A. BACKGROUND
1. Alfred Geoffrey Leach, David Berry, Michael Allan Mckeever and Christopher Bruce Wilhelm (hereinafter the 1st, the 2nd, the 3rd and the 4th Petitioners respectively) commenced the present proceedings vide the amended petition dated 23rd January, 2026 where they sought the following reliefs;
a. A declaration that the Respondents violated Articles 2(1), 3(1), 10, 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 50, 73, 157(11), 159, 165(3), 232, 258, 259 & 260 as well as the provisions of Chapter Six of the Constitution.
b. A declaration that the Respondents violated the Petitioners’ right under Article 27 of the Constitution regarding the right to equality and freedom from discrimination by charging them and issuing warrants of arrest against them and a subsequent Interpol red notice without informing them of the existing charges against them.
c. A declaration do issue that the continued prosecution of the Petitioners in the manner proposed is unfair, discriminatory, an abuse of the process of the court, irrational, unreasonable, malicious, vexatious, oppressive and therefore unconstitutional and unsustainable.
d. An Order does issue that the warrant of arrest and the subsequent Interpol red notice against the Petitioners is unconstitutional, illegal, unfair and an abuse of the legal process.
e. An Order be and is hereby issued quashing in entirety the criminal proceedings in Kisumu CMCR No. E884 of 2021, Republic v Alfred Geoffrey Leach & 5 others, together with all charges, warrants of arrest, proceedings, records and consequential processes arising therefrom, and directing that the said criminal case be expunged forthwith from the records of the trial court, the Directorate of Criminal Investigations, the Office of the Director of Public Prosecutions and all other criminal justice and law-enforcement databases.
f. Any other relief that court may deem just and expedient in the circumstances.
g. That the costs of this petition be borne by the Respondents
B. THE PETITIONERS’ SUPPORTING AFFIDAVIT.
2. In support of their case, the Petitioners filed a supporting affidavit sworn on 5th March, 2025 by the 4th Petitioner in which he deposed that he was duly authorized by his co-petitioners to swear the affidavit on their behalf, having full knowledge of the matters in issue. He averred that the Petitioners were aircraft engineers, aircraft and aircraft parts salespersons and were engaged in the business of leasing aircraft.
3. The 4th Petitioner deposed that the petition arose from Kisumu Criminal Case No. E884 of 2021, Republic v Alfred Geoffrey Leach & 5 Others, in which the Petitioners had been charged with the offences of forgery contrary to Section 349 of the Penal Code and conspiracy to commit a felony contrary to Section 393 of the Penal Code. He annexed a copy of the charge sheet marked “CW-1”.
4. The deponent averred that the principal grievance giving rise to the petition was that neither he nor the other Petitioners had been informed that criminal charges had been preferred against them, nor had they been summoned, interviewed or afforded an opportunity to record statements before the decision to prosecute was made.
5. According to the deponent, the Petitioners only became aware of the criminal proceedings when the 1st Petitioner was arrested in Hamburg, Germany, on 9th November, 2022 pursuant to an Interpol red notice issued through Interpol Nairobi. He annexed a copy of the red notice marked “CW-2”.
6. He further stated that the 1st Petitioner successfully challenged the arrest before the German legal system, resulting in the lifting of the warrant against him in Germany, after which he was released and allowed to return to Britain without being extradited to Kenya.
7. The deponent explained that the criminal complaint stemmed from the purchase of an aircraft from Manunggal Air in or about September, 2014 pursuant to an agreement between Wilken Aviation Ltd, represented by the complainant in the criminal case, Newton Omondi Osiemo, and Flying Tiger Oversize Cargo (FTOC), represented by the 1st Petitioner.
8. He stated that the aircraft was initially registered in the Central African Republic before being deregistered, after which efforts were made to register it in Comoros. He annexed a copy of the aircraft bill of sale and the registration cancellation documents marked “CW-3” and “CW-4”, respectively.
9. He further deposed that after several unsuccessful attempts to register the aircraft, it was flown to Kisumu International Airport where it remained grounded. He stated that the parties later mutually agreed that the aircraft required routine maintenance and consequently agreed that it be ferried to the Entebbe Maintenance Base in Uganda.
10. According to him, the aircraft was flown to Entebbe with the complainant’s full knowledge following a meeting held at the complainant’s offices. He averred that while at Entebbe, a red flag was placed on the aircraft because Wilken Air allegedly owed one Chapman Freeborn, the original vendor and broker involved in the sale, outstanding sums of money, and that the aircraft remained in Entebbe.
11. The deponent contended that the ensuing criminal complaint was founded on one-sided evidence arising from what was essentially a commercial dispute that had deteriorated and ought properly to have been resolved through civil proceedings. He maintained that the Petitioners were denied an opportunity to rebut the allegations or to record statements before the decision to charge them was made. He further stated that none of the Petitioners had ever been formally summoned to appear before court and that, being outside Kenya, they only became aware of the existence of warrants of arrest through the Interpol red notice.
12. He deposed that upon learning of the charges, the Petitioners instructed their advocates to establish the nature of the proceedings against them. Their advocates consequently wrote to the trial court by a letter dated 21st November, 2022, to which the court responded by a letter dated 7th December, 2022. Copies of those letters are annexed as “CW-5” and “CW-6”.
13. He further stated that their advocates subsequently addressed a letter dated 28th May, 2024 to the 2nd Respondent seeking a review of the decision to charge the Petitioners, but no response was received. A copy of that letter is annexed as “CW-7.”
14. The deponent further stated that the 1st Petitioner thereafter lodged an application before the Commission for the Control of Interpol’s Files seeking the removal of the Interpol red notice on the grounds that the information processed lacked a clear description of his alleged criminal involvement and was inaccurate. He deposed that the Commission found that the data relating to the 1st Petitioner was not compliant with Interpol’s applicable rules on the processing of personal data and directed that it be deleted from Interpol’s files and website. He has annexed a copy of the Commission’s decision marked “CW-8.”
