A. THE NOTICE OF MOTION DATED 25TH NOVEMBER, 2024.
1. Before me is the notice of motion dated 25th November, 2024, brought pursuant to leave granted by Hon. Lady Justice R.E. Aburili on 21st November, 2024 and presented under Order 53 Rule 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law and seeks the following orders:
a. THAT an order of judicial review by way of certiorari do issue to bring before this court for purposes of its quashing, the decision of the Respondent herein to investigate, recommend to charge, charge and/or seek to charge Amin Ahmed Juneja with the offences of conspiracy to commit a misdemeanor, obtaining registration by false pretences, forcible entry and malicious damage to property contrary to Sections 394, 320, 90 and 339(1) of the Penal Code respectively, all the said charges relating to the title acquired by the Applicant’s deceased wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam being title number Kisumu/Korando/1837 on 17th April, 1989.
b. THAT an order of judicial review by way of prohibition do issue against the Respondent, restraining them from preferring, commencing and/or sustaining any criminal charges against Amin Ahmed Juneja including proceedings in Kisumu MCCR No. E698 of 2022, the Applicant being the registered lawful owner of property title number Kisumu/Korando/1837.
c. THAT the costs of this Application be provided for.
B. THE STATEMENT OF FACTS DATED 15TH NOVEMBER, 2024.
2. The application is premised on the statement of facts dated 15th November, 2024, earlier filed at the leave stage together with the Verifying Affidavit of Amin Ahmed Juneja sworn on even date in support of the application for leave, also dated 15th November, 2024.
3. As is the requirement in law, the statement of facts contains the names and description of the Applicant, the nature of the reliefs sought and the grounds upon which the application is premised, which include the following:
a. The Applicant is the registered proprietor of property title number Kisumu/Korando/1837 having acquired it from his late wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam by way of succession vide Mombasa High Court Succession Cause No. 392 of 2012.
b. The Applicant’s late wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam acquired title to property number Kisumu/Korando/1837 from Dilipkumar Shantilal Patel who is also deceased.
c. The Applicant was initially embroiled in a land dispute with Samuel Meja and William Asudi Meja where judgments in Kisumu ELC Land Case No. 46 of 2013 and the subsequent appeal in Kisumu Court of Appeal Civil Appeal No. 35 of 2018 absolved him, together with his late wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam and his sister-in-law, the late Roshan Iqbal Juneja, from any claims of illegal and/or irregular registration of title to parcel number Kisumu/Korando/1837 in 1989.
d. Despite these findings by the superior courts, the Director of Public Prosecution is seeking to prefer charges against the Applicant alleging fraudulent registration of the Applicant as the owner of title number Kisumu/Korando/1837 that allegedly occurred on 17th April, 1989.
e. The decision of the Director of Public Prosecutions to prefer criminal charges against the Applicant more than thirty-four (34) years later since the subject parcel of land was acquired by his late wife is malicious, unreasonable and at best, an attempt to disentitle the Applicant from his lawfully acquired title, thus in contravention of the Applicant’s constitutionally guaranteed right to property.
f. If the charges are allowed to be sustained, the Applicant will be greatly prejudiced as he shall not be in a position to access witnesses to attest to the transaction which occurred over thirty-four (34) years ago between his wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam who purchased the land, and Dilipkumar Shantilal Patel, the vendor, both of whom are now long deceased.
C. THE APPLICANT’S SUPPORTING AFFIDAVIT SWORN ON 25TH NOVEMBER, 2024 AND THE VERIFYING AFFIDAVIT SWORN ON 15TH NOVEMBER, 2024.
4. The Applicant deposes in the affidavit in support of the motion sworn on 25th November, 2024 that through his Advocates on record, the ex parte application for leave was filed on 15th November, 2024 in Kisumu HCJR No. E032 of 2024 and has annexed thereto copies of the chamber summons, statement of facts, verifying affidavit and the e-filing receipt.
5. The Applicant further deposes that the said chamber summons was considered by the Honourable Court on 21st November, 2024, whereupon leave was granted by Hon. Lady Justice Aburili to institute the substantive notice of motion. He has annexed a copy of the ruling and the resultant court order.
6. The Applicant avers that the present application has been brought in compliance with the directions of the Court and is made in good faith, and therefore deserves consideration in terms of the prayers sought therein. He further avers that it is in the interest of justice that the reliefs sought be granted for the protection of his constitutional rights, which have been infringed upon by the Respondent.
7. In the annexed verifying affidavit, the Applicant deposes that he is the registered proprietor of land parcel number Kisumu/Korando/1837, having acquired the same through succession from his late wife pursuant to Mombasa High Court Succession Cause No. E392 of 2012, and has to that end annexed copies of the certificate of confirmation of grant dated 6th August, 2024 and the title deed dated 18th September, 2024 marked “AAJ1(a) & (b)”. He further states that his late wife had originally acquired the property from Dilipkumar Shantilal Patel on or about 17th April, 1989, and has annexed a copy of the title deed marked “AAJ-2”.
8. The Applicant deposes that the original title deed was lost and a replacement was issued on 16th April, 2012 after due process at the Kisumu Lands Registry, and has annexed copies of the replacement title deed and the gazette notice marked “AAJ-3(a) & (b)”. He has further annexed to his affidavit a copy of the death certificate of his late wife, who passed away on 25th October, 1996, marked “AAJ-4”, and states that he has been informed that the said Dilipkumar Shantilal Patel is also deceased.
