Hon. James Mwangi Gakuya v The Office of The Director of Public Prosecutions & 2 others

RESPONDENT THE HONOURABLE ATTORNEY GENERAL.....................................4 TH RESPONDENT AND THE ETHICS AND ANTI-CORRUPTION COMMISSION..................INTERESTED PARTY JUDGMENT INTRODUCTION 1. The Petitioner, Hon. James Mwangi Gakuya, is the sitting Member of the National Assembly for Embakasi North Constituency. He approached this Court through a Petition dated 10 th May 2022 seeking constitutional redress against what he terms as an orchestrated campaign of political persecution, abuse of criminal justice processes, and violation of his fundamental rights and freedoms by the Respondents. 2. The gravamen of the Petitioner’s greivance is that the Respondents have unlawfully instituted criminal proceedings against him, namely Nairobi Chief Magistrate’s Criminal Case No. E448 of 2022; wherein the Petitioner is charged with conspiracy to defraud contrary to Section 317 of the Penal Code. The Petitioner contends that those criminal proceedings are a bid to harass, intimidate, and politically incapacitate him during a fiercely contested electioneering period. 3. The Petitioner states that the criminal charge is founded upon a contentious ownership dispute over a prime parcel of land known as L.R. No. 7785/1120 HCCHRPET NO. E201 OF 2022 JDT P a g e 2 | 40

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situated in the upscale Runda area of Nairobi. He asserts that this dispute is, at its core, a civil matter already pending adjudication before the Environment and Land Court (ELC) in ELC Case No. E129 of 2021 (Silvya Merie vs. James Mwangi Gakuya & 2 Others) and before the Court of Appeal in Civil Application No. E079 of 2022. 4. The Petitioner maintains that he is the legitimate registered proprietor of the suit land, holding a valid certificate of title and a current official search, and that the criminal process is being cynically deployed as a weapon to coerce him into surrendering his proprietary rights and also to derail his political career. 5. The Petitioner further avers that the timing of the criminal summons, issued on the eve of the August 2022 general elections, were no coincidence. He claims that after he abandoned the ruling Jubilee Party and threw his weight behind the United Democratic Alliance (UDA) and the Kenya Kwanza Alliance, he became a target of a ‘state-orchestrated witch-hunt’. According to the Petitioner, the decision to charge him flouts a public directive by the then Director of Public Prosecutions, Mr. Noordin Haji, that politicians would not be charged during the campaign season, thus giving rise to a legitimate expectation that he would be spared such adverse action. 6. He also complains of what he termed as a contemporaneous, invasive, and allegedly unlawful search of his residence by officers from the Ethics and Anti-Corruption Commission (EACC), the Interested Party herein, who executed warrants obtained in respect of a different person, his brother HCCHRPET NO. E201 OF 2022 JDT P a g e 3 | 40

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Samuel Nganga Gakuya, thereby causing him ( the Petitioner) immense embarrassment and discomfort. 7. The Petition therefore seeks several declarations, as well as judicial review orders of prohibition and certiorari, to permanently restrain the Respondents from arresting, arraigning, charging, or prosecuting him in connection with the ownership dispute over L.R. No. 7785/1120, and to quash the summons dated 27th April 2022 and the attendant criminal proceedings in Criminal Case No. E448 of 2022. 8. The Respondents and the Interested Party have vehemently opposed the Petition. The Director of Public Prosecutions (DPP) and the other Respondents argue that the criminal investigations were commenced upon a legitimate complaint by one Silvya Merie, who claims to be the bona fide owner of the disputed land. They have presented a formidable body of evidence, including forensic findings from the Ministry of Lands, indicating that the Petitioner’s title documents, including the letter of allotment and the lease, are forgeries. 9. They contend that the existence of concurrent civil proceedings is not a bar to criminal prosecution by dint of Section 193A of the Criminal Procedure Code, and that the Petitioner has failed to demonstrate any abuse of power, illegality, or violation of his constitutional rights. HCCHRPET NO. E201 OF 2022 JDT P a g e 4 | 40

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10. The Interested Party, the Ethics and Anti-Corruption Commission (EACC), clarifies that its investigations are separate and distinct from the land fraud case, focusing instead on allegations of procurement irregularities, conflict of interest, and embezzlement of Constituency Development Funds (CDF) at Embakasi North Constituency, amounting to over Kshs.51 million. EACC asserts its constitutional and statutory independence and contends that its actions, including the contested search warrants, were lawfully executed within its mandate. BACKGROUND 11. To properly contextualize the dispute, it is essential to trace the factual matrix from its genesis. The root of the conflict is the ownership of Land Reference Number 7785/1120 (originally 7785/10/857), a 0.2020-hectare (approximately half an acre) parcel situated on Eliud Mathu Street in the Runda area of Nairobi. Two individuals claim proprietary interest in this valuable piece of real estate: the Petitioner, Hon. James Mwangi Gakuya, and one Ms. Silvya Merie. 12. According to the Replying Affidavit sworn by No. 90972 PC Boniface Muli, the investigating officer, the matter came to the attention of the Directorate of Criminal Investigations (DCI) following a complaint lodged by Silvya Merie via a Complaint Referral Form dated 18th February 2020. In her complaint, Ms. Merie alleged that she had purchased the suit property way back in 1998 from Mae Properties Limited. It is stated that Ms. Merie provided a trail of documentary evidence, including an offer letter dated 20 th July 1998, receipts of payment, and a letter from the vendor confirming final HCCHRPET NO. E201 OF 2022 JDT P a g e 5 | 40

