Introduction
1. The Petition dated 23rd June 2025, is supported by the Petitioner’s affidavit in support of even date and a further affidavit dated 18th July 2025.
2. The Petition challenges the 1st, 2nd and 3rd Respondents actions claiming that both the investigation and decision to charge him is devoid of impartiality, objectivity, lacking in procedural fairness and meant to create a coercive and prejudicial environment that hinders the right to full protection of the law as he is being made to face charges in respect of an agreement for sale that he never gave instructions on, drafted or executed save for the fact that it was drawn at his office based in Ruiru by one of his employees.
3. The bedrock of the criminal case is the land sale agreement for the parcel L.R. RUIRU/JUJA EASTBLOCK 2/36 which was executed between the Interested Parties, on 17th November 2018 at the Petitioner’s law firm office based at Ruiru. The Petitioner contends that the ensuing investigation and prosecution is malicious and without any legal basis as it is founded on unsubstantiated complaint that seeks to make him criminally liable for another person’s actions.
4. He therefore contends that the Respondents actions have violated his constitutional rights under Articles 27, 28, 47, 48 and 50 (1) of the Constitution and thus seeks the following reliefs:
a) A declaration be issued to declare that the continued prosecution of the Petitioner for fraudulent dealings over land parcel L.R. RUIRU/JUJA EASTBLOCK 2/36 constitutes a violation of the Petitioner's rights under Articles 47, 48, and 50(1) of the Constitution, and is unlawful, unconstitutional, and an affront to the rule of law and due process.
b) An order of certiorari be issued to remove into this Court for purposes of quashing in its entirety the proceedings in Milimani Chief Magistrate's Court Criminal Case No. E328 of 2025 Republic vs. George Koimburi Ndungu and 2 Others, for being unconstitutional, malicious, and instituted in abuse of the criminal justice process.
c) An order of mandamus, in the alternative to prayer (b) above, for purposes of striking out the Petitioner as an accused person from the proceedings in Criminal Case No. E328 of 2025 Republic vs. George Koimburi Ndungu and 2 Others.
d) An order of prohibition restraining the Respondents, whether by themselves, their officers, agents, or assigns, from instituting, maintaining, or continuing any criminal proceedings against the Petitioner in respect of fraudulent dealings over land parcel L.R RUIRU/JUJA EASTBLOCK 2/36 or any transaction relating thereto.
e) A declaration that the conduct of the 1st, 2nd and 3rd Respondents in prosecuting the Petitioner in the manner described herein was arbitrary, irrational and made in disregard of due process, thereby infringing upon the Petitioner's dignity, presumption of innocence, and right to be treated fairly by organs of State.
f) An order of costs be awarded to the Petitioner as against the Respondents, jointly and severally, for the violation of constitutional rights and the oppressive conduct occasioned against them.
g) Such other or further orders or reliefs as this Court shall deem just, expedient, and appropriate in the unique and overriding interests of justice, constitutionalism, and the rule of law.
Petitioner’s Case
5. The Petitioner avers that he was charged in Criminal Case No. E328 of 2025 on allegations of conspiracy to defraud in relation to L.R. RUIRU/JUJA EASTBLOCK 2/36.
6. The Petitioner depones that the alleged transaction flowed from the disputed Agreement of Sale which was executed by the Interested Parties at the Petitioner’s Ruiru office on 17th November 2018. He notes that there are further acknowledgements from the parties dated 6th June 2018 and 3rd April 2020.
7. He asserts that he did not take or issue instructions, draft, attest or execute the said Agreement of Sale. In addition, he states that he was never present at any of these transactions.
8. He however states that the impugned Agreement had been executed by one of his employees without his authority and permission. In fact, he depones that he does not have the file and record of the legal fees payments receipts of the transaction in question.
9. The Petitioner avers that sometime in June 2020, he was contacted by the 3rd Respondent’s officers in relation to the impugned Agreement of Sale. He informed them that he had no knowledge of it and wrote a statement to that effect and had his specimen signatures taken.
10. He asserts that the result of the forensic examination was not availed to the 1st Respondent by the 3rd Respondent prior to making the decision to charge.
11. Soon after, the Petitioner was summoned by the 3rd Respondent officers and instructed to record another statement as the 1st Interested Party had complained that the matter had been compromised by the 2nd Interested Party.
12. Likewise, the 1st Interested Party had threatened to involve the media in the matter if no action was taken against him.
13. The Petitioner states that the summon to him was flawed because pursuant to the letter dated 26th June 2023, the 1st Respondent had instructed the 3rd Respondent to record the statement of the advocate who had actually drafted the impugned Agreement of Sale.
14. The Petitioner alleges that the officers informed him that the 1st Interested Party was keen on having him personally held liable as it was easier than holding the 2nd Interested Party liable who has a strong political force. Additionally, that the Petitioner would be in a position to pay what had been agreed as he has professional indemnity.
15. The Petitioner postulates that the logic behind the 1st Interested Party’s push was that, he would be pressured to protect his reputation being a respected public figure thus in turn would compel the 2nd Interested Party to solve the issues relating to the impugned transaction.
16. In September 2024, the 3rd Respondent’s officers visited his office and instructed him to go to their offices. At their offices, the 2nd Interested Party who was also present indicated that he had settled the issue with the complainant. Moreover, the Petitioner was informed that he would be a prosecution witness in the matter.
17. The Petitioner states that in a strange turn of events, he was informed on 12th June 2025 that he was required to appear before the Chief Magistrates Court on 24th June 2025 in Criminal Case No. E328 of 2025. It is at that point that he learnt he was the 3rd accused person in the matter and not a prosecution witness as informed.
18. The Petitioner protests that he has unreasonably been implicated in the matter despite his non-involvement in the alleged offences.
