Introduction
1. The Petition dated 7 th February 2022, is supported by the 3 rd Petitioner’s affidavit in support of even date.
2. The Petitioners aver that the 6 th and 7 th Respondents instituted a malicious complaint against the 1 st and 8 th Petitioners that led to their arrest and a threat of the intended prosecution following a construction regarding works that were being undertaken on LR. No.3858/44 Villa Franca Estate contrary in violation of Villa Franca Residents Estate Association Constitution.
3. Accordingly, it is alleged that the Respondents are abusing the criminal justice system at the instigation of the 6 th and 7 th Respondents to settle a civil dispute hence this Petition in which the Petitioners seek the following reliefs:
i. A declaration that the Respondents acts above are in violation of constitutional rights and freedoms of the Petitioners under Articles 2(1), 2(2), 3, 10, 10(2), 20(1), 20(2), 20(3), 20(4), 21(1), 23(1), 23(3), 24(1), 25(C), 27, 27(4), 28, 31, 40, 42(A), 47, 48, 50, 157(11), 165, 3(A) and 258(1) of the Constitution and in particular that the above acts had violated the 1 st and 8 th Petitioners right to a fair legal process because the legal process was being used for some ulterior motive to settle a civil dispute and that the law was not being used impartially in the interest of the general public interest.
ii. A declaration that the acts of the 1 st , 2 nd , 3 rd and 4 th Respondents acting at the request or complaint of the 7 th Respondent to arrest and investigate the 1 st and 8 th Petitioners with criminal charges in what essentially is a civil dispute over construction on the Villa Franca Estate perimeter wall adjacent to the L.R No. 3858/44 Villa Franca Estate was arbitrary, unreasonable, irrational, unconstitutional and was in breach and/or in violation of the 1 st and 8 th Petitioners' rights to a fair investigation process, right to a fair trial, was to act oppressively and vexatiously and was to interfere with the 1 st and 8 th Petitioners' fundamental rights and freedom as enshrined in the Constitution and was accordingly for prohibition and the intended criminal charges quashed by an order of certiorari.
iii. A declaration that the 1 st , 2 nd , 3 rd and 4 th Respondents acting on the 7 th Respondent or complaint to arrest, or to investigate was to use of the criminal law to settle and/or put pressure on the 1 st and 8 th Petitioners or to compel the 1 st and 8 th Petitioners to settle a civil dispute over construction on the Villa Franca Estate perimeter wall adjacent to the L.R No. 3858/44 Villa Franca Estate and that amounts to an abuse of the process and extraneous use of coercive powers of the police which consequently has no place in the Kenya Constitutional set up, was not to be countenanced and the said acts are hereby quashed.
iv. A permanent prohibitory order be granted as against the 1 st , 2 nd 3 rd and 4 th Respondents restraining them by themselves, their agents from acting on the 7 th Respondent complaint, from arresting, from detaining, from preferring charges, from charging from presenting them for plea taking, from prosecuting and/or in any other manner from subjecting the 1 st and 8 th Petitioners to a criminal process at the Chief Magistrate Court at Makadara or in any other court in the Republic of Kenya and/or from using the criminal process to resolve the civil dispute over the Villa Franca Estate perimeter wall adjacent to the L.R No. 3858/44 Villa Franca Estate.
v. A declaration that the use of the criminal process to frustrate the 1 st and 8 th Petitioners and more importantly to allow the perpetration of private, selfish and malicious agenda in a criminal process was to say the least to use the criminal process improperly, unfairly, to misdirect it from its proper purpose, to use it for collateral purpose which the law does not recognize as a legitimate use of process, to use it for ulterior motive and to abuse the criminal process which the Court has a duty to intervene and put it to an end.
vi. A declaration that the Villa Franca Estate Residents Association Tenants and Homeowners within the Villa Franca Estate, Nairobi were bound by their Constitution and in the instant case the 6 th and 7 th Respondents having acted outside the Estate Association in constructing on the Villa Franca Estate perimeter wall to the L.R No.3858/44 Villa Franca Estate acted outside the Villa Franca Residents Association Constitution and any such purported acts were null and void ab initio and accordingly the construction and/or developments at the perimeter wall adjacent to the IR No.3858/44 Villa Franca Estate was illegal, null and void and the 7 th Respondent is ordered to bring it down within the next seven days of the order failing which the same be brought down by the court bailiffs with the OCPD and OCS Embakasi Police Station providing security to ensure that law and order is preserved.
vii. Accordingly the acts of the Respondents as disclosed in the Petition of using the criminal process to advance the 6 th and 7 th Respondents claim and/or construction over the Villa Franca Estate perimeter wall to the Villa Franca Estate adjacent to the L.R No. 3858/44 Villa Franca Estate had violated the Petitioners right to the protection of their private property namely the right to the protection of the perimeter wall to the Villa Franca Estate and as such, such actions were accordingly unconstitutional, oppressive, irrational and unreasonable.
viii. An order for compensation to the Petitioners by the Respondents to alleviate the Petitioners' loss, suffering and damage as a consequent of the Respondent unconstitutional acts above in such amount or amounts or damages as the Court may assess and/or determine and payable to the Petitioners.
ix. General and exemplary damages as against the Respondents for violations and contravention of the fundamental rights and freedoms of the Petitioners provided for above under the Constitution.
x. The Petitioners be awarded the costs of the Petition and interest thereon.
xi. Any other or further order that the Court may deem fit and necessary to grant.
4. The Petitioners vide a Notice dated 21 st March 2022 withdrew
prayers (f) and (g) of the Petition.
Petitioners’ Case
5. The 1 st to 7 th Petitioners are the officials of Villa Franca Residents Estate Association . They are in charge of the management of the affairs of Vila Franca Estate in accordance with the Villa Franca Residents Estate Association Constitution (herein after known as the Estate or the Estate Constitution) . The Estate Committee is among other duties, required to undertake and supervise the maintenance and repairs of public roads, pathways, water, sewage, lighting systems and handle security matters.
