On 3 rd April 2024, the Applicants were granted leave to file these Judicial Review proceedings. The substantive Notice of Motion is dated 10 th April 2024, brought under Order 53 Rules 3(1)and (3) and 4(1) of the Civil Procedure Rules, 2010 , Section 3A of the Civil Procedure Act and Sections 8 and 9 of the Law Reform Act.
The applicants seek an order of Certiorari quashing the decision of the 1 st Respondent herein, Director of Public Prosecutions to charge the Ex Parte Applicants with the offences of conspiracy to defraud, making false document, obtaining registration by false pretences and abuse of office. The charges are before the Nairobi Chief Magistrate’s Court, Criminal Case No, E271 OF 2024 (R VS Diana Njeri Muiyuro & 9 others) before the 2 nd Respondent.
The Applicants also seeks an order of prohibition against the Respondents herein from proceeding with the intended prosecution in Nairobi Criminal Case No E271 of 2024 (R vs. Diana Njeri Muiyuro& 9 others).
The applicants further pray for costs of and incidental to these proceedings to be borne by the 1 st Respondent and also for any such other, further, or incidental orders or directions as the Honourable Court may deem just and expedient in the circumstances.
The grounds upon which the judicial review orders are sought are that the 11 th Ex parte Applicant is the registered proprietor of land comprising L.R NO 209/10211 I.R no 231055/1 as evidenced by the certificate of official search attached to the affidavit verifying the facts of the application.
A brief background of the events leading to these proceedings as deposed by Ex parte Applicants is that on 6 th February 2019, the 11 th Ex Parte Applicant Mwadi Women Entrepreneurs Limited was allocated L.R No 209/10211 vide letter of allotment dated 6 th February 2019. As a condition of acceptance of the said allotment, the 11 th Ex parte Applicant paid the standard premium of Kshs. 3,801,150/=.
That subsequently, the survey process was undertaken and Deed Plan No. 446961 was issued. Thereafter, the 11 th Ex parte Applicant was issued with the certificate of title and as such, the 11 th Ex Parte Applicant has been paying Land Rates.
The Ex parte Applicants state that by the Judgement of Hon D.W Mburu in CMCC MISC Application No. E010 OF 2022 (O.S) Mwadi Women Entrepreneurs Ltd vs Al -Haiee Investment Limited & Others, the 11 th Ex parte applicant’s ownership was confirmed.
According to the Applicants, the Interested Party who is the complainant in the intended criminal proceedings was dissatisfied with the judgement and filed a review which was unmerited and decided to lodge a fresh suit in the Environment and Land Court ELCLC E009 OF 2023 ; Reality Brokers Limited vs Mwadi entrepreneurs &others under certificate of urgency and was issued with a temporary injunction staying the implementation and execution of subordinate court judgement.
That on 12 th March, 2024, the 1 st and 2 nd Applicants herein were arrested without being summoned to appear by the DCI being summoned to appear by the DCI where they were interrogated and got arrested for a suspected offence of conspiracy to defraud contrary to section 317 of The Penal Code, making a false document contrary to section 347(d)(1) of The Penal Code, obtaining registration by false pretences contrary to section 320 of The Penal Code and abuse of office contrary to section 10(1) of The Penal Code.
The Applicants argue that after incessant pleas and request they were released on a police cash bail and were told to appear to plead on 13 th March 2024 in Nairobi Criminal Case No. E271 of 2024 (R vs. Diana Njeri Muiyuro & 9 others). They further state that the other Applicants were served with summons via their WhatsApp to appear in court for plea on 13 th March 2024. The plea taking was however, differed to 4 th April 2024. The Applicants confirm that they managed to get a copy of the charge sheet though the same had not been formally handed to them as the plea was differed.
The Ex parte Applicant’s contend that the impugned decision infringes on their fundamental rights and freedoms under inter alia Articles 27, 40, 47, 48 49 and 50 of the Constitution of Kenya, 2010 and sections 24, 25, 26, 79 and 80 of the Land Registration Act, 2012.
It is the Applicants’ case that it is unreasonable to charge them for the offences of Conspiracy to Defraud in relation to a registration of Title of Deed for land known as L.R NO 209/10211, which is the subject of an ownership contestation in ELCLC E009 OF 2023 Reality Brokers Limited vs Mwadi entrepreneurs & others.
According to the Applicants, the intended decision to charge them for the said offences is a perfect case of abuse of power and discretion and is in total disregard to the interest of the administration of justice by the 1 st and 2 nd Respondents as set out under Articles 157 and 244 of the Constitution of Kenya, 2010, respectively.
The Ex parte Applicants also filed a Supplementary Affidavit sworn on 26 th June 2024 by the 6 th Ex parte Applicant, in a rejoinder to the replying affidavit filed by the respondents. In the affidavit, it is deposed that in the said affidavit PC Antony Mwaura does not address the issue of the existence of a Judgment of the Lower Court.
It is the Ex parte Applicants’ case that on instructions of the DCI, on 2 nd August 2023, PC Mwaura the Investigating officer and officers at the Lands Fraud Unit proceeded to the impugned land and arrested the 11 th Applicant’s guards essentially removing them from the property and aided the Interested Party to take possession. The 11 th Ex parte Applicant is said to have protested the move in a protest letter to the Inspector General of Police, but that to date, the DCI has never addressed this issue of direct involvement and conflict.
The Ex parte Applicants depose further that the DCI has sought to take a position to charge them without interrogating the Interested Party’s root of ownership of the land in question. Further, that on 24 th April, 2024, the Interested Party paid Kshs 8,000,000/= as stamp duty to seek to validate its title as being legitimate.
It is deposed that it is now evident more than ever that the Interested Party has no title within the meaning of the Land Registration Act having purported to obtain title on 1 st April, 2019 and paying stamp duty on 24 th April, 2024, 6 years after the fact and in the subsistence of these proceedings.
According to the Ex parte Applicants, PC Mwaura has not produced supporting documents in the form of wire transfers or acknowledgment receipts from the vendor and this is a testament of the vagueness in the investigations aimed at sanitizing the interested party’s fraudulent title document.
