Musembi & 2 others v Chief Magistrate Court, Milimani Law Courts & 12 others; Owino & 5 others (Interested Parties) (Environment & Land Petition E019 of 2013) [2025] KEELC 4242 (KLR)
The bottom line
#Kenya's land court quashed criminal charges brought to pressure land buyers into paying a disputed purchase price, ruling the prosecution was an abuse of power.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to determine this Petition.
- 2.Whether the petition satisfies the specificity test set out in the Anarita Karimi Njeru case.
- 3.Whether the Petitioners failed to exhaust available remedies.
- 4.Whether the 3rd and 12th Respondents conducted their investigations lawfully.
- 5.Whether the 2nd Respondent lawfully directed the prosecution of the Petitioners and the Interested Parties.
- 6.Whether the Petitioner's prayers should be granted.
Key legal issues
#Jurisdiction of the ELC to entertain a constitutional petition seeking prohibition and certiorari against criminal prosecution
The court held it has jurisdiction; judicial review remedies are available in constitutional petitions under Articles 23 and 47 and are no longer the exclusive preserve of the Judicial Review Division.
The court reasoned that judicial review was transformed under the 2010 Constitution, obtaining constitutional footing under Article 47 and Article 23(3)(f), so prohibition and certiorari may issue in rights-based proceedings. It further noted the ELC can hear judicial review suits and petitions alleging rights infringement connected to land, and accordingly the petition was properly before it.
Specificity of the constitutional petition (Anarita Karimi Njeru threshold)
The Petition met the threshold, having clearly identified the constitutional provisions allegedly violated and the facts supporting the violations.
Applying Anarita Karimi Njeru and Mumo Matemu, the court found the Petitioners had anchored their case on alleged violation of Article 10 by named state respondents and infringement of rights under Articles 47, 50 and 25(c) through continued investigation and prosecution without credible evidence, which was pleaded with sufficient precision.
Failure to exhaust remedies under Section 5(4)(e) of the ODPP Act
No alternative remedy had been shown to exist; the DPP's power to review a decision to prosecute is a discretionary power, not a dispute resolution mechanism available to the Petitioners.
The court distinguished administrative remedies such as tribunals from the DPP's internal review discretion, noting the section does not provide that a party can apply for review of a decision to prosecute, so the petition could not be faulted for non-exhaustion.
Lawfulness of the investigations and the decision to prosecute
The investigations yielded contradictory reports and the DPP's decision to charge the Petitioners while withdrawing charges against Aureum and its directors was taken without credible material evidence and for the ulterior purpose of securing the balance of the purchase price, violating Articles 10 and 47.
The court noted two antithetical DCI investigation reports (Osuri and Khayemba), the unresolved question of the genuine directors of Horizon Hills Limited pending in the consolidated ELC suits, and the DPP's 4th April 2023 letter selectively directing charges. It held that before charging, material evidence supporting a prosecutable case must exist, and the predominant purpose here was not vindication of criminal justice.
Legal principles established
#- Criminal prosecution mounted for an ulterior motive, such as securing payment of a civil debt in a pending land dispute, is unconstitutional and liable to be quashed.
- While concurrent civil and criminal proceedings are permitted under Section 193A of the Criminal Procedure Code, criminal process may be halted where employed for ulterior motives or abuse of process.
- Where the DPP's exercise of prosecutorial power fails to meet Article 157(11) expectations, the High Court (and ELC) may interrogate it and make appropriate orders.
Court orders
#- 1.A declaration that the Respondents violated the Petitioners' rights under Article 47 of the Constitution.
- 2.A declaration that the 2nd Respondent violated Articles 10 and 157 of the Constitution in preferring charges against the Petitioners, 5th-7th Respondents and 1st-5th Interested Parties while withdrawing charges against the 9th, 10th and 11th Respondents.
- 3.A declaration that the proceedings in Nairobi Criminal Case No. E1264 of 2021 and Nairobi Criminal Case No. E289 of 2023 are unconstitutional.
- 4.An order of certiorari quashing the decision to charge and the charge sheets in CMCC E1264 of 2021 and CMCC E289 of 2023.
- 5.The 2nd Respondent is at liberty to bring fresh charges against any of the parties after determination of ELC Case No. 100 of 2019 and ELC Case No. 227 of 2019.
- 6.Each party to bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 23, 47 and 165 of the Constitution; Section 13(3) of the Environment and Land Court Act
Relief refused
#Damages for violation of fundamental rights and freedoms (prayer vii)
The court granted declarations and certiorari but did not award damages
A permanent prohibition on reopening criminal proceedings in connection with the suit property (prayer vi)
The court instead left the DPP liberty to bring fresh charges after the civil suits are determined
Costs
Each party to bear their own costs.
Quotable passages
#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 declaration be and is hereby issued that the Respondents have violated the Petitioners' rights guaranteed under Articles 47 of the Constitution.
An order of Certiorari does issue quashing the decision to charge and institute criminal proceedings against the Petitioners and to quash the charge sheets in Milimani Chief Magistrate Criminal Case No. E1264 of 2021: Republic v Cissy Kalunde Musembi and Milimani Chief Magistrate Criminal Case No. E289 of 2023: Republic v David Njenga Samson Kuria & 9 others.
The 2nd Respondent is at liberty to bring fresh charges against any of the parties herein after the determination of ELC Case No. 100 of 2019 and ELC Case No. 227 of 2019.
Each party to bear their own costs.
it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything.
A Declaration be and is hereby issued that the proceedings in Nairobi Criminal Case No. E1264 of 2021: Republic v Cissy Kalunde Musembi and Nairobi Criminal Case No. E289 of 2023; Republic v David Njenga Samson Kuria & 9 others are unconstitutional.
Issues in the judgment
#Inconsistent parcel/registration numbers and company registration numbers throughout (e.g. IR No. 65800 vs 6500; Horizon Hills cited as C.110776 and C.131937; C.1107766)
Prayer (ii) refers to the '6th Respondent' while context indicates the 6th Interested Party (Kenroid Limited) filed ELC 100 of 2019
Discrepancy in purchase price pleaded (Kshs 128 million balance against Kshs 220 million total consideration, with instalments totalling Kshs 99 million)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musembi & 2 others v Chief Magistrate Court, Milimani Law Courts & 12 others; Owino & 5 others (Interested Parties) (Environment & Land Petition E019 of 2013) [2025] KEELC 4242 (KLR)", Case Analysis (2025). Petition dated 2nd May 2023 (Nairobi ELC Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4242/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.