Versusinspector General of Police & 2 others v Constitutional and Human Rights Division

2. The Petitioner, Onesmus Gachuhi Githinji, an Advocate of the High Court of Kenya with over 40 years of legal practice, asserts that he legally purchased the land in 2010 from Harrison Karanja Njihia. He details a history of unsuccessful legal challenges to his ownership, beginning with a 2011 lawsuit filed by the 1st Interested Party, Naomi Wangui Kuria, which suit was allegedly, ultimately dismissed for want of prosecution in March 2021. That a subsequent suit filed by the same Naomi Wangui Kuria in December 2021 was struck out in March 2023 for being res judicata, statute-barred and an abuse of court process, which decision was appealed against and is pending determination by the Court of Appeal. 3. The petitioner claims that throughout these proceedings, government land registrars through the Office of Attorney General repeatedly confirmed that the transfer of the suit land to the Petitioner was lawful and unmarred by fraud. The Petition and reliefs sought 4. The Petition as amended on 23rd April 2025 therefore seeks the following reliefs: (1). A declaration that the summons by DCI Ruiru is arbitrary and unlawful and a breach of all constitutional provisions forming the subject of this Petition. Page 2 of 53

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(2). An order prohibiting the Inspector General of Police and all his subordinates from summoning and investigating the Petitioner over the LR No. Ruiru East Block 1/ Githunguri 1350. (3). An order prohibiting the Director of Public Prosecutions from preferring any charges against the Petitioner over the LR No. Ruiru East Block 1/ Githunguri 1350. (4). General damages for the violation of the Petitioner's fundamental human rights. (5). Costs of this Petition. (6). Any other order(s) that this Honourable Court may deem fit. 5. Concurrent with the Petition, the Petitioner filed a Notice of Motion Application seeking conservatory orders staying the summons issued by the 3rd Respondent against the Petitioner on 4th February 2025 pending hearing and determination of the Application and the Petition. 6. The Petition is based on the facts as pleaded and further supported by the affidavit sworn by the Petitioner on 17th June 2025. In the supporting affidavit, the Petitioner deposes that a land search conducted on 14th February 2020, revealed that while ELC Case No. 341 of 2013 was still pending at Milimani Law Courts, the Land Registrar, Ruiru, opened a Green Card registering the disputed property under Githunguri Constituency Ranching Company Ltd before transferring it to Naomi Wangui Kuria. Page 3 of 53

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7. THE Petitioner highlights what he considers to be a contradiction in this action, noting that the Land Registrar, who was the 5th Defendant in that ELC suit, had filed a statement of defence through the Attorney General confirming that the Petitioner’s title was acquired lawfully and with the company's consent, without disclosing the ongoing transfer to Naomi Wangui Kuria. 8. Further, that when a status quo order was issued against the Petitioner in a subsequent suit (ELC No. E145 of 2021) at Thika Law Courts, it was curiously registered against Naomi Wangui Kuria’s title instead. 9. The Petitioner further states that he has received information that Naomi Wangui Kuria and her only child are deceased. He asserts that the Land Registrar and the Chairman of Githunguri Constituency Ranching Company Limited have been fraudulently using the deceased woman’s name to attempt to dispossess him of his land. He alleges that these parties have enlisted the police to harass, intimidate and unlawfully evict him from the suit land. 10. The Petitioner asserts that given the land’s escalated valuation of one billion Kenya shillings, the ongoing police summons despite existing court decisions and the death of the purported claimant, the -Petitioner fears for his life and seeks urgent judicial intervention to prevent severe harm or mistreatment. Page 4 of 53

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11. He explains that on 4th February 2025, the DCI served him with summons demanding his appearance on 6th February 2025 to answer to a new complaint lodged by an unknown individual, the 3rd Interested Party herein, alleging the offence of obtaining land registration by false pretences under Section 320 of the Penal Code. 12. The Petitioner avers that the summons and the demand to produce his original title deed represent an arbitrary abuse of power, weaponization of the criminal justice process and is an illegal attempt to re-litigate a settled land dispute. He further cites intimidation, including being trailed by unknown vehicles, as threats to his personal safety and fundamental freedoms. 13. The Petitioner asserts that the acts of the Inspector General of Police and subordinate officers violate his constitutional rights, including protection from cruel, inhuman, or degrading treatment under Articles 28 and 57, freedom of movement under Article 39, freedom and security of the person under Article 29, right to property under Article 40 and fair administrative action under Article 47. 14. He states that the police are encroaching upon judicial independence by attempting to act as a Court of Appeal over High Court decisions. Consequently, he seeks constitutional remedies to restrain the police and the Director of Public Prosecutions from investigating or prosecuting him over the property. Page 5 of 53

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Responses to the Petition 15. Opposing the Petition, the Respondents filed several responses. The 1st Respondent, the Inspector General of Police and the 3 rd Respondent, the Attorney General filed their Grounds of Opposition dated 24th February 2025. They assert that the Petitioner has failed to demonstrate how his constitutional rights were violated or threatened. Relying on the case of Anarita Karimi Njeru v. Republic, the 1st and 3rd Respondent contend that a party alleging constitutional violations must state the specific rights infringed and precise manner of infringement, which the Petitioner has not done. 16. The 1st and 3rd respondents state that the police acted strictly within their constitutional and statutory mandate under the National Police Service Act, which mandate includes investigating crime and maintaining law and order by summoning the Petitioner after receiving a formal complaint from the 3rd Interested Party. They plead that failing to investigate such a complaint would amount to a breach of their public duty. 17. The 1st and 3rd Respondents further contend that the Petition is speculative, premature and an abuse of court process because it arises from mere apprehension that the ongoing investigations might be predetermined. They assert the matter involves disputed facts properly within the purview of the investigating authority and that judicial intervention before Page 6 of 53

