1. The Application that is before the court for determination is the Notice of Motion Application dated 3rd September 2025 where the Applicant seeks the following orders;
1) That this Honourable Court be pleased to grant a Judicial Review Order of PROHIBITION to prohibit and prevent the Respondents, the Kilimani Sub-County Criminal Investigations Officer (SCCIO) or any other officer under their command from continuing with investigations, summoning and arresting the officers of the Exparte Applicant or otherwise, in connection with the Complaint lodged at Kilimani Sub-County Criminal Investigations Office (SCCIO) by the Interested Party vide 0B No. 34/26/05/2025.
2) That this Honourable Court be pleased to issue such further orders and/or reliefs as it may deem just and expedient.
3) That costs of this Application be awarded to the Exparte Applicant.
The Applicants’ case;
2. According to Christine Masika the General Manager of the Applicant a through a meeting held on 11th November, 2022, the ownership/management of the Applicant changed hands to its current directorship/shareholding.
3. It argues that sometimes in the year 2023, the Applicant received a request from the proprietor of parcels of land reference numbers Kajiado/Kaputei North/27322, 31964, 25163, 4081 and 34665, Mr. Pius Nyabuga Mochoge (deceased), through his then advocates, M/S Bryan Khaemba, Kamau Kamau & Company Advocates, for the Applicant to release the same on the strength of a Professional Undertaking.
4. The Applicant released the subject title deeds to the firm of Bryan Khaemba, Kamau Kamau & Company Advocates for onward transmission to the proprietor on the strength of the Professional Undertaking dated 20th July, 2023.
5. Thereafter, the Applicant came to learn that the proprietor had disposed of and transferred the entire parcels of land to NewLife Prayer Centre and Church but made no payment to it.
6. On 27th May, 2025, the Applicant received a letter from the Kilimani Sub County Criminal Investigations Office, notifying it of a complaint of forgery and requested for the loan supporting documents.
7. The Applicant forwarded certified copies of the subject title deeds vide a letter dated 24th June, 2025, through its advocates, and also explained as to why it did not have the other requested documents. In addition, in the said letter, the Applicant was very categorical that its current management did not advance any loan facility to the deceased proprietor.
8. The firm of M/s Bryan Khaemba, Kamau Kamau & Co. Advocates, wrote a letter dated 17th July, 2025 to Mulwa Nduya & Company Advocates, who was acting for the purchaser in the sale of the parcels of land, and copied to Obonyo and Osiemo advocates, who represents the Interested Party, informing them that the Applicant had confirmed that the Professional Undertaking dated 20th July, 2023 was unenforceable against that firm and advised the purchaser to proceed and make payment of any balance due to the estate of the deceased proprietor.
9. Initially, the 2nd Respondent had filed Nairobi Misc. Criminal Application No. E2301/2025, which has now been determined, in which it was seeking orders to investigate the Applicant, whereby all these correspondences were availed. For instance, in the further affidavit of the Applicant sworn on 28th July, 2025, at paragraph seven (7) thereof, the Applicant was categorical that in the absence of the loan supporting documents, it had considered the loan to be irrecoverable and closed its file with no further action.
10. The 2nd Respondent, through the Kilimani Sub-County Criminal Investigations Office requested Mr. Bryan Khaemba, Advocate, who is also currently represents the Applicant, to record a statement dated 5th August, 2025.
11. He argues that the lawyer clarified each and every element touching on matter under investigations, including a further confirmation that the Applicant has made an undertaking not to enforce the Professional Undertaking and that the estate of the deceased bears no liability for the loan in question.
12. Nonetheless, despite the said unequivocal undertakings, explanations and clarifications, the 2nd Respondent, through the Kilimani Sub-County Criminal Investigations Office; has still summoned the Applicant's CEO vide a letter dated 27th August, 2025, for statement recording and supply of documents, which documents were already supplied, which action poses serious negative image of the Applicant in the eyes of its clients, it is the Applicants case that the unending criminal investigations against the Applicant in relation to the same Complaint are on the face of it, unlawful, unconstitutional, and an abuse of the criminal justice process.
13. The Applicant argues that it continues to be subjected to unfettered harassment through unending investigations intended to punish, inconvenience, prejudice, ridicule, embarrass and frustrate it contrary to the constitutional values and principles that underlie the administration of the criminal justice system.
14. In the Further Affidavit Christine Masika, argues it is evident that the allegations of forgery together with the investigations being mounted by the Respondents in that regard, have no nexus and/or correlation whatsoever with the Exparte Applicant thus laying credence to its assertion that the Respondents are abusing their investigative powers to harass, intimidate and prejudice the Exparte Applicant.
15. Per the Respondent’s own admissions, the complaint of forgery pertains to the Agency Agreement ostensibly dated the 20th March, 2019 between one Pius Nyabuga and Mary Wangari Maina and this is indeed confirmed by the Forensic Document examiner’s report that only analyzed the said Agency Agreement.
16. It is her case that neither of the said persons in the Agency Agreement is a party to this case and similarly, no such Agency Agreement has been produced before this Honourable Court perusal and determination.
17. The said Agency Agreement together with the forensic document examiner’s report as well as the persons subject thereof, are in no way related to the Exparte Applicant or the investigations being mounted by the Respondents against the Applicant.
18. The Exparte Applicant has clarified to the Respondents times without a number, it has no claim whatsoever against the Estate of the late Pius Nyabuga Mochoge based on the loan obtained from it because other than the original land title documents, it did not receive any other supporting loan documents from the previous ownership of the company upon taking over its ownership and management.
