Director of Public Prosecutions & another v Crossley Holdings Limited & another [2016] eKLR

Case Caption:

In the Court of Appeal at Kisumu, (Coram: Maraga, Musinga & Murgor, JJ.A); Civil Appeal Nos. 1 & 2 of 2013 (Consolidated); Director of Public Prosecutions & Kenya Anti-Corruption Commission (1st & 2nd Appellants) v Crossley Holdings Limited & Miwani Sugar Co. (1989) Limited (1st & 2nd Respondents).

Case URL:

http://kenyalaw.org/caselaw/cases/view/121082

Summary Significance:

Judicial review is not an appellate jurisdiction. It is only concerned with the decision-making process and not with the merits of the decision.

Applicable laws:

ā—Article 157 of the Constitution of Kenya, 2010
ā—Sections 2 and 7 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003

Brief Facts:

The 1st Respondent (Crossley Holdings), its directors and other persons were charged with conspiracy to defraud under Section 317 of the Penal Code and fraudulent acquisition of property contrary to Section 45 (1) (a) as read with Section 48 of the Anti-Corruption and Economic Crimes Act. The 1st Respondent filed a judicial review application at the High Court on the grounds that given the background of the case, they were apprehensive that they were not going to be accorded a fair trial. It sought orders of certiorari quashing the Appellantā€™s decision to charge them and prohibition orders prohibiting the prosecution on the grounds that the decision to charge was ultra vires, irrational and an abuse of the Appellantsā€™ powers. The 1st Respondent succeeded and was granted the orders sought. Dissatisfied with the High Courtā€™s determination, the Appellants lodged the present appeal.

Issues for Determination:

I.Whether the Appellants had any legal or factual basis for mounting the prosecution of the 1st Respondent, its directors and others
II.Whether the High Court Judge went overboard and ventured into the merits of the Prosecutionā€™s case

Holding:

The court remarked that judicial review is not an appellate jurisdiction, but is concerned with the decision-making process and not with the merits of the decision. On the issue of whether the Appellants had any legal basis for the prosecution, the court remarked that under Article 157 (6) and (7) of the Constitution, the DPP (1st Appellant) is authorized to institute criminal proceedings while being guided by public interest and the interests of justice. Further, under Article 157 (4), the 1st Appellant also has authority to direct the police to carry out investigations upon which a prosecution may be based. Therefore, the Respondentsā€™ contention that the 1st Appellant should have waited for a report from the 2nd Appellant to institute prosecution in this case was unfounded. The court held that the Appellants had a legal basis to mount the prosecution. On the issue as to whether the High Court judge ventured into the merits of the prosecutionā€™s case, the Court of Appeal provided that the High Court Judgeā€™s decision was based on a finding that the suit land was private property by examination of the suit landā€™s title deed. The Court of Appeal stated that the limited scope of judicial review proceedings did not permit the judge to delve into the evidence and determine the allegation. In doing this, the judge usurped the criminal courtā€™s jurisdiction. In light of this, the Court of Appeal held that the judge had no basis for quashing the Appellantsā€™ decision to charge the Respondents and allowed the appeal.

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