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ELCStruck OutPetition dated 6th May 2019 (Malindi)· [2020] KEELC 2414 (KLR)

Ramadhan Idd Ramadhan & 5 others v Director of Public Prosecution & another; National Land Commission & another (Interested Parties) [2020] KEELC 2414 (KLR)

Environment and Land Court of Kenya
27 May 2020
JOJ. O. Olola
4,797 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Malindi struck out a petition seeking to stop a criminal land-fraud prosecution, confirming that having a civil case and criminal case at the same time is lawful.

What this practically means

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Executive summary

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The six Petitioners, styling themselves grandchildren of the late Liwali Sheikh Salim Bin Khalfan, petitioned the Malindi Environment and Land Court seeking conservatory orders staying Malindi CMCR No. 911 of 2018, in which they face eight counts of conspiracy to defraud over Land Parcels 120 Mguruleni and 121 Furunzi, together with declaratory and judicial review reliefs including certiorari, prohibition, rectification of land registers and damages. They contended the charges stemmed from shoddy, skewed investigations instigated by the 6th and 7th Respondents to dispossess them of their inheritance. The 7th Respondent sought striking out of the Petition as an abuse of process, arguing that land ownership disputes belong in civil suits and that concurrent criminal and civil proceedings are permissible. The DPP, DCI, Chief Land Registrar, Magistrates' Court and Attorney General opposed, invoking Section 193A of the Criminal Procedure Code and Article 157 of the Constitution. The 2nd Interested Party, other administrators of the estate, disowned the Petitioners as impostors. Olola J held that the burden lay on the Petitioners to demonstrate that the DPP and DCI exceeded their mandate or acted unconstitutionally; mere allegations of collusion without evidence were insufficient. Section 193A permits concurrent proceedings, and no abuse of process was shown. Finding no violation of constitutional rights, the Court struck out both the application dated 3rd May 2019 and the Petition, awarding costs to the 6th and 7th Respondents and the 2nd Interested Party.

Key legal issues

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01

Whether the Court could halt the ongoing criminal prosecution

Holding

The Court declined to halt the prosecution, finding the investigations and the DPP's decision were properly undertaken and no violation of rights was established

Reasoning

The DCI, a department under the National Police Service, investigated the complaint received in July 2017 for about seven months and forwarded a duplicate file to the DPP, who independently considered it for some three months before consenting to the prosecution. The Petitioners offered only allegations of collusion with the 6th and 7th Respondents without evidence of ulterior motive. Section 193A CPC permits concurrent criminal and civil proceedings. The Petition therefore failed.

p. 7
02

Threshold for interfering with the DPP's prosecutorial discretion

Holding

The Petitioners bore the burden of demonstrating that the DPP and DCI exceeded their mandate or acted unconstitutionally

Reasoning

Citing Diamond Hasham Lalji & Another v Attorney General, the court held the burden rests with the person alleging unconstitutional exercise of power, shifting to the DPP only if breach is established. The Petitioners adduced no evidence beyond bare allegations of collusion, so the threshold for judicial interference was not met.

p. 7

Legal principles established

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  • The burden rests on the person alleging unconstitutional exercise of prosecutorial power; the Court will only interfere with the DPP's decision if sufficiently shown that he exceeded his mandate or acted in contravention of the law
  • Concurrent civil and criminal proceedings are not a ground for staying criminal proceedings; criminal process will only be halted where it amounts to an abuse of process or is pursued for a collateral purpose

Court orders

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  1. 1.The Petitioners' application dated 3rd May 2019 is struck out
  2. 2.The Petition upon which the application is based is struck out
  3. 3.The 6th and 7th Respondents as well as the 2nd Interested Party shall have the costs

Authorities

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Legislation

  • Criminal Procedure CodeSection 193A
  • Penal CodeSection 317
  • Constitution of Kenya, 2010Article 157 (incl. 157(6))
  • Fair Administrative Actions Actnot specified

Cases cited (5)

  • Anarita Karimi Njeru v Attorney General
  • Republic v National Transport and Safety Authority & 10 Others Ex Parte James Maina Mugo
    2010
  • Paul Ng'ang'a Nyaga v Attorney General & Others
    (2013) eKLR
  • Diamond Hasham Lalji & Another v Attorney General & 4 Others
    (2018) eKLR
  • Republic v Chief Magistrates Court Nairobi & 4 Others
    (2013) eKLR
Jurisdiction invoked
Constitution of Kenya 2010 - enforcement of Bill of Rights (Articles 157 and 193A CPC raised); judicial review/conservatory jurisdiction of the High Court-ELC

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, "Ramadhan Idd Ramadhan & 5 others v Director of Public Prosecution & another; National Land Commission & another (Interested Parties) [2020] KEELC 2414 (KLR)", Case Analysis (2020). Petition dated 6th May 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2414/eng@2020-05-27

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