Constitutional and Human Rights Division v Director of Public Prosecutions & 2 others

GHALIB ALWIY ……………………………………………7TH INTERESTED PARTY AMINA ATHMAN …………………………………………..8TH INTERESTED PARTY ABDULMAJID MAHMOUD …………………………………..9TH INTERESTED PARTY MOHAMED AHMED ……………………………………….10TH INTERESTED PARTY ANDREW MWANGI KIMANI ……………………………….11TH INTERESTED PARTY ALI HAIDAR ALI ………………………………………….12TH INTERESTED PARTY GILBERT K.N. KITUR ……………………………………..13TH INTERESTED PARTY MOHAMED QAIS ABUBAKAR ……………………………..14TH INTERESTED PARTY ABDULREHMAN ALI ABDULREHMAN …………………….15TH INTERESTED PARTY JUDGMENT 1. The Petition before the Court is dated 13th November 2024. It was filed by Mr Alex Githinji Njage, an Advocate of the High Court of Kenya. The Petition invokes Articles 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 49 and 50 of the Constitution of Kenya, 2010, read together with the Fair Administrative Action Act, 2015. 2. The Petitioner’s position is that the 1st, 2nd and 3rd Respondents, acting at the instigation of private third Constitutional Petition No. E633 of 2024 – Judgment Page 2 of 29 Mutai, J

page 2 of 29

parties, subjected him to unlawful harassment, intimidation, summonses and threats of arrest and prosecution in respect of his professional services as an advocate for the 1st and 2nd Interested Parties in transactions concerning the purchase of parcels of land situated at Lamu/Manda Island, namely Lamu/Manda Island/270, 271, 272, 380 and 381, and Lamu/Block 11/116. 3. The Petitioner’s claim is that the unlawful harassment, intimidation, summonses and threats of arrest and prosecution constitute a misuse of state investigative and prosecutorial machinery, solely to pressure him into abandoning his clients and to tilt the outcome of the judgments on the said parcels Environment and Land Court declarations that the conduct unconstitutional, permanent at pending before Malindi. He complained injunctions and the seeks of is orders of prohibition restraining the Respondents from arresting, charging or otherwise interfering with him in relation to the named parcels, and costs. 4. The Petition is opposed. The 1st Respondent filed Grounds of Opposition dated 2nd December 2024 and a Replying Affidavit dated 2nd March 2026. The 2nd and 3rd Respondents filed a Replying Affidavit dated 21st July 2025, deponed to by Corporal Andrew Omuriai, CPL No. 81769; the 5th Interested Constitutional Petition No. E633 of 2024 – Judgment Page 3 of 29 Mutai, J

page 3 of 29

Party filed a Replying Affidavit dated 23rd December 2024; the 7th Interested Party filed a Replying Affidavit dated 15 th January 2025. The 8th to 15th Interested Parties filed an Answer to the Petition dated 28th November 2025. 5. The parties filed submissions in support of their respective positions. The Petitioner filed submissions dated 30 th May 2025 and supplementary submissions dated 10 th November 2025. The 1st Respondent filed submissions dated 7th October 2025; the 2nd and 3rd Respondents filed submissions dated 25th November 2025; the 5th and 6th Interested Parties filed submissions dated 10th November 2025; the 7th Interested Party filed submissions dated 18th November 2025; and the 8th to 15th Interested Parties filed submissions dated 1 st December 2025. Background Facts 6. The Petitioner acted as an advocate for the 1st and 2nd Interested Parties, Goodison Nine Limited and Goodson FiftyThree Limited, in transactions concerning the purchase of parcels of land at Lamu/Manda Island, involving properties number Lamu/Manda Island/270, 271, 272, 380 and 381. Constitutional Petition No. E633 of 2024 – Judgment Page 4 of 29 Mutai, J

