1. These Judicial Review proceedings were initiated under certificate of urgency, by way of an ex parte chamber summons, dated 13th January 2026, herein, for enlargement of time and leave to file for certiorari and prohibition orders, directed at the respondents, with respect to a criminal prosecution in Milimani MCCRC No. E034 of 2025, involving the ex parte applicant and others. The ex parte chamber application was placed before the Judge, on 13th January 2026, and directions were given for service of the application, for an oral hearing on 11th February 2026. Service was done, and a hearing was conducted on 11th February 2026. A ruling was delivered, on 25th February 2026, granting the leave sought, and directing that the leave shall operate as stay of the proceedings, the subject of the judicial review proceedings herein.
2. The substantive Motion was filed herein, dated 2nd March 2026, anchored on the filings made at the leave stage.
3. According to the statutory statement, dated 13th January 2026, the ex parte applicant is facing criminal charges, in Milimani MCCRC No. E034 of 2025, of conspiracy to defraud, contrary to section 317 of the Penal Code, Cap. 63, Laws of Kenya. He avers that the decision to charge him is in abuse of the criminal justice system, for the dispute between him, and the complainant, who is the interested party herein, is purely commercial, arising from a trade finance support agreement, dated 23rd May 2024, executed between the interested party and a Bee N Bee Kenya Limited.
4. It is averred that under that agreement, Bee N Bee Kenya Limited received Kshs. 102,437,500.00, presumably from the interested party, which it was to convert to USD 745,000.00, by 24th May 2023. Bee N Bee Kenya Limited was only able to convert and remit USD 295,000.00, by that date, which constituted partial performance. The interested party was aggrieved, and invoked an arbitration clause, in the agreement, and arbitral proceedings were conducted, and an award was made on 11th February 2025, in favour of the interested party, which finally resolved the issues between the interested party and Bee N Bee Kenya Limited. That award was made a decree of the court, in Milimani HCCOMMMISC No. E022 of 2025.
5. It is submitted that the dispute between the interested party and Bee N Bee Kenya Limited is purely commercial, and it was conclusively resolved by the arbitral proceedings, yet the interested party has chosen to subject the controversy to criminal proceedings. It is asserted that there was no deceit or false representation in the matter, to justify criminal prosecution. It is argued that the prosecution is duplicitous, which undermines the contractual dispute resolution mechanism. It is further argued that the criminal justice system is being abused, to enforce a civil debt, instead of seeking enforcement through the Civil Procedure Act, Cap. 21, Laws of Kenya. It is also averred that the interested party transacted with a limited liability company, and the principle in Salomon vs. Salomon & Company [1897] AC 22 applied, so that liability ought not attach on the ex parte applicant.
6. It is argued that the prosecution is unjustified, and it infringed on rights under Articles 28, 29(a) and 49 of the Constitution, and offends Article 157(11) of the Constitution, by advancing an ulterior commercial purpose, instead of public interest or administration of justice. Based on that, the ex parte applicant had invoked Article 157(6)(c) of the Constitution and section 89(a) of the Criminal Procedure Code, Cap 75, Laws of Kenya, and invited the 1st respondent to consider withdrawal of the charges, which was declined, by the 1st respondent, in a letter, dated 27th November 2026.
7. The verifying affidavit, sworn by the ex parte applicant, on 13th January 2026, is not of the sort that is expected to be filed in cases of this nature, for it is a 4-paragraph affidavit, merely confirming the contents of the statutory statement. Yet, the verifying affidavit is meant to state the facts, to support the pleadings in the statement. There is a difference between the verifying affidavit filed in suits commenced by plaint or petition, which tend to lack detail. The verifying affidavits in those suits are so thin, because, in those suits, witness statements are filed and the matter is disposed on based on viva voce evidence, where witnesses in fact attend court, testify and are cross-examined. In judicial review proceedings, there is nothing of that kind. No oral evidence is taken, and, therefore, no witness statements are filed, and no oral proceedings are conducted, where viva voce evidence is taken. The verifying affidavit, for the purpose of judicial review proceedings, should, therefore, be more comprehensive, averring to detailed facts and annexing the documents relied upon, for there would be no other opportunity for other evidence to be adduced.
8. Secondly, under Order 53 rule 2(a) of the Civil Procedure Rules, the statement should only set out the name and description of the applicant, the relief sought, and the grounds on which it is sought. It is not supposed to carry detailed facts of evidential nature on the matter. Those facts should be set out in the verifying affidavit, according to Order 53 rule 2(b) of the Civil Procedure Rules.
9. For avoidance of doubt, Order 53 rule 2(a)(b) states as follows:
“(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.”
10. Thirdly, evidence is adduced under oath, whether in affidavit form or orally in court. The only exception would be where the person giving the evidence does not understand the nature of the oath, due to disability of minority age or mental infirmity, according to section 19 of the Oaths and Statutory Declarations Act, Cap. 15, Laws of Kenya. Where a case rests or depends on documentary evidence, such evidence is annexed to the affidavit or produced in court under oath. The statement, envisaged in Order 53 rule 2(a) is not an affidavit. It should not carry evidential material. Therefore, no documents ought to be introduced to court through it, as documentary evidence. The case is by the party, and evidence is tendered by the party. The statement would not be signed by the party, where represented by an Advocate, but by the Advocate himself. The party signs the verifying affidavit, and the documentary evidence ought to be produced through that affidavit.