9. The Applicant further deposes that he was involved in a land dispute with Samuel Meja and William Asudi Meja, which was conclusively determined in his favour in Kisumu ELC Land Case No. 46 of 2013 and on appeal in Kisumu Court of Appeal Civil Appeal No. 35 of 2018. He has annexed copies of the said judgements marked “AAJ-5(a) & (b)”, which he states upheld the legality of the registration of the suit property and absolved him and his late wife from any wrongdoing.
10. The Applicant contends that notwithstanding the said determinations and the absence of any further appeal, the Respondent has preferred criminal charges against him alleging fraudulent registration of the title dating back to 17th April, 1989. The Applicant has annexed a copy of the charge sheet marked “AAJ-6”. He contends that the decision to institute the said charges more than thirty-four (34) years after the acquisition of the property, and after final judicial pronouncements on the matter, is unreasonable, malicious and unlawful.
11. The Applicant further deposes that he is likely to suffer great prejudice if the charges are sustained, as key witnesses, including his late wife and the original vendor of the property, are deceased, making it difficult to secure evidence after such a long lapse of time. He states that he was directed on 23rd October, 2024 to appear in court on 27th November, 2024 for plea taking in Kisumu MCCR No. E698 of 2022. He expresses apprehension that the intended prosecution is aimed at manipulating, subduing and coercing him into surrendering his lawfully acquired property in violation of his constitutional rights. He further deposes that he is an elderly person aged seventy-five (75) years and is in poor health, suffering from a heart condition.
12. The Applicant concludes by stating that unless the Court grants the orders sought, including a stay of the intended criminal proceedings, he is likely to suffer irreparable loss and prejudice not compensable in damages, thereby rendering the application nugatory, and that it is in the interest of justice that the reliefs sought be granted.
D. THE REPLYING AFFIDAVIT SWORN BY CORPORAL VICTOR KORIR ON 4TH MAY, 2025.
13. The application is resisted by the Respondent, who to that end filed a replying affidavit sworn by Corporal Victor Korir, a police officer attached to the Directorate of Criminal Investigations, Kisumu, the investigating officer in the criminal case.
14. In his affidavit sworn on 4th May, 2025, Corporal Korir deposes that investigations in the criminal case were commenced following a complaint relating to Land Parcel Number Kisumu/Korando/1837, which was alleged to have been fraudulently acquired through manipulation of land registration documents after the death of the registered owner, Hamida Amin Ahmed, and has annexed a copy of the crime and incident report dated 1st September, 2022 marked “VK-1”.
15. The officer deposes that the Applicant was implicated in orchestrating and benefiting from the alleged fraudulent acquisition, which involved the use of falsified documents to secure registration and forceful occupation of the land. He further deposes that upon conclusion of investigations, an inquiry file was prepared and forwarded to the Office of the Director of Public Prosecutions for independent review. He has annexed a copy of the forwarding letter dated 26th May, 2022 marked “VK-2”.
16. Corporal Korir states that the Director of Public Prosecutions, upon reviewing the file, directed that the Applicant be charged with offences including conspiracy to commit a misdemeanor, obtaining registration by false pretences, forcible entry and malicious damage to property, and has to that end annexed a letter dated 7th June, 2022 marked “VK-3”.
17. The investigator deposes that following the said directions, a formal instruction, annexed as “VK-4” was issued by the County Criminal Investigations Office directing that the Applicant be charged accordingly and that a charge sheet (Annexture “VK-5”) was subsequently prepared and the Applicant charged in Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022.
18. The officer avers that all investigative actions were conducted lawfully, professionally, fairly and without malice, ill-will or abuse of authority.
19. Corporal Korir contends that the present judicial review application misconstrues the jurisdiction of the Court, as it seeks to challenge the merits and evidentiary basis of the charges, which fall within the mandate of the trial court. He further avers that the discretion to institute criminal proceedings is constitutionally vested in the Respondent under Article 157 of the Constitution and may only be interfered with upon proof of illegality, irrationality or procedural impropriety, none of which has been demonstrated.
20. Corporal Korir deposes that the pending criminal trial provides the Applicant with an adequate forum to defend himself and to challenge the charges while enjoying all constitutional guarantees, including the right to a fair hearing.
21. In conclusion, the officer avers that the application is devoid of merit, constitutes a collateral attack on prosecutorial discretion and is intended to circumvent the due process of the criminal trial, and urges the Court to dismiss it with costs.
22. The application was canvassed by way of written submissions.
E. THE APPLICANT’S SUBMISSIONS.
23. In his submissions, the Applicant submits that the application is anchored on the statement of facts, the verifying affidavit and the supporting, the contents of which I have addressed above, and relates to ownership of land parcel number Kisumu/Korando/1837, which he states was lawfully acquired through succession from his late wife, Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam, pursuant to Mombasa High Court Succession Cause No. 392 of 2012, following her demise on 25th October, 1996.
24. The Applicant further submits that the said property was originally acquired by the Applicant’s late wife from Dilipkumar Shantilal Patel on or about 17th April, 1989, who is also believed to be deceased, and that the chain of ownership is properly documented through title records and succession proceedings.
25. The Applicant submits that following the demise of his wife, he was involved in litigation over the suit property in Kisumu ELC Land Case No. 46 of 2013 and Kisumu Court of Appeal Civil Appeal No. 35 of 2018, where the superior courts upheld the legality of the acquisition and registration of the property and affirmed the proprietary rights arising therefrom and that despite these determinations, the Director of Public Prosecutions has instituted criminal proceedings in Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022 alleging fraudulent acquisition of the property dating back to 17th April, 1989, which the Applicant contends is unjustified.
26. The Applicant submits that the Respondent’s actions amount to an abuse of prosecutorial discretion, are irrational, malicious and intended to coerce him into surrendering his lawfully acquired property, thereby necessitating judicial review intervention. He further contends that the Respondents and Interested Parties had not filed responses at the time of filing submissions.
