A. INTRODUCTION AND BACKGROUND
1. By a Notice of Motion dated 26th February 2026 and filed under Order 53 Rule 3 of the Civil Procedure Rules, 2010, Sections 8 and 9 of the Law Reform Act (Cap 26), Section 7 of the Fair Administrative Action Act, 2015, and Articles 22, 23, 47, 157(11) and 165(6) & (7) of the Constitution, the ex parte Applicant, Harenkumar Damji Mandavia, seeks:
a) an order of certiorari to quash the decision of the 1st Respondent to charge and/or prosecute him in Nakuru Chief Magistrate's Court Criminal Case No. E242 of 2026;
b) an order of prohibition restraining the 1st to 5th Respondents from arresting, harassing, charging or further prosecuting him in connection with the transaction in question;
c) a declaration that the decision to prosecute is an abuse of the criminal justice system and unconstitutional; and
d) costs.
2. The application is founded on the contention that the impugned prosecution arises from what is, in substance, a civil and dispute between the Applicant's company, KMQ Timber & Allied Industries Limited, and the 6th Respondent, Teresia Njoki Mutitu, over the supply of timber and payment therefore by cheque, a dispute already the subject of Small Claims Court proceedings at Nakuru (SCCCOMM No. E130 of 2025). The Applicant contends that the 1st Respondent has acted ultra vires Article 157(11) of the Constitution by resorting to criminal process to achieve what is properly a civil debt-recovery objective, that he has been charged personally for a corporate liability without any basis for lifting the corporate veil, and that his arrest and detention disregarded a disclosed medical condition.
3. The application is opposed vide a Replying Affidavit sworn on 2nd March 2026 by No. 87267 CPL Moses Ochieng, the Investigating Officer in Criminal Case No. E242 of 2026, sets out the basis of the investigations, the evidence gathered, and the process by which the 1st Respondent arrived at the decision to charge. The 1st Respondent's position is that the criminal charges are independently and lawfully founded on evidence disclosing the commission of specific offences, that due process was accorded to the Applicant at every stage, and that the application is a premature attempt to have this Court usurp the function of the trial court.
B. THE APPLICANT'S CASE
4. The grounds advanced in support of the Notice of Motion, summarised, are that:
i. the 1st Respondent failed to have regard to public interest, the interests of the administration of justice and the need to prevent abuse of legal process, as required by Article 157(11);
ii. the criminal process duplicates issues pending in the Small Claims Court and was instituted for the collateral purpose of coercing settlement of a civil debt;
iii. the Applicant was charged personally for a debt properly attributable to KMQ Timber & Allied Industries Limited, a distinct legal person, without evidence of personal fraud or criminal intent; the decision to charge constitutes administrative action reviewable under Article 47 and Section 7 of the Fair Administrative Action Act, and was arrived at without according the Applicant a fair, lawful and procedurally proper process; and
iv. the manner of the Applicant's arrest and detention was disproportionate and oppressive, and disregarded a disclosed medical condition.
5. No further affidavit was filed by or on behalf of the Applicant to controvert the specific factual averments in the Replying Affidavit of CPL Moses Ochieng.
C. THE RESPONDENTS' CASE
6. CPL Ochieng deposes that on 30th September 2025 a complaint was recorded vide OB No. 79/30/09/2025 by Teresia Njoki Mutitu alleging that the Applicant obtained timber valued at Kshs 1,040,000 and issued four cheques in payment, all of which were later dishonoured. Investigations are said to have established that the timber was delivered and its receipt acknowledged (annexure 'DN-1'); the cheques were drawn on an account of KMQ Timber & Allied Industries Limited, of which the Applicant is the sole director and shareholder (annexure 'CR-12'); the cheques (annexures 'BC1' to 'BC4') were returned unpaid on the specific instructions of the drawer stopping payment, rather than for want of funds simpliciter; and no part of the sum has been paid to the complainant to date.