It is the 6 th Ex parte Applicant’s deposition that the 10 th Ex parte Applicant on 5 th April, 2024 sought a review of the 1 st Respondent’s decision to charge and a further review was sought by the 10 th Ex parte Applicant on 19 th June, 2024 in view of the purported stamp duty payment. Subsequently, that the 1 st Respondent in its letter of 24 th June, 2024 is said to have acceded to the request and directed the DCI to carry out further investigations.
The Ex parte Applicants further aver in their depositions that the investigating officer purported to only serve summons to the 10 th Ex-Parte Applicant after the Criminal Proceedings had been filed. Further, that 10 th Ex Parte Applicant was never called through the Chief Land Registrar or personally to record a statement.
It is deposed that the valuation of the parcel of land was never undertaken in blatant disregard of Section 10A of the Stamp Duty Act Cap 480, which therefore follows that stamp duty was never remitted at the time that the alleged transfer dated 12 th March 2019 was allegedly registered. Further, that there are two transfer instruments one that was provided to the investigating officer and the other that was filed before the Environment and Land Court by the interested party.
The Applicants also maintain that without payment of stamp duty, the illegal registration of the purported transfer, which is not known, was invalidated as per Regulation 16 of the Land Registration Act No. 3 of 2012. Additionally, that the invalidated registration is subject to the provisions of Section 79(2) where the Land Registrar has powers to rectify an entry where the document has been obtained by fraud which is the case. They also assert that at the time that the 10 th Ex Parte Applicant cancelled the registration, stamp duty had not been remitted as required by the law.
It is also averred in deposition that Bona Vacantia as is referred to by PC Mwaura does not serve the purpose of paving way to begin the process of registration. Rather, that it only reverts land back to the government.
According to the applicants, the corrigendum gazette notice relied upon by the investigating officer to reverse the NLC’s earlier findings is unlawful. They cite Regulation 29(3) of the National Land Commission (Review of Grants and Disposition of Public Land) Regulations, which limit corrigenda to the correction of typographical errors and prohibits their use to alter substantive findings or to confer ownership.
They also invoke Regulation 30 of the same Regulations, which requires that any challenge to the National Land Commission findings be made by lodging an appeal within 14 days. The applicants maintain that there is no use of terms such as " protest" or " objection" in this context. They further assert that Eco Bank, being the registered proprietor and the subject of National Lands Commission's investigations, was the proper party to lodge any appeal not Realty Brokers Ltd and that Eco Bank initially disclaimed knowledge of the land, a position it has since reversed without explanation.
The applicants also state that the investigating officer failed to clarify whether the original allotment was ever cancelled before the corrigendum was published, which they say implies that the allotment remains valid. They also contend that the officer relied on legally unsupported assumptions, including an alleged timeline for making an entry/registration of a gazette notice on a title or issuance of a certificate of title. They argue that no law prescribes a time limit for such registration and invite the officer to produce any legal authority to that effect.
Moreover, the applicants allege selective and biased conduct by the investigating officer, who chose to charge officers from the State Department of Lands while excluding those from the NLC, even though the NLC issued the relevant gazette notices. They question the authenticity of documents relied upon in the investigations, noting that the said documents were not verified by any public body or by Eco Bank and were provided solely by the complainant.
The applicants assert that the legality of the land allocation and any claims of fraud fall within the jurisdiction of the Environment and Land Court, which is the only court competent to determine such issues and recommend further legal action. They rely on Article 157(11) of the Constitution to support their argument that the court has the power to supervise prosecutorial discretion and prevent abuse of legal process. In their view, the investigations and prosecution mounted against them are malicious, politically motivated and not in the public interest. They assert that these proceedings are being used to oppress them and to advance the interests of a complainant who has committed illegal acts without consequence.
The Applicants also filed written submissions dated 16 th May 2024 to support their averments and depositions, relying on various court decisions.
In their submissions, they rely on the case of Judicial Review No. E062 of 2023 Fredrick Kimemia Kimani vs. DPP & Others 2024 eKLR where the court held that a party seeking judicial review must demonstrate and prove that the prosecution and those charged with the responsibility of making the decisions to charge acted in an unreasonable manner.
It is also their submission that as was held in the case of Meixuer & Another vs Attorney General (205)2 KLR 189 the role of judicial review is to consider the decision-making process.
They also rely on the case of Republic v Dakes (1986) ISCR 103 , where the Supreme Court of Canada established a constitutional threshold for assessing the legality of offences and arrests in relation to Charter rights. The Court held that an offence must be materially connected to its objective and must not be arbitrary, unfair or based on irrational considerations. Secondly that even if there is a rational connection to a legitimate objective, the offence must impair rights or freedoms as minimally as possible. Thirdly, that there must be proportionality between the limiting effects of the offence on the right or freedom and the importance of the objective being pursued.
The Ex Applicants further rely on the case of Keroche Industries Ltd v Kenya Revenue Authority & 5 Others (2007) 2 KLR , where the court emphasized the importance of the rule of law and procedural safeguards in the exercise of state power.They submit that to arrest, detain or investigate must be carried out within constitutionally permissible parameters.
The rely on the cases of Chrispine Otieno Caleb vs. Attorney General [2014] eKLR where the court was guided by the findings of the judges of the East Africa Court of Appeal in Mbowa vs East Mengo District Administration [1972] EA 352 and the case of Patrick Nyamuke Etori vs National Police Service Commission & 2 Others [2019] eKLR and held that to establish a claim for malicious prosecution, one must demonstrate that the criminal proceedings were initiated without any lawful justification.
The Ex pare Applicants further submit that there can be no justification for the criminal investigations and prosecution on a matter of a lesser magnitude than that pursued through civil proceedings. They rely on the cases of Jared Benson Kangwana v Attorney General Misc. Application Nos 446 of 1996, Vincent Kibiego Maina v the Attorney General Misc. Application Nos 839 and 1085 of 1999 (UR) and Samuel Kamau Macharia & Another V Attorney General & Another, Misc. Application No. 356 of 2006 (UR) for the proposition that a civil matter cannot be the foundation of a criminal charge.
The Applicants submit that while they agree that it is now settled law that the existence of a civil suit is no bar to criminal proceedings or investigations, the commencement of the criminal proceedings in this case is meant to force them to submit to the civil claim.
