Republic v Director of Public Prosecutions & 3 others

Making a document without authority contrary to section 357(a) of the penal code, Forgery contrary to section 345 as read with 349 of the penal code Laws of Kenya, Forgery of stamp contrary to section 352(a) of the penal code, Obtaining registration by false pretenses contrary to section 320 of the penal code, Uttering a false document contrary to section 353 of the penal code in Milimani Chief Magistrates Criminal Case No. E476 of 2023, Republic versus Francis Nyaga Njeru. 2. Prohibition directed at the 1st Respondent or through officers' subordinate to him, prohibiting him from carrying on with the further prosecution of the Applicant in Milimani Chief Magistrate's Criminal Case Number E476 of 2023 or any other proceedings that may be instituted on the same basis and touching on the subject matter of the impugned investigations. 3. Prohibition directed at the 3 Respondent or through officers' subordinate to him prohibiting him from carrying on with any further investigations touching on the applicant Francis Nyaga Njeru. 4. Prohibition to prohibit the 2"' Respondent from taking evidence, conducting proceedings or carrying on with the trial of the Applicant in Milimani Chief Magistrate's Criminal Case No. E476 of 2023 Republic vs Francis Nyaga Njeru any other criminal proceedings that may be instituted on the same basis and touching on the 1 Applicant relating to the subject matter of the impugned investigations and/or allowing the 1 and 3 Respondents to prosecute any other criminal case relating to the property known as Land Reference Number 3734/27 (L.R No. 3734/3/22) situated along Muthangari Road in Lavington Area, Nairobi. (hereinafter "the property"). 5. The costs of this application be in the cause. The Applicants’ Case; 2. The application is predicated on the Statutory statement and the Verifying Affidavit sworn by Fran cis Nyaga Njeru dated 3rd July, 2023. 3. A report was made by Mr. Naresh Kumar Sobhgyachand made a report at the 2nd Respondent's office to the effect that the 1st Applicant defrauded him of the property. 4. On Thursday 22nd June, 2023 officers under the direction of the 1st and 2nd Respondent arrested the Applicant. 5. The 1st applicant was to appear in Court and take a plea on 38 counts on the 29 June 2023 vide Criminal Case No. E476 of 2023 but he did not attend as has been admitted at the Nairobi Hospital since 25 June 2023. 6. There is an ongoing land ownership dispute in Nairobi ELC Case No. No. E054 of 2020 Victor Owuor Ayoki & Another vs. Multistage Investment Limited & 7 others in respect to the property. 7. In the said ELC suit wherein parties have closed pleadings and a hearing date has been set on the 4thDecember 2023 which will be a must proceed matter. 8. There is every indication that the 1st and 2nd Respondents are acting at the behest of Mr. Naresh Kumar Sobhgyachand with whom they have conspired with intent to use the police to gain an unfair advantage before the ELC Court in order to establish his competing case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 2

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9. It is vital that this Honourable Court intervenes to consider and determine the question as to whether the Respondents have acted properly within their mandates when ordering the prosecution of the Applicant and whether the criminal proceedings are an abuse of the Court process. 10. There is every indication that the 1st and 3rdRespondents are acting at the behest of unknown third parties with whom they have conspired with intent to use the police and the Criminal justice system to harass the Applicants and in essence defraud his company of proprietary rights over the land through intimidation. 11. In purporting to prefer charges against the Applicant and alleging criminal offences relating to ownership of the Property, the 1stRespondent has abused its constitutional powers and the effect of the criminal proceedings will result in an abuse of the court process in disregard to public interest, against the interest of the administration of justice; and have not taken account of the need to prevent and avoid abuse of court process. 12. This will aid third parties to gain an unfair benefit and advantage as against the Applicants during the pendency of ownership wrangles in the Environment and Land Court where the same matters are substantially in and pending determination and may convolute the dispute as the criminals are now busy subdividing the applicant's land. 13. This Court has the inherent power to stop a prosecution that amounts to an abuse of the criminal Justice system, of the court process, are oppressive and vexatious. 14. Article 157(11) of the Constitution provides that; “ In exercising the powers conferred by Article 157, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” 15. The ODPP was not guided by the above principles before making a decision to prefer charges against the Applicant. The dispute that culminated to the preference of the said charges is in relation to suit land herein above which is a land ownership dispute pitting the ex parte and Mr. Naresh Kumar Sobhgyachand. 16. The purported charges which were commenced whimsically relates to the manner in which the Applicant acquired the said title, a question which will be properly answered by the Environment and Land Court in its final judgment upon hearing the parties. 17. The 1st and 3rd Respondents have denied this court the opportunity to see the evidence, if any relating to the ownership of the land in support of the criminal charges facing the applicant. 18. They submit that 38 counts on the Charge Sheet are prejudicial to the 1st applicant and this against the principle of though not invariably no more than a maximum of 12 counts that should be laid in one charge sheet which was dearly laid down in Kipleting Keino & another Vs Republic. 19. There is serious abuse of power in the criminal case herein in the subordinate Court.The 1st respondent is bestowed with power to confirm that investigation report forwarded to it by the 3rd respondent is sufficient to recommend charges. This power is not absolute. 20. They submit that while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, it is not to be exercised https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 3

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whimsically. While the Court can review the DPP's decisions for rationality and procedural infirmities, it cannot review them on merit. 21. Reliance is placed in R v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, this Court explained the application of this principle in the following words: “ It is for this reason that while the DPP has complete discretion and full autonomy to determine whether and against whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has table case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp. Kipngeno Arap Ngeny (High Court Civil App. No. 406 0f 2001), the Court stated thus: i. 22. A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.” In the decision of Republic v County Director of Education, Nairobi & 4 others Ex-parte Abdukadir Elmi Robleh [2018] eKLR learned judge observed as follows in paragraph 27 of his judgment; “ In my view the notice contemplated under Article 47 of the Constitution as read with section 4(3) of the Fair Administrative Action Act must not only be prior to the decision but must also be adequate and must disclose the nature and reasons for the proposed administrative action.” 23. Reliance is placed in the case of Geothermal Development Company Limited vs. Attorney General & 3 Others (2013] eKLR it was held that: “ Article 47 enshrines the right of every person to fair administrative action. Article 232 enunciates various values and principles of public service including "(c) responsive, prompt, effective, impartial and equitable provision of services" and "transparency and provision to the public of timely, accurate information." 24. They submit that as a component of due process, it is important that a party has reasonable opportunity to know the basis of allegations against it. Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to present a response. This right is not limited only in cases of a hearing as in the case of a court or before a tribunal, but when taking administrative actions as well. (See Donoghue v South Eastern Health Board [2005] 4 IR 217). Hilary Delany in his book, Judicial Review of Administrative Action, Thomson Reuters 2nd edition, at page 272, notes that, "Even where no actual hearing is held in relation to the making of an administrative or quasi-judicial decision, an individual may be entitled to be informed that a decision which will have adverse consequences for him may be taken and to notification of the possible consequences of the decision." 25. They submit that in many jurisdictions around the world, it has long been established that notice is a matter of procedural fairness and an important component of natural justice. As such, information https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 4

