1. The Petition herein is dated 25/07/2023 and is filed through Messrs C.D. Nyamweya & Co. Advocates. Together with the Petition, the Petitioner had also filed a Notice of Motion seeking conservatory orders but it was later agreed by consent of the parties that to save on time, the conservatory orders would be issued and the parties would then proceed directly to canvassing the Petition. This consent was duly adopted, and pursuant thereto, I gave directions for hearing of the Petition.
2. However, before the Petition could be heard, the Interested Party, which had not initially been joined as a party in this matter, filed an Application seeking to participate in the Petition. After hearing the parties, by my Ruling delivered on 29/11/2024, I allowed the Application.
3. Back to the Petition, the same seeks a long list of orders but which when looked at closely, amounts to basically the same prayers merely framed in various different versions. The prayers are as follows:
i) A declaration order do issue that the Petitioner’s rights have been violated as particularized in the Petition
ii) A declaration order that the 1st and 2nd Respondent in light of the allegations touching on his competence, integrity and suitability as well as conflict of interest for that office is in breach of the Constitution in particular Article 10 (1) and (2) and Article 73 (1) and (2) of the Constitution
iii) A declaration order that the 2nd Respondent as a public officer herein abused his powers contrary to Article 157(11) of the Constitution by unfairly intending to prosecute the Petitioners and constantly harassing the Petitioners yet they are the bonafide owners of Plot No Eldoret Municipality Block 8/527 thus stifling the administration of justice and should forthwith stop the prosecution of all matters relating to the aforementioned criminal cases
iv) A declaration order that the 2nd Respondent in light of allegations of the manner he has handled matters relating to intending to prosecute the Petitioners is acts of mission or commission by themselves and/or assigns be declared inconsistent with the Constitution and in particular Articles 73(1) and 86 (2) as read with Sections 12 and 22 of the Public Officer Ethics Act.
v) A declaration order that the actions, inactions, commissions and omissions of the 1st and 2nd Respondents in intending to prosecute the Petitioner in relation to Plot No Eldoret Municipality 8/527 violates the Petitioners rights to fair administrative action as guaranteed under article 47 of the Constitution.
vi) A declaration order that the fundamental rights and freedoms of the Petitioners as guaranteed under Article 50 (1) of the Constitution has been violated.
vii) A declaration order do issue that the allegations against the Petitioners have no basis in law and any intended prosecution and ongoing prosecution against the Petitioners is bad in law and should be declared illegal.
viii) A declaration order do issue that any action of the Respondents that is inconsistent with the Constitution be voided to that extent.
ix) An order of mandamus directed against the 1st and 2nd Respondents to stop prosecuting any criminal case against the Petitioners in relation to Plot No Eldoret Municipality Blok 8/527.
x) Alternatively, a declaration that the Petitioners are entitled to the protection of the law as guaranteed under Article 27(1) of the Constitution of Kenya; and the abuse of power and subsequent office in the manner of investigation harassment and intended malicious prosecution of the Petitioners by the 2nd Respondent is a flagrant disregard of right to fair hearing as encapsulated in Article 50 (1) of the Constitution.
xi) Costs of the Petition
4. The Petition is supported by the Affidavit sworn by the 1st Petitioner, Martin Siwa Chemonges, who described himself as a director of the 2nd Petitioner. He deponed that sometime in 2013, the 2nd Petitioner entered into a Sale Agreement with one Johannah Kiprotich Chebiego of the Interested Party in respect to purchase of the parcel of land known as Eldoret Municipality Block 8/527 (hereinafter “the suit land”) for Kshs 11,500,000/- which amount was paid in full, in 3 instalments of Kshs 5,000,000/- upon signing of the Agreement, Kshs 2,000,000/- on 4/07/2013, and Kshs 4,500,000/- on 25/07/2013. He deponed that after the said transaction, the 2nd Petitioner was on 6/08/2013 issued with a Certificate of Lease by the Land Registrar for 99 years, and has been in occupation thereof since then, that sometime in July 2021, the 1st Petitioner was summoned to the DCIO Headquarters to be interrogated on how he acquired possession of the suit land and has since then been subjected to endless summons which he has come to learn is to aid unscrupulous individuals take possession of the suit land through criminal prosecution of the Petitioners. He deponed that he was later arrested and charged with the offence of forgery and obtaining land registration by false pretence under Eldoret Magistrate’s Court Criminal Case No. E3469/2021 in which one of the complainants’ witnesses, one Mark Muigai Wanderi, is the one who certified the Petitioners’ documents in respect to purchase of the suit.
5. He urged further that the Petitioners wrote a letter to the Director of Public Prosecutions (DPP) with a view to the case being withdrawn since the Land Registrar who claimed the 1st Petitioner had obtained the land registration by false pretence had been recommended by the DPP’s office to be charged with the offence of abuse of office and therefore could not be an impartial witness. He deponed that despite the DPP’s directives, the said Mark Muigai Wanderi has never been charged which prompted the 1st Petitioner, as the complainant, to seek a warrant of arrest against him which orders were obtained, that the said Mark Muigai Wanderi, upon realizing that there were pending warrants of arrest against him, proceeded to the High Court and filed an Application matter, namely, Eldoret High Court Miscellaneous Criminal No. E087 of 2022, which the Court dismissed. He prayed for this Court’s intervention to halt the illegality being perpetuated by the police with ulterior motives to deprive them of their rightfully acquired property. According to him, the Land Court is best suited to solve disputes regarding land matters before any criminal proceedings can be preferred subject to the final findings of the Court, and that the continued summons and the intended prosecution may result in a miscarriage of justice. The rest of the matters deponed are basically arguments on issues of law and restatement of known legal principles, which should have been reserved for final Submissions, and thus I will not recount.