Reliance is also placed on the case of Republic v Director of Public Prosecutions ex parte Praxidis Namoni Saisi (2016) eKLR and Bitange Ndemo v Director Public Prosecutions & 4 others (2016) eKLR , where the courts held that failing to consider available information and exculpatory evidence before prosecution may indicate malice and abuse of process.
They also rely on the cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR ,where the courts outlined instances warranting review of the DPP’s discretion, including abuse of power, acting for improper purposes, irrationality, and breach of fairness.
It is also their submission that instituting criminal charges in a matter that is essentially civil in nature, rather than pursuing civil remedies, violates the right to a fair hearing under Article 50 of the Constitution. The Applicants rely on Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR , to support the use of prohibition orders where jurisdiction is exceeded.
Reliance is also placed on the case of Njuguna S. Ndung’u v Ethics & Anticorruption Commission (EACC) & 3 Others (2018) eKLR , where the court recognized that prosecution motivated by ulterior purposes justifies scrutiny. As such, the Applicants contend that the intended prosecution is malicious, irrational, and contrary to the Fair Administrative Action Act.
The 1 st Respondent’s case
The 1 st Respondent filed a Replying Affidavit sworn on 29 th May 2024 by PC Anthony Mwaura one of the investigating officers in Milimani CMCR No.E271 of 2024.
In the affidavit, PC Mwaura deposes in opposition to the application, which alleges violation of the Applicants’ rights under Articles 27, 40, 47, 48, 49, 50, 157, and 244 of the Constitution following their arrest and arraignment in Republic v Diana Njeri Muiyuro & 9 Others , Milimani Criminal Case No. E271 of 2024.
The deponent states that on 1 st and 7 th February 2022, the Directorate of Criminal Investigations (DCI), Land Fraud Investigations Unit, received complaints from Diro Advocates and Bill Simba & Associates on behalf of Mr. James Mugoya Isabirye and Mwadi Women Entrepreneurs Limited, each claiming ownership of LR No. 209/10211 but under different IR Numbers 69353 and 231055 respectively.
PC Mwaura depones that investigations conducted revealed that James Mugoya Isabirye, Director of Realty Brokers Limited and an Interested Party in these proceedings, purchased the land from East African Building Society and that the transfer was delayed due to a missing Deed File at Ardhi House, during which period, the Society transitioned into East African Building Society Bank and later into Eco Bank Kenya Limited. The latter later executed Deeds of Indemnity to facilitate the transfer, which was effected on 12 th March 2019, registering Realty Brokers Limited as the owner of the impugned parcel of land.
He also deposes that when the Applicants were invited to demonstrate their ownership, they stated that they had raised concerns with the National Land Commission on 14 th April and 28 th June 2016 regarding a fake title to the same parcel.
That on 17 th July 2017, NLC published Gazette Notice No. 6862, declaring the land parcel a bona vacantia - “allocation was to a legal person who cannot be found” and that based on this declaration, the Applicants initiated steps to have the parcel registered in favour of the 11 th Applicant and were issued with an allotment letter dated 6 th February 2019, followed by a lease and certificate of title LR. No.209/10211 IR No. 231055.
However, that Realty Brokers Limited challenged the Gazette Notice, prompting NLC to publish a Corrigendum Gazette Notice No. 1013 on 13 th January 2018, which reaffirmed Realty Brokers Limited’s ownership. That despite this, the 9 th Applicant went ahead to issue a lease to the 11 th Applicant on 2 nd June 2021, and the 10 th Applicant registered Gazette Notice No.6862 on 16 th May 2019, more than a year after the corrigendum.
It is deposed in contention that one S.K. Mburugu, a former Land Administration Officer at NLC, denied authoring the allotment letter dated 6 th February 2019 and upon forensic examination of the said letter, it became apparent that the letter was a forgery.
That following conclusion of investigations, the matter was forwarded to the 1 st Respondent on 30 th January 2024, with recommendations that the applicants be charged and that on 19 th February 2024, the 1 st Respondent directed that 1 st to 7 th Applicants be charged with conspiracy to defraud, forgery, and obtaining registration by false pretenses, and that 9 th and 10 th Applicants be charged with conspiracy and abuse of office.
That the charges were filed in Republic v Diana Njeri Muiyuro & 9 Others, Criminal Case No. E271 of 2024 , and pleas by the 1 st ,2 nd ,3 rd ,4 th ,5 th and 8 th were taken on 17 th April 2024 while the remaining Applicants were expected to take plea on 3 rd June 2024.
The Respondents contend that the investigations and prosecution were carried out lawfully and within the powers conferred by law. That the Applicants were afforded an opportunity to present their side and did so by recording statements. Further, that the issues raised by the Applicants are factual and should be determined by the trial court.
The Respondents further argue that there is no evidence of discrimination, violation of constitutional rights, bad faith, or procedural impropriety. Further, that the application amounts to an abuse of court process and an attempt to use the High Court to subvert the criminal justice process. It is also the 1 st Respondent’s deposition that the issues in dispute are within the jurisdiction of the criminal trial court and do not justify interference by the High Court.
It is also contended that the application seeks to use the court to conduct a pretrial assessment of evidence, which is inappropriate and that the High Court should not interfere in the absence of exceptional circumstances such as bad faith, dishonesty, or abuse of process. Further, that mechanisms exist within the criminal procedure and the Constitution to protect the Applicants’ rights at trial.
The Respondents conclude that the Applicants have not demonstrated that they are unlikely to receive a fair trial or that the trial would be conducted otherwise than in accordance with the law. The Respondents further state that the application is filed in bad faith, misconceived, and intended to defeat the course of justice. The Respondents pray that the application herein be dismissed with costs and that Republic v Diana Njeri Muiyuro & 9 Others, Criminal Case No. E271 of 2024, be allowed to proceed to its logical conclusion.
The 1 st Respondent also filed written submissions dated 6 th June 2024.
The Respondent submits that the Applicants’ arraignment was lawful and it followed due process. Also, that under Article 157(6) of the Constitution, the Director of Public Prosecutions (DPP) is mandated to institute and undertake criminal proceedings before any court except a court martial.
The Respondent relies on the case of Pauline Raget Adhiambo Agot v DPP & 5 Others (2010) Petition No. 446 of 2015 , where the court is said to have affirmed that the ODPP is free from interference and that only the DPP directs the police to investigate crime.
