George Ototo & 1 other v Inspector General of Police & 1 other

which culminated in adverse findings, the dissolution of KUSCCO’s Board of Directors, and the appointment of an Interim Board. The said Interim Board subsequently commissioned forensic audits by PriceWaterhouseCoopers and Grant Thornton, the outcomes of which, according to the Petitioner, were neither availed to him nor subjected to his scrutiny despite a formal request grounded on Article 35 of the Constitution. He avers that the impugned processes have been attended by adverse publicity, threats, and harassment, thereby infringing upon his dignity and personal security. 2. The Petitioner further contends that the institution of criminal proceedings against him in Milimani Criminal Case No. E083 of 2025 is predicated upon untested and unverified allegations, and constitutes a violation of his constitutional rights under Articles 28, 29, 35, 47, 48, and 50 of the Constitution. He characterises the said proceedings as an abuse of the criminal justice process, undertaken in bad faith and for ulterior purposes, thus warranting the intervention of this Court by way of conservatory orders, including anticipatory bail and orders prohibiting his arrest and prosecution. 3. The Respondents, in concert, strenuously oppose the Petition. They contend that all impugned actions were undertaken lawfully, within the confines of their respective statutory mandates, and in furtherance of the public interest, following credible complaints and the detection of serious financial improprieties within KUSCCO. It is their case that the inspection, regulatory interventions, dissolution of the Board, and appointment of an Interim Board were firmly anchored in the provisions of the Co-operative Societies Act. They HCCHRPET. NO. E013 OF 2025 JDT Page 2 | 39

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further assert that the forensic audits lawfully unearthed substantial financial mismanagement, thereby necessitating referral to the appropriate investigative agencies. 4. The 1st, 2nd, and 5th Respondents maintain that the Petitioner was lawfully charged upon the existence of reasonable and probable cause, and that he is presently before a court of competent jurisdiction wherein his right to a fair trial is adequately safeguarded. The 3rd, 4th, and 6th Respondents, on their part, emphasise that the regulatory and administrative processes undertaken were consultative, proportionate, and fully compliant with the dictates of due process. Collectively, the Respondents contend that the Petition fails to meet the constitutional threshold of precision and proof, discloses no violation of fundamental rights or freedoms, is premature and speculative in nature, and constitutes an impermissible attempt to impede ongoing criminal proceedings and lawful regulatory functions carried out pursuant to the Constitution and statute. THE PETITIONER’S CASE 5. The Petitioner/Applicant, a former Group Managing Director of the Kenya Union of Savings and Credit Co-operatives Limited (KUSCCO), who served in that capacity from August 2010 until his voluntary retirement on 1 st February 2024, has approached this Court by way of an Application expressed to be brought pursuant to various provisions of the Constitution of Kenya, 2010, and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, seeking urgent constitutional intervention. HCCHRPET. NO. E013 OF 2025 JDT Page 3 | 39

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6. The Petition is anchored upon a sequence of events said to have been precipitated by a directive issued on 5 th October 2023 by the 3 rd Respondent to the SACCO Societies Regulatory Authority to undertake an inspection of KUSCCO. The Petitioner avers that the process culminated in a press statement dated 6th May 2024 containing adverse findings. Following these developments, the Board of KUSCCO was disbanded and replaced with an Interim Board, which in turn commissioned a forensic audit undertaken by PricewaterhouseCoopers and Grant Thornton. 7. It is the Petitioner’s case that, notwithstanding a formal request made pursuant to Article 35 of the Constitution and the Access to Information Act, the Respondents have declined and/or failed to furnish him with the forensic audit report. This, he contends, is despite the said report allegedly having been disseminated to third parties and investigative agencies, with recommendations for the prosecution of persons purportedly implicated therein. He asserts that such conduct amounts to a denial of his constitutional right of access to information. 8. The Petitioner further avers that he has been subjected to sustained and adverse media publicity founded upon the impugned inspection and audit findings, thereby occasioning grave reputational injury and public opprobrium. He contends that he has, in effect, been condemned unheard, without being afforded an opportunity to respond to the allegations levelled against him, in violation of the cardinal tenets of natural justice. In this regard, he invokes the well-established principles of audi alteram partem and HCCHRPET. NO. E013 OF 2025 JDT Page 4 | 39

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nemo judex in causa sua. He further depones that he has received threats and has been subjected to harassment by unknown persons, and that he was summoned by the Directorate of Criminal Investigations to record a statement, thereby engendering a reasonable apprehension of imminent arrest on the basis of what he characterises as unsubstantiated allegations. 9. The Petitioner contends that the cumulative effect of the Respondents’ actions and omissions constitutes a violation of his constitutional rights and fundamental freedoms, including the right of access to information under Article 35, the right to fair administrative action under Article 47, the right to a fair hearing under Article 50, the right to human dignity under Article 28, and the right to freedom and security of the person under Article 29 of the Constitution. He further impugns the legality and propriety of the investigations and the threatened prosecution, contending that the same are tainted with procedural impropriety, lack a proper evidentiary foundation, and are actuated by ulterior motive, thus amounting to an abuse of the criminal justice process. 10. The Supporting Affidavit reiterates the foregoing depositions and is accompanied by documentary material, including correspondence, the impugned press statement, and evidence of the alleged threats and adverse media coverage. The Petitioner maintains that, absent the intervention of this Court, he stands exposed to imminent and irreparable violation of his rights, including the risk of arbitrary arrest and detention, thereby rendering the Petition nugatory. HCCHRPET. NO. E013 OF 2025 JDT Page 5 | 39

