1. The Petitioner, Josephat Matini Oruru, is a public officer serving within the County Government of Nyamira and is described in the pleadings as a structural engineer who at various times acted as a member of the project team and subsequently as project manager in respect of the construction of the Nyamira County Assembly Office Block, which project forms the factual foundation of the criminal proceedings that have given rise to the present Petition.
2. The 1st Respondent is the Director of Public Prosecutions, a constitutional office established under Article 157 of the Constitution, vested with the mandate to institute and undertake criminal proceedings and to exercise that mandate independently, subject only to the Constitution and the law.
3. The 2nd Respondent is the Ethics and Anti-Corruption Commission, a constitutional commission established pursuant to Article 79 of the Constitution and clothed with investigative powers in respect of corruption, economic crimes and related offences.
4. The 3rd Respondent is the County Government of Nyamira, being the Petitioner’s employer and the entity under whose authority the impugned construction project was undertaken.
5. The 4th Respondent is the County Assembly of Nyamira, which was the beneficiary of the construction project and in whose name the subject office block was being constructed.
6. The Petition dated 24th March 2026 is expressed to be brought under a wide array of constitutional provisions including Articles 2, 3, 10, 19, 20, 21, 22, 23, 28, 29, 47, 50, 157 and 236 of the Constitution, and is anchored upon the allegation that the Petitioner’s fundamental rights and freedoms have been violated or are threatened with violation by reason of the institution and continuation of criminal proceedings against him.
7. The factual substratum of the Petition is that the Petitioner has been charged before the Keroka Chief Magistrate’s Court Anti-Corruption Court MCCGCR/E001/2026 with the offence of neglect of official duty, arising from his role in the construction of the Nyamira County Assembly Office Block.
8. The gravamen of the Petition is that the prosecution is unlawful, oppressive, and unconstitutional, and that unless this Court intervenes, the Petitioner stands to suffer prejudice, including reputational harm, exposure to unlawful administrative action, and violation of his fair trial rights.
9. The Petitioner therefore seeks the following reliefs:
1) An order staying the criminal proceedings in Keroka Chief Magistrate’s Court Anti-Corruption Case MCCGCR/E001/2026 insofar as they relate to the Petitioner.
2) An order of prohibition restraining the 1st and 2nd Respondents from arresting, re-arresting, or preferring additional charges against the Petitioner arising from the same facts.
3) An order restraining the 3rd Respondent from suspending, interdicting, or taking disciplinary action against the Petitioner on account of the said criminal proceedings.
4) An order reviewing and/or suspending the bail conditions imposed upon the Petitioner in the said criminal case.
5) Such further or other orders as this Honourable Court may deem just.
6) Costs of the Petition.
10. The Petition is supported by the Supporting Affidavit sworn by the Petitioner, Josephat Matini Oruru, on 24th March 2026, in which the Petitioner sets out, in a detailed narrative, the factual background and the constitutional grievances that underpin the Petition.
11. The Petitioner explains that he has been charged with the offence of neglect of official duty, yet the particulars of the charge, as framed, do not in his view disclose the essential ingredients of the offence known in law, and therefore the prosecution is fundamentally defective. He further explains that although the charge is grounded in the Penal Code and does not relate to corruption or economic crimes, he has nonetheless been subjected to proceedings before an Anti-Corruption Court, a circumstance which he contends has occasioned him institutional stigma and prejudice, particularly in light of his position as a public officer.
12. The Petitioner proceeds to depose that prior to the institution of criminal proceedings, he had been subjected to professional inquiry by the Engineers Board of Kenya, which inquiry culminated in a formal determination communicated through a letter dated 25th July 2023 titled “Board Decision on the Conduct of Eng. Josephat Oruru in Regard to the Collapsed Nyamira County Assembly Office Block”, wherein the Board expressly found that he was not culpable in respect of the collapse of the building.
13. The Petitioner further relies on a technical report titled “Report of the Subcommittee of the Board to Inquire on the Collapsed Section of the Nyamira County Assembly Office Block” prepared by the National Construction Authority, which report, according to him, attributes the collapse to structural and scaffolding deficiencies and does not ascribe criminal responsibility to him.
14. The Petitioner elaborates that notwithstanding those findings by professional and technical bodies, he has been charged and jointly arraigned with other accused persons facing corruption and procurement-related offences, yet the alleged conduct attributed to him is distinct and does not arise from the same transaction, thereby rendering the joinder improper and prejudicial.
15. The Petitioner further deposes that the bail terms imposed upon him, including a requirement to deposit cash bail of KES. 500,000 and to surrender his passport, are excessive and disproportionate, particularly having regard to the nature of the offence.
