Nichodemus Denishe Ochola v Director of Public & 1 other

that the Court may be properly appraised before determining whether the criminal process should proceed. 6. That the parties do attend before this Court on a date fixed by the Court for case management to explore whether the domestic issues between the Applicant and the Complainant spouse may be resolved or narrowed including through mediation without prejudice to any lawful prosecution decision thereafter. 7. Any further or other orders or directions which the Court may deem necessary in the interest of justice. 8. Costs be in the cause. Grounds Of Application 2. 1. The breakdown of a marriage dispute between spouses has triggered the criminal machinery in a manner that risks weaponizing prosecution to gain leverage in a private conflict rather than to vindicate genuine public safety concerns. 2. The Applicant voluntarily presented himself at the Police Station provided information recorded a statement and complied with a cash bond condition. Interim protection will not shield a fugitive but will structure an orderly resolution. 3. The Applicant is due to take plea on 17th July 2025. Proceeding to plea before disputed facts are clarified and before efforts at settlement are explored may lock the parties into a criminal trajectory that later relief cannot easily unwind. 4. The complainant spouse is alive well and accessible. A brief pause to allow clarification mediation or structured engagement will not endanger her safety yet may prevent escalation of avoidable litigation 5. The Applicant is a career Police Officer of nearly four decades standing with no disciplinary record and now ambulates on crutches due to a duty injury. Forced arrest operations and hurried criminal process would impose exceptional physical and reputational harm out of proportion to the disputed domestic context. 6. Operational Officers have appeared repeatedly while declining to give clear reasons and while complaints appear to shift. Inconsistent signaling raises concern that the criminal process is being used to pressure the Applicant without transparent charge disclosure. 7. A rushed criminal process threatens suspension income loss and public stigma that would directly affect support for the children of the marriage when cooperative alternatives remain open. 8. A short standstill will permit conferencing disclosure and potential settlement thereby avoiding repeated arrest motions mentions bail variations and other contested Applications that would otherwise burden both the lower Court and this Court . 9. The Applicant is ready to attend Court at any time fixed by the Court including early sittings and to engage mediated resolution. Granting short stay orders will channel the dispute through supervised lawful steps rather than ongoing field confrontations that risk escalation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 2

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Supporting Afidavit By The Applicant 3. 1. Applicant herein is a serving Police Officer having joined the service on 15th July 1985 he has served continuously since then and respectfully placed his long record before the Court as context for the relief sought. 3. Over the course of his career he has risen through the ranks through diligence discipline and performance reviews. He has not been the subject of any disciplinary tribunal in all my years of duty. 4. During active service he sustained an injury in the line of duty that now requires him to walk with crutches. He remains fully committed to serving but physical mobility requires planning and orderly engagement when he is required to appear before any authority or Court. 5. He is married to the complainant named in the subordinate Court proceedings. The marriage has unfortunately broken down and they have been living separately. He believe a structured and peaceful resolution of the domestic issues remains possible. 6. He has children to support from the marriage. Continuity of my salary and benefits is critical to their upkeep education and medical needs. Abrupt escalation into contested criminal proceedings without space to engage may jeopardize his ability to meet those responsibilities. 7. He has already presented himself voluntarily at to the relevant Police Station when requested. He was processed and released on Police Bond of Kenya Shillings 15,000/- which he honored and continue to honor. Applicants Written Submissions Introduction 4. 1. The Application is anchored on the simple but profound reality that the parties are husband and wife, and what began as a matrimonial misunderstanding has been escalated into a criminal process. The Applicant prays that the Court exercises its supervisory and constitutional mandate to ensure that the criminal justice process is not weaponized to destroy a family but rather redirected toward reconciliation and restoration. B. Background Facts 1. The Applicant is a career Police Officer who joined the National Police Service on 15th July 1985 and has served for thirty-eight (38) years with an impeccable disciplinary record. 2. He is married to the complainant. The marriage, though strained, subsists. The two have children whose welfare and stability depend directly on the Applicant's continued employment and income. 5. The Applicant suffered a duty-related injury, walks with crutches, and is physically vulnerable. Despite this, he voluntarily appeared before the Police, recorded his statement, and honoured a Police bond of Kshs. 15,000. He has never absconded nor disobeyed any summons. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 3