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settlement of the purchase price of Kshs.2,700,000/=. Accordingly, it is further stated that a transfer was subsequently effected from Mae Properties Limited to Silvya Merie, and she was registered as the proprietor. 13. The DCI’s investigations unearthed a counter-narrative from that presented by the Petitioner. The Petitioner claimed ownership by virtue of a letter of allotment dated 1st February 1998 and a lease executed on 24 th August 2020. However, the investigating officer’s findings cast serious doubt on the authenticity of the Petitioner’s documents. A letter from the Director of Land Administration dated 22nd December 2020 categorically stated that the purported letter of allotment was not authentic. The official who purportedly signed the allotment, one P. Amiani, disowned the signature in a sworn statement, stating she had never handled parcels in the Runda area. 14. Furthermore, the Land Registrar, Fedson Nyagaka Orare, disowned the stamp and signature on the lease document presented by the Petitioner, stating that the booking number on the lease corresponded to the registration of floor plans for houses, not the registration of title. 15. The investigations also revealed a critical anomaly in the Land Information Management System. While the system showed the Petitioner, James Mwangi Gakuya, as the proprietor under Index Register (IR) Number 217634, there was no physical file or deed file to support this entry. Additionally, it is contended that the IR register indicated that IR Number 217634 was actually issued in respect of a different parcel, Land Number HCCHRPET NO. E201 OF 2022 JDT P a g e 6 | 40

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7785/1119, not the subject property 7785/1120. The legitimate registered owner of Parcel Number 7785/1120, according to the official records and a Certificate of Title dated 12th October 2020, was confirmed to be Silvya Merie. 16. Based on this evidence, the DPP gave consent to charge the Petitioner and one Jacob Cattwright, a former land registrar, with conspiracy to defraud, making false documents, and obtaining registration of land by false pretenses. Consequently, the Petitioner was summoned to appear before the Milimani Magistrates Court on 11th May 2022 to take plea in Criminal Case No. E448 of 2022. 17. Running parallel to these events was a civil battle over the same land. The Petitioner had initiated MCELC Case No. E1486 of 2020 before the Chief Magistrate’s Court to restrain Ms. Merie from interfering with his quiet enjoyment. Subsequently, Ms. Merie filed ELC Case No. E129 of 2021 before the Environment and Land Court. In a ruling delivered on 10 th February 2022, Justice Oguttu Mboya issued an injunction against the Petitioner, restraining him from constructing on, disposing of, alienating, transferring, or otherwise dealing with the suit land. The learned judge also ordered the transfer of the subordinate court file to the ELC for consolidation. Aggrieved by this ruling, the Petitioner filed an application for stay before the Court of Appeal in Civil Application No. E079 of 2022, which was pending at the time of filing this Petition. 18. Adding another layer to the Petitioner’s grievances, the Interested Party, EACC, was at the same time conducting its own separate investigations into HCCHRPET NO. E201 OF 2022 JDT P a g e 7 | 40

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the management of the National Government Constituencies Development Fund (NG-CDF) at Embakasi North Constituency. The Commission had received a report alleging procurement irregularities, conflict of interest, and embezzlement of public funds amounting to Kshs. 51,351,357. The Commission’s Preliminary investigations are said to have revealed that the Petitioner, as the sitting Member of Parliament, had allegedly used his office to influence the procurement process to award tenders to companies owned by his daughters and close associates. These companies included Daka-ini Enterprises Ltd (owned by daughter Judy Warigia, receiving Kshs. 26,859,423), Allica Investment Ltd (owned by daughter Alice Wanjiku Mwangi, receiving Kshs. 13,431,128), and Ndakaini Hardware & Property Agencies (owned by niece Nelias Nyathira Mwangi, receiving Kshs. 9,693,928). 19. On 6th May 2022, EACC obtained search warrants in Miscellaneous Application Nos. E1545/22 and E1547/22 to search the offices and premises of the Petitioner and his brother, Samuel Nganga Gakuya (the Constituency Manager). While the search at the brother’s premises was executed, the warrant against the Petitioner was not executed as he was not present at his residence in Balozi Estate, Muthaiga North. However, on 18th May 2022, a team of about fifteen EACC agents raided the Petitioner’s home, causing what the Petitioner described above as embarrassment. The Petitioner alleges this raid was unlawful as the warrant was obtained in his brother’s name, a fact the Interested Party disputes, stating the search warrants were lawfully issued and the attempt to search the Petitioner’s premises was based on a valid warrant in his own name. HCCHRPET NO. E201 OF 2022 JDT P a g e 8 | 40

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20. It is against this backdrop of a contested land title, parallel criminal proceedings, separate anti-corruption investigations, and a highly charged political environment that the Petitioner filed the instant Petition, seeking the protective intervention of this Court. THE PETITIONER’S CASE 21. The Petitioner’s case is anchored on the fundamental premise that the criminal justice system is being manipulated and weaponized for ulterior political and commercial purposes, thereby violating his constitutionally guaranteed rights. Through his Supporting Affidavit and written submissions, the Petitioner advanced several core arguments. 22. First, the Petitioner contended that the decision by the DPP to charge him with conspiracy to defraud over the ownership of L.R. No. 7785/1120 is unreasonable, an abuse of prosecutorial power, and inimical to Article 157(11) of the Constitution. He argued that the dispute over the land is fundamentally civil in nature and is already the subject of active litigation before the Environment and Land Court and the Court of Appeal. By instituting criminal proceedings while the civil suits are pending, the Respondents are attempting to gain an unfair advantage and to pressure him into relinquishing his claim to the property, which he holds through a valid certificate of title. HCCHRPET NO. E201 OF 2022 JDT P a g e 9 | 40

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23. Second, the Petitioner submitted that the criminal prosecution against him is actuated by malice and is politically motivated. He deposed that after abandoning the ruling Jubilee Party and joining the United Democratic Alliance (UDA) to support the presidential bid of H.E. William Samoei Ruto, he became a victim of witch-hunt and political blackmail. He pointed to the timing of the summons, which was issued on 27th April 2022 and scheduled for plea-taking on 11th May 2022, precisely when the national campaigns for the 9th August 2022 general elections were set to officially begin. He argued that this timing was no accident but a calculated move to frustrate his campaigns and give an unfair advantage to his political competitor from the Jubilee Party, one Mr. Harrison Wangoro Mwangi. The Petitioner attached copies of his campaign posters and those of his rival to demonstrate the intensity of the political contest. 24. Third, the Petitioner raised the doctrine of legitimate expectation. He referred to a public announcement by the then Director of Public Prosecutions, Mr. Noordin Haji, to the effect that politicians would not be charged during the campaign season. The Petitioner argued that he legitimately expected not to be charged during this period, and the decision to charge him, in blatant disregard of this public resolve, was made in bad faith. He noted that another petition, No. E155 of 2022 (Charles Rubia vs. DPP), had been filed to challenge the DPP’s directive, and that petition was still pending, meaning the directive remained undisturbed. HCCHRPET NO. E201 OF 2022 JDT P a g e 10 | 40

