Introduction
Before the court is an amended petition, instituted together with an application under a Certificate of Urgency, now spent, seeking conservatory orders restraining the respondents from inter alia summoning, arresting or whatsoever intimidating the petitioners on account of facts raised in another ongoing suit being Mombasa ELC Suit. No. E008 of 2024.
The petition seeks declaratory orders against the respondents and damages thereto, for the alleged unlawful arrest and detention of the 1 st petitioner, whose sole involvement was as a consequence of his legal representation of the 2 nd to 5 th petitioners as an advocate of the High Court, in the aforementioned ELC suit.
By consent of the parties the matter was argued by affidavits, for and against it and further canvassed by way of submissions.
The amended petition is supported by an affidavit sworn on 21 st February, 2025 by Oichoe Hans Kevin, the 1st Petitioner herein, and opposed by the 1 st and 2 nd Respondent, vide a Replying Affidavits sworn on 8 th April, 2025 by the Investigating Officer, Charles Odhiambo No. 85552 the 3 rd respondent herein, and on 15 th May, 2025 by Emran Khosla, the 2 nd respondent, respectively.
Petitioner’s case
The Petitioners filed this petition against the Respondents, claiming that by unlawfully arresting and detaining the 1 st petitioner, in his capacity as an advocate of the High Court acting for the 2 nd to 5 th petitioner, breached their fundamental Rights and Freedoms guaranteed by the Constitution. As a result of the alleged violations, the Petitioners sought the following reliefs: A declaration be and is hereby issued that the 1st and 3rd Respondent’s arrest and detention of the 1st Petitioner on 21st February, 2025 was illegal, unlawful and unconstitutional and amounts to wanton abuse of the Respondents’ police power under Articles 243 of the Constitution of Kenya, 2010.
Damages be awarded to the 1st Petitioner for violation of his constitutional rights under Articles 27 and 49 of the Constitution of Kenya, 2010.
An Order of prohibition be and is hereby issued prohibiting the Respondent herein from summoning, arresting, charging in Court or in any manner whatsoever intimidating the Petitioners herein, on account of legal work as an Advocate of the High Court of Kenya (by the 1st Petitioner) and the filing of suits in Court (by the 2nd to 5th Petitioners), respectively.
Costs of this Petition be borne by the Respondent.
It was the petitioners’ case that there is a pending dispute before the Mombasa Environment and Land Court in Mombasa ELC Suit No E008 of 2024, Zahra Salim Darvesh v Nazlin Aminmohamed Nathoo & 2 others where the 1 st Petitioner herein, in his capacity as an Advocate of the High Court of Kenya, represents the Plaintiff in the said suit, herein the 2 nd petitioner.
On 20 th February, 2025 the 1 st Petitioner was summoned via telephone call by the 3 rd Respondent herein, to appear at the Respondent’s Operation Support Unit and record a statement as a witness in an ongoing investigation.
On arrival and upon enquiry of the matter, the 1 st petitioner was informed that an official complaint had been lodged against the Petitioners in respect to the aforementioned matter pending in Court and had commenced a contrived criminal investigation/case against the Petitioners on basis that paragraph 6 of a Replying Affidavit sworn by the 2nd Petitioner in the matter on 30th April, 2024 contained incorrect facts .
That, the 3 rd respondent initially declined to to show the 1 st Petitioner the alleged complaint, but upon his insistence, he was informed that the complaint had been lodged by Emran Khosla, the 2 nd Respondent herein. At which point, the 1 st Petitioner was compelled to record a statement which he limited to stating that he was the Advocate instructed in the matter.
Thereafter, the 1 st petitioner sought to leave and attend to other court matters, particularly in HCCOMM E342 of 2024 Imran Husseinali Sherali ~Vs~ Bank of Africa & 13 others he was scheduled to attend court on the same date, but he was restrained from leaving by the 3 rd Respondent, who then proceeded inform the 1 st Petitioner that he was under Arrest for an offence under section 23 of the Computer Misuses and Cybercrime Act in respect to “publishing a false information”.
It is the petitioners’ case that Respondents’ actions aforesaid are illegal, unconstitutional and amount to intimidation and misuse of the criminal justice system in an effort to bear pressure upon the 1 st Petitioner as a result of him simply undertaking his work as an Advocate of the High Court of Kenya and pressure him to stop representing the 2 nd to 5 th Petitioners in the ELC suit.