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provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be. 26. Reliance is placed in Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJon3/11/06) (HCK) (2006] 2 KLR 553 it was held: “ The Court observes firstly that the rules of natural justice "audi alteram partem" hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision.” 27. Further, they submit that the said decision was dearly based on irrelevant factors, failure to consider relevant factors, was irrational and was breach of the principle of proportionality. 28. It is their submission that clear that the 1 and 3 respondent's actions were tainted with malice and illegalities. The decision miserably fails the test set out in our Constitution as already enunciated above. It also goes contrary to the principles of natural justice that have indeed defined the arena of administrative law for ages. 29. They submit that the appropriate remedy is that of quashing the impugned decision to prosecute the ex-parte applicant and to prohibit from taking evidence, conducting proceedings or carrying on with the trial of the Applicant in Milimani Chief Magistrate's Criminal Case No. E476 of 2023. The 1st & 3rd Respondents’ Case; 30. It is their case that the subject matter of the Application and the Petition are live before the Milimani Chief Magistrate’s Courts vide MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU. They argue that the existence of a civil suit does not any way estop the Office of the Director of Public Prosecutions from instituting criminal proceedings against a person if the ingredients of the offence one is charged with are met and the evidence supports the charge therein. 31. According to them, the Applicant in his Application incorrectly lays out the law in paragraph 10 of his Application. The Law as it was then held by Justice M.K Ibrahim (as he then was) in Kipleting Keino Cheres & Another v Republic [2006] eKLR was that: “ …However, it is my opinion that the said recommendations regarding a maximum of 12 counts in any single case does not lay down a mandatory direction but is one for precaution in order to ensure a fair trial of an accused person. This ought to be the usual trend but is not invariable. The court itself stated “.....Usually, though not invariably, no more than twelve counts should be laid in one charge sheet.....” (emphasis mine) This still recognizes the powers and discretion of the prosecution in preferring charges, preparing the charge sheet and prosecuting. However, if this power and discretion is exercised leading to overloading of a charge sheet that could lead to prejudice, it would be subject to challenge and intervention by the courts…” 32. They argue that the charge sheet as prepared in the Criminal matter is clear and sets out specific counts that are comprehensible and not overloaded. The Accused therein can understand the counts and defend himself as envisioned under Article 50 of the Constitution of Kenya, 2010. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 5

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33. According to them the 1st Respondent subjects each and every matter before him to the evidential test and the public interest tests as outlined in the National Prosecutions policy and the Decision to Charge guidelines. The criminal case MCCR/E476/2023 Republic v Francis Nyaga NjerU like all cases was subjected to the test and the accused person was found culpable. 34. They submit that the 1st Respondent, the Director of Public Prosecutions, is an independent Office holder under Article 157(10) as read with Article 248(1) of the Constitution of Kenya,2010, and consequently, does not require the consent of any person or authority for the commencement of any proceedings and in the exercise of his powers and functions, does not act under the directions and/or control of any person or authority. 35. They urge this Honourable Court should vacate its orders of stay of the lower court case MCCR/ E476/2023 Republic v FRANCIS NYAGA NJERU as the allegations as set out in the Applicant’s Application do not meet the high standard set by the Court of Appeal in Gordon Ngatia Muriuki v DPP & 2 Others [2017] Eklr where the Honourable Court set out instances where a court can issue a stay or freeze proceedings of a court of law exercising criminal jurisdiction in instances: “ …Courts are reluctant to freeze proceedings before a court of law that has jurisdiction to try criminal cases; only in instances where there are trumped up charges that cannot be founded in law or the prosecution is not undertaken according to law, or it is actuated by malice and meant to harass the appellant, having no basis at all in law and fact…” 36. They submit that the court should kindly appreciate the court’s considerations in Patrick Muturi Ihungi v Inspector General of Police & 2 others; Namoya Interested Party Petition No. EP40 of 2021 where it was held that: “ ..The inherent jurisdiction of this court to stop investigations or a prosecution is to be exercised only in exceptional circumstances…” 37. It is their case that the Applicant herein has not shown any exceptional circumstances that require this Honourable Court to stay the matter in the lower court as the Honourable Chief Magistrate at Milimani is a fair adjudicator and has all the skills to adjudicate over 38. They rely on the case of the Commissioner of Police & the Director of Criminal Investigations Department & another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR, the Court of Appeal stated resoundingly that: “ …..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. See Githunguri v Republic [1985] LLR 3090. It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 6

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tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua V. R. [2002] 1EA 205. See also Kuria & 3 Others V. Attorney General [2002] 2KLR.” 39. Neither the Inspector General of the National Police Service nor the Director of Public Prosecutions has mishandled any aspect of the lower court matter MCCR/E476/2023 Republic v FRANCIS NYAGA NJERU 40. The 1st Respondent is driven only by his constitutional mandate as enshrined in Article 157 of the Constitution of Kenya, 2010 and his constitutional obligation to uphold the public good. 41. The criminal proceedings were instituted by competent officers after following all due process of law and the decision to charge the Applicant in MCCR/E476/2023 Republic v Francis Nyaga Njeru was made after following due process. 42. They argue that the law requires that officers of the 1st Respondents peruse the evidence on record and only charge an accused person based on the evidence at hand. This is the process followed by the office of the 1st Respondent in all criminal matters. 43. They argue that the application is an attempt by the Applicant herein to appeal the 1st Respondent’s decision to charge. 44. The Constitution of Kenya, 2010 jealously safeguards the 1st Respondent’s independence on the decision to institute criminal charges. 45. It argues that there is no likelihood that the officers of the 1st and 3rd Respondents have been compromised as they are both steadfast servants of justice. 46. The lower court is well equipped to adjudicate criminal matter MCCR/E476/2023 Republic v Francis Nyaga Njeru and they would like the matter to proceed before the lower court as the record is before that court and as the trial court they are well suited to adjudicate the matter. 47. It is their case that the Applicant is attempting to stop the 1st, 2nd and 3rd respondents from enforcing their constitutional and statutory duties. 48. They argue that it is in the public interest that complaints made to the police are investigated and the 1st Respondent is allowed to enforce its Constitutional mandate whenever a matter meets the tests as described in the necessary laws. 49. They submit that the Applicants herein have not provided any proof to substantiate his rather lofty accusations against officers of the 1st and 3rd Respondents. The 1st& 3rd Respondent’s Submissions; 50. It is submitted that the principles for Judicial Review were set out in a land mark case of; Republic Vs Kenya National Examination Council Ex parte Gathenji and others Civil Appeal No.266 of 1996, where the Court of Appeal stated inter alia: “ It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted un-procedurally, that his decision was unreasonable and that the impugned decision was illegal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 7

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Judicial Review is about the decision-making process, not the decision itself. The role of the court in judicial review is supervisory Jurisdiction. It is not an appeal. Judicial Review more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the process followed by the decision-maker arc proper, and the decision is within the confines of the Law, a Court will not interfere." 51. In the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR the Court of Appeal held that: “ Judicial Review is concerned with the decision-making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itselfsuch as whether there was or there was not sufficient evidence to support the decision.” 52. They submit that from the above cited cases it is clear that in order for the applicant to succeed in an application for judicial review the applicant must demonstrate that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. 53. They submit that the court should concern itself with process of the decision making and not the merit of the decision being challenged. 54. Article 157 (6a) of the Constitution of Kenya provides that: “ The Director of Public Prosecutions shall exercise state powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged 10 have been committed.” 55. Under Article 157(10) of the Constitution provides; “ The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his powers or functions, shall not be under the direction or control of any person or authority.” 56. They submit that from the foregoing there is no doubt that the 1st Respondent is an independent office clothed with the mandate of instituting and undertaking criminal prosecutions in the public interest in all courts other than the court martial. 57. They also submit that the 2nd Respondent is clothed with both constitutional and statutory mandate to investigate every criminal complaint reported or lodged with it. 58. Section 24 of the National Police Service Act provide; The functions of the Kenya police services shall be a. Provision of assistance to the public in need b. Maintenance of law and order c. Preservation of peace d. Protection of life and property https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 8