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25. Fourth, the Petitioner complained about the conduct of the Interested Party, EACC. He narrated how on 18th May 2022, at around 6:00 a.m., his house in Muthaiga North was raided by about fifteen agents of the Commission, some in civilian clothing and others in police uniform. The agents camped at his house for long hours, creating unnecessary attention and embarrassment from his shocked neighbours. He argued that this raid was unlawful because the search warrant, they brandished, obtained in Miscellaneous Criminal Application No. E1547 of 2022, was issued against his brother, Samuel Nganga Gakuya, and not against him. He contended that this demonstrated the Commission’s willingness to be used as an instrument of political harassment and that its actions were a clear violation of his right to privacy under Article 31 of the Constitution and his right to freedom and security of the person under Article 29. 26. Furthermore, the Petitioner urged this Court to find that the Respondents’ conduct amounted to a violation of Articles 27, 29, 40, 47 and 48. He relied on the Supreme Court decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR for the proposition that legitimate expectation arises when a body, by representation or past practice, arouses an expectation that is within its power to fulfill. Further reliance was placed on the decision in Robert Waweru Maina & 4 others v Director of Public Prosecutions & 3 others [2022] eKLR for the principle that the High Court can properly interrogate the DPP’s decision-making process where it is shown that the expectations of Article 157(11) have not been met. The Petitioner concluded by asking the Court to allow the Petition as prayed, arguing that the scales of justice HCCHRPET NO. E201 OF 2022 JDT P a g e 11 | 40

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tilt in his favour, especially considering the chilling effect that adverse costs orders would have on public interest litigation. THE RESPONDENTS’ CASE 27. The Office of the Director of Public Prosecutions (DPP), the Inspector General of Police, and the Directorate of Criminal Investigations (DCI) opposed the Petition with equal vigour. Their case was articulated through the Replying Affidavit sworn by No. 90972 PC Boniface Muli on 31 st May 2022 and detailed written submissions dated 26th October, 2023. 28. The Respondents argued that the Petition is devoid of merit and constitutes an abuse of the court process. They maintained that the DCI, as the principal investigative agency, acted squarely within its constitutional and statutory mandate when it commenced investigations following a formal complaint by Silvya Merie. PC Boniface Muli deponed that the complaint was not politically motivated, as alleged, but arose from a genuine grievance of fraud concerning the ownership of a valuable piece of land in Runda. He attached a chain of documentary evidence tracing the ownership of the property from Mae Properties Limited to Silvya Merie, including the offer letter, payment receipts, transfer documents, and a certificate of title dated 12th October 2020. 29. Crucially, the Respondents presented evidence from the Ministry of Lands and Physical Planning that cast grave doubt on the authenticity of the Petitioner’s title. The Director of Land Administration, in a letter dated 22 nd December 2020, confirmed that the letter of allotment in favour of the HCCHRPET NO. E201 OF 2022 JDT P a g e 12 | 40

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Petitioner was not authentic, as the Runda area was initially owned by a private entity and was never available for allocation by the government as purported. The Land Administration Officer, P. Amiani, disowned the signature on the allotment letter in her statement, confirming she had never signed such a document. Further, the Senior Land Registrar, Fedson Nyagaka Orare, in his statement dated 18 th August 2021, stated that the lease document bearing his signature and stamp was a forgery, as the stamp impression was not his, and he had stopped signing leases by the time the purported lease was dated. 30. The Respondents submitted that the existence of a pending civil suit between the Petitioner and Silvya Merie does not, by itself, bar criminal proceedings. They placed heavy reliance on Section 193A of the Criminal Procedure Code, which explicitly provides that the fact that a matter in issue in criminal proceedings is also directly or substantially in issue in pending civil proceedings shall not be a ground for any stay, prohibition, or delay of the criminal proceedings. 31. They cited the Court of Appeal decision in Commissioner of Police & another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR for the proposition that the powers of the police to investigate crime cannot be challenged because the police exist to combat crime and it is not possible to stop criminal investigations unless the foundation of such investigations is malicious or is an abuse of power and that civil and criminal proceedings can proceed concurrently, and that the court should only interfere where the criminal process is being used as a pawn in a civil dispute. HCCHRPET NO. E201 OF 2022 JDT P a g e 13 | 40

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32. On the allegations of political persecution, the Respondents argued that the Petitioner had failed to adduce any credible evidence to demonstrate that the investigations and prosecution were actuated by malice or an ulterior motive. They noted that the investigations commenced way back on 18 th February 2020, long before the 2022 electioneering period, and that the DPP gave consent to charge based on the weight of the evidence, not based on the Petitioner’s political affiliation. The Respondents contended that public interest dictates equality before the law regardless of one’s status in society, and that citing political interference is merely a tactic to intimidate the Respondents and derail the course of justice. 33. Regarding the DPP’s discretionary power to prosecute, the Respondents submitted that this Court should exercise restraint and not usurp the prosecutorial mandate. Reliance is placed on the decision in Michael Monari & Another v Commissioner of Police & 3 Others, Miscellaneous Application No.68 of 2011, where Warsame J (as he then was) held that it is not the duty of the court to go into the merits and demerits of any intended charge, as that is the function of the trial court. The Respondents argued that the Petitioner has a right to a fair trial before the subordinate court, where he will have the opportunity to challenge the evidence against him, including the alleged forgeries. They concluded that the Petition was premature and an attempt to shield the Petitioner from answering to serious criminal charges, and therefore urged the Court to dismiss it with costs. HCCHRPET NO. E201 OF 2022 JDT P a g e 14 | 40

