1.The Petition subject of this judgment was instituted at a time when the police were still undertaking investigations in respect of a complaint lodged by Pkemei Kakulo Abraham, the 5th Respondent herein, at the Kapenguria Police Station against the Petitioner herein, James Musa Tapoyo.
2.The Petitioner variously alleges violation of his constitutional rights and fundamental freedoms.
3.The Petition is vehemently opposed by the Respondents save the 6th Respondent who did not take part in the hearing.
The Petitioner’s case
4.The Petitioner filed a Petition dated 6th December, 2021. It is hinged upon Articles 3, 10, 19, 20, 21, 22, 23, 25 (c), 27 (1) and (2), 28, 29, 40, 47, 48, 49, 50(1), 157, 159 and 258 of the Constitution.
5.The Petition was supported by two affidavits both sworn by the Petitioner. They are the supporting affidavit evenly sworn as the Petition and a Further Affidavit sworn on 9th December, 2021.
6.According to the Petitioner, sometimes in 2019, the 5th Respondent lodged a complaint against him at the Kapenguria Police Station in respect of a Sale agreement over a portion of the parcel of land known as West Pokot/Keringet ‘A’/2428. The sale was between the Petitioner’s mother one Chepokamuk Tapoyo (then already deceased) and the 5th Respondent vide an agreement dated 16th February, 2011.
7.As a part of the police inquiry, the Petitioner was on 16th March, 2021 summoned at the Kapenguria Police Station and was interrogated over allegations of obtaining money by false pretence, and in relation to the said sale agreement.
8.The Petitioner then learnt that he was to be arraigned before Court at the Kapenguria Law Courts on 4th April, 2021 and he was to be charged with the offence of obtaining money by false pretence.
9.Sensing that he was to be so arraigned before Court, the Petitioner initiated High Court of Kenya at Kapenguria Misc. Criminal Application No. E003 of 2021 wherein he sought anticipatory bond. He was subsequently released on a personal bond of Kshs. 5,000/= pending the determination of the said matter. The application may still be pending before Court.
10.In further protest to the alleged charges, the Petitioner posited that he was never a party to the impugned sale agreement and that the decision to charge him was arrived at whimsically and in total violation of his rights and fundamental freedoms and with a view to embarrass him being a retired KDF soldier and the Chairman of the West Pokot Branch of the KDF Soldiers Welfare whose membership comprises of both serving and retired officers.
11.The Petitioner deposed that he was the Administrator of the estate of his late father one Tapoya Amuruk Silaure vide High Court of Kenya at Kitale Succession Cause No. 194 of 2004 and that the estate thereof had been duly distributed.
12.Through the instant Petition, the Petitioner questioned the motive behind preferring charges where it was apparent that he never received any money in relation to the impugned sale agreement. The Petitioner reads malice, ill-will, abuse of powers, abuse of the Court process and acting contrary to public interest and the administration of justice.
13.Based on the foregoing, the Petitioner prayed for the following reliefs: -
14.The Petitioner further filed written submissions dated 13th January, 2023 in urging this Curt to allow the Petition.
The 1st, 2nd, 3rd and 4th Respondents’ cases
15.The first four Respondents were all represented by the Office of the Director of Public Prosecutions. They opposed the Petition vide a Replying Affidavit sworn on 15th March, 2022 by one No. 42721 Sgt. Simon Losiwa, the 4th Respondent and who is one of the investigating officers in the matter.
16.It was deposed that the 5th Respondent laid a complaint over his property being part of parcel of land known as West Pokot/Keringet ‘A’/2428 9hereinafter referred to as ‘the Plot’) which he had bought from one Chepokamuk Tapoyo, who was the Petitioner’s mother, through an agreement dated 16th February, 2011. The complaint related to the destruction of the barbed wire which the 5th Respondent had put around his plot and the subsequent sale of the plot to third parties.
17.Investigations revealed that indeed the plot had been sold to one Patrick Pusia by the Petitioner and his brother one Samson Tapoyo while well aware that the plot had been sold by their mother to the 5th Respondent.
18.The police then summoned and interrogated the Petitioner over the matter. However, the police were surprised that even before the investigations were completed and a decision made, the Petitioner rushed to Court and filed for anticipatory bail.
19.It was deposed that the police have a constitutional and statutory duty to investigate all complaints laid before it and that it can only be fair that the investigations be allowed to be completed and the 3rd Respondent be accorded an opportunity to accordingly make a decision in the matter.
