Joseph Ngei Mwanthi & 2 others v Director of Public Prosecutions

count 2 – same offence – same date – but this time – the property was said to belong to of Justus Katsanga Katundu ,,a dwelling house valued @Ksh 1,500,000/=. 2. The accused persons took plea, denied the charges and the matter proceeded to trial. 3. By an application dated 26/8/2025 Joseph Ngei Mwanthi, Benjamin Kathoka, Stephen Mutua Michael filed Notice of Motion brought under Articles 165 (6) and (7) ofthe Constitution of Kenya 2010, Sections 10(1), 10(2)(b), 10(4) and 39 of the High Court (Organization and Administration) Act 2015 [Rev. 2017], Rules 3, 15, 16, 17, and 32 of the High Court (Organization and Administration (General) Rules, Section 362, 364 and 365 of the Criminal Procedure Code) seeking orders inter alia 4. 2. That pending the hearing and determination of this revision application inter-parties, the Honourable Court be pleased to grant a stay of the proceeding in Makueni Magistrates Court Criminal Case Number MCCR/E14/2025 – Republic Vs Justus Kyalo and Others. 3. That this Honourable Court be pleased to call for and examine the record in Chief Magistrate Court at Makueni in Criminal Case Number E144 of 2025. Republic Vs Justus Kyalo Peter and Others for purposes of satisfying and pronouncing itself as to correctness, legality and propriety of the proceedings and the orders issued on 15th July, 2025. 4. That this Honourable Court be pleased to revise, vary and/or set aside the orders issued on 15th July, 2025 by the Honourable P.N Gesora (CM) in Makueni in Criminal Case Number E144 of 2025; Republic Vs Justus Kyalo and others and order that the Applicants be enjoined in the proceedings as complainants and/or in the alternative the proceedings in Criminal Case Number E144 of 2025; Republic Vs Justus Kyalo and Others be stayed pending the hearing and conclusion of the proceedings in Makueni Magistrates Environment Case Number E054/2025 – Benjamin Kathoka and 2 Others vs Anita Shalet and 1 Other. ( Emphasis mine) The grounds for the application are set out on the face of the application and in the affidavit of the 1st applicant: 1. The Applicants are the trustees of God of Healing Church which is located at in Makueni County. On or around 14th March, 2025 the church premises were destroyed by persons who would later be charged with malicious damage to property Magistrates Court Criminal Case Number E144 of 2025; Republic vs Justus and Others (the Criminal Case). 2. The Applicants, upon destruction of the Church made a police report at Mukuyuni Police Station which is the local police station. Despite follow ups by the Applicant with the police on the state of their complaint, the court proceedings in the Criminal Case were commenced and were never disclosed by the police to the Applicants. 3. The Applicants later through their own due diligence came to learn that the Criminal Case had been instituted and the complainant was one Anita Shalet. 4. The Applicants consequently instituted a land case being Makueni Magistrates Environment Case Number E054/2025 – Benjamin Kathoka and 2 others vs Anita Shalet and 1 other (the Land Case) in which they contested the claim to the property by Anita Shalet. The Land Case is still pending hearing and determination at the Makueni Magistrates Court. 5. The Applicants approached the Mukuyuni police station and sought to know had not been included in the Criminal Case as complainants. The Police were dismissive and refused to assist leaving the Applicants with no option but to seek legal assistance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 2