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THE INTERESTED PARTY’S CASE 34. The Ethics and Anti-Corruption Commission (EACC) sought to distance its investigations from the land fraud case, clarifying that it was acting on a separate and distinct complaint. Through the Replying Affidavit of its Investigator, Lenjo Killio, sworn on 31st May 2022, proposed grounds of opposition dated 20th May, 2022 and written submissions dated 1 st November 2023, the Interested Party made its case. 35. It is averred that sometime in August 2021, the EACC received a report vide EACC/PI/INQ/12/2011 on allegations of corruption, embezzlement of public funds, and irregular public procurement in the Embakasi North Constituency Development Fund. The Commission’s preliminary investigations revealed serious improprieties, including that the Petitioner, as the sitting Member of Parliament, had used his office to influence the procurement process to award tenders worth Kshs.51,351,357/= to his daughters and close associates. The Commission provided a detailed schedule of payments to various business entities linked to the Petitioner, including Daka-ini Enterprises Ltd (Kshs.26,859,423/=), Allica Investment Ltd (Kshs.13,431,128.83), Pride Wind Africa Ltd (Kshs.1,367,579/=), and Ndakaini Hardware & Property Agencies (Kshs.9,693,928/=). It further alleged that the Petitioner had directly acquired a private interest amounting to Kshs.10,482,298/=in these tenders. 36. EACC asserted its constitutional and statutory independence, citing Articles 79 and 249(2) of the Constitution and Section 28 of the EACC Act. It argued that as an independent constitutional commission, it is not subject to the HCCHRPET NO. E201 OF 2022 JDT P a g e 15 | 40

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direction or control of any person or authority, and the Court should be slow to restrain its investigative mandate. 37. The Interested Party maintained that the search warrants it obtained on 6 th May 2022 in Miscellaneous Application Nos. E1545/22 (against the Petitioner) and E1547/22 (against his brother) were lawfully issued pursuant to Section 118 of the Criminal Procedure Code as read with Sections 23 and 29 of the Anti-Corruption and Economic Crimes Act, 2003. It clarified that the warrant against the Petitioner was not executed because he was not present, but it was nonetheless a valid warrant. 38. On the allegation of unlawful search, EACC countered that the raid on 18 th May 2022 at the Petitioner’s residence was conducted using the warrant in Misc. Application No. E1545/22, which was specifically obtained to search the Petitioner’s offices and premises. The Commission argued that the Petitioner had been evasive and had failed to honour several invitations for interviews and statement recording, and that the search was a necessary step to complete the investigations. It denied any political motivation, stating that the investigations were purely geared towards unearthing corruption and economic crimes, which are a menace to the nation. 39. In its submissions, EACC urged the Court to dismiss the Petition on the ground that the Petitioner had failed to meet the threshold for granting conservatory orders as set out in Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others, Nairobi High Court Constitutional Petition No. 154 of 2016 eKLR. It argued that the Petitioner HCCHRPET NO. E201 OF 2022 JDT P a g e 16 | 40

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had not demonstrated a prima facie case with a likelihood of success, nor had he shown that he would suffer irreparable harm if the orders were not granted. The Interested Party further submitted that the Petition was fatally defective for failing to plead with reasonable precision the constitutional provisions violated and the manner of their violation, as required in Anarita Karimi Njeru v Republic (1979) KLR 154. 40. It concluded that its investigations were complete and a file had already been forwarded to the DPP with a recommendation to charge the Petitioner, rendering the prayers sought overtaken by events. ANALYSIS AND DETERMINATION 41. Having carefully examined the pleadings, affidavits, annexures, and the rival submissions of the parties, this Court is of the considered view that the following issues fall for determination: i. Whether the criminal proceedings in Nairobi Chief Magistrate’s Court Criminal Case No. E448 of 2022 constitute an abuse of the court process and a violation of the Petitioner’s constitutional rights under Articles 27, 29, 40, 47, 48, and 50 of the Constitution. ii. Whether the Director of Public Prosecutions acted in contravention of Article 157(11) of the Constitution by instituting criminal proceedings against the Petitioner without due regard to the public interest, the interests of the administration of justice, and the need to prevent abuse of the legal process. iii. Whether the Petitioner has established a legitimate expectation not to be prosecuted during the 2022 general election campaign period, HCCHRPET NO. E201 OF 2022 JDT P a g e 17 | 40

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and whether the DPP’s decision to charge him violated this expectation. iv. Whether the investigations and search conducted by the Ethics and Anti-Corruption Commission (EACC) at the Petitioner’s residence were lawful, and whether they violated the Petitioner’s right to privacy under Article 31 of the Constitution. v. Whether the Petitioner is entitled to the judicial review orders of prohibition and certiorari as prayed, and whether the Petition has met the constitutional threshold for the grant of such reliefs. Whether the criminal proceedings in Nairobi Chief Magistrate’s Court Criminal Case No. E448 of 2022 constitute an abuse of the court process and a violation of the Petitioner’s constitutional rights under Articles 27, 29, 40, 47, 48, and 50 of the Constitution. 42. The first and most fundamental issue for determination is whether the criminal proceedings instituted against the Petitioner constitute an abuse of the court process and a violation of his constitutional rights. The Petitioner contends that the dispute over L.R. No. 7785/1120 is purely civil in nature and is already the subject of pending litigation before the Environment and Land Court and the Court of Appeal. He argues that the Respondents, by invoking the criminal process, are attempting to gain an unfair advantage, to coerce him into surrendering his property, and to harass him politically. This Court must therefore carefully examine the thin but crucial line between legitimate criminal prosecution and the misuse of penal statutes to settle civil disputes. HCCHRPET NO. E201 OF 2022 JDT P a g e 18 | 40

