The Petition was filed on 26th May 2026, together with a Notice of Motion Application of the same date, under a Certificate of Urgency, invoking the Court’s jurisdiction under Article 165(3)(d)(ii) of the Constitution of Kenya, 2010, to review and terminate the criminal proceedings against the Petitioner in Criminal Case No. E2847 of 2026, Republic v Gedion Maingi Makau, in which he is charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code.
2. The Petitioner seeks, in substance: (a) a declaration that the decision of the 1st and 2nd Respondents to institute and maintain the said criminal proceedings is unconstitutional, null and void; (b) an order of certiorari to quash the Charge Sheet dated 17th May 2026; (c) an order of prohibition restraining further investigation, arrest or prosecution on the same facts; (d) a permanent injunction restraining further criminal complaints touching on the same transaction; and (e) costs.
3. The application and the Petition are opposed by the 1st and 2nd Respondents, through the Replying Affidavit dated 5th June 2026 and Further Affidavit dated 17th June 2026 deponed to by Sgt Philip Amalla, the Investigating Officer No. 79102 and by the Interested Party through the Grounds of Opposition and a Replying Affidavit dated 16th June 2026.
4. Parties filed written submissions to the Petition. The Petitioner's written submissions are dated 8th June 2026, and the Interested Party’s submissions are dated 17th June 2026
5. I have carefully considered the Petition, the Notice of Motion Application, the Supporting and Further Affidavits of the Petitioner, the Responses to the application and the submissions of the parties.
Background Facts
6. On 13th April 2023, the National Housing Corporation (hereafter “NHC”) issued the Petitioner a conditional Letter of Offer for a two-bedroom unit, House No. 012, Block E, 8th Floor, under the Park Road Affordable Housing Program, following payment of a deposit of Kes. 446,800/-. The offer expressly required acceptance on or before 26th April 2023 and execution of a Sale Agreement on or before 10th May 2023, failing which the unit would revert to the Corporation for reallocation.
7. It is common ground, and confirmed by two independent letters from the NHC dated 9th June 2026, that the Petitioner did not accept the offer nor did he execute the Sale Agreement within the stipulated period. His deposit was refunded to him on 7th September 2023. The unit was thereafter re-offered to one Fauzia Muthoni Wanjiku on 15th February 2024, who accepted the offer on 7th March 2024. The NHC confirmed unambiguously that, as at August 2024, the unit stood allocated to Mrs Wanjiku, and not to the Petitioner.
8. Notwithstanding the foregoing, on 14th August 2024 the Petitioner entered into a written agreement for the sale of the same unit to the Interested Party, Victor Omondi Oyaya, at a consideration of Kes. 450,000/-. Clause 1 of that agreement expressly recites that the house was "currently registered in the name of Gedion Maingi Makau". Pursuant to the agreement, the Interested Party transferred sums totalling Kes. 476,000/- to the Petitioner's Equity Bank account between 13th August 2024 and 15th September 2024.
9. Upon realising that the Petitioner could not transfer the unit to him, the Interested Party lodged a complaint at Pangani Police Station vide OB No. 80/30/7/2025. The Investigating Officer, Sgt Philip Amalla, wrote to the NHC on 18th May 2026 seeking confirmation of the allocation history of the unit; the NHC responded on 9th June 2026 substantially corroborating the complainant's account and confirming, in particular, that the Petitioner's interest in the unit had lapsed over a year before the impugned sale agreement was executed.
10. Following the complaint and response from NHC, the Petitioner was arrested on 16th May 2026, detained, and subsequently charged on 18th May 2026 in Makadara Criminal Case No. E2847 of 2026 with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code, the particulars alleging that between 13th August 2024 and 15th September 2024, with intent to defraud, he obtained Kes. 476,000/- from the Interested Party by falsely pretending that he was in a position to sell him a house, a fact he knew to be false.
11. The Petitioner does not seriously dispute the underlying transaction, the receipt of the funds, or the fact of partial refunds totalling Kes. 130,050/-. His position is that the matter is a civil dispute arising from a breach of a commercial contract, frustrated by delays attributable to the NHC as a third party, and that invoking the criminal process is an unconstitutional device to coerce settlement of a civil debt.
The Petitioner's Case
12. The Petitioner's case, as pleaded in the Petition, his Supporting and Further Affidavits and written submissions, is that the dispute is purely civil/commercial, arising from the sale of a house, and any failure to complete the transaction is a matter of contract, not crime. He avers that the transaction was fully documented, payments were made through formal banking channels, and that he voluntarily made partial refunds before the criminal process commenced and that the Respondents failed to place before the Court the decision to charge or any other evidence demonstrating an independent, objective basis for the charge, as opposed to the mere existence of a civil dispute.
