Benson Sande Ndeta v Director of Criminal Investigations & 3 others

2. The Petitioner, Mr. Benson Sande Ndeta, contends that the criminal proceedings contemplated against him are tainted with illegality, procedural unfairness, and ulterior motives, thereby infringing his constitutional rights under Articles 27(1) and 47(1). 3. The Respondents oppose the Petition, asserting that the contemplated prosecution is firmly grounded in law and supported by evidence. They deny any abuse of power and submit that the Petition constitutes an attempt to obstruct or frustrate a lawful criminal process. They further contend that the Petitioner has failed to establish the requisite threshold for this Court’s intervention. 4. The Petitioner is a businessman who previously served as a director and shareholder of Savannah Cement. In 2016, through a corporate vehicle, Seruji Limited, he acquired additional shares in Savannah Cement formerly held by Wanho International Ltd. and Acme Wanji Investment Ltd., thereby increasing his ownership stake. This transaction gave rise to a dispute with other stakeholders inter alia, Mr. Donald Kiboro and Mr. John Gachanga Kaigai, resulting in Nairobi HCCC No. 170 of 2016, filed by Savannah Heights Limited against Savannah Cement and Seruji Limited. That suit challenged the legality of the Petitioner’s share acquisition. On 11th February 2022, the High Court dismissed the suit, affirming the Petitioner’s shareholding, and no appeal was filed against that decision. 5. Separately, Savannah Cement obtained a loan facility of USD 35,000,000 from Absa Bank (formerly Barclays Bank) to finance an expansion of its cement plant, with the Petitioner involved in securing the loan. In 2023, Savannah Heights Limited filed Nairobi HCCC No. 018 of 2023 against the Petitioner and others, alleging that the loan had been procured fraudulently. During the pendency of this suit, Absa Bank confirmed that the loan was validly obtained and properly advanced. Nevertheless, disputes concerning the legitimacy of the loan transaction persisted among the shareholders. 6. In 2024, the 1st Respondent received a complaint alleging that the Petitioner had engaged in fraudulent conduct, including the extraction of board meeting minutes dated 16th December 2014 and the forgery of a share transfer certificate, purportedly to facilitate the acquisition of shares and the procurement of a USD 35 million loan under false pretences. Investigations conducted by the 1st Respondent reportedly revealed evidence implicating the Petitioner in offences of forgery, fraud, and related criminal acts. The completed investigation file was thereafter forwarded to the 2nd Respondent - Director of Public Prosecutions for review and direction, in accordance with the law 7. Upon review, the 2nd Respondent determined that there was sufficient evidence to institute criminal proceedings and directed that the Petitioner be charged with various offences, including conspiracy to commit a felony contrary to section 393 of the Penal Code. The decision to prosecute was communicated to the Petitioner via a letter dated 25th November 2024, following which he was arrested by the 1st Respondent and taken into custody. 8. The Petitioner was formally charged and cautioned in the presence of his advocate and presented before the Chief Magistrate’s Court at Nairobi to enter plea. Before the plea could be taken or the trial proceed, the Petitioner filed the present Petition on or about 28th November 2024, challenging the legality of the proposed prosecution. The High Court subsequently granted interim orders staying the criminal proceedings pending determination of the Petition. To date, the Petitioner has not entered a plea, and the criminal proceedings have not commenced substantively. 9. A central contention advanced by the Petitioner is that the prosecution is motivated by extraneous and malicious purposes. He alleges that certain individuals associated with Savannah Heights Limited are using the criminal justice system to harass him and to undermine his business interests. At the relevant time, the Petitioner was pursuing a major investment in Bamburi Cement Ltd., and he asserts that his arrest and the contemplated prosecution were orchestrated to compel him to abandon his business bid https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 2

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in favour of a competitor. He contends that this constitutes evidence of malice, abuse of power, and a violation of his constitutional rights. Parties’ Submissions a. Petitioner’s Submissions 10. The Petitioner contends that the 1st Respondent and the 3rd Respondent, acting in concert with the 2nd Respondent, have violated his constitutional rights in the manner the criminal proceedings have been initiated and pursued. He submits that his right to equality and freedom from discrimination under Article 27(1) of the Constitution was infringed, as he has been selectively targeted for prosecution on matters in respect of which others similarly placed have not been pursued, suggesting malicious or capricious enforcement. Further, the Petitioner asserts that his right to fair administrative action under Article 47(1) was violated, on account of investigative and prosecutorial processes he characterizes as unreasonable, procedurally unfair, and guided by extraneous considerations rather than bona fide law enforcement. 