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investigations are concluded is unwarranted unless an act is manifestly unlawful or improper. 18. Additionally, they highlight that the constitutional power to decide whether to prosecute rests independently with the Director of Public Prosecutions under Article 157. Finally, they urge that the Petitioner failed to adduce evidence under the Evidence Act regarding alleged surveillance by unknown cars or strangers, rendering the petition frivolous, incompetent and fit for dismissal with costs. 19. The 2nd Respondent the Director of Public Prosecutions(DPP) filed Grounds of Opposition dated 20th February 2025 opposing the Application and Petition on the grounds that no evidence has been availed to show any intention to institute criminal charges against the Petitioner. The DPP contends that the claim violates the doctrine of ripeness, as it rests entirely upon contingent future events, making the Application premature and unfit for judicial adjudication at this stage. 20. Further, that the DPP has neither directed an investigation against the Petitioner under Article 157(4) nor instituted criminal proceedings under Article 157(6) of the Constitution and that a mere police summons to record a statement does not constitute a threat to fundamental rights, rendering the Petitioner’s fears speculative and unsupported by fact. 21. The DPP also states that the Petitioner failed to exhaust administrative remedies of writing a formal complaint letter to the DPP before filing the Page 7 of 53

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matter in court. Consequently, the 2nd Respondent states that the petition lacks merit and should be dismissed with costs. 22. The 2nd Interested Party Githunguri Constituency Ranching Co. Ltd filed a Replying Affidavit sworn on 1st October 2025 by John Maina Mburu, the Chairman and Director of the 2 nd Interested Party refuting the Petitioner’s allegations and defending the company’s position regarding the suit property, Ruiru East Block 1/ Githunguri 1350. 23. The deponent denies any personal vendetta, malice, or involvement in police harassment, taking issue with the Petitioner’s derogatory language including calling him "Mganga" which he describes as unfounded and beneath the dignity of a former judge and senior advocate. He asserts that neither he nor the company initiated criminal complaints, issued police summons, or influenced the Directorate of Criminal Investigations, arguing that the company was improperly joined to the constitutional petition. 24. Regarding the merits of the land ownership, Mr. Mburu deposes that internal company records confirm Naomi Wangui Kuria the 1st Interested Party as the bona fide allocated owner of the parcel. He explains that she followed all proper corporate procedures by purchasing shares, receiving official receipts, obtaining a share certificate and participating in the balloting process, where she drew ballot number 731 corresponding to parcel 1350. Page 8 of 53

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25. While acknowledging that her previous civil suits were dismissed for want of prosecution or struck out on account of alleged indolence, the deponent maintains that the 1st Interested Party’s procedural failures do not negate her legitimate allocation. 26. Consequently, he deposes that the seller who transferred the land to the Petitioner, Harrison Karanja Njihia, was never originally allocated the parcel of the Land by the company, evidencing that the initial acquisition by Mr. Njihia was fraudulent. The deponent concludes by urging the Court to dismiss the Petitioner’s application with costs. 27. The Petition was canvassed by way of written submissions. Submissions 28. The Petitioner’s submissions are dated 8 th October 2025. The Petitioner, submits that he is the legal owner of Ruiru East Block 1/ Githunguri 1350, having purchased the property in 2010 from Harrison Karanja Njihia, with the land and its developments currently valued at approximately KES 1,000,000,000. He details a history of litigated ownership claims by the 1 st Interested Party Naomi Wangui Kuria, beginning with Land Case No. 24 of 2012 transferred to Milimani as ELC Case No. 341 of 2013), where the Land Registrar through the Attorney General is said to have confirmed that the transfer to the Petitioner was lawful, unmarred by fraud and sanctioned by Githunguri Constituency Ranching Company Limited. Page 9 of 53

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29. He avers that Lady Justice Komingoi dismissed this initial suit for want of prosecution on 10th March 2021 and rejected a reinstatement application on 21st October 2021. That despite this, the 1 st Interested Party filed a fresh suit in ELC No. 145 of 2021 at Thika, which Justice B.M. Eboso struck out on 20th March 2023, for being res judicata, statute-barred and an abuse of court process, a decision currently under Civil Appeal No. E338 of 2023. 30. The Petitioner submits that following these civil court defeats, a racketeering enterprise colluded with DCI Ruiru to instigate criminal proceedings against him. That on 4th February 2025, DCI Ruiru served him with summons based on a complaint lodged by the 3 rd Interested Party Angelica Wangui Kuria, holding herself out as the daughter-in-law to the now-deceased 1st Interested Party, alleging the offence of obtaining land registration by false pretences under Section 320 of the Penal Code. 31. The Petitioner characterizes these summonses and demands for the original title deed of the suit parcel of land as an arbitrary abuse of police power and weaponization of the criminal justice system. He reiterates that thirdparty registry searches revealed that the Land Registrar opened a green card in 2020 under the names of the 1st and 2nd Interested Parties without disclosing it during the 2021 Thika litigation and points to the previous prosecution of initial owner Ernest Maina Mburu in Criminal Case No. 5413 of 2017 as further evidence of calculated harassment. Page 10 of 53

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32. The Petitioner argues that these actions violate his fundamental rights under Articles 28 on dignity and protection from degrading treatment, 29 on freedom and security of person, 39 on freedom of movement, 40 on protection of property rights, 47 on fair administrative action and 57 on protection of older members of society. 33. He submits that the police and Land Registrar are attempting to usurp judicial authority by acting as an appellate Court over High Court decisions, directly violating judicial independence under Article 160(1) of the Constitution as guaranteed. 34. On the fear for his safety due to alleged unknown vehicles trailing him and strangers visiting his land, the Petitioner submits that the ongoing summons and threatened prosecution inflict severe mental anguish and arbitrary restraint, warranting urgent constitutional intervention and the grant of the prayed prohibition orders and damages. 35. The 1st and 3rd Respondents, in their submissions dated 28 th October 2025 isolate the following issues for determination: whether the 1st and 3rd Respondents’ conduct constitutes a violation and contravention of the Constitution of Kenya 2010; Whether the petitioner has proved his case to the required standard and therefore the Honourable Court should issue the orders sought in the petition and Whether the petitioner is entitled to the orders sought in the petition. Page 11 of 53