6. The Petitioners depone that all the residents of the estate including landlords are automatically bound by the Estate Association Constitution, and in particular, all persons residing in the Estate once they attain the age of majority.
7. The Petitioners depone that the 6 th and 7 th Respondents had been undertaking continuous construction work on LR. No.3858/44 Villa Franca Estate that resulted in the destruction of the estate’s perimeter wall. For context, the Petitioners deposed that the 7 th Respondent upon taking up the tenancy of the house within the Estate from the owner who is the 6 th Respondent, the 7 th Respondent commenced construction works with the 6 th Respondent consent but without securing any approval from the Estate Committee. The Petitioners deponed that the 6 th and 7 th Respondents did not heed any of the warnings by the Estate officials.
8. According to the Petitioners, the construction work is in breach of the Estate Constitution by compromising the security of the Estate and exposing the residents to risk.
9. Further, the Petitioners contend that this dispute is civil in nature between the Association and the 6 th and 7 th Respondents yet the 7 th Respondent went ahead to involve the police and had the 1 st Petitioner, the Chairman of the Association and the 8 th Petitioner, the Estate security guard arrested and charged in Court.
10. The Petitioners contend that the criminal process was invoked maliciously without any proper factual basis in order to advance a civil claim so as to aid the 6 th and 7 th Respondents in the civil dispute between them and the Estate Association hence is a contravention of the Petitioners’ rights under Article 25(c),50 and 157(11) of the Constitution.
11. It is thus the Petitioners contention that the Respondents’ have criminalized a civil dispute which is a blatant abuse of the criminal justice system and thus seek this Court’s intervention to stop the unlawful process and protect the Petitioners’ rights.
1 st Respondent’s Case
12. In opposition to the Petition, the 1 st Respondent’s filed Grounds of Opposition dated 11 th February 2022 on the basis that:
i. The application discloses no cause of action against the 1 st Respondent.
ii. The application does not lay with precision the manner in which the 1 st Respondent has infringed upon the Applicants' constitutional rights.
iii. The 1 st Respondent has not sanctioned the impugned investigations as to warrant grant of the orders sought.
iv. The 1 st Respondent has not approved or otherwise directed the charging of the 1 st and 8 th Applicants and therefore the case against the 1 st Respondent is illusory.
v. The 1 st Respondent has not threatened any action against the Applicants herein.
vi. An order of prohibition may only issue to stop or discontinue proceedings or an action which has already commenced.
vii. The 1 st Respondent has not commenced or demonstrated any proclivity in commencing proceedings against the Applicants either by way of ordering investigations, charging or otherwise.
viii. The 1 st Respondent has not breached any of its constitutional duty as encapsulated under Article 157 (11) of the Constitution or otherwise.
6 th Respondent’s Case
13. The 6 th Respondent opposing the Petition filed his Replying Affidavit sworn on 30 th October 2023.
14. On the outset, the 6 th Respondent contends that this Court lacks jurisdiction to entertain this matter as the subject matter relates to use and occupation of the cited parcel of land and further enforcement of the Villa Franca Residents Association Constitution which jurisdiction rests on the Environment and Land Court. Additionally, he informs that there is a pending dispute between him and the 7 th Respondent on one hand and the Petitioners on the other in Milimani Environment and Land Court Case No. E093 of 2022 in which the Petitioners have sought similar orders.
15. The 6 th Respondent depones that he is the registered owner of house known as L.R. No. 3858/44 Villa Franca Estate, which he leased to the 7 th Respondent as a tenant. He deposes that the lease dated 10 th November 2021 was set to expire on 1 st December 2023 and that the notice of termination was issued to the 7 th Respondent.
16. The 6 th Respondent deposes that the Petition does not disclose any reasonable cause of action against him. He swears that he is a stranger to the alleged criminal complaint in OB Number 47/18/01/2022 made by the 7 th Respondent against the 1 st and 8 th Petitioners and adds that he is unaware of its nature and protests that he has been joined into this suit wrongly.
17. The 6 th Respondent contends that the Petitioners have not demonstrated how the 1 st , 2 nd ,3 rd and 4 th Respondents acted at his behest in the arrest, investigation and charge of the 1 st and 8 th Petitioners to settle the purported civil matter.
18. The 6 th Respondent contends that the 1 st , 2 nd and 3 rd Respondents in handling this matter were merely exercising their constitutional powers hence the Petition ought to be dismissed.
Other Parties’ Case
19. The rest of the parties’ neither files response nor submissions to the Petition as none were found in the Court file or in the Court Online Platform (CTS).
Parties Submissions
Petitioners’ Submissions
20. Arusei and Company Advocates for the Petitioners filed submissions dated 14 th February 2025 . Counsel argued that the involvement of the police in a civil dispute to arrest and press criminal charges against the 1 st and 8 th Petitioners was arbitrary, unreasonable, irrational, unconstitutional and in violation of their fundamental rights.
21. Reiterating the averments in the Petition, Counsel submitted that the Respondents used the criminal process improperly and unfairly to settle a purely civil dispute, in relation to the dispute over the perimeter wall of the Villa Franca Estate. Counsel argued that the 6 th and 7 th Respondents in addition exposed the security of the estate and its residents. In a nutshell, Counsel submitted that the prosecution instigated against the 1 st and 8 th Petitioners was malicious.
22. Reliance was placed in R vs. Attorney General ex Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 where it was held that:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper ... there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that be has a reasonable and probable, cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable."
23. To support this submission, Counsel further relied on the cases of Republic v. Director of Public Prosecution & Another ex parte Kamani, Nairobi Judicial Review Application No. 78 of 2015 and Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR .
