Powers of a Judicial Review Court to halt criminal proceedings: Is it still viable?
By George Ogembo
Since the enactment of the new Constitution, there has been a reluctance by the judicial review court to entertain applications seeking to halt criminal prosecutions. The powers of the court over criminal prosecutions has been sparingly exercised to a level where it is important to revisit these powers and interrogate whether they are still viable or are slowly reaching for their death beds. Judicial review court finds itself in majority of times battling to find its place and determine whether and in what instances it may interfere with the wide powers of the criminal court and Director of Public Prosecution (DPP) in initiating and conducting criminal prosecutions. While the principles that governs the role of judicial review courts over the discretion of the Attorney General under the Repealed Constitution were mainly derived from common law, the Constitution, 2010 has created new shift in the supervisory role of the constitutional discretion of DPP in initiating and conduct of criminal prosecutions. The Article seeks to highlight the place and extent of the supervisory role in the context of the relevant provisions of the Constitution and the resultant Statutes.
Under Section 26 of the repealed Constitution, the Attorney General, apart from being the principal legal advisor of the government, had powers and authority to institute and undertake all criminal proceedings, save for those of the martial courts. However, Article 157 of the Constitution 2010 created an independent office of the DPP whereby all the prosecutorial powers previously enjoyed by the Attorney General have now been vested in the office of the DPP which was previously under the office of the Attorney General. This was a revolutional change in the Kenyan criminal justice system as new institutions were created to take over powers from already existing institutions and courts have endeavored to interpret and affirm these changes. Article 165(3)(d) of the Constitution grants the courts a wide mandate to protect the mandate and integrity of all constitutional commissions including the powers of the DPP.
DPP has wide constitutional and statutory powers over prosecutions in Kenya by dint of Article 157(6) of the Constitution. In making a decision to initiate a prosecution, the DPP acts independently. Article 157(10) of the Constitution as replicated in Section 6 of the Office of the Director of Public Prosecutions Act. No. 2 of 2013 provides that, the DPP 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 functions, shall not be under the direction or control of any person or authority.
It is assumed that the DPP is equipped with the skills and tools of analyzing a case and deciding whether the same has a realistic prospect of conviction. The judicial review court hardly interferes in the exercise of these powers. There would be a risk of usurping the DPP’s discretion unless the allegations that leads to the decision to prefer or not prefer a criminal prosecution are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. It prohibits continuation of criminal prosecution if extraneous matters divorced from the goals of justice substantively influence its instigation or continuance.
A criminal prosecution as opposed to majority of quasi-judicial systems has a constitutional and statutory safeguards to ensure fair trial. The judicial review process is simply one of the mechanisms established to promote fair trial. Outside the judicial review procedures, the Constitution and by extension, the Statute has various provisions aimed at ensuring an accused person is accorded a fair trial. The criminal court is granted wide powers to examine evidence and make a decision whether to acquit or convict an accused person. The Criminal Procedure Code also provides for an avenue for an appeal should an accused person be aggrieved by the decision of the trial court. Similarly, even if it turns out that the proceedings were unwarranted, there exists an avenue for compensation for malicious prosecution. It is partly as a result of the foregoing that the power of quashing or prohibiting criminal prosecution is exercised very sparingly. It is an inherent powers to largely prevent criminal proceedings from degenerating into a weapon of harassment and persecution through abuse of constitutional or statutory authority.
The overall principle is that the court, in a judicial review proceedings, cannot convert itself as a trial court and determine the merit of the intended or continuing criminal trial or prosecution. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined as the same would easily amount to abuse of the judicial process. In any proceedings seeking to halt criminal proceedings through judicial review, the burden is on the accused applicant to prove that there cannot be a prosecutable case against them. This burden is a heavy one since the applicant in such a case would be seeking a consequential order whose overall effect would be to curtail the constitutional and statutory mandate of the public prosecution body from initiating and conducting criminal prosecutions.
The court has however stated that the decision to prosecute is a quasi-judicial decision which should not be taken lightly given the penal consequences inherent in any criminal proceeding. The office of the DPP should exercise its mandate and discretionary power to prosecute within constitutional limits and the independence of his office.
2.0 Salient Points for invocation of the Court’s Powers
2.0.1 Discretion of DPP to prosecute or not.
The DPP has constitutional and statutory powers to initiate and proceed with prosecutions. This is an exercise of discretion without any direction from any person. The DPP is clothed with powers to make a discretion whether or not to prosecute. The discretion is not unfettered as it must be exercised legally and reasonably. Judicial review court has authority and will interfere if such powers are sought to be exercised in contravention of the law or in excess of jurisdiction.