19. As a consequence, thereof, the Exparte Applicant had no other option but to count the said loan as a bad debt for which it had become impossible to recover without any other supporting loan documentation other than the original land title documents that had been handed to it.
20. It argues that there is nothing whatsoever that the Exparte Applicant is being accused of forging and the insistence by the Respondents herein to summon and harass the Exparte Applicant and its officers over allegations and complaints that have no bearing to them and/or point to no wrongdoing on their part is illegal, unlawful and an abuse of their investigative powers.
21. The Respondents are insistent on having the Exparte Applicant’s officers produce documents which it has communicated severally that it does not have in its possession and despite having relinquished their claims against the Estate of the late Pius Nyabuga Mochoge due to the absence of the said documentation.
22. It is argued that the Respondents have not produced any evidence to indicate that the investigations that they are conducting have anything to do with the Exparte Applicant as the same clearly relates to an Agency Agreement for which the Exparte Applicant knows nothing about.
23. It is the Applicant’s case that having failed to establish any nexus between the complaint lodged with the Respondents and the Exparte Applicant, there is no plausible reason that the Respondents continue to harass the Exparte Applicant and its officers under the guise of investigations on matters that have nothing to do with it.
The Applicants Submissions;
24. It is its submission that the Respondents’ mandate under section 24 of the National Police Service includes the investigation of crimes.
25. This Honourable Court as a bastion of justice, has the discretion through judicial review intervention to stop any such conduct of public officers such as the Respondents herein when exercising their mandate, if it deems their actions smack with illegality, irrationality and procedural impropriety.
26. In the case of Hon. Justice Aggrey Muchelule v Inspector General of Police (JR Application No. E112 of 2021) Ngaah Jairus J held as follows,
“Lord Diplock in the English Decision of Council of Civil Service Unions V Minister for the Civil Service (1985) A.C 374, 410. The Learned Judge explained the judicial review grounds as follows, “Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “Illegality”, the second “Irrationality” and the third “Procedural Impropriety.” That is not to say that further development on case-by-case basis may not in the course of time add further grounds. I have in my mind particularly the possible adoption of the principle of “proportionality”.
27. By illegality, the court went ahead to denotes where one clearly acts in contravention of the law that governs their decision making, by irrationality the same was interpreted to mean a decision/action which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mid to the question to be decided could have arrived at it and finally, the court interpreted procedural to mean failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.
28. In the case of Republic v Director of Public Prosecutions & another; John Ngugi Kabogo (Interested Party) Ex parte Harrison Wangoro Mwangi & another [2020] eKLR Mativo J extensively discussed the powers of this court to intervene and stop investigations in certain circumstances. The learned judge explained as follows:
“The objective of judicial intervention is to ensure that the agency remained within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature, hence not contravening the will of Parliament. In such a case, a court will not interfere with the decision. A decision, which falls outside that area, can therefore be described, interchangeably, as: - a decision to which no reasonable decision-maker could have come; or a decision, which was not reasonably open in the circumstances… The proper approach is to establish, factually, whether an irregularity occurred. Then the irregularity must be legally evaluated to determine whether it amounts to a ground for the court to intervene. This legal evaluation must, where appropriate, take into account the materiality of any deviance from legal requirements, by linking the question of compliance to the purpose of the provision, before concluding that a ground for the court to intervene has been established. The exercise of public power is only legitimate when lawful. A body exercising public power has to act within the powers lawfully conferred upon it. Decision-makers should not pursue ends which are outside the objects and purposes of the statute. Power should not be ‘‘exceeded’’ or that the purposes pursued by the decision-maker should not be ‘‘improper,’’ ‘‘ulterior,’’ or ‘‘extraneous’’ to those required by the statute in question. It is also said that ‘‘irrelevant considerations’’ should not be taken into account in reaching at a decision.”
29. This Honourable Court indeed has the powers to intervene where it is evident that the actions of the Respondents smack of illegality, irrationality and/or are an abuse of their powers in that they go beyond the scope of their objectives as intended by Parliament.
30. It is not in dispute that the investigations mounted against the Exparte Applicant which now form the basis of the present proceedings emanated from a complaint lodged by the Interested Party at the Kilimani Sub-County Investigations Office (SCCIO) vide OB No. 34/26/05/2025 which the Respondent has categorically stated was about forgery.
31. It submits that nowhere in its Replying Affidavit, have the Respondents demonstrated any nexus between the said complaint/allegation of forgery and the Exparte Applicant herein or any of its officers. Indeed, even from the documentary evidence provided by the Respondents in the Replying Affidavit, the said allegation of forgery relates to an Agency Agreement ostensibly dated the 20thMarch, 2019 between one Pius Nyabuga Mochoge and one Mary Wangari Maina.
32. It is this very same Agency Agreement that was subjected to a handwriting analysis in which the document examiner therein formed a professional opinion that the signatures of the late Pius Nyabuga Mochoge as appearing therein were a forgery.
33. The said agreement does not in any way involve the Exparte Applicant herein and similarly, the same has not been produced before this Court by the Respondents for its own perusal and it must not be lost to the court that neither of the said parties to the impugned Agency Agreement, are parties to these proceedings.
34. The Applicant submits that despite clearly the said Agency Agreement subject of the forgery investigations having no correlation whatsoever to the Exparte Applicant herein, the Respondents herein have been insistent on subjecting the Exparte Applicant to unending summons and incessant investigations over allegations to which it is clearly a stranger to.