24. Counsel argued that the Respondents in instigating the malicious charges and intended prosecution cannot shield themselves under Section 193 A of the Criminal Procedure Code, as the criminal process herein is being used oppressively and not in good faith. Counsel noted that while the 1 st 2 nd and 3 rd Respondents officers are independent and this Court would not ordinarily interfere in their mandate, exercise of their discretion must be within the limits provided by the law as are subject to the Constitution. To buttress this point reliance was placed in Republic v. Director of Public Prosecutions & Another ex parte Kaman/ Nairobi Judicial Review Application No. 78 of 2015 where it was held that:
“This court appreciates that the court should not simply fold its arms and stare at the squabbling litigants/disputants parade themselves before the criminal court in order to show-case dead cases. The seat of justice is a hallowed lace and ought to be reserved for those mattes in which the protagonists have a conviction stand a chance of seeing the light of the day. In my view the prosecution ought not to institute criminal cases with a view of obtaining an acquittal. It is against the public interest as encapsulated in section 4 of the Office of the Director of Public Prosecutions Act to stage – manage criminal proceedings in a manner intended to obtain an acquittal.”
25. Further reliance was placed on Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008J 2 EA 323, Samwel Bigingi Ouko & another v Walterson Atinda Okwoyo & 4 others [2018] eKLR, Meme -vs- Republic & Another (2004) eKLR and Peter George Anthony Costa v. Attorney General & Another Nairobi Petition No. 83/2010 .
26. Counsel emphatically submitted that the Petition satisfies the threshold of a constitutional Petition set out in Anarita Karimi Njeru -vs- Attornev General (1979) KLR 154 and affirmed in Mumo Matemu -vs- Trusted Society of Human Rights Alliance and others, Nairobi Civil Appeal No. 290 of 2012 .
1 st Respondent’s Submissions
27. Senior Principal Prosecution Counsel, Kerongo Maatwa filed submissions dated 4 th September 2024 and argued that the the Petitioners had not set out any reasonable cause of action against the 1 st Respondent. In essence, that the Petitioners had not indicated how the 1 st Respondent had threatened or in any way violated or infringed the rights of the Petitioners enshrined in the Constitution and thus it was a clear case of misjoinder.
28. Further, that Petition is misconceived, bad in law and incompetent and that the Petition failed the specificity and precision test as enunciated in the Anarita Karimi Njeru v R (1979) eKLR. The 1 st Respondent argued that the Petitioners had also failed to demonstrate any defects in the manner the complaint against them was processed to warrant this Court’s intervention.
Other Parties’ Submissions
29. There were no submissions by the rest of the Parties either in the CTS or in the physical Court file.
Analysis and Determination
30. Upon careful review of the pleadings and the submissions of the Parties herein, this Honourable Court distils the following to be the issues for determination in the instant Petition:
i. Whether the Petition discloses a cause of action against the 1 st Respondent and 7 th Respondent.
ii. Whether the 1 st , 2 nd and 3 rd Respondents acted properly within the scope of their constitutional and statutory mandate in this matter.
iii. Whether the Petitioners’ constitutional rights were violated by the Respondents.
iv. Whether the Petitioners are entitled to the relief sought.
Whether the Petition discloses a reasonable cause of action against the 1 st Respondent and 7 th Respondent.
31. A cause of action consists of set of alleged facts or factual elements which disclose a legally recognized wrong or violation of a right that entitles the wronged party a judicial relief. In essence, three critical components must apparent; there must be a legal right to which the wronged party is entitled (or duty owed to him by the alleged violator), the breach (which could be an act or omission right or duty) and the judicial relief (to remedy the violation). In Isaiah Ondiba Bitange & 3 others v Institute of Engineers of Kenya another [2017] KEHC 7565 (KLR) articulated what a cause of action entails as follows:
“A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus —
"By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief
32. In the same way, the Court in Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676 (KLR) (Civ) citing the case of Karl Wehner Claasen v Commissioner of Lands & 4 others [2019] eKLR defined a cause of action as follows:
“…A cause of action denotes a combination of facts which entitles a person to obtain a remedy in court from another person and includes a right of a person violated or threatened violation of such right by another person. The applicant did not disclose any such fact which is sufficient ground for the Court to strike out the application…”
…
In answering the question: “what is considered to be a cause of action?” the court borrows from the decision in Anne Jepkemboi Ngeny v Joseph Tireito & another [2021]eKLR where the Court of Appeal succinctly stated the following:
“ In the Court of Appeal case of Attorney General & another v Andrew Maina Githinji & Another [2016] eKLR Waki JA. held that,
“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint.”
That definition was given by Pearson J. in the case of Drummond Jackson vs Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, Read vs Brown (1889), 22 QBD 128, Lord Esher, M.R. had defined it as: -
“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court.”
Lord Diplock, for his part in Letang vs Cooper [1964] 2 All ER 929 at 934 rendered the following definition: -
“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
33. The central question here is whether the Petition as pleaded establishes a reasonable cause of action in law against the Respondents when the allegations in the pleadings alone are considered?
34. Earlier, on 7/6/2024 while dismissing the Preliminary Objection dated 7/2/2023, this Honourable court pinpointed what it considered to be core complaint in the instant Petition as follows:
The nature of the complaint is thus alleged manipulation of the criminal justice process by unfairly employing it against them (read petitioners) in order to assist the 6 th and 7 th respondents to subdue them into submission. The construction issue is only a piece in that factual matrix; it is not real issue in controversy in the Petition. The court has to determine if the arrest, detention and threat or prosecution was in the line with principles set out in Article 29, 49, 50 and 51 of the Constitution . The respondents will have an opportunity to demonstrate the lawfulness of their conduct or detention. These are Constitutional questions.
The issues raised in the Petition relate to observance of the Bill of Rights, accountability and impartiality by those charged with the enforcement of the law . It not about ownership and occupation of land or environmental matters as suggested by the Respondent. The issues in this petition thus squarely fall within the purview of this Court’s jurisdiction under Article 165 of the Constitution. (Emphasis added).
