Weekly Newsletter 026/2019



Kenya Law

Weekly Newsletter


Decision to Prosecute Quashed on Grounds that Evidence was Obtained in a Manner that Rendered it Illegal and Detrimental to the Administration of Justice
Philomena Mbete Mwilu v Director of Public Prosecutions and 3 others Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR
Petition 295 of 2018
High Court at Nairobi
H A Omondi, M Ngugi, F Tuiyott, E C Mwita and W M Musyoka JJ
May 31, 2019
Reported by Robai Nasike and Moses Rotich
Download the Decision

Constitutional Law- Office of the Director of Public Prosecutions- independence of the Office of the Office of the Director of Public Prosecution- independence of the Office of the Director of Public Prosecution from both external and internal interference when forming a decision to prosecute a person-whether courts could interfere with the decision of the Director of Public Prosecution to prosecute a person- whether the decision of the Director of Public Prosecutions to prosecute the petitioner was devoid of internal and external interference
Constitutional Law- Office of the Director of Public Prosecutions- independence of the Office of the Director of Public Prosecution- impact of presidential utterances on the independence of the Office of the Director of Public Prosecution- whether utterances made by a member of the Executive, that the Director of Public Prosecutions belonged to, could influence the Director of Public Prosecution’s decision to prosecute-National Prosecution Policy, 2015, part 4B
Criminal Procedure - prosecution-prosecutorial decisions- power of the Director of Public prosecution to make prosecutorial decisions and the scope of such power- factors the Director of Public Prosecutions would consider in making prosecutorial decisions-what tests could be applied by the Director of Public Prosecutions when making a prosecutorial decision-National Prosecution Policy, 2015, Part 4B
Criminal Procedure -charges- framing of charges- defective charges-where charges framed allegedly lacked a legal and factual basis- at what point was a charge considered to lack a legal and factual foundation- whether the charges preferred against the petitioner lacked a legal and factual foundation hence were fatally defective and incurable- whether a charge could be considered defective due to lack of a complainant-Criminal Procedure Code, section 214
Criminal Procedure -concurrent criminal and civil proceedings- availability of civil remedies- whether availability of civil remedies was a bar to institution of criminal charges- Criminal Procedure Code, section 193A
Constitutional Law-national security-investigation of economic crimes- mandate of the Directorate of Criminal Investigation and the Ethics and Anti-Corruption Commission to investigate economic crimes- whether both the Directorate of Criminal Investigation and the Ethics and Anti-Corruption Commission had a mandate to investigate economic crimes-whether the fact that the Director of Public Prosecution relied on investigations by the Directorate of Criminal Investigation with regard to economic crimes as opposed to the Ethics and Anti-Corruption Commission was an infringement on an accused person’s right to non-discrimination and equal benefit of the law-Anti-Corruption and Economic Crimes Act, section 26, 27 and 28
Evidence Law - illegally obtained evidence- exclusion of illegallly obtained evidence- whether illegally obtained evidence ought to be automatically excluded- whether the manner that the evidence against the petitioner was obtained rendered the evidence illegal in a manner that was detrimental to the administration of justice -whether the manner of obtaining evidence against the petitioner consequently infringed on the petitioner’s right to privacy- whether such evidence ought to be excluded
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-protection of a person’s constitutional rights from violation during investigation- whether an undertaking to conduct investigations by an investigating agency could lead to violation of constitutional rights
Constitutional Law-fundamental rights and freedoms-right to fair administrative action- right to reply and be heard during an investigation-whether a person had the right to be heard during investigation and before making of a decision to prosecute-whether the law had set out specific timelines within which persons who were subject of investigations should give their responses to allegations against them-whether the petitioner’s right to fair administrative action was infringed- Constitution of Kenya, 2010, article 47
Criminal Procedure -arrests-manner of effecting arrests-what was the prescribed manner for effecting arrests by the police- whether judicial officers ought to be accorded a different manner of arrest from that of an ordinary person-whether the manner that the petitioner, a judge, was arrested violated her right to human dignity-Constitution of Kenya, 2010, article 28; Criminal Procedure Code, sections 2, 21, 29, 30 and 32
Constitutional Law-fundamental rights and freedoms-the right to fair trial- where media publicity was prominent-whether media publicity could be deemed to be a violation of the right of an accused person to the presumption of innocence and the right to a fair trial
Constitutional Law -judicial officers-independence of judicial officers-immunity of judges from prosecution in criminal and civil proceedings-whether the concept of immunity of judges from prosecution was absolute
Constitutional Law-judicial officers-independence and accountability of judges- removal of judges- proceedings against judges for misconduct where such misconduct contained a criminal element-what was the proper forum for conducting proceedings for removal of judges on allegations of misconduct behaviour that had a criminal element-whether criminal proceedings and disciplinary proceedings before the JSC could be conducted concurrently- whether judges and judicial officers should be tried directly by the state or should be subjected to the JSC process- Constitution of Kenya, article 168 (1)
Civil Practice and Procedure-parties to a suit-interested parties-role of the interested party in a suit-whether an interested party could introduce new issues that were outside the pleadings of the principal parties


Brief Fact:
The petitioner was a judge of the Supreme Court and the Deputy Chief Justice of the Republic of Kenya. Following the investigations carried out by the 2nd respondent-the Director of Criminal Investigations (DCI), the petitioner was arrested and arraigned before Magistrate Court for plea taking. However, before the petitioner could take plea to the charges before the Chief Magistrate, she filed the instant petition challenging the actions of the 1st and 2nd respondents.
The petitioner stated that the decision to arrest and prosecute was an attempt to remove her from office as part of the execution of the threat made by the President after the decision of the Supreme Court delivered on September 1, 2017 in Raila Amolo Odinga & Another v The Independent Electoral and Boundaries Commission and 2 Others, Supreme Court Presidential Petition No. 1 of 2017. The petitioner was one of the four judges in the majority judgment. She contended that the intended prosecution was an attempt on the part of the executive to remove her from office, as part of the execution of the threat of the President that the decision of the majority in the Presidential election petition would be ‘revisited’.
The petitioner alleged violation of her right to equality and non-discrimination guaranteed under article 27(1) and (2) of the Constitution, right to fair hearing under article 50 (1) and (2), and the right to human dignity under article 28. She further alleged contravention of article 157(11). The petitioner further stated that the charges against her did not disclose proper or sufficient detail and therefore violated article 50(2) (b) of the Constitution.
The petitioner maintained that the 1st and 2nd respondents had no mandate to deal with economic crimes as Parliament, in compliance with the provisions of Chapter 6 of the Constitution, enacted the Ethics and Anti-Corruption Commission (EACC) Act and the Anti-Corruption and Economic Crimes Act (ACECA) which set out a legal regime for dealing with complaints, investigations and recommendations to the Director of Public Prosecution (DPP).
The petitioner sought declaratory reliefs that, inter alia, the respondent’s institution of criminal proceedings against the petitioner in Criminal Case No 292 of 2018, Republic v Philomena Mbete Mwilu & Stanley Muluvi Kiima violated her constitutional rights, was an abuse of the process of the court and therefore unlawful, null and void ab initio. She also prayed for the Court to quash the entire charge sheet and proceedings against her in ACC Criminal Case Number 38 of 2018 – Republic v Philomena Mbete Mwilu & Stanley Muluvi Kiima.


Issues:
  1. Whether courts could interfere with the decision of the Director of Public Prosecution to prosecute a person.
  2. Whether utterances made by a member of the Executive, that the Director of Public Prosecutions belonged to, could influence the Director of Public Prosecution’s decision to prosecute.
  3. What tests could be applied by the Director of Public Prosecutions when making a prosecutorial decision?
  4. Whether a charge could be considered defective due to lack of a complainant.
  5. Whether availability of civil remedies was a bar to institution of criminal charges.
  6. Whether both the Directorate of Criminal Investigation and the Ethics and Anti-Corruption Commission had a mandate to investigate economic crimes.
  7. Whether the fact that the Director of Public Prosecution relied on investigations by the Directorate of Criminal Investigation with regard to economic crimes as opposed to the Ethics and Anti-Corruption Commission was an infringement on an accused person’s right to non-discrimination and equal benefit of the law.
  8. What was the effect of illegally obtained evidence in criminal proceedings?
  9. Whether a person had the right to be heard during investigation and before making of a decision to prosecute.
  10. Whether the law had set out specific timelines within which persons who were subject of investigations should give their responses to allegations against them.
  11. Whether judicial officers ought to be accorded a different manner of arrest from that of an ordinary person.
  12. Whether media publicity could be deemed to be a violation of the right of an accused person to the presumption of innocence and the right to a fair trial.
  13. Whether the concept of immunity of judges from prosecution was absolute.
  14. What was the proper forum for conducting proceedings for removal of judges on allegations of a misconduct that had a criminal element?
  15. Whether criminal proceedings and disciplinary proceedings before the Judicial Service Commission could be conducted concurrently.
  16. Whether criminal prosecution of a judicial officer encroached on the independence of the judiciary and the mandate of the Judicial Service Commission.
  17. Whether an interested party could introduce new issues that were outside the pleadings of the principal parties.

Relevant provisions of the law
The Constitution of Kenya, 2010
Article 28

Every person has inherent dignity and the right to have that dignity respected and protected.
 

Article 50(2)
Every accused person has the right to a fair trial, which includes the right—

(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) …
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;

Article 50(4)
Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.
 

