Boniface Njiru T/A Njiru Boniface & Co Advocates v Inspector General Of Police & 2 others [2015] KEELC 801 (KLR)
The bottom line
#The High Court refused to stop police investigating an advocate, but barred two specific officers from the case over bias concerns.
What this practically means
#Executive summary
#Key legal issues
#Whether an order of prohibition could issue to stop police investigations against an advocate
Prohibition in the terms sought (blanket immunity) is an illegal order and was refused; judicial review courts should not lightly interfere with the statutory investigative mandate of the police absent cogent reasons
The court applied the settled grounds of judicial review - illegality, irrationality and procedural impropriety. Police have a constitutional and statutory duty under section 24 of the National Police Service Act to investigate complaints once made, needing only reasonable suspicion before preferring charges. A defence or good case is no ground to halt bona fide investigations; only demonstrated abuse of process would justify halting them.
Whether section 80 of the Advocates Act barred the police investigation
Section 80 prohibits prosecution rather than investigation, so invoking it at the investigation stage was premature; the provision is not unconstitutional
The proviso to section 80 requires a report by the Tribunal under section 61(3) to the Attorney-General before prosecution. It is a precondition to lawful prosecution, not an absolute bar. Since only investigations were underway, the section had no application yet, and its constitutionality could not properly arise at that stage.
Whether the investigations were an abuse of process for a collateral purpose given the pending civil proceedings
Concurrent civil proceedings do not ipso facto render criminal investigations an abuse; section 193A Criminal Procedure Code expressly permits concurrent proceedings; no concrete abuse was demonstrated
Following Kuria and Ganijee, abuse of process requires showing that the predominant purpose of the criminal process is collateral to the vindication of a criminal offence. The applicant alleged the police were conduits of the complainant but did not demonstrate ulterior motive sufficient to halt the investigations generally.
Whether the specific investigating officers' conduct compromised impartiality
The two officers involved, PC Johnstone Sanga and Mr Sangoro, were to step aside from the investigations
Where prima facie evidence shows investigators have involved themselves such that their independent judgment is likely to be compromised, the court may grant remedies to avoid probability of bias. Given allegations that the officers had become conduits for the complainant and had engaged with the parties' negotiations, the court directed their stepping aside rather than halting the investigations.
Legal principles established
#- Section 80 of the Advocates Act prohibits prosecution, not investigation, of an advocate, and is a pre-requisite to prosecution rather than an absolute bar; it is not unconstitutional
- Concurrent criminal investigations and civil proceedings arising from the same facts do not ipso facto constitute abuse of process unless the criminal process is used for a collateral purpose
- Where investigators' independent judgment is likely to be compromised, the court may grant remedies to avoid probability of bias
Court orders
#- 1.Declined to grant the orders of prohibition in the manner sought in the Motion
- 2.Prohibited police officers PC Johnstone Sanga and Mr Sangoro from continuing with the investigation of the complaint lodged by Isaac Mwangi Wainaina in respect of the sale of land parcel LR 1160/773
- 3.No order as to costs
- Jurisdiction invoked
- High Court supervisory/judicial review jurisdiction over the decision-making process of public bodies, including police investigative and prosecutorial discretion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Njiru T/A Njiru Boniface & Co Advocates v Inspector General Of Police & 2 others [2015] KEELC 801 (KLR)", Case Analysis (2015). Judicial Review Miscellaneous Application (Notice of Motion dated 24th April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/801/eng@2015-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.