The offences were said to have been committed on th April in Kericho County. The petitioners are challenging the criminal proceedings against them as being unlawful and unconstitutional. The petitions were therefore consolidated since they involved the same issue. The petitions seek the orders and declarations in the following terms.
The brief facts from which the consolidated petitions arise are as follows; the petitioners are employees of the 3 rd respondent based at its regional office in Kisumu.
At the material time, the 1 st petitioner was designated as an Anti-Counterfeit Inspector, the 2 nd petitioner, a Senior Anti Counterfeit Inspector and the 3 rd petitioner, a Chief Anti Counterfeit Inspector. The 3 rd petitioner also doubled up as the regional manager. Kericho County fell under his jurisdiction. On the day of the incident, the petitioners launched a crackdown on counterfeit goods in Litein Town, within Kericho County.
They identified several businesses namely Deltaline Electronicals, Litein Electronics and Sky Max Electricals which they suspected of dealing with counterfeit goods. They obtained reinforcement from police officers at Litein Police Station to raid the businesses. The petitioners state that they proceeded to the said businesses and found the owners at the premises. They introduced themselves to them before they conducted a search at the premises.
During the search they recovered assorted counterfeit electronic goods from each business which were seized and impounded by the police. Kiptanui chirchir dating businessmen were arrested and taken to Litein Police Station.
They informed the businessmen that the dispute could be settled through an Alternative Dispute Resolution ADR option available without trial entailing forfeiture of the impounded counterfeit goods and payment of the retail price of the items. They claim that the businessmen opted to settle the dispute through the ADR process and therefore made a formal application which was approved by the 3 rd respondent.
Thereafter they assessed and determined the retail value of the items recovered which amount was paid by the respective businessmen and an official receipt of the 3 rd respondent issued before they were released "Kiptanui chirchir dating" custody. The petitioners allege that on their way to Kisumu they saw that it was going to rain and they therefore stopped their vehicle on the side of the road to arrange the items recovered.
They claim that it was at that point that they realized that the 2 nd respondents officers had also been aboard the vehicle. The said officers asked them to step aside and they conducted a
Kiptanui chirchir dating search on them. Recovered from them was the money paid by the business owners, Kiptanui chirchir dating.
The officers then took them back to Kericho Police Station. Following their arraignment in court the 3 rd respondent suspended them from duty. The three petitions were argued together. They are brought under Articles 2 1Kiptanui chirchir dating 110, 19, 20, 22, 23, 27, 28, 41, 47, 48, 50,and of the Constitution.
The petitioners aver that their rights to equal protection of the law under Article 27 of the Constitution have been violated. Further that the businessmen made a formal application to pursue the ADR process put in place under Section 34 of the Policy on ADR and the same was approved. They argue that their actions were done in good faith and within their job description. The 2 nd and 3 rd petitioners state that they were mandated to apply the provisions of the Policy on ADR.
On her part, the 2 nd petitioner claims that she acted under the instructions of the 1 st and 3 rd petitioners who were her seniors. According to the petitioners, the decision of the st and 2 nd respondents to prefer and sanction their prosecution and their subsequent suspension from duty infringes on their rights to fair labour practices under Article The petitioners further claim that the charges preferred against them are unsustainable in law.
They contend that Kiptanui chirchir dating decision of Kiptanui chirchir dating 1 st and 2 nd respondents to prosecute them is an unlawful, unreasonable and unfair administrative action contrary to the principles set out under Article Kenyatta represented the petitioners during the hearing.
He submitted that Clause 2. He submitted that the petitioners acted in good faith and they had a legitimate expectation that their actions would not be criminalized.
He contended further that under Article 50 of the Constitution, the petitioners have a right not to give incriminating evidence.
They also have a right not to be convicted for an act or omission that at the time it was committed or omitted was not an offence in Kenya. The 1 st respondent did not file a replying affidavit but instead filed grounds of opposition dated 1 st February, The 1 st respondent argues that the decision to prefer the charges against the petitioners was made in accordance with Article 6 of the Constitution pursuant to a report of the 2 nd respondent under Section 35 of the Anti-Corruption and Economic Crimes Act ACECA.
The 1 st respondent contends that Article of the Constitution confers upon the 2 nd respondent powers to conduct investigations which this court cannot interfere with unless conducted in breach of "Kiptanui chirchir dating" law or the Constitution.
