Introduction
1. Before the Court for determination is the Notice of Motion Application dated 17 th July, 2026 brought under Articles 19, 20, 21, 22, 23, 24, 25(c), 27, 28, 29, 31, 47, 50 and 165(3) of the Constitution of Kenya and Sections 134 and 137 of the Evidence Act, and Section 118 of the Criminal Procedure Code.
2. The Application is supported by the Affidavit of, FABIAN MURIMI MBAE , the Petitioner sworn on the even date.
3. The Petitioner’s Notice of Motion application seeks interim conservatory orders pending the hearing and determination of the Application and Petition, as follows:
a) Pending the hearing and determination of this Application and Petition herein, a conservatory order do issue restraining the 1 st ,2 nd and 3 rd Respondents, whether by themselves, their servants, agents or any person acting under their instructions ,from seizing, accessing ,retaining or subjecting the Petitioner/Applicants mobile phone to forensic extraction or analysis or for any other purposes in connection with the ongoing DCI investigations.
b) Upon hearing and determination of the Application the conservatory orders so issued be extended pending hearing and determination of the Petition herein.
c) Costs of the application be provided for.
4. Through the Petitioners supporting affidavit, he asserts that he is an Advocate of the High Court of Kenya who in the year 2023, was instructed by a client, one Godfrey Muchira, to act in the transfer of shares in a private limited company, namely GODMER ENTERPRISES LIMITED, from his wife to their Son (Liam Njoroge Muchira); daughter (June Wambui Muchira) and the balance thereof to himself (Mr. Godfrey Muchira).
5. He states that in the ordinary course of the said transaction, he was furnished with the company resolutions authorizing the transaction, duly executed share transfer instruments, copies of the identification documents of the parties and other supporting documents required to facilitate the assessment and payment of stamp duty and the subsequent lodgment and registration of the transfers with the Registrar of Companies. These included minutes of the meeting of the directors of GODMER ENTERPRISES LIMITED held on 4th November 2023, appointing him as the authorized person to lodge the relevant company documents; the duly executed share transfer instruments relating to the transfer of the shares held by Mercy Wanjiku to Liam Njoroge Muchira, June Wambui Muchira and Godfrey Muchira, copies of the identification documents of the parties to the transaction, the Kenya Revenue Authority payment slip and KCB Bank receipt evidencing payment of stamp duty on 16th November 2023; and the receipt issued by the Office of the Attorney General and Department of Justice on 16th November 2023 in respect of the filing of the company changes as well as an affidavit sworn by Mercy Wanjiku on 10th November 2023 before a Commissioner for Oaths and the Petitioner had no reason whatsoever to believe or suspect that her signature thereon had been forged.
6. The Petitioner deposes that relying in good faith upon the foregoing documents, which appeared regular and authentic on their face and which he had no reason to doubt, he proceeded to have the share transfer instruments assessed, stamped and lodged for registration in the ordinary and proper discharge of his professional duties, however, 2 years later in 2025, on 3rd April 2025, he received Summons issued by the Regional DCI Co-ordinator, Mr. Benson M. Kasyoki, who required him to appear on 14th April 2025 which he rescheduled and later on recorded his statement in full on 17th April 2025.
7. He deposes that on 3rd September 2025, he was requested to provide certain document which he did and later on Vide Summons dated 14th April 2026, the Petitioner was yet again required to appear before the DCI, summons that he honoured and it was on this occasion that he was first informed that the Office of the Director of Public Prosecutions had allegedly directed that forensic extraction be conducted of communications between myself and the said client, Mr. Muchira, to which he sought leave to consult before responding to this demand, and was thereafter summoned on 29th June, 1st July and 2nd July 2026, each of which he honoured, although on each occasion the exercise proved futile as no Investigating Officer was available to attend to him.
8. He states that despite his consistent cooperation, Chief Inspector Leah Ambiche, the 1St Respondent’s Officer) has persistently insisted that he hands over his mobile phone. On 14 th April 2026 he responded that he was bound by confidentiality and couldn’t therefore hand over the phone, to which the 1 st Respondent responded that this was a directive and not a suggestion. This informed the Petitioners decision to issue a demand to the 1 st Respondent, which has never been responded to
9. The Petitioner states that his mobile phone contain privileged communications with numerous other clients of his firm who are entirely unconnected to Muchira or to the investigation herein, as well as private and personal communications, including with the spouse, disclosure of which would occasion grave and irreparable harm to him and to third parties who have neither waived nor been asked to waive any privilege , he reaffirms his commitment to cooperate with lawful investigations and states that unless this Honourable Court intervenes, he ,and numerous of his clients who are strangers to these proceedings, stand to suffer irreparable harm to privacy and privileged communications, which harm cannot adequately be compensated in damages.
10. The application is opposed vide a replying affidavit of the 1 st and 2 nd Respondents sworn on 31 st July, 2026.
1 st and 2 nd Respondents Replying Affidavit
11. The affidavit was sworn by NO . 236863 CI LEAH AMBICHE of the Directorate of Criminal Investigations (DCI).
12. The Respondent avers that she is the investigating officer in a case of Forgery contrary to section 349 of the penal code, Conspiracy to commit a felony contrary to section 393 of the Penal code among other offences vide Inquiry file No. 186/2025, that the complainant in the inquiry file is one Mercy Wanjiku who reported this matter at DCI Headquarters through a letter dated 19 th November, 2024 in which she complained of unauthorized removal of directorship through falsification of documents and company shareholding and illegal transfer of her shares without consent at Godmer Enterprises Limited, as well as the appearance of the Petitioner on Godmer’s CR12 as a Company Secretary whereas her Co- director and herself never had any resolutions appointing the Petitioner as company Secretary.
