Dande & 3 others v Director of Public Prosecutions & 2 others (Civil Appeal 378 of 2018) [2022] KECA 102 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the DPP can prosecute former executives for theft even after stolen funds are recovered through settled civil suits.
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 appellants were deserving of the prayers for certiorari and prohibition sought in their substantive motion
- 2.Whether the trial court erred in determining that the application was an abuse of the court process when that issue was not pleaded or canvassed by the parties
- 3.Whether the 1st respondent disobeyed the order issued in Judicial Review Application Number 435 of 2014 when it preferred charges against the appellants
- 4.Whether the doctrine of res judicata applied to Judicial Review Application Number 8 of 2017
- 5.Whether the trial court sat on appeal over the decision of a judge of concurrent jurisdiction (Aburili J)
- 6.Whether the 1st respondent acted independently in instituting the criminal case or was influenced by the 3rd respondent or media pressure
- 7.Whether the civil suits and settlement/recovery of the funds were a bar to the criminal prosecution
Key legal issues
#Independence of the DPP and the test for judicial interference with prosecutorial discretion
The DPP's decision to prosecute was independent and based on DCI investigations that disclosed a prima facie offence; no evidence of pressure by the 3rd respondent, media influence or ulterior motive was adduced, so certiorari and prohibition were properly refused
Article 157 confers unfettered power on the DPP to institute and undertake criminal proceedings, tempered by Article 157(11) (public interest, administration of justice, avoiding abuse of legal process). The appellants made only bald assertions of interference, supported by hearsay newspaper reports, without proof. A prima facie evidential basis sufficed; whether the evidence suffices for conviction is a matter for the trial court. Interference requires clear evidence of breach of constitutional duty or abuse of discretion, which was absent.
Whether the civil suits, their settlement and recovery of the funds barred the prosecution
No. Section 193A permits concurrent civil and criminal proceedings on the same facts; recovery of the sums does not negate the offence, though it may bear on mitigation
Section 193A of the Criminal Procedure Code expressly provides that pendency of civil proceedings on the same issue is no ground for staying, prohibiting or delaying criminal proceedings. Recovery of the misappropriated sums is irrelevant to whether the offence was committed. While courts retain a residual power to stop oppressive, vexatious prosecutions used for ulterior motives, the appellants failed to show the criminal case was mounted in bad faith or to frustrate their competing business ventures; the civil suits had been settled at the appellants' instigation.
Whether the DPP violated the order in Judicial Review Application Number 435 of 2014
No. The prohibition order bound only the IG and DCI, not the DPP, and lapsed once the DPP made a decision on whether to charge
JR 435 of 2014 was directed at the IG and DCI to prevent arrest and interference pending the DPP's decision. The DPP was not a party. Once the DPP reached a decision either way, the order was rendered otiose. The appellants were charged only after the DPP had made a determination, so there was no subsisting stay barring the DPP when charges were preferred on 4th November 2016.
Whether the trial court erred in determining abuse of court process without pleadings or argument
No. The parties themselves raised the previous judicial review proceedings before the trial court, which could not avoid commenting on them
The duty to frame issues permits a trial court to determine a point arising from facts stated by the parties or their advocates even if not in the pleadings. Since both sides referred to JR 435 of 2014, the trial court was entitled to address abuse of process flowing from the duplicative litigation. No invitation to address the court further was required.
Res judicata and whether the trial court sat on appeal over Aburili J's decision
Res judicata was inapplicable and the trial court did not sit on appeal over a judge of concurrent jurisdiction because the issues in the two judicial review applications were not similar – the DPP's decision to charge existed only in the later application
In JR 435 of 2014 the DPP had made no decision and was not a party; in JR 8 of 2017 the decision had been made and a charge sheet drawn. Aburili J had expressly found the later proceedings not res judicata. The trial court determined distinct issues – abuse of process and whether grounds existed for the orders sought – so it did not review a co-ordinate judge's decision.
Legal principles established
#- The DPP's prosecutorial discretion is independent and courts will interfere with it only sparingly and upon clear evidence of breach of constitutional duty or abuse of discretion
- The existence of civil proceedings on the same facts does not bar criminal prosecution (section 193A), although criminal process must never be used for ulterior motives
- A court order binds only the parties and bodies directed by it; the DPP was neither a party to nor the target of the prohibition order in JR 435 of 2014, and once the DPP made a decision the order was spent
- A trial court may frame and determine an issue not covered by the pleadings if it arises from facts stated by the parties or their advocates and is necessary to determine the dispute
- Recovery of the sums allegedly stolen does not negate the commission of the offence; it may only be relevant in mitigation upon conviction
- The burden of proving unconstitutional exercise of prosecutorial power rests on the person alleging it, shifting to the DPP only if a breach is established
Court orders
#- 1.Appeal dismissed
- 2.Costs to the 1st and 3rd respondents
- 3.Affirmation of the High Court's direction that Nairobi Chief Magistrate's Criminal Case Number 1735 of 2016 proceeds to hearing and determination
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Application Number 8 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court's dismissal of a judicial review application (not a Supreme Court appeal under Article 163(4)); Article 157 of the Constitution governs the prosecutorial power under review
Relief refused
#Order of certiorari to quash the DPP's decision of 4th November 2016 to institute criminal proceedings and to quash the criminal case proceedings
No illegality, irrationality or abuse of discretion by the DPP was established; the decision was independent and based on investigations disclosing an offence
Order of prohibition to bar the Chief Magistrate's Court from hearing the criminal case
The existence of civil proceedings is not a bar to criminal prosecution; section 193A expressly permits concurrent civil and criminal proceedings
Costs
Appeal dismissed with costs to the 1st and 3rd respondents
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 result we are satisfied that the appeal is devoid of merit. Accordingly, it is dismissed with costs to the 1st and 3rd respondents.
The trial court was also right to order that the pending criminal case to proceed to hearing, having found that the civil suits could not be a bar to the criminal proceedings.
No matter how serious the criminal charges may be, they should never be used to further ulterior motives and purposes.
Once the elements that constitute an offence are established by the evidence, it does not matter that after the commission of the offence, the amounts involved were recovered.
the standard of review of the discretion of DPP to prosecute or not to prosecute is high and courts will interfere with the exercise of discretion sparingly.
Once he reached the decision either way, the order was rendered otiose.
Issues in the judgment
#The judgment inconsistently attributes section 193A to the Civil Procedure Act in one passage and to the Criminal Procedure Code in others
The caseTitle is partly inferred: the judgment never sets out the full names of the appellants or the 3rd respondent in a title block; parties are identified only descriptively in the narrative
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dande & 3 others v Director of Public Prosecutions & 2 others (Civil Appeal 378 of 2018) [2022] KECA 102 (KLR)", Case Analysis (2022). Civil Appeal (Judicial Review) – arising from Judicial Review Application Number 8 of 2017, High Court at Nairobi. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/102/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.