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43. It is an established principle of our jurisprudence that the mere existence of a civil dispute does not automatically render parallel criminal proceedings an abuse of process. The law recognizes that an action or transaction may give rise to both civil wrongs and criminal offences. Indeed, Section 193A of the Criminal Procedure Code (Cap. 75, Laws of Kenya) provides in clear and unambiguous terms that: “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.” 44. This statutory provision reflects the public policy that the fight against crime, especially serious crimes like fraud and forgery, should not be hamstrung simply because the parties are also engaged in civil litigation over the same subject matter. However, this principle is not absolute. The High Court retains its inherent jurisdiction, which is now constitutionally anchored under Article 165(3)(d) of the Constitution, to prevent the abuse of its process. The High Court in the landmark case of Stanley Munga Githunguri v Republic [1986] KEHC 44 (KLR) established that the High Court has the power to intervene and stop a prosecution where it is shown that the proceedings are oppressive, vexatious, or an abuse of the court process. This position was affirmed by the High Court in Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] KEHC 9205 (KLR) where the court stated as follows: HCCHRPET NO. E201 OF 2022 JDT P a g e 19 | 40

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“27. In appropriate circumstances, the Court may properly intervene in the exercise of discretion by the DPP and any other inferior authority for that matter and may justifiably do so in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision- maker is in breach of the duty to act fairly; (4) where the decision- maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given; (7) where the decision-maker fails to exercise discretion; (8) where the decision-maker is irrational and unreasonable. See the decision of Nyamu, J (as he then was) in Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008] 2 EA 323. 28. As was held in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001: “Although the state’s interest and indeed the constitutional and statutory powers to prosecute is recognised, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognised lawful parameters...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 vexatious...A prosecution that is oppressive and vexatious HCCHRPET NO. E201 OF 2022 JDT and is an P a g e 20 | 40

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abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. 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 and it does not matter whether the complainant has a prima facie case...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...In deciding to commence or pursue criminal prosecution the whether Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.”” 45. The critical question, therefore, is whether the circumstances of this case justify the Court’s intervention. To answer this, one must scrutinize the HCCHRPET NO. E201 OF 2022 JDT P a g e 21 | 40

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nature of the complaint and the evidence gathered. The Petitioner would have this Court believe that the criminal case is a mere smokescreen for a civil dispute over land. But the evidence presented by the DCI paints a far more sinister picture. This is not a simple case of two parties advancing rival claims to a parcel of land based on competing sale agreements. The DCI has uncovered evidence of systematic fraud involving the very machinery of State responsible for land registration. 46. The investigating officer, PC Boniface Muli, deponed that the letter of allotment presented by the Petitioner, dated 1st February 1998, has been declared a forgery by the Director of Land Administration. The official whose signature appears on that document, P. Amiani, swore an affidavit disowning the signature and stating that she never handled allocations in the Runda area. The lease document presented by the Petitioner, dated 24 th August 2020, has been disowned by the Senior Land Registrar, Fedson Nyagaka Orare, who stated that the stamp impression was not his and that he had stopped signing leases by that time. Most tellingly, the Index Register (IR) shows that the Petitioner’s title, IR No. 217634, actually corresponds to a different parcel, L.R. No. 7785/1119, while the legitimate proprietor of L.R. No. 7785/1120 is Silvya Merie. These are not mere technicalities or peripheral issues; they go to the very heart of the criminal charges of conspiracy to defraud, making false documents, and obtaining registration of land by false pretenses. 47. The Court of Appeal in Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 others [2018] KECA 492 (KLR) had occasion to HCCHRPET NO. E201 OF 2022 JDT P a g e 22 | 40

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consider the limits of Section 193A. The court stated that while concurrent civil and criminal proceedings are permissible, the criminal process should not be used as a pawn in a civil dispute. The court will intervene where the criminal proceedings are oppressive, vexatious, or intended to achieve a collateral purpose such as forcing a settlement of the civil claim. In the present case, however, the evidence suggests that the criminal proceedings are not a pawn but a legitimate response to serious allegations of fraud that strike at the integrity of the land registration system. The complaint by Silvya Merie was made on 18th February 2020, and investigations commenced long before the political campaigns heated up. The DPP’s decision to charge was based on a detailed investigation file, which included forensic evidence from land officials, and not on a whim or political directive. 48. Furthermore, the Petitioner’s claim that he is the “registered owner” with a “valid title deed” is a matter that will be tested in the criminal trial. The presumption of regularity under Section 26 of the Land Registration Act, 2012 is not absolute; it can be rebutted by evidence of fraud, misrepresentation, or illegal acquisition. In Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), the Court of Appeal held that a title can be challenged if it is obtained through a corrupt scheme. 49. The criminal trial court is the proper forum to determine whether the Petitioner’s title was procured through forgery and fraud. To halt the criminal prosecution at this interlocutory stage would be to usurp the HCCHRPET NO. E201 OF 2022 JDT P a g e 23 | 40

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function of the trial court and to potentially shield the Petitioner from facing serious criminal charges simply because a related civil suit is pending. This Court cannot be party to such an outcome. 50. This Court is also guided by the persuasive reasoning of the Supreme Court of India in Neeharika Infrastructure Pvt. Ltd v State of Maharashtra and others, where the court held that the power of quashing criminal proceedings has to be exercised very sparingly and with circumspection, and that too in the rarest of rare cases. The court should not embark upon an enquiry as to the reliability or genuineness of the allegations unless they are so patently absurd that no prudent person can ever reach a conclusion that an offence is disclosed. 51. In this case, the allegations are far from absurd; they are detailed, corroborated by documentary evidence, and supported by the statements of public officials. Therefore, this Court finds that the criminal proceedings in Criminal Case No. E448 of 2022 do not constitute an abuse of the court process. The Respondents have demonstrated a legitimate basis for the prosecution, and the Petitioner’s rights under Articles 27, 29, 40, 47, 48, and 50 have not been violated by the mere fact of his prosecution. He will have his day in court and will be afforded a fair hearing to challenge the evidence against him. Whether the Director of Public Prosecutions acted in contravention of Article 157(11) of the Constitution by instituting criminal proceedings against the Petitioner without due regard to the public interest, the HCCHRPET NO. E201 OF 2022 JDT P a g e 24 | 40

