James Makura M'Abira v The Director of Public Prosecutions

employment without loss of benefits; an order of judicial review in the nature of certiorari, Page 2 of 12

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to bring to the court the letters dated 22 nd May 2019, 22nd April 2020, and 8th May 2020, quashing the same and an order of judicial review in the nature of prohibition. 2. The petition was supported by the appellant’s affidavit, sworn on 19th May 2020, deposing that he is a Senior Prosecution Counsel, having been employed on 19 th January 2004. He further stated that while stationed in the Nyeri Regional Office, on 22nd June 2011, he was arrested and thereafter prosecuted for corruption offences in Anti- Corruption Case Number 3 of 2012. During the trial, the respondent suspended him. Following a full hearing, he was acquitted of all charges on 22nd November 2017. 3. He deposed further, that despite his acquittal and his subsequent written requests in 2018, seeking for the suspension to be lifted, the respondent issued him with a show cause notice on 22nd May 2019, asking him to justify why he should not be dismissed based on the charges of which he was acquitted; he responded vide a letter dated 22nd April 2020, however, the respondent stopped the appellant's salary without granting him a hearing. Despite his request, he received a letter from the respondent dated 23rd June 2011, informing him of his interdiction under Section 62(10) of the Anti-Corruption and Economic Crimes Act, 2003. 4. The appellant further claimed that the respondent’s action violated the rules of natural justice, section 62(3) of the Anti- Corruption and Economic Crimes Act, and multiple constitutional articles regarding fair administrative action, Page 3 of 12

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fair Page 4 of 12

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labour practices, and protection against discrimination, especially since other officers in similar positions remained employed after acquittal. 5. In opposing the petition, the respondent filed grounds of opposition dated 12th June 2020 and a replying affidavit sworn on 15th June 2020 by Dorcas Oduor, then Secretary, Public Prosecutions, who deposed that the appellant was interdicted on 23rd June 2011 upon his arrest and arraignment in court. Further, she stated that despite the appellant’s acquittal, the judgment was clear on his culpability as it was found that he had received the treated sum of Kshs 25,000; and as a result, on 22 nd May 2019, the respondent issued him with a letter to show cause why disciplinary action should not be taken against him, which he responded to in a letter dated 3rd June 2019. The appellant’s response was placed before the ODPP Advisory Board on 18 th March 2020, which board advised that he ought to be dismissed. That by 18th March 2020, the appellant had already been dismissed from service, and his salary stopped. 6. Further, she deposed that before the dismissal, the appellant was accorded a fair hearing before the decision to dismiss him from service was reached in compliance with Article 50(2)(o) of the Constitution; the respondent’s letter dated 22nd May 2019 enumerated details of gross misconduct attributed to the respondent in line with section 44(4)(l) of the Employment Act. Further, the process applied by the respondent is provided for under the ODPP Human Resource Manual and the Public Service Commission Human Resource Page 5 of 12

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Policies and Procedures Manual for the Public Service. She asserted that the appellant Page 6 of 12

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did not demonstrate that in dismissing him from service, the respondent acted without or in excess of the powers conferred upon him by the law or infringed, violated, or contravened or in any other manner failed to comply with respect and in observing provisions of the Constitution or any other provision thereof; further in his petition the appellant merely stated the alleged violation of rights but failed to particularize how his rights had been infringed and the nature and extent of the alleged violation. 7. The respondent raised a preliminary objection on 19 th June 2020, on the grounds that the petition did not raise any constitutional issues requiring determination, and should, therefore, be dismissed in its entirety. 8. Upon hearing submissions by the parties on the preliminary objection, the trial court, in its determination of 13 th July 2020, found that the appellant had failed to adequately particularise the alleged violation of his constitutional rights, and further, the case involved an employment dispute, thus upholding the preliminary objection and striking out the petition with no order as to costs. 9. The above ruling aggrieved the appellant, precipitating this appeal. In a memorandum of appeal dated 18 th November, 2020, eight (8) grounds of appeal were raised urging that the learned Judge erred by failing to recognize the particularization of violations in the petition; disregarding violations of the appellants rights to fair labor practices and administrative action; improperly striking out the petition due to procedural Page 7 of 12

