Joseph Kairu Wambui v The Honourable Attorney General & 2 others

IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013. IN THE MATTER OF: THE LAW OF CONTRACT ACT, CAP 23 LAWS OF KENYA. IN THE MATTER OF: THE NATIONAL POLICE SERVICE ACT, CAP 84 LAWS OF KENYA. BETWEEN JOSEPH KAIRU WAMBUI ................................................................... PETITIONER AND THE HONOURABLE ATTORNEY GENERAL ......................... 1ST RESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS .............................. 2ND RESPONDENT THE INSPECTOR GENERAL OF POLICE ............................... 3RD RESPONDENT AND KAI & KARO LIMITED ......................................................... INTERESTED PARTY JUDGMENT Introduction 1. What is before this court is the Amended Petition dated 20th March 2025 before anchored upon Articles 22, 23, and 165(3)(d)(ii) of the Constitution, through which the Petitioner, Joseph Kairu Wambui, seeks constitutional redress for alleged violations of his fundamental rights and freedoms. The grievance arises from a series of arrests, investigations, and ensuing criminal prosecutions instituted against him in relation to motor vehicle importation transactions. 2. At the heart of the dispute lies the Petitioner’s contention that the Respondents have impermissibly deployed the criminal justice machinery to advance and enforce what are, in essence, civil and commercial claims involving the Interested Party and third parties. It is asserted that the repeated arrests, detentions, and multiplicity of criminal charges levied against the Petitioner constitute an abuse of police and prosecutorial authority, and amount to a violation of his constitutional rights, including the right to dignity, liberty, security of the person, fair administrative action, and the guarantees attendant to a fair trial. 3. The Respondents, for their part, resist the Petition and maintain that the impugned actions were undertaken within the confines of the law. They aver that the proceedings were precipitated by credible complaints disclosing the offence of obtaining money by false pretences, which were duly investigated by the 1st Respondent in the exercise of its statutory mandate, and thereafter independently reviewed by the 2nd Respondent pursuant to its prosecutorial discretion under Article 157 of the Constitution. It is their position that the investigations yielded sufficient evidentiary basis to warrant the institution and continuation of criminal proceedings, and that the present Petition constitutes an improper attempt to stifle and obstruct the due process of the criminal law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 2

page 2 of 9

The Petitioner’s Case 4. This cause emanates from a constitutional petition instituted by the Petitioner, Joseph Kairu Wambui, initially by way of a Petition dated 9th December 2024 and subsequently refined through an Amended Petition dated 20th March 2025. 5. The Petitioner, a director engaged in the business of motor vehicle importation, impugns a succession of arrests, detentions, and criminal prosecutions mounted against him in connection with disputes arising from commercial transactions between the Interested Party and various clients. He avers that he was first apprehended on 17th November 2024 at Gigiri Police Station on allegations of obtaining money by false pretences, detained overnight, and thereafter released on police bail without being formally charged. He deposes that he was subsequently re-arrested on 2nd December 2024 at Kasarani Police Station in relation to a separate transaction, detained, and released on cash bail the following day. A further arrest is said to have occurred on 3rd December 2024 at Capitol Hill Police Station arising from a similar complaint. 6. It is the Petitioner’s case that, notwithstanding the manifestly contractual substratum of the impugned transactions, the Respondents proceeded to institute a multiplicity of criminal proceedings, namely Milimani Criminal Case Nos. E010 of 2025, E011 of 2025, E049 of 2025, and Kibera Criminal Case Nos. E293 of 2025 and E295 of 2025, all predicated upon the offence of obtaining money by false pretences. He contends that the criminal process has thereby been improperly enlisted as a mechanism for the enforcement of civil obligations arising from commercial agreements. 7. The gravamen of the Petition is that the Respondents’ conduct constitutes a patent abuse of the criminal justice system and infringes his constitutional rights, including the rights to dignity, liberty, security of the person, and fair administrative action. He further impugns the legality of his arrests and detentions, and asserts that prosecutorial powers have been invoked in a manner inconsistent with constitutional safeguards and established legal principle. 8. In aid of his case, the Petitioner places reliance on, inter alia, Commissioner of Police & Director of Criminal Investigation Department v Kenya Commercial Bank Limited & 4 others [2013] KECA 182 (KLR), Andrew McGhie v Catherine Wembridge Baumgarten & 5 others [2016] KEHC 2175 (KLR), Jirongo v Soy Developers Ltd & 9 others [2021] KESC 32 (KLR), and Nedermar Technology BV Limited v Kenya Anti-Corruption Commission & another [2008] KEHC 3920 (KLR), for the settled proposition that criminal proceedings ought not to be deployed as instruments for the enforcement of civil obligations or the resolution of contractual disputes. He further relies on Mukunga v Republic [2024] KEHC 5506 (KLR) and Reginetta M Lyadi v Republic [2014] KEHC 911 (KLR) to underscore the principle that a mere breach of contract, absent proof of fraudulent intent, does not constitute the offence of obtaining by false pretences. Additionally, reliance is placed on RP Kapur v State of Punjab AIR 1960 SC 866, as adopted in Jirongo v Soy Developers Ltd & 9 others, on the circumstances under which criminal proceedings may be quashed for abuse of process. 9. The Petitioner further anchors his case on his Further Affidavit sworn in rebuttal to the Replying Affidavit of No. 87133 Corporal Wako Jarso, wherein he categorically denies the allegations of fraud and avers that no cogent material has been placed before this Court to demonstrate that he made any false representation or acted with fraudulent intent. He maintains that the allegations levelled against him are unsubstantiated and rest on bare assertions. 10. He depones, further, that certain complainants were duly supplied with motor vehicles, including a Honda Vezel Hybrid delivered to one Jeff Kyule and a Volkswagen Tiguan delivered to one Dan Odhiambo Odundo. He avers that, upon such deliveries, the attendant criminal complaints were https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 3