13. She deposes that during investigations several persons of interest were summoned and equally recorded their plain statements, the Petitioner being one of them. And at no one time did either the Petitioner or Mr. Muchira indicate they have an existing Advocate-client relationship. Mr. Muchira referred to one Mr. Muli Nzavi as his advocate and upon completion of investigations the resultant duplicate file was forwarded to the ODPP vide DCI letter Ref: DCI/C/CRI/6/4/VOL.61/159 dated 12 th November, 2025 for perusal and legal advice/directions, to which the office of the Director of Public Prosecutions returned the duplicate file with areas to cover before a decision to charge is made vide their letter Ref ODPP/HQ/CAM/2/6446 dated 15 th December 2025.
14. She avers that ODPP’s letter directed the 1 st and 2 nd Respondents to cover 5 points with points Nos 2,3 & 4 being applicable to the Petitioner being ;the Petitioner was to avail copy of his application as company secretary at Godmer enterprises as well as resolutions/minutes for inclusion in the file, as previous stated in his plain statement, the Petitioner in his plain statement asserted that there existed WhatsApp communication between him and Mr. Muchira. The ODPP directed that both the mobile phones of the Petitioner and Mr. Muchira’s be subjected to forensic examination to verify the existence and nature of communication between them, particularly any instructions allegedly given by Mr. Muchira concerning alteration of directorship and allocation of shares in Godmer and the authentication of the Petitioner’s admission number as an advocate and his current registration and practicing status with LSK.
15. She avers that following these directives, on 14 th April 2026 the Petitioner alongside 2 others were summoned to DCI Regional Offices in line with the ODPP Directives. That the Petitioner appeared before DCI Regional Headquarters on 1 st July 2026 where he met the deponents Co- investigating officer who took him through the ODPP letter and what was required of him and that on 14 th July 2026 at 0820 hours the petitioner, via WhatsApp, expressed his unwillingness to submit his phone for forensic. She states that the other two persons summoned appeared and complied with the ODPP directives. Mr. Muchira submitted his mobile phone and the she inventoried the same, In line with Data Protection act as well as Article 31 of the constitution, and they have filed Miscellaneous Application E3441/26 and in the process of obtaining a court order before forwarding the mobile phone (s) to communications Authority for examination and extraction of the specific communication between the Petitioner and Mr. Muchira concerning any instruction for alteration of company details at Godmer Enterprises.
16. She finalizes by stating that the summons and follow up communication via WhatsApp were all in good faith and in line with executing their investigative mandate and at no given time were they meant as a threat to the Petitioner .
17. The 1 st and 2 nd Respondents ,through the Attorney General filed grounds of opposition dated 31 st July 2026 where they oppose the application and petition on the below grounds:
i) THAT the Respondents are public officers and agencies clothed with express constitutional and statutory mandate under Articles 157 and 245 of the Constitution, the National Police Service Act (Cap. 84), and the Criminal Procedure Code (Cap. 75) to investigate and cause the prosecution of criminal offences, including the offence(s) of forgery and/or uttering a false document disclosed on the face of the Petitioner's own pleadings, and the orders sought would improperly fetter and stall that constitutional mandate at a preliminary investigative stage.
ii) THAT 1st Respondent can summon and interrogate an individual based on the report made to it and record statements that will ensure success of investigation as per Section 49 and 52 of the National Police Service Act and the privilege conferred by Section 134 of the Evidence Act, Cap. 80, is not absolute as the privilege does not extend to any communication made in furtherance of an illegal purpose, nor to any fact observed by an advocate in the course of his employment showing that a crime or fraud has been committed since the commencement of that employment. On the Petitioner's own pleaded facts, the communications sought relate directly to the very transaction now under investigation for alleged forgery of a signature and a sworn affidavit; to the extent that any such communications were made in furtherance of or to conceal the alleged forgery, no privilege attaches to them in the first instance, and this is a matter properly determined by this Honourable Court on the merits and not pre-empted by a blanket conservatory order.
iii) THAT the Respondents are entitled to have the existence and content of relevant communications ascertained through a properly supervised process, including, if this Honourable Court considers it appropriate, independent forensic examination under a defined protocol, with disclosure limited to communications concerning the specific 2023 transaction under investigation, and with a privilege log and opportunity for the Applicant to specifically claim privilege over identified items. This is a course which the Applicant himself contemplates as an alternative in prayer (d) of the Petition, and which accordingly cannot simultaneously be said to occasion irreparable harm.
iv) THAT the Applicant is not, in this instance, a disinterested repository of privileged material belonging solely to third parties. On his own pleaded case, he personally handled the share transfer instrument and the affidavit alleged to bear a forged signature, and he is accordingly a material witness, and a person of interest, in respect of his own knowledge, instructions received and conduct in that transaction. Communications between the Applicant and his client concerning that specific transaction go to the heart of the investigation and cannot be shielded from legitimate investigative scrutiny merely by virtue of the Applicant's status as an advocate.
v) THAT no warrant or court order has been sought and refused, nor has any court ruled adversely on any application by the Respondents. The Applicant does not plead that the Respondents have exhausted or circumvented the procedure under Section 118 of the Criminal Procedure Code. A request or directive for voluntary cooperation and production, without more, does not itself amount to an unlawful search or seizure, and the Respondents remain entitled, in the ordinary course of investigation, to apply to a competent court for appropriate orders should voluntary cooperation not be forthcoming.
