Stephen Mwaniki Macharia & 1 other v Inspector General of The National Police Service

OFFICER IN CHARGE, LAND FRAUD INVESTIGATIONS UNIT,DIRECTORATE OF CRIMINAL INVESTIGATIONS HEADQUARTERS ........................................................................ 2ND RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS .................... 3RD RESPONDENT THE ESTATE OF NEWTON GATHUNGU KIBUCHI(DECEASED) .... 4TH RESPONDENT JUDGMENT Introduction And Background 1. The Petitioners approached this court vide a Petition dated 23rd June, 2023 alleging violation of their constitutional rights under Articles 28, 29, 47, 48 and 50 of the Constitution following their arrest, detention, and subsequent prosecution in Milimani Criminal case no. 449 of 2023- Republic v Stephen Mwaniki Macharia & 2 others. The Petitioners therefore seek the following reliefs from this court: a. The Honourable Court be pleased to hold and declare that the 1st, 2nd and 3rd Respondents herein have acted in violation of the provisions of the Constitution of Kenya, 2010 and the national values and principles of governance embodied under Article 10 as well as the principles and values of public service embodied in Article 232 of the Constitution of Kenya, 2010; b. The Honourable Court be pleased to hold and declare that the 1st , 2nd , 3rd and 4th Respondents herein have infringed on, infracted and violated the Petitioner’s right to human dignity and freedom and security of person decreed and protected under Articles 28 and 29(a) of the Constitution of Kenya, 2010; c. The Honourable Court be pleased to hold and declare that the 1st , 2nd and 33rd Respondents herein have infringed on, infracted and violated the Petitioner’s right to fair administrative action decreed and protected under Article 47 of the Constitution as read with the provisions of the Fair Administrative Action Act, 2015; d. The Honourable Court be pleased to hold and declare that the 1st, 2nd and 3rd Respondents herein have infringed on, infracted and violated the Petitioners’ right to access to justice and fair hearing decreed and protected under Articles 48 and 50(1) of the Constitution of Kenya, 2010; e. The Honourable Court be pleased to hold and declare that the proceedings in Criminal Case Number 449 of 2023 Republic v Stephen Mwaniki Macharia and 2 others are unconstitutional, and in contravention of the human rights and fundamental freedoms under the Constitution of Kenya, 2010 and the laws of Kenya and is hence null, void and of no effect. f. An Order of Prohibition do issue prohibiting the Respondents herein by themselves, their servants, agents, from arresting, harassing or intimidating the Petitioners on issues touching on the ownership of the Suit Property. g. The Honourable Court be pleased to award the Petitioner general damages against the Respondents herein jointly and severally for breach of his fundamental rights and freedoms; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 2

