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ELCAllowedPetition E008 of 2023 (Notice of Motion dated 2nd November 2023)· [2024] KEELC 3994 (KLR)

Kimuli v Inspector General of Police & 2 others; Morris (Interested Party) (Environment & Land Petition E006 of 2023) [2024] KEELC 3994 (KLR)

Environment and Land Court
16 May 2024
COChristine Ochieng
3,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court blocked police from arresting or investigating a land buyer, ruling the criminal complaint was bad faith aimed at defeating a pending civil case.

What this practically means

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Executive summary

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The Environment and Land Court at Machakos (Christine Ochieng, J) allowed the Petitioner's Notice of Motion dated 2nd November 2023 seeking temporary injunctive relief against police investigations. The Petitioner had entered a sale agreement over approximately ten acres to be subdivided from Mavoko Town Block 3/60346, paid part of the purchase price, and taken possession under Clause 7 of the agreement. When the vendor, Christina Ndunge Morris, subdivided the land in alleged breach, the Petitioner sued for specific performance in ELC E016 of 2023, where status quo orders were issued protecting his possession. The vendor then lodged a complaint with DCI Joska, and the Petitioner was summoned as a suspect for forcible entry and forcible detainer under Sections 90 and 91 of the Penal Code, prompting this petition. The Respondents opposed, relying on Article 245(4)(a) and arguing that concurrent civil and criminal proceedings are lawful and that investigations had not been shown to be ultra vires or irrational. Applying Catherine Nyambura Muraria and Republic v DPP Ex parte Francis Njakwe Maina, the court held that although concurrent proceedings are permissible, criminal process commenced in bad faith or for a collateral purpose may be restrained. Finding bad faith by the Interested Party and no demonstrated necessity for the investigations while the civil suit was pending, the court granted a temporary injunction restraining summoning, arrest, charging or investigation pending hearing of the Petition, with costs in the cause.

Key legal issues

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01

Whether criminal investigations over land already the subject of a pending civil suit should be restrained

Holding

The temporary injunction was granted; the investigations were found to be commenced in bad faith and intended to defeat the status quo orders in the pending specific performance suit.

Reasoning

The Applicant purchased land, paid part of the price, and took possession under Clause 7 of the sale agreement; the vendor subdivided the land in breach and, after status quo orders issued in the ELC suit, lodged a complaint with police. The court found bad faith by the Interested Party and held police failed to demonstrate the necessity of their investigation while aware of the pending civil suit.

p. 7
02

Whether the court can intervene in police investigations notwithstanding the statutory mandate of police and DPP

Holding

The court confirmed it has jurisdiction to halt criminal process where it is used for improper purposes.

Reasoning

Relying on Catherine Nyambura Muraria and Francis Njakwe Maina, the court held that while police may investigate upon a lawful complaint, they must establish the basis of the complaint, its good faith, and whether it is intended to defeat pending court proceedings; where the process is used as a tool for score-settling, the court will intervene.

p. 3

Legal principles established

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  • Courts will halt criminal investigations or prosecutions commenced for a collateral purpose, such as to defeat pending civil proceedings or gain advantage in a civil dispute over the same subject matter.
  • Although concurrent criminal and civil proceedings are permissible, criminal process initiated with bad faith or for extraneous ends constitutes an abuse of process that the court may restrain.

Court orders

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  1. 1.Pending the hearing and determination of the Petition, an order of temporary injunction restraining the Respondents, their agents and servants from summoning, arresting and/or charging/preferring charges against the Applicant/Petitioner or in any way investigating any matter in respect of the dispute with Christina Ndunge Morris in ELC 016 of 2023 relating to Mavoko Town Block 3/105602 and Mavoko Town Block 3/105603, Joska Sub County, Machakos County
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 245(4)(a), Article 157(11), Article 50(1)
  • Penal CodeSections 90 and 91
  • Criminal Procedure CodeSection 193(A)

Cases cited (9)

  • KCB & Another v the Commissioner of Police & the Director of Criminal Investigations Department & Another
    Petition No. 218 of 2011
  • Douglas Maina Mwangi v Kenya Revenue Authority & Another
    High Constitutional Petition No. 528 of 2013
  • Republic v Director of Public Prosecutions & 2 Others Ex parte Francis Njakwe Maina & Another
    [2015] eKLR
  • Catherine Nyambura Muraria v Director of Public Prosecutions & another; Isaac Gathungu Wanjohi (Interested Party)
    [2019] eKLR
  • Republic v Attorney General & another exparte Hussein Mudobe
    High Court Misc. Application No. 898 of 2003
  • Meixner & Another vs. Attorney General
    [2005] 2 KLR 189
  • Fredrick Okeyo Otieno v Director of Public Prosecutions & 4 others
    [2017] eKLR
  • R v Attorney General Exparte Kipngeno Arap Ngeny
    High Court Civil Application No. 406 of 2001
  • Kuria & 3 Others vs. Attorney General
    [2002] 2 KLR 69
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition invoking Article 157(11) and Article 50(1) jurisprudence; Bill of Rights enforcement)

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, "Kimuli v Inspector General of Police & 2 others; Morris (Interested Party) (Environment & Land Petition E006 of 2023) [2024] KEELC 3994 (KLR)", Case Analysis (2024). Petition E008 of 2023 (Notice of Motion dated 2nd November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3994/eng@2024-05-16

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