REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION
CONSTITUTIONAL PETITION NO. E004 OF 2026
CHARLES WALIOLI WABWOBA...…………..……………………1 ST PETITIONER
DIANA WABWILE………………………………………………….2 ND PETITIONER
-VERSUS-
ETHICS AND ANTI-CORRUPTION COMMISSION………..…….1 ST RESPONDENT
DIRECTOR OF CRIMINAL INVESTIGATIONS………………….2 ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS………………….3 RD RESPONDENT
THE HON. ATTORNEY GENERAL…...………………………….4 TH RESPONDENT
JUDGMENT
The petitioners who were at the time of commencement of these proceedings the County Attorney and County Solicitor for the County Government of Transnzoia respectively approached this court vide petition dated 4 th June 2025 praying for the following;
a. A declaration that the petitioners’ rights under Articles 27(1), (2), (3) and (4); 28 and 47(1) and (2) of the Constitution have been violated.
b. A permanent conservatory order restraining the respondents from arresting, charging and or detaining the petitioners in relation to investigations of obstructing persons without justification or lawful excuse contrary to Section 66(1) as read with section 66(2) of the Anti-Corruption and Economic Crimes Act and unlawful damage to public property contrary to section 48 of the Anti-Corruption and Economic Crimes Act and or any matter whatsoever undertaken and in relation to their employment as the County Attorney and County Solicitor respectively.
c. Damages for the constitutional violations.
d. Costs of the petition.
Petitioners’ case
The circumstances surrounding the claim is laid out in the supporting affidavit sworn by the 1 st respondent on 4 th June 2025. In it, the respondents alleged that they were facing imminent arbitrary arrest and arraignment in an Anti-Corruption Court on strength of malicious and fabricated complaint lodged by officers of the 1 st respondent that they obstructed its officers from carrying out their mandate and unlawful damage of public property. The offences were said to have been committed on 19 th May 2025 when the 1 st respondent’s officers raided the Kitale home of the Governor of Transnzoia County to conduct search and seizure of documents for furtherance of investigations related to corruption and embezzlement of public funds of the said government.
The petitioners aver that the raid was highly publicized in all media platforms including international and national television and radio stations attracting a huge attention of members of the public. According to the petitioners, their presence in the Governor’s residence was necessitated by their functions as stipulated in Sections 7, 8, 9 and 17 of the Office of the County Attorney Act since the matter was of general public interest which they have statutory and constitutional duty to protect just like the 1 st respondent.
They add that upon arrival at the scene, they calmly made enquiry of what was transpiring as would be expected of them upon which the 1 st respondent’s officers explained to them the purpose of their visit at which time the search exercise had been concluded and the officers were taking inventory of the seized items. The petitioners state further that, the 1 st respondent’s officers were welcoming, cooperative and collaborating well including showing the petitioners the search warrants.
It is deponed further that after the exercise was concluded, the officers of the 1 st respondent left amid protests from members of the public who had surged outside the gate of the residence and chanting freedom songs in support of the Governor since the media had publicized that the Governor was under attack.
The petitioners add that on 24 th May 2026, the 2 nd respondent by a way of a letter issued summons requiring attendance of various county officials including them for questioning over the alleged offences to which the petitioners complied by availing themselves on 25 th May 2025 and recording statements clarifying their role and explaining their presence at the scene and denouncing obstructing and causing any damage. The petitioners claim that there was insinuation by the 1 st respondents’ officers that they could be held vicariously liable for the criminal actions of destruction of property by hundreds of third parties who had surged the Governor’s residence.
The petitioners deny that they had a role in the commotion and were also in danger as they were not known to the Governor’s supporters. They claim to have negotiated their exit from the scene as the crowd was seemingly mistaking them for the 1 st respondent’s officers. They add that on 3 rd June 2025, the 1 st and 2 nd respondents’ officers dramatically arrested various county officials at Milimani law courts where they had attended mention for the Governor’s case. Some of these officials had appeared in the list in the 2 nd respondent’s summons dated 24 th May 2025. This scenario sent apprehension that the petitioners were likely to be arrested as there was no formal communication that the respondents had dropped the intended charges against them.
The petitioners aver further that after the arrests of 3 rd June 2025, they have been receiving suspicious private calls from unidentified individuals from the 1 st respondent’s head offices inviting them for meetings outside the 1 st respondent’s offices so they can fix matters for them. They allege that the 3 rd respondent being complicit in the 1 st and 2 nd respondents’ actions, it will likely approve any charges recommended by the 1 st respondent without following the due process or taking into consideration the weight of evidence and legality of charges.
According to the petitioners, they are protected under Section 10 of the County Attorney Act from criminal and civil liabilities emanating from the course of discharging their mandate under the Act. They add that the respondents’ intended action of framing them up amounts to illegality as they are criminalizing the work and duties of the County Attorney and Solicitor which is expressly protected. Finally, the petitioners claim that the investigations and the intended prosecution are abuse of power, oppressive and unreasonable.
The respondents’ case
The 1 st respondent opposed the petition through a replying affidavit sworn by Emmanuel Arunga on 24 th June 2025 while the 3 rd and 4 th respondents did so vide grounds of opposition dated 19 th June 2025 and 8 th December 2025 respectively.
