1. Before this Court is the Applicants’ Chamber Summons dated 2 March 2026. The Applicants seek leave to commence judicial review proceedings challenging the investigations and prosecution arising from Milimani MCCRC No. E323 of 2025 , in which they face a charge of conspiracy to commit a felony contrary to Section 393 of the Penal Code. They further seek that the leave, if granted, operate as a stay of the said criminal proceedings.
2. The Applicants' case is that the criminal proceedings arise from a dispute concerning LR No. 20261, which is also the subject of proceedings before the Environment and Land Court in ELCLC/E178/2023 - Holloway Properties Limited v Dave Mwangi, Moses Ojuka & Another. They contend that the criminal process has been invoked for collateral purposes in what is essentially a dispute concerning ownership of the property and that the decision to charge them is therefore amenable to judicial review.
3. The application is opposed. The 1 st and 2 nd Respondents filed a Replying Affidavit dated 24 April 2026. The 3 rd and 4 th Respondents filed Grounds of Opposition dated 12 March 2026 and a Replying Affidavit sworn on 7 May 2026. The Applicants filed written submissions dated 20 April 2026 while the 3 rd and 4 th Respondents filed submissions dated 15 June 2026.
4. There is, however, a procedural matter which requires clarification before the Court considers the application. The Court record shows that on 3 March 2026 directions were issued requiring the parties to file responses to the Chamber Summons, the Statutory Statement and Verifying Affidavit. Those directions were subsequently extended on 23 March 2026.
5. Upon scrutiny of the Court record, however, there is no order granting the Applicants leave to commence the substantive judicial review proceedings and no substantive Notice of Motion is on record. The pleadings and affidavits filed by the parties were, in fact, filed in response to the Chamber Summons dated 2 March 2026. Consequently, notwithstanding the references made during the proceedings of 13 May 2026 to a substantive judicial review application, the record does not demonstrate that leave had previously been granted or that a substantive motion had been filed. The matter therefore remains properly before the Court at the stage of the application for leave.
6. In the circumstances, the Court shall determine the Chamber Summons dated 2 March 2026 seeking leave to commence judicial review proceedings and, separately, consider whether such leave should operate as a stay of the criminal proceedings. The following two issues therefore arise for determination:
a. Whether the Applicants have established an arguable case warranting leave to commence judicial review proceedings; and
b. Whether, if leave is granted, the same should operate as a stay of proceedings in Milimani MCCRC E323 of 2025.
I. Whether the Applicants have established an arguable case warranting leave to commence judicial review proceedings;
7. The grant of leave under Order 53 of the Civil Procedure Rules is discretionary. At this stage, the Court is not called upon to determine the merits of the intended judicial review proceedings. The purpose of the leave stage is to filter out claims which are frivolous, vexatious or hopeless and to determine whether the material discloses a case fit for further investigation at the substantive hearing. In Republic v County Council of Kwale & Another; Kondo & 57 Others (Ex parte) [1998] KEHC 2 (KLR) , Waki J. held that:
Leave may only be granted if on the material available the court was of the view, without going into the matter in depth, that there was an arguable case for granting the relief claimed by the applicant, the test being whether there was a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It was an exercise of the court’s discretion but as always it had to be exercised judicially.
8. The material placed before the Court discloses an arguable complaint concerning the exercise of investigative and prosecutorial powers. The Applicants contend that the criminal proceedings are intertwined with the dispute over LR No. 20261 and allege that the criminal process has been employed for an improper or collateral purpose. The 3 rd and 4 th Respondents, on the other hand, maintain that the complaint was independently investigated, that official land records and forensic material were obtained, and that the decision to prosecute was made in the lawful exercise of the constitutional mandate vested in the Director of Public Prosecutions.