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59. e. Investigation crimes f. Collection of criminal intelligence g. Prevention and detection of crime h. Apprehension of offenders i. Enforcing of all laws and regulations with which it is charge They place reliance in the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated: “ It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities.” 60. On the other hand, members of the public are also morally obligated to report incidents of crime to the and DCI. 61. In the case of Republic v The Commissioner of Police the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Nairobi, in determining whether the ODPP and DCI had abused their statutory and constitutional powers, the learned Judge stated that: “ the Police have a duly 10 investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. 62. It is their submission that in the instant case, the applicant on 19th January, 2019, reported allegations that unknown people were claiming land reference LR3734/27 belonging to Multistage Investment limited where is a director together with his wife the 2nd applicant while the complainant Naresh Kumar Sabhagyachand Metha on 30th January 202o Reported allegation of fraudulently registration of title of land reference number IR 3734/27 belonging to Multistage Investment limited where is one of the a director consequently the 3rd Respondent undertook a lawful duty by investigating the complaints that had been lodged by the both parties. In fact, the Applicants have failed to demonstrate that the 3rd Respondent undertook investigations into the complaint lodged by the Interested party through coercion and without regard to the standing orders. 63. They submit that it is noteworthy that in compliance with the principles of natural justice, the Applicants were summoned by the 3rd Respondent and given an opportunity to present their version of the incident and recorded statements. 64. Upon concluding investigations, the 3rd Respondent established that there was a reasonable suspicion that an offence had been committed, hence prompting them to forward the investigation file to the 1st Respondent for review and directions. 65. Reliance is placed in the Michael Monari Case (Supra) the court stated that the police only need to establish reasonable suspicion that an offence had been committed before any charges can be preferred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 9

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66. In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) Others, Petition No. 7 of 2014 High court, Murang'a the court stated as followsIn my view, as long as the enabling legislation is constitutional, the respondent 's actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates. 67. They submit that in the instant case, the 3rd Respondent commenced investigations upon receiving a complaint lodged by the Interested Party and the applicant; the 1st Respondent instituted the Criminal proceedings according to his constitutional mandate upon satisfying himself that the evidence on record was sufficient to mount a criminal trial, and that it would be in the public interest to do so. 68. They submit that the 1st Applicant is charged with 38 counts including conspiracy to defraud contrary to section 37 of the Penal Code, forgery contrary to section 34 as read together with section 349 of the Penal Code. 69. The said offences arose from the same set of facts. The accuracy or correctness of the facts gathered in an investigation can only be assessed and tested by the trial court seized with the matter. 70. They submit that the applicants have not placed any evidence to illustrate that the offence in question is unlawful or that the Respondents acted in excess of their mandate. 71. Reliance is placed in the Michael Monari case (supra) the court further said that: As long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner, the High Court would be reluctant to intervene. It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party..... it would be improper for this court to try and/or attempt to determine (he intended criminal case which is not before it. 72. They submit that there is no evidence to show that the Respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants. 73. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving punishment 74. The Applicants have failed to demonstrate illegality, irrationality or procedural impropriety in a manner that demands the intervention of this honourable court through Judicial review. 75. It is their submission that the grounds in support of the application as set out in the Statement of facts together with the verifying affidavit and the annexures thereto all amount to evidence. 76. They submit that the matters raised by the ex parte applicants in the pleadings filed herein form the basis of their defences which should be raised before the trial court and as such cannot be raised before the High Court in the manner proposed herein. 77. It has not been demonstrated that the ex parte applicant will not be accorded a fair trial before the subordinate court to warrant the granting of the orders sought. 78. It has neither been demonstrated that the ex parte applicant is likely to be denied the rights as aforesaid nor afforded a fair trial as envisaged under the law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 10

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79. It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred or preferred against the applicant. 80. It would be improper for a judicial review court to "try" or attempt to determine the intended criminal case which is not before it or simply delve into the arena of trial and consequently usurp the role of the trial court. 81. Further when an applicant alleges excess of jurisdiction on the part of the respondents, breach of natural justice, or that the 1st Respondent considered extraneous matters or were actuated by malice, then it is incumbent upon the applicant to prove with evidence such allegations. None of the allegations by the applicant contained in the Notice of Motion herein have been proved and as such the application must fail. 82. They further submit that an order of prohibition is an order of the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. 83. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of proceedings. (See: Kenya National Examination Council and the Republic, Nairobi, Court of Appeal Civil Appeal number 266 of 1996). 84. It submits that the ODPP is conferred with State powers of prosecution under Article 157 of the Constitution of Kenya 2010 and as such, the charges sought to be quashed were preferred pursuant to those powers. 85. It has not been demonstrated that the ODPP acted in excess or without powers. 86. They submit that the High Court cannot take the place of the trial Court established under Articles 162(4) and 169 of the Constitution of Kenya 2010 and Judicature Act Cap 8 of the Laws of Kenya. 87. An order of prohibition looks at the future such that, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision. (Kenya National Examination Council and the Republic, Civil Appeal number 266 of 1996. Quoted above) the Applicants alleges that the criminal case has been instituted to make them submit to a civil suit. The High Court in Kuria 3 others VAG (2()02) 2 KLR appreciated the validity of existence of concurrent civil and criminal proceedings when it made the following findings: - 88. It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the Applicant are under serious threat of being undermined by the criminal prosecution. In the absence of concrete grounds.... it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. 89. It is a laid down principle that this court cannot take in the evidence from an applicant who has been charged in the lower court and purport to grant orders of prohibition as a result. This court has clearly stated that it is the duty of the trial court to take evidence both from the prosecution and the defence and to weigh that evidence and determine the case in one way or the other. This, on the part of the applicant amounts to placing the cart before the horse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 11

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90. They submit that an order of Certiorari will issue to quash a decision made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. (See: Kenya National Examination Council and the Republic, Nairobi, Court of Appeal Civil Appeal number 266 of 1996)." 91. The 1st respondent is mandated under article 157 (6) of the constitution to institute and undertake criminal proceedings against any person before any court other than the court martial and exercise of this mandate cannot be interfered with. Equally the police under Article 245(4) of the Constitution have a mandate to investigate any offence alleged to have committed by any person. 92. Moreover, it is submitted that the applicant has not demonstrated that in undertaking investigations into the complaint lodged with the ODPP and in making the decision to prefer criminal charges against them, either the 3rd respondent or any member of staff of the 3 respondent acted without or in excess of the powers conferred upon them by the law or have infringed, violated, contravened or in any other manner failed to comply with or respect and observe the provisions of the Constitution of Kenya 2010 or any other provision thereof or any other relevant provisions of the law. 93. The Applicant further complains that the ODPP charged them with 38 counts of against the principle no more than 12 counts that should be laid in one charge sheet. 94. It submits that the law governing joinder of charges is prescribed under section 135 of the Criminal Procedure Code which provides that: 95. (1) Any offences, whether frivolous or misdemeanours, may he charged together in the same charge or enjoined if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character. (2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall he set out in a separate paragraph of the charge or information called a count. (3) Where, before trial, at any stage of a trial, the court is of the opinion that a person accused may be embarrassed in his defence by reason of being charged with more than one offence in the same charge or information, or that for any other reason it is desirable to order that the person be tried separately for any other or more offences charged in a charge or information, the court may order a separate trial of any count or counts of that charge or information. They conclude their submissions by pointing out that the 1st respondent has demonstrated that the Director of Public Prosecutions acted within his powers under the Constitution and the applicant's right have been safe guarded, the same will be guarded during the trial. The 2nd & 4th Respondents’ Case: 96. They oppose the application on the grounds that the application as drawn and taken out as against the respondent is incurably defective incompetent and is otherwise an abuse of court process. They argue that the Application as drafted offends Article 160 (5) of the Constitution 2010 and Section 6 of the Judicature Act. 97. They argue that it is an appeal disguised as a judicial review application. 98. Judicial review cannot be used to curtail or stop statutory bodies of public officers from the lawful exercise of power within their statutory mandates. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 12