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h. The costs consequent upon this Petition be borne by the Respondents in any event on indemnity basis; i. The Honourable Court do make any such other or further Orders as it may deem just and expedient in the circumstances to remedy the violation of the Petitioner’s fundamental rights. 2. The Petitioners’ case as premised on the Petition and the sworn affidavit of Stephen Mwaniki Macharia is that the dispute arose from a disagreement over ownership of a parcel of land; Nairobi/ Block 105/5963 which the 1st Petitioner purchased in 2018 from Barnabus Muturi Mwangi, a shareholder of Embakasi Ranching Company Limited. It is also deponed that a parallel dispute over the proprietorship of suit property is pending before the Environment and Land Court; ELC No. 2 of 2022- Newton Gathungu Kibuchi v Embakasi Ranching Co. Ltd & 3 Others. 3. The Petitioners averred that the arrest of the 1st Petitioner on 22nd June, 2023 by officers from the Directorate of Criminal Investigations (DCI) Land Fraud Unit and the subsequent detention at Muthaiga Police station and subsequent issuance of warrants of arrest against the 2nd Petitioner was unlawful and conducted with malice. It is alleged that the police officers denied them bail and failed to provide reasons for such denial. 4. It is the Petitioners case that the criminal charges were instituted to settle a civil land dispute already pending before the ELC. The Petitioners maintain that they are the lawful owners of the Suit Property as evidenced by a valid Certificate of Lease issued on 28th May 2019 and a survey report confirming the accuracy of their allocation. 5. The Petitioners further asserted that the DCI and the Director of Public Prosecutions (DPP) acted at the behest of the 4th Respondent, who is the legal representative of the estate of the late Newton Gathungu Kibuchi, and that the criminal process is being abused to intimidate them into relinquishing their property. 6. In their further affidavit sworn on 2nd July, 2025 by the 1st Petitioner, the Petitioners deponed that on 14th March 2025, the trial court in Criminal Case No. E 449 of 2023 terminated the proceedings, finding that they had no case to answer. They contend that this vindicates their position that the prosecution was baseless and an abuse of process. 7. In response to the Petition, the 4th Respondent filed a replying affidavit sworn by George Kibuchi Gathungu on 29th May, 2024. He contends that the complaint to the police was made lawfully and in good faith. They deny participating in or influencing the decision to arrest or prosecute the Petitioners. 8. He maintains that it is the police who investigated and the DPP who independently decided to prosecute. It is averred that there was reasonable cause for lodging the complaint. 9. It is further averred that the 4th Respondent has not in any way violated or infringed the rights of the Petitioners and no evidence has been provided to support the allegations against them. The 4th Respondent therefore argues that the petition is an attempt to interfere with pending criminal and civil proceedings and should be dismissed for being frivolous and vexatious. 10. The 1st, 2nd and 3rd Respondents filed a replying affidavit sworn by Daniel Wainaina sworn on 15th March, 2024. It is averred that the investigations were properly conducted following a complaint by the estate of the late Newton Gathungu Kibuchi regarding Nairobi Block 105/5823. 11. It is further averred that the investigation revealed irregular insertion of plot numbers 5963 and 5964 in the official survey plan, suggesting possible conspiracy and forgery. Based on this, the police forwarded the file to the DPP, who independently reviewed and approved the decision to charge the Petitioners. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 3

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12. It is the Respondents case that the Petitioners were duly informed of the charges and cautioned in accordance with the law. They contend that the criminal case is active before the trial court and issues raised in the instant suit ought to be canvassed before the trial court as it has jurisdiction over the matter. They urged this Honourable Court to dismiss the instant suit with costs as it is frivolous, it lacks merit and is an abuse of judicial process. 13. The Petition was canvassed by way of written submissions and in compliance, the parties filed their respective submissions save for the 1st to 3rd Respondents. Petitioners’ Submissions 14. The Petitioners filed their written submissions dated 6th August, 2024 and supplementary submissions dated 10th July, 2025. The Petitioners submitted that while Article 157(6) of the Constitution empowers the DPP to institute criminal proceedings, this discretion is not absolute and must be exercised in accordance with the Constitution and public interest. Reliance was placed on the decision in Henry Aming’a Nyabere v Director of Public Prosecutions & 2 others; Sarah Joslyn & another (Interested Parties) [2021] eKLR where the court held that intervention is warranted in the clearest cases of abuse. 15. It was further submitted that the prosecution lacked evidentiary foundation and was motivated by malice, pointing to the long delay between the alleged offences in 2018 and their arrest in 2023. Further, they argued that the prosecution is an abuse of court process and the court is being used to settle personal scores. Reliance was placed in Republic v Director of Public Prosecution & Another ex parte Kamani, Nairobi Judicial Review Application No. 78 of 2015, where it was held that prosecutions without factual basis are suspect. 16. On concurrent proceedings, the Petitioners acknowledged the provisions of Section 193A of the Criminal Procedure Code but contend that where the criminal process is weaponized to pressure parties in a civil dispute, the Court should intervene. They relied on the decision in Maina & 4 others v Director of Public Prosecution & 4 others [2022] KEHC 15 (KLR) to buttress their arguments. Further reliance was placed on the decision 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]. 17. They further submit that their denial of bail violated their constitutional rights as no compelling reasons were advanced. They relied on the case of Michael Juma Oyamo & Another v Republic [2019] eKLR on the need for real and cogent reasons to deny bail. 18. It was further submitted that the criminal proceedings be quashed for infringing the Petitioners rights and freedoms. It was argued that the charges against the Petitioners were based on false grounds, driven by malice and intended to embarrass the petitioners thereby undermining the principles of lawful and reasonable administrative action. Furthermore, it was argued that the 1st Petitioner provided proof of the ownership of the suit property which the officers involved failed to consider thereby demonstrating a lack of procedural fairness. 19. Lastly, they urge the Court to find that their rights under Articles 28, 29, 47, and 50 were violated and to grant damages under Article 23(3) It was submitted that the petitioner was subjected to aggressive and forceful arrest at his place of work which is a blatant disregard to Article 28 of the Constitution. Further, it was submitted that in effecting the arrest, the police did not align themselves to nascent human culture, constitutionalism and dignity and also denial of bail violated his constitutional rights. Reliance was placed on the decisions in Kenya Human Rights Commission & Another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR, Edward Akong'o Oyugi & 2 others https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 4

