'1. Through the Application dated 8th March 2024 Applicant seeks the following orders: -
1) That an ORDER OF CERTIORARI do issue to remove into this Honourable Court and quash the decision of the 1st and 2nd Respondents to institute and undertake criminal proceedings against the Exparte Applicant, which decision is set out in the Charge Sheet dated 16th October 2023 and registered before the 3rd Respondent in Milimani Chief Magistrate''s Criminal Case No. E860 OF 2023.
2) That an ORDER OF PROHIBITION do issue directed to the Respondents, their officers and any other authority acting on their instructions from prosecuting or proceeding with the prosecution of the Applicant on the offence of obtaining goods by false pretenses contrary to section 313 of the Penal Code in Milimani Chief Magistrate''s Criminal Case No. E860 OF 2023 or any other related charges.
3) That this Honourable Court be at liberty to make such further and other orders that it deems fit to meet the ends of justice.
4) That the costs of this Application be provided for.
2. The Application is supported by the affidavit of the Applicant and the Statutory Statement. The Application is not opposed.
3. It is her case that on 11th October 2023, the 2nd Respondent’s officers summoned me to Kilimani Police Station, whereupon presenting herself she was interrogated and released on a Police Cash Bail pending my arraignment in court.
4. She argues that she is due to get charged with the offence of obtaining goods by false pretenses contrary to Section 313 of the Penal Code in Milimani Chief Magistrates Criminal Case No. E860 of 2023.
5. It is her case that the intended criminal proceedings against her emanate from purely commercial transactions between Messrs. Ends Link & Logistics Limited, where she is an officer
6. It is further her case that the company and the Interested Parties’ entered into a contract for the supply of green grams on 10th March 2023 in the following terms: -
i. The Interested Parties’ Company would supply our company with green grams for a period of one year.
ii. The goods supplied would be paid within the specified period as prescribed in the Purchase Order given by our company.
iii. Payments would be made to the Interested Parties’ account at HFC Bank.
iv. All disputes between the parties would be submitted to the exclusive jurisdiction of the Laws of Kenya, and it was imperative that both parties to the contract embrace arbitration in the event of a dispute.
7. She argues that on 10th March 2023, the company issued the Interested Parties’ Company with a Purchase Order for green grams worth Kshs. 4,750,000.00.
8. The Interested Parties’ Company only managed to supply green grams worth Kshs. 2,173,600.00, which they invoiced. Subsequently, the company made a deposit of Kshs. 700,000.00 to the Interested Parties’ Company, honouring its contractual obligation by making part payment.
9. It is her case that she supplied the police with all the documents regarding the contractual engagements between the Interested Parties’ Company and the company, which documents were subsequently forwarded to the 1st Respondent together with the police file to enable it to decide on whether to prosecute her or not.
10. The engagement according to her is contractual and, therefore, civil in nature yet the 1st Respondent has decided to institute and undertake criminal proceedings against her, nonetheless.
11. It is her case that due to the challenging economic climate, litigants may be more inclined to resort to the criminal justice system to resolve disputes that would normally fall within the realm of civil law. She urges this Honorable Court to be vigilant in preventing the misuse of the criminal justice system as a tool for retribution against her.
12. She argues that she stands to suffer irreparable harm and injury should the proceedings in Milimani Chief Magistrate’s Criminal Case No. E860 OF 2023 not be stayed.
13. No prejudice whatsoever shall be suffered by the Respondents, or the Interested Parties should the orders herein sought be granted as prayed according to her.
Analysis and Determination;
Following are the issues for determination;
1) Whether the Application has merit.
2) Who shall be the cost.
Whether the Application has merit.
14. In the case of Pastoli -Versus- Kabale District Local Government Council & Others (2008)2 EA 300 where the court had held as follows;
“In order to succeed in an Application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety…illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission……Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards………. Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observation of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
15. Section 24 as read with Section 35 of the National Police Service Act,2011 stipulates that the 1st and 2ndRespondents are mandated among other duties to prevent and detect crime, collect criminal intelligence, investigate crime and apprehend offenders.
16. The procedure for handling crime that is embraced under our criminal justice system is initiated by way of a complaint with the police.
17. The Interested Parties herein lodged complaints that triggered the proceedings that then form the cause of action subject of the suit.
18. In Civil Appeal No. E064 Of 2022 Esther Wamuyu V Grace Wangari Mwangi (2024) KEHC, the court pronounced itself as such;
“26.The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
27.It follows that the Respondent herein had the duty to prove her claim against the Appellant.”
19. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
28.It follows that the initial burden of proof was with the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case and the evidence tendered.
20. The Applicant has not proven that the Respondents have maliciously arrived at decision to charge her. There is no proof to demonstrate that the Respondents have done anything illegal or irrational or disproportionate or unfair or procedurally wrong or improper or done anything beyond their powers as to warrant the issuance of the order of certiorari as sought.
21. The argument that no prejudice whatsoever shall be suffered by the Respondents, or the Interested Parties should the orders herein sought be granted as prayed is misplaced. The Interested Parties have a stake in the outcome of the process.
22. Section 193A of the Criminal Procedure Code on this issue provides that;
“notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”
23. The fact that there exists a civil suit is not a bar to any criminal proceedings or investigations.
24. This court is cognizant of the fact that this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act. In this case they are the Interested Parties.
25. Section 9(2) (a) of the Victims Protection Act provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission.
26. Victim participation should meaningfully contribute to the justice process. Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic [2020] eKLR.
27. I am satisfied that the interested parties as victims have an interest in the outcome of the investigations and ultimately the outcome of this suit. Allowing the Application will deny the complainants their right to fair hearing.
28. The Applicant has also sought an order of prohibition.
29. In the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It''s an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.
“Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.”
Disposition;
30. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order of prohibition may issue as follows;
“What does an order of prohibition do and when will it issue" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”
31. Having failed to prove that the Respondents acted illegally, then the order of prohibition cannot be issued.
32. The fact of that the Application is unopposed is not a ticket that will allow the automatic grant of the orders sought. The burden of proof remains on the Applicants’ shoulders which they have failed to discharge and I so hold.
33. The Applicant has not made out a case that can inform the grant of the reliefs sought.
Costs;
34. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
35. The Applicants shall bear the cost of the suit.
36. The Application lacks merit.
Order:
The Application is dismissed with costs.
Dated, Signed and Delivered at Nairobi this 23rd day of October, 2025.
'
1) That an ORDER OF CERTIORARI do issue to remove into this Honourable Court and quash the decision of the 1st and 2nd Respondents to institute and undertake criminal proceedings against the Exparte Applicant, which decision is set out in the Charge Sheet dated 16th October 2023 and registered before the 3rd Respondent in Milimani Chief Magistrate''s Criminal Case No. E860 OF 2023.
2) That an ORDER OF PROHIBITION do issue directed to the Respondents, their officers and any other authority acting on their instructions from prosecuting or proceeding with the prosecution of the Applicant on the offence of obtaining goods by false pretenses contrary to section 313 of the Penal Code in Milimani Chief Magistrate''s Criminal Case No. E860 OF 2023 or any other related charges.
3) That this Honourable Court be at liberty to make such further and other orders that it deems fit to meet the ends of justice.
4) That the costs of this Application be provided for.
2. The Application is supported by the affidavit of the Applicant and the Statutory Statement. The Application is not opposed.
3. It is her case that on 11th October 2023, the 2nd Respondent’s officers summoned me to Kilimani Police Station, whereupon presenting herself she was interrogated and released on a Police Cash Bail pending my arraignment in court.
4. She argues that she is due to get charged with the offence of obtaining goods by false pretenses contrary to Section 313 of the Penal Code in Milimani Chief Magistrates Criminal Case No. E860 of 2023.
5. It is her case that the intended criminal proceedings against her emanate from purely commercial transactions between Messrs. Ends Link & Logistics Limited, where she is an officer
6. It is further her case that the company and the Interested Parties’ entered into a contract for the supply of green grams on 10th March 2023 in the following terms: -
i. The Interested Parties’ Company would supply our company with green grams for a period of one year.
ii. The goods supplied would be paid within the specified period as prescribed in the Purchase Order given by our company.
iii. Payments would be made to the Interested Parties’ account at HFC Bank.
iv. All disputes between the parties would be submitted to the exclusive jurisdiction of the Laws of Kenya, and it was imperative that both parties to the contract embrace arbitration in the event of a dispute.
7. She argues that on 10th March 2023, the company issued the Interested Parties’ Company with a Purchase Order for green grams worth Kshs. 4,750,000.00.
8. The Interested Parties’ Company only managed to supply green grams worth Kshs. 2,173,600.00, which they invoiced. Subsequently, the company made a deposit of Kshs. 700,000.00 to the Interested Parties’ Company, honouring its contractual obligation by making part payment.
