REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKADARA
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO E099 OF 2025
EMMA WANGECHI ……………. APPLICANT
VERSUS
REPUBLIC ……………………. RESPONDENT
RULING
1. By Notice of Motion dated 22 nd day of April 2025 the applicant moved the court for the following orders:
1, spent
2. Spent
3. Spent
4. That the proceeding in Makadara Criminal case No 7722 of 2023 R v Emma Wangechi Kuria be stayed pending the lodging , hearing and determination of intended settlement from the ruling and order made by Milimani Commercial Magistrate Court Case No E954 of 2023 Stanley Mwaniki and Another v Emma Wangechi Kuria and 2 others .
5. The application was grounded on the grounds that Criminal Case No 7722 of 2023 was running concurrently with civil case Milimani commercial court No E954 of 2023 Stanley Mwaniki and Another vs Emma wangechi Kuria and 2 others where it is alleged she was not served with summons as required in law and that the police were threatening the same yet she had a mental disorder.
6. The application was supported by the applicant’s affidavit in which it was deposed that she was arrested , charged and incarcerated in the month of November 2023 and January 2024 where she got into depression , developed into mental case and therefore unable to pay the complainant in the civil matter as per the terms agreed upon.
7. On the 28 th April 2025, the matter came up before me under certificate of urgency when the following orders were issued :
A) That having been charged and admitted to bond the issue of anticipatory bond does not arise
B) That the only live issue is the stay of proceedings of the criminal matter herein in view of the subsistence of a civil cause allegedly arising from the same transaction.
8. On the 19 th November 2025 the court granted an order for the stay of proceedings before the trial court pending the hearing and determination as to whether the said proceedings ought to be quashed for being an abuse of the court process and further reinstated the bond granted to the applicant but cancelled pending the herein of the application.
9. Pursuant to an order issued by the court , the applicant filed a supplementary affidavit in which she deposed that she was arrested and charged before the lower court at Makadara in criminal case no E 7722ogf 2023with the offence of obtaining by false pretence contrary to section 313 of the Penal Code , arising from allegations made by the complainant in relation to a commercial transaction .
10. That the complainant through her Advocates on record at the same time filed a civil suit arising from the same subject matter and that in an effort to settle the same , she had made payments totalling to approximately Kenya shillings three million and that the complaint’s herein in the said civil suit obtained interim orders which imposed significant restrictions on her financial and personal liberty.
11. It was contended that the dispute between the parties herein is purely commercial in nature and is already been subjected t civil litigation in the appropriate forum and therefore the criminal proceedings herein amounts to an abuse of the court process and undermines the applicant’s rights to fair trial and protection from double jeopardy.
SUBMISSIONS .
12. Directions were issued that the application herein be heard by way of written submissions which were duly filed and highlighted by the parties herein.
13. On behalf of the applicant it was submitted that criminal law should not be invoked to settle private or commercial disputes as was stated in Githunguri v Republic [1986] KLR to the effect that prosecution is not made good by what it turns up. It is good or bad when it starts. In George Joshua OKungu & another v Chief Magistrates Court Anti -Corruption Court and another [2014] eKLR where the court stated that the process of criminal law must not be allowed to operate as an instrument of oppression or as a tool for personal or civil vendetta, in Republic v Chief Magistrate Court at Mombasa Ex parte Ganijee & another [2002] 2 KLR where it was stated that a criminal prosecution commence in the absence of proper factual foundation is an abuse of the court process.
14. It was contended that the foundation of both criminal and civil proceedings is the business transaction between the applicant and the complainant involving the supply and trade of sugar and that any dispute amounts to breach of contractual obligation and therefore the charge of obtaining by false pretence under section 333 of the Penal Code cannot be sustained where the intention to defraud is not demonstrated and where the transaction was conducted in good faith as demonstrated by the fact that the applicant has made substantial repayment and therefore the criminal justice system should nlot be used as an avenue for debt collection.
15. It was submitted that allowing both matters to proceed will exposed the applicant to double jeopardy since both seeks the same ultimate result and therefore it will not serve any public interest.
16. On behalf of the prosecution it was contended that having established that both matters touch on the same subject matter , the same did not oppose the stay of proceedings in the criminal case but opposed the attempt to expunge the proceedings therein since it was not moved through judicial review and that the applicant had not demonstrated that it was an abuse of the court process.
17. On behalf of the complainants it was submitted that it is not prohibited for both criminal and civil proceedings to proceed at the same time under section 193A of the CPC.
ANALYSIS AND DETERMINATION
18. In this matter the fact that there is in existence criminal and civil proceeding involving the same subject matter is not in dispute. Further the fact that the civil matter was instituted and orders obtained therein against the applicant who has made substantial part payment therein is not dispute.