27. The Applicant frames the issues for determination as whether he lawfully acquired the suit property, whether he is entitled to orders of certiorari and prohibition, and who should bear the costs.
28. On the first issue, it is submitted that ownership is established through succession proceedings supported by the certificate of confirmation of grant, title documents and the death certificate of the deceased proprietor. He asserts that the chain of title is unbroken and that no challenge has been made to the succession grant. He relies on the case of Municipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No. 185 of 2007 (2002) eKLR, where the Court of Appeal stated as follows:
“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether there was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review.”
29. The Applicant further relies on Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300, where the Court held as follows:
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality. Irrationality is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the rules of natural justice or to act with procedural fairness towards the person affected by the decision.”
30. The Applicant submits that despite final determinations by superior courts, the Respondent has instituted criminal proceedings over the same subject matter, which is alleged to have arisen over 34 years ago, and involving deceased persons, thereby rendering the prosecution irrational and oppressive.
31. The Applicant further submits that the continuation of criminal proceedings violates his constitutional rights under Articles 40 and 50 of the Constitution, particularly his right to property and fair hearing. He relies on the authority of Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others, Civil Appeal No. 266 of 1996 [1997] eKLR, where the Court observed as follows:
“An order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice.”
32. On costs, reliance is placed on Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR, where the Court held that the basic rule on attribution of costs is that costs follow the event.
33. In conclusion, the Applicant submits that he has demonstrated sufficient grounds for the grant of the orders sought and urges this Court to allow the notice of motion with costs.
F. THE RESPONDENT’S SUBMISSIONS.
34. The Respondent opposes the Applicant’s motion seeking orders of certiorari and prohibition directed at the Director of Public Prosecutions in respect of Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022. It is submitted that the application is an abuse of the judicial review jurisdiction as it seeks to restrain a constitutionally mandated prosecution founded on credible evidence of conspiracy to commit a misdemeanour under Section 394 of the Penal Code, obtaining registration by false pretences under Section 320, forcible entry under Section 90 and malicious damage to property under Section 339(1), all relating to Land Parcel No. Kisumu/Korando/1837.
35. The Respondent’s case is anchored on the history of litigation over the suit property, which has already been conclusively determined by superior courts. The Respondent urges that the Environment and Land Court in ELC Case No. 46 of 2013 and the Court of Appeal in Civil Appeal No. 35 of 2018 found that the Applicant’s root of title was irregular, unlawful and tainted with fraud and statutory non-compliance and that the Respondents had acquired rights through long occupation and adverse possession.
36. The Respondent submits that in ELC No. 46 of 2013, the Court expressly found that:
“The Plaintiffs did not avail the adjudication register, the demarcation map or any supporting documentation to show that the said Dilipkumar Shantilal Patel was lawfully registered as proprietor.”
37. The Court, the Respondent submits, further held that:
“This transaction lacked Land Control Board consent as required under sections 6 and 8 of the Land Control Act, and was therefore null and void.”
38. The Respondent proffers the position that it was on that basis, the suit was dismissed in its entirety.
39. The Respondent further submits that the Court went on to find that the Applicant’s claim over part of the land was statute-barred, holding that the Respondents had been in occupation for approximately 24 years, and concluded that the claim was extinguished under Sections 7 and 17 of the Limitation of Actions Act.
40. The Respondent submits that on appeal, in Civil Appeal No. 35 of 2018, the Court of Appeal upheld the ELC decision in its entirety and confirmed the illegality of the Applicant’s claim. The Respondent refers the Court to the judgement, where the appellate Court stated:
“In my view, the Learned Trial Judge’s finding that there was lack of Land Control Board Consent, does, in the particular circumstances of this case, provide an additional ground confirming that the Appellant did not establish their claim on a balance of probabilities.”
41. It is submitted further that the Court of Appeal further rejected the Applicant’s argument that the land was “unadjudicated”, where the Court stated:
“By making the argument that they bought unadjudicated land from Patel and that, therefore, they did not require Land Control Board consent, the Appellants only jump from the frying pan into the fire.”
42. The Respondent urges that the Court of Appeal clarified the factual position, stating:
“It is not in doubt that the suit land was undergoing adjudication by 1984.”
43. The Court, in the Respondent’s view, therefore found that statutory procedures under the Land Adjudication Act applied and were not complied with.
44. The Respondent further submits that the Court of Appeal further identified evidentiary and procedural defects in the Applicant’s case par, whereby it noted contradictions regarding the existence of a sale agreement and further faulted the failure to join Patel, the alleged transferor, as a necessary party. These deficiencies, in the Respondent’s submissions, reinforced the Court’s conclusion that the claim was not proved on a balance of probabilities.
45. The Respondent further relies on the same judgment where it submits that the Land Registrar confirmed irregularities in the registration process, including missing adjudication records and inconsistencies in transfer documentation, noting that critical adjudication materials such as the demarcation register were unavailable.
46. On limitation and adverse possession, the Respondent invites this court to consider the judgement in ELC No. 46 of 2013 where the Court held that:
“By the time the Plaintiffs filed their claim… the 1st Defendant had resided on the lower part of the suit property for about 24 years.”
47. The Court, as per the Respondent’s submissions, concluded that:
“The Plaintiffs claim… is statute time-barred under section 7 of the Limitation of Actions Act… and their title… extinguished pursuant to Section 17 of the said Act.”
48. The Respondent further states that the Court of Appeal reinforced the doctrine of adverse possession, stating:
“If a land owner allows another person to continue trespassing on her property – openly, notoriously, exclusively and in a mode adverse to the ownership rights of the owner for an uninterrupted period of more than 12 years the trespasser acquires legal title.”
