Bubble Engineering Co. Ltd & 1 other v The Honourable Attorney General & 4 others

VAGJIYANI HITEL VALJI ............................................................ 6TH RESPONDENT AND INNOVATIVE CONCEPT LIMITED (ICL) .......................... INTERESTED PARTY JUDGMENT Introduction 1. The Petition dated 27th July 2022 is founded upon allegations of abuse of state power in the purported enforcement of civil obligations, and thereby raises weighty constitutional questions touching on the alleged infringement of the Petitioners’ fundamental rights and freedoms. Central to the Petition is the arrest and subsequent detention of the 2nd Petitioner, William O. Owuor, a director of the 1st Petitioner, Bubble Engineering Co. Ltd, on 6th May 2022 at a construction site in Boyani Township, Vihiga County. It is contended that he was thereafter transported overnight to Nairobi and detained at Muthaiga Police Station, from where he was released the following day upon alleged payment of Kshs. 200,000, notwithstanding that the official cash bail receipt issued two days thereafter reflected a sum of Kshs. 60,000. The arrest is stated to have arisen from a complaint lodged by the 6th Respondent, Vagjiyani Hiten Valji, in respect of dishonoured cheques said to be connected to a disputed joint venture agreement between the 1st Petitioner and the Interested Party, Innovative Concept Limited. 2. The Petitioners aver that the 4th Respondent, a serving police officer, and the 5th Respondent, a civilian driver, acted in concert with the 6th Respondent to convert what was purely a civil contractual dispute into a criminal process, the predominant objective being to exert pressure and compel payment. They allege that the Respondents thereby engaged in arbitrary arrest and unlawful detention, and further subjected the 2nd Petitioner to physical and psychological coercion, extortion, and an abuse and perversion of the criminal justice process for extraneous and ulterior purposes. It is this impugned conduct that forms the gravamen of the present Petition before this Honourable Court. 3. The Petitioners are seeking the following reliefs from this court: a. A declaration that the respondents have contravened the 2nd Petitioner and are about to contravene all Petitioner’ right under Article 29 of the Constitution not to be deprived of freedom arbitrarily or without a just cause. b. A declaration that the Petitioner right under Article 27 (1) of the Constitution to equal protection and benefit of the law has been contravened and the same is about to continue. c. A declaration that the institution of and maintenance of the alleged criminal investigations and the intended institution of Criminal Charges against the Petitioners is an abuse of the process of the criminal court and powers of the 2nd ,3rd and 4th Respondents as the predominant object is to settle a business score and vex the Petitioner into ceding on issues relevant in a contract in favour of the Interested Party. d. A declaration that the 2nd Respondent lacks power to undertake investigations of matters which are subject of a civil dispute and with a clearly set out dispute resolution mechanism. e. A declaration that the 3rd and 4th Respondents lack power to carry out arrests of matters which are subject of a civil dispute and with a clearly set out dispute resolution mechanism. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 2

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f. An order do issue against the 1st, 2nd ,3rd and 4th respondents restraining them and their officers from undertaking investigation or arrest of Petitioner on its dispute with the Interested Party in any matter concerning Joint Venture Agreement dated 4th October, 2017 as the same is a civil dispute and that they do not have any jurisdiction to purport to resolve the same. g. An order that the criminal proceedings pursuant to the police cash bail receipt number No. 1699128 issued at Muthaiga Police Station which is under the jurisdiction of the 3rd Respondent’s and the intended charge at Milimani Law Courts or any other court in relation to the said impugned arrest and investigations be stayed permanently. h. A declaration that the 2nd petitioner’s right to freedom and security under Article 29 of the Constitution has been contravened by all the Respondents herein. i. An order prohibiting/ stopping the prosecution of the Petitioner in respect of the said investigations by the 2nd Respondent do issue in respect of the Joint Venture Agreement dated 4th October, 2017. j. An order that the respondents do pay the Petitioner’ vindicatory damages/general damages. k. An order that the 1st , 2nd and 4th respondents do pay the Petitioner exemplary damages. l. In the alternative to prayers J and K above, and order that the 4th , 5th and 6th Respondents be held to be personally liable for their illegal actions and that they do pay to the Petitioners vindicatory and exemplary damages. m. Any other orders that this Honourable Court may deem fit to grant. n. That the costs of this petition be provided for. 4. The Respondents categorically and emphatically deny each of the allegations levelled against them. The 2nd, 3rd, and 4th Respondents aver that the arrest of the 2nd Petitioner was lawful, justified, and anchored upon a bona fide complaint relating to the alleged offence of issuing dishonoured cheques. They further contend that the 2nd Petitioner was processed strictly in accordance with established police procedure, duly released on lawful cash bail, and that the allegations of mistreatment, coercion, or abuse of authority are wholly unsubstantiated, speculative, and calculated to obfuscate the 2nd Petitioner’s underlying financial obligations. 5. The 5th and 6th Respondents, being private individuals, similarly deny any collusion with law enforcement or any abuse, misuse, or manipulation of state authority. They maintain that their conduct was at all material times undertaken in good faith and within the confines of the law, for the sole purpose of pursuing recovery of a legitimate debt through appropriate and lawful channels. Background 6. The factual genesis of the present dispute is, in its essential contours, largely uncontested, the divergence arising principally in relation to its legal characterisation and attendant consequences. On or about 4th October 2017, the 1st Petitioner, Bubble Engineering Co. Ltd, entered into a Joint Venture Agreement with the Interested Party, Innovative Concept Limited (“ICL”), for the construction of a proposed apartment on land known as KISUMU/MANYATTA “A”/346. The said agreement was executed by the 2nd Petitioner, William O. Owuor, on behalf of the 1st Petitioner, while the 6th Respondent, Vagjiyani Hiten Valji, executed the same on behalf of the Interested Party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 3