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6. The Applicant's plea is scheduled before the lower Court. If allowed to proceed, the matter will irreversibly convert a domestic disagreement into a public criminal trial, shattering the remaining chances of reconciliation and gravely prejudicing the children's welfare. 7. The Applicant therefore implores the Court to hold the hand of the criminal process to allow for structured reconciliation or mediation in line with constitutional and jurisprudential guidance. C. Issues For Determination (i) Whether this Hon. Court has jurisdiction under Articles 165(6) and 159(2)(c) [of Constitution]to stay criminal proceedings and direct mediation in a domestic dispute. (ii) Whether the intended prosecution constitutes an abuse of the criminal process. (iii) Whether public interest and the protection of the family under Article 45 [of Constitution] justify the grant of a stay and referral to reconciliation. D. Analysis Of Law, Facts, And Authorities Jurisdiction To Stay Proceedings And Direct Mediation 8. Article 165(6) empowers this Court supervise subordinate courts to ensure the fair and constitutional administration of justice. Article 159(2)(c) obliges all courts to promote alternative forms of dispute resolution including reconciliation and mediation. The two Articles work in tandem: they empower the Court not merely to review errors, but to steer justice away from abuse and toward fairness. 9. The High Court in Republic vs Mohamed Abdow Mohamed [2013] eKLR pronounced that: “ Restorative justice is not a soft option. It is a constitutional imperative that justice be done in a manner that promotes reconciliation where appropriate. The court must encourage parties to resolve matters amicably where the circumstances so permit." 5. In Republic vs Abdulahi Noor Mohamed alias Arab [2016] eKLR, the Court observed that: “ Restorative justice and alternative dispute resolution are legitimate components of our criminal justice system... They must be invoked where public interest allows and where the rights of the victim and society can be preserved through reconciliation." 6. Applying those principles, this case sits squarely within the ambit of Article 159(2)(c) The Applicant and the complainant are spouses in an existing family unit. The complainant's safety is not threatened, the Applicant is cooperative, and the alleged conduct does not involve public violence or matters of national concern. The Court's jurisdiction to stay proceedings and direct mediation is thus well founded in both the Constitution and precedent. The Applicant does not seek immunity from prosecution only a measured judicial direction to allow a lawful and humane alternative consistent with the Constitution's spirit of reconciliation. i. 7. Whether the intended prosecution amounts to an abuse of process The doctrine of abuse of process exists to prevent the use of the criminal law for ulterior motives. In Kuria & 3 Others vs Attorney General [2002] 2 KLR 69, the Court stated: “ A criminal prosecution which is commenced in the absence of proper factual foundation or for extraneous purposes amounts to abuse of process. The court has the power and indeed the duty to prohibit such proceedings." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 4