11. I say all this because I have seen that the documentary evidence relied on by the ex parte applicant, is not mentioned at all in the affidavit. The documents are mentioned in the statement, and attached to it as annextures. These annextures are then commissioned, for I see a stamp of a Commissioner for Oaths, with a signature, purported to be that of the Commissioner for Oaths, purporting that the said document was annexed to an affidavit or declaration. The verifying affidavit does not refer to any annexture, and, therefore, the Commissioner for Oaths, commissioning that affidavit did not have before him or her any annextures that he or she could commission as such. The annextures are to the statement, yet the statement is not a document on oath, and the Commissioner for Oaths did not commission it. Clearly, therefore, there is a problem with this documentary material that I am being invited to look at, in consideration of the application before me.
12. Anyhow, the said documents include the charge sheet in Milimani MCCRC No. E034 of 2025; the trade finance support agreement; the arbitral award, dated 11th February 2025; and the letter, from the 1st respondent, declining to withdraw the prosecution in Milimani MCCRC No. E034 of 2025.
13. The substantive Motion was served, for I can see an affidavit of service, sworn on 15th January 2026. Upon being served, the respondents and the interested party have filed responses.
14. The response by the 1st and 2nd respondents takes the form of a replying affidavit, sworn by No. 62348 Police Sergeant Evans Gitonga, the officer investigating the case in Milimani MCCRC No. E034 of 2025. He avers that he received a complaint from the interested party and Mr. Vimal Shah, concerning a deposit of Kshs. 102,437,500.00, into an account of Bee N Bee Limited, operated by the ex parte applicant, on the understanding that the money would be converted into US dollars. Investigations revealed that Bee N Bee Limited was not registered to carry out foreign exchange business.
15. It is averred that the ex parte applicant recorded a statement with the police. He indicated that he knew the complainant, that is Mr. Shah, for 15 years, and that he, the ex parte applicant, introduced Mr. Shah to Bee N Bee Company, which is owned by him, the ex parte applicant. The 2 then entered into an agreement, signed by Bee N Bee and the interested party. Subsequent to the terms of the agreement, the money, Kshs. 102,437,500.00, was deposited into an account of Bee N Bee at Standard Chartered Bank. The money was later transferred to an account in the name of Pershing VC Group at Credit Bank Kenya. The business did not go as expected, as Pershing VC Group failed to remit the dollars as indicated to Bee N Bee. That led to a push and pull between the parties, culminating in the arbitral proceedings. The prosecution file was compiled, and forwarded to the 1st respondent, who recommended prosecution.
16. It is asserted that the 1st respondent acted within the confines of Article 157 of the Constitution, the Office of the Director of Public Prosecutions Act, Cap. 6B, Laws of Kenya, and the National Prosecution Policy, when he made the decision to prosecute, and that there was no abuse of office, or abrogation or infringement of any provision of the Constitution, or human and fundamental rights of the ex parte applicant, or that of any written law or regulations made under it. The court is urged not to interfere with the constitutional mandate of the 2nd respondent, to institute and undertake criminal proceedings.
17. Attached to that affidavit are a number of documents. There is a bank statement from the account of the interested party, showing a debit, out of its account at Standard Chartered Bank, of a sum of Kshs. 102,437,500.00, on 23rd May 2023. There is a copy of a bank statement relating to an account of Bee N Bee Kenya Limited, showing a credit into that account, of Kshs. 102,437,500.00, being a transfer from the interested party, on 23rd May 2023. There is a record from the Register of Companies, relating to the registration status of Bee N Bee Limited, as at 9th June 2023, indicating that it was registered on 5th January 2022, and that the ex parte applicant was its sole shareholder and director. There is a letter, from the Business Registration Service, dated 22nd September 2023, on the status of Bee N Bee Limited, giving a historical background of the company, indicating that the ownership, as at that date, rested solely with the ex parte applicant. There is a letter from the Capital Markets Authority, giving an indication that Bee N Bee Limited and Pershing VC Group Limited were not licensed under the Capital Markets Act, Cap. 485A, Laws of Kenya. There is the statement that the ex parte applicant recorded with the police, dated 9th October 2023. There is also a copy of the trade finance support agreement.
18. The reaction to the application, by the interested party, is by way of an affidavit by Mr. Shah, in his capacity as director and Chairman of the interested party. He expresses his awareness that a company acts through its directors, and that it is on that basis that he reported the matter to the police, and that the charge, in Milimani MCCRC No. E034 of 2025, was a culmination of the investigations carried out by the police. He avers that the ex parte applicant, and the co-accused of the ex parte applicant in Milimani MCCRC No. E034 of 2025, Mr. Nicholas Alexander Nesbitt, visited him, on 23rd May 2023, and expressed capability to assist with provision of foreign currency, USD in particular, at a time when there was a crunch. Based on that he, Mr. Shah, on behalf of the interested party, and the ex parte applicant, on behalf of Bee N Bee Limited, entered into an agreement, the same day, where the interested party would deposit a sum of Kshs. 102,437,500.00 into the account of Bee N Bee Limited, at Standard Chartered Bank Limited, which money Bee N Bee Limited would convert into USD 745,000.00, to be transferred to the account of the interested party on 24th May 2023.
19. Mr. Shah avers that the interested party entered into that arrangement on the representations that the ex parte applicant and his friend, Mr. Nesbitt, had made to him. He explains that he trusted them, for he had known the colleague of the ex parte applicant, the said Mr. Nesbitt, for a while. He asserts that the 2 had an intent to defraud unsuspecting individuals and entities, like the interested party, through a shell company. The court is urged not to interfere with the prosecution, as that would not be in public interest. He expresses lack of awareness of any conspiracy to frustrate the ex parte applicant, and that issues relating to the merits of the criminal charge should be left to the court competent to try it.
