Ibrahim Abdirizak Mohamed T/A & 1 other v Jdt

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS……………..…1 ST RESPONDENT INSPECTOR GENERAL OF POLICE…………………………………….……..…2 ND RESPONDENT THE DIRECTORATE OF CRIMINAL INVESTIGATIONS…………………..3 RD RESPONDENT ATTORNEY GENERAL………………………………………………………….…….4 TH RESPONDENT JUDGMENT Introduction 1. The Petitioner though his petition dated 25th November, 2024 challenges the legality, propriety, and constitutionality of the investigations undertaken by the 2nd and 3rd Respondents, together with the consequential decision of the 1st Respondent to institute criminal proceedings against him arising from an aborted land transaction. It is his contention that the impugned investigative and prosecutorial processes are unlawful, amount to an abuse of process, and infringe upon his fundamental rights and freedoms as guaranteed under Articles 19, 20, 21, 22, 23, 24, 25, 28, 29, 31, 39, 48 and 50 of the Constitution of Kenya, 2010. 2. By a Notice of Motion dated 26th November 2024, the Petitioner sought conservatory orders restraining the Respondents, whether by themselves, their servants or agents, from arresting, detaining, charging or prosecuting HCCHRPET. NO. E654 OF 2024 JDT P a g e 2 | 18

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him, and from conducting any search of his offices without a valid court warrant, pending the hearing and determination of the Petition. Upon due consideration of the application, this Court, on the same date, was satisfied that a prima facie case had been established and accordingly granted interim conservatory orders in the following terms; Pending the inter partes hearing and determination of the Application dated 25 th November 2024, the Court issued conservatory orders restraining the Respondents, jointly and severally, whether acting directly or through their officers, agents, servants, employees, or any multi-agency framework, from arresting, detaining, charging, prosecuting, or continuing to prosecute the Petitioner, his law firm, or any of its advocates, employees, servants, or agents in relation to matters concerning the conveyancing, registration, or ownership of Land Parcel Nairobi Block 104/389. 3. Additionally, the Court restrained the 2 nd and 3rd Respondents, whether acting directly or through their officers or affiliated agencies, from entering or conducting searches of the Petitioner’s homes or offices without a duly issued search warrant or court order from a court of competent jurisdiction 4. In response, the Respondents filed Grounds of Opposition and swore Replying Affidavits, contending that the investigative actions undertaken by the police and the decision to institute criminal proceedings by the Director of Public Prosecutions were carried out strictly within the ambit of their respective constitutional and statutory mandates, and in faithful discharge of the duties vested in their offices by law. HCCHRPET. NO. E654 OF 2024 JDT P a g e 3 | 18

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The Petitioner’s case 5. The Petitioner, an advocate of this Court, was retained to undertake the conveyancing process in respect of property known as Nairobi Block 104/389. In or about August 2022, he received a sum of KShs. 44,100,000/= from the purchaser’s advocate in furtherance of the transaction. Of that sum, he remitted KShs. 9,490,000/= to his client, the complainant, leaving an alleged balance of KShs. 34,610,000/= which, according to the complaint subsequently lodged, remained unaccounted for. Upon demand for the said balance, the complainant reported the matter to the Directorate of Criminal Investigations (DCI). 6. It is contended that investigations revealed that, prior to the impugned conveyance, the suit property had already been sold at a public auction by DIB Bank following default by the registered owner, one Mr. Hussein Ibrahim Mohamed, on a loan facility. The Petitioner is alleged to have proceeded with the conveyance notwithstanding the prior auction sale, conduct said to disclose an intention to defraud. The Petitioner disputes any criminal culpability and maintains that the dispute arises within the context of a professional transaction. 7. It is further alleged that upon the complaint being lodged, the Petitioner and the said Mr. Hussein Ibrahim Mohamed absconded. On 26 th November 2024, this Court issued conservatory orders restraining the police and the Director of Public Prosecutions from arresting, charging or prosecuting the Petitioner, HCCHRPET. NO. E654 OF 2024 JDT P a g e 4 | 18

