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Supreme CourtPartially AllowedPetition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)

Dande & 3 others v Inspector General, National Police Service & 5 others

Supreme Court of Kenya
16 June 2023
Martha Karambu KoomeMartha K KoomeSmokin Charles WanjalaSmokin C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaIsaac LenaolaWilliam OukoWilliam Ouko
14,452 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~58 min to read original · ~4 min brief

The bottom line

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Supreme Court ruled constitutional judicial review requires merit analysis, but dismissed claims of police abuse.

What this practically means

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The Supreme Court of Kenya decided that when someone sues the government for violating their constitutional rights, the court must look at the facts of the case, not just the procedure. However, in this case, the court found no evidence that the police or prosecutors abused their power. The appellants must now face trial. The court also said that to get information from a private company, you must show a clear link between the information and a right you want to protect.

Executive summary

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This consolidated appeal arose from three Court of Appeal judgments dismissing the appellants' challenges to their investigation, arrest, and prosecution for alleged theft by servant from British American Asset Managers Limited (BAAM). The Supreme Court framed six issues for determination. First, it held that it had jurisdiction under article 163(4)(a) because the superior courts had interpreted articles 157 and 245 of the Constitution. Second, the court found that the prayer to restrain the police and DPP from arresting and charging the appellants was moot, as the DPP had already instituted criminal proceedings on November 4, 2016. Third, on the scope of judicial review, the court declared that when a party approaches a court under the Constitution alleging violation of fundamental rights, the court must conduct a merit review, not merely a procedural review under Order 53. The court disagreed with the Court of Appeal's limitation to traditional review in this case. Fourth, the court held that the appellants did not prove that the Inspector General, DCI, or DPP abused their constitutional powers; the investigations were based on a complaint, and the DPP acted independently. Fifth, the court held that the appellants were not entitled to access information under article 35(1)(b) because they failed to establish a demonstrable link between the rights they sought to protect and the information requested. The court also noted that granting access would invade BAAM's privacy and prejudice its commercial interests. The court dismissed all three appeals, with the sole exception of declaring that judicial review proceedings under the Constitution must involve a review of merits. The appellants were ordered to pay costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellants have properly invoked this court’s jurisdiction under article 163(4)(a) of the Constitution.
  2. 2.Whether the appeal, or any part of it, is moot, leaving no live controversy requiring adjudication.
  3. 3.Whether the scope of judicial review has evolved to include merit review of an administrative decision or other action complained of.
  4. 4.Whether the decision to investigate, arrest and prosecute the appellants constituted an abuse of power by the 1st and 2nd respondents.
  5. 5.Whether the appellants are entitled to the right to access to information under article 35(1)(b) of the Constitution.
  6. 6.What relief is available to parties?

Key legal issues

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01

Whether the Supreme Court has jurisdiction under article 163(4)(a) of the Constitution.

Holding

The Supreme Court has jurisdiction under article 163(4)(a) where the issues before the superior courts revolved around the interpretation and application of the Constitution, and the same issue has progressed through the normal appellate mechanism.

Reasoning

The court found that the superior courts rendered themselves on the role of the DPP under article 157(4)(10) and (11) and the role of the Inspector General under article 245(4) of the Constitution. The basis of the superior courts' decisions revolved around the interpretation and application of the Constitution, therefore the appellants properly invoked the court's jurisdiction.

p. 21
02

Whether the scope of judicial review has evolved to include merit review of an administrative decision.

Holding

When a party approaches a court under the provisions of the Constitution alleging violation of fundamental rights, the court ought to carry out a merit review of the case. However, if a party files a suit under Order 53 of the Civil Procedure Rules without claiming violation of constitutional rights, the court can only limit itself to the process and manner in which the decision was reached.

Reasoning

The court distinguished between the dual approach to judicial review: traditional review under Order 53 (process-focused) and constitutional review under articles 22, 23, and 47 (merit review). The court held that the appellants had clothed their grievances as constitutional questions, requiring the superior courts to conduct a merit review, and the Court of Appeal erred in limiting itself to traditional review.

p. 24
03

Whether the decision to investigate, arrest and prosecute the appellants constituted an abuse of power.

Holding

The appellants did not prove that the Inspector General, DCI, or DPP abused their constitutional powers. The investigations and arrest were based on a complaint from BAAM, and the DPP acted within its independent prosecutorial discretion under article 157 of the Constitution.

Reasoning

The court found that the appellants provided no evidence that the Inspector General and DCI acted beyond their constitutional mandate or that the DPP failed to meet the expectations of article 157(11). The claim that they acted at the behest of BAAM was speculative. The charges constitute offences under Kenyan law, and the appellants should face trial where their innocence can be determined.

p. 28
04

Whether the appellants are entitled to the right to access to information under article 35(1)(b) of the Constitution.

Holding

The appellants are not entitled to the information because they failed to establish a demonstrable and sufficient link between the rights they sought to exercise or protect and the information requested.

Reasoning

The court held that while the appellants identified the rights they sought to protect (access to justice, fair hearing), they did not demonstrate how the requested information would assist in exercising or protecting those rights. Additionally, the court noted that the appellants already purportedly knew the contents of the reports, and granting access would involve unwarranted invasion of privacy and substantial prejudice to commercial interests. The appellants will have the opportunity to interrogate documents at trial.

p. 32

Legal principles established

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  • Constitutional judicial review requires a merit review, not just a procedural check under Order 53.
  • To access information from a private body under Article 35(1)(b), you must show a demonstrable link between the information and a right you seek to protect.
  • A case becomes moot if events after filing remove any live controversy; courts will not decide such cases.
  • The Supreme Court has jurisdiction under Article 163(4)(a) when lower courts interpreted the Constitution.
  • A party alleging abuse of power by the police or DPP must provide concrete evidence, not speculation.

