1. The Notice of Motion dated 5 th June 2025 expressed to be brought under
Article s 23(3), 47, 49, 50, and 157(11) of the Constitution of Kenya, the Fair Administrative Action Act, and all enabling provisions of the law sought the following orders: -
i). T HAT this Application be certified urgent and service thereof in the first instance be dispensed with. ( spent).
ii). THAT pending the hearing and determination of this Application/Petition, this Honourable Court be pleased to issue conservatory orders staying any further proceedings in Milimani Criminal Case No. 202 of 2025.
iii). THAT Pending the hearing and determination of this Application/Petition, the Honourable Court be pleased to issue an order restraining the Respondents from arresting, charging, arraigning or prosecuting the Petitioner in connection with the complaint giving rise to the said criminal proceedings.
iv). T HAT an order be issued directing that the original police investigation file and all related documents concerning the prosecution of the Petitioner/Applicant in Mi liman i Chief Magistrate's Criminal Case No.202 of 2025 be transmitted to the 1st Respondent for purposes of an independent review and reconsideration of the decision to charge the Petitioner/Applicant, in accordance with Article 157(11) of the Constitution.
v). THAT the institution of Milimani Criminal Case No.202 of 2025 against the Petitioner is unconstitutional, unlawful, arbitrary, and actuated by malice and bad faith.
vi). T HAT the Respondents' decision to arrest and prosecute the Petitioner was made in violation of Articles 47,49, and 50 of the Constitution and contrary to the Guidelines on the Decision to Charge,2019.
vii). THAT he 1st Respondent do disclose all documentary evidence, correspondence, and internal records or notes upon which the decision to prosecute the Petitioner was made.
viii). A Norder for the immediate withdrawal and termination of all charges against the Petitioner in Milimani Criminal Case No. 202 of 2025.
ix). AN injunction prohibiting the Respondents from instituting any further criminal proceedings against the Petitioner in relation to the complaint made by the Interested Party pending hearing and determination of this Petition.
x). THAT the costs of this Application be awarded to the Petitioner.
2. The application was premised on the following grounds;-
a). The Petitioner was arrested and arraigned in court in under one hour without prior interrogation, recording of a statement, or investigation, in flagrant breach of Articles 47 and 49 of the Constitution.
b). The Petitioner's name does not appear in any of the prosecution witness statements or materials, yet he was inexplicably charged with conspiracy to defraud in Milimani Criminal Case No.202 of 2025.
c). The prosecution was instituted shortly after the Interested Party, who had assaulted and robbed the Petitioner, became the subject of a review by the ODPP with the intent of upgrading charges against him to robbery with violence, suggesting retaliatory motive.
d). The charges brought against the Petitioner are unsupported by evidence and are solely based on the Interested Party's complaint, amounting to an abuse of prosecutorial discretion.
e). The Interested Party has actively manipulated the public narrative through defamatory social media posts to prejudice the Petitioner's constitutional right to a fair trial and human dignity under Article 28.
f). The arrest, detention, and prosecution of the Petitioner was carried out in a manner that was premeditated, oppressive, and designed to achieve collateral purposes namely, silencing the Petitioner's legitimate complaint and shielding the Interested Party from accountability.
g). The Respondents have failed to adhere to the Guidelines on the Decision to Charge (2019), which mandate evidentiary sufficiency and objective, independent investigation prior to instituting criminal charges.
h). The criminal process has been weaponized to intimidate, harass, and ostracize the Petitioner socially and professionally, thereby violating his right to equal protection and benefit of the law as enshrined under Article 27 of the Constitution.
i). The proceedings in Milimani Criminal Case No. 202 of 2025 pose an imminent threat to the Petitioner's liberty, dignity, and economic livelihood, which cannot be remedied by damages and necessitate immediate judicial protection.
k). This Honourable Court has jurisdiction under Articles 22, 23, and 165 of the Constitution to enforce and uphold fundamental rights and to prevent the continuation of proceedings that are ultra vires, malicious, and unconstitutional.
3. The application was supported by the affidavit of ABDIRAZAK KASIM BARE contents of which need not be reproduced verbatim for the simple reason that the application was not opposed by the respondents .
4. This court on the 28 th January 2026 was informed by Ms Ogega counsel for the respondents that they had filed an affidavit in response to the application by way of email. However, on 24 th February 2026 Mr. Mogere prosecution counsel informed the court that he had instructions from the DPP that the matter in the lower court was in the process of being withdrawn and that the grounds of opposition filed by the respondents were to be withdrawn together, with the replying affidavit as they did not intend to oppose the application.
5. Mr. Mugere proceeded to withdraw the grounds of opposition as well the replying affidavit thereby leaving the application unopposed. On that date Mr. Ogado Advocate appeared for the interested party and indicated that they were opposed to the intended withdrawal of documents by the DPP and that they required 7 days within which to file a response to the application.