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or conducting searches of his offices, in relation to the impugned transaction. Notwithstanding those subsisting orders, the Petitioner was arrested in Nairobi on 29th November 2024. Mr. Hussein Ibrahim Mohamed was subsequently arrested and charged in Chief Magistrate’s Court Criminal Case No. E1327 of 2024. The Petitioner was later arraigned before the Milimani Chief Magistrate’s Court and charged with the offences of conspiracy to defraud and obtaining money by false pretences. 8. The Petitioner avers that he has properly invoked the jurisdiction of this Court under Articles 22, 23 and 165 of the Constitution by way of the Petition dated 25th November 2024, seeking declaratory, injunctive and compensatory relief for alleged violations of his fundamental rights and freedoms. He contends that the interim conservatory orders granted contemporaneously with the filing of the Petition attest to the prima facie constitutional substratum of his claim. 9. He describes himself as an advocate of over fifteen years’ standing in real estate and banking law, and the managing partner of his firm. He asserts that, in the course of acting professionally in the subject transaction, he became the target of threats, harassment and acts of vandalism allegedly perpetrated by the 5th Respondent. He avers that he lodged formal complaints with the police, including OB No. 43/15/10/2022, but that the investigative agencies failed, neglected or refused to conduct meaningful investigations or to accord him protection. HCCHRPET. NO. E654 OF 2024 JDT P a g e 5 | 18

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10. The gravamen of his case is that the Respondents’ inaction, selective action and/or biased investigations amount to violations of his constitutional rights. 11. The Petitioner invokes Articles 28 and 29 of the Constitution, asserting that the threats, intimidation and insecurity allegedly visited upon him amount to a violation of his inherent dignity and his right to freedom from cruel, inhuman or degrading treatment. He further relies on Articles 48 and 50, contending that the Respondents’ failure to effectively investigate his complaints has impeded his access to justice and undermined his right to a fair hearing. Additionally, he pleads breach of Article 47, maintaining that the Respondents’ conduct was unreasonable, procedurally unfair and tainted by improper considerations, thereby offending the right to fair administrative action. He also alleges infringement of Articles 27 and 51, on grounds of discriminatory treatment and failure to safeguard his property and professional rights. In the same vein, he cites Articles 24, 25, 31 and 39, which he contends have been variously implicated and violated by the Respondents’ acts and omissions. 12. Relying on the principle enunciated in Anarita Karimi Njeru v Republic [1979] KLR 154, the Petitioner maintains that he has pleaded his claim with the requisite precision by identifying the specific constitutional provisions allegedly infringed and the manner of their violation. 13. He further submits that under Articles 157, 245 and 159 of the Constitution, together with the governing statutory framework, the Respondents are under a positive constitutional obligation to investigate criminal complaints HCCHRPET. NO. E654 OF 2024 JDT P a g e 6 | 18

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diligently, impartially and expeditiously. Their alleged failure to do so, he contends, amounts to dereliction of duty, abuse of statutory power and a breach of the rule of law. 14. On the issue of remedies, the Petitioner urges the Court, pursuant to Articles 23 and 165(3)(b), to intervene so as to forestall further infringements and to grant appropriate constitutional relief. He places reliance on Muchelule & 5 Others v Attorney General Judicial Service Commission (Interested Party) [2024] KEHC 12116 (KLR), for the proposition that constitutional damages serve compensatory, vindicatory and deterrent purposes, and that where rights are violated, an effective remedy must ensue. 15. The Petitioner enumerates the loss and damage allegedly suffered as including malicious damage to property, threats to his personal security, interference with his legal practice and professional standing, psychological distress, reputational harm and potential economic loss. 16. In the premises, he contends that he has established, on a balance of probabilities, that the Respondents’ acts and omissions have infringed and continue to threaten his fundamental rights and freedoms. He accordingly prays for declaratory relief, a permanent injunction restraining his arrest and prosecution in relation to the impugned transaction, compensatory and punitive damages, and costs of the Petition. The Respondents’ case HCCHRPET. NO. E654 OF 2024 JDT P a g e 7 | 18