15. He nevertheless averred that despite the removal of the Interpol data, the criminal charges and warrants of arrest remained in force in Kenya. He maintained that the warrants had been obtained without affording the Petitioners an opportunity to present their version of events or to record statements during investigations.
16. He further stated that the Petitioners had always been reachable by telephone and email despite travelling frequently outside the country, and that the Respondents made no effort to contact or hear them before making the decision to prosecute.
17. The deponent asserted that, upon the advice of counsel, the Respondents had failed to comply with the requirements of Article 50 of the Constitution, the Criminal Procedure Code and the Guidelines on the Decision to Charge, 2019, by failing to notify or summon the Petitioners before instituting criminal proceedings. He maintained that the charges were therefore procedurally irregular, unfair and ought to be quashed.
18. He further deposed that after the arrest of the 1st Petitioner, the Petitioners instructed their advocates to request the 1st Respondent to withdraw the charges and lift the warrants of arrest until due process had been observed, but the request was not acted upon. He contended that the failure to follow proper procedure violated the Petitioners’ constitutional rights and raised serious concerns regarding the legality and fairness of the prosecution.
19. On the legal foundation of the petition, the deponent averred that the Constitution safeguards national values and principles of governance, including human dignity, equality, social justice, human rights and the rule of law, and that Article 157(11) obliges the Director of Public Prosecutions to have regard to the public interest, the interests of the administration of justice and the need to prevent abuse of the legal process.
20. He further deposed that the National Prosecution Policy requires prosecutors to ensure that there is sufficient admissible evidence and that a prosecution serves the public interest, and to objectively evaluate all evidence both for and against a suspect before preferring charges.
21. Finally, the deponent asserted that the decision to investigate, arrest and charge the Petitioners was unconstitutional, unlawful, arbitrary and unreasonable, and violated numerous provisions of the Constitution, including Articles 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 50, 73, 157(11), 159, 165(3), 232, 258, 259 and 260.
22. In particular, he alleged that the Respondents discriminated against the Petitioners by failing to notify or summon them before preferring charges despite having the means to do so, thereby infringing their right to equality before the law under Article 27 of the Constitution.
23. He accordingly urged the Court to grant the orders sought in the Petition to vindicate and protect the Petitioners’ constitutional rights and fundamental freedoms.
C. THE POSITIONS OF THE 1ST & 3RD RESPONDENTS.
24. Although duly served with the petition and the accompanying pleadings, the 1st and 3rd Respondents did not file any replying affidavits, grounds of opposition or any other response to oppose the petition despite the court being satisfied that proper service had been effected upon both Respondents in accordance with the law, and the matter therefore proceeded notwithstanding their failure to participate in these proceedings.
D. THE 2ND RESPONDENT’S REPLYING AFFIDAVIT.
25. In opposition to the petition, the 2nd Respondent filed a replying affidavit sworn on 22nd December, 2025 by Bernice Daisy Kagali, Principal Prosecution Counsel, in which she deposed that the 2nd Respondent opposed the petition on the ground that it had been overtaken by events and had consequently been rendered nugatory following the arrest of the 4th Petitioner on 3rd December, 2025 and his subsequent arraignment before the Chief Magistrate’s Court at Kisumu in Kisumu CMCC No. E408 of 2025.
26. She further deposed that the 4th Petitioner took plea on 4th December, 2025, whereupon a plea of not guilty was entered. She stated that the trial court admitted him to bond in the sum of Ksh.5,000,000/- with two sureties of a similar amount and on condition that he deposits his Canadian passport in court.
27. According to the deponent, those orders were made notwithstanding that the investigating officer had filed an affidavit dated 5th December, 2025 opposing the grant of bond.
28. The deponent maintained that all the applicable statutory procedures were complied with during the arrest of the 4th Petitioner and at the time of plea taking. She therefore denied that there had been any violation of the Petitioners’ constitutional rights under the Constitution.
29. It was her further deposition that, since the petition had been rendered nugatory by the arraignment of the 4th Petitioner before the trial court, this court ought not to interfere with the orders issued by that court, which she maintained were lawful and made in accordance with the applicable statutory provisions.
E. THE 2ND RESPONDENT’S GROUNDS OF OPPOSITION.
30. The 2nd Respondent also filed a statement of grounds of opposition dated 28th January, 2026 incorporating a preliminary objection in which it contended that the petition had been overtaken by events and had consequently become moot following the arrest and arraignment of the 4th Respondent before the trial court in Kisumu CMCR No. E884 of 2021 and that consequently, the reliefs seeking his release from custody and restraining his arraignment had been rendered academic.
31. It was further argued that the complaint that the Petitioners had been denied an opportunity to be heard before being charged had been substantially addressed through the arraignment process, where the 4th Petitioner had taken plea and was now participating in the criminal proceedings. The court was therefore urged to decline jurisdiction over what had become an academic dispute.
32. The 2nd Respondent further raised a preliminary objection that the petition constituted an abuse of the constitutional process as it amounted to a collateral attack on pending criminal proceedings. It was contended that any complaints regarding alleged procedural irregularities ought to be raised before the trial court, which possessed jurisdiction to determine preliminary objections, applications to quash charges and other interlocutory matters.
33. The Respondent further maintained that the Petitioners had failed to exhaust the remedies available within the criminal proceedings and were improperly invoking the court’s constitutional jurisdiction as a means of avoiding trial.
34. It was also contended that the petition was premature since it sought to terminate the criminal proceedings at their inception before the trial court had an opportunity to determine either the procedural issues or the substantive charges. According to the 2nd Respondent, the Petitioners had not demonstrated any exceptional circumstances or irreparable prejudice warranting the intervention of the constitutional court, particularly because the 4th Petitioner had already been released on bond.
35. On the merits, the 2nd Respondent maintained that the Director of Public Prosecutions had acted within the constitutional mandate conferred by Article 157 of the Constitution by authorizing the prosecution on the basis of evidence gathered during investigations. It was argued that the DPP exercises independent prosecutorial discretion and does not require the consent of any person before instituting criminal proceedings.
