Johannes Petrus v Director of Public Prosecutions & another [2021] eKLR

Key Facts

Issues

• The court determined whether the Petition is barred by res judicata, considering the prior dismissal of a similar application by Justice F. Gikonyo. The issue centered on whether the Petitioner’s claims were previously adjudicated and whether they could be reopened. The court found that while the prayers sought were similar, the legal basis for the current petition differed, particularly regarding the authority of the Directorate of Criminal Investigations (DCI) to institute proceedings without the Director of Public Prosecutions (DPP) consent.
• The court examined whether the 2nd Respondent (DCI) unlawfully instituted Criminal Cases No. 1154 of 2019 and 68 of 2019 without the 1st Respondent (DPP)’s consent. The Petitioner argued this violated the Constitution and statutory provisions, while the DPP claimed the cases were lawful as the prosecution was authorized. The court analyzed the procedural requirements for initiating criminal proceedings, referencing Article 157 of the Constitution and the DPP’s role in approving charges, ultimately finding no evidence the DPP’s consent was lacking.

Holdings

• The court noted the DPP's active participation in the trial court, as demonstrated by prosecution counsel's representation during plea-taking and arraignment, supporting the claim that the DPP approved the charges.
• The court dismissed the petition, finding that the petitioner failed to prove the prosecution was instituted without the Director of Public Prosecutions' (DPP) consent. The DPP's involvement in the trial court proceedings, as evidenced by prosecution counsel's participation, confirms their approval.
• The court determined the matter was not res judicata, as the previous ruling addressed a different legal issue (civil vs. criminal nature of charges), and the current petition raised distinct grounds regarding the DPP's authority to approve prosecutions.
• The court affirmed that the DPP has constitutional authority to take over and continue criminal proceedings, even if initially instituted by another body, and that the DPP's defense in this case indicates their intent to proceed with prosecution.

Remedies

• The court discharged the stay orders granted in the application dated 12th November 2020. As a result, the trials for Criminal Cases No. 68 and 1154 of 2019 before the Meru Chief Magistrate's Court are to resume hearing.
• The court dismissed the petition filed by Johannes Petrus Viljoen seeking a declaration that the criminal proceedings in Cases No. 1154 of 2019 and 68 of 2019 were null and void due to alleged violations of constitutional rights and the Director of Public Prosecutions' authority. The court found no merit in the petition and declined it.
• In view of the constitutional and public interest elements of the case, the court decided not to make any order regarding costs. The ruling was delivered on 11th March 2021 by Judge Edward M. Muriithi.

Legal Principles

• The court held the petitioner must prove the criminal proceedings were instituted without DPP consent. The petitioner failed to provide sufficient evidence, relying on unsubstantiated allegations, and did not shift the burden to the respondents to justify their prosecutorial decision.
• The court applied a purposive interpretation of Article 157(10) of the Constitution to affirm the DPP's independence in initiating prosecutions, aligning with the law's intent to ensure prosecutorial autonomy while balancing public and private interests.
• The court determined that the current petition is not res judicata, as the prior application (Criminal Revision No. 186 of 2019) addressed different legal grounds (civil vs. criminal nature of charges) compared to the current challenge (lack of DPP consent). The court emphasized the principle applies to constitutional petitions but requires clear and rare circumstances for invocation.
• The court examined whether the Directorate of Criminal Investigations (DCI) acted ultra vires by instituting proceedings without DPP consent. It concluded the DCI's role in investigations does not authorize independent prosecution, but the DPP's subsequent involvement validated the process.

Precedent Name

• John Florence Maritime Services Limited & another v. Cabinet Secretary for Transport and Infrastructure & 3 others
• Henderson v Henderson
• Mburu Kinyua v Gachini Tuti
• Ramahngam Ravinthram v Attorney General
• Diamond Hasham Lalji & Another v Attorney General & 4 others
• Jackson Juma Kenga v Republic
• Geoffrey K. Sang v Director of Public Prosecutions & 4 Others
• Bernard Mugo Ndegwa v James Githae & 2 Others

Cited Statute

• National Police Service Act No. 11A of 2011
• Fair Administrative Action Act No. 4 of 2015
• Office of Director of Public Prosecutions Act No. 2 of 2013
• Constitution of Kenya (Articles 2(1), 3(1), 19, 22, 23, 25, 27, 28, 31, 47, 56, 73, 157(11), 159, 165 (3), 258, 259, 260)

Judge Name

Passage Text

• The court agrees with the petitioner that no criminal proceedings may be instituted without the consent of the Director of Public Prosecution... the Petitioner has not adduced evidence to prove that the prosecution was instituted without the consent of the DPP.
• The functions of the Directorate of Criminal Investigations are very clear and they are geared towards the collection and provision of criminal intelligence and the conduct of investigations. It is therefore well settled that the decision of whether to charge a suspect is the preserve of the Office of the Director of Public Prosecution.
• The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.