13. The Petitioner relies on several authorities to support his position for the proposition that this Court has both the jurisdiction and the duty to halt a prosecution that is vexatious, oppressive, actuated by an ulterior or collateral purpose, or otherwise an abuse of the process of the court, particularly where its predominant purpose is to advance a civil claim.
The 1st And 2nd Respondents Case
14. The 1st and 2nd Respondents' case, as deposed to by Sgt Philip Amalla, is that the decision to investigate and charge the Petitioner was reached independently, professionally and upon sufficient evidence disclosing the offence and that the existence of a civil remedy or a sale agreement does not, by operation of Section 193A of the Criminal Procedure Code, negate criminal liability where the ingredients of an offence are independently disclosed.
15. By a Further Affidavit sworn on 11th June 2026, Sgt Amalla placed before the Court the correspondence exchanged with the NHC, namely the police request of 18th May 2026 and the NHC's substantive response of 9th June 2026 which conclusively established that the Petitioner's Letter of Offer of 13th April 2023 lapsed for non-compliance; his deposit was refunded to him on 7th September 2023 and the unit was thereafter allocated to a different person, Fauzia Muthoni Wanjiku, in February/March 2024.
16. As at August 2024, when the Petitioner purported to sell the unit to the Interested Party, the unit had already been allocated to Mrs Wanjiku by NHC and not to the Petitioner. The Respondents contend that this documentary evidence, sourced from an independent public body, corroborates the charge and negates any suggestion that the prosecution rests on speculation, malice or an ulterior motive.
The Interested Party's Case
17. The Interested Party filed Grounds of Opposition, Replying Affidavit deponed to on 16th June 2026, and Skeleton Submissions filed on 17th June 2026, which align with the Respondents' position. He deposes that he entered into a sale agreement with the Petitioner to purchase the house on 14th August 2024, and he paid Kes. 476,000/- to the Petitioner and that upon the Petitioner’s refusal to complete the transaction, he lodged the complaint with the police.
18. The Interested Party’s position is that the dispute is not purely civil. He states that the Petitioner's conduct went beyond a civil disagreement and involved misrepresentation of a material fact in relation to the transaction.
19. The Interested Party further contends that the Petition discloses no constitutional or legal basis for interference with the 1st Respondent's mandate under Article 157of the Constitution of Kenya, 2010 and by dint of Section 193A of the Criminal Procedure Code, the existence of a civil dispute or remedy does not bar criminal investigation or prosecution arising from the same facts.
20. He further posits that the Petitioner has not established a prima facie case and that the issues of mens rea, ownership and contractual obligation raised by the Petitioner are matters of evidence for determination in the criminal suit and not constitutional adjudication.
Issues For Determination
21. Having considered the pleadings and submissions, I find that the following issues arise for determination:
(i) Whether the dispute between the Petitioner and the Interested Party is purely civil or commercial in nature, such as to place it beyond the reach of the criminal law;
(ii) Whether the criminal proceedings in Makadara Criminal Case No. E2847 of 2026 constitute an abuse of the court process and a violation of the Petitioner's rights under Articles 25(c), 27, 28, 29, 47, 48 and 50 of the Constitution of Kenya,2010;
(iii) Whether the 1st Respondent breached its constitutional duty under Article 157(11) of the Constitution of Kenya,2010 to prevent and avoid abuse of the legal process;
(iv) Whether the Petitioner has met the threshold for the grant of the conservatory orders, declaration, certiorari, prohibition and permanent injunction sought.
Analysis and Determination
Applicable principles
22. It is well settled that the jurisdiction of this Court to intervene in and halt ongoing criminal proceedings is exceptional and is to be exercised sparingly and with caution. In Hasit Shah & 2 others v Attorney General & 2 others [2013] KEHC 6611 (KLR), Lenaola J (as he then was), citing Githunguri v Republic [1986] KLR 1 and Mohammed Gulam & Another v Chief Magistrate's Court & Another [2006] eKLR, held that whilst the power of the High Court to intervene to stop a criminal prosecution must be exercised sparingly, the Court must always be ready to intervene to prevent any prosecution which is vexatious, oppressive, mala fide, frivolous, or taken up for an improper purpose such as harassment of a party or abuse of the process of court.
23. The test in Kangwana & 2 others v Director of Public Prosecutions & 5 others [2022] KEHC 170 (KLR), as applied in Paul Stuart Imison & Another v Attorney General & 2 Others, Petition No. 57 of 2009, provides a useful framework in the present matter. A prosecution is improper if (a) it is for a purpose other than upholding the criminal law; (b) it is meant to bring pressure to bear upon the accused to settle a civil dispute; (c) it is an abuse of the criminal process of the court; (d) it amounts to harassment contrary to public policy; or (e) it is in contravention of the accused's constitutional right to freedom.
24. Similarly, in Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] KEHC 1120 (KLR), Waki J (as he then was) held that “…So, it is not the purpose of a criminal investigation or a criminal charge or prosecution, to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other and ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice. No one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth.”
