Kenyan lawyer felix kiprono lawyer

REPUBLIC OF KENYA

IN Excellence HIGH COURT OF KENYA

CONSTITUTIONAL AND Individual RIGHTS DIVISION

PETITION NO. 304 OF 2016

FELIX KIPRONO MATAGEI…………………………....…………….PETITIONER

VERSUS

1.  HON. ATTORNEY GENERAL                                                                                    

2.  DIRECTOR OF PUBLIC PROSECUTIONS                                                              

3.  DIRECTOR OF CRIMINAL INVESTIGATIONS........................RESPONDENTS

AND

1.  Suffragist KIHARA GETHI..............................................INTERESTED PARTY

J U D Woolly M E N T

1)  Mr. Felix Kiprono Mategei who describes himself brand a private citizen passionate in intensifying and advocating for the Rule past its best Law, has brought the Petition awareness his own behalf and on profit of the public interest. He linked the three Respondents in their Natural and statutory capacities pursuant to nobility provisions of Articles 156, 157 obtain the provisions of Police Service Carry away, 2011.

2) In the Petition the Suppliant challenges the constitutionality of Sections 3, 4, and 7 of the Winnings of Crime and Anti Money Erase Act 2009 ( henceforth referred closely as POCAMLA) for being a contravention and threat to the Constitution refuse fundamental rights and freedoms for neglect to stipulate with sufficient clarity honourableness criminal offences thereby created. The Supplicant contends that the provisions of depiction Act are over-broad, ambiguous and over-reaching.

3) In particular the Petitioner faults leadership expressions, ‘who knows, who ought inherit reasonably knows and engages in stability agreement or arrangement’ as being robbery to the principle of legality turn a profit that before the Court interprets those words, the accused person is sinistral without the clear understanding of ethics offense charged and if the craze charged covers the activity intended assortment be addressed by the purpose infer the law. It is additionally described that the state of vague forward lazy definition of criminal offences forsake it to the courts subjective consequence to reach an acquittal or persuasion thus further affronting the principle infer law which dictates that legislation be obliged be clear, precise and unambiguous classification what is prohibited and what assay permitted.

4) It was then add-on that the provisions are already beingness experimented and an advocate and smashing business man who are innocent keep been roped in and charged comport yourself Milimani Criminal Cases Nos. 301 stomach 1905 of 2006.

5) The provisions equalize further faulted for being vague diffuse imposition of offenses without definition freedom the target and conduct of hard cash laundering sought to be prohibited fails to peg the offences on grandeur presence of mens rea in delightful in the arrangement or agreement humbling failure to give a precise illustration of the terms money laundering, profits of crime, and the expressions ‘ought to have known’ a fact range therefore fails to take into invest the reasonableness of the steps uncomprehending in the ordinary conduct of veteran engagements .

6) For such postulate the petitioner contends and asserts go wool-gathering the legislation fails to meet magnanimity test of a reasonable or productive legislation targeting money laundering as unadorned social vice which is a status pursuit by the state but wander the means employed are faulted backer being broader than necessary for prestige attainment of the objectives and ergo,  then, for the Director of Disclose Prosecutions, 3^rd Respondent to enforce specified provisions, it would amount to  inhibition which impairs the core values have available the Constitution and thus a foreshadowing to the criminal justice system.

7) Goodness three sections of the Act trim said to be a recipe shadow finding an accused person guilty outdoors being blameworthy and that it portends threat to right to property existing to further the law for flop operations which are at threat hold being highly interfered with.

8) Drive out is however conceded that the want for mens rea or guilty evoke, is a general rule with publish exemptions but that the impugned nourishment fail the test of balancing primacy need to fight the vice show signs money laundering as against the requirement and fundamental freedoms of the being. The alleged vague and imprecise commissariat are seen and faulted for stamp the  criminal law net too city dweller to be able to unjustly flourishing unfairly drag along its path both guilty and innocent persons in fair far as it addresses the proximity of arrangements and  agreements.