35. This Petition thus directly challenges the manner the 1 st , 2 nd , 3 rd , 4 th , 5 th and 8 th Respondents discharged their mandate against the Petitioners which, the Petitioners allege, was at the instigation 6 th and 7 th Respondent, they twisted a purely civil dispute into a criminal matter to intimidate the Petitioners from the opposing construction that was being undertaken by the 6 th and 7 th Respondent that was causing damage to the Estate’s perimeter wall.
36. The Petition as pleaded calls into attention the national values and principles of governance under Article 10 of the Constitution which binds all State organs, State Officers, public officers and indeed all persons. The values include the Rule of law, good governance, integrity , transparency and accountability (per Article 10 (2) (a) & (c). Further, Article 232 (1) (c) & (e) which demands prompt, effective, impartial and equitable service as well as accountability for administrative actions .
37. The National Police Service is empowered to investigate offences under Section 24 and also, Section 35 of the National Police Service Act. However, this should be done legitimately within the confines of the law. As was held in the Indian Supreme Court case of State of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990 1992 AIR 604 ,
The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds … But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos.
38. In a case such as this, where the Petitioners allege the police acted in a manner that was inconsistent principles of impartiality and objectivity required of them in execution of their statutory and constitutional mandate by weaponizing the criminal investigative process in order to give undue advantage to the 7 th Respondent in a purely civil matter, such actions it proved amount to oppression, and becomes a triable issue that this Court is obligated to inquire into pursuant to Article 165 (3) (b) and (d) (ii) of the Constitution. Whether the allegations will ultimately established by evidence as against each of the Respondents is an entirely different matter. The submission therefore that this Petition does not raise a reasonable cause of action is misconceived and fails.
Whether the 1 st , 2 nd and 3 rd Respondents acted properly within the scope of their constitutional and statutory mandate in this matter.
39. The Petitioners contended that following the construction dispute between the Estate Committees and the 6 th & 7 th Respondent, the 7 th Respondent filed a complaint with the police over that dispute which led to the arrest of the 1 st Petitioner who is the Chairman of the Estate committee and 8 th Petitioner-the Estate Security guard. The Petitioners lament that they were arrested with the intention of preferring criminal offences to intimidate them and compel them to give up the quest of opposing construction by the 6 th and 7 th Respondent.
40. The Office of the Director of Public Prosecution which is the 1 st Respondent in the matter filed grounds of opposition in which it stated that it neither sanctioned the impugned investigations, approved or even direct the charging of the 1 st and 8 th Applicants and therefore the case against it is illusory. Further, 1 st Respondent was categorical that it did not threaten any criminal action against the Petitioners.
41. On his part, the 6 th Respondent while acknowledging that there is a pending dispute between him and the 7 th Respondent on one hand and the Petitioners on the other in hand, in Milimani Environment and Land Court Case No. E093 of 2022 denied any knowledge of the arrest complained of or the nature of allegations in the OB 47/18/01/2022.
42. The 6 th Respondent admitted that he is the registered owner of house known as L.R. No. 3858/44 Villa Franca Estate. However, he stated that he had leased it to the 7 th Respondent as a tenant with effect from the 10 th November 2021 and the lease was set to expire on 1 st December 2023. The 6 th Respondent contended that the Petition does not disclose any reasonable cause of action against him insisting that the Petitioners did not demonstrate how the 1 st , 2 nd ,3 rd and 4 th Respondents acted at his behest in arresting, investigation or charging the 1 st and 8 th Petitioners so as to settle a purported civil matter. The 6 th Respondent contended that, in any event, the 1 st , 2 nd and 3 rd Respondents were merely exercising their constitutional powers hence the Petition ought to be dismissed
43. In so far as the allegations made against the 1 st and 6 th Respondents are concerned, they both denied them vehemently. No evidence, direct or otherwise was tendered by the Petitioners implicating the 1 st and 6 th Respondent with the arrest and detention of the 1 st and 8 th Petitioners. The DPP’s role would have been implicated if he had given approval of the charges or directed an investigation on the 1 st and 8 th Respondent to be conducted but no such evidence was tendered. For 6 th Respondent, no evidence was adduced to demonstrate that he lodged the complaint that led to the arrest and detention of the 1 st and 8 th Petitioners.
44. However, as for the 2 nd ,3 rd , and 7 th Respondents, despite the Petitioners positive and unequivocal averments that the 2 nd , 3 rd and 4 th Respondents were directly responsible for the arrest and detention without any justifiable cause (and that they merely acted at the instigation of the 7 th Respondent to weaponize the criminal justice so to settle a purely civil matter), the 2 nd , 3 rd and 4 th Respondents did not file any Replying affidavit controverting these facts or offer any valid justification for their conduct.
45. By failing to contest the factual account given by the Petitioners, the 2 nd , 3 rd , 4 th and 7 th Respondents failed to demonstrate the existence of a genuine and reasonable complaint to justify the police action against the Petitioners. The Court of Appeal in Dande & Others v Inspector General National Police Service & 2 others (Civil Appeal 246/2016) (2022) KECA 170 , citing the Supreme Court identified the circumstances when a Court may intervene to stop abuse of the criminal process as follows:
“25.The Supreme Court of Kenya… further identified the guidelines for review of prosecutorial powers in Cyrus Shakhalanga Khwa Jirongo vs Soy Developers Ltd & 9 others [2021] eKLR as follows:
“Furthermore, the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the Court on when the High Court may review prosecutorial powers. They are as follows:
Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or
Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or
Where the allegations in the First Information Report or th
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1. The Petition dated 7 th February 2022, is supported by the 3 rd Petitioner’s affidavit in support of even date.