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v Attorney General [2019] KEHC 10211 (KLR), Arnaecherry Limited v Attorney General [2014] eKLR and Dick Joel Omondi vs Hon. Attorney General [2013] eKLR in support of their arguments on violation of their constitutional rights and entitlement to an award for damages in violation of their constitutional rights. 4Th Respondent’s Submissions 20. The 4th Respondent in their written submissions dated 16th September, 2024 submitted that the Petition is without merit, frivolous, and an abuse of the court process, asserting that its sole involvement was the lodging of a legitimate complaint based on reasonable suspicion. It maintains that this action was well within its constitutional rights and civic duty, and relied on the decision in Republic v Chief Magistrate Milimani & Another ex parte Tusker Mattresses Ltd [2013] eKLR, which affirmed that any citizen is entitled to report suspected criminal conduct and cannot be held liable for actions independently undertaken by the police thereafter. 21. It was further submitted that the Petitioners have neither demonstrated any violation of their constitutional rights under Articles 27 or 49 nor shown that such rights were unjustifiably limited within the meaning of Article 24 of the Constitution. 22. It is the 4th Respondent’s contention that the police and the DPP acted within their constitutional and statutory mandates under Article 244, Article 157, and Section 24(e) of the National Police Service Act, and that the Respondent had no role in investigations, arrest, or the decision to prosecute. Relying on Republic v Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR, it was argued that it is the police who bear the responsibility of investigating crime, and that courts should refrain from interfering with this process absent evidence of improper motive or abuse of power. It was therefore contended that no causal link has been established between the complaint and any alleged violation of the Petitioners’ rights. 23. Further, it was argued that the Petition is a disguised attempt to derail, frustrate, and obtain an unfair advantage in the ongoing criminal proceedings in Milimani Criminal Case No. E449 of 2023, as well as related civil proceedings. In support of this argument, reliance was placed on the decision in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, which underscores the broad scope of abuse of court process, and submitted that the Petitioners have provided no evidence of malice, oppression, or improper exercise of prosecutorial discretion. Further reliance was placed in Republic v Director of Public Prosecutions & Another ex parte KPLC Ltd [2018] eKLR and Kuria & 3 Others v Attorney General [2002] 2 KLR 69, to emphasize that prosecutorial discretion should only be interfered with in clear cases of abuse, which has not been shown here. 24. It was also submitted that the Petitioners have failed to demonstrate any infringement of their constitutional rights, any involvement of the Respondent in investigative or prosecutorial decisions, or any abuse of process by the DPP warranting judicial intervention. The 4th Respondent therefore urged this Honourable Court to dismiss the Petition costs and allow the criminal proceedings in Milimani Criminal Case No. E449 of 2023 to proceed to their logical conclusion. Analysis And Determination 25. Having carefully considered the Petition, the affidavits and the submissions and authorities relied on by the parties, the court distills the following issues for determination: i. Whether the 1st, 2nd and 3rd Respondents acted beyond their scope of power warranting this court to interfere with the prosecutorial discretion of the DPP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 5

