Yagnesh Devani v Director of Public Prosecutions (dpp)

Bank sold the petitioner's assets as per the Deed of Settlement is illegal and unlawful. d) A declaration be and is hereby made that the respondent's decision to continue with the prosecution of charges has violated, infringed and/or denied the petitioner’s right to fair administrative action and fair trial. e) A declaration be and is hereby made that by their acts of commission and omission, the respondents have violated the Constitution of Kenya, and in particular Articles 10, 19, 20, 27, 29, 38, 47, 50, 157(6), 73 and 232 of the Constitution of Kenya. f) An order of certiorari be and is hereby issued removing into the Honourable Court for the purposes of quashing the charges preferred against the petitioner in the following criminal cases: a) Milimani Chief Magistrate Anti-Corruption Case No. 18 of 2009 Republic vs. Yagnesh Mohanlal Devani & 7 Others; b) Milimani Magistrate Criminal Case No. 1150 of 2009 Republic vs. Yagnesh Devani & Others; c) Milimani Chief Magistrate Criminal Case No. 1151 of 2009 Republic vs. Yagnesh Mohanlal Devani & 4 Others; and d) Milimani Chief Magistrate Criminal Case No. 87 of 2011 Republic vs. Yagnesh Mohanlal Devani &3 Others; Page 2 of 37

page 2 of 37

g) An order of permanent injunction be and is hereby issued restraining the respondent from preferring charges and/or prosecuting the petitioner on account of the complaints settled by the Deed of Settlement dated 16th March, 2009, and on the basis of the Collateral Finance Agreement dated 14th July, 2004. h) That Costs for this petition be provided borne by the respondents. i) Any other relief that the court shall deem fit and just in the circumstances. 2. The petition is premised on the grounds on the face thereof and supported by his affidavit sworn on even date and supplementary affidavit sworn on 13 th September 2023. 3. Facts of the petition as narrated are that the petitioner was the founder and chairman of Triton Petroleum Company Limited, an oil marketing company that supplied fuels and gas in Kenya and the neighbouring countries of Tanzania, Uganda and Rwanda. 4. That Triton fell into financial challenges in 2008 following the sharp decline of the global petroleum prices. Consequently, it was placed under receivership by Eastern and Southern Africa Trade and Development Bank and Kenya Commercial Bank Ltd before being subjected to liquidation proceedings in Winding Up Cause No. 9 of 2009-Emirates National Oil Company (Singapore) Private Ltd v Triton Petroleum Co. Ltd. Page 3 of 37

page 3 of 37

5. It is pleaded that at the time of its collapse, Triton had an annal turnover of over Kshs. 70 billion with paid up capital of Kshs 4 billion. That it further had a 39% market share of oil importation and employed 3,000 staff across Kenya. It was also one of the largest tax payers paying over Kshs. 800 million corporate tax annually since 2005. The petitioner is equally said to be ranked among Kenya’s highest individual tax payers in the Country. 6. The petition relates to four criminal cases instituted against the petitioner by the Director of Public Prosecutions. These are, Criminal Case No. 18 of 2009, Criminal Case No. 1150 of 2009, Criminal Case No. 1151 of 2009 and Criminal Case No. 87 of 2011- all hinged on the Triton’s performance of various commercial agreements including the Collateral Finance Agreement executed between Triton and Kenya Pipeline Company Limited and the Invoice Discounting Facility executed between Triton and Kenya Commercial Bank. 7. Regarding the Collateral Agreement, the petitioner states that they executed the Transport Storage Agreement (TSA) with KPC pursuant to which KPC allowed Triton to transport and store petroleum imported into Kenya and, upon selling, the Agreement authorized KPC to release the product to Triton’s purchasers. Clause 4.2 of the said TSA provided that ownership in the petroleum products at all times remained vested in Triton irrespective of whether they were financed by third parties. Page 4 of 37

page 4 of 37

8. That on 11th November 2008, Triton executed a Collateral Finance Agreement (CFA) with KPC pursuant to which KPC allowed Triton to use its positive entitlement stocks as collateral for financing and that KPC was to hold the first irrevocable rights to recover the amounts due for the services rendered to Triton and use the remainder of the stock as a collateral to secure the financiers interests for the purchase price of the petroleum. 9. It is pleaded that it was a term of the CFA that where a quantity of the stock was used as a collateral, that quantity would be released only on the advice of the Triton’s financiers who would have executed a separate collateral agreement with the financiers. That therefore, the CFA was a business of convenience and did not create a charge or mortgage but formed a basis for Triton to execute and/ or register a valid charge /mortgage with the financiers. 10.It is urged that the complainants on whose behalf the subject criminal cases were instituted (Emirates National Oil Company (Singapore) Private Ltd and Fortis Bank (Nederland) N.V.) were prohibited from dealing in petroleum in Kenya pursuant to the provisions of section 80(1) of the Energy Act, No. 12 of 2006 (repealed). 11.It is further pleaded that a similar transaction between Glencore Energy (U.K) Limited and Triton hinged on the CFA, the Court of Appeal in Civil Appeal NO. 67 of 2014 -Kenya Pipeline Company Limited v Glencore Energy (U.K) Limited held that to the extent that Glencore Energy (U.K) Page 5 of 37