page 3 of 9

withdrawn, thereby negating any inference of criminality and reinforcing the existence of bona fide commercial transactions between the parties. 11. The Petitioner maintains that he is a legitimate businessman engaged in motor vehicle importation, an enterprise inherently attended by logistical delays, supply chain constraints, and commercial risk. He contends that the Respondents have failed to establish the essential elements of fraud, including false representation, intent to deceive, and resultant unlawful gain, and have instead improperly transmuted civil disputes into criminal prosecutions. 12. In the premises, the Petitioner urges this Court grant him the following reliefs; a. A declaration be and is hereby issued that the 3rd Respondent is liable for the violations of rights and fundamental freedoms suffered by the Petitioner in his arbitrary arrests. b. A declaration be and is hereby issued that the deprivation of the Petitioner’s liberty on the account of complaints arising from commercial contracts is a violation of the Petitioner’s right not to be deprived his freedom arbitrarily. c. A declaration be and is hereby issued that the 2nd Respondent, in charging the Petitioner over commercial disputes, is in abuse of the powers of the Office of the Director of Public Prosecutions and in violation of the rights and fundamental freedoms of the Petitioner. d. An Order of Certiorari be and is hereby issued quashing the decision of the 2nd Respondent to charge the Petitioner in Milimani Magistrate Court MCCR/E010/2025; MCCR/E011/2025 and MCCR/E049/2025. e. An Order be and is hereby issued directing the Respondent to compensate the Petitioner for the violation of his rights. f. Costs of the Petition. g. Any other or further order the court may deem fit and just to grant. The Respondents’ Case 13. The Respondents oppose the Amended Petition through Grounds of Opposition dated 25th April 2025, written submissions, and a Replying Affidavit sworn by No. 87133 Corporal Wako Jarso, a police officer attached to the Directorate of Criminal Investigations, Parklands Police Station. 14. At the threshold, the Respondents take the position that the Petition is fatally defective for want of the requisite precision in constitutional pleadings, as enunciated in Anarita Karimi Njeru v Republic (1979) KLR 154 and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance Civil Appeal No. 290 of 2012. They contend that the Petitioner has merely invoked constitutional provisions in a broad and generalized fashion, without setting out with reasonable particularity the manner in which each of the alleged rights has been infringed. 15. The 1st and 3rd Respondents further assert that the impugned actions were undertaken lawfully, procedurally, and within the ambit of their statutory mandate. It is their contention that the Petition offends the doctrine of constitutional avoidance, constitutes an abuse of the court process, and improperly invites this Court to usurp the jurisdiction of the trial court by determining issues that properly fall for ventilation within the criminal proceedings. In this regard, they also place reliance on statutory provisions, including Section 1002 of the Companies Act, as illustrative of potential criminal culpability arising from fraudulent conduct within commercial engagements. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 4