19. He notes that the summons issued by the 3rd Respondent dated 23rd June 2025 did not indicate that there was an allegation by the 2nd and 3rd Interested Party of their knowledge of him or his involvement. Equally during the investigations, the officers did not inform him that he was involved in the making of the impugned Agreement.
20. He stresses that the only relationship that exists between him and the matter is the alleged fraudulent Agreement of Sale that was drafted through his Ruiru office without his instructions. Considering this, he argues that even if there was any liability to be visited upon his firm relating to the impugned Agreement of Sale, he cannot be held criminally liable for the actions of another person even where there is an employer-employee relationship.
21. He stated that he appealed this matter to the 1st Respondent in his letter dated 25th June 2025 wherein he attached amongst other documents a letter dated 24th September 2024 to the 3rd Respondent disclosing the name of the staff who had prepared the impugned Agreement as Harrison Ndungu. That the said employee had absconded duty since 2020 and they were trying to trace him. Accordingly, he asserts that his joinder in the criminal suit lacks any lawful basis.
22. He further points out that no evidence was adduced to implicate him in any way with reference to the alleged offences. He contends that the Statement that was relied upon by the Respondents in their affidavit as his statement was doctored.
23. Equally, the allegation that he drew the Agreement of Sale is not supported by any evidence nor was the 1st Respondent supplied with his specimen signatures which would have put the matter to rest.
24. He believes therefore that the decision to charge him was made in bad faith, with no proper investigation and thus amounts to harassment, intimidation and an attempt to circumvent the judicial process.
25. In addition, he depones that the Respondents have through this criminal case assumed the role of debt collectors for the Interested Parties as the Trial Court proceedings indicate that the parties continue to engage and pay monies leaving him the casualty in their dispute. The Respondents actions are argued to have also violated his constitutional rights thus the need for this Court’s intervention.
1st, 2nd and 3rd Respondents’ Case
26. These Respondents through Police Constable Victor Wangila Mutali filed their Replying affidavit sworn on 16th July 2025.
27. He swore that on 19th June 2020, the Deputy in Charge of the Land Fraud Unit, directed him and Sgt. Kanyithia to conduct investigations into the alleged fraudulent transfer of the land, the subject matter of the criminal case.
28. This complaint had been made by the 1st Interested Party’s mother, Lucia Wanjiku Githinji, who was the administrator of her late husband’s estate. She claimed that the suit property had been transferred to the 2nd and 3rd Interested Party instead of the 1st Interested Party. The complainant’s statement was recorded and they as well obtained copies of the documents she had brought as proof of ownership of the subject property.
29. Following this, they wrote a letter to the District Land Registrar Ruiru dated 22nd June 2020, requesting for copies of the suit property’s green card, history of ownership, documents launching the transfer and daily presentation book. They received these copies on 24th June 2020. From this, they established that the suit property had been transferred from the late Gibson Githinji Gitonga to the 1st Interested Party then subsequently to the 2nd and 3rd Interested Party.
30. He avers that the 2nd and 3rd Interested Parties claimed that they had bought the suit property from the owner who was the 1st Interested Party.
31. They said this sale was made in line with the impugned Agreement of Sale, which was made and attested by the Petitioner. The two parties further informed that at all times during the transaction they had dealt with the Petitioner.
32. He avers that the two parties supplied the impugned Agreement and acknowledgements of payment of Ksh.500,000/= and Ksh.2,000,000/= dated 17th November 2018 attested by the Petitioner. In sum, the two alleged that they had purchased the suit property for Ksh.5,500,000/= although they failed to prove this.
33. On the other hand, he depones that the 1st Interested Party claimed that he never sold the suit property to the 2nd and 3rd Interested Parties.
34. He disclosed that he forwarded the sale agreement and the two acknowledgement letters to the document examiner for forensic examination of the signatures. He states that according to the examiner’s report dated 6th July 2020, none of the two documents was found to have been signed by the 1st Interested Party or his mother.
35. Thereafter, they contacted the Petitioner to ascertain his involvement in drafting the said Agreement and acknowledgements. He avers that the Petitioner informed them that these had been done by one of his advocates in his law firm at Ruiru but the Petitioner did not however disclose the particulars of the said advocate.
36. He asserts that at the end of the investigation, he was convinced that there was reasonable cause to believe that there was a conspiracy between the Petitioner and the 2nd and 3rd Interested Parties concerning the alleged fraudulent sale of the suit property. On this premise, he forwarded the investigation file to the 1st Respondent who then made the decision to charge them.
37. He avers that due process was followed in carrying out the investigations, making the decision to charge and instigation of the criminal case.
38. In light of this, he states that the Petitioner’s fundamental rights and freedoms were not violated as alleged.
2nd, 3rd, 4th and 5th Respondents’ Case
39. The 2nd, 3rd, 4th and 5th Respondents filed their grounds of opposition dated 21st July 2025 stating that:
i. The office of the Inspector General of Police that heads the National Police Service (NPS) is an independent office established under Article 245 of the Constitution and that the functions of the National Police Service which includes investigations, and the arrest of suspects are clearly outlined under Section 24 of the National Police Service Act, CAP 84, Laws of Kenya.
ii. The 3rd Respondent is a state agency established under Section 28 of the National Police Service Act and is under the direction, command and control of the 2nd Respondent. The 3rd Respondent has the mandate to undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others.
iii. The investigative actions leading to the arrest and charging of the Petitioner were conducted in accordance with the constitutional and statutory mandate of the 2nd and 3rd Respondents, based on a complaint and subsequent investigations relating to an alleged fraudulent land transaction.
iv. No material has been placed before this Court to demonstrate that the 2nd and 3rd Respondents acted ultra vires their constitutional mandate or that the investigation process was tainted by illegality, malice, bias, or procedural impropriety.
