SUMMARY OF THE SUPREME COURT JUDGEMENT IN CYRUS SHAKHALANGA KHWA JIRONGO V SOY DEVELOPERS LTD & 9 OTHERS [2021] EKLR

This is a decision on an appeal that arose from the judgment of the Court of Appeal (Visram, Karanja & Otieno-Odek, JJA) in Civil Appeals No. 43 and 48 of 2017, which got consolidated. The decision of the Court of Appeal set aside the orders of certiorari and prohibition issued by the High Court (Odunga J.) in Miscellaneous Application No. 78 of 2016.

Cyrus Shakhalanga Khwa Jirongo, the Appellant, entered into a conveyancing transaction for the purchase of LR. No. 209/11151 from the 1st Respondent, Soy Development Ltd (SDL). The purchase price of the property was Kes 20,000,000. Mr. Jirongo paid a deposit of Kes 10,000,000 and was issued with title documents. He thereafter charged and discharged the property. In 2015, the directors of SDL(the 2nd and 3rd Respondents) alleged that there was a fraudulent transfer of the property, and filed a suit in the Environment and Land Court on the same.

Further investigations were conducted by the Directorate of Criminal Investigation (DCI), the 6th Respondent, and criminal proceedings against the Appellant were instituted by the Public Prosecutions (DPP), the 5th Respondent, upon recommendation by the DCI. The Appellant was charged with obtaining execution of security by false pretenses; making a document without authority; uttering a false document; and giving false information to a person employed in the public service.

Mr. Jirongo thereafter filed an application in the High Court seeking to quash the decision to charge and institute criminal proceedings against him; to quash the charges contained in the charge sheet dated 9th February 2016; to prohibit the carrying out and/or proceeding with the criminal case; and to prohibit the reopening or purporting to reopen, bringing, instigating, instituting, and carrying out any criminal proceedings in connection with the sale of the suit property. His major contention was that there was a 24-year delay in instituting the prosecution, and proceeding with the prosecution would infringe his fundamental rights, freedoms and legitimate expectations.

The court placed the burden to prove that a fair trial would not be possible on the Appellant. It however, in allowing the application, recognized that a considerable period of time had lapsed and that records were missing. The learned Judge observed that the manner in which the 2nd and 3rd Respondents conducted themselves was scandalous, gluttonous, corrupt, fraudulent and an illegal scheme to unlawfully reclaim the suit property. He faulted them for failing and/or neglecting to utilize the available remedies of enforcing any alleged wrongdoing in relation to the transaction. The Court further stated that the mere fact that the Applicant would be subjected to a criminal process in which he would get an opportunity to defend himself was not a sufficient reason to allow a clearly flawed, unlawful and unfair trial to run its course.

The respondents filed an appeal in the Court of Appeal, where the issues for determination were framed as follows:

  1. Whether the learned Judge erred in issuing orders of certiorari and prohibition stopping indictment and prosecution of the 1st Respondent;
  2. Whether the learned Judge exceeded his jurisdiction; and
  3. Whether the prosecution of the Appellant would deprive him of a fair trial.

The appeals were allowed and the High Court’s judgment set aside. The court found that the delay in instituting criminal proceedings against the Appellant was explained to their satisfaction, and that no evidence was provided to demonstrate the prejudice that the Appellant would suffer if given an opportunity to put forth his defense in a criminal trial.

On the issue of jurisdiction, the court held that the learned Judge delved into extraneous matters not supported by the evidence on record, by making adverse observations without the benefit of oral evidence and cross-examination of the parties.  It held that the trial court therefore erred in making conclusions grounded on disputed contents of documents submitted by the parties.  Further, the Court held that there was no evidence on record to prove bias on the part of the DPP or any ulterior or collateral purpose in the making of the decision to charge the Appellant.

The findings of the Court of Appeal necessitated the filing of this appeal in the Supreme Court.

Issues for determination:

In the interlocutory stages, applications for stay of execution of the Court of Appeal’s judgement, and adducing of additional evidence, were filed. The applicant was granted orders for the stay of execution, but was not allowed to adduce additional evidence.

The Supreme Court considered the issues for determination to be:

  • Whether there is a right of appeal to this Court following the decision of the Court of Appeal under Article 163(4)(a) of the Constitution;
  • Whether the inordinate delay in instituting the intended prosecution of the appellant would infringe his rights and freedoms under Articles 19,20,27 and 50 of the Constitution;
  • Whether the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the Director of Public Prosecutions contrary to Article 157 of the Constitution; and
  • What are the appropriate reliefs?

The Court’s Findings:

On the first issue, the Court found that they were properly moved since the issues canvassed before them related to an interpretation and application of the Constitution. The Appellant’s claim was that he was being subjected to an unfair criminal trial, contrary to Article 50 of the Constitution, as well as alleged bias and abuse of power by the DPP, contrary to the mandate conferred by Article 157 of the Constitution. The Court held that those issues were squarely before it, having been the subject of determinations by the Superior Courts below it.

On the issue concerning delay, the Judges of the Supreme Court agreed with the learned Judge of the High Court that the prosecution of the Appellant was in breach of his right to a fair trial, as protected by Article 25(c) and Article 50 of the Constitution. The Court’s reasoning was that the evidence pointed to the fact that the documentation necessary to prove the alleged fraud may no longer be available. Further, since both parties had admitted that the same issues were also pending in another Court, and that the issue of lost documentation remained unresolved, it would be most unfair to subject the Appellant to a criminal trial, 24 years after the impugned transaction.

The Court further held that the 24-year delay and the use of the criminal process to force the hand of the Appellant fatally tainted the fairness of the prosecution. The court also stated that the ODPP, without in any way taking away its constitutional mandate to prosecute crimes, ought always to act judiciously and not act in perpetuation of an unfair and malicious criminal complaint. In doing so, that office should always be guided by the principle that the right to a fair trial cannot be limited. The bar was thus raised in the determination of whether to prosecute a person or not.

On the issue of whether a complainant can pursue both civil and criminal proceedings at the same time, the court stated that where it is obvious that prosecution is being undertaken to aid proof of matters before a civil court, or where the hand of a suspect is being forced by the sword of criminal proceedings to compromise pending civil proceedings, then Section 193A of the Criminal Procedure Code could not be invoked to aid that unlawful course of action. Criminal proceedings, whether accompanied by civil proceedings or not, cannot and should never be used in the manner that the 2nd and 3rd Respondents had done. The Court was of the opinion that it was advisable for parties to pursue civil proceedings at the onset. Thereafter, with the aid of firm findings by the civil court on any alleged fraud, parties could then proceed to institute criminal proceedings to bring any culprit to book.

On the issue of jurisdiction, the court stated that although the DPP is not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising and make appropriate orders.

Conclusion

The Supreme Court concluded that the Court of Appeal erred in setting aside the decision of the learned Judge of the High Court. It affirmed the latter decision in all its facets, and awarded the Appellant the costs in the Supreme Court, the Court of Appeal and the High Court as against the 1st, 2nd and 3rd respondents.

By Praxedes Kageha

www.mmsadvocates.co.ke

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