Meshack Rono & 3 others v Director of Public Prosecution & 1 other

JUDGMENT 1. What is before this court is the Petition instituted by Meshack Rono, Joshua Kipkemboi, Hon. Jackson Kiplagat Mandago, and Jacob Sisey (hereinafter “the Petitioners”) against the Director of Public Prosecutions (DPP) and the Ethics and Anti-Corruption Commission (EACC). The Petition invokes various provisions of the Constitution of Kenya, 2010, including Articles 3(1), 10, 22(1), 165, and the Bill of Rights provisions under Articles 19, 20, 21(1), 24, 25(c), 29(a), 40, 47, 50, and 157(11), as well as Section 4 of the Office of the Director of Public Prosecutions Act, 2013. The Petitioners allege that the Respondents have threatened to violate their constitutional rights through what they describe as an “intended illegal, ultra vires and unconstitutional prosecution.” Their complaint arises from the decision or recommendation of the Director of Public Prosecution (hereinafter refered to as the DPP), acting in conjunction with the Ethics and Anti-Corruption Commission (hereinafter referred to as EACC), to have them arrested and charged over allegations which, they contend, are already the subject of an existing criminal prosecution. According to the Petitioners, the contemplated second prosecution would constitute an abuse of the legal process and offend the Constitution. 2. The Petitioners assert that the 1st Respondent’s approval of their arrest and prosecution, notwithstanding the pendency of Nakuru Chief Magistrate’s Court Criminal Case No. E2050 of 2023, Republic v Meshack Rono & 2 Others, infringes Article 157(11) of the Constitution, which obliges the DPP to prevent and avoid abuse of the legal process. They maintain that a fresh prosecution over matters already sub judice would violate their right to fair administrative action under Article 47(1) and their right to a fair trial under Article 50(1), read together with Article 25(c) of the Constitution. 3. The Petitioners further aver that the proposed charges emanate from an inquiry into the alleged embezzlement of public funds within the Uasin Gishu Overseas Education Trust Scholarship Fund, also referred to as the Finland/Canada Overseas Education Programme. 4. They contend that the Respondents’ move to initiate yet another criminal process concerning allegations already forming the basis of an existing prosecution is unconstitutional. They therefore seek this Court’s intervention to forestall what they perceive as an impending illegality and a violation of their constitutional rights. 5. The factual matrix giving rise to the Petition concerns investigations by the EACC into the management of the Uasin Gishu Overseas Education Scholarship Fund, a programme established to support students studying abroad. The Petitioners are among those implicated in the alleged mismanagement and loss of the said funds. It is not in dispute that, following the EACC’s investigations, the DPP sanctioned criminal proceedings against some of the Petitioners in Criminal Case No. E2050 of 2023, Republic v Meshack Rono & 2 Others, pending before the Nakuru Law Courts. The Petitioners emphasise that the charges in that case relate to the same allegations said to underpin the intended fresh prosecution. 6. The Petitioners further complain that despite the continuing pendency of the Nakuru case, the Respondents have indicated an intention to arrest and prosecute them afresh on the same subject matter namely, the alleged embezzlement of Uasin Gishu County funds under the overseas education programme. While no second set of charges has yet been formally preferred, the Petitioners state that they are under imminent threat of arrest and prosecution, arising from public communications and decisions attributed to the Respondents. It is this apprehended duplication of proceedings that prompted the filing of the present Petition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 2

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7. In their Petition and supporting affidavits, the Petitioners contend that any renewed prosecution would be ultra vires and actuated by bad faith. They accuse the 1st Respondent of abusing his powers under Article 157(6) of the Constitution by concurring with the 2nd Respondent’s recommendation to charge them a second time on the same matter. They assert that such action would contravene their right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair under Article 47(1). 8. They further argue that a fresh criminal process on issues already before a court would imperil their rights to a fair trial and to equal protection of the law, and would unjustifiably restrict their liberty in violation of Article 50(1), read together with Article 25(c) of the Constitution. 