20. He states that he has not coerced the authorities to move against the ex parte applicant, submitting that he has no capacity to direct a State organ. He avers that the respondents are established by the Constitution, and, therefore, they cannot be acting under his control. He asserts that the decision to prosecute was made by the relevant authorities in accordance with the law applicable. He submits that the issues the ex parte applicant is now raising are issues that he would have an opportunity to raise at trial, for consideration by the court seized of the matter. He argues that, just as accused persons have rights, so do complainants, like the interested party, to have their grievances heard and determined by the court. He urges the High Court not to interfere with the criminal process.
21. There are several annextures. There is a document from the website of BNX Partners, showing the ex parte applicant and Mr. Nesbett as partners. There is also a copy of the bond form, in Milimani MCCRC No. E034 of 2025, as testimony that the ex parte applicant has been admitted to bond.
22. The 3rd respondent reacted by way of filing grounds of opposition. Several grounds are raised, which include the order of prohibition not being sought merely because of pendency of parallel civil and criminal proceedings, for section 193A of the Criminal Procedure Code, Cap. 75, Laws of Kenya, permits such parallelism; the order of prohibition is reserved for cases where a public body acts without jurisdiction or in excess of jurisdiction or contravention of natural justice, and there is no demonstration of that in the instant case; the 3rd respondent is merely exercising its ordinary criminal jurisdiction, to hear and determine the charge in Milimani MCCRC No. E034 of 2025; there is no demonstration that the 3rd respondent has acted in excess of jurisdiction, or breached rules of natural justice, or has acted in a manner amounting to procedural impropriety; the judicial review application is premature, and a disguised substitute for the criminal trial process; the stay granted does not constitute a finding that the criminal proceedings are deficient; the ex parte applicant has left jurisdiction upon being granted bond/bail, skipped court and a warrant of arrest has issued, which means he comes to court without clean hands; and the application is not premised on any jurisdictional error, or contrariness or statutory edict.
23. The application is canvassed by way of written submissions, filed following the directions given on 25th February 2026.
24. The written submissions by the ex parte applicant are dated 10th April 2026. Only 1 issue is identified, whether the prosecution of the ex parte applicant is in abuse of prosecutorial discretion. There is acknowledgement that the 1st respondent has authority, under Article 157 of the Constitution to undertake prosecutions, and that the 1st respondent would not be under the control or direction of the exercise of that authority. However, it is submitted that Article 157(11) of the Constitution leaves some room, for judicial intervention, for that provision requires that the exercise of that authority should be subject to public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process. Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) is cited in support.
25. It is also submitted that there is insufficient evidence to support the charge preferred, of conspiracy, contrary to section 317 of the Penal Code. Clause 3.2.1 of the Decision to Charge, Guideline, 2019, and Murimi Waigwe vs. Attorney General & 4 others [2020] KHC 9746 (KLR) are cited. It is also submitted that the criminal proceedings are being employed to compromise pure civil proceedings, contrary to section 193 of the Criminal Procedure Code. Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) and Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Ltd & 4 others [2013] KECA 182 and Agnes Ngenesi Kinyua aka Agnes Kinywa vs. Director of Public Prosecution & another [2019] KEHC 7257 (KLR), are cited in support.
26. The 1st and 2nd respondents have filed joint written submissions, dated 21st April 2026. 2 issues are identified, around the lawfulness of the arraignment of the ex parte applicant, and the application meeting the requisite conditions for grant of the orders sought. The authority of the 1st respondent to initiate prosecution against anyone within the Republic is asserted, based on Article 157 of the Constitution, and it is argued that the 1st respondent has acted fully within its mandate. Pauline Raget Adhiambo vs. DPP and 5 others (2010) Petition No. 446 of 2015, Republic vs. The Commissioner of Police & the Director of Public Prosecutions Ex parte Michael Monari & another Misc. Application No. 68 of 2011, Cascade Company Limited vs. Kenya Association of Music Production (KAMP) & others Murang’a HC Petition No. 7 of 2024 and Maina & 4 others vs. Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR), are cited in support. It is argued that venturing to assess sufficiency of evidence would usurp the mandate of the trial court, and Kuria & 3 others vs. Attorney General [2002] 2 KLR 69, is cited.
27. The written submissions by the 3rd respondent are dated 24th April 2026. They turn around 3 issues, whether section 193A of the Criminal Procedure Code is a bar to the orders sought; whether the threshold for grant of the orders sought has been met; and whether the application constitutes abuse of process. Oloo vs. Director of Public Prosecutions [2022] KEHC 14841 (KLR), Republic vs. Njoroge & another [2024] 3 KEHC 1295 (KLR), Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Ltd & 4 others [2013] KECA 182, Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR, Republic vs. Kenya Revenue Authority, ex parte Yaya Towers Limited [2008] eKLR, Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR), Maina & 4 others vs. Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR), Republic vs. Commissioner of Police & another Ex Parte Monari & another [2012] KEHC 4595 (KLR) and Alfred Lumiti Lusiba vs. Pethad Ranik Shantilal & 2 others [2016] KEHC 6978 (KLR) are cited.
28. The written submissions by the interested party, dated 13th April 2026, identify only 1 issue for determination, which is whether this court should interfere with the decision of the 1st respondent to charge the ex parte applicant. Article 157(1) of the Constitution is cited, to assert that the 1st respondent has complete independence in making decisions to initiate prosecutions, and is not subject to control from anyone, not even the court. It is argued that intervention should only be in cases where there is clear evidence of breach of constitutional duty to act, on the part of the 1st respondent, and where there is abuse of discretion. Jirongo vs. Soy Developers Ltd & 9 others; State of West Bengal & others vs. Swapan Kumar Guha & others AIR 1982 SC 949; Pepsi Foods Ltd & Another vs. Special Judicial Magistrate & others AIR 1998 SC 128 and G Ugar Suri & another vs. State of UP & others AIR 2000 SC 754 are cited in support. It is further submitted that section 193A of the Criminal Procedure Code allows parallel civil and criminal proceedings, and that the mere fact that a civil decree has been obtained, with respect to the same matter, should be no bar to criminal prosecution. Republic vs. Attorney General ex parte Arap Ngeny HCCC APP. No. 406 of 2001 is cited.