page 4 of 9

16. The 2nd Respondent, on its part, anchors its opposition upon Article 157 of the Constitution and Section 6 of the Office of the Director of Public Prosecutions Act, 2013, asserting the constitutional independence of the prosecutorial function. It is contended that the decision to institute criminal proceedings is guided by the twin considerations of evidential sufficiency and public interest, and that judicial intervention is only warranted upon demonstration of illegality, irrationality, or procedural impropriety. In support of this proposition, reliance is placed on, inter alia, R v Monopolies and Mergers Commission Ex Parte Argyll Group Plc [1986] 1 WLR 763, Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43, George Joshua Okungu & another v Chief Magistrate’s Court AntiCorruption Court at Nairobi & another [2014] eKLR, Douglas Maina Mwangi v Director of Public Prosecutions & another [2013] eKLR, and Michael Monari & another v Commissioner of Police & 3 others Misc Application No 68 of 2011. 17. The 2nd Respondent further posits that the Petition is premature, contending that, at the material time, investigations were ongoing and no demonstrable violation of constitutional rights particularly under Article 47 of the Constitution had crystallized. 18. In a unified evidentiary posture, the 2nd and 3rd Respondents rely on the Replying Affidavit of Corporal Wako Jarso, who depones that the investigations were precipitated by credible complaints alleging the offence of obtaining money by false pretences. It is averred that the investigations disclosed that the Petitioner received substantial sums from various complainants under agreements for the importation of motor vehicles which were not delivered, thereby disclosing offences under Sections 315 and 283(b) of the Penal Code. 19. The deponent further avers that the Petitioner was duly engaged in the course of investigations, recorded statements under caution, and was accorded procedural fairness throughout. Upon conclusion of the investigative process, the inquiry file was transmitted to the 2nd Respondent, who independently evaluated the evidentiary material and directed that criminal charges be preferred. The Petitioner was thereafter arraigned before a court of competent jurisdiction in accordance with due process. 20. The Respondents maintain that the mere existence of a civil dimension to a dispute does not ipso facto negate criminal liability, and they invoke Section 193A of the Criminal Procedure Code in support of the proposition that civil and criminal proceedings may properly run concurrently. They consequently contend that the Petitioner has failed to demonstrate any violation of his constitutional rights under Articles 27, 28, 29, 47, and 49 of the Constitution, and urge the Court to dismiss the Petition with costs. The Petitioner’s Rejoinder 21. In rejoinder to the Replying Affidavit sworn by No. 87133 Corporal Wako Jarso, the Petitioner categorically traverses and controverts the allegations of fraud levelled against him, contending that no cogent or probative material has been placed before this Court to establish the essential elements of false representation, deceit, or fraudulent intent. He maintains that the accusations are wholly unsubstantiated and rest on bare averments devoid of evidential foundation. 22. The Petitioner further avers that the subsequent conduct of the parties, including the delivery of motor vehicles to certain complainants and the consequent withdrawal of related criminal complaints, is demonstrative of the existence of bona fide commercial transactions as opposed to criminal enterprise. He re-asserts that he is a legitimate businessman engaged in the importation of motor vehicles, and that any disputes arising therefrom are inherently contractual in nature and thus amenable to resolution within the civil jurisdiction of the courts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 5