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ii. Whether the Petitioners’ constitutional rights were violated iii. Whether the Petitioners are entitled to the reliefs sought. Whether 1st -3rd Respondents acted beyond their scope of power 26. The Petitioners averred that the Respondents action was unlawful following their arrest, detention and prosecution. On the other hand, the Respondents argued that their actions are statutory bound hence the court should be cautious to interfere with their statutory duties. 27. The court intends to in the first instance, question whether the Respondents acted within their respective mandates in their investigation and prosecution. Concomitant with this issue would be to answer whether the Petitioner’s rights have been violated in the manner that he claims and finally, to ponder whether, on analysis of the preceding questions, he is deserving of the reliefs sought. 28. In cases where there is a petition to halt a criminal prosecution, the court must consider several established factors. Firstly, the court should exercise great caution in its decision-making to avoid interfering with ongoing or anticipated criminal proceedings. The court must refrain from overstepping the constitutional and legal authority of the Director of Public Prosecutions and should not interfere with the investigative powers granted to the Police. Nonetheless, the court may intervene if that discretion is exercised unlawfully or in bad faith, such as in situations where it is misused or employed for purposes unrelated to the objective of addressing the commission of a criminal offense. In George Joshua Okungu & Another V The Chief Magistrates Court, Nairobi & Another [2014] eKLR it was held: “ 50. The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the petitioner in those proceedings. However, if the Petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the petitioner’s Constitutional rights, the Court will not hesitate in putting a halt to such proceedings. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore, the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the Petitioner to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognised aim. In the exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration. See R vs. Monopolies and Mergers Commission Ex Parte https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 6

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Argyll Group Plc [1986] 1 WLR 763 and Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK).” 29. Similarly, in Republic v Grace Wangari Bunyi (Sued as the Administrator of the Estate of the Late Obadiah Kuira Bunyi) & 7 others Exparte Moses Kirruti & 28 others [2018] eKLR it was stated that: “ It is important to note that the discretion given to the Director of Public Prosecutions to undertake investigation and prosecute criminal offences is not to be taken for granted or lightly interfered with and must be properly exercised. In the same respect, the court ought not to usurp the constitutional and statutory mandate of the Director of Public Prosecutions. The mere fact that their high chance of success as regards the intended or ongoing criminal proceedings does not count, it not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned merits of the case but to address defects in decision making process by a decision making body. However, the court may only intervene were the said discretion is exercised unlawfully and in bad faith, for instance where it is being abused or being used for achievement of some collateral purpose which are not geared towards the vindication of the commission of a criminal offence and the justice system such as with a view to forcing a party to submit to a concession of a civil dispute, the court will not hesitate to bring such proceedings to a court.” 30. A familiar position was also taken in Eunice Khalwali Miima v Director Public of Prosecutions & 2 others [2017] eKLR where the Court stated: “ The circumstances under which the Court will grant stay of a criminal process in these kinds of proceedings is now well settled. The Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision-making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.” 31. In Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR the court held: “ the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”. 32. The prosecutorial powers of DPP are constitutionally and statutorily provided for under Article 157 (10) of the Constitution and Section 4 of the Office of the Director of Public Prosecution Act No. 2 of 2013, which provides that the DPP does not require the consent of any person or authority https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 7