Respondent’s Replying Affidavit
6. The Petition is opposed by the Respondents by way of the Replying Affidavit sworn by one Police Constable Antony Mwaura, who described himself as a Police Officer attached at Directorate of Criminal Investigations (DCI) Headquarters, Land Fraud Investigations Unit, and one of the Officers seized of the matter herein. He deponed that a complaint was made to his Office by one Ng’ang’a Kamau by the letter dated 11/01/2021 on behalf of the Interested Party and on his part, the Petitioner had also made a complaint at Naiberi Police Station, and this was established when the investigations commenced, and that to avoid parallel investigations, it was directed that the matter be taken over by DCI Headquarters Land Fraud Unit. He deponed that the investigations revolved around fraudulent documents regarding the suit land, Eldoret Municipality Block 8/527, which was initially owned by one John Rotich Limo who in the year 2006 sold and transferred the same to the Interested Party, and that the Petitioner’s claim to the suit land is therefore fraudulent. He deponed further that the 2nd Petitioner was incorporated on 14/05/2015, and not 13/05/2011 as the Petitioner has averred in his Affidavit, that the claim that the Petitioners purchased the suit land from “Astire Limited” is not true as that is a non-existent company, and that the purported Certificate of Lease in the name of “Astire Limited” by Land Registrar Tom Mainja Chepkwesi was found to be a false document by the document examiner and the signature forged.
7. He urged further that the Certificate of Lease referred to by the Petitioners is also a false document as the purported signature of Land Registrar Caleb Sunguti was also found to be forged, that investigations also revealed that signatures appearing in the White Card for the suit land purporting to support the Petitioners’ ownership thereof were all forgeries, and that the 1st Petitioner was charged after the file was forwarded to the 2nd Respondent (DPP) whose office analyzed the evidence and granted consent to prosecute. Regarding the said Land Registrar Mark Muigai Wanderi, he deponed that he (Mark Muigai Wanderi) merely provided certified copies of documents out of request by the DCI, and that the cause referred to by the Petitioners is totally a different one from the case the Petitioner was charged for. He deponed further that the 1st Petitioner was given the opportunity to support his claim, an impartial investigation was carried out and which followed all the dictates of law, that the charges are fair, just and known in law, the decision to charge the 1st Petitioner was informed by the sufficiency of evidence and the public interest, and that the presumption of innocence and the fundamental rights of the 1st Petitioner are guaranteed and protected by the trial Court.
8. He contended that granting of the orders sought herein will amount to arm-twisting and usurping powers of the trial Court, that the 1st Petitioner has not demonstrated that the trial Court will not safeguard his right to a fair trial, and that granting the orders will occasion great prejudice to the Respondents and the wider public as they will not have an opportunity to prove their case against the Petitioners. In conclusion, he urged that the Respondents have already been prejudiced by the stay orders and will be denied the right to exercise their Constitutional and statutory mandate, fair and speedy trial on offences bordering on forgeries. The other matters deponed in the Affidavit go deep into the merits of the criminal case said to be pending before the criminal Court, and which line of deponing may not really be very relevant to the issues before this Court, and which I have therefore not recounted at length.
Interested Party’s Affidavit
9. The Application is also opposed by the Interested Party which relied on the Replying Affidavit sworn on 11/12/2024 by one Njeri Kamau, and filed through Messrs Kitiwa & Partners Advocates. She stated that she is a director of the Interested Party whom she deponed, is the legal and registered owner of the suit land, Eldoret Municipality Block 8/527, as evidenced by the exhibited Certificate of Lease. She deponed that the suit land was initially owned by one John Rotich Limo who on 20/11/2006 entered into an Agreement for Sale with the Interested Party and transferred the suit land to the latter. According to her therefore, the Petitioner’s alleged ownership of the suit land is fraudulent and based on forged documents, including a purported Sale Agreement entered into with an entity named “Astire Limited”, which is not the Interested Party.
10. She deponed that the Interested Party discovered the fraud and took immediate steps to report the matter to the Directorate of Criminal Investigations (DCI) in January 2021, which investigations established that the documents used to transfer the suit land to the Petitioners were forged, and that the signatures on the Certificate of Lease conferring ownership of the suit land to the Petitioners were made by different authors rendering the transfer fraudulent, null and void. Regarding the prosecution of the 1st Petitioner, she urged that he will not suffer any prejudice as he will be accorded a fair hearing in the criminal case in accordance with the Constitution, that the existence of the criminal case does not amount to violation of Constitutional rights and the trial process will allow the 1st Petitioner to present his case and contest evidence presented against him and that the existence of a civil dispute does not preclude the institution of criminal proceedings where fraud, forgery or any criminal conduct is alleged. She urged that be that as it may, the Interested Party also filed a claim in Court, namely, Eldoret Environment and Land Court Case No. 2 of 2021 against the Petitioners which is ongoing and is focussed on determining issues of ownership and title. She contended that the Petitioner’s argument, if upheld, will delay the administration of justice, and create a dangerous precedent that allows alleged criminal conduct to be shielded under the guise of pending civil disputes.