49. The Respondent submits that the Applicant’s title is therefore impeachable under Section 26(1)(a) and (b) of the Land Registration Act, which allows a title to be challenged where it is obtained by fraud, misrepresentation, illegality or unprocedural acquisition, and is further excluded from protection under Article 40(6) of the Constitution.
50. The Respondent relies on the principle of nullity as stated in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, where Lord Denning stated:
“If an act is void then it is in law a nullity… You cannot put something on nothing and expect it to stand – it will collapse.”
51. The Respondent further relies on the authority of Kipkobel Arap Misoi v Proscila Chepkorir [2016] eKLR, where the Court held that the Land Adjudication Act sets out a mandatory process, stating:
“The process does not permit any omission of any procedural step… Otherwise the process would be rendered superfluous. The procedure must be honoured.”
52. The Respondent further relies on the decision of Henry Muthee Kathurima v Commissioner of Lands & Another [2015] eKLR, where the Court of Appeal held that:
“Article 40(6) clearly stipulates that the right to property does not extend to property that has been found to have been unlawfully acquired……….estoppels cannot be used as a shield to protect unlawfully acquired property….and cannot override express statutory procedures.”
53. The Respondent submits that the Applicant’s reliance on registration under the Registered Land Act cannot cure illegality where statutory requirements under the Land Control Act and Land Adjudication Act were not met, rendering the entire root of title defective ab initio.
54. On the criminal aspect, the Respondent relies on the replying affidavit of Corporal Korir which details that on 6th November, 2021 the Applicant allegedly forcibly entered the suit land, accompanied by hired persons, dumped murram, destroyed crops, cut trees and damaged structures belonging to the Meja family.
55. The Respondent submits that these acts constitute forcible entry under Section 90 of the Penal Code and malicious damage to property under Section 339(1) of the same statute. The Applicant, submits the Respondent, had no lawful right of entry, particularly in light of the Court of Appeal’s finding that adverse possession had already matured.
56. The Respondent further submits that after losing in both superior courts and following the demise of his wife, the Applicant obtained a fresh title through Mombasa High Court Succession Cause No. E392 of 2012, despite the prior judicial findings against him. This conduct, according to the Respondent, amounts to manipulation of judicial process and forms the basis of conspiracy to commit a misdemeanour under Section 394 of the Penal Code.
57. On prosecutorial discretion, the Respondent relies on the decision of Jirongo v Soy Developers Ltd & 9 Others (2021) KESC 32, where the Supreme Court held that:
“The DPP is mandated to institute and undertake criminal proceedings against any person before any court.”
58. The Respondent submits that the Supreme Court further emphasized that prosecutorial independence is subject to Article 157(11) of the Constitution, requiring regard to public interest and prevention of abuse of process. The Respondent further states that the Court in Jirongo further held that where Article 157(11) is not met, the High Court may intervene under Article 165(3)(d)(ii), but only in appropriate cases.
59. The Respondent further places reliance on the case of Midlands Limited & 2 Others v DPP & 7 Others [2015] eKLR, adopting Matalulu v DPP [2003] 4 LRC 712, where the Court held that interference with prosecutorial discretion is permissible only where it is exercised “in bad faith, for example dishonesty,” or “in abuse of the process of the court,” or where the DPP acts under direction or fetters discretion.
60. Further reliance is placed on the decision of RP Kapur v State of Punjab AIR 1960 SC 866, in which the Court held that proceedings may be quashed where “the allegations do not constitute the offence alleged”, or where there is a legal bar, or where evidence is wholly insufficient.
61. The Respondent further refers this Court to the authority of Pastoli v Kabale District Local Government Council (2008) 2 EA 300, in which the Court defined illegality as action taken “contrary to law or outside jurisdiction,” irrationality as decisions that no reasonable authority would make, and procedural impropriety as failure to comply with natural justice or statutory procedure.
62. Reliance was also placed by the Respondent on the case of Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876, in which the Court emphasized that procedural impropriety includes failure to observe statutory procedures and fairness in administrative action.
63. The Respondent also invited the Court to consider the decision of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (2016) KLR, where the Court of Appeal held that judicial review under Article 47 includes “an implicit shift… to include aspects of merit review of administrative action,” though courts must not substitute their own decision.
64. The Respondent submits that the Applicant has not demonstrated illegality, irrationality, procedural impropriety, bad faith or abuse of process. On the contrary, the Respondent urges that the prosecution is supported by evidence, prior judicial findings, statutory violations and acts of self-help.
65. The Respondent therefore submits that the application is an abuse of the court process intended to delay and frustrate a lawful criminal trial, and urges the Court to dismiss it with costs and allow Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022 to proceed to its logical conclusion.
G. ISSUES FOR DETERMINATION.
66. From the pleadings, affidavits, submissions and the nature of the reliefs sought, the following issues arise for this court’s consideration and determination:
a. Whether this Court is properly moved by way of judicial review proceedings, or whether the dispute ought to have been commenced by way of a constitutional petition.
b. Whether judicial review jurisdiction is limited to the process of decision-making, or whether it can extend to the merits of the decision under challenge.
c. Whether the Respondent’s decision to investigate and prosecute the Applicant is tainted with illegality, irrationality, procedural impropriety or abuse of process.
d. Whether the orders of certiorari and prohibition are available in the circumstances of this case.
e. What orders should issue as to costs.
