Peter Deche Bandika & 1 other v Director of Criminal Investigtions, Kwale County & 1 other

the apprehension of the Petitioners, considering and/or preferring any criminal charges against the Petitioners in matter under investigations by it. 4. An Order Prohibiting the 1st Respondent herein the County Criminal Investigation Officer in any manner whatsoever from directing, continuing to direct, and harassing or continuing to harass the Applicants herein howsoever, by itself, its agents, servants and/or assigns, or causing the apprehension of the Petitioners, considering and/or preferring any criminal charges against the Petitioners in matter under investigations by it. 5. Costs of this Petition and Incidentals thereto be borne by the 1st Respondent. 6. Any Such Other/Further Orders that the Honourable Court may deem fit.” 2. According to the affidavit sworn by the 1st petitioner in support of the petition, the petitioners were, and remain the lawful registered beneficial proprietors of plot numbers Kwale/WAA/2027 and Kwale/ WAA/2028. The said parcels of land are said to have been sold to the petitioners by the administrators of the estate of Hamisi Tabu (deceased) who were appointed vide an order of the Honourable Kadhi in Khadi’s Court Succession Cause No. 42 of 2008; In the matter of the Estate of Hamisi Tabu (deceased) on 5 February 2010. 3. According to the order granted in the Kadhi’s court, the administrators were to hold the property known as Kwale/WAA/966 for their benefit and for the benefit of the children of their siblings who were deceased; these were, Hamisi Mohamed Hamisi, Hamisi Asha, and Hamisi Omar Hamisi. Others were, Omar, Suleiman, Fatma, and Mwanamina Athuman Hamisi. 4. The petitioners bought the property known as Kwale/WAA/966 which was later subdivided into two plots; Kwale/WAA/2027 and Kwale/WAA/2028, measuring approximately 4 acres and made payment of Kshs. 280,000/=. Hand written agreements on the sale and payment of the purchase price are said to have been witnessed by one Gakuria, who is the chief of the area in which the parcels of land are located. 5. The petitioners contend that the administrators agreed to transfer the suit property in their names on 7 July 2010, and, in that regard, they applied and obtained consent for the transfer of land from the Matuga Land Control Board. The administrators also gave the petitioners vacant possession of the property. 6. The two plots were eventually transferred to the petitioners after submitting the transfer forms on 9 July 2010; the forms were duly executed by the petitioners on one hand, and the administrators on the other hand. 7. Subsequently, and more particularly on 9 July 2010, the land registrar of the then Kwale District, caused two title deeds to be issued in the names of the petitioners. 8. Since they took possession of the property, the petitioners have not only been in physical occupation of the suit property but they have also developed permanent structures on the property. 9. That notwithstanding, it is alleged that one of the beneficiaries of the said estate now claims that the said purchase price was for only one acre and not the three acres purchased by the petitioners. The said beneficiary reported the petitioners to the 1st respondent who then summoned the petitioners and commenced investigations on allegations of fraud. 10. It is alleged that the 1st respondent has been harassing and intimidating the petitioners and threatening to arrest them. In the meantime, the petitioners engaged the services of a valuer to ascertain the value https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 2

