Republic & 3 others v The Director of Public Prosecutions

b) The exparte applicant contends that her intended prosecution as admitted by the 1st respondent in their letter of March, 2023 is based on incomplete investigations. c) The exparte applicant further contends that her intended prosecution is instigated by a supervisor of her employer with a view of making good an error that resulted in the applicant being dismissed/interdicted from her employment as the senior chief in charge of Hombe location Mathira West sub-county, Nyeri county. Which dismissal/interdiction effective from 19th October, 2021 was apparently but wrongfully and illegally based on a non-existent case, which case is sought to be commenced pursuant to the letter dated 30th March, 2023 by the 1st respondent and in which case the exparte applicant seeks an order in the application filed herein to get leave to commence Judicial Review proceedings to quash that decision to prosecute her. d) The exparte/applicant contends that her supervisor did forward an unsigned and unregistered charge to the applicant’s employer the basis of which the applicant was interdicted/dismissed for an offence allegedly committed in January in the year 2020 which termination was effective as from October, 2021 whereas the intended prosecution was for an offence alleged to have been committed on January, 2022. That the intended prosecution herein, that the exparte/applicant seeks leave for certiorari is only meant to cure that error by her supervisor that caused the applicant to be interdicted/dismissed. e) The exparte/applicant further contends that her intended prosecution is an abuse of the court process and is only aimed at legitimizing sanitizing illegal and unlawful actions against the exparte/applicant by her supervisor in her employment. f) The exparte/applicant further contends that all through the pendency of the issues that have ultimately led to the decision to charge her since the time of her arrest on 12th January, 2022 the 3rd respondent has time without number intimated that they don’t have sufficient evidence to charge the exparte/applicant. g) That it is the exparte/applicant general contention that the intended prosecution is not based on sound principles of law and is not guided by good faith. h) That it is only mate and just that the orders sought are granted on a priority basis as the intended prosecution will cause great loss and damage to the exparte/applicant. JUDICIAL REVIEW NO. E004 OF 2023 2

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Determination and Conclusion Issues Whether this Honourable Court should be pleased to issue the order of Certiorari against the 1st respondents decision to prefer criminal charges against the exparte/applicant. The allegations forming the basis of the intended charges are in a nutshell that police visited the home of the exparte/applicant where a vehicle with a foreign registration was parked. They decided to tow the said motor vehicle to Kiamariga police station. It is during the act of towing the vehicle that the exparte/applicant disrupted the officers by shouting, screaming and lying beneath the motor vehicle but she was finally arrested and taken to the police station. Thereafter, on 13th July, 2022 the 1st respondent recommended that the exparte/applicant be charged with the offence of willful obstruction of police officers while in due execution of their duties. The 1 st respondent made a recommendation to the effect that further investigations be carried out after one of the suspects produced documents in relation to the motor vehicle in question. It is the respondents’ submission that the investigations took a rather long period than expected. The respondent avers that it is not true that the exparte/applicant’s prosecution was based on incomplete investigations. Further it is not true that the investigations were initiated by the supervisor of the exparte/applicant with a view to making good an error that resulted in her dismissal/interdiction from her employment as senior chief in-charge of Hombe location. And further that the exparte/applicant is not an employee of the office of the Director of Public Prosecutions. The respondent contends that the decision by the Director of Public Prosecutions to prosecute was arrived at after a thorough review of all the evidence on record. Finally, that, whatever illegal or unlawful actions done against the exparte/applicant by her employer as claimed cannot be visited on the 1 st respondent. The undisputed facts in this application are that the exparte/applicant was a senior chief of Hombe location Nyeri county as of 12th January, 2022 when she was called by the OCS Kiamariga police station and instructed to take a vehicle which was parked at her home to the police station as it bore foreign registration numbers. JUDICIAL REVIEW NO. E004 OF 2023 3