9. The Petitioners seek the following reliefs: 10. i. Declaration that the recommendation and approval by the 1st Respondent, the DPP, to have the petitioners arrested and prosecuted when there is similar prosecutions over the same allegations before Nakuru Law Courts in criminal case No. E2050 of 2023; Republic vs Meshack Rono & 2 others is an abuse and contravention of his powers to prosecute under Article 157(6) of the Kenya Constitution, 2010. ii. Declaration that the recommendation and approval by the 1st Respondent, the DPP, to have the petitioners arrested and prosecuted when there is similar prosecutions over the same allegations before Nakuru Law Courts in criminal case No. E2050 of 2023; Republic vs Meshack Rono & 2 others is a contravention of the petitioners fundamental rights to a fair administrative action guaranteed under Article 47(1) of the Kenya Constitution, 2010. iii. Declaration that the recommendation and approval by the 1st Respondent, the DPP, to have the petitioners arrested and prosecuted when there is similar prosecutions over the same allegations before Nakuru Law Courts in criminal case No. E2050 of 2023; Republic vs Meshack Rono & 2 others is a threat to the petitioners fundamental right to protection of the person against curtailment of liberties without justifiable cause, guaranteed by under Article 50(1), supplemented by Article 25(c) of the Kenya Constitution, 2010. iv. An order of Certiorari to remove to this court and quash the recommendations and approval of the 1st and 2nd respondent to arrest or cause the arrest of the petitioners and prosecute them a new over the allegations of embezzlement of funds of Uasin Gishu County Government in management of the Uasin Gishu Overseas Education Trust Scholarship Fund. v. Any other orders as the court may deem just and expedient in the circumstances. vi. Costs of the petition on indemnity basis. The Respondents oppose the Petition. In answer to the Petitioners’ claims, the DPP and the EACC contend, inter alia, that the Petition is premature and misconceived. They argue that the Petitioners have not been subjected to any fresh charges, and that the Court is being invited to intervene on the basis of a mere apprehension. The 1st Respondent maintains that he has acted well within the confines of his mandate under Article 157 of the Constitution and that no illegality or abuse of process has https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 3

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been demonstrated so as to justify judicial intervention. The Respondents further submit that the Petitioners ought to have exhausted available administrative remedies, including the internal review mechanism provided under Section 5(4)(e) of the Office of the Director of Public Prosecutions Act, before approaching this Court. Petitioners’ Submissions 11. The Petitioners’ principal submission is that the impugned conduct of the Ethics and Anti-Corruption (hereinafter EACC) and the Director of Public Prosecutions (hereinafter DPP) amounts to a violation of their constitutional rights and is ultra vires the Respondents’ respective mandates. They contend that the investigations undertaken by the EACC and the alleged decision by the DPP to prosecute them were arbitrary, unsupported by evidence, bereft of due process, and actuated by bad faith. Relying on Articles 47 and 50 of the Constitution, the Petitioners argue that the EACC’s administrative actions fell short of the constitutional requirement that such actions be “expeditious, efficient, lawful, reasonable and procedurally fair,” and that their fair trial rights under Article 50 stand imperilled should a prosecution proceed without proper procedural safeguards. They therefore submit that the DPP’s exercise of prosecutorial discretion was malicious, irrational, or otherwise unconstitutional, thereby entitling this Court to intervene. 12. The Petitioners further submit that they lacked any alternative and effective remedy, and that the jurisdiction of this Court is properly invoked to avert an imminent violation of their rights. In their view, the conventional recourse of challenging the charges before the trial court is inadequate, as it would not forestall the constitutional harm that they say is threatened. 13. The Petitioners maintain that the proposed criminal charges are inherently defective, asserting that the factual allegations said to constitute the offences are either non-criminal in nature or legally insufficient. They also point to certain statements and actions attributed to the Respondents which, they claim, reveal prejudice, improper motive, or an ulterior purpose underlying the intended prosecution. Invoking Article 157(11) of the Constitution which obliges the DPP to prevent and avoid abuse of the legal process they argue that such abuse has in fact occurred. On this basis, they urge this Court to grant declaratory and injunctive relief to forestall the intended prosecution. 