11. As in the Affidavit by the Respondents, the Interested Party’s Affidavit has also in some areas, extensively delved into matters that amount to arguing the merits of the criminal case, which I have therefore restrained myself from recounting at length.
Petitioners’ Further Affidavit and Supplementary Affidavit
12. As observed above, the Respondent’s and the Interested Party’s Affidavit having in some portions, canvassed matters that are fit to be argued before the criminal trial Court, and not very relevant to the matters to be determined herein, the result is that it prompted the Petitioner to file a Further Affidavit and Supplementary to also substantively respond to the averments. Both sides therefore seem to some extent to have lost focus and deviated from what they needed to address before this Court. For this reason, I will also not recount the same as they relate to the merits and/or demerirs of the criminal case.
Hearing of the Petition
13. The Petition was canvassed by way of written Submissions. The Petitioners had filed its Submissions dated 22/03/2024 much earlier even before the Interested Party had joined the matter. For this reason, I gave them leave to file Supplementary Submissions, if necessary, but I have not come across any.
14. On its part, the Interested Party, after being so joined, filed the Submissions dated 6/02/2025.
15. On the Respondents part, they failed to beat the timeline that had been set for filing of their Submissions, and were thus locked out from filing any, time having expired.
Petitioners’ Submissions
16. The Petitioner’s Counsel, after recounting the background of the case, cited the case of Republic versus the Director of Public Prosecution & 4 others ex-parte Victor Wafula Masibo, the case of Commissioner of Police & the Director of Criminal Investigation Department and Another vs Kenya Commercial Bank Ltd & 4 others (2013) eKLR, and also the case of Kuria & 3 others vs Attorney General (2002) 2 KLR 69. He then reiterated that the Petitioners purchased the suit land from a known person in 2013 for a consideration of Kshs 11,500,000/-, upon which the land was transferred to them and that they are therefore the current registered owners. He submitted that in the year 2021 while in the process of developing the land, they were sued in Eldoret Environment and Land Court (ELC) Case No. E002 of 2021, and after sometime, were also summoned to the DCI headquarters and interrogated on several occasions on how they obtained the suit land and eventually charged in Eldoret Magistrate’s Court Criminal Case No. E3469 of 2021, which is the subject of this Petition. He contended that the Petitioners believe that their prosecution is intended to aid the Plaintiffs in the said Eldoret Environment and Land Court Case (ELC) No. E002 of 2021, as the statements and charge sheet to be used in the criminal case have also been filed as evidence in the ELC case, which case was filed much earlier than the criminal case.
17. According to Counsel, the intention of prosecution of the Petitioners is not to achieve criminal justice but rather, to obtain evidence to further the ELC case. He added that the seller of the suit land to the Petitioners has never been interrogated nor charged for any offence, yet that should have been the starting point before the criminal prosecution. Counsel urged further that the charges before the criminal Court are discriminatory and thus offend Article 27 of the Constitution, as there is no rational to charge one party so as to aid another in a civil case. In conclusion, he maintained that the Plaintiffs in the ELC case have never been the registered owners of the suit land and thus has no basis to mount the criminal prosecution of the Petitioners.
Interested Party’s Submissions
18. Counsel for the Interested Party, too, after reciting the background to this matter and referring to Article 50(1) of the Constitution, which guarantees the right to a fair hearing, and referring to the Petitioners’ claim that their fundamental rights and freedoms have been violated with the institution of Eldoret Chief Magistrates Court Criminal Case No. E3469 of 2021, submitted that the Petitioners have not demonstrated how their right to fair hearing has or will be violated as they have access to legal representation and also the opportunity to present their defence in the criminal proceedings. He cited the case of Republic v. Director of Public Prosecutions & Another; Ex-parte Patrick Ogola Onyango & 8 Others [2016] eKLR, in which he submitted, the Court held that criminal proceedings do not violate an accused persons’ rights where due process is followed and that the appropriate forum for determining guilt or innocence is the trial Court. He also pointed out that a person is innocent until proven guilty, and the mere fact that one has been charged with a criminal offence does not constitute a violation of their rights unless there is clear evidence of abuse of legal process. He also urged that Article 157(6) of the Constitution empowers the Director of Public Prosecutions (DPP) to institute and undertake criminal proceedings and that Section 24 of the National Police Service Act mandates the DCI to investigate crimes, including fraud. He cited the case of Kenya Commercial Bank Limited & 2 Others v. Commissioner of Police & Another [2013] eKLR, in which, he submitted, the Court held that it is not the role of the Constitutional Court to interfere with criminal proceedings unless there is clear evidence of malice or abuse of power. According to him, the Petitioners have not provided any evidence of abuse of power, bad faith or ulterior motives to justify the intervention of this Court, and that the Respondents had sufficient evidence and grounds to institute criminal proceedings against the Petitioners. Regarding the Petitioners’ contention that disputes regarding ownership of land are to be determined by the Environment and Land Court (ELC), and not Courts of criminal jurisdiction, Counsel submitted that while the Interested Party does not dispute this fact in light of the provisions of Article 162(2)(b) of the Constitution, the ELC equally has no jurisdiction to determine criminal liability.
