INTRODUCTION
1. The applicant in this matter seeks to prohibit the respondents from prosecuting her in Milimani Chief Magistrate’s Court Criminal Case Number E306 of 2025.
2. The applicant has moved this court by way of a Notice of Motion dated 11 th August 2025 expressed to be brought under Judicature Act Cap 8 S. 3(2), Rule 3(1) and (2) High Court (Practice and Procedure) Rules Part I Vacation rules, Article 27,40,50,157 & 165 of the Constitution and all other enabling provisions of Law.
3. The applicant seeks the following ORDERS:-
a) THAT this Application be certified as urgent and be heard ex parte in the first instance.
b) THAT this Honourable court be pleased to grant the Applicant leave for this application to be heard during the court vacation.
c) THAT pending the Inter parties hearing of the application, this Honourable Court be pleased to stay of proceedings in Nairobi CM Criminal Case No. E306of 2025.
d) THAT pending the Inter parties hearing of this application, this Honourable Court be pleased, to issue an order restraining the 2nd Respondent from proceeding with the taking of plea and/or hearing in Nairobi Chief Magistrate's Court Criminal Case No. E306 of 2025.
e) THAT this Honourable Court be pleased to issue an order restraining the Respondent, by itself or through any of its officers, agents, or servants, from taking any further steps in or proceeding with Nairobi CM Criminal Case No. E306 of 2025 or commencing any other proceedings against the Applicant based on the same subject matter.
f) THAT the Honourable Court be pleased to issue an order declaring that the decision to charge the Applicant in Criminal Case No. E306 of 2025 is unconstitutional, unlawful, and in violation of 50 of the Constitution.
g) THAT this Honourable Court be pleased to issue such other orders as may be just and expedient in the circumstances.
h) THAT costs of this Application be provided for.
4. The applicant has particularized the following grounds on the face of the application;-
i ). The Applicant is an 83-year-old woman of fragile health who is bedridden, dependent on full-time care, and is unable to meaningfully participate in criminal trial proceedings.
ii. The Applicant has been charged in Criminal Case No. E306 of 2025at the Chief Magistrate's Court at Milimani with offences relating to Land Reference Number 21179, Kiambu County, land which has been owned by her and her late husband, Hon. Arthur Magugu, since 1990.
iii. The prosecution is based on complaints lodged by a third party (Wibeso Investments Limited) whose claim to the land was found to be irregular in a Senate Committee Report of the Standing Committee on National Security, Defence and Foreign Relations.
iv. The Senate Report confirms the Applicant's ownership and proper transfer of the land to Marg Ridge Estate Limited in 2020.
V. The decision to charge the Applicant is therefore unlawful, irrational and an abuse of the criminal justice system, motivated by ulterior motives and calculated to exert pressure on the Applicant in a matter that is essentially a civil land dispute.
vi. The prosecution offends the Applicant's right to property under Article 40and the right to a fair trial under Article 50 of the Constitution.
vii. The charges are arbitrary, unsupported by credible evidence, and amount to a violation of the Applicant's dignity, liberty and rights under the Constitution.
viii. Unless the court intervenes, the pending criminal case will subject the Applicant to further prejudice, psychological distress, and risk to her health and liberty, contrary to the principles of fairness, justice and proportionality.
5. In support of the application the application the applicant filed a supporting affidavit sworn on 11 th August 2025 by the applicant MARGARET WAIRIMU MAGUGU.
6. The applicant deposes that ;-
a). she is an adult female of sound mind, the person charged in Criminal Case No. E306 of 2025 before the Chief Magistrate's Court at Milimani,
b). the applicant has been charged with one count of obtaining registration of land by false pretences contrary to section 320 of the Penal Code, and three counts of forgery contrary to section 345 as read with section 349 of the Penal Code, all allegedly arising from my dealings with Land Reference Number 21179 in Kiambu County.
c). the applicant is currently of extremely poor health, elderly, immobile, and has for some time been bedridden under full-time care.
d). she is wholly dependent on caregivers for movement, feeding, and personal needs, and her physical condition makes it impossible to attend court without significant hardship and medical risk.
e). the land in question, measuring approximately 25 hectares, has been in her family's possession since 1990, following lawful allocation to her late husband, Hon. Arthur Magugu, a former Minister and Member of Parliament for Githunguri Constituency.
f). after her husband's death, she lawfully succeeded him and, in the year 2020, transferred it to Marg Ridge Estate Limited, a company associated with her family, which remains the registered proprietor of the land.
g). a copy of the lease and title deed to the said parcel are annexed to the affidavit.
h). the ownership of this land was investigated exhaustively by the Senate Standing Committee on Lands, Environment and Natural Resources in 2021.The Committee concluded that the allocation and registration were lawful, that the title is genuine, and that there was no basis for any criminal charges against me in relation to the said land. The deponent attached an extract of the relevant part of the Senate Committee report.
i). despite the Senate's findings, the Directorate of Criminal Investigations (DCI) proceeded to initiate charges against me without any fresh evidence, without taking into account the Senate's report, and without providing any nexus between myself and any act of forgery or false pretence.
j). the documents forming the basis of the charges were not authored, signed, or submitted by her.
k). her name does not appear on them, nor in any of the witness statements, nor in any expert report linking her to any alleged offence.
l). she verily believes that the decision to prosecute her is not grounded in law or evidence, but is instead an abuse of the criminal justice process intended to harass, intimidate, and exert undue pressure on her over matters that are civil in nature and have already been resolved in her favour.
m). she is 83 years old and in frail health. She suffers from chronic illnesses, and the strain of criminal proceedings poses a serious risk to her well being.
n). her doctor has advised that prolonged court attendances would be detrimental to her health and could lead to irreversible harm.
o). given her age, health condition, and the lack of any evidence directly linking her to the alleged offences, the applicant believes that her continued prosecution amounts to cruel, inhuman, and degrading treatment contrary to Articles 28 and 29 of the Constitution of Kenya,
p). her intended prosecution violates Article 50(2) of the Constitution, which guarantees the right to a fair trial, since the charges have been brought without credible evidence, in disregard of exculpatory findings by a competent parliamentary body, and in círcumstances that make effective participation impossible due to poor health.
q). this Honourable Court has jurísdictíon under Articles 165(3)(b), 165(6) and 165(7) of the Constitution to stay proceedings in the lower court where it is shown that the prosecution is an abuse of process, unlawful, or likely to cause a miscarriage of justice.
r). unless this Honourable Court intervenes urgently and grants the orders sought herein, the applicant stands to suffer irreparable prejudice through continued harassment, deterioration of her health, and violation of my constitutional rights.