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8. This principle was reaffirmed in Republic vs DPP & Another ex-parte Justus Ongera [2019] eKLR, where Odunga J. (as he then was) held. “ The Court has an inherent power to prevent its process from being abused or misused. A prosecution mounted to achieve a collateral purpose, or to exert pressure in civil or private dispute, is an abuse of that process." 9. The facts here reveal precisely that mischief. What began as a family disagreement has been reported as a criminal matter. There is no allegation of harm, threat, or public violence. The complainant's grievance is inherently personal and emotional not criminal. The Applicant's voluntary cooperation and spotless service record further negate any suggestion of criminality or flight risk. Yet, the intended plea-taking threatens to brand him a criminal, damaging his professional standing and his ability to provide for the very family the complainant represents. 10. On whether the intended prosecution amounts to abuse of process; Republic vs DPP & 2 Others Exparte Francis Nganga [2020]eKLR; Sonia Kwamboka Rasugu vs Republic [2019]eKLR & Kelly Kases Bunjika vs DPP & Anor [2018] speak to where Complainant and Accused are in a personal relationship or spouses, the justice system must act as reconciler not a wedge to protect dignity of a family. The ODPP should consider reconciliation in the interest of justice and social harmony. National Prosecution Policy 2019 reinforces the ODPP considers nature of relationship between parties, availability of alternative remedies and effect of prosecution on dependants, Respondent’s Replying Afidavit 11. 1. Ms J.Odiela Otsembo SSP deposed That, the Unit received a directive from Inspector General of Police to investigate a complaint from one Basemath Adhiambo Lumumba against the Applicant Mr. Nicodemus Denishe Ochola, a Senior Superintendent of Police based at Vigilance House. The complaint made was about threats to kill, abuse of Officer, infringement of constitutional right to privacy and assault causing actual bodily harm. 2. That, on receipt of the directive, the matter was assigned to Mr. Juma Mashua, AIG, Senior Sergeant Symplicious Wabweire and the author of Affidavit to conduct investigations. 3. That, upon completion, Inquiry File No.67/2021 was opened and the Unit recommended that the Applicant herein be charged with the offence of abuse of Officer, threatening to kill and assault causing actual bodily harm. 4. That, the 1st Respondent perused the file and directed that the Applicant be arrested and charged with three criminal offences of abuse of Officer contrary to Section 101(1) as read with section 36 of the Penal Code, threatening to kill contrary to section 223 (1) of the Penal Code and Assault causing Bodily harm. 5. That, on 11th April, 2023 the Inspector General gave instructions to the Director, Internal Affairs Unit to proceed and charge the Applicant as per the directives of the 1st Respondent directives. 6. That, they arrested the Applicant on the 14th day of July, 2025 and released him on cash bail to appear before Court on the 17th day of July 2025 for plea taking. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 5

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7. That, the Applicant did not attend Court and his advocate informed the Court that he was unwell. The matter was adjourned to 23rd July, 2025 and that's when we were served with an order to stay plea emanating from this Application. 8. That, averments in paragraph 5 of the Applicant's sworn affidavit are denied in totality. The charges approved against the Applicant by the 1st Respondent such as abuse of Officer, threatening to kill and assault causing actual Bodily Harm are serious criminal charges and are not appropriate for ADR. Further such charges are in the interest of the state and not domestic issues as he alleged hence should be resolved through Criminal Court. 9. That, averments in paragraph 10 and 11 of the Applicant sworn affidavit are denied. The complaint against the Applicant was lodged in 2021 but he has never demonstrated willingness to resolve the matter amicably with the complainant to date. Respondents Written Submissions 12. 1. The Applicant moved the Constitutional and Human Rights Court vide Petition number E036 OF 2023 where Hon. Justice LN Mugambi via a judgement delivered on 3rd October 2024 dismissed the petition for want of merit. 2. The Applicant has vide the instant Application come back to Court seeking to stop the imminent plea taking of the Applicant on the grounds that there is possible reconciliation a fact which is disputed by the complainant in the matter. 3. Consequently, the Application is without merit. It raises no bona fide constitutional issue that warrants the intervention of this Court. The Respondents respectfully urges the Court to dismiss the Application in its entirety. 4. The Court of Appeal in Diamond Hasham Lalji & another vs Attorney General & 4 others [2018] eKLR underscored the independence of the DPP in carrying out this mandate by holding thus: “ (41) Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the Courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest cases”. Analysis & Determination 13. The Court considered the rival detailed pleadings and submissions by parties/Counsel on the matter at hand and finds the germane issue to be singly; Should the Plea-taking process regarding this matter, take place, or be adjourned or stopped all together? Jurisdiction 14. Jurisdiction of this Court flows from the Constitution of Kenya. Article 165 (3) (a)-(e) of the Constitution reads as follows: 3) Subject to clause (5), the High Court shall have— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 6

