Geoffrey Andare v Attorney General & 2 others [2016] eKLR
act. His case is that there is no evidence in the present petition that the DPP has misused his
powers or contravened the rules of natural justice as alleged by the petitioner. In his view, it is not
enough for the petitioner to state that the respondents have not carried out sufficient
investigations, for the quality and sufficiency of evidence gathered in an investigation can only be
tested by a trial court before which the charges are brought.
49. The DPP further argues that this is not the appropriate forum for the petitioner to lodge the
present petition, and submits that there is a danger in elevating every issue to a constitutional
issue and avoiding the processes available for dealing with the issues at hand.
50. Finally, the DPP submits that there is no mischief or ambiguity in section 29 of the Act that
justifies the invocation of the jurisdiction of this Court. He therefore prays that the petition be
dismissed with costs.
Determination
51. Having read the pleadings and submissions of the parties in this matter, I believe that the first
and main issue for consideration is whether section 29 of the Kenya Information and
Communication Act is unconstitutional. I will thereafter consider the question whether there has
been a violation of the petitioner’s rights in his prosecution under the provisions of the Act, and
whether prohibitory orders should issue against his prosecution.
Jurisdiction
52. Before considering the substantive issues, however, it is important to consider first the question
whether this petition is properly before me. This issue, which goes to the question of jurisdiction,
was raised by the DPP and was supported by the AG. The position they take is that this Court
lacks the jurisdiction to determine the present matter as to do so is to interfere with the
independent exercise of the DPP’s constitutional mandate, and further, that the matters at issue
regarding the sufficiency of the evidence against the petitioner are within the mandate of the trial
court.
53. The petitioner has relied in response on the decision in Owners of the Motor Vessel “Lillian S”
vs Caltex Oil (Kenya) Ltd [1989] KLR 1; in Re the Matter of the Interim Independent
Electoral Commission [2011] eKLR; and Samuel Kamau Macharia vs Kenya Commercial
Bank Limited [2012] eKLR to submit that this Court has the jurisdiction, pursuant to Article 23
and 165 (3) (b) of the Constitution, to deal with the matters raised in this petition. In his view, this
petition raises matters beyond the jurisdiction of the trial court which have no relation with the
weight, quality or sufficiency of evidence gathered and adduced at the trial in support of or in
opposition to the charges. According to the petitioner, his case is that the provisions of a statute
offend the Constitution, and the Court is duty bound to declare it unconstitutional should it so find.
54. It was also his argument that the Court, as the custodian of the Bill of Rights, is entitled to
intervene where the facts disclose a need to prevent a violation of the rights and fundamental
freedoms guaranteed under the Constitution as was held in Bill Kipsang Rotich vs Inspector
General National Police Service [2013] eKLR.
55. The petitioner argued further that where the constitutional validity of the section of a statute under
which the DPP has preferred charges is challenged on account of violation of the Constitution, it
is the duty of the Court to intervene and grant appropriate relief under Article 23 (3) of the
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