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6. By the time the Applicants instructed Counsel, the Criminal Case was coming up in court for defense hearing on 15th July, 2025. Counsel for the Applicants raised the issues above with the Court and requested the Court for an adjournment so that the Director of Prosecution could thrash out the issues raised by the Applicants with the Investigating Officer with a view to the Applicants being included in the proceedings as complainants. 7. The Court however declined the request by Counsel and rendered itself in a ruling 15th July, 2025 (the Ruling) and directed that the matter does proceed to defense hearing. 5. The applicants are of the view that the malicious damage to property charges cannot be sustained until the true owner of the property is determined and that they have filed a case at the ELC Court for that purpose. 6. That in the circumstances, the Applicants are applying for a review of the Ruling to allow them to participate in the Criminal Case proceedings as co-complainants and/or in the alternative, that the Criminal Case be stayed pending the outcome of the Land Case at the ELC court. 7. The application is opposed through the replying affidavit of Anita Shalet. She depones inter alia that the accused persons in the criminal case invaded the suit property at Kilala/Kaumoni/323 where there stood a Church building – namely Nabii Christian Church, 2 houses and other structures belonging to the other Interested Parties. That the accused persons completely destroyed the Church and all other structures thereon; that they lodged a complaint to the police (DCI) and after investigations the DPP preferred charges against the 4 accused persons in Makueni MCCRC/44/2025 that the applicants only surfaced on 15/7/2025 when the criminal case was scheduled for Defence Hearing. 8. That if applicants were Trustees of the church, they would have filed their own complaint. Anita continued to depone that she was married to the 1st applicant with whom they ran a Church by name of God Healing Church as Pastors. Their marriage broke down, she left and joined Nabii Church. That she bought part of Kilala/ Kaumoni/323 from one Fedi Nyamasio Keesi. She depones that the 1st applicant runs a separate outfit, and has not contributed anything to the Church that was destroyed. That the applicants have not placed any evidence before court to show that they owned the suit property. That the 1st applicant was using this case to ventilate his personal differences with her – that any issue over ownership would have to be ventilated in the appropriate forum. She annexed copy of sale agreement, and other documents to support her claim. 9. The DPP filed response through No. 100670 PC Virginia Wavinya one of the Investigating Officers in the case. She confirmed Anita Shalet’s claims as to how the criminal case No. E144/2025 came to be – that according to their investigations the applicants had no claim to the ownership of the property claimed by Anita and the other Interested Parties; that the claim by the applicants was one of land dispute which is not a Criminal Case; that according to the DPP, section 339(1) did not call for strict proof of ownership of the property and the fact that Anita Shalet was the complainant in CR E144/2025 did not make her the legal owner of the land in question. 10. Justus Kyalo Keesi also swore a replying affidavit as one of the Interested Parties (Accused person in the Criminal case). He deponed that the applicants were intermeddling in the estate of his father Justus Keesi Ngunzi ( deceased) – he annexed a grant showing that he was one of the Administrators of the estate. That the title deed for Okia/Kaumoni/323 was in the name of the deceased – and as a result there was a pending case Makueni ELC 337/2017 & ELC E045/2025. That the applicant and the 1st Interested Party (Anita) have had a tussle over the Church constructed on the deceased’s property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 3