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(a) unlimited original jurisdiction in criminal and civil matters; (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;……………………. 15. The Constitution grants every person the right to access justice Art 48 and through filing a case matter or claim in Court Art 22. Therefore, the Court is obligated to read hear and determine the matter placed before it without preempting the Constitutional right of a person to be heard; granted fair hearing Art 50. The Constitution defines exercise of judicial authority Art 159. 16. The Constitution similarly grants at the various legal institutions in the Criminal Justice System legal mandate to carry out Constitutional and Statutory mandate. The ODPP is independent in exercising decision to prosecute or not Art 157 and National Police Service Art 244-245.Walingo v Directorate of Criminal Investigation & 4 others; Seno & another (Interested Parties)(Constitutional Petition E028 of 2022) [2024] KEHC 2889 (KLR) (21 March 2024) (Judgment 17. The pleadings herein, the Applicant has not/does not raise an issue with any irregular conduct of investigations culminating to arrest and arraignment, but makes plea that in light of imminent adverse impact on his career marriage family and on his physical health, the Plea-taking process is halted to give parties opportunity to resolve matrimonial and other related issues amicably. 18. The Applicant gave detailed account of how the circumstances leading to his arrest and arraignment has imminent adverse impact on him and takes the view that the matter relates to member of his family, a family matter that ought to be given opportunity to facilitate amicable resolution and criminal sanction should be last resort. The Applicant posits that criminal system is weaponized to ostracize him, his family, career, health and future prospects. 19. The Respondent detailed account of the receipt of complaint from named Complainant and victim of threats to kill, abuse of office, infringement of constitutional right to privacy and assault causing actual bodily harm. Thereafter, the process of investigations was undertaken and the investigation file placed before Office of IG and onward transmission to ODPP who on perusal found relevant charges to prosecute the Applicant. The Applicant was summoned and His Advocate informed The Investigation Team that High Court Petition E36 of 2023 restrained arrest and plea-taking until determination of the Petition. The Respondent attached all documents to confirm the process of investigations upto the approval of charges and arraignment of the Application to the Response. 20. On 3/10/2024, the Petition was dismissed, the Applicant was arrested on 14/7/2025 for plea-taking on 17/7/2025 and was released on cash bail and thereafter the Applicant was said to be unwell and the instant Application has been in place staying any precipitate action until determination. 21. This Court on 18/7/2025, certified the Application to be served to Respondents and to file and serve the Responses within requisite period, noted at the outset it was a family matter between spouses and in the spirit of Article 45 and 159 of the Constitution impressed upon parties/Counsel to pursue mediation first before prosecution. 22. On 28/7/2025, the ODPP informed Court that decision to prosecute was made on 13/12/2022 and was reaffirmed on 19/5/2025. The Applicant moved the High Court through Judicial Review E036 of 2023 which was dismissed by Hon. Mugambi J. The Applicant through Counsel implored the Court to grant order of Court annexed mediation. The Complainant told the Court that the matter has gone on for 5 years and she was/is not interested in ant negotiations/mediation process. 23. The Court recognizes that parties/Counsel cannot be forced to engage in ADR/AJS processes; although they are legal processes for amicable resolution of disputes in specific cases; they are voluntary https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 7

