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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 38 of 2017· [2018] KECA 857 (KLR)

Family Bank Limited & 2 Others v Director of Public Prosecutions & 2 Others

Court of Appeal
19 January 2018
4,392 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed the prosecution of Family Bank officials to proceed, ruling that a regulator's fine and CBK's input did not block criminal charges.

What this practically means

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Executive summary

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This was an interlocutory appeal against a ruling by Muriithi J declining to grant conservatory orders prohibiting the prosecution of Family Bank Limited and two of its officials for offences under the Proceeds of Crime and Anti-Money Laundering Act arising from the National Youth Service scandal, in which Ksh 791,385,000 stolen from the NYS was traced to accounts at the bank. The appellants argued before the Court of Appeal that the DPP's decision to prosecute was discriminatory and selective given the involvement of 27 other banks and the CBK; that the DPP's reliance on a professional assessment from the CBK Governor infringed the independence guaranteed by Article 157(10); that the Ksh 1 million administrative fine already imposed by CBK rendered prosecution double jeopardy; and that prosecution was against the public interest because it could trigger panic withdrawals and collapse the bank. The Court, in a single judgment of the whole bench, dismissed the appeal. It held that seeking comments on public interest issues did not offend the constitutional edict on prosecutorial independence; that prosecuting one accused among several alleged offenders is not discrimination; that an administrative penalty by a regulator is not a bar to criminal prosecution under the double jeopardy principle; and that, applying Mbogo v Shah, the trial judge's discretion was properly exercised. The appeal was dismissed with costs to abide the outcome of the substantive petition, which remains pending before the High Court.

Key legal issues

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01

Whether the DPP's consultation of the CBK Governor infringed Article 157(10) on independence of prosecutorial discretion

Holding

It did not; the DPP sought professional opinion on public interest, not consent or direction, and the decision remained his own

Reasoning

The Court endorsed the trial judge's finding that the Governor gave only a professional opinion on the effect of prosecution on the banking sector, which did not bind the DPP. The DPP performs a quasi-judicial examination of evidence and may direct police to seek clarifications. Any deeper question of improper intent is for the substantive petition with cross-examination of the letter's authors.

p. 6
02

Whether prosecution of the appellants while 27 other banks and CBK remained unprosecuted was discriminatory

Holding

No; charging one accused among several alleged offenders is not discrimination under Article 27

Reasoning

The respondents deposed that investigations into all implicated banks and CBK officials were directed. Criminal proceedings are routinely initiated against some alleged offenders and not others; this does not constitute differential treatment on constitutional grounds. Courts interfere with prosecutorial discretion only in clear cases of abuse, as in Githunguri v Republic.

p. 7
03

Whether the CBK administrative fine of Ksh 1 million rendered prosecution double jeopardy

Holding

No; the double jeopardy principle applies to judicial proceedings, not administrative penalties by a regulator

Reasoning

The Court adopted the trial judge's analysis under Article 50(2): there has been no prosecution, conviction or acquittal, only an administrative penalty subject to certiorari. POCAMLA created offences; investigation lies with police and charging decisions with the DPP. The appellants failed to demonstrate a blatant breach of the Constitution or statute to freeze those powers.

p. 7
04

Whether the trial judge misdirected himself on the balance of convenience and public interest regarding possible bank collapse

Holding

No; the judge properly exercised his discretion and the Court of Appeal would not interfere

Reasoning

Applying Mbogo v Shah, an appellate court does not interfere with a judge's discretion unless the judge misdirected himself or was clearly wrong causing injustice. The judge had considered the public interest and found it was not in the public interest to halt a prosecution where evidence supporting the charge was available.

p. 7

Legal principles established

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  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong resulting in injustice
  • An administrative penalty imposed by a regulator does not constitute double jeopardy or bar subsequent criminal prosecution for offences under the same statutory scheme
  • Prosecuting one accused among several alleged participants does not amount to unconstitutional discrimination or selective prosecution
  • The DPP may seek clarifications, further information or comments from third parties on public interest issues without offending the constitutional guarantee of independence under Article 157(10)
  • Courts interfere with the DPP's mandate to prosecute only in clear cases of abuse of process

Court orders

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  1. 1.The appeal (application) is dismissed
  2. 2.Costs to abide the outcome of the petition
On appeal from
High Court of Kenya
Constitutional Appl. No 488 of 2016
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court (Court of Appeal Rules); the judgment does not cite a specific constitutional provision for its own jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Family Bank Limited & 2 Others v Director of Public Prosecutions & 2 Others", Case Analysis (2018). Civil Appeal No 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/857/eng@2018-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.