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36. Counsel submits that the Petitioner’s Application and Petition lack merit and should be dismissed with costs. They argue that the Petitioner has failed to satisfy the pleading standard established in Anarita Karimi Njeru v. Republic (1979) and Mumo Matemu v. Trusted Society of Human Rights Alliance (2013) eKLR, which require constitutional violations to be set out with sufficient particularity and clear factual detail rather than mere listings of constitutional provisions. 37. The 1st and 3rd Respondents argue that the police acted strictly within their statutory mandate under the National Police Service Act to investigate crime, detect offences and enforce laws after receiving a formal complaint from the 3rd Interested Party regarding alleged land fraud under Section 320 of the Penal Code. They cite Republic v. Commissioner of Police & Another ex parte Michael Monari & Another (2012) eKLR and Rose Esther Muthoni Wamuiya v. Governor, County Government of Nyandarua & Others (2020) eKLR, maintaining that police have an inescapable duty to investigate complaints upon reasonable suspicion and that courts must remain reluctant to interfere with ongoing investigations. 38. The 1st and 3rd Respondents submit that the petition is premature and speculative, as it invites the court to intervene in disputed factual matters before investigative authorities have completed their work or forwarded the file to the Director of Public Prosecutions (DPP). Relying on Paul Ng'ang'a Nyaga v. Attorney General & Others (2013) eKLR and Hon. Page 12 of 53

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James Ondicho Gesami v. Attorney General & Others, they argue that the High Court can only interfere with constitutional bodies like the DPP or the Police where there is clear evidence of unconstitutional action, noting that subjecting an individual to standard criminal process with built-in constitutional safeguards does not violate human dignity. 39. On the burden of proof, the 1st and 3rd Respondent cite Sections 107 and 109 of the Evidence Act alongside Lt. Col. Peter Ngari Kagume & Others v. Attorney General (2006) eKLR, emphasizing that he who alleges must prove. They point out that the Petitioner adduced no tangible evidence such as witness testimony or police records to substantiate claims of false complaints, nor to link the 1st and 3rd Respondents to allegations of unknown vehicles trailing him. 40. The 1st and 3rd Respondents maintain that granting the requested prohibition orders would improperly curtail the DPP’s prosecutorial discretion under Article 157 and usurp the trial court's role. Citing Mureithi & Another v. Divisional Criminal Investigation Officer Kajiado & Others (2023) eKLR, Erick Kibiwott Tarus & Others v. Director of Public Prosecutions & Others (2014) eKLR, and Kenya Human Rights Commission & Another v. Attorney General & Others (2019) eKLR, they argue that trial courts are best equipped to evaluate evidence, determine innocence, or grant acquittals, while appellate mechanisms and civil claims for malicious prosecution exist to cure any procedural errors. Page 13 of 53

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41. They emphasize that the mere likelihood of a prosecution failing does not justify judicial interference with a decision-making process, concluding that the petition should be dismissed to protect the institutional independence of law enforcement and prosecutorial bodies. 42. The 2nd Respondent’s submissions are dated 6th May 2026. Counsel submits that the petition is premature, anticipatory and without merit, as no decision to charge the Petitioner under Article 157(6) of the Constitution has been made. Relying on Environment Land Petition 4 of 2023, the DPP contends that judicial intervention is uncalled for where no adverse action has been taken against a petitioner. Citing Section 24 of the National Police Service Act and Rhodah Mutete Mutuku v. Inspector General, National Police Service & 2 Others [2019] eKLR, the 2nd Respondent emphasizes that police investigations are a mandatory pre-trial mechanism designed to establish facts and to determine whether to exonerate or incriminate a suspect, and summoning the Petitioner to record a statement accords with the rules of natural justice without infringing any constitutional rights, especially given that the DPP has not issued any investigation directives under Article 157(4) of the Constitution. 43. The 2nd Respondent further argues that the petition directly violates the doctrine of ripeness as it asks this Court to adjudicate a hypothetical dispute based on mere apprehension of arrest and prosecution. Citing Black's Law Dictionary, Kiriro wa Ngugi & 19 Others v. Attorney Page 14 of 53

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General & 2 Others [2020] eKLR, and National Assembly of Kenya & Another v. The Institute for Social Accountability & 6 Others, the DPP submits that courts must decline to entertain academic or premature questions that have not matured into live, justiciable controversies grounded in actual facts. 44. Additionally, the DPP submits that the Petitioner breached the doctrine of exhaustion by rushing to court without first seeking administrative resolution or formally raising his grievances with the DPP, ignoring the principle affirmed in Geoffrey Muthiga Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others [2015] eKLR that courts must serve as a forum of last resort rather than the first port of call. 45. The 2nd Respondent stresses that judicial discretion to interfere with prosecutorial independence must be exercised sparingly and only in the clearest of cases. Referencing Muema Mativo v. Director of Criminal Investigations & 2 Others eKLR, the DPP cautions that constitutional court jurisdiction must not be trivialized or invoked on mere unsubstantiated fears of potential rights violations. Because the DPP has not evaluated the completed police file or elected to prefer charges, any judicial intervention at this stage would improperly pre-empt prosecutorial mandate and the assessment of the trial court, making it necessary for the Court to dismiss the petition with costs. Page 15 of 53

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46. The 2nd Interested Party, Githunguri Constituency Ranching Co. Ltd, submits that it has been improperly joined to the constitutional petition and prays for the petition against it to be dismissed with costs. The company outlines its historical allocation procedures as a public land-buying company established in 1968, explaining that shareholders purchased shares, received official receipts, obtained share certificates, and participated in balloting to select specific land parcels. That internal records confirm that Naomi Wangui Kuria the 1 st Interested Party fully complied with all corporate procedures, drew ballot number 731, and was formally allocated Ruiru East Block 1 (Githunguri) 1350. 47. The company notes that due to the prevalence of elderly or illiterate shareholders who delay formal titling, corrupt land officials and fraudsters have frequently exploited these gaps to process illegal titles. 48. Regarding the root of the dispute, the 2nd Interested Party contends that the Petitioner purchased the property from a person who was never allocated the land by the company and who had illegally processed a title before selling to the Petitioner. The company points out that the person who sold the land to the Petitioner, a Mr. Mburu was previously charged with the offence of land fraud in Thika Chief Magistrate's Court Case No. 5413 of 2017, but that the charges were withdrawn following his death. 49. The 2nd interested party company acknowledges that while previous civil suits filed by the 1st Interested Party including High Court ELC No. 341 of Page 16 of 53