The exercise of prosecutorial decision is indeed subject of review by the courts. However, sight must not be lost to the fact that several issues may at play in affecting the decision of DPP to initiate criminal prosecution. The difficulty arises owing to the polycentric character of the decision making by the DPP key being policy and public interest considerations. Article 157(11) of the Constitution provides as follows:
“In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
The question as to whether a remedy of judicial review is efficacious to review a decision of DPP not to prosecute in light of the highlighted constitutional provisions was ventilated in the case of R v Director of Public Prosecution Ex parte Communication Commission of Kenya  where the court held as follows:
“In the Kenyan context there is a strong reason why the courts should, only in very extreme cases, interfere with the decision of the Director of Public Prosecutions not to prosecute. The reason is that a complainant aggrieved by the decision of the DPP has the remedy of commencing private prosecution and that prosecution can only be taken over by the DPP with the permission of the complainant–Article 157(6)(b) of the Constitution. A person dissatisfied with the decision of the DPP not to prosecute is therefore not left without a remedy. However, the Court cannot altogether abdicate its supervisory powers over the exercise of the prosecutorial mandate by the Respondent. Where an applicant demonstrates that judicial review is the best remedy for checking abuse of prosecutorial powers by the Respondent, I do not see why the Court should not grant appropriate orders to such an applicant.”
In a bid to underscore the extensive powers of the DPP over initiation of prosecution, the court proceeded and concluded as follows:
Where the Court therefore finds that the DPP has exercised his discretion not to prosecute wrongly, the Court can only remit the matter back to the DPP for reconsideration in view of the findings of the Court. The powers of the DPP are found in the Constitution and statute and they should be exercised within the constitutional and statutory provisions. In view of the source of the powers of the DPP, this Court has the authority to ensure those powers are exercised constitutionally and lawfully.
2.1 Sufficiency of evidence vis a vis Disclosure of Offences
The fact that the judicial review court cannot convert itself into a trial court essentially means that the proceedings are limited or concerned with the bona fides and whether the decision to prosecute including the continued proceedings are being conducted in a fair manner. Once established, a judicial review court usually refrains from usurping the jurisdiction of the trial court. If an offence is disclosed but the court nevertheless proceeds to determine the sufficiency of evidence to be presented against the applicant, it would risk trespassing onto the arena of trial court. A fair trial is not to be equated with a strong prosecution’s case on the merits. The issue that the court concerns itself with is the trial and decision making process as opposed to bona fides of the prosecution’s case.
It was aptly held in the case of R v Director of Public Prosecutions & 3 Others Ex parte Meridian Medical Center Ltd & 7 Others
‘If the Applicants are allowed in these proceedings to challenge the evidence in the possession of the DPP at this stage, I am afraid that it would amount to pre-empting the DPP’s case by setting out the Applicants’ defence and accepting it as true. Such arguments can only be made in the right forum being the trial Court. This Court is not to be concerned with the sufficiency of the evidence available to support the charges and it is sufficient for the Respondents to demonstrate that they have a reasonable or probable cause that an offence has been committed and therefore the Applicants should stand trial..’
However, the same ought to be differentiated from instances where no offence is disclosed. In situations where it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, the court will intervene. The basis for such an intervention is based on the fact that to allow such criminal proceedings to continue would amount to the court abetting abuse of its process by the prosecution. Whereas the DPP is not required to have a full proof or prima facie case, he ought to have in his possession such evidence which if believable might reasonably lead to a conviction. Such a determination involves the exercise of discretion by the DPP. Since the discretion is not absolute, fair exercise of such a discretion requires that before arriving at a decision to charge the accused, both incriminating and exculpatory evidence have to be considered and weighed accordingly.
Whether or not a charge is disclosed should be clear and open and the court should not be invited to conduct a minute examination of evidence to determine whether or not the offence exists. It is the trial court which is clothed with jurisdiction to determine whether the facts and evidence as presented discloses an offence known in law. The trial court is sufficiently empowered under the provisions of Section 89(5) of Criminal Procedure Code to determine that issue. For avoidance of doubt Section 89(5)of the Criminal Procedure Code provides thus;
“Where the Magistrate is of the opinion that a complaint, or a formal charge made or presented under this Section does not disclose an offence, the Magistrate shall make an order refusing to admit the complaint or formal charge and shall record his reason for the order”.