35. The question that therefore falls is whether subjecting a party to investigations to which they have no correlation to the complaint lodged is an abuse of the Respondents’ investigative powers? It is its humble submission that indeed the answer would be in the affirmative.
36. It submits that neither the forensic document examiner’s report, nor the Agency Agreement to which the allegations of forgery relate to, have anything to do with the Exparte Applicant.
37. According to the Applicant, it beats logic as to why the Respondent would insist on investigation the Exparte Applicant and subject its officers to unnecessary and unending summons that are gravely prejudicial to its business and existence, over a complaint and investigations that have no bearing whatsoever to it.
38. The only inescapable conclusion is that the Respondents have an ulterior motive that is not geared towards the genuine enforcement of criminal law.
39. In the case of Chumo v Boit & 4 others (Judicial Review 5 of 2022) [2023] KEHC 25693 (KLR), S.M Githinji J held as follows,
“This court can only intervene if there are cogent allegations of violation of the Constitution or the law or in clear circumstances where it is evident that a citizen is being interrogated for a non-existent offence or an offence unknown to the law. The court can also intervene where it is clear the police have abused their powers. The inherent jurisdiction of the court to stop police investigations or a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances.
The high court will only prohibit or quash or stop arrest or investigations or prosecutions in cases where it would be impossible to give the accused a fair trial or where the investigations is illegal; or where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
A police investigation or a criminal prosecution can be stopped if it was commenced in the absence of proper factual foundation. The enquiry is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial or a police investigation to be initiated or conducted. Fair investigations or fair trial entails the interests of the accused and the victim and of the society.”
40. One of the grounds upon which police investigations can be stopped is where the same are commenced in the absence of a proper factual foundation.
41. The Applicant believes that it has demonstrated that the factual circumstances of the complaint and as have similarly been highlighted by the Respondents themselves, have noting to do with the Exparte Applicant.
42. The same relates to an allegation of forgery of an Agency Agreement which has not been produced and in which the parties as identified by the document examiner’s report do not involve the Exparte Applicant in any manner.
43. The Exparte Applicant was not a party to the said Agency Agreement and as such, the Respondents cannot purport to investigate it from an allegation of forgery as emanating therein.
44. As pertains to the loan offered to the late Pius Nyabuga Mochoge by the Exparte Applicant, the Respondents indeed admit that in the correspondences between themselves and the Exparte Applicant, the latter explained clearly that it had to count the loan as a bad debt and would not be pursuing its recovery due to the absence of the supporting loan documents.
45. It contends that upon taking over of the management and ownership of the company from the previous ownership, it was only handed the original title documents of the deceased’s parcels of land with no supporting loan documents making it virtually impossible to recover the said facility.
46. As a consequence of the above, it communicates clearly through its advocates that it would not be pursuing the recovery of the said loan in the absence of any supporting documents in that regard.
47. According to the Applicant it is thus illogical and irrational for the Respondents to insist to be supplied with loan documents which the Exparte Applicant has clearly indicated are not in its possession and as a result of that, it is unable to pursue any recovery of the loan as against the estate of the said deceased person.
48. The Applicant also filed further submissions wherein it submits that its business operations are not licensed nor regulated by the Central Bank of Kenya.
49. Further, the Exparte Applicant contends that there is no nexus between itself and the complaints lodged by the Interested Party as the same clearly concern an Agency Agreement that it was not a party to nor privity to and a professional undertaking issued by the deceased’s own advocates.
50. The Exparte Applicants further contends that upon taking over the management of the Exparte Applicant, they were only handed over title documents for the loan facility with no other supporting documents but which the deceased through his advocates had acknowledged and issued a professional undertaking for payment of the balance thereof upon receipt of the said title documents which it issued.
51. The Exparte Applicant indicates that it became hard to enforce the said undertaking without any supporting documentation especially upon the demise of the deceased and abandoned the loan and counting it as bad debt but the Respondents were insistent on summoning it to produce documentation that it had already indicated was not its possession.
52. It is the Exparte Applicant’s case that it is not strange for corporations to lose data which significantly affects the relevant transactions related to the said data especially in situations of takeover or change of ownership and having already abandoned pursuit of the loan facility on grounds of having no data, information or supporting documentation of the loan facility, the continued investigations against it are punitive, malicious and unlawful as nothing therein points towards any criminal element on its part.
53. The Exparte Applicant’s further indicates that the allegations of forgery of an agency agreement have no nexus to it and the Respondents are abusing their investigative powers to harass, intimidate and prejudice it at the behest of the Interested Party.
54. Reliance is placed in the case of Chumo v Boit & 4 others (Judicial Review 5 of 2022) [2023] KEHC 25693 (KLR), S.M Githinji J held as follows,
“This court can only intervene if there are cogent allegations of violation of the Constitution or the law or in clear circumstances where it is evident that a citizen is being interrogated for a non-existent offence or an offence unknown to the law. The court can also intervene where it is clear the police have abused their powers. The inherent jurisdiction of the court to stop police investigations or a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances.
The high court will only prohibit or quash or stop arrest or investigations or prosecutions in cases where it would be impossible to give the accused a fair trial or where the investigations is illegal; or where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
A police investigation or a criminal prosecution can be stopped if it was commenced in the absence of proper factual foundation. The enquiry is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial or a police investigation to be initiated or conducted. Fair investigations or fair trial entails the interests of the accused and the victim and of the society.”