36. The Respondent further contended that Article 157(11) merely guides the exercise of prosecutorial discretion and does not provide an independent basis upon which every charging decision may be challenged through constitutional litigation.
37. The 2nd Respondent further asserted that the Directorate of Criminal Investigations acted within its constitutional and statutory mandate under Article 247 of the Constitution and the National Police Service Act in investigating the complaint made by the complainant in the criminal case. It was contended that investigators are under no constitutional or statutory obligation to notify suspects of ongoing investigations or to invite them to record statements before preferring charges, particularly where the suspects are outside the jurisdiction or are likely to evade the criminal process.
38. The Respondent denied that the Petitioners possessed any constitutional or statutory right to prior notice of investigations or a pre-charge hearing. It was contended that neither the Constitution nor the Criminal Procedure Code requires investigators or prosecutors to consult suspects before charges are preferred.
39. It was further argued that Article 47 of the Constitution concerning fair administrative action was inapplicable because the decision to prosecute is a prosecutorial, rather than an administrative function, while the right to a fair trial under Article 50 arises only after criminal proceedings have commenced.
40. The 2nd Respondent further contended that the National Prosecution Policy and the Decision to Charge Guidelines merely guide prosecutorial discretion and do not create enforceable rights in favour of suspects.
41. The 2nd Respondent further denied violating any of the Petitioners’ constitutional rights. It contended that the Petitioners had adopted a broad and unspecific approach by citing numerous constitutional provisions without demonstrating any actual infringement.
42. It was maintained that the Petitioners had been treated in accordance with the law applicable to all persons accused of criminal offences, that their arrest and detention were lawful and pursuant to valid warrants of arrest, and that their rights under Articles 27, 28, 29 and 50 of the Constitution had not been violated since they had access to legal representation, had been admitted to bond and would be accorded a fair trial before the criminal court.
43. The 2nd Respondent further contended that the criminal charges were founded upon a proper investigation into serious allegations of criminal conduct and not merely upon a commercial dispute as alleged by the Petitioners. It maintained that the existence of a commercial relationship between the parties did not preclude criminal liability where the evidence disclosed the commission of criminal offences.
44. It was further asserted that the DPP had satisfied both the evidential test and the public interest test prescribed under the National Prosecution Policy before authorizing the prosecution and that the decision to prosecute was neither irrational nor actuated by malice.
45. With regard to the Interpol red notice, the 2nd Respondent contended that the Petitioners had misconstrued the effect of the decision of the Commission for the Control of Interpol’s Files. According to the Respondent, the Commission merely found that the processing of the Petitioner’s personal data did not comply with Interpol’s internal rules and directed the deletion of that data.
46. It was argued that the Commission neither determined the validity of the criminal charges nor invalidated the warrants of arrest issued by the trial court, which remained lawful and enforceable independently of the Interpol process.
47. The 2nd Respondent also maintained that the Petitioners had adequate alternative remedies within the criminal proceedings, including raising objections before the trial court, challenging the admissibility of evidence and, if dissatisfied with the outcome, pursuing the appellate process provided by law. It was therefore contended that constitutional jurisdiction ought not to be invoked where adequate statutory remedies existed.
48. The Respondent further argued that granting the reliefs sought would offend the constitutional principles of separation of powers by interfering with the prosecutorial mandate of the Director of Public Prosecutions under Article 157 of the Constitution and by usurping the jurisdiction of the trial court to determine the criminal proceedings on their merits. It maintained that constitutional courts should exercise restraint and avoid interrupting ongoing criminal prosecutions except in exceptional circumstances.
49. The 2nd Respondent further denied that the prosecution had been actuated by malice, bad faith or any ulterior motive. It was contended that the prosecution was initiated following a legitimate complaint by the complainant and after proper investigations by the Directorate of Criminal Investigations. The 2nd Respondent maintained that the Petitioners’ dissatisfaction with the decision to prosecute did not, without more, demonstrate abuse of process or improper motive.
50. It was further contended that there existed a significant public interest in ensuring that persons accused of committing criminal offences in Kenya were brought before the courts irrespective of their nationality or residence. The Respondent argued that allowing the Petition would undermine the administration of criminal justice, deny the complainant access to justice and encourage accused persons, particularly foreign nationals, to avoid prosecution by characterizing criminal allegations as commercial disputes.
51. Lastly, the 2nd Respondent contended that the Petitioners had been guilty of inordinate delay. It was asserted that the criminal proceedings had been instituted in 2021 and that the Petitioners had been aware of the charges and warrants of arrest since at least November, 2022, yet they only filed the present constitutional petition in December, 2025 after the arrest of the 4th Petitioner.
52. According to the 2nd Respondent, the Petition was therefore an afterthought intended to avoid trial, the doctrine of laches applied and the continued absence of the Petitioners from Kenya despite their knowledge of the pending warrants demonstrated that they were evading the criminal justice process and justified the continued enforcement of those warrants.
53. The Court was consequently urged to dismiss both the Petition and the application with costs and to allow the criminal proceedings to proceed to their lawful conclusion.
F. THE PETITIONERS’ SUBMISSIONS.
54. In their written submissions, the Petitioners aver that the petition challenges the constitutionality, legality and propriety of the decision by the Respondents to investigate, arrest and charge them in Kisumu CMCR No. E884 of 2021, procure warrants of arrest against them and trigger the issuance of an Interpol red notice without first notifying, summoning or affording them an opportunity to be heard.
55. They submit that the Petition is founded upon Articles 2, 3, 10, 19–23, 25, 27, 28, 29, 47, 50, 73, 157(11), 159, 165(3), 232, 258, 259 and 260 of the Constitution, Section 4 of the Office of the Director of Public Prosecutions Act, Section 4 of the Fair Administrative Action Act, the National Prosecution Policy and the Decision to Charge Guidelines, 2019.