25. For the grant of conservatory orders, the applicable principles are those set out in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) and affirmed by the Supreme Court in Munya v Kithinji & 2 others [2014] KECA 876 (KLR) Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. An applicant must demonstrate the following; (a) an arguable prima facie case with a likelihood of success and a real danger of prejudice in the absence of the orders; (b) that the grant or denial of the orders will enhance constitutional values; (c) that absent the orders the petition would be rendered nugatory; and (d) that the public interest favours the grant of the orders.
26. These principles must, however, be read alongside Section 193A of the Criminal Procedure Code, which expressly permits the concurrent existence of civil and criminal proceedings arising from the same facts, and the provisions of Article 157 of the Constitution of Kenya,2010 that the Director of Public Prosecutions exercises prosecutorial power independently. It is therefore not sufficient for a Petitioner merely to point to a contractual relationship between himself and a complainant; he must, on the evidence, show that the criminal process has an ulterior motive.
(i) Whether the dispute is purely civil in nature
27. The Petitioner's position is that the transaction of 14th August 2024 was a straightforward commercial contract that he was, at the material time, with an interest in the unit, whose performance was frustrated by circumstances attributable to the NHC. On that premise, the case would indeed fall squarely within the principle in Mathlida Akinyi Oware v Republic [1989] KECA 59 (KLR), applying R v Dent [1975] 2 All E.R. 806, that inability to perform a contractual obligation after receipt of money cannot found a charge of obtaining by false pretence.
28. The documentary evidence on record, however, does not support that premise. The two letters from the NHC dated 9th June 2026 obtained independently by the investigating officer and separately exhibited by the Interested Party establish an evidentiary chronology that the Petitioner has neither controverted nor explained.
29. The Petitioner's conditional offer of 13th April 2023 lapsed for non-acceptance; the deposit was refunded to him on 7th September 2023, and the unit was re-offered to a third party, Fauzia Muthoni Wanjiku, in February on 21st May 2024. As at August 2024, when the Petitioner executed the sale agreement with the Interested Party, He did not have an interest in the unit.
30. On the material before this Court, the representation by the Petitioner to sell the unit to the interested party was, on its face, false at the time it was made because the Petitioner asserted a present and verifiable fact which was untrue, having received a refund of his deposit on the unit.
31. This distinguishes the present case, at least at the prima facie stage, from the decision of Mathlida Akinyi Oware v Republic [1989] KECA 59 (KLR). Those authorities are concerned with representations as to future conduct or performance or promises that later go unfulfilled, which the criminal law of false pretences does not ordinarily reach.
32. What is alleged in the present matter is a misrepresentation of an existing fact, that the Petitioner had a registered or beneficial interest in the property, made to induce the Interested Party to part with money. Whether that allegation is ultimately proved to the criminal standard, including proof of the Petitioner's knowledge and fraudulent intent at the time of contracting, is a matter for trial in the criminal court.
33. The existence of a civil case is not a bar to instituting a civil Claim against a party. See Section 193A of the Criminal Procedure Code. I therefore find that the dispute between the Petitioner and the Interested Party is not one that is purely civil or commercial in nature so as to place it beyond the reach of the criminal law. The Petitioner's representation of his ownership of the unit was, prima facie, a misrepresentation of an existing and verifiable fact at the time it was made, not a failed promise of future performance.
(ii) Whether the prosecution and institution of the criminal proceedings is an abuse of court process and a violation of the Petitioner's rights under Articles 25(c), 27, 28, 29, 47, 48 and 50 of the Constitution of Kenya,2010;
34. Applying the tests in Kangwana & 2 others v Director of Public Prosecutions & 5 others [2022] KEHC 170 (KLR) and Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] KEHC 1120 (KLR) I am not satisfied that the Petitioner has demonstrated, on a prima facie basis, that the prosecution is for a purpose other than upholding the criminal law, that it is designed merely to pressure him into settling a civil debt, or that it is otherwise vexatious, oppressive or mala fide.
35. The record before this court shows that the decision to charge followed independent investigation, the recording of witness statements, and independent verification of the allocation history of the property from the NHC, a public body with no interest in the outcome of either the criminal or any prospective civil proceedings.
36. This is materially different from a case in which a complainant, aggrieved by mere non-performance of a contract, reports the matter to the police to secure repayment. The investigation uncovered an independent evidentiary basis: a specific, falsifiable representation of ownership contradicted by NHC records, going to the existence of deception, which is the gravamen of the offence under Section 313 of the Penal Code.
37. I have also had regard to the Petitioner's contention that the Respondents did not place the ODPP's decision to charge before the Court. While the formal charging decision was not exhibited, its absence does not, in the circumstances of this case, give rise to an inference of an uninformed or improper decision to prosecute, given the cogent independent documentary evidence that was placed before the Court by the Further Affidavit of Sgt Amalla. The evidential threshold at this stage is not proof beyond reasonable doubt, but whether a reasonable and probable cause for prosecution is disclosed; on the material before me, it plainly is.