29. The ex parte applicant has filed further supplementary submissions, dated 30th April 2026, prompted by the submissions of the other parties. They turn on issues relating to section 193 of the Criminal Procedure Code, and whether it constitutes a bar to the orders sought; the established threshold for the grant of certiorari and prohibition, and whether it has been met; and whether the application is in abuse of the court process. Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Ltd & 4 others [2013] KECA 182, Julius Meme vs. Republic & another [2004] KEHC 2623 (KLR), Wambugu & 5 others vs. Director of Public Prosecutions and 2 others: Highchem East Africa Limited (interested party)[2025] KEHC 2691 (KLR), Guantai vs. Chief Magistrate, Nairobi [2007] KECA 496 (KLR), Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR), among others, are cited.
30. There are only 2 issues for determination herein, whether the High Court can intervene, through judicial review, with respect to the investigative and prosecutorial functions of the 1st and 2nd respondents, and in a criminal court case pending trial before the 3rd respondent; and whether there is any merit in the instant application.
31. On the first issue, the starting point should be with stating that the 1st and 2nd respondents are entities within the Executive branch of the State, while the 3rd respondent is an entity within the Judiciary, with clear constitutional and statutory foundations for their respective mandates in the criminal justice system. The High Court belongs to the Judicial branch of government, with its own clear constitutional and statutory lanes. The doctrine of separation of powers, set out in Articles 1(3) and 174(i) of the Constitution, expects each branch of government to stick to its own lane. The provisions of the Constitution, which set up the investigative, prosecutorial and judicial authorities, all assert the decisional independence of each of these authorities, in the discharge of their respective mandates.
32. However, the independence stated in those provisions is not altogether without limits. The Constitution, at Article 10, sets out the national values and principles of governance that ought to guide public bodies in the discharge of their duties. They bind all State organs, State Officers and public officers, who have to apply and interpret the Constitution and the law, and implement public policy. The values and principles include rule of law, human dignity, equity, social justice, good governance, integrity, transparency and accountability. The independence of the State organs, entities and offices has to be exercised within the framework of these values.
33. These national values and principles find expression in the Bill of Rights, that is in Chapter Four of the Constitution. The courts, particularly the High Court, by virtue of Articles 23 and 165 of the Constitution, are at the very core of the Bill of Rights, as the guardians of constitutional rights and freedoms, and they are where the people run to whenever their rights and freedoms are violated or infringed, or threatened with violation or infringement. It is in that context that matters such as the instant one find their way in court.
34. Sometimes some State organs, agencies and offices are uncomfortable with the High Court intervening into the discharge of their mandate. They view it as interference, basing themselves on the notion and doctrine of separation of powers, and the expectation that the Judiciary, being part of the State, should exercise deference to the other organs of the State, and there are shades of that language, in the response herein by the 1st and 2nd respondents, in some of their filings in this matter. The High Court does not interfere, for interference has the connotation of poking one’s nose into other people’s affairs or business. The High Court merely discharges its constitutional and statutory duty, upon being invited to by litigants, who approach it, because the law permits them to, and the High Court intervenes within the confines of the law. The High Court does not seek out or solicit for the filing of cases of this kind, they are filed by members of the public, on their own volition, and once filed, the High Court cannot just ignore the cases, so filed, or wish them away, it has to handle and dispose of them, as I hereby do. The High Court cannot be said to be interfering in the mandates of the respondents, where the Constitution and the law expressly mandates it to make the sort of interventions sought herein. That is what Articles 23 and 165 of the Constitution speak to.
35. The High Court is vested with constitutional mandate, under the Bill of Rights, to entertain any claim, where rights and freedoms are alleged to have been violated or infringed, or are said to be in danger of violation or infringement. The people have rights, under the Constitution, to rush to the High Court, to challenge decisions of State organs, entities and offices, which have allegedly violated their rights or freedoms, or threaten such rights and freedoms with violation or infringement, so that the High Court can intervene, by way of auditing the processes, to establish the veracity of those allegations. The State should not be irritated when members of the public file such claims, and when the High Court entertains them. There would be exercise of constitutional rights by the people, and discharge of constitutional duty by the High Court. The Constitution has provided the framework for it, and the State has no option but to learn to live with that reality, and to abide by what the Constitution requires.
36. Executive powers and functions are limited, by the Constitution itself and any governing legislation. They are to be discharged within the narrow confines of what the Constitution and the governing legislation provides. Since they are limited, they would be open to challenge. The Constitution has provided pathways for such challenges. The key remedies available, which are identified in the Constitution, and elaborated in legislation, include certiorari, mandamus, prohibition and declarations. The ex parte applicant herein is seeking 2 of the said remedies, and he is perfectly within his constitutional rights to do so. Whether his case is merited, is a matter for me to determine, upon examination of the material that has been tabled here, by all the sides.
37. The short of it is that the applicant is within his constitutional and statutory rights to challenge the discharge of the investigative and prosecutorial functions by the respondents, and the court is within its constitutional and statutory function to entertain such a challenge.
38. On the second issue, with respect to the merits of this case, I will start by stating that these are judicial review proceedings. The function of the court, seized of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural unfairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 30.