In the replying affidavit, the deponent avers that the petition is misconceived and granting of the orders sought would amount to interference and usurpation of the respondents’ constitutional and statutory powers to investigate criminal offences. He avers that on 26 th July 2023, the 1 st respondent received allegations that the Governor of the County was involved in conflict of interest by receiving money from entities trading with the County upon which it commenced investigations. It sought and obtained warrants for search upon which a search was conducted at the Governor’s private residence in Milimani Kitale which was done according to the law. Mr. Arunga adds that during the search, a security breach occurred leading to destruction of the 1 st respondent’s vehicles and injuries to its staff members.
He states further that, investigations established that during the commotion, the petitioners together with other County officials carted away items and documents seized during the search together with the inventories which had been prepared with the aim to frustrate the investigations which incident was reported to the police station and all persons of interest present at the scene were to be interviewed. He adds that the petitioners having been present at the scene of crime and having participated in the chaos that ensued, were persons of interest in the investigations.
He argues further that the petitioners’ official duties does not include representing the county officials in criminal cases and the investigations having been in the private residence of the Governor, the petitioners cannot be shield by the County Attorney Act. He adds that the petitioners will have an opportunity to defend themselves before the trial court in the event they are charged and denies that the 1 st respondents’ actions violated the petitioners’ constitutional rights.
The 2 nd respondent did not appear or file any reply to the petition although the it would ordinarily be represented by the 4 th respondent. On the part of the 3 rd respondent, it is stated that the petition is misconceived, bad in law and incompetent and does not meet the threshold for a constitutional petition since it does not set out with reasonable degree of precision which of the petitioners’ rights have been infringed or violated by the 3 rd respondent. The 3 rd respondent adds that the petitioners have misapprehended its statutory and constitutional mandate which is limited to prosecution with investigation mandate being reserved for the police service. The 3 rd respondent concludes by stating that the petition is meant to scuttle investigations and as such there is no cause of action against it.
The 4 th respondent’s grounds of opposition reiterate what the 3 rd respondent had stated and add that the police investigative agencies acted within their mandates and there is no credible evidence that they acted in excess of jurisdiction or permissible force. It adds that the petition is premature and the proper forum for challenging legality of the charges is before the trial court. It also argues that the petition violates the twin principles of constitutional avoidance and exhaustion and that the petitioners have an alternative remedy should the intended charges be found to have violated their rights. The 4 th respondent states further that suppressing the investigations through this petition would be against public interest and will amount to interference with the mandate of the 1 st to 3 rd respondents.
Analysis and determination
In addition to the averments reproduced above, the petitioners, the 1 st respondent and the 3 rd respondent filed submissions dated 28 th July 2026, 13 th February 2026 and 1 st October 2025. Their respective advocates appeared and highlighted the said submissions on 8-06-2026. I have read and considered the oral and written submissions alongside the other documents filed by the parties. Having done so, I form opinion that the issues for determination in this petition are; whether there is a disclosed cause of action against the 3 rd respondent and whether the respondent’s acts complained of violated the rights of the petitioners to an extent that would justify granting of the orders as prayed.
As much as I can decipher from the pleadings and submissions, the petitioners are claiming that their rights to fair trial will be violated if they are arrested and charged; the police have treated the petitioner with bias and discriminatively at the behest of a complaint thus violating their rights to freedom from discrimination and equality before the law; their right to dignity and protection of their dignity have been violated; and the respondents’ actions are infringement to their right to freedom of movement and right to fair administrative action. There is also a claim that their right to legitimate expectation that the 3 rd respondent will act impartially and in the interest of the public as required under Articles 157(11) and 244 of the Constitution is likely to be infringed.
For good reasons, I will start with considering whether there is a disclosed cause of action against the 3 rd respondent. I say so because all that the petitioners have said about the 3 rd respondent is that, it is not likely to be objective or act impartially and in public interests as required of it under Article 157(11) of the Constitution. In their submissions, the petitioners have not accused the 3 rd respondent of having given any instructions or participated in the exercise of investigating the petitioners leave alone arrest.
The powers and functions of the 3 rd respondent are provided for in Article 157 of the Constitution and Section 5 of the Office of Director Public Prosecutions Act Chapter 6B of the Laws of Kenya. The 3 rd respondent does not have investigative powers but may direct the Inspector General of Police or other investigative agencies to conduct investigations of an offence under powers donated by Article 157(4) of the Constitution and Sections 5(1)(a) and (2)(b) of the Office of Director Public Prosecutions Act.
In relation to this petition and in the context of the above cited Article and Sections, the 3 rd respondent could only be accused of violation of the petitioners’ rights if it had set in motion the exercise of its powers under the said provisions which it has not. As far as I understand the petition, the 1 st respondent filed a complaint with the police after the incident of 19 th May 2026 which culminated to issuing of summons for recording of statements. The recording of statement was followed by arrest of some undisclosed county officials by the 2 nd respondent. There is no evidence that the 3 rd respondent received any file or recommendation for charging of the arrested persons leave alone the petitioners.
Based on the above, I am inclined to agree with the 3 rd respondent that this petition is premature as it relates to it and the averments and apprehensions pleaded against it are speculative. The argument by the petitioners that their legitimate expectation that the 3 rd respondent will act impartially and in public interest will be breached is in my view farfetched and unsustainable. At this early stage, I find that the petition is unmerited against the 3 rd respondent and it is a good candidate for dismissal.