19. The issue in dispute is not whether there can exist both criminal and civil proceedings at the same time but whether the criminal proceedings is being abused .
20. In this matter the facts speak for themselves, the complainant himself e=was alive to the fact that this is purely a commercial dispute as evidenced by the fact that the same opted to utilize at the first instance the civil remedy by filing an appropriate recovery proceeding in the civil court wherein the sane obtained favourable orders against the applicant. It is only when execution of the said orders entered into headwinds that the same turned into the criminal recourse akin to pilling pressures on the applicant to make good her part of the bargain , which to my mind amount to misuse of the criminal justice system.
21. In this holding I find support in the cases of Kuria & 3 others v Attorney General [2002] 2 KLR where the court stated that it had powers to prohibit the continuation of criminal prosecution if extraneous matters divorced from the goal of justice guide their instigation.
22. I am not persuaded by the submissions by the prosecution that the court can only act on the remedy sought by the applicant if the matter was filed as a judicial review or constitutional petition , for to agree with the same will be paying lip service to the provisions of Article 159 (2)(d) and (e ) of the constitution which provides that justice shall be administered without regard to procedural technicalities and to promote and protect the purpose and principles of the constitution.
23. I am in agreement with the principles set out in the old gem Githunguri v r (supra) that prosecution is good or bad as it starts and that where the court is being misused as in the matter before the lower court , this court has a constitutional duty and mandate to under it supervisory jurisdiction to halt the same by whatever means possible so as to restore the duty of the court as a city of refuge for any aggrieved Kenyan.
24. The order that commend itself to the court to grant is to prohibit the continued prosecution of the applicant in Makadara Criminal case no E7722 of 2023 in view of the pending civil case in Milimani Commercial case no MCCOMSU /E954 of 2023 and is hereby granted.
25. The proceeding in Makadara Chief Magistrate Criminal Case no 7722 of 2023 are hereby quashed fir being an abuse of the court process and any consequential orders obtained therein are set aside
26. And it is ordered.
SIGNED DATED AND DELIVERED THIS 21 st DAY OF JULY 2026
J WAKIAGA .
JUDGE
In the presence of
C/A Irene
Mr. Kimani for the applicant
Ms. Kariuki for the respondent
Mr. Ngaira for the interested Party ( Complianant )
IN THE HIGH COURT OF KENYA AT MAKADARA
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO E099 OF 2025
EMMA WANGECHI ……………. APPLICANT
VERSUS
REPUBLIC ……………………. RESPONDENT
RULING
1. By Notice of Motion dated 22 nd day of April 2025 the applicant moved the court for the following orders:
1, spent
2. Spent
3. Spent
4. That the proceeding in Makadara Criminal case No 7722 of 2023 R v Emma Wangechi Kuria be stayed pending the lodging , hearing and determination of intended settlement from the ruling and order made by Milimani Commercial Magistrate Court Case No E954 of 2023 Stanley Mwaniki and Another v Emma Wangechi Kuria and 2 others .
5. The application was grounded on the grounds that Criminal Case No 7722 of 2023 was running concurrently with civil case Milimani commercial court No E954 of 2023 Stanley Mwaniki and Another vs Emma wangechi Kuria and 2 others where it is alleged she was not served with summons as required in law and that the police were threatening the same yet she had a mental disorder.
6. The application was supported by the applicant’s affidavit in which it was deposed that she was arrested , charged and incarcerated in the month of November 2023 and January 2024 where she got into depression , developed into mental case and therefore unable to pay the complainant in the civil matter as per the terms agreed upon.
7. On the 28 th April 2025, the matter came up before me under certificate of urgency when the following orders were issued :
A) That having been charged and admitted to bond the issue of anticipatory bond does not arise
B) That the only live issue is the stay of proceedings of the criminal matter herein in view of the subsistence of a civil cause allegedly arising from the same transaction.
8. On the 19 th November 2025 the court granted an order for the stay of proceedings before the trial court pending the hearing and determination as to whether the said proceedings ought to be quashed for being an abuse of the court process and further reinstated the bond granted to the applicant but cancelled pending the herein of the application.
9. Pursuant to an order issued by the court , the applicant filed a supplementary affidavit in which she deposed that she was arrested and charged before the lower court at Makadara in criminal case no E 7722ogf 2023with the offence of obtaining by false pretence contrary to section 313 of the Penal Code , arising from allegations made by the complainant in relation to a commercial transaction .
10. That the complainant through her Advocates on record at the same time filed a civil suit arising from the same subject matter and that in an effort to settle the same , she had made payments totalling to approximately Kenya shillings three million and that the complaint’s herein in the said civil suit obtained interim orders which imposed significant restrictions on her financial and personal liberty.