H. ANALYSIS AND FINDINGS.
67. I will proceed to address and determine the issues seriatim.
68. The first issue for determination is whether the Applicant’s grievances are properly before this Court b
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1. Before me is the notice of motion dated 25th November, 2024, brought pursuant to leave granted by Hon. Lady Justice R.E. Aburili on 21st November, 2024 and presented under Order 53 Rule 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law and seeks the following orders:
a. THAT an order of judicial review by way of certiorari do issue to bring before this court for purposes of its quashing, the decision of the Respondent herein to investigate, recommend to charge, charge and/or seek to charge Amin Ahmed Juneja with the offences of conspiracy to commit a misdemeanor, obtaining registration by false pretences, forcible entry and malicious damage to property contrary to Sections 394, 320, 90 and 339(1) of the Penal Code respectively, all the said charges relating to the title acquired by the Applicant’s deceased wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam being title number Kisumu/Korando/1837 on 17th April, 1989.
b. THAT an order of judicial review by way of prohibition do issue against the Respondent, restraining them from preferring, commencing and/or sustaining any criminal charges against Amin Ahmed Juneja including proceedings in Kisumu MCCR No. E698 of 2022, the Applicant being the registered lawful owner of property title number Kisumu/Korando/1837.
c. THAT the costs of this Application be provided for.
B. THE STATEMENT OF FACTS DATED 15TH NOVEMBER, 2024.
2. The application is premised on the statement of facts dated 15th November, 2024, earlier filed at the leave stage together with the Verifying Affidavit of Amin Ahmed Juneja sworn on even date in support of the application for leave, also dated 15th November, 2024.
3. As is the requirement in law, the statement of facts contains the names and description of the Applicant, the nature of the reliefs sought and the grounds upon which the application is premised, which include the following:
a. The Applicant is the registered proprietor of property title number Kisumu/Korando/1837 having acquired it from his late wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam by way of succession vide Mombasa High Court Succession Cause No. 392 of 2012.
b. The Applicant’s late wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam acquired title to property number Kisumu/Korando/1837 from Dilipkumar Shantilal Patel who is also deceased.
c. The Applicant was initially embroiled in a land dispute with Samuel Meja and William Asudi Meja where judgments in Kisumu ELC Land Case No. 46 of 2013 and the subsequent appeal in Kisumu Court of Appeal Civil Appeal No. 35 of 2018 absolved him, together with his late wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam and his sister-in-law, the late Roshan Iqbal Juneja, from any claims of illegal and/or irregular registration of title to parcel number Kisumu/Korando/1837 in 1989.
d. Despite these findings by the superior courts, the Director of Public Prosecution is seeking to prefer charges against the Applicant alleging fraudulent registration of the Applicant as the owner of title number Kisumu/Korando/1837 that allegedly occurred on 17th April, 1989.
e. The decision of the Director of Public Prosecutions to prefer criminal charges against the Applicant more than thirty-four (34) years later since the subject parcel of land was acquired by his late wife is malicious, unreasonable and at best, an attempt to disentitle the Applicant from his lawfully acquired title, thus in contravention of the Applicant’s constitutionally guaranteed right to property.
f. If the charges are allowed to be sustained, the Applicant will be greatly prejudiced as he shall not be in a position to access witnesses to attest to the transaction which occurred over thirty-four (34) years ago between his wife Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam who purchased the land, and Dilipkumar Shantilal Patel, the vendor, both of whom are now long deceased.
C. THE APPLICANT’S SUPPORTING AFFIDAVIT SWORN ON 25TH NOVEMBER, 2024 AND THE VERIFYING AFFIDAVIT SWORN ON 15TH NOVEMBER, 2024.
4. The Applicant deposes in the affidavit in support of the motion sworn on 25th November, 2024 that through his Advocates on record, the ex parte application for leave was filed on 15th November, 2024 in Kisumu HCJR No. E032 of 2024 and has annexed thereto copies of the chamber summons, statement of facts, verifying affidavit and the e-filing receipt.
5. The Applicant further deposes that the said chamber summons was considered by the Honourable Court on 21st November, 2024, whereupon leave was granted by Hon. Lady Justice Aburili to institute the substantive notice of motion. He has annexed a copy of the ruling and the resultant court order.
6. The Applicant avers that the present application has been brought in compliance with the directions of the Court and is made in good faith, and therefore deserves consideration in terms of the prayers sought therein. He further avers that it is in the interest of justice that the reliefs sought be granted for the protection of his constitutional rights, which have been infringed upon by the Respondent.
7. In the annexed verifying affidavit, the Applicant deposes that he is the registered proprietor of land parcel number Kisumu/Korando/1837, having acquired the same through succession from his late wife pursuant to Mombasa High Court Succession Cause No. E392 of 2012, and has to that end annexed copies of the certificate of confirmation of grant dated 6th August, 2024 and the title deed dated 18th September, 2024 marked “AAJ1(a) & (b)”. He further states that his late wife had originally acquired the property from Dilipkumar Shantilal Patel on or about 17th April, 1989, and has annexed a copy of the title deed marked “AAJ-2”.
8. The Applicant deposes that the original title deed was lost and a replacement was issued on 16th April, 2012 after due process at the Kisumu Lands Registry, and has annexed copies of the replacement title deed and the gazette notice marked “AAJ-3(a) & (b)”. He has further annexed to his affidavit a copy of the death certificate of his late wife, who passed away on 25th October, 1996, marked “AAJ-4”, and states that he has been informed that the said Dilipkumar Shantilal Patel is also deceased.
9. The Applicant further deposes that he was involved in a land dispute with Samuel Meja and William Asudi Meja, which was conclusively determined in his favour in Kisumu ELC Land Case No. 46 of 2013 and on appeal in Kisumu Court of Appeal Civil Appeal No. 35 of 2018. He has annexed copies of the said judgements marked “AAJ-5(a) & (b)”, which he states upheld the legality of the registration of the suit property and absolved him and his late wife from any wrongdoing.