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7. The terms of the said agreement provided, inter alia, that the Interested Party would contribute seventy per cent (70%) of the project capital and undertake the construction works, whilst the 1st Petitioner would contribute thirty per cent (30%) and, in return, receive a proportionate share of the proceeds. It is not in dispute that the said joint venture subsequently deteriorated. The Petitioners contend that the Interested Party was in fundamental breach of its contractual obligations, having abandoned the works and failed to perform its part of the bargain, thereby compelling the 2nd Petitioner to stop payment on certain post-dated cheques issued in facilitation of the project. The 6th Respondent, on the other hand, maintains that it was the Petitioners who failed to honour their financial obligations, resulting in the dishonour of the said cheques. 8. The dispute first came to the attention of law enforcement in January 2022, when the 6th Respondent lodged a complaint at Kisumu Central Police Station. The 2nd Petitioner subsequently presented himself before PC Mkalla, who, upon perusal of the documents and hearing the parties, is said to have expressed the view that the matter disclosed a civil contractual dispute falling outside the purview of police jurisdiction. 9. Tensions thereafter escalated on or about 15th March 2022, when the 2nd Petitioner received a telephone call from an individual identifying himself as “Mohammed” of the Directorate of Criminal Investigations (DCI), Nairobi. The said caller allegedly directed the 2nd Petitioner to present himself in Nairobi and, further, issued threats to his personal safety in the event of non-compliance. In response, counsel then on record for the Petitioners addressed a letter dated 17th March 2022 to the Interested Party and the said Mohammed, placing them on notice of the alleged threats and warning of attendant liability in the event of harm to the 2nd Petitioner. 10. The matter escalated further on 6th May 2022, when the 2nd Petitioner was accosted at his construction site in Boyani Township, Vihiga County, by the 4th Respondent, PC Patrick Omondi, accompanied by the 5th Respondent, Boniface Birisio, a civilian driver allegedly engaged by the 6th Respondent. The 2nd Petitioner was arrested and directed into their vehicle. According to the Petitioners, an ominous exchange ensued at the scene, including references to the “distance to River Yala,” which elicited unease among onlookers. The 2nd Petitioner was thereafter permitted to drive his own vehicle to Kisumu Central Police Station, where verbal authorisation was allegedly given for his transfer to Nairobi, without any corresponding entry in the Occurrence Book. 11. The journey to Nairobi was interrupted by an overnight detention at Kericho Police Station, where the 2nd Petitioner was booked under OB No. 47/6/5/2022. On the following day, he was released into the custody of the 4th Respondent under OB No. 14/7/5/2022. During the course of the said journey, the Petitioners allege that the 5th Respondent confiscated the 2nd Petitioner’s mobile telephones, restricted his communications, and issued threats of grave consequences, including reiteration of the alleged “River Yala” remark. It is further alleged that he was instructed to provide Kshs. 200,000 as cash bail upon arrival in Nairobi. 12. Upon arrival at Muthaiga Police Station, the 2nd Petitioner avers that he was escorted to an informal area behind the main offices, where the 6th Respondent was present. His fingerprints were taken, but no statement was recorded. It is further alleged that the 4th and 5th Respondents demanded immediate payment of Kshs. 1.6 million, being the alleged balance of the post-dated cheques, and the issuance of fresh cheques, under threat of continued detention in the event of non-compliance. 13. Under what he describes as duress, the 2nd Petitioner withdrew Kshs. 100,000 via M-PESA and transferred a further Kshs. 100,000 directly to one Austine Were, as directed. He was thereafter released on the condition that he delivers post-dated cheques to the 6th Respondent’s Kisumu office by 9th May https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 4

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2022, failing which he would be treated as a wanted criminal. Subsequently, on 10th May 2022, he was issued with cash bail receipt No. 1699128, reflecting payment of Kshs. 60,000, as opposed to the alleged Kshs. 200,000. 14. The 2nd Petitioner thereafter attended the Milimani Law Courts on 20th May 2022, only to be informed that no corresponding file existed. Acting on legal advice, he ceased honouring the post-dated cheques which he contends were issued under compulsion. This precipitated renewed threats, prompting him to lodge a complaint at Nairobi Central Police Station under OB No. 45/13/7/2022. Correspondence seeking clarification on the cash bail and the legality of his arrest was addressed to the OCS Muthaiga Police Station and escalated to the OCPD Muthaiga Division, and a formal complaint was lodged with the Independent Policing Oversight Authority (IPOA), all of which, it is alleged, elicited no response. 15. The Respondents’ narrative materially diverges. The 4th Respondent avers that he was conducting a bona fide investigation into complaints of dishonoured cheques lodged on 15th March 2022. He states that the 2nd Petitioner failed to respond to lawful summons, thereby necessitating his arrest. He concedes the use of the 5th Respondent’s vehicle but denies any confiscation of mobile telephones, threats, or other abuse of process, asserting instead that the 2nd Petitioner remained in communication throughout the journey. He further contends that upon arrival at Muthaiga Police Station, relatives of the 2nd Petitioner, including an Officer Commanding Station from Spring Valley Police Station, were present, thereby negating allegations of incommunicado detention. He maintains that cash bail of Kshs. 60,000 was lawfully processed and that the 2nd Petitioner declined to record a statement. 16. The 3rd Respondent, Chief Inspector John Muu, OCS Muthaiga Police Station, disclaims detailed knowledge of the events in question, confirming only that the 2nd Petitioner was booked on 7th May 2022 and released on lawful cash bail. The 5th Respondent avers that he acted purely in the capacity of a driver and denies any participation in intimidation or threats. The 6th Respondent acknowledges the existence of the joint venture and issuance of cheques but denies any collusion with law enforcement officers or engagement in unlawful conduct, characterising his actions as legitimate debt recovery. The Petitioners' Case 17. The Petitioners, through the Supporting Affidavit sworn by the 2nd Petitioner and his detailed Supplementary Affidavit, allege a pattern of systemic violations of their fundamental rights and freedoms arising from what they characterize as a coordinated scheme involving both State and nonState actors. 18. It is the Petitioners’ case that the dispute at the core of these proceedings is purely civil and contractual in nature. They rely, inter alia, on the initial engagement at Kisumu Central Police Station, where PC Mkalla is said to have formed the view that the matter disclosed a civil dispute falling outside the ambit of police jurisdiction. The Petitioners contend that this determination ought to have guided subsequent action by the 2nd Respondent. They further submit that the later complaint in Nairobi, coupled with what they term an aggressive and high-handed arrest, amounted to a deliberate act of forum shopping by the 6th Respondent, who, being dissatisfied with the earlier police response in Kisumu, is alleged to have sought recourse to a more compliant forum in Nairobi so as to pursue private interests through the criminal justice system. 19. Central to the Petitioners’ grievance is the contention that the arrest and subsequent detention of the 2nd Petitioner was fundamentally defective, procedurally irregular, and actuated by bad faith. They underscore the alleged absence of a formal complaint preceding the allocation of an Occurrence Book number. They further point to annexed material, including cheques dated subsequent to the arrest, which they contend demonstrates that the detention was pre-emptive and calculated to compel https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 5