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11. Parties filed written submissions which they highlighted. 12. Mr. Mutuku for the applicants argued that the applicants were victims of crime – and as per the Victim Protection Act – they had a right to be heard; he submitted that the applicants were Pastor /elders of the Church that was destroyed; that they reported to the police – but the police had decided to proceed with 1st Interested Party as the complainant; that by then the Criminal Case had reached defence stage. 13. He submitted that there exists a land case between the applicant and the 1st Interested Party – that the 1st interested party produced a sale agreement, but that the 1st Applicant also had a sale agreement. He submitted that the prosecution will be required to prove ownership of the Church property – and since the charge sheet says the property belonged to Anita Shalet – that by itself is prejudicial as the criminal case ought to await the determination of the land case. That the 2nd Interested Party has deponed had neither the 1 st applicant nor the 1st Interested Party is entitled to the land and it is difficult to see why the DPP would insists on proceeding with the criminal case.;– that if the land case finds in favour of the applicant – it will have removed the feet from under the charge against the accused persons. 14. He submits further that the DPP’s independence to exercise the power to charge is subject to Article 157 ofthe Constitution. 15. For the DPP Mr. Kazungu prosecuting counsel submitted that the 1 st Interested Party demonstrated that she had possession of the property which she said she bought from one Nyamasio Keesi ; that the Land was registered in the name of his father who was deceased. That the applicant had not challenged the capacity of the seller to sell the land to the 1st Interested Party; that the applicant had not reported alleged matter of intermeddling , hence the Applicant the 1st interested party cannot be blamed – that the 1st Interested Party had annexed the sale agreement. He cited Mutemi & 2 others Vs. R CRA155/2019 on the ingredients of malicious damage into property and that the only issue to be established was that the complainant had the right to possession and the time of the damage. He also cited Timothy Mutuku Kitonyi V R [2021] eKLR. Simon Kiema Ndiangui V R [2017] eKLR Jacob Mutuma & Anor V R [2018] eKLR - That these cases demonstrated that the right to possession was sufficient. 16. He submitted that the applicants should not be added in the criminal case as complainants as they had not demonstrated beneficial/legal interest in the structures that were demolished, – that damage happened on 14/3/2025, and there was no evidence of reporting - no evidence of purchasing the property; that the land case was irrelevant to this case; that the DPP was not interested in the land dispute. 17. Mr. Hassan appeared for the 3rd to 6th Interested Parties( the accused persons) submitted that both the 1st applicant ad the 1st Interested Party said that they bought land from Nyamasio Keesi – land registered in his late father’s name – that Nyamasio Keesi is a beneficiary of his father’s estate and that no property passed to any of alleged purchasers – that there is an ownership wrangle between the applicants and the 1st Interested Party. He cited Petition No. 39 & 40/2019 Saisi & 7 others V ODPP where the court stated that ODPP should ensure that prosecution is merited, w/o malicious interest, not an abuse of the court process – and ensure the ends of justice – that these principles limit the independence of the DPP . 18. Ms. Mutua appeared for the 3rd to 6th Interested Parties submitted that it is only the DPP who has exclusive mandate to institute criminal process in that there is no evidence that the applicant filed any complaint. That there is evidence that Kilala /Kaumoni/323 does not belong to the applicants/ Interested Party but the deceased Jonathan Keesi Ngunzi. That what were destroyed were structures – owned by Anita – and ownership of the land is not an issue and the ELC case is irrelevant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 4

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19. Counsel posed the question whether this court could order the joinder of a party in criminal proceedings and responded that no such provision exists in the Criminal Procedure Code. He cited s. 89(2) of the Criminal Procedure Code. Counsel also asked whether proof of ownership is relevant in a charge of malicious damage – and responded that it is not; further that there was no good ground given by the applicants to warrant stay of proceedings. That the criminal case had reached Defence Hearing. 20. Counsel agreed with the DPP that under section 339 (1) of the Penal Code there was no strict requirement to prove the ownership of the property in question. She relied on R Vs Jacob Mutuma & other [2018] eKLR – where the court was of the view that the rationale that ownership is not key ingredient in a malicious prosecution case and the rational was to prevent wanton destruction of property or lawlessness. She submitted that in any event the property belonged to a deceased person and the accused persons were administrators of the estate. 21. On whether the court could stay proceedings as prayed – she argued that there was no description of the property. She urged dismissal of the application. 22. In rejoinder ; Mr. Mutuku argued that land includes what is in it up to heaven, what is beneath it, up to hell and there could be no argument based on the distinction between the demolished church and other structures and the land itself.That the mere fact that the matter had reached defence hearing could not supersede the right to property of the applicants as per Article 40 ofthe Constitution.That this court was simply a revision court –That the applicants tried to report the incident on 20/5/2025 but were denied that right by the police and the proceedings in the lower court were conducted in secrecy. Analysis and Determination 23. I have carefully considered the application, affidavits, annexures and the rival submissions. 24. The issue had arisen from determination is whether the Ruling of the Hon P N Gesora, CM delivered on 15/7/2025 and the proceedings in MCCRC E144/2025 fail the test set at section 362 of the Criminal Procedure Code – “Correctness, legality and propriety…” 25. The application for revision arose as soon as Mr. Mutuku for the applicants informed the trial court that the matter had been instituted w/o the knowledge of two complainants who now sought to be joined in the proceedings. 26. The court heard Mr. Mutuku and the prosecutor and proceeded to find that the application was untenable. The court found that the matter had been before it since the 27/3/2025; that the DPP was mandated to decide who to charge; and had the applicants had not laid basis for the prayers sought. In declining the application, the trial court pointed out that the applicants had approached the wrong forum and they could move to the correct one if they were so inclined. 27. The applicants seek that this court exercises its supervisory power over subordinate courts as set out by Article 165 (6) and (7 ) ofthe Constitution. This is elaborated by sections 362, 364 and 365 of the CPC . 362. Power of High Court to call for records The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court 364. Powers of High Court on revision (1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may— (b) in the case of any other order other than an order of acquittal, alter or reverse the order. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 5