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11. Subsequently, the Petitioner filed a Supplementary Affidavit sworn on 26 th February 2025 in response to the Grounds of Opposition by the 5 th Respondent and the Replying Affidavit of the 4 th Respondent. In that affidavit, he depones that, contrary to the assertion that no proceedings were pending, the 5th Respondent approved and consented to his prosecution on 13th February 2025 in Milimani Criminal Case No. E083 of 2025, wherein he took plea on 17th February 2025 and was admitted to bail as the second accused person. He further avers that the findings of the forensic audit were publicly released on 11th February 2025 and reiterates that he continues to suffer adverse publicity, threats, and psychological distress. 12. In his submissions, the Petitioner reiterates both the factual and legal substratum of his claim and invokes, inter alia, Articles 24, 27, 28, 35, 47, 48, 50, and 259 of the Constitution. On the right of access to information, he places reliance on Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR, for the proposition that information held by the State ought, as a general rule, to be disclosed upon request, and on Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Interested Parties) [2022] KEHC 368 (KLR) for the principle that disclosure is the norm and non-disclosure must be justified. 13. On the alleged violation of his rights to fair administrative action and fair hearing, the Petitioner maintains that he was condemned unheard in contravention of the dictates of natural justice and in breach of Articles 47 and 50 of the Constitution. With regard to the impugned criminal proceedings, he contends that the same are unlawful and constitute an HCCHRPET. NO. E013 OF 2025 JDT Page 6 | 39

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abuse of the court process. In this respect, he relies on Chemweno & 3 others v Director of Public Prosecutions & 3 others [2023] KEHC 20472 (KLR) for the proposition that this Court is vested with jurisdiction to intervene and halt criminal proceedings where such proceedings threaten or infringe constitutional rights or otherwise amount to an abuse of the judicial process. 14. In the premises, the Petitioner beseeches this Honourable Court to find and declare that his constitutional rights and fundamental freedoms have been violated, infringed, and/or are under imminent threat of violation, and consequently to grant the following reliefs: i) A declaration be and is hereby issued that the failure by the 4 th Respondent to provide information sought under Article 35(1) (b) on the basis of the petitioner's request dated 8 th November 2024 violated the Petitioner's constitutional right to access information. ii) A stay order of prohibition be and hereby issued prohibiting the 1st, 2nd and 4th Respondents from prosecuting the petitioner on the basis of Inspection, Audit and/ or Forensic Report by Grant Thornton, Price Waterhouse Coopers(PWC) and/ or any other person or entity. iii) Costs to the Petitioner. THE RESPONDENTS’ CASE 1ST, 2ND AND 5TH RESPONDENTS’ CASE HCCHRPET. NO. E013 OF 2025 JDT Page 7 | 39

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15. The case advanced on behalf of the 1st, 2nd and 5th Respondents emerges from three principal pleadings, namely the Replying Affidavit sworn on 20 th March 2025, the Grounds of Opposition dated 28th January 2025, and the Submissions dated 26th August 2025, together with the corpus of jurisprudence relied upon in support thereof. 16. In the Replying Affidavit sworn on 20 th March 2025, CPL Jackline Makena, a police officer attached to the Investigations Bureau General Investigations Unit at the Directorate of Criminal Investigations Headquarters, deposes that the 2nd Respondent is properly and lawfully seized of investigations into allegations of large-scale misappropriation of funds at the Kenya Union of Savings and Credit Co-operatives (KUSCCO) Limited. The said entity is described as a duly registered umbrella body for savings and credit cooperative societies, whose mandate encompasses, inter alia, advocacy, the provision of financial services, training, and related services, including through its subsidiaries. It is averred that the institution experienced financial constraints in or about the year 2023, thereby precipitating regulatory intervention and an inspection which disclosed gross misapplication of members’ funds, including irregular overdrafts and material discrepancies in cash withdrawals over the period spanning 2013 to 2023. 17. According to the 2nd Respondent, a formal complaint was received by the Director of Criminal Investigations on 13th September 2024 from the Inspector General of Police, accompanied by correspondence from the Principal Secretary, State Department for Co-operatives. This, it is contended, precipitated the constitution of a multi-agency investigative team on 19 th HCCHRPET. NO. E013 OF 2025 JDT Page 8 | 39

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September 2024. Consequently, Inquiry File No. 273/2024 was opened, and the investigations were methodically stratified into multiple inquiry files so as to facilitate a comprehensive, coordinated, and expeditious inquiry into the diverse facets of the alleged financial improprieties. 18. Upon completion of investigations in respect of one of the inquiry files, the same was forwarded to the Office of the Director of Public Prosecutions on 13th January 2025 and by a letter dated 3 rd February 2025, the said office approved the institution of criminal proceedings against five suspects, namely George Magutu Mwangi (the former Group National Chairman), George Otieno Ototo (the Petitioner herein and former Group Managing Director), George Ochola Owino (the former Finance Manager), Jackline Pauline Atieno Omolo (an advocate practising under the name and style of Jackline P.A. Omolo & Co. Advocates), and Mercy Njeru (the former Advocacy Manager). The approved charges include conspiracy to defraud contrary to section 317 of the Penal Code, money laundering contrary to section 3 as read with section 16 of the Proceeds of Crime and Anti-Money Laundering Act, stealing by directors or officers of a company contrary to section 282 of the Penal Code, making a false document contrary to section 347(a) as read with section 349 of the Penal Code, and uttering a false document contrary to section 353 of the Penal Code. 19. It is further contended that four of the said suspects were arrested and arraigned before the Milimani Chief Magistrate’s Court on 13th February 2025 in Criminal Case No. E083 of 2025. The Petitioner, who was at the HCCHRPET. NO. E013 OF 2025 JDT Page 9 | 39

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material time unavailable, was subsequently summoned by order of the court, whereupon he appeared on 17th February 2025, took plea, and was admitted to bail. It is further deponed that, in the course of investigations, the Petitioner and other relevant persons were duly invited to record statements, and that investigations in respect of other inquiry files remain active and ongoing at various stages. 20. The 2nd Respondent emphatically maintains that it has, at all material times, acted within the confines of the law and in faithful discharge of its constitutional and statutory mandate, without any misuse of its office or infringement of the Petitioner’s rights. The Respondents accordingly contend that the investigations and ensuing prosecution are grounded upon reasonable and probable cause, that the Petitioner has failed to demonstrate any violation or threatened violation of his constitutional rights and that the allegations advanced in the Petition are misconceived, speculative, and calculated to frustrate lawful investigative and prosecutorial processes, thereby amounting to an abuse of the process of this Court. 21. In the Grounds of Opposition dated 28th January 2025, the 5th Respondent raises a preliminary objection to the competence of the Petition, contending that it is bereft of the requisite clarity and precision, fails to disclose any cognisable cause of action against the Respondents, and does not demonstrate any actual or threatened violation of constitutional rights. It is further asserted that the Application is premature, improperly invites this Court to interfere with ongoing investigative processes, and falls short of the HCCHRPET. NO. E013 OF 2025 JDT Page 10 | 39