page 2 of 9

of the suit property as at the time of purchase. According to the valuer’s report, the value of the entire suit property at the time was Kshs. 100,000 and not Kshs. 280,000 per acre as alleged. It is against this background that the petitioners have filed this petition. 11. In response to the petition, the respondents have filed a replying affidavit sworn on 2 May 2023 by Kirui Koske. Koske is the county criminal investigation officer of Kwale county, and, according to him, his office is investigating a criminal offence of obtaining land registration by false pretence contrary to section 320 of the Penal Code, cap. 63. The complaint which provoked the investigations was reported to Kwale Police Station vide OB No. 17 on 10 August 2021 by Binti Sudi Hamisi Tabu of ID No. 5419842 and Swaleh Hamisi Tabu of ID No. 1169655, among other, complainants. 12. In the course of investigations, the respondents summoned and interrogated all the parties involved. The complainants, are said to be elderly and, therefore, they were represented by their children Ibrahim Swaleh Mwajuma, Hamisi Mohamed Mwajuma, and Suleiman Musa Bugu. Witness statements were recorded on 19 April 2022. According to these statements, in the year 2007, the complainant’s sister Mwanaidi Hamisi Tabu, got sick and in order to cater for her treatment expenses, the complainant, Swaleh Hamisi Tabu and his siblings, agreed to sell one acre of their family land to the 1st petitioner, Peter Deche Bandika, through a formal agreement made at the chief’s office. The purchase price is said to have been agreed at Kshs. 280,000. 13. The complainants reported to the chief that the petitioner had only paid them Kshs. 5,000 and took over a year before making additional payment. This prompted Mr. Gakuria, the area chief, to summon the petitioner who then made subsequent payments and cleared the whole amount of Kshs. 280,000. The complainants further indicated that in the process of the land transaction, the petitioner took advantage of the complainants’ illiteracy and made them sign an amended sale agreement and transfer documents which, unknown to them, they effectively transferred four acres of land to him and his brother instead of the one acre, initially agreed upon. 14. When Ibrahim Swaleh Mwamjula, the son of the complainant, conducted a search at Kwale lands office, he established that their family land parcel number Kwale/WAA/966 had been subdivided into 3 portions: Kwale/WAA/2027; Kwale/WAA/2028; and Kwale/WAA/2029 and that Peter Deche Bandika had been registered as the owner of 1 acre while Anthony Tsuma Ndewa had been registered as the owner of the other 3 acres. Only 1 acre had been left for the family and that none of the family members knew Anthony Tsuma Ndewa. 15. Upon interrogation, Peter Deche Bandika admitted that it took him longer to make payments for the purchase of land contrary to the agreement. Again, the payment was not lumpsum; some payments were made at the chief’s office, and, in total, he paid Kshs. 280,000 for the 4 acres of land. Peter Deche Bandika also stated that the family agreed to sell another 3 acres to Bandika’s brother, Anthony Tsuma Ndewa, who was abroad. Ndewa is alleged to have financed the succession process. 16. According to the respondents, the petition has been maliciously filed with the sole purpose of derailing investigations and denying justice to the elderly victims. 17. In their submissions, the petitioners have urged that jurisdiction of this Honourable Court in constitutional matters, in particular, to uphold and enforce the Bill of Rights, is derived from article 23 of the Constitution. In support of their argument, they have cited Mumo Matemo v Trusted Society of Human Rights Alliance, Civil App. No. 290 of 2012 (2013) eKLR. 18. It is their case that the properties in issue were acquired in accordance with the law. Even then, the petitioners acknowledge that, according to section 52 (1) of the National Police Service Act,cap.84, the police have powers to summon any person believed to have information which may assist in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 3

page 3 of 9

investigation to appear before the police. In this regard they have cited, Republic v Commissioner of Police ex-parte & Another ex-parte Michael Monari & Another (2012) eKLR where it is said to have been held that once investigations establish reasonable suspicion that a person committed a crime, he or she ought to be charged in a court of law. 19. The petitioners have also urged that the deceased’s estate having received proceeds of sale of the property cannot retain the property and demand for more payment as this would amount to unjust enrichment. It is their position that they are owners of the suit property and are, therefore, entitled to enjoy proprietary rights and privileges including, but not limited to the right of possession and quiet enjoyment. 20. Since they are owners of the property in issue, it is urged that the respondents’ acts constitute trespass, and that they are, therefore, entitled to the remedies sought. Ultimately, they pray that the petition be allowed with costs. 21. In response, it has been urged on behalf of the respondents that since a complaint was lodged in the 1st respondent’s offices, they were under the obligation to investigate the complaint in execution of their mandate of undertaking such investigations. 22. The respondents have also submitted that although the petitioners have alleged that they have been harassed, they have not provided any proof of such harassment. Neither is there any proof that the 1st respondent has acted maliciously or illegally. The respondents have relied on the decision in Republic v Chief Magistrate Milimani & Another ex-parte Tusker Mattresses Ltd & 3 Others (2013) eKLR where it was held the court must be cautious not to interfere with the investigations or make determinations that may jeopardise investigations. 23. As far as the question of ownership of the land in is issue is concerned, it has been submitted that this particular question can only be answered after both parties have been heard in the Environment and Land Court. In support of this argument, the respondents have cited Narok High Court Misc. Criminal Application No. E003 of 2023; Ololoso & Another v Inspector General of Police & Another. Finally, the respondents have prayed that the petition be dismissed with costs. 24. Having considered the petition, the response thereto and the submissions filed by the learned counsel for the petitioners and the respondents, I must start by discounting any doubt that this Honourable Court has the requisite jurisdiction to entertain the instant petition. 25. The petitioners have alleged that their rights under the Constitution have either been violated or are threatened with violation. It has been submitted on behalf of the petitioners, thus: “ The Deceased’s estate, having received the proceeds of sale of the property from the Petitioners, cannot at the same time retain the property nor claim for more as that amounts to unjust enrichment. by dint of the foregoing in its entirety, it is clear beyond peradventure that by the 1st respondent’s Acts and/or Omissions, the 1st Respondent has and continues to Violate a myriad of the Petitioners’ Rights and Freedoms inextricably enriched in the Constitution of Kenya, 2010, by harassing and/ or intimidating the Petitioners herein, the 1st Respondent was and remains in Express and/or Constructive Violation and/ or Contravention and/or Infringement and/or Breach of the Petitioners’ Unequivocal Constitutional Rights of Entitlements Of Citizens – Article 12, Rights and Fundamental Freedoms - Article 19, Application of Bill of Rights - Article 20, Implementation of rights and fundamental Freedoms - Article 21, Limitation of rights or fundamental Freedoms Article 24, Fundamental Rights and freedoms that may not be limited - Article 25, Equality and freedom from discrimination - Article 27, Human dignity - Article 28, Access to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 4