Article 157(11)
In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
 

National Police Service Act
Section 35

The Directorate shall—

(a) collect and provide criminal intelligence;
(b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;
(c) maintain law and order;
(d) detect and prevent crime;
(e) apprehend offenders;
(f) maintain criminal records;
(g) conduct forensic analysis;
(h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;
(i) co-ordinate country Interpol Affairs;
(j) investigate any matter that may be referred to it by the Independent Police Oversight Authority; and
(k) perform any other function conferred on it by any other written law

National Prosecution Policy, 2015
Part 4B

Public Prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, Public Prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available? To make this determination, Public Prosecutors should therefore consider the following:

a) If the identity of the accused is clearly established through admissible evidence.
b) The strength of the rebuttal evidence.
c) Would the evidence be excluded on the basis of its inadmissibility, for instance under the hearsay and the bad character rules?
d) Reliability of the evidence considering; whether there would be concern about accuracy, credibility or motivation of the witnesses? What is the suspect`s explanation?
Is the confession believable? How was evidence obtained

i.Is there further evidence which would be required? The standard of evidence required under the Evidentiary Test is less than the Court`s “beyond reasonable doubt” standard for conviction.
ii. In some cases the available evidence at the time may not be sufficient to determine the Evidential Test, that is, “realistic prospect of conviction”. In such circumstances, Public Prosecutors should apply the “Threshold Test” in order to make the decision whether or not to charge.
iii. For example, relevant expert evidence or evidence required to determine bail risk may not be available within the limited time of arraignment of a suspect before court. Such are the instances that necessitate the application of the Threshold Test.
iv. A prosecutor shall consider the following conditions in applying the Threshold Test:

(i)The evidence available is insufficient to apply the Evidential Test.
(ii) There are reasonable grounds to believe that evidence will become available in good time.
(iii) The seriousness of the matter and the circumstances of the case justify the making of an immediate decision to charge
v. The obtaining circumstances necessitate the making of an application for the denial of grant of bail.
vi. If the obtaining circumstances do not fall within the conditions above a decision to charge should not be made.
vii. Where the case does not pass the Evidential Test it must not go ahead, no matter how serious it may be. Public Prosecutors can only apply the Public Interest Test when the Evidential Test is satisfied