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established legal threshold for the grant of anticipatory bail. The Respondents maintain that investigations and arrests are lawful processes sanctioned by both the Constitution and statute and do not, without more, constitute violations of fundamental rights. They further invoke the doctrine of exhaustion, contending that the Petitioner has failed to invoke and exhaust the statutory mechanisms provided under the Access to Information Act. 22. In their Submissions dated 26th August 2025, the Respondents distil their case into two central issues: firstly, whether the arraignment of the Petitioner was lawful; and secondly, whether any violation of his constitutional rights has been established. On the first issue, they submit that the decision to charge the Petitioner was made pursuant to Article 157 of the Constitution, following a comprehensive review of the investigative material, and was predicated upon the existence of reasonable and probable cause. In this regard, reliance is placed on Pauline Raget Adhiambo Agot v Director of Public Prosecutions & 5 Others, for the proposition that the Office of the Director of Public Prosecutions is constitutionally independent and not subject to the direction or control of any person or authority, including the courts, save in instances of demonstrable abuse. 23. Further reliance is placed on Republic v Commissioner of Police & Director of Public Prosecutions Ex parte Michael Monari & Another, for the principle that the police bear a constitutional duty to investigate complaints once made, and that the threshold for preferring charges is that of reasonable suspicion, the sufficiency and veracity of evidence being matters reserved for determination by the trial court. The Respondents also invoke Cascade HCCHRPET. NO. E013 OF 2025 JDT Page 11 | 39

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Company Limited v Kenya Association of Music Production (KAMP) & Others to underscore the principle that investigative and prosecutorial agencies ought not to be unduly fettered in the discharge of their lawful mandates, absent proof of illegality, ultra vires conduct, or abuse of process. 24. On the scope of prosecutorial discretion and the imperative of public interest, reliance is placed on Maina & 4 Others v Director of Public Prosecutions & 4 Others, for the proposition that the Director of Public Prosecutions is enjoined to strike a delicate balance between the rights of an accused person and the broader public interest in the prosecution of crime. 25. With respect to the threshold for establishing constitutional violations, the Respondents call in aid the well-settled principle in Anarita Karimi Njeru v Republic, as reiterated in Mumo Matemo v Trusted Society of Human Rights Alliance & 5 Others, that a petitioner must plead with reasonable precision the constitutional provisions alleged to have been infringed and the manner of such infringement. They further rely on Leonard Otieno v Airtel Kenya Limited for the proposition that allegations of constitutional violations must be substantiated by cogent evidence and cannot rest upon conjecture or bare assertions. 26. Finally, the Respondents draw persuasive support from William v Spautz, for the proposition that courts ought to exercise considerable restraint in interfering with criminal proceedings and should only do so in exceptional circumstances where the interests of justice so demand. HCCHRPET. NO. E013 OF 2025 JDT Page 12 | 39

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27. Viewed in its totality, the Respondents’ case is that the investigation and prosecution of the Petitioner are lawful, constitutionally sanctioned, and firmly grounded upon reasonable suspicion; that no violation of the Petitioner’s rights has been demonstrated; and that the present Petition is premature, speculative, and an abuse of the court process. On that basis, they urge this Court to decline the reliefs sought and to dismiss the Petition with costs. THE 4TH RESPONDENT’S CASE 28. The case for the 4th Respondent, Kenya Union of Savings and Credit Cooperatives Limited (KUSCCO), is set out in its Replying Affidavit sworn by Arnold Munene, its Group Managing Director, together with its written Submissions dated 26th August 2025. 29. In the said Replying Affidavit, the 4 th Respondent robustly controverts the allegations advanced by the Petitioner relating to alleged financial impropriety, procedural unfairness, and violation of constitutional rights, and avers that the same are wholly devoid of factual and legal foundation. It is its consistent position that all actions undertaken by the 4 th Respondent, as well as by the relevant State and regulatory organs, were at all material times lawful, procedurally sound, and executed in bona fide discharge of statutory mandate and in furtherance of the public interest. 30. It is contended that in conformity with its obligations under the Sacco Societies Act, its Board duly initiated internal governance, compliance, and audit review mechanisms upon the emergence of financial irregularities HCCHRPET. NO. E013 OF 2025 JDT Page 13 | 39

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during the Petitioner’s tenure. It is further averred that the 4 th Respondent engaged the relevant regulatory authorities in order to address the said concerns within the framework of the law. 31. According to the 4th Respondent, the Ministerial Directive issued on 5th October 2023 by the 3 rd Respondent, directing the SACCO Societies Regulatory Authority to undertake an inspection of the 4 th Respondent, constituted a lawful and legitimate exercise of administrative and regulatory authority aimed at ensuring financial propriety and institutional compliance within the co-operative sector. Consequent upon the said directive, the Commissioner for Co-operative Development lawfully disbanded the Board of KUSCCO and appointed an Interim Board pursuant to the provisions of the Co-operative Societies Act, with a view to restoring sound governance, accountability, and institutional stability. 32. The 4th Respondent further avers that the forensic audits conducted by PricewaterhouseCoopers and Grant Thornton were independently undertaken in accordance with established regulatory processes, and that the resultant reports disclosed material financial inconsistencies warranting regulatory intervention and further investigative action. It is its position that the Petitioner was at all material times afforded a reasonable opportunity to respond to the issues arising therefrom and was furnished with relevant documentation, in compliance with the right of access to information under Article 35 of the Constitution. HCCHRPET. NO. E013 OF 2025 JDT Page 14 | 39