16. The Petitioner also expresses apprehension that as a consequence of being charged in an Anti-Corruption Court, he faces imminent suspension from office pursuant to Section 62 of the Anti-Corruption and Economic Crimes Act, notwithstanding that he is not charged with a corruption offence, which he contends would amount to an unlawful administrative action.
17. In a comprehensive articulation of his constitutional grievances, the Petitioner asserts that the cumulative effect of the foregoing matters is a violation of his rights under Articles 28, 29, 47 and 50 of the Constitution, and he therefore urges this Court to intervene.
18. The 1st Respondent opposed the Petition through a Replying Affidavit sworn by Joel Kibet Chirchir, a Deputy Director of Public Prosecutions, which affidavit, though undated, is expressed to be in reply to the Petition dated 24th March 2026 and is accompanied by annexures in support thereof.
19. The deponent states that the Petitioner was charged in Keroka Chief Magistrate’s Court Anti-Corruption MCCGCR/E001/2026 following investigations conducted by the 2nd Respondent, and that upon completion of those investigations, the resultant inquiry file was forwarded to the Office of the Director of Public Prosecutions for independent review and appropriate action.
20. It is further deponed that upon a comprehensive and independent evaluation of the inquiry file, the Director of Public Prosecutions formed the opinion that there existed sufficient evidence to warrant the institution of criminal proceedings against the Petitioner together with other suspects, and accordingly granted consent to prosecute vide a letter dated 12th March 2026, annexed to the affidavit and marked “JKC1”, in which the charges recommended against the various suspects, including the Petitioner for the offence of neglect of official duty, are expressly set out.
21. The deponent further avers that the decision to institute criminal proceedings was made pursuant to the constitutional mandate of the Director of Public Prosecutions under Article 157 of the Constitution, which vests in that office the authority to institute and undertake criminal proceedings independently and without direction or control from any person or authority.
22. It is also deponed that the Petitioner has already taken plea, has been released on bond upon payment of cash bail, and has been furnished with witness statements and documentary exhibits intended to be relied upon by the prosecution, and that in those circumstances the Petitioner cannot legitimately contend that his right to a fair hearing has been violated.
23. The 1st Respondent maintains that the grievances raised by the Petitioner concerning the propriety of the charge, the sufficiency of the evidence, and the alleged abuse of prosecutorial power are matters that fall squarely within the jurisdiction of the trial court and are amenable to determination in the course of the criminal proceedings.
24. The 2nd Respondent opposed the Petition through a Replying Affidavit sworn by Francis Wafula, an investigator with the Ethics and Anti-Corruption Commission, in which the Commission sets out the factual and statutory basis of the investigations leading to the impugned prosecution, together with annexures in support thereof.
25. The deponent states that the Commission received a report in the year 2018 concerning allegations of irregular procurement in the award of the tender for the construction of the Nyamira County Assembly office block, as well as allegations of misappropriation of public funds, and that upon receipt of that report, investigations were commenced in exercise of the Commission’s statutory mandate.
26. It is further deponed that the Petitioner was at all material times a member of the team appointed to review structural designs and approve the construction of the said office block, and that upon commencement of the project he was appointed as Project Manager and Structural Engineer on 16th September 2019, as evidenced by the letter annexed to the affidavit and marked “R1”, which sets out the composition of the Contract Implementation Team and delineates the roles and responsibilities assigned to the Petitioner within that framework.
27. The deponent further avers that while the Petitioner was supervising the project in his capacity as Project Manager and Structural Engineer, a section of the building at the entrance canopy collapsed, thereby precipitating further investigations into the circumstances surrounding the construction and the conduct of the persons responsible for the implementation of the project.
28. It is deponed that upon conclusion of the investigations, and pursuant to Section 35 of the Anti-Corruption and Economic Crimes Act as read together with the Commission’s statutory mandate, the inquiry file was forwarded to the 1st Respondent for independent review and appropriate action, following which the Director of Public Prosecutions, acting under Article 157(6) of the Constitution, made an independent decision to institute criminal proceedings against the Petitioner and other suspects.
29. The 2nd Respondent maintains that the charges preferred against the Petitioner disclose offences known in law, that the Petitioner has not demonstrated that the prosecution is actuated by malice or constitutes an abuse of the court process, and further asserts that by virtue of Section 193A of the Criminal Procedure Code, the existence of parallel processes or prior investigations by professional bodies does not bar the institution or continuation of criminal proceedings where the facts disclose the commission of an offence.
30. Arising directly from the reliefs sought and the pleadings filed, this Court identifies the following issues for determination:
1) Whether the Petitioner has established a basis for the grant of an order staying the criminal proceedings.