19. He urged that be that as it may, the Interested Party instituted the said Eldoret ELC Case No. 2 of 2021, which is ongoing and is focused on determining the ownership dispute, and on its part, the criminal proceedings is to adjudicate on the allegations of fraud and forgery which falls far outside the jurisdiction of the ELC. He further submitted that the existence of the civil suit at the ELC, does not bar criminal proceedings arising from fraudulent dealings as there is sufficient evidence of criminality. He cited Section 193A of the Criminal Procedure Code and also the case of Republic v. Chief Magistrates Court at Mombasa; Ex-parte Ganijee & Another [2002] 2 KLR 703, and pointed out that criminal and civil proceedings can run concurrently as they serve distinct legal objectives.
20. Counsel also contended that the timing of the Petition reveals that it is merely an afterthought and a delay tactic by the Petitioners as the criminal case and the ELC case were both filed in 2021, yet the Petitioners only moved to file the instant Petition in July 2023, approximately 2 years later, that this prolonged delay raises serious doubts about the genuineness of their claims and strongly suggests that the Petitioners are seeking to frustrate the ongoing criminal proceedings rather than pursue legitimate Constitutional redress. He also reminded the Court that the Petitioners initially failed to join the Interested Party to the Petition herein despite it being the complainant in the criminal case and urged that this demonstrates a deliberate attempt to sideline the Interested Party from proceedings that directly affect its legal interests. According to him, the omission was not an oversight but a calculated move to unfairly obtain orders which would have been against the Interested Party, who could have been denied its right to be heard. He submitted that the Petition lacks merit, is legally untenable and an abuse of the Court process, that the criminal proceedings are lawful and justified as the trial Court is the proper forum to determine whether the fraud and forgery occurred, and therefore the Petitioners should allow due process to take its course instead of delaying justice. He quoted the statement in the case of Kuria & 3 others v. Attorney General [2022] 2 KLR 69, that “Courts should not be used to obstruct valid criminal proceedings unless there is clear evidence of abuse of power.” In conclusion, Counsel urged that if at all the Petitioners are bona fide purchasers for value, then they do not have a reason to fear prosecution, and that however, their conduct suggests an ulterior motive of evading accountability rather than seeking justice.
Determination
21. The broad issue that arises for determination herein is “whether this Court should stop the ongoing criminal prosecution case against the 1st Petitioner on the ground that the same infringes or threatens his Constitutional rights, and also there being ongoing proceedings at the Environmental and Land Court over the same issues.”
22. In answering the said issue, I will start by restating that the National Police Service is established under Article 243 of the Constitution, while the office of the Inspector-General of the National Police Service is established under Article 245(1).
23. The Inspector-General of the National Police Service is an independent office with the power to investigate any offence in Kenya and in respect thereto, Article 245(4) provides as follows:
“(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector- General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) …………………………………………….”.
24. On the part of the National Police Service Act, Cap. 84, Section 24 then outlines the functions of the Service to include; (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and, (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
25. On its part, the office of the Director of Public Prosecutions (DPP) is established under Article 157 of the Constitution and its mandate is provided in sub-articles (4), (6), (10) and (11) as follows:
“(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
(5) …………………………………………………………………………………..
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any Court (other than a Court martial) in respect of any offence alleged to have been committed;
……………………………………………………..
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
26. From the foregoing, it is clear that the Respondents are not subject to the control of any person or authority in the exercise of their mandate as conferred by the Constitution except in the manner set out therein. Nonetheless, in the exercise of those powers, the discretion must be exercised in accordance with the law. Where it is demonstrated that they have overstepped their mandate by misusing their powers, the High Court is empowered to, and should intervene. Abuse of such discretionary powers would include, for instance, the employment of extraneous factors to achieve ulterior goals separate from ends of justice. On this point, I cite the case of Kuria -vs- Attorney General [2002], in which the Court stated as follows:
"The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is the duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform ........... a stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles which underlie the society's sense of fair play and decency and/or where the proceedings are oppressive or vexatious .............."
27. Similarly, in the case of Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held as follows:
“… the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”
28. In regard to prosecution of criminal cases, although the mandate thereon rests with the DPP as enshrined under Article 157 of the Constitution, in exercising this mandate, the DPP is required to review and determine the “prosecutability” of cases forwarded for his action. As aforesaid, the DPP is under obligation to exercise this discretion judiciously.
29. The procedure is that prosecution is preceded by an investigation which tackles the question whether there was an offence committed and the Constitution and the National Police Service Act give the Police the mandate to conduct such investigations. On this aspect, I refer to the following remarks of Warsame J (as he then was) made in the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another [2012] eKLR:
“The Police have a duty to investigate once a complaint is made. Indeed, the police would be failing in their Constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”
30. In Douglas Maina Mwangi vs. KRA & Another, 213 eKLR, Majanja J also addressed the same issue in the follow manner:
“15. The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases ………”
31. As already stated therefore, this Court has the Constitutional mandate and power to stop any criminal prosecution which has been demonstrated to have been preferred maliciously, with ulterior or selfish reasons. That is not in doubt. However, in exercising that power, the Court must also be cautious and careful not to overstep or exceed its mandate by usurping or unduly interfering with the prosecutorial powers of the DPP similarly donated by the same Constitution.
32. For the need for such caution, I again refer to the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari (supra) where Warsame J (as he then was), expressed himself as follows:
“Un
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2. However, before the Petition could be heard, the Interested Party, which had not initially been joined as a party in this matter, filed an Application seeking to participate in the Petition. After hearing the parties, by my Ruling delivered on 29/11/2024, I allowed the Application.