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33. The 4th Respondent emphatically denies any infringement of the Petitioner’s rights to fair administrative action or fair hearing, and avers that the Petitioner was accorded multiple opportunities to be heard before the Board, regulatory bodies, and investigative agencies, thereby satisfying the requirements of procedural fairness. It is further contended that the inspection and audit processes impugned by the Petitioner were lawful statutory processes undertaken within the ambit of express legislative authority. 34. In its Submissions dated 26th August 2025, the 4th Respondent reiterates that the Petition is devoid of merit and has, in any event, been overtaken by events following the Petitioner’s arrest and arraignment in Milimani Criminal Case No. E083 of 2025. It contends that the Petition constitutes an impermissible attempt to obstruct and/or derail ongoing lawful regulatory and prosecutorial processes. 35. With regard to the alleged violation of the right of access to information under Article 35 of the Constitution, reliance is placed on Katiba Institute v President’s Delivery Unit & 3 Others [2017] eKLR, for the proposition that the right is not absolute and may be subject to lawful limitation, particularly where disclosure would prejudice ongoing investigations or falls outside the statutory obligations of the entity concerned. 36. On the alleged breach of Articles 47 and 50 of the Constitution, the 4 th Respondent invokes Judicial Service Commission v Mbalu Mutava [2015] eKLR, wherein the Court of Appeal underscored that the content of HCCHRPET. NO. E013 OF 2025 JDT Page 15 | 39

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procedural fairness is context-dependent and is satisfied where a party is afforded a reasonable opportunity to be heard. 37. In conclusion, the 4th Respondent invokes the settled principle that constitutional litigation ought not to be deployed as a vehicle for obstructing lawful statutory, regulatory, or prosecutorial functions. It accordingly urges this Honourable Court to find that the Petition is frivolous, vexatious, and an abuse of the court process, and to dismiss the same with costs. THE 3RD AND 6TH RESPONDENTS’ CASE 38. The case advanced on behalf of the 3 rd and 6th Respondents is discernible from the Replying Affidavit sworn by David Obonyo, the Commissioner for Co-operative Development, dated 14th March 2025, together with the Written Submissions filed on their behalf. 39. In the said Replying Affidavit, the 3rd and 6th Respondents depose that the Kenya Union of Savings and Credit Co-operatives Limited (KUSCCO), the Petitioner’s former employer, is a duly registered co-operative society established under the Co-operative Societies Act on 19th September 1973, and serves as the umbrella body for approximately 3,500 SACCOs with a membership exceeding ten million persons. It is averred that, given the centrality of SACCOs within Kenya’s financial ecosystem, any irregularities within KUSCCO posed significant systemic risk, thereby necessitating prompt and decisive regulatory intervention. HCCHRPET. NO. E013 OF 2025 JDT Page 16 | 39

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40. It is averred that, upon receipt of complaints relating to financial irregularities, operational inefficiencies, and regulatory non-compliance within KUSCCO, the 3rd Respondent, in exercise of its statutory authority, issued policy directions, while the Commissioner undertook regulatory interventions pursuant to Sections 3(3), 60A, and 93 of the Co-operative Societies Act. In particular, it is deponed that a routine inspection conducted in October 2023 revealed material discrepancies in financial reporting, including misrepresentation of accounts, asset deficiencies approximating Kshs. 12.5 billion, liquidity constraints, and the unlawful operation of the Central Finance Fund without the requisite licence. 41. It is further averred that, following these findings, a consultative meeting convened on 25th April 2024 brought together key stakeholders, including member SACCOs, who unanimously resolved to adopt remedial measures aimed at restoring institutional integrity, including the appointment of an interim board. Consequently, the Commissioner lawfully appointed an interim board pursuant to Section 93A of the Act and Rule 54 of the Cooperative Societies Rules. Thereafter, forensic audits conducted by PricewaterhouseCoopers and Grant Thornton disclosed extensive mismanagement, financial impropriety, and falsification of accounts, the findings of which were duly transmitted to the relevant investigative agencies for appropriate action. 42. The 3rd and 6th Respondents maintain that all actions undertaken were lawful, consultative, and executed strictly within the confines of their statutory HCCHRPET. NO. E013 OF 2025 JDT Page 17 | 39

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mandate, and were neither directed at the Petitioner personally nor in violation of his constitutional rights, but were instead undertaken in furtherance of the public interest and for the protection of the integrity of the co-operative sector. 43. In their Written Submissions, the Respondents crystallise their case into three principal issues, namely: whether the Petition discloses any constitutional violations attributable to them; whether the impugned inspection, regulatory interventions, and forensic audits were lawful; and whether the reliefs sought are tenable in the circumstances. 44. On the threshold for constitutional petitions, reliance is placed on Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, for the settled principle that a petitioner must plead constitutional violations with reasonable precision. Further reliance is placed on Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 Others and Meme v Republic to underscore the necessity of establishing a clear nexus between the alleged infringement and the constitutional provisions invoked. The Respondents also invoke Communications Commission of Kenya v Royal Media Services Ltd & 5 Others and Ngalukya & 45 Others v Mungania & Another in reinforcing the centrality of precision and specificity in constitutional litigation. They submit that the instant Petition is predicated upon speculative and generalized allegations, devoid of evidentiary substratum, and fails to disclose any actionable constitutional violation attributable to them. HCCHRPET. NO. E013 OF 2025 JDT Page 18 | 39

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45. On the alleged violation of Article 27, reliance is placed on EG & 7 Others v Attorney General for the proposition that differentiation does not, of itself, amount to discrimination in the absence of proof of unfair, arbitrary, or irrational treatment. With regard to Article 35, the Respondents contend that the right of access to information is not absolute and is subject to statutory limitations under the Access to Information Act, particularly where disclosure would prejudice ongoing investigations. 46. On the alleged breach of Articles 47 and 50 of the Constitution, reliance is placed on Penina Wothaya Wachira v Kenya Methodist University and Republic v Kenya Maritime Authority & Another; Zam Zam Shipping Limited (Interested Party), for the principles governing fair administrative action, including the requirement that administrative bodies act within the bounds of legality, procedural propriety, and rationality. It is submitted that the Petitioner was accorded due process and that the impugned actions were lawful, proportionate, and procedurally sound. 47. On the lawfulness of the inspection and regulatory intervention, the Respondents submit that the same were firmly anchored in statute and were necessitated by grave financial irregularities that posed a real threat to the stability of the co-operative sector. They contend that the measures undertaken were proportionate, consultative, and pursued in furtherance of the public interest. HCCHRPET. NO. E013 OF 2025 JDT Page 19 | 39