6. This court granted Mr, Ogado 7 days within which to file a response but as of 22 nd April 2026 the interested party had not filed the intended affidavit and his counsel did not attend court. On 22 nd April 2026 Mr. Kimathi for the applicant pleaded with the court to allow his application since the same was not opposed.
7. The court adjourned the matter and put it off to the 13 th May 2026 to allow the interested party more time in the event that they intended still to be heard by the court. On the 13 th of May the interested party counsel did not attend court and Mr. Kimathi counsel for the applicant urged the court not to delay the matter any further and was supported by Mr. Mugere for the respondents who conceded to the application.
8. The court has considered the application and noted that the applicant has alleged the violation of his rights under Articles 47, 49 and 50 of the Constitution. The High Court under Article 165 of the Constitution has the power to intervene whenever a question of a threat of violation or actual violation of the Constitution is brought to its attention. The applicant has made allegations of breach of his constitutional rights and those allegations have not been rebutted. It follows therefore that the actions complained of are indeed inconsistent and in contravention of the constitution therefore in light of the provisions of Article 165 (2) (d)(ii) this court has no hesitation in allowing the application as presented.
9. Articles 20 and 23 of the Constitution empower this court to uphold and enforce the Bill of Rights and as such this court may declare the rights of an individual or issue an injunction ands or a conservatory order where necessary to protect the rights of the subject. This court therefore declares that the continued prosecution of the applicant in Milimani CM’s Criminal Case No. 202 of 2025 is unconstitutional and oppressive to the applicant.
10. The court having found the prosecution of the appellant being unconstitutional proceeds to order the immediate withdrawal or termination of all the charges against the applicant/petitioner in Milimani CM’s Case No. 202 of 2025.
11. Lastly, the respondents having admitted the unconstitutionality of the prosecution of the Petitioner/Applicant are hereby prohibited from instituting any further criminal proceedings against the applicant/petitioner in relation to the complaint made by the interested party.
12. It is important that this court makes it clear that where the respondents have determined that the decision to arrest, detain and prosecute the applicant is unconstitutional, it would be against the spirit of Article 157(11) of the Constitution to continue the prosecution for one more day.
13. The case against the Petitioner/Applicant should therefore be immediately terminated since the prosecution has unequivocally admitted by conceding to the application that any further prosecution would be unconstitutional.
14. It is so ordered.
Article s 23(3), 47, 49, 50, and 157(11) of the Constitution of Kenya, the Fair Administrative Action Act, and all enabling provisions of the law sought the following orders: -
i). T HAT this Application be certified urgent and service thereof in the first instance be dispensed with. ( spent).
ii). THAT pending the hearing and determination of this Application/Petition, this Honourable Court be pleased to issue conservatory orders staying any further proceedings in Milimani Criminal Case No. 202 of 2025.
iii). THAT Pending the hearing and determination of this Application/Petition, the Honourable Court be pleased to issue an order restraining the Respondents from arresting, charging, arraigning or prosecuting the Petitioner in connection with the complaint giving rise to the said criminal proceedings.
iv). T HAT an order be issued directing that the original police investigation file and all related documents concerning the prosecution of the Petitioner/Applicant in Mi liman i Chief Magistrate's Criminal Case No.202 of 2025 be transmitted to the 1st Respondent for purposes of an independent review and reconsideration of the decision to charge the Petitioner/Applicant, in accordance with Article 157(11) of the Constitution.
v). THAT the institution of Milimani Criminal Case No.202 of 2025 against the Petitioner is unconstitutional, unlawful, arbitrary, and actuated by malice and bad faith.
vi). T HAT the Respondents' decision to arrest and prosecute the Petitioner was made in violation of Articles 47,49, and 50 of the Constitution and contrary to the Guidelines on the Decision to Charge,2019.
vii). THAT he 1st Respondent do disclose all documentary evidence, correspondence, and internal records or notes upon which the decision to prosecute the Petitioner was made.
viii). A Norder for the immediate withdrawal and termination of all charges against the Petitioner in Milimani Criminal Case No. 202 of 2025.
ix). AN injunction prohibiting the Respondents from instituting any further criminal proceedings against the Petitioner in relation to the complaint made by the Interested Party pending hearing and determination of this Petition.
x). THAT the costs of this Application be awarded to the Petitioner.