1st Respondent’s Submissions 14. The 1st Respondent objected to the Petition on several fronts. At the outset, the Director of Public Prosecutions submitted that the Petition is premature and non-justiciable. It was argued that, under Article 157(10)– (11) of the Constitution and Sections 4 and 5 of the Office of the Director of Public Prosecutions Act (No. 2 of 2013), the prosecutorial mandate is vested exclusively in the Director of Public Prosecutions, who is not subject to direction or control by any person or authority. 15. The 1st Respondent underscored that Article 157(10) of the Constitution expressly provides that the Director of Public Prosecutions “shall not require the consent of any person or authority” and shall not be subject to the direction or control of any other body. In this regard, he maintained that judicial scrutiny of prosecutorial decisions must be exercised with circumspection and only within the narrow constitutional parameters that permit such intervention. 16. It was further submitted that these provisions vest the 1st Respondent with broad independence to institute, take over, continue, or discontinue criminal proceedings pursuant to Article 157(6)– (8) of the Constitution. He argued that courts will not lightly interfere with the exercise of this discretion, except in the clearest of cases where abuse, malice, or other unconstitutional conduct is demonstrated. Counsel referred to the Court of Appeal’s pronouncement that “the exercise of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 4

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prosecutorial discretion enjoys some measure of judicial deference” and that intervention is warranted only in “exceptional and clearest of cases.” 17. Reliance was placed on Muthama v DPP [2020] KEHC 9053, where it was held that: “ where a matter is left to the discretion of a public officer, and where his discretion has been bona fide exercised… the court will not interfere unless mala fides or a failure to properly apply the mind is established.” 18. It was the 1st Respondent’s submission that the Petitioners have fallen far short of this threshold. 19. The 1st Respondent further contended that the Petition is fatally defective for want of exhaustion of alternative remedies. He invoked Section 5(4)(e) of the Office of the Director of Public Prosecutions Act, which establishes an internal review mechanism for persons aggrieved by a prosecutorial decision, noting that the Petitioners did not avail themselves of this statutory avenue. He also relied on Section 9(2) of the Fair Administrative Action Act, 2015 enacted to operationalise Article 47 of the Constitution which prohibits judicial intervention where adequate alternative remedies have not been exhausted. In the 1st Respondent’s view, the Petitioners were under both a statutory and constitutional obligation to pursue available administrative redress, including any internal mechanisms within the EACC, before invoking this Court’s jurisdiction. 20. Turning to the merits, the 1st Respondent acknowledged that his discretion must be exercised in conformity with Article 157(11), which requires regard to the public interest, the administration of justice, and the need to avoid abuse of legal process. He maintained, however, that the Petitioners had not demonstrated any malice, prejudice, or improper motive. It was submitted that the Ethics and Anti-Corruption being a constitutionally established body under Article 79 and the Ethics and Anti-Corruption Commission Act conducted investigations within its lawful mandate and thereafter forwarded the file to the DPP. Any contestation concerning the sufficiency or competence of the evidence, the framing of charges, or the weight of the prosecution case, the 1st Respondent argued, is properly within the remit of the trial court. In this regard, reliance was placed in Njuguna S. Ndung’u v EACC & others [2018] KECA 47, where the Court of Appeal held that challenges to the legal sufficiency of charges are premature when raised through a constitutional petition and should appropriately be determined by the trial magistrate. It was the 1st Respondent’s submission that it is not the function of this Court, at this stage, to veto or second-guess the formulation of criminal charges. 21. The 1st Respondent argued that the Petitioners’ claim of threatened or ongoing violation of constitutional rights is unsubstantiated. It was submitted that the rights protected under Article 50 arise only upon arrest, charge, or trial, none of which has occurred. It is asserted that the Petitioners have not been detained or formally charged, and therefore rights such as bail, legal representation, and other trial-related guarantees have not yet crystallised. In any event, the 1st Respondent assured the Court that all constitutional safeguards under Article 50 will be observed should any prosecution ensue. On this basis, he urged the Court to decline the invitation to intervene prematurely. 