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48. With respect to the reliefs sought, it is contended that the Petition has, in any event, been overtaken by events, the Petitioner having already been arrested and arraigned in Milimani Criminal Case No. E083 of 2025. In this regard, reliance is placed on Madatali Chatur v Cabinet Secretary Ministry of Interior & 3 Others and Republic v Commissioner of Police & Another Ex parte Michael Monari & Another for the principle that courts ought not to interfere with investigative and prosecutorial mandates absent demonstrable illegality, malice, or abuse of process. Further reliance is placed on Asif v Director of Public Prosecutions & 2 Others and Isaac Tumunu Njunge v Director of Public Prosecutions & 2 Others for the proposition that criminal investigations and prosecutions should be permitted to proceed unimpeded unless shown to be actuated by ulterior motive or conducted in bad faith. 49. It is contended that that the Petition falls short of the requisite constitutional threshold, that all impugned actions were lawful, intra vires, and undertaken in good faith and in the public interest and that the reliefs sought are untenable, having been overtaken by events and amounting to an impermissible attempt to obstruct lawful regulatory and criminal processes. They accordingly urge this Honourable Court to dismiss the Petition with costs. ANALYSIS AND DETERMINATION 50. Having carefully considered the pleadings, the rival affidavits, the submissions on record, and the applicable constitutional and statutory HCCHRPET. NO. E013 OF 2025 JDT Page 20 | 39

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framework, this Court is of the considered view that the following issues arise for determination: i. Whether the Petition meets the constitutional threshold and discloses any violation of rights ii. Whether the refusal to provide the forensic audit report violated Article 35(1)(b) of the Constitution iii. Whether the Court should interfere with the criminal proceedings and grant the reliefs sought Whether the Petition meets the constitutional threshold and discloses any violation of rights 51. The point of departure in determining this issue is the well-settled principle that constitutional litigation is neither a matter of form nor a vehicle for the ventilation of generalized grievances. It is a disciplined process governed by clear pleading and evidentiary standards. The law, as crystallised in Anarita Karimi Njeru v Republic and restated in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, demands that a petitioner must not only cite the constitutional provisions alleged to have been infringed, but must do so with reasonable precision and demonstrate, by way of cogent and credible evidence, the manner in which such infringement has occurred. 52. This requirement is not a mere procedural nicety, it is a substantive jurisdictional threshold intended to ensure that courts adjudicate concrete disputes rather than abstract claims. Put differently, he who alleges must prove, ei incumbit probatio qui dicit, non qui negat. HCCHRPET. NO. E013 OF 2025 JDT Page 21 | 39

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53. When the Petitioner’s case is measured against this threshold, and juxtaposed with the Respondents’ detailed rebuttal, it becomes apparent that the Petition does not surmount the evidentiary burden imposed by law. The Petitioner alleges violations of Articles 28, 29, 35, 47 and 50 of the Constitution, anchored principally on claims of adverse publicity, denial of access to a forensic audit report, alleged procedural unfairness in regulatory interventions, and the institution of criminal proceedings said to be unsupported by evidence. 54. However, the Respondents have provided a coherent and uncontroverted narrative demonstrating that the impugned actions arose from a formal complaint, were preceded by lawful inspection and audit processes under the Co-operative Societies Act, and culminated in a decision by the Director of Public Prosecutions to prefer charges upon review of an investigative file grounded on reasonable and probable cause. The Respondents further assert, without effective contradiction, that the Petitioner was not only invited to participate in the investigative process but also took plea before a competent criminal court, thereby bringing the matter within the constitutional safeguards of Article 50. 55. In so far as the alleged violations of Articles 28 and 29 of the Constitution are concerned, it is necessary to begin by appreciating their constitutional import. Article 28 guarantees the right to inherent dignity and the right to have that dignity respected and protected, while Article 29 secures the right to freedom and security of the person, including protection against arbitrary deprivation of liberty, detention without trial, and all forms of violence, HCCHRPET. NO. E013 OF 2025 JDT Page 22 | 39

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whether physical or psychological. Properly construed, these provisions impose a constitutional obligation upon the State and its organs to refrain from conduct that unlawfully undermines personal dignity or security, and where necessary, to protect individuals against such infringement. 56. The applicable constitutional test, as distilled from the Constitution and the binding jurisprudence of superior courts, is not one of subjective apprehension, perceived reputational injury, or generalized unease. Rather, it is whether there exists cogent, objective, and legally admissible evidence of conduct attributable to the State or its agents which results in a demonstrable infringement of a constitutionally protected right. Constitutional adjudication, being inherently evidence-based, does not operate in the realm of speculation or conjecture, but is anchored on pleaded facts that meet the requisite standard of proof. 57. The Court of Appeal has been emphatic on this point. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others, the Court underscored that constitutional litigation must not devolve into “speculation, conjecture or generalities,” but must be founded on a clear factual matrix demonstrating the alleged infringement and its constitutional nexus. Similarly, in Peter Ngari Kagume & 7 Others v Attorney General, the Court of Appeal reiterated that the burden of proof in constitutional petitions rests squarely on the party alleging violation, and that such allegations must be proved by credible and tangible evidence, not assumption or inference. HCCHRPET. NO. E013 OF 2025 JDT Page 23 | 39

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58. Flowing from these authorities, it is not sufficient for a party to merely assert that a right has been violated, there must be demonstrable State action, a clear evidentiary linkage between the impugned conduct and the alleged infringement, and proof that the conduct complained of meets the constitutional threshold of violation. Absent such proof, the Court cannot be invited to found liability on perception, suspicion, or subjective dissatisfaction. 59. This position is consistent with the broader evidentiary principle encapsulated in actori incumbit onus probandi, that he who alleges must prove. It is only upon discharge of this burden that the Court can properly interrogate whether the conduct complained of meets the constitutional threshold of infringement. In the absence of such proof, the allegation remains in the realm of conjecture and cannot sustain a constitutional claim. 60. When measured against this standard, the Petitioner’s reliance on assertions of adverse publicity, threats, and harassment does not meet the requisite threshold. Beyond bare and unparticularised averments, no probative evidence has been placed before this Court to establish either the occurrence of the alleged acts, their origin, or any connection to the Respondents or any State organ. The allegations, as presented, remain diffuse and unsupported by material capable of sustaining a constitutional claim. It is a settled principle that constitutional adjudication proceeds on proof, not supposition actori incumbit probatio. HCCHRPET. NO. E013 OF 2025 JDT Page 24 | 39