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17. The Respondents oppose the Petition and the Notice of Motion dated 25 th November 2024 in their entirety, contending that the Application is premature, misconceived and an abuse of the court process. 18. The 2nd Respondent, the Inspector General of Police is a constitutional office established under Article 245 of the Constitution and mandated to command and control the National Police Service. The 3 rd Respondent the Directorate of Criminal Investigations, established under Section 28 of the National Police Service Act, operates under the direction of the 2 nd Respondent and is statutorily mandated to investigate serious crimes, including economic offences. The 1st Respondent exercises prosecutorial authority pursuant to Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act, independently and without direction or control from any person or authority. 19. The 1st Respondent’s opposition is anchored in Grounds of Opposition dated 9th January 2025 and a Replying Affidavit sworn on 16 th January 2025 by No. 80936 Detective Sergeant Nicolas Osuri. It is deposed that investigations were commenced following a complaint arising from a failed property transaction concerning Land Parcel Title No. Nairobi Block 104/389. According to them, the Petitioner, an Advocate of the High Court of Kenya, is alleged to have taken over the conveyancing transaction from another law firm and received Kshs. 44,100,000/= from the Purchaser’s Advocates, out of which only Kshs. 9,490,000/= was disbursed to his client, leaving a balance of Kshs. 34,610,000/= unaccounted for. HCCHRPET. NO. E654 OF 2024 JDT P a g e 8 | 18

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20. Investigations further revealed that the property in question had previously been sold by public auction by DIB Bank Limited following the registered proprietor’s default on a loan facility. Notwithstanding that fact, the transaction is said to have proceeded, occasioning loss to the purchaser, Messer’s Fenoon Star Real Estate and Contracting Limited. Upon completion of investigations, the inquiry file was forwarded to the Director of Public Prosecutions who, being satisfied that sufficient evidence existed, directed the arrest and prosecution of the Petitioner and his co-accused for the offences of conspiracy to defraud contrary to section 317 of the Penal Code and obtaining money by false pretences contrary to section 313 thereof. One co-accused has since been charged in Criminal Case No. E1327 of 2024 before the Chief Magistrate’s Court at Nairobi. 21. The Respondents submit that the investigations and ensuing prosecution were undertaken strictly within the constitutional and statutory framework under Articles 243, 244, 245 and 157 of the Constitution, Section 35 of the National Police Service Act, and Section 193A of the Criminal Procedure Code. They contend that the mere fact of investigation, arrest or prosecution does not, without more, constitute a violation of constitutional rights. Absent proof of illegality, malice, abuse of power or breach of fundamental rights, this Court ought not to interfere with the investigative and prosecutorial mandates conferred by law. 22. It is further contended that the threshold for the grant of conservatory orders has not been met. The Petitioner has not demonstrated any HCCHRPET. NO. E654 OF 2024 JDT P a g e 9 | 18

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imminent or real threat of constitutional violation, irreparable harm, or prejudice warranting the Court’s intervention. The orders sought are, in effect, final in nature and would prematurely determine the substantive issues in the Petition. Moreover, the Petition is said to offend the doctrine of exhaustion, the Petitioner having failed to pursue available statutory redress mechanisms. 23. The Respondents maintain that the Petition seeks to forestall lawful criminal proceedings and to shield the Petitioner from due process. They deny any excess of authority, bad faith, or impropriety in the discharge of their respective mandates and assert that the criminal justice process has been properly invoked. 24. Accordingly, the Respondents urge the Court to find that no constitutional violation has been established, that the Application fails to meet the threshold for conservatory or injunctive relief, and to dismiss the Petition with costs, thereby allowing the criminal proceedings to proceed in accordance with the law. Analysis and determination 25. Having considered the pleadings on record alongside the submissions of the parties, this Court distils the following issues for determination; i. Whether the investigations conducted by the 2 nd and 3rd Respondents into the subject land transaction violated the Petitioner’s constitutional rights. HCCHRPET. NO. E654 OF 2024 JDT P a g e 10 | 18