7. It is further deposed that upon his arrest on 30th January 2026, the Applicant recorded a caution statement (annexure 'DSS-1') in which he admits having received timber from the complainant, admits that payment was not made, and admits ceasing communication with her. On the strength of this material, the Investigating Officer forwarded the file to the Office of the Director of Public Prosecutions, which independently evaluated the evidence pursuant to Article 157(6) of the Constitution and directed that the Applicant be charged with obtaining goods by false pretences contrary to Section 313 of the Penal Code and issuing a cheque without funds contrary to Section 316A(1)(c) of the Penal Code.
8. The Respondents depose that the Applicant was informed of the complaint, afforded an opportunity to record a statement, lawfully arrested, released on police cash bail and informed of his court date; that no medical complaint was raised or medical documentation produced at the time of arrest, processing or release; that the threshold of reasonable and probable cause for prosecution is met on the facts summarised above; and that the prosecution is not a vehicle for civil debt recovery but a response to conduct disclosing, on the face of the investigation file, ingredients of criminal offences to be tested at trial.
D. ISSUES FOR DETERMINATION
9. Having considered the Notice of Motion, the grounds and statutory statement in support, the Replying Affidavit and annexures, and the applicable law, the following issues arise for determination:
(a) What is the scope of this Court's judicial review jurisdiction over a decision by the 1st Respondent to charge a suspect, and does that jurisdiction extend to the merits of the decision to prosecute?
(b) Whether the decision to charge the Applicant is tainted by illegality, irrationality or procedural impropriety, or amounts to an abuse of the criminal process for a collateral (civil debt-recovery) purpose, within the meaning of Article 157(11) of the Constitution.
(c) Whether the prosecution of the Applicant personally, in circumstances touching on a company of which he is director and sole shareholder, is unlawful for want of a basis to disregard separate corporate personality.
(d) Whether the decision to charge, or the manner of the Applicant's arrest and detention, violated Article 47 of the Constitution and Section 7 of the Fair Administrative Action Act, 2015.
E. ANALYSIS AND DETERMINATION
i. Scope of judicial review of a decision to charge
10. The jurisdiction of this Court in judicial review is anchored in Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules, Article 165(6) and (7) of the Constitution, and, since 2015, Section 7 of the Fair Administrative Action Act. The Supreme Court, in Praxidis Namoni Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), has authoritatively settled that while the constitutional and statutory codification of judicial review permits a limited degree of merit-based scrutiny confined to uncontroverted evidence, judicial review has not been transformed into a full merits appeal, and a judicial review court does not sit as an appellate forum over the decision to prosecute. Disputed facts, the sufficiency and weight of evidence, and the elements of an offence are matters for the trial court, to be tested through viva voce evidence and cross-examination.
11. Under Article 157(6) and (10) of the Constitution, the 1st Respondent has the exclusive constitutional mandate to institute and undertake criminal proceedings, exercised independently and without the direction or control of any person or authority. That power is not, however, unfettered. Article 157(11) requires the 1st Respondent, in exercising it, 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. Consistently, the Supreme Court in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR, as adopted in Saisi (supra), set out guidelines for when interference is warranted, namely:
i. where continuance of the proceedings would amount to an abuse of court process, or quashing would secure the ends of justice;
ii. where there is a manifest legal bar to institution or continuance of the proceedings;
iii. where the allegations, taken at their highest, do not disclose the offence charged; or
iv. where there is no legal evidence, or the evidence adduced manifestly fails to prove the charge.
12. It follows that this Court's task is not to determine the Applicant's guilt or innocence, nor to weigh the ultimate sufficiency of the evidence to sustain a conviction, but to satisfy itself, on the uncontroverted material before it, whether the decision to charge falls within any of the above categories warranting intervention.
ii. Alleged abuse of process for a collateral civil purpose
13. It is well established, as the High Court held in Republic v Attorney General & 4 others Ex Parte Diamond Hashim Lalji & another [2014] eKLR, that the mere fact that the facts underlying a criminal charge may also found a civil claim is not, without more, a ground to stay or quash the criminal process. Concurrent civil and criminal proceedings arising from the same transaction are permissible, and Section 193A of the Criminal Procedure Code contemplates as much.