2.0.2 Abuse of the Court process
Article 157(11) of the Constitution enjoins the DPP to prevent and avoid abuse of the legal process while exercising his powers. The Court of Appeal has defined ‘abuse of the court process’ to arise where the court is being used for improper purposes, as a means of vexation and oppression, or for ulterior purposes; that is to say, court process is being misused.
The ingredients of an abuse of the court process was laid out in the case if Rosemary Wanja Mwagiru & 2 others vs The Attorney General & 2 others; Mumbi J stated as follows;
“The process of the court must not be misused or otherwise used as an avenue to settle personal scores. The criminal process should not be used to harass or oppress any person through the institution of criminal proceedings against him or her. Should the Court be satisfied that the criminal proceedings being challenged before it have been instituted for a purpose other than the genuine enforcement of law and order, then the court ought to step in and stop such maneuvers in their tracks and prevent the process of the court being used to unfairly wield State power over one party to a dispute.”
Harassment and oppression are key characteristics of bad faith or ulterior motives in the institution and continuance of criminal proceedings. However, the court has stated that bad faith or collateral motive is only decisive in cases where it is the dominant factor rather than just one of the motives.
In the case of R v Director of Public Prosecution & Another Ex parte Chamanlal Vrajlal Kamani & 2 others, the court contextualized the principle of ‘dominant factor’ as follows:
“Whereas bad faith is alleged, it ought to be appreciated that bad faith or collateral motive is only decisive in cases of this nature where it is the dominant factor rather than just one of the motives…. I must reiterate that in determining whether or not to halt criminal proceedings, the Court must consider the dominant motive for bringing the criminal proceedings. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene… Where the ground relied upon to halt the same is some collateral motive which on its own does not warrant the halting of the said proceedings, the Court ought not to take such exceptional step of bringing to an end criminal proceedings where there possibly exist other genuine motives”
2.3 Pending Civil Proceedings over same subject matter
Section 193A of the Criminal Procedure Code on this issue provides:
Notwithstanding the provisions of any other written law, 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.
Generally, initiating a criminal matter whether there is a pendency of a civil matter over the same or substantially the same issues does not have the effect of undermining or abuse of the criminal justice system as a whole. The mere fact of similarities of issues between the civil and criminal case per se is not a ground for interference with the cause of justice. The same applies to a situation where parties had mutually already agreed on an avenue for settling a dispute between the parties, say arbitration. The Court has stated that a mere presence of an arbitration clause ipso facto does not interfere with the powers to institute criminal proceedings over the same facts and issues. The court held as follows:
‘I have already stated that the DPP exercises his powers to prosecute independently and such powers include institutions and undertaking of criminal proceedings against any person in respect of any offence alleged to have been committed by that person. If this Court were to direct that the arbitral clause be invoked in resolving the present dispute, it would in essence be directing the DPP in performance of his duties. It would also in essence be defeating the purposes of the criminal justice system. An arbitral clause cannot be a bar to prosecution as long as it is demonstrated that the prosecution is not malicious and has legal basis and that an offence was committed.
However, the court examines whether institution of the criminal case is vexatious with the sole or dominant role of coercing the applicant to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim. The Court held as follows:
Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the Court unless the commencement of the criminal proceedings is meant to force the Petitioner to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim.”
Similarly, the Court of appeal in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 eKLR:
“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court.”
Article 157 (11) enjoins the DPP in exercising the powers of prosecution, have regard to inter-alia the need to prevent and avoid abuse of the legal process. It is on the basis of this provision that the police and the DPP are required to take into account the existing civil mechanism already put in motion to prevent advancing individual as opposed to public interest.
As was held in the above cited case of Republic vs Chief Magistrate’s Court at Mombasa ex-parte Ganjee & Another:-
“When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement…….If the object of the appellant is to over awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court….In this matter the desire of the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further the ulterior motive and that is when the High Court steps in……….”
The same holds true in instances where it is evident that a party clearly seeks to transmute what is purely a civil or contractual matter to take the shape of a criminal offence. However, where the evidence that forms the subject of criminal preference reveals that the contract is illegal or fraudulent manner, courts will not interfere to stop the criminal trial. This is due to the fact that the trial court would require to consider evidence adduced to make a determination one way or another.