page 4 of 29

7. All these parcels are the subject of various ongoing proceedings before the Environment and Land Court in Malindi namely, ELC No. 72 of 2022; Ali Swaleh Kitamis v Fatuma Mahmoud, ELC No. 29 of 2022; Fara Haji v Attorney General & Others, ELC Petition No. 10 of 2023; Ali Haidar Ali & 3 Others v Farhiya Sheikh Mohamed & Others, and ELC Petition No. 20 of 2024; Goodison Nine Limited v Amina Athman & 5 Others. 8. The Petitioner avers in paragraph 31 of the Affidavit in support of his Petition that in May 2023 the Directorate of Criminal Investigations, Lamu, sought to prefer forgery charges against the directors of the 1st and 2nd Interested Parties, and that the 1st Respondent's office declined to sanction the charges for want of evidence. He further avers in paragraph 33 of his affidavit that the 2nd Respondent procured warrants of arrest through Miscellaneous Criminal Application No. E004 of 2023 without a charge sheet, without notice to him or the directors, and without reference to the 1st Respondent. 9. The Petitioner avers in paragraph 5 of his supporting affidavit that on 10th November 2024 officers of the Directorate of Criminal Investigations, Lamu, attempted to arrest him without following the due procedure in order to forestall the outcome of Malindi Environment and Land Constitutional Petition No. E633 of 2024 – Judgment Page 5 of 29 Mutai, J

page 5 of 29

Court; ELC PET.NO.10 of 2023; Ali Haidar Ali and 3 Others vs Farhiya Sheikh Mohamed and others. 10. The 5th and 6th Interested Parties depose that they are the registered owners of property number Lamu/Manda Island/272 and that the investigations were commenced upon formal complaints by affected landowners, including themselves, citing conflicting titles, missing records at the Ministry of Lands, suspicious patterns of subdivision, and inconsistencies in documentation concerning the same parcels. 11. The 7th Interested Party, Ghalib Alwiy, deposed to a distinct issue concerning a different parcel, Lamu Mashambani Block II/116, which he reported to Lamu Central Police Station (OB No. 11/17/22) and to the County Criminal Investigations Officer on 16th November 2022, following the alleged fraudulent sale of that parcel on the strength of a vesting letter subsequently disavowed by the Kadhi's Court, which purportedly issued it. The 8th to 15th Interested Parties likewise aver that they registered complaints about forged documentation underlying the disputed transactions. The Petitioner's Case 12. The Petitioner submits that the 1st Respondent’s prosecutorial powers under Article 157 of the Constitution of Constitutional Petition No. E633 of 2024 – Judgment Page 6 of 29 Mutai, J

page 6 of 29

Kenya, 2010 must be exercised independently, fairly and in strict compliance with the Law. He submits that the power is not absolute and is reviewable where it is shown that a decision to prosecute is tainted by a material error of fact, bad faith or illegality, or that it was reached unfairly. In support of the said contention, the Petitioner relies on the case of Githunguri v Republic [1986] KLR 1. 13. He submits that the procurement of warrants of arrest in Miscellaneous Criminal Application No. E004 of 2023, in the absence of a charge sheet and contrary to the 1st Respondent's own declination to sanction charges, was actuated by malice and bad faith, and was procedurally unfair for want of notice and an opportunity to be heard, contrary to Article 47(1) of the Constitution of Kenya, 2010 and the Fair Administrative Action Act. He relied on Republic v Kikuyu Division) & 9 Magistrates' Others Ex parte Court (Criminal Charles Mbugua Njuguna [2016] eKLR and Selvarajan v Race Relations Board [1976] All ER 12. 14. He further submits that the use of the criminal process to press him to abandon his clients' position in the pending Environment and Land Court disputes amounts to an abuse of process which this Court has both the power and the duty to restrain, relying on Kuria & 3 Others v Attorney General [2002] 2 KLR 69, Mohammed Gulam Hussein Constitutional Petition No. E633 of 2024 – Judgment Page 7 of 29 Mutai, J