11. At the core of the Petitioner’s challenge is the assertion that the 2nd Respondent’s decision to charge him was an abuse of prosecutorial discretion, influenced by improper motives, and contrary to constitutional and statutory standards governing criminal prosecutions. He argues that the 2nd Respondent did not exercise independent judgment, but was swayed by malice and ulterior objectives. In support, the Petitioner emphasizes the absence of credible evidence to warrant the charges. He notes that the underlying transaction concerning the USD 35 million loan was lawful and duly sanctioned by the lender, Absa Bank, and was not challenged by Savannah Cement itself. Coupled with the High Court’s dismissal in 2022 of the civil suit challenging his shareholding, he submits that the purported allegations of wrongdoing lack merit. The Petitioner places reliance in Republic v DPP & 2 others ex parte Praxidis Namoni Saisi [2016] eKLR, for the proposition that if a prosecutor fails to make reasonable use of available information or to take into account exculpatory evidence, such failure manifests lack of judicious decision-making and can amount to malice and abuse of process. He submits that in the present case, the 2nd Respondent either ignored or gave insufficient weight to exculpatory evidence indicating that the allegations were false or, at most, civil in nature. 12. The Petitioner further argues that the prosecution was initiated for purposes extraneous to the honest enforcement of criminal law. He avers that after failing to achieve their objectives in civil litigation, his rivals resorted to the criminal process to exert pressure on him regarding Savannah Cement and his bid to acquire a stake in Bamburi Cement Ltd. He points to the timing and sequence of events, noting that the criminal charges were initiated shortly after the commercial disputes, and that the complainant in the criminal proceedings is the same party that lost in civil court, rather than Savannah Cement or Absa Bank, highlighting an improper vendetta. 13. The Petitioner further submits that the 2nd Respondent (DPP) allowed itself to be used as a pawn in a scheme motivated by extraneous interests, rather than acting as a neutral arbiter of the public interest. In support, he relies on Kuria & 3 Others v Attorney General [2002] 2 KLR 69, where the High Court held that “the Court has power and is under duty to prohibit continuation of a criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation.” The Petitioner contends that the present prosecution exemplifies such misuse, where the criminal justice system is being wielded to settle personal and commercial disputes, rather than to address a genuine criminal offence. 14. The Petitioner invokes the authority of Githunguri v Republic [1986] KLR 1, where the Court of Appeal restrained prosecution on grounds of oppression and abuse of process, asserting that the present prosecution, in light of concluded civil matters, similarly offends established principles https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 3

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of justice. He also relies on Republic v Director of Public Prosecutions ex parte Praxidis Namoni Saisi [2016] eKLR, reiterating that a failure to consider exculpatory material constitutes procedural impropriety and amounts to an abuse of prosecutorial discretion. 1st, 3rd, and 4th Respondents’ Submissions 15. The 1st Respondent emphasizes that it was acting strictly within its constitutional and statutory mandate to investigate alleged offences. Article 243 of the Constitution establishes the National Police Service, while Articles 244(c)–(d) require the Service to perform its duties with professionalism and respect for human rights. In this matter, the DCI received a formal complaint alleging serious economic crimes, including forgery and fraud in a multi-million-dollar corporate transaction. The 1st Respondent conducted a thorough investigation, recording witness statements, gathering documentary evidence, and taking a charge-and-caution statement from the Petitioner, thereby ensuring that he was fully informed of the allegations and his rights. The investigative file was subsequently forwarded to the 2nd Respondent for independent review and determination, as mandated by law. The Respondents submit that at no stage did the 1st Respondent act outside its authority or violate the law; on the contrary, all investigative steps were undertaken in strict compliance with constitutional and statutory requirements. It is asserted that no excess of authority or illegality occurred during the investigative process. 16. The 3rd Respondent, the Chief Magistrate’s Court, maintains that it acted lawfully in receiving the charge sheet presented by the 2nd Respondent – the Director of Public Prosecutions and has not engaged in any conduct warranting constitutional scrutiny. The 4th Respondent, the Attorney General, submits that no unlawful act or omission has been attributed to his office and contends that the Petition fails the threshold of precision in constitutional pleadings as articulated in Anarita Karimi Njeri v Republic (1976-1980) KLR 1272. 