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ELCDismissedNot stated in judgment· [2020] KEELC 1112 (KLR)

Protus Hamisi Wambanda v Elizabeth Shijeyi Shava; Eldoret Hospital (Interested Party) [2020] KEELC 1112 (KLR)

High Court of Kenya
22 September 2020
MOM. A. ODENY
2,234 words in judgment
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The bottom line

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Kenya's High Court refused to order police to investigate a perjury claim, ruling courts cannot direct the independent DCI or DPP, and parties must first report to police.

What this practically means

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Executive summary

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This ruling of the High Court at Eldoret (DR. M. A. Oduny... Odeny, J) determines an application dated 4th June 2020 by the plaintiff/applicant seeking orders that the Directorate of Criminal Investigations, Eldoret West Sub County investigate the defendant for perjury arising from her affidavit sworn on 2nd March 2020, compare her signatures against specified documents, and arrest, charge and prosecute her if perjury is established. The applicant relied on section 108 of the Penal Code and authorities on perjury, contending the court had inherent power to punish false statements on oath. The respondent and the interested party opposed, arguing the court lacked jurisdiction to direct the independent offices of the Inspector General and the DPP under Articles 157 and 245 of the Constitution, that no report had been made to the DCI, and that the application was res judicata and an abuse of process. The court framed two issues: whether the application was proper before it and whether the orders sought could be granted. It held the application was res judicata, the legality of the consent having already been determined in a ruling of 26th May 2020, and the applicant's remedy was appeal. It further held that the IG and DPP are independent offices the court cannot direct, and that deploying the criminal process as a pawn in a civil dispute is unconscionable, applying the Kenya Commercial Bank decision. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the application is res judicata

Holding

The application is res judicata because the court already dealt with the legality of the consent in its ruling of 26th May 2020 setting it aside; the applicant's recourse was an appeal, not an application for criminal investigation.

Reasoning

The applicant's advocate signed a consent withdrawing the entire suit; the court later set it aside on 26th May 2020 after deliberating on its legality. Having already ruled on the legality of the consent, the court found the perjury application re-litigated the same issue. Any dissatisfaction lay in an appeal, not a fresh application involving the police.

p. 3
02

Whether the court can direct the DCI/Inspector General to investigate and prosecute

Holding

No. The Inspector General and DPP are independent constitutional offices; the court cannot dictate how they perform their duties, and no proof was shown of a report made to and neglected by the DCI.

Reasoning

Articles 157(4), 157(11) and 245(4) delineate who may direct investigations - the DPP may direct the IG in writing, but no person may direct the IG to investigate a particular offence. The applicant sought to have the court dictate to these independent offices without showing he had first reported the matter to them and been ignored.

p. 3
03

Whether the criminal process is being used to resolve a civil dispute

Holding

Yes; the application is an abuse of court process. Criminal process may only be interfered with where investigations are necessary for determination of a matter before the court.

Reasoning

Relying on the Kenya Commercial Bank decision, the court held that using the police to settle a civil dispute is unconscionable and a travesty of justice. The applicant had remedies within the civil process - cross-examination on the affidavit, expungement, or entry of a fresh consent - and no special circumstances justified involving the DCI.

p. 3

Legal principles established

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  • The offices of the Inspector General and the DPP are independent and cannot be directed by a court of law to investigate particular offences
  • It is not in the public interest or the interest of the administration of justice to use the criminal justice process as a pawn in civil disputes

Court orders

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  1. 1.The application dated 4th June 2020 is dismissed
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Penal Codesection 108
  • Criminal Procedure Codesection 193A
  • Constitution of Kenya, 2010Article 157(4)
  • Constitution of Kenya, 2010Article 157(11)
  • Constitution of Kenya, 2010Article 245(4)
  • Constitution of Kenya, 2010Article 245(5)

Cases cited (5)

  • David Omwenga Maobe vs Republic
    (2015) eKLR
  • R v Archer
    (2003) 1 Cr. Appeal R (5) 86
  • R v Clegg
    (1868) 19 LT 47) (EA 1851)
  • Chumo Arap Songok v David Kibiego Rotich
    [2006] eKLR
  • Commissioner Of Police & The Director Of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others
    [2013] eKLR
Jurisdiction invoked
Inherent discretion of the High Court; contested against Articles 157(4), 157(11) and 245(4) of the Constitution

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, "Protus Hamisi Wambanda v Elizabeth Shijeyi Shava; Eldoret Hospital (Interested Party) [2020] KEELC 1112 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1112/eng@2020-09-22

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