Case ID:168942

Sarah Wairimu Kamotho v Director of Criminal Investigations & 4 others [2020] eKLR

Case Metadata

Case Number:

Constitutional Petition E361 of 2020

Parties:

Sarah Wairimu Kamotho v Director of Criminal Investigations, Inspector General of Police, Director of Public Prosecutions, Attorney General & High Court, Criminal Division at Milimani High Court In Nairobi

Date Delivered:

01 Dec 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Directions

Judge(s):

James Aaron Makau

Citation:

Sarah Wairimu Kamotho v Director of Criminal Investigations & 4 others [2020] eKLR

Court Division:

Constitutional and Human Rights

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. E 361 OF 2020

IN THE MATTER OF ARTICLES 2(1), 2(2), 2(4), 3(1), 10(1), 10(2), 19, 20(1), 20(2), 20(3), (b), 21(1), 22(1), 23(1), 24(1), 165(b), 258(1) & 259 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF VIOLATION AND CONTRAVENTION OF THE PETITIONER’S RIGHTS AND FUNDAMENTAL FREEDOMS ARTICLES 25(c), 27(1), 27(2), 27(4), 28, 29(a)(b)(d), 31, 35, 40(1)(3), 47(1)(2), 49(1)(a)(c)(d)(h), 50(2 & 4), 51, 73, 73(2)(b) and 75(1) OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS AND FUNDAMETNAL FREEDOMS (PRACTICE AND PROCEDURE RULES, AS READ TOGETHER WITH CHAPTER FOUR OF THE CONSTITUTION OF KENYA

IN THE MATTER OF THE ALLEGED VIOLATION BY THE DIRECTOR OF CRIMINAL INVESTIGATIONS AND THE INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE, CONTRAVENTION OF THE CRIMINAL PROCEDURE CODE CAP 75, LAWS OF KENYA, NATIONAL POLICE SERVICE ACT CAP 84 AND THE NATIONAL POLICE STANDING ORDERS

IN THE MATTER OF THE ALLEGED VIOLATION BY THE DIRECTOR OF PUBLIC PROSECUTIONS, THE OFFICE OF THE DIRECTOR OF PUBLIC OF PROSECUTIONS ACT NO.2 OF 2013, THE CODE OF CONDUCT AND ETHICS FOR PUBLIC PROSECUTORS REVISED, 2015 AND THE GUIDELINES ON THE DECISION TO CHARGE 2019

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTION 4(2, 3 & 4) OF THE FAIR ADMINISTRATION ACT

IN THE MATTER OF THE ALLEGED VIOLATION OF THE PETITIONER RIGHTS UNDER SECTION 45 OF THE LAW OF SUCCESSION ACT, CAP 160 LAWS OF KENYA

IN THE MATTER OF THE EVIDENCE ACT CAP 80, LAWS OF KENYA

BETWEEN

SARAH WAIRIMU KAMOTHO.................................................. PETITIONER

VERSUS

DIRECTOR OF CRIMINAL INVESTIGATIONS.............1

ST

RESPONDENT

THE INSPECTOR GENERAL OF POLICE.......................2

ND

RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS.............3

RD

RESPONDENT

THE ATTORNEY GENERAL...............................................4

TH

RESPONDENT

IN THE HIGH COURT, CRIMINAL DIVISION AT

MILIMANI HIGH COURT IN NAIROBI..........................5

TH

RESPONDENT

DIRECTIONS

1. The Petitioner herein filed this Petition together with Notice of Motion dated 3

rd

November 2020 seeking several prayers.

2. On 6

th

November 2020 the Notice of Motion was certified urgent and direction as regards service and filing responses were given by this Honourable Court.

