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ELCDismissedNot stated in the judgment (Notice of Motion dated 25th April 2023 within a constitutional Petition)· [2024] KEELC 5792 (KLR)

Doshi & 2 others v Director of Public Prosecution & 6 others (Environment & Land Petition E017 of 2023) [2024] KEELC 5792 (KLR)

Environment and Land Court of Kenya
31 July 2024
6,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to halt a criminal prosecution and property restrictions, ruling that repeated lawsuits over the same land dispute amount to abuse of court process.

What this practically means

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Executive summary

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The Petitioners moved the Environment and Land Court by Notice of Motion dated 25th April 2023 seeking conservatory orders pending the hearing of their Petition: a stay of their prosecution in MCCR E257 of 2023 (where the 1st and 3rd Petitioners faced charges of forging a stamp duty receipt over L.R. No. 209/3850), a prohibitive injunction against the arrest of the 2nd Petitioner, an order restraining the 7th Respondent from dealing with the suit property, and an order restraining the Chief Land Registrar from altering the register or issuing titles. The Petitioners claimed they lawfully purchased the property in 1992 and that the DPP's prosecution, undertaken despite DCI findings validating the receipts, was an abuse of prosecutorial power and discriminatory. The DPP maintained the prosecution followed sufficient evidence and that Section 193A of the Criminal Procedure Code permits concurrent proceedings, while the 7th Respondent, the registered allottee and owner, asserted the receipts were forged. Framing three issues, the court applied the Munya and Board of Management of Uhuru Secondary School conservatory-order principles. It found no prima facie case: the multiplicity of suits the Petitioners had filed over the same subject matter (several dismissed for abuse of process, forum shopping or non-prosecution) constituted an abuse of court process; intervening in the prosecution would usurp the trial court; orders against the 7th Respondent raised private-law rather than public-interest concerns, and title under Section 26 of the Land Registration Act is prima facie proof of ownership; and the presumption of regularity attaching to public officials' acts was unrebutted. The application was dismissed with costs to the Petitioners.

Key legal issues

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01

Whether conservatory orders should issue to stay the criminal proceedings in MCCR E257 of 2023

Holding

No; the Petitioners failed to establish a prima facie case, and staying the prosecution would usurp the trial court's functions; the multiplicity of suits constituted an abuse of court process

Reasoning

Applying the conservatory-order principles in Board of Management of Uhuru Secondary School, the court found no arguable prima facie case. Section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings, and there was no civil suit pending when the Petitioners were charged. Article 50 safeguards suffice; the court should not usurp the trial court's role of weighing evidence. Prior suits on the same subject matter, dismissed or withdrawn, showed abuse of process.

p. 10
02

Whether conservatory orders should issue restraining the 7th Respondent from dealing with the suit property

Holding

No; the dispute concerns private-party interests over private property, and the Petitioners failed to establish a prima facie case or entitlement in equity

Reasoning

Conservatory orders bear a public-law connotation per the Supreme Court in Munya; the orders sought here were against an individual citizen over private property, so public interest was not engaged. The property is registered in the 7th Respondent's name and is prima facie proof of ownership under Section 26 of the Land Registration Act. The Petitioners also failed the clean-hands principle given their multiplicity of suits.

p. 11
03

Whether conservatory orders should issue restraining the 4th Respondent from altering or issuing titles or making register entries

Holding

No; the Petitioners did not rebut the presumption of regularity attaching to acts of public officials

Reasoning

Under the maxim omnia praesumuntur rite esse acta, all acts of a public official are presumed lawful until rebutted. The Petitioners presented no evidence to rebut this presumption regarding the cancellation of entries. Similar issues had already been raised in Milimani Judicial Review Misc Application No. 46 of 2020, which the Petitioners failed to prosecute.

