the applicant on account of breach of contract.
7.The applicant argues that the matter before the Chief Magistrate's Court has mutated to Civil Appeal No. E096 OF 2022 and Civil Appeal No. E549 of 2022 which are all pending before the court.
8.The Respondents have intimated that they would arrest and press charges against the applicant over the same subject matter pending before the courts.
9.From the material before the court the applicant contends that the applicant and the Complainant were in business where the applicant was an agent selling motorcycles for a commission.
10.Over time the applicant opened her own business through a company where she was the sole director by the name Tris Motorcycles Limited which teamed up with another company Tua International Limited (where the applicant hold some shares).
11.The applicant became a free agent and the complainants would over time take their products to the applicant for sale and the proceeds were paid to the complainant less commission.
12.It is through this interaction that a dispute on the debt arose and the complainant made a complaint to the police with allegations of inter alia theft by agent.
13.The complaint led to investigations which were coupled with orders of seizure being obtained under a Miscellaneous Cause No. E073 OF 2021 filed at Kibera Law Courts.
14.The matter in Kibera Law courts was compromised through a withdrawn by the Respondents upon the advice of the Director of Public Prosecution with the following recommendations.
15.According to the applicant , the foundation of this complaint was based purely on a gentleman's agreement between the suspect and the complainants which did not stipulate payment timelines and schedules. This is corroborated in the statements of all witness's privy to the transactions between the complainants.
16.The applicant strongly believes that there is no sufficient evidence in the file to admit them based on the evidence presented. From the statements of both the complainants and the suspect it is evident that both parties were transacting as partners and there are no implied terms to show that one was acting on behalf of the other. No documents have been availed to show the creation of agency relationship.
17.Nothing has been presented in the police file to show the nature extent in which the suspect and others not exposed by the investigations conspired to defraud the complainants of their property contrary to section 317 of the penal code.
18.It is evident that the parties in this complaint had transacted together over a period of time regarding the same subject matter. The basis of the gentleman's agreement was the knowledge of the complainant that the suspect had capacity to carry out the business venture before.
19.The applicant maintains that the office of the Director of Public Prosecutions cannot entertain issues of ambiguity that rely solely on -contractual interpretation of agreements entered into by independent capable parties. The office is of the view that this matter leans majorly on issues of contractual law which can be exclusively resolved through a civil suit.
20.Upon the withdrawal of the criminal matter (inquiry) the complainant proceeded to file recovery suit being CMCC E462 of 2022 at the Milimani Law Courts which matter has culminated into appeals being filed being Civil Appeal No. E096 of 2022 and Civil Appeal No. E487 of2022 which are both pending before the courts.
21.The applicant argues that to arrest and cause the applicant to be charged with the same offence that was investigated, recommendation given, matter withdrawn and civil suits instituted for and against the parties which are pending before the courts is illegal.
22.The applicant cited the case of High Court in Judicial Review No. 26 of 2017 in the matter of exparte applicant Pius Kiprop Chelimo and Jonah Kiprotich Telo where the court stated as follows:-
23.Accordingly the DPP doesn't require the consent or authority for commencement of criminal proceedings and in exercise of his/her powers or functions he/she ought not to be under the direction or control of any persons or authority according toarticle 157 (10) of the constitution.
25.The applicant submits that the DPP in exercise of his powers certain standards have to be met at all times and his/her discretion must be within the standards set out in the Office of the Public Prosecution Act and the Constitution.
26.The applicant is persuaded that it is the duty of the court to investigate any allegations to the effect that the exercise of such power has been made ultra vires relying on the case of Nakusa -vs- Tororei & 2 others (No.2) Nairobi HCEP No. 4 of 2003 /2008/2KLR (EP) 565 and Republic -vs- Director of Public Prosecution and 2 Others.
27.The applicant submits that there has been no material placed before the court to demonstrate any suspicion or criminal culpability by the applicant in this matter by way of affidavit or otherwise is compliant, suspicious document or statement that they may claim to have triggered the intended prosecution.
29.The applicant also relies on the case of DPP & 2 others; Evans Muriuki Kariuki (Interested party); Exparte James Kahumbura the judge held that "It is also true that the decision as to whether there is a reasonable prospect of conviction requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence."
Analysis and Determination:
33.I have looked at the Application, the submissions, the law applicable and the case law around the issues.
37.The fact that there exists a civil suit is not a bar to any criminal proceedings or investigations.
38.Section 193A of the Criminal Procedure Code on this issue provides that, “notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings."
39.This court is cognizant of the fact that there is need to uphold victims’ rights and this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act.
40.Section 9(2) (a) of the Victims Protection Act provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission.
41.Victim participation should meaningfully contribute to the justice process. Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic  eKLR.
42.The victims of an offense lodged a complaint with the police who initiated investigations. By filing a replying affidavit and submissions in opposition of the application before this court, I am satisfied that the victims have an interest in the outcome of the investigations. Allowing the Application will deny the complainants to their right to fair hearing.
43.The power to investigate crime is an important component of the rule of law it is no wonder the police are under a duty under the National Police Act, to investigate crimes whenever they reported. To stop the police from investigating crimes would usher in anarchy. That would appear to be what the applicant seeks to do.
44.The applicant will have his day in court in the event the Director of Public prosecution decides to charge him with the appropriate offences once the investigations are over. The applicant has also failed to tender any evidence nor produced a charge sheet that would have informed the court on whether the applicant will be charged. The applicant has put the cart before the horse.