20.Buttressing the foregoing, the Respondents filed written submissions dated 30th January, 2023 wherein several decisions were referred to and urged this Court to dismiss the Petition.
The 5th Respondent’s case
21.The 5th Respondent also opposed the Petition. He filed a Replying Affidavit on 14th July, 2021 which was erroneously stamped with a Court date stamp for 13th July 2021.
22.The deponent stated that he truly lodged a complaint to the police over the plot which he had bought. He was also surprised that the Petitioner was already in Court opposing a prosecution even where the investigations were ongoing. He urged the dismissal of the Petition.
23.The 5th Respondents did not file any written submissions.
24.Having considered the pleadings, the responses, the written submissions and the decisions referred to, what emerges for determination is whether the 1st to 4th Respondents acted in contravention of the Constitution and the law in dealing with the complaint that was lodged by the 5th Respondent against the Petitioner.
25.As a precursor, suffice to remind ourselves that the Constitution is a solemn and sacred instrument which inter alia guarantees people’s rights and fundamental freedoms as well as appropriate legal redresses in protecting the Constitution itself and the said rights and fundamental freedoms.
26.Perhaps the sovereignty of the people, guaranteed under Article 1 of the Constitution, seals the unalienable right for a litigant to invoke this Court’s jurisdiction as established under Article 165 of the Constitution. There is indeed a calling on this Court to uphold and defend the Constitution as structured in Article 3 of the Constitution. Ultimately, a breach of the Constitution or any of the human rights and fundamental freedoms in the Bill of Rights is shunned and condemned.
27.The resolution of this issue, therefore, calls for a scrutiny of the legal regime giving the Police and the Director of Public Prosecutions the mandate to investigate offences and to prosecute those culpable.
28.This Court has previously and so broadly discussed this issue in Nairobi High Court Constitutional Petition No. E033 of 2021 Maura Muigana vs. Stellan Consult Limited & 2 Others (unreported) and also 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.
29.As part of the introduction to the subject in Maura Muigana vs. Stellan Consult Limited & 2 Others case (supra), this Court acknowledged the many writings by legal scholars and decisions by Courts and appreciated that whereas it would have been desirable to come up with all the marvellous work on the issue in a ‘one-stop shop’, that was a tall order given the time constraints and the need for expeditious disposal of cases. The Court, however, rendered a concise discussion on the subject.
30.The Court then traced the legal basis of the exercise of prosecutorial powers in Kenya to the Constitution and the law.
31.Article 157 of the Constitution establishes the Office of the Director of Public Prosecutions as under: -
32.There is, as well, the Office of Director of Public Prosecutions Act No. 2 of 2013 (hereinafter referred to as ‘the ODPP Act’). It 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 in prosecution of cases as follows:
33.The ODPP Act, among other statutes, variously provide for the manner in which the Director of Public Prosecutions (hereinafter referred to as ’the 3rd Respondent’ or ‘the DPP’) ought to discharge its mandate. Suffice to say, the exercise of prosecutorial powers by the DPP has been subjected to legal scrutiny and appropriate principles and guidelines developed.
34.Article 239 of the Constitution is on the National security organs. They are the Kenya Defence Forces, the National Intelligence Service and the National Police Service.
35.The primary objective of the national security organs and security system is to promote and guarantee national security in accordance with the principles in Article 238. In line with that, the Constitution calls upon the organs not to act in a partisan manner, not to further any interest of a political party or cause and not to prejudice a political interest or political cause that is legitimate under the Constitution.
36.Whereas the Kenya Defence Forces are mainly responsible for the defence and protection of the sovereignty and territorial borders and integrity of our Republic, the National Police Service majorly deals with maintaining law and order within the Kenyan territorial borders.
37.By its nature, the National Police Service is one of key players in the criminal justice system in Kenya. Other players include the Director of Public Prosecutions, the Courts and the correctional services.
38.Having said so, I will now look at the National Police Service as established in the Constitution and the law.
39.Article 243 of the Constitution establishes the National Police Service to be comprised of the Kenya Police Service and Kenya Administration Service. The National Police Service is under the command of the Inspector General.
40.The Inspector General enjoys operational autonomy in respect to the conduct of any investigation, law enforcement and employment matters. It is only the Director of Public Prosecutions under Article 157(4) of the Constitution who has power to direct the Inspector General to investigate any matter of criminal conduct and the Inspector General must comply.
41.There is also the Cabinet Secretary responsible for police services who may give the Inspector General direction with respect to any matter of policy.