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99. They argue that the application is based on contradictory allegations which borders on mere belief, suspicion and speculations and hence incapable of any Judicial Review determination. The 2nd and 4th Respondents Submissions; 100. They submit that the High Court’s jurisdiction in judicial review is circumscribed by the provisions of the Law Reform Act which confers to the court the jurisdiction to issue any of the three judicial review orders. 101. Section 8 of the Act provides that the High court shall not issue any of the orders in the exercise of its civil or criminal jurisdiction, it goes further to state that the orders will be issued in any case where the High Court in England is by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous provisions) Act, 1938, of the United Kingdom empowered to make an order of Mandamus, Prohibition or Certiorari the High Court shall have power to make like order. 102. This has led to the development of fairly well settled criteria for issuance of the orders; these include illegality, impropriety of procedure and irrationality (the three “I’s”) see Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43. Additionally, the ground upon which the Court grants judicial review were stated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where it was held: “ In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.........Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.” 103. The Attorney-General submits that it is incumbent upon a party in a judicial review application who seeks the issuance of any of the orders to proof breach of any of the above criteria for that party to succeed in their claim. 104. Reliance is also placed in Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that; “ the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 13

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subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter inquestion. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.” 105. The High Court in Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR held that; ‘The purpose judicial review proceedings is to ensure that the individual is given fair treatment by the authority to which he has been subjected and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court” 106. Korir J in the case of Republic v Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR set out the established reach of judicial review in Kenya thus; “ The reach of judicial review is now well established. In the case of Council Of Civil Service Unions V Minister For The Civil Service [1984] 3 ALL ER 935Lord Diplock summarized the scope of judicial review thus:“Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action are subject to control by judicial review. The first ground I would call "illegality," the second "irrationality" and the third "procedural impropriety.”…….. By "illegality" as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd, v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” 107. In judicial review therefore, the court’s jurisdiction is limited to applying the three tests of “legality”, “rationality” and “procedural propriety” to the decision under review and once the decision passes the tests the court has no business taking any further step in respect of that decision. There is always a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 14

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temptation to descend into the arena and substitute the judge’s decision with that of the public body whose decision is under attack. A judge should, however, avoid this temptation by all means least he be accused of abusing the powers given to him to review the decisions of subordinate courts and tribunals. 108. Reliance is also placed in The Court of Appeal in Grain Bulk Handlers Limited V J. B. Maina & Co. Ltd & 2 Others [2006] Eklr summarized the purpose of judicial review by stating that: “ Judicial Review jurisdiction regulates the process by which a decision-making power given by the law is exercised by the person or body given the jurisdiction. The subject matter of Judicial Review is the legality of such decisions.” 109. It is submitted that from the foregoing it is clear that in judicial review, the court does not exercise its appellate powers. 110. It mainly looks at the decision-making process to ensure that the citizen who has come into contact with an administrative body or tribunal has been treated fairly. 111. But as observed by Lord Diplock in the already cited Civil Service Unions V Minister for The Civil Service case, the court can quash the decision if the same is so unreasonable to the extent that a reasonable tribunal addressing its mind to the facts of the case would not have arrived at such a decision. In doing so, I submit, the court will have descended into the arena of decision-making. For a court to justify such action it must be clearly obvious that the decision is truly and obviously unreasonable. 112. The Attorney-General Submits that the applicant herein has only made allegations which have not been supported by any aorta of evidence. The absence of any evidence on irrationality, illegality, unreasonableness makes this application an abuse of court process and thus must fail. It is trite law that he alleges must proof. 113. The constitutional prescription of judicial immunity is expressed in Article 160(5) as follows: (5) A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function. 114. This prescription is further buttressed as a statutory provision in section 6 of the Judicature Act which provides that: “No judge or magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of; and no officer of a court or other person bound to execute the lawful warrants, orders or other process of a judge or such person shall be liable to be sued in any court for the execution of a warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it.” 115. This protection is afforded to judicial officers exercising their mandates for the protection of the independence of the judiciary and insulating such officers from personal liability during the performance of such mandate. 116. Reliance is placed in Moses Wamalwa Mukamari Vs. John O. Makali & 3 Others [2012] eKLR:“ The protection offered to judicial officers in Article 160(5) of the Constitution is inherent in the independence of the judiciary as a state organ within the doctrine of separation of powers. The protection encapsulates protection from being sued in a personal capacity in a cause of action based on an act or omission emanating from the lawful performance of a judicial function. I am convinced; this is intended to make the cover against personal liability https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 15

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complete, especially to prevent the essential substance of the protection from oozing out. If it were to be the contrary, that kind of interpretation will result into an absurdity, because, allowing the officer to be sued and appear in his personal capacity in a suit based on an act he did in the lawful performance of a judicial function, will already have blown away the very constitutional cover for the officer’s fallibility provided under Article 160(5) of the Constitution.” 117. The Attorney-General submits that even if the ex-parte applicant was to succeed, Judicial Review is a discretionary remedy. 118. Reliance is also placed in Joccinta Wanjiru Raphael vs. William Nangulu – Divisional Criminal Investigation Officer Makadara & 2 Others [2014] eKLR where it was held that: “ … it must always be remembered that judicial review orders being discretionary are not guaranteed and hence a court may refuse to grant them even where the requisite grounds exist since the Court has to weigh one thing against another and see whether or not the remedy is the most efficacious in the circumstances obtaining and since the discretion of the court is a judicial one, it must be exercised on the evidence of sound legal principles...The court does not issue orders in vain even where it has jurisdiction to issue the prayed orders. Since the court exercises a discretionary jurisdiction in granting judicial review orders, it can withhold the gravity of the order where among other reasons there has been delay and where the a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realized, even if merited. The would refuse to grant judicial review remedy when it is no longer necessary; or has been overtaken by events; or where issues have become academic exercise; or serves no useful or practical significance.” 119. The Attorney-General submits that the respondents acted in good faith and that in the event this Honourable Court is inclined to uphold the ex-parte applicant’s prayers, then the Respondent should not be condemned to pay costs. The Interested Parties Case; The interested party advances the following arguments; 120. The Interested Party purchased L.R. No. 3734/27.1R 13376 measuring approximately 0.994 hectares located along Muthangari Road in Lavington Nairobi County (the "Property") from the previous owner Wycliffe Adonijah Onyango Ayoki and paid for it in full in 1996 in line with the transfer. 121. At the time of purchase, the Property was charged to Standard Bank, and it is the Interested Party that cleared the debt. Standard Bank subsequently executed the Discharge of Charge which was simultaneously registered with the Transfer to the Interested Party. 122. The Interested Party argues that it is the registered owner of the Property and continues to hold title to the Property as set out in the title. 123. According to him this position has at all material times been affirmed/upheld by the Court in the following suits in Nairobi ELCC No. E327 OF 2011 Wilberforce Onyango Rahul & John Njenga Kinuthia vs. Multistage Investment Limited where a third party had initiated an attempt to defraud the Interested Party of the Property, but the Court declared the Interested Party herein as the bona fide and the legitimate proprietor of the Property.In the Kibera Criminal Case No. 4126 of 2013 R v John Njenga Kinuthia where the accused attempted to defraud the Interested Party of the Property, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 16