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2013 and Thika ELC No. 145 of 2021 were dismissed or struck out, those determinations were based on legal technicalities such as want of prosecution and statutory limitation of time, rather than a substantive judicial evaluation underlying land ownership. 50. Finally, the 2nd Interested Party submits that it plays no role in police investigations other than providing factual company records when requested by law enforcement. It maintains that the 1 st and 3rd Interested Parties exercised a constitutional right in reporting the matter to the police and that the company cannot close its doors to police investigations into widespread local land fraud. 51. Finally, the 2nd Interested party company submits that the Petitioner’s personal attacks and defamatory allegations, including calling its Chairman a "Mganga" are unjustified, and reiterates that it should be excused from the proceedings with costs. Analysis and Determination 52. Having considered the pleadings, affidavits and written submissions filed by the participating parties, the following key issues emerge for determination: (i) Whether the 2nd Interested Party was properly joined to these proceedings. Page 17 of 53

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(ii) Whether the 1st Respondent, and the 2nd Respondents violated or threatened to violate the Petitioner’s fundamental rights under Articles 28, 29, 39, 40, 47, 57, and 160(1) of the Constitution and whether, in the circumstances, the Court should exercise its jurisdiction to issue prohibition orders restraining police investigations and potential criminal prosecution. (iii)Whether the Petition is premature, anticipatory, and offends the doctrines of ripeness. (iv) What orders should the court make? i. Whether the 2nd Interested Party was properly joined to these proceedings. 53. The issue of joinder and misjoinder in constitutional petitions is governed by Rule 5 of the Constitution of Kenya, (Protection of Rights and Fundamental Rights) Practice and Procedure Rules, 2013 as follows: Rule 5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties— (a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties. Page 18 of 53

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(b) A petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every proceeding deal with the matter in dispute. (c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit. (d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just— (i) order that the name of any party improperly joined, be struck out; and( (ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. (e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be Page 19 of 53

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necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents. 54. The 2nd Interested Party, Githunguri Constituency Ranching Co. Ltd, contends that it was mis joined to this petition. It asserts that they neither filed a police complaint nor issued police summons against the Petitioner and that their involvement in the matter was limited to supplying historical company allocation records to the investigating officers upon request. 55. A party should only be joined to a constitutional petition if specific allegations of rights violations are made against it or if its presence is necessary to determine the constitutional questions at hand as was held in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 which was quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows: “A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon Page 20 of 53

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and settle all the questions involve in the cause or matter...For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a codefendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” 56. In Meme vs. Republic (2004) KLR637, the Court of Appeal held that joinder will be permissible: a) Where the presence of the party will result in the complete settlement of all the question involved in the proceedings; b) Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law; and c) Where the joinder will prevent a likely course of proliferated litigation. Page 21 of 53

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57. The 2nd Interested Party’s role in providing factual company registers to law enforcement officers does not render it a primary wrongdoer in the alleged constitutional breaches. However, its joinder to these proceedings was necessary because, from the depositions on record, the suit land which is subject of the Police investigations originally belonged to the 2 nd interested party which it claims to have allocated to the 1 st Interested party who is now deceased. In my view, the presence of he 2 nd interested party is necessary to enable the court effectually and completely determine the issues raised by the Petitioner that there is no reason for investigating him for alleged fraudulent acquisition of the suit property. 58. If anything, it is the 1st interested party who is wrongly joined because by the petitioner’s own admission, the 1st interested party is deceased and no suit can be brought against a deceased person whether as respondent of as an interested party. Only a legal or personal representative of the estate of the deceased person can be brought into the proceedings. 59. Accordingly, the 1st interested party is hereby struck out from these proceedings on account that the petitioner deposed that she is deceased. 60. It is however important to note that whether there is misjoinder or nonjoinder of parties, depending on the circumstances and facts of each case, such misjoinder of parties is not fatal to the Petitioner’s case. I am guided by the decision of the Supreme Court in Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of Page 22 of 53

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2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) where it was held as follows: “Be that as it may, order 1 rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for misjoinder or non-joinder and that what the court should be bothered with is the determination of the rights of the parties; that rule reads as follows: No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. To the extent that this rule is applicable to the petitions such as the one before court, we can confidently say that regardless of whether the 1st respondent has been properly joined to this suit, this court is in good stead and ideally placed to ‘deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” 61. In the present case, even if the 1 st and the 2nd Interested Parties are found to have been improperly enjoined, since no relief was specifically sought by the Petitioner against them and therefore as interested parties in proceedings such as these, nothing is enforceable against them and their participation does not advance the issues in controversy, this misjoinder per se, does not affect the competence of the Petition. Page 23 of 53

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62. Therefore, the Petition stands on its merits as against the respondents and the Court retains jurisdiction to determine the main constitutional questions raised, notwithstanding the erroneous inclusion of the 1 st Interested Party and the alleged misjoinder of the 2nd interested party. ii. Whether the 1st Respondent and the 2nd Respondent violated or threatened to violate the Petitioner’s fundamental rights under Articles 28, 29, 39, 40, 47, 57, and 160(1) of the Constitution and whether, in the circumstances, the Court should exercise its jurisdiction to issue prohibition orders restraining police investigations and potential criminal prosecution. 63. The Petitioner’s main grievance flows from actions by the Directorate of Criminal Investigations (DCI) at Ruiru, to summon the Petitioner to appear before the DCI and provide information regarding alleged fraudulent acquisition of the title to the suit landed property, which the Petitioner characterizes as a collusive effort by racketeering forces to bypass binding civil court rulings. 64. The Petitioner alleges that his fundamental rights under Articles 28, 29, 39, 40, 47, 57, and 160(1) of the Constitution have been infringed. The said provisions collectively and respectively address the right to human dignity, freedom and security of a person, freedom of movement and residence, property rights, fair administrative practices, protection of vulnerable groups and the independence of the judiciary. Page 24 of 53

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65. The question is whether the 1st Respondent has any power to summon the Petitioner and if such summoning for purposes of investigations into a complaint amounts to violation of the petitioners’ constitutionally guaranteed rights as pleaded. 66. In Walter Musungu Muyodi & 3 others v Attorney General & 4 others; Lawrence Godia & 2 others (Interested parties) [2021] KEHC 3563 (KLR), this Court stated as follows on the circumstances under which a court will grant an order prohibiting the commencement or continuation of a criminal trial: “45. Revisiting the circumstances under which the Court will grant an order prohibiting the commencement or continuation of a criminal trial process, when faced with a petition seeking to arrest a criminal prosecution, the factors which a court ought to account for are well settled. For a start, the court ought to be extremely cautious in making its determination so as to avoid prejudicing the intended or pending criminal proceedings. The court ought not to usurp the constitutional and statutory mandate of the Director of Public Prosecutions and neither should it curtail the investigatory mandate accorded to the National Police Service or Directorate of Criminal Investigations. However, the court may intervene were the said discretion is exercised unlawfully and in bad faith, for instance where it is being abused or being used for achievement of some collateral purpose which are not Page 25 of 53