55. It submits that any police investigations ought to be commenced upon a proper factual foundation.
56. The said factual foundation can only arise from a complaint which points to a criminal element that then affords the investigative authorities the power to investigate further and determine whether a crime has been committed or not.
57. It submits that as the Interested Party has correctly pointed out, this Honourable Court would be perfectly in order to intervene and stop the impugned investigation process if illegality, irregularity or procedural impropriety is manifest or where clearly the said investigations are an abuse of process.
58. In Patrick Macharia Nderitu v Director of CID & another [2017] eKLR, the court defined the above grounds as follows,
“Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Irrationality is where there is such gross unreasonableness in the decision taken or act done, that no reasonable authority addressing itself to the facts before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standard. Procedural impropriety is where there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”
59. The Applicant submits that the actions of the Respondents are irrational as the purported continued investigations despite the information in the possession, as the Respondents themselves have admitted, is that they want the officers of the Exparte Applicant to appear and record a statement as well as produce the supporting loan documents for the loan. However, the Exparte Applicant has severally informed the Respondents that it does not currently possess the same documents as the same seem to have been lost during the taking over of management of the company. It submits that these documents were not supplied to it by the previous management and ownership.
60. It further submits that with this information, no reasonable person would still insist on the Exparte Applicants producing the said documents despite a clear indication that it does not have the same.
61. The said investigations by the Appellant are tainted with procedural impropriety. It is not in contention that the basis of investigations is a complaint.
62. As such the said complainant must disclose reasonable information against a subject of investigation to warrant commencement and/or continuation of the said investigations.
63. In the case of Republic v OCS, Nairobi Central Police Station & 2 Others; Ex parte Applicant: Sixtus Gitonga Mugo [2020] KEHC 7039 (KLR), the court held as follows,
“A criminal investigation can be stopped if it was commenced in the absence of proper factual foundation. The enquiry is whether there has been an irregularity or an illegality that is a departure from the formalities, rules and principles of procedure according to which our law requires a police investigation to be initiated or conducted. Fairness entails the interests of the suspect, the complainant and of the society.... In my view, police investigations should be commenced or continued if there is admissible, substantial and reliable complaint that a criminal offence known to the law has been committed by the suspect.”
64. It submits that the commencement and continuous of criminal investigations in the absence of a proper factual foundation indicating a crime may have been committed by the suspect would be illegal and unprocedurally fair as the same would imply an ulterior motive towards the subject of the investigations.
65. In this case,the Interested Party (Complainant) and the Respondents admit that the basis of the investigations was an allegation of a forged agency agreement and a fraudulent professional undertaking. Neither of these documents emanated from the complaint herein and there is no claim in that regard by either of the parties.
66. It further submits that whereas the persons who issued the professional undertaking have not disowned it nor made any complaint against the Exparte Applicant as the same would have indeed been issued on the strength of their client’s instructions who clearly had knowledge of the facility, the Exparte Applicant is neither a party to nor privy to the Agency Agreement that was the basis of the Interested Party’s complaint.
67. It is its case that there is no nexus between the complaint by the Interested Party and the Exparte Applicant herein.
68. The Applicant submits that the Respondents are just abusing their wide discretionary investigative powers to harass, intimidate and prejudice it.
69. It submits that this is evident as how the investigations morphed from one based on a complaint by the Interested Party which as we have demonstrated there is no nexus, to an investigation as to how the Exparte Applicant is conducting business without being licensed by the Central Bank of Kenya.
70. However again nothing turns on this issue as the Exparte Applicant is neither licensed not regulated by the Central Bank of Kenya and no law has been broken in that regard.
71. In the letter dated the 8th June, 2017 the CBK expressly confirmed that it neither license not regulates the Exparte Applicant’s business and thus gave its green light for the Exparte Applicant’s registration and commencement of business operations.
The 2nd Respondents Case;
72. The 2nd Respondent opposes the Application through the Replying Affidavit of No. 249118 PC (w) Irene Karegi who is investigating a criminal case of forgery contrary to section 345 as read with section 349 of the penal code chapter 63Laws of Kenya reported vide 0B NO. 34/26/05/2025 Kilimani Police Station.
73. The investigating officer argues that she received a complaint from the interest party herein. She interviewed the interested party herein to establish factual basis of his complaint.
74. The interested party herein received a letter from the Exparte Applicant, signed on behalf of his late father stating that his late father had secured a loan of ksh85.OOO.OOO/= with Magnum credit using title deed numbers KAJIADO/KAPUTEI and 4081.
75. The interested party had neither been informed by his late father Mr. Pius Nyabuga Mochoge of such transaction nor could he trace the transaction.
76. It also received a tenancy agreement between his late father and Mary Wangari which had a forged signature of his late father.
77. She wrote to the manager Magnum credit Limited to furnish her with documents to facilitate the completion of the investigations on the allegation of forgery vide OB NO. 34/26/05/2025.
78. The Applicant filed an Application vide Nairobi Misc. Criminal Application No. E 2301 /2025 where it obtained warrants to investigate the loan transactions and call for the valuation report of the title deeds, loan statement and further to have a competent representative of the company to record a statement in respect of the loans and any other information likely to assist in investigations.
79. The Respondent sought for orders that Exparte Applicant to allow her to inspect the relevant documents used to secure the alleged loan and further avail her with duly certified copies of documents.
