' Introduction
1. The Respondents/Applicants moved this Court by way of an application dated 7th March 2025 seeking, inter alia, orders directing the Director of Criminal Investigations (DCI) to submit a report emanating from Inquiry File ECCU No. 23/2024, summoning the said officer to testify, and granting leave to cross-examine the Petitioner on his affidavits.
2. The Petitioner opposed the application through a Replying Affidavit sworn on 28th March 2025, contending that the application is premature, prejudicial, and an abuse of the court process.
Background
3. The facts leading to the present application are that the Petitioner, Anilkumar Chandrakant Patel, filed Petition No. E010 of 2023 against Odex Chemicals Limited, Vijay Parsooram Patel, and Purav Vijay Patel, alleging oppressive conduct in the management of the company, dilution of his shareholding, and denial of access to company records and entitlements. The Petition raises issues of minority shareholder protection under the Companies Act, 2015.
4. Following dismissal of an earlier application by the Petitioner seeking appointment of an investigator, the Petitioner lodged a complaint with the Directorate of Criminal Investigations (DCI) in April 2024. The complaint was registered as Inquiry File ECCU No. 23/2024 and investigated under Reference No. DCI/IB/FIU/SEC/4/4/16B/VOL. XVIII/126. The complaint alleged fraud, forgery, and embezzlement by the Respondents in relation to company affairs.
5. The Respondents/Applicants now seek to rely on the outcome of those investigations. By their application dated 7th March 2025, they pray that the DCI be directed to submit a final report to this Court, that the DCI or an officer under his command be summoned to testify, and that the Petitioner be cross-examined on his affidavits.
6. The matter was canvassed by way of written submissions. The Applicant filed his submissions dated 15th May 2025, whilst the Respondent filed their submissions dated 10th June 2025.
Analysis and Determination:
7. Having carefully reviewed the Application, the response thereto, the law, and the parties’ respective submissions, I identify the following issues that require determination by this Court: -
i. Whether leave should be granted to adduce the DCI report and summon witnesses
ii. Whether leave should be granted to cross-examine the Petitioner.
i. On the Prayer to Adduce the DCI Report and Summon Witnesses
8. The Applicants submitted that the DCI report is a specific and identifiable document prepared following forensic investigations into the Petitioner’s complaint. They argue that the report constitutes expert evidence within the meaning of Section 48 of the Evidence Act, and that its admission would enable the Court to fairly determine allegations of fraud and oppression.
9. They relied on Article 35 of the Constitution, which guarantees access to information held by the State, and Article 50, which secures the right to a fair hearing. They contend that denying them access to the report would amount to curtailing their constitutional rights.
10. The Applicants cited the case of Mahamud v Mohamad & 3 others [2018] KESC 62, where the Supreme Court laid down principles for admission of additional evidence, including relevance, credibility, and inability to obtain the evidence earlier with reasonable diligence. They also rely on Eunice Jacqueline Chebukwa Wanjala v Kenya Commercial Bank Ltd [2021] eKLR, where the Court allowed additional evidence to cleanse allegations of fraud.
11. The Petitioner, on his part, opposed the prayer, arguing that no final report has been issued by the DCI. He submits that directing the DCI to produce a report would amount to interference with the independence of the National Police Service under Article 245 of the Constitution.
12. He relied on Lukalo & another v National Police Service; Lukalo (Interested Party) [2023] KEHC 21135 (KLR), where the Court held that investigations are an independent mandate of the Inspector General and cannot be directed by the Court.
13. The Petitioner further argued that the application is late in the day, filed after submissions had been exchanged, and is calculated to delay the matter. He invokes Raila Odinga & 5 Others v IEBC & 3 Others [2013] eKLR, where the Supreme Court cautioned against admitting voluminous new evidence late in proceedings.
14. The Court notes that while the Applicants have invoked constitutional rights to fair hearing and access to information, the independence of investigative bodies is equally entrenched in the Constitution. Article 245(4) expressly prohibits any person or authority from directing the Inspector General with respect to investigations.
15. The jurisprudence in Lukalo (supra) and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR underscores the principle of judicial deference to independent constitutional bodies. This Court cannot compel the DCI to produce a report that is not finalized.
16. Moreover, I agree with the Petitioner that the timing of the application is prejudicial. As held in Wambui v Standard Chartered Bank of Kenya [2024] KEELRC 13321, reopening proceedings after submissions have been filed undermines judicial economy and the overriding objective under Section 1A of the Civil Procedure Act.
17. In any event, Section 193A of the Criminal Procedure Code provides that civil and criminal proceedings may run concurrently. In Alfred Lumiti Lusiba v Pethad Pank Shantilal & 2 others [2010] eKLR, the Court affirmed that neither civil nor criminal jurisdiction can stand in the way of the other unless abused.