17. The 2nd Respondent (DPP) underscores the constitutional independence of the office under Article 157(10) and affirms that the decision to prosecute was reached after satisfying the evidential and public interest tests set out in Article 157(11) and the National Prosecution Policy. It is submitted that the Petitioner has not demonstrated any illegality, irrationality, or procedural impropriety as was held by the court in Republic v DPP & Another ex parte Chamanlal Vrajlal Kamani & 2 Others [2015] eKLR. 18. The 2nd Respondent further submits that the existence of a parallel civil dispute does not bar criminal prosecution where the available evidence discloses criminality, relying on Section 193A of the Criminal Procedure Code and the decision in Kenya Commercial Bank Ltd & 2 Others v Commissioner of Police & Another [2013] eKLR. The determination of the sufficiency and credibility of such evidence is the exclusive domain of the trial court, as affirmed in Meixner & Another v Attorney General [2005] 2 KLR 189. 19. On the alleged violation of Article 47, the 2nd Respondent asserts that the Petitioner was fully aware of the allegations, participated in the investigative process, and will be afforded all fair trial guarantees under Article 50 of the Constitution. The office of the Director of Public Prosecutions maintains that the decision to charge was based on credible and admissible evidence establishing a prima facie case and that the prosecution is in the public interest. Both the evidential and public interest tests under the National Prosecution Policy (2007) were satisfied. In respect of the evidential test, the 2nd Respondent maintains that he considered documentary evidence of the allegedly forged board minutes and share transfer certificate, together with witness statements from directors and persons with knowledge, sufficient to justify prosecution. It is emphasized that the Petitioner’s contrary evidence, including https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 4

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assertions regarding the lender’s view, does not negate the existence of sufficient prosecution evidence but merely constitutes a matter for trial. 20. The 2nd Respondent further submits that it is not the role of the prosecution to resolve contested factual disputes in favour of a suspect; such matters are properly determined by the trial court. On the public interest test, it is submitted that the allegations involve substantial sums and potential economic crime, including corporate fraud and forgery, which are matters of significant public concern. These are not trivial or purely private disputes but involve corporate governance and the protection of shareholder and lender interests. Accordingly, the prosecution is consistent with the public interest and undertaken in a lawful, impartial, and professional manner. Analysis and Determination 21. Having considered the pleadings and submissions, the Court finds the following issues commend themselves for determination: i. Whether the 1st, 3rd , and 4th Respondents acted in a manner that contravened the Constitution in their conduct towards the Petitioner. ii. Whether the 2nd Respondent abused its prosecutorial discretion or otherwise acted unlawfully in the decision to charge the Petitioner. iii. Whether the Petitioner is entitled to the reliefs sought in this Petition. Whether the 1st, 3rd, and 4th Respondents acted in a manner that contravened the Constitution in their conduct towards the Petitioner 22. Article 27(1) of the Constitution guarantees that “Every person is equal before the law and has the right to equal protection and equal benefit of the law.” Article 27(4) further prohibits discrimination on various grounds including race, sex, and ethnicity. In the present Petition, the Petitioner has not expressly alleged discrimination on any constitutionally protected characteristic. Rather, his claim under Article 27 appears to rest on the assertion of selective or unequal application of the law, contending that he is being treated differently from others similarly situated, without justification. 23. The Court acknowledges that selective prosecution, if proven, may in appropriate circumstances constitute a violation of the right to equality before the law. However, the threshold of proof is high. The Petitioner was required to demonstrate that others in comparable circumstances, facing similar allegations, were treated more leniently or not prosecuted, due to improper motives such as bias, favoritism, or corruption, while he alone was singled out. In the present case, the Petitioner has not identified any other individual implicated in the alleged fraudulent transactions who was not prosecuted. The material before the Court indicates that the Petitioner played a central role in the execution of the contested corporate documents. No evidence has been adduced showing that any other director or officer committed similar acts yet escaped prosecution. The mere fact that the Petitioner is charged does not, without more, establish unequal treatment; it may simply reflect the focus of the evidence. 24. In light of the foregoing, the Court finds no basis to conclude that Article 27(1) was violated. The Petitioner has not established differential treatment vis-à-vis any similarly situated person or any form of discriminatory application of the law. The decision to charge him, in itself, does not amount to a breach of the right to equality before the law absent proof of selective or oppressive application of legal norms. The investigation by the the 1st Respondent – the Director of Criminal Investigations (DCI) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 5