80. She wanted the title deeds for KAJIADO/KAPUTEI NORTH/27322, 31964,25163 and 4081 in the Respondent’s custody, the valuation report of the said title deeds, the loan statement in respect of the said title deeds, respective ac
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1) That this Honourable Court be pleased to grant a Judicial Review Order of PROHIBITION to prohibit and prevent the Respondents, the Kilimani Sub-County Criminal Investigations Officer (SCCIO) or any other officer under their command from continuing with investigations, summoning and arresting the officers of the Exparte Applicant or otherwise, in connection with the Complaint lodged at Kilimani Sub-County Criminal Investigations Office (SCCIO) by the Interested Party vide 0B No. 34/26/05/2025.
2) That this Honourable Court be pleased to issue such further orders and/or reliefs as it may deem just and expedient.
3) That costs of this Application be awarded to the Exparte Applicant.
The Applicants’ case;
2. According to Christine Masika the General Manager of the Applicant a through a meeting held on 11th November, 2022, the ownership/management of the Applicant changed hands to its current directorship/shareholding.
3. It argues that sometimes in the year 2023, the Applicant received a request from the proprietor of parcels of land reference numbers Kajiado/Kaputei North/27322, 31964, 25163, 4081 and 34665, Mr. Pius Nyabuga Mochoge (deceased), through his then advocates, M/S Bryan Khaemba, Kamau Kamau & Company Advocates, for the Applicant to release the same on the strength of a Professional Undertaking.
4. The Applicant released the subject title deeds to the firm of Bryan Khaemba, Kamau Kamau & Company Advocates for onward transmission to the proprietor on the strength of the Professional Undertaking dated 20th July, 2023.
5. Thereafter, the Applicant came to learn that the proprietor had disposed of and transferred the entire parcels of land to NewLife Prayer Centre and Church but made no payment to it.
6. On 27th May, 2025, the Applicant received a letter from the Kilimani Sub County Criminal Investigations Office, notifying it of a complaint of forgery and requested for the loan supporting documents.
7. The Applicant forwarded certified copies of the subject title deeds vide a letter dated 24th June, 2025, through its advocates, and also explained as to why it did not have the other requested documents. In addition, in the said letter, the Applicant was very categorical that its current management did not advance any loan facility to the deceased proprietor.
8. The firm of M/s Bryan Khaemba, Kamau Kamau & Co. Advocates, wrote a letter dated 17th July, 2025 to Mulwa Nduya & Company Advocates, who was acting for the purchaser in the sale of the parcels of land, and copied to Obonyo and Osiemo advocates, who represents the Interested Party, informing them that the Applicant had confirmed that the Professional Undertaking dated 20th July, 2023 was unenforceable against that firm and advised the purchaser to proceed and make payment of any balance due to the estate of the deceased proprietor.
9. Initially, the 2nd Respondent had filed Nairobi Misc. Criminal Application No. E2301/2025, which has now been determined, in which it was seeking orders to investigate the Applicant, whereby all these correspondences were availed. For instance, in the further affidavit of the Applicant sworn on 28th July, 2025, at paragraph seven (7) thereof, the Applicant was categorical that in the absence of the loan supporting documents, it had considered the loan to be irrecoverable and closed its file with no further action.
10. The 2nd Respondent, through the Kilimani Sub-County Criminal Investigations Office requested Mr. Bryan Khaemba, Advocate, who is also currently represents the Applicant, to record a statement dated 5th August, 2025.
11. He argues that the lawyer clarified each and every element touching on matter under investigations, including a further confirmation that the Applicant has made an undertaking not to enforce the Professional Undertaking and that the estate of the deceased bears no liability for the loan in question.
12. Nonetheless, despite the said unequivocal undertakings, explanations and clarifications, the 2nd Respondent, through the Kilimani Sub-County Criminal Investigations Office; has still summoned the Applicant's CEO vide a letter dated 27th August, 2025, for statement recording and supply of documents, which documents were already supplied, which action poses serious negative image of the Applicant in the eyes of its clients, it is the Applicants case that the unending criminal investigations against the Applicant in relation to the same Complaint are on the face of it, unlawful, unconstitutional, and an abuse of the criminal justice process.
13. The Applicant argues that it continues to be subjected to unfettered harassment through unending investigations intended to punish, inconvenience, prejudice, ridicule, embarrass and frustrate it contrary to the constitutional values and principles that underlie the administration of the criminal justice system.
14. In the Further Affidavit Christine Masika, argues it is evident that the allegations of forgery together with the investigations being mounted by the Respondents in that regard, have no nexus and/or correlation whatsoever with the Exparte Applicant thus laying credence to its assertion that the Respondents are abusing their investigative powers to harass, intimidate and prejudice the Exparte Applicant.
15. Per the Respondent’s own admissions, the complaint of forgery pertains to the Agency Agreement ostensibly dated the 20th March, 2019 between one Pius Nyabuga and Mary Wangari Maina and this is indeed confirmed by the Forensic Document examiner’s report that only analyzed the said Agency Agreement.
16. It is her case that neither of the said persons in the Agency Agreement is a party to this case and similarly, no such Agency Agreement has been produced before this Honourable Court perusal and determination.
17. The said Agency Agreement together with the forensic document examiner’s report as well as the persons subject thereof, are in no way related to the Exparte Applicant or the investigations being mounted by the Respondents against the Applicant.
18. The Exparte Applicant has clarified to the Respondents times without a number, it has no claim whatsoever against the Estate of the late Pius Nyabuga Mochoge based on the loan obtained from it because other than the original land title documents, it did not receive any other supporting loan documents from the previous ownership of the company upon taking over its ownership and management.