vi) THAT the Petitioner has not demonstrated a prima facie case with a likelihood of success sufficient to warrant the grant of conservatory orders, nor that the balance of convenience favours an order that would suspend a lawful criminal investigation into serious allegations of forgery of a sworn affidavit and company instruments, which allegations raise a significant public interest in their expeditious investigation. They cite Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] Eklr and Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party) [2020] eKLR.
vii) THAT the averments of the Petition, on their own showing, disclose that the Office of the Director of Public Prosecutions gave directives contemplating consultation between the Applicant and the Respondents as to the manner of examining communications, which is inconsistent with the Applicant's characterisation of the process as arbitrary, high-handed, or devoid of procedural fairness and the alleged urgency and risk of "forceful seizure" pleaded in the Petition is speculative and unsupported by any actual attempt at forceful seizure; the investigation has proceeded since April 2025 without incident, and the Applicant has at each stage been able to consult his advocates and respond, negating any real and imminent risk warranting emergency conservatory relief. They state that the grant of the orders sought, in the terms framed, would set an undesirable precedent enabling any advocate who is personally implicated in, or a material witness to, suspected criminal conduct to invoke advocate-client privilege as a blanket shield against legitimate investigation, contrary to the public interest in the investigation and prosecution of crime and the constitutional principle that no person is above the law. They therefore ask for the Application and Petition to be dismissed.
The 3 rd Respondents Grounds of objection
18. The 3 rd respondents filed grounds of opposition dated 30 th July,2026 where they opposed the Application and Petition on the following grounds :
i) THAT the Petition and Notice of Motion Application filed herein do not meet the threshold set out in the celebrated case of Anarita Karimi -Versus-Republic (No.1) (1979 1 KLR 154 and Mumo Matemu -Versus-Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012(2013), it has not set out with reasonable degree of precision that of which the Petitioner complains of against the 3 rd Respondent, provisions said to have been infringed or violated by the 3 rd Respondent and the manner infringed.
ii) THAT the Petitioner have misapprehended the statutory and constitutional mandate and duty of the 3 rd Respondent as provided under article 157 of the Constitution of Kenya,2010 and the Office of the Director of Public Prosecutions (ODPP) Act, 2013 the core mandate being prosecution of criminal offences or cases in court while detection of crime, arrests of offenders and investigation of crime is the mandate of the police as provided under the National Police Service Act Cap 84 Laws of Kenya.
iii) THAT the Petition and Notice of Motion Application offend the doctrine of separation of powers as it invites this Honourable Court to interfere with the constitutionally independent prosecutorial discretion of the 3 rd Respondent contrary to Article 157(10) of the Constitution of Kenya, which provides that the Director of Public Prosecutions shall not require the consent of any person or authority and shall not be under the direction or control of any person or authority.
iv) THAT the Petition and Notice of Motion Application fail to demonstrate exceptional circumstances warranting judicial intervention in investigative or prosecutorial processes, and therefore prematurely invokes this Honourable Court’s constitutional jurisdiction and the Petitioner has not established any evidence of malice, bad faith, illegality, irrationality, or procedural impropriety on the part of the 3 rd Respondent capable of justifying the orders sought as against the 3 rd Respondent. Therefore, the issues raised in the Petition and Notice of Motion Application are speculative and abstract and do not disclose a real or imminent controversy capable of adjudication by this Honourable Court as against the 3 rd Respondent.
v) THAT the Petitioner has failed to demonstrate how the alleged actions of the 1 st – 2 nd Respondents or investigative agencies, if any, are attributable to the 3 rd Respondent, whose mandate only crystallizes upon receipt and independent review of investigation files and finally prosecution. That the Petition filed herein amounts to an abuse of the court process as it seek anticipatory constitutional protection against lawful criminal processes, yet constitutional litigation cannot be used as a shield against potential criminal liability.
19. They state that granting the orders sought would amount to unjustified judicial interference with criminal justice administration and would set a dangerous precedent undermining lawful investigation criminal justice processes and the same ought to be dismissed with costs.
20. Directions on written submissions were issued.
The Applicants submissions
21. The Applicant filed submissions dated 7 th August,2026 where they raised 5 issues for determination:
a) Whether the Petitioner/Applicant has established a prima facie case with a likelihood of success.
b) Whether the Petitioner/Applicant stands to suffer irreparable harm.
c) Whether the balance of convenience and the public interest favour the grant of the conservatory orders sought.
d) Whether the 3rd (ODPP) and 4th (AG) Respondents are properly enjoined in these proceedings.
e) Whether the Petition and the Notice of Motion are premature.
22. On whether the Application raises a Prima Facie Case ,the Applicant submits that the intended forensic examination raises serious constitutional and statutory questions deserving full trial which include; Violation of Article 31, access to his phone constitutes an intrusion into his constitutional right to privacy. Violation of Advocate–client privilege as Section 134 of the Evidence Act protects confidential communications between an advocate and clients and the risk to third-party clients as his phone contains confidential information relating not only to Godfrey Muchira but also numerous unrelated clients whose privacy would equally be compromised. He urges these are genuine and arguable constitutional questions requiring judicial determination rather than administrative action.
23. He argues that even the 4 th Respondent agrees with him that that the Advocate-Client privilege under Section 134 of the Evidence Act is not absolute, is the very reason why this case raises triable issues. The Court will have to determine whether this privilege is absolute or has limitations; and whether the circumstances/ facts of this case, meet the exceptions under the said provisions.
24. The Applicant relies on Law Society of Kenya v Director of Public Prosecutions & 4 Others, Petition No. 9 of 2019 [2025] KEHC 11980 (KLR), where the Court held that interference with legal privilege must be determined on a case-by-case evaluation of specific facts.He further cites Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 , adopting Bosire JA's definition of a prima facie case as one where an apparent infringement calls for rebuttal.