page 7 of 29

Fazal Karmali & Another v Chief Magistrate's Court Nairobi & Another [2006] eKLR, and Joram Mwenda Guantai v The Chief Magistrate, Nairobi Civil Appeal No.228 of 2003 [2007] 2 EA 170. 15. The Petitioner seeks to also invoke protection due to advocates in the discharge of professional duties, relying on Akusala A. Boniface v OCS Langata Police Station & 4 Others [2018] eKLR and Esther Gathoni Mwangi v DPP & Others [2022] eKLR, and the advocate-client privilege provided under Section 134 of the Evidence Act and on the decision of Tom Ojienda & Associates Advocates v Ethics and Anti-Corruption Commission & 5 Others [2016] eKLR. 16. On reliefs sought, the Petitioner submits that Article 23(3) of the Constitution of Kenya, 2010 empowers this Court to grant effective, just and appropriate remedies. He relies on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR. The Respondents case 17. The 1st Respondent submits that the Petition discloses no cause of action against it, as the reliefs sought do not fall Constitutional Petition No. E633 of 2024 – Judgment Page 8 of 29 Mutai, J

page 8 of 29

within its constitutional mandate under Article 157 of the Constitution of Kenya, 2010. It is stated that there is no decision to charge the Petitioner and that the matter remains under investigation, and that the Petitioner has not placed any formal complaint before it to trigger any directive power under Article 157(4) of the Constitution of Kenya 2010. 18. The 1st Respondent relied on Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR for the proposition that the Petitioner has not pleaded, with the requisite precision, how the 1st Respondent specifically has infringed his rights. Further, it was submitted that constitutional relief cannot rest on unsupported hypotheses. In support of the said contention, reliance was made on the decision of the court in Leonard Otieno v Airtel Kenya Limited [2018] eKLR and William and Others v Spautz [1993] 2 LRC 659. It is the 1st Respondent’s submission that the Petition be dismissed with costs on grounds of being frivolous, vexatious and an abuse of process. 19. The 2nd and 3rd Respondents submit that the Petitioner has failed to demonstrate that his constitutional rights have been violated or are threatened with violation. They submit that they have a statutory obligation under Section 24(e), Constitutional Petition No. E633 of 2024 – Judgment Page 9 of 29 Mutai, J

page 9 of 29

read with Section 35, of the National Police Service Act, No. 11A of 2011, to investigate criminal complaints. They aver through the Replying Affidavit of Corporal Andrew Omuriai dated 21st July 2025, that they have at all times acted pursuant to bona fide complaints lodged by ordinary citizens, including the Interested Parties herein. 20. They submit that no evidence has been placed before the Court to show that they acted maliciously or abused their statutory powers. They relied on the decision of the Court in the case of Robert Waweru Maina & 4 Others v Director of Public Prosecutions & 3 Others [2022] eKLR, which made reference to the decision of court in Kipoki Oreu Tasur v Inspector General of Police & 5 Others [2014] eKLR for the proposition that the criminal justice system, being a critical pillar of society underpinned by the Constitution, must be allowed to function without interference from any quarter or restraint from the superior courts save in the clearest of circumstances where violation of fundamental rights is demonstrated. 21. They relied on the decision of the Court in Republic v Commissioner of Police & Another Ex parte Michael Monari & Another [2012] eKLR for the proposition that the police need only establish reasonable cause and investigations on their end before preferring charges on any Constitutional Petition No. E633 of 2024 – Judgment Page 10 of 29 Mutai, J

page 10 of 29

party. The merits and demerits of any intended charge are a matter that falls squarely before the trial court, which has the benefit of the facts and evidence presented by the Prosecution. 22. They further relied on the decision of the Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, which was referred to in the case of Robert Waweru Maina & 4 Others v Director of Public Prosecutions & 3 Others [2022] eKLR, and Sections 107(1), 107(2) and 109 of the Evidence Act. They state that a party invoking Article 22(1) of the Constitution of Kenya, 2010 must show the right said to be infringed and the basis of the grievance, consistent with the decision of the Court in Anarita Karimi Njeru v Republic [1979] KLR 154, and that the burden of proving the facts founding a claim rests on the party who asserts them. 23. It is the position of the 2 nd and 3rd Respondents that the Petitioner has merely stated that his rights have been violated without particularizing or proving this, and that the Petition dated 13th November 2024 accordingly lacks merit, is frivolous and vexatious, and an abuse of the process of the Court. They pray that it be dismissed with costs. Interested Parties' Cases Constitutional Petition No. E633 of 2024 – Judgment Page 11 of 29 Mutai, J