9. The competing positions raise questions concerning the legality and propriety of the decision-making process warranting further inquiry at the substantive stage. The Supreme Court in Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR) recognised investigative and prosecutorial mandates may only be interfered with where the constitutional and statutory requirements have not been adhered to or where the impugned action is illegal or unlawful. The court observed as follows;
A court should only interfere with the powers granted to the Inspector General and the DCI under articles 244 and 245 of the Constitution and under the provisions of the National Police Service Act if the constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful.
10. The Court therefore does not at this stage determine whether the Applicants will ultimately succeed in obtaining certiorari, prohibition or mandamus. The Court will also not determine the authenticity of the competing documents, ownership of the suit property or the Applicants' culpability in the criminal proceedings. Those matters fall for consideration in the appropriate forums. The limited question presently before the Court is whether the Applicants have raised issues deserving further investigation at the substantive stage.
11. On the material before Court, I am satisfied that they have. The Applicants have consequently crossed the relatively low threshold applicable at the leave stage.
II. Whether the leave granted should operate as a stay of proceedings in Milimani MCCRC No. E323 of 2025
12. The grant of leave does not automatically entitle an applicant to a stay. Whether leave should operate as a stay is a separate discretionary question requiring the Court to consider the circumstances of the particular case. A stay of proceedings is a serious and exceptional remedy because it interferes with the right of a litigant to have proceedings heard and determined without undue delay. It also interferes with the independent mandate of other constitutional offices.
13. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) , the Court observed that an order for stay of proceedings is a serious and fundamental interruption of the right to have proceedings heard and determined without delay and should therefore be granted sparingly and only in exceptional circumstances. In determining whether to grant a stay, the Court must consider the interests of justice and the circumstances of the particular case.
14. The Applicants' principal complaint is that the criminal case concerns the same property whose ownership is the subject of proceedings in ELCLC/E178/2023 - Holloway Properties Limited v Dave Mwangi, Moses Ojuka & Another . That circumstance, however, is not by itself sufficient. Section 193A of the Criminal Procedure Code expressly provides that,
….the fact that a matter in issue in criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
15. More importantly, as presently demonstrated by the record, the Applicants have not established circumstances sufficiently exceptional to justify interrupting the criminal proceedings. The 3 rd and 4 th Respondents have placed before the Court material indicating that investigations were undertaken following a complaint, including examination of documentary and forensic material, before the prosecutorial decision was made. The Applicants' allegation that the criminal process is being employed for an ulterior purpose remains a matter for determination at the substantive stage and has not, at this interlocutory stage, been shown to warrant the drastic remedy of stay.
16. Further, the intended judicial review proceedings concern the legality of the investigative and prosecutorial decision-making process. The continuation of the criminal proceedings does not, in itself, deprive this Court of the ability to determine that question. The Applicants remain entitled to raise their defences before the trial court, which is the proper forum for determination of the criminal charge on its merits. As the Court of Appeal stated in Director of Public Prosecutions v Martin Maina & 4 Others [2017] KECA 93 (KLR) ;
it was not the duty of the High Court in Judicial Review proceedings to evaluate the sufficiency of the evidence in the envisaged criminal proceedings, that is the function of the trial Court or the High Court in a criminal appeal.
17. In the circumstances, although the Applicants have demonstrated an arguable case sufficient to warrant leave, they have not satisfied the higher threshold for stay of the criminal proceedings. Consequently, the Chamber Summons dated 2 March 2026 is determined as follows:
a. Leave is hereby granted to the Applicants to commence judicial review proceedings for the orders of certiorari, prohibition and mandamus as sought in the Chamber Summons dated 2 March 2026.
b. The prayer that the leave so granted operate as a stay of proceedings in Milimani MCCRC No. E323 of 2025 is hereby declined.
c. The substantive Notice of Motion shall be filed and served within 7 days from the date hereof. Respondents shall file their responses within 14 days upon service.
d. Each party shall bear its own costs.
Dated and Delivered this 17 th day of September, 2026.
