Victor Arara Were & 6 others v Ethics & Anti-corruption Commission & 4 others

ETHICS & ANTI-CORRUPTION COMMISSION ................... 1ST RESPONDENT OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS .... 2ND RESPONDENT INSPECTOR GENERAL OF POLICE ........................................ 3RD RESPONDENT THE HON ATTORNEY GENERAL ........................................... 4TH RESPONDENT COMMISSION ON ADMINISRATIVE JUSTICE ..................... 5TH RESPONDENT AND KING GROUP COMPANY LIMITED .................................. INTERESTED PARTY KING REALTORS LIMITED ................................................. INTERESTED PARTY LUB PLUS OIL AND ENERGY COMPANY LIMITED ....... INTERESTED PARTY KING CONSTRUCTION COMPANY LIMITED ............... INTERESTED PARTY RULING Introduction 1. Before this Court is the Notice of Motion dated 8th September 2025 filed by the 1st Respondent, the Ethics and Anti-Corruption Commission (EACC). The Commission, established under Article 79 of the Constitution and the Ethics and Anti-Corruption Commission Act, and mandated, inter alia, to investigate and recommend the prosecution of corruption and economic-crime offences, seeks orders that: a. The petition be transferred from the Constitutional and Human Rights Division to the AntiCorruption and Economic Crimes Division at Nairobi for hearing and determination. b. Costs of the application be provided for. 2. The application is stated to be brought pursuant to the Constitution, the High Court (Organisation and Administration) Act, the Practice Directions for the Anti-Corruption and Economic Crimes Division issued vide Gazette Notice No. 10263 of 2016, as amended by Gazette Notice No. 7262 of 2018, and all other enabling provisions of the law. 3. The 1st to 7th Petitioners, who are the Respondents to the present application, oppose it in its entirety. They contend that the petition discloses a purely constitutional cause of action grounded upon alleged violations of their fundamental rights and freedoms guaranteed under the Constitution of Kenya, 2010, and therefore lies squarely within the remit of this Division. They aver that the application is misconceived, devoid of merit, and amounts to impermissible forum shopping, the effect of which would be to undermine their right to a fair, efficient, and expeditious adjudication of their constitutional grievances. 4. In response, the Petitioners place reliance on their petition dated 21st August 2025, the replying affidavit sworn on 30th September 2025 by the 5th Petitioner, Ann Murugi Njoroge, and their written submissions. The 2nd Respondent, the Director of Public Prosecutions, has filed grounds of opposition to the petition contending that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 2

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a. That the petition lacks clarity and precision in setting out the declarations in relation to the 2nd Respondent. b. That no evidence has been advanced by the applicant to demonstrate that the 2nd Respondent has an identifiable stake or legal interest in the suit before this court. c. That the powers of the 2nd Respondent as enshrined in Article 157 of the Constitution of Kenya 2010 and has not exercised his powers thereof to warrant him being enjoined to this suit. d. That instant application together with the petition filed herein is not only misconceived and bad in law but also incompetent as it has failed to set out with reasonable degree of precision that of which the Petitioner complains, provisions said to have been infringed or violated and the manner in which they are alleged to have been infringed or violated as was enunciated in the celebrated case of Anarita Karimi -Versus-Republic (No.1) (1979 1 KLR 154 and Mumo Matemu -Versus-Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012(2013), simply put, the petition filed herein fails the specificity test. e. That the Petitioners petition is devoid of any merits. The same form a classical description of an abuse of the due process of this Honorable court and should be dismissed with costs. Background 5. The dispute arises from investigations conducted by the Ethics and Anti-Corruption Commission EACC into alleged corruption and economic crimes involving the Petitioners and the interested parties. The Petitioners complain that in the course of those inquiries the respondents have violated and continue to threaten their constitutional rights, including the rights to equality and freedom from discrimination, dignity, liberty, fair administrative action, fair trial and association. 6. The Petition seeks, among other reliefs, a. A declaration that the 1st Respondent's actions constitute violations of the Petitioners' rights under Articles 10(1) and (2), 20(2), 21(1), 24, 27(1)(2)(4), 28, 29, 36, 40, 47, and 49(1) (h) of the Constitution of Kenya, 2010, by being selective, unsubstantiated, disproportionate, and contrary to the principles of fair administrative action, equality, non- discrimination, protection of property, and freedom from arbitrary deprivation. b. A declaration that the Respondents' selective targeting of the Petitioners based on alleged political associations, while ignoring similar contractors during the 2017-2022 period, amounts to discrimination under Article 27(4) and a breach of the rule of law and good governance under Article 10. c. A declaration that the threatened summons, arrests, detention by the Respondents, absent compelling evidence, infringe the Petitioners' rights to freedom and security of the person under Article 29, freedom of association under Article 36. d. A declaration that the 1st Respondent in undertaking any investigation or related proceedings exercise administrative powers that must strictly comply with provisions of Article 47 of the Constitution; e. A declaration that the 1st Respondent refusal or failure to provide the Petitioners with a true copy of the Investigation Report despite making use of the said Report in ex parte proceedings amount to a violation of the Petitioners right to access to information. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 3