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payment. The involvement of a private vehicle driven by the 5th Respondent, together with the participation of an employee of the complainant in the arrest and transportation process, is cited as evidence of impropriety, bias, and abdication of police impartiality. The alleged diversion via River Yala and the purported references to its proximity are presented as acts of psychological intimidation intended to break the resolve of the 2nd Petitioner. 20. The Petitioners further allege that the sum of Kshs. 200,000 was extracted under the guise of cash bail but was in truth obtained through coercion and intimidation. They contend that this payment was not voluntary or lawful. They further rely on the official cash bail receipt issued two days after release, which reflected Kshs. 60,000 and bore no police station stamp, and which, according to the Petitioners, was obtained by the 2nd Petitioner’s nephew, one James Swaka Nesabo, on 19th May 2022. The said affidavit evidence further asserts that upon presentation of the receipt to the 4th Respondent for purposes of extending the court date, the nephew was informed that it was unnecessary as the cheques had already been received, a fact which the Petitioners contend demonstrates undue and continuing control by the 4th Respondent over the process. 21. The Petitioners anchor their pleadings on the established constitutional threshold for precision in the articulation of rights violations as enunciated in Anarita Karimi Njeru v Republic [1979] KLR 154 and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. They contend that they have met this threshold with sufficient particularity by expressly identifying the rights allegedly infringed under Articles 26, 27, 29, 40, 47, 48, 49, and 50 of the Constitution, and by setting out a detailed factual foundation supported by sworn affidavit evidence. 22. The Petitioners invite the Court to draw an adverse inference from what they describe as the Respondents’ failure to produce material documents relevant to the impugned arrest and prosecution process. These include, inter alia, the initial complaint, the complainant’s statement, any application for a warrant of arrest, and photographic or documentary evidence of the alleged dishonoured cheques forming the basis of the complaint. They further contend that the 3rd Respondent’s failure to respond to the Petitioners’ letter dated 14th July 2022 constitutes a violation of their right to information under Article 35 of the Constitution and amounts to a breach of the right to fair administrative action. 23. The Petitioners rely on the decision in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, which adopted with approval the reasoning in Dendy v University of Witwatersrand, Johannesburg & others [2006] 1 LRC 291, to the effect that upon proof of constitutional violations, the Court is empowered to grant appropriate relief, including declaratory orders and damages. They further rely on Akusala A. Borniface v OCS Langata Police Station & 4 others [2018] eKLR and MWK & another v Attorney General & 4 others; Independent Medical Legal Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 for guidance on the assessment of damages. On that basis, they pray for an award of Kshs. 7,000,000 to each Petitioner as general and exemplary damages, contending that the multiplicity and gravity of the alleged violations, coupled with the aggravated conduct attributed to the Respondents, justify a substantial award. The Respondents’ Case 3Rd Respondent’s Case 24. The 3rd Respondent, John Muu, swore a Replying Affidavit opposing the Petitioners’ Notice of Motion dated 27th July 2022, wherein, in his capacity as the Officer Commanding Station (OCS) at Muthaiga Police Station, he deposes that the application is wholly misconceived, misleading, and intended to misdirect this Honourable Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 6

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25. He avers that the 2nd Petitioner was lawfully arrested and duly booked at the said station on 7th May 2022 under Occurrence Book (OB) No. 19/07/05/2022, in strict compliance with established police procedures, and was subsequently released vide OB No. 23/07/05/2022 pursuant to lawful instructions issued by a superior officer. He further maintains that the cash bail of Kshs. 60,000 was properly receipted through an official police receipt, thereby firmly rebutting any allegations of impropriety or falsification. 26. The 3rd Respondent contends that, at no time during the arrest or detention did the 2nd Petitioner raise any complaint of assault, and asserts that the present allegations are a mere afterthought, devoid of credibility. He categorically denies any misuse of police facilities or any irregular engagement with other police stations, describing such allegations as baseless and unsubstantiated. 27. He further depones that investigations into the matter are ongoing and are being conducted in accordance with due process, and that all relevant parties were afforded an opportunity to record statements, which opportunity the 2nd Petitioner declined. 28. The 3rd Respondent characterizes the application as having been instituted in bad faith, amounting to an abuse of the court process and a calculated attempt to impede lawful investigations, particularly in relation to allegations concerning the issuance of a bad cheque. He accordingly urges the Court to dismiss the application with costs so as to allow the due course of investigations and the proper administration of justice. The 4Th Respondent's Case 29. The 4th Respondent, Patrick Omondi, swore a Replying Affidavit in opposition to the Petition and the Notice of Motion dated 27th July 2022 in his capacity as the investigating officer attached to the Directorate of Criminal Investigations Headquarters. He deposes that both the Petition and the Application are founded on a material misrepresentation of facts and are calculated to defeat the ends of justice. 30. He avers that the matter stems from a complaint lodged on 15th March 2022 by the 6th Respondent relating to the offence of issuing a bad cheque contrary to section 316A(1)(c) of the Penal Code. He contends that, notwithstanding being accorded an opportunity to amicably resolve the dispute and being duly summoned by officers of the Directorate of Criminal Investigations, the 2nd Petitioner failed to honour such summons, thereby necessitating his arrest. 31. The 4th Respondent further deposes that, acting pursuant to lawful instructions, he proceeded to Kisumu and effected the arrest of the 2nd Petitioner at the Boyani area, after which the Petitioner was escorted to Nairobi. He expressly refutes the allegation that the Petitioner was taken to River Yala or subjected to any unlawful treatment, maintaining that the route followed was Kisumu–Kericho– Nakuru–Nairobi, as corroborated by call data records. He adds that, owing to logistical constraints, the Petitioner was lawfully detained overnight at Kericho Police Station under OB No. 47/6/5/2022 and subsequently collected under OB No. 14/7/5/2022 before the journey to Nairobi resumed. 32. Upon arrival at Muthaiga Police Station, the 2nd Petitioner was booked under OB No. 19/07/05/2022 and temporarily released under OB No. 20/7/5/2022 to engage the complainant in discussions. The deponent maintains that throughout the arrest, transit, and detention, the Petitioner neither raised any complaint of assault nor was subjected to any form of mistreatment, and that he remained in communication with his relatives, who received him at the station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 7

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33. He further avers that, upon consultation with his superior, the 2nd Petitioner was released on cash bail in the sum of Kshs. 60,000 pursuant to lawful instructions, which release was duly recorded under OB No. 23/07/05/2022, and that an official receipt was subsequently issued. He categorically denies any allegations of threats, coercion, or irregularities in the bail process. 34. Finally, the 4th Respondent asserts that the 2nd Petitioner declined to record a statement in the absence of counsel and that investigations are ongoing, being conducted in good faith and in accordance with due process. He characterizes the Petition as an abuse of the court process, instituted in bad faith to obstruct lawful investigations arising from the complaint of issuing a bad cheque, and accordingly urges the Court to dismiss the same. 5Th Respondent’s Case 35. The 5th Respondent, Boniface Birisio, swore a Replying Affidavit in opposition to the Petitioners’ Application dated 27th July 2022, which he characterizes as misleading, replete with falsehoods, and amounting to a manifest abuse of the court process. 36. He deposes that he is a driver acting under the instructions of his employer and that, on 6th May 2022, he accompanied the 4th Respondent, Patrick Omondi, to Kisumu solely for the purpose of identifying the 2nd Petitioner. He maintains that his role was strictly circumscribed to that of a driver and identifier, and that he neither participated in the arrest nor exercised any form of authority over the 2nd Petitioner. 37. The 5th Respondent avers that the arrest of the 2nd Petitioner was lawfully effected by police officers in the course of criminal investigations relating to the alleged offence of issuing a bad cheque, and that the Petitioner did not resist arrest. He further states that the 2nd Petitioner was permitted to drive his motor vehicle to Kisumu Central Police Station, where he made arrangements for its collection, and thereafter voluntarily accompanied the officers to Nairobi without being handcuffed or subjected to any form of coercion. 38. He refutes, in the strongest terms, the allegations of harassment, assault, confiscation of personal effects, or denial of communication, asserting that throughout the journey the 2nd Petitioner remained in possession of his mobile phone, communicated freely with his associates, and conducted himself in a calm and cooperative manner. He further denies that the Petitioner was taken to River Yala or subjected to any threats, including the alleged death threats, terming such assertions as wholly fictitious and devoid of any factual foundation. 39. The deponent further confirms that, owing to the length of the journey, a stopover was made at Kericho Police Station where the 2nd Petitioner was lawfully booked overnight, and that the following day they proceeded to Muthaiga Police Station. Upon arrival, the 2nd Petitioner was able to summon and meet his relatives, including a senior police officer, thereby effectively negating the allegation that he was held incommunicado. 40. He expressly disavows any collusion with the other Respondents or any misuse of governmental authority, emphasizing that he is a private citizen who holds no public office. He further avers that, subsequent to his release, the 2nd Petitioner returned to Kisumu and voluntarily issued fresh cheques in fulfilment of his prior undertaking, thereby, in his view, undermining the credibility of the present claims. 41. In conclusion, the 5th Respondent contends that the Application is a belated afterthought, instituted in bad faith and calculated to obstruct the due administration of justice, and accordingly urges the Court to dismiss it in its entirety https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 8