38. The Petitioner's partial refund of Kes. 130,050/- and his assertion of good faith do not defeat the prima facie case at this stage. At most, it bears on mitigation or on the trial court's assessment of intent. This is properly resolved through viva voce evidence and cross-examination at trial, not on affidavit evidence in these proceedings.
39. I am guided in this respect by the caution expressed in Kuria & 3 Others v Attorney General [2002] 2 KLR 69 and Njoroge & 2 Others v Directorate of Criminal Investigations & Another [2026] KEHC 1504 (KLR) the machinery of criminal justice ought not to be a pawn in personal or civil feuds, and prosecutors must act judiciously, objectively and without ulterior motive.
40. However, on the facts as they now stand disclosed, I do not find that the prosecution in this case has been shown, even prima facie, to be actuated by such ulterior motive. The independent corroboration from the NHC materially distinguishes this case from one resting solely on a complainant's unverified assertions.
41. I find that the Petitioner has not demonstrated, even on a prima facie basis, that the criminal proceedings in Makadara Criminal Case No. E2847 of 2026 are vexatious, oppressive, mala fide, or actuated by a collateral purpose to assist the Interested Party in private debt recovery. The criminal proceedings do not, on the material before this Court, constitute an abuse of the court process, nor has any violation of the Petitioner's rights under Articles 25(c), 27, 28, 29, 47, 48 or 50 of the Constitution of Kenya,2010 been established.
(iii) Whether the 1st Respondent breached its constitutional duty under Article 157(11) of the Constitution of Kenya,2010 to prevent and avoid abuse of the legal process;
42. Article 157(11) of the Constitution of Kenya,2010 empowers the Director of Public Prosecutions, in exercising his prosecutorial powers, to have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process.
43.On the evidence before the Court, the decision to charge followed a police inquiry that included the recording of witness statements and independent verification of facts central to the alleged deception with the NHC. I am unable to find, on this record, that the 1st Respondent abdicated duty under Article 157(11) of the Constitution of Kenya,2010 or acted as a mere instrument for private debt collection.
44. The authorities cited by the Petitioner, including Kemboi v Attorney General & Another [2026] KEHC 1070 (KLR), correctly state the principle that the DPP must act as a gatekeeper against the misuse of the criminal process for commercial grievances. On the facts presented in the present matter, that gatekeeping function was not abdicated.
45.I find that the 1st Respondent has not breached its constitutional duty under Article 157(11) of the Constitution of Kenya,2010.The decision to charge was preceded by independent investigation and verification of material facts with the National Housing Corporation, and there is no credible basis on this record to conclude that the 1st Respondent abdicated its gatekeeping function or allowed itself to be used as an instrument of private debt collection as claimed by the Petitioner.
(v) Whether the reliefs sought should be granted
46.It follows from the foregoing that the Petitioner has not established, at this stage, an arguable prima facie case with a likelihood of success, as required by Uhuru Secondary School (supra) and Gatirau Peter Munya (supra). While I accept that the Petitioner stands to face the ordinary rigours, anxiety and expense of a criminal trial should the matter proceed, this consequence is not the sort of irreparable prejudice contemplated by the authorities as warranting the exceptional intervention of this Court in an ongoing criminal process.
47. Every accused person faces the stress and stigma of trial. This alone cannot be the basis for constitutional intervention, or the exception would swallow the rule that prosecutorial discretion is to be respected without clear evidence of impropriety.
48. I bear in mind the guidance in Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) that procedural technicalities should not be used to defeat the ends of justice, and that courts must remain vigilant against the misuse of their own processes. That vigilance cuts both ways: this Court must be equally alert to the risk that its constitutional jurisdiction is converted into a routine avenue for persons facing plausible criminal charges to escape a lawfully instituted trial.
49. I have considered the Petitioner's claims under Articles 27, 28, 29 and 48 of the Constitution of Kenya,2010. These claims, in substance, depend on the primary contention that the prosecution is an abuse of process. Having found this contention unproven, this Court finds that the ancillary claims of discriminatory treatment, degrading treatment, and denial of access to justice equally fail.
50. The Petitioner's right to a fair trial under Article 50 of the Constitution of Kenya, 2010 remains fully protected before the trial court where he will be at liberty to cross-examine witnesses, tender evidence, and raise all available legal and factual defences in support of his position.
51. Having found that the Petitioner has not established an arguable prima facie case with a likelihood of success, that he has not demonstrated a risk of prejudice beyond the ordinary incidents of standing trial, and that the public interest does not favour the grant of the orders sought, I find and hold that the Petitioner has not met the threshold for the grant of a conservatory order, a declaration, an order of certiorari, an order of prohibition, or a permanent injunction.