page 5 of 37

limited remained the owner of the petroleum, it did not enjoy the protection of the Kenyan courts because it was carrying on business contrary to the provisions of section 80(1) of the Energy Act, 2006. 12.The petitioner contends that if the CFA was intended to create a charge and/or collateral, it would have been a tripartite agreement involving Triton, KPC and the financier being either ENOC or Fortis Bank (Nederland) N.V and would have identified the secured quantities, the term, the sum to be paid before the collateral was charged and registered. 13.The petitioner explains that Emirates National Oil Corporation (ENOC) supplied petroleum products to Triton under several sale agreements executed in September and October 2008, while Fortis Bank (Nederland) N.V financed Triton's purchase of petroleum products from Chevron secured with a charge over L.R Numbers MN/VI/3850 and MN/VI/3883 belonging to Triton Bulk Storage Company Limited. Those agreements, it is urged, comprehensively governed the parties' rights and obligations, including payment terms, remedies for breach, applicable law and dispute resolution. That the agreements required payment within thirty days through irrevocable letters of credit payable in United States Dollars and provided that disputes would be resolved through arbitration under the London Court of International Arbitration. 14.The petitioner states that apart from these agreements, Triton never executed any collateral agreement with either ENOC or Fortis securing any volume of Page 6 of 37

page 6 of 37

the product as a collateral for the payment of the purchase price. Consequently, that the CFA executed with KPC neither formed part of nor constituted consideration for those transactions. That this was noted by key prosecution witnesses, including the then Permanent Secretary in the Ministry of Energy. 15.The petitioner further points out that ENOC described itself as an unsecured creditor in the winding-up proceedings, suggesting that it held no collateral for the financing it advanced to Triton. The petitioner further asserts that he made substantial payments to ENOC, as reflected in the PricewaterhouseCoopers Report and confirmed by ENOC's own witness, thereby showing that the remaining dispute concerns reconciliation of commercial accounts which is a civil matter. 16.With regard to Invoice Discounting Facility, the petitioner explains that Triton entered into an Invoice Discounting Facility with Kenya Commercial Bank under which KCB discounted invoices relating to petroleum supplied to customers. That following Triton's financial downturn in 2008, it was unable to meet the terms of the respective agreements executed with KCB, ENOC and Fortis. The petitioner then sought to renegotiate the prices with Chevron but was unsuccessful, which led to Triton’s cancellation of the contract with Total Kenya and securing the value of the volumes that had been sold through an agreement dated 24th October 2008 under which the petitioner offered among others, Triton Bulk Storage Company Ltd.’s first Page 7 of 37

page 7 of 37

priority ranking charge over terminal assets in Kipevu, Mombasa and that pursuant to the ruling of Justice Luka Kimaru issued on 23 rd September 2009, the property was sold and the debt settled. 17.The petitioner states that despite these efforts to settle the foreign financiers, the respondent instituted four criminal cases against him together with other accused persons. That is, Criminal Case No. 18 of 2009 in which he was charged with two counts of the offence of fraudulent disposition of mortgaged goods contrary to section 291 as read with section 36 of the Penal Code; Seven counts of the offence of conspiracy to defraud contrary to section 317 of the Penal Code and one count of the offence of obtaining by false pretense contrary to section 313 of the Penal Code; Criminal Case No. 1150 of 2009 where he was charged with the offence of conspiracy to defraud contrary to section 317 of the Penal Code and stealing contrary to section 268 as read with section 275 of the Penal Code; in Criminal Case No. 1151 of 2009, he was charged with Four counts of stealing contrary to section 268 as read with section 275 of the Penal Code; and four counts of the offence of fraudulent disposition of mortgaged goods contrary to section 291 as read with section 36 of the Penal Code. Lastly, Criminal Case No. 87 of 2011, in which he was charged with the offence of stealing contrary to section 275 of the Penal Code, fraudulent disposition of mortgaged goods contrary to section 291 of the Penal Code and conspiracy to commit a felony. namely theft contrary to section 394 of the Penal Code. Page 8 of 37

