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Supreme CourtAllowedPetition 38 of 2019

Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others

Supreme Court of Kenya
16 July 2021
Philomena Mbete MwiluP M MwiluMohammed Khadhar IbrahimM K IbrahimSmokin Charles WanjalaS C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI Lenaola
9,519 words in judgment
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AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Criminal prosecution cannot be used to pressure a civil settlement, especially after an unreasonable delay.

What this practically means

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The Supreme Court of Kenya stopped a criminal case that was filed 24 years after a property dispute. The court found the prosecution was an abuse of process because it was meant to force the accused to settle a related civil case. The High Court was right to halt it, as the delay and lost evidence violated the right to a fair trial. The DPP's powers are not absolute and can be checked by the courts.

Executive summary

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The Supreme Court unanimously allowed the appellant's appeal against the Court of Appeal's decision, which had set aside the High Court's orders prohibiting the criminal prosecution of the appellant. The case arose from a 1991 conveyancing transaction for a parcel of land in Nairobi's Upperhill area. The appellant paid a deposit of Kshs 10 million and obtained the title deed, which he used to secure loans. Twenty-four years later, in 2015, the 2nd and 3rd respondents alleged fraud and lodged a complaint, leading to criminal charges against the appellant in 2016. The High Court (Odunga J) granted orders of certiorari and prohibition, finding that the 24-year delay and loss of crucial documents would violate the appellant's right to a fair trial under Article 50 of the Constitution. The Court of Appeal reversed this decision, holding that the High Court had interfered with the DPP's prosecutorial mandate. The Supreme Court identified four issues for determination: jurisdiction under Article 163(4)(a), whether the delay infringed the appellant's rights, whether the High Court exceeded its jurisdiction, and appropriate reliefs. The Court held that it had jurisdiction as the appeal involved constitutional interpretation of Articles 50 and 157. On the merits, the Court found that the 24-year delay, combined with the loss of documentary evidence and the use of criminal process to force the appellant's hand in a related civil dispute, violated the right to a fair trial. The Court further held that the High Court acted within its mandate under Article 165(3)(d)(ii) as read with Article 157(11) to stop an abusive prosecution. The Court set aside the Court of Appeal's judgment and reinstated the High Court's orders, awarding costs to the appellant against the 1st, 2nd and 3rd respondents only.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there is a right of appeal to this court following the decision of the Court of Appeal under article 163(4)(a) of the Constitution
  2. 2.Whether the inordinate delay in instituting the intended prosecution of the appellant would infringe his rights and freedoms under articles 19,20,27 and 50 of the Constitution
  3. 3.Whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions contrary to article 157 of the Constitution
  4. 4.What are the appropriate reliefs?

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal challenging the Court of Appeal's decision on the right to a fair trial and the DPP's mandate.

Holding

The Supreme Court has jurisdiction under Article 163(4)(a) because the appeal raises questions of constitutional interpretation and application, specifically regarding Articles 50 and 157 of the Constitution, which were canvassed in the superior courts below.

Reasoning

The court applied the test from Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 others, requiring that the appeal raise a question of constitutional interpretation or application that has progressed through the normal appellate mechanism. The issues before the High Court and Court of Appeal related to the appellant's claim of an unfair trial under Article 50 and alleged abuse of power by the DPP under Article 157. These issues were squarely before the Supreme Court, having been the subject of determinations by the superior courts below.

p. 14
02

Whether the 24-year delay in instituting criminal proceedings against the appellant infringed his right to a fair trial under Article 50 of the Constitution.

Holding

The 24-year delay, combined with the loss of crucial documentary evidence and the use of criminal process to force the appellant's hand in a civil dispute, violated the appellant's right to a fair trial under Article 50 of the Constitution.

Reasoning

The court noted that while there is no limitation period for instituting criminal proceedings, the delay must be reasonable. Here, the documentation necessary to prove the alleged fraud may no longer be available, and both parties admitted the same issues were pending in a civil court. The 2nd and 3rd respondents received part payment for the suit property but waited 24 years to complain, using the criminal process to force the appellant's hand. This fatally tainted the fairness of the prosecution. The court agreed with the High Court that the prosecution was in breach of the right to a fair trial under Article 25(c) as read with Article 50.

p. 18
03

Whether the High Court exceeded its jurisdiction by interfering with the DPP's prosecutorial mandate under Article 157 of the Constitution.

Holding

The High Court did not exceed its jurisdiction; it acted within its mandate under Article 165(3)(d)(ii) as read with Article 157(11) of the Constitution to curtail a prosecution that amounted to an abuse of the legal process.

Reasoning

The court held that while the DPP has independent prosecutorial powers under Article 157, those powers are subject to Article 157(11), which requires the DPP to 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. Where these expectations are not met, the High Court under Article 165(3)(d)(ii) can properly interrogate the matter and make appropriate orders. The court found that the DPP's decision to prosecute was tainted by malice and an ulterior motive to aid the civil case, and the High Court was well within its mandate to stop it.

p. 21
04

Whether the institution of concurrent civil and criminal proceedings arising from the same transaction constitutes an abuse of process.

Holding

Instituting civil proceedings claiming title documents were lost while simultaneously pursuing criminal proceedings claiming the same documents were in the appellant's possession is an expression of mischief and dishonesty, and such conduct brings the criminal justice system into disrepute.