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to commence any criminal proceedings and in of his/her powers and functions, shall not be under the direction or control of any person or authority. The exercise of that power is however subject to Subsection (11) of Article 157 and Section 4 of the DPP Act, which provides that in exercise of the said power, the DPP shall have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of legal process. Only in circumstances where it is manifest that the DPP acted unlawfully by failing to exercise their own independent discretion; acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual will the High Court intervene. 33. In the case of Diamond Hasham Lalji & Another v A.G. & 4 others [2018] eKLR the Court of Appeal stated: “ (34) 34. It is also indubitable that the constitutional prosecutorial power of DPP is reviewable by the High Court as Article 165(2) (d)(ii) of the Constitution ordains. However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/ her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual. The DPP is entitled to make errors within his constitutional jurisdiction and the decision will not be reviewed solely on the ground that it was based on misapprehension of facts and the law. (Matululu and Anor v. DPP [2003] 4 LRC 712). Further, authority show that courts are generally reluctant to interfere with prosecutorial decisions made within jurisdiction.” I further seek to associate myself with the decision in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 the Court held that: “ A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable". 35. The mandate of the Respondents is well provided for in the Constitution. The National Police Service is established under article 243 of the Constitution. The National Police Service Act, 2011 which operationalizes the above article provides in section 24(e) that one of the functions of the police is the investigation of crimes. In Daniel Ogwoka Manduku vs Director of Public Prosecutions & 2 others (2019) eKLR, the court in discussing the role of the police in investigation of crimes held: “ …The powers of the police to investigate a crime cannot be challenged because the police is there principally to combat crime. It is therefore not possible to stop any criminal investigations unless the foundation of such investigations is malicious or is an abuse of power…Odunga J in Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR, said with regard to the power of the police to investigate: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 8

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“… 42.It is however my view that the police are clearly mandated to investigate the commission of criminal offences and in so doing they have powers inter alia to take statements and conduct forensic investigations. In order for the applicant to succeed he must show that not only are the investigations which were being done by the police are being carried out with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene…” 36. With the litany of judicial pronouncements on the threshold for interfering with the discretion of the investigative and prosecutorial agencies in mind, I now turn to the Petitioners’ gravamen which is unlawful arrest, detention and prosecution and violation of their constitutional rights from the alleged unlawful conduct of the Respondents. 37. Article 157(6) of the Constitution grants the DPP power to institute and undertake criminal proceedings, while Article 157(10) insulates the DPP from external direction. However, Article 157(11) requires that prosecutorial powers be exercised in the public interest and in a manner that avoids abuse of legal process. 38. The jurisprudence is settled that the Court may intervene only where prosecutorial powers are exercised unconstitutionally, in bad faith, or for ulterior motives. The Petitioners allege that the DPP acted on flawed investigations without sufficient evidence. However, the Respondents have demonstrated that investigations were conducted, the file reviewed, and the decision to charge was made independently. Additionally, there is not a scintilla of evidence that has been provided to show how prejudicial to the petitioners such investigations were. The police had the mandate to conduct investigations as conferred upon them by the law. 39. The DPP’s decision cannot be impeached merely because the Petitioners believe the evidence is weak. Moreover, the subsequent termination of the criminal case for lack of a prima facie case does not retroactively render the initial prosecution unconstitutional, as long as the DPP’s decision was made in good faith based on material then available. 40. There is no evidence before this Court of improper motive or bad faith. The record demonstrates lawful exercise of prosecutorial discretion consistent with Article 157 of the Constitution. 41. Consequently, this Court finds that the Respondents acted within their constitutional mandate. Whether the Petitioners’ constitutional rights were violated 42. The Petitioners allege violation of their rights to dignity, liberty, and fair administrative action under Articles 28, 29, and 47. The burden rests on them to demonstrate specific infringements and the link between the alleged violations and the Respondents’ conduct. 43. The record shows that the Petitioners were arrested pursuant to a police investigation, informed of the charges, and arraigned in court. No evidence has been tendered that the police acted outside statutory timelines or employed excessive force. 44. On denial of bail, while Article 49(1)(h) guarantees the right to bail, the same is not absolute. The police may decline bail pending arraignment where necessary for continued investigation, provided https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 9