3. Back to the Petition, the same seeks a long list of orders but which when looked at closely, amounts to basically the same prayers merely framed in various different versions. The prayers are as follows:
i) A declaration order do issue that the Petitioner’s rights have been violated as particularized in the Petition
ii) A declaration order that the 1st and 2nd Respondent in light of the allegations touching on his competence, integrity and suitability as well as conflict of interest for that office is in breach of the Constitution in particular Article 10 (1) and (2) and Article 73 (1) and (2) of the Constitution
iii) A declaration order that the 2nd Respondent as a public officer herein abused his powers contrary to Article 157(11) of the Constitution by unfairly intending to prosecute the Petitioners and constantly harassing the Petitioners yet they are the bonafide owners of Plot No Eldoret Municipality Block 8/527 thus stifling the administration of justice and should forthwith stop the prosecution of all matters relating to the aforementioned criminal cases
iv) A declaration order that the 2nd Respondent in light of allegations of the manner he has handled matters relating to intending to prosecute the Petitioners is acts of mission or commission by themselves and/or assigns be declared inconsistent with the Constitution and in particular Articles 73(1) and 86 (2) as read with Sections 12 and 22 of the Public Officer Ethics Act.
v) A declaration order that the actions, inactions, commissions and omissions of the 1st and 2nd Respondents in intending to prosecute the Petitioner in relation to Plot No Eldoret Municipality 8/527 violates the Petitioners rights to fair administrative action as guaranteed under article 47 of the Constitution.
vi) A declaration order that the fundamental rights and freedoms of the Petitioners as guaranteed under Article 50 (1) of the Constitution has been violated.
vii) A declaration order do issue that the allegations against the Petitioners have no basis in law and any intended prosecution and ongoing prosecution against the Petitioners is bad in law and should be declared illegal.
viii) A declaration order do issue that any action of the Respondents that is inconsistent with the Constitution be voided to that extent.
ix) An order of mandamus directed against the 1st and 2nd Respondents to stop prosecuting any criminal case against the Petitioners in relation to Plot No Eldoret Municipality Blok 8/527.
x) Alternatively, a declaration that the Petitioners are entitled to the protection of the law as guaranteed under Article 27(1) of the Constitution of Kenya; and the abuse of power and subsequent office in the manner of investigation harassment and intended malicious prosecution of the Petitioners by the 2nd Respondent is a flagrant disregard of right to fair hearing as encapsulated in Article 50 (1) of the Constitution.
xi) Costs of the Petition
4. The Petition is supported by the Affidavit sworn by the 1st Petitioner, Martin Siwa Chemonges, who described himself as a director of the 2nd Petitioner. He deponed that sometime in 2013, the 2nd Petitioner entered into a Sale Agreement with one Johannah Kiprotich Chebiego of the Interested Party in respect to purchase of the parcel of land known as Eldoret Municipality Block 8/527 (hereinafter “the suit land”) for Kshs 11,500,000/- which amount was paid in full, in 3 instalments of Kshs 5,000,000/- upon signing of the Agreement, Kshs 2,000,000/- on 4/07/2013, and Kshs 4,500,000/- on 25/07/2013. He deponed that after the said transaction, the 2nd Petitioner was on 6/08/2013 issued with a Certificate of Lease by the Land Registrar for 99 years, and has been in occupation thereof since then, that sometime in July 2021, the 1st Petitioner was summoned to the DCIO Headquarters to be interrogated on how he acquired possession of the suit land and has since then been subjected to endless summons which he has come to learn is to aid unscrupulous individuals take possession of the suit land through criminal prosecution of the Petitioners. He deponed that he was later arrested and charged with the offence of forgery and obtaining land registration by false pretence under Eldoret Magistrate’s Court Criminal Case No. E3469/2021 in which one of the complainants’ witnesses, one Mark Muigai Wanderi, is the one who certified the Petitioners’ documents in respect to purchase of the suit.
5. He urged further that the Petitioners wrote a letter to the Director of Public Prosecutions (DPP) with a view to the case being withdrawn since the Land Registrar who claimed the 1st Petitioner had obtained the land registration by false pretence had been recommended by the DPP’s office to be charged with the offence of abuse of office and therefore could not be an impartial witness. He deponed that despite the DPP’s directives, the said Mark Muigai Wanderi has never been charged which prompted the 1st Petitioner, as the complainant, to seek a warrant of arrest against him which orders were obtained, that the said Mark Muigai Wanderi, upon realizing that there were pending warrants of arrest against him, proceeded to the High Court and filed an Application matter, namely, Eldoret High Court Miscellaneous Criminal No. E087 of 2022, which the Court dismissed. He prayed for this Court’s intervention to halt the illegality being perpetuated by the police with ulterior motives to deprive them of their rightfully acquired property. According to him, the Land Court is best suited to solve disputes regarding land matters before any criminal proceedings can be preferred subject to the final findings of the Court, and that the continued summons and the intended prosecution may result in a miscarriage of justice. The rest of the matters deponed are basically arguments on issues of law and restatement of known legal principles, which should have been reserved for final Submissions, and thus I will not recount.