v. The grant of the orders sought would unnecessarily prevent the respondents from discharging their constitutional and statutory mandate which would go against public interest and constitutional values.
vi. The power to arrest and investigate is not subject to judicial approval unless it can be shown that such power has been exercised unlawfully or oppressively. The Petitioner has not demonstrated any actual or threatened violation of his rights under Articles 27, 29, 47, 48 or 50 of the Constitution.
vii. The 4th Respondent, the Hon. Attorney General, is not a proper party to these proceedings as the impugned actions relate to matters falling exclusively within the constitutional mandate of the investigative and prosecutorial agencies independently established under Articles 245 and 157 of the Constitution.
viii. The mere allegation that the Petitioner’s fundamental right has been contravened is not in itself sufficient to entitle the petitioner the conservatory remedies sought. The Petitioner must demonstrate real danger so imminent and evident, true and actual and not fictitious; so as to deserve immediate redress by this Court.
ix. The Petitioner has not demonstrated any prejudice or irreparable harm, damage or injury likely to be suffered if the conservatory orders sought are not granted. There is also no evidentiary proof that the grant of conservatory orders sought would enhance constitutional values and objects specific to the rights and freedom in the Bill of rights.
x. The Petitioner’s contention that he had no knowledge or involvement in the impugned transaction is an evidentiary issue that can only be properly ventilated during trial and such the criminal process should not be halted prematurely on the basis of disputed facts, especially where due process is being followed.
xi. The fact that the Petitioner is a Senior Advocate of the High Court does not exempt him from being subject to investigation or prosecution if reasonable cause exists to believe that he may have committed an offence.
xii. The orders sought in the application are final in nature and this will require the Court to go into a conclusive or definite finding which is tantamount to pre-emptying the petition. Moreover, this will go against the principles, purpose and intention of an application for conservatory orders.
xiii. The Petitioner has been unable to sufficiently prove the nature and manner in which the Respondents have allegedly violated its rights or any of the provisions of the Constitution or any other written laws in connection with his arrest and subsequent charging in the criminal case. The Petitioner has both legal and evidential burden, but which they have not discharged. Reliance is placed on the case of Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR, Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR and Kuria & 3 Others v Attorney General [2002] KLR 69.
xiv. The application is an attempt to shield the Petitioner from lawful prosecution and frustrate the administration of justice contrary to the public interest.
xv. The Petitioner has not demonstrated that the Respondents acted dishonestly, in bad faith, or with an ulterior motive in a manner that would justify interference with the exercise of constitutional and statutory powers of the 2nd and 3rd Respondents.
xvi. The investigations by the 3rd Respondents were instituted with the intention to serve justice for the complainant and is without extraneous or ulterior purposes.
xvii. The Petition is an abuse of court process and is improperly inviting the court to usurp the constitutional mandate of investigative and prosecutorial authorities contrary to the doctrine of separation of powers.
xviii. This Court lacks supervisory jurisdiction to intervene, supervise and direct other Constitutional bodies, the Respondents included, in discharging their constitutional mandates. Additionally, it is not the duty of the court except in very clear circumstances to impair the performance of constitutional functions.
xix. The Petitioner has failed to prove that his arrest and subsequent charging are in breach of any law to warrant an order of prohibition against their arrest to be issued by this Court.
xx. The grounds set out in support of the application do not raise any constitutional issues either for enforcement of fundamental rights or interpretation of the Constitution.
xxi. The allegations by the Petitioner are without merit, legal reason or backing and the prayers sought are not tenable before this Court as the Petitioner has failed to demonstrate any violation of rights by the 2nd,3rd and 4th Respondents.
xxii. The application is hapless, presumptive and an abuse of the court process and should be dismissed.
Interested Parties’ Case
40. The Interested parties’ response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
41. Kinoti and Kibe Company advocates for the Petitioner filed submissions dated 29th July 2025 and rebuttal submissions dated 4th August 2025. Counsel identified the issues for argument as: whether the 1st Respondent has filed a valid replying affidavit; whether the 3rd Respondent has proper grounds and evidential basis to recommend the Petitioner’s prosecution, whether the 2nd and 3rd Respondent’s violated the Petitioner’s rights under Article 47 and 50 of the Constitution, whether the 1st Respondent exercised the prosecutorial powers contrary to Article 157(11) of the Constitution, whether institution of Criminal case No.E328 of 2025 violated the Petitioner’s rights under Article 47,48 and 50 of the Constitution and whether the prosecution and public portrayal of the Petitioner as a criminal amounts to violation of his right under Article 28 of the Constitution.
42. On the first issue, Counsel submitted that while Police Constable Victor Wangila Mutali can competently swear an affidavit for the 2nd and 3rd Respondents, the same is not true for the 1st Respondent. Counsel stressed that these Respondents mandate is distinct and so he did not have capacity to swear an affidavit for the 1st Respondent. As such, Counsel submitted that the filed Replying Affidavit was incompetent in relation to the 1st Respondent.
43. To buttress this claim, Counsel relied in Article 157(4) and (9) of the Constitution as read with Sections 20 and 22 of the Office of Director of Public Prosecutions. Equally the case of Omar Kahindi Gona & 4 others v Director of Public Prosecution & another [2021] eKLR where it was held that:
“The criminal justice system in Kenya entrusts the function of investigations to the police or other investigative agencies and the prosecution directorate is never an active actor in that process of evidence gathering geared towards a recommendation to charge a suspect of crime. Whereas the Director of Public Prosecution’s role is to decide whether a prima facie case exists to initiate or continue a prosecution before the trial Courts. To this effect, the requirement of existence of a crime having been committed by the respondents founded on the provisions of any penal Law remained considerably unknown. In line with Article 157 (6) of the Constitution the Law expects the Director of Public Prosecution to act where the breath of the Law which carries a criminal sanction has been violated.”
