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JudgmentMUTHEE AND PARTNERS LLP ADVOCATES VS The Republic5 min read

MUTHEE AND PARTNERS LLP ADVOCATES VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


  1. The Applicant filed a Notice of Motion alongside a Certificate of Urgency on the 25th of November 2024 seeking inter alia, orders to be granted in the interim restraining the Respondents by way of injunction, and all officers subordinate to them from arbitrarily summoning, arresting, incarcerating and/or charging the applicants pending determination of a civil suit namely, ELC NO. E003 of 2023.
  2. The Applicant further sought orders to be granted anticipatory bail pending contemplated arrests or charges and/or any action by the Respondents and/or their agents and/or any other person who may be instructed by the Respondents to undertake any such arrest and/or adverse action.
  3. The Application is further supported by the Affidavit sworn by the  applicant on the grounds that determination of the matters revolving around the transactions to do with the parcel of land for which she is being investigated for, ought to be by way of civil proceedings.
  4. The Applicant is further apprehensive in her belief that the Respondents’ actions are malicious and intend to coerce her to surrender the Title Deed in her possession. She further anticipates that her Constitutional rights are going to be infringed upon based on the denial of a cash bail in a previous instance and the recent arrest where she was granted bail of Kshs. 5,000,000 past 2pm on a Friday afternoon; that did not take into account the procedural intricacies required in the approval of bail.re
  5. The 1st  Respondent filed grounds of opposition stating that the applicant had not demonstrated sufficient grounds to warrant issuance of the orders sought.

ISSUE(S) FOR DETERMINATION:

  1. Whether the Applicant has demonstrated sufficient grounds to warrant issuance of the Orders sought.

THE LAW:

  1. Section 193A of the Criminal Procedure Code states:-

“ 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.”

  1. The construction of the above provision as to concurrent proceedings was provided in the case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR that stated that:-

“While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that that power must be exercised responsibly, in accordance with the laws of the land and in good faith.”

  1. The powers granted to the Office of the Director of Public Prosecutions are delineated in Article 157(6) of the Constitution of Kenya as follows:-

“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may--

  1. 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;”
  2. The above powers are further buttressed by guiding principles as set out in Section 4 of the ODPP Act that provides as follows: -

“In fulfilling its mandate, the Office shall be guided by the Constitution and the

following fundamental principles—

(a) the diversity of the people of Kenya;

(b) impartiality and gender equity;

(c) the rules of natural justice;

(d) promotion of public confidence in the integrity of the Office;

(e) the need to discharge the functions of the Office on behalf of the

people of Kenya;

(f) the need to serve the cause of justice, prevent abuse of the legal

process and public interest;

(g) protection of the sovereignty of the people;

(h) secure the observance of democratic values and principles; and

(i) promotion of constitutionalism.”

  1. The guidelines that aid the ODPP in making the decision to charge are set out in the Guidelines on the Decision to Charge (2019) that sets out the following:-

“3.2 The Two-Stage Test The Two Stage Test, comprising an ‘evidential test’ followed by a ‘public interest test’ should be applied: when all outstanding reasonable lines of enquiry have been pursued or; prior to an investigation being completed, where the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Two Stage Test whether in favour or against a prosecution.”

APPLYING THE TEST:

  1. I have considered the grounds established in the Notice of Motion filed by the Applicant and the 1st Respondent’s Written Submissions as well as the Grounds for Opposition.
  2. The Notice of Motion, concisely put, discloses that the Applicant sought the orders aforementioned based on the belief that the Respondents should be restrained in carrying out investigations regarding the subject matter in dispute in a civil proceeding, as they were bound to utilise their prosecutorial powers to dispossess her of the Title Deed in an unlawful and malicious manner.
  3. The 1st Respondent’s Written Submissions and Grounds for Opposition aver, that the investigations carried out were strictly guided by the law, particularly Article 157(11) that requires that the powers conferred to the Office of the Director of Public Prosecutions be exercised with regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
  4. The 1st Respondent further states that the investigation was initiated by numerous complaints filed at the DCI Land Fraud Office in Mombasa with regards to the applicant’s apprehension to do with title No. CR 11673 subdivision 1270/I/MN that prompted investigations by the 2nd Respondent who diligently carried out investigations before submitting the file to the 1st Respondent for a decision to charge. It is their submission that the investigation and decision to charge were carried out independently and lawfully.

14.Having considered both the Applicant’s and the Respondents submissions I find that the Application has merit and it is allowed in the following terms.

  1. The Applicant is hereby admitted to anticipatory bail/bond.
  2. The terms are abond terms shall be similar of Kshs. 500, 00 with 1 surety sworn and a contact person and a cash bail of Kshs.200,000 with 2 contact persons. 
  3. The Applicant to deposit her passport in court and she may not leave the jurisdiction without the knowledge and permission of the court.
  4.   The same security or cash and passport be deposited with the Deputy Registrar within 21 days  from today.
  5. The Applicant to continue availing herself in interrogation by the Officers of the Respondents and to co-operate with the investigators. 
  6. If and when the said investigations are complete and if a decision is made to charge the Applicant, then the police may issue a bond to attend court or obtain and serve summons and the Applicant should obey and attend court. 
  7. The bond bail and cash bail will be processed in the High Court since there are no charges as yet.

15.It is so ordered.

Dated, signed and delivered in Open Court/online through MS TEAMS, this 14th day of April 2025

HON. LADY JUSTICE W. K. MICHENI

In the presence of:-

MR GACHIE FOR THE APPLICANT

MR NGIRI FOR THE RESPONDENT

BEBORA COURT ASSISTANT

    MUTHEE AND PARTNERS LLP ADVOCATES VS The Republic MUTHEE AND PARTNERS LLP ADVOCATES VS The Republic