Turning to the petition against the other respondents, it has been argued by the respondents that the petitioners have not stated with reasonable degree of precision which of and how their constitutional rights were violated. I have looked at the petition and the submissions of the petitioners and I cannot say that they have not identified the specific constitutional rights they claim to have been violated. I have stated these rights elsewhere above. There is no prescribed form of how a petitioner should draw their pleadings and in my view, as long as the court is able to sieve through and identify the rights claimed to have been violated, the petition would be valid.
It has been deponed and submitted by the petitioners that their right to a fair hearing will not be guaranteed if they are arrested and charged. In response to this claim, the 1 st respondent has maintained that the right has not crystalised because the petitioners have not been charged. Article 50(1) which enshrines the right to a fair hearing provides as follows;
‘Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.’
It is clear from the above that the right is anchored on and concerns proceedings before a court, tribunal or other bodies. The investigations being challenged by the petitioners in this matter have not reached the stage of litigation or prosecution. In that regard, I do agree with the petitioners that the right to a fair hearing becomes applicable once a trial or charges have been commenced against a person. Apprehension, fear or speculation of the future happening unless supported by concrete evidence of motive other than enforcement of the law and public order and interest cannot found a claim for violation of the right to a fair hearing. Once the person is charged with a criminal offence, the right to a fair hearing is afforded, protected and facilitated by the trial court and not the investigators. Based on this position, I find and hold that the apprehension the petitioners are habouring are nothing more than speculations.
In the judgment of Honourable Justice GBM Kariuki in Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR), it was held that;
‘However, the invocation of Article 50 of the Constitution by the 1st respondent and its endorsement by the Industrial Court was misplaced. The right to fair hearing in Article 50 relates to hearing before a Court i.e. a court of law (as defined by the interpretation and general provisions Act Cap 2) or, if appropriate, another independent and impartial tribunal or body.’
The petitioners have claimed that the respondents are biased and not objective in their investigations and as such their actions amount to abuse of power. It is common ground that the petitioners were under investigations for an offence known in law. The summons which required them among others to appear and attend at the police station was specific on what the 2 nd respondent was investigating. The petitioners have acknowledged that they were present at the place and time the offence is alleged to have occurred. They have also acknowledged that they participated albeit remotely to what was happening and actively witnessed the hostility of the crowd. The petitioners obeyed the summons and recorded statement and for good measure, they were not arrested.
It is not in doubt that the 2 nd respondent in summoning the petitioners and others was acting within its mandates. If indeed the 2 nd respondent had ulterior motive in summoning the petitioners it would have detained them or taken adverse action against them on the date they went to record their statements. The petitioners were given an opportunity to address and answer to the issues raised against them and as such they are not right in claiming that the respondents would not be objective simply because they were summoned by the investigative agencies.
The petitioners claim that the actions the respondents are pursuing do not constitute the offence they intend to mount against them. In my analysis, the narrative the petitioners have given may constitute a defence once and if they are charged but that fact does not meet the threshold for granting conservatory orders or injunctions. It is trite that the High Court should not halt criminal proceedings on grounds that the petitioners or applicants have a good defence to the intended prosecution. A criminal trial cannot be conducted by way of a constitutional petition. The High Court must give the other institutions, bodies, courts and tribunals freedom, time and opportunity to complete their process without interference unless there is demonstrated ill or ulterior motive on the part of the actors that infringes on the petitioner’s constitutional rights.
In Attorney General v Attorney General for and on Behalf of the Inspector General of Police, Director of CID, Chief Magistrate Nairobi & Director of Public Prosecution ex-parte Thomas Ng’ang’a Munene [2014] KEHC 4913 (KLR, it was held as follows;
‘That now brings me to the merits of the application. t is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.’
The petitioners have also argued that their right to personal dignity and protection of the dignity as enshrined in Article 28 of the Constitution is threatened. Dignity of a person is their inherent and unearned worth or value. The Constitution contemplates a situation and protects the right for one to be treated as a human being worth of respect and value as such. Dignity does not depend on the society’s view or opinion of the persons concerned but the inherent right as a human being. It is not an issue of one’s reputation or how high they may be held in the society.
Honourable Justice John M. Mativo gave directions on what constitutes right to human dignity when he stated in MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR) that;
‘Article 28 provides no definition of dignity. However its role and importance as a foundational constitutional value has been emphasized in a number of cases. In the South African case of S v Makwanyane , { 1995} ZACC 3; 1995 (3) SA 391(CC) in para [328] O'Regan J pointed out that "without dignity, human life is substantially diminished" and pronounced the prime value of dignity in the following terms:-
“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation of many of the other rights that are specifically entrenched in chapter 3.”
In the context of this matter, the petitioners have not in my analysis showed how the act of being investigated for a known and disclosed offence is likely or has caused or violated their right to dignity. The petitioners have argued that since they are public officers there is the risk of losing their career in case they are charged and that would lower their dignity. Setting the law in motion against a person does not mean that their dignity is being attacked. They are by law presumed innocent until otherwise proven guilty. The fact that one is a public officer does not afford them more dignity than the ordinary citizen. I find no merit in this claim and the same is disallowed.