Respondents’ case
As I earlier stated, the respondents’ case was made through sworn affidavits by the 2 nd and 3 rd respondents.
The 3 rd respondent argued that he has a mandate granted by law through the office of the 1 st respondent, to investigate crime, thus the petition is aimed at curtailing the legal mandate.
Further, the allegation of Publication of False Information contrary to Sec 23 of the Computer Misuse and Cybercrimes Act were officially reported to the police by the 2 nd respondent vide Capitol Hill Police Station O.B. No. 20/20/02/2025, which allegations were traceable to a Replying Affidavit sworn by the 2 nd Petitioner on 30 th April, 2024 in support of ELC case No. E008/2024, and annexed thereto are fictitious annexures, both filed by the 1 st petitioner’s firm.
Further, the Standard Media published a story in February, 2025 in their online link, against the 2 nd respondent, and by other blogs and social media users, containing distorted facts which have caused the complainant irreparable reputational damage.
As the assigned investigating officer, the 3 rd respondent summoned the 1 st petitioner, and recorded his statement, albeit with resistance. That, thereafter he requested the 1 st petitioner to present the deponent in the material suit, the 2 nd petitioner, but he became hostile and threatened legal action. Therefore, based on his conduct he became a person of interest in the investigations, but was not placed in custody. Instead, he was issued with a notice to compel attendance under section 52 of the Police Act, which he duly signed to report back, only to fail to honour the notice.
It was the 3 rd respondent’s contention that the petition is simply an attempt by the petitioners who are suspects in the ongoing investigations to curtail the process and fail to account for their actions.
The 2 nd respondent confirmed that the root of his complaint which commenced investigations by the Director of Criminal Investigations (DCI), was based on the Petitioners false and misleading allegations made against himself regarding the suit property in their Replying Affidavit filed in Mombasa ELC Case No. E008 of 2024, Zahra Salim Darvesh v Nazlin Aminmohamed Nathoo & 3 Others , in which he is named as the 4th Defendant.
He similarly argued that the Petitioners' actions herein are a calculated attempt to evade accountability and shield themselves from criminal investigation under the guise of enforcing constitutional rights.
Further, that the existence of a civil suit does not bar the Directorate of Criminal Investigations (DCI) from conducting investigations, which under Article 157(4) of the Constitution of Kenya 2010 and the National Police Service Act grant them the independence and discretion to investigate alleged crimes without unwarranted interference.
Written submissions
The petitioners submitted that the 2 nd respondent’s complaint cannot found the basis of a criminal complaint as untrue statements in an Affidavit ought to be tested on cross-examination before the Court in which the Affidavit is filed. Further, a party is at liberty to invite the Court to make a finding of perjury against any deponent of an Affidavit.
It would follow that the Respondents’ actions aforesaid are illegal, unconstitutional and amount to intimidation and misuse of the criminal justice system. They relied on the authorities in Republic v Wellington Kihato Wamburu & 3 others Exparte Kenyatta University & 3 others [2017] eKLR, Andrian Kithinji Mungania v Japhet R Nkonge Auctioneers & another [2013] eKLR.
As to damages for the unlawful arrest and/or detention being the violation of the 1 st petitioner’s constitutional rights, kshs.5,000,000/= should suffice as was awarded in Nelson Andayi Havi v Director of Public Prosecutions & 2 Others [2023] eKLR.
The 2 nd Respondent maintained that the Petitioners made false and misleading allegations material suit herein, thus in response to the allegations the Director of Criminal Investigations commenced lawful investigations and summoned the Petitioners for questioning.
Further, that being summoned by the DCI to assist in investigations does not amount to harassment, intimidation, or violation of Constitutional rights. It is a lawful exercise of investigative powers under Article 245 of the Constitution of Kenya 2010 and the National Police Service Act. They thus relied on the authorities in Shadrack Mwirigi Baariu V Marania Limited [2018] KEELRC 1064 (KLR), Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR), Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR).
Analysis and Determination
First, before I consider the merits, or lack thereof of the petition, I am inclined to address the elephant in the room, whether these proceedings are properly before this court.
From the onset, it is noteworthy that neither of the parties, who actively participated in the matter, I must add, raised the issue. This notwithstanding, this court cannot simply turn a blind eye on the peculiarity on the manner which the matter was instituted. Thus, suo moto it is only befitting that this court addresses itself on the same.