page 5 of 9

23. In the premises, the Petitioner reiterates that the Respondents have failed to establish the requisite ingredients of the offence of fraud, and have instead improperly invoked the coercive machinery of the criminal justice system in a matter that is, in substance, civil and commercial in character. He accordingly urges this Court to find that the institution and continued prosecution of the impugned criminal proceedings constitute an abuse of process and a violation of his constitutionally guaranteed rights, thereby warranting the Court’s intervention. Analysis And Determination 24. Having carefully considered the pleadings, affidavits, and rival submissions placed before this Court, the singular issue for determination is: i. whether the institution and continuation of the impugned criminal proceedings against the Petitioner, arising from transactions alleged to be commercial in nature, constitute an abuse of the criminal justice process and a violation of the Petitioner’s constitutional rights, thereby warranting intervention by this Court. 25. The Court has carefully considered the Amended Petition dated 20 March 2025, the rival affidavits, and the written and oral submissions placed before it. What emerges for determination is a constitutional challenge arising from a sequence of arrests, investigations, and subsequent criminal prosecutions instituted against the Petitioner in relation to motor vehicle importation transactions undertaken through the Interested Party. The Petitioner’s central complaint is that the Respondents have improperly invoked the criminal justice process to enforce what are, in substance, civil and commercial obligations, thereby violating his constitutional rights under Articles 27, 28, 29, 47 and 49 of the Constitution. 26. It is not in dispute that the Petitioner was arrested on multiple occasions, released on police bail, and later charged before courts of competent jurisdiction with offences relating to obtaining money by false pretences and stealing by agent. 27. It is further not disputed that the 1st Respondent conducted investigations pursuant to its statutory mandate under the National Police Service Act, 2011, and that the 2nd Respondent independently evaluated the investigation file before preferring charges in exercise of its constitutional mandate under Article 157 of the Constitution. The gravamen of the Petition is therefore not procedural irregularity in the narrow sense, but rather the constitutional propriety of subjecting the Petitioner to criminal prosecution in circumstances where he contends the underlying dispute is purely civil in nature. 28. At the outset, it is necessary to restate the settled constitutional position that the jurisdiction of this Court under Articles 22, 23 and 165(3)(d)(ii) is supervisory and not appellate over criminal proceedings. It is not the function of this Court to determine the guilt or innocence of an accused person, nor to interrogate the sufficiency of evidence in the manner reserved for a trial court. The constitutional court is only concerned with whether the investigative and prosecutorial process has been exercised lawfully, rationally, in good faith, and within constitutional bounds, or whether it amounts to an abuse of process warranting intervention. 29. The burden of proof in constitutional litigation lies squarely upon the Petitioner. He must demonstrate, with reasonable precision and evidential foundation, the manner in which the alleged constitutional violations occurred. This is not merely a procedural expectation but a substantive evidential requirement grounded in Section 107 of the Evidence Act and the jurisprudence in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 6

page 6 of 9

30. Bare allegations of constitutional violation, without cogent demonstration of how the Respondents’ conduct translates into infringement, cannot suffice to warrant the drastic remedies sought. 31. A key complaint advanced by the Petitioner is that he was not presented before Court within twentyfour hours of arrest, contrary to Article 49(1)(f) of the Constitution. However, beyond assertion, no evidential material has been placed before this Court demonstrating a proven or systemic breach of the constitutional timelines. Even if such delay were assumed, constitutional jurisprudence is clear that not every procedural lapse in arrest or detention automatically invalidates subsequent criminal proceedings. The appropriate remedy, where prejudice is demonstrated, may lie in damages or appropriate constitutional relief, but not in termination of criminal proceedings properly founded on investigative material. Importantly, had such a violation been proved, this Court would not have hesitated to issue appropriate censure. On the material before it, however, no such breach has been established. 32. The Court is further satisfied that the Petitioner was accorded access to legal representation, granted police bail, and subsequently arraigned before Court in accordance with due process. There is no evidential basis demonstrating denial of counsel, incommunicado detention, or treatment that would rise to the level of constitutional violation under Articles 29 or 49 of the Constitution. 33. The factual matrix discloses a structured investigative process culminating in prosecutorial decisionmaking, rather than arbitrary or extrajudicial conduct. 34. The Court is alive to the principle that State power, including investigative and prosecutorial authority, must always be exercised in good faith, for proper purpose, and in accordance with constitutional values. It is equally settled that the criminal justice system must never be deployed as an instrument for the enforcement of civil obligations or as a mechanism for the resolution of purely commercial disputes. In Commissioner of Police & Director of Criminal Investigation Department v Kenya Commercial Bank Limited & 4 others, the Court of Appeal emphatically cautioned against the use of criminal proceedings as a pawn in civil disputes, underscoring that such conduct would amount to an abuse of process and a distortion of the ends of justice. This Court fully associates itself with that principle as a fundamental safeguard against misuse of the criminal justice system. 35. However, that principle does not operate as an absolute bar to criminal prosecution merely because a dispute arises from a contractual or commercial relationship. It is equally trite that the existence of a civil remedy does not preclude criminal liability where the facts disclose an offence. Section 193A of the Criminal Procedure Code expressly permits concurrent civil and criminal proceedings arising from the same facts. 36. The Supreme Court in Jirongo v Soy Developers Ltd & 9 others reaffirmed that intervention by the constitutional court is only justified where there is clear evidence of illegality, irrationality, procedural impropriety, or abuse of process within the meaning of Article 157(11) of the Constitution. The threshold is therefore not whether a civil claim exists, but whether the criminal process is being used for an improper purpose or without a factual foundation capable of sustaining a charge. 37. Applying that standard to the present case, what emerges is that the 1st Respondent received multiple complaints alleging non-delivery of motor vehicles after receipt of substantial sums of money, conducted investigations, recorded statements from all relevant parties, and established a factual basis upon which the 2nd Respondent exercised independent prosecutorial discretion. Whether the Petitioner made false representations, whether there was capacity to perform the contractual obligations, and whether there existed fraudulent intent are all matters that go to the merits of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 7