page 11 of 29

24. The 5th and 6th Interested Parties submit that the 1st to 3rd Respondents have acted within their constitutional and statutory mandate under Article 245(4) of the Constitution of Kenya, 2010 and Sections 24, 28 and 35 of the National Police Service Act in investigating formal complaints. They relied on the case of Republic v AntiCorruption Court Ex parte Patrick Mweu Musimba [2013] eKLR for the proposition that, once a complaint is lodged, the police have no discretion to ignore it, and can only be restrained in the clearest of cases of illegality or bad faith. 25. They further submit that the Petition does not meet the Anarita Karimi Njeru/Mumo Matemu threshold, that mere investigative steps, i.e. interviews, document verification, cannot in themselves amount to constitutional infringement, and that in any event Article 40(6) of the Constitution of Kenya, 2010 excludes constitutional protection for unlawfully acquired property, as was held in the decision of Ardhi Highway Developers Ltd v West End Butchery [2015] eKLR. They pray for dismissal of the Petition, and an order allowing the investigative agencies to conclude their inquiries. 26. The 7th Interested Party's position is narrower and distinct. He submits that his own grievance concerns Lamu Constitutional Petition No. E633 of 2024 – Judgment Page 12 of 29 Mutai, J

page 12 of 29

Mashambani Block II/116 which is not the subject of any of the Environment and Land Court suits referred to in the Petition or the Petitioner's submissions, and in respect of which none of the reliefs sought in the Petition are even directed. 27. He submits that the Petitioner has not adduced any evidence as opposed to bare assertion capable of showing that the investigation into his complaint (OB No. 11/17/22 and the complaint of 16th November 2022) is vexatious, oppressive, actuated by ulterior motive or is unreasonable, applying the four-part guideline formulated by the Court of Appeal in Dande & 4 Others v Inspector General, National Police Service & 2 Others [2022] KECA 170. He invites the Court to dismiss any prayer touching the subject land, with costs. 28. The 8th to 15th Interested Parties submit that the investigations stem from legitimate grievances as to the root of title, including alleged forged documentation, and are aimed at uncovering criminal elements distinct from the parallel civil ownership disputes. They rely on Article 245(4) and Article 157(4) and (10) of the Constitution of Kenya, 2010, Sections 24 and 35 of the National Police Service Act, and Section 5 of the Office of the Director of Public Prosecutions Act, and on the decisions of the Court in Constitutional Petition No. E633 of 2024 – Judgment Page 13 of 29 Mutai, J

page 13 of 29

Republic v Commissioner of Police Ex parte Michael Monari Bokami [2015] eKLR for the proposition that the police have a duty to investigate any complaint and are possessed of wide discretion in the investigatory process. 29. They further submit that Section 193A of the Criminal Procedure Code expressly permits concurrent civil and criminal proceedings and that the pendency of the Environment and Land Court suits is accordingly no bar to the criminal investigation into forgery. 30. They have relied on the decision of Commissioner of Police & the Director of Criminal Investigation Department & Another v Kenya Commercial Bank Limited & 4 Others [2013] eKLR and Dater Enterprises Limited v Kinako [2023] KEELC 17261 (KLR) to support this position. 31. They submit that the Petition fails the Anarita Karimi Njeru/Mumo Matemu threshold, that no evidence of malice or ultra vires conduct has been adduced, and that the Petitioner's status as an advocate confers no immunity from a lawful summons to record a statement. They pray for dismissal of the Petition, discharge of any interim conservatory orders, and costs. Constitutional Petition No. E633 of 2024 – Judgment Page 14 of 29 Mutai, J

page 14 of 29

Issues for Determination 32. I have carefully read and considered the Petition, the Supporting Affidavit sworn by the Petitioner, the responses on record and the written submissions filed by the parties herein. The following issues arise for determination: a) Whether the Petition meets the constitutional threshold for precision in pleading; b) Whether the conduct of the 2nd and 3rd Respondents complained of amounts to a violation of the Petitioner's constitutional rights or is an abuse of the investigative and prosecutorial process; c) Whether any relief is warranted in relation to Lamu Mashambani Block II/116, the subject of the 7th Interested Party's grievance; d) Whether the Petitioner is entitled to the reliefs sought, and if so, to what extent; and e) Who should bear the costs of the Petition. Analysis and Determination Whether the Petition meets the constitutional threshold for precision in pleading 33. It is well settled in Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society Constitutional Petition No. E633 of 2024 – Judgment Page 15 of 29 Mutai, J