Nabil M. Orina
Judge
Ruling delivered virtually in the presence of:
Mr. Muriuki for the Applicants
Ms. Ijai h/b for Mr. Lyaga for the 3 rd & 4 th respondents
Linda - Court Assistant
Ruling - Nairobi (Milimani) HCJRMisc No. E030 of 2026
2. The Applicants' case is that the criminal proceedings arise from a dispute concerning LR No. 20261, which is also the subject of proceedings before the Environment and Land Court in ELCLC/E178/2023 - Holloway Properties Limited v Dave Mwangi, Moses Ojuka & Another. They contend that the criminal process has been invoked for collateral purposes in what is essentially a dispute concerning ownership of the property and that the decision to charge them is therefore amenable to judicial review.
3. The application is opposed. The 1 st and 2 nd Respondents filed a Replying Affidavit dated 24 April 2026. The 3 rd and 4 th Respondents filed Grounds of Opposition dated 12 March 2026 and a Replying Affidavit sworn on 7 May 2026. The Applicants filed written submissions dated 20 April 2026 while the 3 rd and 4 th Respondents filed submissions dated 15 June 2026.
4. There is, however, a procedural matter which requires clarification before the Court considers the application. The Court record shows that on 3 March 2026 directions were issued requiring the parties to file responses to the Chamber Summons, the Statutory Statement and Verifying Affidavit. Those directions were subsequently extended on 23 March 2026.
5. Upon scrutiny of the Court record, however, there is no order granting the Applicants leave to commence the substantive judicial review proceedings and no substantive Notice of Motion is on record. The pleadings and affidavits filed by the parties were, in fact, filed in response to the Chamber Summons dated 2 March 2026. Consequently, notwithstanding the references made during the proceedings of 13 May 2026 to a substantive judicial review application, the record does not demonstrate that leave had previously been granted or that a substantive motion had been filed. The matter therefore remains properly before the Court at the stage of the application for leave.
6. In the circumstances, the Court shall determine the Chamber Summons dated 2 March 2026 seeking leave to commence judicial review proceedings and, separately, consider whether such leave should operate as a stay of the criminal proceedings. The following two issues therefore arise for determination:
a. Whether the Applicants have established an arguable case warranting leave to commence judicial review proceedings; and
b. Whether, if leave is granted, the same should operate as a stay of proceedings in Milimani MCCRC E323 of 2025.
I. Whether the Applicants have established an arguable case warranting leave to commence judicial review proceedings;
7. The grant of leave under Order 53 of the Civil Procedure Rules is discretionary. At this stage, the Court is not called upon to determine the merits of the intended judicial review proceedings. The purpose of the leave stage is to filter out claims which are frivolous, vexatious or hopeless and to determine whether the material discloses a case fit for further investigation at the substantive hearing. In Republic v County Council of Kwale & Another; Kondo & 57 Others (Ex parte) [1998] KEHC 2 (KLR) , Waki J. held that:
Leave may only be granted if on the material available the court was of the view, without going into the matter in depth, that there was an arguable case for granting the relief claimed by the applicant, the test being whether there was a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It was an exercise of the court’s discretion but as always it had to be exercised judicially.
8. The material placed before the Court discloses an arguable complaint concerning the exercise of investigative and prosecutorial powers. The Applicants contend that the criminal proceedings are intertwined with the dispute over LR No. 20261 and allege that the criminal process has been employed for an improper or collateral purpose. The 3 rd and 4 th Respondents, on the other hand, maintain that the complaint was independently investigated, that official land records and forensic material were obtained, and that the decision to prosecute was made in the lawful exercise of the constitutional mandate vested in the Director of Public Prosecutions.
9. The competing positions raise questions concerning the legality and propriety of the decision-making process warranting further inquiry at the substantive stage. The Supreme Court in Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR) recognised investigative and prosecutorial mandates may only be interfered with where the constitutional and statutory requirements have not been adhered to or where the impugned action is illegal or unlawful. The court observed as follows;
A court should only interfere with the powers granted to the Inspector General and the DCI under articles 244 and 245 of the Constitution and under the provisions of the National Police Service Act if the constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful.