p. 11

Legal principles established

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  • The power of a court to stay or interfere with an investigation or prosecution ought to be sparingly exercised, and only in the clearest of cases, especially at an interlocutory stage
  • A certificate of title under Section 26 of the Land Registration Act is prima facie proof of ownership
  • All acts done by a public official are presumed to have been lawfully done unless rebutted

Court orders

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  1. 1.The Petitioners' Notice of Motion application dated 25th April 2023 is dismissed as unmerited
  2. 2.The Petitioners shall pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 165(3)(d)(ii)
  • Constitution of Kenya, 2010Article 29(a)
  • Constitution of Kenya, 2010Article 29(d)
  • Constitution of Kenya, 2010Article 27(1) and (2)
  • Constitution of Kenya, 2010Article 10(1) and (2)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 157(11)
  • Criminal Procedure CodeSection 193A
  • Land Registration ActSection 26
  • National Prosecution Policy

Cases cited (24)

  • Invesco Assurance Co. Ltd vs MW (Minor suing thro' next friend and mother (HW)
    [2016] eKLR
  • Centre for Rights Education and Awareness (CREAW) & 7 Others vs Attorney General
    [2011] eKLR
  • Board of Management of Uhuru Secondary School vs City County Director of Education & 2 others
    [2015] eKLR
  • Wilson Kaberia Nkunja vs the Magistrates and Judges Vetting Board and Others
    [2016] eKLR
  • Peter Gatirau Munya vs Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Habib Bank AG Zurich vs Eugene Mariou Yakub
    (Nairobi Civil Application No. 43 of 1982)(Unreported)
  • Kevin K. Mwiti & Others vs Kenya School of Law & 2 others
    [2015] eKLR
  • Harrison Kiambuthi Wanjiru & Another vs District Land Registrar Nairobi & 3 others
    [2022] eKLR
  • Alfred N. Mutua vs Ethics & Anti-Corruption Commission (EACC) & 4 others
    [2016] eKLR
  • Anarita Karimi Njeru vs Republic
    [1979] eKLR
  • Joram Mwenda Guantai vs The Chief Magistrate
    [2007] eKLR
  • Edwin Harold Dande & 3 Others vs DPP and 2 Others
    [2022] eKLR
  • AG vs AG & 3 Others ex parte Thomas Ng'ang'a Munene
    [2014] eKLR
  • Republic vs Commissioner of Police and another ex parte Michael Monari & another
    [2012] eKLR
  • Judicial Service Commission vs Speaker of the National Assembly & Another
    [2013] eKLR
  • Republic vs Public Procurement Regulatory Authority Ex parte EAA Company Limited; Kenya Bureau of Standards & 2 others (Interested Parties)
    [2021] eKLR
  • R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) (Case C-213/89)
    [1991] 1 A.C. 603
  • American Cyanamid Co vs Ethicon Ltd
    (1975) AC 396
  • Commissioner of Police & the Director of Criminal Investigation Department & Another vs Kenya Commercial Bank Ltd & 4 others
    [2013] eKLR
  • Kuria & 3 Others vs AG
    (2002) 2 KLR
  • Green View Lodge Ltd v Harit Shet T/A Harit Sheth Advocates and Magnum Properties Limited
    Milimani ELC Case No. 559 of 2011
  • Republic v Chief Land Registrar, Director of Criminal Investigations ex parte Greenview Lodge Limited
    Milimani ELC Misc Judicial Review Application No. E005 of 2022
  • Ashok Labshanker Doshi and Pratibha Ashok Doshi v Director of Public Prosecutions, Director of Criminal Investigations, Inspector General of the National Police Service, Attorney General and Greenview Lodge Limited (Interested Party)
    Mombasa Petition No. 44 of 2020
Jurisdiction invoked
Article 23 as read with Article 165(3)(d)(ii) 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, "Doshi & 2 others v Director of Public Prosecution & 6 others (Environment & Land Petition E017 of 2023) [2024] KEELC 5792 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 25th April 2023 within a constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5792/eng@2024-07-31

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