page 15 of 29

of Human Rights Alliance [2014] eKLR that a party alleging a violation of constitutional rights must set out, with reasonable precision, the right said to be infringed and the manner of the infringement. A bare recitation of constitutional articles, unconnected to specific facts, does not suffice for a constitutional petition. 34. In my view, the Petition has an array of claims. On the one hand, the Petitioner has pleaded a reasonably specific factual matrix against the 2nd and 3rd Respondents. The procurement of warrants of arrest in Miscellaneous Criminal Application No. E004 of 2023 without a charge sheet; the 1st Respondent's declination in May 2023 to sanction charges for want of evidence; the attempted arrest on 10th November 2024; and the acquittal in Lamu Criminal Case No. E002 of 2023. These are dated, particularized events tied to identified parcels and court proceedings, and, in my view, sufficient to found a justiciable complaint against the 2nd and 3rd Respondents in relation to Lamu/Manda Island/270, 271, 272, 380 and 381. 35. On the other hand, there are portions of the Petition that are inconsistent, including paragraphs that refer to the Petitioner in the female gender and to the 'unlawful and unconstitutional taking and confiscation of her personal properties', notwithstanding that the Petitioner is male and is Constitutional Petition No. E633 of 2024 – Judgment Page 16 of 29 Mutai, J

page 16 of 29

not himself the registered or beneficial owner of the disputed parcels, but was merely acting as an advocate in the said transaction(s). 36. These paragraphs are a clear example of template drafting that was not fully adapted to this matter. However, they do not vitiate the Petition as a whole, since the core, coherent narrative concerning the 2nd and 3rd Respondents' conduct is sufficiently precise to meet the threshold set out in Anarita Karimi Njeru. Whether the conduct of the Respondents amounts to a violation of the Petitioner's rights or an abuse of process 37. Article 157 of the Constitution of Kenya, 2010 vests the 1st Respondent with independent prosecutorial authority, exercised without direction or control of any person, subject to the qualification in Article 157(11) of the Constitution of Kenya, 2010 that it must 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. 38. The Petitioner avers at paragraph 31 of the supporting affidavit that the 1st Respondent declined to sanction the forgery charges proposed by the 2 nd Respondent, Lamu, for want of evidence. This position is expressly acknowledged at paragraph 30 of the Petitioner's submissions, which records Constitutional Petition No. E633 of 2024 – Judgment Page 17 of 29 Mutai, J

page 17 of 29

that the 2nd and 3rd Respondents were aware that the 1st Respondent refused to recommend charges against the Petitioner because there was no legal basis for the arrest. 39. There is no evidence by the Petitioner that the 1st Respondent went back on this position, sanctioned any charge, or directed the 2nd Respondent to arrest or otherwise proceed against the Petitioner. Indeed, no evidence has been placed before this Court that a charge has been preferred against the Petitioner. 40. Applying the decision of Leonard Otieno v Airtel Kenya Limited [2018] eKLR, a violation of constitutional rights cannot rest on unsupported hypotheses; there must be a demonstrated act or omission by the particular Respondent sued. 41. In my view, the impugned conduct is the procurement of a warrant of arrest without reference to the 1st Respondent. On the Petitioner's own account, the attempted arrest on 10th November 2024 was carried out by the 2nd and 3rd Respondents without any direction from the 1st Respondent. I am satisfied that the Petition discloses no cause of action against the 1st Respondent. Constitutional Petition No. E633 of 2024 – Judgment Page 18 of 29 Mutai, J

