Monica Cyombua Gitari v Director of Public Prosecution & 4 others [2017] KEELC 1246 (KLR)
The bottom line
#A Kenyan court refused to stop a criminal prosecution arising from a land dispute, but ordered police to investigate the petitioner's ignored complaint.
What this practically means
#Executive summary
#Key legal issues
#Timing of jurisdictional objections
The 1st respondent's late raise of jurisdiction in submissions was sharp practice; a jurisdictional question must be raised and decided at the earliest opportunity
The DPP raised jurisdiction for the first time in final submissions despite having filed a replying affidavit and having the opportunity since 2015 to raise a preliminary objection. The court noted the quoted passage of Motor Vessel 'Lilian S' actually contains the requirement that jurisdiction be raised at the earliest opportunity, and held a party may not raise the issue after the matter is heard and determined.
Criminal prosecution arising from a civil/boundary dispute
The intended prosecution was not an abuse of process because intervening actions by the petitioner (blocking the road) triggered the complaint, and no evidence showed improper influence or malice
The court found the petitioner herself blocked the access road before the boundary dispute was resolved, prompting a report by an employee of the 1st interested party. The DPP, under Article 157, considered the inquiry file and accepted there was sufficient evidence. Merits of the charge are for the trial court, not a constitutional petition.
Failure to investigate the petitioner's complaint
The 2nd respondent's silence on the complaint of 23 April 2015 established default in investigation, an abdication of statutory duty under Section 42 of the National Police Service Act and a violation of Article 27(1)
A replying affidavit was filed on behalf of the 2nd respondent but said nothing about the petitioner's report of malicious damage. The court drew the only reasonable conclusion that the investigation was never undertaken, entitling the petitioner to the declaration in prayer (d) and mandamus in prayer (e).
Legal principles established
#- A question of jurisdiction ought to be raised at the earliest opportunity and a party who fails to do so may not raise it once the matter is heard and determined
- The mere existence of a civil dispute does not automatically bar criminal investigation or prosecution unless the criminal justice system is being employed for ulterior motives
- The High Court (and courts of concurrent jurisdiction) has power in appropriate cases to stop a prosecution shown to be flawed, oppressive, malicious or an abuse of the criminal process
- Failure by police to investigate a complaint amounts to abdication of statutory duty and violates the right to equal protection of the law
Court orders
#- 1.The declarations sought in paragraphs (a), (b), (c) and (f) of the petition dated 23 October 2015 are declined
- 2.The declaration sought in paragraph (d) is granted - the failure of the police to investigate the complaint lodged on 23 April 2015 violates the petitioner's right to equal protection of the law under Article 27(1)
- 3.An order of mandamus is issued compelling the Inspector General of Police to investigate and act on the complaint lodged by the petitioner on 23 April 2015
- 4.Each of the parties to the petition to bear own costs
- Jurisdiction invoked
- Articles 27, 28, 40, 48, 50 and 157 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Cyombua Gitari v Director of Public Prosecution & 4 others [2017] KEELC 1246 (KLR)", Case Analysis (2017). Constitutional Petition No. 5B of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1246/eng@2017-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.