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The Police Service meanwhile gave the Petitioners the green light to proceed with any development if they so wished. 4. In the meantime, in September, 2020 the Petitioners were served with court papers in Milimani ELC Case No E 038 of 2020- Mount Pleasant Limited v Jamaes Njuguna Mwang, Jane Wangui Mundia, the Chief Land Registrar and the National Land Commission. It is the averment of the Petitioners that the Plaintifis in the said suit are laying claim over LR No 214/20/1/1 and LR No 214/20/2. This matter is still ongoing in the Environment and Land Court. 5. It is the case of the Petitioners that while the civil suit was still ongoing, they learned that the 1st Respondent through an oficer Mr. Gilbert Adero Okello was carrying out investigations on the suit property without notifying them or hearing them on the issue. They wrote a letter dated 22nd June, 2022 to the 1st Respondent notifying the 1st Respondent that investigations into the issue had already been carried out and communicated vide the letter dated 31st January 2020. They also sought to be allowed to participate in the investigations which by then had been going on for three years. A follow up letter dated 7th July 2022 yielded no results. This prompted the Petitioners to file the present Petition. 6. The Petition which was instituted vide a petition dated 19th July 2022 and amended on the 12th June 2024 prays for the following orders; 7. a. A declaration that Articles 10, 27, 47 (1) and 2, 50(1) and 232 (c), (e) and (f) of the Constitution enjoins the 1st Respondent to promptly notify known owners of any parcel of land that is under investigations of the existence of such investigations and afiord them an opportunity to record their statements and avail their ownership documents of interrogation b. A Declaration that in failing to notify the Petitioners of the existence of a complaint over LR No 214/832, the 1st Respondent has violated Articles 10, 27, 47 (1) and 2, 50(1) and 232 (c), (e) and (f) of the Constitution c. A Declaration that in failing to afiord the Petitioners an opportunity to record their statements and avail documents the 1st Respondent has violated Articles 10, 27, 47 (1) and 2, 50(1) and 232 (c), (e) and (f) of the Constitution d. A declaration that the investigations which the 1st Respondent has undertaken in relation to the subject matter herein being LR No 214/832 as against the Petitioners is null and void in their eterity having failed to comply with Articles 10, 27, 47 (1) and 2, 50(1) and 232 (c), (e) and (f) of the Constitution e. An order for judicial review by way of Certiorari to remove into the High Court any investigations of the 1st Respondent and decision of the 2nd Respondent to institute and continue any prosecution that is anchored on the impugned investigations over the parcel of land known as LR No 214/832 f. An order of Judicial review by way of prohibition to issue permanently prohibiting the respondents from continuing, instituting and/ or undertaking any investigations, arrest and prosecution in relation to land parcel LR 214/832 Situated in Nairobi City county formerly LR 214/20/2 and 214/20/1/1 g. Any further order or relief that this court deems fit to make to meet the interests of justice h. Cost of the Petitions The Petition was first filed in the High Court which issued conservatory orders on the 21st July 2022 staying or suspending investigations into, any arrest and prosecution by the Respondents in relation https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 2