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ii. Whether the decision by the 1 st Respondent to prefer charges against the Petitioner violates his constitutional rights. iii. Whether the petitioner is entitled to the reliefs sought. 26. The Court observes that Article 243 of the Constitution establishes the National Police Service (NPS), comprising the Kenya Police Service and the Administration Police Service, and places it under the independent command of the 2nd Respondent pursuant to Article 245 and section 8 of the National Police Service Act, 2011. Articles 243–244 impose upon the National Police Service (NPS) the constitutional duty to discharge its mandate in a manner that upholds and protects fundamental rights. Section 24 of the Act enumerates the functions of the Kenya Police Service, including maintaining law and order, preserving peace, protecting life and property, assisting the public, and, significantly, investigating crimes. Section 51(1)(j) reiterates this investigative duty. 27. The Directorate of Criminal Investigations (DCI), established under section 28, operates under the Inspector-General. It is therefore beyond dispute that the 2nd and 3rd Respondents were constitutionally and statutorily mandated to investigate any credible complaint alleging criminal conduct. 28. The 1st Respondent, the Director of Public Prosecutions, occupies a constitutional office under Article 157. Article 157(10) provides that the DPP “shall not require the consent of any person or authority for the commencement of criminal proceedings” and “shall not be under the HCCHRPET. NO. E654 OF 2024 JDT P a g e 11 | 18

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direction or control of any person or authority” in the exercise of his functions. The Office of the Director of Public Prosecutions Act, 2013, further elaborates these powers. Section 5(1) empowers the Director of Public Prosecutions (DPP) to direct investigations, institute criminal proceedings, or discontinue prosecutions, with or without leave of court. Section 6 reinforces the independence of the office, making clear that the DPP is not subject to direction from any person or authority. Consequently, the 1 st Respondent was fully authorised to assess the inquiry file compiled by the DCI, evaluate the sufficiency of evidence, and decide whether to institute criminal proceedings. 29. The constitutional architecture thus assigns to the police, through the Inspector-General and the DCI, the responsibility to investigate crime, and to the DPP the exclusive mandate to prosecute. These functions, while required to be exercised with fairness and in respect of constitutional rights, are otherwise insulated from external interference. This principle was affirmed in Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR, where the Court held: "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 HCCHRPET. NO. E654 OF 2024 JDT P a g e 12 | 18

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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." 30. Similarly, the Director of Public Prosecution’s prosecutorial discretion is constitutionally protected and not subject to presidential or external control. The issue for determination is whether, in exercising their respective mandates, the Respondents transgressed any constitutional limitation. 31. The Petitioner contends that the investigations infringed his constitutional rights. However, he identifies no specific unlawful act such as torture, unlawful search, or breaches of fair-trial guarantees, and his grievance is directed merely at the fact of the investigation. It is settled that the existence of an investigation into alleged criminal conduct does not, in itself, constitute a violation of constitutional rights. In Kenneth Kanyarati & 2 others v Inspector General of Police & 2 others [2015] eKLR, the Court held: "It is evident…that the mere fact therefore of an investigation being undertaken by the [police] would not itself be unconstitutional and a party must prove much more than the investigation process alone." 32. This position echoes Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR, as cited above. Likewise, in HCCHRPET. NO. E654 OF 2024 JDT P a g e 13 | 18

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Josphat Koli Nanok & another v Ethics and Anti-Corruption Commission [2018] eKLR, the Court affirmed that: “By undertaking investigations an investigating entity does not violate any constitutional rights. Indeed, violation of rights may only occur in the manner in which the investigative mandate is executed." 33. In the present case, the investigations were precipitated by a bona fide complaint arising from a high-value land transaction. The material placed before this Court demonstrates that the police gathered evidence suggesting that the Petitioner received funds under false pretences and, upon completion of the investigative process, duly forwarded the inquiry file to the Director of Public Prosecutions. The Petitioner has neither alleged nor demonstrated any procedural impropriety in the conduct of the investigations, nor has he established that the investigators acted mala fide. The interim orders earlier issued by this Court ensured that any searches undertaken complied with constitutional safeguards, and no violation thereof has been shown. It remains a settled principle that actions lawfully undertaken within the bounds of statutory authority do not, without more, constitute a violation of constitutional rights. 34. The Court further observes that both the investigative and prosecutorial agencies operated strictly within the constitutional and statutory framework. Upon completion of investigations, the Directorate of Criminal HCCHRPET. NO. E654 OF 2024 JDT P a g e 14 | 18