2) Whether the Petitioner has established grounds for the grant of an order of prohibition
3) Whether the Petitioner is entitled to an order restraining disciplinary action
4) Whether this Court should interfere with the bail terms imposed by the trial court
5) Whether the Petitioner has demonstrated violation or threatened violation of his constitutional rights.
31. This Court now turns to determine, in a structured and sequential manner, the issues that arise for determination, which issues flow directly from the reliefs sought in the Petition. This Court is mindful that the orders sought, if granted, would have the effect of halting an ongoing criminal prosecution, restraining the exercise of constitutional and statutory mandates by public bodies, and intervening in interlocutory matters falling within the jurisdiction of a subordinate court. It is therefore imperative that the applicable legal principles be applied with precision, fidelity to precedent, and due regard to the constitutional architecture governing criminal justice.
32. The first and central issue is whether this Court should grant an order staying the criminal proceedings pending before the Keroka Chief Magistrate’s Court. The grant of such an order is not a routine exercise of judicial discretion but an exceptional remedy that directly implicates the administration of criminal justice.
33. The jurisprudence of the Court of Appeal has, over time, crystallised the principle that courts ought to be slow to interfere with criminal proceedings unless it is demonstrated that the proceedings are instituted in abuse of the court process, are actuated by malice, or would result in a violation of the accused person’s constitutional rights.
34. In Ndegwa & 3 others v Republic & another (Criminal Application E014, E015 & E016 of 2022 (Consolidated)) [2023] KECA 211 (KLR), the Court of Appeal reaffirmed that an order staying criminal proceedings is granted sparingly and only in exceptional circumstances, emphasizing that such discretion must be exercised judicially and on sound legal principles rather than conjecture or apprehension. Although that decision arose in the context of a post-judgment application, the principle it reiterates is of general application to all instances where a party seeks to arrest the criminal process. The Court in that case underscored the need to avoid unwarranted interruption of criminal proceedings, noting that such interruption delays the course of justice and undermines public interest in the prosecution of offences.
35. The same principle finds expression in Republic v Kenya Anti-Corruption Commission & 2 others (Civil Application No. 51 of 2008) [2009] KECA 387 (KLR), where the Court of Appeal held that intervention to halt criminal proceedings is only justified where there is clear evidence of abuse of process, oppression, or violation of constitutional rights.
36. This Court further draws guidance from Manilal Jamnandas Ramji Gohil v Director of Public Prosecutions (Criminal Appeal (Application) No. 57 of 2013) [2014] KECA 806 (KLR), where the applicant sought to terminate a criminal trial on grounds that it was oppressive and discriminatory. In declining to grant the orders sought, the Court of Appeal held that allegations of malice, insufficiency of evidence, or improper motive are matters that ought to be ventilated before the trial court, which is vested with the jurisdiction to evaluate evidence and determine the validity of the charge.
37. That reasoning is directly applicable to the present case. The Petitioner’s principal complaints are that the charge does not disclose the essential ingredients of the offence, that he was exonerated by the Engineers Board of Kenya and other technical bodies, and that the prosecution is therefore unwarranted. Those complaints, however forcefully articulated, are quintessentially matters of defence that require evidential interrogation and legal evaluation within the trial process.
38. The trial court is the constitutionally and statutorily designated forum for determining whether the charge discloses an offence, whether the evidence is sufficient to sustain the charge, and what weight, if any, should be attached to expert or professional findings such as those emanating from the Engineers Board of Kenya or the National Construction Authority.
39. To accede to the Petitioner’s invitation to halt the prosecution on the basis of those matters would be to usurp the function of the trial court and to convert this Court into a forum for pre-trial evaluation of evidence, a course that has consistently been deprecated by the appellate courts.
40. Furthermore, the material placed before this Court demonstrates that the prosecution was preceded by investigations conducted by the 2nd Respondent and an independent review by the 1st Respondent, acting pursuant to Article 157 of the Constitution. There is no evidence placed before this Court to demonstrate that the decision to prosecute was actuated by malice, bad faith, or any ulterior motive.
41. In the absence of such evidence, and in light of the settled jurisprudence, this Court is unable to conclude that the present case falls within the narrow category of exceptional cases that warrant the grant of an order staying criminal proceedings.
42. Accordingly, the prayer for stay of criminal proceedings is declined.
43. The second issue concerns the prayer for an order of prohibition restraining the Respondents from arresting, re-arresting, or preferring charges against the Petitioner.
44. It is common ground that the Petitioner has already been arrested, charged, and has taken plea before a court of competent jurisdiction. To that extent, the substratum of the prayer for prohibition, insofar as it relates to arrest or charging, has been overtaken by events.
45. The Court of Appeal in Boniface Kyalo Mwololo v Republic (Criminal Application No. Nai 1 of 2016) [2016] KECA 427 (KLR) held that courts do not issue orders in vain or grant reliefs that have been rendered moot by subsequent events, and that judicial intervention must be anchored on a live controversy.