19. As a consequence, thereof, the Exparte Applicant had no other option but to count the said loan as a bad debt for which it had become impossible to recover without any other supporting loan documentation other than the original land title documents that had been handed to it.
20. It argues that there is nothing whatsoever that the Exparte Applicant is being accused of forging and the insistence by the Respondents herein to summon and harass the Exparte Applicant and its officers over allegations and complaints that have no bearing to them and/or point to no wrongdoing on their part is illegal, unlawful and an abuse of their investigative powers.
21. The Respondents are insistent on having the Exparte Applicant’s officers produce documents which it has communicated severally that it does not have in its possession and despite having relinquished their claims against the Estate of the late Pius Nyabuga Mochoge due to the absence of the said documentation.
22. It is argued that the Respondents have not produced any evidence to indicate that the investigations that they are conducting have anything to do with the Exparte Applicant as the same clearly relates to an Agency Agreement for which the Exparte Applicant knows nothing about.
23. It is the Applicant’s case that having failed to establish any nexus between the complaint lodged with the Respondents and the Exparte Applicant, there is no plausible reason that the Respondents continue to harass the Exparte Applicant and its officers under the guise of investigations on matters that have nothing to do with it.
The Applicants Submissions;
24. It is its submission that the Respondents’ mandate under section 24 of the National Police Service includes the investigation of crimes.
25. This Honourable Court as a bastion of justice, has the discretion through judicial review intervention to stop any such conduct of public officers such as the Respondents herein when exercising their mandate, if it deems their actions smack with illegality, irrationality and procedural impropriety.
26. In the case of Hon. Justice Aggrey Muchelule v Inspector General of Police (JR Application No. E112 of 2021) Ngaah Jairus J held as follows,
“Lord Diplock in the English Decision of Council of Civil Service Unions V Minister for the Civil Service (1985) A.C 374, 410. The Learned Judge explained the judicial review grounds as follows, “Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “Illegality”, the second “Irrationality” and the third “Procedural Impropriety.” That is not to say that further development on case-by-case basis may not in the course of time add further grounds. I have in my mind particularly the possible adoption of the principle of “proportionality”.
27. By illegality, the court went ahead to denotes where one clearly acts in contravention of the law that governs their decision making, by irrationality the same was interpreted to mean a decision/action which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mid to the question to be decided could have arrived at it and finally, the court interpreted procedural to mean failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.
28. In the case of Republic v Director of Public Prosecutions & another; John Ngugi Kabogo (Interested Party) Ex parte Harrison Wangoro Mwangi & another [2020] eKLR Mativo J extensively discussed the powers of this court to intervene and stop investigations in certain circumstances. The learned judge explained as follows:
“The objective of judicial intervention is to ensure that the agency remained within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature, hence not contravening the will of Parliament. In such a case, a court will not interfere with the decision. A decision, which falls outside that area, can therefore be described, interchangeably, as: - a decision to which no reasonable decision-maker could have come; or a decision, which was not reasonably open in the circumstances… The proper approach is to establish, factually, whether an irregularity occurred. Then the irregularity must be legally evaluated to determine whether it amounts to a ground for the court to intervene. This legal evaluation must, where appropriate, take into account the materiality of any deviance from legal requirements, by linking the question of compliance to the purpose of the provision, before concluding that a ground for the court to intervene has been established. The exercise of public power is only legitimate when lawful. A body exercising public power has to act within the powers lawfully conferred upon it. Decision-makers should not pursue ends which are outside the objects and purposes of the statute. Power should not be ‘‘exceeded’’ or that the purposes pursued by the decision-maker should not be ‘‘improper,’’ ‘‘ulterior,’’ or ‘‘extraneous’’ to those required by the statute in question. It is also said that ‘‘irrelevant considerations’’ should not be taken into account in reaching at a decision.”
29. This Honourable Court indeed has the powers to intervene where it is evident that the actions of the Respondents smack of illegality, irrationality and/or are an abuse of their powers in that they go beyond the scope of their objectives as intended by Parliament.
30. It is not in dispute that the investigations mounted against the Exparte Applicant which now form the basis of the present proceedings emanated from a complaint lodged by the Interested Party at the Kilimani Sub-County Investigations Office (SCCIO) vide OB No. 34/26/05/2025 which the Respondent has categorically stated was about forgery.
31. It submits that nowhere in its Replying Affidavit, have the Respondents demonstrated any nexus between the said complaint/allegation of forgery and the Exparte Applicant herein or any of its officers. Indeed, even from the documentary evidence provided by the Respondents in the Replying Affidavit, the said allegation of forgery relates to an Agency Agreement ostensibly dated the 20thMarch, 2019 between one Pius Nyabuga Mochoge and one Mary Wangari Maina.
32. It is this very same Agency Agreement that was subjected to a handwriting analysis in which the document examiner therein formed a professional opinion that the signatures of the late Pius Nyabuga Mochoge as appearing therein were a forgery.
33. The said agreement does not in any way involve the Exparte Applicant herein and similarly, the same has not been produced before this Court by the Respondents for its own perusal and it must not be lost to the court that neither of the said parties to the impugned Agency Agreement, are parties to these proceedings.
34. The Applicant submits that despite clearly the said Agency Agreement subject of the forgery investigations having no correlation whatsoever to the Exparte Applicant herein, the Respondents herein have been insistent on subjecting the Exparte Applicant to unending summons and incessant investigations over allegations to which it is clearly a stranger to.
