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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the police investigations into the 4th Respondent's complaint were discriminatory and an abuse of process
No; the police are mandated to investigate complaints and the Petitioners adduced no evidence of ulterior motive or discrimination
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.
Whether the intended criminal prosecution would violate the right to fair trial under Article 50(1) as a second trial
No; no charges have been preferred and no legal bar exists where there is justifiable cause, the burden of proof resting on the prosecution
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.
Whether the ELC judgment in ELC No. 78 of 2017 bars criminal investigations over the same land dispute
It does not; civil and criminal proceedings may run concurrently unless the criminal process is used for an improper purpose
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.
Legal principles established
#- 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
#- 1.The Petition is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Article 22(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.