14. The Court of Appeal's decision in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR , on which the Applicant implicitly relies, is distinguishable. It concerned a prosecution revived after an unexplained twenty-year delay, following an earlier finding by the investigating agency itself that no criminal culpability was established, and successive resort to different investigative bodies after each had cleared the suspects, circumstances properly characterised as manipulation of process. No comparable history arises here.
15. On the uncontroverted evidence in the Replying Affidavit, the complaint was recorded within a reasonably short period of the alleged default, was investigated once, and was referred once to the Office of the Director of Public Prosecutions for independent evaluation under Article 157(6), resulting in a single charging decision. The existence of the Small Claims Court suit (SCCCOMM No. E130 of 2025), itself said to have concluded in a judgment against the Applicant, per his own statement annexed as 'DSS-1', does not, without more, establish that the criminal process was instituted to coerce settlement of that civil claim.
16. Similarly to the facts considered in Republic v Director of Public Prosecutions & another, Kanyi (ex parte applicant) [2024] KEHC 825 (KLR), the fact that a prosecution arises from what began as a commercial transaction does not, of itself, render the prosecution an abuse of process. The question is whether the material before the charging authority discloses a prima facie case of the specific offences charged.
17. The uncontroverted averments as to delivery and acknowledgment of the goods, cheques drawn and later dishonoured on the specific instruction of the drawer to stop payment, continued non-payment notwithstanding a civil judgment, cessation of communication with the complainant, and an admission by the Applicant of receipt of the goods and of non-payment, disclose, on their face, elements going to the offences of obtaining goods by false pretences and issuing a cheque without reasonable grounds to believe it would be honoured.
18. Whether those elements are ultimately made out to the criminal standard, and whether the stop-payment instruction admits of an innocent explanation, are matters going to the merits and are for the trial court alone to consider.
19. The Applicant has not, by way of affidavit evidence, controverted the facts deposed to by CPL Ochieng. Bare assertions in grounds and a statutory statement, unsupported by evidence, do not discharge the burden resting on a party alleging unconstitutional exercise of prosecutorial power.
20. On this material, the Court is unable to find that the institution or continuance of Criminal Case No. E242 of 2026 amounts to an abuse of the process of the court, that there is a manifest legal bar to its continuance, or that the allegations, taken at their highest, disclose no offence, or that there is no legal evidence supporting the charge.
iii. Personal prosecution and separate corporate personality
21. The Applicant's contention that he cannot be prosecuted personally for what is, in substance, a corporate debt conflates two distinct legal questions. The principle of separate legal personality, and the reluctance of courts to pierce the corporate veil absent fraud or impropriety, is well settled in the civil law of obligations and is decisive of who is liable to pay a corporate debt. It does not, however, immunise a natural person, including a company director, from personal criminal liability for his own acts, such as the personal drawing and issuance of a cheque, or representations personally made, merely because those acts were done in connection with the affairs of a company he controls.
22. Sections 313 and 316A of the Penal Code attach to the individual who does the act. The offence of issuing a cheque without reasonable grounds to expect payment is not answered by the fact that the account belongs to a company of which the signatory is sole director and shareholder.
23. Whether the Applicant, as the sole directing mind of KMQ Timber & Allied Industries Limited, personally bears the requisite mens rea is, again, a question for the trial court on the evidence, and not a bar to prosecution discernible at the judicial review stage.
iv. Article 47, Section 7 FAA Act, and manner of arrest and detention
24. The Applicant invokes Article 47 of the Constitution and Section 7(2)(a), (e), (f) and (k) of the Fair Administrative Action Act, asserting that he was not accorded a fair, lawful and procedurally proper process before the decision to prosecute.