52. For the reasons set out above, the Petition has not succeeded. The interim orders are discharged, and the Petition is dismissed with costs to the Respondents and Interested Party.
Dated and signed at Nairobi this 27th day of July 2026.
2. The Petitioner seeks, in substance: (a) a declaration that the decision of the 1st and 2nd Respondents to institute and maintain the said criminal proceedings is unconstitutional, null and void; (b) an order of certiorari to quash the Charge Sheet dated 17th May 2026; (c) an order of prohibition restraining further investigation, arrest or prosecution on the same facts; (d) a permanent injunction restraining further criminal complaints touching on the same transaction; and (e) costs.
3. The application and the Petition are opposed by the 1st and 2nd Respondents, through the Replying Affidavit dated 5th June 2026 and Further Affidavit dated 17th June 2026 deponed to by Sgt Philip Amalla, the Investigating Officer No. 79102 and by the Interested Party through the Grounds of Opposition and a Replying Affidavit dated 16th June 2026.
4. Parties filed written submissions to the Petition. The Petitioner's written submissions are dated 8th June 2026, and the Interested Party’s submissions are dated 17th June 2026
5. I have carefully considered the Petition, the Notice of Motion Application, the Supporting and Further Affidavits of the Petitioner, the Responses to the application and the submissions of the parties.
Background Facts
6. On 13th April 2023, the National Housing Corporation (hereafter “NHC”) issued the Petitioner a conditional Letter of Offer for a two-bedroom unit, House No. 012, Block E, 8th Floor, under the Park Road Affordable Housing Program, following payment of a deposit of Kes. 446,800/-. The offer expressly required acceptance on or before 26th April 2023 and execution of a Sale Agreement on or before 10th May 2023, failing which the unit would revert to the Corporation for reallocation.
7. It is common ground, and confirmed by two independent letters from the NHC dated 9th June 2026, that the Petitioner did not accept the offer nor did he execute the Sale Agreement within the stipulated period. His deposit was refunded to him on 7th September 2023. The unit was thereafter re-offered to one Fauzia Muthoni Wanjiku on 15th February 2024, who accepted the offer on 7th March 2024. The NHC confirmed unambiguously that, as at August 2024, the unit stood allocated to Mrs Wanjiku, and not to the Petitioner.
8. Notwithstanding the foregoing, on 14th August 2024 the Petitioner entered into a written agreement for the sale of the same unit to the Interested Party, Victor Omondi Oyaya, at a consideration of Kes. 450,000/-. Clause 1 of that agreement expressly recites that the house was "currently registered in the name of Gedion Maingi Makau". Pursuant to the agreement, the Interested Party transferred sums totalling Kes. 476,000/- to the Petitioner's Equity Bank account between 13th August 2024 and 15th September 2024.
9. Upon realising that the Petitioner could not transfer the unit to him, the Interested Party lodged a complaint at Pangani Police Station vide OB No. 80/30/7/2025. The Investigating Officer, Sgt Philip Amalla, wrote to the NHC on 18th May 2026 seeking confirmation of the allocation history of the unit; the NHC responded on 9th June 2026 substantially corroborating the complainant's account and confirming, in particular, that the Petitioner's interest in the unit had lapsed over a year before the impugned sale agreement was executed.
10. Following the complaint and response from NHC, the Petitioner was arrested on 16th May 2026, detained, and subsequently charged on 18th May 2026 in Makadara Criminal Case No. E2847 of 2026 with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code, the particulars alleging that between 13th August 2024 and 15th September 2024, with intent to defraud, he obtained Kes. 476,000/- from the Interested Party by falsely pretending that he was in a position to sell him a house, a fact he knew to be false.
11. The Petitioner does not seriously dispute the underlying transaction, the receipt of the funds, or the fact of partial refunds totalling Kes. 130,050/-. His position is that the matter is a civil dispute arising from a breach of a commercial contract, frustrated by delays attributable to the NHC as a third party, and that invoking the criminal process is an unconstitutional device to coerce settlement of a civil debt.
The Petitioner's Case
12. The Petitioner's case, as pleaded in the Petition, his Supporting and Further Affidavits and written submissions, is that the dispute is purely civil/commercial, arising from the sale of a house, and any failure to complete the transaction is a matter of contract, not crime. He avers that the transaction was fully documented, payments were made through formal banking channels, and that he voluntarily made partial refunds before the criminal process commenced and that the Respondents failed to place before the Court the decision to charge or any other evidence demonstrating an independent, objective basis for the charge, as opposed to the mere existence of a civil dispute.
13. The Petitioner relies on several authorities to support his position for the proposition that this Court has both the jurisdiction and the duty to halt a prosecution that is vexatious, oppressive, actuated by an ulterior or collateral purpose, or otherwise an abuse of the process of the court, particularly where its predominant purpose is to advance a civil claim.