35. The question that therefore falls is whether subjecting a party to investigations to which they have no correlation to the complaint lodged is an abuse of the Respondents’ investigative powers? It is its humble submission that indeed the answer would be in the affirmative.
36. It submits that neither the forensic document examiner’s report, nor the Agency Agreement to which the allegations of forgery relate to, have anything to do with the Exparte Applicant.
37. According to the Applicant, it beats logic as to why the Respondent would insist on investigation the Exparte Applicant and subject its officers to unnecessary and unending summons that are gravely prejudicial to its business and existence, over a complaint and investigations that have no bearing whatsoever to it.
38. The only inescapable conclusion is that the Respondents have an ulterior motive that is not geared towards the genuine enforcement of criminal law.
39. In the case of Chumo v Boit & 4 others (Judicial Review 5 of 2022) [2023] KEHC 25693 (KLR), S.M Githinji J held as follows,
“This court can only intervene if there are cogent allegations of violation of the Constitution or the law or in clear circumstances where it is evident that a citizen is being interrogated for a non-existent offence or an offence unknown to the law. The court can also intervene where it is clear the police have abused their powers. The inherent jurisdiction of the court to stop police investigations or a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances.
The high court will only prohibit or quash or stop arrest or investigations or prosecutions in cases where it would be impossible to give the accused a fair trial or where the investigations is illegal; or where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
A police investigation or a criminal prosecution can be stopped if it was commenced in the absence of proper factual foundation. The enquiry is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial or a police investigation to be initiated or conducted. Fair investigations or fair trial entails the interests of the accused and the victim and of the society.”
40. One of the grounds upon which police investigations can be stopped is where the same are commenced in the absence of a proper factual foundation.
41. The Applicant believes that it has demonstrated that the factual circumstances of the complaint and as have similarly been highlighted by the Respondents themselves, have noting to do with the Exparte Applicant.
42. The same relates to an allegation of forgery of an Agency Agreement which has not been produced and in which the parties as identified by the document examiner’s report do not involve the Exparte Applicant in any manner.
43. The Exparte Applicant was not a party to the said Agency Agreement and as such, the Respondents cannot purport to investigate it from an allegation of forgery as emanating therein.
44. As pertains to the loan offered to the late Pius Nyabuga Mochoge by the Exparte Applicant, the Respondents indeed admit that in the correspondences between themselves and the Exparte Applicant, the latter explained clearly that it had to count the loan as a bad debt and would not be pursuing its recovery due to the absence of the supporting loan documents.
45. It contends that upon taking over of the management and ownership of the company from the previous ownership, it was only handed the original title documents of the deceased’s parcels of land with no supporting loan documents making it virtually impossible to recover the said facility.
46. As a consequence of the above, it communicates clearly through its advocates that it would not be pursuing the recovery of the said loan in the absence of any supporting documents in that regard.
47. According to the Applicant it is thus illogical and irrational for the Respondents to insist to be supplied with loan documents which the Exparte Applicant has clearly indicated are not in its possession and as a result of that, it is unable to pursue any recovery of the loan as against the estate of the said deceased person.
48. The Applicant also filed further submissions wherein it submits that its business operations are not licensed nor regulated by the Central Bank of Kenya.
49. Further, the Exparte Applicant contends that there is no nexus between itself and the complaints lodged by the Interested Party as the same clearly concern an Agency Agreement that it was not a party to nor privity to and a professional undertaking issued by the deceased’s own advocates.
50. The Exparte Applicants further contends that upon taking over the management of the Exparte Applicant, they were only handed over title documents for the loan facility with no other supporting documents but which the deceased through his advocates had acknowledged and issued a professional undertaking for payment of the balance thereof upon receipt of the said title documents which it issued.
51. The Exparte Applicant indicates that it became hard to enforce the said undertaking without any supporting documentation especially upon the demise of the deceased and abandoned the loan and counting it as bad debt but the Respondents were insistent on summoning it to produce documentation that it had already indicated was not its possession.
52. It is the Exparte Applicant’s case that it is not strange for corporations to lose data which significantly affects the relevant transactions related to the said data especially in situations of takeover or change of ownership and having already abandoned pursuit of the loan facility on grounds of having no data, information or supporting documentation of the loan facility, the continued investigations against it are punitive, malicious and unlawful as nothing therein points towards any criminal element on its part.
53. The Exparte Applicant’s further indicates that the allegations of forgery of an agency agreement have no nexus to it and the Respondents are abusing their investigative powers to harass, intimidate and prejudice it at the behest of the Interested Party.
54. Reliance is placed in the case of Chumo v Boit & 4 others (Judicial Review 5 of 2022) [2023] KEHC 25693 (KLR), S.M Githinji J held as follows,
“This court can only intervene if there are cogent allegations of violation of the Constitution or the law or in clear circumstances where it is evident that a citizen is being interrogated for a non-existent offence or an offence unknown to the law. The court can also intervene where it is clear the police have abused their powers. The inherent jurisdiction of the court to stop police investigations or a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances.
The high court will only prohibit or quash or stop arrest or investigations or prosecutions in cases where it would be impossible to give the accused a fair trial or where the investigations is illegal; or where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
A police investigation or a criminal prosecution can be stopped if it was commenced in the absence of proper factual foundation. The enquiry is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial or a police investigation to be initiated or conducted. Fair investigations or fair trial entails the interests of the accused and the victim and of the society.”