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f. A declaration that upon demand a suspect or person of interest to an investigation by the 1 and/or the 2nd Respondent is entitled to a copy of any Investigation Report or Finding upon the completion of the investigations or upon its reliance in any Court proceedings. g. General damage. h. Costs of the petition. i. Such further reliefs that this Honourable Court may deen just, fit and expedient to award in the interest of justice. 1st Respondent/Applicant’s Case 7. The 1st Respondent, the Ethics and Anti-Corruption Commission, contends that the petition emanates directly from its ongoing investigations into alleged acts of corruption and economic crime, and therefore properly belongs before the Anti-Corruption and Economic Crimes (ACEC) Division. In the supporting affidavit sworn on 8th September 2025 sworn by Regina Jemutai, it is deponed that the Commission is investigating allegations of conflict of interest and unlawful acquisition of public funds amounting to over Kshs. 700 million by Senator Wamatangi during the period 2017–2022. 8. The Petitioners commenced this constitutional petition on 21st August 2025 seeking, inter alia, conservatory orders to restrain the EACC on the basis that the investigations allegedly violates their constitutional rights. EACC notes that on 25th August 2025 this Court granted urgent ex parte orders restraining them from summoning or prosecuting the Petitioners and fixed the matter for directions and hearing in October. 9. The Applicant’s position is that, on the facts, the “disputed questions relate to corruption and/or economic crimes” and therefore fall within the special jurisdiction of the ACEC Division. Invoking section 10(c) of the Judiciary Act and the Practice Directions issued under Gazette Notice No. 10263 of 2016 as amended by Gazette Notice No. 7262 of 2018, the EACC maintains that all constitutional petitions and judicial-review proceedings touching on corruption or economic crimes “shall be heard by the ACEC Division” and, where filed elsewhere, must be transferred accordingly. Petitioners’/Respondents Case 10. The Petitioners oppose the application, asserting that their cause of action is a constitutional rightsbased claim properly within the jurisdiction of the Constitutional and Human Rights Division. They submit that the petition is “fundamentally a constitutional cause of action” anchored in alleged infringements of rights secured under the Bill of Rights. By virtue of Article 165(3)(b) of the Constitution, they argue, this Division has the constitutional mandate to hear and determine proceedings alleging violation of fundamental rights and freedoms. They further contend that the impugned conduct relates to the fairness and legality of investigative actions undertaken by lawenforcement authorities, and that the ACEC Practice Directions cannot operate to oust or diminish the constitutional jurisdiction conferred upon this Court. 11. They emphasize that the Practice Directions of 2016/2018 apply only to cases “relating to corruption and/or economic crimes” as defined in the relevant statutory framework, whereas the present petition seeks vindication of individual constitutional rights allegedly infringed in the course of a criminal investigation of whatever nature. As such, the Directions, being subsidiary instruments, cannot override the Constitution. Placing reliance in Joseph Karanja Kanji t/a Kagai & Co. v DPP & 13 Others (High Court), the Petitioners maintain that demonstrating the existence of an alternative forum perceived as “better” or more specialized does not divest this Division of its jurisdiction https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 4