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and the review and charging decision by the 2nd Respondent – the Director of Public Prosecutions were directed at the Petitioner based on specific evidence implicating his conduct. 25. Article 47(1) guarantees every person “the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” The Petitioner contends that the investigative and charging process infringed this right. It is well-established that decisions to investigate and charge are exercises of public power which must meet the standards of lawfulness, reasonableness, and procedural fairness. However, once charges are filed in court, the matter falls within the judicial domain, with Article 50 providing the principal safeguard of fair trial rights. 26. In Republic v Director of Public Prosecutions & 2 others ex parte Praxidis Namoni Saisi [2016] eKLR, the Court emphasized that a failure by the Director of Public Prosections to consider exculpatory evidence or relevant material may render a decision to prosecute procedurally unfair or irrational. The Petitioner argues that the 1st Respondent - DCI and 2nd Respondent - DPP ignored exculpatory material, including the confirmation by Absa Bank that the loan was valid and the dismissal of the civil suit affirming his shareholding. While these facts are relevant, they do not, on the evidence before this Court, conclusively refute the allegations of forgery and fraud. 27. In the result, the Court finds that the Petitioner has not demonstrated that the 1st, 3rd, or 4th Respondents acted in a manner contravening the Constitution. The 1st Respondent - DCI conducted its investigation pursuant to constitutional and statutory authority, and no excesses or violations of rights have been established. The Chief Magistrate’s Court lawfully received the charges and has not engaged in any unconstitutional act. Likewise, the 4th Respondent – the Honorable Attorney General has not committed any act infringing the Petitioner’s constitutional rights. The claims of breach of Articles 27(1) and 47(1) against these Respondents are therefore unfounded. Whether the 2nd Respondent abused its prosecutorial discretion or otherwise acted unlawfully in the decision to charge the Petitioner. 28. Article 157(6) of the Constitution empowers the 2nd Respondent herein, the Director of Public Prosecutions (DPP) to institute and undertake criminal proceedings against any person suspected of having committed an offence. Article 157(10) guarantees the DPP independence, stipulating that in exercising prosecutorial powers, the DPP shall not require consent or be subject to direction or control by any person or authority. Article 157(11), however, imposes a duty to have regard to certain factors, including public interest, the administration of justice, and the need to prevent abuse of the legal process. These constitutional principles are reinforced by the Office of the Director of Public Prosecutions Act, 2013, which emphasizes impartiality, observance of natural justice, and the promotion of public confidence in the integrity of the office. 29. The courts have clarified the circumstances in which judicial intervention in prosecutorial discretion may be warranted. As noted in Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the High Court held that it is not only empowered but under a duty to prohibit a prosecution not instituted bona fide for the purposes of law but motivated by extraneous considerations. The Court observed that intervention may be justified where a prosecution is instituted to harass, coerce, or pursue a vendetta against an accused. The Court stated: “It is the duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was formed to perform.” The Court further held that an order of prohibition may issue “where compelling an accused to stand trial would violate the fundamental principles of justice which underlie our society’s sense of fair play and decency,” or where proceedings are “oppressive or vexatious.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 6

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30. Similarly, in Githunguri v Republic [1986] KLR 1, the High Court found it oppressive and an abuse of process to prosecute an applicant after assurances by the Attorney General that he would not face prosecution for certain economic crimes. The Court stated: “The Attorney General has said there will be no prosecution. That is the end of the matter; the court shall not permit him to go back on his word… It would be unfair, unjust and contrary to the public interest for the applicant to be prosecuted.” The principle underscored is that prosecutorial decisions must be fair, consistent, and not subject to capricious reversal that prejudices the accused. 31. The Court of Appeal in Meixner & Another v Attorney General [2005] 2 KLR 189 emphasized that judicial interference in prosecutorial discretion should be sparing and confined to clear-cut cases. The Court held: “It is the trial court which is best equipped to deal with the quality and sufficiency of evidence gathered to support the charge… It would indeed be a subversion of the law regulating criminal trials if the [High Court] was to usurp the function of a trial court.” Thus, the High Court should focus on the propriety of the exercise of prosecutorial power and not the merits of the case itself. 