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She informed her supervisor at work who is the Deputy County Commissioner that she had contacted her husband who was the owner of the vehicle to avail himself and present the documentation to police. As the vehicle had stalled, the 2nd respondent insisted on visiting her home to see the vehicle. As the motor vehicle was not mobile it was towed to the police station but not before the Assistant County Commissioner and other police officers pounced on her, beat her up and bundled her into their vehicle and took her to Kiamariga police station where the Deputy County Commissioner directed that she be charged with obstruction. She was later released on a personal bond and later obtained a P3 form. In the month of February of the same year she noted that she was on half monthly salary payment and upon inquiry she was informed that it was as a result of reported gross misconduct. The date of her interdiction was 19th October, 2021 whereas the arrest was on 12th January, 2022. In the letter of interdiction, she was required to respond within 21 days but she received it on the last day suggesting attempts at concealment. That she followed up the matter with the office of the Ombudsman and her employer at the Harambee House Headquarters. On the 31st day of August, 2022 she received a call from an officer in the office of the 2 nd respondent to the effect that she would be charged for obstruction. She wrote a letter through his advocate dated 12th September, 2022 to the DPP who responded through a letter dated 22nd September, 2022. On 6th October, 2022 the office of the DPP in Nyeri in response to the letter dated 22nd September, 2022 indicated that the matter needed further investigations. On 30th March, 2023 the DPP wrote a further letter indicating that the exparte/applicant should be charged while awaiting the finalization of investigations. The Director of Public Prosecutions derives its prosecutorial powers from the constitution and the office of the Director of Public Prosecutions Act. Article 157(10) of the constitution provides; ‘The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or function, shall not be under the direction or control of any person or authority’ Article 157(11) of the same constitution provides; ‘In the exercise of the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the JUDICIAL REVIEW NO. E004 OF 2023 4

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interests of the administration of justice and need to prevent and avoid abuse of the legal process’. In the case of Republic vs. Director of Public Prosecutions, Evans Muriuki Kariuki Exparte James Kahumbura 2019 eKL it was held; ‘The decision whether or not to prosecute must be taken with care because it may have profound consequences for victims, witnesses, accused persons and their families. A wrong decision may also undermine the community’s confidence in the prosecution system and the criminal justice system as a whole. The prosecutor should remain fiercely independent, fair and courageous. The responsibilities entrusted to the DPP and the police demand nothing less. The use of prosecutorial discretion should be exercised independently and free from any interference. Prosecutors are required to carry out their duties without fear, favor or prejudice, impartially with objectivity, unaffected by individual or sectional interests’ This court in its ruling dated 18th May, 2023 granted leave to file for Judicial Review and ordered the leave to operate as stay. The court also did note that as late as 30th May, 2023 the 1st respondent did write a letter to the Counsel for the exparte/applicant confirming that the investigations are still ongoing but directions have been given that the matter proceeds in court after charging the exparte/applicant. The court did observe that the arrest occurred on 12th January, 2022 but as of 30th March, 2023 investigations on the charge of obstruction were still going on. Even with incomplete investigations of the minor charge of obstruction the DPP still was desirous of having exparte/applicant charged. The court observed that the exparte/applicant was issued with a letter of interdiction dated 19th October, 2021 for what was referred to as gross misconduct yet her arrest for the charge of obstruction is shown to have occurred on 12th January, 2022. Therein lies the question whether the interdiction was related and or was as a result of the obstruction that occurred allegedly on 12th January, 2022 or as a result of another explained reason. It is noted that in a letter dated 12th September, 2022 Counsel for the exparte/applicant did indicate that in the month of June, 2022 the DPP Nyeri office did give an opinion to the effect that there existed no evidence to prove the offence of willful obstruction of police officer contrary to section 253 of the Penal code and having un-customed goods and that the police had been directed to close their file with no further action. The 1 st JUDICIAL REVIEW NO. E004 OF 2023 5

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respondent has not disputed this allegation nor has it made any further clarifications as to whether this was the position as at June, 2022 and the reasons for change of circumstances. I find there existed no good grounds to charge the exparte/applicant with the offence of obstruction when there was clear admission on the part of the 1 st respondent that investigations were not complete. This application has merit and orders for certiorari are issued in terms of prayer 1. Costs to the exparte/applicant. DATED, SIGNED and DELIVERED virtually this 28th day of January, 2026. _____________________________ MARTIN M. MUYA JUDGE In the Presence of: Court assistant - Isacko Counsels (having being notified) – Absent JUDICIAL REVIEW NO. E004 OF 2023 6

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