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interests of the administration of justice, and the need to prevent abuse of the legal process 52. The second issue pertains to the exercise of the DPP’s prosecutorial powers and whether the decision to charge the Petitioner was consistent with Article 157(11) of the Constitution. This Article provides that in exercising the powers conferred by the Article, the DPP shall have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process. The Petitioner contends that the DPP failed to have regard to these factors by preferring charges that are politically motivated and by disregarding the pending civil proceedings. 53. The office of the Director of Public Prosecutions is an independent constitutional office. Article 157(10) explicitly states that the DPP shall not require the consent of any person or authority for the commencement of criminal proceedings and, in the exercise of his powers or functions, shall not be under the direction or control of any person or authority. 54. This constitutional insulation is deliberate. It is meant to shield the prosecutorial function from partisan political interference, from the whims of powerful individuals, and from the pressure of litigants who might seek to use the criminal process for personal gain. However, as the High Court stated in Maina & 4 others v Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR), this independence is not absolute. The High Court, under Article 165(3)(d)(ii), can properly interrogate any question arising from the DPP’s decision-making process where it is shown that the HCCHRPET NO. E201 OF 2022 JDT P a g e 25 | 40

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expectations of Article 157(11) have not been met. In holding as such, the Court cited with approval the Supreme Court decision Jirongo v Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) where it was opined as follows: “[82]Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of article 157(11) have not been met, then the High Court under article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.” In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that :“Whereas there can be no doubt that investigation of criminal offences is exclusively the field of within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations complete and the suspect charged.By the same HCCHRPET NO. E201 OF 2022 JDT token to be and in P a g e 26 | 40

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terms of article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake functions in accordance and compliance with the these law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in criminal investigations are bound by the law and the conducting decision investigate a crime (or prosecute in the case of the DPP) to must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process. See Ndarua v R[2002] 1EA 205. See also Kuria & 3 others v Attorney General [2002] 2KLR.” (Emphasis supplied)” 55. The Petitioner argues that the DPP failed the public interest test because the dispute is civil. This Court disagrees. The public interest in combating HCCHRPET NO. E201 OF 2022 JDT P a g e 27 | 40

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fraud, especially fraud in the acquisition of public land or land titles, is immense. The land sector in Kenya has been plagued by historical injustices, corruption, and forgery, leading to endless litigation and, at times, violence. The DPP has a duty to the public to ensure that the integrity of the land registry is protected and that persons who forge official documents, conspire with corrupt public officials, and steal land are brought to justice, regardless of their political status. To suggest that it is not in the public interest to prosecute a sitting Member of Parliament for alleged forgery of land documents would be to create a dangerous two-tiered system of justice, one for the powerful and another for the ordinary citizen. 56. On the interest of the administration of justice, the DPP was entitled to consider that the evidence gathered by the DCI met the threshold for prosecution, which is a prima facie case. The administration of justice is not served by allowing serious criminal charges to languish or by staying them on grounds that are not legally tenable. As held in Meixner & another v Attorney General [2005] KECA 292 (KLR), it is the trial court, not the High Court in a constitutional petition or judicial review application, that is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. To intervene prematurely would be a subversion of the law regulating criminal trials. 57. Regarding the need to prevent abuse of the legal process, this Court has already found that the criminal proceedings are not an abuse. The Petitioner has not produced a scintilla of evidence to prove that the DPP was acting on the instructions of his political opponents or that the decision HCCHRPET NO. E201 OF 2022 JDT P a g e 28 | 40

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to charge was made in bad faith. The mere fact that the Petitioner is a politician and that the charges were brought during an election year is not, by itself, proof of malice. Many politicians have been charged with crimes before, during, and after elections, and the lawfulness of those actions depends on the evidence, not on the calendar. 58. The DPP’s office has a continuing mandate to prosecute crimes, and it does not go into hibernation during election seasons. Therefore, this Court finds that the DPP acted within the broad discretion conferred upon him by the Constitution and that his decision to charge the Petitioner was not a breach of Article 157(11). The Petitioner’s remedy, if any, lies in challenging the evidence at his trial, not in seeking a constitutional shield to avoid trial altogether. Whether the Petitioner has established a legitimate expectation not to be prosecuted during the 2022 general election campaign period, and whether the DPP’s decision to charge him violated this expectation. 59. The Petitioner’s claim of legitimate expectation is perhaps the most novel but ultimately the weakest limb of his arguments. He contends that the then DPP, Mr. Noordin Haji, made a public announcement that politicians would not be charged during the campaign season, and that he legitimately expected not to be charged. He further noted that another petition challenging that directive was pending, implying that the directive was still in force. HCCHRPET NO. E201 OF 2022 JDT P a g e 29 | 40

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60. The doctrine of legitimate expectation is a well-established principle of administrative law, rooted in the concept of fairness. It was succinctly defined by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (supra) as arising when a body, by representation or by past practice, arouses an expectation that is within its power to fulfill. For an expectation to be legitimate, it must be founded upon a clear, unambiguous, and lawful promise or practice by the public authority. The authority must have the legal competence to make the representation, and the expectation must not be contrary to the law or the Constitution. 61. The DPP’s alleged statement that he would not charge politicians during the campaign season, even if made, cannot give rise to a legitimate expectation for several fundamental reasons. First, the DPP is a constitutional office holder bound by the supreme law and the oath of office. Article 157(11) requires him to have regard to the public interest, the interests of the administration of justice, and the need to prevent abuse of the legal process. A blanket policy of not charging any politician during a specific period, regardless of the gravity of the offence or the strength of the evidence, would be inconsistent with this constitutional duty. It would violate the principle of equality before the law enshrined in Article 27 of the Constitution, as it would grant politicians a privileged status not available to ordinary citizens. 62. Second, the DPP cannot fetter his own discretion by issuing a policy that is ultra vires his constitutional mandate. His discretion to prosecute or not to HCCHRPET NO. E201 OF 2022 JDT P a g e 30 | 40