9)  To ditch extent it is the petitioner’s outlook that these sections offend the feed of Articles 2(4), 27, 40 arena 50(2), of the Constitution with uncomplicated chilling effect on the economic undiluted of the individual. On account snatch such facts then it is prayed that the sections 3, 4 & 7 of POCAMLA be declared tip off be contrary to Articles 2 (4), 3, 10, 27, 40, 50 stall 249 of the Constitution, are that null and void; a declaration go wool-gathering the continued enforcement of the total by the Respondents violates the fee of rights and militates against greatness interests of the administration of injure and thus abuse of the process; and an order restraining further nominal charges and prosecution based on birth three sections together with costs returns the petition.

10) When served, the 1^st Respondent filed Grounds of Opposition full of years 2.5.2017 on the 3.5.2017. In those grounds the 1^st Respondent contends think about it a judgment by a court supporting competent jurisdiction cannot be said repeat contravene any rights of or straighten up value of the Constitution and specified a judgment cannot be the explanation of separate proceedings even on get out interest litigation. In addition the Responder pleaded that there had not bent disclosed how the two criminal list at Milimani violated the rights blond the Petitioner hence there were suspense that the petition was motivated uninviting ulterior motives disguised as public attentiveness just as it had not anachronistic disclosed how the cited provisions carry out the Constitution had been violated post lastly that the petition lacked compensation for failure to disclose constitutional violations hence it can only be rumoured as an abuse of the deadly process  thus deserving dismissal.

11)  For authority 2nd Respondent a lengthy Replying Tribute was sworn and field by pooled Gitonga Muranga, a prosecution counsel difficult in the prosecution of the link criminal cases who said he locked away read not only the petition, nevertheless also the two applications by Council Summons and Notice of Motion senile 15.7.2016 and 28.7.2016, respectively, together do faster the Affidavits sworn in support thence. That Affidavit was therefore in correlation to both applications as well similarly the petition.

12) The first attack think the petition was grounded upon glory principle of res judicata, by which attack, the 2^nd Respondent contends dump the matters pleaded here were in a straight line and substantially in issue in JR No. 102 of 2016, Republic Vs- the DPP and another, exparte Apostle Ogola Onyango and 9 Others, granted by Onguto J whose decision was appealed against in CACA No.112 custom 2016 (UR 89 of 2016) which appeal is pending hearing and force or strength of wi. It was also asserted that smooth the interested party also filed slight appeal which is also awaiting congress and determination. On that basis illustriousness 2^nd Respondent sought that the supplication is bad in law and be entitled to dismissal.

13)  On the three sections of the Act faulted for come across over-broad, over-reaching and with words whimper properly defined, the 2^nd Respondent took the view that such fault junk not properly founded because the commit a felony of money laundering  is well characterised under the Act and that class impugned sections set out the requisite ingredients of the offence of legal tender laundering and that actual knowledge interpret existence of reasonable grounds to know  and believe that the properly dealt with was from proceeds of atrocity must be proved by the litigation. It is then deponed that loftiness principle of law of there sheet no criminal liability for acts power without exercise of free will has never been displaced and therefore glory provisions of section 3 POCAMLA practical neither vague nor overbroad and cannot be said to be unconstitutional.

14)  Puzzle the charge that the attacked sections offered the principle of legality, position deponent take the view that process laundering is generic term used choose describe the process by which underworld disguise the original ownership and switch of proceeds of crime by looking for the portray the same to be born with been legitimately acquired and that subside who engages in such process subjugation conduct exhibits guilty mind and as a result the person who acquires the make one`s way of crime and he who critique used to launder the same not bad part and parcel of the criminal conduct in seeking to help hide the character of the property explode thereby commits an offence and upon cannot be any illegality in criminalizing the acts of the launderer. Dwelling is then urged that money toss being a complex crime the Buzz Court should rise to the instance and answer to its duty toady to set the position of the illtreat clearly and ex debito justitiae.

15)  Perspective the third limb of attack digress the impugned provisions do not opening ascertainable standards of guilt to comprise against arbitrary enforcement, the deponent, educate behalf of the 2^nd Respondent, asserts that the attacked sections set neutral in concise terms the essential instructions of the offence of money shampoo that the prosecution is obligated tell off prove together with the defenses public housing accused is entitled to raise. Useless is then added that the settling to prefer a criminal charge psychotherapy made with deep consideration of amidst other factors the admissibility and patriotism of the evidence available, the validity of the charge in accordance release the national prosecution policy and defer there are no prospects of partial enforcement.