The 1st And 2nd Respondents Case
14. The 1st and 2nd Respondents' case, as deposed to by Sgt Philip Amalla, is that the decision to investigate and charge the Petitioner was reached independently, professionally and upon sufficient evidence disclosing the offence and that the existence of a civil remedy or a sale agreement does not, by operation of Section 193A of the Criminal Procedure Code, negate criminal liability where the ingredients of an offence are independently disclosed.
15. By a Further Affidavit sworn on 11th June 2026, Sgt Amalla placed before the Court the correspondence exchanged with the NHC, namely the police request of 18th May 2026 and the NHC's substantive response of 9th June 2026 which conclusively established that the Petitioner's Letter of Offer of 13th April 2023 lapsed for non-compliance; his deposit was refunded to him on 7th September 2023 and the unit was thereafter allocated to a different person, Fauzia Muthoni Wanjiku, in February/March 2024.
16. As at August 2024, when the Petitioner purported to sell the unit to the Interested Party, the unit had already been allocated to Mrs Wanjiku by NHC and not to the Petitioner. The Respondents contend that this documentary evidence, sourced from an independent public body, corroborates the charge and negates any suggestion that the prosecution rests on speculation, malice or an ulterior motive.
The Interested Party's Case
17. The Interested Party filed Grounds of Opposition, Replying Affidavit deponed to on 16th June 2026, and Skeleton Submissions filed on 17th June 2026, which align with the Respondents' position. He deposes that he entered into a sale agreement with the Petitioner to purchase the house on 14th August 2024, and he paid Kes. 476,000/- to the Petitioner and that upon the Petitioner’s refusal to complete the transaction, he lodged the complaint with the police.
18. The Interested Party’s position is that the dispute is not purely civil. He states that the Petitioner's conduct went beyond a civil disagreement and involved misrepresentation of a material fact in relation to the transaction.
19. The Interested Party further contends that the Petition discloses no constitutional or legal basis for interference with the 1st Respondent's mandate under Article 157of the Constitution of Kenya, 2010 and by dint of Section 193A of the Criminal Procedure Code, the existence of a civil dispute or remedy does not bar criminal investigation or prosecution arising from the same facts.
20. He further posits that the Petitioner has not established a prima facie case and that the issues of mens rea, ownership and contractual obligation raised by the Petitioner are matters of evidence for determination in the criminal suit and not constitutional adjudication.
Issues For Determination
21. Having considered the pleadings and submissions, I find that the following issues arise for determination:
(i) Whether the dispute between the Petitioner and the Interested Party is purely civil or commercial in nature, such as to place it beyond the reach of the criminal law;
(ii) Whether the criminal proceedings in Makadara Criminal Case No. E2847 of 2026 constitute an abuse of the court process and a violation of the Petitioner's rights under Articles 25(c), 27, 28, 29, 47, 48 and 50 of the Constitution of Kenya,2010;
(iii) Whether the 1st Respondent breached its constitutional duty under Article 157(11) of the Constitution of Kenya,2010 to prevent and avoid abuse of the legal process;
(iv) Whether the Petitioner has met the threshold for the grant of the conservatory orders, declaration, certiorari, prohibition and permanent injunction sought.
Analysis and Determination
Applicable principles
22. It is well settled that the jurisdiction of this Court to intervene in and halt ongoing criminal proceedings is exceptional and is to be exercised sparingly and with caution. In Hasit Shah & 2 others v Attorney General & 2 others [2013] KEHC 6611 (KLR), Lenaola J (as he then was), citing Githunguri v Republic [1986] KLR 1 and Mohammed Gulam & Another v Chief Magistrate's Court & Another [2006] eKLR, held that whilst the power of the High Court to intervene to stop a criminal prosecution must be exercised sparingly, the Court must always be ready to intervene to prevent any prosecution which is vexatious, oppressive, mala fide, frivolous, or taken up for an improper purpose such as harassment of a party or abuse of the process of court.
23. The test in Kangwana & 2 others v Director of Public Prosecutions & 5 others [2022] KEHC 170 (KLR), as applied in Paul Stuart Imison & Another v Attorney General & 2 Others, Petition No. 57 of 2009, provides a useful framework in the present matter. A prosecution is improper if (a) it is for a purpose other than upholding the criminal law; (b) it is meant to bring pressure to bear upon the accused to settle a civil dispute; (c) it is an abuse of the criminal process of the court; (d) it amounts to harassment contrary to public policy; or (e) it is in contravention of the accused's constitutional right to freedom.
24. Similarly, in Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] KEHC 1120 (KLR), Waki J (as he then was) held that “…So, it is not the purpose of a criminal investigation or a criminal charge or prosecution, to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other and ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice. No one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth.”