The petitioners have also claimed that they are being discriminated by the way the investigations have been commenced. They however do not elaborate on where the discrimination is coming in. Discrimination occurs where a person or group of persons are being treated differently from others in similar circumstances or cases. In cases of this nature, discrimination will come in where it is demonstrated that the investigations are being carried out in a biased manner or the persons claiming existence of the same are being profiled based on their beliefs, status, gender or any other category or class.
In this matter the 2 nd respondent summoned persons it thought had information and something to do with the incident in question. The petitioners who were among those persons were at the scene and have confirmed that they had knowledge of what transpired. The complaint made by the 1 st respondent was that its officers were obstructed by persons including the petitioners. Some of the summoned persons were arrested but the petitioners were not.
The 2 nd respondent has a statutory and constitutional mandate and discretion to sieve through the evidence it collected and make a decision or recommend any charges against the suspects. This court did not take the statements from any suspect or witness or collect any evidence and has no jurisdiction to do so and cannot impose a decision on the investigators. In fact, this court would be promoting discrimination, preference or favours if it were to shield the petitioners from investigations, arrest or prosecution when the other unnamed persons were taken through the same process.
The other complaint is that the petitioner’s right to fair administrative action was being violated in the manner the respondents had taken up the matter. It is my position that the respondents were not in commencing and progressing investigations as narrated in this matter, making an administrative decision. They were investigating an offence whose complaint had rightly been received at the police station. The process of investigations cannot be faulted neither am I able to see any act which can be said to have been unfair to the petitioners. An administrative decision connotes a decision, act or omission of a public official that is expected to affect another person’s’ legal right.
In Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR) , it was held that;
Without attempting to lay an exhaustive distinction, the right to fair administrative action under article 47 is a distinct right from the right to fair hearing under article 50(1). Fair administrative action on the other hand refers broadly to administrative justice in public administration. It is concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations.
Even assuming that the respondents’ impugned actions were administrative ones, the petitioners have not convinced me what was unfair in the respondents exercising their statutory and constitutional duties and functions. They did not arbitrarily arrest the petitioners, they invited them for recording of statements through official channels and they were in the process of considering the evidence so far gathered in order to make a decision on whether or not the petitioners were culpable. I see nothing unfair with this.
In their oral submissions, the counsel for the parties made reference to a judgment by Justice Bahati Mwamuye in Natembeya v Director of Public Prosecutions & 4 others [2026] KEHC 3020 (KLR) where the court found that prosecution of the Governor based on the sequence of events from the time he was arrested, evidence was gathered and charged was unconstitutional and went on to award damages to the Governor. According to the petitioners, invalidation of the charges against the Governor should apply in this petition while the respondent urged me to distinguish the judgment and decline to be bound by the same as the same has been appealed.
I have read the judgment and, in my view, it has no bearing in this matter. The gist of the decision of my brother was that the act of arresting, detaining and denying the Governor access to counsel, obtaining his Mpesa statement and eventually charging him violated his rights. The Honourable Judge did not hold that the acts of investigations of the petitioners herein and others or the incidents at his residence in Kitale were unlawful. And even if the incidences in question in this petition were unlawful, it was not upon the petitioners or any other member of the public to intervene by obstructing the 1 st respondent’s officers or damaging its properties.
There is a claim that the petitioners went away with the inventory and interfered with the investigations. These are issues this court cannot ignore or deal with in this petition. The mandate to investigate those allegations lies with the 1 st and 2 nd respondents and I have no jurisdiction to stop them. A court must restrain itself from usurping powers of other statutory or constitutional bodies unless there is a clear demonstration of misuse or abuse of the powers or violation of the concerned person’s rights.
The last complaint is that the respondent’s act amounted to criminalizing the work of the petitioners and were in violation of Sections 7, 8, and 9 of the County Attorneys Act which shield the petitioners from civil or criminal liabilities while in discharge of their functions. It is clear to me that the impugned investigations are not limited to the petitioners’ presence at the scene but the action and conduct they displayed during the process. The fact that the petitioners are insulated from criminal and civil proceedings under the County Attorney Act does not make them absolutely immune to the law. The statutory insulation or protection are in respect of acts which are done within the law and in good faith.
The petitioners being public officers are expected and bound to act in the interest of the public. Stopping investigations is not in public interest neither is it within the functions of the petitioners and if they indeed obstructed investigations by authorized officers, they cannot hide behind the cited Sections of the law. Where a public officer acts in a manner that clearly violates the same law he is constitutionally bound to obey, protect and promote, they cannot plead statutory immunity. Public good is not served by shielding public officers from law enforcement agencies. Actually, it demands that public officers be open to scrutiny of the law and the law enforcement agencies be given freedom to do their work without undue interference.