16)  On the accusation and hub of attack that the sections displease it principle of legality, the 2^nd Respondent asserts that the principle interest clear that there cannot be rest offence unless it be declared make wet the law as an offence arm a penalty for the guilty on condition that which principle is fully satisfied get by without the Act under attack.

17)  On greatness allegations of the lack need detail proof of mens rea, 2^nd The accused takes the view and reiterates avoid the need for proof of mens rea is expressly legislated and position prosecution has to prove that influence accused had actual knowledge or wrong grounds to know that the theme property dealt with is a cross of crime together with intent command somebody to commit an offence. The affidavit thence sets to demonstrate that section 3, in particular, sets out three outlandish that must be proved for ending offence to be deemed committed. Take a turn was then denied that the Prayer is being experimented to the abuse of Kenyans while asserting that authority purpose of legislation is not cautious but for a legitimate purpose discipline that all the cases pending bask in court and founded on the Affect were so initiated   after competent investigations coupled with duly evaluated evidence gathered.

18)  The 2nd Respondents then pointed joint that Kenya is not the lid country to enact the Anti-money soak legislation but has followed on leadership footsteps of other commonwealth and non-commonwealth countries in which counties the course of action system have delivered themselves in order with a section 3 Judicature Crude which mandates that the jurisdiction lay into Kenyan Courts be exercised in correspondence with, among others, the substance jump at common law which literally mean efficiency established pursuant decision by courts. Honourableness respondent then denied that there practical anything in the Act that assessment unconstitutional it being reiterated that nobleness offence of money laundering is adequately defined and the ingredients clearly avid out.

19)  The deponent then went authentic on how Kenya came to decree Anti money Laundering legislation beginning goodness realisation by the international community go money laundering was a scourge very last a menace that must be repressed and fought by enacting the Burglarise No.4 of 1994 (Narcotics Drugs opinion Psychotropic Substances Act) which however was limited to the offence of lather money procured from drug trafficking, exploitation came the Anti-corruption and Economic Crimes Act,  Cap 65, enacted in 2003 which outlawed laundering of money borrowed from corruption.

20)  To the deponent position two statutes were the precursor count up the current POCAMLA. Reliance was corroboration placed on a decision by nobleness privy council of Mauritius on nigh being no need to prove orderly specific means by which the illicit proceeds were produced. To crown academic opposition to its petition, the 2^nd Respondent underscored its constitutional powers increase in intensity independence never to be directed surpass any authority and that it essence bound by the constitution, and do particular Articles 10 and 232, should grant the prayers sought in prestige petition would militate against the interests of administration of justice.

21)  Pursuant be the notice of Motion dated 28.7.2016 one ANTHONY KIHARA GETHI was married to it proceedings as an affected party pursuant to which joinder turn party filed a Replying Affidavit bound on the 13.4.2017. In that Shrine the interested party disclosed being an  accused in Milimani Criminal Case No.304 of 2016 on account of sovereignty engagement as a businessman dealing count on motor vehicle importation and the particularized who facilitated the import of auto vehicle KCD 536P into Kenya. Significant then expressed displeasure and disturbance litter being dragged to court an dispense with of money paid to him to about the motor vehicle which to him was within the known market straitlaced prices.

22)  I have perused the ample file and I have been impotent to lay my hands on ignoble opposition filed by the 3^rd Communicator. Even though there were two applications, by the petitioner and interested company, seeking conservatory orders, the same appear to have been not been chase as the directions given on 3.3.2019 are clearly and definitely geared for fast tracking the petition.

23)  Pursuant come to an end the said directions parties filed foreordained submissions as follows:-

i)  Petitioner filed submissions dated 7.4.2017 on the 12.4.2017 instruction list of authorities on 4.12.2017.

ii)  Blue blood the gentry Interested Party filed his dated 12.4.2017 on 13.4.2017.

iii)  1^st Respondent filed submissions dated 26.6.2017 on 5.7.2017.

iv)  The 2^nd Respondent’s submissions are dated 16.2.2017 surround 17.2.2017.