10. The Applicant contends that notwithstanding the said determinations and the absence of any further appeal, the Respondent has preferred criminal charges against him alleging fraudulent registration of the title dating back to 17th April, 1989. The Applicant has annexed a copy of the charge sheet marked “AAJ-6”. He contends that the decision to institute the said charges more than thirty-four (34) years after the acquisition of the property, and after final judicial pronouncements on the matter, is unreasonable, malicious and unlawful.
11. The Applicant further deposes that he is likely to suffer great prejudice if the charges are sustained, as key witnesses, including his late wife and the original vendor of the property, are deceased, making it difficult to secure evidence after such a long lapse of time. He states that he was directed on 23rd October, 2024 to appear in court on 27th November, 2024 for plea taking in Kisumu MCCR No. E698 of 2022. He expresses apprehension that the intended prosecution is aimed at manipulating, subduing and coercing him into surrendering his lawfully acquired property in violation of his constitutional rights. He further deposes that he is an elderly person aged seventy-five (75) years and is in poor health, suffering from a heart condition.
12. The Applicant concludes by stating that unless the Court grants the orders sought, including a stay of the intended criminal proceedings, he is likely to suffer irreparable loss and prejudice not compensable in damages, thereby rendering the application nugatory, and that it is in the interest of justice that the reliefs sought be granted.
D. THE REPLYING AFFIDAVIT SWORN BY CORPORAL VICTOR KORIR ON 4TH MAY, 2025.
13. The application is resisted by the Respondent, who to that end filed a replying affidavit sworn by Corporal Victor Korir, a police officer attached to the Directorate of Criminal Investigations, Kisumu, the investigating officer in the criminal case.
14. In his affidavit sworn on 4th May, 2025, Corporal Korir deposes that investigations in the criminal case were commenced following a complaint relating to Land Parcel Number Kisumu/Korando/1837, which was alleged to have been fraudulently acquired through manipulation of land registration documents after the death of the registered owner, Hamida Amin Ahmed, and has annexed a copy of the crime and incident report dated 1st September, 2022 marked “VK-1”.
15. The officer deposes that the Applicant was implicated in orchestrating and benefiting from the alleged fraudulent acquisition, which involved the use of falsified documents to secure registration and forceful occupation of the land. He further deposes that upon conclusion of investigations, an inquiry file was prepared and forwarded to the Office of the Director of Public Prosecutions for independent review. He has annexed a copy of the forwarding letter dated 26th May, 2022 marked “VK-2”.
16. Corporal Korir states that the Director of Public Prosecutions, upon reviewing the file, directed that the Applicant be charged with offences including conspiracy to commit a misdemeanor, obtaining registration by false pretences, forcible entry and malicious damage to property, and has to that end annexed a letter dated 7th June, 2022 marked “VK-3”.
17. The investigator deposes that following the said directions, a formal instruction, annexed as “VK-4” was issued by the County Criminal Investigations Office directing that the Applicant be charged accordingly and that a charge sheet (Annexture “VK-5”) was subsequently prepared and the Applicant charged in Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022.
18. The officer avers that all investigative actions were conducted lawfully, professionally, fairly and without malice, ill-will or abuse of authority.
19. Corporal Korir contends that the present judicial review application misconstrues the jurisdiction of the Court, as it seeks to challenge the merits and evidentiary basis of the charges, which fall within the mandate of the trial court. He further avers that the discretion to institute criminal proceedings is constitutionally vested in the Respondent under Article 157 of the Constitution and may only be interfered with upon proof of illegality, irrationality or procedural impropriety, none of which has been demonstrated.
20. Corporal Korir deposes that the pending criminal trial provides the Applicant with an adequate forum to defend himself and to challenge the charges while enjoying all constitutional guarantees, including the right to a fair hearing.
21. In conclusion, the officer avers that the application is devoid of merit, constitutes a collateral attack on prosecutorial discretion and is intended to circumvent the due process of the criminal trial, and urges the Court to dismiss it with costs.
22. The application was canvassed by way of written submissions.
E. THE APPLICANT’S SUBMISSIONS.
23. In his submissions, the Applicant submits that the application is anchored on the statement of facts, the verifying affidavit and the supporting, the contents of which I have addressed above, and relates to ownership of land parcel number Kisumu/Korando/1837, which he states was lawfully acquired through succession from his late wife, Hamida Amin Ahmed alias Hamida Amin Juneja alias Hamida Hassan Adam, pursuant to Mombasa High Court Succession Cause No. 392 of 2012, following her demise on 25th October, 1996.
24. The Applicant further submits that the said property was originally acquired by the Applicant’s late wife from Dilipkumar Shantilal Patel on or about 17th April, 1989, who is also believed to be deceased, and that the chain of ownership is properly documented through title records and succession proceedings.
25. The Applicant submits that following the demise of his wife, he was involved in litigation over the suit property in Kisumu ELC Land Case No. 46 of 2013 and Kisumu Court of Appeal Civil Appeal No. 35 of 2018, where the superior courts upheld the legality of the acquisition and registration of the property and affirmed the proprietary rights arising therefrom and that despite these determinations, the Director of Public Prosecutions has instituted criminal proceedings in Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022 alleging fraudulent acquisition of the property dating back to 17th April, 1989, which the Applicant contends is unjustified.
26. The Applicant submits that the Respondent’s actions amount to an abuse of prosecutorial discretion, are irrational, malicious and intended to coerce him into surrendering his lawfully acquired property, thereby necessitating judicial review intervention. He further contends that the Respondents and Interested Parties had not filed responses at the time of filing submissions.