page 8 of 37

18.It is contended that the charges the petitioner is facing are based on contractual obligations which Triton entered into with KPC, KCB, ENOC and Chevron and are substantially premised on the CFA and the Invoice Discounting Facility. Further, that Section 291 of the Penal Code which creates the offence of fraudulent disposal of mortgaged goods requires the instrument that is subject of the transaction to be capable of creating a valid charge or lien by way of security for any debt obligation. 19. The petitioner contends that the respondent’s decision to prefer criminal charges Nos. 18 of 2009, 1051 of 2009 and 87 of 2011 on the assumption that the CFA is an instrument creating a valid collateral against the fuel imported by Triton from ENOC and Chevron when it did not, is unfair, ill intentioned and an affront to his right to fair administrative action. 20.It is pleaded that the charges instituted following the complaint by KCB being the offence of conspiracy to defraud contrary to section 317 of the Penal Code and the offence of stealing contrary to section 268 as read with section 275 of the Penal Code are based on the Invoice discounting facility. He contends that KCB pursued recovery through civil proceedings and receivership and that eventually, the petitioner and his companies executed a comprehensive Deed of Settlement with KCB and other creditors under which numerous assets, including commercial buildings, petrol stations and parcels of land, were surrendered and sold to satisfy the outstanding debts. Page 9 of 37

page 9 of 37

21.The petitioner further relies on the terms of the Deed of Settlement, under which KCB and the receivers allegedly undertook to withdraw their criminal complaints and request termination of the criminal proceedings under section 87A of the Criminal Procedure Code. He therefore contends that KCB waived any entitlement to pursue criminal proceedings after recovering its debt in full that is Case Number 1150 of 2009 and Case Number 1151 of 2009. It is contended that the deed of settlement effectively reduced the criminal charges that KCB could have maintained against him and other accused persons to a civil case. 22.The petitioner maintains that owing to the nature of all the transactions involved in the criminal cases, there is no way any of the aspects of the respective transactions could be reduce to a criminal element. That in any event, all the contracts that Triton executed provided for the manner of resolution of the disputes arising therefore. He states that he acted in good faith by surrendering virtually all his assets in an effort to settle Triton's liabilities and legitimately expected that the respondents would pursue civil rather than criminal remedies. 23.Finally, the petitioner contends that no finding was made by the High Court in Winding up Cause No. 9 of 2009 for his culpability in the death of Triton and that therefore, he could not be blamed for the enormous debts which Triton incurred. The prosecution, if there was any basis, he argues, ought to have been conducted expeditiously especially after the High Court ruled in Page 10 of 37

page 10 of 37

the Anti-corruption and Economic Crimes Revision E014 of 2021 that the criminal cases could proceed in his absence. 24.In his further affidavit, the petitioner pleads that this court is allowed to interfere with the mandate of the respondent where the fact disclose a violation of rights and fundamental freedoms and where there is an abuse of the court process or violation of the Constitution. 25.According to the petitioner, the criminal proceedings are meant to achieve a collateral purpose that is to force him and Triton Petroleum Limited into a civil/commercial settlement. 26.The petitioner states that he has been vindicated in criminal case No. 87 of 2011. That the trial court in acquitting him and the co-accused found that the prosecution failed to demonstrate any nexus between him and any of the charges preferred against him. It is alleged that the respondent has not addressed itself to the issues germane to the petition, to wit, that the complainants, being KCB, in Criminal Cases No.’s 1150 of 2009 and 1151 of 2009 executed a deed of settlement whereby the undertook to withdraw their criminal complaints; and that the collateral financing agreement (CFA), the subject of Criminal Cases No. 18 of 2009 and 87 of 2011, could not be used as a basis of a valid criminal charge since the complainants were not parties to it and it was not registered as contemplated under section 291 of the Penal Code. Page 11 of 37

page 11 of 37

27. It is pleaded that the continuation of the charges against the petitioner would be unjust and contrary to Article 50 of the Constitution to prosecute him for offences which were allegedly committed more than a decade ago, particularly when both the complainants and the respondent contend that the relevant transactional documents clearly point to only a civil dispute and have no criminal aspect. 28.The petitioner contends that he stands to suffer prejudice due to the long period of time that has lapsed since the events surrounding the basis of the charges happened sometime in 2008/2009. That this also militates against the dictates of Article 49(1) (a) (ii) and 50(1) and 2(e) of the Constitution. He therefore asserts that the continued criminal proceedings violate Articles 2, 3,10, 19, 20, 47, 50, 51, 73, 157 and 232 of the Constitution. 29.It is important to note that the petitioner is was then a resident of the United Kingdom and was deposing all matters in the supporting affidavit while in England, United Kingdom. Response to the petition 30.The respondent filed grounds of opposition dated 12 th September 2023 and Replying affidavit sworn by Samita Mang’oli on 1 st November 2023 opposing the petition. Grounds of opposition 31.It is contended that the respondent is an independent Office holder under Article 157(10) as read with Article 248(1) of the Constitution and Page 12 of 37