page 18 of 29

42. The National Police Service is vested with constitutional independence in the conduct of investigations under Article 245(4) of the Constitution of Kenya, 2010, and the police have a duty and a wide discretion to investigate complaints of criminal conduct, as was affirmed in Republic v AntiCorruption Court Ex parte Patrick Mweu Musimba [2013] eKLR, and Republic v Commissioner of Police Ex parte Michael Monari Bokami [2012]/[2015] eKLR. This Court is cautious about intruding on that domain and will restrain an investigation only in the clearest cases. 43. This Court retains jurisdiction to intervene where an arrest or investigation is vexatious, oppressive, actuated by ulterior motive or bad faith, or unreasonable. The four guidelines outlined by the Court of Appeal in Dande & 4 Others v Inspector General, National Police Service & 2 Others [2022] KECA 170, which I respectfully adopt as the appropriate analytical framework for this limb of the case. 44. This Court has considered the standard in Mohamed Feisal & 19 Others v Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police Station & 7 Others; National Police Service Commission & Another (Interested Party) [2018] eKLR cited by the Petitioner where it was held that an officer exercising the power of Constitutional Petition No. E633 of 2024 – Judgment Page 19 of 29 Mutai, J

page 19 of 29

warrant of arrest must act as an ordinary honest person would on suspicion with a reasonable basis, not on wild or tenuous suspicion. 45. That an arrest ought not to be made until the matter has been investigated, with sufficient evidence obtained to require an answer; that the officer must keep an open mind as to both innocence and guilt; and that the reasonablesuspicion threshold must extend to all elements of the offence. This closely relates to the common-law requirement that an arrested person be told, at or within a reasonable time of arrest, the grounds for the arrest, failing which the arrest is unlawful. 46. What occurred here, however, was not a warrantless arrest assessed against the Section 29 of the Criminal Procedure Court threshold; it was the procurement of a warrant of arrest from a magistrate in Miscellaneous Criminal Application No. E004 of 2023, and an attempt to execute that warrant. A warrant issued by a magistrate ordinarily reflects an independent judicial assessment of probable cause, over and above the reasonable-suspicion threshold that governs an arrest without a warrant under Section 29 of the CPC. Constitutional Petition No. E633 of 2024 – Judgment Page 20 of 29 Mutai, J

page 20 of 29

47. The 2nd Respondent went ahead to procure such a warrant on the very material the 1st Respondent had already examined and found insufficient to sustain a charge. The prosecuting authority invoked judicial process to lend an appearance of regularity to a course of action the 1 st Respondent had already declined to sanction. 48. Applying the Dande guidelines to the specific facts pleaded concerning parcels Lamu/Manda Island/270, 271, 272, 380 and 381, I find that: The 2nd Respondent's procurement of warrants of arrest in Miscellaneous Criminal Application No. E004 of 2023, without a charge sheet, without notice to the Petitioner or the directors of the 1st and 2nd Interested Parties, contrary to the 1st Respondent's assessment that there was no evidential basis to charge, was unreasonable in the circumstances. 49. The subsequent attempt to effect an arrest in Nairobi on 10th November 2024, following an acquittal in related proceedings (Lamu Criminal Case No. E002 of 2023) and an unresolved complaint lodged with DCI Headquarters on 15th October 2024, reinforces the inference that the process was not being conducted with the ordinary rigour expected of a lawful investigation. Constitutional Petition No. E633 of 2024 – Judgment Page 21 of 29 Mutai, J

page 21 of 29

50. The Petitioner averred there was an acquittal of different accused persons in Lamu Criminal Case No. E002 of 2023. This, however, does not conclusively determine the issues touching on the parcels of Land mentioned in the Petition. This issue remains properly before the Environment and Land Court in the several suits identified in the Petition, some of which are said to be part-heard. 51. The Court declines to treat that acquittal as dispositive of ownership, as the Petitioner's submissions appear to suggest. Its relevance to the matter before the Court is narrower. It is one of several factors; coupled with the 1st Respondent's decision not to charge and the absence of a charge sheet or notice, it bears on whether the 2nd Respondent's continued pursuit of a warrant of arrest on the same facts was reasonable and procedurally fair. 52. On this issue, the Court finds that the process fell short of the standard of fair administrative action required by Article 47(1) of the Constitution of Kenya, 2010, and Sections 4 and 5 of the Fair Administrative Action Act, 2015, and that it also violated the protection against arbitrary deprivation of liberty under Article 29 of the Constitution of Kenya, 2010. 53. I am not, however, persuaded that this finding extends to a declaration that the entirety of the investigative process Constitutional Petition No. E633 of 2024 – Judgment Page 22 of 29 Mutai, J