RESPONSE BY THE RESPONDENTS
7. The application is opposed by the respondents who have filed grounds of opposition and a replying affidavit sworn by No. 98059 Cpl Omari Mwakulewa a police officer attached to the Directorate of Criminal Investigation and of care Directorate of Criminal Investigations.
8. The officer deponed that he is one of the investigating officers in Nairobi Chief Magistrate Court Criminal Case No. E306of 2025.
9. He went on to aver that the Directorate of Criminal Investigations received a complaint made by one Antony Muchiri Gikebe,a director of Wibeso Investments Limited at the DCI Headquarters Vide a Referral Form Ref. CID/C/GEN/COMP./6/11/2021/2649 dated 26th November 2021.
10. The complaint stated that Wibeso Investment Limited is the registered proprietor of Land Reference No.21179 with deed plan no 198490 measuring 25 Hectares registered under IR NO.67273 on 26th October,1995.
11. THAT sometimes in 2021, one Margret Wairimu Magugu (the Applicant herein) claimed the said parcel of land using a title LR. No. 219594 alleged to have been registered over Wibeso Investment Limited's L.R. No. 21179, which title the said Margaret Magugu had transferred to Marg Ridge Estate Limited.
12. THAI the Directorate conducted investigations on the complaint at the land registry concerning both competing titles, and the investigation revealed that the genuine title for the parcel of land L.R. No. 21179 is grant No. IR NO. 67273 registered on 26th October, 1995 in the name of Wibeso Investments Limited as is further demonstrated below:
a) The genuine correspondence file for the parcel of Land L.R. No. 21179 is correspondence file no. 130683 which was opened in the name of Wibeso Investments Limited for a parcel of land situated in Kiambu Municipality.
b) The property was acquired through Government allocation vide Letter of Allotment Ref. No. 41680/VII/56 dated 9th April 1991 to Wibeso investment Limited
c) The property was surveyed back in the year 1995 by a Licensed Surveyor one G.O. Wayumba who submitted the survey work at the Director of Survey and quoted that the authority document that led him to survey was Commissioners Letter No.41680/VII/56 of 9th April 1991.
d) The survey work of G.O. Wayumba culminated to the Deed Plan Number 198490for L.R. 21179 issued by the Director of Survey, which was sealed, signed and then released to one Mr. Mbugua, a director of Wibeso Investments Limited, on identification as per the instructions letter from the Surveyor.
e) On the 26th October 1995 the property, L.R. No.21179 with Deed Plan Number 198490 was registered in the name of Wibeso Investments Limited under Grant Number IR. 67273 in entry no 67273/1 by the Registrar of Titles.
f) In the year 2003, a dispute arose between Wibeso Investments Limited and the Kenya Forest Service, leading to the filing of High Court Constitutional Petition No.412 of 2003, where a three-judge Constitutional bench was constituted. The bench delivered a ruling on 30th October 2003 declaring that the Lawful owner of LR No.21179 is Wibeso Investment Limited. A Copy of the Ruling dated 30th October 2003 was attached to the affidavit.
13. The deponent went on to aver that investigation revealed that the alleged grant No. LR. No. 219594 for L.R.No.21179 in the name of Margaret Wairimu Magugu registered on 21st July, 2020 and transferred to Marg Ridge Estate Limited on 28th September 2020 was fraudulent because:
a) The alleged title No. I.R. 219594 said to be for L.R. No. 21179 is shown to have been prepared under correspondence file No. 199136 allegedly opened in the name of the Margaret Wairimu Magugu. However, upon investigations, it was revealed by the opening card that the correspondence file no. 199136 was opened in respect of one M. Murakaru over a parcel of land situated in Nairobi City County, and has nothing to do with Margaret Wairimu Magugu or L.R. No.21179 situate in Kiambu County.
b) There is no correspondence file opened in the name of Margret Wairimu Magugu in respect of L.R. No. 21179, and therefore her alleged letter of allotment is irregular and unlawful, as all transactions prior to the registration of a title must be founded on a genuine correspondence file showing all transactions and authorities leading to the issue of a title.
c) The alleged letter of offer dated 4th March, 1990 addressed to Margaret Wairimu Magugu giving rise to the Applicant's title concerns a parcel of land said to be under the authority of the Thika Municipality under the former Thika District,and is therefore not genuine, as L.R. No. 21179 is parcel of land in the former Kiambu District and could not have been allocated through the authority of another district, Thika District.
d) The letter of offer allegedly dated 4th March,1990 giving rise to the Applicant's title concerns a parcel of land measuring 22 hectares. L.R. No. 21179 measures 25 hectares. There is no resurvey of the plot to cater for the additional 3 hectares for purposes of stand premium and other applicable charges.
e) The said Margaret Wairimu Magugu alleges to have accepted the letter of offer dated 4th March, 1990 by the letter dated 20th September, 2019 and paid the alleged stand premium of Ksh 848, 067 and was issued with receipt no.5372518.The Permanent Secretary, Ministry of Lands and Physical Planning, upon perusing the register of payments, confirmed by a letter dated 21st March 2022 that the alleged payment had never been received by the Government and that therefore the receipt was a forgery.
f) Margaret Wairimu Magugu upon transferring the suit property to Marg Ridge Estate limited with no consideration or payment of stamp duty, allegedly created sub-divisions No. 448116 to 448173. Investigations revealed that the purported Notification of Approval {PPA2) shown as acquired from the County Government of Kiambu by Marg Ridge Estate Limited for sub division were forgeries since the County Government of Kiambu through Chief Officer, Lands and Housing confirmed that the PPA2 did not originate from their Office vide their Letter Ref. KCG/LHPP/KBU/VOL.III/108 dated 27th January 2022.
g) Further the Notification of Approval (PPA2) was subjected to forensic analysis and it was established by a document examiner that document was a forgery.