25. He therefore submits that the Application met the above threshold. He has a constitutional right to privacy under Article 31, and Section 134 of the Evidence Act.
26. On whether the Petitioner/Applicant stands to suffer irreparable harm, he submits that the harm threatened here is irreparable in the most literal sense because once investigators extract and review privileged communications, advocate-confidentiality is permanently destroyed, the information cannot be “unseen”, no subsequent court order can restore privilege, and monetary damages cannot adequately compensate either him or innocent third-party clients. He submits that the Respondents themselves admit they require the phone, demonstrating that the threat is real rather than hypothetical.
27. He submits that CI Ambiche admits receiving ODPP instructions to extract communications, the ODPP letter dated 15 December 2025 directs forensic extraction of both phones, the WhatsApp communication unequivocally orders surrender of the Applicant's phone and the DCI confirms that Miscellaneous Application No. E3441 of 2026 has already been filed to obtain court authority for extraction through the Communications Authority, accordingly, the petitioner sees the threatened violation as actual, substantial and demonstrable. The Applicant relies on Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
28. On whether the balance of convenience favours the grant of the orders, the Petitioner cited Suleiman v Amboseli Resort Limited [2004] eKLR, Ojwang J ( as he then was) held:
" Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella v. Cassman Brown, the court has had to consider the following questions before granting injunctive relief:
(i) is there a prima facie case with a probability of success?
(ii) does the applicant stand to suffer irreparable harm, if relief is denied?
(iii) on which side does the balance of convenience lie? Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court, in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice."
29. Applying this test, Applicant argues that the balance overwhelmingly favours preservation of the status quo because if conservatory orders are granted, investigations merely pause regarding phone extraction, the Applicant continues cooperating and the Respondents lose nothing substantial. On the other hand, if orders are refused, privileged communications are immediately exposed, privacy is permanently violated and unrelated clients suffer irreversible prejudice. For these reasons, the Applicant submits that Court should balance the scale of convenience in favour of the Applicant by granting the Conservatory orders ought.
30. On the fourth issue, the Applicant submits that regarding the 3 rd Respondent, is accordingly not a stranger to these proceedings. It is the author of the very directive under challenge for seizing of the Petitioners phone and that this is entirely consistent with the ODPP’s constitutional mandate. Article 157(4) & (11) of the Constitution expressly empowers the Director of Public Prosecutions to "direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct," as read together with Section 5(a) ODPP Act. Further, CI Ambiche expressly informed the Applicant that the directive originated from the ODPP, s by virtue of it authoring the said directive, it is properly joined (not enjoined ) to the proceedings.
31. As regards the Attorney General , he submits that he is joined in his constitutional capacity as, the Principal Legal Adviser to Government under Article 156 and a representative of national government under Section 12 of the Government Proceedings Act. The Applicant clarifies that the AG is not accused of personal wrongdoing, but is a necessary party representing government organs.
32. On the issue raised by the ODPP in the Grounds of Opposition on whether or not the Petition meets the threshold for specificity in pleadings as set in the Anarita Karimi Njeru v Republic (No.1) [1979] 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 [2013] eKLR , the Petitioner leaves them for the Main Petition herein, he however mentions that the petition sufficiently identifies, the constitutional provisions violated, the statutory provisions infringed, and the precise conduct complained which are administrative directive compelling disclosure of privileged material.
33. On whether the Notice of Motion is Premature, the Petitioner submits that conservatory order exists precisely to arrest a threatened violation before it crystallizes into an accomplished and irreversible one; to require an applicant to wait until after the event would defeat the very purpose the remedy is designed to serve.
34. The Applicant cites Mwaniki v Ndiga & 3 Others, Constitutional Petition E020 of 2024 [2025] KEHC 9562 (KLR) , where the High Court held that an applicant need only demonstrate, a prima facie case; and a real danger of prejudice arising from an actual or threatened constitutional violation.
35. The Applicant reiterates that the threat is real because, the ODPP directed extraction, the written directive identifies both phones, CI Ambiche demanded surrender of the phone as an order, the DCI has already initiated Misc. Application No. E3441 of 2026 to obtain extraction orders. He therefore argues that the threatened violation is live and actively being pursued, not merely anticipated. He also rejects the Respondents' exhaustion argument, stating that no alternative remedy exists other than invoking the High Court's jurisdiction under Articles 22 and 23.
36. The Applicant therefore prays that the Court Grants conservatory orders restraining seizure and forensic extraction of his mobile phone pending determination of the petition, and awards costs of the application to the Applicant.
37. The Respondents are yet to file submissions.
Analysis and Determination
38. The one issue arising herein for determination is “ whether conservatory orders should be issued pending hearing and determination of the Petition herein”.
39. The term “conservatory orders” was defined in the case of Nairobi Civil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minorsuing thro' nextfriend and mother(HW)[2016]eKLR , by Mulwa J as follows:
“ A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter”
40. Regarding the nature and application of conservatory orders, the Supreme Court, in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR , guided as follows:
“(86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay. Bottom of FormBottom of Form
41. In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR , Odunga G.V. (as he then was), expressed himself in the following terms:
“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”
42. The principles to be considered when determining whether to grant conservatory orders have been therefore developed by the Courts over time.
43. On the need to observe boundaries when handling Applications for conservatory orders, in the case of Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR , Ibrahim J, (as he then was) held as follows:
“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and fl
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1. Before the Court for determination is the Notice of Motion Application dated 17 th July, 2026 brought under Articles 19, 20, 21, 22, 23, 24, 25(c), 27, 28, 29, 31, 47, 50 and 165(3) of the Constitution of Kenya and Sections 134 and 137 of the Evidence Act, and Section 118 of the Criminal Procedure Code.