18. It therefore follows that even if the DCI were to conclude its investigations, the outcome of the criminal inquiry would not necessarily determine the civil rights at issue. The Petition must be resolved on its own merits, applying the civil standard of proof.
19. Accordingly, this Court cannot compel the DCI to prepare or produce a report that is not finalized. To do so would be to usurp the constitutional mandate of the investigative authorities.
ii. On the Prayer to Cross-Examine the Petitioner
20. The Applicants submitted that cross-examination is necessary under Order 19 Rule 2 of the Civil Procedure Rules, particularly where allegations of fraud and forgery are raised. They rely on G.G.R v H.P.S [2012] eKLR, where the Court held that cross-examination may be ordered where allegations of mala fides or fraud are in issue.
21. The Petitioner contended that the request is frivolous and vexatious, aimed at filling evidential gaps after submissions have been filed. He notes that he had earlier applied for the Petition to be heard orally, which would have allowed cross-examination, but the Respondents did not support that application.
22. He relied on Nancy Wanja Gatabaki v Ashford Muriuki Mugwuku [2013] eKLR, where the Court held that an applicant must lay a proper basis by identifying specific paragraphs necessitating cross-examination. He also cites Republic v Kenya Revenue Authority, ex parte Althaus Management & Consulting Ltd [2015] eKLR, cautioning that cross-examination should only be permitted where essential to enhance justice.
23. From the parties’ submissions, I note that the Respondents have not demonstrated with precision which aspects of the Petitioner’s affidavits require cross-examination. The application appears aimed at reopening issues already canvassed in submissions.
24. The jurisprudence in Nancy Wanja Gatabaki (supra) and Republic v KRA ex parte Althaus (supra) makes clear that cross-examination is not granted as a matter of course, but only where necessary to resolve contested facts.
25. Given the advanced stage of the Petition, allowing cross-examination now would prejudice the Petitioner and undermine judicial economy. The prayer is therefore declined.
26. The Court finds that directing the DCI to produce a report would violate Article 245 of the Constitution, that the application is prejudicially late, and that cross-examination has not been justified.
27. Accordingly, the application dated 7th March 2025 is hereby dismissed in its entirety, with costs.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Gakure…………..for the Petitioner
Olao……….…..... for the Respondent
'
1. The Respondents/Applicants moved this Court by way of an application dated 7th March 2025 seeking, inter alia, orders directing the Director of Criminal Investigations (DCI) to submit a report emanating from Inquiry File ECCU No. 23/2024, summoning the said officer to testify, and granting leave to cross-examine the Petitioner on his affidavits.
2. The Petitioner opposed the application through a Replying Affidavit sworn on 28th March 2025, contending that the application is premature, prejudicial, and an abuse of the court process.
Background
3. The facts leading to the present application are that the Petitioner, Anilkumar Chandrakant Patel, filed Petition No. E010 of 2023 against Odex Chemicals Limited, Vijay Parsooram Patel, and Purav Vijay Patel, alleging oppressive conduct in the management of the company, dilution of his shareholding, and denial of access to company records and entitlements. The Petition raises issues of minority shareholder protection under the Companies Act, 2015.
4. Following dismissal of an earlier application by the Petitioner seeking appointment of an investigator, the Petitioner lodged a complaint with the Directorate of Criminal Investigations (DCI) in April 2024. The complaint was registered as Inquiry File ECCU No. 23/2024 and investigated under Reference No. DCI/IB/FIU/SEC/4/4/16B/VOL. XVIII/126. The complaint alleged fraud, forgery, and embezzlement by the Respondents in relation to company affairs.
5. The Respondents/Applicants now seek to rely on the outcome of those investigations. By their application dated 7th March 2025, they pray that the DCI be directed to submit a final report to this Court, that the DCI or an officer under his command be summoned to testify, and that the Petitioner be cross-examined on his affidavits.
6. The matter was canvassed by way of written submissions. The Applicant filed his submissions dated 15th May 2025, whilst the Respondent filed their submissions dated 10th June 2025.
Analysis and Determination:
7. Having carefully reviewed the Application, the response thereto, the law, and the parties’ respective submissions, I identify the following issues that require determination by this Court: -
i. Whether leave should be granted to adduce the DCI report and summon witnesses
ii. Whether leave should be granted to cross-examine the Petitioner.
i. On the Prayer to Adduce the DCI Report and Summon Witnesses
8. The Applicants submitted that the DCI report is a specific and identifiable document prepared following forensic investigations into the Petitioner’s complaint. They argue that the report constitutes expert evidence within the meaning of Section 48 of the Evidence Act, and that its admission would enable the Court to fairly determine allegations of fraud and oppression.