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geared towards the vindication of the commission of a criminal offence. 46. Chris Corns, Judicial Termination of Defective Criminal Prosecutions: Stay Applications, 76 University of Tasmania Law Review, Vol 16 No. 1, 1977, argues that argues that the grounds upon which criminal proceedings will be stopped will depend on some of the following grounds: i. When the continuation of the proceedings would constitute an ‘abuse of process,’ ii. When any resultant trial would be ‘unfair’ to the accused, and iii. When the continuation of the proceedings would tend to undermine the integrity of the criminal justice system. 67. The 1st Respondent Inspector General of Police is established under Article 245 of the Constitution and his functions are provided for under section 24 of the National Police Service Act as follows: 24. Functions of the Kenya Police Service The functions of the Kenya Police Service shall be the— (a)provision of assistance to the public when in need; (b)maintenance of law and order; (c)preservation of peace; (d)protection of life and property; (e)investigation of crimes; (f)collection of criminal intelligence; Page 26 of 53

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(g)prevention and detection of crime; (h)apprehension of offenders; (i)enforcement of all laws and regulations with which it is charged; and (j)performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time. 68. Under section 52 of the National Police Service Act, (No. 11A of 2011), the 1st Respondent has the power to compel attendance of witnesses at police station. The section provides: 52. Power to compel attendance of witnesses at police station (1) A police officer may, in writing, require any person whom the police officer has reason to believe has information which may assist in the investigation of an alleged offence to attend before him at a police station or police office in the county in which that person resides or for the time being is. (2) A person who without reasonable excuse fails to comply with a requisition under subsection (1), or who, having complied, refuses or fails to give his correct name and address and to answer truthfully all questions that may be lawfully put to him commits an offence. Page 27 of 53

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(3) A person shall not be required to answer any question under this section if the question tends to expose the person to a criminal charge, penalty or forfeiture. (4) A police officer shall record any statement made to him by any such person, whether the person is suspected of having committed an offence or not, but, before recording any statement from a person to whom a charge is to be preferred or who has been charged with committing an offence, the police officer shall warn the person that any statement which may be recorded may be used in evidence. (5) A statement taken in accordance with this section shall be recorded and signed by the person making it after it has been read out to him in a language which the person understands and the person has been invited to make any correction he may wish. (6) Notwithstanding the other provisions of this section, the powers conferred by this section shall be exercised in accordance with the Criminal Procedure Code (Cap. 75), the Witness Protection Act (Cap. 79) or any other written law. (7) The failure by a police officer to comply with a requirement of this section in relation to the making of a statement shall render the statement inadmissible in any proceedings in which it is sought to have the statement admitted in evidence. Page 28 of 53

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69. In Lameck Okeyo and Another v Inspector General of Police and 2 Others, [2016] e KLR the court stated: “In order for the Applicant to succeed it must show that not only are the investigations which were being undertaken are laced with ulterior motives but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged commission of a criminal offence. Although it was alleged that the criminal investigations have been commenced with a view to achieving collateral and extraneous purposes, that is to aid the interested party recover a civil debt, I am not satisfied based on the evidence on the record that this is so. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose and as long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene. Therefore whereas a matter may constitute both civil and criminal offence, the mere fact that the police intends to charge the persons against whom the complaint is made with a criminal offence notwithstanding the pendency of civil Page 29 of 53

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proceedings will not warrant a stay… This is the effect of section 193A of the Criminal Procedure Code”. 70. In Kenneth Kanyarati & 2 others v Inspector General of Police Director of Criminal Investigations Department & 2 others [2015] eKLR, it was stated: “I am satisfied that it is not the business of the court to identify the points of investigation. Neither is it the business of this court to wander into the merits and demerits of any intended or prospective prosecution. As was stated in R Vs. Commissioner of Police and Another Ex parte Michael Monari & Another (2012) eKLR: “The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges.” 71. This was reiterated in Rose Esther Muthoni Wamuiya v Governor County Government of Nyandarua & another; Ethics and AntiCorruption Commission (Interested Party) [2020] KEHC 2485 (KLR) at paragraph 99 thus: “99. In the present case, the petitioner wants the court to issue orders stopping, first, the investigations being carried out by EACC and secondly, any prosecution preferred by the DPP. With regard to Page 30 of 53

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the plea to stop the investigations by the EACC, I can do no better than to quote the words of Warsame J (as he then was) in Republic vs. Commissioner of Police & Another Ex p Michael Monari & Another [2012]eKLR in which he stated: "The police have a duty to investigate any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime... As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene." 72. From the pleadings, the Petitioner characterizes the DCI Ruiru summons and demand for his original title deed as an arbitrary abuse of police power, weaponization of the criminal justice system and a calculated effort to re-litigate a settled land dispute. The Petitioner asserts that by investigating the property, the police are encroaching upon judicial independence and attempting to act as a court of appeal over existing High Court decisions, directly violating Article 160(1) of the Constitution. He contends that the police summons and threatened criminal proceedings violate his constitutional rights under Articles 28, 29, 39, 40, 47, and 57 noting that the issue of title to the suit land had been decision upon by the Courts. Page 31 of 53

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73. The 1st Respondent the Inspector General of Police) and the 3rd Respondent the Attorney General contend that the police acted strictly within their statutory mandate under the National Police Service Act to investigate crime, detect offences and enforce laws upon receiving a formal land fraud complaint under Section 320 of the Penal Code. They argue that failing to investigate a formal criminal complaint would amount to a breach of their public duty. They further assert that the police have an inescapable duty to investigate complaints based on reasonable suspicion and that courts must remain reluctant to interfere with ongoing investigations. 74. It is also their case that subjecting an individual to standard criminal process with built-in constitutional safeguards does not violate human dignity or fundamental rights and they address the fact that the ultimate constitutional power to decide whether to prefer charges rests independently with the Director of Public Prosecutions under Article 157. It is their case that granting prohibition orders would improperly curtail prosecutorial discretion and usurp the trial court's role. 75. The 2nd Respondent the Director of Public Prosecutions on its part asserts that police investigations are a mandatory pre-trial mechanism under Section 24 of the National Police Service Act designed to establish facts and determine whether to exonerate or incriminate a suspect. It submits that summoning a suspect to record a statement accords with the rules of natural justice and does not constitute a threat to fundamental Page 32 of 53