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to the parcel of land namely LR 214/ 832 (formerly LR 214/20/1/2 and LR 214/20/1/1.) The High Court transferred the matter to this court as the Petition arose out of a land dispute. 8. The court gave directions on filing of written submissions. Before Judgement could be delivered the Petitioner sought leave to file an afidavit introducing a witness statement by Sgt Gilbert Okello a police oficer attached to the Directorate of Criminal Investigations. In the witness statement, Sgt Okello states that the 1st Petitioner herein filed a report at the DCI Regional Ofice which prompted investigations on the suit property. The witness details the paper work in respect of the disputed property. I will not go into the details of the oficers findings in this Petition as no doubt given that the statement has been filed in the Civil matter, the issues will be ventilated fully therein. 9. Learned counsel for the Petitioner filed submissions in which he too recounted the process by which the Petitioner obtained the land. He insisted that the Petitioners rights to fair administrative action had been infringed by the Respondent. Learned counsel framed the following issues for determination; a. Whether the court has jurisdiction to interrogate and quash investigations b. Whether the Petition meets the threshold to warrant the courts interference with the actions of the 1st Respondent c. Does it matter that the criminal trial process has inbuilt mechanisms that would protect the rights of the petitioners d. Who should bear costs of the suit 10. The Respondents opposed the Petition in its entirety by filing grounds of opposition dated 6th October 2022. In the grounds of opposition, the Respondents raise a number of issues firstly that the Petitioners had not established that any criminal investigations are ongoing; secondly that the 1st Respondent must be allowed to investigate crime without any interference from any party; that criminal and civil proceedings can proceed concurrently and that the Petition is premature and misconceived. Although the 1st Petitioner in the Supplementary afidavit made reference to a Replying afidavit dated 6th March 2023, I have been unable to trace the Replying Afidavit in the E filing system or in the court records. 11. Having considered the Petition, the supporting afidavit, grounds of opposition and the submissions the court distils the following issues for determination; a. Whether the court has jurisdiction to determine the Petition b. Whether the orders sought by the Petitioners are warranted c. Who should bear the costs of the Petition 12. On the first issue it is common ground that the ofice of the 1st Respondent is a constitutional ofice charged with the mandate of enforcing the law and detecting and preventing crime. It is to investigate complaints and to take appropriate action of advising the Director of Public Prosecutions to mount a prosecution of a suspect where the Director of Public Prosecution is satisfied that there is suficient evidence to mount a prosecution. 13. Article 245 (4) of the Constitution provides that the Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular ofience or ofiences; (b) the enforcement of the law against any particular person or persons; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 3

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These provisions are meant to guarantee the independence of the National Police Service in the performance of its functions. 14. The functions of the National Police Service enumerated in section 24 of the National Police Service Act include (e) investigation of crimes; (g) prevention and detection of crime; (h) apprehension of ofienders; (i) enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time. 15. Section 35 of the National Police Service Act provides that the functions of the 1st Respondent include—undertaking investigations on serious crimes including homicide, narcotic crimes, human traficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehending ofienders; and performing any other function conferred on it by any other written law. 16. It is clear from a plain reading of our Constitution and the National Police Service Act that our laws guard the independence of the Police Service to carry out their duties without interference from any quarters. However, this power is not absolute. In the spirit of checks and balances by the difierent arms of government the Judiciary can at times be called upon to provide this necessary balance. The courts have had occasion to outline circumstances under which the courts can intervene. 17. In analysing the issue Mrima J in the case of Amir Lodges Ltd & Another v Mohamed Omar Sharif & Another (2022) stated Closer home, our Courts have also had the occasion to address the issue of parallel proceedings. Before the Court of Appeal in Nairobi Civil Appeal No. 181 of 2013, Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] eKLR was the contention whether the High Court was right in granting orders restraining the Inspector General of Police, as well as the Director of Criminal Investigations from commencing, sustaining or proceeding with any investigations against Investments & Mortgages Bank Limited in connection with an alleged criminal conduct of its oficers on account of a charge instrument whose execution was the subject of contention in a pending civil suit. 67. In determining the issue, the Learned Judges of Appeal acknowledged that the Ofice of the Director of Public Prosecutions is an independent constitutional ofice. However, that ofice is subject to the control of the Court in appropriate instances where illegality, irrationality and procedural impropriety is demonstrated. The Court made reference to the decision of the Supreme Court of India in Criminal Appeal No. 590 of 2007, State of Maharashtra & Others v Arun Gulab & Others where the power of the Court in checking excesses of the prosecutorial agency was discussed as follows: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 4

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68. The Appellate Court further discussed limitations Courts ought to impose on Section 193A of the CPC, the provision that allows parallel prosecution of civil and criminal cases and remarked as follows: - 69. The Learned Judges cited with approval its earlier decision in Commissioner of Police & the Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR, where the role of the Court in ensuring prosecutorial powers are exercised while having regard to public interest, the interests of administration of justice and to avoid abuse of legal process was discussed as under: …in terms of Article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. 70. Further, the Court of Appeal in Commissioner of Police and Director of Criminal Investigations Department v. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR held that: While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 5