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Investigations transmitted the inquiry file to the Director of Public Prosecutions in accordance with established legal procedure. Pursuant to section 5(1)(b) of the Office of the Director of Public Prosecutions Act, the DPP independently reviewed the evidentiary material and, being satisfied that it disclosed offences under the Penal Code, directed that criminal proceedings be instituted. That determination constituted a proper and lawful exercise of constitutionally conferred prosecutorial discretion. 35. The Petitioner’s challenge to the DPP’s decision is equally untenable. Article 157(10) of the Constitution and section 6 of the Office of the Director of Public Prosecutions Act unequivocally safeguard the independence of the prosecutorial function. Meixner & Another v Attorney General [2005] KLR 189 and Kanyarati (supra) reaffirms that judicial interference with prosecutorial discretion is impermissible absent illegality or contravention of fundamental rights. In Meixner, the Court of Appeal emphatically stated: “The Attorney General has charged the appellants with the offence of murder in the exercise of his discretion under section 26(3)(a) of the Constitution. The Attorney General is not subject to the control of any other person or authority in exercising that discretion (section 26(8) of the Constitution). Indeed, the High Court cannot interfere with the exercise of the discretion if the Attorney General, in exercising his discretion, is acting lawfully. The High Court can, however, interfere with the exercise of the discretion if the Attorney General, in prosecuting the appellants, is contravening HCCHRPET. NO. E654 OF 2024 JDT P a g e 15 | 18

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their fundamental rights and freedoms enshrined in the Constitution...” 36. In similar vein, Kipoki Oreu Tasur v Inspector General of Police & 5 Others [2014] eKLR underscored that the criminal justice system is “a critical pillar in society which should be allowed to function without interference…except in the clearest of circumstances in which violation of fundamental rights…is demonstrated.” No such exceptional circumstances have been established in the present case. The Petitioner’s suggestion that the President could direct the DPP is wholly without legal foundation, and there is no evidence whatsoever of bad faith, extraneous influence, or improper motive in the decision to prosecute. 37. The Court further reiterates that any contest as to the merits of the charges conspiracy to defraud and obtaining money by false pretences properly lies within the province of the trial court. The Petitioner will enjoy the full panoply of constitutional safeguards under Article 50, including the right to challenge the prosecution’s evidence and to present his defence. The criminal trial, and not this constitutional forum, is the appropriate arena for the ventilation and determination of such issues. 38. The interim conservatory orders issued on 26 th November 2024 were limited in scope and intended solely to preserve the status quo. They restrained the Respondents from arresting, charging, or detaining the Petitioner, and from conducting warrantless searches. Such orders are not final determinations HCCHRPET. NO. E654 OF 2024 JDT P a g e 16 | 18

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and, in the absence of demonstrated irreparable harm, naturally lapse upon the resolution of the substantive Petition. 39. In Republic v DCI Buruburu ex parte Masha [2016] (citing Tusker Mattresses Ltd & 3 others [2013] eKLR), the Court cautioned that: "The Court must…take care not to trespass into the jurisdiction of the investigators or the Court which may eventually be called upon to determine the issues… It is not enough to simply inform the Court that the intended trial is bound to fail… The High Court ought not to interfere with the investigative powers conferred upon the police or the Director of Public Prosecution unless cogent reasons are given for doing so." 40. No cogent, compelling, or legally sustainable grounds have been demonstrated in the present Petition to warrant this Court’s intervention. 41. For the foregoing reasons, the Court finds that the investigations undertaken by the 2nd and 3rd Respondents were lawful exercises of their constitutional and statutory mandates. The 1st Respondent’s decision to prosecute was within the bounds of his independent discretion, and no violation of the Petitioner’s constitutional rights has been established. The Petition is therefore devoid of merit. The interim conservatory orders issued on 26 th November 2024 are accordingly discharged, and the criminal proceedings may lawfully continue. The Petitioner’s proper remedy lies in defending the charges in the trial court, not in pre-empting lawful prosecution. HCCHRPET. NO. E654 OF 2024 JDT P a g e 17 | 18

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42. Accordingly, the Petition and Notice of Motion are dismissed with costs. Orders a. The Petition is found to be without merit and is dismissed. b. The conservatory orders issued on 26th November 2024, are hereby discharged. c. No orders as to costs. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER 2025. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the 1st Respondent – Mr. Mulati Counsel for the 2nd & 3rd Respondent – Ms. Were h/b for Ms. Rukia Counsel for the Petitioner – No Appearance Court Assistant - Ms. Lwambia HCCHRPET. NO. E654 OF 2024 JDT P a g e 18 | 18

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