2. The Application is supported by the Affidavit of, FABIAN MURIMI MBAE , the Petitioner sworn on the even date.
3. The Petitioner’s Notice of Motion application seeks interim conservatory orders pending the hearing and determination of the Application and Petition, as follows:
a) Pending the hearing and determination of this Application and Petition herein, a conservatory order do issue restraining the 1 st ,2 nd and 3 rd Respondents, whether by themselves, their servants, agents or any person acting under their instructions ,from seizing, accessing ,retaining or subjecting the Petitioner/Applicants mobile phone to forensic extraction or analysis or for any other purposes in connection with the ongoing DCI investigations.
b) Upon hearing and determination of the Application the conservatory orders so issued be extended pending hearing and determination of the Petition herein.
c) Costs of the application be provided for.
4. Through the Petitioners supporting affidavit, he asserts that he is an Advocate of the High Court of Kenya who in the year 2023, was instructed by a client, one Godfrey Muchira, to act in the transfer of shares in a private limited company, namely GODMER ENTERPRISES LIMITED, from his wife to their Son (Liam Njoroge Muchira); daughter (June Wambui Muchira) and the balance thereof to himself (Mr. Godfrey Muchira).
5. He states that in the ordinary course of the said transaction, he was furnished with the company resolutions authorizing the transaction, duly executed share transfer instruments, copies of the identification documents of the parties and other supporting documents required to facilitate the assessment and payment of stamp duty and the subsequent lodgment and registration of the transfers with the Registrar of Companies. These included minutes of the meeting of the directors of GODMER ENTERPRISES LIMITED held on 4th November 2023, appointing him as the authorized person to lodge the relevant company documents; the duly executed share transfer instruments relating to the transfer of the shares held by Mercy Wanjiku to Liam Njoroge Muchira, June Wambui Muchira and Godfrey Muchira, copies of the identification documents of the parties to the transaction, the Kenya Revenue Authority payment slip and KCB Bank receipt evidencing payment of stamp duty on 16th November 2023; and the receipt issued by the Office of the Attorney General and Department of Justice on 16th November 2023 in respect of the filing of the company changes as well as an affidavit sworn by Mercy Wanjiku on 10th November 2023 before a Commissioner for Oaths and the Petitioner had no reason whatsoever to believe or suspect that her signature thereon had been forged.
6. The Petitioner deposes that relying in good faith upon the foregoing documents, which appeared regular and authentic on their face and which he had no reason to doubt, he proceeded to have the share transfer instruments assessed, stamped and lodged for registration in the ordinary and proper discharge of his professional duties, however, 2 years later in 2025, on 3rd April 2025, he received Summons issued by the Regional DCI Co-ordinator, Mr. Benson M. Kasyoki, who required him to appear on 14th April 2025 which he rescheduled and later on recorded his statement in full on 17th April 2025.
7. He deposes that on 3rd September 2025, he was requested to provide certain document which he did and later on Vide Summons dated 14th April 2026, the Petitioner was yet again required to appear before the DCI, summons that he honoured and it was on this occasion that he was first informed that the Office of the Director of Public Prosecutions had allegedly directed that forensic extraction be conducted of communications between myself and the said client, Mr. Muchira, to which he sought leave to consult before responding to this demand, and was thereafter summoned on 29th June, 1st July and 2nd July 2026, each of which he honoured, although on each occasion the exercise proved futile as no Investigating Officer was available to attend to him.
8. He states that despite his consistent cooperation, Chief Inspector Leah Ambiche, the 1St Respondent’s Officer) has persistently insisted that he hands over his mobile phone. On 14 th April 2026 he responded that he was bound by confidentiality and couldn’t therefore hand over the phone, to which the 1 st Respondent responded that this was a directive and not a suggestion. This informed the Petitioners decision to issue a demand to the 1 st Respondent, which has never been responded to
9. The Petitioner states that his mobile phone contain privileged communications with numerous other clients of his firm who are entirely unconnected to Muchira or to the investigation herein, as well as private and personal communications, including with the spouse, disclosure of which would occasion grave and irreparable harm to him and to third parties who have neither waived nor been asked to waive any privilege , he reaffirms his commitment to cooperate with lawful investigations and states that unless this Honourable Court intervenes, he ,and numerous of his clients who are strangers to these proceedings, stand to suffer irreparable harm to privacy and privileged communications, which harm cannot adequately be compensated in damages.
10. The application is opposed vide a replying affidavit of the 1 st and 2 nd Respondents sworn on 31 st July, 2026.
1 st and 2 nd Respondents Replying Affidavit
11. The affidavit was sworn by NO . 236863 CI LEAH AMBICHE of the Directorate of Criminal Investigations (DCI).
12. The Respondent avers that she is the investigating officer in a case of Forgery contrary to section 349 of the penal code, Conspiracy to commit a felony contrary to section 393 of the Penal code among other offences vide Inquiry file No. 186/2025, that the complainant in the inquiry file is one Mercy Wanjiku who reported this matter at DCI Headquarters through a letter dated 19 th November, 2024 in which she complained of unauthorized removal of directorship through falsification of documents and company shareholding and illegal transfer of her shares without consent at Godmer Enterprises Limited, as well as the appearance of the Petitioner on Godmer’s CR12 as a Company Secretary whereas her Co- director and herself never had any resolutions appointing the Petitioner as company Secretary.