Held:
  1. There was a real danger of courts overreaching if they were to routinely question the merit of the DPP’s decisions. However, should there be credible evidence that the prosecution was being used or could appear to a reasonable man to be deployed for an ulterior or collateral motive other than for advancing the ends of justice, then a scrutiny of the facts and circumstances of the case was not only necessary but desirable. That was because it would enhance the administration of justice if the challenged charges were to be properly tested so that any fears of ill motive were dispelled.
  2. Judicial review of the foundational basis of a charge could only be undertaken when an applicant had first established that there were reasonable grounds that the challenged proceedings were a vehicle for a purpose other than a true pursuit of criminal justice. To allow a willy-nilly and casual review of the foundational basis of criminal charges would be to turn judicial review proceedings into criminal mini-trials, a prospect that anyone keen to stop a criminal trial would relish.
  3. The petitioner asserted that commencement of the prosecution against her and other related events revealed a systematic and sustained effort to carry out reprisals against the judiciary as an institution and the majority judges in the presidential election petition decision that nullified the elections held on August 2017. However, the petitioner had not presented any evidence to show that those events were instigated, orchestrated or coordinated by the executive arm of government. Further, no evidence was presented to show a connection between the various events.
  4. In performance of his prosecutorial functions, the DPP was to act independently, free from directions or control from any quarter. There was no reason to doubt that the DPP acted independently and without internal or external directions. Further, there was no evidence to suggest that the DCI was directed by the executive to investigate the petitioner and or to reach a particular result. There was no evidence of conspiracy or connivance between the DPP and DCI on the one hand, and any other person on the other.
  5. The commencement of the prosecution was against the backdrop of a public utterance by the head of the executive that there shall be a “revisit” on the judiciary. It was not in the instant Court’s place to second guess what the President meant by “revisit”. The Court could not possibly know whether the revisit, whatever it meant, was to be followed through or was merely a statement made in the heat of the moment later to be forgotten. Nevertheless, the person who spoke the words was no ordinary mwananchi. He was the head of the executive branch of government and wielded formidable instruments of power. A person against whom such remarks were made by the Head of State would be forgiven if they were to be terrified.
  6. The effect of the ‘revisit’ remark was to put any action by the executive that could be perceived to be prejudicial to the judiciary or its members under great public scrutiny. The petitioner was not only a senior member of the judiciary but was one of the four judges who rendered the majority decision that prompted the remarks by the President. Public attention would be piqued if any action was directed at any of the four.
  7. Under Chapter Nine of the Constitution, both the President and DPP belonged to the same branch of government, the executive. The DCI also fell within the executive branch and was an appointee of the President. While no material was placed before the Court to give it reason to doubt that both the DPP and DCI acted independently, the petitioner expressed the apprehension that the two were acting at the behest of the President. Given that the President, the DPP and DCI were all members of the executive that was headed by the President, the apprehension could not be unreasonable.
  8. The Court should not engage in a full-fledged scrutiny or, put differently, in a mini-trial. It could not get involved in a miniature fact-finding exercise. To do so would be to trespass into the mandate of the trial court. Yet, delimiting the scope of the inquiry was easier said than done. The standard that the DPP had set for himself as one to be reached before making the decision to prosecute was useful in drawing the line. That standard was to be found in the National Prosecution Policy, 2015. Part 4B of the Policy identified two basic components that should inform the decision to prosecute. The first was that the evidence available was admissible and sufficient, while the second was that the public interest required that where evidence disclosed a criminal act, a prosecution be conducted. The former was the evidential test while the latter was the public interest test.
  9. In applying the evidential test, a charge lacked factual and legal foundation if, on the evidence and the relevant law, it was so patently weak that it did not disclose a prosecutable case or had no prospect of conviction. The charge had to be so wanting that no reasonable prosecutor, having proper regard to the prosecutorial powers donated by the Constitution and guided by the National Prosecution Policy, could possibly mount a prosecution. The deficiency had to be readily apparent and had to be revealed without a detailed examination of the evidence available.
  10. To detect crime was to discover the existence of crime. As long as it was for reasonable and probable cause, the DCI was empowered to investigate crime. A victim need not initiate the process. In that event the Republic, through the DCI, became the complainant to the charges brought. If the victims of the crimes charged were the public, then the DCI and DPP would be obligated to investigate and initiate prosecutions respectively should the evidence disclose the commission of offences.
  11. If the issue of punishing crimes was to be left to the victims of such crimes, there would be the question of whether the victims, such as in the instant case where the victims were said to be bank customers, Kenya Revenue Authority and therefore the general public, would be in a position to take up the matter. If the word ‘complainant’ was constricted to the victim or institution that had suffered loss, there was the risk of many crimes going without detection, investigation or prosecution. Those responsible for reporting crime would have reason not to. There could be fear of recrimination, self-incrimination or victimisation. Others could simply be indifferent or cynical. That was perhaps why whistle blowing was encouraged and protected in the fight against corruption and crime generally. Hence the charges were not deficient simply because the supposed victims were not the complainants.
  12. There were two ingredients of the charge of abuse of office. One, the person should have used a public office to improperly confer something to herself or himself. Second was that, the thing conferred had to be in the nature of a benefit. If it was established, as alleged by the proposed witnesses, that it was unusual for borrowers to be granted interest free facilities, then an interest free loan to the petitioner could amount to a benefit to her. The benefit would have accrued notwithstanding that the loan was fully repaid. That however, was not the end of the matter for the prosecution because the evidence available had to also disclose that she obtained the benefit by improperly using her office as a judge of the Court of Appeal.
  13. The DPP demonstrated that given the rather unusual circumstances in obtaining the loan, the questions posed regarding the loan were not trivial. In the circumstances, there was a factual and legal basis to prefer the charge of abuse of office.
  14. There could be a civil remedy if the bank was aggrieved. But that by itself could not be a bar to the bringing of criminal charges because one set of facts could be both the foundation of a criminal charge and the basis for a civil action. That was expressly contemplated by statute in section 193A of the Criminal Procedure Code.
  15. Neither the Commissioner of Police nor the receiver manager responded to the allegations that they were selectively releasing some evidence while suppressing others that would exonerate the petitioner and they were thus uncontroverted. The allegation, that there was a hand-written agreement in which the Receiver Manager acceded to the sale of the petitioner’s property would have to be tested against the evidence that stated that the interested party failed to surrender the replacement charge and title to that property to Imperial Bank Limited (IBL) as he was obligated to do by his undertaking. However, the instant forum was not the one that would test the veracity or otherwise of the evidence in detail.
  16. It was argued that the charge of false pretences could not relate to a future event or occurrence. The charge was faulted because of the manner in which it was framed. However, in so far as there was a factual and legal basis for preferring the charge, any deficiency in the substance or form of the charge could be cured by way of amendment under section 214 of the Criminal Procedure Code.
  17. There was no prosecutable case against the petitioner in regard to the charges relating to non-payment of stamp duty. The petitioner’s role in respect to the stamp duty ended upon her sending money for stamp duty to the interested party. There was a legal or factual foundation to the charges against the petitioner. However there was no legal or factual foundation with regard to the charges pertaining to the non-payment of stamp duty which could not properly be levelled against her.
  18. A plain reading of the Constitution suggested that the DCI and the EACC had coordinate mandates to investigate economic crimes. Therefore, investigations carried out by the DCI and recommendations made to the DPP could not be faulted on account of not having been conducted by the EACC. With regard to economic crimes, the DPP could act on the outcome of investigations whether they were carried out by the DCI or the EACC. The DPP was at liberty to rely on any source of information in order to institute criminal proceedings, whether the information emanated from the EACC or not, as long as the source was lawful.
  19. Section 26 of ACECA was intended to aid EACC to expedite investigations by requiring certain information from a person suspected of corruption or economic crimes, after giving of due notice. That did not mean that EACC was under an obligation to give that notice to all persons under investigation. The effect of section 27 of ACECA was similar to that of section 26, but with respect to third party associates of a person suspected of corruption or economic crimes.
  20. Section 28 of ACECA provided a mechanism for EACC to access records and information with prior sanction of the court, but upon notice to the affected parties. Like sections 26 and 27, section 28 was intended to assist EACC when investigating corruption and economic crimes. All those provisions, which were in Part IV of ACECA which covered investigations, provided the tools and processes that EACC could use in the course of conducting investigations. The sections had not imposed an obligation on EACC to use a particular method of investigation, and whether or not the provisions were applied depended on the circumstances of each case. The charges against the petitioner could not be impugned for non-compliance with sections 26 to 28 of ACECA.
  21. In the instant case, the investigations were undertaken by the DCI. The powers under sections 26 to 28 of ACECA, the exercise of which was not mandatory, were reposed in the EACC. Both the EACC and DCI had the mandate to investigate economic crimes. The powers that were available to the DCI that were similar to the provisions under sections 26 to28 could be found in sections 118 to 121 of the CPC and section 180 of the Evidence Act. Those were the provisions that were invoked and applied in Miscellaneous Application No. 2225 of 2018 which ultimately led to the investigation of the petitioner’s accounts.
  22. There was no order authorising the DCI to investigate the petitioner’s accounts at IBL. The investigation into the petitioner’s accounts was not sanctioned by any court, and such evidence as was obtained would appear to be illegally obtained evidence. There was an apparent false start on the part of the DCI when orders in Miscellaneous Application No. 2225 of 2018 were applied to investigate the petitioner’s accounts with IBL.
  23. The Kenyan position on the rule that there was no automatic exclusion of illegally obtained evidence was shared in other jurisdictions. The determination of the question whether to exclude illegally obtained evidence on the basis that it could render the trial unfair was a matter within the jurisdiction of the trial court. However, there was the broader question of whether the illegally obtained evidence was otherwise detrimental to the administration of justice. That was an issue that a court dealing with a petition alleging violation of constitutional rights was obligated to consider. That was a duty that took the instant Court beyond examining the question of fairness to the petitioner and to the question whether there could be greater public policy implications arising from the conduct of the DCI.
  24. The DCI obtained an order to examine an account in KCB Bank belonging to Blue Nile East Africa Ltd. In the course of examining the account the subject of that order, he could have stumbled on information that somehow led him to the petitioner’s accounts with IBL. If at that point he had reasonable cause to investigate the petitioner’s accounts, he had the option of accessing those accounts by invoking the aid of the provisions of sections 118 to121 of the Criminal Procedure Code and section 180 of the Evidence Act. Instead, the DCI appeared to have misrepresented to the Receiver Manager that the order in Miscellaneous Application No. 2225 of 2018 empowered him to access and investigate accounts in IBL, including the petitioner’s.
  25. The petitioner was the second highest ranking officer in an arm of government, the judiciary. The DCI obtained access to her accounts on the basis of a misrepresentation, by using a court order that was not obtained in respect of her accounts. There was a clear violation of the petitioner’s right to privacy guaranteed under article 31. The conduct of the DCI in that respect was so egregious and objectively unreasonable and to allow reliance on any evidence obtained as a result would be detrimental to the administration of justice.
  26. It was within the mandate of an investigative body to receive complaints and to investigate them. Such bodies or entities could not be faulted for acting on the complaints because in doing so, they would be acting within their constitutional and statutory duty. By undertaking investigations, an investigating entity had not violated any constitutional rights and violation of rights only occurred in the manner in which the investigative mandate was executed. In that event, the petitioner would be under an obligation to demonstrate that their rights were violated by the manner of investigation and attendant processes.
  27. The person the subject of an investigation was entitled to fair administrative action. Before a decision was taken for the prosecution of the suspect, the investigative agency had to observe that person’s rights by granting them an opportunity to respond to the allegations. There would be, as a matter of course, a preliminary inquiry conducted internally before the formal investigation. It should be at the formal investigation stage that the suspect would be entitled to be heard. The court ought not to set standards for review of complaints or of matters warranting investigation and it should guard against interfering with the investigative mandate of agencies by prescribing investigative procedures. What courts should look out for should be condemnation of a person before they had an opportunity to be heard and to respond to the charges levelled against them.
  28. The petitioner’s assertion was a complaint that whatever she said would be disregarded, not an allegation that she was not given adequate time or opportunity to give her side of the story. The law had not set out specific timelines within which persons who were subject of investigations should give their responses to allegations against them; hence the right to fair administrative action afforded to the petitioner by article 47 of Constitution was not violated. However, even in the event that the instant Court erred in its analysis and conclusions, there would still be no sufficient ground to bar a prosecution.
  29. After a complaint was made to the police, they were required to carry out investigation and upon conclusion, they could make recommendations to the DPP who would determine whether to prefer charges or not. Thereafter, the police could arrest the suspect for the purpose of presenting them to court. Under sections 29, 30 and 32 of the Criminal Procedure Code (CPC), a police officer could, without an order from a magistrate and without a warrant, arrest any person. Under section 29 of the CPC, a police officer could arrest someone without warrant if the persons were suspected of committing cognizable offences as defined under section 2 of the CPC.
  30. The manner in which police could effect an arrest was provided for under Part III of the Criminal Procedure Code. The general provision in section 21 of the Criminal Procedure Code was that the arresting officer could touch or confine the body of the person arrested unless he submitted, by word or action, to the arrest. The police could use all means to effect arrest only if a person resisted or attempted to evade arrest. In addition, there were guidelines on the manner of effecting arrests in subsidiary legislation. Under section 10 of the National Police Service Act, the Inspector-General was empowered to issue and document Service Standing Orders. Chapter 15 of the National Police Service Standing Orders issued pursuant to that section made provision for the manner of effecting an arrest. Standing Order No. 1(2) provided for arrests in general, while Standing Order No. 4(1) was in respect of arrest of persons in the public service. The design of the protocols set out in those provisions was to avoid embarrassing the government institution and disrupting its operations. It was also intended to respect the dignity of the office occupied by the officer concerned.
  31. The Kenyan jurisprudence had not developed guidelines similar to the ones from India with regard to the arrest of judicial officers. However, the manner in which police conducted arrests, whether of judicial officers or any other person, had to accord with constitutional principles, which included the presumption of innocence and the preservation and protection of the dignity of the individual guaranteed under article 28 of the Constitution.
  32. While the petitioner complained about the manner of her arrest, she had not demonstrated how it breached her right to dignity. The DPP and DCI went to the Supreme Court building and informed the Chief Justice about the intended arrest, and there was no evidence that there was any form of mishandling of the petitioner. The manner of arrest of the petitioner was in accordance with the law and did not subject her to humiliation or embarrassment in violation of article 28 of the Constitution.
  33. In a criminal justice system such as Kenya’s in which the trial was conducted by a judicial officer as opposed to trial by jury, pre-trial media publicity or any media publicity could not influence the mind of the trial court which was manned by a competent and independent judicial officer. Such publicity would not be deemed to be in violation of the right of an accused person to the presumption of innocence and the right to a fair trial.
  34. Whereas the decision of the DPP to prosecute the petitioner in respect of counts I and II could not be faulted, the same could not be said of the conduct of the DCI. The manner in which the DCI obtained access to the petitioner’s accounts with IBL was through acts of misrepresentation and misuse of a court order that rendered the evidence thereby obtained, and which formed the bedrock of the charges against the petitioner, illegal in a manner that was detrimental to the administration of justice. The DCI violated the petitioner’s right to privacy contrary to article 31 of the Constitution. While that violation was not pleaded by the petitioner, in light of article 50(4), the conduct of the DCI had irredeemably broken the foundation on which the criminal case against the petitioner was built.
  35. There was a rational basis for making specific provision for the independence of the judiciary in the Constitution. There was a need to safeguard that independence to enable judges and judicial officers discharge their judicial functions without fear of reprisals from the executive or any other quarter. That was in line with the constitutional scheme on the separation of powers and checks and balances.
  36. The people of Kenya delegated their sovereign power to the three arms of government under article 1(3) of the Constitution. Chapter 10 of the Constitution vested judicial authority in the courts and provided the manner for the exercise of such power. That was expressly provided for in article 159. The independence of the judiciary was recognised and underscored in Kenya’s constitutional scheme as seen under article 160. The importance of judicial independence and its implications for the rule of law could not be overemphasised. It was also recognised in various international instruments, to which Kenya was a party; that underscored the central place of such independence in ensuring the protection of human rights and the rule of law.
  37. The people of Kenya were cognisant of the need for an independent institution, and in their views to the Constitution of Kenya Review Commission (CKRC) recommended an independent institution to receive and investigate complaints against judges and judicial officers and staff. Those recommendations were contained in the Final Report of the Constitution of Kenya Review Commission (CKRC), paragraph 13.5.4 to13.5.6 of the report. Under the Constitution, the JSC was vested with power under articles 168 and 172 to deal with issues relating to misconduct by judges and judicial officers.
  38. Like other human beings, judges were afflicted with frailties, vulnerabilities and temptations that could from time to time cause them to falter and fall afoul of the law. Those afflictions could also lead to conduct that fell short of the ethical and professional standards that their oath of office required. Such behaviour could sometimes amount to criminal conduct. At other times, it could be misconduct that was in breach of ethical and professional standards. On occasion, that behaviour could well fall into both categories. Sometimes, however, the line between criminal and ethical misconduct could be blurred.
  39. In the absence of an express statutory or regulatory provision requiring prior approval or sanction from another authority in order to prosecute, a judge or judicial officer would face trial directly in the event that he or she was alleged to have committed an offence. However, where there was a specific legal framework for dealing with misconduct and/or removal of judges, cases involving misconduct with a criminal element committed in the course of official judicial function or so closely proximate or linked to the judicial office should first be referred to the body responsible and the disciplinary or removal process commenced.
  40. Where acts of a criminal nature were committed outside the scope of official judicial function, then the judge or judicial officer could be investigated, arrested and prosecuted directly, without recourse to the disciplinary or removal process. Thus, cases such as theft, fraud, arson, rape or murder fell in that category. A judicial officer or superior court judge against whom charges in respect of such offences were made had to face trial directly and the court could not interfere with the mandate of the prosecutorial authorities.
  41. The law had not made a distinction between prosecution of a suspect with regard to their designation, or position or status in society. Under the CPC, any person could be arrested and arraigned in court for prosecution arising from alleged criminal conduct. The Constitution provided limited immunity for judges and judicial officers in article 160(5) of the Constitution; that provision was echoed in provisions of section 6 of the Judicature Act on protection of judges and officers. Generally, the courts had drawn the line between judicial immunity from civil liability for acts done in good faith in the course of judicial functions and immunity of judicial officers from criminal prosecution. A superior court judge, or a judicial officer, did not enjoy any privilege or immunity for criminal actions committed either within the scope of their duty as judicial officers or in their personal capacity.
  42. There was a specific legal framework for dealing with misconduct and/or removal of judges. Cases involving misconduct with a criminal element committed in the course of official judicial functions, or cases which were so inextricably connected with the office or status of a judge that they, perforce, had to be deemed to be official misconduct, had to first be referred to the body responsible and the disciplinary or removal process commenced. However, if acts of a criminal nature were committed outside the scope of official judicial function, the judge or judicial officer could be investigated, arrested and prosecuted directly, without recourse to the disciplinary or removal process.
  43. Under the provisions of article 168(1) of the Constitution one of the grounds upon which a judge could be removed from office was for gross misconduct or misbehaviour. Such misconduct or misbehaviour could be criminal in nature. Yet, because proceedings triggered under article 168(2) could lead to the removal of the judge, allegations of misconduct within the scope of duty or which otherwise amounted to official misconduct had to first be processed by the Judicial Service Commission (JSC). To allow allegations of that nature to be determined through a criminal trial without initial recourse to JSC would be to expose judges and judicial officers to the possibility of harassment and intimidation from executive agents in a manner that would be incompatible with the Constitution and inimical to the independence of the judiciary. The rationale for that approach was premised on the doctrine of the separation of powers and the principle of the independence of the judiciary.
  44. The fact that a judge or judicial officer could, in criminal offences committed outside the scope of the judicial function, be arrested and charged directly, had not barred the JSC from initiating disciplinary or removal proceedings. However, prudence suggested that there should not be parallel proceedings on the same issue. Similarly, where a judge had committed judicial or official misconduct that disclosed criminal elements, the DCI was not precluded from investigating and bringing evidence of such misconduct to the JSC for appropriate action under article 168(2) of the Constitution.
  45. Abuse of office by a judge or judicial officer could be committed within or outside the scope of judicial function. For instance, a judge or judicial officer could, in the course of proceedings before the court, seek to obtain an improper advantage from one of the parties in order to determine a matter in a particular way. At other times the improper benefit would not be directly related to the performance of their judicial duty. However, by its very nature, the offence of abuse of office presupposed that the person was improperly using or misusing their public office or status to obtain a benefit. The commission of the offence was intertwined with use/abuse of the public office. Even when committed outside the ordinary scope of duty, the offence had to be deemed to be official misconduct because it related to an advantage obtained by virtue of the person’s official, as opposed to personal capacity. In that sense abuse of office which was also frowned upon by the Judicial Code of Conduct had to, in the first instance, be referred to JSC.
  46. The particulars of count II formed the basis of the charge of obtaining execution of a security by false pretences contrary to section 314 of the Penal Code. From the particulars, it could be gleaned that the offence was alleged to have been committed within the context of a customer-banker relationship. Therefore it was outside the scope of the petitioner’s judicial duties and functions. Counts III-VII all related to failure to pay stamp duty upon purchase of various properties. All those charges were for unlawful failure to pay taxes payable to the KRA contrary to section 45(1) (d) as read with section 48 of the ACECA. The charges had no link or connection with the petitioner’s judicial functions. The same could be said with respect to counts VIII, X, and XI which were charges of forgery contrary to section 345 as read with section 349 of the Penal Code. However, there was no legal foundation for preferring all the charges touching on non-payment of stamp duty and forgery, against the petitioner.
  47. An interested party was a peripheral party and could not introduce new issues for determination by the court. Further, in determining the matters before it, the court could only consider the issues that arose in the pleadings by the principal parties. That rule would be particularly unyielding when the matter before court was a private as opposed to a public interest claim. Notwithstanding the fact that the interested party was joined in the matter from the outset by the petitioner, he was still only an interested party within the meaning ascribed to that phrase by the law and judicial precedents. His joinder ab initio had not elevated his position in the matter. The court could only grant reliefs as sought by the petitioner or as it deemed appropriate as provided under article 23(3) of the Constitution.
  48. The issues raised by the interested party were outside the pleadings by the principal parties hence beyond the purview of the instant petition. The same sentiments applied to the interested party’s arguments about the invasion and search of his office, confiscation of documents and infringement of advocate/client relationship. Accordingly, any orders sought by the interested party in his affidavit in support of the petition could not be granted.
Petition allowed.
  1. Declaration issued that the evidence underpinning the intended prosecution of the Petitioner in Nairobi Chief Magistrate’s Court ACC Criminal Case No. 38 of 2018 Republic v Philomena Mbete Mwilu and Stanley Muluvi Kiima was illegally obtained in a manner that was detrimental to the administration of justice;
  2. Order of certiorari issued to quash the criminal proceedings in Nairobi Chief Magistrate’s Court ACC Criminal Case No. 38 of 2018 Republic v Philomena Mbete Mwilu and Stanley Muluvi Kiima as against the petitioner.
Kenya Law
Case Updates Issue 026/2019
Case Summaries