39. The decision, under challenge herein, is that relating to charging the ex parte applicant with conspiracy to defraud. The 2nd respondent herein received the complaint against the ex parte applicant, carried out enquiries and conducted investigations, before recommending the charge to the 1st respondent. The 1st respondent evaluated the investigation file, presented by the 2nd respondent, and approved that charge, resulting in the ex parte applicant being presented in court, before the 3rd respondent, for plea-taking and trial. It would be within the constitutional and legal mandate of the 2nd respondent to carry out enquiries, conduct investigations and make recommendations for prosecution. The 2nd respondent did what was expected of it in law, upon receiving the complaint, for it carried out enquiries, conducted
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2. The substantive Motion was filed herein, dated 2nd March 2026, anchored on the filings made at the leave stage.
3. According to the statutory statement, dated 13th January 2026, the ex parte applicant is facing criminal charges, in Milimani MCCRC No. E034 of 2025, of conspiracy to defraud, contrary to section 317 of the Penal Code, Cap. 63, Laws of Kenya. He avers that the decision to charge him is in abuse of the criminal justice system, for the dispute between him, and the complainant, who is the interested party herein, is purely commercial, arising from a trade finance support agreement, dated 23rd May 2024, executed between the interested party and a Bee N Bee Kenya Limited.
4. It is averred that under that agreement, Bee N Bee Kenya Limited received Kshs. 102,437,500.00, presumably from the interested party, which it was to convert to USD 745,000.00, by 24th May 2023. Bee N Bee Kenya Limited was only able to convert and remit USD 295,000.00, by that date, which constituted partial performance. The interested party was aggrieved, and invoked an arbitration clause, in the agreement, and arbitral proceedings were conducted, and an award was made on 11th February 2025, in favour of the interested party, which finally resolved the issues between the interested party and Bee N Bee Kenya Limited. That award was made a decree of the court, in Milimani HCCOMMMISC No. E022 of 2025.
5. It is submitted that the dispute between the interested party and Bee N Bee Kenya Limited is purely commercial, and it was conclusively resolved by the arbitral proceedings, yet the interested party has chosen to subject the controversy to criminal proceedings. It is asserted that there was no deceit or false representation in the matter, to justify criminal prosecution. It is argued that the prosecution is duplicitous, which undermines the contractual dispute resolution mechanism. It is further argued that the criminal justice system is being abused, to enforce a civil debt, instead of seeking enforcement through the Civil Procedure Act, Cap. 21, Laws of Kenya. It is also averred that the interested party transacted with a limited liability company, and the principle in Salomon vs. Salomon & Company [1897] AC 22 applied, so that liability ought not attach on the ex parte applicant.
6. It is argued that the prosecution is unjustified, and it infringed on rights under Articles 28, 29(a) and 49 of the Constitution, and offends Article 157(11) of the Constitution, by advancing an ulterior commercial purpose, instead of public interest or administration of justice. Based on that, the ex parte applicant had invoked Article 157(6)(c) of the Constitution and section 89(a) of the Criminal Procedure Code, Cap 75, Laws of Kenya, and invited the 1st respondent to consider withdrawal of the charges, which was declined, by the 1st respondent, in a letter, dated 27th November 2026.
7. The verifying affidavit, sworn by the ex parte applicant, on 13th January 2026, is not of the sort that is expected to be filed in cases of this nature, for it is a 4-paragraph affidavit, merely confirming the contents of the statutory statement. Yet, the verifying affidavit is meant to state the facts, to support the pleadings in the statement. There is a difference between the verifying affidavit filed in suits commenced by plaint or petition, which tend to lack detail. The verifying affidavits in those suits are so thin, because, in those suits, witness statements are filed and the matter is disposed on based on viva voce evidence, where witnesses in fact attend court, testify and are cross-examined. In judicial review proceedings, there is nothing of that kind. No oral evidence is taken, and, therefore, no witness statements are filed, and no oral proceedings are conducted, where viva voce evidence is taken. The verifying affidavit, for the purpose of judicial review proceedings, should, therefore, be more comprehensive, averring to detailed facts and annexing the documents relied upon, for there would be no other opportunity for other evidence to be adduced.
8. Secondly, under Order 53 rule 2(a) of the Civil Procedure Rules, the statement should only set out the name and description of the applicant, the relief sought, and the grounds on which it is sought. It is not supposed to carry detailed facts of evidential nature on the matter. Those facts should be set out in the verifying affidavit, according to Order 53 rule 2(b) of the Civil Procedure Rules.
9. For avoidance of doubt, Order 53 rule 2(a)(b) states as follows:
“(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.”
10. Thirdly, evidence is adduced under oath, whether in affidavit form or orally in court. The only exception would be where the person giving the evidence does not understand the nature of the oath, due to disability of minority age or mental infirmity, according to section 19 of the Oaths and Statutory Declarations Act, Cap. 15, Laws of Kenya. Where a case rests or depends on documentary evidence, such evidence is annexed to the affidavit or produced in court under oath. The statement, envisaged in Order 53 rule 2(a) is not an affidavit. It should not carry evidential material. Therefore, no documents ought to be introduced to court through it, as documentary evidence. The case is by the party, and evidence is tendered by the party. The statement would not be signed by the party, where represented by an Advocate, but by the Advocate himself. The party signs the verifying affidavit, and the documentary evidence ought to be produced through that affidavit.
11. I say all this because I have seen that the documentary evidence relied on by the ex parte applicant, is not mentioned at all in the affidavit. The documents are mentioned in the statement, and attached to it as annextures. These annextures are then commissioned, for I see a stamp of a Commissioner for Oaths, with a signature, purported to be that of the Commissioner for Oaths, purporting that the said document was annexed to an affidavit or declaration. The verifying affidavit does not refer to any annexture, and, therefore, the Commissioner for Oaths, commissioning that affidavit did not have before him or her any annextures that he or she could commission as such. The annextures are to the statement, yet the statement is not a document on oath, and the Commissioner for Oaths did not commission it. Clearly, therefore, there is a problem with this documentary material that I am being invited to look at, in consideration of the application before me.
