Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Nairobi) from High Court Petition No. 218 of 2011· [2013] KECA 182 (KLR)

Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others (Civil Appeal 56 of 2012) [2013] KECA 182 (KLR)

Court of Appeal of Kenya
18 October 2013
3,739 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed courts can stop criminal investigations being misused to gain leverage in a purely civil dispute.

What this practically means

#

Executive summary

#
This Court of Appeal judgment arises from the long-running dispute between Kenya Commercial Bank, Benjoh Amalgamated Limited and Muiri Cofiee Estate Limited over a 1989 loan secured by charges over two properties. After a complaint by the company, the CID issued requisitions dated 27th October 2011, purportedly under section 22 of the Police Act, requiring two senior bank officials to attend CID Headquarters. The bank and its employees petitioned the High Court (Majanja, J) in HC Petition No. 218 of 2011, arguing that the requisitions violated their right to a fair trial under article 50 of the Constitution and were an abuse of process. The High Court declared the investigations a threat to the bank's right to a fair trial and restrained the CID from investigating, summoning or arresting the bank's employees. The Commissioner of Police, the DCI and the Attorney General appealed on grounds including res judicata and the permissibility of concurrent civil and criminal proceedings. The Court of Appeal framed two issues: whether the petition was res judicata, and whether a court can prohibit police investigations. It found that the res judicata plea failed because the appellants did not demonstrate that the matters had been determined on merit in prior suits. On the principal issue, the Court reaffirmed that police investigations should not ordinarily be interfered with before completion and charging, but the court has inherent power to stop investigations that are oppressive, vexatious, in bad faith or for an ulterior purpose. Holding that the interested parties were using the criminal process to resolve a purely civil dispute, the Court saw no reason to disagree with the High Court and dismissed the appeal with costs.

Key legal issues

#
01

Whether the High Court petition was res judicata the earlier judicial review applications

Holding

The Court could not determine the plea of res judicata because the appellants, who raised it, failed to demonstrate that the matters in issue had been determined on merit in a previous suit by a competent court; the petition and the JR applications shared only the parties.

Reasoning

Section 7 of the Civil Procedure Act requires that the matter in issue have been directly and substantially in issue in a former suit between the same parties and been heard and finally determined on merit by a court of competent jurisdiction. The appellants produced only orders showing one JR application was withdrawn with costs and the other dismissed with costs; without the details of what was determined, an appellate court cannot find res judicata. Withdrawal, in particular, is not a determination on merit.

p. 5
02

Whether a court can prohibit the police from conducting investigation into an alleged crime

Holding

Courts must not ordinarily interfere with police investigations, which are the foundation of the criminal justice system; however, the court has inherent power to stop investigations that are serious abuses of power, oppressive, vexatious, in bad faith or intended for an ulterior purpose.

Reasoning

Articles 157(4), 157(11) and 245(4)(a) of the Constitution insulate the DPP's and Inspector-General's investigative functions from external direction. Courts should wait until investigations are complete and a suspect charged. But article 157(11) itself requires the DPP to avoid abuse of the legal process, and the court oversees compliance with the law; where there is a serious abuse of power leading to harassment or persecution, the court should express its disapproval by stopping it to secure the ends of justice.

p. 6
03

Whether the criminal investigation of the bank and its employees was an abuse of process

Holding

Yes - the interested parties were employing the criminal process to assist them in resolving their civil dispute with the bank, and the belated involvement of the police was an abuse of police power which the High Court was entitled to restrain.

Reasoning

Although section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings arising from the same issues, the investigative power must be exercised responsibly and in good faith. The dispute between the company and the bank had been litigated in the civil courts since 1992, fraud allegations had been addressed and determined in prior decisions, and the civil process had its own mechanisms for obtaining the information sought; using the CID as a pawn in that civil dispute was unconscionable and a travesty of justice.

p. 7

Legal principles established

#
  • The field of investigation of criminal offences is exclusively within the domain of the police and courts must not ordinarily interfere with investigations before they are complete and a suspect charged.
  • Where a police investigation or prosecution is oppressive, vexatious, made in bad faith or for an ulterior purpose, the court has inherent power to stop it as an abuse of the legal process.
  • The criminal justice process must not be used as leverage or a tool in a purely civil dispute; such use constitutes an abuse of police power that courts may restrain.

Court orders

#
  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya at Nairobi
HC Petition No. 218 of 2011
Jurisdiction invoked
Not stated in the judgment; appellate jurisdiction of the Court of Appeal over the High Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others (Civil Appeal 56 of 2012) [2013] KECA 182 (KLR)", Case Analysis (2013). Civil Appeal (Nairobi) from High Court Petition No. 218 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/182/eng@2013-10-18

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