46. Even if this Court were to consider the prayer on its merits, the same would still not succeed. An order of prohibition is a forward-looking remedy intended to restrain unlawful or ultra vires action. It does not lie to undo actions that have already been lawfully undertaken, nor does it issue to halt proceedings that are properly before a court of competent jurisdiction.
47. In the present case, there is no evidence that the Respondents acted outside their constitutional or statutory mandate in arresting and charging the Petitioner. The decision to prosecute was made pursuant to Article 157 of the Constitution, and the Petitioner has not demonstrated any illegality or excess of jurisdiction.
48. The prayer for prohibition is therefore both overtaken by events and devoid of merit.
49. The third issue concerns the Petitioner’s apprehension that he may be subjected to suspension or disciplinary action by the 3rd Respondent on account of the pending criminal proceedings.
50. Whereas this Court appreciates the Petitioner’s concerns, it is a fundamental principle that courts do not act on speculation or conjecture. Judicial intervention is warranted where there is a clear, present, and demonstrable threat to rights, not where the alleged violation is contingent or hypothetical.
51. In the present case, no evidence has been placed before this Court to demonstrate that any disciplinary action has been taken or is imminent, or that any such action would be undertaken in violation of the Constitution or the law.
52. In those circumstances, this Court finds that the claim is premature and does not warrant the grant of the relief sought.
53. The fourth issue concerns the prayer for review or suspension of bail terms imposed by the trial court.
54. It is a settled principle that matters relating to bail fall within the jurisdiction and discretion of the trial court, which is best placed to consider the circumstances of the case and the nature of the offence. This discretion must, however, be exercised within the constitutional framework under Article 49(1)(h) of the Constitution of Kenya, which guarantees an arrested person the right to be released on bond or bail on reasonable conditions, unless there are compelling reasons to the contrary.
55. In Helmuth Rame v Republic (Criminal Application No. 1 of 2015) [2015] KECA 735 (KLR), the Court of Appeal emphasized that superior courts should exercise restraint in interfering with interlocutory decisions of trial courts in criminal proceedings, unless it is demonstrated that such decisions are illegal, irrational, or unconstitutional.
56. The Petitioner has not demonstrated that the trial court acted unlawfully or in violation of constitutional principles in setting the bail terms. The appropriate forum for seeking review of those terms remains the trial court itself. This Court therefore declines to interfere with the bail terms.
57. The final issue is whether the Petitioner has demonstrated that his constitutional rights have been violated or are under imminent threat of violation.
58. This Court has carefully considered the material placed before it and finds that the criminal process has been undertaken in accordance with the Constitution and the law. The Petitioner has been informed of the charge, has taken plea, has been granted bail, and has been furnished with the evidence intended to be relied upon by the prosecution.
59. The mere fact of being subjected to criminal proceedings does not, without more, constitute a violation of constitutional rights. As was observed by the Court of Appeal in Manilal Jamnandas Ramji Gohil v Director of Public Prosecutions (supra), the criminal justice system is designed to test allegations through due process, and allegations of malice or abuse must be established through evidence, not presumed.
60. In the present case, no such evidence has been placed before this Court. This Court therefore finds that the Petitioner has not demonstrated any violation or threatened violation of his constitutional rights.
61. Having carefully analysed each of the issues for determination in light of the applicable constitutional and legal principles, and having applied the relevant authorities to the facts of this case, this Court is satisfied that the Petition does not meet the threshold required for the grant of the orders sought.
62. The Petition is, in essence, an invitation to this Court to prematurely terminate a lawful prosecution and to determine matters that properly fall within the jurisdiction of the trial court, which invitation this Court must decline in fidelity to established jurisprudence.
63. Flowing from the foregoing analysis and determination of each of the issues identified for resolution, the Court makes the following final orders:
1) The prayer for an order staying the criminal proceedings in Keroka Chief Magistrate’s Court Anti-Corruption Case MCCGCR/E001/2026 is hereby declined.
2) The prayer for an order of prohibition restraining the 1st and 2nd Respondents from arresting, re-arresting or prosecuting the Petitioner is hereby declined, the same having been overtaken by events and being devoid of merit.
3) The prayer for an order restraining the 3rd Respondent from suspending, interdicting or taking disciplinary action against the Petitioner is hereby declined for want of a demonstrated factual or legal basis.
4) The prayer for review or suspension of the bail terms imposed by the trial court is hereby declined, the matter properly falling within the jurisdiction of the trial court.
5) The Petition dated 24th March 2026 is hereby dismissed in its entirety.