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71. The High Court in Kuria & 3 Others v AG (2002) 2 KLR appreciated the validity of existence of concurrent civil and criminal proceedings when it made the following findings: .... The normal procedure in the co-existence of civil and criminal proceedings is to stay the civil proceedings pending the determination of the criminal case as the determination of civil rights and obligations are not the subject of a criminal prosecution...A prerogative order should only be granted where there is an abuse of the process of the law, which will have the efiect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution... It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the Applicant are under serious threat of being undermined by the criminal prosecution. In the absence of concrete grounds.... it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. The efiect of criminal prosecution on an accused person is adverse but so also are their purpose in the society, which are immense... an order of prohibition cannot also be given without any evidence that there is manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial. (emphasis added)." 18. 19. Arising from the caselaw on the issue I decipher the following principles that shall guide me in considering the issue; a. The 1st Respondent has a constitutional obligation to carry out investigations into any complaints of criminal conduct. b. In certain instances, there can be parallel civil and criminal proceedings c. However, these investigations must be carried out impartially, expeditiously and while ensuring there is due process d. At no time should the criminal process be used to settle disputes that are purely civil in nature e. In instances where the court is satisfied that the criminal process is being abused in what should be a purely civil matter the court can grant a prerogative order staying the Criminal proceedings My interpretation of above decisions is that the existence of civil proceedings is not on its own a basis for staying a criminal prosecution. While the courts have acted with restraint in curtailing the independence of the 1st Respondent, the courts have not hesitated to action in appropriate circumstances. Such circumstances include where it has been proved that there is illegality, abuse, misuse of court process, violation of due process rights or a breach of fundamental rights or freedoms. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 6

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The question that then arises is whether in the instant case the Petitioners are entitled to the various orders they seek. 20. The Petitioners moved this court on the basis that it had come to their knowledge that investigations were underway. At the time they did not tell the court how they came to learn that they were under investigation. However, the witness statement which was filed by Sgt Gilbert Okello in ELC E 038 of 2018 and which the Petitioners attached to the Supplementary Afidavit confirm that indeed there were investigations that were taking place. The question the court must then determine is whether it has been proved by the Petitioner that there is illegality, abuse of power, violation of due process rights or breach of a fundamental right. 21. The 1st Respondent is obligated once informed of a crime to investigate the ofience. Consequently, the police cannot be faulted for carrying out investigations even though in this instance the persons alleged to have been complainants state their complaint had already been satisfactorily addressed. In spite of this, I find that the carrying out of the investigations was not illegal and an exercise of powers duly granted to the 1st Respondent. 22. Having said this, there is the issue of how the investigations were carried out. Can they be said to have been carried out in a manner that followed due process and that did not violate the rights and freedoms of the Petitioners? In carrying out their solemn duty of protecting Kenyans, it is the responsibility of the 1st Respondent to at all times promptly and impartially investigate any ofience. This should be done by interviewing all relevant witnesses and collecting all relevant documents. 23. It is unfortunate that after taking over investigations in the year 2020 ( a fact confirmed by the witness statement of Sgt Okello) the Petitioners herein were not interviewed as late as 22nd June, 2022 when they wrote a formal letter requesting to be interviewed. Neither was any information availed to them on the investigations forcing them to file this petition. 24. Apart from the fact that due process demanded that they and all other parties be interviewed, the Petitioners also had a right to information which was violated. The Constitution of Kenya at Article 10, Article 50 (1) Article 35, and Article 232 safeguard the right to information and transparency more so in instance where a party is likely to be adversely afiected by the actions of public oficers. 25. While the 1st Respondent has confirmed that the issue has now been left to the Civil Court hence no there is no adverse consequences that have been sufiered by the Petitioners, it is incumbent that this court state without any equivocation that any investigations involving an issue as emotive as land should ensure that all the parties are given a chance to be heard. In the circumstances the Petition is allowed in the following terms; a. A declaration is hereby issued that Articles 10, 27, 47 (1) and 2, 50(1) and 232 (c), (e) and (f) of the Constitution enjoins the 1st respondent to promptly notify known owners of any parcel of land that is under investigations of the existence of such investigations and afiord them an opportunity to record their statements and avail their ownership documents for interrogation. b. There shall be no orders as to costs. JUDGEMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF FEBRUARY 2025 JUDY OMANGE JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 7

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Court Assistant Merylynn Mr. John for Rapando Petitioner No appearance for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6389/eng@2025-02-20 8

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