14. Upon discovery of the discrepancies, the Ministry of Land and Physical Planning summoned the Applicant with the aim of examining the two titles vide a summons dated 2nd March 2021 but she failed to appear and consequently her certificate of title was cancelled on the 18th January 2022.
15. Upon completion of the investigation in late 2024, the investigating officer prepared a comprehensive investigation file containing all evidence, witness statements, expert reports and my detailed investigation report with recommendations. The file was forwarded to the Office of the Director of Public Prosecutions for independent review and direction.
16. The officer went on to state that during the investigations and prior to completion of the investigations, they summoned the Applicant to record a statement and to give an explanation but she refused to attend. Further attempts to record her statements were rebuffed by her advocates.
17. The officer maintained that the investigation in the matter was conducted in accordance with the Constitution, the National Police Service Act, the Criminal Procedure Code, and all applicable laws and regulations.
18. The Directorate subsequently received a letter from the 1st Respondent stating that after careful consideration of the investigation file and assessment of the sufficiency of the evidence, the 1st Respondent made the decision to prosecute and directed criminal charges be preferred against the Applicant under sections 320, 345, and 349 of the Penal Code.
19. Following the DPP's direction to charge, summons to attend court were lawfully issued under Section 90 of the Criminal Procedure Code requiring the Applicant to appear before the Chief Magistrate's Court, Nairobi, for plea-taking in Criminal Case No. E306 of 2025.
20. The summons was duly and properly served on the Applicant at residence through the prescribed legal channels, and she personally signed in acknowledgment of service, confirming her understanding of the requirement to appear before the court to answer to the charges.
21. According to the officer, on the scheduled plea taking date, the Applicant wilfully failed to appear before the Chief Magistrate's Court despite being lawfully summoned. This failure to appear was without any prior communication to the court, valid excuse, or medical justification.
22. Further, the respondents contend that the Applicant's non-appearance has continued despite additional opportunities being given by the court, and the applicant instead chose to institute these High Court proceedings while remaining in deliberate defiance of the Chief Magistrate's Court summons, constituting classic forum shopping and abuse of process.
23. The respondents argued that the application appears to have been brought on account of the Applicant's age and chronic illness, and on the Twelfth Parliament Senate's Standing Committee on National Security, Defence and Foreign Relations Report on a Petition Concerning the Alleged Murder of an Environmentalist and Conservationist Ms. Joannah Stutchbury.
24. The investigator explains that both grounds have no merit since the Applicant's advanced age and frail health are not absolute bars to prosecution, more so as the foundational criminal activities were done when the Applicant was in her late 70s. The right to a fair trial under Article 50 is a right to a process, not a right to avoid the trial process.
25. Further, the respondents contend that no medical evidence has been presented to the trial court, investigating team or to his knowledge to the DPP's office regarding any incapacity of the Applicant to understand the proceedings, instruct counsel, or participate meaningfully in legal processes.
26. According to the respondents the trial court is fully equipped to manage its proceedings to accommodate the Applicant's needs (e.g., frequent breaks, virtual attendance, medical support in court to ensure her meaningful participation.
27. To argue that she cannot participate at all due to age and ill-health, more so when these criminal activities were conducted when the Applicant was already of advance age is without basis.
28. Further, the respondents asserted that the Applicant's current claims of incapacity and ill-health appear to be tactical rather than genuine, given her demonstrated ability to instruct counsel to file and depone complex constitutional petitions in this Court while simultaneously claiming inability to participate in straightforward criminal proceedings before the Chief Magistrate's Court.
29. The respondents further argued that creating immunity from prosecution based solely on age and alleged chronic illness would immediately and inevitably create dangerous incentives for criminal organizations to systematically recruit elderly and sickly persons as fronts for fraudulent activities, particularly in land and documentation crimes where elderly and sickly persons could be exploited as willing or unwilling agents.
30. The respondents contended that the Twelfth Parliament Senate's Standing Committee on National Security, Defence and Foreign Relations Report on a Petition Concerning the Alleged Murder of an Environmentalist and Conservationist Ms.Joannah Stutchbury did not concern the issues of land fraud and obtaining registration by false pretences, but was an inquiry into the murder of Environmentalist and Conservationist Ms. Joannah Stutchbury.
31. The respondents posit that the proper entity to conduct criminal investigations is the National Police Service under the National Police Service Act and the Senate has no role, duty, power, jurisdiction or mandate to conduct criminal investigations and the purport to rely on a Senate Report is meritless.
32. The respondents maintain that the Senate report constitutes a merit defence to the charges alleged against the Applicant, and the same can only be properly made and taken by the trial Court and not this Court, in advance of plea and a criminal trial.
33. That the Applicant invites the Court to conduct a merit review of the investigation file outside the trial, by alleging that there is no evidence to charge her and that the charges have been brought without credible evidence. This is untrue as the investigation collected evidence, witness statements and obtained expert reports, which upon examination by the 1st Respondent were found to be sufficient to institute criminal proceedings.
34. It is further posited by the respondent that there is no abuse of process, malice or oppression as the investigations in this matter reveals serious criminal activities touching on fraud and interference with land records.
35. According to the respondent the Applicant has not demonstrated any exceptional circumstances that would justify the High Court's intervention to prohibit a constitutionally mandated criminal process at its inception.
ANALYSIS AND DETERMINATION
36. The applicant in this matter seeks an order to restrain the 2 nd respondent from proceeding with the taking of plea and or hearing of Nairobi Chief Magistrates Court Criminal Case No. E306 of 2025 Rep. Vs. Margaret Wairimu Magugu.
37. The applicant also seeks to restrain the 1 st respondent from commencing any other proceedings against the applicant based on the same subject matter. In essence therefore, the applicant seeks orders of prohibition against the Director of Public Prosecutions and the Chief Magistrate.