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after trial, the Court found the accused guilty and affirmed that the Interested Party was the rightful owner of the Property. 124. It is instructive to note that the Applicants did not participate in the above two court cases which dealt with the ownership of the property for the simple reason that they were never the owners or directors of the company that owned the Property, being the Interested Party herein. 125. It argues that it remains in possession of the authentic and original Title of the Property while the 1 st and 2 nd Applicants purport to only have held an alleged forged provisional title. 126. In 2019, the 1 st and 2 nd Applicants passed themselves off as directors at the Interested Party and illegally and fraudulently transferred the Property to the 1 st Applicant notwithstanding the fact that they have never been Directors at the Interested Party notwithstanding that the Registrar of Companies had written to them to change the name of their company as it was untenable under Section 58(1) of the Companies Act, 2015. 127. It is the interested parties case that Rameschandra Chunilal Mehta and his co diredctor have at all times been the shareholders and directors of the Interested Party. 128. Using an unlawfully and illegally obtained provisional title on the false basis that the original title was lost, the 1 st and 2 nd Applicants transferred the Property to the 1 st Applicant's advocate known as Michael Osundwa Sakwa. 129. It is its case that on 22 nd June 2023, the interested party filed a complaint at MilimaniPolice Station against the 1 st Applicant accusing the 1 st Applicant of forgery amongst other offences in relation to the Property. 130. Investigations commenced which later culminated in the 1 st Applicant being charged and in criminal case Chief Magistrates Criminal Case No. E476 Of 2023 Republic Vs Francis Nyaga Njeru. 131. It is its case that on or about February 2019, the Applicants forcefully took possession of the Property with the use of hired goons and continue to occupy the same through their advocate Michael OsundwaSakwa and are benefitting commercially from the Property by taking in substantial rents from a car wash and food vending businesses that they have brought into the Property to the detriment, loss and prejudice of the Interested Party. 132. It is argued that in an attempt to subvert the rule of law, evade justice and fortify their illegal occupation of the Property, the 1 st and 2 nd Applicants instituted these judicial review proceedings to have further investigations halted and the ongoing criminal case discontinued. 133. The judicial review proceedings seek to surreptitiously use this Court to sanitise their illegal acts including forgery of a provisional title, forgery of the signature of a Lands Registrar, forgery of an advocates stamp, forgery of minutes of a Board of Directors meeting, forgery of a Notification of Change of Directors, among other documents, all with the aim of fraudulently acquiring the Suit Property. 134. Reliance is placed in the case of County Government of Isiolo & 10 others v Cabinet Secretary, Ministry of Interior and Coordination of National Government & 3 others [20171 eKLR, where the Court was emphatic that it could not be used or abused to endorse illegal acts. 135. It is its case that the existence of the land matter per se cannot be a bar to an criminal proceedings merely because the subject matter in the criminal proceedings is directly in issue or substantially in issue in the pending suit before the Environment and Land Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 17

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136. It invokes Section 193A of the Civil Procedure Code which states that notwithstanding the provisions of any other written law, the fact that any matter in issue in a criminal proceeding is also directly or substantially in issue in an pending civil proceedings shall not be a ground for a stay proceedings. 137. Reliance is placed in Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (EOIO) of 2022 (Consolidated)) [20231 KESC 40 (KLR) both civil and criminal 'jurisdictions can run parallel to each other and neither can stand in the way of the other unless either of them is being used to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner. 138. It argues that in this case, the charges the accused is facing constitute offences under the laws of Kenya, thereby necessitating the complaint to the police and subsequent charging by the 1st Respondent. 139. According to the interested party, there is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution. 140. It is argued that the Applicants have failed to demonstrate that the police were acting outside their statutorily given powers and driven by an ulterior motive to investigate the crimes alleged. 141. It argues that State Organs are bound to act within their constitutionally or statutorily mandated powers to ensure the tenets of democracy and ultimately the fundamental rights and freedoms of people guaranteed in the Constitution of Kenya, 2010 are protected and upheld. 142. In exercise of the discretion granted to its office by Article 157 of the Constitution, the 1 st Respondent decided to charge the 1 st Respondent. 143. The 1 st Respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. 144. It is their case that courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to stop a prosecution if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court or infringement of a citizens' fundamental rights. 145. Reliance is placed in the case of Republic v Director of Public Prosecutions & 2 others; Realtime Company Limited & another (Interested Parties); Davetronic Company Ltd & another (Exparte) (Judicial Review Miscellaneous Application E190 of 2021) [20231 KEHC 228 (KLR),where the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office unless an applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process. 146. It argues that whether the criminal proceedings have a likelihood of success, or that the Applicant has a good defence is also not a ground for halting criminal proceedings by way of judicial review. 147. According to it the application is an attempt by the 1st Applicant to invite this Honourable Court to turn into the criminal court and decide on the innocence or otherwise of the accused. 148. The charges as set out in the charge sheet are not frivolous as the constitute offences under the laws of Kenya and therefore it is proper that the 1st Applicant be subjected to the due process of the law. 149. Section 28 of the National Police Service Act, No. 1 1 of 2011 establishes the Directorate of Criminal Investigations which shall be under the direction, command, and control of the Inspector-General. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 18

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150. A court should only interfere with the powers granted to the 3rd Respondent under Articles 244 and 245 of the Constitution and under the provisions of the National Police Service Act if the constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful. 151. According to the interested party, a perusal of the documents adduced confirms that even though the Applicants alleged abuse of power by the 3rd Respondent, no evidence was brought forth to prove that the actually acted beyond their constitutional mandate or that their actions amounted to an abuse of office. 152. It argues that the 1st Applicant has not been condemned without a hearing Pursuant to Article 50(2) of the Constitution of Kenya. 153. The trial before the criminal court affords him the perfect opportunity to be heard where he can prove his innocence. 154. While the Applicants allege that evidence and other relevant considerations were not taken into consideration when making the decision to charge and prosecute the 1st Applicant, it argues that the 1st Respondent exercised discretionary power given to its office in deciding to charge the 1st Applicant. 155. The 1st Applicant would be in a better position to tender said evidence at the criminal trial to prove his innocence of the crimes alleged. 156. The Interested Party argues that The Applicants have failed to provide an iota of evidence demonstrating how their rights and fundamental freedoms have been violated, and how the further conduct of the proceedings before the trial court are oppressive. 157. It argues that it is actually the Interested Party’s rights as the complainant in the criminal trial which are at risk as quashing criminal proceedings at this stage amounts to exonerating suspect before trial. 158. In the entirety of their Application, the Applicants have alleged several times that the Respondents have acted at the behest of the director of the Interested Party to arrest and charge the 1st Applicant. It is its case that these claims are merely speculative, and the Applicants have failed to discharge the burden of proving that allegation. 159. It is its case that the suit is being used as an avenue to sanitise forged documents and to fortify their illegal occupation of the Suit Property. This Honourable Court is obliged to allow the criminal court to continue to provide the 1st Applicant with an opportunity to prove his innocence of the crimes he is alleged to have committed. The Interested Parties Submissions; 160. It is their submission that it was incumbent upon the Ex-parte Applicants to demonstrate to the satisfaction of this Court that the Respondents had somehow abused, overstepped or exercised their respective mandates unlawfully in carrying out the said investigations and in deciding to prosecute the 1st Ex-parte Applicant in order for the reliefs sought to avail to them. 161. It submits that the functions of the 3rd Respondent are set out in section 35 of the National Police Service Act as follows: “ The Directorate shall— a. collect and provide criminal intelligence; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 19

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162. b. undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; c. maintain law and order; d. detect and prevent crime; e. apprehend offenders; f. maintain criminal records; g. conduct forensic analysis; h. execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157(4) of the Constitution; i. coordinate country Interpol Affairs; j. investigate any matter that may be referred to it by the Independent Police Oversight Authority; and (k) perform any other function conferred on it by any other written law." Reliance is placed in the case the Court in Republic v Director of Public Prosecutions & 2 others; Pkiach & 6 others Interested Parties); Rianosa (Exparte) (Judicial Review Application 002 of 2022) [2022] REHC 12905 (KLR) held as follows regarding the 3d Respondent's investigatory powers: “ It is apparent from the constitutional and statutory foundation of the National Police Service that the DCI has a constitutional mandate to investigate any crimes and offenses suspected to have been committed by any person. "It is apparent from the constitutional and statutory foundation of the National Police Service that the DCI has a constitutional mandate to investigate any crimes and offenses suspected to have been committed by any person. Upon finalizing this duty, the DCI is then required to submit its findings to the DPP whose mandate is to independently assess the findings of the DCI and if satisfied that a crime might have been committed, prosecute the matter by preferring charges against the subject of the investigation." 163. It submits that in the present case, upon receipt of the complaint by the Interested Party against the 1st Ex-parte Applicant, the 3rd Respondent acted within its mandate and commenced investigations into the allegations. 164. It submits that The Ex-Parte Applicants tendered no evidence to demonstrate that the 3rd Respondent acted beyond its constitutional mandate or that its actions amounted to an abuse of office. 165. They submit that the claim that the principles of natural justice were violated is not only unsubstantiated but also misleading according to the interested party given that the 1st Ex-parte Applicant was given an opportunity to present their version of events as admitted in the Ex-Parte Applicants' Statutory Statement at Paragraph 10 which states: “ Prior to his arrest the Respondents had issued summons to the 1st Applicant requiring his presence to offer clarifications, answer questions on the strengths of the allegations of forgery respecting the Applicant's ownership of the property." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 20