2. The Petitioners aver that the 6 th and 7 th Respondents instituted a malicious complaint against the 1 st and 8 th Petitioners that led to their arrest and a threat of the intended prosecution following a construction regarding works that were being undertaken on LR. No.3858/44 Villa Franca Estate contrary in violation of Villa Franca Residents Estate Association Constitution.
3. Accordingly, it is alleged that the Respondents are abusing the criminal justice system at the instigation of the 6 th and 7 th Respondents to settle a civil dispute hence this Petition in which the Petitioners seek the following reliefs:
i. A declaration that the Respondents acts above are in violation of constitutional rights and freedoms of the Petitioners under Articles 2(1), 2(2), 3, 10, 10(2), 20(1), 20(2), 20(3), 20(4), 21(1), 23(1), 23(3), 24(1), 25(C), 27, 27(4), 28, 31, 40, 42(A), 47, 48, 50, 157(11), 165, 3(A) and 258(1) of the Constitution and in particular that the above acts had violated the 1 st and 8 th Petitioners right to a fair legal process because the legal process was being used for some ulterior motive to settle a civil dispute and that the law was not being used impartially in the interest of the general public interest.
ii. A declaration that the acts of the 1 st , 2 nd , 3 rd and 4 th Respondents acting at the request or complaint of the 7 th Respondent to arrest and investigate the 1 st and 8 th Petitioners with criminal charges in what essentially is a civil dispute over construction on the Villa Franca Estate perimeter wall adjacent to the L.R No. 3858/44 Villa Franca Estate was arbitrary, unreasonable, irrational, unconstitutional and was in breach and/or in violation of the 1 st and 8 th Petitioners' rights to a fair investigation process, right to a fair trial, was to act oppressively and vexatiously and was to interfere with the 1 st and 8 th Petitioners' fundamental rights and freedom as enshrined in the Constitution and was accordingly for prohibition and the intended criminal charges quashed by an order of certiorari.
iii. A declaration that the 1 st , 2 nd , 3 rd and 4 th Respondents acting on the 7 th Respondent or complaint to arrest, or to investigate was to use of the criminal law to settle and/or put pressure on the 1 st and 8 th Petitioners or to compel the 1 st and 8 th Petitioners to settle a civil dispute over construction on the Villa Franca Estate perimeter wall adjacent to the L.R No. 3858/44 Villa Franca Estate and that amounts to an abuse of the process and extraneous use of coercive powers of the police which consequently has no place in the Kenya Constitutional set up, was not to be countenanced and the said acts are hereby quashed.
iv. A permanent prohibitory order be granted as against the 1 st , 2 nd 3 rd and 4 th Respondents restraining them by themselves, their agents from acting on the 7 th Respondent complaint, from arresting, from detaining, from preferring charges, from charging from presenting them for plea taking, from prosecuting and/or in any other manner from subjecting the 1 st and 8 th Petitioners to a criminal process at the Chief Magistrate Court at Makadara or in any other court in the Republic of Kenya and/or from using the criminal process to resolve the civil dispute over the Villa Franca Estate perimeter wall adjacent to the L.R No. 3858/44 Villa Franca Estate.
v. A declaration that the use of the criminal process to frustrate the 1 st and 8 th Petitioners and more importantly to allow the perpetration of private, selfish and malicious agenda in a criminal process was to say the least to use the criminal process improperly, unfairly, to misdirect it from its proper purpose, to use it for collateral purpose which the law does not recognize as a legitimate use of process, to use it for ulterior motive and to abuse the criminal process which the Court has a duty to intervene and put it to an end.
vi. A declaration that the Villa Franca Estate Residents Association Tenants and Homeowners within the Villa Franca Estate, Nairobi were bound by their Constitution and in the instant case the 6 th and 7 th Respondents having acted outside the Estate Association in constructing on the Villa Franca Estate perimeter wall to the L.R No.3858/44 Villa Franca Estate acted outside the Villa Franca Residents Association Constitution and any such purported acts were null and void ab initio and accordingly the construction and/or developments at the perimeter wall adjacent to the IR No.3858/44 Villa Franca Estate was illegal, null and void and the 7 th Respondent is ordered to bring it down within the next seven days of the order failing which the same be brought down by the court bailiffs with the OCPD and OCS Embakasi Police Station providing security to ensure that law and order is preserved.
vii. Accordingly the acts of the Respondents as disclosed in the Petition of using the criminal process to advance the 6 th and 7 th Respondents claim and/or construction over the Villa Franca Estate perimeter wall to the Villa Franca Estate adjacent to the L.R No. 3858/44 Villa Franca Estate had violated the Petitioners right to the protection of their private property namely the right to the protection of the perimeter wall to the Villa Franca Estate and as such, such actions were accordingly unconstitutional, oppressive, irrational and unreasonable.
viii. An order for compensation to the Petitioners by the Respondents to alleviate the Petitioners' loss, suffering and damage as a consequent of the Respondent unconstitutional acts above in such amount or amounts or damages as the Court may assess and/or determine and payable to the Petitioners.
ix. General and exemplary damages as against the Respondents for violations and contravention of the fundamental rights and freedoms of the Petitioners provided for above under the Constitution.
x. The Petitioners be awarded the costs of the Petition and interest thereon.
xi. Any other or further order that the Court may deem fit and necessary to grant.
4. The Petitioners vide a Notice dated 21 st March 2022 withdrew
prayers (f) and (g) of the Petition.
Petitioners’ Case
5. The 1 st to 7 th Petitioners are the officials of Villa Franca Residents Estate Association . They are in charge of the management of the affairs of Vila Franca Estate in accordance with the Villa Franca Residents Estate Association Constitution (herein after known as the Estate or the Estate Constitution) . The Estate Committee is among other duties, required to undertake and supervise the maintenance and repairs of public roads, pathways, water, sewage, lighting systems and handle security matters.