25. For the grant of conservatory orders, the applicable principles are those set out in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) and affirmed by the Supreme Court in Munya v Kithinji & 2 others [2014] KECA 876 (KLR) Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. An applicant must demonstrate the following; (a) an arguable prima facie case with a likelihood of success and a real danger of prejudice in the absence of the orders; (b) that the grant or denial of the orders will enhance constitutional values; (c) that absent the orders the petition would be rendered nugatory; and (d) that the public interest favours the grant of the orders.
26. These principles must, however, be read alongside Section 193A of the Criminal Procedure Code, which expressly permits the concurrent existence of civil and criminal proceedings arising from the same facts, and the provisions of Article 157 of the Constitution of Kenya,2010 that the Director of Public Prosecutions exercises prosecutorial power independently. It is therefore not sufficient for a Petitioner merely to point to a contractual relationship between himself and a complainant; he must, on the evidence, show that the criminal process has an ulterior motive.
(i) Whether the dispute is purely civil in nature
27. The Petitioner's position is that the transaction of 14th August 2024 was a straightforward commercial contract that he was, at the material time, with an interest in the unit, whose performance was frustrated by circumstances attributable to the NHC. On that premise, the case would indeed fall squarely within the principle in Mathlida Akinyi Oware v Republic [1989] KECA 59 (KLR), applying R v Dent [1975] 2 All E.R. 806, that inability to perform a contractual obligation after receipt of money cannot found a charge of obtaining by false pretence.
28. The documentary evidence on record, however, does not support that premise. The two letters from the NHC dated 9th June 2026 obtained independently by the investigating officer and separately exhibited by the Interested Party establish an evidentiary chronology that the Petitioner has neither controverted nor explained.
29. The Petitioner's conditional offer of 13th April 2023 lapsed for non-acceptance; the deposit was refunded to him on 7th September 2023, and the unit was re-offered to a third party, Fauzia Muthoni Wanjiku, in February on 21st May 2024. As at August 2024, when the Petitioner executed the sale agreement with the Interested Party, He did not have an interest in the unit.
30. On the material before this Court, the representation by the Petitioner to sell the unit to the interested party was, on its face, false at the time it was made because the Petitioner asserted a present and verifiable fact which was untrue, having received a refund of his deposit on the unit.
31. This distinguishes the present case, at least at the prima facie stage, from the decision of Mathlida Akinyi Oware v Republic [1989] KECA 59 (KLR). Those authorities are concerned with representations as to future conduct or performance or promises that later go unfulfilled, which the criminal law of false pretences does not ordinarily reach.
32. What is alleged in the present matter is a misrepresentation of an existing fact, that the Petitioner had a registered or beneficial interest in the property, made to induce the Interested Party to part with money. Whether that allegation is ultimately proved to the criminal standard, including proof of the Petitioner's knowledge and fraudulent intent at the time of contracting, is a matter for trial in the criminal court.
33. The existence of a civil case is not a bar to instituting a civil Claim against a party. See Section 193A of the Criminal Procedure Code. I therefore find that the dispute between the Petitioner and the Interested Party is not one that is purely civil or commercial in nature so as to place it beyond the reach of the criminal law. The Petitioner's representation of his ownership of the unit was, prima facie, a misrepresentation of an existing and verifiable fact at the time it was made, not a failed promise of future performance.
(ii) Whether the prosecution and institution of the criminal proceedings is an abuse of court process and a violation of the Petitioner's rights under Articles 25(c), 27, 28, 29, 47, 48 and 50 of the Constitution of Kenya,2010;
34. Applying the tests in Kangwana & 2 others v Director of Public Prosecutions & 5 others [2022] KEHC 170 (KLR) and Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] KEHC 1120 (KLR) I am not satisfied that the Petitioner has demonstrated, on a prima facie basis, that the prosecution is for a purpose other than upholding the criminal law, that it is designed merely to pressure him into settling a civil debt, or that it is otherwise vexatious, oppressive or mala fide.
35. The record before this court shows that the decision to charge followed independent investigation, the recording of witness statements, and independent verification of the allocation history of the property from the NHC, a public body with no interest in the outcome of either the criminal or any prospective civil proceedings.
36. This is materially different from a case in which a complainant, aggrieved by mere non-performance of a contract, reports the matter to the police to secure repayment. The investigation uncovered an independent evidentiary basis: a specific, falsifiable representation of ownership contradicted by NHC records, going to the existence of deception, which is the gravamen of the offence under Section 313 of the Penal Code.
37. I have also had regard to the Petitioner's contention that the Respondents did not place the ODPP's decision to charge before the Court. While the formal charging decision was not exhibited, its absence does not, in the circumstances of this case, give rise to an inference of an uninformed or improper decision to prosecute, given the cogent independent documentary evidence that was placed before the Court by the Further Affidavit of Sgt Amalla. The evidential threshold at this stage is not proof beyond reasonable doubt, but whether a reasonable and probable cause for prosecution is disclosed; on the material before me, it plainly is.