CONSTITUTIONAL LAW The emplacement of police officers of the rank of graduate constable to different pay groups amounted to violation of their right to fair labour practices, fair remuneration and reasonable working conditions.

Evans Muriuki Muthuri & 4 others v National Police Service Commission & 2 others [2019] eKLR
Petition 122 of 2018
Employment and Labour Relations Court at Nairobi
B Ongaya, J
May 17, 2019.
Reported by Kakai Toili

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Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to fair remuneration,          reasonable working conditions, fair labour practices, and equality and freedom from discrimination - where police officers of the rank of graduate constable were emplaced to different pay groups –  whether the emplacement of police officers of the rank of graduate constable to different pay groups amounted to violation of their right to; fair remuneration, reasonable working conditions, fair labour practices, and equality and freedom from discrimination - Constitution of Kenya, 2010 article 27, 28, 40, 41, 43 & 47; National Police Service Commission (Recruitment and Appointment) Regulations, 2015; National Police Service Commission (Promotion) Regulations, 2015
Constitutional Law -doctrine of legitimate expectation – application of the doctrine of legitimate expectation - what were the circumstances in which the doctrine of legitimate expectation could be applied - what were the conditions to be fulfilled before the doctrine of legitimate expectation could be applied
Constitutional Law – constitutional commissions – National Police Service Commission – powers of the National police Service commission – emplacement of police constables holding degree certificates to a special pay level - whether the National Police Service Commission could emplace police constables holding a degree certificate to a special pay level – Constitution of Kenya, 2010 article 41; National Police Service Commission (Recruitment and Appointment) Regulations, 2015; National Police Service Commission (Promotion) Regulations, 2015

Brief facts:
The petitioners (except the 5th petitioner) served as police officers in the National Police Service (Service) at the rank of constable. The petitioners claimed that ordinary police constables served at the rank in job group F while graduate police constables (those who hold degree certificates) served at pay job group J in the pay structure maintained by the 1st respondent. The petitioners further claimed that upon graduating, constables submitted their degree certificates to the 1st and 2nd respondents to update the records and accordingly adjust their respective job group to J. The petitioners alleged that the 1st and 2nd respondents had been receiving degree certificates from graduate police officers in the service but had selectively and capriciously upgraded some and not others. The petitioners thus filed the instant petition

Issues:

  1. Whether the emplacement of police officers of the rank of graduate constable to different pay groups amounted to violation of their right to;
    1. fair remuneration,
    2. reasonable working conditions,
    3. fair labour practices, and
    4. equality and freedom from discrimination.
  2. What were the circumstances in which the doctrine of legitimate expectation could be applied?
  3. What were the conditions to be fulfilled before the doctrine of legitimate expectation could be applied?
  4. Whether the National Police Service Commission could emplace police constables holding a degree certificate to a special pay level. Read More..