Respondent’s Replying Affidavit
6. The Petition is opposed by the Respondents by way of the Replying Affidavit sworn by one Police Constable Antony Mwaura, who described himself as a Police Officer attached at Directorate of Criminal Investigations (DCI) Headquarters, Land Fraud Investigations Unit, and one of the Officers seized of the matter herein. He deponed that a complaint was made to his Office by one Ng’ang’a Kamau by the letter dated 11/01/2021 on behalf of the Interested Party and on his part, the Petitioner had also made a complaint at Naiberi Police Station, and this was established when the investigations commenced, and that to avoid parallel investigations, it was directed that the matter be taken over by DCI Headquarters Land Fraud Unit. He deponed that the investigations revolved around fraudulent documents regarding the suit land, Eldoret Municipality Block 8/527, which was initially owned by one John Rotich Limo who in the year 2006 sold and transferred the same to the Interested Party, and that the Petitioner’s claim to the suit land is therefore fraudulent. He deponed further that the 2nd Petitioner was incorporated on 14/05/2015, and not 13/05/2011 as the Petitioner has averred in his Affidavit, that the claim that the Petitioners purchased the suit land from “Astire Limited” is not true as that is a non-existent company, and that the purported Certificate of Lease in the name of “Astire Limited” by Land Registrar Tom Mainja Chepkwesi was found to be a false document by the document examiner and the signature forged.
7. He urged further that the Certificate of Lease referred to by the Petitioners is also a false document as the purported signature of Land Registrar Caleb Sunguti was also found to be forged, that investigations also revealed that signatures appearing in the White Card for the suit land purporting to support the Petitioners’ ownership thereof were all forgeries, and that the 1st Petitioner was charged after the file was forwarded to the 2nd Respondent (DPP) whose office analyzed the evidence and granted consent to prosecute. Regarding the said Land Registrar Mark Muigai Wanderi, he deponed that he (Mark Muigai Wanderi) merely provided certified copies of documents out of request by the DCI, and that the cause referred to by the Petitioners is totally a different one from the case the Petitioner was charged for. He deponed further that the 1st Petitioner was given the opportunity to support his claim, an impartial investigation was carried out and which followed all the dictates of law, that the charges are fair, just and known in law, the decision to charge the 1st Petitioner was informed by the sufficiency of evidence and the public interest, and that the presumption of innocence and the fundamental rights of the 1st Petitioner are guaranteed and protected by the trial Court.
8. He contended that granting of the orders sought herein will amount to arm-twisting and usurping powers of the trial Court, that the 1st Petitioner has not demonstrated that the trial Court will not safeguard his right to a fair trial, and that granting the orders will occasion great prejudice to the Respondents and the wider public as they will not have an opportunity to prove their case against the Petitioners. In conclusion, he urged that the Respondents have already been prejudiced by the stay orders and will be denied the right to exercise their Constitutional and statutory mandate, fair and speedy trial on offences bordering on forgeries. The other matters deponed in the Affidavit go deep into the merits of the criminal case said to be pending before the criminal Court, and which line of deponing may not really be very relevant to the issues before this Court, and which I have therefore not recounted at length.
Interested Party’s Affidavit
9. The Application is also opposed by the Interested Party which relied on the Replying Affidavit sworn on 11/12/2024 by one Njeri Kamau, and filed through Messrs Kitiwa & Partners Advocates. She stated that she is a director of the Interested Party whom she deponed, is the legal and registered owner of the suit land, Eldoret Municipality Block 8/527, as evidenced by the exhibited Certificate of Lease. She deponed that the suit land was initially owned by one John Rotich Limo who on 20/11/2006 entered into an Agreement for Sale with the Interested Party and transferred the suit land to the latter. According to her therefore, the Petitioner’s alleged ownership of the suit land is fraudulent and based on forged documents, including a purported Sale Agreement entered into with an entity named “Astire Limited”, which is not the Interested Party.
10. She deponed that the Interested Party discovered the fraud and took immediate steps to report the matter to the Directorate of Criminal Investigations (DCI) in January 2021, which investigations established that the documents used to transfer the suit land to the Petitioners were forged, and that the signatures on the Certificate of Lease conferring ownership of the suit land to the Petitioners were made by different authors rendering the transfer fraudulent, null and void. Regarding the prosecution of the 1st Petitioner, she urged that he will not suffer any prejudice as he will be accorded a fair hearing in the criminal case in accordance with the Constitution, that the existence of the criminal case does not amount to violation of Constitutional rights and the trial process will allow the 1st Petitioner to present his case and contest evidence presented against him and that the existence of a civil dispute does not preclude the institution of criminal proceedings where fraud, forgery or any criminal conduct is alleged. She urged that be that as it may, the Interested Party also filed a claim in Court, namely, Eldoret Environment and Land Court Case No. 2 of 2021 against the Petitioners which is ongoing and is focussed on determining issues of ownership and title. She contended that the Petitioner’s argument, if upheld, will delay the administration of justice, and create a dangerous precedent that allows alleged criminal conduct to be shielded under the guise of pending civil disputes.
11. As in the Affidavit by the Respondents, the Interested Party’s Affidavit has also in some areas, extensively delved into matters that amount to arguing the merits of the criminal case, which I have therefore restrained myself from recounting at length.
Petitioners’ Further Affidavit and Supplementary Affidavit
12. As observed above, the Respondent’s and the Interested Party’s Affidavit having in some portions, canvassed matters that are fit to be argued before the criminal trial Court, and not very relevant to the matters to be determined herein, the result is that it prompted the Petitioner to file a Further Affidavit and Supplementary to also substantively respond to the averments. Both sides therefore seem to some extent to have lost focus and deviated from what they needed to address before this Court. For this reason, I will also not recount the same as they relate to the merits and/or demerirs of the criminal case.