44. On the next issue, Counsel recapping the averments in the 1st, 2nd and 3rd Respondents’ Replying affidavit submitted that it was not established whether the Petitioner drafted the impugned Agreement and that the sale of the land was as a result of a conspiracy between the Petitioner and the 2nd and 3rd Interested parties to defraud the 1st Interested Party.
45. Counsel further pointed out that while these Respondents relied on forensic evidence, the Respondents had only issued one forensic report. This is despite the Petitioner willingly submitting his specimen signatures to the officers for forensic analysis. Counsel also noted that while the officers stated that the Petitioner had not supplied the name of the key person, the Petitioner in his further affidavit informed that he had issued the key name and phone number of the staff to his boss, James Githinji yet he was not investigated. Counsel also pointed out that the Respondents affidavit had numerous discrepancies such as no advocate fees receipts were issued to collaborate the averments of payments for the suit property, the doctored Petitioner’s recorded statement and inconsistency of the 3rd Respondent’s summons dated 2nd September 2024.
46. In view of this, Counsel submitted that the 2nd and 3rd Respondents had not demonstrated that they had any probative evidence or reasonable ground to recommend the prosecution of the Petitioner.
47. On the third issue, Counsel answered in the affirmative. Counsel submitted that according to the 1st, 2nd and 3rd Respondent’s Replying Affidavit the decision to charge the Petitioner was based on the statements of the 2nd and 3rd Interested Parties in the absence of the Petitioner and which were not produced. Counsel asserted that the Petitioner was not granted an opportunity to make a response to these allegations and share his side of the story, which is contrary to the constitutional dictates.
48. Reliance was placed in Esther Gathoni Mwangi v Director of Public Prosecutions & 2 others; William Charles Fryda & 3 others [2022] eKLR where it was held that:
“169. Emerging from the above, there is no doubt the investigator’s decision in not formally summon the Petitioner was an administrative action. In sum, it was an administrative action because the investigator was discharging a duty bestowed in law and further the decision affected the legal rights and interests of the Petitioner. As such the decision had to pass the constitutional and statutory tests of lawfulness, reasonableness and procedural fairness.
170. As admitted by the Investigator, the impugned decision did not conform to the requirements of Article 47 of the Constitution and Fair Administrative Actions Act. At a minimum, to meet the constitutional and statutory threshold, the investigator had to: -
(i) Issue formal Summons requiring the attendance of the Petitioner at the DCI Headquarters.
(ii) Inform the Petitioner of the purpose of the attendance.
(iii) Inform the Petitioner of her right to attend with a Counsel if she so wished.
(iv) Inform the Petitioner of the consequences of non-attendance.
171. The Respondents’ impugned decision in not formally summoning the Petitioner and instead proceeding to obtain a warrant of arrest, therefore, infringed Articles 47 and 50(1) of the Constitution as well as the Fair Administrative Actions Act. The impugned decision is hence constitutionally infirm.
172. This Court believes that it has said enough to demonstrate that the Petitioner was only and unfairly targeted for offering professional services to Dr. Fryda and in a manner to curtail her from further discharging her duties as a professional.
173. The totality of the prosecution is that it is contrary to public interest, such does not serve the interests of administration of justice or at all, but is aimed at aiding parties to settle personal scores which are civil in nature and that the prosecution amounts to an abuse of the Court process.
174. The upshot is that the actions of the Respondents jointly and severally infringes the Petitioner’s rights and fundamental freedoms as guaranteed in Article 27(1) for not according the Petitioner equal protection and equal benefit of the law, Article 28 for infringing on the Petitioner’s dignity, Article 31 for unnecessarily requiring the Petitioner to disclose her private affairs, Article 39 for curtailing the Petitioner’s freedom of movement, Article 40 for interfering with the Petitioner’s property, Articles 47(1) and 50(1) for failing to accord the Petitioner a fair administrative action and a hearing.
175. The impugned conduct as well contravenes Article 157(11) of the Constitution for not serving public interest or the interests of the administration of justice and amounts to an abuse of the Court process.
176. In such a scenario, this Court is justified to intervene and uphold the Constitution in enforcing the rights and fundamental freedoms of the Petitioner as well as ensuring that the Constitution is not contravened.”
49. Like dependence was placed in Geoffrey Kaaria Kinoti & 7 others vs the Chief Magistrate’s Court at Milimani & Others Constitutional Petition No. E495 of 2021.
50. Moving on to the next issue, Counsel submitted that the 1st Respondent’s exercise of his prosecutorial power was contrary to Article 157(11) of the Constitution as read with Section 4 of the ODPP Act. Moreover, Guideline 3.1.2.2, 3.2 – 3.2.1 and 3.2.2 of the ODPP Guidelines on the Decision to Charge, 2019. In essence, that the 1st Respondent is enjoined to ensure that no accused person is charged unless all the prescribed legal standards and tests are satisfied and there is sufficient evidence upon which the accused can be convicted. Equally relying in the case of Esther Gathoni Mwangi(supra) Counsel submitted that the prosecution of the Petitioner ought to be quashed as lacks factual and evidential foundations upon which he can be convicted.
51. Reliance was placed in Jirongo v Soy Developers Ltd & 9 others [2021] eKLR where it was held that:
“82. Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.
83. In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that:
“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.
By the same token and in terms of Article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.
It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad fait
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1. The Petition dated 23rd June 2025, is supported by the Petitioner’s affidavit in support of even date and a further affidavit dated 18th July 2025.
2. The Petition challenges the 1st, 2nd and 3rd Respondents actions claiming that both the investigation and decision to charge him is devoid of impartiality, objectivity, lacking in procedural fairness and meant to create a coercive and prejudicial environment that hinders the right to full protection of the law as he is being made to face charges in respect of an agreement for sale that he never gave instructions on, drafted or executed save for the fact that it was drawn at his office based in Ruiru by one of his employees.