Reliance is also placed in the case of Republic v The Commissioner of Police & Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011 , where the court emphasized that police must investigate complaints once made and only need reasonable suspicion to prefer charges.
The Respondents also referred to Article 157(4) of the constitution which empowers the DPP to direct the Inspector-General of Police to investigate allegations of criminal conduct and Article 157(11) which requires the DPP to consider the public interest, administration of justice and prevent abuse of legal process.
According to the 1 st Respondent, the arraignment of the Petitioners followed due process, the DPP was presented with a full investigative file and made a considered decision to charge, consistent with the Constitution, ODPP Act 2012, and the Decision to Charge Guidelines (2019). Further, that investigations by the DCI established reasonable suspicion, justifying the referral to the DPP for review and prosecution directions, consistent with Michael Monari case (supra).
The 1 st Respondent also relies on the case of Cascade Company Limited v Kenya Association of Music Production (KAMP) & Others Petition No. 7 of 2014 , where the court held that as long as the enabling legislation is constitutional, actions by the ODPP and DCI are lawful unless shown to be ultra vires or in breach of their statutory mandate.
The 1 st Respondent also relies on Section 193A of the Criminal Procedure Code which provides that civil proceedings may run concurrently with criminal matters, and the existence of civil proceedings is not a ground to stay criminal processes.
The Applicants it is submitted, have not shown that the DPP acted contrary to public interest, administration of justice, or failed to prevent abuse of process.
It is also submitted that while the Applicants have the right to not face unwarranted criminal proceedings, the DPP has a public duty to prosecute offences and to ensure accountability. This balance, according to the 1 st Respondent, is recognized by the law and courts. This principle, it is submitted was underscored in Maina & 4 Others v Director of Public Prosecutions & 4 Others (Constitutional Petition E106 & 160 of 2021) KEHC 15 (KLR).
Regarding any alleged violation of the Applicants’ constitutional rights in initiating charges, the 1 st Respondent submits that the principles in William and Others v Spautz [1993] 2 LRC 659 highlight that courts should exercise their jurisdiction to try criminal charges unless justice demands otherwise.
It is also submitted that it is an established principle that a party alleging breach of fundamental rights must clearly state the precise rights alleged to be infringed and provide evidence as was held by the court in the case of in Leonard Otieno v Airtel Kenya Limited [2018] eKLR, where the court is further said to have reiterated that decisions on constitutional violations must be based on clear evidence, not mere assertions or hypotheses. This was also the position in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and in Mumo Matemo v Trusted Society of Human Rights Alliance [2014] eKLR .
In conclusion, the 1 st Respondent submits that fundamental rights are not absolute and must be balanced against the rights of others and the public interest. It is submitted that the Applicants have not clearly indicated which rights have been breached beyond listing constitutional articles. Also, that they have not demonstrated any violation warranting the court to exercise its powers to grant the orders sought.
The Interested Party’s Response
The Interested Party filed a Replying Affidavit sworn on 12 th July 2024 by James Isabirye Mugoya and written submissions dated 8 th July 2024.
It is the Interested Party’s case that contrary to the Applicants’ assertions in Paragraph 4 of the Verifying Affidavit dated 2 nd April 2024 and Paragraph 1 of the grounds set out in the Statutory Statement dated 2 nd April 2024, none of the Applicants are registered as owners of the Parcel of Land Number L.R 209/10211 IR 69353.
The Interested Party deposes that on 8 th February 2006, they entered into an Agreement for Sale with Ecobank Limited for the suit property, which was later formalized by a Deed of Indemnity in 2018 to address a lost land register. Subsequently, Ecobank transferred full ownership rights to the Interested Party on 12 th March 2019, and the Interested Party became the registered proprietor, holding a valid title to the property.
The Interested Party states that it intended to develop the land and applied for various approvals. That in February 2022, the 11 th Applicant lodged a complaint with the Directorate of Criminal Investigations (DCI), alleging illegal occupation by the Interested Party. The Interested Party also lodged complaints regarding interference by the Applicants. It is deposed that there have been various Gazette Notices affirming its ownership, exposing attempts by the Applicants to fraudulently alter title documents.
The Interested Party asserts that together with the 11 th Ex parte Applicant, they were summoned by the Chief Land Registrar on 23 rd June 2022 to verify conflicting title documents, but the Applicants failed to appear or to present their case. That following the verification, the Chief Land Registrar cancelled the Applicants’ purported title due to forgery suspicions and invited the DCI to investigate further. This cancellation was then formalized under Section 79(4) of the Land Registration Act through a Gazette Notice No.11288 of 23 rd September 2022.
According to the Interested Party, the National Land Commission had previously regularized the property grant in favour of the Interested Party.
It is the Interested Party’s case that the 11 th Ex parte Applicant initiated civil proceedings being Nairobi Chief Magistrate’s Court Miscellaneous Application Number E010 of 2022 Mwadi Women Entrepreneurs Ltd Versus Al-Hailee Investment Ltd & 2 Others , to claim ownership but failed to join the Interested Party, the lawful registered owner.
The Interested Party further challenges the Magistrate Court’s jurisdiction due to the property’s value exceeding the court’s pecuniary jurisdiction. It is its case that this was confirmed in subsequent rulings, including those by the Environment and Land Court. That despite the jurisdictional defects, the lower court’s judgment remains enforceable.
It is further submitted that the Interested Party only discovered the Applicants’ fraudulent actions after the lower court’s judgment had already been delivered. The Interested Parry argues that dismissing the criminal case on the basis of a pending civil case is insufficient. It is also asserted that the Applicants must provide compelling evidence of abuse or threat to their rights, which they have not done. According to the Interested Party, the allegations of unreasonableness, abuse of power and bad faith are unsubstantiated.
Further, that there is no statutory obligation for the DPP to consult the Applicants before prosecution. Moreover, that concurrent criminal and civil proceedings are permissible, as they address distinct issues and require different standards of proof in that whereas the criminal case concerns fraud culpability, the civil case determines ownership.