3. On 30

th

November 2020 when this mater came up for mention the Petitioner’s counsel sought the following orders:-

a) That pending hearing and determination, inter partes, of the application, an order be issued staying the criminal proceedings against the Petitioner in High Court Criminal Case No. 60 of 2020 Republic vs. Sarah Wairimu Kamotho Cohen and another.

b) That pending hearing and determination, inter partes, of the application, an order be issued calling for the Court file in High Court Criminal Case No. 60 of 2020 Republic Vs. Sarah Wairimu Kamotho Cohen and Another to this division.

c) That this Honourable Court be pleased to certify that the Petition herein raises substantial questions of constitutional law, and forthwith refer the case to His Lordship the Honourable Chief Justice, for appointment of a bench of an uneven number of Judges being not less than three (3) judges of the High court, pursuant to Article 165(4) of the Constitution of Kenya 2010.

4. The Petitioner’s Counsel urged that he had complied with the Court’s direction and served all the parties as directed between 9

th

November 2020 and 10

th

November 2020. However there was no compliance on part of the Respondents within the timelines given by this Court.

5. The Petitioner’s Counsel urged that on 29

th

November 2020 the 3

rd

Respondent, ODPP filed a Replying affidavit, and that the 4

th

Respondent, the office of the Attorney General filed grounds of opposition on 30

th

November 2020.

6. The Petitioner’s Counsel state that following the service of extracted orders of this Court, on 19

th

November 2020 when Criminal Case came up for hearing, the 1

st

, 2

nd

and 3

rd

Respondents sought orders from the 5

th

Respondent to permit them to file 16 witnesses, statements and 17 documents which they had not filed for 14 months since the matter commenced, which the Petitioner’s counsel opposed; urging the Respondents should not be allowed to regularize the hearing. The petitioner contend that the Court took position that no order of stay had been granted and proceeded as if the present petition do not exist. This then forced the Petitioner to file a supplementary affidavit on 20

th

November 2020.

7. The Respondents attempted to serve further affidavit which the Petitioner refused to receive.

8. It is Petitioners’ contention that her constitutional rights are being violated and as such prays that this Court do stay the proceedings before the 5

th

Respondent.

9. The Petitioner further pray that the court do consider the reasons raised in the application and refer this matter to His Lordship the Honourable Chief Justice to empanel a bench of not less than three (3) Judges to hear and determine the matter.

10. The Counsel appearing for 1

st

, 2

nd

and 3

rd

Respondents is opposed to the Petitioner’s application and in doing so, filed a Preliminary Objection dated 27

th

November 2020 and Replying Affidavit dated 27

th

November 2020. The 1

st

, 2

nd

and 3

rd

Respondents in their Preliminary Objection urge that the petition raises matters that are sub-judice and res-judicata; that this court has no jurisdiction to grant an order in a matter that is pending before a Court of concurrent jurisdiction nor grant reliefs and orders in a matter pending before a Court of competent and concurrent jurisdiction.

11. The 1

st

– 3

rd

Respondents’ position in the matter is therefore this Court has no jurisdiction to handle issues, that it is being invited to deal with, thus the order of stay of the criminal proceedings against the Petitioner in High Court Criminal Case No. 60 of 2020 Republic vs. Sarah Wairimu Kamotho Cohen and Another and for an order calling for the Court file in High Court Criminal Case No. 60 of 2020 Republic Vs. Sarah Wairimu Kamotho Cohen and Another.

12. It is 1

st

– 3

rd

Respondents contention that it matters not, that this is a constitutional court as the jurisdiction exercised by this court is the same as that of the Judge in the Criminal Proceedings before the 5

th

Respondent.

13. It is further submitted that this Court cannot pursuant to

Article 165(6) and (7) of the Constitution

purport to exercise supervisory jurisdiction over a court of concurrent jurisdiction.

14. On issue of empanelling of a bench, it is 1

st

– 3

rd

Respondents contention, that the allegation regarding infringement, violation of fundamental rights, the same can be urged before the trial Judge in the criminal matter as the court is also vested with power to hear and determine such violations. The 1

st

– 3

rd

Respondents urged this Court to resist the temptation to oust the jurisdiction of the trial judge.

15. The 1

st

– 3

rd

Respondents content that the first issue on jurisdiction should be dealt with first. The other subject orders can be addressed thereafter.

16. The 1

st

– 3

rd

Respondents further stated that no substantial question of law has been raised in the Petition to justifying certification of the Petition as sought. It is urged all questions raised can be dealt with by the trial Judge.