32. The Petitioner contends that the 2nd Respondent failed to act judiciously by allegedly disregarding the civil case outcome and Absa Bank’s confirmation of the loan’s validity. However, this does not amount to abuse of discretion. The Director of Public Prosecutions (DPP) is entitled and obliged to evaluate all available evidence and may assign different weight to material than the Petitioner considers appropriate. The dismissal of the civil suit does not legally preclude criminal prosecution, as provided under Section 193A of the Criminal Procedure Code, and may not reflect all relevant criminal considerations. Similarly, the bank’s confirmation does not conclusively negate the possibility of internal fraud or forgery. The DPP could reasonably determine that evidence of such conduct justified criminal charges notwithstanding these factors. 33. The Petitioner also cites Republic v Director of Public Prosecutions ex parte Praxidis Namoni Saisi [2016] eKLR arguing that failure to consider exculpatory evidence can demonstrate malice. While this principle is correct, the purported exculpatory facts in the present case are not unambiguous and do not directly negate the alleged criminal conduct. The 2nd Respondent’s assessment that sufficient evidence existed to proceed with charges falls within lawful discretion. Protecting corporate entities from internal fraud is undeniably a matter of public interest; failing to prosecute would arguably constitute dereliction of duty. 34. Having carefully considered the pleadings, the material placed before the Court, and the applicable authorities, I am not persuaded that the Petitioner has demonstrated any abuse of prosecutorial discretion or bad faith on the part of the Director of Public Prosecutions. The legal threshold for judicial intervention in the exercise of prosecutorial power is exacting, and the Petitioner has fallen short of meeting it. The impugned decision to institute criminal proceedings was taken within the constitutional and statutory mandate of the 2nd Respondent- the Director of Public Prosecutions, was informed by evidential sufficiency and public interest considerations, and discloses no collateral or improper purpose. In the circumstances, the prosecution enjoys the presumption of legality and ought to proceed, leaving the merits of the allegations to be tested and determined by the trial court. Whether the Petitioner is entitled to the Reliefs Sought 35. Learned counsel for the Petitioner contended that the refusal to grant the reliefs sought would expose the Petitioner to an unfair or unnecessary trial. This Court is, however, enjoined to strike a careful balance between the individual rights of the Petitioner and the overarching public interest in the due administration of justice. Article 50 of the Constitution guarantees the right to a fair trial, underpinned by the presumption of innocence until the contrary is proved, and affords the accused an array of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 7

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procedural safeguards throughout the trial process. Should the prosecution be infirm or animated by ulterior motives, such defects are matters properly ventilated and tested before the trial court, which is equipped with adequate remedial powers. It bears emphasis that a subjective perception of injustice on the part of an accused does not, without more, render a trial unfair. What is required is a demonstration of actual prejudice or a concrete violation of constitutional rights, which has not been established at this juncture. 36. Conversely, halting the prosecution at this preliminary stage would unjustifiably deprive the complainant and the wider public of the opportunity to have grave allegations adjudicated in accordance with the law. Such intervention is a drastic and exceptional remedy, to be invoked only where the interests of justice so compellingly require. In the circumstances of this case, I am satisfied that the ends of justice will be better served by permitting the criminal process to run its ordinary course, wherein evidence may be duly tested and a judicial determination rendered on the Petitioner’s guilt or innocence. 37. In light of the foregoing analysis, this Court is not persuaded that the Petitioner has discharged the burden of proof placed upon him. The impugned investigations and prosecution have not been demonstrated to contravene the Constitution or to constitute an abuse of the court process. Consequently, the stringent threshold warranting judicial intervention to arrest or terminate a criminal prosecution has not been satisfied. 38. Accordingly, the Petition is hereby dismissed in its entirety. The net effect is that the conservatory orders staying the criminal proceedings are discharged, and the criminal case against the Petitioner may proceed to hearing and determination. 39. Each party shall bear its own costs 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 Petitioner: Mr. Teddy Ochieng Counsel for the 1st, 3rd and 4th Respondents: Ms. Were Counsel for the 2nd Respondent: Mr. Mulati https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19216/eng@2025-12-05 8

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