25. On the uncontroverted evidence, the Applicant was informed of the complaint against him, given an opportunity to record a statement, which he did at length, arrested, released on police cash bail, and informed of his court date. No procedural irregularity of the kind contemplated by Section 7(2) of the Act has been demonstrated on affidavit.
26. As to the claim that the arrest and detention were disproportionate, oppressive and made in disregard of a disclosed medical condition, the Replying Affidavit deposes, without contradiction, that no medical complaint was raised and no medical documentation was produced at the time of arrest, processing or release. An unparticularised assertion of ill health, unsupported by any contemporaneous medical evidence or record of disclosure to the arresting or investigating officers, cannot found a finding of unconstitutional or oppressive conduct. To the extent that the Applicant considers the conduct of individual officers to have fallen short of lawful policing standards, the proper avenue for that specific grievance lies with the 1st Interested Party, the Independent Policing Oversight Authority, under its constitutive Act, and not, on this record, a basis to quash an otherwise lawfully founded decision to prosecute.
27. It is clear from material placed before this court that the Applicant has not demonstrated any illegality, irrationality, procedural impropriety or abuse of prosecutorial power of a kind warranting the intervention of this Court at the judicial review stage.
28. The application invites the Court to pre-empt the trial court's function of receiving evidence, testing it by cross-examination, and pronouncing on the guilt or innocence, a course foreclosed by the Supreme Court's guidance in Saisi (supra).
29. The proper and constitutionally sanctioned course is for the Applicant to submit to the jurisdiction of the trial court, where he shall enjoy the full protection of Article 50 of the Constitution.
30. In the end, the Notice of Motion dated 26th February 2026 is found to be without merit and is hereby dismissed.
31. Given that the application raised genuine questions on the exercise of constitutional prosecutorial power, each party shall bear its own costs of this application.
It is so ordered.
Dated, signed and delivered at Nakuru this 22 nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Jamleck/Rutoh C/A
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1. By a Notice of Motion dated 26th February 2026 and filed under Order 53 Rule 3 of the Civil Procedure Rules, 2010, Sections 8 and 9 of the Law Reform Act (Cap 26), Section 7 of the Fair Administrative Action Act, 2015, and Articles 22, 23, 47, 157(11) and 165(6) & (7) of the Constitution, the ex parte Applicant, Harenkumar Damji Mandavia, seeks:
a) an order of certiorari to quash the decision of the 1st Respondent to charge and/or prosecute him in Nakuru Chief Magistrate's Court Criminal Case No. E242 of 2026;
b) an order of prohibition restraining the 1st to 5th Respondents from arresting, harassing, charging or further prosecuting him in connection with the transaction in question;
c) a declaration that the decision to prosecute is an abuse of the criminal justice system and unconstitutional; and
d) costs.
2. The application is founded on the contention that the impugned prosecution arises from what is, in substance, a civil and dispute between the Applicant's company, KMQ Timber & Allied Industries Limited, and the 6th Respondent, Teresia Njoki Mutitu, over the supply of timber and payment therefore by cheque, a dispute already the subject of Small Claims Court proceedings at Nakuru (SCCCOMM No. E130 of 2025). The Applicant contends that the 1st Respondent has acted ultra vires Article 157(11) of the Constitution by resorting to criminal process to achieve what is properly a civil debt-recovery objective, that he has been charged personally for a corporate liability without any basis for lifting the corporate veil, and that his arrest and detention disregarded a disclosed medical condition.
3. The application is opposed vide a Replying Affidavit sworn on 2nd March 2026 by No. 87267 CPL Moses Ochieng, the Investigating Officer in Criminal Case No. E242 of 2026, sets out the basis of the investigations, the evidence gathered, and the process by which the 1st Respondent arrived at the decision to charge. The 1st Respondent's position is that the criminal charges are independently and lawfully founded on evidence disclosing the commission of specific offences, that due process was accorded to the Applicant at every stage, and that the application is a premature attempt to have this Court usurp the function of the trial court.