56. The Petitioners submit that the criminal proceedings arise from what is essentially a commercial dispute relating to the sale, leasing, registration and maintenance of an aircraft, which dispute was improperly transformed into a criminal prosecution.
57. They contend that the impugned decision-making process was procedurally unfair, irrational and contrary to the Constitution, statute and the applicable prosecution policy.
58. They emphasize that the Court is not being invited to determine the merits of the criminal charges but rather to exercise its constitutional mandate under Articles 22, 23 and 165 of the Constitution by examining whether the Respondents exercised their powers in a manner consistent with constitutional and statutory requirements.
59. The Petitioners further submit that although the Director of Public Prosecutions enjoys constitutional independence under Article 157 of the Constitution, such independence is not absolute. They argue that Article 157(11) expressly requires the Director of Public Prosecutions to exercise prosecutorial powers with due regard to the public interest, the interests of the administration of justice and the need to prevent abuse of the legal process, thereby empowering the High Court to intervene where those constitutional standards have not been met.
60. They therefore submit that the present petition satisfies the constitutional threshold by specifically identifying the constitutional provisions alleged to have been violated, the impugned actions and omissions, and the reliefs sought.
61. On the factual background, the Petitioners reiterate that the dispute originated from a 2014 commercial transaction involving the purchase and operation of a Transall C160 aircraft between Wilken Aviation Limited and Flying Tiger Oversize Cargo Pty Ltd. They submit that all subsequent registration, deregistration, maintenance arrangements and movements of the aircraft, including its transfer to Entebbe for maintenance, were undertaken with the knowledge and consent of the complainant in the criminal case.
62. According to the Petitioners, the aircraft remains in Uganda because of outstanding commercial obligations owed by Wilken Aviation to a third-party aircraft broker, Chapman Freeborn.
63. The Petitioners submit that notwithstanding the commercial nature of the dispute, the complainant lodged a criminal complaint leading to investigations and the institution of criminal charges against them without their knowledge or participation. They contend that they were neither summoned to record statements nor invited to produce documents or explain their version of events before warrants of arrest were obtained against them.
64. They further submit that the issuance of the Interpol red notice resulted in the arrest of the 3rd Petitioner in Hamburg, Germany, on 9th November, 2022, but that he successfully challenged the notice before the German courts and was released without extradition.
65. They further rely upon the subsequent decision of the Commission for the Control of Interpol’s Files directing the deletion of the red notice data for non-compliance with Interpol’s rules, while maintaining that the criminal charges nevertheless remained in force.
66. The Petitioners submit that throughout the material period they remained reachable through email and telephone and that the Respondents deliberately failed to contact them before initiating criminal proceedings or invoking international arrest mechanisms.
67. They therefore contend that the criminal process was improperly employed to exert pressure in a commercial dispute and that the impugned actions violated their constitutional rights under Articles 27, 28, 29, 47 and 50 of the Constitution.
68. With regard to Article 27, the Petitioners submit that they were subjected to unequal and arbitrary treatment by being charged, having warrants issued against them and being subjected to an Interpol red notice without the procedural safeguards ordinarily afforded to suspects, including being summoned to record statements or participate in pre-charge investigations. They argue that this amounted to discrimination and unequal protection of the law.
69. On Articles 28 and 29 of the Constitution, the Petitioners submit that the issuance of the Interpol red notice resulted in reputational damage, anxiety and psychological distress, culminating in the arrest and detention of the 3rd Petitioner in Germany.
70. They contend that the use of international arrest mechanisms in what they describe as a commercial dispute, and without according them procedural fairness, constituted a disproportionate interference with their dignity and freedom.
71. The Petitioners further submit that the decisions to institute criminal proceedings, obtain warrants of arrest and seek an Interpol red notice constituted administrative actions subject to Article 47 of the Constitution and the Fair Administrative Action Act. They argue that they were entitled to prior notice, an opportunity to be heard and reasons before those decisions were made.
72. In support of that proposition, they rely on Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, where the Court of Appeal held that Article 47 constitutionalized the right to fair administrative action and subjected administrative decisions of public bodies to constitutional standards of fairness, transparency and accountability.
73. They submit that the Respondents’ failure to notify them of the investigations, invite them to record statements or respond to their subsequent requests for review violated Article 47 and Section 4 of the Fair Administrative Action Act.
74. The Petitioners further contend that Article 50 of the Constitution protects not only the conduct of the trial itself but also the fairness of pre-trial processes culminating in the institution of criminal charges. They submit that charging them in absentia, without notification or an opportunity to respond, exposing them to international arrest through an Interpol red notice, undermined the presumption of innocence and denied them adequate opportunity to prepare their defence, thereby violating Article 50(2)(b) and (c) of the Constitution.
75. On the exercise of prosecutorial discretion, the Petitioners submit that Article 157(11) of the Constitution, Section 4 of the Office of the Director of Public Prosecutions Act, the National Prosecution Policy and the Decision to Charge Guidelines require the Director of Public Prosecutions to apply both the evidential test and the public interest test before instituting criminal proceedings.
76. They rely on Republic & Another v Director of Public Prosecutions & 2 Others (Interested Parties) [2021] KEHC 2886 (KLR), in which the High Court emphasized that prosecutors must objectively evaluate both inculpatory and exculpatory evidence and refrain from employing the criminal process to resolve civil disputes.
77. They submit that the Respondents failed to obtain or consider the Petitioners’ version of events, ignored exculpatory material, failed to appreciate the commercial nature of the dispute and declined to review the charges even after the Interpol Commission found the red notice data to be non-compliant.
78. The Petitioners further submit that the criminal proceedings amount to an abuse of the court process because they arise from a commercial relationship involving international aircraft sale, registration, maintenance and financing arrangements. They contend that rather than pursuing civil remedies or arbitration, the complainant improperly invoked the criminal process to gain leverage in a private commercial dispute. They therefore argue that the prosecution constitutes an abuse of prosecutorial power contrary to Article 157(11) of the Constitution.
