John Ngei Vuti v The Director of Public Prosecutions & 3 others

with its offices in Agip House, Nairobi and deals with properties and survey works. He states that he was authorised by the complainant, by the name Original Wapenda Afya Bidii Housing Co-operative Society Ltd (OWAB) to subdivide parcels of land known as LR No.4148/307 and LR No.4148/308 which he did but since the complainant did not have any money for the subdivision, on 24th October, 2007, they agreed before an advocate, Maria M. Mutua that the Applicant would take seven (7) plots as his fees and also sell fifteen (15) plots from this to cover for survey fees vide a Sale and Commission Agreement. Further, the Applicant was to sell the fifteen (15) plots and give them money after which they would go to the complainants advocate’s 0ffice to write agreements for the complainant’s officials to execute the sale agreements after receiving their money in the presence of the lawyers. That the Applicant did subdivide the said parcels of land and the complainant’s officials authorised him to take the deed plans to their advocate’s office at Agip House. 3. According to the Applicant, the complainant’s officials allocated themselves plots and its secretary, Zipporah Nduta allocated herself Plot No.48 which she sold to Pauline Wanjiru who later sold it to the Applicant John Vuti Ngei, who after a year sold it to Michael Kanyuru Mwangi. That in all these transactions, the agreements were drawn by Maria M. Mutua, complainant’s advocate and signatures were appended thereto. 4. It is the Applicant’s contention that Zipporah Nduta told Michael Kanyuru Mwangi that Plot No.48 which had been sold to him by the Applicant was not among the seven (7) plots that he had been given in lieu of his fees but was stolen. 5. That the Applicant was arrested, charged and tried vide Thika Criminal Case No. 2576 of 2014 and Zipporah testified and the Sale Commission Agreement used as evidence. He was later acquitted, after which the complainants went back to Juja Police station and presented the sale agreement dated 24th October, 2017 which had been used to acquit the Applicant. That the Applicant was summoned to Juja Police station and the same documents which had been used in the previous case are the same ones intended to be used in Criminal Case No. E103 of 2020 which is pending. 6. It is the Applicant’s position that the people who purchased plots from the complainants are not witnesses in this case Criminal Case No. E103 of 2020 for which he was arrested and charged with the offence of forgery and have not been charged. The Applicant contends that it would be fair if the court were to grant the orders sought since the suit in Criminal Case No. E103 of 2020 is an abuse of the court process which should be stopped forthwith. 7. The application was served upon the Respondents and despite being granted several chances to file their response(s), the Respondents did not file any. Therefore, the application is basically unopposed. However, the court is still obliged to consider the merits of the application based on the law Determination 8. In determining this application, the court is reminded that when called upon to scrutinize actions by the Respondents, being the Office of the Director of Public Prosecution, the Director of Criminal Investigations and the Inspector General of Police, it should always bear in mind that these are independent offices established under the Constitution and therefore should not interfere with their exercise of duties bestowed upon them unless it is shown that they have acted contrary to public interest, or administration of justice, to prevent and avoid abuse of the legal process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15796/eng@2025-09-03 2

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9. The 1st Respondent, the Office of the Director of Public Prosecutions is established under Article 157 of the Constitution where its functions are provided for under article 157 (6) of the Constitution which states that:“ [6]. 10. The Director of Public Prosecutions shall exercise State powers of prosecution and may— a. Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; b. Take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and, c. Subject to Clause (7) and (8), discontinue at any stage before Judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under Paragraph (b). The 2nd Respondent, the office of the Director of Criminal Investigations is established under Section 28 of the National Police Service Act, No 11 of 2011 provides that:“ There is established the Directorate of Criminal Investigations which shall be under the direction, command, and control of the Inspector-General.” 11. The 3rd Respondent, office of Inspector General of Police is established under Article 245 (1) of the Constitution and its powers to investigate crimes are stated in Article 245 (4) of the Constitution which provides that:“ [4]. 12. The Cabinet Secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the InspectorGeneral with respect to:a. The investigation of any particular offence or offences; b. The enforcement of the law against any particular person or persons; or’ c. The employment, assignment, promotion, suspension, or dismissal of any member of the National Police Service.” The High Court in Judicial Review Application 8 of 2017, Republic –vs-Director of Public Prosecutions & 2 Others, Ex parte Edwin Harold Dayan Dande & 3 Others, faced with similar question as the one before this Court, had the following to say:“ A reading of Article 157 of the Constitution leaves no doubt that the DPP is required to not only act independently, but to remain fiercely so. It is also important to mention that Article 245(4)(a) of the Constitution provides that: 'no person may give a direction to the Inspector General with respect to the investigation of any offence or offences.' Just like the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15796/eng@2025-09-03 3

