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Court of AppealDismissedCivil Appeal No. 51 of 2014· [2015] KECA 358 (KLR)

Peter Odiwour Ngoge t/a O. P. Ngoge & Associates v Josephine Akoth Onyango & 5 others [2015] KECA 358 (KLR)

Court of Appeal of Kenya
2 October 2015
4,179 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that courts can halt criminal prosecutions filed to win a property dispute being handled in a civil case.

What this practically means

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Executive summary

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The appellant, an advocate, appealed against a decision of Majanja J in the High Court (Petition No. 471 of 2013, judgment of 10 March 2014). The 1st and 2nd respondents had petitioned the High Court to stop their criminal prosecutions in Kibera Chief Magistrate's Criminal Cases Nos. 6531 of 2012 and 2178 of 2013, arising from a complaint of forgery of a transfer and charge over property LR 1160/784 sold by Sehit Investments Ltd to the 1st respondent. The High Court found the prosecutions were designed to circumvent pending civil suit No. 705 of 2009 - in which the vendor company had admitted executing the transfer and receiving the full purchase price - and issued an injunction restraining the prosecutions until the conclusion of the civil suit. No order was sought or made against the appellant. The Court of Appeal dismissed his appeal. It held the High Court correctly found the prosecution was an abuse of the court process and of prosecutorial power, contrary to Article 157(11) of the Constitution, and that the High Court had inherent jurisdiction and a duty to halt such prosecutions, applying its own decisions in Commissioner of Police v Kenya Commercial Bank and Joram Mwenda Guantai and the Githunguri principle. It further observed that the appellant had no legitimate grievance, as no orders were sought or granted against him, and the alleged violations of his own rights were never issues before the High Court. The decision of the High Court was upheld and the appeal dismissed with costs to the 1st, 2nd and 6th respondents. This judgment binds subordinate courts and the High Court on the circumstances in which criminal proceedings may be halted as an abuse of process.

Key legal issues

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01

Whether the High Court correctly halted the criminal prosecutions as an abuse of the court process

Holding

Yes. The prosecution was designed to circumvent civil suit No. 705 of 2009 and wrest the suit property from the 1st respondent; the trial judge directed himself correctly to the issues and took into account relevant factors.

Reasoning

The Court examined the factors relied on by the High Court: the vendor instituted suit No. 705 of 2009 four years after completing the sale; its pleadings admitted execution of the transfer and confirmed receipt of the full purchase price without alleging forgery; the complaint to the police came three years after filing suit with no explanation; and the vendor participated in perfecting the transfer through advocates. These factors justified the conclusion that the criminal process was being used for an ulterior purpose.

02

Whether the DPP's decision to prosecute was subject to Article 157(11) of the Constitution

Holding

Yes. The High Court had a duty to ensure the DPP adhered to Article 157(11), which requires regard to the public interest, the administration of justice and avoidance of abuse of the legal process.

Reasoning

The Court invoked Article 157(11) and its own prior decision in Commissioner of Police & Others v Kenya Commercial Bank Ltd, holding that a court that becomes aware of a serious abuse of prosecutorial power should stop it to secure the ends of justice. This duty grounded the High Court's injunction restraining the prosecutions pending the conclusion of the civil suit.

p. 6
03

Whether the appellant, against whom no order was sought or made, had a legitimate grievance on appeal

Holding

No. No orders were sought against the appellant in the petition and none were granted; his interest in seeing the respondents prosecuted did not entitle him to succeed.

Reasoning

The petition sought declaratory orders and an injunction only against the DPP and the DCI. The High Court's order was directed solely at those respondents, neither of whom appealed. The appellant's asserted grievances - alleged infringements of his own rights and of the vendor's property rights - were never issues before the High Court and could not ground the appeal.

p. 5

Legal principles established

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  • Where criminal proceedings are instituted for an ulterior purpose, such as to circumvent pending civil litigation and recover property, the High Court has jurisdiction and a duty to halt them as an abuse of the court process.
  • In exercising prosecutorial powers, the Director of Public Prosecutions must have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process under Article 157(11) of the Constitution.
  • Where a court finds a serious abuse of power, including oppressive or vexatious prosecution, it should stop it to secure the ends of justice and restrain abuse of power; the High Court has inherent jurisdiction to prohibit such prosecution.

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st, 2nd and 6th respondents
  2. 2.The decision of the High Court (Majanja J) of 10 March 2014 is upheld

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 23(1)
  • Constitution of Kenya, 2010Article 165
  • African Charter (on Human and Peoples' Rights)Article 4
  • Evidence ActSection 47
  • Court of Appeal RulesRule 29

Cases cited (3)

  • Commissioner of Police & Others v. Kenya Commercial Bank Ltd & 4 Others
    CA No. 56 of 2012
  • Joram Mwenda Guantai v. Chief Magistrate, Nairobi
    CA No 228 of 2003
  • Stanley Munga Githunguri vs Republic
    [1985] KLR 91
On appeal from
High Court of Kenya at Nairobi (Milimani)
Petition No. 471 of 2013
Jurisdiction invoked
First appeal/appellate jurisdiction of the Court of Appeal under its statutory appellate powers (no specific constitutional provision invoked for the appeal itself); the appeal challenged a constitutional petition determined under Articles 23(1), 27, 47, 48 and 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Odiwour Ngoge t/a O. P. Ngoge & Associates v Josephine Akoth Onyango & 5 others [2015] KECA 358 (KLR)", Case Analysis (2015). Civil Appeal No. 51 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/358/eng@2015-10-02

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