6. The Petitioners depone that all the residents of the estate including landlords are automatically bound by the Estate Association Constitution, and in particular, all persons residing in the Estate once they attain the age of majority.
7. The Petitioners depone that the 6 th and 7 th Respondents had been undertaking continuous construction work on LR. No.3858/44 Villa Franca Estate that resulted in the destruction of the estate’s perimeter wall. For context, the Petitioners deposed that the 7 th Respondent upon taking up the tenancy of the house within the Estate from the owner who is the 6 th Respondent, the 7 th Respondent commenced construction works with the 6 th Respondent consent but without securing any approval from the Estate Committee. The Petitioners deponed that the 6 th and 7 th Respondents did not heed any of the warnings by the Estate officials.
8. According to the Petitioners, the construction work is in breach of the Estate Constitution by compromising the security of the Estate and exposing the residents to risk.
9. Further, the Petitioners contend that this dispute is civil in nature between the Association and the 6 th and 7 th Respondents yet the 7 th Respondent went ahead to involve the police and had the 1 st Petitioner, the Chairman of the Association and the 8 th Petitioner, the Estate security guard arrested and charged in Court.
10. The Petitioners contend that the criminal process was invoked maliciously without any proper factual basis in order to advance a civil claim so as to aid the 6 th and 7 th Respondents in the civil dispute between them and the Estate Association hence is a contravention of the Petitioners’ rights under Article 25(c),50 and 157(11) of the Constitution.
11. It is thus the Petitioners contention that the Respondents’ have criminalized a civil dispute which is a blatant abuse of the criminal justice system and thus seek this Court’s intervention to stop the unlawful process and protect the Petitioners’ rights.
1 st Respondent’s Case
12. In opposition to the Petition, the 1 st Respondent’s filed Grounds of Opposition dated 11 th February 2022 on the basis that:
i. The application discloses no cause of action against the 1 st Respondent.
ii. The application does not lay with precision the manner in which the 1 st Respondent has infringed upon the Applicants' constitutional rights.
iii. The 1 st Respondent has not sanctioned the impugned investigations as to warrant grant of the orders sought.
iv. The 1 st Respondent has not approved or otherwise directed the charging of the 1 st and 8 th Applicants and therefore the case against the 1 st Respondent is illusory.
v. The 1 st Respondent has not threatened any action against the Applicants herein.
vi. An order of prohibition may only issue to stop or discontinue proceedings or an action which has already commenced.
vii. The 1 st Respondent has not commenced or demonstrated any proclivity in commencing proceedings against the Applicants either by way of ordering investigations, charging or otherwise.
viii. The 1 st Respondent has not breached any of its constitutional duty as encapsulated under Article 157 (11) of the Constitution or otherwise.
6 th Respondent’s Case
13. The 6 th Respondent opposing the Petition filed his Replying Affidavit sworn on 30 th October 2023.
14. On the outset, the 6 th Respondent contends that this Court lacks jurisdiction to entertain this matter as the subject matter relates to use and occupation of the cited parcel of land and further enforcement of the Villa Franca Residents Association Constitution which jurisdiction rests on the Environment and Land Court. Additionally, he informs that there is a pending dispute between him and the 7 th Respondent on one hand and the Petitioners on the other in Milimani Environment and Land Court Case No. E093 of 2022 in which the Petitioners have sought similar orders.
15. The 6 th Respondent depones that he is the registered owner of house known as L.R. No. 3858/44 Villa Franca Estate, which he leased to the 7 th Respondent as a tenant. He deposes that the lease dated 10 th November 2021 was set to expire on 1 st December 2023 and that the notice of termination was issued to the 7 th Respondent.
16. The 6 th Respondent deposes that the Petition does not disclose any reasonable cause of action against him. He swears that he is a stranger to the alleged criminal complaint in OB Number 47/18/01/2022 made by the 7 th Respondent against the 1 st and 8 th Petitioners and adds that he is unaware of its nature and protests that he has been joined into this suit wrongly.
17. The 6 th Respondent contends that the Petitioners have not demonstrated how the 1 st , 2 nd ,3 rd and 4 th Respondents acted at his behest in the arrest, investigation and charge of the 1 st and 8 th Petitioners to settle the purported civil matter.
18. The 6 th Respondent contends that the 1 st , 2 nd and 3 rd Respondents in handling this matter were merely exercising their constitutional powers hence the Petition ought to be dismissed.
Other Parties’ Case
19. The rest of the parties’ neither files response nor submissions to the Petition as none were found in the Court file or in the Court Online Platform (CTS).
Parties Submissions
Petitioners’ Submissions
20. Arusei and Company Advocates for the Petitioners filed submissions dated 14 th February 2025 . Counsel argued that the involvement of the police in a civil dispute to arrest and press criminal charges against the 1 st and 8 th Petitioners was arbitrary, unreasonable, irrational, unconstitutional and in violation of their fundamental rights.
21. Reiterating the averments in the Petition, Counsel submitted that the Respondents used the criminal process improperly and unfairly to settle a purely civil dispute, in relation to the dispute over the perimeter wall of the Villa Franca Estate. Counsel argued that the 6 th and 7 th Respondents in addition exposed the security of the estate and its residents. In a nutshell, Counsel submitted that the prosecution instigated against the 1 st and 8 th Petitioners was malicious.
22. Reliance was placed in R vs. Attorney General ex Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001 where it was held that:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper ... there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that be has a reasonable and probable, cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable."
23. To support this submission, Counsel further relied on the cases of Republic v. Director of Public Prosecution & Another ex parte Kamani, Nairobi Judicial Review Application No. 78 of 2015 and Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012 [2013] eKLR .