79. The Petitio
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1. Alfred Geoffrey Leach, David Berry, Michael Allan Mckeever and Christopher Bruce Wilhelm (hereinafter the 1st, the 2nd, the 3rd and the 4th Petitioners respectively) commenced the present proceedings vide the amended petition dated 23rd January, 2026 where they sought the following reliefs;
a. A declaration that the Respondents violated Articles 2(1), 3(1), 10, 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 50, 73, 157(11), 159, 165(3), 232, 258, 259 & 260 as well as the provisions of Chapter Six of the Constitution.
b. A declaration that the Respondents violated the Petitioners’ right under Article 27 of the Constitution regarding the right to equality and freedom from discrimination by charging them and issuing warrants of arrest against them and a subsequent Interpol red notice without informing them of the existing charges against them.
c. A declaration do issue that the continued prosecution of the Petitioners in the manner proposed is unfair, discriminatory, an abuse of the process of the court, irrational, unreasonable, malicious, vexatious, oppressive and therefore unconstitutional and unsustainable.
d. An Order does issue that the warrant of arrest and the subsequent Interpol red notice against the Petitioners is unconstitutional, illegal, unfair and an abuse of the legal process.
e. An Order be and is hereby issued quashing in entirety the criminal proceedings in Kisumu CMCR No. E884 of 2021, Republic v Alfred Geoffrey Leach & 5 others, together with all charges, warrants of arrest, proceedings, records and consequential processes arising therefrom, and directing that the said criminal case be expunged forthwith from the records of the trial court, the Directorate of Criminal Investigations, the Office of the Director of Public Prosecutions and all other criminal justice and law-enforcement databases.
f. Any other relief that court may deem just and expedient in the circumstances.
g. That the costs of this petition be borne by the Respondents
B. THE PETITIONERS’ SUPPORTING AFFIDAVIT.
2. In support of their case, the Petitioners filed a supporting affidavit sworn on 5th March, 2025 by the 4th Petitioner in which he deposed that he was duly authorized by his co-petitioners to swear the affidavit on their behalf, having full knowledge of the matters in issue. He averred that the Petitioners were aircraft engineers, aircraft and aircraft parts salespersons and were engaged in the business of leasing aircraft.
3. The 4th Petitioner deposed that the petition arose from Kisumu Criminal Case No. E884 of 2021, Republic v Alfred Geoffrey Leach & 5 Others, in which the Petitioners had been charged with the offences of forgery contrary to Section 349 of the Penal Code and conspiracy to commit a felony contrary to Section 393 of the Penal Code. He annexed a copy of the charge sheet marked “CW-1”.
4. The deponent averred that the principal grievance giving rise to the petition was that neither he nor the other Petitioners had been informed that criminal charges had been preferred against them, nor had they been summoned, interviewed or afforded an opportunity to record statements before the decision to prosecute was made.
5. According to the deponent, the Petitioners only became aware of the criminal proceedings when the 1st Petitioner was arrested in Hamburg, Germany, on 9th November, 2022 pursuant to an Interpol red notice issued through Interpol Nairobi. He annexed a copy of the red notice marked “CW-2”.
6. He further stated that the 1st Petitioner successfully challenged the arrest before the German legal system, resulting in the lifting of the warrant against him in Germany, after which he was released and allowed to return to Britain without being extradited to Kenya.
7. The deponent explained that the criminal complaint stemmed from the purchase of an aircraft from Manunggal Air in or about September, 2014 pursuant to an agreement between Wilken Aviation Ltd, represented by the complainant in the criminal case, Newton Omondi Osiemo, and Flying Tiger Oversize Cargo (FTOC), represented by the 1st Petitioner.
8. He stated that the aircraft was initially registered in the Central African Republic before being deregistered, after which efforts were made to register it in Comoros. He annexed a copy of the aircraft bill of sale and the registration cancellation documents marked “CW-3” and “CW-4”, respectively.
9. He further deposed that after several unsuccessful attempts to register the aircraft, it was flown to Kisumu International Airport where it remained grounded. He stated that the parties later mutually agreed that the aircraft required routine maintenance and consequently agreed that it be ferried to the Entebbe Maintenance Base in Uganda.
10. According to him, the aircraft was flown to Entebbe with the complainant’s full knowledge following a meeting held at the complainant’s offices. He averred that while at Entebbe, a red flag was placed on the aircraft because Wilken Air allegedly owed one Chapman Freeborn, the original vendor and broker involved in the sale, outstanding sums of money, and that the aircraft remained in Entebbe.
11. The deponent contended that the ensuing criminal complaint was founded on one-sided evidence arising from what was essentially a commercial dispute that had deteriorated and ought properly to have been resolved through civil proceedings. He maintained that the Petitioners were denied an opportunity to rebut the allegations or to record statements before the decision to charge them was made. He further stated that none of the Petitioners had ever been formally summoned to appear before court and that, being outside Kenya, they only became aware of the existence of warrants of arrest through the Interpol red notice.
12. He deposed that upon learning of the charges, the Petitioners instructed their advocates to establish the nature of the proceedings against them. Their advocates consequently wrote to the trial court by a letter dated 21st November, 2022, to which the court responded by a letter dated 7th December, 2022. Copies of those letters are annexed as “CW-5” and “CW-6”.
13. He further stated that their advocates subsequently addressed a letter dated 28th May, 2024 to the 2nd Respondent seeking a review of the decision to charge the Petitioners, but no response was received. A copy of that letter is annexed as “CW-7.”
14. The deponent further stated that the 1st Petitioner thereafter lodged an application before the Commission for the Control of Interpol’s Files seeking the removal of the Interpol red notice on the grounds that the information processed lacked a clear description of his alleged criminal involvement and was inaccurate. He deposed that the Commission found that the data relating to the 1st Petitioner was not compliant with Interpol’s applicable rules on the processing of personal data and directed that it be deleted from Interpol’s files and website. He has annexed a copy of the Commission’s decision marked “CW-8.”