3. The bedrock of the criminal case is the land sale agreement for the parcel L.R. RUIRU/JUJA EASTBLOCK 2/36 which was executed between the Interested Parties, on 17th November 2018 at the Petitioner’s law firm office based at Ruiru. The Petitioner contends that the ensuing investigation and prosecution is malicious and without any legal basis as it is founded on unsubstantiated complaint that seeks to make him criminally liable for another person’s actions.
4. He therefore contends that the Respondents actions have violated his constitutional rights under Articles 27, 28, 47, 48 and 50 (1) of the Constitution and thus seeks the following reliefs:
a) A declaration be issued to declare that the continued prosecution of the Petitioner for fraudulent dealings over land parcel L.R. RUIRU/JUJA EASTBLOCK 2/36 constitutes a violation of the Petitioner's rights under Articles 47, 48, and 50(1) of the Constitution, and is unlawful, unconstitutional, and an affront to the rule of law and due process.
b) An order of certiorari be issued to remove into this Court for purposes of quashing in its entirety the proceedings in Milimani Chief Magistrate's Court Criminal Case No. E328 of 2025 Republic vs. George Koimburi Ndungu and 2 Others, for being unconstitutional, malicious, and instituted in abuse of the criminal justice process.
c) An order of mandamus, in the alternative to prayer (b) above, for purposes of striking out the Petitioner as an accused person from the proceedings in Criminal Case No. E328 of 2025 Republic vs. George Koimburi Ndungu and 2 Others.
d) An order of prohibition restraining the Respondents, whether by themselves, their officers, agents, or assigns, from instituting, maintaining, or continuing any criminal proceedings against the Petitioner in respect of fraudulent dealings over land parcel L.R RUIRU/JUJA EASTBLOCK 2/36 or any transaction relating thereto.
e) A declaration that the conduct of the 1st, 2nd and 3rd Respondents in prosecuting the Petitioner in the manner described herein was arbitrary, irrational and made in disregard of due process, thereby infringing upon the Petitioner's dignity, presumption of innocence, and right to be treated fairly by organs of State.
f) An order of costs be awarded to the Petitioner as against the Respondents, jointly and severally, for the violation of constitutional rights and the oppressive conduct occasioned against them.
g) Such other or further orders or reliefs as this Court shall deem just, expedient, and appropriate in the unique and overriding interests of justice, constitutionalism, and the rule of law.
Petitioner’s Case
5. The Petitioner avers that he was charged in Criminal Case No. E328 of 2025 on allegations of conspiracy to defraud in relation to L.R. RUIRU/JUJA EASTBLOCK 2/36.
6. The Petitioner depones that the alleged transaction flowed from the disputed Agreement of Sale which was executed by the Interested Parties at the Petitioner’s Ruiru office on 17th November 2018. He notes that there are further acknowledgements from the parties dated 6th June 2018 and 3rd April 2020.
7. He asserts that he did not take or issue instructions, draft, attest or execute the said Agreement of Sale. In addition, he states that he was never present at any of these transactions.
8. He however states that the impugned Agreement had been executed by one of his employees without his authority and permission. In fact, he depones that he does not have the file and record of the legal fees payments receipts of the transaction in question.
9. The Petitioner avers that sometime in June 2020, he was contacted by the 3rd Respondent’s officers in relation to the impugned Agreement of Sale. He informed them that he had no knowledge of it and wrote a statement to that effect and had his specimen signatures taken.
10. He asserts that the result of the forensic examination was not availed to the 1st Respondent by the 3rd Respondent prior to making the decision to charge.
11. Soon after, the Petitioner was summoned by the 3rd Respondent officers and instructed to record another statement as the 1st Interested Party had complained that the matter had been compromised by the 2nd Interested Party.
12. Likewise, the 1st Interested Party had threatened to involve the media in the matter if no action was taken against him.
13. The Petitioner states that the summon to him was flawed because pursuant to the letter dated 26th June 2023, the 1st Respondent had instructed the 3rd Respondent to record the statement of the advocate who had actually drafted the impugned Agreement of Sale.
14. The Petitioner alleges that the officers informed him that the 1st Interested Party was keen on having him personally held liable as it was easier than holding the 2nd Interested Party liable who has a strong political force. Additionally, that the Petitioner would be in a position to pay what had been agreed as he has professional indemnity.
15. The Petitioner postulates that the logic behind the 1st Interested Party’s push was that, he would be pressured to protect his reputation being a respected public figure thus in turn would compel the 2nd Interested Party to solve the issues relating to the impugned transaction.
16. In September 2024, the 3rd Respondent’s officers visited his office and instructed him to go to their offices. At their offices, the 2nd Interested Party who was also present indicated that he had settled the issue with the complainant. Moreover, the Petitioner was informed that he would be a prosecution witness in the matter.
17. The Petitioner states that in a strange turn of events, he was informed on 12th June 2025 that he was required to appear before the Chief Magistrates Court on 24th June 2025 in Criminal Case No. E328 of 2025. It is at that point that he learnt he was the 3rd accused person in the matter and not a prosecution witness as informed.
18. The Petitioner protests that he has unreasonably been implicated in the matter despite his non-involvement in the alleged offences.
19. He notes that the summons issued by the 3rd Respondent dated 23rd June 2025 did not indicate that there was an allegation by the 2nd and 3rd Interested Party of their knowledge of him or his involvement. Equally during the investigations, the officers did not inform him that he was involved in the making of the impugned Agreement.
20. He stresses that the only relationship that exists between him and the matter is the alleged fraudulent Agreement of Sale that was drafted through his Ruiru office without his instructions. Considering this, he argues that even if there was any liability to be visited upon his firm relating to the impugned Agreement of Sale, he cannot be held criminally liable for the actions of another person even where there is an employer-employee relationship.