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THE 6TH RESPONDENT AND INTERESTED PARTY'S CASE 42. The 6th Respondent and Interested Party, Vagjiyani Hiten Valji, swore a Replying Affidavit in opposition to the Petitioners’ Application dated 27th July 2022, which he characterizes as misleading, false, and constituting an abuse of the court process. 43. He deposes that he entered into a joint venture agreement with the 2nd Petitioner in respect of a construction project in Kisumu, following the Petitioner’s representation that he had secured a tender but lacked financial capacity. Pursuant thereto, he avers that he contributed substantial resources, including labour and building materials, towards the execution of the project. 44. He further states that the 2nd Petitioner later informed him that he had secured financing and would proceed independently, prompting a reconciliation of accounts in which it was agreed that the 2nd Petitioner would refund a sum of Kshs. 2,400,000 being monies expended by the Interested Party. In purported settlement of this obligation, the 2nd Petitioner issued three cheques of Kshs. 800,000 each, of which only one was honoured, while the remaining two were dishonoured upon presentation. 45. Despite repeated demands and reminders, the 2nd Petitioner allegedly failed to meet his obligations, necessitating a complaint to the Directorate of Criminal Investigations concerning the issuance of bad cheques. He states that the Petitioner was duly summoned in relation thereto but failed to honour the summons, thereby prompting further investigative action. 46. He maintains that the arrest of the 2nd Petitioner was lawfully undertaken within the course of criminal investigations and was not actuated by any intent to harass or intimidate him. He further avers that, following his arrest and engagement at Muthaiga Police Station, the 2nd Petitioner acknowledged the indebtedness and sought time to settle the same, subsequently issuing replacement cheques upon his return to Kisumu, which were again dishonoured. 47. The Interested Party contends that the 2nd Petitioner remains indebted in the sum of Kshs. 1.6 million and that the present proceedings are aimed at evading lawful obligations. He denies any allegations of intimidation, coercion, or abuse of state power, and further avers that he holds no public office and has neither colluded with State actors nor engaged in any unlawful conduct. The 1StTo 4Th Respondents' Submissions 48. The 1st to 4th Respondents submitted that the Application for conservatory orders fails to satisfy the established legal threshold governing the grant of such relief. Reliance was placed on the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, wherein it was held that conservatory orders are public law remedies grounded in constitutional values and the public interest, rather than private notions of irreparable harm or likelihood of success. 49. Further reliance was placed on Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR, where the Court set out guiding principles requiring an applicant to demonstrate, inter alia, a prima facie arguable case, likely prejudice in the absence of relief, enhancement of constitutional values, risk of rendering the petition nugatory, and whether public interest favours the grant of such orders. 50. Applying these principles, the Respondents contended that the Petitioners seek to restrain constitutionally and statutorily mandated investigative functions of the police without demonstrating sufficient legal basis. They argued that the allegations of death threats and misconduct by the 4th Respondent remain unsubstantiated, having not been reported to any competent oversight or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 9

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disciplinary authority, including the Independent Policing Oversight Authority or internal police mechanisms. 51. It was further submitted that the existing conservatory orders have unduly impeded ongoing investigations into a cognizable offence, thereby hampering the statutory mandate of investigative agencies and prejudicing the complainant, the 6th Respondent and Interested Party. The Court was urged to note that the dispute arises from a joint venture arrangement between the parties, which has given rise to the underlying complaint under investigation. 52. The Respondents emphasized that the Petitioner is already on bond and not in custody, and that adequate legal safeguards exist within the criminal justice system to protect his rights should any prosecution ensue. They further argued that public interest weighs heavily in favour of allowing investigations to proceed to their lawful conclusion, rather than maintaining interim orders that obstruct the investigative process. 53. Accordingly, it was submitted that the Application is devoid of merit and should be dismissed to enable the police to conclude their investigations into the complaint lodged. The 6Th Respondent And Interested Party’s Submissions 54. The 6th Respondent and Interested Party submitted that the Petition and Application are wholly devoid of merit, misconceived, and predicated upon unsubstantiated allegations that fall short of the constitutional threshold governing pleadings of alleged violations of fundamental rights and freedoms. Reliance was placed on the settled principles in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance, which underscore the requirement for precision in constitutional pleadings, including clear identification of the specific rights allegedly infringed, the manner of infringement, and the reliefs sought. 55. It was contended that the Petition is founded on generalized, speculative, and unparticularised averments, including allegations of threats, intimidation, and violations of Articles 29, 49, and 50 of the Constitution, none of which are supported by any evidentiary foundation. In particular, the allegations that the 6th Respondent orchestrated or exercised control over police officers, or issued threats to kill the Petitioner, were firmly denied as baseless and unsupported by any credible material. 56. The 6th Respondent maintained that the dispute emanates from a lawful joint venture agreement under which the Petitioners incurred a contractual obligation to refund monies advanced for a construction project, and that the issuance of cheques which were subsequently dishonoured formed the basis of a legitimate complaint and ensuing investigative process. It was further submitted that the Petitioner’s grievances are, in substance, an attempt to evade contractual obligations rather than a bona fide constitutional grievance. 57. On the issue of conservatory orders, it was argued that the Petitioner failed to satisfy the applicable legal threshold as articulated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others and Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others, particularly the requirement to establish a prima facie case, demonstrate potential prejudice, and show alignment with public interest. It was contended that the grant of the orders sought would unduly impede lawful investigative processes and run contrary to the public interest, particularly where statutory bodies are discharging their constitutional mandate. 58. With regard to the prayer for a permanent injunction, reliance was placed on Bandari Investments & Co. Ltd v Martin Chiponda & 139 Others, and it was submitted that the Petitioner failed to establish any legal or factual basis for the perpetual restraint of lawful investigative or prosecutorial functions. It https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 10