24. Counsel argued that the Respondents in instigating the malicious charges and intended prosecution cannot shield themselves under Section 193 A of the Criminal Procedure Code, as the criminal process herein is being used oppressively and not in good faith. Counsel noted that while the 1 st 2 nd and 3 rd Respondents officers are independent and this Court would not ordinarily interfere in their mandate, exercise of their discretion must be within the limits provided by the law as are subject to the Constitution. To buttress this point reliance was placed in Republic v. Director of Public Prosecutions & Another ex parte Kaman/ Nairobi Judicial Review Application No. 78 of 2015 where it was held that:
“This court appreciates that the court should not simply fold its arms and stare at the squabbling litigants/disputants parade themselves before the criminal court in order to show-case dead cases. The seat of justice is a hallowed lace and ought to be reserved for those mattes in which the protagonists have a conviction stand a chance of seeing the light of the day. In my view the prosecution ought not to institute criminal cases with a view of obtaining an acquittal. It is against the public interest as encapsulated in section 4 of the Office of the Director of Public Prosecutions Act to stage – manage criminal proceedings in a manner intended to obtain an acquittal.”
25. Further reliance was placed on Republic vs. Minister for Home Affairs and Others ex Parte Sitamze Nairobi HCCC No. 1652 of 2004 (HCK) [2008J 2 EA 323, Samwel Bigingi Ouko & another v Walterson Atinda Okwoyo & 4 others [2018] eKLR, Meme -vs- Republic & Another (2004) eKLR and Peter George Anthony Costa v. Attorney General & Another Nairobi Petition No. 83/2010 .
26. Counsel emphatically submitted that the Petition satisfies the threshold of a constitutional Petition set out in Anarita Karimi Njeru -vs- Attornev General (1979) KLR 154 and affirmed in Mumo Matemu -vs- Trusted Society of Human Rights Alliance and others, Nairobi Civil Appeal No. 290 of 2012 .
1 st Respondent’s Submissions
27. Senior Principal Prosecution Counsel, Kerongo Maatwa filed submissions dated 4 th September 2024 and argued that the the Petitioners had not set out any reasonable cause of action against the 1 st Respondent. In essence, that the Petitioners had not indicated how the 1 st Respondent had threatened or in any way violated or infringed the rights of the Petitioners enshrined in the Constitution and thus it was a clear case of misjoinder.
28. Further, that Petition is misconceived, bad in law and incompetent and that the Petition failed the specificity and precision test as enunciated in the Anarita Karimi Njeru v R (1979) eKLR. The 1 st Respondent argued that the Petitioners had also failed to demonstrate any defects in the manner the complaint against them was processed to warrant this Court’s intervention.
Other Parties’ Submissions
29. There were no submissions by the rest of the Parties either in the CTS or in the physical Court file.
Analysis and Determination
30. Upon careful review of the pleadings and the submissions of the Parties herein, this Honourable Court distils the following to be the issues for determination in the instant Petition:
i. Whether the Petition discloses a cause of action against the 1 st Respondent and 7 th Respondent.
ii. Whether the 1 st , 2 nd and 3 rd Respondents acted properly within the scope of their constitutional and statutory mandate in this matter.
iii. Whether the Petitioners’ constitutional rights were violated by the Respondents.
iv. Whether the Petitioners are entitled to the relief sought.
Whether the Petition discloses a reasonable cause of action against the 1 st Respondent and 7 th Respondent.
31. A cause of action consists of set of alleged facts or factual elements which disclose a legally recognized wrong or violation of a right that entitles the wronged party a judicial relief. In essence, three critical components must apparent; there must be a legal right to which the wronged party is entitled (or duty owed to him by the alleged violator), the breach (which could be an act or omission right or duty) and the judicial relief (to remedy the violation). In Isaiah Ondiba Bitange & 3 others v Institute of Engineers of Kenya another [2017] KEHC 7565 (KLR) articulated what a cause of action entails as follows:
“A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus —
"By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief
32. In the same way, the Court in Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676 (KLR) (Civ) citing the case of Karl Wehner Claasen v Commissioner of Lands & 4 others [2019] eKLR defined a cause of action as follows:
“…A cause of action denotes a combination of facts which entitles a person to obtain a remedy in court from another person and includes a right of a person violated or threatened violation of such right by another person. The applicant did not disclose any such fact which is sufficient ground for the Court to strike out the application…”
…
In answering the question: “what is considered to be a cause of action?” the court borrows from the decision in Anne Jepkemboi Ngeny v Joseph Tireito & another [2021]eKLR where the Court of Appeal succinctly stated the following:
“ In the Court of Appeal case of Attorney General & another v Andrew Maina Githinji & Another [2016] eKLR Waki JA. held that,
“A cause of action is an act on the part of the defendant, which gives the plaintiff his cause of complaint.”
That definition was given by Pearson J. in the case of Drummond Jackson vs Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, Read vs Brown (1889), 22 QBD 128, Lord Esher, M.R. had defined it as: -
“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court.”
Lord Diplock, for his part in Letang vs Cooper [1964] 2 All ER 929 at 934 rendered the following definition: -
“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
33. The central question here is whether the Petition as pleaded establishes a reasonable cause of action in law against the Respondents when the allegations in the pleadings alone are considered?
34. Earlier, on 7/6/2024 while dismissing the Preliminary Objection dated 7/2/2023, this Honourable court pinpointed what it considered to be core complaint in the instant Petition as follows:
The nature of the complaint is thus alleged manipulation of the criminal justice process by unfairly employing it against them (read petitioners) in order to assist the 6 th and 7 th respondents to subdue them into submission. The construction issue is only a piece in that factual matrix; it is not real issue in controversy in the Petition. The court has to determine if the arrest, detention and threat or prosecution was in the line with principles set out in Article 29, 49, 50 and 51 of the Constitution . The respondents will have an opportunity to demonstrate the lawfulness of their conduct or detention. These are Constitutional questions.