6) The criminal proceedings in Keroka Chief Magistrate’s Court Anti-Corruption Case MCCGCR/E001/2026 shall proceed to hearing and determination in accordance with the law.
7) Each party shall bear its own costs.
2. The 1st Respondent is the Director of Public Prosecutions, a constitutional office established under Article 157 of the Constitution, vested with the mandate to institute and undertake criminal proceedings and to exercise that mandate independently, subject only to the Constitution and the law.
3. The 2nd Respondent is the Ethics and Anti-Corruption Commission, a constitutional commission established pursuant to Article 79 of the Constitution and clothed with investigative powers in respect of corruption, economic crimes and related offences.
4. The 3rd Respondent is the County Government of Nyamira, being the Petitioner’s employer and the entity under whose authority the impugned construction project was undertaken.
5. The 4th Respondent is the County Assembly of Nyamira, which was the beneficiary of the construction project and in whose name the subject office block was being constructed.
6. The Petition dated 24th March 2026 is expressed to be brought under a wide array of constitutional provisions including Articles 2, 3, 10, 19, 20, 21, 22, 23, 28, 29, 47, 50, 157 and 236 of the Constitution, and is anchored upon the allegation that the Petitioner’s fundamental rights and freedoms have been violated or are threatened with violation by reason of the institution and continuation of criminal proceedings against him.
7. The factual substratum of the Petition is that the Petitioner has been charged before the Keroka Chief Magistrate’s Court Anti-Corruption Court MCCGCR/E001/2026 with the offence of neglect of official duty, arising from his role in the construction of the Nyamira County Assembly Office Block.
8. The gravamen of the Petition is that the prosecution is unlawful, oppressive, and unconstitutional, and that unless this Court intervenes, the Petitioner stands to suffer prejudice, including reputational harm, exposure to unlawful administrative action, and violation of his fair trial rights.
9. The Petitioner therefore seeks the following reliefs:
1) An order staying the criminal proceedings in Keroka Chief Magistrate’s Court Anti-Corruption Case MCCGCR/E001/2026 insofar as they relate to the Petitioner.
2) An order of prohibition restraining the 1st and 2nd Respondents from arresting, re-arresting, or preferring additional charges against the Petitioner arising from the same facts.
3) An order restraining the 3rd Respondent from suspending, interdicting, or taking disciplinary action against the Petitioner on account of the said criminal proceedings.
4) An order reviewing and/or suspending the bail conditions imposed upon the Petitioner in the said criminal case.
5) Such further or other orders as this Honourable Court may deem just.
6) Costs of the Petition.
10. The Petition is supported by the Supporting Affidavit sworn by the Petitioner, Josephat Matini Oruru, on 24th March 2026, in which the Petitioner sets out, in a detailed narrative, the factual background and the constitutional grievances that underpin the Petition.
11. The Petitioner explains that he has been charged with the offence of neglect of official duty, yet the particulars of the charge, as framed, do not in his view disclose the essential ingredients of the offence known in law, and therefore the prosecution is fundamentally defective. He further explains that although the charge is grounded in the Penal Code and does not relate to corruption or economic crimes, he has nonetheless been subjected to proceedings before an Anti-Corruption Court, a circumstance which he contends has occasioned him institutional stigma and prejudice, particularly in light of his position as a public officer.
12. The Petitioner proceeds to depose that prior to the institution of criminal proceedings, he had been subjected to professional inquiry by the Engineers Board of Kenya, which inquiry culminated in a formal determination communicated through a letter dated 25th July 2023 titled “Board Decision on the Conduct of Eng. Josephat Oruru in Regard to the Collapsed Nyamira County Assembly Office Block”, wherein the Board expressly found that he was not culpable in respect of the collapse of the building.
13. The Petitioner further relies on a technical report titled “Report of the Subcommittee of the Board to Inquire on the Collapsed Section of the Nyamira County Assembly Office Block” prepared by the National Construction Authority, which report, according to him, attributes the collapse to structural and scaffolding deficiencies and does not ascribe criminal responsibility to him.
14. The Petitioner elaborates that notwithstanding those findings by professional and technical bodies, he has been charged and jointly arraigned with other accused persons facing corruption and procurement-related offences, yet the alleged conduct attributed to him is distinct and does not arise from the same transaction, thereby rendering the joinder improper and prejudicial.
15. The Petitioner further deposes that the bail terms imposed upon him, including a requirement to deposit cash bail of KES. 500,000 and to surrender his passport, are excessive and disproportionate, particularly having regard to the nature of the offence.
16. The Petitioner also expresses apprehension that as a consequence of being charged in an Anti-Corruption Court, he faces imminent suspension from office pursuant to Section 62 of the Anti-Corruption and Economic Crimes Act, notwithstanding that he is not charged with a corruption offence, which he contends would amount to an unlawful administrative action.