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technicalities contrary to Article 159(2)(d) of the Constitution; not acknowledging the appellant’s entitlement to a hearing before dismissal under Article 47(1) of the Constitution and the Fair Administrative Action Act; not recognizing that the acquittal of the criminal charges, should have led to the lifting of the appellant’s suspension; and ultimately, a failure to uphold the appellant’s constitutional rights under Articles 27, 41, and 47 of the Constitution. He contends that the ruling resulted in a miscarriage of justice, asserting that the case was wrongly treated as solely an employer-employee dispute without the court addressing constitutional issues raised. Furthermore, he claimed that letters regarding a notice to show cause and dismissal, tied to a concluded anti-corruption case, violated his rights. 10. The appeal before us was heard on the Court’s virtual platform by way of written submissions that were briefly highlighted by counsel for the respective parties. Learned counsel for the appellant relied on submissions, a list of authorities, and a further list of authorities, all dated 4 th July 2025, contending that the trial court erred in arriving at a decision that the appellant failed to properly articulate the alleged violation of his constitutional rights. Counsel argues that the appellant’s dismissal from employment directly violated his constitutional right, including protection against double jeopardy; the right to fair administrative action, and freedom from discrimination, as espoused in Article 50, 47 and 27 of the Constitution respectively, especially given that other employees who faced similar charges were not Page 8 of 12

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removed from service on acquittal. Page 9 of 12

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11. Counsel anchored his arguments on Joshua Muindi Maingi vs National Police Service Commission & 2 Others [2015] KEELRC 1036 (KLR), where the court found that under section 62(3) of the Anti-Corruption and Economic Crimes Act, a public officer suspended due to criminal charges must be reinstated if they are acquitted, unless valid independent disciplinary proceedings are properly executed. Relying on the cited authority, he urges that after an acquittal of criminal charges, an employee ought to be reinstated, and that an employer cannot use facts from a failed criminal prosecution to bypass statutory protections and arbitrarily terminate an employee. Counsel argues further that the respondent's actions amounted to an unlawful exercise of power that overlooked section 62(3) of the Anti-Corruption and Crimes Act and violated Articles 27, 41, 47 and 50 (2)(o) of the Constitution. Ultimately, counsel prays that this Court sets aside the impugned ruling and grant the reliefs sought by the appellant. 12. In opposing the appeal learned counsel for the respondent filed submissions and a case digest both dated 7 th July 2025 and submits that the trial court's dismissal was legally sound since the petition merely contained blanket assertions without demonstrating with reasonable precision how the appellant’s constitutional rights were infringed. In support of this contention, counsel relies on Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Josephat Mailu Ndolo (suing on behalf of the Estate of Anthony Ndolo Mailu) vs Page 10 of 12

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Director of Public Prosecutions & Another [2020] eKLR. Page 11 of 12

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13. The respondent further urges that ordinary employment and contractual disputes cannot be elevated to constitutional issues unless exceptional and grave violations are proven. In support of this proposition, counsel relies on Francis James Ndegwa vs Tetu Dairy Co-operative Society Limited [2016] eKLR, where the High Court was of the view that not every unlawful act or failure by a public authority amounts to a violation of a constitutional right or fundamental freedom and that Constitutional Petitions should not be used as a substitute for ordinary legal processes. The court rejected the claim, finding it frivolous, vexatious, and intended merely to bypass the appropriate legal process. 14. Counsel also cites the case of Justice Amraphael Mbogholi Msagha vs The Chief Justice of the Republic of Kenya & 7 Others [2006] eKLR, where the court held that an applicant moving to the court on account of a constitutional issue must be precise so that the respondent knows the nature and the extent of the case so as to prepare appropriately. 15. Furthermore, counsel refutes the appellant's claim of double jeopardy under Article 50(2)(o) of the Constitution and explains that double jeopardy applies strictly to criminal prosecutions requiring proof beyond a reasonable doubt. Counsel asserts that, in this instance, the subsequent disciplinary process was a separate, regulatory, and corrective administrative mechanism executed under a contractual employment relationship and determined on the balance of probabilities. In support of this assertion, counsel Page 12 of 12

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relies on Republic vs Secretary, Teachers Service Commission & Another Page 13 of 12

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Exparte Samuel Mulamula Lipeya Kisumu ELRC Judicial Review 1 of 2016, where the court held that criminal investigations by the police and disciplinary investigations by the Commission serve different purposes and operate independently. 16. Counsel cited Attorney General & Another vs Andrew Maina Githinji & Another [2016] eKLR, where this Court held that while criminal proceedings require proof beyond reasonable doubt, whereas disciplinary proceedings are determined on a balance of probabilities; consequently, an acquittal in a criminal case does not preclude a finding of guilt in disciplinary proceedings. He therefore contends that subjecting a person to both processes does not amount to double jeopardy, provided that each is conducted lawfully within its respective mandate. 17. Counsel argues further that because the disciplinary proceedings were independently anchored in the ODPP and Public Service Commission resource manuals to protect institutional integrity, the employer was not bound by the criminal acquittal. Ultimately, counsel submits that the appeal is unmeritorious and requests the Court to dismiss it with costs. 18. This being a first appeal, this Court is obliged to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusion, bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. In Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA Page 14 of 12