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where constitutional questions are properly invoked. The 5th Petitioner, in her replying affidavit, characterizes the application as premised on a “perfunctory” reading of the Practice Directions rather than on any substantive defect in the petition. 12. It is averred that the petition was rightly instituted in this Division given its nature and gravamen, and that the EACC’s motion is a dilatory tactic devoid of legal merit. On that basis, the Petitioners urge the Court to dismiss the Notice of Motion and to allow the petition to proceed before the Constitutional and Human Rights Division. 1st Respondent/Applicant’s Submissions 13. The 1st Respondent submits that the gravamen of the petition concerns allegations of unlawful acquisition of property, unexplained assets, and proceeds of crime within the meaning of the AntiCorruption and Economic Crimes Act (ACECA), and therefore properly falls within the specialized remit of the Anti-Corruption and Economic Crimes Division. It argues that the petition, on its face, repeatedly invokes concepts central to ACECA namely “proceeds of crime,” “unexplained assets,” and financial impropriety and thus amounts to a collateral challenge to ongoing ACECA-related investigations and processes. The 1st Respondent contends that such matters are, by design, to be heard by the ACEC Division in accordance with the Practice Directions established under Gazette Notice No. 10263 of 2016 as amended by Gazette Notice No. 7262 of 2018, whose objective is to ensure the efficient and expeditious disposal of corruption and economic-crime matters. 14. It further submits that previous decisions of the High Court have affirmed that constitutional petitions touching on corruption or economic crimes are to be placed before that specialized Division. In its written submissions, the 1st Respondent asserts that “the proper forum to determine any issue relating to corruption and economic crimes, including the constitutionality of any provision of [ACECA] … is the Anti-Corruption and Economic Crimes Division.” On that footing, it invokes Rule 8 of the Practice Directions and urges that the present petition be transferred to the ACEC Division for coherent and consistent management alongside related proceedings. 15. In further support of its position, the Applicant relies on the High Court’s decision in Ethics & AntiCorruption Commission v. Mbozo (2017), where the Court held that a petition alleging violations of constitutional rights arising from an EACC investigation “fall within the jurisdiction of the ACEC Division as per the Practice Directions,” and directed its transfer accordingly. The 1st Respondent contends that, in light of this authority, no rational justification has been advanced for retaining the matter before the Constitutional and Human Rights Division, and that to do so would be contrary to the mandatory tenor and purpose of the Practice Directions. It therefore prays for an order transferring Petition No. E543 of 2025 to the ACEC Division for hearing and determination. Petitioners’/Respondents’ Submissions 16. The Petitioners submit that their cause of action concerns the alleged infringement of fundamental rights and freedoms, and not the prosecution or defence of corruption offences. They emphasize that the petition is expressly framed as a constitutional petition under Articles 22 and 23 of the Constitution, seeking the enforcement of rights, and therefore falls properly within the mandate of the Constitutional and Human Rights Division. They note that under Articles 20 and 165 of the Constitution, the High Court exercises broad jurisdiction to interpret, apply, and enforce the Constitution; in particular, Article 165(3)(d) vests the Court with original jurisdiction in matters of constitutional interpretation, while Article 165(6) confers supervisory jurisdiction over subordinate courts and bodies exercising quasi-judicial functions. The Petitioners argue that their case does not impugn any conviction or judgment under the Anti-Corruption and Economic Crimes Act, but instead https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 5

