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Court of AppealPartially AllowedCivil Appeal 274 of 2014· [2018] KECA 856 (KLR)

Diamond Hasham Lalji & another v Attorney General & 4 others

Court of Appeal
19 January 2018
EGE. M. GithinjiHOH. M. OkwenguJMJ. Mohammed
19,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~78 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped a 20-year-delayed criminal prosecution of two brothers, ruling the DPP's decision to revive the case was an abuse of court process.

What this practically means

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Executive summary

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The appellants, two brothers, sought judicial review to prohibit their prosecution for offences allegedly committed in 1991-1992 concerning the fraudulent sale of a family company, Atta (1974) Limited. The prosecution followed a long family and commercial dispute: two civil suits were struck out, the complainant (the 5th respondent) lodged criminal complaints, the CID closed the file, KACC recommended charges but the Attorney General closed the file in 2009, and in February 2012 the DPP reviewed and revived the prosecution without new evidence. The High Court (Odunga, J.) struck out the certiorari and prohibition reliefs for want of leave to amend, and dismissed the application. The Court of Appeal allowed the appeal. First, it held that leave to amend a judicial review statement is ipso facto leave to pursue additional grounds and reliefs, so the striking out was erroneous. Second, although the DPP had jurisdiction to review his predecessor's decision - no estoppel lying against a public duty - the exercise of that discretion was unlawful. The 20-year delay, the loss of the company file, books of account and a vital witness, the complainant's collateral civil motives and excessive pressure on investigators, and the commercial, company-law character of the dispute made the prosecution an egregious abuse of criminal process. The DPP also failed to accord the appellants fair procedure before re-opening the file on fresh representations. The High Court's decision was set aside, certiorari and prohibition were granted in terms of the amended notice of motion, and there was no order as to costs.

Key legal issues

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01

Whether leave to amend a judicial review statement constitutes leave to pursue additional grounds and reliefs

Holding

Yes. Rule 1(2) read with rule 4(1) and 4(2) of Order 53 permits introduction of new grounds and reliefs by amendment; no fresh application for leave is needed, and the High Court erred in striking out the certiorari and prohibition reliefs.

Reasoning

Section 9 of the Law Reform Act empowers rules regulating mandamus, prohibition and certiorari applications, including the prior-leave requirement. Order 53 rule 4(2) allows the court to amend the statement containing the grounds and relief. Since the court may amend the very document containing grounds and relief, amendment can introduce additional grounds and reliefs. A judge considering amendment exercises the same discretion as one hearing an original leave application, and must satisfy himself the new grounds disclose an arguable case. The appellants complied, no objection was raised, and the leave was never set aside.

p. 3
02

Whether the DPP could review a decision to close the file made by the Attorney General under the repealed Constitution

Holding

Yes. Power to review is inherent in the prosecution process; the DPP is the legal successor of the Attorney General in prosecutorial powers under the Sixth Schedule, and no estoppel lies against a public duty.

Reasoning

Before 2010, prosecutorial powers vested in the Attorney General under section 26(3) of the repealed Constitution, and review was inherent in the prosecution process. The 2010 Constitution transferred those powers to the DPP, and clauses 31(5) and 33 of the Sixth Schedule effected a seamless transition, making the DPP's office the legal successor. The decision of the predecessor became the DPP's own, and since public powers are exercised in the public interest, no estoppel operates against execution of a constitutional or statutory public duty. The High Court's finding on jurisdiction to review was therefore correct.

p. 5
03

Whether the DPP's decision to prosecute after a 20-year delay, without new evidence and after representations by the complainant, was an abuse of process

Holding

Yes. The prolonged delay, loss of evidence and witnesses, collateral civil motives, and the commercial family nature of the dispute rendered the prosecution an egregious abuse of criminal process which the DPP should have prevented.