B. THE APPLICANT'S CASE
4. The grounds advanced in support of the Notice of Motion, summarised, are that:
i. the 1st Respondent failed to have regard to public interest, the interests of the administration of justice and the need to prevent abuse of legal process, as required by Article 157(11);
ii. the criminal process duplicates issues pending in the Small Claims Court and was instituted for the collateral purpose of coercing settlement of a civil debt;
iii. the Applicant was charged personally for a debt properly attributable to KMQ Timber & Allied Industries Limited, a distinct legal person, without evidence of personal fraud or criminal intent; the decision to charge constitutes administrative action reviewable under Article 47 and Section 7 of the Fair Administrative Action Act, and was arrived at without according the Applicant a fair, lawful and procedurally proper process; and
iv. the manner of the Applicant's arrest and detention was disproportionate and oppressive, and disregarded a disclosed medical condition.
5. No further affidavit was filed by or on behalf of the Applicant to controvert the specific factual averments in the Replying Affidavit of CPL Moses Ochieng.
C. THE RESPONDENTS' CASE
6. CPL Ochieng deposes that on 30th September 2025 a complaint was recorded vide OB No. 79/30/09/2025 by Teresia Njoki Mutitu alleging that the Applicant obtained timber valued at Kshs 1,040,000 and issued four cheques in payment, all of which were later dishonoured. Investigations are said to have established that the timber was delivered and its receipt acknowledged (annexure 'DN-1'); the cheques were drawn on an account of KMQ Timber & Allied Industries Limited, of which the Applicant is the sole director and shareholder (annexure 'CR-12'); the cheques (annexures 'BC1' to 'BC4') were returned unpaid on the specific instructions of the drawer stopping payment, rather than for want of funds simpliciter; and no part of the sum has been paid to the complainant to date.
7. It is further deposed that upon his arrest on 30th January 2026, the Applicant recorded a caution statement (annexure 'DSS-1') in which he admits having received timber from the complainant, admits that payment was not made, and admits ceasing communication with her. On the strength of this material, the Investigating Officer forwarded the file to the Office of the Director of Public Prosecutions, which independently evaluated the evidence pursuant to Article 157(6) of the Constitution and directed that the Applicant be charged with obtaining goods by false pretences contrary to Section 313 of the Penal Code and issuing a cheque without funds contrary to Section 316A(1)(c) of the Penal Code.
8. The Respondents depose that the Applicant was informed of the complaint, afforded an opportunity to record a statement, lawfully arrested, released on police cash bail and informed of his court date; that no medical complaint was raised or medical documentation produced at the time of arrest, processing or release; that the threshold of reasonable and probable cause for prosecution is met on the facts summarised above; and that the prosecution is not a vehicle for civil debt recovery but a response to conduct disclosing, on the face of the investigation file, ingredients of criminal offences to be tested at trial.
D. ISSUES FOR DETERMINATION
9. Having considered the Notice of Motion, the grounds and statutory statement in support, the Replying Affidavit and annexures, and the applicable law, the following issues arise for determination:
(a) What is the scope of this Court's judicial review jurisdiction over a decision by the 1st Respondent to charge a suspect, and does that jurisdiction extend to the merits of the decision to prosecute?
(b) Whether the decision to charge the Applicant is tainted by illegality, irrationality or procedural impropriety, or amounts to an abuse of the criminal process for a collateral (civil debt-recovery) purpose, within the meaning of Article 157(11) of the Constitution.
(c) Whether the prosecution of the Applicant personally, in circumstances touching on a company of which he is director and sole shareholder, is unlawful for want of a basis to disregard separate corporate personality.
(d) Whether the decision to charge, or the manner of the Applicant's arrest and detention, violated Article 47 of the Constitution and Section 7 of the Fair Administrative Action Act, 2015.