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challenges the legality, fairness, and constitutionality of the investigatory and prosecutorial steps undertaken by the EACC matters that are quintessentially constitutional in character. 17. Relying on principles articulated in decisions such as John Florence Maritime Services Ltd v. Cabinet Secretary, Transport & Infrastructure [2021] eKLR, they contend that constitutional petitions and judicial review proceedings serve distinct purposes, and that exceptions to the doctrine of res judicata apply where declining to entertain a constitutional claim would result in injustice. In this regard, the Petitioners maintain that their dispute “falls within the ambit of a constitutional petition,” and that the Constitutional and Human Rights Division is the appropriate and constitutionally mandated forum for its determination. Analysis and Determination 18. The primary issue for determination is whether this Court, sitting as the Constitutional and Human Rights Division, has jurisdiction to hear and determine the petition, or whether it ought to be transferred to the ACEC Division. Subsumed within this issue are the following questions: a. Whether the petition principally relates to corruption and economic crimes or to the enforcement of constitutional rights; b. Whether the Practice Directions confer exclusive jurisdiction on the ACEC Division to hear such matters; and c. Whether, a discretionary transfer is appropriate in the circumstances. 19. Articles 165(1) and 165(3) of the Constitution establish the High Court and confer unlimited original jurisdiction in civil and criminal matters, including jurisdiction to determine questions regarding the interpretation of the Constitution and whether fundamental rights have been denied, violated, infringed, or threatened. Articles 22 and 23 further confer the right to institute proceedings for redress of violations of fundamental rights. The Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others underscored that a court’s jurisdiction derives from the Constitution or legislation, and no court may arrogate to itself or be deprived of jurisdiction except as expressly provided. The Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd reminded courts that “jurisdiction is everything” and must be respected. 20. The High Court (Organisation and Administration) Act empowers the Chief Justice to establish Divisions and manage stations for the efficient administration of justice. Pursuant to this, the Chief Justice issued Practice Directions establishing the Anti-Corruption and Economic Crimes (ACEC) Division, which is intended to facilitate the expeditious determination of corruption and economic crimes matters. 21. The proper interpretation of these Directions has been considered in several authorities. In Joel Asiachi Kusimba v Attorney General; Ethics and Anti-Corruption Commission & another (Interested Parties), Odunga J held that the creation of Divisions under the Act is administrative and does not oust constitutional jurisdiction. Practice Directions guide filing and case management but cannot divest judges of jurisdiction conferred by Articles 22, 23, and 165. 22. Odunga, J (as he then was), continued to state as follows: “ 42. I associate myself with the sentiments expressed in Nakusa vs. Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 to the effect that: “the High Court has a constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 6

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through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to constitutional right.”” 23. The learned Judge further observed that while the Practice Directions may guide where matters related to corruption and economic crimes should ordinarily be filed and how they are to be managed, they cannot be construed as ousting the constitutional jurisdiction of the High Court sitting in other Divisions or stations. He emphasized that issues of venue and distribution of work are administrative matters, distinct from jurisdiction. 24. In Michelle Bibi Fondo & 5 others v Ethics and Anti Corruption Commission & 2 others (Malindi Constitutional Petition No. 11 of 2020), Nyakundi J held that the Practice Directions are aimed at administrative orderliness in the administration of justice and not at ousting the jurisdiction of the High Court under Article 165, and affirmed the court’s jurisdiction to deal with a constitutional petition challenging the conduct of the Commission in the context of corruption investigations. 25. Further, the Court in Ethics and Anti Corruption Commission & another v William Baraka Mtengo & 4 others rejected the suggestion that the Practice Directions had taken away the jurisdiction of the High Court, holding that the Chief Justice has no authority to take away or confer jurisdiction on any court, but only to give administrative directions for the efficient management of cases. As observed: “ The Respondent contends that the said Practice Directions have taken away the jurisdiction of this Court and that the Chief Justice has no power to take away jurisdiction from the High Court. I entirely agree with the Respondent that the Chief Justice has no authority whatsoever to take away jurisdiction from any court or to confer jurisdiction to any court.” 26. The High Court remains one unified court, regardless of the internal divisions created for administrative convenience. The divisions do not alter or limit the original constitutional jurisdiction of the High Court. The existence of an ACEC Division and the corresponding Practice Directions does not amount to an automatic or mandatory “ousting” of other benches, in particular the Constitutional and Human Rights Division, from hearing constitutional or rights-based petitions. It is clear, therefore, that the High Court remains one unified court, and internal Divisions do not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 7