In its submissions, it is argued by the interested party that the Ex Parte Applicants’ reliance on the judgment in Nairobi Chief Magistrate's Court Misc. Application No. E010 of 2022 – Mwadi Women Entrepreneurs Ltd v Al-Hailee Investment Ltd & 2 Others is fundamentally misplaced as the said judgment, which declared the 11 th Ex Parte Applicant as the owner of land parcel L.R. No. 209/10211, IR 69353, was obtained witho
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The applicants seek an order of Certiorari quashing the decision of the 1 st Respondent herein, Director of Public Prosecutions to charge the Ex Parte Applicants with the offences of conspiracy to defraud, making false document, obtaining registration by false pretences and abuse of office. The charges are before the Nairobi Chief Magistrate’s Court, Criminal Case No, E271 OF 2024 (R VS Diana Njeri Muiyuro & 9 others) before the 2 nd Respondent.
The Applicants also seeks an order of prohibition against the Respondents herein from proceeding with the intended prosecution in Nairobi Criminal Case No E271 of 2024 (R vs. Diana Njeri Muiyuro& 9 others).
The applicants further pray for costs of and incidental to these proceedings to be borne by the 1 st Respondent and also for any such other, further, or incidental orders or directions as the Honourable Court may deem just and expedient in the circumstances.
The grounds upon which the judicial review orders are sought are that the 11 th Ex parte Applicant is the registered proprietor of land comprising L.R NO 209/10211 I.R no 231055/1 as evidenced by the certificate of official search attached to the affidavit verifying the facts of the application.
A brief background of the events leading to these proceedings as deposed by Ex parte Applicants is that on 6 th February 2019, the 11 th Ex Parte Applicant Mwadi Women Entrepreneurs Limited was allocated L.R No 209/10211 vide letter of allotment dated 6 th February 2019. As a condition of acceptance of the said allotment, the 11 th Ex parte Applicant paid the standard premium of Kshs. 3,801,150/=.
That subsequently, the survey process was undertaken and Deed Plan No. 446961 was issued. Thereafter, the 11 th Ex parte Applicant was issued with the certificate of title and as such, the 11 th Ex Parte Applicant has been paying Land Rates.
The Ex parte Applicants state that by the Judgement of Hon D.W Mburu in CMCC MISC Application No. E010 OF 2022 (O.S) Mwadi Women Entrepreneurs Ltd vs Al -Haiee Investment Limited & Others, the 11 th Ex parte applicant’s ownership was confirmed.
According to the Applicants, the Interested Party who is the complainant in the intended criminal proceedings was dissatisfied with the judgement and filed a review which was unmerited and decided to lodge a fresh suit in the Environment and Land Court ELCLC E009 OF 2023 ; Reality Brokers Limited vs Mwadi entrepreneurs &others under certificate of urgency and was issued with a temporary injunction staying the implementation and execution of subordinate court judgement.
That on 12 th March, 2024, the 1 st and 2 nd Applicants herein were arrested without being summoned to appear by the DCI being summoned to appear by the DCI where they were interrogated and got arrested for a suspected offence of conspiracy to defraud contrary to section 317 of The Penal Code, making a false document contrary to section 347(d)(1) of The Penal Code, obtaining registration by false pretences contrary to section 320 of The Penal Code and abuse of office contrary to section 10(1) of The Penal Code.
The Applicants argue that after incessant pleas and request they were released on a police cash bail and were told to appear to plead on 13 th March 2024 in Nairobi Criminal Case No. E271 of 2024 (R vs. Diana Njeri Muiyuro & 9 others). They further state that the other Applicants were served with summons via their WhatsApp to appear in court for plea on 13 th March 2024. The plea taking was however, differed to 4 th April 2024. The Applicants confirm that they managed to get a copy of the charge sheet though the same had not been formally handed to them as the plea was differed.
The Ex parte Applicant’s contend that the impugned decision infringes on their fundamental rights and freedoms under inter alia Articles 27, 40, 47, 48 49 and 50 of the Constitution of Kenya, 2010 and sections 24, 25, 26, 79 and 80 of the Land Registration Act, 2012.
It is the Applicants’ case that it is unreasonable to charge them for the offences of Conspiracy to Defraud in relation to a registration of Title of Deed for land known as L.R NO 209/10211, which is the subject of an ownership contestation in ELCLC E009 OF 2023 Reality Brokers Limited vs Mwadi entrepreneurs & others.
According to the Applicants, the intended decision to charge them for the said offences is a perfect case of abuse of power and discretion and is in total disregard to the interest of the administration of justice by the 1 st and 2 nd Respondents as set out under Articles 157 and 244 of the Constitution of Kenya, 2010, respectively.
The Ex parte Applicants also filed a Supplementary Affidavit sworn on 26 th June 2024 by the 6 th Ex parte Applicant, in a rejoinder to the replying affidavit filed by the respondents. In the affidavit, it is deposed that in the said affidavit PC Antony Mwaura does not address the issue of the existence of a Judgment of the Lower Court.
It is the Ex parte Applicants’ case that on instructions of the DCI, on 2 nd August 2023, PC Mwaura the Investigating officer and officers at the Lands Fraud Unit proceeded to the impugned land and arrested the 11 th Applicant’s guards essentially removing them from the property and aided the Interested Party to take possession. The 11 th Ex parte Applicant is said to have protested the move in a protest letter to the Inspector General of Police, but that to date, the DCI has never addressed this issue of direct involvement and conflict.
The Ex parte Applicants depose further that the DCI has sought to take a position to charge them without interrogating the Interested Party’s root of ownership of the land in question. Further, that on 24 th April, 2024, the Interested Party paid Kshs 8,000,000/= as stamp duty to seek to validate its title as being legitimate.
It is deposed that it is now evident more than ever that the Interested Party has no title within the meaning of the Land Registration Act having purported to obtain title on 1 st April, 2019 and paying stamp duty on 24 th April, 2024, 6 years after the fact and in the subsistence of these proceedings.
According to the Ex parte Applicants, PC Mwaura has not produced supporting documents in the form of wire transfers or acknowledgment receipts from the vendor and this is a testament of the vagueness in the investigations aimed at sanitizing the interested party’s fraudulent title document.
It is the 6 th Ex parte Applicant’s deposition that the 10 th Ex parte Applicant on 5 th April, 2024 sought a review of the 1 st Respondent’s decision to charge and a further review was sought by the 10 th Ex parte Applicant on 19 th June, 2024 in view of the purported stamp duty payment. Subsequently, that the 1 st Respondent in its letter of 24 th June, 2024 is said to have acceded to the request and directed the DCI to carry out further investigations.