Hearing of the Petition
13. The Petition was canvassed by way of written Submissions. The Petitioners had filed its Submissions dated 22/03/2024 much earlier even before the Interested Party had joined the matter. For this reason, I gave them leave to file Supplementary Submissions, if necessary, but I have not come across any.
14. On its part, the Interested Party, after being so joined, filed the Submissions dated 6/02/2025.
15. On the Respondents part, they failed to beat the timeline that had been set for filing of their Submissions, and were thus locked out from filing any, time having expired.
Petitioners’ Submissions
16. The Petitioner’s Counsel, after recounting the background of the case, cited the case of Republic versus the Director of Public Prosecution & 4 others ex-parte Victor Wafula Masibo, the case of Commissioner of Police & the Director of Criminal Investigation Department and Another vs Kenya Commercial Bank Ltd & 4 others (2013) eKLR, and also the case of Kuria & 3 others vs Attorney General (2002) 2 KLR 69. He then reiterated that the Petitioners purchased the suit land from a known person in 2013 for a consideration of Kshs 11,500,000/-, upon which the land was transferred to them and that they are therefore the current registered owners. He submitted that in the year 2021 while in the process of developing the land, they were sued in Eldoret Environment and Land Court (ELC) Case No. E002 of 2021, and after sometime, were also summoned to the DCI headquarters and interrogated on several occasions on how they obtained the suit land and eventually charged in Eldoret Magistrate’s Court Criminal Case No. E3469 of 2021, which is the subject of this Petition. He contended that the Petitioners believe that their prosecution is intended to aid the Plaintiffs in the said Eldoret Environment and Land Court Case (ELC) No. E002 of 2021, as the statements and charge sheet to be used in the criminal case have also been filed as evidence in the ELC case, which case was filed much earlier than the criminal case.
17. According to Counsel, the intention of prosecution of the Petitioners is not to achieve criminal justice but rather, to obtain evidence to further the ELC case. He added that the seller of the suit land to the Petitioners has never been interrogated nor charged for any offence, yet that should have been the starting point before the criminal prosecution. Counsel urged further that the charges before the criminal Court are discriminatory and thus offend Article 27 of the Constitution, as there is no rational to charge one party so as to aid another in a civil case. In conclusion, he maintained that the Plaintiffs in the ELC case have never been the registered owners of the suit land and thus has no basis to mount the criminal prosecution of the Petitioners.
Interested Party’s Submissions
18. Counsel for the Interested Party, too, after reciting the background to this matter and referring to Article 50(1) of the Constitution, which guarantees the right to a fair hearing, and referring to the Petitioners’ claim that their fundamental rights and freedoms have been violated with the institution of Eldoret Chief Magistrates Court Criminal Case No. E3469 of 2021, submitted that the Petitioners have not demonstrated how their right to fair hearing has or will be violated as they have access to legal representation and also the opportunity to present their defence in the criminal proceedings. He cited the case of Republic v. Director of Public Prosecutions & Another; Ex-parte Patrick Ogola Onyango & 8 Others [2016] eKLR, in which he submitted, the Court held that criminal proceedings do not violate an accused persons’ rights where due process is followed and that the appropriate forum for determining guilt or innocence is the trial Court. He also pointed out that a person is innocent until proven guilty, and the mere fact that one has been charged with a criminal offence does not constitute a violation of their rights unless there is clear evidence of abuse of legal process. He also urged that Article 157(6) of the Constitution empowers the Director of Public Prosecutions (DPP) to institute and undertake criminal proceedings and that Section 24 of the National Police Service Act mandates the DCI to investigate crimes, including fraud. He cited the case of Kenya Commercial Bank Limited & 2 Others v. Commissioner of Police & Another [2013] eKLR, in which, he submitted, the Court held that it is not the role of the Constitutional Court to interfere with criminal proceedings unless there is clear evidence of malice or abuse of power. According to him, the Petitioners have not provided any evidence of abuse of power, bad faith or ulterior motives to justify the intervention of this Court, and that the Respondents had sufficient evidence and grounds to institute criminal proceedings against the Petitioners. Regarding the Petitioners’ contention that disputes regarding ownership of land are to be determined by the Environment and Land Court (ELC), and not Courts of criminal jurisdiction, Counsel submitted that while the Interested Party does not dispute this fact in light of the provisions of Article 162(2)(b) of the Constitution, the ELC equally has no jurisdiction to determine criminal liability.
19. He urged that be that as it may, the Interested Party instituted the said Eldoret ELC Case No. 2 of 2021, which is ongoing and is focused on determining the ownership dispute, and on its part, the criminal proceedings is to adjudicate on the allegations of fraud and forgery which falls far outside the jurisdiction of the ELC. He further submitted that the existence of the civil suit at the ELC, does not bar criminal proceedings arising from fraudulent dealings as there is sufficient evidence of criminality. He cited Section 193A of the Criminal Procedure Code and also the case of Republic v. Chief Magistrates Court at Mombasa; Ex-parte Ganijee & Another [2002] 2 KLR 703, and pointed out that criminal and civil proceedings can run concurrently as they serve distinct legal objectives.