12. Anyhow, the said documents include the charge sheet in Milimani MCCRC No. E034 of 2025; the trade finance support agreement; the arbitral award, dated 11th February 2025; and the letter, from the 1st respondent, declining to withdraw the prosecution in Milimani MCCRC No. E034 of 2025.
13. The substantive Motion was served, for I can see an affidavit of service, sworn on 15th January 2026. Upon being served, the respondents and the interested party have filed responses.
14. The response by the 1st and 2nd respondents takes the form of a replying affidavit, sworn by No. 62348 Police Sergeant Evans Gitonga, the officer investigating the case in Milimani MCCRC No. E034 of 2025. He avers that he received a complaint from the interested party and Mr. Vimal Shah, concerning a deposit of Kshs. 102,437,500.00, into an account of Bee N Bee Limited, operated by the ex parte applicant, on the understanding that the money would be converted into US dollars. Investigations revealed that Bee N Bee Limited was not registered to carry out foreign exchange business.
15. It is averred that the ex parte applicant recorded a statement with the police. He indicated that he knew the complainant, that is Mr. Shah, for 15 years, and that he, the ex parte applicant, introduced Mr. Shah to Bee N Bee Company, which is owned by him, the ex parte applicant. The 2 then entered into an agreement, signed by Bee N Bee and the interested party. Subsequent to the terms of the agreement, the money, Kshs. 102,437,500.00, was deposited into an account of Bee N Bee at Standard Chartered Bank. The money was later transferred to an account in the name of Pershing VC Group at Credit Bank Kenya. The business did not go as expected, as Pershing VC Group failed to remit the dollars as indicated to Bee N Bee. That led to a push and pull between the parties, culminating in the arbitral proceedings. The prosecution file was compiled, and forwarded to the 1st respondent, who recommended prosecution.
16. It is asserted that the 1st respondent acted within the confines of Article 157 of the Constitution, the Office of the Director of Public Prosecutions Act, Cap. 6B, Laws of Kenya, and the National Prosecution Policy, when he made the decision to prosecute, and that there was no abuse of office, or abrogation or infringement of any provision of the Constitution, or human and fundamental rights of the ex parte applicant, or that of any written law or regulations made under it. The court is urged not to interfere with the constitutional mandate of the 2nd respondent, to institute and undertake criminal proceedings.
17. Attached to that affidavit are a number of documents. There is a bank statement from the account of the interested party, showing a debit, out of its account at Standard Chartered Bank, of a sum of Kshs. 102,437,500.00, on 23rd May 2023. There is a copy of a bank statement relating to an account of Bee N Bee Kenya Limited, showing a credit into that account, of Kshs. 102,437,500.00, being a transfer from the interested party, on 23rd May 2023. There is a record from the Register of Companies, relating to the registration status of Bee N Bee Limited, as at 9th June 2023, indicating that it was registered on 5th January 2022, and that the ex parte applicant was its sole shareholder and director. There is a letter, from the Business Registration Service, dated 22nd September 2023, on the status of Bee N Bee Limited, giving a historical background of the company, indicating that the ownership, as at that date, rested solely with the ex parte applicant. There is a letter from the Capital Markets Authority, giving an indication that Bee N Bee Limited and Pershing VC Group Limited were not licensed under the Capital Markets Act, Cap. 485A, Laws of Kenya. There is the statement that the ex parte applicant recorded with the police, dated 9th October 2023. There is also a copy of the trade finance support agreement.
18. The reaction to the application, by the interested party, is by way of an affidavit by Mr. Shah, in his capacity as director and Chairman of the interested party. He expresses his awareness that a company acts through its directors, and that it is on that basis that he reported the matter to the police, and that the charge, in Milimani MCCRC No. E034 of 2025, was a culmination of the investigations carried out by the police. He avers that the ex parte applicant, and the co-accused of the ex parte applicant in Milimani MCCRC No. E034 of 2025, Mr. Nicholas Alexander Nesbitt, visited him, on 23rd May 2023, and expressed capability to assist with provision of foreign currency, USD in particular, at a time when there was a crunch. Based on that he, Mr. Shah, on behalf of the interested party, and the ex parte applicant, on behalf of Bee N Bee Limited, entered into an agreement, the same day, where the interested party would deposit a sum of Kshs. 102,437,500.00 into the account of Bee N Bee Limited, at Standard Chartered Bank Limited, which money Bee N Bee Limited would convert into USD 745,000.00, to be transferred to the account of the interested party on 24th May 2023.
19. Mr. Shah avers that the interested party entered into that arrangement on the representations that the ex parte applicant and his friend, Mr. Nesbitt, had made to him. He explains that he trusted them, for he had known the colleague of the ex parte applicant, the said Mr. Nesbitt, for a while. He asserts that the 2 had an intent to defraud unsuspecting individuals and entities, like the interested party, through a shell company. The court is urged not to interfere with the prosecution, as that would not be in public interest. He expresses lack of awareness of any conspiracy to frustrate the ex parte applicant, and that issues relating to the merits of the criminal charge should be left to the court competent to try it.
20. He states that he has not coerced the authorities to move against the ex parte applicant, submitting that he has no capacity to direct a State organ. He avers that the respondents are established by the Constitution, and, therefore, they cannot be acting under his control. He asserts that the decision to prosecute was made by the relevant authorities in accordance with the law applicable. He submits that the issues the ex parte applicant is now raising are issues that he would have an opportunity to raise at trial, for consideration by the court seized of the matter. He argues that, just as accused persons have rights, so do complainants, like the interested party, to have their grievances heard and determined by the court. He urges the High Court not to interfere with the criminal process.