15. He nevertheless averred that despite the removal of the Interpol data, the criminal charges and warrants of arrest remained in force in Kenya. He maintained that the warrants had been obtained without affording the Petitioners an opportunity to present their version of events or to record statements during investigations.
16. He further stated that the Petitioners had always been reachable by telephone and email despite travelling frequently outside the country, and that the Respondents made no effort to contact or hear them before making the decision to prosecute.
17. The deponent asserted that, upon the advice of counsel, the Respondents had failed to comply with the requirements of Article 50 of the Constitution, the Criminal Procedure Code and the Guidelines on the Decision to Charge, 2019, by failing to notify or summon the Petitioners before instituting criminal proceedings. He maintained that the charges were therefore procedurally irregular, unfair and ought to be quashed.
18. He further deposed that after the arrest of the 1st Petitioner, the Petitioners instructed their advocates to request the 1st Respondent to withdraw the charges and lift the warrants of arrest until due process had been observed, but the request was not acted upon. He contended that the failure to follow proper procedure violated the Petitioners’ constitutional rights and raised serious concerns regarding the legality and fairness of the prosecution.
19. On the legal foundation of the petition, the deponent averred that the Constitution safeguards national values and principles of governance, including human dignity, equality, social justice, human rights and the rule of law, and that Article 157(11) obliges the Director of Public Prosecutions to have regard to the public interest, the interests of the administration of justice and the need to prevent abuse of the legal process.
20. He further deposed that the National Prosecution Policy requires prosecutors to ensure that there is sufficient admissible evidence and that a prosecution serves the public interest, and to objectively evaluate all evidence both for and against a suspect before preferring charges.
21. Finally, the deponent asserted that the decision to investigate, arrest and charge the Petitioners was unconstitutional, unlawful, arbitrary and unreasonable, and violated numerous provisions of the Constitution, including Articles 2, 3, 10, 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 50, 73, 157(11), 159, 165(3), 232, 258, 259 and 260.
22. In particular, he alleged that the Respondents discriminated against the Petitioners by failing to notify or summon them before preferring charges despite having the means to do so, thereby infringing their right to equality before the law under Article 27 of the Constitution.
23. He accordingly urged the Court to grant the orders sought in the Petition to vindicate and protect the Petitioners’ constitutional rights and fundamental freedoms.
C. THE POSITIONS OF THE 1ST & 3RD RESPONDENTS.
24. Although duly served with the petition and the accompanying pleadings, the 1st and 3rd Respondents did not file any replying affidavits, grounds of opposition or any other response to oppose the petition despite the court being satisfied that proper service had been effected upon both Respondents in accordance with the law, and the matter therefore proceeded notwithstanding their failure to participate in these proceedings.
D. THE 2ND RESPONDENT’S REPLYING AFFIDAVIT.
25. In opposition to the petition, the 2nd Respondent filed a replying affidavit sworn on 22nd December, 2025 by Bernice Daisy Kagali, Principal Prosecution Counsel, in which she deposed that the 2nd Respondent opposed the petition on the ground that it had been overtaken by events and had consequently been rendered nugatory following the arrest of the 4th Petitioner on 3rd December, 2025 and his subsequent arraignment before the Chief Magistrate’s Court at Kisumu in Kisumu CMCC No. E408 of 2025.
26. She further deposed that the 4th Petitioner took plea on 4th December, 2025, whereupon a plea of not guilty was entered. She stated that the trial court admitted him to bond in the sum of Ksh.5,000,000/- with two sureties of a similar amount and on condition that he deposits his Canadian passport in court.
27. According to the deponent, those orders were made notwithstanding that the investigating officer had filed an affidavit dated 5th December, 2025 opposing the grant of bond.
28. The deponent maintained that all the applicable statutory procedures were complied with during the arrest of the 4th Petitioner and at the time of plea taking. She therefore denied that there had been any violation of the Petitioners’ constitutional rights under the Constitution.
29. It was her further deposition that, since the petition had been rendered nugatory by the arraignment of the 4th Petitioner before the trial court, this court ought not to interfere with the orders issued by that court, which she maintained were lawful and made in accordance with the applicable statutory provisions.
E. THE 2ND RESPONDENT’S GROUNDS OF OPPOSITION.
30. The 2nd Respondent also filed a statement of grounds of opposition dated 28th January, 2026 incorporating a preliminary objection in which it contended that the petition had been overtaken by events and had consequently become moot following the arrest and arraignment of the 4th Respondent before the trial court in Kisumu CMCR No. E884 of 2021 and that consequently, the reliefs seeking his release from custody and restraining his arraignment had been rendered academic.
31. It was further argued that the complaint that the Petitioners had been denied an opportunity to be heard before being charged had been substantially addressed through the arraignment process, where the 4th Petitioner had taken plea and was now participating in the criminal proceedings. The court was therefore urged to decline jurisdiction over what had become an academic dispute.
32. The 2nd Respondent further raised a preliminary objection that the petition constituted an abuse of the constitutional process as it amounted to a collateral attack on pending criminal proceedings. It was contended that any complaints regarding alleged procedural irregularities ought to be raised before the trial court, which possessed jurisdiction to determine preliminary objections, applications to quash charges and other interlocutory matters.
33. The Respondent further maintained that the Petitioners had failed to exhaust the remedies available within the criminal proceedings and were improperly invoking the court’s constitutional jurisdiction as a means of avoiding trial.
34. It was also contended that the petition was premature since it sought to terminate the criminal proceedings at their inception before the trial court had an opportunity to determine either the procedural issues or the substantive charges. According to the 2nd Respondent, the Petitioners had not demonstrated any exceptional circumstances or irreparable prejudice warranting the intervention of the constitutional court, particularly because the 4th Petitioner had already been released on bond.
35. On the merits, the 2nd Respondent maintained that the Director of Public Prosecutions had acted within the constitutional mandate conferred by Article 157 of the Constitution by authorizing the prosecution on the basis of evidence gathered during investigations. It was argued that the DPP exercises independent prosecutorial discretion and does not require the consent of any person before instituting criminal proceedings.
