Judge faults DPP, police over estate WhatsApp group row

Court papers indicate that police wanted to charge Farzhan Aperera with offences involving defamation for allegedly suggesting that one of the neighbours at Samburu Court, was habouring thieves.

Ms Aperera, who was the chairperson of the Samburu Court Residents’ Association, was accused of posting defamatory statements in the WhatsApp group in September 2023. The said message was part of a debate in the group after residents reported a series of thefts and burglaries in their houses.

The genesis of the bad blood between the estate leader and the resident was allegations that she went beyond her powers as the chairperson of the Association when she ordered the search of vehicles entering and exiting the premises of the resident.

She moved to court after receiving a text message from a police officer at Langata police station informing her of criminal charges being instituted against her.

She sued Langata police station OCS, the Inspector-General of Police, and the DPP, saying that the intended prosecution was not legitimate and proper. She said that the intended charges were oppressive and trumped up to influence the outcome of a pending civil case. The offended neighbour claimed that this interfered with her peaceful stay and her right to privacy.

However, Justice Diana Kavedza said police abused their powers by failing to independently review the complaint and listen to both parties.

“The police should not be involved in the settlement of what is purely a civil dispute.”

She argued that the entire criminal investigation and prosecution was an abuse of constitutional powers.

The resident wanted Ms Aperera held responsible for the undue interference with the right to privacy, but Ms Aperera argued that the security measures, including the search of vehicles, were undertaken to fix the security concerns.

“Criminal justice powers are not toys to be played around with, and this court, as the bulwark and sentinel of fundamental rights and freedoms, must enforce the Bill of Rights in our Constitution where the violation is proved and quash the pending criminal proceeding which violates the Constitution. Put differently, this court should not be seen to abet abuse of discretion and power and criminality,” said the Kibera High Court judge.

Stating that the police and DPP violated the rights of Ms Aperera, the judge said that although it was the prerogative of the Police and the Prosecutor to institute charges, the same must be done responsibly, in accordance with the law, and in good faith.

“Similarly, the criminal law machinery should not be deployed for an ulterior motive. The police should not be involved in the settlement of what is purely a civil dispute. It is not in the public interest or in the interest of the administration of justice to use the criminal justice process as a pawn in civil disputes,” she emphasized.

The court further noted that the intended criminal proceedings were pursued after the civil case and the offended resident had promised to teach Ms Aperera a lesson because she was ‘well connected’.

The judge quashed the intended prosecution and barred police from arresting or charging Ms Aperera based on the complaint filed by the offended resident.

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