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constitutional rights and points out that no decision to prefer charges under Article 157(6) has been made yet neither has it issued investigation directives under Article 157(4). It is their case that judicial discretion to interfere with prosecutorial independence must be exercised sparingly and only in the clearest of cases, warning that intervening before the DPP evaluates a completed investigation file improperly pre-empts the prosecutorial mandate and the trial court's assessment. 76. 2nd Interested Party (Githunguri Constituency Ranching Co. Ltd) submits that its role is strictly limited to providing factual company land records to the police when requested during investigations and affirms that the 1 st and 3rd Interested Parties exercised a constitutional right in reporting the land dispute to law enforcement. It is their case that as a public land-buying company, it cannot close its doors to police officers investigating rampant local land fraud. 77. Upon evaluating the above arguments against the law and the judicial pronouncements in the cited cases, I find and hold that the 1 st Respondent in this case was well within his constitutional and statutory mandate to summon the petitioner for purpose son investigations into a complaint relating to the suit property. This is so, considering that from, the petitioner’s own evidence, there is no merit determination of the civil cases involving the land in issue by any court, since the suit was dismissed for want of prosecution; that there is an appeal pending challenging the Page 33 of 53

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striking out of the subsequent suit on account of limitation of time and res judicata, not forgetting the provisions of section 193A of the Criminal Procedure Code which allow concurrent civil and criminal proceedings by providing that 193A Notwithstanding the provisions of any other written law the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceeding and lastly, the principle that the standard of proof in civil cases is lower than that required in criminal cases, and that should investigations unearth any credible fraudulent act, then the question of ownership of title might take a different turn. 78. This court is unable to find any evidence of abuse of process and or arbitrariness on the part of the 1st respondent in issuing summons to the petitioner for purposes of investigations into alleged fraud in the acquisition of title to the suit property, and refusal to investigate a complaint would amount to abdication of the constitutional and statutory mandate of the 1st respondent. 79. In Kuria and 3 others V Attorney General (2002) 2 KLR 69, the court considered the requirement for proof of allegations of abuse of the process of the court and the necessity to balance the public and private interest considerations attending criminal proceedings and observed that: Page 34 of 53

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“It is not enough to simply state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused or show the basis upon which the rights of the applicant are under serious threat of being undermined by the criminal prosecution…The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose on the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bipolar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, on order of prohibition cannot also be given without evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused to have a fair trial …..” 80. Thus, the request to record a statement or produce documentation during a police inquiry is standard procedure under the law and accords with the Page 35 of 53

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principles of natural justice, as affirmed in Rhodah Mutete Mutuku v. Inspector General, National Police Service & 2 Others [2019] eKLR that: “18. On the first issue it is the finding of this Court that the Respondents acted within the law and have not infringed on the Petitioner’s rights and freedoms. The Petitioner has alleged violation of her rights without specifying how the conduct of the Respondents has resulted in or pose a risk of violation. The Petitioner has not pointed out any right and/or fundamental freedom that has been violated. The Petitioner is however apprehensive that investigations are being undertaken and she fears that she will be arrested. Has the investigation infringed on the petitioner’s rights? Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the Petitioner’s right unless the investigations have been conducted unprocedurally and/or for an ulterior motive which is not the case herein. A complaint was made to the police vide OB NO. 40/4/6/2015. Following the complaint investigations were launched by the Police as is the duty of the Police under law. In fact the police are required to investigate every complaint as was Page 36 of 53

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held in the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012) EKLR where the court stated that: “The police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be falling in their constitutional mandate to detect and prevent crime………... The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.” 19. While conducting their investigations the Police sought the attendance of the Petitioner so as to record her statement. However the Petitioner declined to avail herself. To date she has not been arrested. The Police have taken all steps to ensure that the investigations are conducted procedurally. It cannot be said that the investigations have been carried out unprocedurally and/or unfairly. The Petitioner should not therefore be allowed to cast aspersions on the conduct of the investigation. Upon conclusion of investigations and forwarding of the investigation file to the 2nd Respondent, a decision is by law to be made on whether or not to charge the Suspect. That decision will not be Page 37 of 53

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made capriciously. It will be based on the National Prosecution Policy. Paragraph 3 at page 6 of the NATIONAL PROSECUTION POLICY states as follows:“In exercising the prosecution mandate the DPP is constitutionally bound to have due regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. This provision applies equally to the DPP and officers acting on his or her behalf. This requirement is generally accepted as an international best practice whose origins are in common law.” 20. This Court believes that there are enough safeguards to ensure that the Petitioner’s fundamental rights and freedoms are protected. The Petitioner’s argument that civil proceedings have been instituted by directors of Goldtruck Service Limited to recover a civil debt and that criminal proceedings should not be commenced against her has no legal ground.” 81. The Petitioner prays for prohibition orders to stop the police from investigating him and to restrain the DPP from charging him. I note that Page 38 of 53

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the response of the 2nd Respondent is that it is yet to even receive the formal file to assess and make a prosecution decision. Under Article 157(10) of the Constitution, the DPP exercises independent prosecutorial discretion. In Paul Ng'ang'a Nyaga v. Attorney General & 3 Others (2013) eKLR, the court stated that the High Court will not intervene in prosecutorial functions unless there is clear proof of unconstitutionality, bad faith, or manifest illegality. 82. The law regarding judicial restraint in ongoing investigations is well settled. In Erick Kibiwott Tarus & 2 Others v. Director of Public Prosecutions & 7 Others (2014) eKLR, Justice G.V. Odunga emphasized:“Trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defence... Courts ought not to usurp the Constitutional mandate of the Director of Public Prosecution...” 83. Similarly, in Mureithi & Another v. Divisional Criminal Investigation Officer Kajiado & 2 Others [2023] eKLR, the High Court held that where criminal charges are brought, the trial court provides the proper forum for an accused person to present evidence, challenge prosecution claims, and assert their innocence. If procedural or substantive errors occur, appellate mechanisms and civil remedies, such as actions for malicious prosecution, provide adequate recourse. Page 39 of 53