E. ANALYSIS AND DETERMINATION
i. Scope of judicial review of a decision to charge
10. The jurisdiction of this Court in judicial review is anchored in Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules, Article 165(6) and (7) of the Constitution, and, since 2015, Section 7 of the Fair Administrative Action Act. The Supreme Court, in Praxidis Namoni Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR), has authoritatively settled that while the constitutional and statutory codification of judicial review permits a limited degree of merit-based scrutiny confined to uncontroverted evidence, judicial review has not been transformed into a full merits appeal, and a judicial review court does not sit as an appellate forum over the decision to prosecute. Disputed facts, the sufficiency and weight of evidence, and the elements of an offence are matters for the trial court, to be tested through viva voce evidence and cross-examination.
11. Under Article 157(6) and (10) of the Constitution, the 1st Respondent has the exclusive constitutional mandate to institute and undertake criminal proceedings, exercised independently and without the direction or control of any person or authority. That power is not, however, unfettered. Article 157(11) requires the 1st Respondent, in exercising it, 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. Consistently, the Supreme Court in Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR, as adopted in Saisi (supra), set out guidelines for when interference is warranted, namely:
i. where continuance of the proceedings would amount to an abuse of court process, or quashing would secure the ends of justice;
ii. where there is a manifest legal bar to institution or continuance of the proceedings;
iii. where the allegations, taken at their highest, do not disclose the offence charged; or
iv. where there is no legal evidence, or the evidence adduced manifestly fails to prove the charge.
12. It follows that this Court's task is not to determine the Applicant's guilt or innocence, nor to weigh the ultimate sufficiency of the evidence to sustain a conviction, but to satisfy itself, on the uncontroverted material before it, whether the decision to charge falls within any of the above categories warranting intervention.
ii. Alleged abuse of process for a collateral civil purpose
13. It is well established, as the High Court held in Republic v Attorney General & 4 others Ex Parte Diamond Hashim Lalji & another [2014] eKLR, that the mere fact that the facts underlying a criminal charge may also found a civil claim is not, without more, a ground to stay or quash the criminal process. Concurrent civil and criminal proceedings arising from the same transaction are permissible, and Section 193A of the Criminal Procedure Code contemplates as much.
14. The Court of Appeal's decision in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR , on which the Applicant implicitly relies, is distinguishable. It concerned a prosecution revived after an unexplained twenty-year delay, following an earlier finding by the investigating agency itself that no criminal culpability was established, and successive resort to different investigative bodies after each had cleared the suspects, circumstances properly characterised as manipulation of process. No comparable history arises here.
15. On the uncontroverted evidence in the Replying Affidavit, the complaint was recorded within a reasonably short period of the alleged default, was investigated once, and was referred once to the Office of the Director of Public Prosecutions for independent evaluation under Article 157(6), resulting in a single charging decision. The existence of the Small Claims Court suit (SCCCOMM No. E130 of 2025), itself said to have concluded in a judgment against the Applicant, per his own statement annexed as 'DSS-1', does not, without more, establish that the criminal process was instituted to coerce settlement of that civil claim.
16. Similarly to the facts considered in Republic v Director of Public Prosecutions & another, Kanyi (ex parte applicant) [2024] KEHC 825 (KLR), the fact that a prosecution arises from what began as a commercial transaction does not, of itself, render the prosecution an abuse of process. The question is whether the material before the charging authority discloses a prima facie case of the specific offences charged.
17. The uncontroverted averments as to delivery and acknowledgment of the goods, cheques drawn and later dishonoured on the specific instruction of the drawer to stop payment, continued non-payment notwithstanding a civil judgment, cessation of communication with the complainant, and an admission by the Applicant of receipt of the goods and of non-payment, disclose, on their face, elements going to the offences of obtaining goods by false pretences and issuing a cheque without reasonable grounds to believe it would be honoured.
18. Whether those elements are ultimately made out to the criminal standard, and whether the stop-payment instruction admits of an innocent explanation, are matters going to the merits and are for the trial court alone to consider.