The Ex parte Applicants further aver in their depositions that the investigating officer purported to only serve summons to the 10 th Ex-Parte Applicant after the Criminal Proceedings had been filed. Further, that 10 th Ex Parte Applicant was never called through the Chief Land Registrar or personally to record a statement.
It is deposed that the valuation of the parcel of land was never undertaken in blatant disregard of Section 10A of the Stamp Duty Act Cap 480, which therefore follows that stamp duty was never remitted at the time that the alleged transfer dated 12 th March 2019 was allegedly registered. Further, that there are two transfer instruments one that was provided to the investigating officer and the other that was filed before the Environment and Land Court by the interested party.
The Applicants also maintain that without payment of stamp duty, the illegal registration of the purported transfer, which is not known, was invalidated as per Regulation 16 of the Land Registration Act No. 3 of 2012. Additionally, that the invalidated registration is subject to the provisions of Section 79(2) where the Land Registrar has powers to rectify an entry where the document has been obtained by fraud which is the case. They also assert that at the time that the 10 th Ex Parte Applicant cancelled the registration, stamp duty had not been remitted as required by the law.
It is also averred in deposition that Bona Vacantia as is referred to by PC Mwaura does not serve the purpose of paving way to begin the process of registration. Rather, that it only reverts land back to the government.
According to the applicants, the corrigendum gazette notice relied upon by the investigating officer to reverse the NLC’s earlier findings is unlawful. They cite Regulation 29(3) of the National Land Commission (Review of Grants and Disposition of Public Land) Regulations, which limit corrigenda to the correction of typographical errors and prohibits their use to alter substantive findings or to confer ownership.
They also invoke Regulation 30 of the same Regulations, which requires that any challenge to the National Land Commission findings be made by lodging an appeal within 14 days. The applicants maintain that there is no use of terms such as " protest" or " objection" in this context. They further assert that Eco Bank, being the registered proprietor and the subject of National Lands Commission's investigations, was the proper party to lodge any appeal not Realty Brokers Ltd and that Eco Bank initially disclaimed knowledge of the land, a position it has since reversed without explanation.
The applicants also state that the investigating officer failed to clarify whether the original allotment was ever cancelled before the corrigendum was published, which they say implies that the allotment remains valid. They also contend that the officer relied on legally unsupported assumptions, including an alleged timeline for making an entry/registration of a gazette notice on a title or issuance of a certificate of title. They argue that no law prescribes a time limit for such registration and invite the officer to produce any legal authority to that effect.
Moreover, the applicants allege selective and biased conduct by the investigating officer, who chose to charge officers from the State Department of Lands while excluding those from the NLC, even though the NLC issued the relevant gazette notices. They question the authenticity of documents relied upon in the investigations, noting that the said documents were not verified by any public body or by Eco Bank and were provided solely by the complainant.
The applicants assert that the legality of the land allocation and any claims of fraud fall within the jurisdiction of the Environment and Land Court, which is the only court competent to determine such issues and recommend further legal action. They rely on Article 157(11) of the Constitution to support their argument that the court has the power to supervise prosecutorial discretion and prevent abuse of legal process. In their view, the investigations and prosecution mounted against them are malicious, politically motivated and not in the public interest. They assert that these proceedings are being used to oppress them and to advance the interests of a complainant who has committed illegal acts without consequence.
The Applicants also filed written submissions dated 16 th May 2024 to support their averments and depositions, relying on various court decisions.
In their submissions, they rely on the case of Judicial Review No. E062 of 2023 Fredrick Kimemia Kimani vs. DPP & Others 2024 eKLR where the court held that a party seeking judicial review must demonstrate and prove that the prosecution and those charged with the responsibility of making the decisions to charge acted in an unreasonable manner.
It is also their submission that as was held in the case of Meixuer & Another vs Attorney General (205)2 KLR 189 the role of judicial review is to consider the decision-making process.
They also rely on the case of Republic v Dakes (1986) ISCR 103 , where the Supreme Court of Canada established a constitutional threshold for assessing the legality of offences and arrests in relation to Charter rights. The Court held that an offence must be materially connected to its objective and must not be arbitrary, unfair or based on irrational considerations. Secondly that even if there is a rational connection to a legitimate objective, the offence must impair rights or freedoms as minimally as possible. Thirdly, that there must be proportionality between the limiting effects of the offence on the right or freedom and the importance of the objective being pursued.
The Ex Applicants further rely on the case of Keroche Industries Ltd v Kenya Revenue Authority & 5 Others (2007) 2 KLR , where the court emphasized the importance of the rule of law and procedural safeguards in the exercise of state power.They submit that to arrest, detain or investigate must be carried out within constitutionally permissible parameters.
The rely on the cases of Chrispine Otieno Caleb vs. Attorney General [2014] eKLR where the court was guided by the findings of the judges of the East Africa Court of Appeal in Mbowa vs East Mengo District Administration [1972] EA 352 and the case of Patrick Nyamuke Etori vs National Police Service Commission & 2 Others [2019] eKLR and held that to establish a claim for malicious prosecution, one must demonstrate that the criminal proceedings were initiated without any lawful justification.
The Ex pare Applicants further submit that there can be no justification for the criminal investigations and prosecution on a matter of a lesser magnitude than that pursued through civil proceedings. They rely on the cases of Jared Benson Kangwana v Attorney General Misc. Application Nos 446 of 1996, Vincent Kibiego Maina v the Attorney General Misc. Application Nos 839 and 1085 of 1999 (UR) and Samuel Kamau Macharia & Another V Attorney General & Another, Misc. Application No. 356 of 2006 (UR) for the proposition that a civil matter cannot be the foundation of a criminal charge.
The Applicants submit that while they agree that it is now settled law that the existence of a civil suit is no bar to criminal proceedings or investigations, the commencement of the criminal proceedings in this case is meant to force them to submit to the civil claim.
Reliance is also placed on the case of Republic v Director of Public Prosecutions ex parte Praxidis Namoni Saisi (2016) eKLR and Bitange Ndemo v Director Public Prosecutions & 4 others (2016) eKLR , where the courts held that failing to consider available information and exculpatory evidence before prosecution may indicate malice and abuse of process.
