Kalii & 2 others (Suing as Chairman, Secretary and Treasurer of Mamukii Society on Behalf of 2500 Society Members) v National Land Commission & 4 others (Environment & Land Petition E004 of 2021) [2024] KEELC 7299 (KLR)

The court noted that civil and criminal jurisdiction are distinct and that the ODPP, established under Article 157 of the Constitution, is mandated to institute and undertake criminal proceedings. Section 193A removes any suggestion that parallel civil proceedings justify staying a criminal trial. The applicants failed to show bad faith, malice or abuse of process by the ODPP in preferring the charges.

Applying the Global Tours & Travels and Kenya Power & Lighting tests, the court found the criminal charges were preferred three years before the application, filed on 21st March 2024, and the delay was unexplained. The criminal case was pending defence hearing, i.e. at an advanced stage. The applicants did not demonstrate bad faith by the ODPP or that they would suffer prejudice if both proceedings ran concurrently.

Setting out the conjunctive elements from the IEBC v Maina Kiai decision, the court observed that the accused in Kilungu MCCR No. E124 of 2021, apart from Pauline Mwikali, were not parties in HCJR No. 2 of 2021, and the 5th Respondent adduced no evidence that Criminal Case No. 225 of 2021 had been heard and determined. The elements were therefore not all satisfied.

The 5th Respondent argued the affidavit offended Rule 9 of the Advocates (Practice) Rules and Order 19 Rule 3(1) of the Civil Procedure Rules because the advocate deponed on contested matters without disclosing sources. The court held that the 5th Respondent never moved the court by way of preliminary objection to strike out or disregard the offending paragraphs, so the objection could not sustain dismissal of the application.