Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtPartially AllowedPetition dated 16th August 2018 (High Court, Nairobi)

Development Bank of Kenya Ltd v Director of Public Prosecutions & Inspector General of Police; Giriama Ranching Company Limited (Interested Party)

High Court of Kenya
5 March 2020
7,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

Criminal investigations cannot be used to settle civil disputes, especially when they threaten a person's property rights.

What this practically means

#

Executive summary

#
Development Bank of Kenya petitioned the High Court to halt criminal investigations and intended prosecutions concerning a legal charge over L.R. No. 12785, land belonging to Giriama Ranching Company Limited, which secured a Kshs.250 million loan to Riva Oils Company Limited. After the land was advertised for sale in July 2018, Hon. Owen Yaa Baya MP complained to the DPP, who directed the Inspector-General to investigate alleged fraud in the procurement of a provisional title used as loan security. The Bank argued the investigations were externally influenced, predetermined, an abuse of process, a vehicle for discovery in pending civil suits, and a threat to its rights to property and fair trial. The respondents and the Interested Party maintained the police were merely performing their constitutional duty to investigate a complaint. The court, per W. Korir J, held that the DPP's power under Article 157(4) does not extend to directing how investigations are conducted; the Inspector-General is independent in investigating particular offences; and courts may intervene only where prosecutorial or investigative powers are exercised unlawfully, in bad faith or in abuse of process. Although the court found no evidence that Hon. Baya's demands influenced the respondents and no bad faith, it concluded that the dispute was essentially civil, that the investigations criminalised a banking transaction to deny the Bank its property rights, and that the respondents had abused their powers. The court issued an order of prohibition restraining further investigations or prosecution over the charge pending determination of the three civil suits, but declined the declarations and certiorari sought, and directed each party to bear its own costs.

Key legal issues

#
01

Whether the criminal investigations were influenced by external forces (Hon. Baya, the Interested Party and civil plaintiffs) contrary to Article 157(10) and Article 245(4)

Holding

The claim was unsustainable; no coercive link between the complainants' demands and the respondents' actions was demonstrated

Reasoning

The court found that media demands by Hon. Baya and the Interested Party did not establish that the respondents acted at their behest. The respondents have no control over the media, and apart from newspaper articles the Petitioner provided no link between the demands and the decision to investigate.

p. 11
02

Whether the criminal investigations amount to using the criminal process to aid the civil plaintiffs and abuse the legal process

Holding

Yes; the dispute is more civil than criminal in nature and the investigations were an abuse of constitutional and statutory powers

Reasoning

The court examined the facts and found the dispute essentially civil: the allegation is that a provisional title used to secure the loan was fraudulently obtained, an issue determinable in the pending civil suits. Criminalising the transaction would deny the Petitioner its right to property and a fair trial, and any fraud exposed at the civil trial would find appropriate remedies there.

p. 14
03

Whether the court can intervene in the DPP's and Inspector-General's exercise of powers

Holding

Yes, but only where the powers are exercised outside constitutional and legal bounds, maliciously, or in abuse of process

Reasoning

Relying on Diamond Hasham Lalji, the court held that prosecutorial discretion is limited by Article 157(11) and reviewable by the High Court, but courts should respect separation of powers and not unjustifiably interfere unless the discretion is exercised unlawfully, under another's control, in abuse of process, or in breach of rights.

p. 9

Legal principles established

#
  • The DPP's power under Article 157(4) to direct the Inspector-General to investigate does not include power to direct how investigations are carried out or their outcome
  • The Inspector-General's office is independent when it comes to investigation of crimes; no person may direct him on investigation of any particular offence
  • The existence of a civil dispute is not of itself sufficient ground for stopping criminal proceedings; concrete grounds of abuse must be shown
  • The High Court may intervene where criminal proceedings are oppressive, vexatious, an abuse of process or a breach of fundamental rights, but sparingly

Court orders

#
  1. 1.An order of prohibition restraining the 1st and 2nd respondents from carrying out investigations or prosecution in respect of the legal charges created over L.R. No. 12785 pending the hearing and determination of Mombasa Commercial Court Case No. 57 of 2018, Milimani Commercial Court Case No. 304 of 2018, and Malindi ELC No. 155 of 2018
  2. 2.Each party to bear their own costs of the proceedings
Jurisdiction invoked
Article 165(2)(d)(ii) of the Constitution (High Court jurisdiction over enforcement of fundamental rights and review of DPP's exercise of prosecutorial power)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Development Bank of Kenya Ltd v Director of Public Prosecutions & Inspector General of Police; Giriama Ranching Company Limited (Interested Party)", Case Analysis (2020). Petition dated 16th August 2018 (High Court, Nairobi). Source: 

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