17. In a comprehensive articulation of his constitutional grievances, the Petitioner asserts that the cumulative effect of the foregoing matters is a violation of his rights under Articles 28, 29, 47 and 50 of the Constitution, and he therefore urges this Court to intervene.
18. The 1st Respondent opposed the Petition through a Replying Affidavit sworn by Joel Kibet Chirchir, a Deputy Director of Public Prosecutions, which affidavit, though undated, is expressed to be in reply to the Petition dated 24th March 2026 and is accompanied by annexures in support thereof.
19. The deponent states that the Petitioner was charged in Keroka Chief Magistrate’s Court Anti-Corruption MCCGCR/E001/2026 following investigations conducted by the 2nd Respondent, and that upon completion of those investigations, the resultant inquiry file was forwarded to the Office of the Director of Public Prosecutions for independent review and appropriate action.
20. It is further deponed that upon a comprehensive and independent evaluation of the inquiry file, the Director of Public Prosecutions formed the opinion that there existed sufficient evidence to warrant the institution of criminal proceedings against the Petitioner together with other suspects, and accordingly granted consent to prosecute vide a letter dated 12th March 2026, annexed to the affidavit and marked “JKC1”, in which the charges recommended against the various suspects, including the Petitioner for the offence of neglect of official duty, are expressly set out.
21. The deponent further avers that the decision to institute criminal proceedings was made pursuant to the constitutional mandate of the Director of Public Prosecutions under Article 157 of the Constitution, which vests in that office the authority to institute and undertake criminal proceedings independently and without direction or control from any person or authority.
22. It is also deponed that the Petitioner has already taken plea, has been released on bond upon payment of cash bail, and has been furnished with witness statements and documentary exhibits intended to be relied upon by the prosecution, and that in those circumstances the Petitioner cannot legitimately contend that his right to a fair hearing has been violated.
23. The 1st Respondent maintains that the grievances raised by the Petitioner concerning the propriety of the charge, the sufficiency of the evidence, and the alleged abuse of prosecutorial power are matters that fall squarely within the jurisdiction of the trial court and are amenable to determination in the course of the criminal proceedings.
24. The 2nd Respondent opposed the Petition through a Replying Affidavit sworn by Francis Wafula, an investigator with the Ethics and Anti-Corruption Commission, in which the Commission sets out the factual and statutory basis of the investigations leading to the impugned prosecution, together with annexures in support thereof.
25. The deponent states that the Commission received a report in the year 2018 concerning allegations of irregular procurement in the award of the tender for the construction of the Nyamira County Assembly office block, as well as allegations of misappropriation of public funds, and that upon receipt of that report, investigations were commenced in exercise of the Commission’s statutory mandate.
26. It is further deponed that the Petitioner was at all material times a member of the team appointed to review structural designs and approve the construction of the said office block, and that upon commencement of the project he was appointed as Project Manager and Structural Engineer on 16th September 2019, as evidenced by the letter annexed to the affidavit and marked “R1”, which sets out the composition of the Contract Implementation Team and delineates the roles and responsibilities assigned to the Petitioner within that framework.
27. The deponent further avers that while the Petitioner was supervising the project in his capacity as Project Manager and Structural Engineer, a section of the building at the entrance canopy collapsed, thereby precipitating further investigations into the circumstances surrounding the construction and the conduct of the persons responsible for the implementation of the project.
28. It is deponed that upon conclusion of the investigations, and pursuant to Section 35 of the Anti-Corruption and Economic Crimes Act as read together with the Commission’s statutory mandate, the inquiry file was forwarded to the 1st Respondent for independent review and appropriate action, following which the Director of Public Prosecutions, acting under Article 157(6) of the Constitution, made an independent decision to institute criminal proceedings against the Petitioner and other suspects.
29. The 2nd Respondent maintains that the charges preferred against the Petitioner disclose offences known in law, that the Petitioner has not demonstrated that the prosecution is actuated by malice or constitutes an abuse of the court process, and further asserts that by virtue of Section 193A of the Criminal Procedure Code, the existence of parallel processes or prior investigations by professional bodies does not bar the institution or continuation of criminal proceedings where the facts disclose the commission of an offence.
30. Arising directly from the reliefs sought and the pleadings filed, this Court identifies the following issues for determination:
1) Whether the Petitioner has established a basis for the grant of an order staying the criminal proceedings.
2) Whether the Petitioner has established grounds for the grant of an order of prohibition
3) Whether the Petitioner is entitled to an order restraining disciplinary action
4) Whether this Court should interfere with the bail terms imposed by the trial court
5) Whether the Petitioner has demonstrated violation or threatened violation of his constitutional rights.