20. Counsel also contended that the timing of the Petition reveals that it is merely an afterthought and a delay tactic by the Petitioners as the criminal case and the ELC case were both filed in 2021, yet the Petitioners only moved to file the instant Petition in July 2023, approximately 2 years later, that this prolonged delay raises serious doubts about the genuineness of their claims and strongly suggests that the Petitioners are seeking to frustrate the ongoing criminal proceedings rather than pursue legitimate Constitutional redress. He also reminded the Court that the Petitioners initially failed to join the Interested Party to the Petition herein despite it being the complainant in the criminal case and urged that this demonstrates a deliberate attempt to sideline the Interested Party from proceedings that directly affect its legal interests. According to him, the omission was not an oversight but a calculated move to unfairly obtain orders which would have been against the Interested Party, who could have been denied its right to be heard. He submitted that the Petition lacks merit, is legally untenable and an abuse of the Court process, that the criminal proceedings are lawful and justified as the trial Court is the proper forum to determine whether the fraud and forgery occurred, and therefore the Petitioners should allow due process to take its course instead of delaying justice. He quoted the statement in the case of Kuria & 3 others v. Attorney General [2022] 2 KLR 69, that “Courts should not be used to obstruct valid criminal proceedings unless there is clear evidence of abuse of power.” In conclusion, Counsel urged that if at all the Petitioners are bona fide purchasers for value, then they do not have a reason to fear prosecution, and that however, their conduct suggests an ulterior motive of evading accountability rather than seeking justice.
Determination
21. The broad issue that arises for determination herein is “whether this Court should stop the ongoing criminal prosecution case against the 1st Petitioner on the ground that the same infringes or threatens his Constitutional rights, and also there being ongoing proceedings at the Environmental and Land Court over the same issues.”
22. In answering the said issue, I will start by restating that the National Police Service is established under Article 243 of the Constitution, while the office of the Inspector-General of the National Police Service is established under Article 245(1).
23. The Inspector-General of the National Police Service is an independent office with the power to investigate any offence in Kenya and in respect thereto, Article 245(4) provides as follows:
“(4) The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector- General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) …………………………………………….”.
24. On the part of the National Police Service Act, Cap. 84, Section 24 then outlines the functions of the Service to include; (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and, (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
25. On its part, the office of the Director of Public Prosecutions (DPP) is established under Article 157 of the Constitution and its mandate is provided in sub-articles (4), (6), (10) and (11) as follows:
“(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
(5) …………………………………………………………………………………..
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any Court (other than a Court martial) in respect of any offence alleged to have been committed;
……………………………………………………..
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
26. From the foregoing, it is clear that the Respondents are not subject to the control of any person or authority in the exercise of their mandate as conferred by the Constitution except in the manner set out therein. Nonetheless, in the exercise of those powers, the discretion must be exercised in accordance with the law. Where it is demonstrated that they have overstepped their mandate by misusing their powers, the High Court is empowered to, and should intervene. Abuse of such discretionary powers would include, for instance, the employment of extraneous factors to achieve ulterior goals separate from ends of justice. On this point, I cite the case of Kuria -vs- Attorney General [2002], in which the Court stated as follows:
"The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is the duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform ........... a stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles which underlie the society's sense of fair play and decency and/or where the proceedings are oppressive or vexatious .............."
27. Similarly, in the case of Joram Mwenda Guantai vs. The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] 2 EA 170, the Court of Appeal held as follows:
“… the High Court has inherent jurisdiction to grant an order of prohibition to a person charged before a subordinate court and considers himself to be a victim of oppression. If the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious, the Judge has the power to intervene and the High Court has an inherent power and the duty to secure fair treatment for all persons who are brought before the court or to a subordinate court and to prevent an abuse of the process of the court.”
28. In regard to prosecution of criminal cases, although the mandate thereon rests with the DPP as enshrined under Article 157 of the Constitution, in exercising this mandate, the DPP is required to review and determine the “prosecutability” of cases forwarded for his action. As aforesaid, the DPP is under obligation to exercise this discretion judiciously.
29. The procedure is that prosecution is preceded by an investigation which tackles the question whether there was an offence committed and the Constitution and the National Police Service Act give the Police the mandate to conduct such investigations. On this aspect, I refer to the following remarks of Warsame J (as he then was) made in the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another [2012] eKLR:
“The Police have a duty to investigate once a complaint is made. Indeed, the police would be failing in their Constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene.”
30. In Douglas Maina Mwangi vs. KRA & Another, 213 eKLR, Majanja J also addressed the same issue in the follow manner:
“15. The office of the Director of Public Prosecution under Article 157 of the Constitution is an independent office under the Constitution like its predecessor office, the office of the Attorney General under section 26 of the former Constitution. When dealing with the decision as to whether or not to prosecute, the office exercises independent judgment and this court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process. This has been the holding of this court in several decided cases ………”
31. As already stated therefore, this Court has the Constitutional mandate and power to stop any criminal prosecution which has been demonstrated to have been preferred maliciously, with ulterior or selfish reasons. That is not in doubt. However, in exercising that power, the Court must also be cautious and careful not to overstep or exceed its mandate by usurping or unduly interfering with the prosecutorial powers of the DPP similarly donated by the same Constitution.
32. For the need for such caution, I again refer to the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari (supra) where Warsame J (as he then was), expressed himself as follows:
“Un
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