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84. Further determination on judicial restraint in intervening in criminal investigations can be found in the most recent Court of Appeal decision in where the learned Judges-A.K. Murgor, Dr. K.I. Laibuta and G.W.NgenyeMacharia JJA stated, citing other decisions, including Supreme Court cases: 42. A consideration of the record shows that the order of the High Court stayed the criminal proceedings in Kilifi Chief Magistrate’s Court Criminal CaseNo.E328 of 2024 that had already commenced before the Kilifi Chief Magistrate’s Court, which was lawfully vested with jurisdiction to hear and determine the matter. 43. In the case of Dande & 3 others v Director of Public Prosecutions & 2 others Petition 4 of 2022 [2022] KESC 23 (KLR), the Supreme Court observed: “…that an order for stay of criminal proceedings is not granted asa matter of course but upon the sparing exercise of judicial discretion and only in exceptional circumstances.” 44. Halsbury’s Law of England 4th Edition Vol. 37 pages 330 and 332 states that; “the stay of proceedings is a serious, grave, and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be Page 40 of 53

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imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” 45. The 1st to 3rd Respondents sought stay of the criminal case for the reasons that the prosecution was allegedly malicious, actuated by collateral motives, arising from disputes that were civil in nature which concerned the sale and occupation of villas at Rafiki Village; and that, were the investigations and prosecution to proceed, there was the possibility that the 1st, 2nd and 3rd Respondents’ rights could be violated. The High Court found that the allegations were serious and deserving of consideration. However, the mere existence of parallel civil disputes does not, of itself, bar criminal proceedings where the facts disclosed may also found criminal liability. Civil and criminal liability are not mutually exclusive, and the existence of one process does not automatically invalidate the other. 46. In the case of Kuria & 3 Others v AG [2002] 2 KLR, the court discussed the viability of existence of concurrent civil and criminal proceedings and concluded thus: “…A prerogative order should only be granted where there is an abuse of the process of the law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of criminal case manifests an Page 41 of 53

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abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution... It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the Applicant are under serious threat of being undermined by the criminal prosecution. In the absence of concrete grounds. it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. The effect of criminal prosecution on an accused person is adverse but so also are their purpose in the society, which are immense.an order of prohibition cannot also be given without any evidence that there is manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial…” 47. Section 193A of the Criminal Procedure Code provides that: “ ‘Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.’ Page 42 of 53

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48. The case of Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 Others [2018] eKLR discerned the import of Section 193A thus: “ In terms of Section 193A of the Criminal Procedure Code, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings does not bar the commencement of criminal proceedings. However, where the criminal proceedings are oppressive, vexatious and an abuse of the court process or amounts to a breach of fundamental rights and freedoms, the High Court has the powers to intervene. But this power has to be exercised very sparingly as it is in the public interest that crime is detected and suspects brought to justice.” 49. Additionally, the Supreme Court held in Dande & 3 others v Director of Public Prosecutions & 2 others (supra) that: “The appellants also claimed that the civil suits aforesaid were settled to their exclusion meaning that they were not parties to the suits. If so, what is the prejudice to them? And if the settlement is relevant to their innocence, what better forum is there than the trial court to raise that issue? Furthermore, Section 193A of the Criminal Procedure Code provides as follows: 193A. Concurrent criminal and civil proceedings Notwithstanding the provisions of any other written law, the fact that any Page 43 of 53

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matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition, or delay of the criminal proceedings. [104] The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner.” 50. An examination of the record discloses that, notwithstanding the allegations, there was no material placed before the learned Judge to demonstrate that the prosecution was so patently unlawful, oppressive, or an abuse of process as to warrant the drastic remedy of staying the entire criminal proceedings pending determination of the Petition. The impugned order had the effect of prematurely arresting an ongoing criminal process without cause, and preventing the trial court from discharging its mandate. Given that there was nothing that demonstrated that the criminal proceedings were unlawful or borne out of malice, we find that the learned Judge misdirected herself in exercising her discretion to grant the conservatory orders staying further proceedings in Kilifi Chief Magistrate’s Court Page 44 of 53

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Criminal Case No. E328 of 2024 pending hearing and determination of the Petition. 51. This Court in the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] KECA 856 (KLR) opined that: “ (41) Thus, the exercise of prosecutorial discretion enjoys some measure of judicial Deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions of Mauritius [2006] 5LRC 234: these factors necessarily mean that the threshold of a successful challenge isa high one. It is however one thing to conclude that the courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all… In Regina v Director of Public Prosecutions ex-parte Manning and Another [2001] QB 330, the English High Court said partly at para 23 page 344: At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting, an effective remedy could be denied. Although the standard of review is Page 45 of 53

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exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP. (42) The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.” 85. In the Dande & 3 others v Director of Public Prosecutions & 2 others Petition 4 of 2022 [2022] KESC 23 (KLR), the Supreme Court highlighted that: [91] A review of the constitutional and statutory provisions herein shows without any doubt that the Inspector General and the Director, DCI have the mandate to perform multi-faceted functions as provided under Articles 244 and 245 of the Constitution. Accordingly, Article 244 provides for the objects and functions of the National Police Services and Article 244(c) in particular requires the National Police Services to comply with constitutional standards of human rights and fundamental freedoms in the discharge of its mandate. This is important because human rights and fundamental freedoms and the rule of law are founding values in our Constitution. Page 46 of 53

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[92] A court should only interfere with the powers granted to the Inspector General and the DCI under Articles 244 and 245 of the Constitution and under the provisions of the National Police Service Act if the constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful. The questions that beg answers in the present appeal are whether the Inspector General and the DCI acted within their constitutional mandate and whether their actions amounted to an abuse of office. [93] The Court of Appeal had this to say in that regard: “The 1st and 2nd Respondent have in this respect demonstrated and it is not disputed that they acted pursuant to a complaint received from the 3rd Respondent, and they have detailed the evidence they gathered in this respect. The basis of the complaint arose from the previous relationship between the Appellants and 3rd Respondent of employee/employer which is not disputed, and from transactions that took place during the period of such employment. The Appellants did not provide any evidence of the 3rd Respondent’s influence or control to support their claim that the 1st and 2nd Respondents acted under the aegis of the 3rd Respondent, over and above the 3rd Respondent’s action of making a complaint as an aggrieved person. We are therefore Page 47 of 53