page 12 of 37

consequently, does not require the consent of any person or authority for the commencement of any proceedings and in the exercise of his powers and functions, does not act under the directions and/or control of any person or authority. 32.It is pleaded that the petitioner’s case and prayers against the respondent herein are ill conceived; there has been no instance at which the respondent has abused its authority to the detriment of the petitioner. 33.The respondent restates that in exercise of its constitutional mandate under Article 157 of the Constitution, the DPP made a decision to charge the petitioner in: Milimani CMCR No. 1151 of 2009 Republic v Yagnesh Mohanlal Devani & 5 others; Milimani CM Anti-Corruption Case No. 18 of 2009 Republic vs Yagnesh Mohanlal Devani & 7 others; Milimani CMCR NO. 1150 of 2009 Republic vs Yagnesh Mohanlal Devani & 9others and Milimani CMCR NO. 87 of 2011 Republic vs Yagnesh Mohanlal Devani & 3 others, based on sufficiency of evidence and in consideration of public interest as required by law and prosecutorial policies. 34.The respondent denies that in making that decision, he either abrogated, breached, infringed or violated any provisions of the Constitution or any rights of the petitioner or any other written law or regulations made thereunder. 35. It is contended that the petitioner has failed to demonstrate and establish that in the process of making the decision to charge him in the four criminal Page 13 of 37

page 13 of 37

cases, the respondent’s decision-making process was tainted with illegality, irrationality and procedural impropriety and as such has failed to meet the requisite threshold to warrant the orders sought. 36.The respondent urges that pursuant to section 193A of the Criminal Procedure Code, (CPC), criminal and Civil cases can be processed concurrently. Further, that the petition is an abuse of the court process because whatever he is addressing in his petition are facts that amount to a defence in the ongoing criminal case. The same sought to be ventilated before the trial court. Replying affidavit 37.In the Replying affidavit it is deposed that the cases which are the subject matter of this petition arose from allegations of criminality and the same were investigated by EACC and DCI and resultant files forwarded to the respondent for perusal and review and the decision to charge the responsible persons. 38.That upon review of the evidence in the investigations files as presented by the various investigative agencies, the DPP established that the files met the threshold for prosecution and therefore a decision to charge was made. It is urged that the respondent considered the conduct of the petitioner throughout the commission of the offence, the evidence that was presented in the investigations files and in arriving at the said decision, the Director of public Page 14 of 37

page 14 of 37

prosecutions did not abuse his office, violate any provisions of the Constitution or any other written law or the petitioner’s rights. 39.It is reiterated that pursuant to section 193A of the Criminal Procedure Code, criminal and civil cases can proceed concurrently. Further, that the petitioner has not met the threshold to warrant the grant of the orders sought. This Court is urged to dismiss the petition with costs. The Petitioner’s submissions 40.The petitioner’s submissions are dated 19th August, 2024. He relies on Articleds 47 and 157(11) of the Constitution, section 4(3) of the Fair Administrative Action Act and the case of Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLR to support his position that the execution of the deed of settlement effectively reduced the criminal charges that KCB could have maintained against him and other accused persons to a civil case which, if the deed of settlement were breached, could have entitled KCB to pursue a claim of damages for breach of contract. 41.He therefore submits that owing to the said execution of the Settlement Deed, he had a legitimate expectation that KCB had waived its right to maintain criminal complaints against him after it sold the petitioner’s properties and fully settled its debt. The petitioner argues that sustaining of criminal complaints in Case Number 1150 of 2009 and Case Number 1151 Page 15 of 37

page 15 of 37

of 2009 against him are therefore not only unfair to the him, but also unsustainable. 42.The petitioner relies on Thuita Mwangi & 2 others v Ethics and AntiCorruption Commission & 3 others [2013] eKLR and Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229 to argue that there is need for the prosecutor to act within the law. 43.The petitioner submits that having established that he put up his properties for sale in settlement of its debts, even if the said dispute was to be presented before a civil court for determination, there would be no cause of action. That therefore, the actions by the DPP to continue with the prosecution of cases on debts that were already settled amounts to abuse of the court process and violated the petitioner’s right to legitimate expectation that the cases would be dropped after he executed the deed of settlement. 44.It is submitted that by failing to act decisively and expeditiously in determining whether to withdraw the charges or continue them, the respondent has violated Article 47 of the Constitution. He relies on the cases of George Joshua Okungu & another v Chief Magistrate Court AntiCorruption Court at Nairobi & another [2014] eKLR and R v Attorney General ex parte Kipngeno Arap Ngeny. 45.The petitioner additionally relies on Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR regarding termination of Page 16 of 37