10. The Court therefore does not at this stage determine whether the Applicants will ultimately succeed in obtaining certiorari, prohibition or mandamus. The Court will also not determine the authenticity of the competing documents, ownership of the suit property or the Applicants' culpability in the criminal proceedings. Those matters fall for consideration in the appropriate forums. The limited question presently before the Court is whether the Applicants have raised issues deserving further investigation at the substantive stage.
11. On the material before Court, I am satisfied that they have. The Applicants have consequently crossed the relatively low threshold applicable at the leave stage.
II. Whether the leave granted should operate as a stay of proceedings in Milimani MCCRC No. E323 of 2025
12. The grant of leave does not automatically entitle an applicant to a stay. Whether leave should operate as a stay is a separate discretionary question requiring the Court to consider the circumstances of the particular case. A stay of proceedings is a serious and exceptional remedy because it interferes with the right of a litigant to have proceedings heard and determined without undue delay. It also interferes with the independent mandate of other constitutional offices.
13. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) , the Court observed that an order for stay of proceedings is a serious and fundamental interruption of the right to have proceedings heard and determined without delay and should therefore be granted sparingly and only in exceptional circumstances. In determining whether to grant a stay, the Court must consider the interests of justice and the circumstances of the particular case.
14. The Applicants' principal complaint is that the criminal case concerns the same property whose ownership is the subject of proceedings in ELCLC/E178/2023 - Holloway Properties Limited v Dave Mwangi, Moses Ojuka & Another . That circumstance, however, is not by itself sufficient. Section 193A of the Criminal Procedure Code expressly provides that,
….the fact that a matter in issue in criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
15. More importantly, as presently demonstrated by the record, the Applicants have not established circumstances sufficiently exceptional to justify interrupting the criminal proceedings. The 3 rd and 4 th Respondents have placed before the Court material indicating that investigations were undertaken following a complaint, including examination of documentary and forensic material, before the prosecutorial decision was made. The Applicants' allegation that the criminal process is being employed for an ulterior purpose remains a matter for determination at the substantive stage and has not, at this interlocutory stage, been shown to warrant the drastic remedy of stay.
16. Further, the intended judicial review proceedings concern the legality of the investigative and prosecutorial decision-making process. The continuation of the criminal proceedings does not, in itself, deprive this Court of the ability to determine that question. The Applicants remain entitled to raise their defences before the trial court, which is the proper forum for determination of the criminal charge on its merits. As the Court of Appeal stated in Director of Public Prosecutions v Martin Maina & 4 Others [2017] KECA 93 (KLR) ;
it was not the duty of the High Court in Judicial Review proceedings to evaluate the sufficiency of the evidence in the envisaged criminal proceedings, that is the function of the trial Court or the High Court in a criminal appeal.
17. In the circumstances, although the Applicants have demonstrated an arguable case sufficient to warrant leave, they have not satisfied the higher threshold for stay of the criminal proceedings. Consequently, the Chamber Summons dated 2 March 2026 is determined as follows:
a. Leave is hereby granted to the Applicants to commence judicial review proceedings for the orders of certiorari, prohibition and mandamus as sought in the Chamber Summons dated 2 March 2026.
b. The prayer that the leave so granted operate as a stay of proceedings in Milimani MCCRC No. E323 of 2025 is hereby declined.
c. The substantive Notice of Motion shall be filed and served within 7 days from the date hereof. Respondents shall file their responses within 14 days upon service.
d. Each party shall bear its own costs.
Dated and Delivered this 17 th day of September, 2026.
Nabil M. Orina
Judge
Ruling delivered virtually in the presence of:
Mr. Muriuki for the Applicants
Ms. Ijai h/b for Mr. Lyaga for the 3 rd & 4 th respondents
Linda - Court Assistant
Ruling - Nairobi (Milimani) HCJRMisc No. E030 of 2026