21. There are several annextures. There is a document from the website of BNX Partners, showing the ex parte applicant and Mr. Nesbett as partners. There is also a copy of the bond form, in Milimani MCCRC No. E034 of 2025, as testimony that the ex parte applicant has been admitted to bond.
22. The 3rd respondent reacted by way of filing grounds of opposition. Several grounds are raised, which include the order of prohibition not being sought merely because of pendency of parallel civil and criminal proceedings, for section 193A of the Criminal Procedure Code, Cap. 75, Laws of Kenya, permits such parallelism; the order of prohibition is reserved for cases where a public body acts without jurisdiction or in excess of jurisdiction or contravention of natural justice, and there is no demonstration of that in the instant case; the 3rd respondent is merely exercising its ordinary criminal jurisdiction, to hear and determine the charge in Milimani MCCRC No. E034 of 2025; there is no demonstration that the 3rd respondent has acted in excess of jurisdiction, or breached rules of natural justice, or has acted in a manner amounting to procedural impropriety; the judicial review application is premature, and a disguised substitute for the criminal trial process; the stay granted does not constitute a finding that the criminal proceedings are deficient; the ex parte applicant has left jurisdiction upon being granted bond/bail, skipped court and a warrant of arrest has issued, which means he comes to court without clean hands; and the application is not premised on any jurisdictional error, or contrariness or statutory edict.
23. The application is canvassed by way of written submissions, filed following the directions given on 25th February 2026.
24. The written submissions by the ex parte applicant are dated 10th April 2026. Only 1 issue is identified, whether the prosecution of the ex parte applicant is in abuse of prosecutorial discretion. There is acknowledgement that the 1st respondent has authority, under Article 157 of the Constitution to undertake prosecutions, and that the 1st respondent would not be under the control or direction of the exercise of that authority. However, it is submitted that Article 157(11) of the Constitution leaves some room, for judicial intervention, for that provision requires that the exercise of that authority should be subject to public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process. Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) is cited in support.
25. It is also submitted that there is insufficient evidence to support the charge preferred, of conspiracy, contrary to section 317 of the Penal Code. Clause 3.2.1 of the Decision to Charge, Guideline, 2019, and Murimi Waigwe vs. Attorney General & 4 others [2020] KHC 9746 (KLR) are cited. It is also submitted that the criminal proceedings are being employed to compromise pure civil proceedings, contrary to section 193 of the Criminal Procedure Code. Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR) and Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Ltd & 4 others [2013] KECA 182 and Agnes Ngenesi Kinyua aka Agnes Kinywa vs. Director of Public Prosecution & another [2019] KEHC 7257 (KLR), are cited in support.
26. The 1st and 2nd respondents have filed joint written submissions, dated 21st April 2026. 2 issues are identified, around the lawfulness of the arraignment of the ex parte applicant, and the application meeting the requisite conditions for grant of the orders sought. The authority of the 1st respondent to initiate prosecution against anyone within the Republic is asserted, based on Article 157 of the Constitution, and it is argued that the 1st respondent has acted fully within its mandate. Pauline Raget Adhiambo vs. DPP and 5 others (2010) Petition No. 446 of 2015, Republic vs. The Commissioner of Police & the Director of Public Prosecutions Ex parte Michael Monari & another Misc. Application No. 68 of 2011, Cascade Company Limited vs. Kenya Association of Music Production (KAMP) & others Murang’a HC Petition No. 7 of 2024 and Maina & 4 others vs. Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR), are cited in support. It is argued that venturing to assess sufficiency of evidence would usurp the mandate of the trial court, and Kuria & 3 others vs. Attorney General [2002] 2 KLR 69, is cited.
27. The written submissions by the 3rd respondent are dated 24th April 2026. They turn around 3 issues, whether section 193A of the Criminal Procedure Code is a bar to the orders sought; whether the threshold for grant of the orders sought has been met; and whether the application constitutes abuse of process. Oloo vs. Director of Public Prosecutions [2022] KEHC 14841 (KLR), Republic vs. Njoroge & another [2024] 3 KEHC 1295 (KLR), Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Ltd & 4 others [2013] KECA 182, Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR, Republic vs. Kenya Revenue Authority, ex parte Yaya Towers Limited [2008] eKLR, Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR), Maina & 4 others vs. Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR), Republic vs. Commissioner of Police & another Ex Parte Monari & another [2012] KEHC 4595 (KLR) and Alfred Lumiti Lusiba vs. Pethad Ranik Shantilal & 2 others [2016] KEHC 6978 (KLR) are cited.
28. The written submissions by the interested party, dated 13th April 2026, identify only 1 issue for determination, which is whether this court should interfere with the decision of the 1st respondent to charge the ex parte applicant. Article 157(1) of the Constitution is cited, to assert that the 1st respondent has complete independence in making decisions to initiate prosecutions, and is not subject to control from anyone, not even the court. It is argued that intervention should only be in cases where there is clear evidence of breach of constitutional duty to act, on the part of the 1st respondent, and where there is abuse of discretion. Jirongo vs. Soy Developers Ltd & 9 others; State of West Bengal & others vs. Swapan Kumar Guha & others AIR 1982 SC 949; Pepsi Foods Ltd & Another vs. Special Judicial Magistrate & others AIR 1998 SC 128 and G Ugar Suri & another vs. State of UP & others AIR 2000 SC 754 are cited in support. It is further submitted that section 193A of the Criminal Procedure Code allows parallel civil and criminal proceedings, and that the mere fact that a civil decree has been obtained, with respect to the same matter, should be no bar to criminal prosecution. Republic vs. Attorney General ex parte Arap Ngeny HCCC APP. No. 406 of 2001 is cited.