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prosecute must be exercised on a case-by-case basis, considering the unique facts and circumstances of each case. A rigid, time-bound moratorium on prosecuting an entire class of persons (politicians) would be an abdication of his duty to fight crime and would be irrational. As held by the Court in R vs. Devon County Council ex parte P Baker [1955] 1 All ER, no legitimate expectation can override clear statutory or constitutional provisions. 63. Third, and most critically, the Petitioner has failed to prove the existence of the alleged representation. He attached a newspaper article (marked JMG5) to his Supporting Affidavit. However, newspaper articles are generally hearsay and cannot, on their own, form the basis of a legitimate expectation claim, especially when the precise words used by the DPP are not verified. The Petitioner did not produce an official circular, a press release from the ODPP, or any other formal document evidencing the policy. Moreover, the pendency of a petition challenging the directive (Petition No. E155 of 2022) suggests that the legality of the directive was itself in doubt, or at the very least under challenge. A party cannot legitimately expect an authority to act in a manner that is potentially unlawful. 64. The legitimate expectation must be based on a promise or practice that is within the power of the public body to fulfill and that is not contrary to the law. The alleged promise by the DPP to suspend prosecutions of politicians during the campaign season is contrary to the rule of law, contrary to the principle of equality, and an unlawful fetter on his discretion. Therefore, this Court finds and holds that the Petitioner has not established a legitimate HCCHRPET NO. E201 OF 2022 JDT P a g e 31 | 40

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expectation not to be prosecuted. The DPP’s decision to charge him, based on the evidence gathered, was a lawful exercise of discretion, and the timing of the charge, while politically inconvenient for the Petitioner, does not render it unconstitutional. Whether the investigations and search conducted by the Ethics and AntiCorruption Commission (EACC) at the Petitioner’s residence were lawful, and whether they violated the Petitioner’s right to privacy under Article 31 of the Constitution. 65. The fourth issue concerns the actions of the Interested Party, the Ethics and Anti-Corruption Commission (EACC). The Petitioner complains about the raid on his residence on 18th May 2022, arguing that it was based on a warrant issued against his brother and was therefore unlawful. He also claims the raid was an invasion of his privacy and an attempt to embarrass him. 66. EACC is a constitutional commission established under Article 79 of the Constitution. Its objects and functions are set out in the Ethics and AntiCorruption Commission Act, No. 22 of 2011. One of its core functions is to investigate and recommend to the DPP the prosecution of any acts of corruption, bribery, or economic crimes. To facilitate these investigations, the Commission is granted specific powers under the Anti-Corruption and Economic Crimes Act (ACECA), No. 3 of 2003. Section 23 of ACECA empowers an authorized officer of the Commission to apply for a search warrant, and Section 29 allows a magistrate to issue a warrant if satisfied that there is reasonable cause to believe that there is in any premises or HCCHRPET NO. E201 OF 2022 JDT P a g e 32 | 40

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upon any person any property or document which is material to the investigation. 67. The Petitioner’s own Supporting Affidavit confirms that EACC was investigating allegations of procurement irregularities and embezzlement of CDF funds at Embakasi North Constituency. The evidence presented by EACC, including the schedule of payments to companies linked to the Petitioner’s daughters and niece, establishes that the Commission had reasonable suspicion to believe that corrupt conduct had occurred. The allegations are serious: that the Petitioner, as the sitting MP, used his office to influence the procurement process to award lucrative tenders to his close family members. 68. Regarding the search warrant, the Interested Party’s replying affidavit clarifies that two warrants were obtained on 6th May 2022: Misc. Application No. E1545/22 to search the offices and premises of the Petitioner, and Misc. Application No. E1547/22 to search the office and premises of Samuel Nganga Gakuya, the Constituency Manager and the Petitioner’s brother. The Investigator, Lenjo Killio, deponed that the warrant against the Petitioner was not executed initially because the Petitioner was not present at his residence. However, when the Commission’s agents went to the Petitioner’s house on 18th May 2022, they were acting under the warrant issued in Misc. Application No. E1545/22, which was specifically in the Petitioner’s name. The Petitioner has not challenged the validity of that warrant by filing a separate application to quash it. He has not HCCHRPET NO. E201 OF 2022 JDT P a g e 33 | 40

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demonstrated that the magistrate who issued the warrant acted without jurisdiction or that the warrant was issued on the basis of false information. 69. The right to privacy under Article 31 of the Constitution is a fundamental right that must be protected. It includes the right not to have one’s person, home, or property searched. However, this right is not absolute. Under Article 24, it can be limited by a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society. Section 118 of the Criminal Procedure Code and Sections 23 and 29 of ACECA provide the legal framework for the limitation of the right to privacy through the issuance of search warrants. The search of a person’s home is a serious intrusion, but when it is done pursuant to a valid warrant issued by a judicial officer, based on reasonable suspicion, and for the purpose of investigating serious crimes like corruption, it is constitutionally permissible. 70. In this case, the Court finds that the search was lawful. The Petitioner was not an innocent bystander; he was the target of a corruption investigation. The warrant was properly issued by a court of competent jurisdiction. The fact that the Petitioner’s brother was also under investigation and that a separate warrant was obtained against him does not invalidate the warrant against the Petitioner. The Petitioner’s claim of embarrassment is unfortunate but is an inherent consequence of any lawful search. The Court must balance the Petitioner’s right to privacy against the public interest in rooting out corruption, which is a national value and principle of governance under Article 10 of the Constitution. In this balance, the public HCCHRPET NO. E201 OF 2022 JDT P a g e 34 | 40