They also rely on the cases of Peter Ngunjiri Maina v DPP & 2 Others (2017) eKLR, and R v DPP & 2 Others Ex parte Nomoni Saisi (2016) eKLR ,where the courts outlined instances warranting review of the DPP’s discretion, including abuse of power, acting for improper purposes, irrationality, and breach of fairness.
It is also their submission that instituting criminal charges in a matter that is essentially civil in nature, rather than pursuing civil remedies, violates the right to a fair hearing under Article 50 of the Constitution. The Applicants rely on Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR , to support the use of prohibition orders where jurisdiction is exceeded.
Reliance is also placed on the case of Njuguna S. Ndung’u v Ethics & Anticorruption Commission (EACC) & 3 Others (2018) eKLR , where the court recognized that prosecution motivated by ulterior purposes justifies scrutiny. As such, the Applicants contend that the intended prosecution is malicious, irrational, and contrary to the Fair Administrative Action Act.
The 1 st Respondent’s case
The 1 st Respondent filed a Replying Affidavit sworn on 29 th May 2024 by PC Anthony Mwaura one of the investigating officers in Milimani CMCR No.E271 of 2024.
In the affidavit, PC Mwaura deposes in opposition to the application, which alleges violation of the Applicants’ rights under Articles 27, 40, 47, 48, 49, 50, 157, and 244 of the Constitution following their arrest and arraignment in Republic v Diana Njeri Muiyuro & 9 Others , Milimani Criminal Case No. E271 of 2024.
The deponent states that on 1 st and 7 th February 2022, the Directorate of Criminal Investigations (DCI), Land Fraud Investigations Unit, received complaints from Diro Advocates and Bill Simba & Associates on behalf of Mr. James Mugoya Isabirye and Mwadi Women Entrepreneurs Limited, each claiming ownership of LR No. 209/10211 but under different IR Numbers 69353 and 231055 respectively.
PC Mwaura depones that investigations conducted revealed that James Mugoya Isabirye, Director of Realty Brokers Limited and an Interested Party in these proceedings, purchased the land from East African Building Society and that the transfer was delayed due to a missing Deed File at Ardhi House, during which period, the Society transitioned into East African Building Society Bank and later into Eco Bank Kenya Limited. The latter later executed Deeds of Indemnity to facilitate the transfer, which was effected on 12 th March 2019, registering Realty Brokers Limited as the owner of the impugned parcel of land.
He also deposes that when the Applicants were invited to demonstrate their ownership, they stated that they had raised concerns with the National Land Commission on 14 th April and 28 th June 2016 regarding a fake title to the same parcel.
That on 17 th July 2017, NLC published Gazette Notice No. 6862, declaring the land parcel a bona vacantia - “allocation was to a legal person who cannot be found” and that based on this declaration, the Applicants initiated steps to have the parcel registered in favour of the 11 th Applicant and were issued with an allotment letter dated 6 th February 2019, followed by a lease and certificate of title LR. No.209/10211 IR No. 231055.
However, that Realty Brokers Limited challenged the Gazette Notice, prompting NLC to publish a Corrigendum Gazette Notice No. 1013 on 13 th January 2018, which reaffirmed Realty Brokers Limited’s ownership. That despite this, the 9 th Applicant went ahead to issue a lease to the 11 th Applicant on 2 nd June 2021, and the 10 th Applicant registered Gazette Notice No.6862 on 16 th May 2019, more than a year after the corrigendum.
It is deposed in contention that one S.K. Mburugu, a former Land Administration Officer at NLC, denied authoring the allotment letter dated 6 th February 2019 and upon forensic examination of the said letter, it became apparent that the letter was a forgery.
That following conclusion of investigations, the matter was forwarded to the 1 st Respondent on 30 th January 2024, with recommendations that the applicants be charged and that on 19 th February 2024, the 1 st Respondent directed that 1 st to 7 th Applicants be charged with conspiracy to defraud, forgery, and obtaining registration by false pretenses, and that 9 th and 10 th Applicants be charged with conspiracy and abuse of office.
That the charges were filed in Republic v Diana Njeri Muiyuro & 9 Others, Criminal Case No. E271 of 2024 , and pleas by the 1 st ,2 nd ,3 rd ,4 th ,5 th and 8 th were taken on 17 th April 2024 while the remaining Applicants were expected to take plea on 3 rd June 2024.
The Respondents contend that the investigations and prosecution were carried out lawfully and within the powers conferred by law. That the Applicants were afforded an opportunity to present their side and did so by recording statements. Further, that the issues raised by the Applicants are factual and should be determined by the trial court.
The Respondents further argue that there is no evidence of discrimination, violation of constitutional rights, bad faith, or procedural impropriety. Further, that the application amounts to an abuse of court process and an attempt to use the High Court to subvert the criminal justice process. It is also the 1 st Respondent’s deposition that the issues in dispute are within the jurisdiction of the criminal trial court and do not justify interference by the High Court.
It is also contended that the application seeks to use the court to conduct a pretrial assessment of evidence, which is inappropriate and that the High Court should not interfere in the absence of exceptional circumstances such as bad faith, dishonesty, or abuse of process. Further, that mechanisms exist within the criminal procedure and the Constitution to protect the Applicants’ rights at trial.
The Respondents conclude that the Applicants have not demonstrated that they are unlikely to receive a fair trial or that the trial would be conducted otherwise than in accordance with the law. The Respondents further state that the application is filed in bad faith, misconceived, and intended to defeat the course of justice. The Respondents pray that the application herein be dismissed with costs and that Republic v Diana Njeri Muiyuro & 9 Others, Criminal Case No. E271 of 2024, be allowed to proceed to its logical conclusion.
The 1 st Respondent also filed written submissions dated 6 th June 2024.
The Respondent submits that the Applicants’ arraignment was lawful and it followed due process. Also, that under Article 157(6) of the Constitution, the Director of Public Prosecutions (DPP) is mandated to institute and undertake criminal proceedings before any court except a court martial.
The Respondent relies on the case of Pauline Raget Adhiambo Agot v DPP & 5 Others (2010) Petition No. 446 of 2015 , where the court is said to have affirmed that the ODPP is free from interference and that only the DPP directs the police to investigate crime.
Reliance is also placed in the case of Republic v The Commissioner of Police & Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011 , where the court emphasized that police must investigate complaints once made and only need reasonable suspicion to prefer charges.