13. She deposes that during investigations several persons of interest were summoned and equally recorded their plain statements, the Petitioner being one of them. And at no one time did either the Petitioner or Mr. Muchira indicate they have an existing Advocate-client relationship. Mr. Muchira referred to one Mr. Muli Nzavi as his advocate and upon completion of investigations the resultant duplicate file was forwarded to the ODPP vide DCI letter Ref: DCI/C/CRI/6/4/VOL.61/159 dated 12 th November, 2025 for perusal and legal advice/directions, to which the office of the Director of Public Prosecutions returned the duplicate file with areas to cover before a decision to charge is made vide their letter Ref ODPP/HQ/CAM/2/6446 dated 15 th December 2025.
14. She avers that ODPP’s letter directed the 1 st and 2 nd Respondents to cover 5 points with points Nos 2,3 & 4 being applicable to the Petitioner being ;the Petitioner was to avail copy of his application as company secretary at Godmer enterprises as well as resolutions/minutes for inclusion in the file, as previous stated in his plain statement, the Petitioner in his plain statement asserted that there existed WhatsApp communication between him and Mr. Muchira. The ODPP directed that both the mobile phones of the Petitioner and Mr. Muchira’s be subjected to forensic examination to verify the existence and nature of communication between them, particularly any instructions allegedly given by Mr. Muchira concerning alteration of directorship and allocation of shares in Godmer and the authentication of the Petitioner’s admission number as an advocate and his current registration and practicing status with LSK.
15. She avers that following these directives, on 14 th April 2026 the Petitioner alongside 2 others were summoned to DCI Regional Offices in line with the ODPP Directives. That the Petitioner appeared before DCI Regional Headquarters on 1 st July 2026 where he met the deponents Co- investigating officer who took him through the ODPP letter and what was required of him and that on 14 th July 2026 at 0820 hours the petitioner, via WhatsApp, expressed his unwillingness to submit his phone for forensic. She states that the other two persons summoned appeared and complied with the ODPP directives. Mr. Muchira submitted his mobile phone and the she inventoried the same, In line with Data Protection act as well as Article 31 of the constitution, and they have filed Miscellaneous Application E3441/26 and in the process of obtaining a court order before forwarding the mobile phone (s) to communications Authority for examination and extraction of the specific communication between the Petitioner and Mr. Muchira concerning any instruction for alteration of company details at Godmer Enterprises.
16. She finalizes by stating that the summons and follow up communication via WhatsApp were all in good faith and in line with executing their investigative mandate and at no given time were they meant as a threat to the Petitioner .
17. The 1 st and 2 nd Respondents ,through the Attorney General filed grounds of opposition dated 31 st July 2026 where they oppose the application and petition on the below grounds:
i) THAT the Respondents are public officers and agencies clothed with express constitutional and statutory mandate under Articles 157 and 245 of the Constitution, the National Police Service Act (Cap. 84), and the Criminal Procedure Code (Cap. 75) to investigate and cause the prosecution of criminal offences, including the offence(s) of forgery and/or uttering a false document disclosed on the face of the Petitioner's own pleadings, and the orders sought would improperly fetter and stall that constitutional mandate at a preliminary investigative stage.
ii) THAT 1st Respondent can summon and interrogate an individual based on the report made to it and record statements that will ensure success of investigation as per Section 49 and 52 of the National Police Service Act and the privilege conferred by Section 134 of the Evidence Act, Cap. 80, is not absolute as the privilege does not extend to any communication made in furtherance of an illegal purpose, nor to any fact observed by an advocate in the course of his employment showing that a crime or fraud has been committed since the commencement of that employment. On the Petitioner's own pleaded facts, the communications sought relate directly to the very transaction now under investigation for alleged forgery of a signature and a sworn affidavit; to the extent that any such communications were made in furtherance of or to conceal the alleged forgery, no privilege attaches to them in the first instance, and this is a matter properly determined by this Honourable Court on the merits and not pre-empted by a blanket conservatory order.
iii) THAT the Respondents are entitled to have the existence and content of relevant communications ascertained through a properly supervised process, including, if this Honourable Court considers it appropriate, independent forensic examination under a defined protocol, with disclosure limited to communications concerning the specific 2023 transaction under investigation, and with a privilege log and opportunity for the Applicant to specifically claim privilege over identified items. This is a course which the Applicant himself contemplates as an alternative in prayer (d) of the Petition, and which accordingly cannot simultaneously be said to occasion irreparable harm.
iv) THAT the Applicant is not, in this instance, a disinterested repository of privileged material belonging solely to third parties. On his own pleaded case, he personally handled the share transfer instrument and the affidavit alleged to bear a forged signature, and he is accordingly a material witness, and a person of interest, in respect of his own knowledge, instructions received and conduct in that transaction. Communications between the Applicant and his client concerning that specific transaction go to the heart of the investigation and cannot be shielded from legitimate investigative scrutiny merely by virtue of the Applicant's status as an advocate.
v) THAT no warrant or court order has been sought and refused, nor has any court ruled adversely on any application by the Respondents. The Applicant does not plead that the Respondents have exhausted or circumvented the procedure under Section 118 of the Criminal Procedure Code. A request or directive for voluntary cooperation and production, without more, does not itself amount to an unlawful search or seizure, and the Respondents remain entitled, in the ordinary course of investigation, to apply to a competent court for appropriate orders should voluntary cooperation not be forthcoming.
vi) THAT the Petitioner has not demonstrated a prima facie case with a likelihood of success sufficient to warrant the grant of conservatory orders, nor that the balance of convenience favours an order that would suspend a lawful criminal investigation into serious allegations of forgery of a sworn affidavit and company instruments, which allegations raise a significant public interest in their expeditious investigation. They cite Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] Eklr and Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party) [2020] eKLR.