Reasoning

The court re-appraised the totality of circumstances: the 5th respondent resorted to criminal process 12 years after the alleged offences, only after frustrations in civil suits, exerted excessive pressure on investigative agencies, and the dispute was fundamentally commercial between brothers over a private family company. Delay had caused loss of the company file, books of account and a vital witness, rendering a fair trial impossible. The DPP acknowledged there was no new evidence, did not consider the history or the KACC directors' recommendations, and failed to give the appellants an opportunity to comment on fresh representations as fair procedure required.

p. 8
04

Whether the criminal court was the proper forum for a dispute requiring interpretation and application of company law

Holding

No. The criminal court would have to examine family agreements, the company's memorandum and articles, minutes and books, and interpret and apply company law, making it an inappropriate forum.

Reasoning

The dispute centred on the validity of board resolutions to sell company assets and the subsequent sale, requiring examination of family agreements, family constitution, memorandum and articles of association, minutes, books of accounts and documents allegedly left blank, plus asset valuations. The court would of necessity interpret and apply company law to disputed facts. The preliminary report itself acknowledged the investigation involved complex corporate and legal issues. The criminal court was therefore not the appropriate forum for the complaints reported to CID and KACC.

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The standard and scope of judicial review of prosecutorial discretion

Holding

The standard of review is exceptionally high and courts interfere only in the exceptional and clearest of cases, but the DPP's decision is not immune; the burden rests on the person alleging unconstitutionality, shifting to the DPP once a prima facie breach is shown.

Reasoning

Drawing on Ramalingam Ravinthran, Matululu, Mohit and Manning, the court held that prosecutorial discretion enjoys judicial deference and separation of powers must be respected, but the DPP acts unlawfully where he fails to exercise independent discretion, acts under another's control, ignores public interest or the administration of justice, abuses legal process, or breaches fundamental rights. The DPP may make errors within his jurisdiction and a decision is not reviewed solely for misapprehension of facts or law. The High Court erred by focusing on personal prejudice and fairness of trial rather than the constitutional issues, applying the wrong test.

p. 23

Legal principles established

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  • An order granting leave to amend a judicial review statement is ipso facto a grant of leave to seek judicial review on the additional grounds and reliefs; no fresh application for leave is required.
  • The DPP's prosecutorial discretion under Article 157 is not absolute; it is limited by Article 157(11), constitutional principles and statute, and is reviewable by the High Court.
  • Delay in itself, if sufficiently prolonged, may be so unfairly and unjustifiably oppressive as to amount to an abuse of the process of the court, independent of prejudice to the accused's trial.
  • Abuse of process must be assessed as an integral whole, considering the cumulative effect of its elements rather than each element separately.
  • There can be no estoppel against execution of a public duty conferred by the Constitution or statute; a successor office may review its predecessor's prosecutorial decision.
  • The remedy of prohibition is prospective and may issue to stop the continuation of a prosecution without the underlying decision being quashed.

Court orders

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  1. 1.The decision of the High Court was set aside
  2. 2.The orders of certiorari and prohibition were granted in terms of prayer 1 and 2 of the amended notice of motion
  3. 3.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 157(10)
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 157(8)
  • Constitution of Kenya, 2010Article 165(3)(d)(ii)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 10(1)
  • Constitution of Kenya, 2010Article 259(1)
  • Constitution of Kenya, 2010Article 259(8)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 232
  • Constitution of Kenya, 2010Sixth Schedule, clauses 31(5) and 33
  • The Constitution of Kenya, 1963 (repealed)Section 26(3)
  • The Constitution of Kenya, 1963 (repealed)Section 26(8)
  • Civil Procedure Rules, 2010Order 53 rule 1(1), 1(2), 4(1) and 4(2)
  • Civil Procedure Rules, 2010Order 8 Rule 3(2)
  • Criminal Procedure CodeSection 193A
  • Law Reform ActSection 9
  • Office of the Director of Public Prosecutions Act, No. 2 of 2013Sections 4, 5(1)(c), 5(4)(e), 57(1), 57(3)
  • Fair Administrative Action Act, 2015Sections 9 and 11
  • Anti-Corruption and Economic Crimes Act
  • Companies ActSection 200(4)
  • Penal CodeSections 328(a), 329(a), 352(a)
  • The National Prosecution Policy, 2015

Cases cited (19)

  • Ramalingam Ravinthran v. Attorney General
    [2012] SGCA 2

    Prosecutorial power is exercised for the public good; the Attorney General cannot decide at whim who to prosecute; public interest constrains the final decision.