29. The ex parte applicant has filed further supplementary submissions, dated 30th April 2026, prompted by the submissions of the other parties. They turn on issues relating to section 193 of the Criminal Procedure Code, and whether it constitutes a bar to the orders sought; the established threshold for the grant of certiorari and prohibition, and whether it has been met; and whether the application is in abuse of the court process. Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Ltd & 4 others [2013] KECA 182, Julius Meme vs. Republic & another [2004] KEHC 2623 (KLR), Wambugu & 5 others vs. Director of Public Prosecutions and 2 others: Highchem East Africa Limited (interested party)[2025] KEHC 2691 (KLR), Guantai vs. Chief Magistrate, Nairobi [2007] KECA 496 (KLR), Jirongo vs. Soy Developers Ltd & 9 others [2021] KESC 32 (KLR), among others, are cited.
30. There are only 2 issues for determination herein, whether the High Court can intervene, through judicial review, with respect to the investigative and prosecutorial functions of the 1st and 2nd respondents, and in a criminal court case pending trial before the 3rd respondent; and whether there is any merit in the instant application.
31. On the first issue, the starting point should be with stating that the 1st and 2nd respondents are entities within the Executive branch of the State, while the 3rd respondent is an entity within the Judiciary, with clear constitutional and statutory foundations for their respective mandates in the criminal justice system. The High Court belongs to the Judicial branch of government, with its own clear constitutional and statutory lanes. The doctrine of separation of powers, set out in Articles 1(3) and 174(i) of the Constitution, expects each branch of government to stick to its own lane. The provisions of the Constitution, which set up the investigative, prosecutorial and judicial authorities, all assert the decisional independence of each of these authorities, in the discharge of their respective mandates.
32. However, the independence stated in those provisions is not altogether without limits. The Constitution, at Article 10, sets out the national values and principles of governance that ought to guide public bodies in the discharge of their duties. They bind all State organs, State Officers and public officers, who have to apply and interpret the Constitution and the law, and implement public policy. The values and principles include rule of law, human dignity, equity, social justice, good governance, integrity, transparency and accountability. The independence of the State organs, entities and offices has to be exercised within the framework of these values.
33. These national values and principles find expression in the Bill of Rights, that is in Chapter Four of the Constitution. The courts, particularly the High Court, by virtue of Articles 23 and 165 of the Constitution, are at the very core of the Bill of Rights, as the guardians of constitutional rights and freedoms, and they are where the people run to whenever their rights and freedoms are violated or infringed, or threatened with violation or infringement. It is in that context that matters such as the instant one find their way in court.
34. Sometimes some State organs, agencies and offices are uncomfortable with the High Court intervening into the discharge of their mandate. They view it as interference, basing themselves on the notion and doctrine of separation of powers, and the expectation that the Judiciary, being part of the State, should exercise deference to the other organs of the State, and there are shades of that language, in the response herein by the 1st and 2nd respondents, in some of their filings in this matter. The High Court does not interfere, for interference has the connotation of poking one’s nose into other people’s affairs or business. The High Court merely discharges its constitutional and statutory duty, upon being invited to by litigants, who approach it, because the law permits them to, and the High Court intervenes within the confines of the law. The High Court does not seek out or solicit for the filing of cases of this kind, they are filed by members of the public, on their own volition, and once filed, the High Court cannot just ignore the cases, so filed, or wish them away, it has to handle and dispose of them, as I hereby do. The High Court cannot be said to be interfering in the mandates of the respondents, where the Constitution and the law expressly mandates it to make the sort of interventions sought herein. That is what Articles 23 and 165 of the Constitution speak to.
35. The High Court is vested with constitutional mandate, under the Bill of Rights, to entertain any claim, where rights and freedoms are alleged to have been violated or infringed, or are said to be in danger of violation or infringement. The people have rights, under the Constitution, to rush to the High Court, to challenge decisions of State organs, entities and offices, which have allegedly violated their rights or freedoms, or threaten such rights and freedoms with violation or infringement, so that the High Court can intervene, by way of auditing the processes, to establish the veracity of those allegations. The State should not be irritated when members of the public file such claims, and when the High Court entertains them. There would be exercise of constitutional rights by the people, and discharge of constitutional duty by the High Court. The Constitution has provided the framework for it, and the State has no option but to learn to live with that reality, and to abide by what the Constitution requires.
36. Executive powers and functions are limited, by the Constitution itself and any governing legislation. They are to be discharged within the narrow confines of what the Constitution and the governing legislation provides. Since they are limited, they would be open to challenge. The Constitution has provided pathways for such challenges. The key remedies available, which are identified in the Constitution, and elaborated in legislation, include certiorari, mandamus, prohibition and declarations. The ex parte applicant herein is seeking 2 of the said remedies, and he is perfectly within his constitutional rights to do so. Whether his case is merited, is a matter for me to determine, upon examination of the material that has been tabled here, by all the sides.
37. The short of it is that the applicant is within his constitutional and statutory rights to challenge the discharge of the investigative and prosecutorial functions by the respondents, and the court is within its constitutional and statutory function to entertain such a challenge.
38. On the second issue, with respect to the merits of this case, I will start by stating that these are judicial review proceedings. The function of the court, seized of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural unfairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 30.
39. The decision, under challenge herein, is that relating to charging the ex parte applicant with conspiracy to defraud. The 2nd respondent herein received the complaint against the ex parte applicant, carried out enquiries and conducted investigations, before recommending the charge to the 1st respondent. The 1st respondent evaluated the investigation file, presented by the 2nd respondent, and approved that charge, resulting in the ex parte applicant being presented in court, before the 3rd respondent, for plea-taking and trial. It would be within the constitutional and legal mandate of the 2nd respondent to carry out enquiries, conduct investigations and make recommendations for prosecution. The 2nd respondent did what was expected of it in law, upon receiving the complaint, for it carried out enquiries, conducted
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