page 16 of 37

criminal proceedings on the basis of among others, that the dispute was civil in nature. 46.The petitioner reiterates the facts regarding the CFA and asserts that the disputes at hand revolve around a contractual/commercial nature. 47.The petitioner places reliance on the case of Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank & 4 others [2013] eKLR to urge that complainants ought to have pursued civil proceedings initially and with firm findings by the civil court on any alleged criminal prospects, proceed to institute criminal proceedings. 48.It is submitted that the DPP’s insistence on continuance of criminal charges against the petitioner is an abuse of power, violates the petitioner’s right under Articles 47 and 51(1) of the Constitution and abrogates the petitioner’s legitimate expectation. Reliance is placed on the case of Githunguri v Republic [1985] LLR 3090. 49.The petitioner further cites Article 23, 22, 165 and the cases of Republic v Commissioner of Police & another ex parte Michael Monari & another [2012] eKLR; Doucet-Boudreau vs Nova Scotia (Minister of Education), 2003 SCC 62; and Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR among others and urges this Court tallow the petition as prayed. The Respondent’s submissions Page 17 of 37

page 17 of 37

50.In the submissions dated 3rd February, 2025, the respondent DPP denies that the petitioner has demonstrated violation of Article 47 of the Constitution and contends that the petitioner will have an opportunity to ventilate his case before the trial court. It is further submitted that the Republic is the proper complainant in criminal proceedings. Reliance is placed on R v Judith Achola Mulala [2019] eKLR and DPP v Kumalo (Criminal Revision E235 of 2023) [2023] KEHC. 51.It is submitted that although the petitioner contends that he had legitimate expectations that the criminal case against him would be withdrawn on the basis of the Deed of Settlement, the Respondent had a duty to the public to trace and hold accountable the person (s) responsible for the loss of billions of tax payers funds in what became notoriously known as the Triton scandal. 52.In addition, that the respondent retains the discretion to determine whether or not to institute, undertake or terminate criminal proceedings in the public interest and this court should be reluctant to intervene in the absence of a lawful cause. Reliance is placed Kenya Vision2030 Delivery Board v. Commission on Administrative Justice &2Others [2021] eKLR. 53.Accordingly, it is submitted that the petitioner has not met the standard set by the Supreme Court in Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019) [2021] KESC 32 to wit, no demonstration that the criminal cases have been instituted to aid proof of matters that fall within the jurisdiction of the civil courts and that neither has he availed any legal bar to Page 18 of 37

page 18 of 37

the institution of the criminal proceedings to warrant the intervention of this Court. Analysis and Determination 54.I have considered the petition, the response thereto and the rival submissions by the respective parties’ counsel. I find the main issue for determination to be: Whether the petition is merited 55.Article 165 (6) of the Constitution clothes the High Court with supervisory jurisdiction over subordinate courts, any person, body or authority exercising judicial or quasi-judicial function, but not over a superior Court. 56.under sub-Article and (7), For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice 57.Article 157(1) of the Constitution establishes the Office of the Director of Public Prosecution. Sub-Article (6) and section 5(1) (a) (b) of the Director of Public Prosecution Act provide for the powers to institute and undertake criminal proceedings, take over and continue any criminal proceedings commenced in any court and discontinue any criminal proceedings at any stage before judgment is delivered. Sub-Article (10) and Section (6) of the Page 19 of 37

page 19 of 37

Office of the Director of the Public Prosecution Act prohibit any person or authority from controlling the Director of Public Prosecutions while performing its mandate. Sub-Article (11) requires the Director of Public Prosecution while discharging its mandate to have regard to the public interest, the interest of administration of justice and the need to prevent and avoid abuse of the legal process. 58.In affirming the mandate of the Director of Public Prosecutions, the court in Republic v The Director of Public Prosecution & 7 Others [2013] KEHC 5794 (KLR) (paragraphs 6 and 10) stated: “The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for interfering with those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision-making process… It follows that the office of the Director of Public Prosecutions is an independent constitutional office which is not subjected to the control, directions and influence by any other person and only subject to control by the Court based on the aforesaid principles of illegality, irrationality and procedural impropriety.” Page 20 of 37