In Geoffrey K. Sang v Director of Public Prosecutions & 4 others [2020] KEHC 9213 (KLR) , Honourable Justice G.V. Odunga (as he then was) held that;
‘It is trite that the Court ought not to usurp the constitutional and legal mandate of the 1 st and 2 nd Respondents to investigate any matter that, in the said Respondents’ view raises suspicion of the occurrence or imminent occurrence of a crime. Just like in cases of prosecution, the mere fact that the allegations made are likely to be found worthless, is not a ground for halting investigations into the complaints made or brought to the attention of the Respondents since the purpose of criminal investigations conducted bona fide
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION
CONSTITUTIONAL PETITION NO. E004 OF 2026
CHARLES WALIOLI WABWOBA...…………..……………………1 ST PETITIONER
DIANA WABWILE………………………………………………….2 ND PETITIONER
-VERSUS-
ETHICS AND ANTI-CORRUPTION COMMISSION………..…….1 ST RESPONDENT
DIRECTOR OF CRIMINAL INVESTIGATIONS………………….2 ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS………………….3 RD RESPONDENT
THE HON. ATTORNEY GENERAL…...………………………….4 TH RESPONDENT
JUDGMENT
The petitioners who were at the time of commencement of these proceedings the County Attorney and County Solicitor for the County Government of Transnzoia respectively approached this court vide petition dated 4 th June 2025 praying for the following;
a. A declaration that the petitioners’ rights under Articles 27(1), (2), (3) and (4); 28 and 47(1) and (2) of the Constitution have been violated.
b. A permanent conservatory order restraining the respondents from arresting, charging and or detaining the petitioners in relation to investigations of obstructing persons without justification or lawful excuse contrary to Section 66(1) as read with section 66(2) of the Anti-Corruption and Economic Crimes Act and unlawful damage to public property contrary to section 48 of the Anti-Corruption and Economic Crimes Act and or any matter whatsoever undertaken and in relation to their employment as the County Attorney and County Solicitor respectively.
c. Damages for the constitutional violations.
d. Costs of the petition.
Petitioners’ case
The circumstances surrounding the claim is laid out in the supporting affidavit sworn by the 1 st respondent on 4 th June 2025. In it, the respondents alleged that they were facing imminent arbitrary arrest and arraignment in an Anti-Corruption Court on strength of malicious and fabricated complaint lodged by officers of the 1 st respondent that they obstructed its officers from carrying out their mandate and unlawful damage of public property. The offences were said to have been committed on 19 th May 2025 when the 1 st respondent’s officers raided the Kitale home of the Governor of Transnzoia County to conduct search and seizure of documents for furtherance of investigations related to corruption and embezzlement of public funds of the said government.
The petitioners aver that the raid was highly publicized in all media platforms including international and national television and radio stations attracting a huge attention of members of the public. According to the petitioners, their presence in the Governor’s residence was necessitated by their functions as stipulated in Sections 7, 8, 9 and 17 of the Office of the County Attorney Act since the matter was of general public interest which they have statutory and constitutional duty to protect just like the 1 st respondent.
They add that upon arrival at the scene, they calmly made enquiry of what was transpiring as would be expected of them upon which the 1 st respondent’s officers explained to them the purpose of their visit at which time the search exercise had been concluded and the officers were taking inventory of the seized items. The petitioners state further that, the 1 st respondent’s officers were welcoming, cooperative and collaborating well including showing the petitioners the search warrants.
It is deponed further that after the exercise was concluded, the officers of the 1 st respondent left amid protests from members of the public who had surged outside the gate of the residence and chanting freedom songs in support of the Governor since the media had publicized that the Governor was under attack.
The petitioners add that on 24 th May 2026, the 2 nd respondent by a way of a letter issued summons requiring attendance of various county officials including them for questioning over the alleged offences to which the petitioners complied by availing themselves on 25 th May 2025 and recording statements clarifying their role and explaining their presence at the scene and denouncing obstructing and causing any damage. The petitioners claim that there was insinuation by the 1 st respondents’ officers that they could be held vicariously liable for the criminal actions of destruction of property by hundreds of third parties who had surged the Governor’s residence.
The petitioners deny that they had a role in the commotion and were also in danger as they were not known to the Governor’s supporters. They claim to have negotiated their exit from the scene as the crowd was seemingly mistaking them for the 1 st respondent’s officers. They add that on 3 rd June 2025, the 1 st and 2 nd respondents’ officers dramatically arrested various county officials at Milimani law courts where they had attended mention for the Governor’s case. Some of these officials had appeared in the list in the 2 nd respondent’s summons dated 24 th May 2025. This scenario sent apprehension that the petitioners were likely to be arrested as there was no formal communication that the respondents had dropped the intended charges against them.
The petitioners aver further that after the arrests of 3 rd June 2025, they have been receiving suspicious private calls from unidentified individuals from the 1 st respondent’s head offices inviting them for meetings outside the 1 st respondent’s offices so they can fix matters for them. They allege that the 3 rd respondent being complicit in the 1 st and 2 nd respondents’ actions, it will likely approve any charges recommended by the 1 st respondent without following the due process or taking into consideration the weight of evidence and legality of charges.
According to the petitioners, they are protected under Section 10 of the County Attorney Act from criminal and civil liabilities emanating from the course of discharging their mandate under the Act. They add that the respondents’ intended action of framing them up amounts to illegality as they are criminalizing the work and duties of the County Attorney and Solicitor which is expressly protected. Finally, the petitioners claim that the investigations and the intended prosecution are abuse of power, oppressive and unreasonable.
The respondents’ case
The 1 st respondent opposed the petition through a replying affidavit sworn by Emmanuel Arunga on 24 th June 2025 while the 3 rd and 4 th respondents did so vide grounds of opposition dated 19 th June 2025 and 8 th December 2025 respectively.