55. It submits that any police investigations ought to be commenced upon a proper factual foundation.
56. The said factual foundation can only arise from a complaint which points to a criminal element that then affords the investigative authorities the power to investigate further and determine whether a crime has been committed or not.
57. It submits that as the Interested Party has correctly pointed out, this Honourable Court would be perfectly in order to intervene and stop the impugned investigation process if illegality, irregularity or procedural impropriety is manifest or where clearly the said investigations are an abuse of process.
58. In Patrick Macharia Nderitu v Director of CID & another [2017] eKLR, the court defined the above grounds as follows,
“Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Irrationality is where there is such gross unreasonableness in the decision taken or act done, that no reasonable authority addressing itself to the facts before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standard. Procedural impropriety is where there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”
59. The Applicant submits that the actions of the Respondents are irrational as the purported continued investigations despite the information in the possession, as the Respondents themselves have admitted, is that they want the officers of the Exparte Applicant to appear and record a statement as well as produce the supporting loan documents for the loan. However, the Exparte Applicant has severally informed the Respondents that it does not currently possess the same documents as the same seem to have been lost during the taking over of management of the company. It submits that these documents were not supplied to it by the previous management and ownership.
60. It further submits that with this information, no reasonable person would still insist on the Exparte Applicants producing the said documents despite a clear indication that it does not have the same.
61. The said investigations by the Appellant are tainted with procedural impropriety. It is not in contention that the basis of investigations is a complaint.
62. As such the said complainant must disclose reasonable information against a subject of investigation to warrant commencement and/or continuation of the said investigations.
63. In the case of Republic v OCS, Nairobi Central Police Station & 2 Others; Ex parte Applicant: Sixtus Gitonga Mugo [2020] KEHC 7039 (KLR), the court held as follows,
“A criminal investigation can be stopped if it was commenced in the absence of proper factual foundation. The enquiry is whether there has been an irregularity or an illegality that is a departure from the formalities, rules and principles of procedure according to which our law requires a police investigation to be initiated or conducted. Fairness entails the interests of the suspect, the complainant and of the society.... In my view, police investigations should be commenced or continued if there is admissible, substantial and reliable complaint that a criminal offence known to the law has been committed by the suspect.”
64. It submits that the commencement and continuous of criminal investigations in the absence of a proper factual foundation indicating a crime may have been committed by the suspect would be illegal and unprocedurally fair as the same would imply an ulterior motive towards the subject of the investigations.
65. In this case,the Interested Party (Complainant) and the Respondents admit that the basis of the investigations was an allegation of a forged agency agreement and a fraudulent professional undertaking. Neither of these documents emanated from the complaint herein and there is no claim in that regard by either of the parties.
66. It further submits that whereas the persons who issued the professional undertaking have not disowned it nor made any complaint against the Exparte Applicant as the same would have indeed been issued on the strength of their client’s instructions who clearly had knowledge of the facility, the Exparte Applicant is neither a party to nor privy to the Agency Agreement that was the basis of the Interested Party’s complaint.
67. It is its case that there is no nexus between the complaint by the Interested Party and the Exparte Applicant herein.
68. The Applicant submits that the Respondents are just abusing their wide discretionary investigative powers to harass, intimidate and prejudice it.
69. It submits that this is evident as how the investigations morphed from one based on a complaint by the Interested Party which as we have demonstrated there is no nexus, to an investigation as to how the Exparte Applicant is conducting business without being licensed by the Central Bank of Kenya.
70. However again nothing turns on this issue as the Exparte Applicant is neither licensed not regulated by the Central Bank of Kenya and no law has been broken in that regard.
71. In the letter dated the 8th June, 2017 the CBK expressly confirmed that it neither license not regulates the Exparte Applicant’s business and thus gave its green light for the Exparte Applicant’s registration and commencement of business operations.
The 2nd Respondents Case;
72. The 2nd Respondent opposes the Application through the Replying Affidavit of No. 249118 PC (w) Irene Karegi who is investigating a criminal case of forgery contrary to section 345 as read with section 349 of the penal code chapter 63Laws of Kenya reported vide 0B NO. 34/26/05/2025 Kilimani Police Station.
73. The investigating officer argues that she received a complaint from the interest party herein. She interviewed the interested party herein to establish factual basis of his complaint.
74. The interested party herein received a letter from the Exparte Applicant, signed on behalf of his late father stating that his late father had secured a loan of ksh85.OOO.OOO/= with Magnum credit using title deed numbers KAJIADO/KAPUTEI and 4081.
75. The interested party had neither been informed by his late father Mr. Pius Nyabuga Mochoge of such transaction nor could he trace the transaction.
76. It also received a tenancy agreement between his late father and Mary Wangari which had a forged signature of his late father.
77. She wrote to the manager Magnum credit Limited to furnish her with documents to facilitate the completion of the investigations on the allegation of forgery vide OB NO. 34/26/05/2025.
78. The Applicant filed an Application vide Nairobi Misc. Criminal Application No. E 2301 /2025 where it obtained warrants to investigate the loan transactions and call for the valuation report of the title deeds, loan statement and further to have a competent representative of the company to record a statement in respect of the loans and any other information likely to assist in investigations.
79. The Respondent sought for orders that Exparte Applicant to allow her to inspect the relevant documents used to secure the alleged loan and further avail her with duly certified copies of documents.
80. She wanted the title deeds for KAJIADO/KAPUTEI NORTH/27322, 31964,25163 and 4081 in the Respondent’s custody, the valuation report of the said title deeds, the loan statement in respect of the said title deeds, respective ac
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