2nd Respondent’s Submissions 22. The 2nd Respondent largely aligned with the position of the 1st Respondent, while emphasizing its own constitutional and statutory mandate, it submitted it was acting within its powers under Article 79 of the Constitution and the Ethics and Anti-Corruption Commission Act to investigate allegations of corruption. As a specialized commission, the Ethics and Anti-Corruption Commission owes a duty to the public to pursue claims of malfeasance by public officers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 5

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23. It emphasized that any investigatory or prosecutorial steps taken were in good faith, based on reports and evidence gathered during the course of its inquiries. The 2nd Respondent, like the 1st Respondent, argued that challenges to the substance of these actions such as whether the evidence meets the threshold of criminal liability are matters for the trial court to determine. 24. The 2nd Respondent further noted that the Petitioners were afforded opportunities to be heard during the investigations, in compliance with the Fair Administrative Action Act, and that written notices of the investigation’s conclusions were duly issued. On that basis, it contended that no breach of Article 47 had occurred. 25. It was the 2nd Respondent’s further submission that the Petitioners’ reliance on Article 50 was misplaced, as no arrest or formal arraignment had taken place. It maintained that, rather than seeking pre-emptive judicial intervention, the Petitioners should first have pursued any available internal mechanisms or awaited resolution through the ordinary criminal process, invoking the principle of exhaustion of remedies. Analysis and Determination 26. 27. Upon a careful consideration of the pleadings and the submissions of the parties, the Court finds that the following issues commend themselves for determination: i. Whether this Petition is premature or non-justiciable. ii. Whether the Petitioners have failed to exhaust available remedies, including the review mechanism under the Office of the Director of Public Proscutions Act or other statutory procedures, before invoking the jurisdiction of this Court. This Court must first consider whether this Petition is prematurely filed or barred by the Petitioners’ failure to exhaust alternative remedies. It is well established that the Court should not adjudicate hypothetical or future controversies. As the Court of Appeal observed in Wanjiru Gikonyo & 2 others v National Assembly & 4 others [2016] eKLR (cited in Kiriro Wa Ngugi (HC, 2019)), “ the court ought not to engage in premature adjudication of matters through either the doctrine of ripeness or of avoidance. It must not decide on what the future holds either.” 28. A dispute is not justiciable until its facts are sufficiently concrete and adverse to warrant judicial resolution; mere speculation or anticipation of events is insufficient. 29. In the present case, the Petitioners seek to pre-emptively enjoin prosecutorial and investigative processes that are not yet concluded. They contend that any delay would irreparably prejudice their rights. In Njuguna Ndung’u v Ethics & Anti-Corruption Commission & 3 Others [2018], the Court of Appeal held that it was “premature to determine whether the appellant was likely to be subjected to an unfair trial as the prosecution… was yet to begin,” dismissing a similar petition for lack of ripeness. 30. Likewise, the 1st Respondent argues that the present Petition is premature, as no charges have been preferred and the Petitioners’ rights have not been adjudicated. The Petitioners have not identified any concrete miscarriage of justice that has already occurred; at most, they anticipate future prejudice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 6

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31. The law further requires that internal and alternative remedies be pursued before judicial intervention is warranted. Section 9(2) of the Fair Administrative Action Act, 2015, giving effect to Article 47, provides: “ The High Court or Subordinate Court shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal on review and all remedies available under any other written law are first exhausted.” 32. Similarly, the Office of the Director of Public Prosecutions Act provides for statutory review of Director of Public Prosecutions decisions, and other legislation establishes appeal or review procedures. 