page 20 of 37

59.In Mohamed Ali Swaleh v Director of Public Prosecution & another Exparte Titus Musau Ndome [2017] KEHC 7460 (KLR)it was held: “14. It is the opinion of this court that the decision whether or not to institute criminal proceedings is made based on the evidence collected. Once the investigations establish reasonable suspicion that a person committed a crime he ought to be charged in a court of law. 60.In Republic v Director of Public Prosecutions & 2 others Ex-parte Stephen Mwangi Macharia [2014] eKLR (paragraph 20) the court stated: “The general rule in these kinds of proceedings is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. Therefore, mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not, on its own and without more, a ground for halting such proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision-making process. An applicant who contends that he has a good defence in the criminal trial ought to be advised to raise the same in his defence before the criminal trial instead of invoking this Court’s jurisdiction with a view to having this Court determine such an issue as long as the criminal process is being conducted bona fides and in a fair and lawful manner. However, if the Page 21 of 37

page 21 of 37

applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.” 61.The grounds upon which the prosecution may be prohibited were considered in Director of Public Prosecutions v Martin Maina & 4 others [2017] eKLR, wherein the Court cited, with approval, the decision by the Supreme Court of India in State of Maharastra & Others V Arun Gulab Gawali & Others, Criminal Appeal No. 590 of 2007. (Paragraph 40). The grounds are as follows: “(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) Where the allegations constitute an offence alleged but there is either no legal evidence adduced clearly or manifestly fails to prove the charge.” Page 22 of 37

page 22 of 37

62.The court went further to state that: “The power of quashing criminal proceedings has to be exercised very sparingly with circumspection and that too in the rarest of rare cases.” 63.In the case of Jamal Shariff Swaleh v Director of Public Prosecution & 4 others [2014] eKLR the court also stated: “It is only where there has been shown to be an abuse of court process or a breach of the constitution that the courts will act to interfere with the discretion of the Director Public Prosecutions. In the case of KENYA COMMERCIAL BANK LIMITED & 2 OTHERS – VS. COMMISSIONER OF POLICE AND ANOTHER, NAIROBI PETITION NO. 218 of 2011 (unreported) Hon. Majanja J. held that: “The office of the Director of Public Prosecutions and Inspector General of the National Police Service are independent and this court would not ordinarily interfere in the running of their offices and exercise of their discretion within the limits provided for by the law. But these offices are subject to the constitution and the Bill of Rights contained therein and in every case, the High Court as the custodian of the Bill of Rights is entitled to intervene where the facts disclose a violation of the rights and fundamental freedoms guaranteed under the constitution.”[emphasis added] 64.In Sylvester Gaitano Odhiambo v Republic [2022] eKLR the court stated: Page 23 of 37

page 23 of 37

“45. In appropriate circumstances, therefore, the Court may properly intervene in the exercise of discretion by the DPP and any other inferior authority for that matter and may justifiably do so in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decisionmaker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323. 65.See also the holdings in Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69 and Republic v Attorney General & another Ex-parte Kipng’eno Arap Ng’eny [2001] eKLR. 66.As noted on the mandate of the Director of Public Prosecutions, his discretion to initiate criminal proceedings against any accused person it is not unfettered, and the court will not hesitate to act where the DPP ahs demonstrably acted contrary to the law as elucidated in the cited cases. But Page 24 of 37

page 24 of 37

generally, the court is required to restrain itself from usurping the mandate of the DPP. 67.The question therefore is whether the petitioner has proffered any plausible grounds that warrants this court’s intervention on the mandate of the respondent. The petitioner’s case is pegged on the issues that: first, that the dispute stemming from performance of agreements entered into between Triton, KCB, ENOC and Chevron are contractual in nature and therefore any case to realise those agreements should have been instituted at the civil courts. Second, that owing to the Deed of Settlement and having settled the debts owe to KCB and others, the criminal cases are not sustainable. that therefore, any continued prosecution is an abuse of power and violates his rights under Articles 47and 51(1) of the Constitution. 68.The respondent on the other hand contends that the criminal charges were instituted upon establishing that there was sufficient proof to charge the petitioner. The respondent further submits that notwithstanding a deed of settlement, he is the proper complainant. The respondent has asserted that the petitioner was under a duty to the public to trace and hold accountable the person (s) responsible for the loss of billions of tax payers funds in what became notoriously known as the Triton scandal. It is the respondent’s argument that any issues being raised by the petitioner including those regarding the CFA can be raised as defences before the trial court. Page 25 of 37