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166. It submits that the decision to arrest the 1st Ex-Parte Applicant was based on a complaint and subsequent investigations, in line with established legal principles. 167. It further submits that state organs are bound to act within their constitutionally or statutorily mandated powers to ensure the tenets of democracy and ultimately the fundamental rights and freedoms of people guaranteed in the Constitution of Kenya, 2010 are protected and upheld. 168. It submits that in the instant case and in the exercise of the discretion granted to its office by Article 157 of the Constitution, the 1st Respondent decided to charge the Ex-parte Applicant upon satisfying himself that the evidence on record was sufficient to institute criminal proceedings. 169. Article 157 of the Constitution of Kenya grants the ODPP powers in the following terms: “ (4) The Director of Public Prosecutions shall have power to direct the InspectorGeneral of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction. (6) The Director of Public Prosecutions shall exercise State powers of prosecution and may— (10) a. institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offense alleged to have been committed; b. take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and c. subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b). The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority." 170. The Interested Party recognizes that the courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to stop a prosecution if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court or infringement of a citizens’ fundamental rights. 171. Reliance is placed in the case of George Joshua Okungu & Another v The Chief Magistrates Court, Nairobi & another [2014] eKLR where the court pronounced itself as follows regarding the Courts' interference with the prosecutorial powers of the 1st Respondent: “ The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 21

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bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the petitioner in those proceedings." 172. Reliance is also placed in the case of Republic v Director of Public Prosecutions & 2 others; Realtime Company Limited & another (Interested Parties); Davetronic Company Ltd & another (Exparte) (Judicial Review Miscellaneous Application E190 of 2021) [2023] KEHC 228 (KLR) held: “ On the first issue, on abuse of prosecutorial powers, it is important to first deal with the applicable principles and circumstances under which the Court will grant order prohibiting the commencement or continuation of a criminal trial process. In this respect, the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The merits of the case, and particularly whether the criminal proceedings have a likelihood of success, or that the Applicant has a good defence is also not a ground for halting criminal proceedings by way of judicial review, in light of the purpose and limits of judicial review explained in the foregoing." 173. It submits that the charges appearing in the charge sheet are not frivolous as they constitute offences under the laws of Kenya and therefore, it is proper that the 1st Ex-parte Applicant be subjected to the due process of the law and the presumption of innocence has not been taken away and the 1st Respondent did not act illegally, unlawfully or unprocedurally. 174. On another issue, the Interested Party submits that the existence of Nairobi ELC Case No. E054 of 2020 Victor Owuor Ayoki & Another v Multistage Investments Limited & 7 Others cannot be a bar to any criminal proceedings merely because the subject matter in the criminal proceedings is directly in issue or substantially in issue in the pending suit before the Environment and Land Court. 175. It invokes Section 193A of the Civil Procedure Code which states: “ 193A. Concurrent Criminal and Civil Proceedings Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings." 176. Reliance is placed in the case of Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 8022 (Consolidated)) [2023] KESC 40 (KLR) both civil and criminal jurisdictions can run parallel to each other and neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner. 177. It submits that it is not enough to state that because there is an existence of a land dispute, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. 178. There is a need to show how the process of the court is being abused or misused and a-need to indicate or show the basis upon which the rights of the Ex-parte Applicants are under serious threat of being undermined by the criminal prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 22

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179. It places reliance in the Court of Appeal decision in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Nioroge & Others Civil Appeal No 266 of 1996 expressed itself as follows regarding an order of prohibition: “ Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision..." 180. According to the Interested Party an order of prohibition is not available to the Ex-parte Applicants as investigations have been concluded, forwarded to the 1st Respondent and prosecution commenced. 181. Reliance is placed in the decision of the High Court in Ongoto v Independent Policing Oversight Authority & another; Obiero & another (Interested Parties) [2025] KEHC 2535 (KLR) where the Court held as follows: “ The Exparte Applicant first sought orders of prohibition. As noted by the 1st respondent, the court cannot issue an order in vain and/or prohibit a decision that has already been made. It can only prevent the making of the contemplated decision. See the decision of Geoffrey Gathenji Njoroge & 9 others (Supra). The facts herein establish that the 1st respondent has already completed their investigations, forwarded their recommendations to the 2nd respondent who approved of the same by virtue of the powers conferred under Section 5 of the ODPP Act, Cap 68 as read with Article 157 of the constitution of Kenya. The said prayer is thus overtaken by events." 182. Reliance is also placed in Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) where it was held: “ Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed - that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. No material has been presented before me to show that the investigations are tainted with illegality or procedural impropriety to warrant the writ of certiorari." 183. In Dande & 3 others v Inspector General, National Police Service & 5 others (Supra), the Supreme Court held that if a party approaches the Court under a traditional Judicial Review Application, the Court cannot carry out a merit review of the case, but shall be restricted to the process and manner which the decision complained of was reached. “ It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 23

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However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se... The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings." 184. It submits that this Court is restricted to examining the procedure in which the Respondents followed in charging the 1st Ex-parte Applicant. This Court cannot go into whether the decision by the 1st Respondent to charge the 1st Ex-parte Applicant was merited or not. 185. Accordingly, if this Court is satisfied that due procedure was followed, it cannot issue an order of certiorari to quash the decision of the 1st Respondent to Charge the 1st Ex-parte Applicant. The accused should be subjected to the trial process where he can either be acquitted or convicted on merit with a right of appeal. 186. The Interested Party submits that The Ex-parte Applicants have failed to provide an iota of evidence demonstrating how the further conduct of the proceedings before the trial court are oppressive. 187. They submit that the criminal trial is being conducted in accordance with the 1st Applicant's right to a fair trial enshrined under Article 50 of the Constitution of Kenya, 2010. 188. In pursuit of the orders sought by the Ex-parte Applicants' application, it is actually the Interested Party's rights as the complainant in the criminal trial which are at risk as quashing criminal proceedings at this stage amounts to exonerating a suspect before trial. 189. The 1st Ex-parte Applicant has not been condemned without a hearing. Pursuant to Article 50(2)(a) of the Constitution of Kenya 2010, the 1st Ex-parte Applicant is presumed innocent until the contrary is proved. 190. So far, the 1st Ex-parte Applicant has only been arrested and charged with the offences alleged, and his allegations of breach of principles of natural justice are unfounded and out rightly false. 191. The trial before the criminal court affords him the perfect opportunity to be heard where he can prove his innocence. 192. In any event, 1st Ex-parte Applicant would be in a better position to tender said evidence at the criminal trial to prove his innocence of the crimes alleged. 193. It submits that the orders sought and these proceedings are an elaborate scheme by the Ex-parte Applicants to subvert the rule of justice and to sanitise their illegal acts with the aim of fraudulently acquiring the Property. This conduct is unlawful and is prohibited on the authority of County Government of Isiolo and 10 others v Cabinet Secretary, Ministry of Interior and Coordination of National Government & 3 others [20171 eKLR, where the Court was emphatic that it could not be used or abused to endorse illegal acts. Analysis and determination; Upon considering the different parties pleadings, the rival submissions and the authorities relied upon, I find the following to be the issues for determination: 1. Whether the Applicants are entitled to the reliefs sought. 2. Who shall bear the costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 24