2. The application was premised on the following grounds;-
a). The Petitioner was arrested and arraigned in court in under one hour without prior interrogation, recording of a statement, or investigation, in flagrant breach of Articles 47 and 49 of the Constitution.
b). The Petitioner's name does not appear in any of the prosecution witness statements or materials, yet he was inexplicably charged with conspiracy to defraud in Milimani Criminal Case No.202 of 2025.
c). The prosecution was instituted shortly after the Interested Party, who had assaulted and robbed the Petitioner, became the subject of a review by the ODPP with the intent of upgrading charges against him to robbery with violence, suggesting retaliatory motive.
d). The charges brought against the Petitioner are unsupported by evidence and are solely based on the Interested Party's complaint, amounting to an abuse of prosecutorial discretion.
e). The Interested Party has actively manipulated the public narrative through defamatory social media posts to prejudice the Petitioner's constitutional right to a fair trial and human dignity under Article 28.
f). The arrest, detention, and prosecution of the Petitioner was carried out in a manner that was premeditated, oppressive, and designed to achieve collateral purposes namely, silencing the Petitioner's legitimate complaint and shielding the Interested Party from accountability.
g). The Respondents have failed to adhere to the Guidelines on the Decision to Charge (2019), which mandate evidentiary sufficiency and objective, independent investigation prior to instituting criminal charges.
h). The criminal process has been weaponized to intimidate, harass, and ostracize the Petitioner socially and professionally, thereby violating his right to equal protection and benefit of the law as enshrined under Article 27 of the Constitution.
i). The proceedings in Milimani Criminal Case No. 202 of 2025 pose an imminent threat to the Petitioner's liberty, dignity, and economic livelihood, which cannot be remedied by damages and necessitate immediate judicial protection.
k). This Honourable Court has jurisdiction under Articles 22, 23, and 165 of the Constitution to enforce and uphold fundamental rights and to prevent the continuation of proceedings that are ultra vires, malicious, and unconstitutional.
3. The application was supported by the affidavit of ABDIRAZAK KASIM BARE contents of which need not be reproduced verbatim for the simple reason that the application was not opposed by the respondents .
4. This court on the 28 th January 2026 was informed by Ms Ogega counsel for the respondents that they had filed an affidavit in response to the application by way of email. However, on 24 th February 2026 Mr. Mogere prosecution counsel informed the court that he had instructions from the DPP that the matter in the lower court was in the process of being withdrawn and that the grounds of opposition filed by the respondents were to be withdrawn together, with the replying affidavit as they did not intend to oppose the application.
5. Mr. Mugere proceeded to withdraw the grounds of opposition as well the replying affidavit thereby leaving the application unopposed. On that date Mr. Ogado Advocate appeared for the interested party and indicated that they were opposed to the intended withdrawal of documents by the DPP and that they required 7 days within which to file a response to the application.
6. This court granted Mr, Ogado 7 days within which to file a response but as of 22 nd April 2026 the interested party had not filed the intended affidavit and his counsel did not attend court. On 22 nd April 2026 Mr. Kimathi for the applicant pleaded with the court to allow his application since the same was not opposed.
7. The court adjourned the matter and put it off to the 13 th May 2026 to allow the interested party more time in the event that they intended still to be heard by the court. On the 13 th of May the interested party counsel did not attend court and Mr. Kimathi counsel for the applicant urged the court not to delay the matter any further and was supported by Mr. Mugere for the respondents who conceded to the application.
8. The court has considered the application and noted that the applicant has alleged the violation of his rights under Articles 47, 49 and 50 of the Constitution. The High Court under Article 165 of the Constitution has the power to intervene whenever a question of a threat of violation or actual violation of the Constitution is brought to its attention. The applicant has made allegations of breach of his constitutional rights and those allegations have not been rebutted. It follows therefore that the actions complained of are indeed inconsistent and in contravention of the constitution therefore in light of the provisions of Article 165 (2) (d)(ii) this court has no hesitation in allowing the application as presented.
9. Articles 20 and 23 of the Constitution empower this court to uphold and enforce the Bill of Rights and as such this court may declare the rights of an individual or issue an injunction ands or a conservatory order where necessary to protect the rights of the subject. This court therefore declares that the continued prosecution of the applicant in Milimani CM’s Criminal Case No. 202 of 2025 is unconstitutional and oppressive to the applicant.
10. The court having found the prosecution of the appellant being unconstitutional proceeds to order the immediate withdrawal or termination of all the charges against the applicant/petitioner in Milimani CM’s Case No. 202 of 2025.
11. Lastly, the respondents having admitted the unconstitutionality of the prosecution of the Petitioner/Applicant are hereby prohibited from instituting any further criminal proceedings against the applicant/petitioner in relation to the complaint made by the interested party.
12. It is important that this court makes it clear that where the respondents have determined that the decision to arrest, detain and prosecute the applicant is unconstitutional, it would be against the spirit of Article 157(11) of the Constitution to continue the prosecution for one more day.
13. The case against the Petitioner/Applicant should therefore be immediately terminated since the prosecution has unequivocally admitted by conceding to the application that any further prosecution would be unconstitutional.
14. It is so ordered.