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processes and more so one party cannot negotiate or mediate alone. But legally, especially in relation to family matters; the opportunity ought /was given as a preliminary step before any other process. 24. The Applicant’s request for stay of any plea taking pending further orders of this Court and the complaint record and any investigation abstracts relied upon so that the Court may be properly appraised and allow case management for mediation is considered as follows; This Court considered the following documents and material disclosure; a. The letter of complaint dated 20/4/2021 of death threats outlining details of phone messages and Complaints attempts to report to Police Stations that refused to record OB or assist. b. The Letter of 3/5/2021to Inspector General forwarding the Complaint c. The letter of 24/11/2021 to Inspector General from Internal Affairs Unit on the said Complaints. Of importance; Data Analysis confirmed the messages complained were actually sent to Complainant by Applicant. d. The Letter dated 25/11/2021 from Office of IG to ODPP to peruse the investigations and give directions. e. The letter of 13/12/2022 from ODPP to Internal Services Unit preferring charges against the Applicant. f. Constitutional Petition E036 of 2023 judgment delivered on 3/10/2024 g. The Charge Sheet/Information of Proposed charges against the Applicant. 25. The above outlined correspondence, documents, reports and CP Judgment of the High Court, disclose detailed legal process in investigations and intended prosecution. The Applicant alleged the Criminal System was weaponized to achieve other ends other than justice of the case implying malice and unfairness to him in the process. Apart from alleging so, there is no evidence adduced to confirm that the due process of law was illegally or irregularly applied. 26. The Complainant made reports of harassment, violence and threat to life and security and under the Constitution which protects each party’s rights, the Complainant is entitled to right to life Art 26(1), equal benefit and protection of the law 27. Art 27 (1) human dignity Art 28 & freedom of movement and residence Art 39 of the Constitution. The Complainant as a victim is also protected under Victim Protection Act that provides; Section 2 (b) of the Act very victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken; 28. The Court considered the events culminating to the report and investigation of the matter and the Complainant informed Court that she did not wish to participate in mediation or negotiation. The Court respects her position. The parties cannot be forced to reconcile or amicably settle the matter. The law takes its course to its logical conclusion. 29. The Applicant submitted that there was mischief as family disagreement was reported as a criminal matter. There is no allegation of harm, threat, or public violence. The complainant's grievance is inherently personal and emotional not criminal. 30. The Complaint was lodged by Complainant/Victim after several attempts to have the matter handled in various Police Stations failed. Reports from investigations conducted disclosed criminal offences. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 8

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The Investigations were referred to Director of Public Prosecution who perused and gave directions of the possible criminal offences preferred against the Applicant. 31. In the case of Maina & 4 others v Director of PublicProsecutions & 4 others (Constitutional Petition E106 & 160 of 2021 (Consolidated)) [2022] KEHC15 (KLR) stated as follows: “ … [83] In that regard, the Court of Appeal in the case of Commissioner of Police & another vs Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that: Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged. By the same token and in terms of article 157(11) of the Constitution quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the inspector general undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. 32. In the instant case, there is no evidence of misuse or misconduct of Investigation and Prosecution mandate and processes and hence there is no interference justified by the Court on this matter. Secondly, the same /similar issue(s) was/were raised in High Court Constitutional PetitionE036 of 2023 paragraph72 73 74, that the 3rd Respondent namely IG was instigated by the 1st Respondent namely; the Complainant to use criminal law to settle scores of what is essentially a matrimonial dispute between them. The Court after carefully reviewing the material presented by both parties found no tangible evidence of malice concretely laid before the Court. 33. These are findings and orders of Court of equal competent concurrent and similar jurisdiction. What was raised as unconstitutional before the Constitutional and Human Rights Division is the same as what is raised as misuse of criminal system in this Court. Therefore, this Court cannot legally arrogate itself jurisdiction to set aside a legal finding of another similar Court. Disposition 1. The Application to seek negotiation/mediation process before arrest arraignment and criminal trial has been exhausted; granted as interim Court order on 18/7/2025 and to-date there has been no progress and these are voluntary legal processes. 2. The Investigations and impending prosecution have been in accordance with Constitutional and Statutory legal mandate of National Police Service & Office of Director of Public Prosecution; no evidence of ulterior motive, malice or misuse of authority proved. 3. The Application is dismissed and law takes its course to logical conclusion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 9

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RULING DELIVERED SIGNED DATED IN OPEN COURT CRIMINAL DIVISION-MILIMANI ON 15/12/2025 VIRTUALLY/PHYICALLY. M.W.MUIGAI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19291/eng@2025-12-15 10

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