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was further contended that the Petitioner had neither demonstrated irreparable harm nor established any arguable constitutional infringement. 59. The 6th Respondent further submitted that the Petition constitutes an abuse of the court process, having been instituted in bad faith with the sole objective of frustrating recovery of a lawful debt arising from a joint venture arrangement, in respect of which the Petitioner remains indebted in the sum of Kshs. 1.6 million. It was further emphasized that the existence of criminal proceedings alongside civil liability is expressly sanctioned under Section 193A of the Criminal Procedure Code. 60. It was urged that the Petition discloses no violation, whether actual or threatened, of the constitutional provisions invoked by the Petitioner, and is instead anchored on speculative assertions intended to obstruct lawful processes of accountability. Analysis And Determination 61. Having carefully considered the pleadings, the affidavit evidence on record, the written submissions of all parties, and the applicable constitutional and statutory framework, the Court is of the view that the following issues arise for determination: i. Whether the Petition meets the constitutional threshold of reasonable precision. ii. Whether the arrest and subsequent detention of the 2nd Petitioner was lawful, reasonable, and compliant with the Constitution and applicable statutory provisions. iii. Whether the 2nd Petitioner’s rights under Articles 29, 31, 47, 48, 49, and 50 of the Constitution were violated in the circumstances of this case. iv. Whether the alleged extraction of Kshs. 200,000/= from the 2nd Petitioner and issuance of a receipt for Kshs. 60,000/= amounted to a violation of Article 40 of the Constitution. v. Whether the complaint lodged and the ensuing investigations constitute an abuse of the criminal justice process, or amount to an improper use of criminal process for purposes of enforcing a civil obligation. vi. Whether the Petitioners are entitled to the reliefs sought. Whether the Petition meets the constitutional threshold of precision in pleading 62. Before embarking on an inquiry into the merits of a constitutional petition, a court must first satisfy itself that the pleadings meet the requisite constitutional threshold of precision. This foundational doctrine, first articulated in Anarita Karimi Njeru v Republic and subsequently affirmed and refined by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance, requires that a party alleging violation of constitutional rights must plead with reasonable clarity the provisions of the Constitution said to have been infringed and the manner in which such infringement is alleged to have occurred. The Court of Appeal further emphasized that while precision does not connote mathematical exactitude, it demands sufficient particularity to enable the adverse party to understand the case it is called upon to answer and to respond effectively thereto. 63. The 4th Respondent, 6th Respondent and the Interested Party contest the competence of the Petition on this ground, contending that it is couched in generalized averments devoid of the requisite specificity, and urge the Court to strike it out for failure to meet the Anarita Karimi Njeru threshold. 64. Upon careful examination of the Petition dated 27th July 2022 together with the supporting affidavits, this Court is unable to accede to that invitation. The Petition expressly invokes Articles 26, 27, 29, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 11

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40, 47, 48, 49 and 50 of the Constitution. More significantly, the factual foundation underpinning the alleged violations is set out with considerable detail and chronological coherence across the supporting affidavits. The narrative traverses the genesis of the dispute in the joint venture arrangement in 2017, the intervention by police in Kisumu in January 2022, the alleged threats in March 2022, the arrest and transportation of the 2nd Petitioner in May 2022, the events at Muthaiga Police Station, the contested cash bail process, and subsequent attempts at redress. 65. The true measure of compliance with the requirement of precision in constitutional pleadings is not to be found in stylistic elegance, but in whether the pleadings sufficiently apprise the adverse parties of the case they are required to meet. In the present matter, the Respondents have demonstrated, through detailed replying affidavits and comprehensive submissions, a clear and consistent understanding of the factual and legal issues in controversy. As aptly stated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance, pleadings serve to define the issues in dispute and thereby advance fairness in the adversarial process. The Court expressed itself in the following terms: “ Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that requires reasonable precision in framing constitutional petitions is an extension of this principle.” 66. In that regard, the Petition before this Court has sufficiently discharged its defining function of crystallising and delineating the issues for determination. 67. The Court is further guided by the enduring principle articulated in Thorp v Holdsworth (1876) 3 Ch. D. 637, as cited with approval in Mumo Matemu v Trusted Society of Human Rights Alliance, that the primary object of pleadings is to confine the parties to defined issues, thereby preventing the expansion of the dispute in a manner that would occasion unnecessary expense, delay, or evidential confusion. In that regard, Jessel, M.R. stated as follows: “ The whole object of pleadings is to bring the parties to an issue... to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was.” 68. In the present case, the pleadings have succeeded in crystallising a coherent set of factual and legal issues for determination by this Court. No prejudice has been demonstrated by any of the Respondents arising from the manner in which the case has been framed. On the contrary, the detail and specificity of the responses filed by the Respondents evince a clear and comprehensive appreciation of the issues in controversy. 69. While the Petition may not exemplify optimal drafting refinement, it nevertheless substantially meets the constitutional standard of reasonable precision. To insist upon a more exacting threshold would be to elevate form over substance, contrary to the dictates of Article 159(2)(d) of the Constitution, which obliges courts to administer justice without undue regard to procedural technicalities. The Petition is therefore properly before this Court and is fit for determination on its merits. Whether the arrest and subsequent detention of the 2nd Petitioner was lawful, reasonable, and compliant with the Constitution and applicable statutory provisions 70. The lawfulness of an arrest is the foundational predicate to any subsequent deprivation of liberty. Where the initial arrest is unlawful, all consequential actions, including detention and investigative processes, are thereby tainted and rendered constitutionally infirm. Under section 36 of the Criminal Procedure Code, a police officer is empowered to effect an arrest without warrant where there exists https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 12

