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High CourtDismissedJudicial Review Application No. 72 of 2019 consolidated with Constitutional Petition No. 360 of 2018

Republic ex parte Applicants (Judicial Review Application No. 72 of 2019) and Petitioner (Constitutional Petition No. 360 of 2018) v Director of Public Prosecutions & others

High Court of Kenya
17 January 2020
9,548 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~38 min to read original · ~4 min brief

The bottom line

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To stop a criminal prosecution, you must prove a clear, proven violation of the Constitution, not just argue that the investigation was weak.

What this practically means

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Executive summary

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This judgment disposes of two consolidated suits - Judicial Review Application No. 72 of 2019 and Constitutional Petition No. 360 of 2018 - both challenging Nairobi Chief Magistrates Criminal Case No. 1717 of 2018 (Republic v Mohammed Zafrulla & others), arising from investigations into the movement of Ksh. 1,150,125,587.20 from Chase Bank Limited. The judicial review applicants, directors of two companies that received the funds, sought certiorari and prohibition, alleging poor investigations, absence of factual foundation, and reliance on National Intelligence Service clearance. The Petitioner, a Netherlands resident charged in absentia, claimed he was merely a nominal director used to incorporate Porting Access Kenya Limited, was never interviewed, and that the prosecution violated his rights to fair administrative action, natural justice and fair hearing. Mativo J framed the central question as the circumstances in which the High Court may halt a criminal prosecution. He held that the court does not weigh the veracity of evidence - that is for the trial court - and may intervene only upon cogent and proven constitutional violations, threatened unfair trial, or prosecution commenced without factual basis. He found a factual foundation existed (movement of funds and directorship evidence), no proof of abuse of discretion or lack of DPP independence, and that the applicants' complaints amounted to defences. The judicial review application was also faulted for not pleading established judicial review grounds, and the Petitioner for merely reciting constitutional provisions without proving violations. Both suits were dismissed with no orders as to costs, and the criminal case was directed to proceed to hearing and determination.

Key legal issues

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01

Whether the High Court should quash or prohibit a criminal prosecution on grounds of poor investigations

Holding

The court declined; allegations of poor investigations are matters of defence for the trial court, and the DPP independently evaluated the evidence before deciding to prosecute

Reasoning

The court held that the police gather evidence and forward the file to the DPP, who decides independently. The applicants' complaints about investigations amounted to defences rather than proof of irregularity or illegality in the initiation or conduct of proceedings. No material showed the DPP acted under external influence or without factual basis.

p. 8
02

Whether the prosecution lacked a factual foundation

Holding

A factual basis existed: investigations revealed movement of depositor's funds from Chase Bank Limited to companies in which the applicants and Petitioner were directors

Reasoning

Investigations revealed movement of funds and evidence that the applicants and Petitioner were directors of the recipient companies. The veracity of that evidence and culpability are matters for the trial court. The NIS clearance claim and the Petitioner's denial of involvement were defences, not grounds for judicial review intervention.

p. 8
03

Whether the judicial review application met the established grounds for judicial review

Holding

The application was so thin on legal foundation that it did not cite the established grounds for judicial review, including section 7 of the Fair Administrative Action Act

Reasoning

The court found the applicants never pleaded or submitted on any of the traditional common law grounds or the statutory grounds under section 7 of the Fair Administrative Action Act. Similarly, the Petitioner pleaded constitutional provisions but made no attempt to prove the violations alleged.

p. 8
04

The scope of the DPP's constitutional independence under Article 157(10)

Holding

The DPP's independence must be respected and the court will hesitate to interfere absent clear evidence of breach of constitutional duty or abuse of discretion

Reasoning

The court emphasised that the DPP requires no consent to commence proceedings and is not under any person's direction or control. Two reasons justified respecting the decision to prosecute: constitutional independence must be respected, and intervention requires clear evidence of breach or abuse of discretion, none of which was tendered.

p. 10

Legal principles established

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  • The High Court may only halt a prosecution where there are cogent and proven violations of constitutional rights, a threat to a fair trial, or where the prosecution is commenced without a factual basis
  • It is not the High Court's function to weigh the veracity or strength of the evidence against an accused; that is for the trial court
  • The inherent power to stop a prosecution for abuse of process is exercised only in exceptional circumstances
  • Mere recitation of constitutional and statutory provisions is insufficient; actual violations must be proved

Court orders

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  1. 1.Dismissal of Judicial Review Application Number 72 of 2019
  2. 2.Dismissal of Constitutional Petition Number 360 of 2018
  3. 3.No orders as to costs
  4. 4.Direction that Nairobi Chief Magistrates Criminal Case number 1717 of 2018, Republic vs Mohammed Zafrulla & Others proceeds to hearing and determination
Jurisdiction invoked
High Court's constitutional jurisdiction to grant judicial review remedies (certiorari and prohibition) and enforce fundamental rights under the Constitution of Kenya, 2010

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, "Republic ex parte Applicants (Judicial Review Application No. 72 of 2019) and Petitioner (Constitutional Petition No. 360 of 2018) v Director of Public Prosecutions & others", Case Analysis (2020). Judicial Review Application No. 72 of 2019 consolidated with Constitutional Petition No. 360 of 2018. Source: 

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