Reasoning

The court noted that the 2nd and 3rd respondents had instituted Civil Suit No 132 of 2015 at the ELC claiming title documents were lost, while also pursuing criminal charges against the appellant for using those same documents. The court found this contradictory and dishonest. While section 193A of the Criminal Procedure Code allows concurrent civil and criminal proceedings, it cannot be invoked to aid an unlawful course of action where the criminal process is used to force a settlement in the civil case. The court adopted the reasoning from Commissioner of Police v Kenya Commercial Bank that using criminal process as a pawn in civil disputes is unconscionable.

p. 19

Legal principles established

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  • Criminal proceedings cannot be used to force a settlement in a civil dispute.
  • The High Court can stop a prosecution that abuses the legal process, even if the DPP initiated it.
  • An unreasonable delay in bringing criminal charges can violate the right to a fair trial under Article 50.
  • The DPP must act without malice and in the public interest; failure to do so allows court intervention.
  • Section 193A of the Criminal Procedure Code does not protect malicious prosecutions.

Court orders

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  1. 1.The entire Judgment of the Court of Appeal sitting at Nairobi delivered on July 19, 2019 in Nairobi Civil Appeal No 43 of 2017 and Civil Appeal No 48 of 2018 be set aside and the judgment and orders of the High Court in Miscellaneous Application No 78 of 2016 delivered by Honourable Mr Justice Odunga on January 11, 2017 be reaffirmed.
  2. 2.The costs of this appeal and costs of proceedings in this court, the Court of Appeal and in the High Court be awarded to the appellant herein in any event as against the 1st, 2nd and 3rd respondents only.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P M MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 43 of 2017 and Civil Appeal No 48 of 2018 (consolidated)
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The entire Judgment of the Court of Appeal sitting at Nairobi delivered on July 19, 2019 in Nairobi Civil Appeal No 43 of 2017 and Civil Appeal No 48 of 2018 be set aside and the judgment and orders of the High Court in Miscellaneous Application No 78 of 2016 delivered by Honourable Mr Justice Odunga on January 11, 2017 be reaffirmed.
p. 22 Final orders reversing the Court of Appeal and reinstating the High Court's decision
The costs of this appeal and costs of proceedings in this court, the Court of Appeal and in the High Court be awarded to the appellant herein in any event as against the 1st, 2nd and 3rd respondents only.
p. 22 Costs order
all the evidence before us points to the fact that the documentation necessary to prove the alleged fraud may no longer be available and we agree with the learned Judge of the High Court that, where both parties have admitted that the same issues are also pending resolution in another court, and that the issue of lost documentation remains unresolved, it would be most unfair to subject the appellant to a criminal trial, 24 years after the impugned transaction
p. 18 Delay and loss of evidence rendering a fair trial impossible
where it is obvious to a court, as it is to us and was to the learned Judge of the High Court, that a prosecution is being mounted to aid proof of matters before a civil court or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then section 193A of the Criminal Procedure Code cannot be invoked to aid that unlawful course of action
p. 19 Abuse of process: using criminal proceedings to aid a civil case
The learned judge of the High Court, in our view, was well within his mandate under article 165(3)(d)(ii) as read with article 157(11) of the Constitution to curtail the appellant's prosecution and the DPP'S powers have not in any way been interfered with, outside the constitutional mandate conferred on the High Court
p. 21 High Court's jurisdiction to review DPP's prosecutorial decisions

Key timeline

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1997 (approx)
Transaction involving the suit property that later led to the dispute.
2016
Criminal proceedings instituted against the appellant after a 24-year delay.
2017-01-11
High Court (Odunga J) stops the prosecution, finding it an abuse of process.
2019-07-19
Court of Appeal reverses the High Court, allowing the prosecution to proceed.
2021
Supreme Court allows the appeal, reinstates the High Court order, and sets aside the Court of Appeal judgment.

Practical implications

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For lawyers

New grounds to stay criminal proceedings

This ruling strengthens arguments for staying criminal proceedings where they are clearly intended to pressure a client in a civil case. Use the 24-year delay and loss of evidence as key factors. The High Court now has clear authority to intervene under Article 165(3)(d)(ii). Consider filing a preliminary objection or constitutional petition early.

For businesses

Criminal complaints cannot be used as leverage

If you are a business facing a criminal complaint related to a commercial dispute, especially after a long delay, you can challenge it as an abuse of process. The court will look at whether the complaint is meant to force a settlement. Document any evidence of the complainant's inaction and any civil proceedings on the same issue.

For individuals

Protection from delayed prosecutions

If you are accused of a crime many years after the event, and the accuser is also suing you in civil court, you may have a strong case to stop the criminal case. This judgment says the delay plus the ulterior motive of forcing a settlement violates your right to a fair trial. Seek a lawyer to file a constitutional petition in the High Court.

Frequently asked questions

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Can criminal and civil proceedings run at the same time in Kenya?+

Yes, they can run concurrently under Section 193A of the Criminal Procedure Code. However, this case shows that if the criminal case is being used to unfairly pressure someone in the civil case, the High Court can stop it.

What happens if the police delay filing charges for many years in Kenya?+

A long delay can violate your right to a fair trial. The court will consider whether the delay was unreasonable and if it prejudiced your ability to defend yourself. In this case, a 24-year delay was enough to stop the prosecution.

Can the High Court stop a prosecution in Kenya?+

Yes, the High Court can stop a prosecution if it is an abuse of the legal process. This is based on Article 165(3)(d)(ii) of the Constitution, which gives the court power to check the DPP's actions if they are not in the public interest.

What is the role of the Director of Public Prosecutions in Kenya?+

The DPP has independent power to prosecute, but must consider the public interest and avoid abuse of process. The courts can review the DPP's decisions if they are tainted by malice or used to achieve ulterior motives.

Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others", Case Analysis (2021). Petition 38 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/32/eng@2021-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.