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reasonable suspicion that a person has committed a cognizable offence, including the offence of issuing a bad cheque contrary to section 316A of the Penal Code. However, the mere existence of statutory authority is not self-executing, its exercise must be anchored upon objectively justifiable grounds constituting reasonable suspicion, assessed at the time of arrest and not by reference to subsequent justification. 71. The governing test for reasonable suspicion is that it must be founded on facts or information within the knowledge of the arresting officer at the time of arrest, sufficient to satisfy an objective observer that the suspect may have committed the offence. It does not require proof of guilt or a prima facie case, but it must transcend mere conjecture or post facto justification. 72. This position was succinctly articulated in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] A.C. 286, where the House of Lords stated that reasonable suspicion must be based on objective information existing at the time of arrest. In that regard, the Court stated: “ The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest.” 73. The import of the foregoing is that the legality of an arrest must be assessed strictly against the material available to the arresting officer at the time the decision to arrest was made, and not on subsequent reconstruction or supplementation of evidence. 74. In the present case, the 4th Respondent asserts that a complaint was lodged on 15th March 2022. However, no contemporaneous material has been placed before the Court to demonstrate the existence of such complaint at the time of arrest. In particular, there is no Occurrence Book extract, no complainant’s statement, and no returned cheque or documentary evidence capable of grounding a suspicion as at 6th May 2022. The documents annexed as “PO-2” are dated subsequent to the arrest and therefore cannot retrospectively validate it. 75. In the absence of such foundational evidence, the assertion of reasonable suspicion remains unsubstantiated. The burden rests upon the arresting authority to demonstrate the factual basis upon which the decision to arrest was founded. Where no such basis is disclosed or proved, the Court is entitled to draw an adverse inference that no objectively verifiable grounds existed at the material time 76. The Court is further concerned with the manner in which the arrest was effected. The participation of the 5th Respondent, a civilian and employee of the complainant, in the arrest and the prolonged transportation of the 2nd Petitioner over a distance of approximately 300 kilometers, falls outside the contemplation of lawful police procedure. While civilian assistance to law enforcement may, in limited and exceptional circumstances, be permissible, such involvement must not compromise the independence, neutrality, and operational control of the arresting officers. On the evidence before Court, there was an impermissible degree of integration of the complainant’s agent into the arrest process, which is incompatible with constitutionally compliant policing 77. The subsequent detention of the 2nd Petitioner equally raises constitutional concerns under Article 49 of the Constitution. Although the Respondents rely on call records to demonstrate that communication occurred, the right under Article 49(1)(f) is not satisfied by the mere fact of making supervised or controlled calls. The right contemplates free, unimpeded, and effective access to legal counsel and other necessary assistance, which has not been demonstrated on the facts presented before this Court. 78. In the premises, the Court finds that the Respondents have failed to establish the existence of reasonable suspicion at the time of arrest, and that the manner and circumstances of detention fell short of the constitutional and statutory safeguards governing arrest and detention. Accordingly, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 13

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arrest and subsequent detention of the 2nd Petitioner were unlawful, unreasonable, and in violation of the Constitution. Whether the 2nd Petitioner’s rights under Articles 29, 31, 47, 48, 49, and 50 of the Constitution were violated in the circumstances of this case. 79. Having found that the arrest and detention of the 2nd Petitioner was unlawful, the Court now turns to consider whether the conduct complained of amounted to violations of the specific constitutional rights invoked under the Bill of Rights, and the extent of such violations. 80. Article 29 of the Constitution guarantees the right to freedom and security of the person, including the right not to be arbitrarily deprived of liberty or subjected to violence from either public or private sources. The arbitrary deprivation of liberty already established herein constitutes a clear infringement of Article 29(a). In addition, the evidence of threats allegedly communicated to the 2nd Petitioner, including statements calculated to induce fear of harm, if accepted, amount to psychological violence within the meaning of Article 29(d) and (f), thereby offending the constitutional guarantee of personal security. 81. Closely linked to personal security is the protection of privacy under Article 31. That provision safeguards, inter alia, the right not to have one’s person, home or property searched, possessions seized, or private communications interfered with unjustifiably. The Court accepts the 2nd Petitioner’s evidence that his mobile telephones were confiscated and that his communications were thereafter subjected to control by the 5th Respondent. In the contemporary constitutional dispensation, a mobile telephone is not a mere communication device but a repository of deeply personal and sensitive information, including financial data, private correspondence, and records of social and relational associations. 82. The seizure of such a device, and the subsequent regulation of communications emanating therefrom, in the absence of lawful authority and demonstrable justification, constitutes a clear interference with the right to privacy. No evidence has been placed before the Court to establish that such interference was sanctioned by law or that it met the constitutional threshold of proportionality. Accordingly, the Court finds that the said conduct amounts to an unjustified limitation of the right to privacy, in contravention of Article 31(a) and (b) of the Constitution. 83. The conduct of public authorities is further circumscribed by Article 47 of the Constitution, which guarantees to every person the right to administrative action that is lawful, reasonable, expeditious, and procedurally fair. The sequence of events surrounding the arrest, detention, and the alleged cash bail process, as already examined by this Court, fell short of these constitutional imperatives. 84. This deficiency is further compounded by the failure of the 3rd Respondent to respond to the Petitioners’ advocates’ letter dated 14th July 2022, which constituted a legitimate and timeous request for information. Such non-response amounts to administrative inaction inimical to the constitutional duty of fairness and reasonableness, and is inconsistent with the standards of accountability and responsiveness required of public administration under Article 47 of the Constitution. 85. The centrality of fair administrative action was emphasised in George Joshua Okungu & Another v Chief Magistrate’s Court Anti-Corruption Court at Nairobi & Another [2014] eKLR, where the Court stated: “ Under Article 47(1) of the Constitution, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 14

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86. The Court further underscores that administrative and investigative processes must be conducted with expedition, fairness, and constitutional fidelity, failing which the legitimacy of state action is undermined. In the present case, the manner in which the impugned administrative and investigative processes were undertaken falls short of this constitutional standard. In this regard, the Court is guided by the decision in Republic v Chief Magistrate’s Court at Mombasa ex parte Ganijee & Another [2002] eKLR, where the Court stated: “ It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement or frustration of their civil cases. That is an abuse of the process of the court… When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process.” 87. Article 48 guarantees the right of access to justice. This right extends beyond the formal ability to institute proceedings to include the entitlement to have disputes resolved through appropriate legal processes without distortion, manipulation, or improper use of state power. Where criminal process is deployed for collateral purposes, it distorts access to the proper forum for dispute resolution and undermines the constitutional guarantee. 88. The import of the foregoing dictum is that the criminal justice system must not be deployed as an instrument for the enforcement of civil obligations or for exerting pressure in private disputes. Such misuse constitutes a distortion of the proper forum for dispute resolution and a subversion of the constitutional framework governing access to justice. 89. Article 49 of the Constitution sets out the rights of arrested persons and prescribes specific procedural safeguards designed to guard against arbitrariness. On the evidence placed before this Court, several infractions are disclosed. These include the failure to promptly inform the 2nd Petitioner of the reasons for his arrest in a language that he understands, contrary to Article 49(1)(a, the failure to afford him effective and unimpeded access to legal counsel, contrary to Article 49(1)(f) and the failure to present him before a court as soon as reasonably practicable, contrary to Article 49(1)(g). 90. The 2nd Petitioner’s overnight detention and subsequent transportation without judicial presentation are inconsistent with these constitutional guarantees. The purported release on cash bail, in the manner already considered by this Court, does not remedy or cure the aforesaid violations. 91. Finally, Article 50 of the Constitution guarantees the right to a fair hearing, including the right not to be compelled to give self-incriminating evidence. The Court accepts that the circumstances under which the 2nd Petitioner issued the cheques were inherently coercive, having occurred in a context of detention and undue pressure, and in the absence of the essential safeguard of legal representation. Any such admissions or undertakings cannot, in law, be regarded as voluntary within the meaning of Article 50(2)(c) and (4), and are accordingly constitutionally infirm. 92. In the premises, and upon a holistic evaluation of the evidence on record and the applicable constitutional standards, the Court finds that the conduct of the Respondents resulted in violations of the 2nd Petitioner’s rights under Articles 29, 31, 47, 48, 49, and 50 of the Constitution, to the extent established. Whether the alleged extraction of Kshs. 200,000/= from the 2nd Petitioner and issuance of a receipt for Kshs. 60,000/= amounted to a violation of Article 40 of the Constitution 93. The right to property under Article 40 of the Constitution guarantees every person protection against arbitrary deprivation of property. The extraction of Kshs. 200,000/= from the 2nd Petitioner, ostensibly https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 15