19. The Applicant has not, by way of affidavit evidence, controverted the facts deposed to by CPL Ochieng. Bare assertions in grounds and a statutory statement, unsupported by evidence, do not discharge the burden resting on a party alleging unconstitutional exercise of prosecutorial power.
20. On this material, the Court is unable to find that the institution or continuance of Criminal Case No. E242 of 2026 amounts to an abuse of the process of the court, that there is a manifest legal bar to its continuance, or that the allegations, taken at their highest, disclose no offence, or that there is no legal evidence supporting the charge.
iii. Personal prosecution and separate corporate personality
21. The Applicant's contention that he cannot be prosecuted personally for what is, in substance, a corporate debt conflates two distinct legal questions. The principle of separate legal personality, and the reluctance of courts to pierce the corporate veil absent fraud or impropriety, is well settled in the civil law of obligations and is decisive of who is liable to pay a corporate debt. It does not, however, immunise a natural person, including a company director, from personal criminal liability for his own acts, such as the personal drawing and issuance of a cheque, or representations personally made, merely because those acts were done in connection with the affairs of a company he controls.
22. Sections 313 and 316A of the Penal Code attach to the individual who does the act. The offence of issuing a cheque without reasonable grounds to expect payment is not answered by the fact that the account belongs to a company of which the signatory is sole director and shareholder.
23. Whether the Applicant, as the sole directing mind of KMQ Timber & Allied Industries Limited, personally bears the requisite mens rea is, again, a question for the trial court on the evidence, and not a bar to prosecution discernible at the judicial review stage.
iv. Article 47, Section 7 FAA Act, and manner of arrest and detention
24. The Applicant invokes Article 47 of the Constitution and Section 7(2)(a), (e), (f) and (k) of the Fair Administrative Action Act, asserting that he was not accorded a fair, lawful and procedurally proper process before the decision to prosecute.
25. On the uncontroverted evidence, the Applicant was informed of the complaint against him, given an opportunity to record a statement, which he did at length, arrested, released on police cash bail, and informed of his court date. No procedural irregularity of the kind contemplated by Section 7(2) of the Act has been demonstrated on affidavit.
26. As to the claim that the arrest and detention were disproportionate, oppressive and made in disregard of a disclosed medical condition, the Replying Affidavit deposes, without contradiction, that no medical complaint was raised and no medical documentation was produced at the time of arrest, processing or release. An unparticularised assertion of ill health, unsupported by any contemporaneous medical evidence or record of disclosure to the arresting or investigating officers, cannot found a finding of unconstitutional or oppressive conduct. To the extent that the Applicant considers the conduct of individual officers to have fallen short of lawful policing standards, the proper avenue for that specific grievance lies with the 1st Interested Party, the Independent Policing Oversight Authority, under its constitutive Act, and not, on this record, a basis to quash an otherwise lawfully founded decision to prosecute.
27. It is clear from material placed before this court that the Applicant has not demonstrated any illegality, irrationality, procedural impropriety or abuse of prosecutorial power of a kind warranting the intervention of this Court at the judicial review stage.
28. The application invites the Court to pre-empt the trial court's function of receiving evidence, testing it by cross-examination, and pronouncing on the guilt or innocence, a course foreclosed by the Supreme Court's guidance in Saisi (supra).
29. The proper and constitutionally sanctioned course is for the Applicant to submit to the jurisdiction of the trial court, where he shall enjoy the full protection of Article 50 of the Constitution.
30. In the end, the Notice of Motion dated 26th February 2026 is found to be without merit and is hereby dismissed.
31. Given that the application raised genuine questions on the exercise of constitutional prosecutorial power, each party shall bear its own costs of this application.
It is so ordered.
Dated, signed and delivered at Nakuru this 22 nd day of September, 2026.
J. K. SERGON
JUDGE
In the presence of :
Jamleck/Rutoh C/A
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