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61. Furthermore, the Constitution does not transmute every instance of reputational injury, public criticism, or adverse commentary into a violation of Articles 28 or 29. The protection afforded under those provisions is directed at unlawful State conduct or action properly attributable to public authority that meets the threshold of constitutional infringement. Absent such attribution, causation, and demonstrable harm, the Court cannot be invited to constitutionalise what, at its highest, amounts to subjective dissatisfaction with lawful investigative or regulatory processes undertaken within statutory mandate. 62. In the absence of evidence establishing authorship, causation, and a sufficient nexus to State action, the allegations remain firmly within the realm of speculation. The Court cannot act on surmise or conjecture, for the administration of justice is anchored on proof and not presumption. 63. Equally, the alleged violation of Article 47 cannot be sustained in the face of the Respondents’ evidence that the impugned inspection, audit, and subsequent regulatory interventions were undertaken pursuant to express statutory authority, were consultative in nature, and that the Petitioner was afforded reasonable opportunities to participate in the process, including being invited to record statements and respond to inquiries. Article 47(1) of the Constitution guarantees every person the right to administrative action that is “expeditious, efficient, lawful, reasonable and procedurally fair,” while Article 47(2) further entitles a person whose rights or fundamental freedoms are likely to be adversely affected to written reasons for the administrative action. HCCHRPET. NO. E013 OF 2025 JDT Page 25 | 39

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64. The constitutional standard therefore admits of a structured inquiry: whether the impugned action was (i) lawful, (ii) reasonable, and (iii) procedurally fair. These elements are not disjunctive aspirations but cumulative requirements, and failure must be demonstrated with specificity rather than asserted in general terms. In the present case, the Respondents have demonstrated that the actions complained of were anchored in statute, prompted by regulatory concerns arising from documented financial irregularities, and implemented through a consultative and investigative framework that involved multiple stakeholders. No material has been placed before the Court to show arbitrariness, irrationality, or procedural exclusion of the Petitioner. 65. The jurisprudence in Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR is instructive in this regard. The Court of Appeal emphasized that fair administrative action is not a mechanical or ritualistic formula, rather, it is a flexible, context-sensitive requirement satisfied so long as the affected person is accorded a reasonable opportunity to be heard appropriate to the circumstances of the case. Put differently, procedural fairness does not demand a full adversarial hearing at every investigative or regulatory stage, but rather fairness that is proportionate to the nature of the decision being made. 66. Viewed against this standard, the Respondents’ position effectively dislodges any inference of procedural impropriety. The Petitioner’s participation in the investigative process, coupled with the statutory basis of the actions complained of, underscores compliance with Article 47 rather than its breach. HCCHRPET. NO. E013 OF 2025 JDT Page 26 | 39

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In the absence of demonstrated unlawfulness, irrationality, or denial of a reasonable opportunity to be heard, the allegation of violation of Article 47 remains unsubstantiated and cannot be sustained. 67. As regards Article 50 of the Constitution, the Respondents’ position is that the Petitioner’s invocation of the right to a fair hearing is, at this stage, misconceived in both law and context. Article 50(1) guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before an independent and impartial court or tribunal, while Article 50(2) entrenches the specific fair trial rights of an accused person, including the presumption of innocence, the right to be informed of the charge with sufficient detail, to adduce and challenge evidence, and to have adequate time and facilities to prepare a defence. Properly construed, therefore, Article 50 is not a pre-emptive shield against prosecution; rather, it is a guarantee that becomes fully operative within the trial process itself. 68. In the present case, it is not disputed that criminal proceedings have already been instituted before a court of competent jurisdiction in Milimani Criminal Case No. E083 of 2025, where the Petitioner has taken plea and is actively before the trial court. At that point, the constitutional architecture is clear. The trial court assumes exclusive jurisdiction over evidentiary evaluation, admissibility, sufficiency, and the ultimate determination of guilt or innocence. It would therefore amount to a fundamental misapprehension of the criminal process for this Court to be invited to interrogate the merits of HCCHRPET. NO. E013 OF 2025 JDT Page 27 | 39

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the evidence or to pre-empt the outcome of proceedings that are already properly seized of judicial determination. 69. The applicable legal principle is well settled, once a prosecution has been instituted on the basis of reasonable and probable cause, the evidentiary threshold is not one for constitutional adjudication but for trial. In Republic v Commissioner of Police & Director of Public Prosecutions Ex parte Michael Monari & Another, the Court emphasised that it is not the function of the constitutional court to evaluate the sufficiency or veracity of evidence in ongoing criminal proceedings, as that mandate squarely lies with the trial court. The existence of reasonable suspicion is sufficient to justify the commencement and continuation of prosecution; anything more would amount to premature adjudication and judicial overreach into the domain of the trial process. 70. To grant the orders sought in these circumstances would therefore amount to a judicial inversion of the criminal process where this Court is effectively invited to sit as a parallel appellate forum over ongoing proceedings. That approach would offend the doctrine of institutional competence and the constitutional separation of functions between investigative agencies, prosecutorial authorities, and the judiciary seized of trial jurisdiction. Courts have consistently cautioned against such interference, recognising that the criminal justice system is designed to cure evidential disputes within the trial process itself, not at the interlocutory constitutional stage. 71. Further, the Respondents correctly invoke Article 157 of the Constitution, which vests the Director of Public Prosecutions with independent authority HCCHRPET. NO. E013 OF 2025 JDT Page 28 | 39

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to institute, undertake, and continue criminal proceedings without direction or control from any person or authority. In Pauline Raget Adhiambo Agot v Director of Public Prosecutions & 5 Others, the Court reaffirmed that this constitutional independence may only be interfered with in the clearest of cases where abuse of process, bad faith, or illegality is demonstrated. The threshold is deliberately high so as to preserve the integrity of prosecutorial discretion, which is itself a cornerstone of the criminal justice system. 72. In the present matter, no such exceptional circumstances have been established. There is no evidential foundation demonstrating malice, bad faith, or ulterior motive on the part of the prosecuting authorities. The Petitioner’s case rests largely on conjecture and dissatisfaction with ongoing proceedings, which, without more, cannot displace the constitutional presumption that public authorities act lawfully and within mandate. The Court is therefore bound by the well-established principle of judicial restraint: it must not lightly interfere with constitutionally sanctioned criminal processes unless a clear and compelling case of abuse is made out. 73. Ultimately, Article 50 cannot be deployed as a basis for arresting or stalling a validly instituted prosecution. Its protections are not extinguished but are instead activated within the trial process itself. Any attempt to invoke it as a pre-emptive constitutional bar to prosecution not only misconceives its purpose but also risks undermining the integrity of the criminal justice system and the constitutional roles assigned to investigative, prosecutorial, and judicial actors respectively. HCCHRPET. NO. E013 OF 2025 JDT Page 29 | 39