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under the guise of cash bail, constitutes an arbitrary deprivation of property. Cash bail is a lawful mechanism intended solely to secure the attendance of an accused person before a court of law, and its imposition and collection are subject to clear and regulated procedures. The sequence of events in the present case bears no resemblance to a lawful or procedurally compliant cash bail process. 94. First, the 2nd Petitioner placed before the Court his M-PESA statements, which the Court has carefully scrutinised. The statements for 7th May 2022 reflect a withdrawal of Kshs. 100,000/= at 15:23:17 and a transfer of Kshs. 50,000/= to one Austine Were at 15:11:38. His uncontroverted account is that he withdrew Kshs. 100,000/= in cash and transferred a further Kshs. 100,000/= via mobile money, totalling Kshs. 200,000/=. The 4th Respondent’s response is a bare denial devoid of evidentiary support. No explanation is offered as to the source of the Kshs. 60,000/= eventually receipted, nor is the glaring discrepancy in the amounts accounted for. 95. Secondly, the purported cash bail receipt No. 1699128 raises serious questions as to its authenticity. It reflects an amount of Kshs. 60,000/=, is dated 9th May 2022, two days after the 2nd Petitioner’s release and bears neither a police station stamp nor the signature of the issuing officer. The 3rd Respondent, in his affidavit, conceded that he was away on official duty on 7th May 2022 and only returned thereafter. While this may explain the delayed issuance of the receipt, it does not account for the inconsistency in the amount receipted. If indeed only Kshs. 60,000/= was paid, no plausible explanation has been advanced as to why the 2nd Petitioner was urgently soliciting Kshs. 200,000/= from third parties, or why his M-PESA records reflect substantial withdrawals on the material date. 96. Thirdly, it is now well settled that where a constitutional violation is established, the Court is empowered to grant appropriate relief, including declaratory orders and compensation. The extraction of money in the circumstances of this case was not a lawful transaction but amounted to extortion perpetrated within a police station by a police officer, acting in concert with a civilian. This conduct constitutes a grave violation of the right to property and a manifest abuse of public office. The 2nd Petitioner is accordingly entitled to restitution and appropriate compensation. Whether the complaint lodged and the ensuing investigations constitute an abuse of the criminal justice process, or amount to an improper use of criminal process for purposes of enforcing a civil obligation 97. The criminal justice system is designed to investigate and punish criminal conduct; it is not to be deployed as an instrument for the enforcement of civil obligations or the settlement of private disputes. This Court is vested with both inherent and constitutional jurisdiction to prevent abuse of its process, including at the investigatory stage. 98. The applicable legal position is well captured in R vs. Attorney General ex parte Kipngeno Arap Ngeny, where the Court stated: “ ...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious... Where the criminal prosecution amounts to nothing more than an abuse of the process of the court, the Court will employ its inherent power... to stop it... A prosecution that does not accord with an individual’s freedoms and rights under the Constitution will be halted... A prosecution that is oppressive and vexatious is an abuse of the process of the Court... It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals...” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 16

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99. This principle has been consistently affirmed, including in Commissioner of Police & Director of Criminal Investigations Department & another v Kenya Commercial Bank Ltd & 4 others, where it was held that the Court must intervene where the criminal process is being used as a mechanism for oppression or for ulterior purposes. 100. Further, as observed by Kimaru, J in Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others: “ The court has an inherent jurisdiction to preserve the integrity of the judicial process... It can be used properly but can also be used improperly, and so abused... when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage... it would be wrong to allow the misuse of that process to continue... there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings...” 101. This supervisory jurisdiction extends not only to prosecutions already instituted but also to investigations undertaken for improper or collateral purposes. However, the Court is mindful that the threshold for interfering with investigative and prosecutorial mandates is a high one, and such intervention is only warranted where it is demonstrated that the process is being employed for a purpose other than that which it was designed to serve, or where no cognisable criminal offence is disclosed. 102. In the present case, the totality of the material placed before the Court demonstrates that the dispute between the parties was, at its core, contractual. Upon initial reporting in Kisumu, and following a review of the relevant documentation, the police formed the view that the matter disclosed a civil dispute. While the Respondents assert that a complaint was lodged, no contemporaneous primary material has been placed before this Court such as an Occurrence Book extract, contemporaneous complaint statement, or evidential material capable of disclosing a cognisable offence at the time of arrest to demonstrate the factual basis upon which the decision to arrest was founded. 103. It is not the function of this Court to determine criminal culpability or to pre-empt the mandate of investigative or prosecutorial agencies. However, in constitutional adjudication, the Court is entitled to examine whether, on the face of the material presented, there existed an objectively discernible evidential foundation capable of grounding reasonable suspicion. On the material before this Court, such foundation has not been demonstrated to the requisite constitutional threshold at the time the coercive powers of arrest were invoked. 104. Instead of pursuing civil remedies, the 6th Respondent subsequently engaged the 4th Respondent, leading to the arrest of the 2nd Petitioner in a different jurisdiction. The sequence of events that followed particularly the demand for payment of a specific sum, the extraction of money, and the issuance of cheques in circumstances already found by this Court to have been coercive when viewed holistically, gives rise to a compelling inference that the dominant purpose of the process was not the bona fide enforcement of criminal law, but the securing of settlement of a civil claim. 105. This conclusion is reinforced by the absence of demonstrable investigative steps directed towards establishing the elements of any alleged offence, as opposed to facilitating payment. The Court is therefore satisfied that the process, viewed in its entirety, discloses an improper collateral purpose inconsistent with the constitutional and legal limits of criminal process. 106. While Section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings, it does not authorise the use of criminal process as a substitute for civil litigation, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 17