31. This Court now turns to determine, in a structured and sequential manner, the issues that arise for determination, which issues flow directly from the reliefs sought in the Petition. This Court is mindful that the orders sought, if granted, would have the effect of halting an ongoing criminal prosecution, restraining the exercise of constitutional and statutory mandates by public bodies, and intervening in interlocutory matters falling within the jurisdiction of a subordinate court. It is therefore imperative that the applicable legal principles be applied with precision, fidelity to precedent, and due regard to the constitutional architecture governing criminal justice.
32. The first and central issue is whether this Court should grant an order staying the criminal proceedings pending before the Keroka Chief Magistrate’s Court. The grant of such an order is not a routine exercise of judicial discretion but an exceptional remedy that directly implicates the administration of criminal justice.
33. The jurisprudence of the Court of Appeal has, over time, crystallised the principle that courts ought to be slow to interfere with criminal proceedings unless it is demonstrated that the proceedings are instituted in abuse of the court process, are actuated by malice, or would result in a violation of the accused person’s constitutional rights.
34. In Ndegwa & 3 others v Republic & another (Criminal Application E014, E015 & E016 of 2022 (Consolidated)) [2023] KECA 211 (KLR), the Court of Appeal reaffirmed that an order staying criminal proceedings is granted sparingly and only in exceptional circumstances, emphasizing that such discretion must be exercised judicially and on sound legal principles rather than conjecture or apprehension. Although that decision arose in the context of a post-judgment application, the principle it reiterates is of general application to all instances where a party seeks to arrest the criminal process. The Court in that case underscored the need to avoid unwarranted interruption of criminal proceedings, noting that such interruption delays the course of justice and undermines public interest in the prosecution of offences.
35. The same principle finds expression in Republic v Kenya Anti-Corruption Commission & 2 others (Civil Application No. 51 of 2008) [2009] KECA 387 (KLR), where the Court of Appeal held that intervention to halt criminal proceedings is only justified where there is clear evidence of abuse of process, oppression, or violation of constitutional rights.
36. This Court further draws guidance from Manilal Jamnandas Ramji Gohil v Director of Public Prosecutions (Criminal Appeal (Application) No. 57 of 2013) [2014] KECA 806 (KLR), where the applicant sought to terminate a criminal trial on grounds that it was oppressive and discriminatory. In declining to grant the orders sought, the Court of Appeal held that allegations of malice, insufficiency of evidence, or improper motive are matters that ought to be ventilated before the trial court, which is vested with the jurisdiction to evaluate evidence and determine the validity of the charge.
37. That reasoning is directly applicable to the present case. The Petitioner’s principal complaints are that the charge does not disclose the essential ingredients of the offence, that he was exonerated by the Engineers Board of Kenya and other technical bodies, and that the prosecution is therefore unwarranted. Those complaints, however forcefully articulated, are quintessentially matters of defence that require evidential interrogation and legal evaluation within the trial process.
38. The trial court is the constitutionally and statutorily designated forum for determining whether the charge discloses an offence, whether the evidence is sufficient to sustain the charge, and what weight, if any, should be attached to expert or professional findings such as those emanating from the Engineers Board of Kenya or the National Construction Authority.
39. To accede to the Petitioner’s invitation to halt the prosecution on the basis of those matters would be to usurp the function of the trial court and to convert this Court into a forum for pre-trial evaluation of evidence, a course that has consistently been deprecated by the appellate courts.
40. Furthermore, the material placed before this Court demonstrates that the prosecution was preceded by investigations conducted by the 2nd Respondent and an independent review by the 1st Respondent, acting pursuant to Article 157 of the Constitution. There is no evidence placed before this Court to demonstrate that the decision to prosecute was actuated by malice, bad faith, or any ulterior motive.
41. In the absence of such evidence, and in light of the settled jurisprudence, this Court is unable to conclude that the present case falls within the narrow category of exceptional cases that warrant the grant of an order staying criminal proceedings.
42. Accordingly, the prayer for stay of criminal proceedings is declined.
43. The second issue concerns the prayer for an order of prohibition restraining the Respondents from arresting, re-arresting, or preferring charges against the Petitioner.
44. It is common ground that the Petitioner has already been arrested, charged, and has taken plea before a court of competent jurisdiction. To that extent, the substratum of the prayer for prohibition, insofar as it relates to arrest or charging, has been overtaken by events.
45. The Court of Appeal in Boniface Kyalo Mwololo v Republic (Criminal Application No. Nai 1 of 2016) [2016] KECA 427 (KLR) held that courts do not issue orders in vain or grant reliefs that have been rendered moot by subsequent events, and that judicial intervention must be anchored on a live controversy.