page 25 of 37

69. he burden of proof lies with the person who alleges. This is what sections 107 to 102 of the Evidence Act provides. In this case, it is incumbent upon the petitioner to proof that the respondents have acted outside their statutory mandate and how his constitutional rights have been infringed or threatened with infringement. The petitioner has enumerated several reasons as to why this court should intervene. 70.The Supreme Court of Kenya in the Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (27 January 2023) (Judgment) case, confronted with an appeal against the decision to charge and prosecute the appellants for alleged abuse of office among other charges, held as follows, as summarized in the reported judgment: 11.The merits of the case were more appropriately analyzed in a trial or appellate setting, where oral testimony, cross-examination, and full evidentiary processes were available. In matters of discretion, the court may compel action, but it could not dictate how that discretion was exercised. 12.Under article 157(6) of the Constitution, the DPP had power to institute and conduct criminal proceedings, and under article 157(10) exercised that power independently, free from external control. However, article 157(11) imposed a duty to act in the public Page 26 of 37

page 26 of 37

interest, ensure the proper administration of justice, and prevent abuse of legal process. 13.Where criminal proceedings appeared to be instituted to settle personal scores, to abuse court process, or in circumstances where the case was manifestly untenable, the court could intervene. 14.Although the DPP was independent and not bound by any direction, control, or recommendations by any institution or body, failure to meet the standards of article 157(11) of the Constitution invited judicial scrutiny alleged abuse of under article 165(3)(d)(ii). prosecutorial In evaluating powers, the following guiding principles, read with article 157(11), were relevant: a. where prosecution would amount to an abuse of court process, or quashing it would secure the ends of justice; b. where a legal bar existed to the institution or continuation of proceedings; c. where, taken at face value, the allegations did not constitute the offence charged; or Page 27 of 37

page 27 of 37

d. where there was no legal evidence, or the evidence manifestly failed to prove the charge. 15.In matters involving discretion, a public body may be directed to act, but not as to the manner of its action, except in cases of gross abuse, manifest injustice, or palpable excess of authority equivalent to the denial of a vested right. 16.Disputes over statutory interpretation or the elements of an offence were not matters of prosecutorial propriety but of legal and evidentiary assessment, which were within the trial court’s jurisdiction and not that of the judicial review court. 17.The High Court’s interference with prosecutorial discretion was warranted only where it was shown that criminal proceedings were instituted for purposes other than enforcing the criminal law, or in abuse of the court process. 18.Determining the applicable procurement law and the appellants’ role in the tender process required viva voce evidence and crossexamination, matters properly within the trial court’s jurisdiction. The High Court exceeded its jurisdiction in intervening at the judicial review stage. Page 28 of 37

page 28 of 37

19.The right to a fair hearing under article 50(1) of the Constitution included the right to a fair trial in both judicial and administrative contexts. By avoiding trial, the appellants deprived themselves of the opportunity to test the prosecution’s case and assert their innocence within the protections afforded by article 50(1). 20.The proper course was to proceed to trial, where they could raise any legal or evidentiary challenges to the charges.” 71.The Supreme Court in the above case further stated as follows in answering the second issue of ii. Whether the court of appeal erred in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution: “89.We are emphatic that the High Court, whether sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. We reproduce the words of this court in Hussein Khalid and 16 others v Attorney General & 2 others[supra] as follows; “[105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of Page 29 of 37

page 29 of 37

which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Emphasis added] 90.From the circumstances of this case, we agree with the determination of the Court of Appeal that a distinction of the applicable procurement laws and whether the appellants participated in the tender process hence liable to prosecution is a determination best arrived at upon consideration of viva voce evidence and through cross examination of witnesses. We therefore come to the conclusion that the Court of Appeal did not err in holding that the High Court exceeded its Page 30 of 37

page 30 of 37

jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution. iii. Whether the DPP violated the appellant’s rights and fundamental freedoms under articles 10, 25(c), 27, 28, 29, 41 and 50 of the Constitution in preferring the charges contested by the appellant. 91.Article 10 of the Constitution relates to national values and principles. article 27 is on equality and freedom from discrimination. Article 25(c) and 50 related to the right to fair trial, article 29 is on freedom and security of the person while article 41 relates to labour relations. The appellants submit that a criminal trial premised on unfair and questionable partisan investigations or a decision to charge arrived at unfairly and without any reasonable basis would open a door to an unfair trial. 92.The right to fair hearing is broad and includes the concept of the right to fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. See; Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others, SC Petition No 18 of 2014 as consolidated with Petition No 20 of 2014; [2014] eKLR, Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others, SC Petition 7 of 2018 consolidated with Petition 9 of 2018; [2018] eKLR; John Florence Maritime Services Limited & another v Page 31 of 37

