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Court of AppealDismissedCivil Appeal No. 70 of 2017· [2020] KECA 701 (KLR)

Prafulchandra Bharmal v Chief Magistrate Kibera & 3 others [2020] KECA 701 (KLR)

Court of Appeal of Kenya
8 May 2020
Martha Karambu KoomeM. K. KoomeDMD. K. MusingaSKS. Gatembu Kairu
5,223 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 stopped a private criminal prosecution because it was being used to fight a civil land dispute already before the courts.

What this practically means

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Executive summary

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This is a single judgment of the Court (Koome, Musinga and Gatembu, JJ.A) dismissing both the appeal and the cross-appeal arising from a High Court judicial review judgment by Odunga, J. dated 20th May 2016, which prohibited the private criminal prosecution of Shurishchandra Bharmal Shah for forgery of the Bakarania agreement pending determination of a civil suit over the same Parklands property (HCCC 114 of 2013 before the Environment and Land Court). The brothers have been locked in a dispute over the suit property for over two decades. The appellant complained to police that his signature was forged; the DPP directed the police file to be closed, but the appellant obtained leave from the Chief Magistrate to mount a private prosecution. The 2nd respondent successfully challenged it by judicial review. On appeal, the Court first declined to strike out the appeal for an incomplete record and delay, citing the Article 159 paradigm shift towards substantive justice, the loss of the court file, and the 2nd respondent's failure to apply to strike out within thirty days. On the merits, the Court held that judicial review orders are discretionary and that the appellant had not shown the Judge was clearly wrong. It affirmed that the order of prohibition was justified to prevent the criminal process being used to settle a pending civil dispute and to avoid embarrassing the pending civil trial. It further held that the correct course was to seek review of the DPP's decision before instituting a private prosecution. The cross-appeal failed because the declarations sought were never pleaded. Both the appeal and the cross-appeal were dismissed with no order as to costs. The decision binds subordinate courts on the limits of private prosecutions and abuse of criminal process.

Key legal issues

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01

Whether the appeal should be struck out for incompleteness of the record and delay in filing

Holding

The appeal was not struck out; the Article 159 paradigm shift towards substantive justice, the loss of the court file and the 2nd respondent's failure to invoke the proviso to Rule 84 within thirty days or file a supplementary record under Rule 91/92 meant the appeal should be heard on merit

Reasoning

The High Court file went missing, and the appellant obtained confirmation from the registrar of the High Court to that effect. The 2nd respondent did not apply to strike out the record within thirty days of service as required by the proviso to Rule 84, nor did he file a supplementary record of appeal as he could have under Rule 92. The Court held that under Article 159 the focus is on substantive justice, so the appeal should not ipso facto be dismissed for procedural inadequacies.

p. 4
02

Whether the order of prohibition against the private criminal prosecution was properly issued

Holding

Yes. The order was discretionary, the appellant failed to show the Judge was clearly wrong, and the prohibition was justified to prevent the criminal process being used to settle a pending civil dispute over the Bakarania agreement

Reasoning

The civil suit filed by the appellant and the private prosecution both turned on the validity of the same Bakarania agreement, with conflicting document examiners' reports creating a likelihood of conflicting outcomes. The Court held the Judge's remarks on abuse of process were a commentary on the process, not a merits determination, and that an order of prohibition was justified to protect the court process and avoid embarrassing the pending civil trial.

p. 5
03

Whether the private prosecution circumvented the DPP's constitutional mandate

Holding

The appellant should first have sought review of the DPP's decision to close the police file rather than institute a private prosecution

Reasoning

The DPP had directed the police file to be closed. The appellant did not challenge that decision in the High Court but pursued a similar complaint by private prosecution. The Court held that the correct course was to seek review of the DPP's order if it was considered unreasonable, since the prosecutorial power of the DPP under Article 157 is reviewable under Article 165(2)(d)(ii), and circumventing the DPP's order attempted to usurp his mandate.

p. 5
04

Whether the cross-appeal should be allowed

Holding

No. The prohibition order was comprehensive enough to stop any abuse of the court process, and the declarations sought in the cross-appeal were never pleaded

Reasoning

The Court found the existing order of prohibition sufficient to stop any abuse of process. Further, the prayers in the cross-appeal sought declarations of lack of jurisdiction, malice, vendetta and illegality that were not contained in the notice of motion in the judicial review proceedings, and the Court declined to make pronouncements on unpleaded matters with far-reaching implications for the pending civil suit.

p. 5

Legal principles established

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  • An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself and arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong and injustice resulted
  • An abuse of process occurs when court process is put in motion for purposes which in the eye of the law it is not intended to serve; criminal process used for its proper purpose is not an abuse
  • A party must challenge the DPP's decision to close a police file by way of review before resorting to private prosecution; circumventing the DPP's order by private prosecution is unprocedural
  • A court should not make pronouncements on matters that were not pleaded before it

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The cross-appeal is dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 165(2)(d)(ii)
  • Penal CodeSections 345 and 349
  • Criminal Procedure CodeSection 88
  • Criminal Procedure CodeSection 193A
  • Court of Appeal RulesRule 84 (and proviso thereto)
  • Court of Appeal RulesRule 87(1)(d)
  • Court of Appeal RulesRule 92

Cases cited (6)

  • Kenya National Examination Council (Exparte) Geoffrey Gathenju Njoroge
    Civil Appeal No. 266 of 1996
  • Githuguri vs. Republic
    Cri. App. No. 271 of 1985
  • Francis Kirima MÍkunyua & Others vs DPP
    [2017] eKLR
  • Jago v District Court (NSW)
    168 LLR 23, 87 ALR 57
  • Walton v Gardener
    [1993] 177 CLR 378
  • MBOGO vs. SHAH
    [1968] E.A. 93
On appeal from
High Court of Kenya at Nairobi
NRB JR. Misc. Appl. No. 212 of 2015
Jurisdiction invoked
First appeal/judicial review appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (appeal from High Court judicial review judgment)

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, "Prafulchandra Bharmal v Chief Magistrate Kibera & 3 others [2020] KECA 701 (KLR)", Case Analysis (2020). Civil Appeal No. 70 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/701/eng@2020-05-08

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