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interest in the EACC discharging its constitutional mandate to investigate corruption outweighs the Petitioner’s claim of embarrassment, especially where, as here, the Commission acted under colour of a court order. This Court therefore finds that the EACC’s actions were lawful and did not violate the Petitioner’s constitutional rights. Whether the Petitioner is entitled to the judicial review orders of prohibition and certiorari as prayed, and whether the Petition has met the constitutional threshold for the grant of such reliefs 71. The final issue is whether the Petitioner has made out a case for the grant of the prerogative orders of prohibition and certiorari. Judicial review is a powerful tool for supervising public bodies and ensuring that they act within the law. However, it is a supervisory, not appellate, jurisdiction. The Court is primarily concerned with the decision-making process, not the merits of the decision itself. 72. The grounds for judicial review are well-established: illegality, irrationality, and procedural impropriety, as famously enumerated in the Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case). The Petitioner must show that the decision to charge him was illegal and without legal authority, irrational; so unreasonable that no reasonable authority would have made it, or procedurally improper; in breach of the rules of natural justice. 73. This Court has already found that the decision to prosecute was not illegal. The DPP had the clear legal authority under Article 157 of the Constitution HCCHRPET NO. E201 OF 2022 JDT P a g e 35 | 40

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to institute criminal proceedings. The decision was not irrational. The DPP had before him a police file containing statements from land officials, forensic evidence of forgery, and a chain of documents supporting Silvya Merie’s claim of ownership. It was entirely rational for the DPP to conclude that there was a prima facie case to answer. The decision was not procedurally improper. The Petitioner was given notice of the charges and an opportunity to appear in court. His grievance that he was not consulted before the decision to charge is not a ground for judicial review, as the DPP is not required to give a hearing to a suspect before deciding to charge. 74. In Republic V Kenya Revenue Authority Exparte Yaya Towers Limited [2008] KEHC 489 (KLR), the Court underscored that judicial review orders are discretionary and the court may decline to grant them even if deserved particularly if the court is of the view that there are more efficacious remedies in the circumstances of the case. Such orders can only be granted where the applicant demonstrates that the public body acted in excess of its jurisdiction or in breach of natural justice. The Petitioner has failed to make such a demonstration. His application is, in essence, a collateral attack on the criminal trial. He seeks to have this Court evaluate the evidence and declare him innocent or that the prosecution is unfounded. That is the function of the trial court. 75. The Court in Meixner & Another v Attorney General (supra) warned that it would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court. The proper forum for the Petitioner to challenge the authenticity of the title documents, to crossHCCHRPET NO. E201 OF 2022 JDT P a g e 36 | 40

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examine the land officials, and to present his own evidence is the Magistrates’ Court in Criminal Case No. E448 of 2022. That court is constitutionally mandated and equipped to hear and determine the matter. To grant the orders of prohibition and certiorari would be to improperly shield the Petitioner from facing a legitimate criminal trial. 76. Consequently, this Court finds that the Petitioner is not entitled to the judicial review orders sought. CONCLUSION 77. The Constitution of Kenya, 2010, represents a transformative charter that seeks to entrench the rule of law, good governance, integrity, and accountability. It guarantees fundamental rights and freedoms to all persons, including the right to a fair trial and the right to privacy. However, these rights are not a licence for alleged impunity. The Constitution also establishes institutions, such as the DPP and the EACC, with the mandate to investigate and prosecute crimes. These institutions must be allowed to perform their functions without undue interference from the courts, except in cases of clear illegality or abuse. 78. In this case, the Petitioner, a sitting Member of Parliament, sought the intervention of this Court to halt criminal proceedings against him on allegations of land fraud and to restrain anti-corruption investigators. After a thorough examination of the pleadings and submissions, this Court has come to the firm conclusion that the Petition lacks merit. The evidence gathered by the DCI points to arguable allegations of serious criminal HCCHRPET NO. E201 OF 2022 JDT P a g e 37 | 40

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conduct involving the alleged forgery of land documents. The Petitioner has the right to counter these allegations in a trial conducted before a court of competent jurisdiction. 79. The EACC’s separate investigation into the alleged misappropriation of CDF funds is within its lawful mandate. The decision to charge the Petitioner was a rational exercise of the DPP’s prosecutorial discretion, and the search of his home was conducted pursuant to a valid court warrant. 80. The Petitioner’s arguments based on alleged political persecution, legitimate expectation, and the pendency of civil suits have not been substantiated to the level required for the High Court to intervene in his favour. To grant the orders sought would be to set a dangerous precedent where public officials can evade criminal accountability by raising the shield of political victimization and by merely pointing to concurrent civil proceedings. 81. Regarding the EACC investigations, the Commission is at liberty to continue with its mandate and to forward its findings to the DPP for possible further action, in accordance with the law. 82. In omnibus, while the Petition dated 10 th May 2022 must and does hereby fail, the Petitioner can take comfort in the fact that he enjoys the benefit a robust legal system, in the form of both criminal trial and civil trials, where he can substantively articulate his positions and rebut the allegations made against him by the Respondents, the Interested Party, and others. The HCCHRPET NO. E201 OF 2022 JDT P a g e 38 | 40

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Petition herein has failed to show any violation of the Constitution or statute that would require the High Court to halt and/or reverse the impugned actions, decisions, and processes. 83. Consequently, this Court makes the following final orders: a. The Petition dated 10th May 2022 is hereby dismissed. b. The conservatory orders issued by this Court on 11 th May 2022, staying the criminal proceedings in Nairobi Chief Magistrate’s Criminal Case No. E448 of 2022, be and are hereby vacated and set aside. c. Each party shall bear its own costs of this Petition. Orders accordingly. File Closed Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner – Ms. Matina h/b Mr. Danstan Omari Counsel for the 1st and 3rd Respondents – Mr. Mulati h/b Mr. Maatwa Counsel for the 2nd and 4th Respondents – No Appearance Counsel for the Interested Party- No Appearance HCCHRPET NO. E201 OF 2022 JDT P a g e 39 | 40

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Court Assistant – Mr. Sanja HCCHRPET NO. E201 OF 2022 JDT P a g e 40 | 40

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