38. A prohibition order in a Criminal case would be to the effect of stopping the lower court from proceeding with the matter against the applicant. Such an order would be granted where it is shown that the trial court is acting ultra vires or acting unlawfully.
39. It would also issue where a prosecution is commenced without a proper factual and legal basis or in violation of the constitutional rights of an individual.
40. A prohibition order would also be issued where the applicant demonstrates that a continuation of the proceedings would amount to abuse of the legal process.
41. A litigant who approaches the court for a prohibition order bears the burden of proving that the intended trial is fundamentally flawed and threatens the breach of the fundamental rights of the applicant to a fair trial.
42. A prohibition order would also issue where investigations are shown to be unlawfully undertaken and the process leading to the prosecution of the applicant is flawed.
43. The main focus in an application for prohibition is the manner in which a decision is made (the process) and not whether the decision is correct. The court examines the entire process to determine whether the applicant has received fair treatment from the decision makers.
44. Further, where the applicant demonstrates that his constitutional rights have been violated or are threatened with violation the court will not hesitate to grant the order. The applicant must therefore present to the court evidence that the investigative agency had commenced investigations without any probable or justifiable cause in law and that the decision to prosecute was taken without regard to the due process of law.
45. It would also be important to demonstrate that the Director of Public Prosecutions in making the decision to charge did not abide by the National Prosecution Policy. The applicant should demonstrate that the decision to prosecute did not meet the evidential test as well as the public interest test. A decision to prosecute that is mala fides, or is made out of ulterior, extraneous or irrelevant considerations would also trigger the grant of a prohibition order. In Mohammed Gulam Hussein Fazal Karmali & Another vs. The Chief Magistrate's Court Nairobi Another (2006) e KLR where Nyamu J. (as he then was) stated:-
“Whilst the power of the High Court to intervene to stop a criminal prosecution must be exercised sparingly, the High Court must always be ready to intervene to prevent any prosecution which is vexatious, oppressive, mala fides, frivolous or taken up for other improper purpose such as undue harassment of a party or abuse of the process of court.”
46. Indeed, this court, in exercise of its supervisory jurisdiction has power to supervise the exercise of power by subordinate courts and any other person, body or authority exercising a judicial or quasi-judicial function if it exercises the power, unreasonably or in excess of jurisdiction or breach of rules of natural justice. The applicant in this case has basically anchored his case on the findings of a Senate Committee.
47. It was incumbent upon the applicant to address this court on the aspects of investigations that the committee did.
48. The applicant would have assisted the court to determine whether looking at the findings of the Committee all the issues that form the basis of the charges were investigated and fully addressed. Parliamentary committees once they complete their inquiries into a matter make recommendations to other Government agencies.
49. It would have been necessary for the applicant to demonstrate if at all there were investigations into the issues of forgery raised by the respondents in their response to the instant application and the recommendations that the committee made in respect thereof.
50. The court having perused the report notes that under recommendation ( c) appearing at pages 28 and 29 of the report the Committee simply directed the Ministry of Environment not to evict the persons who had tabled documents indicating that they were lawful owners and to assist them acquire title deeds.
51. The committee also recommended investigations to be undertaken by the Director of Criminal investigations as to how individuals came to own land in swampy forested areas. The recommendation by the Committee to the DCI confirms that the Senate Committee though they had interrogated the matter concerning land in the affected area, only the DCI would be able to deal with criminal aspects of land acquisition within the area.
52. The respondents have narrated in great detail the investigations they undertook in the matter. The charges preferred relate to obtaining of land registration and Forgery. The twin issues are matters that the Senate Committee could not have gone into for they lack the technical capacity to do so and that Criminal Investigations lie in the province of Inspector General of Police under Article 245 (4) of the Constitution and The National Police Service Act.
53. The applicant a sought an order to declare the decision to charge her in Criminal Case No. E306 of 2025 as being unconstitutional, unlawful and in violation of Article 50 of the Constitution. The respondent however indicated that the process leading to the decision to charge was undertaken in compliance with the law and at no time did they violate the rights of the applicant.
54. The applicant has not indeed alleged that there was any breach of her rights during investigation.
55. The applicant remained silent as to whether the allegation that she was called to record a statement and she declined was true or false. The court is therefore left with the position as stated by the Investigating officer that she was given an opportunity to go record a statement and she declined.
56. The fairness of the investigator has therefore not been impeached in any way.
57. In circumstances where the applicant demonstrates that their rights have been violated the court would not hesitate to intervene and remedy the situation. The High Court would intervene to prevent the misuse of the criminal justice system and abuse of the court process. However, the intervention would only happen if there is proof Of such abuse of process or the breach of rights.
58. The applicant in this matter has not shown in what respect the decision of the Director of Public Prosecutions was flawed or if at all it was taken out of malice, irrelevant or extraneous consideration. The court cannot simply stop a prosecution on unsubstantiated allegations of unfairness. The court should do so only where there is credible evidence of breach of procedure, the applicant’s rights or at least upon proof that based on the evidence available no reasonable decision maker would have arrived at the decision to prosecute the applicant.
59. In Associated Provincial Picture House v Wednesbury Corporation (1948)1 KB 223, where Lord Green M.R. said:-
“decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by appropriate order of judicial review proceedings where the court concludes that the decision is such that no person or body properly directing itself on the relevant law and acting reasonably could have reached that decision.”
60. The applicant other than citing poor health and advanced age, has not put forth evidence that would lead the court to declare the commencement of the trial wrongful, unlawful and or improper. The facts as presented by the respondents in the affidavit of the investigating officer demonstrate probable cause for the respondents to have initiated the criminal proceedings. As to the guilt or innocence of the applicant that is a matter for the trial court.
61. The decision of the 3 Judge Bench in High Court Constitutional Petition No. 412 of 2023 declaring Wibeso Investment as the lawful owner, for as long as it remains unchallenged this court cannot hold otherwise.
62. In Rep. v Commissioner of Police and Another ex parte Michael Monari 2012 KLR (a) the court defined what abus
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1. The applicant in this matter seeks to prohibit the respondents from prosecuting her in Milimani Chief Magistrate’s Court Criminal Case Number E306 of 2025.