38. The Petitioner's partial refund of Kes. 130,050/- and his assertion of good faith do not defeat the prima facie case at this stage. At most, it bears on mitigation or on the trial court's assessment of intent. This is properly resolved through viva voce evidence and cross-examination at trial, not on affidavit evidence in these proceedings.
39. I am guided in this respect by the caution expressed in Kuria & 3 Others v Attorney General [2002] 2 KLR 69 and Njoroge & 2 Others v Directorate of Criminal Investigations & Another [2026] KEHC 1504 (KLR) the machinery of criminal justice ought not to be a pawn in personal or civil feuds, and prosecutors must act judiciously, objectively and without ulterior motive.
40. However, on the facts as they now stand disclosed, I do not find that the prosecution in this case has been shown, even prima facie, to be actuated by such ulterior motive. The independent corroboration from the NHC materially distinguishes this case from one resting solely on a complainant's unverified assertions.
41. I find that the Petitioner has not demonstrated, even on a prima facie basis, that the criminal proceedings in Makadara Criminal Case No. E2847 of 2026 are vexatious, oppressive, mala fide, or actuated by a collateral purpose to assist the Interested Party in private debt recovery. The criminal proceedings do not, on the material before this Court, constitute an abuse of the court process, nor has any violation of the Petitioner's rights under Articles 25(c), 27, 28, 29, 47, 48 or 50 of the Constitution of Kenya,2010 been established.
(iii) Whether the 1st Respondent breached its constitutional duty under Article 157(11) of the Constitution of Kenya,2010 to prevent and avoid abuse of the legal process;
42. Article 157(11) of the Constitution of Kenya,2010 empowers the Director of Public Prosecutions, in exercising his prosecutorial powers, to have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process.
43.On the evidence before the Court, the decision to charge followed a police inquiry that included the recording of witness statements and independent verification of facts central to the alleged deception with the NHC. I am unable to find, on this record, that the 1st Respondent abdicated duty under Article 157(11) of the Constitution of Kenya,2010 or acted as a mere instrument for private debt collection.
44. The authorities cited by the Petitioner, including Kemboi v Attorney General & Another [2026] KEHC 1070 (KLR), correctly state the principle that the DPP must act as a gatekeeper against the misuse of the criminal process for commercial grievances. On the facts presented in the present matter, that gatekeeping function was not abdicated.
45.I find that the 1st Respondent has not breached its constitutional duty under Article 157(11) of the Constitution of Kenya,2010.The decision to charge was preceded by independent investigation and verification of material facts with the National Housing Corporation, and there is no credible basis on this record to conclude that the 1st Respondent abdicated its gatekeeping function or allowed itself to be used as an instrument of private debt collection as claimed by the Petitioner.
(v) Whether the reliefs sought should be granted
46.It follows from the foregoing that the Petitioner has not established, at this stage, an arguable prima facie case with a likelihood of success, as required by Uhuru Secondary School (supra) and Gatirau Peter Munya (supra). While I accept that the Petitioner stands to face the ordinary rigours, anxiety and expense of a criminal trial should the matter proceed, this consequence is not the sort of irreparable prejudice contemplated by the authorities as warranting the exceptional intervention of this Court in an ongoing criminal process.
47. Every accused person faces the stress and stigma of trial. This alone cannot be the basis for constitutional intervention, or the exception would swallow the rule that prosecutorial discretion is to be respected without clear evidence of impropriety.
48. I bear in mind the guidance in Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) that procedural technicalities should not be used to defeat the ends of justice, and that courts must remain vigilant against the misuse of their own processes. That vigilance cuts both ways: this Court must be equally alert to the risk that its constitutional jurisdiction is converted into a routine avenue for persons facing plausible criminal charges to escape a lawfully instituted trial.
49. I have considered the Petitioner's claims under Articles 27, 28, 29 and 48 of the Constitution of Kenya,2010. These claims, in substance, depend on the primary contention that the prosecution is an abuse of process. Having found this contention unproven, this Court finds that the ancillary claims of discriminatory treatment, degrading treatment, and denial of access to justice equally fail.
50. The Petitioner's right to a fair trial under Article 50 of the Constitution of Kenya, 2010 remains fully protected before the trial court where he will be at liberty to cross-examine witnesses, tender evidence, and raise all available legal and factual defences in support of his position.
51. Having found that the Petitioner has not established an arguable prima facie case with a likelihood of success, that he has not demonstrated a risk of prejudice beyond the ordinary incidents of standing trial, and that the public interest does not favour the grant of the orders sought, I find and hold that the Petitioner has not met the threshold for the grant of a conservatory order, a declaration, an order of certiorari, an order of prohibition, or a permanent injunction.
52. For the reasons set out above, the Petition has not succeeded. The interim orders are discharged, and the Petition is dismissed with costs to the Respondents and Interested Party.
Dated and signed at Nairobi this 27th day of July 2026.