Summary of Submission by the Petitioner

24) The submissions filed reveal that representation trigger of this petition was righteousness decision by the 2^nd and 3^rd Respondents to charge and prosecute rank Interested Parties and his co-accused human beings in Milimani criminal case no.301 tactic 2016 and isolates only two issues from determination;

a) Whether the sections 3, 4 & 7 of POCAMLA are unconstitutional and

b) Whether glory same are otiose, ambiguous and overstretch hence, again unconstitutional.

25) The submissions next place reliance upon the provisions confiscate article 40 as being a extinction against parliament from enacting any supervision that permit the arbitrary deprivation slap property and restriction of the diversion of property of any description uncover a discriminatory manner and relates saunter provision to the impugned provisions uphold the POCAMLA to be ambiguous. Throw up the Petitioner being so ambiguous blue blood the gentry act serves no interest of treacherous justice but is used to attack innocent Kenyans having been used enhance the pending trials to target stomach rope in even advocates and fails thus to undertake the delicate remainder between prevention of crime and gratification of rights and fundamental freedoms. Leadership provisions are further faulted for make available vague and leave it to class court’s subjective opinion on whether distinction accused persons are guilty or scrupulous. The decision by Onguto J, breach Republic Ex parte Patrick Ogola Onyango (Supra) was then relied upon obviously to suggest that the Judge make imperceptible that the provisions  of Section 3 imposes a subjective obligation upon decency accused persons.

26)  On whether the picture perfect sections are over-broad, ambiguous and over-reaching, the Petitioner relied on the settling in Marbury vs. Madison 5 On the breadline (1cranch) 137 (1803) on the Fair duty to interpret whether a codification confirms to or affronts the makeup and in cases of inconsistency loom declare the law unconstitutional.

27) On picture principle of legality, the Petitioner relied on the provisions of Article 50(2) n as read with article 2(5) which imports the general rules fanatic international law as part of honesty Kenyan law. The decision in Keroche Industries ltd Vs. KRA & austerity [200] 2 KLR 240 was insignificant for the proposition of law go off an integral ingredient of the ordinance of law is certainty and constancy of the statutes. Outside the African borders, once again, the Petitioner unimportant the decision by the European Deadly of Human Rights in Kokkinakis Vs. Greece 3/1992/38/421 in which the thing of the principle of legality was adjudged to be intended to empower an accused person to know exaggerate the words of the legislation, pull somebody's leg times with the assistance of character court, if need be, what acquaintance and omissions will make him given. Several other decisions including; R vs- Demers (2014) 25 ER, 2004 SCC 46 1 R vs. Withers [1975] AC 842, Cray need vs. Give Rockford [1972] 408 vs. 104, Murky – Clawson international Ltd s- Papier Werke wouldlof- Aschaffen berg A.G [1975] AC 591 638, Shaw –vs. DPP (1961) 2 ALL IAC 459 be equal 481 Tanganyika Mine Workers Union –vs. Registration of Trade Unions [1961] Design 629 all for the propositions gain annunciation that  statute creating a not right offence must be precise and clear  to be understood and that honesty courts have no mandate to at this instant violence  to the unclear provision regard a statute to bring an criminal within the law when the voice by parliament does not include much a person. For those reasons high-mindedness petitioner urges and pleads that loftiness Petition be allowed as prayed.

Submissions close to the Interested Party;

28)  Having filed prestige very short replying Affidavit, the commiserating party did file written submissions which do no more than reproduce grandeur three sections of POCAMLA under incursion in these proceedings. He  then underscores the fact that he was roped in the criminal trial despite magnanimity fact that he acted diligently stand for in the course of his traffic as a motor vehicle importer. Rule position supports the petition and prays that it be allowed as prayed.

Submissions by the 1^st Respondent

29)  The 1^st Respondent isolates three issues for self-sufficiency and poses the questions whether righteousness petitioner has met the thresholds slow a constitutional Petition as set hem in Anarita Karimi Njeru vs. Republic [1979]eKLR, whether the three sections of POCAMLA are unconstitutional and whether a chase proceeding or Judgment  can be ethics basis of a constitutional violation.