2. The applicant has moved this court by way of a Notice of Motion dated 11 th August 2025 expressed to be brought under Judicature Act Cap 8 S. 3(2), Rule 3(1) and (2) High Court (Practice and Procedure) Rules Part I Vacation rules, Article 27,40,50,157 & 165 of the Constitution and all other enabling provisions of Law.
3. The applicant seeks the following ORDERS:-
a) THAT this Application be certified as urgent and be heard ex parte in the first instance.
b) THAT this Honourable court be pleased to grant the Applicant leave for this application to be heard during the court vacation.
c) THAT pending the Inter parties hearing of the application, this Honourable Court be pleased to stay of proceedings in Nairobi CM Criminal Case No. E306of 2025.
d) THAT pending the Inter parties hearing of this application, this Honourable Court be pleased, to issue an order restraining the 2nd Respondent from proceeding with the taking of plea and/or hearing in Nairobi Chief Magistrate's Court Criminal Case No. E306 of 2025.
e) THAT this Honourable Court be pleased to issue an order restraining the Respondent, by itself or through any of its officers, agents, or servants, from taking any further steps in or proceeding with Nairobi CM Criminal Case No. E306 of 2025 or commencing any other proceedings against the Applicant based on the same subject matter.
f) THAT the Honourable Court be pleased to issue an order declaring that the decision to charge the Applicant in Criminal Case No. E306 of 2025 is unconstitutional, unlawful, and in violation of 50 of the Constitution.
g) THAT this Honourable Court be pleased to issue such other orders as may be just and expedient in the circumstances.
h) THAT costs of this Application be provided for.
4. The applicant has particularized the following grounds on the face of the application;-
i ). The Applicant is an 83-year-old woman of fragile health who is bedridden, dependent on full-time care, and is unable to meaningfully participate in criminal trial proceedings.
ii. The Applicant has been charged in Criminal Case No. E306 of 2025at the Chief Magistrate's Court at Milimani with offences relating to Land Reference Number 21179, Kiambu County, land which has been owned by her and her late husband, Hon. Arthur Magugu, since 1990.
iii. The prosecution is based on complaints lodged by a third party (Wibeso Investments Limited) whose claim to the land was found to be irregular in a Senate Committee Report of the Standing Committee on National Security, Defence and Foreign Relations.
iv. The Senate Report confirms the Applicant's ownership and proper transfer of the land to Marg Ridge Estate Limited in 2020.
V. The decision to charge the Applicant is therefore unlawful, irrational and an abuse of the criminal justice system, motivated by ulterior motives and calculated to exert pressure on the Applicant in a matter that is essentially a civil land dispute.
vi. The prosecution offends the Applicant's right to property under Article 40and the right to a fair trial under Article 50 of the Constitution.
vii. The charges are arbitrary, unsupported by credible evidence, and amount to a violation of the Applicant's dignity, liberty and rights under the Constitution.
viii. Unless the court intervenes, the pending criminal case will subject the Applicant to further prejudice, psychological distress, and risk to her health and liberty, contrary to the principles of fairness, justice and proportionality.
5. In support of the application the application the applicant filed a supporting affidavit sworn on 11 th August 2025 by the applicant MARGARET WAIRIMU MAGUGU.
6. The applicant deposes that ;-
a). she is an adult female of sound mind, the person charged in Criminal Case No. E306 of 2025 before the Chief Magistrate's Court at Milimani,
b). the applicant has been charged with one count of obtaining registration of land by false pretences contrary to section 320 of the Penal Code, and three counts of forgery contrary to section 345 as read with section 349 of the Penal Code, all allegedly arising from my dealings with Land Reference Number 21179 in Kiambu County.
c). the applicant is currently of extremely poor health, elderly, immobile, and has for some time been bedridden under full-time care.
d). she is wholly dependent on caregivers for movement, feeding, and personal needs, and her physical condition makes it impossible to attend court without significant hardship and medical risk.
e). the land in question, measuring approximately 25 hectares, has been in her family's possession since 1990, following lawful allocation to her late husband, Hon. Arthur Magugu, a former Minister and Member of Parliament for Githunguri Constituency.
f). after her husband's death, she lawfully succeeded him and, in the year 2020, transferred it to Marg Ridge Estate Limited, a company associated with her family, which remains the registered proprietor of the land.
g). a copy of the lease and title deed to the said parcel are annexed to the affidavit.
h). the ownership of this land was investigated exhaustively by the Senate Standing Committee on Lands, Environment and Natural Resources in 2021.The Committee concluded that the allocation and registration were lawful, that the title is genuine, and that there was no basis for any criminal charges against me in relation to the said land. The deponent attached an extract of the relevant part of the Senate Committee report.
i). despite the Senate's findings, the Directorate of Criminal Investigations (DCI) proceeded to initiate charges against me without any fresh evidence, without taking into account the Senate's report, and without providing any nexus between myself and any act of forgery or false pretence.
j). the documents forming the basis of the charges were not authored, signed, or submitted by her.
k). her name does not appear on them, nor in any of the witness statements, nor in any expert report linking her to any alleged offence.
l). she verily believes that the decision to prosecute her is not grounded in law or evidence, but is instead an abuse of the criminal justice process intended to harass, intimidate, and exert undue pressure on her over matters that are civil in nature and have already been resolved in her favour.
m). she is 83 years old and in frail health. She suffers from chronic illnesses, and the strain of criminal proceedings poses a serious risk to her well being.
n). her doctor has advised that prolonged court attendances would be detrimental to her health and could lead to irreversible harm.
o). given her age, health condition, and the lack of any evidence directly linking her to the alleged offences, the applicant believes that her continued prosecution amounts to cruel, inhuman, and degrading treatment contrary to Articles 28 and 29 of the Constitution of Kenya,
p). her intended prosecution violates Article 50(2) of the Constitution, which guarantees the right to a fair trial, since the charges have been brought without credible evidence, in disregard of exculpatory findings by a competent parliamentary body, and in círcumstances that make effective participation impossible due to poor health.
q). this Honourable Court has jurísdictíon under Articles 165(3)(b), 165(6) and 165(7) of the Constitution to stay proceedings in the lower court where it is shown that the prosecution is an abuse of process, unlawful, or likely to cause a miscarriage of justice.
r). unless this Honourable Court intervenes urgently and grants the orders sought herein, the applicant stands to suffer irreparable prejudice through continued harassment, deterioration of her health, and violation of my constitutional rights.