46. Even if this Court were to consider the prayer on its merits, the same would still not succeed. An order of prohibition is a forward-looking remedy intended to restrain unlawful or ultra vires action. It does not lie to undo actions that have already been lawfully undertaken, nor does it issue to halt proceedings that are properly before a court of competent jurisdiction.
47. In the present case, there is no evidence that the Respondents acted outside their constitutional or statutory mandate in arresting and charging the Petitioner. The decision to prosecute was made pursuant to Article 157 of the Constitution, and the Petitioner has not demonstrated any illegality or excess of jurisdiction.
48. The prayer for prohibition is therefore both overtaken by events and devoid of merit.
49. The third issue concerns the Petitioner’s apprehension that he may be subjected to suspension or disciplinary action by the 3rd Respondent on account of the pending criminal proceedings.
50. Whereas this Court appreciates the Petitioner’s concerns, it is a fundamental principle that courts do not act on speculation or conjecture. Judicial intervention is warranted where there is a clear, present, and demonstrable threat to rights, not where the alleged violation is contingent or hypothetical.
51. In the present case, no evidence has been placed before this Court to demonstrate that any disciplinary action has been taken or is imminent, or that any such action would be undertaken in violation of the Constitution or the law.
52. In those circumstances, this Court finds that the claim is premature and does not warrant the grant of the relief sought.
53. The fourth issue concerns the prayer for review or suspension of bail terms imposed by the trial court.
54. It is a settled principle that matters relating to bail fall within the jurisdiction and discretion of the trial court, which is best placed to consider the circumstances of the case and the nature of the offence. This discretion must, however, be exercised within the constitutional framework under Article 49(1)(h) of the Constitution of Kenya, which guarantees an arrested person the right to be released on bond or bail on reasonable conditions, unless there are compelling reasons to the contrary.
55. In Helmuth Rame v Republic (Criminal Application No. 1 of 2015) [2015] KECA 735 (KLR), the Court of Appeal emphasized that superior courts should exercise restraint in interfering with interlocutory decisions of trial courts in criminal proceedings, unless it is demonstrated that such decisions are illegal, irrational, or unconstitutional.
56. The Petitioner has not demonstrated that the trial court acted unlawfully or in violation of constitutional principles in setting the bail terms. The appropriate forum for seeking review of those terms remains the trial court itself. This Court therefore declines to interfere with the bail terms.
57. The final issue is whether the Petitioner has demonstrated that his constitutional rights have been violated or are under imminent threat of violation.
58. This Court has carefully considered the material placed before it and finds that the criminal process has been undertaken in accordance with the Constitution and the law. The Petitioner has been informed of the charge, has taken plea, has been granted bail, and has been furnished with the evidence intended to be relied upon by the prosecution.
59. The mere fact of being subjected to criminal proceedings does not, without more, constitute a violation of constitutional rights. As was observed by the Court of Appeal in Manilal Jamnandas Ramji Gohil v Director of Public Prosecutions (supra), the criminal justice system is designed to test allegations through due process, and allegations of malice or abuse must be established through evidence, not presumed.
60. In the present case, no such evidence has been placed before this Court. This Court therefore finds that the Petitioner has not demonstrated any violation or threatened violation of his constitutional rights.
61. Having carefully analysed each of the issues for determination in light of the applicable constitutional and legal principles, and having applied the relevant authorities to the facts of this case, this Court is satisfied that the Petition does not meet the threshold required for the grant of the orders sought.
62. The Petition is, in essence, an invitation to this Court to prematurely terminate a lawful prosecution and to determine matters that properly fall within the jurisdiction of the trial court, which invitation this Court must decline in fidelity to established jurisprudence.
63. Flowing from the foregoing analysis and determination of each of the issues identified for resolution, the Court makes the following final orders:
1) The prayer for an order staying the criminal proceedings in Keroka Chief Magistrate’s Court Anti-Corruption Case MCCGCR/E001/2026 is hereby declined.
2) The prayer for an order of prohibition restraining the 1st and 2nd Respondents from arresting, re-arresting or prosecuting the Petitioner is hereby declined, the same having been overtaken by events and being devoid of merit.
3) The prayer for an order restraining the 3rd Respondent from suspending, interdicting or taking disciplinary action against the Petitioner is hereby declined for want of a demonstrated factual or legal basis.
4) The prayer for review or suspension of the bail terms imposed by the trial court is hereby declined, the matter properly falling within the jurisdiction of the trial court.
5) The Petition dated 24th March 2026 is hereby dismissed in its entirety.
6) The criminal proceedings in Keroka Chief Magistrate’s Court Anti-Corruption Case MCCGCR/E001/2026 shall proceed to hearing and determination in accordance with the law.
7) Each party shall bear its own costs.