Soy Developers Limited & 5 others v Cyrus Shakhalaga Khwa Jirongo & 7 others;Soy Developers Limited & 4 others (Interested Parties) [2019] KECA 495 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a criminal prosecution halted after a 25-year delay, ruling delay alone doesn't block a fair trial unless real prejudice is proven.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge erred in issuing orders of certiorari and prohibition stopping indictment and prosecution of the 1st respondent
- 2.Whether the Judge exceeded his jurisdiction in judicial review by delving into the merits of the decision to charge
- 3.Whether prosecution of the 1st respondent after an inordinate delay would deprive him of a fair trial
- 4.Whether the Judge interfered with the discretion bestowed upon the DPP to initiate and conduct prosecution
Key legal issues
#Effect of delay in instituting criminal proceedings
The delay of over 25 years was explained (the missing land registry file resurfaced and a complaint was lodged within reasonable time); all relevant witnesses and documents were available, so no prejudice was demonstrated and the prosecution should not be barred.
The Court distinguished Stanley Munga Githunguri and Diamond Hasham Lalji, both of which involved direct representations that no prosecution would be brought or death of a crucial witness. Here, the DPP made no such representation, all witnesses were alive, and all relevant documents and the land registry file were available. There was no evidence beyond conjecture and speculation of prejudice to the 1st respondent.
Scope of judicial review - merits vs process
The learned Judge erred by delving into evidential matters and making findings on disputed documents (CR-12, transactional documents) without an oral hearing, exceeding the proper scope of judicial review which concerns the decision-making process.
Disputed questions such as the veracity of the CR-12 and the sale transaction cannot be resolved on affidavit evidence. Fraud, in particular, is not proved by documentary evidence but requires viva voce evidence tested by cross-examination. The Judge also failed to evaluate the affidavit evidence of Sergeant Otieno on forensic analysis.
Interference with the DPP's prosecutorial discretion
The Judge went against the public interest in preventing investigation and prosecution of alleged fraudulent transfer and acquisition of the suit property, thereby interfering with the DPP's constitutional mandate under Article 157.
The DPP's discretion under Article 157 must be exercised having regard to public interest, the interests of the administration of justice and the need to prevent abuse of the legal process. There was no evidence of bias, ulterior or collateral purpose in the decision to charge. Issues of fraud are public interest issues best suited for determination and punishment in criminal proceedings.
Simultaneous civil and criminal proceedings
Section 193A of the Criminal Procedure Code (not Section 175A as cited) provides that the pendency of civil proceedings on the same facts is no ground for staying or prohibiting criminal proceedings; the existence of a civil suit does not mechanically preclude criminal prosecution.
Section 193A expressly provides that the fact that a matter in issue in criminal proceedings is also in issue in pending civil proceedings is not a ground for stay, prohibition or delay of the criminal proceedings. Per Kuria v R, a party must show concrete grounds that the criminal process is being abused or that a fair trial is imperilled.
Legal principles established
#- It is not the length of delay but the effect of the delay on the fairness of a trial that is important when seeking to stop criminal prosecution; where delay is explained and no prejudice is demonstrated, prosecution may proceed.
- A reviewing court in judicial review proceedings has no mandate to substitute its own decision for that of the decision maker, even where merits review is available under the Fair Administrative Action Act.
- The mere existence of civil proceedings arising from the same facts does not render criminal proceedings an abuse of process; concrete evidence of abuse, manipulation or threatened unfair trial is required.
- Allegations of fraud cannot be determined on affidavit evidence in judicial review; they require viva voce evidence tested through cross-examination at trial.
Court orders
#- 1.The appeals are allowed with costs
- 2.The judgment of the High Court dated 11th January 2017 in Miscellaneous Application No. 78 of 2016 is set aside in entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- JR Misc. Application No. 78 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judicial review judgment (Appeals from the High Court to the Court of Appeal)
- Consolidated with
- Civil Appeal No. 48 of 2017
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of our re-appraisal of the facts and applicable law in this matter leads us to conclude the two appeals filed against the judgment of the High Court have merit.
Accordingly, Civil Appeal No. 43 of 2017 and No. 48 of 2018 be and are hereby allowed. The judgment of the High Court dated 11th January 2017 delivered in Miscellaneous Application No. 78 of 2016 be and is hereby set aside in entirety. The appeals be and are hereby allowed with costs.
It is our considered view the trial Judge went against public interest in preventing investigation and prosecution of allegations relating to fraudulent transfer and acquisition of the suit property.
It is not the duty of a court to evaluate veracity of the contents of disputed documentary evidence that has not been tested through cross-examination.
The correct provision is Section 193A of the Criminal Procedure Act, Cap 75 of the Laws of Kenya.
Issues in the judgment
#The judgment refers to 'Section 193A of the Criminal Procedure Act' whereas the Code is elsewhere referred to as the Criminal Procedure Code (Cap 75), and repeatedly cites a non-existent 'Section 175A'.
The final orders state 'Civil Appeal No. 43 of 2017 and No. 48 of 2018' although the second appeal is Civil Appeal No. 48 of 2017.
Several passages of the judgment text as reproduced are garbled and contain corrupted wording, e.g. the passages describing judicial review authorities.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Soy Developers Limited & 5 others v Cyrus Shakhalaga Khwa Jirongo & 7 others;Soy Developers Limited & 4 others (Interested Parties) [2019] KECA 495 (KLR)", Case Analysis (2019). Civil Appeal No. 43 of 2017 (consolidated with Civil Appeal No. 48 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/495/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.