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High CourtStruck OutPetition dated 18th June 2026 (High Court at Nyamira)· [2026] KEHC 13267 (KLR)

Leonard Kevin Nyamasege, David Ombego, Joyce Onyiego & Erick Ayuka v Office of the Director of Public Prosecutions & Ethics and Anti-Corruption Commission

High Court of Kenya
28 July 2026
1,395 words in judgment
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The bottom line

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The High Court struck down a petition filed to stop a criminal case, warning that filing the same case at different court stations is an abuse of process.

What this practically means

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Executive summary

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The Petitioners, four of six litigants who had previously sought anticipatory bail and conservatory orders concerning the criminal proceedings in Keroka MCCGCR No. E001 of 2026, filed a fresh constitutional petition on 18th June 2026 before the High Court at Kisumu against the ODPP and the EACC, seeking conservatory orders staying the prosecution. The 1st Respondent raised a preliminary objection contending that the Petition was res judicata and sub judice given Nyamira HCCRMISCAPPL E020 of 2026 (determined on 8th April 2026, declining anticipatory bail), the Bomet Petitions E002 and E003 of 2026 (transferred to Nyamira as HCCHRPET E008 and E009 of 2026 and, by ruling of 21st May 2026, transferred to the Anti-Corruption Division at Milimani with conservatory orders not extended), and Milimani Anti-Corruption Petition E026 of 2026, and that the Petition was forum shopping and an abuse of process. The Court traced the undisputed chronology and held that the High Court under Article 165 is one Court whose stations and divisions exist only for administrative convenience; litigants cannot shop for favourable forums, and the remedy against an adverse decision is appeal. Relying on Muchanga Investments and Tana and Athi Rivers Development Authority, the Court found the Petition part of a sustained pattern of relitigating the same dispute and an abuse of process. The Preliminary Objection was upheld; the Petition and Notice of Motion were struck out in their entirety, the conservatory orders discharged, costs awarded to the 1st Respondent, and the file closed.

Key legal issues

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01

Whether the Petition constitutes an abuse of the process of the Court

Holding

Yes - the Petition forms part of a sustained pattern of repeatedly instituting proceedings before different High Court stations challenging the same prosecution for the same relief.

Reasoning

The chronology shows the same litigants filed Nyamira HCCRMISCAPPL E020 of 2026, then Bomet Petitions E002 and E003 of 2026 (transferred as Nyamira HCCHRPET E008 and E009 of 2026), and then the present Petition at Kisumu, all concerning Keroka MCCGCR No. E001 of 2026 and seeking substantially the same conservatory relief. A dissatisfied party must appeal, not file fresh proceedings in a coordinate court.

p. 6
02

Whether the right of access to justice protects the filing of parallel petitions

Holding

No - Articles 22 and 48 guarantees cannot be invoked to justify repeated substantially similar proceedings before courts of concurrent jurisdiction.

Reasoning

The Court acknowledged the constitutional right to institute proceedings and access to justice but held these guarantees are subject to the principles of finality, judicial comity and orderly administration of justice; the proper remedy against an adverse determination is the appellate process established by law.

p. 6

Legal principles established

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  • The High Court under Article 165 is one Court; its stations and divisions are for administrative convenience and do not permit litigants to shop for favourable forums.
  • Constitutional rights of access to justice under Articles 22 and 48 cannot justify repeated institution of substantially similar proceedings before courts of concurrent jurisdiction.

Court orders

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  1. 1.The Petition dated 18th June 2026 and the Notice of Motion of even date are struck out in their entirety for being an abuse of the process of the Court
  2. 2.The conservatory orders issued in these proceedings are discharged forthwith
  3. 3.1st Respondent's costs to be borne by the Petitioners
  4. 4.The file is closed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 14(1)(a)
  • Civil Procedure ActSection 6
  • Constitution of KenyaArticles 22, 48, 165
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)

Cases cited (4)

  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] KECA 453 (KLR)

    Abuse of process arises where judicial procedures are employed for purposes inconsistent with the proper administration of justice.

  • Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others
    [2015] KECA 674 (KLR)

    Judicial process should not be employed in a manner that obstructs or delays the administration of justice.

  • Republic v Karisa Chengo & 2 Others
    [2017] eKLR

    Recognition of the Court's inherent jurisdiction to regulate its proceedings and prevent misuse of its process.

  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    [2014] eKLR

    Recognition of the Court's inherent jurisdiction to regulate its proceedings and prevent misuse of its process.

Jurisdiction invoked
Article 165 of the Constitution (High Court constitutional jurisdiction); inherent jurisdiction preserved under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Leonard Kevin Nyamasege, David Ombego, Joyce Onyiego & Erick Ayuka v Office of the Director of Public Prosecutions & Ethics and Anti-Corruption Commission", Case Analysis (2026). Petition dated 18th June 2026 (High Court at Nyamira). Source: 

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