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alter or limit its constitutional jurisdiction. Strict adherence to Practice Directions cannot defeat constitutional guarantees of access to justice, timely determination, or fair trial. 27. The jurisprudence in Tom Ojienda v Ethics and Anti-Corruption Commission [2020] KEHC 9340 (KLR) underscores that the existence of a specialized Division does not divest other High Court judges of jurisdiction. The Court held: “ A judge of the High Court does indeed have jurisdiction to hear all matters in which the High Court has been granted jurisdiction by the Constitution and the laws of the land. … The creation of divisions of the High Court is meant to ensure that matters are heard and disposed in an efficient and effective manner…That is not to say that by establishing the Division, the Chief Justice took away the jurisdiction of the other judges of the High Court to hear the cases listed in the Practice Directions.” 28. Similarly, in Kundu v Director of Public Prosecutions (2023) KEHC 23343 (KLR), the Court affirmed that Divisions are administrative creations, and the High Court remains one court with undiminished constitutional jurisdiction. 29. If a petition raises issues about fundamental rights such as deprivation of liberty, violation of Articles relating to privacy, fair administrative action, fair hearing, double jeopardy, or abuse of process, the Constitutional and Human Rights Division is a proper forum irrespective of the fact that underlying facts may relate to corruption or alleged economic crimes. 30. Turning to the present petition, it is manifestly a constitutional petition framed under Articles 22 and 23, seeking redress for alleged violations and threatened violations of fundamental rights, including the rights to equality, dignity, liberty, fair administrative action, association, and fair trial. The petition challenges the lawfulness of actions by the EACC, the National Police Service, and the Office of the Director of Public Prosecutions in relation to the Petitioners, including allegations that these Chapter Fifteen institutions have been influenced or controlled in breach of their constitutional independence. The Petitioners further allege that the investigations and actions are politically motivated, amounting to retaliation in violation of political rights and the integrity of the electoral system, and that any underlying allegations of corruption are incidental to the core constitutional issues raised. 31. It is common ground that the petition does not seek to determine whether the Petitioners have committed corruption or economic crimes, nor does it purport to exercise trial jurisdiction. Rather, it raises constitutional questions regarding the independence of state organs and the protection of political and fundamental rights, matters squarely within the jurisdiction of this Court. To accept the 1st Respondent’s argument would effectively render the Constitutional and Human Rights Division powerless to hear any constitutional petition merely because the factual matrix involves an investigation into corruption, a result explicitly rejected in Joel Asiachi Kusimba supra. 32. This Court has previously handled numerous matters well over a dozen in number wherein the EACC was cited as a Respondent. In several of these matters, the EACC either failed to enter an appearance or did not actively prosecute the case, yet this Court heard, determined, and delivered judgment on the petitions in their entirety. I am therefore not convinced that the instant petition is so distinct as to warrant transfer to the ACEC Division. 33. The people of Kenya have deliberately enshrined safeguards in the Constitution to ensure that political opponents are not subject to retaliation through state powers, a deficiency that was present under the former Constitution and addressed by the 2010 Constitution. This petition further alleges that persons within the Executive are breaching, or allowing the breach of, the independence of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 8

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three Chapter Fifteen commissions the EACC, the National Police Service, and the ODPP through interference in their constitutional mandate. 34. The retaliation alleged in the instant petition appears to be politically motivated, amounting to the weaponization of state processes to undermine political rights. Such conduct constitutes a breach not only of political rights under the Constitution but also of the electoral system, which guarantees that parties, candidates, and voters may participate freely in a political landscape free of intimidation, contrary to Article 81 of the Constitution of Kenya. This petition underscores the risk that holders of power could use state machinery to intimidate those with opposing views, a scenario the Constitution was designed to prevent. 35. Article 81 of the Constitution of Kenya, 2010 provides for the general principles of the electoral system. In particular, Article 81(a) provides: “ The electoral system shall comply with the following principles- (a) freedom of citizens to exercise their political rights under Article 38;” 36. Article 38 of the Constitution of Kenya, 2010 guarantees to every citizen the right to make political choices, including the freedom to form, participate in, or campaign for a political party or cause. It secures the right to free, fair, and regular elections based on universal suffrage and the free expression of the will of the electors. It further guarantees to every adult citizen, without unreasonable restriction, the rights to be registered as a voter, to vote by secret ballot in any election or referendum, and to seek elective public office or office within a political party and, if elected, to hold such office. 37. The electoral political exercise is part of the electoral process. If someone is intimidating a person just because they hold a different political opinion this amounts to the subverting of the electoral system. The electoral system is not applied at the ballot box but it is in itself a continuous system. 38. Applying these principles, it is evident that the petition before this Court is framed as a constitutional petition under Articles 22 and 23, challenging the alleged violation and threatened violation of fundamental rights. It raises central issues regarding: a. The independence of independent constitutional institutions offices, institutions, and commissions, including the Ethics and Anti-Corruption Commission, the National Police Service, and Office of the Director of Public Prosecutions; and whether they are being influenced or controlled contrary to the Constitution’s demands for independent and fair decision-making; b. Alleged political retaliation using state machinery, including investigatory processes, which threatens political rights and the integrity of the electoral system; and c. Compliance by state organs with constitutional guarantees of fair administrative action, liberty, dignity, and association. 39. The petition does not seek to determine whether the Petitioners have committed corruption or economic crimes; and thus it does not invoke the trial jurisdiction of the ACEC Division. The fact that the factual matrix involves anti-corruption investigations does not convert every dispute touching on such investigations into a matter exclusively for the ACEC Division. 40. Transfer to the ACEC Division is also unwarranted on discretionary grounds. The petition is already case-managed in this Division, affidavits and written submissions have been filed, and no prejudice to the 1st Respondent has been demonstrated. Delay resulting from transfer would prejudice the Petitioners, as matters involving ongoing or threatened violations of fundamental rights https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 9