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74. In the result, and upon a careful appraisal of both the Petitioner’s averments and the Respondents’ detailed and largely uncontroverted evidential response, this Court is not satisfied that any constitutional infringement has been established to the requisite legal standard. The Petitioner’s case is largely constructed on broad, generalized, and in some respects speculative assertions, whereas the Respondents have, in contrast, placed before the Court a coherent statutory and constitutional framework justifying each of the impugned actions, including the investigative steps, regulatory interventions, and prosecutorial decisions complained of. 75. It is a foundational principle of constitutional adjudication that he who alleges must prove affirmanti non neganti incumbit probatio. In the realm of constitutional litigation, this burden is not discharged by mere assertion of rights or invocation of constitutional provisions in abstracto, rather, it requires cogent, credible, and particularised evidence demonstrating the manner, extent, and causative link of the alleged violation. The evidential burden, once properly shifted by a prima facie showing, must be met with more than conjecture or apprehension. In the present case, that threshold has not been attained. 76. The Respondents have, on the other hand, demonstrated that the actions complained of were undertaken pursuant to express statutory authority, grounded on regulatory findings, investigative processes, and prosecutorial independence constitutionally vested under Article 157. No material has been placed before this Court to displace the presumption of regularity that attaches to the conduct of public authorities acting within their lawful HCCHRPET. NO. E013 OF 2025 JDT Page 30 | 39

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mandate. The evidential gap between allegation and proof thus remains unbridged. 77. Accordingly, and applying the correct constitutional standard, the Court finds that no violation of Articles 28, 29, 35, 47, or 50 has been established either on the facts or in law. Whether the refusal to provide the forensic audit report violated Article 35(1)(b) of the Constitution 78. The alleged violation of Article 35 of the Constitution must be evaluated within both its constitutional framework and the statutory regime established under the Access to Information Act, 2016. Article 35 guarantees every citizen the right of access to information held by the State and information held by another person required for the exercise or protection of any right or fundamental freedom. This right is given effect by the Access to Information Act, which prescribes the procedure for making requests, the obligations imposed on public entities, and the limited circumstances under which access may lawfully be declined. 79. It is, however, well settled that the right of access to information is not absolute. Section 6 of the Access to Information Act permits limitation of disclosure where the information sought relates to ongoing investigations, national security, or where disclosure would otherwise prejudice public interest. The constitutional design therefore contemplates a careful balancing HCCHRPET. NO. E013 OF 2025 JDT Page 31 | 39

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of rights rather than an unqualified entitlement to disclosure in all circumstances. 80. This position has been affirmed in jurisprudence. In Katiba Institute v Presidents Delivery Unit & 3 Others, the High Court held that while Article 35 is a justiciable right, its enforcement must be within the framework of the Access to Information Act, and that disclosure may be lawfully limited in accordance with the statutory exceptions. Similarly, in Trusted Society of Human Rights Alliance v Attorney General & 2 Others, the Court emphasised that access to information is a cornerstone of transparency, but must be sought and enforced through proper legal processes and is subject to lawful restrictions where justified. 81. In the present case, the Petitioner’s claim rests primarily on the assertion that a forensic audit report was not furnished to him. However, no sufficient evidential material has been placed before this Court demonstrating that a properly constituted request under the Access to Information Act was made, received, and unlawfully declined. The Court of Appeal in Mumo Matemu supra cautioned that constitutional claims must be anchored on pleaded and proved facts, not generalized assertions. 82. The evidentiary burden in constitutional litigation is therefore not discharged by a mere allegation of non-disclosure. There must be proof of a valid request, a corresponding duty to disclose, and an unjustified refusal. Absent this evidentiary chain, the Court cannot infer a violation. HCCHRPET. NO. E013 OF 2025 JDT Page 32 | 39

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83. That said, it must be underscored that the Petitioner is not without remedy. The statutory framework clearly provides a structured mechanism for accessing information. Should the Petitioner properly invoke the procedure under the Access to Information Act by lodging a compliant request, the Respondents are under a constitutional and statutory obligation to respond timeously, either by furnishing the information sought or issuing a lawful refusal grounded in the permissible exemptions under Section 6 of the Act. 84. In the premises, and guided by the applicable constitutional text and binding jurisprudence, the Court finds that the alleged violation of Article 35 has not been established on the evidence presented. Whether the Court should interfere with the criminal proceedings and grant the reliefs sought 85. The Petitioner’s invitation to this Court to halt or otherwise interfere with ongoing criminal proceedings must be evaluated within the well-settled constitutional framework governing prosecutorial independence and the doctrine of separation of functions within the criminal justice system. Article 157 of the Constitution vests the Director of Public Prosecutions with the exclusive mandate to institute, undertake, and continue criminal proceedings, without direction or control from any person or authority, save for the express constitutional and legal constraints. Once criminal proceedings are properly instituted before a court of competent jurisdiction, that court is duly seised of the matter and is constitutionally empowered to adjudicate upon all questions relating to evidence, admissibility, and ultimately guilt or innocence. HCCHRPET. NO. E013 OF 2025 JDT Page 33 | 39