page 31 of 37

Cabinet Secretary, Transport and Infrastructure & 3 others, SC Petition 17 of 2015; [supra]. 93.As we have found hereinabove, judicial review looks at the decisionmaking process. The court in judicial review cannot adequately canvass issues of controverted facts and whether those facts satisfy the ingredients of offences under which the accused are charged. More so, before a trial has taken off. As we stated in the case of Hussein Khalid and 16 others v Attorney General & 2 others [supra] the appellants put the wagon before the horse by asserting that their right to a fair trial was violated at the time of their arraignment in court. By refusing to submit to the jurisdiction of the trial court where their innocence may be upheld or their guilt established, the appellants removed themselves from the protections of article 50(1). Whatever the case, the criminal justice system is required to protect against the abuses claimed by the appellants, which the trial court is competent to resolve when challenged by an accused person, properly, during the trial. 94.This court having already demonstrated that there was nothing untoward in relation to the charges levelled against the appellants; the allegations of malice and discrimination having not being properly canvassed/demonstrated by the appellant, it follows that the claim for constitutional rights violations equally falls by the wayside. It is our Page 32 of 37

page 32 of 37

considered opinion that it would be pragmatic that the appellants let the trial commence and conclude, during which trial they may raise all the issues they have as against the law under which they are charged. If successful, it is only then that they will pursue their rights on appeal. 95.For the foretasted reasons we find no merit in the consolidated appeals and dismiss the same.” 72.Applying the principles espoused in the above decision of the Supreme Court to this petition and examining the facts of the petition as narrated by the petitioner and reproduced in this judgment, I am unable to find that the respondent has abused his mandate in instituting the criminal charges against the petitioner or that the respondent has violated any provisions of the Constitution or any written law or that the criminal proceedings were instituted in bad faith. 73.In my view the issues being raised by the petitioner and I agree with the respondent, supported by the above Supreme Court decision in the Saisi case that these are issues that can be canvassed before the trial court and that therefore, this court should not interfere with the criminal proceedings. 74.The petitioner has spoken to the issue of breach of his fundamental rights and freedoms. Section 107 and 109 of the Evidence Act Cap 80 Laws of Kenya places the burden of proof on the person the existence of a particular Page 33 of 37

page 33 of 37

fact. In the case of Christian Juma Wabwire v Attorney General [2019] eKLR the court held: “23. Section 107 of the Evidence Act provides, that he who alleges must prove. The petitioner failed to call evidence to prove his allegation. In the case of Lt. Col Peter Ngari Kaguma and others vs AG, Constitutional Application No. 128 of 2006 it was held: "….it is incumbent upon the petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses...” 75.The burden of proof on a petitioner in a constitutional petition was addressed by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR as follows: “Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the Page 34 of 37

page 34 of 37

High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement. 76.The petitioner has set out the constitutional provisions allegedly violated by the respondent but has not substantiated his claims nor stated and demonstrated the harm that he has suffered or is likely to suffer if the orders sought are not granted. 77.On allegations that the dispute is of a civil nature and that as far as the KCB issue is concerned, it was settled via a settlement Deed and that there froe Triton does not owe any money to KCB, section 193A of the Criminal Procedure Code, Cap 75 Laws of Kenya expressly provides that the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 78. This Court sitting as a constitutional court or a judicial review, may only interfere where it is shown that under article 157(11) of the Constitution, criminal proceedings have been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process. I have not found any Page 35 of 37

page 35 of 37

evidence of such abuse of court process on the part of the DPP in instituting criminal proceedings against the petitioner. I restate the Supreme Court’s decision in the Saisi case in reproducing the words of the Supreme Court in Hussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR that “105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, the accused evidence in rebuttal. This in our view is an issue best left to the trial court as it will not only have the benefit of the evidence adduced but will weigh it against the elements of the offence in issue. It is not automatic that once a person is charged with an offence (s) he must be convicted. Every trial is specific to the parties involved and a blanket condemnation of the statutory provisions is in our view overreaching. The presumption of innocence remains paramount.” [Further Emphasis added] 79.In the end, I find the petition dated 13 th July, 2023 to be devoid of merit and that the reliefs sought are not available to the petitioner. The petition is hereby dismissed. The proceedings initiated by the DPP in Milimani MC Anti-Corruption Court Case No. 18 of 2009, Republic v Yagnesh Devani & Page 36 of 37

page 36 of 37

others and Milimani CMCR No. 1151 of 2009 Republic v Yagnesh Devani & others to continue until conclusion. 80.Each party to bear its own costs. Dated, Signed and Delivered virtually at Nairobi this 3rd Day of July, 2026 R.E. ABURILI JUDGE Page 37 of 37

page 37 of 37