Court orders

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  1. 1.The appeal is moot in regard to the issue of prohibition of the 1st and 2nd respondents from arresting and charging the appellants.
  2. 2.Appeal No 6 (E007) of 2022 dated March 24, 2022 is disallowed save for a declaration that judicial review proceedings brought under the provisions of the Constitution must involve a review of merits.
  3. 3.Appeal No 4 (E005) of 2022 dated March 9, 2022 is disallowed.
  4. 4.Appeal No 8 (E010) of 2022 dated April 12, 2022 is disallowed.
  5. 5.The appellants shall bear the costs of all the three appeals to be paid to the 1st, 2nd, 3rd, 4th and 6th respondents.
  6. 6.We hereby direct that the sum of Kshs 6000/- deposited as security for costs in each of the appeals herein be refunded to the appellants.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
Martha K KoomeCJ
Currently serving
majority

Wrote the judgment

Smokin Charles Wanjala
Smokin C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority
William Ouko
William OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal Nos 246 of 2016, 378 of 2018, and 147 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition 4 (E005) of 2022, Petition 8 (E010) of 2022

Relief refused

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Orders of certiorari to quash the decision to institute criminal proceedings and prohibition against the hearing of Criminal Case No 1735 of 2016

The appellants did not prove that the DPP acted in abuse of power or that the expectations of article 157(11) of the Constitution were not met.

p. 28

Orders of mandamus compelling the respondents to provide the appellants with the settlement agreement, forensic audit, and legal audit

The appellants did not establish a demonstrable link between the rights they intended to exercise or protect and the information requested.

p. 32

Permanent injunction restraining the DPP from prosecuting the appellants

The issue of restraining the Inspector General, DCI and DPP from arresting and charging the appellants became moot as this was no longer a live controversy.

p. 22

Costs

The appellants shall bear the costs of all the three appeals to be paid to the 1st, 2nd, 3rd, 4th and 6th respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules.
p. 25 Scope of judicial review under the Constitution
In summary, a requester seeking to enforce his right under article 35(1)(b) needs to demonstrate: a. The right that seeks to be protected; and b. That access to the information is required to exercise or protect that right.
p. 31 Test for access to information from a private body
A matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it.
p. 21 Doctrine of mootness
Appeal No 6 (E007) of 2022 dated March 24, 2022 is disallowed save for a declaration that judicial review proceedings brought under the provisions of the Constitution must involve a review of merits.
p. 33 Final orders on the appeal
The appellants shall bear the costs of all the three appeals to be paid to the 1st, 2nd, 3rd, 4th and 6th respondents.
p. 33 Costs order

Key timeline

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2022-03-09
Appeal No 4 (E005) of 2022 filed in the Supreme Court.
2022-03-24
Appeal No 6 (E007) of 2022 filed in the Supreme Court.
2022-04-12
Appeal No 8 (E010) of 2022 filed in the Supreme Court.
2023
Supreme Court delivers judgment dismissing most appeals and clarifying judicial review scope.

Practical implications

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For lawyers

Plead constitutional violations for merit review

When challenging administrative decisions, always plead specific constitutional rights violations (e.g., under Articles 22, 23, 47) to trigger merit review. Relying solely on Order 53 limits the court to procedural scrutiny. In future cases, frame grievances as constitutional questions to ensure the court examines the substance of the decision.

For businesses

Protect your information from broad requests

If a requester seeks information from your company under Article 35(1)(b), you can resist if they fail to show a demonstrable link between the information and a specific right they want to protect. The court also noted that disclosure may be denied if it invades privacy or harms commercial interests. Ensure your response policies require requesters to specify the right and the link.

For individuals

Gather evidence before alleging abuse

If you believe the police or DPP have abused their power, you must provide clear evidence—not just speculation—that they acted outside their constitutional mandate. The court rejected claims that investigations were politically motivated because the appellants offered no proof. Document all interactions and gather witness statements before filing a case.

Frequently asked questions

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What is the difference between judicial review under Order 53 and under the Constitution in Kenya?+

Under Order 53, courts only check if the decision-making process was fair. Under the Constitution (Articles 22, 23, 47), courts also review the merits of the decision itself. This case confirmed that if you allege a constitutional violation, the court must examine the facts, not just the procedure.

Can I get information from a private company under Article 35 in Kenya?+

Yes, but only if you show a clear link between the information you want and a specific right you are trying to protect or exercise. The court said you must demonstrate that access to the information is necessary to exercise or protect that right. Vague requests will be rejected.

What does mootness mean in Kenyan courts?+

A case is moot when there is no longer a live dispute between the parties—for example, if the issue has been resolved or the relief sought is no longer possible. Courts will not decide moot cases because the decision would have no practical effect. This principle applies at all stages, including appeals.

How do I prove abuse of power by police in Kenya?+

You must provide concrete evidence, such as documents, recordings, or witness statements, showing that the police or DPP acted outside their legal authority or for an improper purpose. Speculation or allegations without proof will not succeed. In this case, the court dismissed claims because the appellants offered no evidence.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dande & 3 others v Inspector General, National Police Service & 5 others", Case Analysis (2023). Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/40/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.