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ELCStruck OutPetition dated 19th June 2023· [2024] KEELC 7391 (KLR)

Ayora v Directorate of Criminal Investigations & another; Odhiambo (Interested Party) (Petition E029 of 2023) [2024] KEELC 7391 (KLR)

Environment and Land Court
22 October 2024
OMOGUTTU MBOYA
8,871 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, Alfred Juma Ayora, petitioned the Environment and Land Court seeking declarations that the criminal investigations, arrest and intended prosecution of his agents, Leanford Shihachi and Harrison Muyela, over matters touching on Nairobi/Block 99/142 were unconstitutional and an abuse of process, certiorari to quash the investigations and prosecutions, damages of Kshs 25,000,000 each for the agents, and a finding that named police officers were unfit for public office. He relied on interim injunction orders issued in his adverse-possession originating summons against the interested party, Teresia Adhiambo Odhiambo. The 2nd Respondent (DPP) did not participate. The court framed three issues: locus standi, jurisdiction, and entitlement to the reliefs sought. On the first, it held that under Articles 22(2)(a) and 258(2)(a) of the Constitution a petition may only be mounted on behalf of another who cannot act in their own name or who has authorised the petitioner; neither was shown, and mere employment confers no capacity. On the second, it held that complaints about the propriety of criminal investigations, arrests and prosecutions fall within the High Court's jurisdiction under Article 165(3), not that of the ELC under Article 162(2)(b). On the third, it observed obiter that section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings, and the Petitioner had not demonstrated mala fides or abuse of process warranting prohibition. The Petition was struck out, costs awarded to the 1st Respondent and interested party, and the conservatory orders issued on 30th May 2024 were vacated.

Key legal issues

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01

Locus standi to sue on behalf of third persons

Holding

The Petitioner lacked locus standi to maintain the Petition on behalf of his agents absent authority or proof they cannot act for themselves

Reasoning

Articles 22 and 258 permit a petition on behalf of another only where that person cannot act in their own name or has authorised the petitioner (e.g. by power of attorney). Employment or agency alone confers no capacity. The Petitioner produced no affidavits or authority from Leanford Shihachi and Harrison Muyela, both obviously of sound mind, and hence could not claim reliefs such as damages on their behalf.

p. 8
02

Jurisdiction of the Environment and Land Court over criminal-process complaints

Holding

The ELC lacks jurisdiction; complaints about criminal investigations, arrest and intended prosecution fall within the High Court's remit under Article 165(3)

Reasoning

Article 162(2)(b) confines the ELC to disputes touching on the environment and the use, occupation of and title to land. The Petition's grievances concerned the propriety of police investigations, arrest and threatened prosecution, not ownership or title to land against the Respondents. Attempting to rope in the ELC injunction orders could not confer jurisdiction, and proceedings without jurisdiction are a nullity.

p. 12
03

Whether concurrent civil proceedings bar criminal investigation/prosecution

Holding

No; section 193A of the Criminal Procedure Code allows civil and criminal proceedings to run in parallel, and intervention requires proof of mala fides or abuse of process

Reasoning

Section 193A expressly provides that a matter pending in civil proceedings is no ground to stay or prohibit criminal proceedings. Following the Supreme Court in Dande v DPP, both jurisdictions run parallel unless one is being abused. The Petitioner, who relied merely on pendency of his adverse-possession originating summons and bare allegations of ulterior motive, did not meet the threshold for prohibition of investigations or prosecution.

p. 15

Legal principles established

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  • Where a court is divested of jurisdiction, it must down its tools; proceedings taken without jurisdiction are a nullity
  • A petition on behalf of another person under Articles 22(2)(a) and 258(2)(a) requires demonstration that the person cannot act in their own name or has authorised the petitioner
  • A pending civil suit is no bar to criminal investigation and prosecution
  • The Environment and Land Court cannot adjudicate on the propriety of criminal investigations, arrests or prosecutions

Court orders

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  1. 1.Declaration that the Petitioner is devoid of locus standi to maintain the Petition on behalf of Leanford Shihachi and Harrison Muyela
  2. 2.Declaration that the Environment and Land Court is divested of jurisdiction to entertain the Petition
  3. 3.The Petition dated 19th June 2023 struck out
  4. 4.Costs of the Petition awarded to the 1st Respondent and the interested party
  5. 5.The conservatory orders issued on 30th May 2024 by Hon Justice E. K. Wabwotto vacated
Jurisdiction invoked
Article 162(2)(b) 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, "Ayora v Directorate of Criminal Investigations & another; Odhiambo (Interested Party) (Petition E029 of 2023) [2024] KEELC 7391 (KLR)", Case Analysis (2024). Petition dated 19th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7391/eng@2024-10-22

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