These proceedings were “filed” under a Miscellaneous Application. I quote the word “filed” intentionally, being that upon perusal of the pleadings, they are particularised as a criminal petition, containing a Notice of Motion application preferred under Certificate of Urgency, and a substantive petition thereto.
A face-value glance of the pleadings further unearth that the criminal petition is couched to mimic a constitutional petition seeking declaratory pronouncements against the respondents on purported contravention of constitutional principles, rights and fundamental freedoms under Articles 10, 2, 47, 50 and 243 of the C.O.K, 2010, and damages thereto.
In my view, in as much as the matter was erroneously filed as a miscellaneous application, and further noting that neither warring party was prejudiced by the same, as all fully canvassed their arguments/cases on record, it would only be just that the proceedings can be considered as filed in their rightful manner.
I say so, not on whims, but by guidance under article 22(3)(b) and (d) of the Constitution , whereby the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities.
In my view to dismiss an otherwise merited cause merely because of the procedure adopted would defeat the spirit of article 22(3)(b) under which proceedings may even be commenced by informal documentation, especially over matters purported under violation of constitutional rights and fundamental freedoms.
This court borrows the words of G.V. Odunga J. in Ochillah v Director of Public Prosecutions & another (Miscellaneous Application 90 of 2021) [2022] KEHC 15455 (KLR) where in somewhat similar circumstances he held that;
“…in matters of alleged violation of fundamental freedoms and rights, this court ought not to be too rigid on the manner in which the litigant finds himself in court whether the entry was through the door or the window. Once the litigant has entered the court, he ought not to be treated as a gate crasher.
…
It must similarly be remembered that a High Court is by virtue of the provisions of article 165 of the Constitution a constitutional court and therefore where a constitutional issue arises in any proceedings before the court, it is enjoined to determine the same notwithstanding the procedure by which the proceedings were instituted.
…
…In my view where it is apparent to the court that the bill of rights has been or is threatened with contravention, to avoid to enforce the bill of rights on the ground that the supplicant for the orders has not set out with reasonable degree of precision that of which he complains has been infringed, and the manner in which they are alleged to be infringed where the court can glean from the pleadings the substance of what is complained of would amount to this court shirking its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues.”
This is not to say that the court ought to encourage and condone sloppy and carelessly drafted pleadings. What it means is that:
“the initial approach of the courts must now not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out. But the new approach is not to say that the new thinking totally uproots all well established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice .”
See Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 2 others civil appeal (Application) No 152 of 2009 .
Simply put, here is a conflict between procedural dictates and constitutional principles especially with respect to the provisions relating to the bill of rights it is my view and I so hold that the later ought to prevail over the former.
Needlessly to add, save for the filing mishaps, the way the petitioners have set out their complaints, and the manner in which they are alleged to have been infringed, cannot be gainsaid.
I must however underscore the need for pleadings to be as precise as possible, especially considering that the 1 st petitioner is an Advocate of the High Court, and this requirement applies to all proceedings. The system of pleadings, it is important to note, operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases.
However, where the proceedings can be salvaged by way of further and better particulars or amendment, that option ought to be resorted to first. In this case, none of the respondents purported to have been prejudiced or disabled from adequately answering the allegations made by the petitioners. Accordingly, I am not inclined to disallow the petition on the ground of mischaracterization in filing.
I shall thus proceed to the merits, or lack thereof, of the petition.
First, there is no doubt that the Constitution and the law vests the criminal investigative role and the power to arrest those culpable on the National Police Service of which the 1 st and 3 rd respondents are part of.
Article 243 of the Constitution establishes the National Police Service. Under Article 244 , the Constitution provides the objects and functions of the National Police Service as follows: -
strive for the highest standards of professionalism and discipline among its members;
prevent corruption and promote and practice transparency and accountability;
comply with constitutional standards of human rights and fundamental freedoms;
train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
foster and promote relationships with the broader society.
Sections 35 of the National Police Service Act provide for the functions of the Directorate of Criminal Investigations, which inter alia include collect and provide criminal intelligence, undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others, maintain law and order, detect and prevent crime, and apprehend offenders.