RESPONSE BY THE RESPONDENTS
7. The application is opposed by the respondents who have filed grounds of opposition and a replying affidavit sworn by No. 98059 Cpl Omari Mwakulewa a police officer attached to the Directorate of Criminal Investigation and of care Directorate of Criminal Investigations.
8. The officer deponed that he is one of the investigating officers in Nairobi Chief Magistrate Court Criminal Case No. E306of 2025.
9. He went on to aver that the Directorate of Criminal Investigations received a complaint made by one Antony Muchiri Gikebe,a director of Wibeso Investments Limited at the DCI Headquarters Vide a Referral Form Ref. CID/C/GEN/COMP./6/11/2021/2649 dated 26th November 2021.
10. The complaint stated that Wibeso Investment Limited is the registered proprietor of Land Reference No.21179 with deed plan no 198490 measuring 25 Hectares registered under IR NO.67273 on 26th October,1995.
11. THAT sometimes in 2021, one Margret Wairimu Magugu (the Applicant herein) claimed the said parcel of land using a title LR. No. 219594 alleged to have been registered over Wibeso Investment Limited's L.R. No. 21179, which title the said Margaret Magugu had transferred to Marg Ridge Estate Limited.
12. THAI the Directorate conducted investigations on the complaint at the land registry concerning both competing titles, and the investigation revealed that the genuine title for the parcel of land L.R. No. 21179 is grant No. IR NO. 67273 registered on 26th October, 1995 in the name of Wibeso Investments Limited as is further demonstrated below:
a) The genuine correspondence file for the parcel of Land L.R. No. 21179 is correspondence file no. 130683 which was opened in the name of Wibeso Investments Limited for a parcel of land situated in Kiambu Municipality.
b) The property was acquired through Government allocation vide Letter of Allotment Ref. No. 41680/VII/56 dated 9th April 1991 to Wibeso investment Limited
c) The property was surveyed back in the year 1995 by a Licensed Surveyor one G.O. Wayumba who submitted the survey work at the Director of Survey and quoted that the authority document that led him to survey was Commissioners Letter No.41680/VII/56 of 9th April 1991.
d) The survey work of G.O. Wayumba culminated to the Deed Plan Number 198490for L.R. 21179 issued by the Director of Survey, which was sealed, signed and then released to one Mr. Mbugua, a director of Wibeso Investments Limited, on identification as per the instructions letter from the Surveyor.
e) On the 26th October 1995 the property, L.R. No.21179 with Deed Plan Number 198490 was registered in the name of Wibeso Investments Limited under Grant Number IR. 67273 in entry no 67273/1 by the Registrar of Titles.
f) In the year 2003, a dispute arose between Wibeso Investments Limited and the Kenya Forest Service, leading to the filing of High Court Constitutional Petition No.412 of 2003, where a three-judge Constitutional bench was constituted. The bench delivered a ruling on 30th October 2003 declaring that the Lawful owner of LR No.21179 is Wibeso Investment Limited. A Copy of the Ruling dated 30th October 2003 was attached to the affidavit.
13. The deponent went on to aver that investigation revealed that the alleged grant No. LR. No. 219594 for L.R.No.21179 in the name of Margaret Wairimu Magugu registered on 21st July, 2020 and transferred to Marg Ridge Estate Limited on 28th September 2020 was fraudulent because:
a) The alleged title No. I.R. 219594 said to be for L.R. No. 21179 is shown to have been prepared under correspondence file No. 199136 allegedly opened in the name of the Margaret Wairimu Magugu. However, upon investigations, it was revealed by the opening card that the correspondence file no. 199136 was opened in respect of one M. Murakaru over a parcel of land situated in Nairobi City County, and has nothing to do with Margaret Wairimu Magugu or L.R. No.21179 situate in Kiambu County.
b) There is no correspondence file opened in the name of Margret Wairimu Magugu in respect of L.R. No. 21179, and therefore her alleged letter of allotment is irregular and unlawful, as all transactions prior to the registration of a title must be founded on a genuine correspondence file showing all transactions and authorities leading to the issue of a title.
c) The alleged letter of offer dated 4th March, 1990 addressed to Margaret Wairimu Magugu giving rise to the Applicant's title concerns a parcel of land said to be under the authority of the Thika Municipality under the former Thika District,and is therefore not genuine, as L.R. No. 21179 is parcel of land in the former Kiambu District and could not have been allocated through the authority of another district, Thika District.
d) The letter of offer allegedly dated 4th March,1990 giving rise to the Applicant's title concerns a parcel of land measuring 22 hectares. L.R. No. 21179 measures 25 hectares. There is no resurvey of the plot to cater for the additional 3 hectares for purposes of stand premium and other applicable charges.
e) The said Margaret Wairimu Magugu alleges to have accepted the letter of offer dated 4th March, 1990 by the letter dated 20th September, 2019 and paid the alleged stand premium of Ksh 848, 067 and was issued with receipt no.5372518.The Permanent Secretary, Ministry of Lands and Physical Planning, upon perusing the register of payments, confirmed by a letter dated 21st March 2022 that the alleged payment had never been received by the Government and that therefore the receipt was a forgery.
f) Margaret Wairimu Magugu upon transferring the suit property to Marg Ridge Estate limited with no consideration or payment of stamp duty, allegedly created sub-divisions No. 448116 to 448173. Investigations revealed that the purported Notification of Approval {PPA2) shown as acquired from the County Government of Kiambu by Marg Ridge Estate Limited for sub division were forgeries since the County Government of Kiambu through Chief Officer, Lands and Housing confirmed that the PPA2 did not originate from their Office vide their Letter Ref. KCG/LHPP/KBU/VOL.III/108 dated 27th January 2022.
g) Further the Notification of Approval (PPA2) was subjected to forensic analysis and it was established by a document examiner that document was a forgery.