Held :

  1. The pay slip for March 2016 for one graduate constable designated him as constable at total earnings of Kshs.35, 310.00. The same officer’s pay slip for April 2016 designated him as graduate police constable at total earnings of Kshs.100, 368.70. The same officer’s payslip for October 2018 designated him as graduate police constable at a total earning of Kshs.64, 350.00. The same unexplained variance in pay for the other pay slips exhibited was apparent. On the basis of those pay slips, the 1st and 2nd respondents had continued to emplace officers to pay designation of graduate constables and the emplacement had disadvantaged the petitioners in that regard.
  2. The emplacement on the graduate constable pay scale had continued to be undertaken long after the promulgation of the National Police Service Commission (Recruitment and Appointment) Regulations, 2015 and, the National Police Service Commission (Promotion) Regulations, 2015. To that extent, the 1st and 2nd respondents had acted unreasonably in contravention of article 47 of the Constitution, and further subjected the petitioners to unfair labour practices and unfair conditions of service in contravention of article 41 of the Constitution. The respondents had not established any justifiable reason for the discriminate application of the emplacement of graduate constables to the preferential pay group.
  3. While mentioning the degree qualification, the same was retained as a general consideration in the National Police Service Career Progression Guidelines, 2016 and it had not been explained how some of the officers were emplaced upon the graduate constable pay group while the guidelines were already in place. The unexplained discrepancies in the exhibited pay slips showed arbitrary application of the pay job group.
  4. The press statement by the 1st respondent’s chairperson, on a balance of probabilities, set out the 1st respondent’s prevailing policy on the graduate constables and the petitioners were entitled to benefit from the policy accordingly. The statement confirmed that the National Police Service Career Progression Guidelines, 2016(Guidelines); the National Police Service Commission (Recruitment and Appointment) Regulations, 2015 and, the National Police Service Commission (Promotion) Regulations, 2015 (Regulations) did not render the emplacement of constables being holders of degree certificates to pay level as that of inspectors of police with the obligation on the Service to subsequently train them towards substantive promotion to the rank of inspector of police job group J. The 1st respondent’s policies in that regard were substantially similar to the policy as conveyed in the letter DPM/1/1/10A/VOL.IV/26 dated January 26, 1995 with apparent variation that it applied to all constables whether the degree was acquired before or after joining the Service.
  5. The petitioners had established a legitimate expectation that constables holding degree certificates were to be emplaced upon the pay level for an inspector of police (job group J) and to be facilitated training by the Service or the Inspector General towards effective preparation and subsequent promotion to the substantive position of inspector of police. 
  6. A person could have a legitimate expectation of being treated in a certain way by an administrative authority even though there was no other legal basis upon which he could claim such treatment. The expectation could arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. In all instances the expectation arose by reason of the conduct of decision maker and was protected by the courts on the basis that principles of fairness, predictability and certainty should not be disregarded.
  7. In the instant case the petitioners had established a consistent past practice and confirmed in the press statement by the 1st respondent’s chairperson that the policy existed and applied. Further, the petitioners had satisfied the preconditions for legitimate expectation namely:
    1. there had to be an express, clear and unambiguous promise given by a public authority;
    2. the expectation itself had to be reasonable;
    3. the representation had to be one which it was competent and lawful for the decision maker to make; and
    4. there could not be a legitimate expectation against clear provisions of the law.
  8.  The emplacement of constables holding degree certificates to a graduate constable pay level equivalent to that of an inspector of police was  a clear promise by the Government in the 1995 letter and confirmed by the 1st respondent’s press statement, the expectation was reasonable as:
    1. it was consistent with motivation of officers and in the best interest of the Service that constables acquire further and relevant knowledge;
    2. the 1st respondent was the competent constitutional and statutory authority to make and implement the promise; and
    3. the promise for such emplacement had not been shown to contravene any statutory or constitutional provision.
  9. Emplacing constables holding degree certificates on the promised pay level could not be construed as undermining any of the Regulations and Guidelines. In any event, the policy being a decision by the 1st respondent, it stood on equal footing as the Guidelines and the Regulations which were all essentially promulgations by the same 1st respondent.
  10. Neither the Regulations nor the Guidelines had provided for payment or pay in specific circumstances. The emplacement on the special pay level for constables holding a degree certificate had not been overtaken by the regulations or guidelines. The 1st respondent within its constitutional and statutory powers and functions was authorised to and could emplace an officer on such pay level as would be lawful, necessary, and the same being personal to the officer or a category of officers as the circumstances of individual cases would warrant such emplacement.
  11.  Except for violations of article 47 of the Constitution on unreasonableness in the manner some of the officers had been awarded or denied the graduate constable pay level and the violation of article 41 of the Constitution on fair labour practice and fair remuneration and working conditions, the petitioners failed to establish the alleged violation of the other cited constitutional provisions. In particular the petitioners did not place before the Court material and submissions to establish violation of articles 27, 28, 40, and 43 of the Constitution. Discrimination on account of the grounds listed in article 27(4) of the Constitution was not established. In the circumstances the established violations were limited to provisions of articles 47 and 41(1) and (2) (a) and (b) of the Constitution.
  12.  The instant petition was about application of the pay level for graduate constables as already approved and applied in the Service. It was misconceived to invoke Teachers Service Commission v Kenya Union of Teachers (KNUT) & 3 Others [2015]eKLR, where the Court of Appeal held that the Salaries and Remuneration Commission’s advisory was mandatory in that case where the teachers’ new salaries had to be set or determined.

Petition partly allowed

  1. A declaration was issued that the respondents’ conduct and action amounted to denial, violation, infringement and/or threat to the fundamental rights and freedoms of graduate constable officers’ rights under articles 41(1) and (2) (a) and (b), and 47 of the Constitution of Kenya, 2010.
  2. A declaration was issued that graduate police officers who were university graduates on a salary scale below job group J and yet similarly qualified as graduate police officers in job group J were entitled to be emplaced to pay scale of graduate constables equivalent to pay of an inspector of police job group J and as per the 1st respondent’s policy as clarified in the press release by the chairperson on March 19, 2018.
  3. An order of mandamus was issued directed at the 1st and 2nd respondents to pay all graduate constables salaries equivalent to pay of an inspector of police job group J and as per the 1st respondent’s policy as clarified in the press release by the chairperson on March 19, 2018.
  4. The respondent to pay the costs of the petition for the 1st, 2nd, 3rd and 4th petitioners.
EMPLOYMENT LAW Whether a Class H entry permit issued under the Immigration Act (repealed) which allowed one to engage in and render professional services would be allowed to function under the Kenya Citizenship and Immigration Act

Five Forty Aviation Limited v Erwan Lanoe [2019] eKLR
Civil Appeal 55 of 2016
Court of Appeal at Nairobi
P N Waki, R N Nambuye and P O Kiage, JJA
May 10, 2019
Reported by Chelimo Eunice

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Employment Law - employment contracts - requirement for work permits -effect of lack of a work permit on a contract of service whose legitimate implementation expected being in possession of a work permit - who between an employer and employee was responsible for obtaining employee’s work permit under the Kenya Citizenship and Immigration Act -what was the effect of failure to comply - whether a Class H entry permit issued under the Immigration Act (repealed) which allowed one to engage in and render professional services in a profession other than that which was prescribed by law would be allowed to function under the Kenya Citizenship and Immigration Act - whether a person working in Kenya under a Class H entry permit was doing so illegally - whether an employment contract entered into on the basis of a Class H entry permit was legally enforceable - whether such a contract was frustrated by the repeal of the Immigration Act - Kenya Citizenship and Immigration Act, sections 45 & 53.
Contract Law - employment contracts - validity of a contract - what were the guidelines for determining rights and obligations of parties where one party pleaded illegality of contract as justification for refusal to be bound under such a contract - circumstances under which the doctrine of frustration of a contract operated to excuse further performance of a contract - what was the correct mode of terminating a frustrated contract.
Employment Law - employment contracts - termination of employment contracts - grounds for termination of employment contracts - unfair termination - what amounted to unfair termination of employment and what were the parameters for determining whether an employer acted in accordance with justice and equity in terminating an employee’s employment - considerations which courts take into account before determining appropriate remedy in employment disputes -Employment Act, sections 41, 43 & 45.

Brief facts:
The respondent, a French national, executed a contract of employment with the appellant dated June 15, 2010. The contract, among others, provided that either party could terminate the contract by giving the other party one month’s notice or payment of one month’s salary in lieu of notice. The contract ran for 4 years and 5 months before it was terminated by the appellant on November 13, 2013, precipitating the litigation resulting in the instant appeal. The respondent claimed that the appellant had unfairly and unlawfully terminated his contract of employment with them and alleged that possession of a Class H entry permit used by the appellant as a disqualification for the continued sustenance of his employment with them was a mere excuse.
The appellant opposed the claim, contending inter alia, that the Class H entry permit which the respondent held at the time the said contract was executed did not authorize him to be employed as such by the appellant; that the contract executed between them was therefore illegal, null, void and untenable in law and the appellant was therefore in the circumstances entitled to terminate the same.
The trial court allowed the respondent’s claim and found the appellant liable for the unfair/unlawful termination of the respondent’s contract of employment. Being dissatisfied with the decision, the appellant filed the instant appeal blaming the trial court for enforcing an illegal contract and failing to properly appreciate and apply the law to the facts of the case and thereby arrived at a wrong conclusion on the matter.