The above is the constitutional and statutory regime within which the National Police Service, and by extension, the 1 st and 3 rd respondents must exercise its various powers. Suffice to say that the way they ought to exercise such powers has been, over time, subject of many court decisions.
The Court of Appeal in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR dealt with the role of the police in undertaking investigations and instances where such investigations could be stopped by the Court. The learned bench held thus;
…Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law.
…It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The Court has inherent power to interfere with such investigation or prosecution process. See Ndarua v R [2002] 1EA 205. See also Kuria & 3 others v Attorney General [2002] 2 KLR 69.
It is therefore imperative to understand the basis of the criminal investigations and its background in entirety. It is conceded by the warring parties that the the basis of the complaint was that paragraph 6 of a Replying Affidavit sworn by the 2 nd Petitioner in a pending suit, namely Mombasa ELC Suit No E008 of 2024 on 30 th April, 2024 contained incorrect facts, allegedly against the 2 nd respondent.
Specifically, the alleged offence as against the 1 st and 2 nd petitioner as particularized by the 3 rd respondent, is of Publication of False Information contrary to Section 23 of the Computer Misuse and Cybercrimes Act.
First, regarding the giving of false testimony touching any matter which is material to any question then pending in judicial proceedings or intended to be raised in those proceedings, the offence is termed as perjury, as defined and provided for under Section 108(1) (a) of the Penal Code Cap 63 Laws of Kenya.
In so far as this court has been appraised, at no point has the trial court in Mombasa ELC Suit No E008 of 2024 pronounced itself as to the veracity or lack thereof of the deposition as recorded in the impugned replying affidavit. In fact, the matter is still pending. This court is thus perplexed as to what was the gold-standard in establishing that the contents of the said affidavit were falsehoods, enough to manifest the offence of Publication of False Information contrary to Section 23 of the Computer Misuse and Cybercrimes Act.
Secondly, as to the offence of Publication of False information, my view is that the same cannot be sustained herein. The conception of Section 23 carries the element of public interest, meant to realize the provisions of Article 24(1) (d) and Article 33(3) of the constitution which provides the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the right and fundamental freedoms of others, and in exercise of the right to freedom of expression every person shall respect the right and reputation of others, respectively. Nothing in the impugned Replying Affidavit meets the above criteria.
What is shocking and baffling is that the 1 st petitioner was summoned to answer to the complaint, as the 2 nd petitioner’s advocate on record, with instructions to draw the impugned affidavit as sworn by the 2 nd petitioner.
Discussing the status of an Advocate as an officer of the Court, the Supreme Court in Petition No 39 of 2018 Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR , stated as follows: -
(7)The status of an Advocate as an Officer of the Court, is expressly provided for in section 55 of the Advocates Act .
…The overriding duty of the Advocate before the Court is to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice.
It goes without saying that an advocate is a vital player in the cause of justice. The 1 st petitioner as an officer of the court was performing his professional duties in drawing the Replying Affidavit as sworn by his client. He could not be prevented from doing so yet the 2 nd petitioner expects him to discharge his professional duties without fear or favour and assist the court render justice in that case. Allowing the respondent’s to probe the 1 st petitioner for performing his professional duties, is to countenance interference with the process of fair trial and independence of the Bar, a direct violation the rule of law. It must be appreciated that the role of an advocate in a trial is both constitutional and statutory.
The National Police Service is expected to demonstrate a high level of competence and integrity in their investigative role. That competence must be demonstrated in their decision-making processes and conduct of investigations.
A competent investigation would first start with understanding the nature of the offence which is being investigated into, as without such an understanding the investigator would be on a wild goose chase, wasting valuable time and scarce public resources going only to result in proceedings as the instant.
In my humble view, it smacks of incompetence on the part of the investigator/3 rd respondent to allege that they are investigating the petitioners based on a replying affidavit used in an ongoing court case without first moving the trial court in conduct of those proceedings to pronounce itself on the contents of the impugned replying affidavit.
Further, nothing precluded the 2 nd respondent, who was ably represented by counsel, from responding to the averments in the impugned replying affidavit through a supplementary affidavit, or at least seek to cross examine the deponent of the said affidavit, in accordance with the provisions of Order 19 of the Civil Procedure Rules and allow the trial court to establish the truthfulness of otherwise of the depositions therein.