27. The Applicant frames the issues for determination as whether he lawfully acquired the suit property, whether he is entitled to orders of certiorari and prohibition, and who should bear the costs.
28. On the first issue, it is submitted that ownership is established through succession proceedings supported by the certificate of confirmation of grant, title documents and the death certificate of the deceased proprietor. He asserts that the chain of title is unbroken and that no challenge has been made to the succession grant. He relies on the case of Municipal Council of Mombasa v Republic, Umoja Consultants Ltd, Nairobi Civil Appeal No. 185 of 2007 (2002) eKLR, where the Court of Appeal stated as follows:
“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether there was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review.”
29. The Applicant further relies on Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300, where the Court held as follows:
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality. Irrationality is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the rules of natural justice or to act with procedural fairness towards the person affected by the decision.”
30. The Applicant submits that despite final determinations by superior courts, the Respondent has instituted criminal proceedings over the same subject matter, which is alleged to have arisen over 34 years ago, and involving deceased persons, thereby rendering the prosecution irrational and oppressive.
31. The Applicant further submits that the continuation of criminal proceedings violates his constitutional rights under Articles 40 and 50 of the Constitution, particularly his right to property and fair hearing. He relies on the authority of Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others, Civil Appeal No. 266 of 1996 [1997] eKLR, where the Court observed as follows:
“An order of prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice.”
32. On costs, reliance is placed on Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR, where the Court held that the basic rule on attribution of costs is that costs follow the event.
33. In conclusion, the Applicant submits that he has demonstrated sufficient grounds for the grant of the orders sought and urges this Court to allow the notice of motion with costs.
F. THE RESPONDENT’S SUBMISSIONS.
34. The Respondent opposes the Applicant’s motion seeking orders of certiorari and prohibition directed at the Director of Public Prosecutions in respect of Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022. It is submitted that the application is an abuse of the judicial review jurisdiction as it seeks to restrain a constitutionally mandated prosecution founded on credible evidence of conspiracy to commit a misdemeanour under Section 394 of the Penal Code, obtaining registration by false pretences under Section 320, forcible entry under Section 90 and malicious damage to property under Section 339(1), all relating to Land Parcel No. Kisumu/Korando/1837.
35. The Respondent’s case is anchored on the history of litigation over the suit property, which has already been conclusively determined by superior courts. The Respondent urges that the Environment and Land Court in ELC Case No. 46 of 2013 and the Court of Appeal in Civil Appeal No. 35 of 2018 found that the Applicant’s root of title was irregular, unlawful and tainted with fraud and statutory non-compliance and that the Respondents had acquired rights through long occupation and adverse possession.
36. The Respondent submits that in ELC No. 46 of 2013, the Court expressly found that:
“The Plaintiffs did not avail the adjudication register, the demarcation map or any supporting documentation to show that the said Dilipkumar Shantilal Patel was lawfully registered as proprietor.”
37. The Court, the Respondent submits, further held that:
“This transaction lacked Land Control Board consent as required under sections 6 and 8 of the Land Control Act, and was therefore null and void.”
38. The Respondent proffers the position that it was on that basis, the suit was dismissed in its entirety.
39. The Respondent further submits that the Court went on to find that the Applicant’s claim over part of the land was statute-barred, holding that the Respondents had been in occupation for approximately 24 years, and concluded that the claim was extinguished under Sections 7 and 17 of the Limitation of Actions Act.
40. The Respondent submits that on appeal, in Civil Appeal No. 35 of 2018, the Court of Appeal upheld the ELC decision in its entirety and confirmed the illegality of the Applicant’s claim. The Respondent refers the Court to the judgement, where the appellate Court stated:
“In my view, the Learned Trial Judge’s finding that there was lack of Land Control Board Consent, does, in the particular circumstances of this case, provide an additional ground confirming that the Appellant did not establish their claim on a balance of probabilities.”
41. It is submitted further that the Court of Appeal further rejected the Applicant’s argument that the land was “unadjudicated”, where the Court stated:
“By making the argument that they bought unadjudicated land from Patel and that, therefore, they did not require Land Control Board consent, the Appellants only jump from the frying pan into the fire.”
42. The Respondent urges that the Court of Appeal clarified the factual position, stating:
“It is not in doubt that the suit land was undergoing adjudication by 1984.”
43. The Court, in the Respondent’s view, therefore found that statutory procedures under the Land Adjudication Act applied and were not complied with.
44. The Respondent further submits that the Court of Appeal further identified evidentiary and procedural defects in the Applicant’s case par, whereby it noted contradictions regarding the existence of a sale agreement and further faulted the failure to join Patel, the alleged transferor, as a necessary party. These deficiencies, in the Respondent’s submissions, reinforced the Court’s conclusion that the claim was not proved on a balance of probabilities.
45. The Respondent further relies on the same judgment where it submits that the Land Registrar confirmed irregularities in the registration process, including missing adjudication records and inconsistencies in transfer documentation, noting that critical adjudication materials such as the demarcation register were unavailable.
46. On limitation and adverse possession, the Respondent invites this court to consider the judgement in ELC No. 46 of 2013 where the Court held that:
“By the time the Plaintiffs filed their claim… the 1st Defendant had resided on the lower part of the suit property for about 24 years.”
47. The Court, as per the Respondent’s submissions, concluded that:
“The Plaintiffs claim… is statute time-barred under section 7 of the Limitation of Actions Act… and their title… extinguished pursuant to Section 17 of the said Act.”
48. The Respondent further states that the Court of Appeal reinforced the doctrine of adverse possession, stating:
“If a land owner allows another person to continue trespassing on her property – openly, notoriously, exclusively and in a mode adverse to the ownership rights of the owner for an uninterrupted period of more than 12 years the trespasser acquires legal title.”