page 22 of 29

concerning the disputed parcels is unconstitutional, unlawful or actuated throughout by bad faith. The 5th and 6th Interested Parties and the 8th to 15th Interested Parties have laid a proper evidential foundation through the Replying Affidavit of CPL Andrew Omuriai and their own depositions for a genuine investigation into alleged forgery, conflicting titles and irregularities in subdivision, which is a criminal inquiry distinct in character from the disputes over ownership of the properties mentioned in the Petition pending at the Environment and Land Court. 54. Section 193A of the Criminal Procedure Code expressly contemplates that criminal and civil proceedings on related facts may proceed concurrently. The authorities relied on by the 8th to 15th Interested Parties, Commissioner of Police & the Director of Criminal Investigation Department & Another v Kenya Commercial Bank Limited & 4 Others [2013] eKLR and Dater Enterprises Limited v Kinako [2023] KEELC 17261 (KLR) correctly state that the pendency of the ELC suits is not, by itself, a ground to stay or prohibit the criminal investigation into forgery. 55. The issue of the Petitioner’s status as an Advocate who acted for the 1st and 2nd Interested Parties does not confer blanket immunity from a lawful summons to record a statement. The authorities relied on by the Petitioner, Constitutional Petition No. E633 of 2024 – Judgment Page 23 of 29 Mutai, J

page 23 of 29

Akusala A. Boniface v OCS Langata Police Station & 4 Others [2018] eKLR, Esther Gathoni Mwangi v DPP & Others [2022] eKLR, and Mohamed Feisal & 19 Others v Henry Kandie & Others [2018] eKLR protect advocates from being harassed or prosecuted merely for discharging their professional duties in the ordinary course of representing a client. They do not hold that an advocate who is alleged, on a proper factual basis, to have personally facilitated an underlying fraud is beyond the reach of investigation. 56. The court has not sighted a personal allegation of forgery against the Petitioner himself, as distinct from his clients, particularized in the Pleadings and evidence before this court. The Respondents and Interested Parties also do not appear to be aware of any particular charge preferred against the Petitioner. 57. To the extent the Petitioner may lawfully be required to assist investigators as a person with material knowledge of the underlying transactions, that is unobjectionable and does not offend Section 134 of the Evidence Act, which protects communications made in the course of and for the purpose of legal advice, not the fact of his professional involvement in a transaction under scrutiny for fraud. Constitutional Petition No. E633 of 2024 – Judgment Page 24 of 29 Mutai, J

page 24 of 29

58. To this end, the court only faults the specific manner in which the 2nd Respondent pursued the Petitioner's arrest via an ex parte warrant procured without a charge sheet, without notice, and contrary to the 1st Respondent's own declination and finds that it was unlawful and unfair, and threatens a violation of Articles 29 and 47 of the Constitution of Kenya, 2010. 59. This finding, however, does not imply that the 2nd and 3rd Respondents are barred from continuing to investigate the underlying complaints of forgery lawfully and fairly, nor that the Petitioner is immune from being lawfully summoned to record a statement in that continuing investigation. Whether any relief is warranted in relation to Lamu Mashambani Block II/116, the subject of the 7th Interested Party's grievance 60. The submissions of the 7th Interested Party, Mr Ghalib Alwiy, on this point are, in my view, valid. The Petition's own prayers 3 and 5 for permanent injunction and prohibition are framed exclusively by reference to Lamu/Manda Island/270, 271, 272, 380 and 381 and the identified Environment and Land Court suits; none of those suits, and none of the reliefs sought, concern Lamu Mashambani Block II/116. Constitutional Petition No. E633 of 2024 – Judgment Page 25 of 29 Mutai, J