My humble view is that the tactics employed by the respondents were in abuse of the criminal process and therefore no good faith can emanate from such an investigation. It is a travesty of justice for the Directorate of Criminal Investigations to ulteriorly be involved in the settlement of the serious dispute between the warring parties herein.
As to the reliefs sought by the petitioners, it is noteworthy that the declaratory orders prayed as against the 1 st and 3 rd respondents are specifically that their “…arrest and detention of the 1 st Petitioner on 21 st February, 2025 was illegal, unlawful and unconstitutional and amounts to wanton abuse of the Respondents’ police power under Articles 243 of the Constitution of Kenya, 2010”.
I have considered the evidence of the 1 st petitioner in his Supporting Affidavit as weighed against the 3 rd respondent’s evidence in his Replying Affidavit. In my view, it is neither clear nor ascertainable that the 1 st petitioner was arrested and/or detained.
First, it is not in doubt that the 1 st petitioner voluntarily presented himself to the 1 st respondent’s Operation Support Unit, in honoring summons communicated to him by the 3 rd respondent to identify the impugned replying affidavit.
However, the allegations of arbitral arrest and detainment of the 1 st petitioner is denied by the 3 rd respondent. This is corroborated by the annexures in his replying affidavit, specifically a Notice to Appear/Attend dated 21 st February, 2025, which its receipt was acknowledged by the 1 st petitioner at 1830hrs, to further present himself before the 1 st respondent.
In as much this court is disheartened by the wording of the said Notice to Appear issued against the 1 st petitioner, whereby his further attendance was particularized to be as a matter of compulsion ‘by reason of being connected with offence or may be having information in assistance of investigations’, it goes without saying that, without further controverting evidence, it is not ascertainable that indeed the 1 st petitioner was arrested or detained against his own will.
The integrity and sanctity of this court is that it can only render itself purposefully based on the evidence before it, through the lenses of the law, and not based on whims, benevolence or sympathy. It would follow that damages for the alleged violation of the 1 st petitioner’s constitutional rights under Article 27 and 49 of the C.O.K cannot ensue.
This notwithstanding, this court having in length consider the root cause and basis of the unjust and misdirected investigations, prohibitory orders are justified and needful to curtail the respondents.
Accordingly, the petition is meritorious to the extent held hereinabove and I hold as follows: An Order of prohibition be and is hereby issued prohibiting the Respondent herein from summoning, arresting, charging in Court or in any manner whatsoever intimidating the Petitioners herein, on account of legal work as an Advocate of the High Court of Kenya (by the 1 st Petitioner) and the filing of suits in Court (by the 2 nd to 5 th Petitioners), respectively in relation to the matter that is still pending in court and in particular Mombasa ELC Suit No E008 of 2024, Zahra Salim Darvesh v Nazlin Aminmohamed Nathoo & 2 others, until the matter is concluded and a finding made as to the contents of the allegations in issue.
For clarity purposes and to avoid any doubt this is not a permanent prohibition from any and/ or all investigations and the parties may be summoned to answer any other issues relating to other matters independent of the matter pending in before the aforementioned ELC Suit and even that matter ,if it is determined , it is concluded, that an offence or offences were committed.
Costs of this Petition be borne by the Respondents.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this……24 th .day of…..JULY………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE PETITIONER(S).
FOR THE RESPONDENT (S)...
COURT ASSISTANT. Bebora
Before the court is an amended petition, instituted together with an application under a Certificate of Urgency, now spent, seeking conservatory orders restraining the respondents from inter alia summoning, arresting or whatsoever intimidating the petitioners on account of facts raised in another ongoing suit being Mombasa ELC Suit. No. E008 of 2024.
The petition seeks declaratory orders against the respondents and damages thereto, for the alleged unlawful arrest and detention of the 1 st petitioner, whose sole involvement was as a consequence of his legal representation of the 2 nd to 5 th petitioners as an advocate of the High Court, in the aforementioned ELC suit.
By consent of the parties the matter was argued by affidavits, for and against it and further canvassed by way of submissions.
The amended petition is supported by an affidavit sworn on 21 st February, 2025 by Oichoe Hans Kevin, the 1st Petitioner herein, and opposed by the 1 st and 2 nd Respondent, vide a Replying Affidavits sworn on 8 th April, 2025 by the Investigating Officer, Charles Odhiambo No. 85552 the 3 rd respondent herein, and on 15 th May, 2025 by Emran Khosla, the 2 nd respondent, respectively.