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28. It is the applicant’s case that the property described in the charge sheet in Makueni MCCRC E144/2025 is property in which he has beneficial interest, that he and the named complainant, and the accused persons have a dispute over its ownership . That the manner in which the charge sheet has been drawn bestows ownership of the said property to the complainant who is the 1st interested party. 29. The applicant’s argument is that if the criminal case is determined, it would determine the ownership of the church whose ownership is in dispute as between the 1st applicant and the 1st Interested Party, that it may determine the ownership in favour of the complainant in that case, an outcome that will be detrimental and highly prejudicial to his right to that property, together with his co applicant. This is the crux of the two prayers: either this court revises the ruling of the trial court and allows them to be joined as complainants in the criminal case so that whatever the outcome, they will be party to the same; or, the court stays the proceedings until his matter in the ELC court is heard and determined. The applicants argue that should the ELC court find in their favour, the criminal charges will be embarrassed, and the accused persons will be prejudice. 30. The accused persons have demonstrated that the property in question does not belong to them or the alleged seller. It is property registered in the name of a deceased person whose estate they are the administrators. 31. Section 45 of the Law of Succession Act Cap 160 states 45. No intermeddling with property of deceased person 1. Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. 2. Any person who contravenes the provisions of this section shall a. be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and b. be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration. 32. Evidently in light of that provision of the law, there is a clear dispute as to ownership of the property. The 1st Interested party says she purchased the land from a beneficiary of the estate. It is evident that the estate is still under administration and hence the sale would be questionable under s. 45 of the LOSA. The argument by the applicant that the determination of the criminal case would determine the ownership of the property the church, the structures and the land will be a matter of evidence. The applicants have not placed evidence before me that they have any stake in the land or the church to warrant their place as complainants. 33. They have an issue with the wording .of the charge sheet – that the church building is described as the property of Anita Shalet. Everything in the charge sheet is denied by the accused persons and what the charge sheet carries are allegations against the accused persons who enjoy the presumption of innocence until proven guilty. It is upon the DPP to establish the ingredients of the charge. The DPP ‘s averment that the property belongs to Anita Shalet is not proof that it is. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 6