21. He stated that he appealed this matter to the 1st Respondent in his letter dated 25th June 2025 wherein he attached amongst other documents a letter dated 24th September 2024 to the 3rd Respondent disclosing the name of the staff who had prepared the impugned Agreement as Harrison Ndungu. That the said employee had absconded duty since 2020 and they were trying to trace him. Accordingly, he asserts that his joinder in the criminal suit lacks any lawful basis.
22. He further points out that no evidence was adduced to implicate him in any way with reference to the alleged offences. He contends that the Statement that was relied upon by the Respondents in their affidavit as his statement was doctored.
23. Equally, the allegation that he drew the Agreement of Sale is not supported by any evidence nor was the 1st Respondent supplied with his specimen signatures which would have put the matter to rest.
24. He believes therefore that the decision to charge him was made in bad faith, with no proper investigation and thus amounts to harassment, intimidation and an attempt to circumvent the judicial process.
25. In addition, he depones that the Respondents have through this criminal case assumed the role of debt collectors for the Interested Parties as the Trial Court proceedings indicate that the parties continue to engage and pay monies leaving him the casualty in their dispute. The Respondents actions are argued to have also violated his constitutional rights thus the need for this Court’s intervention.
1st, 2nd and 3rd Respondents’ Case
26. These Respondents through Police Constable Victor Wangila Mutali filed their Replying affidavit sworn on 16th July 2025.
27. He swore that on 19th June 2020, the Deputy in Charge of the Land Fraud Unit, directed him and Sgt. Kanyithia to conduct investigations into the alleged fraudulent transfer of the land, the subject matter of the criminal case.
28. This complaint had been made by the 1st Interested Party’s mother, Lucia Wanjiku Githinji, who was the administrator of her late husband’s estate. She claimed that the suit property had been transferred to the 2nd and 3rd Interested Party instead of the 1st Interested Party. The complainant’s statement was recorded and they as well obtained copies of the documents she had brought as proof of ownership of the subject property.
29. Following this, they wrote a letter to the District Land Registrar Ruiru dated 22nd June 2020, requesting for copies of the suit property’s green card, history of ownership, documents launching the transfer and daily presentation book. They received these copies on 24th June 2020. From this, they established that the suit property had been transferred from the late Gibson Githinji Gitonga to the 1st Interested Party then subsequently to the 2nd and 3rd Interested Party.
30. He avers that the 2nd and 3rd Interested Parties claimed that they had bought the suit property from the owner who was the 1st Interested Party.
31. They said this sale was made in line with the impugned Agreement of Sale, which was made and attested by the Petitioner. The two parties further informed that at all times during the transaction they had dealt with the Petitioner.
32. He avers that the two parties supplied the impugned Agreement and acknowledgements of payment of Ksh.500,000/= and Ksh.2,000,000/= dated 17th November 2018 attested by the Petitioner. In sum, the two alleged that they had purchased the suit property for Ksh.5,500,000/= although they failed to prove this.
33. On the other hand, he depones that the 1st Interested Party claimed that he never sold the suit property to the 2nd and 3rd Interested Parties.
34. He disclosed that he forwarded the sale agreement and the two acknowledgement letters to the document examiner for forensic examination of the signatures. He states that according to the examiner’s report dated 6th July 2020, none of the two documents was found to have been signed by the 1st Interested Party or his mother.
35. Thereafter, they contacted the Petitioner to ascertain his involvement in drafting the said Agreement and acknowledgements. He avers that the Petitioner informed them that these had been done by one of his advocates in his law firm at Ruiru but the Petitioner did not however disclose the particulars of the said advocate.
36. He asserts that at the end of the investigation, he was convinced that there was reasonable cause to believe that there was a conspiracy between the Petitioner and the 2nd and 3rd Interested Parties concerning the alleged fraudulent sale of the suit property. On this premise, he forwarded the investigation file to the 1st Respondent who then made the decision to charge them.
37. He avers that due process was followed in carrying out the investigations, making the decision to charge and instigation of the criminal case.
38. In light of this, he states that the Petitioner’s fundamental rights and freedoms were not violated as alleged.
2nd, 3rd, 4th and 5th Respondents’ Case
39. The 2nd, 3rd, 4th and 5th Respondents filed their grounds of opposition dated 21st July 2025 stating that:
i. The office of the Inspector General of Police that heads the National Police Service (NPS) is an independent office established under Article 245 of the Constitution and that the functions of the National Police Service which includes investigations, and the arrest of suspects are clearly outlined under Section 24 of the National Police Service Act, CAP 84, Laws of Kenya.
ii. The 3rd Respondent is a state agency established under Section 28 of the National Police Service Act and is under the direction, command and control of the 2nd Respondent. The 3rd Respondent has the mandate to undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others.
iii. The investigative actions leading to the arrest and charging of the Petitioner were conducted in accordance with the constitutional and statutory mandate of the 2nd and 3rd Respondents, based on a complaint and subsequent investigations relating to an alleged fraudulent land transaction.
iv. No material has been placed before this Court to demonstrate that the 2nd and 3rd Respondents acted ultra vires their constitutional mandate or that the investigation process was tainted by illegality, malice, bias, or procedural impropriety.
v. The grant of the orders sought would unnecessarily prevent the respondents from discharging their constitutional and statutory mandate which would go against public interest and constitutional values.
vi. The power to arrest and investigate is not subject to judicial approval unless it can be shown that such power has been exercised unlawfully or oppressively. The Petitioner has not demonstrated any actual or threatened violation of his rights under Articles 27, 29, 47, 48 or 50 of the Constitution.