In the replying affidavit, the deponent avers that the petition is misconceived and granting of the orders sought would amount to interference and usurpation of the respondents’ constitutional and statutory powers to investigate criminal offences. He avers that on 26 th July 2023, the 1 st respondent received allegations that the Governor of the County was involved in conflict of interest by receiving money from entities trading with the County upon which it commenced investigations. It sought and obtained warrants for search upon which a search was conducted at the Governor’s private residence in Milimani Kitale which was done according to the law. Mr. Arunga adds that during the search, a security breach occurred leading to destruction of the 1 st respondent’s vehicles and injuries to its staff members.
He states further that, investigations established that during the commotion, the petitioners together with other County officials carted away items and documents seized during the search together with the inventories which had been prepared with the aim to frustrate the investigations which incident was reported to the police station and all persons of interest present at the scene were to be interviewed. He adds that the petitioners having been present at the scene of crime and having participated in the chaos that ensued, were persons of interest in the investigations.
He argues further that the petitioners’ official duties does not include representing the county officials in criminal cases and the investigations having been in the private residence of the Governor, the petitioners cannot be shield by the County Attorney Act. He adds that the petitioners will have an opportunity to defend themselves before the trial court in the event they are charged and denies that the 1 st respondents’ actions violated the petitioners’ constitutional rights.
The 2 nd respondent did not appear or file any reply to the petition although the it would ordinarily be represented by the 4 th respondent. On the part of the 3 rd respondent, it is stated that the petition is misconceived, bad in law and incompetent and does not meet the threshold for a constitutional petition since it does not set out with reasonable degree of precision which of the petitioners’ rights have been infringed or violated by the 3 rd respondent. The 3 rd respondent adds that the petitioners have misapprehended its statutory and constitutional mandate which is limited to prosecution with investigation mandate being reserved for the police service. The 3 rd respondent concludes by stating that the petition is meant to scuttle investigations and as such there is no cause of action against it.
The 4 th respondent’s grounds of opposition reiterate what the 3 rd respondent had stated and add that the police investigative agencies acted within their mandates and there is no credible evidence that they acted in excess of jurisdiction or permissible force. It adds that the petition is premature and the proper forum for challenging legality of the charges is before the trial court. It also argues that the petition violates the twin principles of constitutional avoidance and exhaustion and that the petitioners have an alternative remedy should the intended charges be found to have violated their rights. The 4 th respondent states further that suppressing the investigations through this petition would be against public interest and will amount to interference with the mandate of the 1 st to 3 rd respondents.
Analysis and determination
In addition to the averments reproduced above, the petitioners, the 1 st respondent and the 3 rd respondent filed submissions dated 28 th July 2026, 13 th February 2026 and 1 st October 2025. Their respective advocates appeared and highlighted the said submissions on 8-06-2026. I have read and considered the oral and written submissions alongside the other documents filed by the parties. Having done so, I form opinion that the issues for determination in this petition are; whether there is a disclosed cause of action against the 3 rd respondent and whether the respondent’s acts complained of violated the rights of the petitioners to an extent that would justify granting of the orders as prayed.
As much as I can decipher from the pleadings and submissions, the petitioners are claiming that their rights to fair trial will be violated if they are arrested and charged; the police have treated the petitioner with bias and discriminatively at the behest of a complaint thus violating their rights to freedom from discrimination and equality before the law; their right to dignity and protection of their dignity have been violated; and the respondents’ actions are infringement to their right to freedom of movement and right to fair administrative action. There is also a claim that their right to legitimate expectation that the 3 rd respondent will act impartially and in the interest of the public as required under Articles 157(11) and 244 of the Constitution is likely to be infringed.
For good reasons, I will start with considering whether there is a disclosed cause of action against the 3 rd respondent. I say so because all that the petitioners have said about the 3 rd respondent is that, it is not likely to be objective or act impartially and in public interests as required of it under Article 157(11) of the Constitution. In their submissions, the petitioners have not accused the 3 rd respondent of having given any instructions or participated in the exercise of investigating the petitioners leave alone arrest.
The powers and functions of the 3 rd respondent are provided for in Article 157 of the Constitution and Section 5 of the Office of Director Public Prosecutions Act Chapter 6B of the Laws of Kenya. The 3 rd respondent does not have investigative powers but may direct the Inspector General of Police or other investigative agencies to conduct investigations of an offence under powers donated by Article 157(4) of the Constitution and Sections 5(1)(a) and (2)(b) of the Office of Director Public Prosecutions Act.
In relation to this petition and in the context of the above cited Article and Sections, the 3 rd respondent could only be accused of violation of the petitioners’ rights if it had set in motion the exercise of its powers under the said provisions which it has not. As far as I understand the petition, the 1 st respondent filed a complaint with the police after the incident of 19 th May 2026 which culminated to issuing of summons for recording of statements. The recording of statement was followed by arrest of some undisclosed county officials by the 2 nd respondent. There is no evidence that the 3 rd respondent received any file or recommendation for charging of the arrested persons leave alone the petitioners.
Based on the above, I am inclined to agree with the 3 rd respondent that this petition is premature as it relates to it and the averments and apprehensions pleaded against it are speculative. The argument by the petitioners that their legitimate expectation that the 3 rd respondent will act impartially and in public interest will be breached is in my view farfetched and unsustainable. At this early stage, I find that the petition is unmerited against the 3 rd respondent and it is a good candidate for dismissal.