11. It was contended that the dispute between the parties herein is purely commercial in nature and is already been subjected t civil litigation in the appropriate forum and therefore the criminal proceedings herein amounts to an abuse of the court process and undermines the applicant’s rights to fair trial and protection from double jeopardy.
SUBMISSIONS .
12. Directions were issued that the application herein be heard by way of written submissions which were duly filed and highlighted by the parties herein.
13. On behalf of the applicant it was submitted that criminal law should not be invoked to settle private or commercial disputes as was stated in Githunguri v Republic [1986] KLR to the effect that prosecution is not made good by what it turns up. It is good or bad when it starts. In George Joshua OKungu & another v Chief Magistrates Court Anti -Corruption Court and another [2014] eKLR where the court stated that the process of criminal law must not be allowed to operate as an instrument of oppression or as a tool for personal or civil vendetta, in Republic v Chief Magistrate Court at Mombasa Ex parte Ganijee & another [2002] 2 KLR where it was stated that a criminal prosecution commence in the absence of proper factual foundation is an abuse of the court process.
14. It was contended that the foundation of both criminal and civil proceedings is the business transaction between the applicant and the complainant involving the supply and trade of sugar and that any dispute amounts to breach of contractual obligation and therefore the charge of obtaining by false pretence under section 333 of the Penal Code cannot be sustained where the intention to defraud is not demonstrated and where the transaction was conducted in good faith as demonstrated by the fact that the applicant has made substantial repayment and therefore the criminal justice system should nlot be used as an avenue for debt collection.
15. It was submitted that allowing both matters to proceed will exposed the applicant to double jeopardy since both seeks the same ultimate result and therefore it will not serve any public interest.
16. On behalf of the prosecution it was contended that having established that both matters touch on the same subject matter , the same did not oppose the stay of proceedings in the criminal case but opposed the attempt to expunge the proceedings therein since it was not moved through judicial review and that the applicant had not demonstrated that it was an abuse of the court process.
17. On behalf of the complainants it was submitted that it is not prohibited for both criminal and civil proceedings to proceed at the same time under section 193A of the CPC.
ANALYSIS AND DETERMINATION
18. In this matter the fact that there is in existence criminal and civil proceeding involving the same subject matter is not in dispute. Further the fact that the civil matter was instituted and orders obtained therein against the applicant who has made substantial part payment therein is not dispute.
19. The issue in dispute is not whether there can exist both criminal and civil proceedings at the same time but whether the criminal proceedings is being abused .
20. In this matter the facts speak for themselves, the complainant himself e=was alive to the fact that this is purely a commercial dispute as evidenced by the fact that the same opted to utilize at the first instance the civil remedy by filing an appropriate recovery proceeding in the civil court wherein the sane obtained favourable orders against the applicant. It is only when execution of the said orders entered into headwinds that the same turned into the criminal recourse akin to pilling pressures on the applicant to make good her part of the bargain , which to my mind amount to misuse of the criminal justice system.
21. In this holding I find support in the cases of Kuria & 3 others v Attorney General [2002] 2 KLR where the court stated that it had powers to prohibit the continuation of criminal prosecution if extraneous matters divorced from the goal of justice guide their instigation.
22. I am not persuaded by the submissions by the prosecution that the court can only act on the remedy sought by the applicant if the matter was filed as a judicial review or constitutional petition , for to agree with the same will be paying lip service to the provisions of Article 159 (2)(d) and (e ) of the constitution which provides that justice shall be administered without regard to procedural technicalities and to promote and protect the purpose and principles of the constitution.
23. I am in agreement with the principles set out in the old gem Githunguri v r (supra) that prosecution is good or bad as it starts and that where the court is being misused as in the matter before the lower court , this court has a constitutional duty and mandate to under it supervisory jurisdiction to halt the same by whatever means possible so as to restore the duty of the court as a city of refuge for any aggrieved Kenyan.
24. The order that commend itself to the court to grant is to prohibit the continued prosecution of the applicant in Makadara Criminal case no E7722 of 2023 in view of the pending civil case in Milimani Commercial case no MCCOMSU /E954 of 2023 and is hereby granted.
25. The proceeding in Makadara Chief Magistrate Criminal Case no 7722 of 2023 are hereby quashed fir being an abuse of the court process and any consequential orders obtained therein are set aside
26. And it is ordered.
SIGNED DATED AND DELIVERED THIS 21 st DAY OF JULY 2026
J WAKIAGA .
JUDGE
In the presence of
C/A Irene
Mr. Kimani for the applicant
Ms. Kariuki for the respondent
Mr. Ngaira for the interested Party ( Complianant )