vii. The 4th Respondent, the Hon. Attorney General, is not a proper party to these proceedings as the impugned actions relate to matters falling exclusively within the constitutional mandate of the investigative and prosecutorial agencies independently established under Articles 245 and 157 of the Constitution.
viii. The mere allegation that the Petitioner’s fundamental right has been contravened is not in itself sufficient to entitle the petitioner the conservatory remedies sought. The Petitioner must demonstrate real danger so imminent and evident, true and actual and not fictitious; so as to deserve immediate redress by this Court.
ix. The Petitioner has not demonstrated any prejudice or irreparable harm, damage or injury likely to be suffered if the conservatory orders sought are not granted. There is also no evidentiary proof that the grant of conservatory orders sought would enhance constitutional values and objects specific to the rights and freedom in the Bill of rights.
x. The Petitioner’s contention that he had no knowledge or involvement in the impugned transaction is an evidentiary issue that can only be properly ventilated during trial and such the criminal process should not be halted prematurely on the basis of disputed facts, especially where due process is being followed.
xi. The fact that the Petitioner is a Senior Advocate of the High Court does not exempt him from being subject to investigation or prosecution if reasonable cause exists to believe that he may have committed an offence.
xii. The orders sought in the application are final in nature and this will require the Court to go into a conclusive or definite finding which is tantamount to pre-emptying the petition. Moreover, this will go against the principles, purpose and intention of an application for conservatory orders.
xiii. The Petitioner has been unable to sufficiently prove the nature and manner in which the Respondents have allegedly violated its rights or any of the provisions of the Constitution or any other written laws in connection with his arrest and subsequent charging in the criminal case. The Petitioner has both legal and evidential burden, but which they have not discharged. Reliance is placed on the case of Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR, Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR and Kuria & 3 Others v Attorney General [2002] KLR 69.
xiv. The application is an attempt to shield the Petitioner from lawful prosecution and frustrate the administration of justice contrary to the public interest.
xv. The Petitioner has not demonstrated that the Respondents acted dishonestly, in bad faith, or with an ulterior motive in a manner that would justify interference with the exercise of constitutional and statutory powers of the 2nd and 3rd Respondents.
xvi. The investigations by the 3rd Respondents were instituted with the intention to serve justice for the complainant and is without extraneous or ulterior purposes.
xvii. The Petition is an abuse of court process and is improperly inviting the court to usurp the constitutional mandate of investigative and prosecutorial authorities contrary to the doctrine of separation of powers.
xviii. This Court lacks supervisory jurisdiction to intervene, supervise and direct other Constitutional bodies, the Respondents included, in discharging their constitutional mandates. Additionally, it is not the duty of the court except in very clear circumstances to impair the performance of constitutional functions.
xix. The Petitioner has failed to prove that his arrest and subsequent charging are in breach of any law to warrant an order of prohibition against their arrest to be issued by this Court.
xx. The grounds set out in support of the application do not raise any constitutional issues either for enforcement of fundamental rights or interpretation of the Constitution.
xxi. The allegations by the Petitioner are without merit, legal reason or backing and the prayers sought are not tenable before this Court as the Petitioner has failed to demonstrate any violation of rights by the 2nd,3rd and 4th Respondents.
xxii. The application is hapless, presumptive and an abuse of the court process and should be dismissed.
Interested Parties’ Case
40. The Interested parties’ response and submissions to the Petition are not in the Court file or Court Online Platform (CTS).
Petitioner’s Submissions
41. Kinoti and Kibe Company advocates for the Petitioner filed submissions dated 29th July 2025 and rebuttal submissions dated 4th August 2025. Counsel identified the issues for argument as: whether the 1st Respondent has filed a valid replying affidavit; whether the 3rd Respondent has proper grounds and evidential basis to recommend the Petitioner’s prosecution, whether the 2nd and 3rd Respondent’s violated the Petitioner’s rights under Article 47 and 50 of the Constitution, whether the 1st Respondent exercised the prosecutorial powers contrary to Article 157(11) of the Constitution, whether institution of Criminal case No.E328 of 2025 violated the Petitioner’s rights under Article 47,48 and 50 of the Constitution and whether the prosecution and public portrayal of the Petitioner as a criminal amounts to violation of his right under Article 28 of the Constitution.
42. On the first issue, Counsel submitted that while Police Constable Victor Wangila Mutali can competently swear an affidavit for the 2nd and 3rd Respondents, the same is not true for the 1st Respondent. Counsel stressed that these Respondents mandate is distinct and so he did not have capacity to swear an affidavit for the 1st Respondent. As such, Counsel submitted that the filed Replying Affidavit was incompetent in relation to the 1st Respondent.
43. To buttress this claim, Counsel relied in Article 157(4) and (9) of the Constitution as read with Sections 20 and 22 of the Office of Director of Public Prosecutions. Equally the case of Omar Kahindi Gona & 4 others v Director of Public Prosecution & another [2021] eKLR where it was held that:
“The criminal justice system in Kenya entrusts the function of investigations to the police or other investigative agencies and the prosecution directorate is never an active actor in that process of evidence gathering geared towards a recommendation to charge a suspect of crime. Whereas the Director of Public Prosecution’s role is to decide whether a prima facie case exists to initiate or continue a prosecution before the trial Courts. To this effect, the requirement of existence of a crime having been committed by the respondents founded on the provisions of any penal Law remained considerably unknown. In line with Article 157 (6) of the Constitution the Law expects the Director of Public Prosecution to act where the breath of the Law which carries a criminal sanction has been violated.”
44. On the next issue, Counsel recapping the averments in the 1st, 2nd and 3rd Respondents’ Replying affidavit submitted that it was not established whether the Petitioner drafted the impugned Agreement and that the sale of the land was as a result of a conspiracy between the Petitioner and the 2nd and 3rd Interested parties to defraud the 1st Interested Party.