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constitutionally guaranteed independence of the DPP, this provision is aimed at ensuring that investigations are undertaken independently.” 13. It therefore follows that the court can only interfere with duties of the Respondents guided by the provisions under Articles 157(11) and Articles 244 and 245 of the Constitution and alongside the provisions of the National Police Service Act, if the actions are constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful. 14. In the instant case, the Applicant’s grievance is based on the fact that he was arrested, charged, tried and subsequently acquitted in Thika Criminal Case No.2576 of 2014 whereby the same evidence which was adduced therein is what is intended to be used in Thika Criminal Case No.E103 of 2020. The Applicant contends that this amounts to double jeopardy and an abuse of the court process. His contention is that he never appended his signature on the document alleged to have been forged and none of the people who purchased the various plots from the complainant are neither witnesses nor have they been charged together with the advocate who witnesses the execution of the Sale Agreements. 15. In considering the grievances by the Applicant in this case, the court has read through the charge-sheet that was presented in Thika Criminal Case No.2576 of 2014 marked as ‘JNV – 1’. In this charge sheet, the Applicant was charged with two counts of the offence of Obtaining Money by False Pretences contrary to Section 313 of the Penal Code relating to two plots and two complainants. In Count 1, the Applicant was alleged to have:“ At unknown place date and time within the Republic of Kenya with intent to defraud and without lawful authority made certain document namely Land Sale Agreement dated 9th day of February, 2009 for Plot No.19 of LR. No.4148/307 and 4148/308 in the name of OWAB Housing Co-operative Society Ltd purporting it to be genuine document made and issued by the OWAB Housing Co-operative Society Ltd. 16. In Count 2, he was alleged to have:“ At unknown date and place within the Republic of Kenya with intent to defraud forged certain document namely Land Sale Agreement dated 9th day of February, 2009 for Plot No.19 of LR. No.4148/307 and 4148/308 in the name of OWAB Housing Co-operative Society Ltd purporting it to be genuine document and issued by the OWAB Housing Cooperative Society Ltd. 17. The Court has then gone on to read through the charge sheet presented in Thika Criminal Case No.E103 of 2020 marked as ‘JNV 2’ and finds that therein the Applicant is facing various counts for the offence of Making a Document Without Authority contrary to Section 357(a) and Forgery contrary to Section 345 as read with Section 349, all of the Penal Code. The particulars of the offences relate to Plot Nos.19, 20, 27, 37 and 38 and the complainant is OWAB Co-operative Society Limited. 18. Section 137 of the Criminal Procedure Code, provides for the rules an the framing of charges and information as follows:(137) Rules for the framing of charges and informations The following provisions shall apply to all charges and informations, and, notwithstanding any rule of law or practice, a charge or information shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with this Code— (a) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15796/eng@2025-09-03 4

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(i) Mode in which offences are to be charged.—a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence; ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence; iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary: Provided that where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge or information, nothing in this paragraph shall require more particulars to be given than those so required; iv) the forms set out in the Second Schedule or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the same effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case; v) where a charge or information contains more than one count, the counts shall be numbered consecutively; (i) Provisions as to statutory offences.—where an enactment constituting an offence states the offence to be the doing of or the omission to do any one of any different acts in the alternative, or the doing of or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence; (ii) it shall not be necessary, in a count charging an offence constituted by an enactment, to negative any exception or exemption from, or qualifications to, the operation of the enactment creating the offence; (i) Description of property.—the description of property in a charge or information shall be in ordinary language, and shall indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property; ii) where the property is vested in more than one person, and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with the b) c) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15796/eng@2025-09-03 5

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others, and, if the persons owning the property are a body of persons with a collective name, such as a joint stock company or “Inhabitants”, “Trustees”, “Commissioners” or “Club” or other similar name, it shall be sufficient to use the collective name without naming any individual; iii) property belonging to or provided for the use of a public establishment, service or department may be described as the property of the Government, the Nairobi Area or a region as the case may be; iv) coin, bank notes and currency notes may be described as money; and an allegation as to money, so far as regards the description of the property, shall be sustained by proof of an amount of coin or of any bank or currency note (although the particular species of coin of which the amount was composed or the particular nature of the bank or currency note is not proved); and, in cases of stealing and defrauding by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although the coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to another person and that part has been returned accordingly; d) Description of persons.—the description or designation in a charge or information of the accused person, or of another person to whom reference is made therein, shall be reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given as is reasonably practicable in the circumstances, or the person may be described as “a person unknown”; e) Description of document.—where it is necessary to refer to a document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out a copy thereof; f) General rule as to description.—subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to; g) Statement of intent.—it shall not be necessary, in stating an intent to defraud, deceive or injure, to state an intent to defraud, deceive or injure a particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence; h) Mode of charging previous convictions.—where a previous conviction of an offence is charged in a charge or information, it shall be charged at the end of the charge or information by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence; i) Use of figures and abbreviations.—figures and abbreviations may be used for expressing anything which is commonly expressed thereby; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15796/eng@2025-09-03 6

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j) Gross sum may be specified in certain cases of stealing.—when a person is charged with an offence under section 280, 281, 282 or 283 of the Penal Code (Cap. 63), it shall be sufficient to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular times or exact dates. 19. It is clear that the charges in both cases have been framed in accordance with the provision. It is also clear that in the offences the Applicant was charged with in Thika Criminal Case No.2576 of 2014 is different from the offences he is charged with in Thika Criminal Case No.E103 of 2020. Further, it is clear that the complainants in either case are different, so that the offences in the former case are in persona while the ones in the pending case are in rem. And infact, the offences in either case relate to different dated and circumstances. 20. Accordingly, the charges been framed in accordance with the provision of Section 137 of the Criminal Procedure Code so that there is no ambiguity or confusion as to what is intended to be achieved by the Respondents in either case. 21. The issues raised by the Applicant in seeking to stop/stay the proceedings being that he did not append his signature on the alleged forged document or which witness ought to be called or persons that ought to have been charged are issues for the Respondents to investigate, interrogate and avail, if need be, during the main trial on which the Applicant can raise in his defence. 22. For the afore-stated reason, this Court finds that the Applicant has not demonstrated any justification to warrant this court prohibit the Respondents from continuing with the proceedings against him. Therefore the Notice of Motion application dated 30th June, 2022 is found to lack merit and is dismissed with no orders as o costs. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 3RD DAY OF SEPTEMBER ,2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Muindi counsel for Petitioners Mr. Gacharia counsel for 1st Respondent and holding brief for Applicant Court Assistant – Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15796/eng@2025-09-03 7

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