9. It is her case that she supplied the police with all the documents regarding the contractual engagements between the Interested Parties’ Company and the company, which documents were subsequently forwarded to the 1st Respondent together with the police file to enable it to decide on whether to prosecute her or not.
10. The engagement according to her is contractual and, therefore, civil in nature yet the 1st Respondent has decided to institute and undertake criminal proceedings against her, nonetheless.
11. It is her case that due to the challenging economic climate, litigants may be more inclined to resort to the criminal justice system to resolve disputes that would normally fall within the realm of civil law. She urges this Honorable Court to be vigilant in preventing the misuse of the criminal justice system as a tool for retribution against her.
12. She argues that she stands to suffer irreparable harm and injury should the proceedings in Milimani Chief Magistrate’s Criminal Case No. E860 OF 2023 not be stayed.
13. No prejudice whatsoever shall be suffered by the Respondents, or the Interested Parties should the orders herein sought be granted as prayed according to her.
Analysis and Determination;
Following are the issues for determination;
1) Whether the Application has merit.
2) Who shall be the cost.
Whether the Application has merit.
14. In the case of Pastoli -Versus- Kabale District Local Government Council & Others (2008)2 EA 300 where the court had held as follows;
“In order to succeed in an Application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety…illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission……Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards………. Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observation of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
15. Section 24 as read with Section 35 of the National Police Service Act,2011 stipulates that the 1st and 2ndRespondents are mandated among other duties to prevent and detect crime, collect criminal intelligence, investigate crime and apprehend offenders.
16. The procedure for handling crime that is embraced under our criminal justice system is initiated by way of a complaint with the police.
17. The Interested Parties herein lodged complaints that triggered the proceedings that then form the cause of action subject of the suit.
18. In Civil Appeal No. E064 Of 2022 Esther Wamuyu V Grace Wangari Mwangi (2024) KEHC, the court pronounced itself as such;
“26.The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:
“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
27.It follows that the Respondent herein had the duty to prove her claim against the Appellant.”
19. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
28.It follows that the initial burden of proof was with the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case and the evidence tendered.
20. The Applicant has not proven that the Respondents have maliciously arrived at decision to charge her. There is no proof to demonstrate that the Respondents have done anything illegal or irrational or disproportionate or unfair or procedurally wrong or improper or done anything beyond their powers as to warrant the issuance of the order of certiorari as sought.
21. The argument that no prejudice whatsoever shall be suffered by the Respondents, or the Interested Parties should the orders herein sought be granted as prayed is misplaced. The Interested Parties have a stake in the outcome of the process.
22. Section 193A of the Criminal Procedure Code on this issue provides that;
“notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”
23. The fact that there exists a civil suit is not a bar to any criminal proceedings or investigations.
24. This court is cognizant of the fact that this court is under a duty to promote access to justice which includes the rights of victims as highlighted under the Victim Protection Act. In this case they are the Interested Parties.
25. Section 9(2) (a) of the Victims Protection Act provides that victims assist the courts to obtain a clear picture of what happened (to them) and how they suffered as a result of the offenders conduct or omission.
26. Victim participation should meaningfully contribute to the justice process. Article 50 of the constitution provides for the right to fair hearing. Victims of crime are entitled to the right to fair hearing and they do precipitate in proceedings. This was settled by the Supreme Court in the case of Joseph Lendrix Waswa v Republic [2020] eKLR.
27. I am satisfied that the interested parties as victims have an interest in the outcome of the investigations and ultimately the outcome of this suit. Allowing the Application will deny the complainants their right to fair hearing.
28. The Applicant has also sought an order of prohibition.
29. In the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
"The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It''s an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.
“Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.”
Disposition;
30. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order of prohibition may issue as follows;
“What does an order of prohibition do and when will it issue" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”
31. Having failed to prove that the Respondents acted illegally, then the order of prohibition cannot be issued.
32. The fact of that the Application is unopposed is not a ticket that will allow the automatic grant of the orders sought. The burden of proof remains on the Applicants’ shoulders which they have failed to discharge and I so hold.
33. The Applicant has not made out a case that can inform the grant of the reliefs sought.
Costs;
34. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
35. The Applicants shall bear the cost of the suit.
36. The Application lacks merit.
Order:
The Application is dismissed with costs.
Dated, Signed and Delivered at Nairobi this 23rd day of October, 2025.
'