Turning to the petition against the other respondents, it has been argued by the respondents that the petitioners have not stated with reasonable degree of precision which of and how their constitutional rights were violated. I have looked at the petition and the submissions of the petitioners and I cannot say that they have not identified the specific constitutional rights they claim to have been violated. I have stated these rights elsewhere above. There is no prescribed form of how a petitioner should draw their pleadings and in my view, as long as the court is able to sieve through and identify the rights claimed to have been violated, the petition would be valid.
It has been deponed and submitted by the petitioners that their right to a fair hearing will not be guaranteed if they are arrested and charged. In response to this claim, the 1 st respondent has maintained that the right has not crystalised because the petitioners have not been charged. Article 50(1) which enshrines the right to a fair hearing provides as follows;
‘Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.’
It is clear from the above that the right is anchored on and concerns proceedings before a court, tribunal or other bodies. The investigations being challenged by the petitioners in this matter have not reached the stage of litigation or prosecution. In that regard, I do agree with the petitioners that the right to a fair hearing becomes applicable once a trial or charges have been commenced against a person. Apprehension, fear or speculation of the future happening unless supported by concrete evidence of motive other than enforcement of the law and public order and interest cannot found a claim for violation of the right to a fair hearing. Once the person is charged with a criminal offence, the right to a fair hearing is afforded, protected and facilitated by the trial court and not the investigators. Based on this position, I find and hold that the apprehension the petitioners are habouring are nothing more than speculations.
In the judgment of Honourable Justice GBM Kariuki in Judicial Service Commission v Shollei & another [2014] KECA 334 (KLR), it was held that;
‘However, the invocation of Article 50 of the Constitution by the 1st respondent and its endorsement by the Industrial Court was misplaced. The right to fair hearing in Article 50 relates to hearing before a Court i.e. a court of law (as defined by the interpretation and general provisions Act Cap 2) or, if appropriate, another independent and impartial tribunal or body.’
The petitioners have claimed that the respondents are biased and not objective in their investigations and as such their actions amount to abuse of power. It is common ground that the petitioners were under investigations for an offence known in law. The summons which required them among others to appear and attend at the police station was specific on what the 2 nd respondent was investigating. The petitioners have acknowledged that they were present at the place and time the offence is alleged to have occurred. They have also acknowledged that they participated albeit remotely to what was happening and actively witnessed the hostility of the crowd. The petitioners obeyed the summons and recorded statement and for good measure, they were not arrested.
It is not in doubt that the 2 nd respondent in summoning the petitioners and others was acting within its mandates. If indeed the 2 nd respondent had ulterior motive in summoning the petitioners it would have detained them or taken adverse action against them on the date they went to record their statements. The petitioners were given an opportunity to address and answer to the issues raised against them and as such they are not right in claiming that the respondents would not be objective simply because they were summoned by the investigative agencies.
The petitioners claim that the actions the respondents are pursuing do not constitute the offence they intend to mount against them. In my analysis, the narrative the petitioners have given may constitute a defence once and if they are charged but that fact does not meet the threshold for granting conservatory orders or injunctions. It is trite that the High Court should not halt criminal proceedings on grounds that the petitioners or applicants have a good defence to the intended prosecution. A criminal trial cannot be conducted by way of a constitutional petition. The High Court must give the other institutions, bodies, courts and tribunals freedom, time and opportunity to complete their process without interference unless there is demonstrated ill or ulterior motive on the part of the actors that infringes on the petitioner’s constitutional rights.
In Attorney General v Attorney General for and on Behalf of the Inspector General of Police, Director of CID, Chief Magistrate Nairobi & Director of Public Prosecution ex-parte Thomas Ng’ang’a Munene [2014] KEHC 4913 (KLR, it was held as follows;
‘That now brings me to the merits of the application. t is trite that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. That an applicant has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is open to the applicant in those proceedings. However, if the applicant demonstrates that the criminal proceedings that the police intend to carry out constitute an abuse of process, the Court will not hesitate in putting a halt to such proceedings.’
The petitioners have also argued that their right to personal dignity and protection of the dignity as enshrined in Article 28 of the Constitution is threatened. Dignity of a person is their inherent and unearned worth or value. The Constitution contemplates a situation and protects the right for one to be treated as a human being worth of respect and value as such. Dignity does not depend on the society’s view or opinion of the persons concerned but the inherent right as a human being. It is not an issue of one’s reputation or how high they may be held in the society.
Honourable Justice John M. Mativo gave directions on what constitutes right to human dignity when he stated in MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR) that;
‘Article 28 provides no definition of dignity. However its role and importance as a foundational constitutional value has been emphasized in a number of cases. In the South African case of S v Makwanyane , { 1995} ZACC 3; 1995 (3) SA 391(CC) in para [328] O'Regan J pointed out that "without dignity, human life is substantially diminished" and pronounced the prime value of dignity in the following terms:-
“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation of many of the other rights that are specifically entrenched in chapter 3.”
In the context of this matter, the petitioners have not in my analysis showed how the act of being investigated for a known and disclosed offence is likely or has caused or violated their right to dignity. The petitioners have argued that since they are public officers there is the risk of losing their career in case they are charged and that would lower their dignity. Setting the law in motion against a person does not mean that their dignity is being attacked. They are by law presumed innocent until otherwise proven guilty. The fact that one is a public officer does not afford them more dignity than the ordinary citizen. I find no merit in this claim and the same is disallowed.