36. The Respondent further contended that Article 157(11) merely guides the exercise of prosecutorial discretion and does not provide an independent basis upon which every charging decision may be challenged through constitutional litigation.
37. The 2nd Respondent further asserted that the Directorate of Criminal Investigations acted within its constitutional and statutory mandate under Article 247 of the Constitution and the National Police Service Act in investigating the complaint made by the complainant in the criminal case. It was contended that investigators are under no constitutional or statutory obligation to notify suspects of ongoing investigations or to invite them to record statements before preferring charges, particularly where the suspects are outside the jurisdiction or are likely to evade the criminal process.
38. The Respondent denied that the Petitioners possessed any constitutional or statutory right to prior notice of investigations or a pre-charge hearing. It was contended that neither the Constitution nor the Criminal Procedure Code requires investigators or prosecutors to consult suspects before charges are preferred.
39. It was further argued that Article 47 of the Constitution concerning fair administrative action was inapplicable because the decision to prosecute is a prosecutorial, rather than an administrative function, while the right to a fair trial under Article 50 arises only after criminal proceedings have commenced.
40. The 2nd Respondent further contended that the National Prosecution Policy and the Decision to Charge Guidelines merely guide prosecutorial discretion and do not create enforceable rights in favour of suspects.
41. The 2nd Respondent further denied violating any of the Petitioners’ constitutional rights. It contended that the Petitioners had adopted a broad and unspecific approach by citing numerous constitutional provisions without demonstrating any actual infringement.
42. It was maintained that the Petitioners had been treated in accordance with the law applicable to all persons accused of criminal offences, that their arrest and detention were lawful and pursuant to valid warrants of arrest, and that their rights under Articles 27, 28, 29 and 50 of the Constitution had not been violated since they had access to legal representation, had been admitted to bond and would be accorded a fair trial before the criminal court.
43. The 2nd Respondent further contended that the criminal charges were founded upon a proper investigation into serious allegations of criminal conduct and not merely upon a commercial dispute as alleged by the Petitioners. It maintained that the existence of a commercial relationship between the parties did not preclude criminal liability where the evidence disclosed the commission of criminal offences.
44. It was further asserted that the DPP had satisfied both the evidential test and the public interest test prescribed under the National Prosecution Policy before authorizing the prosecution and that the decision to prosecute was neither irrational nor actuated by malice.
45. With regard to the Interpol red notice, the 2nd Respondent contended that the Petitioners had misconstrued the effect of the decision of the Commission for the Control of Interpol’s Files. According to the Respondent, the Commission merely found that the processing of the Petitioner’s personal data did not comply with Interpol’s internal rules and directed the deletion of that data.
46. It was argued that the Commission neither determined the validity of the criminal charges nor invalidated the warrants of arrest issued by the trial court, which remained lawful and enforceable independently of the Interpol process.
47. The 2nd Respondent also maintained that the Petitioners had adequate alternative remedies within the criminal proceedings, including raising objections before the trial court, challenging the admissibility of evidence and, if dissatisfied with the outcome, pursuing the appellate process provided by law. It was therefore contended that constitutional jurisdiction ought not to be invoked where adequate statutory remedies existed.
48. The Respondent further argued that granting the reliefs sought would offend the constitutional principles of separation of powers by interfering with the prosecutorial mandate of the Director of Public Prosecutions under Article 157 of the Constitution and by usurping the jurisdiction of the trial court to determine the criminal proceedings on their merits. It maintained that constitutional courts should exercise restraint and avoid interrupting ongoing criminal prosecutions except in exceptional circumstances.
49. The 2nd Respondent further denied that the prosecution had been actuated by malice, bad faith or any ulterior motive. It was contended that the prosecution was initiated following a legitimate complaint by the complainant and after proper investigations by the Directorate of Criminal Investigations. The 2nd Respondent maintained that the Petitioners’ dissatisfaction with the decision to prosecute did not, without more, demonstrate abuse of process or improper motive.
50. It was further contended that there existed a significant public interest in ensuring that persons accused of committing criminal offences in Kenya were brought before the courts irrespective of their nationality or residence. The Respondent argued that allowing the Petition would undermine the administration of criminal justice, deny the complainant access to justice and encourage accused persons, particularly foreign nationals, to avoid prosecution by characterizing criminal allegations as commercial disputes.
51. Lastly, the 2nd Respondent contended that the Petitioners had been guilty of inordinate delay. It was asserted that the criminal proceedings had been instituted in 2021 and that the Petitioners had been aware of the charges and warrants of arrest since at least November, 2022, yet they only filed the present constitutional petition in December, 2025 after the arrest of the 4th Petitioner.
52. According to the 2nd Respondent, the Petition was therefore an afterthought intended to avoid trial, the doctrine of laches applied and the continued absence of the Petitioners from Kenya despite their knowledge of the pending warrants demonstrated that they were evading the criminal justice process and justified the continued enforcement of those warrants.
53. The Court was consequently urged to dismiss both the Petition and the application with costs and to allow the criminal proceedings to proceed to their lawful conclusion.
F. THE PETITIONERS’ SUBMISSIONS.
54. In their written submissions, the Petitioners aver that the petition challenges the constitutionality, legality and propriety of the decision by the Respondents to investigate, arrest and charge them in Kisumu CMCR No. E884 of 2021, procure warrants of arrest against them and trigger the issuance of an Interpol red notice without first notifying, summoning or affording them an opportunity to be heard.
55. They submit that the Petition is founded upon Articles 2, 3, 10, 19–23, 25, 27, 28, 29, 47, 50, 73, 157(11), 159, 165(3), 232, 258, 259 and 260 of the Constitution, Section 4 of the Office of the Director of Public Prosecutions Act, Section 4 of the Fair Administrative Action Act, the National Prosecution Policy and the Decision to Charge Guidelines, 2019.