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34. In any event the DPP has clearly submitted that he is not required to prove ownership of the property to establish the charge of malicious prosecution to property. The authorities cited to this end herein above clearly illuminate this point and I need not belabor it. 35. The applicants argue prejudice to their right to property because of the case pending before the ELC court. 36. There is no bar to concurrent civil and criminal cases even where the issue directly or substantially in issue in both. It states: Concurrent criminal and civil proceedings Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 37. This is because in my view the outcomes are substantially different. Section 339 of the Penal Code states Malicious injuries to property, to (1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years. It clearly prohibits the destruction/damage of any property and as is evident from the definition of the offence itself there is nothing about the actual ownership of the property, it appears to me that the naming of a complainant is to enable the identification of the property as the one destroyed. In that regard I cannot say more than what Hon Justice Ngaah stated in Simon Kiama Ndiangui v Republic [2017] KEHC 8332 (KLR) In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third, that the destruction was wilful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful. I cannot find any suggestion in this provision that ownership of the destroyed property must be established for liability to attach. My take on this issue is that ownership of the property is a relevant but not the defining factor; it may be taken into account amongst other evidence that tends to establish that the offence was committed. It follows that failure to prove ownership is not fatal to the prosecution case and to this extent I agree with the learned counsel for the state 38. Majanja J in Republi c v Jaco b Mutum a & another[2018] KEHC 6285 (KLR) agreed with the above observation and added 15. In my view, it is not difficult to see why the offence is not necessarily tied down to ownership of particular property. It is to prevent wanton destruction of property that may lead to lawlessness and people taking the law into their own hands. 39. The outcome of the criminal charge will be either an acquittal or conviction and sentence. There is no provision for determination of the ownership. 40. The applicants have a better chance of claiming their rights in the property in their civil matter which can go on at the same time as the criminal case. Surely, they are aware that this court cannot intervene https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 7

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in an ELC matter. That is constitutionally the place of the ELC Court– Anything to do with land ownership, dispute of ownership cannot be the subject of proceedings before this court. Counsel for the applicant made reference to the land dispute stating that land includes all that is above it up to heaven, all that is below it up to hell. That an argument of structures vs the land could not arise in the circumstances. Well – there, you have it. The land dispute is central to the application. This revision application is about the criminal matter and cannot deal with the ownership disputes which include the land. 41. The applicants urged that they are victims of crime who need to be heard through the criminal case. In this case the I.O and the DPP did not find that connection between the applicants and the charges to warrant their involvement. The applicants have not established that , and this court was not directed to any provision of the CPC that provides for joinder of complainants. 42. The applicants cite parts of article 10 and 39 ofthe Constitution 43. Article 10. Is about National values and principles of governance 1. 2. The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them— (a) …; (b) …; The national values and principles of governance include— (a)…; b. human dignity, equity, social justice, inclusiveness, equality, human rights, nondiscrimination and protection of the marginalised; c. …; and b. … 44. He cites 10(4) which does not exist , and 39 does not seem to bear any relevance to the issues herein. 45. I am alive to the provisions of the Victims Protection Act. The applicants have not brought themselves into the purview of that law. The matter has been before the trial court since March 2025. They have not tendered the evidence to support their claim. Their application came in August 2025. Their allegation that criminal proceedings involving four family members and the demolition of a church which is a public place of worship have been going on in secrecy in unbelievable. This was a church, as alleged. A place of worship for others, demolished in broad daylight, police took action. Conducted investigations, arrested the suspects and pressed charges. It is difficult to believe that all this happened in secrecy. Criminal proceedings that are public in nature. This averment was not believable. 46. The court cannot direct the prosecution as that is not its mandate . it is the duty and mandate of DPP in exercising its power to charge, 47. From the foregoing it is evident that my view is that the learned trail magistrate’s ruling stands as correct and proper in the circumstances of the case. The proceedings are in order and the applicants are not left without recourse. They have the civil matter in court. 48. Having found as above, the application is untenable and is refused. 49. The consequence of that is that the lower court file be returned to the CM’s registry and the matter be mentioned before the CM on 21st April 2026 for a date on the defence hearing. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 8

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Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON 14TH APRIL 2026. MUMBUA T MATHEKA JUDGE CA Chrispol For Applicants: Mr. Mutuku For Accused Persons in the Criminal Case: 3rd to 6th Interested Parties : Mr. Hassan For the Complainants in the Criminal Case: 1st and 2nd Interested Parties : Ms. Mutua Signed by/for: LADY JUSTICE MATHEKA, TERESIA MUMBUA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6456/eng@2026-04-14 9

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