Issue:

  1. Whether a Class H entry permit issued under the Immigration Act (repealed) which allowed one to engage in and render professional services in a profession other than that which was prescribed by law would be allowed to function under the Kenya Citizenship and Immigration Act.
    1. Whether a person working in Kenya under such a permit was doing so illegally.
    2. Whether an employment contract entered into on the basis of the permit was legally enforceable.
    3. Whether such a contract was frustrated by the repeal of the Immigration Act.
  2. Who between an employer and employee was responsible for obtaining employee’s work permit under the Kenya Citizenship and Immigration Act and what was the effect of failure to comply?
  3. What was the effect of absence of a work permit on a contract of service whose legitimate implementation expected being in possession of a work permit, yet the contract made no provision for mandatory possession of a work permit?
  4. What were the guidelines for determining rights and obligations of parties where one party pleaded illegality of contract as justification for refusal to be bound under such a contract?
  5. What were the circumstances under which the doctrine of frustration of a contract operated to excuse further performance of a contract?
  6. What amounted to unfair termination of employment and what were the parameters for determining whether an employer acted in accordance with justice and equity in terminating an employee’s employment?
  7. What considerations did courts take into account before determining appropriate remedy in employment disputes?
  8. What were the principles that guided appellate courts in determining whether to interfere with an award by a trial court in the exercise of its discretion? Read More

Relevant Provisions of the Law
Kenya Citizenship and Immigration Act
Section 45(2);
It shall be the duty of every employer to apply for and obtain a work permit or a pass conferring upon a foreign national the right to engage in employment before granting him employment and it shall be presumed that the employer knew at the time of the employment that such person was among those referred to in section (1).

Section 45 (6);
A person who contravenes the provision of this section commits an offence.

Section 53(1): General offences;
(1) a person who-

(m); Not being a citizen of Kenya, engages in any employment, occupation, trade, business or profession, whether or not for profit or reward, without being authorized to do so by a work permit, or exempted from this provision by regulations made under this Act.
(n); Employs any person, whether or not for reward, whom he knew or has reasonable cause to believe is committing an offence under paragraph (m) by engaging in that employment.

Held :

  1. The respondent, a French national, needed to comply with the prerequisites in the immigration law as applicable then before he could engage in any business or employment in Kenya. The immigration law applicable then was the Immigration Act (repealed). The Class H entry permit on the basis of which the respondent executed the said contract authorized him to engage in and render professional services in a profession other than that which was prescribed by law. Under section 2 of the Immigration Act (repealed), prescribed meant that which had been prescribed by the Regulations made under the Act.
  2. Regulations under the Immigration Act (repealed), did not mention any prescribed profession. It, therefore, followed that the respondent, as a professional pilot engaged in the profession of training pilots and flying planes in the aviation industry in Kenya for a period of 23 years out of the 25 years of his service in the civil aviation industry was not engaged in a prescribed profession.
  3. The respondent had practiced that profession under the banner of M/S Higher Power Services Limited (the company), in which he was both a director and a 50% shareholder. The memorandum/articles of association of the company demonstrated that the company was engaged in the provision of management, consultancy and training services and also working in the aviation industry which included the training of pilots for the appellant as well as the flying of the appellant’s aeroplanes, the very task for which the appellant had engaged him to perform under the contract.
  4. Regarding to the binding nature of a contract executed willingly by the parties,it was ordinarily no part of equity’s function to allow a party to escape from a bad bargain, save for those special cases where equity would be prepared to relieve a party from a bad bargain. It was not the business of courts to rewrite contracts between parties. They were bound by the terms of their contracts, unless coercion, fraud or undue influence were pleaded and proved.
  5. The contract executed by the parties was lawful as it complied with sections 9 and 10 of the Employment Act, 2007. Its execution was not preconditioned on the production of a valid work permit issued under the then prevailing immigration law. The Class H entry permit that the respondent had obtained at the time of his engagement by the appellant authorized him to be engaged as a professional pilot for purposes of training the appellant’s pilots and also to fly the appellant’s aeroplanes in his capacity as a pilot/chief pilot. In the result, the contract executed between the parties was not illegal, null and void but valid and binding on the disputing parties. Its unfair and unlawful breach was therefore enforceable.
  6. No renewal permit was exhibited by the respondent, but he informed the court that it was available and could be availed if required. The appellant did not, however, insist on its production before the respondent closed his case. That notwithstanding, by the time the entry permit expired on November 10, 2011, the applicable immigration law had changed. The Kenya Citizenship and Immigration Act (KCIA) assented to on August 27, 2011 and which commenced operation on August 30, 2011 was by then the applicable law. Section 45 (2) of KCIA placed an obligation on the appellant as the respondent’s employer, to obtain a work permit for him.
  7. Default in complying with section 45(2) of KCIA rendered a contract amenable to the sanctions provided for in sections 45 (6), 53(m) and (n) of KCIA. The need for a work permit was a statutory provision whose satisfaction was necessary towards legitimate implementation of the contract of service. In absence of express contractual provision making lack of the permit as frustrating the contract, the absence of the permit by itself, did not bar the parties from pursuing their respective rights and obligations under the contract of employment one way or the other.
  8. Guidelines when determining rights and obligations of parties where one party pleaded alleged illegality of the contract as justification for refusal to be bound under such a contract included:-
    1. No person could claim any right or remedy whatsoever under an illegal transaction in which he/she had participated. A court was bound to veto the enforcement of a contract once it knew that it was illegal whether that knowledge came from the statement of the guilty party or from outside.
    2. If the statute prohibited the contract, it was unenforceable whether the parties meant to break the law or not.
    3. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of the contract or transaction which was illegal, if the illegality was duly brought to the notice of the court, and if the person invoking the aid of the court was himself implicated in the illegality. It matters not whether the defendant had pleaded the illegality or whether he had not. If the evidence adduced by the plaintiff proved the illegality, the court ought not to assist him.
    4. No court ought to enforce an illegal contract where the illegality was brought to its notice and if the person invoking the aid of the court was himself implicated in the illegality.
    5. In order for the doctrine to act as a defence to the claim, there had to be illegal performance of the contract by one party to the contract and knowledge that illegal performance and participation in it by the other party to the contact.

    Applying the above guidelines to the instant appeal, the appellant’s failure to comply with the prerequisites in section 45 (2) of KCIA did not render the said contract illegal, but gave rise to intervening circumstances which rendered the continued sustenance of the said contract as initially executed between the parties impossible. That was what was termed as frustration of a contract.

  9. The doctrine of frustration of a contract operated to excuse further performance where it appeared from the nature of the contract and the surrounding circumstances that the parties had contracted on the basis that some fundamental thing or state of things would continue to exist; or that some particular person would continue to be available; or that some future event which formed the foundation of the contract would take place, and before breach performance became impossible or only possible in a very different way to that contemplated without default of either party and owing to a fundamental change of circumstances beyond the control and original contemplation of the parties. The mere fact that a contract had been rendered more onerous did not of itself give rise to frustration.
  10. Frustration occurred whenever the law recognized that without the default of either party a contractual obligation had become incapable of being performed because the circumstances in which the performance was called for rendered it a thing radically different from that which was undertaken by the contract. The contract executed on June 16, 2010 was frustrated by the appellant’s default to comply with the section 45(2) of KCIA procedures.
  11. Since the contract had been frustrated by the appellant’s default to comply with the section 45(2) of KCIA procedures, parties to a frustrated contract had recourse to the contract itself. The contract made provision at clause 9 whereby either party could terminate the contract by giving the other one month’s notice or one month’s salary in lieu thereof. The appellant had an opportunity to have recourse to the said clause to terminate the frustrated contract. Alternatively, since the contract was executed in compliance with the provisions of the Employment Act, the appellant as the employer also had an opportunity to invoke sections 41, 43 and 45 of the Employment Act procedures to terminate the frustrated contract.
  12. Section 45 of the Employment Act made provision inter alia that no employer should terminate the employment of an employee unfairly. A termination of an employee would be deemed to be unfair if the employer failed to prove that the reason for the termination was valid; that the reason for the termination was a fair reason and that the same was related to the employee’s conduct, capacity, compatibility or alternatively that the employer did not act in accordance with justice and equity.
  13. The parameters for determining whether the employer acted in accordance with justice and equity in determining the employment of the employee were inbuilt in the said section 45 of the Employment Act. In determining either way, the adjudicating authority was enjoined to scrutinize the procedure adopted by the employer in reaching the decision to dismiss the employee; the communication of that decision to the employee and the handling of any appeal against the decision. Also not to be overlooked was the conduct and capability of the employee up to the date of termination, the extent to which the employer had complied with the procedural requirements under section 41 of the Employment Act, the previous practice of the employer in dealing with the type of circumstances which led to the termination and the existence of any warning letters issued by the employer to the employee.
  14. Section 41 of the Employment Act enjoined the employer, in mandatory terms, before terminating the employment of an employee on grounds of misconduct, poor performance or physical incapacity to explain to the employee in a language that the employee understood the reasons for which the employer was considering to terminate the employee’s employment with them. The employer was also enjoined to ensure that the employee received the said reasons in the presence of a fellow employee or a shop floor union representative of own choice and to hear and consider any representations which the employee would advance in response to allegations levelled against him by the employer.
  15. The appellant’s failure to either invoke the binding clause 9 procedures in the contract itself or alternatively to invoke the sections 41, 43 and 45 procedures in the Employment Act rendered the termination of the respondent’s contract with them not only unfair but also unlawful.
  16. The items allowed by the trial court of the value of the notice, entitlement to accrued overtime/incentive payments and the undisputed thirteen days worked, were all well founded both on the facts and the law and were all affirmed. The appeal against those items was dismissed.
  17. On compensation for the unfair unlawful termination of the contract, section 49 of the Employment Act made provision for a wide range of remedies. The prescribed remedies were discretionary rather than mandatory remedies, to be granted on the basis of the peculiar facts of each case. That was made clear by the use of the word may, which in the context of the provision imported a discretionary rather than a mandatory meaning.
  18. The remedies were not mandatory remedies and that was made even clearer by section 49(4) of the Employment Act which set out some 13 considerations which the court had to take into account before determining what remedy was appropriate in each case. Those considerations included;
    1. the wishes of the employee;
    2. the circumstances of the termination and the extent to which the employee caused or contributed to it;
    3. the practicability of reinstatement or re-engagement;
    4. the common law principle that an order for specific performance of a contract for service ought not be made save in exceptional cases;
    5. the employee’s length of service with the employer;
    6. the employee’s reasonable expectation of the length of time the employment was to last but for the termination;
    7. the employee’s opportunities for securing comparable or suitable employment;
    8. any conduct of the employee that would have caused or contributed to the termination; and
    9. any action on the part of the employee to mitigate his loses, among others.
  19. Appellate courts would not interfere with a discretionary decision of the trial court simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the trial court to the various factors in the case. An appellate court was only entitled to interfere if one or more of the following matters were established:
    1. that the trial court misdirected itself in law;
    2. that the trial court misapprehended the facts;
    3. that the trial court took account of considerations of which it should not have taken account of;
    4. that the trial court failed to take account of considerations of which it should have taken account of, or
    5. that the trial court’s decision, albeit a discretionary one, was plainly wrong.
  20. The respondent had been fully compensated for the other items complained of. An award of 8 months’ salary compensation for the unfair and unlawful termination of his contract with the appellant was on the high side. It was reduced to 5 months’ salary compensation which would not only be reasonable but also fair. To that extent only did the appeal succeed.