The issues raised in the Petition relate to observance of the Bill of Rights, accountability and impartiality by those charged with the enforcement of the law . It not about ownership and occupation of land or environmental matters as suggested by the Respondent. The issues in this petition thus squarely fall within the purview of this Court’s jurisdiction under Article 165 of the Constitution. (Emphasis added).
35. This Petition thus directly challenges the manner the 1 st , 2 nd , 3 rd , 4 th , 5 th and 8 th Respondents discharged their mandate against the Petitioners which, the Petitioners allege, was at the instigation 6 th and 7 th Respondent, they twisted a purely civil dispute into a criminal matter to intimidate the Petitioners from the opposing construction that was being undertaken by the 6 th and 7 th Respondent that was causing damage to the Estate’s perimeter wall.
36. The Petition as pleaded calls into attention the national values and principles of governance under Article 10 of the Constitution which binds all State organs, State Officers, public officers and indeed all persons. The values include the Rule of law, good governance, integrity , transparency and accountability (per Article 10 (2) (a) & (c). Further, Article 232 (1) (c) & (e) which demands prompt, effective, impartial and equitable service as well as accountability for administrative actions .
37. The National Police Service is empowered to investigate offences under Section 24 and also, Section 35 of the National Police Service Act. However, this should be done legitimately within the confines of the law. As was held in the Indian Supreme Court case of State of Haryana And Ors vs Ch. Bhajan Lal And Ors on 21 November, 1990 1992 AIR 604 ,
The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds … But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court, on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable upto unfathomable cosmos.
38. In a case such as this, where the Petitioners allege the police acted in a manner that was inconsistent principles of impartiality and objectivity required of them in execution of their statutory and constitutional mandate by weaponizing the criminal investigative process in order to give undue advantage to the 7 th Respondent in a purely civil matter, such actions it proved amount to oppression, and becomes a triable issue that this Court is obligated to inquire into pursuant to Article 165 (3) (b) and (d) (ii) of the Constitution. Whether the allegations will ultimately established by evidence as against each of the Respondents is an entirely different matter. The submission therefore that this Petition does not raise a reasonable cause of action is misconceived and fails.
Whether the 1 st , 2 nd and 3 rd Respondents acted properly within the scope of their constitutional and statutory mandate in this matter.
39. The Petitioners contended that following the construction dispute between the Estate Committees and the 6 th & 7 th Respondent, the 7 th Respondent filed a complaint with the police over that dispute which led to the arrest of the 1 st Petitioner who is the Chairman of the Estate committee and 8 th Petitioner-the Estate Security guard. The Petitioners lament that they were arrested with the intention of preferring criminal offences to intimidate them and compel them to give up the quest of opposing construction by the 6 th and 7 th Respondent.
40. The Office of the Director of Public Prosecution which is the 1 st Respondent in the matter filed grounds of opposition in which it stated that it neither sanctioned the impugned investigations, approved or even direct the charging of the 1 st and 8 th Applicants and therefore the case against it is illusory. Further, 1 st Respondent was categorical that it did not threaten any criminal action against the Petitioners.
41. On his part, the 6 th Respondent while acknowledging that there is a pending dispute between him and the 7 th Respondent on one hand and the Petitioners on the other in hand, in Milimani Environment and Land Court Case No. E093 of 2022 denied any knowledge of the arrest complained of or the nature of allegations in the OB 47/18/01/2022.
42. The 6 th Respondent admitted that he is the registered owner of house known as L.R. No. 3858/44 Villa Franca Estate. However, he stated that he had leased it to the 7 th Respondent as a tenant with effect from the 10 th November 2021 and the lease was set to expire on 1 st December 2023. The 6 th Respondent contended that the Petition does not disclose any reasonable cause of action against him insisting that the Petitioners did not demonstrate how the 1 st , 2 nd ,3 rd and 4 th Respondents acted at his behest in arresting, investigation or charging the 1 st and 8 th Petitioners so as to settle a purported civil matter. The 6 th Respondent contended that, in any event, the 1 st , 2 nd and 3 rd Respondents were merely exercising their constitutional powers hence the Petition ought to be dismissed
43. In so far as the allegations made against the 1 st and 6 th Respondents are concerned, they both denied them vehemently. No evidence, direct or otherwise was tendered by the Petitioners implicating the 1 st and 6 th Respondent with the arrest and detention of the 1 st and 8 th Petitioners. The DPP’s role would have been implicated if he had given approval of the charges or directed an investigation on the 1 st and 8 th Respondent to be conducted but no such evidence was tendered. For 6 th Respondent, no evidence was adduced to demonstrate that he lodged the complaint that led to the arrest and detention of the 1 st and 8 th Petitioners.
44. However, as for the 2 nd ,3 rd , and 7 th Respondents, despite the Petitioners positive and unequivocal averments that the 2 nd , 3 rd and 4 th Respondents were directly responsible for the arrest and detention without any justifiable cause (and that they merely acted at the instigation of the 7 th Respondent to weaponize the criminal justice so to settle a purely civil matter), the 2 nd , 3 rd and 4 th Respondents did not file any Replying affidavit controverting these facts or offer any valid justification for their conduct.
45. By failing to contest the factual account given by the Petitioners, the 2 nd , 3 rd , 4 th and 7 th Respondents failed to demonstrate the existence of a genuine and reasonable complaint to justify the police action against the Petitioners. The Court of Appeal in Dande & Others v Inspector General National Police Service & 2 others (Civil Appeal 246/2016) (2022) KECA 170 , citing the Supreme Court identified the circumstances when a Court may intervene to stop abuse of the criminal process as follows:
“25.The Supreme Court of Kenya… further identified the guidelines for review of prosecutorial powers in Cyrus Shakhalanga Khwa Jirongo vs Soy Developers Ltd & 9 others [2021] eKLR as follows:
“Furthermore, the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the Court on when the High Court may review prosecutorial powers. They are as follows:
Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or
Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or
Where the allegations in the First Information Report or th
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