page 4 of 9

Information - Article 35, Freedom of movement and residence - Article 39, Protection of right to property - Article 40, Economic and social rights - Article 43, Fair administrative action - Article 47, Access to justice - Article 48, Fair hearing - Article 50 and Principles of land policy - Article 60.” 26. To the extent that the petitioners have alleged that their constitutional rights have either been violated or threatened with violation, this Court not only has the jurisdiction under article 165(3) (b) of the Constitution to interrogate the legality of the respondent’s actions but it has also the obligation to do so. This article reads as follows: 3. (b) Subject to clause (5), the High Court shall have— (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; 27. Of course, it is one thing to allege violation or threatened violation of one’s constitutional rights but it is another thing, altogether, to prove those allegations. The possibility that a petitioner may not prove that his constitutional rights have been violated or are threatened with violation does not thereby deprive the court of its jurisdiction. 28. As far as I understand the petitioners, the primary question which they have confronted this Honourable Court with is, whether the petitioners have proved, to the satisfaction of the Court, that their rights have either been violated or are threatened with violation. 29. To begin with, the Directorate of Criminal Investigations, has been established under section 28 of the National Police Service Act. Although the office is headed by the Director of Criminal Investigations, it is “under the direction, command and control of the Inspector-General”. (see section 28 of the Act). 30. The functions of the directorate have been outlined in section 35 of the Act. This provision of the law reads as follows: 35. Functions of the Directorate The Directorate shall— a. collect and provide criminal intelligence; b. undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others; (c) maintain law and order; (d) detect and prevent crime; (e) apprehend offenders; (f) maintain criminal records; (g) conduct forensic analysis; (h) execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157(4) of the Constitution; (i) coordinate country Interpol Affairs; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 5

page 5 of 9

(j) investigate any matter that may be referred to it by the Independent Police Oversight Authority; and (k) perform any other function conferred on it by any other written law 31. It is thus, clear from the National Police Service Act, that amongst the functions the Director of Criminal Investigations is enjoined to undertake, are the tasks of detecting and preventing crime and also apprehending offenders. 32. Further, Section 24 (e) of the National Police Service Act provides for functions of the Kenya Police Service to include investigation of crimes. 33. If a complaint was lodged to the effect that a crime was committed in the process of acquisition of the property or properties in issue, the Director of Criminal Investigations would be quite in order to take steps towards establishing whether indeed the alleged crime was committed and, if so, to apprehend the offenders. It would be impossible for the Director of Criminal Investigations to detect the crime complained of without conducting investigations. 34. In short, there is nothing unconstitutional about the Director of Criminal Investigations conducting investigations into the complaint lodged against the petitioners. The Director cannot be said to have violated the petitioners’ right to property or threatened such violation merely because he has initiated investigations into a complaint of fraudulent acquisition of the property or properties. The Director’s actions are in tandem with section 35 (d) of the National Police Service Act and this Honourable Court cannot stand in the way of the Director’s execution of his statutory mandate. 35. This Honourable Court addressed this point Muhiato v Director of Criminal Investigations & 2 others (Constitutional Petition E026 of 2023) [2024] KEHC 2093 (KLR) (29 February 2024) (Ruling), where it held as follows: “ 22. There is no gainsaying that it is the duty of the police to investigate the commission of crimes. Accordingly, unless it is demonstrated that there is clear abuse of process for ulterior motives, the Court ought to be reluctant to intervene in the exercise of lawful duty imposed not only by dint of Articles 244 and 245 of the Constitution but also by Sections 24(e) and 35 of the National Police Service Act. 23. Indeed, in Republic v Commissioner of Police & Another, Ex Parte Michael Monari & Another (2012) eKLR (supra), it was emphasized that: “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.” 36. It is also worth noting that according to article 40(6) of the Constitution, (6) the rights to property under article 40 “do not extend to any property that has been found to have been unlawfully acquired”. This implies that where a complaint has been made and it is reasonably suspected that certain property https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 6