33. It is settled that constitutional litigation is generally a remedy of last resort. In the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] KECA 304, the Court of Appeal held that where an alternative dispute-resolution mechanism exists, it is “imperative… that it be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort, and not the first port of call… The exhaustion doctrine is a sound one.” The Court emphasized that even if the parties challenge the authority of a statutory or institutional actor, they must first submit to the available internal processes to avoid “short-circuiting” them. 34. By the Petitioners’ own account, the normal remedy would have been to petition the 1st Respondent for review under Section 5(4)(e) of the Office of the Director of Public Prosecutions Act. As the 1st Respondent observes, this statutory provision expressly contemplates review of a decision to prosecute or not. In Wanjohi v DPP [2025] KEHC 6854, the Court held that where a petitioner is dissatisfied with a Director of Public Prosecutions decision, he “had an option to petition the Director of Public Prosecutions for review of the decision and therefore the decision to move to Court is manifestly premature.” Here, the Petitioners did not seek such review, nor did they pursue any statutory avenue of complaint with the 2nd Respondent, such as against perceived abuse of process. No explanation has been provided for the forfeiture of these alternatives. 35. Furthermore, the Petition engages a confluence of administrative and criminal law issues. It is well settled that no court is obliged to entertain a constitutional challenge where a comprehensive alternative remedy exists. Where the decision of the Director of Public Prosecutions is final, the Petitioners could have pursued statutory review; where it is not final, the matter remains nonjusticiable. 36. Complaints regarding alleged unfair investigative processes could, and should, have been addressed through the Ethics and Anti-Corruption Committee grievance procedure or by seeking redress in an alternative forum. In Wanjohi (supra), the Court held that failure to pursue internal procedures rendered a petition premature. Similarly, in Shariff v Murang’a Governor & 4 others [2023] KEELC 1, the Environment & Land Court dismissed a petition for failure to exhaust “all available alternatives to address concerns,” noting that Section 9(2) of the Fair Administrative Action Act prohibits judicial review where such remedies have not been exhausted. 37. Applying these authorities, it is manifest that the present Petition is procedurally flawed. The Petitioners have neither exhausted statutory remedies nor demonstrated that no remedy exists. They have approached this Court directly, thereby depriving the Respondents, particularly the Office of the Director of Public Prosecutions the opportunity to address their grievances. This constitutes precisely the type of “premature adjudication” that courts are enjoined to avoid. The Petition is, therefore, not ripe for adjudication. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 7

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38. Even if the Court were to consider the substance of the Petitioners’ claims, the outcome would remain unchanged. Article 22 empowers the Court to act where a person’s rights have “been, is being or likely to be denied, violated, infringed or threatened,” but this requires a genuine threat, not a mere possibility. In the instant case before this court, no rights have yet been denied: the Petitioners have not been charged, tried, or convicted. Their concern is confined to anticipated proceedings. The evidence and submissions before the Court demonstrate only that an investigation is ongoing and that the 2nd Respondent has made a recommendation to the 1st Respondent. While this may appear prejudicial to the Petitioners, it does not constitute a completed or concrete violation of rights. 39. In the circumstances, the Petitioners have failed to establish that this Court has jurisdiction to entertain the Petition at this stage. The matter remains speculative, and alternative remedies were available but not pursued. 40. In view of the foregoing analysis, the Court finds that the Petition is premature and procedurally incompetent and cannot succeed. Accordingly, it is dismissed without the grant of any relief. 41. Orders a. The Petition is hereby dismissed in its entirety. b. Each party shall bear its own costs, having regard to the public interest nature of the subject matter. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER 2025. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of : Counsel for the Petitioners – No appearance Counsel for the 1st Respondent – Mr. Mulati h/b Mr. Achochi Counsel for the 2nd Respondent – No appearance Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19208/eng@2025-12-05 8

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