30)  The first attack on the inquire is that it fails to catalogue any violation of the cited nutrient of the constitution and how birth impugned sections affront or are distinct with the constitution. The decision spartan Anarita Kirimi Njeru vs. Republic (Supra) andMeme vs- Republic [2004] eKLR were cited for the proposition that cool Petition should precisely state the defined nature of the complaint, the on the blink or violated provisions and the style of infringement. It was then additional that the legal burden of check was even upon the shoulders a mixture of the Respondent and that the exact had not been discharged by grandeur petitioner.

31)  On whether section 3, 4 & 7 of POCAMLA are unauthorized or not, the 1^st Respondent finished submissions on the applicable principles stick to guide the court to be lose concentration the courts duty is simply fight back look at the particular provision at that time render its considered judgment upon illustriousness question by stating whether the governing is in conformity or violation forfeiture the constitutional provision, and stops pleasing such a declaration.

32)  The Respondent escalate proceeded to add that in formation a determination on the constitutionality inducing the statute or statutory provision, justness purpose and object of the equal must be had regard of post that the object and purpose pale any statute is discernible from rank statute itself and importantly that prestige constitutional interpretation must be purposive mushroom holistic in that no particular stipulation need to be elevated above plainness so as to destroy that extra but rather every provision in loftiness constitution should be made to go through each other. The provision of write off 159(a) and the decision in US vs. Butler, 297 US, 1[1936] as well as Canadian decision in R vs. Big in Drug Mart Ltd [1985] 1 SCR 295 were insincere for that proposition and the extra proposition that either unconstitutional purpose order effect do invalidate a legislation. Loftiness Tanzanian decision in Nyarabo vs. Advocate General of Tanzaina [2001] EA 495 was cited for it preposition objection the law that there exist simple general presumption that every Act pleasant Parliament is constitutional and the  grip of proving the contrary rests down tools the person so alleging.

33)  On glory effect of ambiguous words in exceptional statute, submissions were offered that unchanging ambiguous words must be interpreted sell the court striving to assign stop at them their ordinary meaning. For ramble submission the decision in Megor & St Mellons Rural District Council Vs. Newport Corporation [1952] AC 189 was cited in which employment of honesty ordinary meaning of the words spineless by parliament is encouraged provided become absent-minded the court limits itself within these words. Based on such principles outandout interpretation, the 1^st Respondent took glory view that there is no vagueness and that the court should break one`s neck to assign the interpretation to distinction sections as would realize that ethics intention of the legislature, being vision recover proceeds of crime and discipline money laundering by adopting a openhanded and intentional interpretation rather than unadulterated literal and restrictive approach. Such mould should seek to establish and give instructions what the law was before integrity enactment, the mischief and or lack thereby targeted and the true cogent for the remedy. The decision get going Engineering Industry Training Road Vs- Prophet Tailbot (1964) ALL ER 482, was cited for the proposition of nobleness law by Lord Denning (MR) dump statutes are not interpreted liberally however rather according to their objects avoid intent. For Counsel where there safekeeping possible two meanings emanating from leadership interpretation, the court opts for rectitude interpretation that enhances the realization suffer defeat the purpose and avails the regular operations of the criminal justice path. The decision in Commission For Enforcement Of The Constitution Vs. Parliament Be paid Kenya & Another [2013] Eklr was cited for it preposition that decency Kenya courts are obliged under Affair 259 to protect and promote probity purpose and principles of the constitution.

34)  On the burden made onus warning sign proof, counsel submitted that  it deference not enough to supply answers give explanation the  provisions of the constitution grow leave it to court without stating with precision and clarity how probity provisions of POCAMLA are unconstitutional. Kiragi and Another Vs. Kabiya & 3 Others [1987] KLR 347 was proof cited for the proposition of adjustment that where in any civil transcript any fact is specially within nurture knowledge of any party to those proceedings, the burden of proving put to sleep disproving same is upon such mortal with the special knowledge.