45. Counsel further pointed out that while these Respondents relied on forensic evidence, the Respondents had only issued one forensic report. This is despite the Petitioner willingly submitting his specimen signatures to the officers for forensic analysis. Counsel also noted that while the officers stated that the Petitioner had not supplied the name of the key person, the Petitioner in his further affidavit informed that he had issued the key name and phone number of the staff to his boss, James Githinji yet he was not investigated. Counsel also pointed out that the Respondents affidavit had numerous discrepancies such as no advocate fees receipts were issued to collaborate the averments of payments for the suit property, the doctored Petitioner’s recorded statement and inconsistency of the 3rd Respondent’s summons dated 2nd September 2024.
46. In view of this, Counsel submitted that the 2nd and 3rd Respondents had not demonstrated that they had any probative evidence or reasonable ground to recommend the prosecution of the Petitioner.
47. On the third issue, Counsel answered in the affirmative. Counsel submitted that according to the 1st, 2nd and 3rd Respondent’s Replying Affidavit the decision to charge the Petitioner was based on the statements of the 2nd and 3rd Interested Parties in the absence of the Petitioner and which were not produced. Counsel asserted that the Petitioner was not granted an opportunity to make a response to these allegations and share his side of the story, which is contrary to the constitutional dictates.
48. Reliance was placed in Esther Gathoni Mwangi v Director of Public Prosecutions & 2 others; William Charles Fryda & 3 others [2022] eKLR where it was held that:
“169. Emerging from the above, there is no doubt the investigator’s decision in not formally summon the Petitioner was an administrative action. In sum, it was an administrative action because the investigator was discharging a duty bestowed in law and further the decision affected the legal rights and interests of the Petitioner. As such the decision had to pass the constitutional and statutory tests of lawfulness, reasonableness and procedural fairness.
170. As admitted by the Investigator, the impugned decision did not conform to the requirements of Article 47 of the Constitution and Fair Administrative Actions Act. At a minimum, to meet the constitutional and statutory threshold, the investigator had to: -
(i) Issue formal Summons requiring the attendance of the Petitioner at the DCI Headquarters.
(ii) Inform the Petitioner of the purpose of the attendance.
(iii) Inform the Petitioner of her right to attend with a Counsel if she so wished.
(iv) Inform the Petitioner of the consequences of non-attendance.
171. The Respondents’ impugned decision in not formally summoning the Petitioner and instead proceeding to obtain a warrant of arrest, therefore, infringed Articles 47 and 50(1) of the Constitution as well as the Fair Administrative Actions Act. The impugned decision is hence constitutionally infirm.
172. This Court believes that it has said enough to demonstrate that the Petitioner was only and unfairly targeted for offering professional services to Dr. Fryda and in a manner to curtail her from further discharging her duties as a professional.
173. The totality of the prosecution is that it is contrary to public interest, such does not serve the interests of administration of justice or at all, but is aimed at aiding parties to settle personal scores which are civil in nature and that the prosecution amounts to an abuse of the Court process.
174. The upshot is that the actions of the Respondents jointly and severally infringes the Petitioner’s rights and fundamental freedoms as guaranteed in Article 27(1) for not according the Petitioner equal protection and equal benefit of the law, Article 28 for infringing on the Petitioner’s dignity, Article 31 for unnecessarily requiring the Petitioner to disclose her private affairs, Article 39 for curtailing the Petitioner’s freedom of movement, Article 40 for interfering with the Petitioner’s property, Articles 47(1) and 50(1) for failing to accord the Petitioner a fair administrative action and a hearing.
175. The impugned conduct as well contravenes Article 157(11) of the Constitution for not serving public interest or the interests of the administration of justice and amounts to an abuse of the Court process.
176. In such a scenario, this Court is justified to intervene and uphold the Constitution in enforcing the rights and fundamental freedoms of the Petitioner as well as ensuring that the Constitution is not contravened.”
49. Like dependence was placed in Geoffrey Kaaria Kinoti & 7 others vs the Chief Magistrate’s Court at Milimani & Others Constitutional Petition No. E495 of 2021.
50. Moving on to the next issue, Counsel submitted that the 1st Respondent’s exercise of his prosecutorial power was contrary to Article 157(11) of the Constitution as read with Section 4 of the ODPP Act. Moreover, Guideline 3.1.2.2, 3.2 – 3.2.1 and 3.2.2 of the ODPP Guidelines on the Decision to Charge, 2019. In essence, that the 1st Respondent is enjoined to ensure that no accused person is charged unless all the prescribed legal standards and tests are satisfied and there is sufficient evidence upon which the accused can be convicted. Equally relying in the case of Esther Gathoni Mwangi(supra) Counsel submitted that the prosecution of the Petitioner ought to be quashed as lacks factual and evidential foundations upon which he can be convicted.
51. Reliance was placed in Jirongo v Soy Developers Ltd & 9 others [2021] eKLR where it was held that:
“82. Although the DPP is thus not bound by any directions, control or recommendations made by any institution or body, being an independent public office, where it is shown that the expectations of Article 157(11) have not been met, then the High Court under Article 165(3)(d)(ii) can properly interrogate any question arising therefrom and make appropriate orders.
83. In that regard, the Court of Appeal in the case of Commissioner of Police & Another v Kenya Commercial Bank Ltd & 4 others [2013] eKLR persuasively found that the High Court can stop a process that may lead to abuse of power and held that:
“Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.
By the same token and in terms of Article 157(11) of the Constitution, quoted above, in exercising powers donated by the law, including the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the legal process. The court on the other hand is required to oversee that the DPP and the Inspector General undertake these functions in accordance and compliance with the law. If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution. See Githunguri v Republic [1985] LLR 3090.
It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad fait
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