page 25 of 29

61. The Petitioner has adduced no evidence as opposed to the general and unparticularized assertion of 'cartels' referred to at paragraph 14 of his submissions capable of showing that the investigation into the 7th Interested Party's complaint in OB No. 11/17/22, escalated to the County Criminal Investigations Officer on 16th November 2022, concerning the disavowed vesting letter is vexatious, oppressive, actuated by ulterior motive, or unreasonable within the Dande framework. 62. Given that the burden of proof under Section 107 of the Evidence Act rests on the party asserting a fact, and given that the Petition itself seeks no relief specific to that parcel, there is no proper basis for this Court to make any finding, declaration or order touching Lamu Mashambani Block II/116. 63. The investigation into the 7th Interested Party's complaint, just like the investigations concerning the other parcels Lamu/Manda Island/270, 271, 272, 380 and 381, may proceed without hindrance from these proceedings. Whether the Petitioner is entitled to relief, and to what extent? 64. Article 23(3) of the Constitution of Kenya, 2010 empowers this Court to grant Constitutional Petition No. E633 of 2024 – Judgment Page 26 of 29 appropriate reliefs in Mutai, J

page 26 of 29

proceedings brought under Article 22, which must be effective, just and proportionate to the violation established by a Petitioner as was held in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR. Relief under Article 23(3) of the Constitution of Kenya, 2010 is not, however, a licence to grant every prayer sought merely because some violation has been shown; it must be tailored to the violation actually established on the evidence. 65. Having found a narrow violation confined to the manner in which the 2nd Respondent has pursued the Petitioner's arrest in connection with Lamu/Manda Island/270, 271, 272, 380 and 381 and having declined to find any wider unconstitutionality in the investigative process, or any basis for relief touching Lamu Mashambani Block II/116, the court shall issue appropriate relief, to wit, a specific declaration and a conditional, rather than blanket, restraint. 66. A sweeping permanent injunction barring 'any matter concerning' the parcels, or prohibiting all future questioning or summons of the Petitioner in perpetuity, as prayed, would go beyond the violation established and would tread impermissibly on the 2nd and 3rd Respondents' continuing Constitutional Petition No. E633 of 2024 – Judgment Page 27 of 29 Mutai, J

page 27 of 29

constitutional mandate to investigate any credible complaints of forgery raised by the 5th, 6th and 8th to 15th Interested Parties herein. Such an order would not be proportionate, and the court declines to grant it. 67. For the reasons set out above, the following orders issue in relation to the Petition:(1) The Prayers against the 1st Respondent are dismissed for want of a disclosed cause of action; (2) A declaration is hereby issued that the actions of the 2nd and 3rd Respondents and or their agents are unlawful, unfair, unreasonable, irrational, illegal and the acts of harassment, intimidation, questioning, investigating, charging, prosecuting the Petitioner without a charge sheet is in violation of Article 47(1) of the Constitution of Kenya, 2010, Sections 4 and 5 of the Fair Administrative Action Act, 2015, and that it also violated the protection against arbitrary deprivation of liberty under Article 29 of the Constitution of Kenya, 2010; (3) The prayers for permanent injunction and prohibition are declined to the extent that they seek to bar, in perpetuity investigation, and without questioning, qualification, or summons any of the Petitioner concerning the named parcels; and Constitutional Petition No. E633 of 2024 – Judgment Page 28 of 29 Mutai, J

page 28 of 29

(4) 68. Each party shall bear its own costs of the Petition. It is so ordered. Dated and signed at Nairobi this 16th day of July 2026. Gregory Mutai JUDGE In the presence of: Mr Cohen Amanya and Ms Muthoni, holding brief for Mr Ahmednasir Abdullahi, for the Petitioner; Ms Ntabo, for the 1st Respondent; Ms Rukia, for 2nd and 3rd Respondents; Mr Mwanzia, for 1st to 3rd Interested parties; Ms Martina Swigga and Mr Danstan Omari, for the 5th and 6th Interested Parties; Mr Odaga, for the 7th Interested Party; Mr Kibunja, for the 8th to 15th Interested Parties; and Ms Neema Lwambia - Court Assistant. Constitutional Petition No. E633 of 2024 – Judgment Page 29 of 29 Mutai, J

page 29 of 29