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86. The Supreme Court has authoritatively pronounced itself on the circumscribed circumstances under which courts may intervene in ongoing proceedings. In Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others, the Court underscored the imperative of judicial restraint and respect for institutional competence, holding that courts ought not to interfere with constitutionally mandated processes unless it is demonstrated that there is clear violation of the Constitution, manifest abuse of process, or that the impugned proceedings are being deployed for an ulterior or collateral purpose. The Supreme Court cautioned that judicial review of ongoing processes must not be employed as a mechanism for preempting or stifling lawful statutory or constitutional mandates. 87. The jurisprudential foundation of this restraint lies in the constitutional design that allocates distinct roles to investigative agencies, prosecutorial authorities, and the judiciary. The criminal trial process is deliberately structured to test the veracity, sufficiency, and admissibility of evidence through adversarial proceedings before the trial court. It is not within the remit of this Court, in its constitutional jurisdiction, to evaluate the merits of evidence or to determine the propriety of a prosecution that is already properly before a competent trial court. 88. Our Courts have consistently reinforced this position. In Republic v Commissioner of Police & Director of Public Prosecutions Ex parte Michael Monari & Another, it was held that the police are under a constitutional duty to investigate complaints, and that the threshold for prosecution is that of HCCHRPET. NO. E013 OF 2025 JDT Page 34 | 39

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reasonable suspicion, with evidentiary sufficiency being a matter reserved for trial. Likewise, in Pauline Raget Adhiambo Agot v Director of Public Prosecutions & 5 Others, the Court affirmed that prosecutorial discretion is constitutionally insulated and may only be interfered with in clear cases of illegality, bad faith, or abuse of process. 89. From these authorities, it is evident that intervention by a constitutional court in ongoing criminal proceedings is permissible only within narrowly defined exceptions. These include circumstances where it is demonstrated that the prosecution is actuated by malice or ulterior motive, is manifestly oppressive or vexatious, is conducted in clear violation of the Constitution or statute, or is so fundamentally flawed as to render a fair trial impossible. These exceptions are not routine, they are exceptional and must be strictly proved. 90. In the present case, none of these exceptional circumstances have been established. The record discloses that the impugned proceedings were preceded by a formal complaint, followed by structured investigations culminating in prosecutorial review and approval by the Office of the Director of Public Prosecutions. The Petitioner has since been arraigned before a court of competent jurisdiction, taken plea, and is presently enjoying the full protection of bail pending trial. No credible evidence has been tendered to demonstrate malice, bad faith, collateral purpose, or any abuse of process on the part of the Respondents. HCCHRPET. NO. E013 OF 2025 JDT Page 35 | 39

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91. The assertion that the allegations are “untested” misconceives the nature of criminal adjudication. The testing of evidence is not a matter for constitutional pre-emption, it is the very function of the trial court. To accede to the Petitioner’s invitation would be to impermissibly transgress the boundaries of this Court’s constitutional jurisdiction and to usurp the role of the trial court, contrary to the doctrine of separation of powers and institutional competence. 92. The reliefs sought, particularly those seeking to prohibit prosecution on the basis of forensic audit material, would inevitably require this Court to interrogate evidentiary sufficiency and probative value matters that properly fall within the exclusive province of the trial court. Such an approach has consistently been deprecated in our jurisprudence as it risks converting constitutional jurisdiction into a parallel appellate forum over ongoing criminal proceedings. 93. In the premises, this Court is not persuaded that this matter falls within the narrow class of cases warranting judicial intervention in ongoing criminal proceedings. On the contrary, the Petition bears all the hallmarks of an attempt to obstruct and pre-empt lawful investigative and prosecutorial processes already lawfully set in motion. To grant the orders sought would not only offend the doctrine of judicial restraint but would also impermissibly undermine the constitutional architecture governing the administration of criminal justice in this Republic. CONCLUSION HCCHRPET. NO. E013 OF 2025 JDT Page 36 | 39

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94. For the foregoing reasons, this Court is not persuaded that the Petitioner has established, to the requisite legal threshold, any violation or threatened violation of his constitutional rights. The Petition, when properly interrogated, is largely anchored on generalized assertions, subjective apprehensions, and unparticularised grievances, which are insufficient in law to found constitutional relief. In stark contrast, the Respondents have placed before this Court a coherent, consistent, and legally tenable account demonstrating that the impugned actions were undertaken pursuant to express statutory mandate, in good faith, and in furtherance of legitimate public interest objectives, including regulatory oversight and the administration of criminal justice. 95. The evidential burden imposed upon a constitutional petitioner, being neither illusory nor symbolic, was not discharged in this case. The foundational principle that he who alleges must prove actori incumbit onus probandi remains unfulfilled. No cogent material has been presented to displace the presumption of regularity that attaches to acts undertaken by public authorities acting within constitutional and statutory authority. The Court is therefore left with a decisive evidential deficit between allegation and proof, which cannot be bridged by conjecture, inference, or judicial sympathy. 96. With respect to Article 35, the Court finds no demonstrable breach, the Petitioner having failed to establish a valid and properly invoked request under the statutory regime or an unlawful refusal thereof, while also HCCHRPET. NO. E013 OF 2025 JDT Page 37 | 39

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remaining at liberty to pursue the structured remedies provided under the Access to Information Act. Equally, the claims premised on Articles 28, 29, 47, and 50 are unsubstantiated, speculative, and unsupported by probative evidence capable of sustaining constitutional liability. The criminal proceedings complained of are already properly before a court of competent jurisdiction, where the Petitioner is guaranteed the full panoply of fair trial rights, and this Court cannot, under the guise of constitutional jurisdiction, usurp the mandate of the trial court or interfere with constitutionally sanctioned prosecutorial discretion absent proof of illegality, malice, or abuse of process. 97. Ultimately, this Court is constrained to find that the Petition does not meet the constitutional threshold for the grant of the reliefs sought. It is an impermissible invitation to this Court to convert its constitutional jurisdiction into an appellate forum over ongoing investigative and criminal processes, a course of action that would offend well-established principles of judicial restraint, institutional comity, and the separation of functions within the criminal justice system. 98. Accordingly, the Petition is found to be without merit and court makes the following orders: 1. The Petition dated 14th January, 2025 and Notice of Motion dated 14th January 2025 are hereby dismissed. 2. Any interim conservatory orders in force, if any, are hereby discharged. 3. Each party shall bear its own consequences as to costs HCCHRPET. NO. E013 OF 2025 JDT Page 38 | 39

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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 – Mr. Apollo Mboya Counsel for the 1st, 2nd, and 5th Respondents – Ms. Ntabo Counsel for the 3rd and 6th Respondents – Ms. Khadija Taib h/b Mr. Weche Counsel for the 4th Respondent – Mr. Tanui Court Assistant - Mr. Sanja HCCHRPET. NO. E013 OF 2025 JDT Page 39 | 39

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