page 7 of 9

criminal charges and fall squarely within the jurisdiction of the trial court. This Court would be acting outside its constitutional remit were it to evaluate or pre-empt those determinations. 38. It is also important to emphasise that the Petitioner bears the burden of demonstrating that the Respondents acted in bad faith, with ulterior motive, or in abuse of their powers. No such evidential foundation has been laid. The existence of multiple complainants, recorded statements, documentary transactions, and independent prosecutorial review all point, prima facie, to a legitimate investigative and prosecutorial process rather than a collateral use of the criminal justice system to enforce civil obligations. 39. The Court therefore finds no basis to conclude that the Respondents acted unlawfully, irrationally, or in violation of constitutional safeguards. The invocation of criminal process is supported by investigative material that discloses reasonable suspicion of commission of offences, and this Court is not persuaded that the high threshold for intervention under Article 157(11) has been met. The apprehension that the dispute is civil in nature is a matter that may be raised before the trial court, which is constitutionally mandated to evaluate evidence and make a determination on guilt or innocence after a full hearing. 40. In the result, and bearing in mind the doctrine of judicial restraint, this Court is not persuaded that it should interfere with the ongoing criminal proceedings. The Petitioner retains the full protection of the fair trial guarantees under Article 50 of the Constitution, including the presumption of innocence and the right to challenge the prosecution’s case at trial. Should he be aggrieved by the outcome, the appellate structure of the criminal justice system remains available. 41. In light of the Court’s findings that the Petitioner has failed to establish any constitutional violation attributable to the Respondents, and further that the investigative and prosecutorial actions complained of were undertaken within the lawful mandates of the 1st and 2nd Respondents, with no evidence of arbitrariness, bad faith, procedural impropriety, or abuse of process, the Court finds that the Amended Petition is devoid of merit. 42. It follows then that the outcome of this Petition must be THAT: a. The prayers for declarations that the 3rd Respondent is liable for violations of the Petitioner’s rights and fundamental freedoms arising from alleged arbitrary arrests are hereby declined and dismissed; b. The prayer for a declaration that the deprivation of the Petitioner’s liberty arising from complaints connected to commercial transactions amounted to a violation of his constitutional right not to be arbitrarily deprived of freedom is hereby declined and dismissed; c. The prayer for a declaration that the 2nd Respondent acted in abuse of its prosecutorial mandate and in violation of the Petitioner’s constitutional rights in instituting criminal proceedings against him is hereby declined and dismissed; d. The prayer for an Order of Certiorari quashing the decision of the 2nd Respondent to charge the Petitioner in Milimani Magistrate Court Criminal Cases Nos. MCCR/E010/2025, MCCR/ E011/2025, and MCCR/E049/2025 is hereby declined and dismissed; e. The prayer for compensation for alleged violation of constitutional rights is hereby declined and dismissed for the reason that no violation having been established to the required constitutional threshold.; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 8

page 8 of 9

f. 43. It is fit, proper, just that in the circumstances of the case that each party should bear its own costs. For the foregoing reasons, the Amended Petition dated 20th March 2025 is found to be without merit and is dismissed in its entirety. Each party to bear own costs. 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. Cliffton Ouko Counsel for the 1st Respondent – Ms. Khadija Taib h/b Mr. Weche Counsel for the 2nd and 3rd Respondents – Ms. Ntabo Counsel for the Interested Party – No Appearance Court Assistant – Mr. Sanja https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7049/eng@2026-04-29 9

page 9 of 9