page 6 of 9

was unlawfully acquired, the Directorate of Criminal Investigations, amongst other agencies that are mandated to undertake investigations, may investigate the lawfulness or lack thereof of the acquisition of such property. 37. I must add that the declaration sought by the petitioners to the effect that they are the lawful, registered proprietors of plot Numbers Kwale/ Waa/2027 and Kwale/ Waa/ 2028 and the prayer for a permanent injunction restraining the 1st Respondent or any other person, who no doubt will include, the complainants who have laid a claim on the property, are matters that can properly be disposed of after parties have been heard and cross-examined on their evidence in the Environment and Land Court. 38. Lest we forget, article 162 of the Constitution establishes superior courts which have been named as the Supreme Court, the Court of Appeal, the High Court and the Courts with the status of the High Court. The latter court’s with the status of the High Court are to determine, first, the disputes relating to employment and labour; and, second, such disputes as relate to the environment, use of, occupation and title to land. The article reads as follows: 162. 39. (1) The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts mentioned in clause (2). (2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (a) employment and labour relations; and (b) the environment and the use and occupation of, and title to, land. (3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2). (4) The subordinate courts are the courts established under Article169, or by Parliament in accordance with that Article. Of particular relevance to this judgment is article 169(2) (b) and (3) of the Constitution. Following the provisions of Article 162 (3), Parliament enacted the Environment and Land Act, 2011 whose section 13 stipulates the extent of the jurisdiction of the Environment and Land Court; for better understanding, it is necessary that I reproduce the section verbatim. It says: Jurisdiction of the Court 13. (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other written law relating to environment and land. (2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes relating to environment and land, including disputes― (a) relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 7

page 7 of 9

(c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. (3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to the environment and land under Articles 42, 69 and 70 of the Constitution. (4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court. (5) The Court shall have supervisory jurisdiction over the subordinate courts, local tribunals, persons or authorities in accordance with Article 165(6) of the Constitution. (6) For the purposes of subsection (7)(b), the Court may call for the record of any proceedings before any subordinate court, body, authority or local tribunal exercising judicial or quasi-judicial functions, or a decision of any person exercising executive authority referred to in subsection (7)(b), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. (7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including― (a) interim or permanent preservation orders including injunctions; (b) prerogative orders; (c) award of damages; (d) compensation; (e) specific performance; (g) restitution; (h) declaration; or (i) costs. 40. The law is thus, explicit and leaves no room for doubt on the nature of disputes that the Environment and Land Court is seized of in exercise its original or appellate jurisdiction albeit limited to those matters for which it is established. 41. Without belabouring the point, and in the face of these constitutional and statutory provisions, I cannot make such a drastic determination on the use of, occupation and title to the land without the risk of assuming jurisdiction that this Honourable Court does not have; and more so, in a petition seeking to stop the Director of Criminal Investigations from undertaking what I have held to be his statutory functions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 8

page 8 of 9

42. For the avoidance of doubt, article 165 (5) (b)is quite explicit that this Honourable Court shall not have jurisdiction in matters reserved for the Employment and Labour Relations Court and the Environment and Land Court. It reads as follows: The High Court shall not have jurisdiction in respect of matters— (b) 43. falling within the jurisdiction of the courts contemplated in Article 162(2). In the final analysis, I do not find any merit in the petitioners’ petition; it is hereby dismissed. I make no orders as to costs. SIGNED, DATED AND DELIVERED ON 25 JULY 2025 NGAAH JAIRUS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18720/eng@2025-07-25 9

page 9 of 9