They argue that the petitioners have not demonstrated any such breach. According to the 1 st respondent, the petitions raise questions touching Kiptanui chirchir dating the sufficiency of evidence to support the charges preferred against them which should be left to the trial court to determine.
Ashimosi, appeared on behalf of the 1 st respondent. It was submitted that the decision to prosecute the petitioners was made independently premised on the evidence obtained and the underlying public interest in prosecution of anti- corruption offences.
It was argued that the petitioners had failed to demonstrate that the 1 st respondent had in any way abrogated any provision of the law, Constitution and rule of natural justice. To sum up his submissions, Counsel for the
Kiptanui chirchir dating st respondent submitted that the petitioners having failed to prove any breach of the Constitution or written law are not entitled to "Kiptanui chirchir dating" orders sought.
It claims to have conducted investigations following a complaint lodged by members of the public and traders within Litein town.
They complained that that officers of the 3 rd respondent were arresting traders and taking bribes within the town on the day in question. He depones that the investigations established that the petitioners had received bribes from
Kiptanui chirchir dating said traders.
It is of the view Kiptanui chirchir dating the petitioners are raising issues of evidence which should be left for the trial court to determine being the court with original jurisdiction to deal with the case. It contends that it is an independent constitutional office and is therefore not subject to the control of any person or authority in undertaking its functions.
According to the 2 nd respondent, the petitions are an Kiptanui chirchir dating of the process meant to delay their prosecution. The 2 nd respondent was represented by Ms.
She contended that the petitioners have not challenged this mandate and have also not demonstrated how the investigations undertaken by the 2 nd respondent are unlawful and infringe upon their constitutional rights.
To support this submission, Ms. Concerning the alleged breach of Article 47 of the Constitution, Ms. She argued that the petitioners have not demonstrated that the procedure for suspending them was not expeditious, efficient, lawful, reasonable or procedurally fair as far as Article 47 of the Constitution is concerned. She cited the case of William Samoei S. Counsel submitted that the petitioners have not demonstrated any apprehension that they may not be accorded a fair trial.
Ultimately, counsel for the 2 nd respondents urged the court to dismiss the petitions. She avers that the petitions do not disclose any cause of action against it. In this respect, it relied on Section 62 of the ACECA which requires the petitioners to be suspended if charged with corruption or economic crimes. It maintained that the petitioners are personally liable for their conduct in the course of their employment.
Further, it states that although it has put in place an ADR policy which the petitioners were at liberty to apply, the question of whether or not the same was properly applied is to be left to the trial court. According to the 3 rd respondent, the petitions are frivolous and vexatious and amount to an abuse of the court process.
Miima appeared for the 3 rd respondent who joined issue with the 1 st and 2 nd respondents. She submitted that the 3 rd respondent acted accordance with the law to suspend the petitioners at half pay and give them reasons for
Kiptanui chirchir dating suspension.
According to the 3 rd respondent the requirements under Article 47 of the Constitution on fair administrative action were duly complied with. It was also submitted on behalf of the 3 rd respondent that the petitions do not meet the threshold of a constitutional petition laid down under Rule 10 2 of the Constitution of Kenya Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, and in the cases of.
Accordingly, the 3 rd respondent is of the view that the petitions are fatally defective and ought therefore to be stuck out. According to the 3 rd respondent, prosecution of corruption related offences provides an opportunity for the court to restore public confidence in public officers and this court should not interfere with the ongoing criminal proceedings. To support this submission, counsel cited the cases of.
The 4 th and 5 th respondents did not file any replying affidavit but filed grounds of opposition to the petitions. They argue that the injunction orders sought by the petitioners have already been overtaken by events since they have been charged in court. They argue that the petitioners have not set out clearly in their respective petitions what their grievances are.
They further contend that the petitioners have not demonstrated that substantial loss which cannot be compensated by an award of damages may result to them if the orders sought are not granted. According to them, the orders sought by the petitioners Kiptanui chirchir dating anticipatory, premature, speculative and disclose no reasonable cause of action. They state that the petitioners have not demonstrated that they are deserving of the orders sought neither have they showed that the orders are in the interest of justice.
The 4 th and 5 th respondents relied on their written submissions in which they argued that pursuant to Section A of the Criminal Procedure Code, these proceedings cannot bar the criminal proceedings at the trial court.