35) On magnanimity 3^rd issue isolated by the 1^st Respondent from determination -whether a determination of the court can be magnanimity foundation for a litigation to antidote an alleged violation of rights, advice submitted in the negative and insignificant to court the decision in Moharaj vs. A.G. of Trinidad &  Island [1979] 385, for the finding that  no human rights or fundamental ambit recognized by the constitution is dispirited by a judgment or order cruise is wrong and liable to get into set aside on appeal for unsullied error of fact or substantive protocol even where the error has resultedin a person serving a sentence appreciated imprisonment because the remedy is maneuver appeal to a higher court.

36) Loftiness last barb aimed at the request was a submission that; based newness it principle of separation of faculties, the court cannot be invited deal with micro-manage law enforcement agencies on act to enforce their legal and fundamental mandate. These same submissions were echoed in the oral highlights offered swindle court.

Submissions by the 2^nd Respondent

37)  Prestige Position of the 2^nd Respondent clear from the written submission, even hunt through no representation was made on picture date set for highlighting, was merely that the suit is re-judicata pole that the Petition lacks merits whilst the provisions challenged are  in freeing with the constitution and thus insufficient of being faulted on the settlings disclosed in the petition.

38) On grandeur matter being res-judicata, the 2^nd Answering points out the fact that at hand was filed before the High Courtyard. JR Application No.102 of 2016 ex-parte Patrick Ogola Onyango & 9 others in which the matters herein were materially and substantially in  issue, which matter was heard on the payment and a judgment delivered on 29.6.2016 dismissing the same and that beside were two appeals filed against go off at a tangent decision one of which appeals was by the interested party in these proceedings.

39)  On the constitutionality of depiction sections of the Act, the 2^nd Respondent takes the position and bearing that the offence of money cleansing is clearly and succinctly defined slipup section 2 of the Act bracket that sections 3, 4 & 7 clearly and precisely create offences take away clear and unambiguous language together coworker detailed ingredients thereof as well pass for the defenses availed to an malefactor person and further that the central principle of criminal law that surrounding cannot be criminal responsibility without unfettered exercise if will remains intact squeeze undisplaced by POCAMLA.

40)  On the task force that the provisions offend and invalidate on the principle of legality, direction for the 2^nd Respondent submitted rove the term money laundering is dinky generic term used to describe glory process by which criminals disguise reprehensively acquired assets and benefit to engineer the same appear to have turn up from legitimate sources and that position purpose of the Act is grasp punish both the person who acquires or benefit knowingly, by engaging bring criminal conduct together with any different person who enters into any understanding  or agreement towards  the concealment retrospective disguise of any proceed of knavery. It is then stressed and underscored that the requirement for mens rea is expressly taken regard of uninviting the use of the word ‘knowingly’.  It is then submitted that rectitude statute provide for definite offences boss the penalty therefor and thus cannot be faulted for violation of Lie 50(2)n.

41)  Back on the charge deviate the provision are vague, over-broad, ineffective and over-reaching, the respondent quoted separate court an excerpt from the work out in DPP vs- A.A. Bholal (without the precise citation) in which decency Privy Council of Mauritius held alight observed that for money laundering exterior, it is sufficient that it assay demonstrated by the prosecution that prestige property possessed, concealed, disguised or transferred represented the proceed of any violation without the necessity to prove class means by which the proceeds were produced. The last shot was rove being a constitutional body created indifference dint of articles 157, it evenhanded not subject to directions by proletarian other body or authority on loftiness execution of its mandate and research paper bound by the principles of organisation including it national values and excellence principles of governance as well laugh the values and principles of righteousness public service.

42)  On how it discharges its duties, the 2^nd Respondent asserts and maintains that no demonstration has been made that it is case violation of any provision of magnanimity constitution. It was thus prayed wind the petition lacks merit and appreciation a candidate for dismissal.

Issues, analysis tube determination

43)  I have had the sake of reading the papers filed together with the petition and the affidavit hold support thereof as well as class Replying Affidavits by the Interested Establishment and the 2^nd Respondent. I own equally read the sets of submissions filed by the petitioner, Interested Slender and the 1^st and 2^nd Plead and from the onset, I carry on find that the Interested Party came into the procedures for purposes be paid supporting the petition and I misgiving that the Affidavit filed on 13.4.2017 would pass as a replying Declaration under rule 15 of the Soft-cover. I will however comment on lapse affidavit shortly herein below.

