The Criminal Investigations Department (CID) is a department within the Kenya Police whose mandate is to investigate alleged crimes. This function is derived from the function of the Kenya Police as contained in the Police Act, namely: “……the prevention and detection of crime….., and the enforcement of all laws.”
Jurisdiction of the Cid to Purport to Investigate a Matter Currently Before a Court Of Law
By law, criminal investigation is the function of the Police and its various departments which functions may be exercised in the event of an alleged or suspected commission of an offense. The CID, being a department of the Kenya Police which by law is expressly empowered to undertake prevention and detection of crime (through investigation, etc) is therefore competent to commence criminal investigations against anyone.
That power however is not absolute, and must be exercised in view of the Constitution and other laws governing the just administration of justice such as the Criminal Procedure Code and the Civil Procedure Act and the rules made thereunder.
Further, in instances where a court of law has heard and determined a matter, certain principles of law are applicable to bar further debate on rights or liabilities of the respective parties. The main principles are:
- Sub judice; and
- Res judicata.
Sub Judice in Criminal Law
Matters are considered to be sub judice once legal proceedings become active. The Principle dictates that:
“NO COURT shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, WHERE SUCH SUIT OR PROCEEDING IS PENDING IN THE SAME OR ANY OTHER COURT having jurisdiction in Kenya to grant the relief claimed.”
The rule is part of the law relating to contempt of court, and governs what public statements can be made about ongoing legal proceedings before, principally, the courts. It seeks to prevent the miscarriage of justice through communication of information which may prejudice the effective and fair administration of justice.
The rule restricts Courts and or Quasi-Judicial Tribunals from purporting to hear and determine a matter which is before another court of law of competent jurisdiction for determination of same issues. It however, does not prohibit the Police or CID from performing its statutory duty of investigation of alleged or suspected crimes.
Res Judicata in Criminal Law
Res judicata as a principle of law restricts Courts from purporting to “try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
As is the case with sub judice rule, the Police or CID are not barred from investigating any matter in which a offense has been alleged or an offence is suspected to have been committed, notwithstanding that the same has been heard and determined by a competent civil Court.
Obligation to Exercise Statutory Duty
In addendum, the CID and Police generally exercise statutory functions. These functions cannot be gagged by Civil Procedure Rules as long as a party confines to such actions within the law. It would be breach of statutory duty for the CID to refuse to investigate an alleged commission of an offense or suspicion of commission of an offense, and for which redress may be sought against the CID and Office of the Attorney General in judicial review (compelling the latter – through the former, to conduct an investigation).
In the foregoing, the CID has jurisdiction to investigate a financial institution in the manner in which transactions relating to a client’s account has been conducted. As such, the CID may lawfully make all enquiries and undertake such discoveries as it may require for the determining the allegation of or suspicion of commission of an offense in relation to the said account for purposes of commencement of a prosecution.
However, in the course of making enquiries and obtaining information from financial institution, the CID must not publish or cause to be published any such information in a manner even remotely likely to prejudice such financial institution’s position in the civil suits presently before the Courts of law.
We would therefore recommend that such financial institutions do comply with all requests for information in relation to the client account.
Nonetheless, the law precludes a person under investigation from giving evidence likely to incriminate him or her. This rule applies to corporate entities as well, and as such, a financial institution would be acting within the law should it refuse to disclose any matter which in its informed view is likely to incriminate it in any criminal proceeding.
We hope you find this advice informative. Should you require any advice on litigious or potentially litigious matters, please contact our Patrick ANAM at firstname.lastname@example.org. You may also reach him on +254 720 756 343 / +254 773 865 798.
For: Strategic Legal Solutions Group
MD & Group CEO