vii) THAT the averments of the Petition, on their own showing, disclose that the Office of the Director of Public Prosecutions gave directives contemplating consultation between the Applicant and the Respondents as to the manner of examining communications, which is inconsistent with the Applicant's characterisation of the process as arbitrary, high-handed, or devoid of procedural fairness and the alleged urgency and risk of "forceful seizure" pleaded in the Petition is speculative and unsupported by any actual attempt at forceful seizure; the investigation has proceeded since April 2025 without incident, and the Applicant has at each stage been able to consult his advocates and respond, negating any real and imminent risk warranting emergency conservatory relief. They state that the grant of the orders sought, in the terms framed, would set an undesirable precedent enabling any advocate who is personally implicated in, or a material witness to, suspected criminal conduct to invoke advocate-client privilege as a blanket shield against legitimate investigation, contrary to the public interest in the investigation and prosecution of crime and the constitutional principle that no person is above the law. They therefore ask for the Application and Petition to be dismissed.
The 3 rd Respondents Grounds of objection
18. The 3 rd respondents filed grounds of opposition dated 30 th July,2026 where they opposed the Application and Petition on the following grounds :
i) THAT the Petition and Notice of Motion Application filed herein do not meet the threshold set out in the celebrated case of Anarita Karimi -Versus-Republic (No.1) (1979 1 KLR 154 and Mumo Matemu -Versus-Trusted Society of Human Rights Alliance, Civil Appeal No.290 of 2012(2013), it has not set out with reasonable degree of precision that of which the Petitioner complains of against the 3 rd Respondent, provisions said to have been infringed or violated by the 3 rd Respondent and the manner infringed.
ii) THAT the Petitioner have misapprehended the statutory and constitutional mandate and duty of the 3 rd Respondent as provided under article 157 of the Constitution of Kenya,2010 and the Office of the Director of Public Prosecutions (ODPP) Act, 2013 the core mandate being prosecution of criminal offences or cases in court while detection of crime, arrests of offenders and investigation of crime is the mandate of the police as provided under the National Police Service Act Cap 84 Laws of Kenya.
iii) THAT the Petition and Notice of Motion Application offend the doctrine of separation of powers as it invites this Honourable Court to interfere with the constitutionally independent prosecutorial discretion of the 3 rd Respondent contrary to Article 157(10) of the Constitution of Kenya, which provides that the Director of Public Prosecutions shall not require the consent of any person or authority and shall not be under the direction or control of any person or authority.
iv) THAT the Petition and Notice of Motion Application fail to demonstrate exceptional circumstances warranting judicial intervention in investigative or prosecutorial processes, and therefore prematurely invokes this Honourable Court’s constitutional jurisdiction and the Petitioner has not established any evidence of malice, bad faith, illegality, irrationality, or procedural impropriety on the part of the 3 rd Respondent capable of justifying the orders sought as against the 3 rd Respondent. Therefore, the issues raised in the Petition and Notice of Motion Application are speculative and abstract and do not disclose a real or imminent controversy capable of adjudication by this Honourable Court as against the 3 rd Respondent.
v) THAT the Petitioner has failed to demonstrate how the alleged actions of the 1 st – 2 nd Respondents or investigative agencies, if any, are attributable to the 3 rd Respondent, whose mandate only crystallizes upon receipt and independent review of investigation files and finally prosecution. That the Petition filed herein amounts to an abuse of the court process as it seek anticipatory constitutional protection against lawful criminal processes, yet constitutional litigation cannot be used as a shield against potential criminal liability.
19. They state that granting the orders sought would amount to unjustified judicial interference with criminal justice administration and would set a dangerous precedent undermining lawful investigation criminal justice processes and the same ought to be dismissed with costs.
20. Directions on written submissions were issued.
The Applicants submissions
21. The Applicant filed submissions dated 7 th August,2026 where they raised 5 issues for determination:
a) Whether the Petitioner/Applicant has established a prima facie case with a likelihood of success.
b) Whether the Petitioner/Applicant stands to suffer irreparable harm.
c) Whether the balance of convenience and the public interest favour the grant of the conservatory orders sought.
d) Whether the 3rd (ODPP) and 4th (AG) Respondents are properly enjoined in these proceedings.
e) Whether the Petition and the Notice of Motion are premature.
22. On whether the Application raises a Prima Facie Case ,the Applicant submits that the intended forensic examination raises serious constitutional and statutory questions deserving full trial which include; Violation of Article 31, access to his phone constitutes an intrusion into his constitutional right to privacy. Violation of Advocate–client privilege as Section 134 of the Evidence Act protects confidential communications between an advocate and clients and the risk to third-party clients as his phone contains confidential information relating not only to Godfrey Muchira but also numerous unrelated clients whose privacy would equally be compromised. He urges these are genuine and arguable constitutional questions requiring judicial determination rather than administrative action.
23. He argues that even the 4 th Respondent agrees with him that that the Advocate-Client privilege under Section 134 of the Evidence Act is not absolute, is the very reason why this case raises triable issues. The Court will have to determine whether this privilege is absolute or has limitations; and whether the circumstances/ facts of this case, meet the exceptions under the said provisions.
24. The Applicant relies on Law Society of Kenya v Director of Public Prosecutions & 4 Others, Petition No. 9 of 2019 [2025] KEHC 11980 (KLR), where the Court held that interference with legal privilege must be determined on a case-by-case evaluation of specific facts.He further cites Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 , adopting Bosire JA's definition of a prima facie case as one where an apparent infringement calls for rebuttal.
