Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others (Civil Appeal 56 of 2012) [2013] KECA 182 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can stop criminal investigations being misused to gain leverage in a purely civil dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court petition was res judicata the earlier judicial review applications
The Court could not determine the plea of res judicata because the appellants, who raised it, failed to demonstrate that the matters in issue had been determined on merit in a previous suit by a competent court; the petition and the JR applications shared only the parties.
Section 7 of the Civil Procedure Act requires that the matter in issue have been directly and substantially in issue in a former suit between the same parties and been heard and finally determined on merit by a court of competent jurisdiction. The appellants produced only orders showing one JR application was withdrawn with costs and the other dismissed with costs; without the details of what was determined, an appellate court cannot find res judicata. Withdrawal, in particular, is not a determination on merit.
Whether a court can prohibit the police from conducting investigation into an alleged crime
Courts must not ordinarily interfere with police investigations, which are the foundation of the criminal justice system; however, the court has inherent power to stop investigations that are serious abuses of power, oppressive, vexatious, in bad faith or intended for an ulterior purpose.
Articles 157(4), 157(11) and 245(4)(a) of the Constitution insulate the DPP's and Inspector-General's investigative functions from external direction. Courts should wait until investigations are complete and a suspect charged. But article 157(11) itself requires the DPP to avoid abuse of the legal process, and the court oversees compliance with the law; where there is a serious abuse of power leading to harassment or persecution, the court should express its disapproval by stopping it to secure the ends of justice.
Whether the criminal investigation of the bank and its employees was an abuse of process
Yes - the interested parties were employing the criminal process to assist them in resolving their civil dispute with the bank, and the belated involvement of the police was an abuse of police power which the High Court was entitled to restrain.
Although section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings arising from the same issues, the investigative power must be exercised responsibly and in good faith. The dispute between the company and the bank had been litigated in the civil courts since 1992, fraud allegations had been addressed and determined in prior decisions, and the civil process had its own mechanisms for obtaining the information sought; using the CID as a pawn in that civil dispute was unconscionable and a travesty of justice.
Legal principles established
#- The field of investigation of criminal offences is exclusively within the domain of the police and courts must not ordinarily interfere with investigations before they are complete and a suspect charged.
- Where a police investigation or prosecution is oppressive, vexatious, made in bad faith or for an ulterior purpose, the court has inherent power to stop it as an abuse of the legal process.
- The criminal justice process must not be used as leverage or a tool in a purely civil dispute; such use constitutes an abuse of police power that courts may restrain.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- HC Petition No. 218 of 2011
- Jurisdiction invoked
- Not stated in the judgment; appellate jurisdiction of the Court of Appeal over the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shisanya v Mwangi & 3 others (Civil Appeal E046 of 2022) [2025] KECA 2071 (KLR)[2025] KECA 2071 (KLR)5 Dec 2025applied
Cite this brief
#Cite this brief
Caselaw, "Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others (Civil Appeal 56 of 2012) [2013] KECA 182 (KLR)", Case Analysis (2013). Civil Appeal (Nairobi) from High Court Petition No. 218 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/182/eng@2013-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.