17. The 1

st

– 3

rd

Respondents submitted that they have no objection to the 1

st

and 2

nd

proposed interested parties being enjoined in this petition, so that the Court can deal with the issue of jurisdiction in their presence.

18. The counsel for 4

th

and 5

th

Respondents stated that she filed grounds of opposition of the application dated 26

th

November 2020 and rely on the same. She also associated herself fully to the submissions by Counsel for 1

st

– 3

rd

Respondents on the issue of jurisdiction.

19. She further urged the application has not established a prima facie case nor has the Petitioner established the prejudice that will be suffered if orders sought are declined.

20. The Counsel for 1

st

and 2

nd

proposed Interested parties Barnard Cohen and Miss Sharon Van Tienhoven - Cohen urged that, the 1

st

proposed Interested Party is a co-executor of the deceased will whereas the 2

nd

proposed interested party is said to be a beneficially of the deceased estate Tom Cohen. The Petitioner is alleged to be seeking access to control assets to be bequeathed to certain parties and that these proceedings are of great interest to the 1

st

and 2

nd

Proposed Interested Parties and that the joinder of the two would assist the court in determination of the matter.

21. Mr. Shadrack Wambui, Advocate for proposed 3

rd

Interested Party Gabriele Van Straton Cohen, made an oral application for joinder, of Gabriele Van Straton Cohen being a sister to the deceased Tom Cohen; whose murder is alleged to have been committed by the petitioner herein and who is facing criminal proceedings before the 5

th

Respondent.

22. The 3

rd

proposed Interested Party herein urges the Petitioner herein seeks to stay proceedings before the 5

th

Respondent by seeking conservatory orders staying the proceedings so as to stop proceedings for murder of Tom Cohen. The three proposed Interested Parties contend that they are victims and have a stake with the proceedings before this Court. The proposed Interested Parties, urged they are beneficiaries of the deceased estate Tom Cohen.

23. The proposed Interested Parties have demonstrated that they have identifiable stake in the proceedings before this Court.

24. The Petitioner’s Counsel is opposed to the application for joinder urging the proposed interested parties are after the deceased properly and contends that this is not a forum for joinder of the proposed parties without a formal application.

25. On issue of jurisdiction the Petitioner concede that issue must be resolved first.

26. Having considered the counsel rival submissions and the issue raised herein I proceed in the interest of substantive justice to issue directions as follows:-

A. (i) In pursuance of Rule 7(2) of the Mutunga Rules; Article 159(2)(a)(b)(d)(e), Article 47(1) and Article 50 of the Constitution the proposed Interested Parties herein are joined to these proceedings as follows:-

Mr. Bernard Cohen - 1

st

Interested Party

Miss Sharon Van Tienhoven – Cohen – 2

nd

Interested Party

Gabriele Van Straton Cohen - 3

rd

Interested Party.

ii) The joinder of the 1

st

, 2

nd

and 3

rd

Interested Parties is for the time being limited to participation on the issue of jurisdiction of the Court at this stage so as to afford them fair hearing.

iii) The 1

st

, 2

nd

and 3

rd

Interested Parties to file and serve their responses limited to (ii) above within 7 days from the date hereby and serve within the same period.

B. i) The 1

st

, 2

nd

and 3

rd

Respondents to file submissions with regard to their Preliminary Objection dated 27

th

November 2020 within 14 days from today and serve within the same period.

ii) The Petitioner and other Respondents as well as Interested Parties to file submissions in response (if need be) within 14 days from the date of service with the 1

st

, 2

nd

and 3

rd

Respondents’ submissions.

iii) Prayers sought herein in the application dated 3

rd

November 2020 to await the outcome of the 1

st

– 3

rd

Respondents Preliminary Objection on this Court’s jurisdiction.

iv) Mention on 19

th

January 2021 to confirm compliance.

Dated, Signed and Delivered at Nairobi

on this

1

st

day of

December, 2020.

………………………

J. A. MAKAU

JUDGE