Development Bank of Kenya Ltd v Director of Public Prosecutions & Inspector General of Police; Giriama Ranching Company Limited (Interested Party)
The bottom line
#Criminal investigations cannot be used to settle civil disputes, especially when they threaten a person's property rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the criminal investigations were influenced by external forces (Hon. Baya, the Interested Party and civil plaintiffs) contrary to Article 157(10) and Article 245(4)
The claim was unsustainable; no coercive link between the complainants' demands and the respondents' actions was demonstrated
The court found that media demands by Hon. Baya and the Interested Party did not establish that the respondents acted at their behest. The respondents have no control over the media, and apart from newspaper articles the Petitioner provided no link between the demands and the decision to investigate.
Whether the criminal investigations amount to using the criminal process to aid the civil plaintiffs and abuse the legal process
Yes; the dispute is more civil than criminal in nature and the investigations were an abuse of constitutional and statutory powers
The court examined the facts and found the dispute essentially civil: the allegation is that a provisional title used to secure the loan was fraudulently obtained, an issue determinable in the pending civil suits. Criminalising the transaction would deny the Petitioner its right to property and a fair trial, and any fraud exposed at the civil trial would find appropriate remedies there.
Whether the court can intervene in the DPP's and Inspector-General's exercise of powers
Yes, but only where the powers are exercised outside constitutional and legal bounds, maliciously, or in abuse of process
Relying on Diamond Hasham Lalji, the court held that prosecutorial discretion is limited by Article 157(11) and reviewable by the High Court, but courts should respect separation of powers and not unjustifiably interfere unless the discretion is exercised unlawfully, under another's control, in abuse of process, or in breach of rights.
Legal principles established
#- The DPP's power under Article 157(4) to direct the Inspector-General to investigate does not include power to direct how investigations are carried out or their outcome
- The Inspector-General's office is independent when it comes to investigation of crimes; no person may direct him on investigation of any particular offence
- The existence of a civil dispute is not of itself sufficient ground for stopping criminal proceedings; concrete grounds of abuse must be shown
- The High Court may intervene where criminal proceedings are oppressive, vexatious, an abuse of process or a breach of fundamental rights, but sparingly
Court orders
#- 1.An order of prohibition restraining the 1st and 2nd respondents from carrying out investigations or prosecution in respect of the legal charges created over L.R. No. 12785 pending the hearing and determination of Mombasa Commercial Court Case No. 57 of 2018, Milimani Commercial Court Case No. 304 of 2018, and Malindi ELC No. 155 of 2018
- 2.Each party to bear their own costs of the proceedings
- Jurisdiction invoked
- Article 165(2)(d)(ii) of the Constitution (High Court jurisdiction over enforcement of fundamental rights and review of DPP's exercise of prosecutorial power)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Development Bank of Kenya Ltd v Director of Public Prosecutions & Inspector General of Police; Giriama Ranching Company Limited (Interested Party)", Case Analysis (2020). Petition dated 16th August 2018 (High Court, Nairobi). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.