The Respondents also referred to Article 157(4) of the constitution which empowers the DPP to direct the Inspector-General of Police to investigate allegations of criminal conduct and Article 157(11) which requires the DPP to consider the public interest, administration of justice and prevent abuse of legal process.
According to the 1 st Respondent, the arraignment of the Petitioners followed due process, the DPP was presented with a full investigative file and made a considered decision to charge, consistent with the Constitution, ODPP Act 2012, and the Decision to Charge Guidelines (2019). Further, that investigations by the DCI established reasonable suspicion, justifying the referral to the DPP for review and prosecution directions, consistent with Michael Monari case (supra).
The 1 st Respondent also relies on the case of Cascade Company Limited v Kenya Association of Music Production (KAMP) & Others Petition No. 7 of 2014 , where the court held that as long as the enabling legislation is constitutional, actions by the ODPP and DCI are lawful unless shown to be ultra vires or in breach of their statutory mandate.
The 1 st Respondent also relies on Section 193A of the Criminal Procedure Code which provides that civil proceedings may run concurrently with criminal matters, and the existence of civil proceedings is not a ground to stay criminal processes.
The Applicants it is submitted, have not shown that the DPP acted contrary to public interest, administration of justice, or failed to prevent abuse of process.
It is also submitted that while the Applicants have the right to not face unwarranted criminal proceedings, the DPP has a public duty to prosecute offences and to ensure accountability. This balance, according to the 1 st Respondent, is recognized by the law and courts. This principle, it is submitted was underscored in Maina & 4 Others v Director of Public Prosecutions & 4 Others (Constitutional Petition E106 & 160 of 2021) KEHC 15 (KLR).
Regarding any alleged violation of the Applicants’ constitutional rights in initiating charges, the 1 st Respondent submits that the principles in William and Others v Spautz [1993] 2 LRC 659 highlight that courts should exercise their jurisdiction to try criminal charges unless justice demands otherwise.
It is also submitted that it is an established principle that a party alleging breach of fundamental rights must clearly state the precise rights alleged to be infringed and provide evidence as was held by the court in the case of in Leonard Otieno v Airtel Kenya Limited [2018] eKLR, where the court is further said to have reiterated that decisions on constitutional violations must be based on clear evidence, not mere assertions or hypotheses. This was also the position in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and in Mumo Matemo v Trusted Society of Human Rights Alliance [2014] eKLR .
In conclusion, the 1 st Respondent submits that fundamental rights are not absolute and must be balanced against the rights of others and the public interest. It is submitted that the Applicants have not clearly indicated which rights have been breached beyond listing constitutional articles. Also, that they have not demonstrated any violation warranting the court to exercise its powers to grant the orders sought.
The Interested Party’s Response
The Interested Party filed a Replying Affidavit sworn on 12 th July 2024 by James Isabirye Mugoya and written submissions dated 8 th July 2024.
It is the Interested Party’s case that contrary to the Applicants’ assertions in Paragraph 4 of the Verifying Affidavit dated 2 nd April 2024 and Paragraph 1 of the grounds set out in the Statutory Statement dated 2 nd April 2024, none of the Applicants are registered as owners of the Parcel of Land Number L.R 209/10211 IR 69353.
The Interested Party deposes that on 8 th February 2006, they entered into an Agreement for Sale with Ecobank Limited for the suit property, which was later formalized by a Deed of Indemnity in 2018 to address a lost land register. Subsequently, Ecobank transferred full ownership rights to the Interested Party on 12 th March 2019, and the Interested Party became the registered proprietor, holding a valid title to the property.
The Interested Party states that it intended to develop the land and applied for various approvals. That in February 2022, the 11 th Applicant lodged a complaint with the Directorate of Criminal Investigations (DCI), alleging illegal occupation by the Interested Party. The Interested Party also lodged complaints regarding interference by the Applicants. It is deposed that there have been various Gazette Notices affirming its ownership, exposing attempts by the Applicants to fraudulently alter title documents.
The Interested Party asserts that together with the 11 th Ex parte Applicant, they were summoned by the Chief Land Registrar on 23 rd June 2022 to verify conflicting title documents, but the Applicants failed to appear or to present their case. That following the verification, the Chief Land Registrar cancelled the Applicants’ purported title due to forgery suspicions and invited the DCI to investigate further. This cancellation was then formalized under Section 79(4) of the Land Registration Act through a Gazette Notice No.11288 of 23 rd September 2022.
According to the Interested Party, the National Land Commission had previously regularized the property grant in favour of the Interested Party.
It is the Interested Party’s case that the 11 th Ex parte Applicant initiated civil proceedings being Nairobi Chief Magistrate’s Court Miscellaneous Application Number E010 of 2022 Mwadi Women Entrepreneurs Ltd Versus Al-Hailee Investment Ltd & 2 Others , to claim ownership but failed to join the Interested Party, the lawful registered owner.
The Interested Party further challenges the Magistrate Court’s jurisdiction due to the property’s value exceeding the court’s pecuniary jurisdiction. It is its case that this was confirmed in subsequent rulings, including those by the Environment and Land Court. That despite the jurisdictional defects, the lower court’s judgment remains enforceable.
It is further submitted that the Interested Party only discovered the Applicants’ fraudulent actions after the lower court’s judgment had already been delivered. The Interested Parry argues that dismissing the criminal case on the basis of a pending civil case is insufficient. It is also asserted that the Applicants must provide compelling evidence of abuse or threat to their rights, which they have not done. According to the Interested Party, the allegations of unreasonableness, abuse of power and bad faith are unsubstantiated.
Further, that there is no statutory obligation for the DPP to consult the Applicants before prosecution. Moreover, that concurrent criminal and civil proceedings are permissible, as they address distinct issues and require different standards of proof in that whereas the criminal case concerns fraud culpability, the civil case determines ownership.
In its submissions, it is argued by the interested party that the Ex Parte Applicants’ reliance on the judgment in Nairobi Chief Magistrate's Court Misc. Application No. E010 of 2022 – Mwadi Women Entrepreneurs Ltd v Al-Hailee Investment Ltd & 2 Others is fundamentally misplaced as the said judgment, which declared the 11 th Ex Parte Applicant as the owner of land parcel L.R. No. 209/10211, IR 69353, was obtained witho
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