2.4 Legitimate Expectations
Legitimate expectation is a legal principle and when it relates to public bodies, it arises, for example, where a member of the public as a result of a promise or other conduct expects that he will be treated in one way and the public body wishes to treat him or her in a different way. The DPP may make a promise that a particular person will not be prosecuted. However, the same DPP may turn and prosecute the same individual without any change in the circumstances that led to the earlier promise by the DPP. The said prosecution may be contrary to legitimate expectations.
However, for such legitimate expectations to hold, the same must be legitimate in the first place and must be made within the confines of the law. Expectations made in erroneous appreciation of the law or which goes against an express provision of the law cannot be enforced against the public officer who made it.
This was the position in Republic vs. Kenya Revenue Authority ex parte Aberdare Freight Services Limited  2 KLR 530 where it was held:
“…a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Judicial resort to estoppel in these circumstances may prejudice the interests of third parties. Purported authorization, waiver, acquiescence and delay do not preclude a public body from reasserting its legal rights or powers against another party if it has no power to sanction the conduct in question or to endow that party with the legal right or inventory that he claims… Legitimate expectation is founded upon a basic principle of fairness that legitimate expectation ought not be thwarted – that in judging a case a judge should achieve justice, weigh the relative “strength of expectation” of the parties. For a legitimate expectation to arise the decision must affect the other person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision maker not to be withdrawn without giving him first an opportunity of advancing reasons for contending that they should be withdrawn…A representation giving rise to legitimate expectation must however be based on full disclosure by the applicant. Thus where he does not put all his cards face up on the table it would not be entitled to rely on the representation. In this case any legitimate expectation has clearly been taken away firstly by the conduct of the applicant and the provisions of the Statute Act and therefore there is no discretion.”
2.5 Adverse Publicity
In some cases, an applicant may allude to the negative publicity of the issues surrounding his case to demonstrate that he is highly unlikely to get a fair trial before courts. Decisions on this matter clearly shows a judicial reluctance to interfere with the process of the trial even when there has been prejudicial publicity after a person has been charged with a criminal offence and before trial. The argument has been that cases are decided by Judges and Magistrates who are professional and are bound by judicial oath capable of adjudicating matters based purely on evidence.
Courts have held that the right of presumption of innocence is accorded to a person charged with the criminal offence and hardly operates outside the criminal justice system to include members of the public. A person can only make an allegation of an effect of adverse publicity when he has already been charged with a criminal offence and not before.
In a case of Pattni & Another v R (2001) eKLR, where the applicant states that throughout the 5 years, the press, electronic media and politicians have heaped ridicule, racial hatred, and contempt upon the applicants by their constant and often repeated statements that the poverty and suffering of Kenyan people is as a direct result of the alleged criminal activities. Consequently, it was their case that in the light of the publicity aforesaid it is not now possible to find a magistrate who is unbiased and who would have the courage to acquit the applicant in view of the serious adverse publicity which would ensue upon his acquittal with allegations of corruption in the Judiciary being inevitable
The Court held as follows:
“The applicants have made speculative and very wide generalisation. We have to decide this aspect of the case on the basis of reality and the law. The newspapers are not on trial here for contempt of Court for prejudicing the trial and so it would be futile to find out whether what they have said is of great public interest. The presiding magistrate is not on trial either and the application is not for recusal of the presiding magistrate. So again, it would be futile and improper to apply the tests in recusal cases. The applicants are not also seeking by this application, to vindicate their rights against the newspapers for the harm they have done. What applicants are complaining about is generalized bias by every magistrate in this country based on the wild assumption that every magistrate has read each and every article including foreign newspapers.”
The issue of adverse publicity was dealt with in Kuria & 3 Others vs. Attorney General  2 KLR 69 as hereunder:
“The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial…”
It was also held in the case of Jago vs. District Court (NSW) 106 as follows:
“..it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness. This is a lofty aspiration but it is not the law.It has not been alleged that there is a risk that as a result of the adverse publicity so far generated by the transaction in issue, the applicants’ right to fair trial is threatened. In fact no allegation has been made against the trial Court along those lines and in these proceedings no orders are expressly sought against the trial Court.”
 (2014) eKLR
 (2015) eKLR
 Meme v Republic & Another
 (2013) eKLR
 (2015) eKLR
 R v Director of Public Prosecution & 3 others Ex parte Meridian Medical Center Ltd & 7 others (2015) eKLR
 George Joshua Okungu& Another vs The Attorney General Petition NO. 227 and 230 of 2009,