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ELCDismissedPetition No. 493 of 2015· [2017] KEELC 1932 (KLR)

Red Kaka Limited v Inspector General of Police & another [2017] KEELC 1932 (KLR)

Environment and Land Court
26 July 2017
SOS. Okong'o
3,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a property owner's constitutional challenge because it offered allegations, not evidence, against police investigating a land complaint.

What this practically means

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Executive summary

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The Petitioner, registered as proprietor of L.R No. 209/405/8 (I.R No. 161133) following a 2007 lease from the then City Council of Nairobi, petitioned the High Court in July 2015 complaining that the 2nd Respondent had laid baseless claims over the suit property and, after its judicial review application against the Registrar of Titles was dismissed by Odunga J on 8th April 2013, lodged a malicious complaint at CID Headquarters. The Petitioner alleged that police officers, without independent investigation, harassed and intimidated its officials and directors in a campaign designed to force it to relinquish ownership and to gather evidence for the 2nd Respondent's civil suit. It sought declarations of violations of Articles 40 and 47, compensation, and costs. The petition was transferred to the Environment and Land Court. The 1st Respondent contended it had a legal duty to investigate complaints; the 2nd Respondent asserted ownership of the suit property and maintained the complaint was lodged in good faith. The court framed the issue as whether the Petitioner's rights under Articles 40 and 47 had been violated or threatened, holding that the Petitioner bore the burden of proof. It held that civil and criminal proceedings may run concurrently, and that the real question is whether the criminal process was instituted in bad faith for collateral purposes. Finding no evidence of malice, bad faith, harassment, intimidation or threatened arrests, the court dismissed the petition with costs to the Respondents.

Key legal issues

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01

Burden of proof in constitutional petitions

Holding

The onus was on the Petitioner to prove the alleged violation, which it failed to discharge

Reasoning

The court held that a person alleging contravention of a constitutional right must set out the right infringed with particulars and supporting evidence. The Petitioner made bare allegations without producing the pleadings in the related civil suit or particulars of harassment, and thus failed to prove infringement of its rights under Articles 40 and 47.

p. 4
02

Concurrent criminal and civil proceedings

Holding

The existence of civil proceedings is not a bar to criminal prosecution arising from the same facts

Reasoning

The court held it is common ground that civil proceedings do not bar criminal prosecution; the Criminal Procedure Code permits concurrent proceedings on the same facts. The real question is bad faith and collateral purpose, neither of which the Petitioner demonstrated. A complaint that property was acquired criminally is not itself a violation of the right to property.

p. 4
03

Duty of police upon receiving a complaint

Holding

The police have a duty to investigate complaints and make an informed decision in good faith and in accordance with the law

Reasoning

Once a complaint is lodged, the police must consider it and decide on it in good faith and lawfully. Whether there is sufficient evidence to sustain a charge is for the police after investigations; no charge had been preferred and no decision made, so the petition was premature on that ground.

p. 5

Legal principles established

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  • A party alleging violation of a constitutional right must set out the right infringed and the particulars with supporting evidence
  • The existence of a civil dispute does not by itself render criminal proceedings an abuse of court process
  • The issue is whether criminal proceedings were instituted in bad faith for collateral purposes, not whether they may coexist with civil proceedings

Court orders

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  1. 1.The petition was dismissed
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 162(2)(b)
  • Environment and Land Court Act, 2011Sections 13 and 13(7)
  • Criminal Procedure Codenot specified

Cases cited (7)

  • Republic vs Inspector General, National Police Service & 3 Others, Ex-parte Stephen Samba Kathima
    (2014) eKLR
  • Musyoki Kimanthi vs Inspector General of Police & 3 Others
    (2014) eKLR
  • Annarita Karimi Njeru vs. Attorney General
    (1979) KLR 154
  • Republic Vs. Commissioner of Police, Ex-parte Nicholus Gitutu Karia
    Misc. Civil Application No. 534 of 2003 (unreported)
  • Rashid Odhiambo Aloggoh and 245 Others vs. Hacco Industries
    (2007) EKLR
  • Republic vs. Director of Public Prosecution & 2 Others Ex-parte Francis Njakwe Maina & another
    (2015) EKLR
  • Kuria & 3 Others vs. Attorney General
    (2002) 2 KLR 69
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, 2011

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, "Red Kaka Limited v Inspector General of Police & another [2017] KEELC 1932 (KLR)", Case Analysis (2017). Petition No. 493 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1932/eng@2017-07-26

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