Appeal partially allowed; costs taxed against the appellant in the court and the trial court reduced by 1/4.

FAMILY LAW The Kadhi’s Court has no jurisdiction relating to the dissolution of a marriage where parties professed the Islamic faith but were married under customary law.

RMM v M a.k.a. JKM
Civil Appeal 3 of 2017
High Court at Malindi
W Korir, J
May 23, 2019
Reported by Beryl A Ikamari

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Family Law-divorce-customary law marriage-where parties married under customary law and converted to the Islamic faith without legally converting the marriage into an Islamic law marriage-whether the applicable law in a case relating to the dissolution of the marriage was customary law-Marriage Act, No 4 of 2014, sections 43(2) & 49(1);   Kadhis' Court Act, (Cap 11), section 5.
Jurisdiction-jurisdiction of the Kadhi's Court-jurisdiction in relation to the dissolution of a marriage-where parties professed the Islamic faith but were married under Kamba customary law-whether under those circumstances the Kadhi's Court had jurisdiction to pronounce a divorce-Marriage Act, No 4 of 2014, sections 43(2) & 49(1);   Kadhis' Court Act, (Cap 11), section 5.

Brief facts:
At the Kadhi's Court, the appellant sought a registration of divorce against the respondent and the execution of the incidentals and consequences of the divorce. The Kadhi's Court finding was that the appellant had not divorced the respondent and that desertion to not lead to an automatic divorce in Islamic law. The Kadhi's Court also found that the appellant owed the respondent a dowry balance of Kshs. 122, 000/= and that it had no jurisdiction to deal with the matrimonial property.
The appellant filed a High Court appeal against the Kadhi's Court decision. The appellant stated that the marriage was a Kamba customary law marriage and that under that law, grounds for dissolution of the marriage, including adultery and desertion, had been established. The appellant added that in finding that the marriage was still in existence, the Kadhi's Court considered irrelevant factors and left out relevant factors and the decision violated the parties' freedom of association, human dignity and right to family as provided by the Constitution. The appellant sought, inter alia, the setting aside of the Kadhi's Court decision, the dissolution of the marriage, a declaration that the appellant did not owe the respondent dowry and the Kadhi's Court had no jurisdiction to make a determination on the dowry and an order that the respondent did not have matrimonial property rights relating to plot No. 183 Mpeketoni.

Issues:

  1. Whether the Kadhi's Court had jurisdiction to determine questions related to divorce and matrimonial property where the parties were married under customary law and thereafter converted to the Islamic faith.
  2. What was the applicable law in a situation where parties entered into a customary law marriage and thereafter converted into the Islamic faith without legally converting their marriage into an Islamic law marriage? Read More...

Held:

  1. As the Appellate Court of the first instance, the Court's role was to re-evaluate, re-assess and re-analyze the evidence tendered at the trial in order to reach its own independent conclusion.
  2. The parties entered in a Kamba customary law marriage in 1986. Dowry was partially paid to the respondent's parents and a balance of Kshs. 122, 000/-= remained unpaid.
  3. The applicable law, under the circumstances, would determine the question relating to the jurisdiction of the Court. Jurisdiction was everything and without it a court had no power to make one more step and would down its tools.
  4. The parties converted to the Islamic faith in 1994, eight years after their marriage. There was no evidence that the marriage was converted into an Islamic law marriage as no ceremony was performed as required under section 49(1) of the Marriage Act, 2014.
  5. The existence of the Kamba customary law marriage was not in doubt. Section 43(2) of the Marriage Act, 2014 provided that where payment of dowry was required to prove a marriage under customary law, the payment of a token amount of dowry was sufficient proof of a customary marriage.
  6. Section 5 of the Kadhis' Court Act provided for the jurisdiction of a Kadhi's Court. Under that provision, the Kadhi's Court had jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties professed the Muslim religion.
  7. While, at the time of the trial, the parties were of Islamic faith, their marriage was not celebrated in accordance with Islamic law as envisage under section 49(1) of the Marriage Act, 2014. Therefore, the Kadhi's Court lacked jurisdiction to determine questions related to the marriage and matrimonial property of the parties. The marriage fell under Kamba customary law and the Kadhi's Court lacked jurisdiction to pronounce a divorce.
  8. Change in the religion of a married couple would not convert a marriage into a marriage under the new religion. The parties had to take steps to ensure that the law was complied with. Converting a marriage from one type to another was a legal process unlike a change of religion where word of mouth was sufficient evidence of conversion.
  9. The marriage could be dissolved on grounds provided for in section 69 of the Marriage Act and by the Court vested with authority to dissolve a customary law marriage. That court was not the Kadhi's Court.
  10. Since the Kadhi's Court had no jurisdiction to handle the case, it also lacked jurisdiction to determine the issues raised by the parties. The proceedings before the Kadhi's Court were a nullity.

Appeal allowed.
Orders:-

  1. The proceedings and judgment before the Kadhi’s Court were quashed.
  2. Each party was to bear its costs.
CONSTITUTIONAL LAW Courts ought not to be used by investigating agencies as holding grounds for suspects while they were conducting investigations.

Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR
Constitutional Petition 6 of 2018
High Court at Machakos
G V Odunga, J
May 28, 2019
Reported by Kakai Toili

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Constitutional Law – fundamental rights and freedoms –rights of arrested persons – right to be released on bail or bond – limitation of the right of arrested persons to be released on bail or bond – where it was alleged that investigations were ongoing - what were the circumstances in which the liberty of a suspect ought to be denied on the ground that investigations were ongoing
Constitutional Law – constitutional petitions – role of courts in constitutional petitions - where a petitioner sought to challenge his prosecution - what was the role of courts in determining constitutional petitions where a petitioner sought to challenge his prosecution
Constitutional Law - Director of Public Prosecutions – powers of the Director of Public Prosecutions – institution of criminal proceedings - exercise of discretion in institution of criminal proceedings – interference with the exercise of discretion in institution of criminal proceedings by courts - what were the circumstances in which a court could interfere with the discretion of the Director of Public Prosecution to institute criminal proceedings – Constitution of Kenya, 2010 article 157; Office of the Director of Public Prosecutions Act, section 4

Brief facts:
In December 2017, while the petitioner was driving her motor vehicle within Kitui town, the 2nd respondent arrested the said vehicle and commandeered it to Kitui Police Station. It was averred that the 2nd respondent did not book the seizure and subsequent detention of it in the occurrence book. It was alleged that the petitioner was informed by her friend that three files involving foreign registered vehicles, one of which was hers were being taken to court. The petitioner further alleged that she then instructed her advocate to verify the information which was confirmed to be true as she had been charged vide Criminal Case Number 1392 of 2017.
The petitioner alleged that the 2nd respondent wanted to teach her a lesson for not paying him a bribe of Kshs 50,000/= to have the vehicle released from custody. The petitioner further alleged that no investigations were carried out and that no statement was taken from her. She further alleged that more than 2 months after the case was presented in court, there were no statements in the police file. It was contended that the decision by the 1st respondent to maintain the charge against the petitioner was a violation of the Constitution, and thus null and void.

Issues:

  1. What were the circumstances in which the liberty of a suspect ought to be denied on the ground that investigations were ongoing?
  2. What was the role of courts in determining constitutional petitions where a petitioner sought to challenge his/her prosecution?
  3. What were the circumstances in which a court could interfere with the discretion of the Director of Public Prosecution to institute criminal proceedings? Read More...

Relevant Provisions of the Law
Office of the Director of Public Prosecutions Act,
Section 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.