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constrained to find that the arrest and investigations of the Appellants were not proved to be an abuse of power, vexatious, oppressive or motivated by ill motive in the circumstances.” 86. See also Praxidis Namoni Saisi & 7 Others v Director of Public Prosecutions & 2 Others [2023]eKLR. 87. Applying the above decisions to the facts of this case, it is this Court’s finding that halting investigations through constitutional orders before evidence is gathered and evaluated by the DPP would unduly fetter the statutory and constitutional functions of law enforcement authorities. 88. I have also considered the Petitioner’s arguments that previous civil suits in ELC Case No. 341 of 2013 and Thika ELC Case No. 145 of 2021 ended in his favor, and that those matters were resolved on procedural grounds being dismissal for want of prosecution and striking out as res judicata or statute-barred, rather than a full trial on the merits of initial allocation fraud. 89. This Court observes that police investigations into potential criminal fraud under Section 320 of the Penal Code are distinct from civil land claims. Investigating potential criminal conduct does not constitute an illegal usurpation of judicial authority under Article 160(1) of the Constitution. 90. Accordingly, I find that the fact that the 1st Respondents subjected the Petitioner herein to standard criminal processes, where full constitutional safeguards apply, does not in itself constitute an infringement of human Page 48 of 53

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dignity or fundamental rights. The Petitioner also failed to provide evidence of his claims that he was being intimidated by the Respondents because he was being trailed by unknown vehicles. In line with Sections 107-109 of the Evidence Act which require proof by the one who asserts, and as there is no such proof of violation or threat to violation of the petitioner’s rights guaranteed under the Constitution, I dismiss these are mere claims for want of evidence. iii. Whether the Petition is premature, anticipatory and offends the doctrines of ripeness and exhaustion. 91. The doctrine of ripeness avoids premature adjudication. Luis Franceschi et al, in “The Constitution of Kenya, A Commentary”, notes inter-alia: “The rationale for the doctrine of ripeness is to prevent a party from prematurely approaching a court when the party has not been subjected to prejudice.” 92. The Supreme Court in Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others [2022] KESC 8 (KLR) explained thus: “61.The doctrine of ripeness focused on when a dispute had matured into an existing substantial controversy deserving of judicial intervention. The doctrine of ripeness prevented a party from approaching a court before that party had been subject to prejudice, or the real threat of prejudice, as a result of the legislation or conduct challenged.63.Ripeness discouraged a court Page 49 of 53

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from deciding an issue too early. It therefore required a litigant to wait until an action was taken against which a judicial decision could be grounded and a court was able to issue a concrete relief. That approach shielded a court from dealing with hypothetical issues that had not crystalized.” 93. The doctrine of exhaustion on the other hand speaks to the principle that where the law has established specific statutory or administrative mechanisms for dispute resolution, parties are required to first pursue and conclude those remedies before invoking the jurisdiction of the courts. It ensures that specialized tribunals and regulatory bodies are given the opportunity to address matters within their competence, preserves judicial resources, and upholds the hierarchy of institutions. Courts will only intervene once those avenues have been fully utilized, or where exceptional circumstances are demonstrated. 94. The Court of Appeal in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR observed as follows: “It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of Page 50 of 53

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judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” (see also William Odhiambo Ramogi & 3 others v Attorney General & 4 others: Muslims for Human Rights & 2 others (Interested parties) [2020] eKLR). 95. The 2nd Respondent contends that the Petition violates the doctrine of ripeness and offends the principle of exhaustion. It is argued that the Petitioner rushed to Court without first lodging a formal complaint or seeking administrative engagement with the DPP, thereby bypassing the statutory mechanisms available. The 2nd Respondent emphasizes that the police have only issued summons to the Petitioner to assist in investigations into a land fraud complaint lodged by the 3 rd Interested Party, and that no prosecutorial decision has been made under Article 157(6) of the Constitution. In their view, the Petitioner’s apprehension of possible criminal charges is speculative and premature. 96. The Petitioner, on the other hand, maintains that the summons and ongoing investigations pose an imminent threat to his fundamental rights, justifying immediate constitutional intervention. He argues that waiting for the DPP’s decision would expose him to irreparable prejudice. Page 51 of 53

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97. From the jurisprudence emanating from the above cited cases, the Court is persuaded that the Petition offends the doctrine of ripeness as against the DPP . It is also undisputed that at this stage, the police are merely conducting investigations, and the DPP has not received a completed file nor exercised prosecutorial discretion to charge the Petitioner. The apprehension of possible prosecution remains speculative. 98. It cannot be gainsaid that courts are intended to serve as fora of last resort, not to be invoked at the earliest investigative step. Investigations into alleged land fraud cannot amount to violation or threatened violation of rights to invite this Court to intervene and stop investigations because, it is only through investigations that the Police are able to gather necessary evidence for the DPP to decide on whether to mount a prosecution of the petitioner or not. It is equally through investigations that this Court can be told that the investigations are being carried ourt unlawfully or arbitrarily in violation of the petitioner’s rights. The 1 st respondent cannot, therefore, be stopped from lawfully carrying out investigations into an alleged fraudulent acquisition of the suit land, noting that investigating matters land acquisition are fraught with complexities. 99. In the end, and on what orders this Court should make, and on the basis of my findings and analysis above, I find and hold that the Petition amended on 23rd April 2025 is devoid of merit and the same is hereby dismissed. Page 52 of 53

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100. On the question of costs, while costs ordinarily follow the event, this matter involved public law elements and constitutional arguments raised by an individual against state agencies. In the exercise of this Court's discretion under the principles articulated in Kenya Human Rights Commission & Another v. Attorney General & 6 Others (2019) eKLR, I order that each party shall bear their own costs. 101. This file is closed. 102. Orders accordingly. Dated, Signed & Delivered virtually at Mombasa this 25 th Day of August, 2026 R.E. ABURILI JUDGE Page 53 of 53

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