Family Bank Limited & 2 Others v Director of Public Prosecutions & 2 Others
The bottom line
#Kenya's Court of Appeal allowed the prosecution of Family Bank officials to proceed, ruling that a regulator's fine and CBK's input did not block criminal charges.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the DPP's decision to charge the appellants with offences against POCAMLA was discriminatory and unconstitutional on grounds that it was influenced or directed by CBK, an interested party
- 2.Whether the prosecution of the appellants amounted to double jeopardy and a breach of their constitutional right to a fair trial, given the administrative fine imposed by CBK
- 3.Whether the learned Judge failed to appreciate the balance of convenience, given the public interest implications of possible run on deposits and closure of the bank
Key legal issues
#Whether the DPP's consultation of the CBK Governor infringed Article 157(10) on independence of prosecutorial discretion
It did not; the DPP sought professional opinion on public interest, not consent or direction, and the decision remained his own
The Court endorsed the trial judge's finding that the Governor gave only a professional opinion on the effect of prosecution on the banking sector, which did not bind the DPP. The DPP performs a quasi-judicial examination of evidence and may direct police to seek clarifications. Any deeper question of improper intent is for the substantive petition with cross-examination of the letter's authors.
Whether prosecution of the appellants while 27 other banks and CBK remained unprosecuted was discriminatory
No; charging one accused among several alleged offenders is not discrimination under Article 27
The respondents deposed that investigations into all implicated banks and CBK officials were directed. Criminal proceedings are routinely initiated against some alleged offenders and not others; this does not constitute differential treatment on constitutional grounds. Courts interfere with prosecutorial discretion only in clear cases of abuse, as in Githunguri v Republic.
Whether the CBK administrative fine of Ksh 1 million rendered prosecution double jeopardy
No; the double jeopardy principle applies to judicial proceedings, not administrative penalties by a regulator
The Court adopted the trial judge's analysis under Article 50(2): there has been no prosecution, conviction or acquittal, only an administrative penalty subject to certiorari. POCAMLA created offences; investigation lies with police and charging decisions with the DPP. The appellants failed to demonstrate a blatant breach of the Constitution or statute to freeze those powers.
Whether the trial judge misdirected himself on the balance of convenience and public interest regarding possible bank collapse
No; the judge properly exercised his discretion and the Court of Appeal would not interfere
Applying Mbogo v Shah, an appellate court does not interfere with a judge's discretion unless the judge misdirected himself or was clearly wrong causing injustice. The judge had considered the public interest and found it was not in the public interest to halt a prosecution where evidence supporting the charge was available.
Legal principles established
#- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong resulting in injustice
- An administrative penalty imposed by a regulator does not constitute double jeopardy or bar subsequent criminal prosecution for offences under the same statutory scheme
- Prosecuting one accused among several alleged participants does not amount to unconstitutional discrimination or selective prosecution
- The DPP may seek clarifications, further information or comments from third parties on public interest issues without offending the constitutional guarantee of independence under Article 157(10)
- Courts interfere with the DPP's mandate to prosecute only in clear cases of abuse of process
Court orders
#- 1.The appeal (application) is dismissed
- 2.Costs to abide the outcome of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Appl. No 488 of 2016
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court (Court of Appeal Rules); the judgment does not cite a specific constitutional provision for its own jurisdiction
Relief refused
#Conservatory/injunctive orders prohibiting the respondents from arresting, detaining or charging the appellants
The appellants failed to establish a prima facie case with a probability of success that their constitutional rights would be violated; the DPP's decision was independent, non-discriminatory, and the administrative fine did not bar prosecution
Costs
Costs to abide the outcome of the petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot, we find no merit in this application which we order dismissed with costs to abide the outcome of the petition.
A court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising this discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and as a result there has been injustice.
As there has not been any prosecution and conviction or acquittal, but rather an administrative penalty imposed by the industry regulator, which is itself subject to being quashed by judicial review order of certiorari, there cannot be a proper application of the principle to affect the intended criminal prosecution.
We must state at the onset, this is an interlocutory appeal, pending the hearing of the substantive petition before the High Court, whatever we state in this appeal must not prejudice the determination of the aforesaid case and must not cause any embarrassment to the Judge who will eventually hear the substantive petition.
For the appellant to successfully freeze those powers they must demonstrate to the Judge that there was a blatant breach of the Constitution and statute which was not done in this case.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Family Bank Limited & 2 Others v Director of Public Prosecutions & 2 Others", Case Analysis (2018). Civil Appeal No 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/857/eng@2018-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.