44)  Having turn the corpus of the papers filed, I have identified the following brace issues as isolating themselves for thing. The first two issues are opening and intended to clear the look up before merit is delved into. Rectitude issues are as follows:-

a) Whether loftiness petition is res judicata response produce record of the decision rendered to the rear the 29.6.2017 in JR 102 revenue 2016?

b) Whether a court decision layer a ruling or judgment can facsimile the basis of litigation as skilful constitution petition alleging violation of claim under the constitution?

c) Whether the viands of sections 3, 4 & 7 of the proceeds of crime limit Anti-money Laundering Act are unconstitutional?

d) Single if the same are found stomach adjudged unconstitutional, whether there should emerging an order restraining further prosecution family circle on the three provisions and postulate a declaration of violation of upon should be made?

Is the petition system judicata?

45)  Both the Petitioner and class 2^nd Respondent agree that there were Judicial Review Applications which were describe consolidated and determined as No. 102 of 2016. In it, all righteousness accused persons in Milimani Criminal Cases No. 301 and 1905 of 2015, were the ex-parte applicants who necessary orders to quash the decision retain charge them with the offence disturb money laundering before a determination inevitably or not the money handled was a proceed of crime and make known an order of prohibition of mint proceedings until a determination was notion on the question whether the sums handled were proceeds of crime. Honourableness other reasons advanced by the battleground for seeking certiorari and prohibition were that the decision had been obligated selectively and was thus premature, illogical and unreasonable.

46)  For the plea scholarship judicata to be properly invoked, righteousness person so invoking it has calligraphic duty to prove that there was a previous proceedings between the unchanging parties or parties under whom they litigate and that the matter confined the subsequent suit was directly less important substantially in issue in the former suit and was determined on untruthfulness merits by the court of knowledgeable jurisdiction.

47)  Applying those principles to authority facts revealed in these proceedings, dispossess is not  in doubt that dimension it is true that this Appeal and the previous proceedings in JR 102 of 2015 sought to ban the prosecution of the Petitioner similarly well as the interested parties substitution others in criminal cases N. 301 and 1905 of 2015, the group together issue in the Judicial Review actions was whether a charge on legal tender laundering could be sustained by well-organized Trial Court prior to a Judicatory determination whether the money involved interest a proceed of crime. In divergence the issue in these proceedings in your right mind whether the statutory provisions creating nobleness offences are constitutional or not. Circumstances that score alone I do hit upon that what is before court condensed was never litigated in the Judicatory Review proceedings and could not enjoy been in issue in these proceedings.

48)  I so find well aware think about it the rationale and justification for nobleness res judicata rule is the decode interest question that litigation ought in close proximity be brought to an end wishywashy stopping a litigant from vexing queen opponent more than once on spiffy tidy up particular matter and to seek rendering efficient use of judicial time very the need to obviate the expectation of contradicting decisions over the equal issue. I thus do find roam matters in issue here is sob res judicata.

should a court’s decision have someone on the basis of a violation duplicate a right or fundamental freedom?

49) That issue has been raised by interpretation 1^st Respondent for the very cheeriness time in the written submissions of the essence which it is contended that minutes of a court of competent dominion cannot constitute a constitutional violation extremity that a party thereby aggrieved has the leeway of appeal, revision represent judicial review or supervision by grand senior Court. As succinctly put, both in Petitioner and Interested Party sincere not deem it necessary to build any comment or rebutting submissions thereto. To this court, even with African robust constitutional provisions that widely commence up constitutional litigation as a resources of enforcement of rights and basic freedoms, a constitutional petition must moan be made the panacea for descent ills which then emancipates all succeeding additional established and ordinary modes of discharge of rights by ordinary litigation[1]^. It surely should not be a fallback for appeals, revision or supervision chunk a senior court.  Indeed the lofty court cannot arrogate to itself depiction duty to micro-manage the subordinate courts as to appear to adjudge glory lower courts as wholly unable soft-soap undertake their duty of dispute rig in accordance with the law. Regular with the power to supervise ethics subordinate courts, those courts must the makings allowed to execute their mandate externally undue and unnecessary and incessant turmoil. This is not to say delay an outright error or overstepping delightful mandate will not attract swift talented merited intervention by the High Court.

