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ELCDismissedPetition (Makueni) re: Plot No. 3762 Mtito Andei· [2024] KEELC 1386 (KLR)

Zibu & 11 others (Suing on their own behalf and on behalf of the residents of Good Hope Rehabilitation Centre and Blue Cross Kenya-Kibwezi East) v Director of Public Prosecutions & 3 others (Environment & Land Petition E001 of 2020) [2024] KEELC 1386 (KLR)

Environment and Land Court
6 March 2024
4,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that winning a civil land case does not stop police from investigating the same dispute, absent proof the criminal process is being abused.

What this practically means

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Executive summary

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The Petitioners, who obtained a judgment and decree in Makueni ELC Case No. 78 of 2017 awarding them ownership, possession and control of Plot No. 3762 Mtito Andei (an outcome affirmed by the Court of Appeal on 7th July 2022), challenged the criminal investigations opened against them following a complaint by the 4th Respondent, who lost the land dispute. They sought declarations that the DPP and Inspector General cannot reopen criminal charges on a land title already conclusively determined, that the investigations breached Article 50(1) (double jeopardy), a finding of discrimination under Article 27, and certiorari to quash any decision to charge them. The 2nd and 3rd Respondents maintained that they were mandated by Section 35 of the National Police Service Act to investigate complaints, that investigations were incomplete, and that the Petition was premature. The court framed the sole issue as whether Articles 27, 40 and 50 rights were violated or threatened. Applying the Anarita Karimi Njeru precision rule, and relying on authority that civil and criminal proceedings may run in parallel under Section 193A of the Criminal Procedure Code absent ulterior purpose, the court found no evidence of discrimination, abuse of process, or any decision to charge. It held that the court cannot direct or supervise police investigations, and dismissed the Petition, with each party bearing its own costs.

Key legal issues

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01

Whether the police investigations into the 4th Respondent's complaint were discriminatory and an abuse of process

Holding

No; the police are mandated to investigate complaints and the Petitioners adduced no evidence of ulterior motive or discrimination

Reasoning

The police have a statutory and constitutional mandate to investigate crime. The court can only interfere if there is sufficient evidence that the police acted unconstitutionally or abused their mandate. The Petitioners alleged bias and selective investigation but produced no evidence that the 2nd Respondent failed to comply with Sections 35 and 51(1) of the National Police Service Act or that the investigations were induced by an ulterior motive.

p. 10
02

Whether the intended criminal prosecution would violate the right to fair trial under Article 50(1) as a second trial

Holding

No; no charges have been preferred and no legal bar exists where there is justifiable cause, the burden of proof resting on the prosecution

Reasoning

Certiorari could not issue because no decision to charge had been made. Parallel proceedings are permitted under Section 193A of the Criminal Procedure Code unless employed for ulterior purposes. The Petition demonstrated no risk to the presumption of innocence or to a fair trial, and courts should not interfere with investigations before their completion and the charging of a suspect.

p. 10
03

Whether the ELC judgment in ELC No. 78 of 2017 bars criminal investigations over the same land dispute

Holding

It does not; civil and criminal proceedings may run concurrently unless the criminal process is used for an improper purpose

Reasoning

The judgment and decree in ELC No. 78 of 2017, since affirmed on appeal, divested the 4th Respondent of ownership. However, the existence of a civil suit and parallel criminal proceedings on the same facts is not an abuse of process; the Petitioners had to demonstrate ulterior motive or abuse, which they failed to do on the evidence.

p. 11

Legal principles established

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  • Parallel civil and criminal proceedings on the same facts are permissible unless one is being used for ulterior motives or to abuse the court process
  • A party alleging constitutional violation must set out with precision the right infringed, the provisions infringed and the manner of infringement (Anarita Karimi Njeru rule)
  • A person alleging discrimination under Article 27 must show that differential treatment denied them equal protection or benefit of the law

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 27, 40, 50, 157(11), 243-245
  • National Police Service Act, 2011Sections 35, 51(1), 52(1)
  • Criminal Procedure CodeSection 193A

Cases cited (9)

  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Republic v Commissioner of Police & Another ex parte Micheal Monari & Another
    (2012) eKLR
  • John Harun Mwau v IEBC & Another
    (2013) eKLR
  • Commissioner of Police & The Director Of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others
    [2013] eKLR
  • Dande & 3 others v Inspector General, National Police Service & 5 others
    (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR)
  • Ezekiel Waruinge v Director of Public Prosecutions & 2 Others
    [2017] eKLR
  • Githunguri v Republic
    [1985] LLR 3090
Jurisdiction invoked
Article 22(1) 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, "Zibu & 11 others (Suing on their own behalf and on behalf of the residents of Good Hope Rehabilitation Centre and Blue Cross Kenya-Kibwezi East) v Director of Public Prosecutions & 3 others (Environment & Land Petition E001 of 2020) [2024] KEELC 1386 (KLR)", Case Analysis (2024). Petition (Makueni) re: Plot No. 3762 Mtito Andei. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1386/eng@2024-03-06

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