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ELCDismissedJudicial Review Application (Notice of Motion dated 7th March 2017)· [2018] KEELC 3642 (KLR)

Benjamin Kahindi Katana v Director of Public Prosecutions & 3 others [2018] KEELC 3642 (KLR)

High Court of Kenya
19 April 2018
JOJ. O. Olola
2,446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Malindi ruled that a pending land dispute civil case cannot stop criminal charges arising from the same property dispute.

What this practically means

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Executive summary

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The ex-parte Applicant, Benjamin Kahindi Katana, moved the High Court at Malindi by Notice of Motion dated 7th March 2017 seeking certiorari to quash proceedings in Kilifi Criminal Case No. 113 of 2015 (in which he was charged with Forcible Detainer contrary to Section 91 of the Penal Code) and prohibition to stop the ODPP from continuing with the prosecution. He contended that the criminal case was instigated by the Interested Party, Mabete Properties Ltd, in bad faith to force him and other squatters off a 16-acre parcel of land, the ownership of which was in dispute in pending civil proceedings before the Environment and Land Court (Malindi ELC Case No. 201 of 2015). The ODPP and the Interested Party opposed, asserting that the criminal case was before a competent court, that the prosecution was an exercise of the DPP's constitutional mandate under Article 157, and that the Applicant's fair trial rights were safeguarded. The court held that judicial review concerns the decision-making process rather than the merits; that a pending civil suit over the same subject matter is no bar to criminal proceedings by virtue of Section 193A of the Criminal Procedure Act; and that the police and the DPP have a constitutional duty to investigate and prosecute where there is reasonable suspicion of an offence. The court found the Applicant's allegations of bad faith unsubstantiated and held that subordinate court trial processes are not administrative action amenable to review under Section 9 of the Fair Administrative Action Act. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether criminal proceedings may be halted by judicial review on account of a parallel civil suit over the same subject matter

Holding

No. Section 193A of the Criminal Procedure Act expressly provides that concurrent civil proceedings are no ground for stay, prohibition or delay of criminal proceedings.

Reasoning

The Applicant argued the criminal case was brought in bad faith to evict him from land, the subject of Malindi ELC Case No. 201 of 2015. The court held that a civil suit in which the matters in issue are substantially the same as in criminal proceedings is not a bar to either proceeding, citing Section 193A of the Criminal Procedure Act, and that it is for the trial court to determine the merits of the evidence.

p. 3
02

Whether the police investigation and DPP's decision to prosecute are reviewable as administrative action

Holding

The court could interfere only on sufficient evidence of constitutional contravention; the Applicant's allegations were mere beliefs and apprehensions, unsubstantiated.

Reasoning

The court examined the statutory mandate of the Kenya Police Service under Sections 24 and 49(1) of the National Police Service Act and the DPP's powers under Article 157 of the Constitution. It found a clear public interest in prosecuting crime and held that the two agencies have a constitutional duty to investigate and prosecute where there is reasonable suspicion of an offence. No evidence showed the respondents exceeded jurisdiction or were actuated by malice.

p. 4

Legal principles established

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  • The fact that a matter in issue in criminal proceedings is also substantially in issue in pending civil proceedings is not a ground for staying, prohibiting or delaying the criminal proceedings
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Processes undertaken by a subordinate court in a criminal trial do not fall within administrative action amenable to review under Section 9 of the Fair Administrative Action Act
  • The court will not allow its process to be used as a means of vexation or oppression

Court orders

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  1. 1.The Notice of Motion dated 7th March 2017 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 165(6), 165(3)(a), 165(3)(d)(i) and (ii), 157, 22, 23, 49, 50, 51, 243, 244
  • Fair Administrative Action ActSections 2 and 9
  • Penal CodeSection 91 (Forcible Detainer)
  • Criminal Procedure ActSection 193A
  • National Police Service ActSections 24 and 49(1)

Cases cited (4)

  • Luke Angaiya Lubwayo & Another v Gerald Otieno Kajwang & Another
    Pet. No. 120 of 2013 (unreported)
  • Peter George Anthony D'Costa v Attorney General and Another
    Nairobi Petition No. 83 of 2010 (unreported)
  • Paul Ng'ang'a Nyaga & 20 Others v Attorney General & 3 Others
    (2013) eKLR
  • Michael Monani & Another v The Commissioner of Police & 3 Others
    (Unreported)
Jurisdiction invoked
Article 165(6) of the Constitution of Kenya (supervisory jurisdiction) and Section 9 of the Fair Administrative Action Act, No. 4 of 2015

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, "Benjamin Kahindi Katana v Director of Public Prosecutions & 3 others [2018] KEELC 3642 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 7th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3642/eng@2018-04-19

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