42.Article 243(4) of the Constitution empowered Parliament to legislate to give full effect to the Article. As a result, Parliament enacted the National Police Service Act, No. 11A of 2011 (hereinafter referred to as ‘the Police Act’) as an Act of Parliament to give effect to Articles 243, 244 and 245 of the Constitution; to provide for the operations of the National Police Service; and for connected purposes.
43.The Police Act provides the functions of inter alia the Kenya Police Service, the Administration Police Service and the Director of Criminal Investigations under Sections 24, 27 and 35 respectively.
44.The functions are as follows: -
45.Flowing from the foregoing, a key distinction in the functions of the National Police Service and the DPP is that whereas the National Police Service is limited to undertaking investigations on criminal culpability and may even recommend charges against the suspects, the DPP then receives and reviews the evidence from the National Police Service and has the sole discretion over the decision on the way forward. The DPP may agree or disagree with the recommendations made. Further the DPP has the unfettered power to direct the National Police Service over any investigations.
46.In other words, once the National Police Service conducts and completes any investigations and makes recommendations then, unless sanctioned by the DPP to arrest suspects or to undertake further investigations over the matter, that is the end of the role of the National Police Service in the criminal justice system. The matter is then taken over by the DPP.
47.It is the DPP to decide on whether or not to prefer any charges against the suspects, if any, since the DPP is not bound by the recommendations made by the National Police Service. Therefore, as long as the DPP is acting within the Constitution and the law, it has the discretion of making any appropriate order in a matter including closure of the police file.
48.The above is the constitutional and statutory regime within which the 1st to the 4th Respondents must exercise their various powers. Suffice to say that the manner in which the said Respondents ought to exercise such powers has been, over time, subject of many Court decisions.
49.For instance, the Supreme Court in Petition No. 38 of 2019 Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others  eKLR discussed some of the applicable parameters. On whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions contrary to the Constitution, the Supreme Court stated as follows:
50.On public interest, the Supreme Court expressed itself as follows: -
51.In January, 2023, the Supreme Court of Kenya in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated))  KESC 6 (KLR) (Civ) (27 January 2023) (Judgment), in a precise manner, summed up the instances in which Article 157(11) of the Constitution would come into play to forestall a criminal prosecution. In particular, the Court dealt with how a constitutional Court or judicial review Court ought to handle the interrogation of facts and evidence in determining whether the interests of the administration of justice, the need to prevent and avoid abuse of the legal process and the larger public interest considerations are sustained.
52.In further delineating the powers of the DPP under Article 157 of the Constitution, the Apex Court had the following to say:
53.The Supreme Court further made a case for merit review of decisions. It stated in paragraph 75 as follows: -
54.The Court was, however, cautious in clarifying the extent of the merit-based review. It stated as under: -
55.The Court further rendered itself as follows: -
56.Having laid down the parameters within which the discussion on whether the Police and the DPP remained true to the Constitution and the law ought to be manoeuvred, this Court will now apply the foregoing to this case.
57.In this matter, there is no doubt that the police were still carrying out investigations before the Petitioner went to Court to apply for anticipatory bail. The DPP has confirmed that the office is yet to receive the police file for purposes of reviewing the evidence and appropriate action.
58.There is no evidence that the Petitioner engaged the DPP in any way prior to instituting any Court proceedings. There is as well no demonstration of how the DPP erred thereby infringing the Constitution. As such, and given the state of affairs in this matter, the inclusion of the DPP in the Petition did not add any value.
59.Apart from contending that there is no evidence incriminating him with the alleged offence, the Petitioner put the cart before the horse. There was no police bond or any communication that was annexed in evidence to the effect that the Petitioner was to be arraigned before Court either as alleged or otherwise. Further, the Petitioner failed to demonstrate how the police infringed or were likely to infringe on his rights and fundamental freedoms in undertaking investigations as called upon by the Constitution and the law.
60.There is, as well, no evidence that a decision to charge the Petitioner had been made. Further, the error on the part of the 5th and 6th Respondents that necessitated them being enjoined as Respondents was also not deduced. Maybe, the Petitioner ought to have considered them as Interested Parties.
61.On a proper and sober assessment of the facts and the law in this case, it is apparent that the Petition was prematurely filed and is not proved. A proper Petition ought to have been founded on the manner in which the Respondents acted outside the Constitution and the law. Such was not demonstrated or at all by the Petitioner. (See Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR).
62.Having said as much, this Court, in determining this matter must also make orders bringing the High Court of Kenya at Kapenguria Misc. Criminal Application No. E003 of 2021 to an end.
63.Deriving from the foregoing, the following final orders do hereby issue: -