9. They relied on Article 35 of the Constitution, which guarantees access to information held by the State, and Article 50, which secures the right to a fair hearing. They contend that denying them access to the report would amount to curtailing their constitutional rights.
10. The Applicants cited the case of Mahamud v Mohamad & 3 others [2018] KESC 62, where the Supreme Court laid down principles for admission of additional evidence, including relevance, credibility, and inability to obtain the evidence earlier with reasonable diligence. They also rely on Eunice Jacqueline Chebukwa Wanjala v Kenya Commercial Bank Ltd [2021] eKLR, where the Court allowed additional evidence to cleanse allegations of fraud.
11. The Petitioner, on his part, opposed the prayer, arguing that no final report has been issued by the DCI. He submits that directing the DCI to produce a report would amount to interference with the independence of the National Police Service under Article 245 of the Constitution.
12. He relied on Lukalo & another v National Police Service; Lukalo (Interested Party) [2023] KEHC 21135 (KLR), where the Court held that investigations are an independent mandate of the Inspector General and cannot be directed by the Court.
13. The Petitioner further argued that the application is late in the day, filed after submissions had been exchanged, and is calculated to delay the matter. He invokes Raila Odinga & 5 Others v IEBC & 3 Others [2013] eKLR, where the Supreme Court cautioned against admitting voluminous new evidence late in proceedings.
14. The Court notes that while the Applicants have invoked constitutional rights to fair hearing and access to information, the independence of investigative bodies is equally entrenched in the Constitution. Article 245(4) expressly prohibits any person or authority from directing the Inspector General with respect to investigations.
15. The jurisprudence in Lukalo (supra) and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR underscores the principle of judicial deference to independent constitutional bodies. This Court cannot compel the DCI to produce a report that is not finalized.
16. Moreover, I agree with the Petitioner that the timing of the application is prejudicial. As held in Wambui v Standard Chartered Bank of Kenya [2024] KEELRC 13321, reopening proceedings after submissions have been filed undermines judicial economy and the overriding objective under Section 1A of the Civil Procedure Act.
17. In any event, Section 193A of the Criminal Procedure Code provides that civil and criminal proceedings may run concurrently. In Alfred Lumiti Lusiba v Pethad Pank Shantilal & 2 others [2010] eKLR, the Court affirmed that neither civil nor criminal jurisdiction can stand in the way of the other unless abused.
18. It therefore follows that even if the DCI were to conclude its investigations, the outcome of the criminal inquiry would not necessarily determine the civil rights at issue. The Petition must be resolved on its own merits, applying the civil standard of proof.
19. Accordingly, this Court cannot compel the DCI to prepare or produce a report that is not finalized. To do so would be to usurp the constitutional mandate of the investigative authorities.
ii. On the Prayer to Cross-Examine the Petitioner
20. The Applicants submitted that cross-examination is necessary under Order 19 Rule 2 of the Civil Procedure Rules, particularly where allegations of fraud and forgery are raised. They rely on G.G.R v H.P.S [2012] eKLR, where the Court held that cross-examination may be ordered where allegations of mala fides or fraud are in issue.
21. The Petitioner contended that the request is frivolous and vexatious, aimed at filling evidential gaps after submissions have been filed. He notes that he had earlier applied for the Petition to be heard orally, which would have allowed cross-examination, but the Respondents did not support that application.
22. He relied on Nancy Wanja Gatabaki v Ashford Muriuki Mugwuku [2013] eKLR, where the Court held that an applicant must lay a proper basis by identifying specific paragraphs necessitating cross-examination. He also cites Republic v Kenya Revenue Authority, ex parte Althaus Management & Consulting Ltd [2015] eKLR, cautioning that cross-examination should only be permitted where essential to enhance justice.
23. From the parties’ submissions, I note that the Respondents have not demonstrated with precision which aspects of the Petitioner’s affidavits require cross-examination. The application appears aimed at reopening issues already canvassed in submissions.
24. The jurisprudence in Nancy Wanja Gatabaki (supra) and Republic v KRA ex parte Althaus (supra) makes clear that cross-examination is not granted as a matter of course, but only where necessary to resolve contested facts.
25. Given the advanced stage of the Petition, allowing cross-examination now would prejudice the Petitioner and undermine judicial economy. The prayer is therefore declined.
26. The Court finds that directing the DCI to produce a report would violate Article 245 of the Constitution, that the application is prejudicially late, and that cross-examination has not been justified.
27. Accordingly, the application dated 7th March 2025 is hereby dismissed in its entirety, with costs.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
27TH NOVEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Gakure…………..for the Petitioner
Olao……….…..... for the Respondent
'