14. Upon discovery of the discrepancies, the Ministry of Land and Physical Planning summoned the Applicant with the aim of examining the two titles vide a summons dated 2nd March 2021 but she failed to appear and consequently her certificate of title was cancelled on the 18th January 2022.
15. Upon completion of the investigation in late 2024, the investigating officer prepared a comprehensive investigation file containing all evidence, witness statements, expert reports and my detailed investigation report with recommendations. The file was forwarded to the Office of the Director of Public Prosecutions for independent review and direction.
16. The officer went on to state that during the investigations and prior to completion of the investigations, they summoned the Applicant to record a statement and to give an explanation but she refused to attend. Further attempts to record her statements were rebuffed by her advocates.
17. The officer maintained that the investigation in the matter was conducted in accordance with the Constitution, the National Police Service Act, the Criminal Procedure Code, and all applicable laws and regulations.
18. The Directorate subsequently received a letter from the 1st Respondent stating that after careful consideration of the investigation file and assessment of the sufficiency of the evidence, the 1st Respondent made the decision to prosecute and directed criminal charges be preferred against the Applicant under sections 320, 345, and 349 of the Penal Code.
19. Following the DPP's direction to charge, summons to attend court were lawfully issued under Section 90 of the Criminal Procedure Code requiring the Applicant to appear before the Chief Magistrate's Court, Nairobi, for plea-taking in Criminal Case No. E306 of 2025.
20. The summons was duly and properly served on the Applicant at residence through the prescribed legal channels, and she personally signed in acknowledgment of service, confirming her understanding of the requirement to appear before the court to answer to the charges.
21. According to the officer, on the scheduled plea taking date, the Applicant wilfully failed to appear before the Chief Magistrate's Court despite being lawfully summoned. This failure to appear was without any prior communication to the court, valid excuse, or medical justification.
22. Further, the respondents contend that the Applicant's non-appearance has continued despite additional opportunities being given by the court, and the applicant instead chose to institute these High Court proceedings while remaining in deliberate defiance of the Chief Magistrate's Court summons, constituting classic forum shopping and abuse of process.
23. The respondents argued that the application appears to have been brought on account of the Applicant's age and chronic illness, and on the Twelfth Parliament Senate's Standing Committee on National Security, Defence and Foreign Relations Report on a Petition Concerning the Alleged Murder of an Environmentalist and Conservationist Ms. Joannah Stutchbury.
24. The investigator explains that both grounds have no merit since the Applicant's advanced age and frail health are not absolute bars to prosecution, more so as the foundational criminal activities were done when the Applicant was in her late 70s. The right to a fair trial under Article 50 is a right to a process, not a right to avoid the trial process.
25. Further, the respondents contend that no medical evidence has been presented to the trial court, investigating team or to his knowledge to the DPP's office regarding any incapacity of the Applicant to understand the proceedings, instruct counsel, or participate meaningfully in legal processes.
26. According to the respondents the trial court is fully equipped to manage its proceedings to accommodate the Applicant's needs (e.g., frequent breaks, virtual attendance, medical support in court to ensure her meaningful participation.
27. To argue that she cannot participate at all due to age and ill-health, more so when these criminal activities were conducted when the Applicant was already of advance age is without basis.
28. Further, the respondents asserted that the Applicant's current claims of incapacity and ill-health appear to be tactical rather than genuine, given her demonstrated ability to instruct counsel to file and depone complex constitutional petitions in this Court while simultaneously claiming inability to participate in straightforward criminal proceedings before the Chief Magistrate's Court.
29. The respondents further argued that creating immunity from prosecution based solely on age and alleged chronic illness would immediately and inevitably create dangerous incentives for criminal organizations to systematically recruit elderly and sickly persons as fronts for fraudulent activities, particularly in land and documentation crimes where elderly and sickly persons could be exploited as willing or unwilling agents.
30. The respondents contended that the Twelfth Parliament Senate's Standing Committee on National Security, Defence and Foreign Relations Report on a Petition Concerning the Alleged Murder of an Environmentalist and Conservationist Ms.Joannah Stutchbury did not concern the issues of land fraud and obtaining registration by false pretences, but was an inquiry into the murder of Environmentalist and Conservationist Ms. Joannah Stutchbury.
31. The respondents posit that the proper entity to conduct criminal investigations is the National Police Service under the National Police Service Act and the Senate has no role, duty, power, jurisdiction or mandate to conduct criminal investigations and the purport to rely on a Senate Report is meritless.
32. The respondents maintain that the Senate report constitutes a merit defence to the charges alleged against the Applicant, and the same can only be properly made and taken by the trial Court and not this Court, in advance of plea and a criminal trial.
33. That the Applicant invites the Court to conduct a merit review of the investigation file outside the trial, by alleging that there is no evidence to charge her and that the charges have been brought without credible evidence. This is untrue as the investigation collected evidence, witness statements and obtained expert reports, which upon examination by the 1st Respondent were found to be sufficient to institute criminal proceedings.
34. It is further posited by the respondent that there is no abuse of process, malice or oppression as the investigations in this matter reveals serious criminal activities touching on fraud and interference with land records.
35. According to the respondent the Applicant has not demonstrated any exceptional circumstances that would justify the High Court's intervention to prohibit a constitutionally mandated criminal process at its inception.
ANALYSIS AND DETERMINATION
36. The applicant in this matter seeks an order to restrain the 2 nd respondent from proceeding with the taking of plea and or hearing of Nairobi Chief Magistrates Court Criminal Case No. E306 of 2025 Rep. Vs. Margaret Wairimu Magugu.
37. The applicant also seeks to restrain the 1 st respondent from commencing any other proceedings against the applicant based on the same subject matter. In essence therefore, the applicant seeks orders of prohibition against the Director of Public Prosecutions and the Chief Magistrate.