  • Mohit v Director of Public Prosecutions of Mauritius
    [2006] 5 LRC 234

    Threshold of a successful challenge to prosecutorial decisions is high, but such decisions are not immune from review.

  • Regina v. Director of Public Prosecutions ex-parte Manning and Another
    [2001] QB 330

    Standard of review should not be set too high since judicial review is the citizen's only redress against a decision not to prosecute.

  • Jago v District Court (NSW)
    168 LLR 23, 87 ALR 57

    Abuse of process occurs when court process is put in motion for purposes it is not intended to serve.

  • Walton v Gardener
    [1993] 177 CLR 378

    Inherent jurisdiction to stay proceedings extends to all categories where court process is converted into instruments of injustice; no artificial limitation periods.

  • State of Maharashtra Ors v Arun Gulab Gawall & Ors
    Criminal Appeal No. 590 of 2007

    Evidential test - proper scrutiny of facts and circumstances is imperative at the prosecution decision stage.

  • Meixner & Another v Attorney General
    [2005] 2 KLR 189

    Evidential test for prosecution decisions.

  • William v Spautz
    [1993] 2 LRC 659

    Distinction between stay to prevent unfair trial and stay to stop prosecution instituted for improper purpose; power extends to preventing oppression.

  • Githunguri v Republic
    [1986] KLR 1

    No time limit to prosecution of serious crimes except where a limitation is imposed by statute; abuse of process by denial of speedy trial.

  • Martin v Tauranga District Court
    [1995] 2 LRC 788

    Abuse of process by denial of speedy trial - first category of abuse cases.

  • Sanderson v Attorney General – Eastern Cape
    [1988] 2 S.A 38

    Abuse of process by denial of speedy trial - first category of abuse cases.

  • Republic v. Chief Land Registrar & Others, ex-parte James Njoroge Njuguna

    Grant of leave to amend a statement and notice of motion constitutes grant of leave for the orders in the amended pleadings.

  • Republic v. Commissioner of Lands and 2 others ex-parte Jimmy Mutinda
    Nairobi HC JR ELC 9 of 2012

    Once court grants leave to amend statement and motion, it has granted leave for mandamus, prohibition or certiorari in the amended terms.

  • R. v. Bow Street Stipendiary Magistrate ex parte Roberts and others
    [1990] 3 ALL ER 447

    Not necessary to renew application for leave to rely on new grounds or additional reliefs where court has power to allow amendment.

  • The Queen v The Department of Environment & Belize Audubon of Conservation – Non Governmental Organizations
    Supreme Court of Belize Action No. 61 of 2002

    Supports the position that leave to amend dispenses with a fresh leave application.

  • Kuria & 3 Others v Attorney General
    [2002] eKLR 69

    Machinery of criminal justice is not to be allowed to become a pawn in personal feuds and individual vendetta.

  • Republic v Chief Magistrate's Court at Mombasa – ex parte Ganijee & Another
    [2012] 2 KLR 703

    Criminal process should not advance or frustrate civil cases; prohibition issues to stop further proceedings where anything remains to be done.

  • Carlin v Director of Public Prosecutions
    [2010] 1 ESC 14

    DPP may change a decision not to prosecute even without new evidence, but independence and public confidence in the process must be preserved.

  • Ronald Leposo Musengi v Director of Public Prosecutions & 3 others
    [2015] eKLR

    No factual foundation where facts deemed insufficient three years earlier had 'life breathed into them'; distinguished as concerning the evidential test.

On appeal from
High Court of Kenya at Nairobi (Human Rights and Constitutional Division)
Misc. Application No. 153 of 2012
Jurisdiction invoked
Article 164 of the Constitution of Kenya, 2010 (appellate jurisdiction of the Court of Appeal) over an appeal from the High Court's constitutional and judicial review jurisdiction under Article 165(3)(d)(ii)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Diamond Hasham Lalji & another v Attorney General & 4 others", Case Analysis (2018). Civil Appeal 274 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/856/eng@2018-01-19

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