25. He therefore submits that the Application met the above threshold. He has a constitutional right to privacy under Article 31, and Section 134 of the Evidence Act.
26. On whether the Petitioner/Applicant stands to suffer irreparable harm, he submits that the harm threatened here is irreparable in the most literal sense because once investigators extract and review privileged communications, advocate-confidentiality is permanently destroyed, the information cannot be “unseen”, no subsequent court order can restore privilege, and monetary damages cannot adequately compensate either him or innocent third-party clients. He submits that the Respondents themselves admit they require the phone, demonstrating that the threat is real rather than hypothetical.
27. He submits that CI Ambiche admits receiving ODPP instructions to extract communications, the ODPP letter dated 15 December 2025 directs forensic extraction of both phones, the WhatsApp communication unequivocally orders surrender of the Applicant's phone and the DCI confirms that Miscellaneous Application No. E3441 of 2026 has already been filed to obtain court authority for extraction through the Communications Authority, accordingly, the petitioner sees the threatened violation as actual, substantial and demonstrable. The Applicant relies on Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
28. On whether the balance of convenience favours the grant of the orders, the Petitioner cited Suleiman v Amboseli Resort Limited [2004] eKLR, Ojwang J ( as he then was) held:
" Traditionally, on the basis of the well accepted principles set out by the Court of Appeal in Giella v. Cassman Brown, the court has had to consider the following questions before granting injunctive relief:
(i) is there a prima facie case with a probability of success?
(ii) does the applicant stand to suffer irreparable harm, if relief is denied?
(iii) on which side does the balance of convenience lie? Even as those must remain the basic tests, it is worth adopting a further, albeit rather special and more intrinsic test which is now in the nature of general principle. The Court, in responding to prayers for interlocutory injunctive relief, should always opt for the lower rather than the higher risk of injustice."
29. Applying this test, Applicant argues that the balance overwhelmingly favours preservation of the status quo because if conservatory orders are granted, investigations merely pause regarding phone extraction, the Applicant continues cooperating and the Respondents lose nothing substantial. On the other hand, if orders are refused, privileged communications are immediately exposed, privacy is permanently violated and unrelated clients suffer irreversible prejudice. For these reasons, the Applicant submits that Court should balance the scale of convenience in favour of the Applicant by granting the Conservatory orders ought.
30. On the fourth issue, the Applicant submits that regarding the 3 rd Respondent, is accordingly not a stranger to these proceedings. It is the author of the very directive under challenge for seizing of the Petitioners phone and that this is entirely consistent with the ODPP’s constitutional mandate. Article 157(4) & (11) of the Constitution expressly empowers the Director of Public Prosecutions to "direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct," as read together with Section 5(a) ODPP Act. Further, CI Ambiche expressly informed the Applicant that the directive originated from the ODPP, s by virtue of it authoring the said directive, it is properly joined (not enjoined ) to the proceedings.
31. As regards the Attorney General , he submits that he is joined in his constitutional capacity as, the Principal Legal Adviser to Government under Article 156 and a representative of national government under Section 12 of the Government Proceedings Act. The Applicant clarifies that the AG is not accused of personal wrongdoing, but is a necessary party representing government organs.
32. On the issue raised by the ODPP in the Grounds of Opposition on whether or not the Petition meets the threshold for specificity in pleadings as set in the Anarita Karimi Njeru v Republic (No.1) [1979] 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 [2013] eKLR , the Petitioner leaves them for the Main Petition herein, he however mentions that the petition sufficiently identifies, the constitutional provisions violated, the statutory provisions infringed, and the precise conduct complained which are administrative directive compelling disclosure of privileged material.
33. On whether the Notice of Motion is Premature, the Petitioner submits that conservatory order exists precisely to arrest a threatened violation before it crystallizes into an accomplished and irreversible one; to require an applicant to wait until after the event would defeat the very purpose the remedy is designed to serve.
34. The Applicant cites Mwaniki v Ndiga & 3 Others, Constitutional Petition E020 of 2024 [2025] KEHC 9562 (KLR) , where the High Court held that an applicant need only demonstrate, a prima facie case; and a real danger of prejudice arising from an actual or threatened constitutional violation.
35. The Applicant reiterates that the threat is real because, the ODPP directed extraction, the written directive identifies both phones, CI Ambiche demanded surrender of the phone as an order, the DCI has already initiated Misc. Application No. E3441 of 2026 to obtain extraction orders. He therefore argues that the threatened violation is live and actively being pursued, not merely anticipated. He also rejects the Respondents' exhaustion argument, stating that no alternative remedy exists other than invoking the High Court's jurisdiction under Articles 22 and 23.
36. The Applicant therefore prays that the Court Grants conservatory orders restraining seizure and forensic extraction of his mobile phone pending determination of the petition, and awards costs of the application to the Applicant.
37. The Respondents are yet to file submissions.
Analysis and Determination
38. The one issue arising herein for determination is “ whether conservatory orders should be issued pending hearing and determination of the Petition herein”.
39. The term “conservatory orders” was defined in the case of Nairobi Civil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minorsuing thro' nextfriend and mother(HW)[2016]eKLR , by Mulwa J as follows:
“ A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter”
40. Regarding the nature and application of conservatory orders, the Supreme Court, in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR , guided as follows:
“(86) “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay. Bottom of FormBottom of Form
41. In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR , Odunga G.V. (as he then was), expressed himself in the following terms:
“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”
42. The principles to be considered when determining whether to grant conservatory orders have been therefore developed by the Courts over time.
43. On the need to observe boundaries when handling Applications for conservatory orders, in the case of Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR , Ibrahim J, (as he then was) held as follows:
“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and fl
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