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nor does it legitimise the deployment of criminal law as a mechanism for coercion in private disputes. The provision presupposes the existence of a bona fide criminal foundation. Where the predominant purpose of the process is extraneous to criminal justice objectives, such proceedings offend constitutional safeguards and amount to an abuse of process. 107. In the circumstances, the Court is satisfied that the complaint lodged by the 6th Respondent and the ensuing investigative process undertaken by the 4th Respondent constitute an abuse of the criminal justice process. Any prosecution founded upon such a process would be oppressive, vexatious, and inconsistent with constitutional safeguards, and is therefore liable to be stayed Whether the Petitioners are entitled to the reliefs sought 108. Having found multiple and grave violations of the Petitioners’ constitutional rights, the Court must now determine the appropriate reliefs. Article 23(3) of the Constitution vests this Court with wide and discretionary authority to grant appropriate relief in proceedings brought under Article 22, including declaratory orders, injunctions, conservatory orders, compensation, judicial review orders, and any other relief that is just and appropriate in the circumstances. 109. Declaratory relief constitutes the primary remedy in constitutional adjudication. Such relief serves a vindicatory purpose by formally affirming the existence of constitutional violations and denouncing the impugned conduct. In the circumstances of this case, the Court is satisfied that the Petitioners are entitled to the declaratory orders sought, so as to authoritatively pronounce the breaches of their fundamental rights and freedoms. 110. The Court is further enjoined to grant effective relief capable of preventing the continuation or recurrence of unconstitutional conduct. In this regard, and in light of the findings already made, any criminal proceedings instituted or contemplated against the 2nd Petitioner arising from the impugned complaint cannot be permitted to proceed. The power to stay criminal proceedings is an exceptional one, to be exercised sparingly and only in clear cases of abuse of process. This, however, is such a case. The process herein is irredeemably tainted by improper purpose, having been initiated and pursued not for the vindication of criminal law but to coerce settlement of a civil claim. In the premises, an order permanently staying such proceedings is warranted. This order does not constitute an impermissible encroachment upon the constitutional mandate of the Director of Public Prosecutions under Article 157, nor the investigative mandate of the Directorate of Criminal Investigations, but rather represents a proper exercise of this Court’s supervisory jurisdiction under Article 165(6) and (7) to prevent abuse of process and uphold the Constitution. 111. The 2nd Petitioner is entitled to restitution in respect of monies unlawfully extracted from him. The evidence on record establishes that a total sum of Kshs. 200,000/= was obtained under coercive and unlawful circumstances. Of this amount, Kshs. 60,000/= is reflected in the impugned receipt, while the balance of Kshs. 140,000/= was taken without any lawful basis or supporting documentation. The Court finds that the 4th, 5th, and 6th Respondents acted in concert and in furtherance of a common unlawful objective culminating in the unlawful extraction of funds from the 2nd Petitioner. Their conduct, viewed holistically, discloses coordinated participation in the impugned transaction. In the premises, they are jointly and severally liable for the sum of Kshs. 140,000/=, in addition to the Kshs. 60,000/= acknowledged in the receipt 112. Beyond restitution, the Court must consider whether an award of general damages is warranted for the violation of the 2nd Petitioner’s constitutional rights. It is now well settled that an award of damages for constitutional violations under Article 23(3) serves a public law function, encompassing vindication of rights, deterrence of unconstitutional conduct, and recognition of the harm suffered. The remedy https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 18

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is discretionary and must be guided by the nature of the right violated, the gravity of the breach, and the circumstances of each case. 113. The Court of Appeal in Etyang v Chief of Kenya Defence Forces & another affirmed that constitutional damages are not merely compensatory but are intended to vindicate infringed rights and deter future violations by state actors. Similarly, in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, the Court of Appeal held that the assessment of constitutional damages is not a mechanistic exercise but must be guided by the circumstances of each case, including the character of the violation and its impact on the victim. Further, in Jesse Kamau & 25 Others v Attorney General [2010] eKLR, the Court recognised that constitutional damages are meant to affirm the dignity of the person whose rights have been infringed. 114. Guided by these principles, and considering the cumulative effect of the violations established in this case including unlawful arrest and detention, infringement of privacy, coercive deprivation of property, denial of fair administrative action, and infringement of fair hearing rights the Court is satisfied that an award of general damages is justified. The violations were deliberate, sustained, and involved abuse of coercive state power. In assessing quantum, the Court has taken into account the gravity of the infringement, the period of unlawful detention, the coercive circumstances under which the 2nd Petitioner was compelled to part with money, and the need to affirm constitutional accountability. An award of general damages is therefore necessary to vindicate the rights violated and to deter similar unconstitutional conduct.. 115. In order to ensure accountability within the National Police Service, the Court further directs that a copy of this judgment be transmitted to the Director of the Internal Affairs Unit for appropriate administrative action. The conduct of the 4th Respondent raises serious concerns as to compliance with the constitutional standards governing police conduct, including those under Article 244 of the Constitution, and warrants independent investigation and possible disciplinary action. Conclusion 116. In conclusion, this Petition succeeds. The Court has found that the arrest and detention of the 2nd Petitioner was unlawful, that multiple provisions of the Bill of Rights were violated, that monies were unlawfully extorted from him, and that the criminal process was improperly invoked as a tool of coercion to enforce a civil claim. The conduct of the 4th Respondent, aided by the 5th and 6th Respondents, constitutes a profound abuse of state power and a betrayal of the public trust. 117. For the reasons set out above, this Court makes the following final orders: a. The Petition dated 27th July 2022 is hereby allowed. b. A declaration be and is hereby issued that the arrest, detention, and treatment of the 2nd Petitioner by the 4th and 5th Respondents on 6th and 7th May 2022 was arbitrary, unlawful, and in violation of his fundamental rights and freedoms under Articles 29, 31, 47, 48, 49, and 50 of the Constitution of Kenya, 2010. c. A declaration be and is hereby issued that the continued investigation and any intended prosecution of the Petitioners arising from the complaint by the 6th Respondent regarding the Joint Venture Agreement dated 4th October 2017, is an abuse of the criminal justice process. All criminal proceedings, including but not limited to any intended charges pursuant to the arrest on 6th May 2022, are hereby stayed permanently. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 19

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d. A declaration be and is hereby issued that the 2nd Respondent, through its officers, violated the 1st Petitioner's right to property under Article 40 and the 2nd Petitioner's right to fair administrative action under Article 47 of the Constitution. e. The 4th, 5th, and 6th Respondents are hereby ordered, jointly and severally, to pay the 2nd Petitioner the sum of Kshs.140,000 being the balance of the money unlawfully taken and extorted from him on 7th May 2022; and the sum of Kshs.60,000 represented by the official receipt to be refunded to the 2nd Petitioner, if not already done. f. The Deputy Registrar of this Court shall forthwith transmit a copy of this judgment to the Director of Internal Affairs Unit of the National Police Service for consideration of disciplinary action against PC Patrick Omondi, No. 93647, the 4th Respondent herein. g. Costs awarded to the Petitioners and to be borne by the 4th, 5th, and 6th Respondents, jointly and severally. h. Any unpaid sums to attract interest at court computation and rates. Orders accordingly. File Closed Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2026. ________________________ BAHATI MWAMUYE MBS JUDGE HCCHRPET. NO. E387 OF 2022 JDT Page 15 | 15 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6014/eng@2026-03-19 20

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