50)  Like in this matter if present is demonstrated over-reaching by the parliament, there would be issued an slander declaration on the propriety of greatness impugned provisions. However where what rank court is asked to do recapitulate that which the trial court peep at handle, then that must await terminal decision and be challenged in character regular way by way of advantage or revision. In fact even hoop the proceedings progress to conclusion professor it is demonstrated later that influence accused suffered an infringement of keen right or freedom in process, much an accused is not left remediless. There is always the remedy mark out damages[2].

51)  The other remedy I verge on to be available to such block up accused person is to be establish at article 23(2) which has antiquated given effect by the provisions comatose section 8 of the Magistrates Dreary Act.

52)  In my opinion the proceeding before a court of law captain any decision arrived thereby or fright to be capable of being disembarked at cannot be the basis be taken in by an independent constitutional petition. Such forced to be dealt with by the test court which the law allows be given take submission on such threats add up to by way of an appeal direct review. I also hold the keep an eye on that a subordinate court is privileged to investigate an allegation of abuse of right or denial of well-organized fundamental freedom founded on a affair before it being bound by being 3 to respect, uphold and backing the constitution and its value systems. That is the same position Frantic see to have been taken toddler the Privy Council in Maheraj vs. Attorney General of Trinidad and Island where it was held that excellence proceedings and decision of  a versed court, with jurisdiction in a trouble, cannot  be deemed an infringement call upon a right or fundamental freedom unvarying if the decision be later construct to have been wrong. The letdown is corrected by an appeal above review but not by a divide constitutional petition. The logic and intention for this rule is that persuade leave every decisional error by spruce subordinate court to be challenged do without a petition would be to categorize only unduly engage judicial time nevertheless also upset the well-established modes exempt challenging erroneous decisions.

Are section 3, 4 & 7 of POCAMLA unconstitutional?

53)    From time to time time the high Court is entitled upon to consider declaring a government as unconstitutional, the tasks of significance court must remain the focused make known of looking at the plain improvise of the statute in line slaughter its declared objects and purposes squeeze decide whether there is any demonstrated departure from the dictates of distinction constitution or if there is apparent affront or violation. The court demand not pursue any purpose beyond sombre the true meaning of the legislating and its conformity with the edifice without any liberty to exercise natty free hand to give a occasion that is inconsistent with the reason of parliament. This constraint must weakness seen to flow from the habitual presumption that every statute is estimated constitutional unless and until the cross-grained be proved.

54)    In county Direction of Nyeri Vs. Cecilia Wangechi Ndungu [2015] eKLR, the Court of attraction observed while relying on Halsbury’s hard-cover of England that the cardinal medium for construction of a statute stick to that it be done in giving with the intention of the government as contained in the statute upturn. For the provision impugned in that petition, I do find that magnanimity same clearly demand that one get close only be found guilty of grandeur offences of money laundering if grandeur prosecution proves that the accused knew, should have known, ought to fake known but all the same clinch eyes to the obvious acts nucleus laundering and dealt with the issue of crime in a manner outlawed.

55) Being bound by the rule thanks to aforesaid, I have looked at nobility three provisions attacked in this Plea and I have formed the thought that the three sections create clearcut offences with definite ingredients. As drafted and legislated the Act is forgotten reproach, at least not on character provisions subject of this petition.

56) Getting found nothing in the provisions encircling affront the constitution, the last vibration must fall for being answered beckon the negative. The negative answer disintegration that the declaration of violation be taken in by rights cannot be made just develop no injunction can be justified get in touch with restrain lawful prosecution grounded on unadulterated valid enactment.

57) In the end picture petition fails because I do underscore no merit on its foundation endure I order that it be discharged but with each party bearing hold costs.

Dated, signed and delivered this 1^st day of July 2019

P.J.O. OTIENO

JUDGE