Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] KECA 492 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can stop criminal investigations when they're merely being used as a weapon in a civil dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court could restrain the police and DPP from investigating an alleged fraud connected to a charge that is the subject of pending civil litigation
Yes, in exceptional circumstances. The DPP's independence under Article 157(10) is subject to the Constitution and the law, and judicial review on grounds of illegality, irrationality and procedural impropriety; courts may stop a serious abuse of power.
The Court affirmed that while the field of criminal investigation is exclusively the police's domain and courts should ordinarily await completion of investigations, the DPP is enjoined under Article 157(11) to avoid abuse of legal process. Where a serious abuse of power emerges, the court must express disapproval by stopping it to secure the ends of justice. The power to intervene exists but must be exercised sparingly and only for cogent reasons.
Whether the investigations in this case infringed the bank's right to a fair trial and constituted an abuse of court process
Yes. The complaint was an afterthought aimed at using criminal process to resolve a civil dispute over the charge, and the High Court was right to prohibit further investigations.
The Court agreed with Majanja J. that continued investigation of alleged fraud over the charge, whose validity was directly in issue in the pending civil suit, was a roundabout way of having the civil matter determined in another forum. The appellant's own affidavit showed a contradiction about when he discovered the charge, undermining the claim of newly discovered evidence, and other avenues were open to him in the civil proceedings.
Legal principles established
#- A court may interfere with police investigative and DPP prosecutorial powers only in exceptional circumstances, sparingly, and upon cogent reasons, where the criminal process is oppressive, vexatious, an abuse of process or a breach of fundamental rights
- Section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings on the same subject matter, but does not preclude judicial intervention where criminal process is abused
- Criminal process must not be used as a pawn or collateral tool in civil disputes
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded (against the appellant)
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 104 of 2012
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judgment in Petition No. 104 of 2012 (constitutional petition appeal)
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.
- Cirtex Kenya Limited & another v Leparakwo & 6 others (Environment and Land Case 152 of 2018 & 691 of 2011 (Consolidated)) [2025] KEELC 5171 (KLR)[2025] KEELC 5171 (KLR)9 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] KECA 492 (KLR)", Case Analysis (2018). Civil Appeal No. 181 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/492/eng@2018-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.