49. The Respondent submits that the Applicant’s title is therefore impeachable under Section 26(1)(a) and (b) of the Land Registration Act, which allows a title to be challenged where it is obtained by fraud, misrepresentation, illegality or unprocedural acquisition, and is further excluded from protection under Article 40(6) of the Constitution.
50. The Respondent relies on the principle of nullity as stated in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, where Lord Denning stated:
“If an act is void then it is in law a nullity… You cannot put something on nothing and expect it to stand – it will collapse.”
51. The Respondent further relies on the authority of Kipkobel Arap Misoi v Proscila Chepkorir [2016] eKLR, where the Court held that the Land Adjudication Act sets out a mandatory process, stating:
“The process does not permit any omission of any procedural step… Otherwise the process would be rendered superfluous. The procedure must be honoured.”
52. The Respondent further relies on the decision of Henry Muthee Kathurima v Commissioner of Lands & Another [2015] eKLR, where the Court of Appeal held that:
“Article 40(6) clearly stipulates that the right to property does not extend to property that has been found to have been unlawfully acquired……….estoppels cannot be used as a shield to protect unlawfully acquired property….and cannot override express statutory procedures.”
53. The Respondent submits that the Applicant’s reliance on registration under the Registered Land Act cannot cure illegality where statutory requirements under the Land Control Act and Land Adjudication Act were not met, rendering the entire root of title defective ab initio.
54. On the criminal aspect, the Respondent relies on the replying affidavit of Corporal Korir which details that on 6th November, 2021 the Applicant allegedly forcibly entered the suit land, accompanied by hired persons, dumped murram, destroyed crops, cut trees and damaged structures belonging to the Meja family.
55. The Respondent submits that these acts constitute forcible entry under Section 90 of the Penal Code and malicious damage to property under Section 339(1) of the same statute. The Applicant, submits the Respondent, had no lawful right of entry, particularly in light of the Court of Appeal’s finding that adverse possession had already matured.
56. The Respondent further submits that after losing in both superior courts and following the demise of his wife, the Applicant obtained a fresh title through Mombasa High Court Succession Cause No. E392 of 2012, despite the prior judicial findings against him. This conduct, according to the Respondent, amounts to manipulation of judicial process and forms the basis of conspiracy to commit a misdemeanour under Section 394 of the Penal Code.
57. On prosecutorial discretion, the Respondent relies on the decision of Jirongo v Soy Developers Ltd & 9 Others (2021) KESC 32, where the Supreme Court held that:
“The DPP is mandated to institute and undertake criminal proceedings against any person before any court.”
58. The Respondent submits that the Supreme Court further emphasized that prosecutorial independence is subject to Article 157(11) of the Constitution, requiring regard to public interest and prevention of abuse of process. The Respondent further states that the Court in Jirongo further held that where Article 157(11) is not met, the High Court may intervene under Article 165(3)(d)(ii), but only in appropriate cases.
59. The Respondent further places reliance on the case of Midlands Limited & 2 Others v DPP & 7 Others [2015] eKLR, adopting Matalulu v DPP [2003] 4 LRC 712, where the Court held that interference with prosecutorial discretion is permissible only where it is exercised “in bad faith, for example dishonesty,” or “in abuse of the process of the court,” or where the DPP acts under direction or fetters discretion.
60. Further reliance is placed on the decision of RP Kapur v State of Punjab AIR 1960 SC 866, in which the Court held that proceedings may be quashed where “the allegations do not constitute the offence alleged”, or where there is a legal bar, or where evidence is wholly insufficient.
61. The Respondent further refers this Court to the authority of Pastoli v Kabale District Local Government Council (2008) 2 EA 300, in which the Court defined illegality as action taken “contrary to law or outside jurisdiction,” irrationality as decisions that no reasonable authority would make, and procedural impropriety as failure to comply with natural justice or statutory procedure.
62. Reliance was also placed by the Respondent on the case of Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876, in which the Court emphasized that procedural impropriety includes failure to observe statutory procedures and fairness in administrative action.
63. The Respondent also invited the Court to consider the decision of Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (2016) KLR, where the Court of Appeal held that judicial review under Article 47 includes “an implicit shift… to include aspects of merit review of administrative action,” though courts must not substitute their own decision.
64. The Respondent submits that the Applicant has not demonstrated illegality, irrationality, procedural impropriety, bad faith or abuse of process. On the contrary, the Respondent urges that the prosecution is supported by evidence, prior judicial findings, statutory violations and acts of self-help.
65. The Respondent therefore submits that the application is an abuse of the court process intended to delay and frustrate a lawful criminal trial, and urges the Court to dismiss it with costs and allow Kisumu Chief Magistrate’s Court Criminal Case No. E698 of 2022 to proceed to its logical conclusion.
G. ISSUES FOR DETERMINATION.
66. From the pleadings, affidavits, submissions and the nature of the reliefs sought, the following issues arise for this court’s consideration and determination:
a. Whether this Court is properly moved by way of judicial review proceedings, or whether the dispute ought to have been commenced by way of a constitutional petition.
b. Whether judicial review jurisdiction is limited to the process of decision-making, or whether it can extend to the merits of the decision under challenge.
c. Whether the Respondent’s decision to investigate and prosecute the Applicant is tainted with illegality, irrationality, procedural impropriety or abuse of process.
d. Whether the orders of certiorari and prohibition are available in the circumstances of this case.
e. What orders should issue as to costs.
H. ANALYSIS AND FINDINGS.
67. I will proceed to address and determine the issues seriatim.
68. The first issue for determination is whether the Applicant’s grievances are properly before this Court b
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