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the suspect is promptly presented to court. The 1st Petitioner was arraigned in court the following day; hence no violation is established. 45. Allegations of cruelty or degrading treatment are unsupported by medical or independent evidence. It is worth noting that constitutional violations must be proved with cogent evidence. 46. Regarding fair administrative action, there is no indication that the DPP or DCI acted irrationally or beyond jurisdiction. Their decisions were anchored on investigation reports and documentary material. 47. The termination of the criminal case does not, in itself, imply that the Petitioners’ rights were violated at inception. A lawful prosecution may fail for insufficiency of evidence without amounting to a constitutional breach. 48. The Petitioners have not discharged the evidentiary burden required to establish violation of their constitutional rights. The acts complained of were within the scope of lawful investigative and prosecutorial authority. 49. On the other hand, as it follows, a fundamental question that must be asked is whether this dispute as presented is in reality a constitutional dispute. The facts as pleaded in my view present a dispute that is allegedly based on unlawful arrest, detention and malicious prosecution. Though these allegations can be framed as constitutional violations, they may very well support a tortious claim of malicious prosecution but the petitioners appear to have deliberately avoided taking that route. 50. If therefore the claims before this Court can be adequately litigated in tort, was it proper for the Petitioners to fashion the matter as a constitutional dispute? 51. Courts have constantly weeded out disputes that are disguised as constitutional disputes when in reality they are not. In Uhuru Muigai Kenyatta vs Nairobi Star Publication Limited (2013) eKLR Lenaola J (as he then was) stated: “ …Where there is a remedy in civil law, a party should pursue that remedy and I say so well aware of decision of Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in the society should attract a constitutional sanction as stated in AG V Dutambala Criminal Appeal No. 37 of 1991 (Tanzania Court of Appeal) such sanctions should be reserved for appropriate and really serious occasions…” 52. In the case of Grace Jepkemoi Kiplagat vs Zakayo Cheruiyot (2021) eKLR Mutungi J held thus: “ … there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing matters that are essentially civil matters and christening the same as constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional Court.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 10

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53. The Court of Appeal in dismissing a similar matter in the case of James Kanyiita Nderitu v Attorney General and the Director of Public Prosecution (2019) eKLR stated as follows: “ …As we have stated above, the remedy for the appellant was to institute a suit for malicious prosecution. He has failed to do so and a constitutional petition cannot be used to circumvent primary legislation for enforcement of a given right or violation. It is not open to the appellant to urge that there can be no wrong without a remedy. Indeed, this legal principle is correct; the appellant had a remedy in the tort of malicious prosecution or an action for defamation, he has chosen not to pursue the causes of action within the legal timeframe…” 54. It is cardinal principle that where there exists an alternative remedy under statutory law or otherwise, then such a remedy should be pursued instead of a constitutional petition. For instance, in Patrick Mbau Karanja v Kenyatta University [2012] eKLR Lenaola J (as he then was) held: “ I should only say this as I conclude; in Francis Waithaka vs Kenyatta University Petition No. 633 of 2011, this Court was categorical that it is imperative that the Bill of Rights and the constitutional imperative mandate of this court should not be invoked where other remedies lie.” 55. Chacha J. was of a similar view and which I entirely agree with in the case of Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR where he stated thus: “ 65. It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.” 56. From the foregoing, as it stands, since no violation is proved, the remedies sought in this Petition by the Petitioners cannot be granted to them. 57. Guided by the above principles, this Court is satisfied that the grievances raised in this Petition are ordinary civil disputes that the Petitioner is masking as constitutional grievances. Applying the doctrine of constitutional avoidance, this Court finds that it cannot consider the same as a constitutional petition. Accordingly, the petition is found to be devoid of merit. The orders sought in the Petition being declarations as well as damages are declined and dismissed. 58. The Petition herein is found to be without merit and is dismissed in its entirety, with each party to bear their own costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27th DAY OF NOVEMBER 2025. BAHATI MWAMUYE MBS https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 11

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JUDGE In the presence of: Counsel for the Petitioners – Mr. Njuguna Counsel for the 1st, 2nd and 3rd Respondent – Mr. Achochi Counsel for the 4th Respondent – Mr. Mbaha Court Assistant –Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18230/eng@2025-11-27 12

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