The petitioners have also claimed that they are being discriminated by the way the investigations have been commenced. They however do not elaborate on where the discrimination is coming in. Discrimination occurs where a person or group of persons are being treated differently from others in similar circumstances or cases. In cases of this nature, discrimination will come in where it is demonstrated that the investigations are being carried out in a biased manner or the persons claiming existence of the same are being profiled based on their beliefs, status, gender or any other category or class.
In this matter the 2 nd respondent summoned persons it thought had information and something to do with the incident in question. The petitioners who were among those persons were at the scene and have confirmed that they had knowledge of what transpired. The complaint made by the 1 st respondent was that its officers were obstructed by persons including the petitioners. Some of the summoned persons were arrested but the petitioners were not.
The 2 nd respondent has a statutory and constitutional mandate and discretion to sieve through the evidence it collected and make a decision or recommend any charges against the suspects. This court did not take the statements from any suspect or witness or collect any evidence and has no jurisdiction to do so and cannot impose a decision on the investigators. In fact, this court would be promoting discrimination, preference or favours if it were to shield the petitioners from investigations, arrest or prosecution when the other unnamed persons were taken through the same process.
The other complaint is that the petitioner’s right to fair administrative action was being violated in the manner the respondents had taken up the matter. It is my position that the respondents were not in commencing and progressing investigations as narrated in this matter, making an administrative decision. They were investigating an offence whose complaint had rightly been received at the police station. The process of investigations cannot be faulted neither am I able to see any act which can be said to have been unfair to the petitioners. An administrative decision connotes a decision, act or omission of a public official that is expected to affect another person’s’ legal right.
In Judicial Service Commission v Mutava & another [2015] KECA 741 (KLR) , it was held that;
Without attempting to lay an exhaustive distinction, the right to fair administrative action under article 47 is a distinct right from the right to fair hearing under article 50(1). Fair administrative action on the other hand refers broadly to administrative justice in public administration. It is concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations.
Even assuming that the respondents’ impugned actions were administrative ones, the petitioners have not convinced me what was unfair in the respondents exercising their statutory and constitutional duties and functions. They did not arbitrarily arrest the petitioners, they invited them for recording of statements through official channels and they were in the process of considering the evidence so far gathered in order to make a decision on whether or not the petitioners were culpable. I see nothing unfair with this.
In their oral submissions, the counsel for the parties made reference to a judgment by Justice Bahati Mwamuye in Natembeya v Director of Public Prosecutions & 4 others [2026] KEHC 3020 (KLR) where the court found that prosecution of the Governor based on the sequence of events from the time he was arrested, evidence was gathered and charged was unconstitutional and went on to award damages to the Governor. According to the petitioners, invalidation of the charges against the Governor should apply in this petition while the respondent urged me to distinguish the judgment and decline to be bound by the same as the same has been appealed.
I have read the judgment and, in my view, it has no bearing in this matter. The gist of the decision of my brother was that the act of arresting, detaining and denying the Governor access to counsel, obtaining his Mpesa statement and eventually charging him violated his rights. The Honourable Judge did not hold that the acts of investigations of the petitioners herein and others or the incidents at his residence in Kitale were unlawful. And even if the incidences in question in this petition were unlawful, it was not upon the petitioners or any other member of the public to intervene by obstructing the 1 st respondent’s officers or damaging its properties.
There is a claim that the petitioners went away with the inventory and interfered with the investigations. These are issues this court cannot ignore or deal with in this petition. The mandate to investigate those allegations lies with the 1 st and 2 nd respondents and I have no jurisdiction to stop them. A court must restrain itself from usurping powers of other statutory or constitutional bodies unless there is a clear demonstration of misuse or abuse of the powers or violation of the concerned person’s rights.
The last complaint is that the respondent’s act amounted to criminalizing the work of the petitioners and were in violation of Sections 7, 8, and 9 of the County Attorneys Act which shield the petitioners from civil or criminal liabilities while in discharge of their functions. It is clear to me that the impugned investigations are not limited to the petitioners’ presence at the scene but the action and conduct they displayed during the process. The fact that the petitioners are insulated from criminal and civil proceedings under the County Attorney Act does not make them absolutely immune to the law. The statutory insulation or protection are in respect of acts which are done within the law and in good faith.
The petitioners being public officers are expected and bound to act in the interest of the public. Stopping investigations is not in public interest neither is it within the functions of the petitioners and if they indeed obstructed investigations by authorized officers, they cannot hide behind the cited Sections of the law. Where a public officer acts in a manner that clearly violates the same law he is constitutionally bound to obey, protect and promote, they cannot plead statutory immunity. Public good is not served by shielding public officers from law enforcement agencies. Actually, it demands that public officers be open to scrutiny of the law and the law enforcement agencies be given freedom to do their work without undue interference.
In Geoffrey K. Sang v Director of Public Prosecutions & 4 others [2020] KEHC 9213 (KLR) , Honourable Justice G.V. Odunga (as he then was) held that;
‘It is trite that the Court ought not to usurp the constitutional and legal mandate of the 1 st and 2 nd Respondents to investigate any matter that, in the said Respondents’ view raises suspicion of the occurrence or imminent occurrence of a crime. Just like in cases of prosecution, the mere fact that the allegations made are likely to be found worthless, is not a ground for halting investigations into the complaints made or brought to the attention of the Respondents since the purpose of criminal investigations conducted bona fide
[...truncated]