38. A prohibition order in a Criminal case would be to the effect of stopping the lower court from proceeding with the matter against the applicant. Such an order would be granted where it is shown that the trial court is acting ultra vires or acting unlawfully.
39. It would also issue where a prosecution is commenced without a proper factual and legal basis or in violation of the constitutional rights of an individual.
40. A prohibition order would also be issued where the applicant demonstrates that a continuation of the proceedings would amount to abuse of the legal process.
41. A litigant who approaches the court for a prohibition order bears the burden of proving that the intended trial is fundamentally flawed and threatens the breach of the fundamental rights of the applicant to a fair trial.
42. A prohibition order would also issue where investigations are shown to be unlawfully undertaken and the process leading to the prosecution of the applicant is flawed.
43. The main focus in an application for prohibition is the manner in which a decision is made (the process) and not whether the decision is correct. The court examines the entire process to determine whether the applicant has received fair treatment from the decision makers.
44. Further, where the applicant demonstrates that his constitutional rights have been violated or are threatened with violation the court will not hesitate to grant the order. The applicant must therefore present to the court evidence that the investigative agency had commenced investigations without any probable or justifiable cause in law and that the decision to prosecute was taken without regard to the due process of law.
45. It would also be important to demonstrate that the Director of Public Prosecutions in making the decision to charge did not abide by the National Prosecution Policy. The applicant should demonstrate that the decision to prosecute did not meet the evidential test as well as the public interest test. A decision to prosecute that is mala fides, or is made out of ulterior, extraneous or irrelevant considerations would also trigger the grant of a prohibition order. In Mohammed Gulam Hussein Fazal Karmali & Another vs. The Chief Magistrate's Court Nairobi Another (2006) e KLR where Nyamu J. (as he then was) stated:-
“Whilst the power of the High Court to intervene to stop a criminal prosecution must be exercised sparingly, the High Court must always be ready to intervene to prevent any prosecution which is vexatious, oppressive, mala fides, frivolous or taken up for other improper purpose such as undue harassment of a party or abuse of the process of court.”
46. Indeed, this court, in exercise of its supervisory jurisdiction has power to supervise the exercise of power by subordinate courts and any other person, body or authority exercising a judicial or quasi-judicial function if it exercises the power, unreasonably or in excess of jurisdiction or breach of rules of natural justice. The applicant in this case has basically anchored his case on the findings of a Senate Committee.
47. It was incumbent upon the applicant to address this court on the aspects of investigations that the committee did.
48. The applicant would have assisted the court to determine whether looking at the findings of the Committee all the issues that form the basis of the charges were investigated and fully addressed. Parliamentary committees once they complete their inquiries into a matter make recommendations to other Government agencies.
49. It would have been necessary for the applicant to demonstrate if at all there were investigations into the issues of forgery raised by the respondents in their response to the instant application and the recommendations that the committee made in respect thereof.
50. The court having perused the report notes that under recommendation ( c) appearing at pages 28 and 29 of the report the Committee simply directed the Ministry of Environment not to evict the persons who had tabled documents indicating that they were lawful owners and to assist them acquire title deeds.
51. The committee also recommended investigations to be undertaken by the Director of Criminal investigations as to how individuals came to own land in swampy forested areas. The recommendation by the Committee to the DCI confirms that the Senate Committee though they had interrogated the matter concerning land in the affected area, only the DCI would be able to deal with criminal aspects of land acquisition within the area.
52. The respondents have narrated in great detail the investigations they undertook in the matter. The charges preferred relate to obtaining of land registration and Forgery. The twin issues are matters that the Senate Committee could not have gone into for they lack the technical capacity to do so and that Criminal Investigations lie in the province of Inspector General of Police under Article 245 (4) of the Constitution and The National Police Service Act.
53. The applicant a sought an order to declare the decision to charge her in Criminal Case No. E306 of 2025 as being unconstitutional, unlawful and in violation of Article 50 of the Constitution. The respondent however indicated that the process leading to the decision to charge was undertaken in compliance with the law and at no time did they violate the rights of the applicant.
54. The applicant has not indeed alleged that there was any breach of her rights during investigation.
55. The applicant remained silent as to whether the allegation that she was called to record a statement and she declined was true or false. The court is therefore left with the position as stated by the Investigating officer that she was given an opportunity to go record a statement and she declined.
56. The fairness of the investigator has therefore not been impeached in any way.
57. In circumstances where the applicant demonstrates that their rights have been violated the court would not hesitate to intervene and remedy the situation. The High Court would intervene to prevent the misuse of the criminal justice system and abuse of the court process. However, the intervention would only happen if there is proof Of such abuse of process or the breach of rights.
58. The applicant in this matter has not shown in what respect the decision of the Director of Public Prosecutions was flawed or if at all it was taken out of malice, irrelevant or extraneous consideration. The court cannot simply stop a prosecution on unsubstantiated allegations of unfairness. The court should do so only where there is credible evidence of breach of procedure, the applicant’s rights or at least upon proof that based on the evidence available no reasonable decision maker would have arrived at the decision to prosecute the applicant.
59. In Associated Provincial Picture House v Wednesbury Corporation (1948)1 KB 223, where Lord Green M.R. said:-
“decisions of persons or bodies which perform public duties or functions will be liable to be quashed or otherwise dealt with by appropriate order of judicial review proceedings where the court concludes that the decision is such that no person or body properly directing itself on the relevant law and acting reasonably could have reached that decision.”
60. The applicant other than citing poor health and advanced age, has not put forth evidence that would lead the court to declare the commencement of the trial wrongful, unlawful and or improper. The facts as presented by the respondents in the affidavit of the investigating officer demonstrate probable cause for the respondents to have initiated the criminal proceedings. As to the guilt or innocence of the applicant that is a matter for the trial court.
61. The decision of the 3 Judge Bench in High Court Constitutional Petition No. 412 of 2023 declaring Wibeso Investment as the lawful owner, for as long as it remains unchallenged this court cannot hold otherwise.
62. In Rep. v Commissioner of Police and Another ex parte Michael Monari 2012 KLR (a) the court defined what abus
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