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require expeditious determination. The overriding objective of the Practice Directions is to ensure just, expeditious, proportionate, and accessible adjudication. Transfer in these circumstances would undermine the objectives and constitutional guarantees of access to justice and timely resolution of disputes contrary to Articles 48 and 159(2)(b)) of the Constitution. 41. I am in full agreement with the findings in Shakeel Ahmed Khan & another v Republic & 4 others [2019], where Thande J declined to transfer an application relating to corruption charges from Mombasa to the ACEC Division in Nairobi, noting that the overriding objective of the Practice Directions is the just, expeditious, proportionate and accessible adjudication of disputes related to corruption and economic crimes, and that insisting on transfer in the circumstances of that case would defeat rather than advance that objective and would undermine the constitutional guarantees of access to justice and fair trial. 42. In the present case, I am equally satisfied that the just, expeditious, proportionate and accessible adjudication of the present dispute favours trial of the constitutional questions raised in this matter by the Constitutional and Human Rights Division. 43. The Petitioners remain the dominus litis and have properly invoked constitutional jurisdiction. Their petition challenges the independence of state institutions and the abuse of state machinery for political retaliation. These central constitutional issues are not subordinate to, nor incidental to, the corruption investigations. 44. To illustrate the point, if the present petition concerned taxation and the alleged violations or threatened violations of fundamental rights arose within the context of investigations touching incidentally on corruption, no question would reasonably arise as to the forum in which the petition ought to be heard; the petition would remain a constitutional cause of action properly falling within the jurisdiction of this Court. Nothing inherent in the mere involvement of the EACC would alter that constitutional character. Where, as here, it is evident even at the interlocutory stage that the petition raises broader and weightier constitutional questions that transcend the statutory mandate of any single agency, the jurisdiction of this Court does not become doubtful. 45. Put differently, if the petition concerned alleged weaponization of regulatory processes by the Kenya Forest Service or the National Environmental Management Authority and which were alleged to have been deployed to harass a Petitioner in the pursuit of political purposes, the appropriate forum would plainly remain the High Court under Article 165 and not the Environment and Land Court under Article 162 of the Constitution, notwithstanding that the factual setting and impugned decisions would touch on land or environmental regulation. 46. In such instances, it is not the incidental statutory framework that determines jurisdiction but rather the core grievance before the Court; namely, whether state power is being used or more accurately misused in a manner that infringes the Constitution and violates fundamental rights. 47. In light of the foregoing, the Application by the 1st Respondent to transfer Petition No. E543 of 2025 to the ACEC Division is without merit and is ripe for dismissal. The petition shall proceed in this Division for directions and further hearing. 48. Orders a. The 1st Respondent’s Notice of Motion Application dated 8th September 2025 seeking transfer of this petition to the Anti-Corruption and Economic Crimes Division is found to be without merit and is dismissed; and b. The costs of the application shall be in the cause. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 10

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Orders accordingly. DATED, SIGNED AND DELIVERED VIRTULLY THIS 3RD DAY OF DECEMBER 2025 BAhatI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner: Mr. Mugambi Christopher h/nb Mr. Mkaricha Counsel for te 1st Respondent: Ms. Wairimu Kamau h/b Ms. Murugi Counsel for the 2nd Respondent: Ms. Ntabo Cpurt Assistant: Ms. Amondi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19234/eng@2025-12-03 11

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