56. The Petitioners submit that the criminal proceedings arise from what is essentially a commercial dispute relating to the sale, leasing, registration and maintenance of an aircraft, which dispute was improperly transformed into a criminal prosecution.
57. They contend that the impugned decision-making process was procedurally unfair, irrational and contrary to the Constitution, statute and the applicable prosecution policy.
58. They emphasize that the Court is not being invited to determine the merits of the criminal charges but rather to exercise its constitutional mandate under Articles 22, 23 and 165 of the Constitution by examining whether the Respondents exercised their powers in a manner consistent with constitutional and statutory requirements.
59. The Petitioners further submit that although the Director of Public Prosecutions enjoys constitutional independence under Article 157 of the Constitution, such independence is not absolute. They argue that Article 157(11) expressly requires the Director of Public Prosecutions to exercise prosecutorial powers with due regard to the public interest, the interests of the administration of justice and the need to prevent abuse of the legal process, thereby empowering the High Court to intervene where those constitutional standards have not been met.
60. They therefore submit that the present petition satisfies the constitutional threshold by specifically identifying the constitutional provisions alleged to have been violated, the impugned actions and omissions, and the reliefs sought.
61. On the factual background, the Petitioners reiterate that the dispute originated from a 2014 commercial transaction involving the purchase and operation of a Transall C160 aircraft between Wilken Aviation Limited and Flying Tiger Oversize Cargo Pty Ltd. They submit that all subsequent registration, deregistration, maintenance arrangements and movements of the aircraft, including its transfer to Entebbe for maintenance, were undertaken with the knowledge and consent of the complainant in the criminal case.
62. According to the Petitioners, the aircraft remains in Uganda because of outstanding commercial obligations owed by Wilken Aviation to a third-party aircraft broker, Chapman Freeborn.
63. The Petitioners submit that notwithstanding the commercial nature of the dispute, the complainant lodged a criminal complaint leading to investigations and the institution of criminal charges against them without their knowledge or participation. They contend that they were neither summoned to record statements nor invited to produce documents or explain their version of events before warrants of arrest were obtained against them.
64. They further submit that the issuance of the Interpol red notice resulted in the arrest of the 3rd Petitioner in Hamburg, Germany, on 9th November, 2022, but that he successfully challenged the notice before the German courts and was released without extradition.
65. They further rely upon the subsequent decision of the Commission for the Control of Interpol’s Files directing the deletion of the red notice data for non-compliance with Interpol’s rules, while maintaining that the criminal charges nevertheless remained in force.
66. The Petitioners submit that throughout the material period they remained reachable through email and telephone and that the Respondents deliberately failed to contact them before initiating criminal proceedings or invoking international arrest mechanisms.
67. They therefore contend that the criminal process was improperly employed to exert pressure in a commercial dispute and that the impugned actions violated their constitutional rights under Articles 27, 28, 29, 47 and 50 of the Constitution.
68. With regard to Article 27, the Petitioners submit that they were subjected to unequal and arbitrary treatment by being charged, having warrants issued against them and being subjected to an Interpol red notice without the procedural safeguards ordinarily afforded to suspects, including being summoned to record statements or participate in pre-charge investigations. They argue that this amounted to discrimination and unequal protection of the law.
69. On Articles 28 and 29 of the Constitution, the Petitioners submit that the issuance of the Interpol red notice resulted in reputational damage, anxiety and psychological distress, culminating in the arrest and detention of the 3rd Petitioner in Germany.
70. They contend that the use of international arrest mechanisms in what they describe as a commercial dispute, and without according them procedural fairness, constituted a disproportionate interference with their dignity and freedom.
71. The Petitioners further submit that the decisions to institute criminal proceedings, obtain warrants of arrest and seek an Interpol red notice constituted administrative actions subject to Article 47 of the Constitution and the Fair Administrative Action Act. They argue that they were entitled to prior notice, an opportunity to be heard and reasons before those decisions were made.
72. In support of that proposition, they rely on Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR, where the Court of Appeal held that Article 47 constitutionalized the right to fair administrative action and subjected administrative decisions of public bodies to constitutional standards of fairness, transparency and accountability.
73. They submit that the Respondents’ failure to notify them of the investigations, invite them to record statements or respond to their subsequent requests for review violated Article 47 and Section 4 of the Fair Administrative Action Act.
74. The Petitioners further contend that Article 50 of the Constitution protects not only the conduct of the trial itself but also the fairness of pre-trial processes culminating in the institution of criminal charges. They submit that charging them in absentia, without notification or an opportunity to respond, exposing them to international arrest through an Interpol red notice, undermined the presumption of innocence and denied them adequate opportunity to prepare their defence, thereby violating Article 50(2)(b) and (c) of the Constitution.
75. On the exercise of prosecutorial discretion, the Petitioners submit that Article 157(11) of the Constitution, Section 4 of the Office of the Director of Public Prosecutions Act, the National Prosecution Policy and the Decision to Charge Guidelines require the Director of Public Prosecutions to apply both the evidential test and the public interest test before instituting criminal proceedings.
76. They rely on Republic & Another v Director of Public Prosecutions & 2 Others (Interested Parties) [2021] KEHC 2886 (KLR), in which the High Court emphasized that prosecutors must objectively evaluate both inculpatory and exculpatory evidence and refrain from employing the criminal process to resolve civil disputes.
77. They submit that the Respondents failed to obtain or consider the Petitioners’ version of events, ignored exculpatory material, failed to appreciate the commercial nature of the dispute and declined to review the charges even after the Interpol Commission found the red notice data to be non-compliant.
78. The Petitioners further submit that the criminal proceedings amount to an abuse of the court process because they arise from a commercial relationship involving international aircraft sale, registration, maintenance and financing arrangements. They contend that rather than pursuing civil remedies or arbitration, the complainant improperly invoked the criminal process to gain leverage in a private commercial dispute. They therefore argue that the prosecution constitutes an abuse of prosecutorial power contrary to Article 157(11) of the Constitution.
79. The Petitio
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