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194. In the case of Pastoli vs KabaleDistrict Local Government Council & Others, (2008) 2 EA 300, it was held that: “ In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR). Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”. Procedural impropriety is when there is failure to act fairly on the part of the decisionmaking authority in the process of taking a decision. The unfairness may be in nonobservance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).” 195. Where an Applicant demonstrates that the criminal proceedings constitute an illegality or abuse of process, this Court will not hesitate in putting a halt to such proceedings, as that fall squarely within its mandate as a judicial review Court. 196. The cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions as follows: (a) Where there is an abuse of discretion; (b) Where the decision-maker exercises discretion for an improper purpose; (c) Whether decision-maker is in breach of the duty to act fairly; (d) Whether decision-maker has failed to exercise statutory discretion reasonably; (e) Where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (f) Where the decision-maker fetters the discretion given; (g) Where the decision-maker fails to exercise discretion; and (h) Where the decision-maker is irrational and unreasonable. 197. In Republic vs Commissioner of Police and Another ex parte Michael Monari& Another, [2012] eKLR it was held that: “ the police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 25

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prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”. 198. In Republic vs Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR, Hon. Mativo J (as he then was) affirmed that this Court has the jurisdiction to issue the orders to quash criminal proceedings where institution of the same is ill motivated to actuate abuse of the court process. He held as follows: “ …The core issue here is for this Court to determine the circumstances under which the High Court in exercise of its vast jurisdiction can halt, stop, prohibit or quash a criminal prosecution. Courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to 'stay' an indictment (or stop a prosecution) if the Court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the Court or infringement of a citizens' fundamental rights. Abuse of process has been defined as something so unfair and wrong with the prosecution that the Court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case… The provisions of the Constitution conferring powers upon the High Court to grant such remedies as certiorari, prohibition, mandamus or permanent stay of proceedings are a device to advance the rule of law. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the Court or that the ends of justice require that the proceedings ought to be quashed...” 199. In the case of Republic vs Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others(Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR Hon Mativo J. (as he then was) in terminating the private prosecution further stated as follows regarding this Court’s power to quash criminal proceedings, in exercise of its duty to prevent harassment of litigants through criminal prosecutions : “ …The saving of the High Court’s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice…” 200. On the issue of whether an order of prohibition can issue the court is guided by the case of Joram Mwenda Guantai vs The Chief Magistrate, [2007] 2 EA 170, the Court of Appeal explained the applicable principles as follows: “ It is trite that an Order of Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only in excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings... Equally so, the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has the inherent power and the duty to secure fair treatment for all https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 26

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persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.” 201. The Applicants argument that there is pending civil suit instituted in the Milimani ELC Case No. No. E054 of 2020 Victor Owuor Ayoki & Another vs. Multistage Investment Limited & 7 others in respect to the property which suit is yet to be determined is none consequential. This court finds nothing wrong in charging the Applicants in a criminal court during the pendency of the ELC civil suit. 202. In so holding, I am guided by the Court of Appeal judgment in Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others, [2013] eKLR where it was held as follows: “ While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings" It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely a civil dispute litigated in court. This is a case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations” 203. On another front, this court finds that it not the duty of the judicial review court to engage in an examination or a review of the merit or otherwise of the charges to be preferred. The merits, the sufficiency or otherwise of the evidence is left to the trial court. 204. The power of the Director of Public Prosecutions is provided for under Article 157(4) of the Constitution, the Director of Public Prosecutions. He has the power to direct the Inspector General of Police to investigate any information or allegation of criminal conduct. 205. He does not require the consent of any person to commence prosecution, and shall be independent in the execution of his or her duties. 206. On another issue, the interested parties have advanced a case against the application. Section 9(2) (a) of the Victims Protection Act provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission. 207. Victim participation should meaningfully contribute to the justice process. Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) 208. The victims of an offense lodged a complaint with the police who initiated investigations. By filing a replying affidavit and submissions in opposition of the application before this court, I am satisfied that the victims have an interest in the outcome of the criminal case. 209. The court has however noted that the interested party invited this court into a merit review which the court has declined to embrace. The Interested Parties case cannot stand on its own. It depends on the ODPPs prosecution power and the legality thereof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 27

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210. Moving to another issue, the applicants argued that 38 counts on the Charge Sheet are prejudicial to and this against the principle of though not invariably no more than a maximum of 12 counts that should be laid in one charge sheet which was dearly laid down in the case of Kipleting Keino & another Vs Republic. 211. Section 135 of the CPC, reads: 135. 212. Joinder of counts in a charge or information 1. Any offences, whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character. 2. Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count. In the case of Peter Ochieng v Republic [1985] eKLR the Court of Appeal considered an appeal the appellant had been subjected to an overloaded charge sheet of 44 counts the court stated: 'There is one other matter to which we should refer. It is undesirable to charge an accused person with so many counts in one charge sheet. That alone may occasion prejudice. It is proper for a court to put the prosecution to its election at the inception of the trial as to the counts, upon which it wishes it to proceed. Usually, though not invariably, no more than twelve counts should be laid in one charge sheet. The others can be withdrawn under section 87 (a) of the Criminal Procedure Code (cap 75), which will entitle the prosecution to bring them again if necessary..? (See R v Hudson and Hagan [1952] 36 CAR 94 at p 95) 213. In the case of Eliphaz Riungu v Republic [1997] eKLR, O'kubasu and Owuor, JJ (as they then were) considered an overloaded charge and stated: 'Then in Novac [1977] 65 C.A.R. 107 the Court criticised the overloading of the indictment which contained 19 counts (out of an original 38) against four defendants and which led to a long end complex trial taking in all 47 working days which put an immense burden on judge and jury. In its judgment the court stated at pp.118 and 119. 'Quite apart from the question whether the prosecution could find legal justification for joining all these counts in one indictment and resisting severance, the wide and mere important question has to be asked whether in such a case the interests of justice were likely to be better served by one very long trial, or by one moderately long and four short separate trials' 214. The court in the above case was of the view that whatever advantages are expected to accrue from one long trial they were heavily outweighed by the disadvantages. 215. In the more recent case of R v Novac & Others [1977) 65 CAR 107 at p 118 the Court of Appeal said: 'We cannot conclude this judgment without pointing out that, in our opinion, most of the difficulties which have bedevilled this trial, and which have led in the end to the quashing of all convictions except on the conspiracy and related counts, arose directly out of the overloading of the indictment. How much worse the difficulties would have been if the case had proceeded to trial on the original indictment, containing 38 counts, does not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 28