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123, this Court held that a Page 15 of 12

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first appellate court must reconsider the evidence, analyse and evaluate it itself and draw its own conclusions, though it should always bear in mind that it neither saw nor heard the witnesses. 19. Having considered the pleadings, rival submissions, case law cited and the law, we find that the appeal turns on only one issue: whether the claim in the petition raised any constitutional issue or whether the dispute was purely an employment one? 20. The applicable principles in cases of constitutional violation were authoritatively restated by this Court in Matemu vs Trusted Society of Human Rights Alliance & 5 Others (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR), where the constitutional Court affirmed violations must that a plead litigant with alleging reasonable precision the constitutional provisions infringed and the manner of their infringement. The trial Judge in his determination cited the locus classicus case of Anarita Karimi Njeru vs Republic [1979] KEHC 30 KLR where it was held as follows: “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed”. Page 16 of 12

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21. In the end, the Judge held that the petitioner did not particularise and articulate the Articles of the Constitution infringed or violated in respect of each and every allegation of Page 17 of 12

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constitutional breach. Further, the dispute between the parties is solely in the prism of an employment dispute, and no constitutional questions arise to elevate it to the sphere of a constitutional petition. 22. It is evident from the petition that the appellant merely cited constitutional provisions claiming that his rights had been violated without setting out with precision the specific conduct complained of, the nexus between that conduct and the constitutional provisions relied upon, and the prejudice suffered. 23. Furthermore, the appellant's argument that disciplinary proceedings following acquittal amounted to double jeopardy is legally untenable. Article 50(2)(o) applies to criminal proceedings. The disciplinary process undertaken by an employer is distinct from criminal proceedings and is governed by different objectives, standards and procedures. The respondent's disciplinary mandate was independent of the criminal prosecution. The Court therefore finds that no constitutional violation was sufficiently pleaded or demonstrated. 24. Courts have consistently cautioned litigants against transforming ordinary statutory, contractual or employment disputes into constitutional disputes, particularly where adequate remedies are available. In Speaker of the National Assembly vs Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR), this Court held that where the Constitution or statute provides a clear procedure for redress, that procedure Page 18 of 12

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ought to be strictly followed. Similarly, in Mutava & 2 Others vs Kenya Ports Authority & Another [2016] KECA 411 (KLR), this Court held that where there exists sufficient remedies to resolve a dispute, a party ought not to trivialise the jurisdiction of a constitutional court by bringing actions that can be effectively resolved in other forums. In other words, not every grievance ought to be elevated into a constitutional controversy. It emphasised the principle of constitutional avoidance, which holds that where it is possible to decide a case without reaching a constitutional issue, that should be done. 25. The appellant's grievance arose from disciplinary proceedings, suspension, stoppage of salary and eventual dismissal from employment. The remedies sought, including reinstatement, quashing prohibition disciplinary of of disciplinary action, were letters and essentially employment remedies founded upon the employer-employee relationship. 26. The petition merely clothed an employment dispute in constitutional language without demonstrating exceptional circumstances or grounds warranting constitutional intervention. The learned Judge was therefore entitled to conclude that the proceedings constituted an improper invocation of constitutional jurisdiction and an abuse of the court process. Accordingly, this issue is determined against the appellant. 27. Based on the above analysis, we can only arrive at the conclusion that the trial court was correct in upholding the Page 19 of 12

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preliminary objection and striking out the petition. As a result, Page 20 of 12

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we find that the petition was an abuse of the court process, as it improperly sought to constitutionalise an ordinary employment dispute. Concomitantly, no constitutional violation was pleaded or proved with the precision required by law. 28. Accordingly, the appeal lacks merit and is hereby dismissed in its entirety with costs to the respondent. Dated and delivered at Nyeri this 25th day of September, 2026. W. KARANJA ........................................ . JUDGE OF APPEAL S. ole KANTAI ........................................ .. JUDGE OF APPEAL ALIARONI ........................................ .. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 21 of 12

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