Held:

  1. In cases such as the instant case the Court ought to be extremely cautious in its findings so as not to prejudice the intended or pending criminal proceedings. In a petition such as the instant one, the Court ought not to transform itself into the trial court. In determining the issues raised, the Court would avoid the temptation to unnecessarily stray into the arena exclusively reserved for the criminal or Trial Court.
  2. The general rule in proceedings such as the instant one was that 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. Therefore, the mere fact that the intended or ongoing criminal proceedings were in all likelihood bound to fail, was not, on its own and without more, a ground for halting such proceedings by way of judicial review since judicial review proceedings were not concerned with the merits but with the decision making process.
  3. An applicant who contended that he had a good defence in the criminal trial ought to be advised to raise the same in his defence before the criminal trial instead of invoking the Court’s jurisdiction with a view to having the Court determine such an issue as long as the criminal process was being conducted bona fides and in a fair and lawful manner. However, if the applicant demonstrated that the criminal proceedings that the police intended to carry out constituted an abuse of process, the Court would not hesitate in putting a halt to such proceedings.
  4. Whereas the discretion given to the respondents to prosecute criminal offences was not to be lightly interfered with, that discretion had to be properly exercised and where the Court found that the discretion was being abused or was being used to achieve some collateral purposes which were not geared towards the vindication of the commission of a criminal offence such as with a view to forcing a party to submit to a concession of a civil dispute, the Court would not hesitate to bring such proceedings to a halt.
  5. A constitutional petition challenging prosecution did not deal with the merits of the case but only with the process. The Court in such proceedings was mainly concerned with the question of fairness to the petitioner in the institution and continuation of the criminal proceedings and once the Court was satisfied that the same were bona fides and that the same were being conducted in a fair manner, the Court ought not to usurp the jurisdiction of the trial court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. However, where  it was clear that there was no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the court process by the prosecution.
  6.  The Court could in cases where the threshold was met interfere with a criminal process, that was clear from a strict reading of section 4 of the Office of the Director of Public Prosecutions Act, which provided the factors which the DPP was required to take into account in making a decision whether or not to embark on a prosecution. The discretion and powers given to the DPP under article 157 of the Constitution could not be said to be unfettered. Therefore, the Court was perfectly entitled in appropriate cases to interfere with the decision of the DPP to commence and proceed with prosecution. Such cases included where the criminal prosecution was being instituted to achieve collateral purposes such as where the officers investigating or prosecuting the matter used the prosecution to extract some personal benefits from the petitioner.
  7. The allegation that the 2nd respondent was using the criminal case to teach the petitioner a lesson for refusing to give in to his demands for a bribe had not been challenged by the 2nd respondent. Further, the allegations that there was no investigation that had been undertaken at all in the matter and that those who ought to have been the complainants in the matter were not aware of and had not lodged any complaint against the petitioner had not been controverted at all by the respondents. Criminal proceedings ought not to be instituted simply to appease the spirits of the public yearning for the blood of its perceived victims. Kenya was a country governed by the rule of law and any action had to be rooted in the rule of law rather than on some perceived public policy or dogmas. The former had been branded an unruly horse, and when you got astride it, you never knew where it would carry you.
  8.  A criminal prosecution which was commenced in the absence of proper factual foundation or basis was always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there had to be in existence material evidence on which the prosecution could say with certainty that they had a prosecutable case. A prudent and cautious prosecutor had to be able to demonstrate that he had a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution would be malicious and actionable.
  9. Crimes had to be punished and a proved criminal had to be dealt with expeditiously and decisively. A judicial system that was so porous that permitted a criminal to go scot-free was not worthy of its name. However, the process of arriving at the decision whether a person had committed a crime had to, in the words of article 47 of the Constitution, be expeditious, efficient, lawful, reasonable and procedurally fair; anything less than that would not do.
  10. Courts could not interfere with the exercise of the mandate of the DPP unless it could be shown that under article 157(11) of the Constitution that;
    1. he had acted without due regard to public interest,
    2. he had acted against the interests of the administration of justice,
    3.  he had not taken account of the need to prevent and avoid abuse of court process.
  11. To arrest anyone with a view to ensure that the person did not get access to constitutional redress with respect to the right to access bail amounted to abusing the legal process. It was neither in the public interest nor in the interest of administration of justice to resort to unconstitutional methods under the guise of fighting crime. Crime had to be fought and had to be fought with the vigour it deserved and Kenyans expected nothing less. However, the fight had to be strictly within the rule of law.
  12.  The police and the prosecutors had to not exercise their powers with a view to extracting revenge or maliciously. To effect an arrest of a citizen after hours on a Friday in order to avoid arraigning him in court till after he had spent a number of days in custody without any justification for doing so amounted to abuse of power. The practice that was ominously gaining ground in Kenya otherwise infamously known as kamata kamata Friday arrests whereby suspects were deliberately arrested on Fridays and kept in police custody over the weekend should not be permitted to take root. To do so amounted to chipping away at the democratic gains achieved in Kenya since the promulgation of the Constitution. It would in effect take Kenya back to the dark days when suspects faced frivolous capital charges aimed at unlawfully incarcerating them with a view to achieving extraneous objectives, thereby unjustifiably denying them of their liberty. The attempt to claw back at non-existent powers ought to be restricted at all costs by the courts which were the temples of justice.
  13. The Court had a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system. In interpreting the Constitution, the Court had to uphold and give effect to the letter and spirit of the Constitution, ensuring that the interpretation was in tandem with aspirations of the citizenry and modern trend.
  14. The Court’s role as sentinels of fundamental rights and freedoms of the citizen which were founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, the Court had to eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent sentinels of personal liberty, the Court had to enforce the bill of rights in the Constitution where violation was proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.
  15. It was only in exceptional circumstances where there was evidence preferably by way of sworn affidavit that the liberty of a suspect ought to be denied on the ground that investigations were ongoing. Courts ought not to be used by investigating agencies as holding grounds for suspects while they were conducting investigations. Ordinarily suspects ought only to be brought to court after investigations were finalized in which event the only issues that could fall for determination were the conditions for release of the suspects.
  16. In exercising their discretion to charge a person both the police and the DPP’s office had to take into account and had to exercise the discretion on the evidence of sound legal principles. Therefore, the police were expected to be professional in the conduct of their investigations and ought not to be driven by malice or other collateral considerations. The mere fact that a complaint was lodged did not justify the institution of a criminal prosecution. The law enforcement agencies were required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words, the police or any other prosecution arm of the Government was not a mere conduit for complainants.
  17. The police had to act impartially and independently on receipt of a complaint and were expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. The mere fact that the version of one of the parties was not considered was not necessarily fatal to the prosecution. However, adopting an equivocal approach to investigations by deliberately denying a suspect an opportunity to put forward his version before a person was arraigned in court amounted to maladministration of justice.
  18. Where exculpatory evidence was presented to the police in the course of investigation and for some reasons known to them they deliberately decided to ignore the same, one could be justified in concluding that the police were driven by collateral considerations other than genuine vindication of the criminal judicial process. Neglect to make a reasonable use of the sources of information available before instituting proceedings could therefore be evidence of malice and hence abuse of discretion and power.
  19. The right forum to deal with a situation where what was alleged was insufficiency of evidence was the trial court. In a situation where the evidence to be adduced did not disclose an offence, it would amount to an abuse of the criminal process to subject the applicant to such a process. Criminal process ought to be invoked only where the prosecutor had a conviction that he had a prosecutable case. Whereas he did not have to have a full proof case, he ought to have in his possession such evidence which if believable could reasonably lead to a conviction.  He did not have to have evidence which disclosed a prima facie case under section 210 of the Criminal Procedure Code since a decision as to whether a prima facie case was disclosed was a jurisdiction reserved for the trial court. He however had to have evidence which satisfied him that his was a case which ought to be presented before a trial court. He had to therefore consider both incriminating and exculpatory evidence in arriving at discretion to charge the accused. Unless that standard was met, the court could well be entitled to interfere with the discretion of the prosecutor since that discretion was not absolute.
  20. In the instant case it could not be said whether the charge sheet exhibited did not disclose a known offence. However, neither the complainant, assuming he existed, nor the investigator had sworn any affidavit showing the basis upon which the charges against the petitioner were preferred. A criminal prosecution which was commenced in the absence of proper factual foundation or basis was always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there had to be in existence material evidence on which the prosecution could say with certainty that they had a prosecutable case. A prudent and cautious prosecutor had to be able to demonstrate that he had a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution would be malicious and actionable.
  21. The burden was on the prosecutor to show by way of admissible evidence that he was in possession of material that disclosed the existence of a prosecutable case since a prosecution was not to be made good by what it turned up. It was good or bad when it started. The prosecution of the petitioner could not be permitted to proceed in the hope that something positive could come out of it. The prosecution had to show upfront that it had a prosecutable case based on the investigations conducted upon a complaint lodged with those who were empowered to do so unless it was shown that the matter was in the public domain and result from investigations unearthed material upon which the prosecution reasonably believed that it could successfully mount a prosecution. In the instant case there was no such material. There was no material placed before the Court on the basis of which the Court could award damages or compensation.

Petition allowed
Orders

  1. A declaration was issued that the charging of the petitioner in Criminal Case number 1392 of 2017 contravened the Constitution and was therefore null and void. Accordingly, those proceedings were quashed and the respondents prohibited from continuing therewith.
  2.  A declaration was issued that the 2nd respondent had no lawful authority to seize and detain the petitioner’s motor vehicle.
  3. A mandatory injunction was issued directing the 2nd respondent to release the petitioner’s motor vehicle.
  4. Costs of the petition awarded to the petitioner.

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