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bear contemplation. But even in its reduced form the indictment of 19 counts against four defendants resulted, as is now plain, in a trial of quite unnecessary length and complexity’ 216. Flowing from the cited case, it can be readily seen that charging an accused person with many counts in one charge sheet is frowned upon. This is because of the potential prejudice that may be occasioned to such accused person. The Court of Appeal stated that in such circumstances, the prosecution should put to its election at the inception of the trial, as to the counts upon which it wishes it to proceed. The Court recommended that no more than 12 counts should be laid in one charge sheet. 217. In the instant suit, it is clear from the charge sheet that informs the application that is before this court, that the applicants are likely to suffer prejudice given that it contains 38 counts. This will culminate in the violation of their right to fair hearing as guaranteed under Article 50 of The Constitution. 218. It will also go against the procedural and substantive safe guards that Article 47 of The Constitution seeks to protect, promote and fulfil. Prosecuting the 1st applicant for 38 counts does not accord with Section 4 of the Fair Administrative Action Act. 219. Article 165(6) of the Constitution provides that this Court has supervisory jurisdiction over any person, body or authority that exercises a quasi-judicial function or a function that is likely to affect a person’s rights. 220. In exercise of this power and in exercise of my discretion I find that it will be prejudicial to the1st Applicant to be prosecuted with 38 counts at once. 221. On another front, the Applicants raised argued that the decision making process adopted by the 1st Respondent culminating in the decision to charge him was defective. 222. The applicants had a legitimate expectation that the decision to be made by the 1st Respondent would be arrived at after confirmation of practical facts and not on the basis of its whimsical decisions. 223. Section 7 (1) of The Fair Administrative Actions Act, No. 4 of 2015 gives the court the power to review an administrative action or decision, if the person who has made the decision has acted in excess of jurisdiction or power conferred under any written law and has been reasonably suspected of bias. 224. The Respondents did not tender any evidence to controvert this. 225. This Court has the powers to interrogate any question as to whether the impugned decision by the 3rdRespondent to prosecute the applicants is consistent with Article 157 of the Constitution and where these expectations have not been met terminate the proceedings so as to secure the ends of justice are met. 226. The Applicants raised concerns around the decision to charge them with the offences before the trial court. They were not furnished with the critical information. There was no explanation as to why that was not done. 227. The court presumes that the ODPP was all along seized with the information that the 3rd Respondent used to arrive in arriving at the decision to charge the Applicants. Had this not been the case then the Respondent would not have proceeded to charge the Applicants in the criminal court. 228. One is left to conclude that the decision to charge the Applicants was not inspired by objectivity. The court has no doubt that a decision to charge the Applicants was improperly made by the ODPP. 229. This state of affairs goes a long way to further confirm that the decision to charge the Applicants is tainted with improprieties contrary to Article 47 of the constitution which guarantees an Applicants the right to fair hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 29

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230. Had the ODPP furnished the applicants with the decision to charge them, that would have helped the Applicants and this court to appreciate not only how the impugned decision was arrived at. 231. That would have promoted the right to access to information under Article 35 and the right to fair hearing as guaranteed under Article 50 of the Constitution. 232. Clause 3.1.1 of the guidelines on the decision to charge stipulates that the decision to charge or not to charge requires an objective and independent analysis of the case. This sits well with the Fair Administrative Action Act. 233. When making decisions to charge, the prosecutors must be objective and must not let personal views based on ethnic or national origin, gender, disability, age, religion or belief, sexual orientation, status, or gender identity of a suspect, accused person, victim or any witness influence their decision. They must at all times remain apolitical. 234. In all cases, prosecutors complete the Decision to Charge Form ODPP 1A and lodge this in the relevant Prosecution File. This form was not availed to the Applicant nor to the court when the concerns were raised in the pleadings by the Applicants. 235. The only plausible conclusion that I can safely arrive at in the circumstances is that the decision to charge the Applicants was informed or arrived at through a process that was tainted with illegalities and fundamental procedural improprieties. 236. Everybody has a right to access to information in the custody of an independent Constitutional outfit like the ODPP whenever it is exercising, it’s powers under article 157.The ODPP must at all times be at the forefront in, ensuring that suspects of crime are informed in very clear and available terms how the decision to charge was arrived at. 237. The ODPP is under a duty to furnish suspects of crime with all the information including the considerations and factors that the prosecution considered in arriving at a decision to charge them whether or not they request for the information. 238. The importance of the duty of the ODPP to disclose information or the decision to charge through Form ODPP 1A to an accused person cannot be gainsaid. The duty is elevated a notch higher where a person who is exposed request for this critical information. This is the only way that we shall talk of a process that is expeditious, efficient, lawful, reasonable and procedurally fair. 239. The ODPP will not suffer any prejudice if that kind of information is disclosed to a suspect or an accused person immediately the decision to charge is made. This disclosure or the discovery will go a long way in promoting, our national values and the principles of governance in so far as the criminal justice system is concerned. 240. In any event, the decision to charge guidelines 2019 is a public document that is not supposed to benefit only the ODPP ‘s office. It is meant for the people of Kenya under Article 1 of the Constitution who voted in The Constitution. The investigations, and the running of the office of the ODPP is funded by the people through the taxes. As such the people including the applicants have a legitimate expectation that they will have access to the results or the outcomes of the investigation and in particular the decision to charge them with offences whenever they commit crime as provided for under Form ODPP 1A. 241. This will create an opportunity for the ODPP to develop a public awareness programme to inform Kenyans and in particular suspects upon arrest that they have a right to access to the guidelines and decision to charge in Form ODPP 1A. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 30

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242. This will go a long way in promoting access to justice and the social transformation through access to justice blue print of The Chief Justice. 243. The decision to charge marks a point in the prosecution Journey, when a suspect, or an accused person becomes a very vulnerable member of the society. The Decision to Charge Form ODPP 1A must be availed to an accused person immediately and without delay, the minute the decision to charge is made. It matters not whether or not they request for it. 244. Section 2 of the Fair Administrative Action Act provides that; a. “administrative action; b. ii) includes-any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates; c. ‘administrator’ d. means a person who takes an administrative action or who makes an administrative decision. This includes the ODPP when deciding to charge. e. Section 4 further stipulates that; 1. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. 2. Every person has the right to be given written reasons for any administrative action that is taken against him. 3. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision(d) a statement of reasons pursuant to section 6.” 245. An early disclosure and discovery of ODPP Form 1A will help open up early alternative dispute resolution possibilities at the decision to charge phase and reduce the number of cases in the criminal court. 246. It will encourage early diversion and reconciliation and Alternative Justice redress mechanisms as provided for under Article 159 of the Constitution. This will go a long way in saving the taxpayers money. 247. The well-intended guidelines and the decision to charge in ODPP form 1 cannot be said to be in conformity with Section 6 of the FAA if all that the ODPP does is to complete and file away the decision to charge form ODPP 1a before shuttling the accused person to court. 248. The ODPP Form1A carries critical information like details of the complainant, the witnesses, threshold tests, evidence, public interest considerations, the decision to charge interalia. This is very critical information for a person who is about to be charged with a criminal offence. It helps in deciding the way forward. Such information must always be given to a suspect of crime at the least before the plea taking phase. 249. The supreme court in the case of Githiga & 5 Others V Kiru Tea Factory Company Ltd (Petition 13 Of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) held that under Article 50(2) of the constitution procedural fairness in the administration of justice involved the fair hearing rule that required a decision maker to inter alia afford a person an opportunity to be heard before making any decision affecting his/her interests. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 31

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250. In the case of Pastoli Vs Kabale District Local Government Council & Others, (2008) 2 Ea 300, where it was held that: “ In order to succeed in an Application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR). Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…. “ 251. This court has arrived at the safe conclusion that the Respondents and the office of the director public prosecutions acted illegally in failing to furnish the Applicants with the decision to charge. 252. The Applicants had a Legitimate expectation that the Respondents would accord them process that was not only fair, but legitimate. From the forgoing, it is clear that this was not achieved. 253. The prosecution is in the circumstances tainted with illegality and incurable procedural improprieties that justify the insurance of the orders as prayed for on this ground. 254. In determining whether the Applicant has proven its case, I am guided by The Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows: “ (49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 255. I find that the applicants have proven their case. To allow the prosecution of the 1st Applicant will violate the Applicant’s right to fair hearing and the right of Fair Administrative Action. 256. The application has merit. In the exercise of my discretion, I allow the application. Costs: 257. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed: “ …whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 32

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general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied]. 258. The applicants are entitled to costs. Disposition: 259. The Applicants have made out a case for the issuance of the orders sought. Order; The application is allowed with costs. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 30TH DAY OF DECEMBER, 2025. …………………………………… J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19327/eng@2025-12-30 33

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