Petitioner’s case
The Petitioners filed this petition against the Respondents, claiming that by unlawfully arresting and detaining the 1 st petitioner, in his capacity as an advocate of the High Court acting for the 2 nd to 5 th petitioner, breached their fundamental Rights and Freedoms guaranteed by the Constitution. As a result of the alleged violations, the Petitioners sought the following reliefs: A declaration be and is hereby issued that the 1st and 3rd Respondent’s arrest and detention of the 1st Petitioner on 21st February, 2025 was illegal, unlawful and unconstitutional and amounts to wanton abuse of the Respondents’ police power under Articles 243 of the Constitution of Kenya, 2010.
Damages be awarded to the 1st Petitioner for violation of his constitutional rights under Articles 27 and 49 of the Constitution of Kenya, 2010.
An Order of prohibition be and is hereby issued prohibiting the Respondent herein from summoning, arresting, charging in Court or in any manner whatsoever intimidating the Petitioners herein, on account of legal work as an Advocate of the High Court of Kenya (by the 1st Petitioner) and the filing of suits in Court (by the 2nd to 5th Petitioners), respectively.
Costs of this Petition be borne by the Respondent.
It was the petitioners’ case that there is a pending dispute before the Mombasa Environment and Land Court in Mombasa ELC Suit No E008 of 2024, Zahra Salim Darvesh v Nazlin Aminmohamed Nathoo & 2 others where the 1 st Petitioner herein, in his capacity as an Advocate of the High Court of Kenya, represents the Plaintiff in the said suit, herein the 2 nd petitioner.
On 20 th February, 2025 the 1 st Petitioner was summoned via telephone call by the 3 rd Respondent herein, to appear at the Respondent’s Operation Support Unit and record a statement as a witness in an ongoing investigation.
On arrival and upon enquiry of the matter, the 1 st petitioner was informed that an official complaint had been lodged against the Petitioners in respect to the aforementioned matter pending in Court and had commenced a contrived criminal investigation/case against the Petitioners on basis that paragraph 6 of a Replying Affidavit sworn by the 2nd Petitioner in the matter on 30th April, 2024 contained incorrect facts .
That, the 3 rd respondent initially declined to to show the 1 st Petitioner the alleged complaint, but upon his insistence, he was informed that the complaint had been lodged by Emran Khosla, the 2 nd Respondent herein. At which point, the 1 st Petitioner was compelled to record a statement which he limited to stating that he was the Advocate instructed in the matter.
Thereafter, the 1 st petitioner sought to leave and attend to other court matters, particularly in HCCOMM E342 of 2024 Imran Husseinali Sherali ~Vs~ Bank of Africa & 13 others he was scheduled to attend court on the same date, but he was restrained from leaving by the 3 rd Respondent, who then proceeded inform the 1 st Petitioner that he was under Arrest for an offence under section 23 of the Computer Misuses and Cybercrime Act in respect to “publishing a false information”.
It is the petitioners’ case that Respondents’ actions aforesaid are illegal, unconstitutional and amount to intimidation and misuse of the criminal justice system in an effort to bear pressure upon the 1 st Petitioner as a result of him simply undertaking his work as an Advocate of the High Court of Kenya and pressure him to stop representing the 2 nd to 5 th Petitioners in the ELC suit.
Respondents’ case
As I earlier stated, the respondents’ case was made through sworn affidavits by the 2 nd and 3 rd respondents.
The 3 rd respondent argued that he has a mandate granted by law through the office of the 1 st respondent, to investigate crime, thus the petition is aimed at curtailing the legal mandate.
Further, the allegation of Publication of False Information contrary to Sec 23 of the Computer Misuse and Cybercrimes Act were officially reported to the police by the 2 nd respondent vide Capitol Hill Police Station O.B. No. 20/20/02/2025, which allegations were traceable to a Replying Affidavit sworn by the 2 nd Petitioner on 30 th April, 2024 in support of ELC case No. E008/2024, and annexed thereto are fictitious annexures, both filed by the 1 st petitioner’s firm.
Further, the Standard Media published a story in February, 2025 in their online link, against the 2 nd respondent, and by other blogs and social media users, containing distorted facts which have caused the complainant irreparable reputational damage.
As the assigned investigating officer, the 3 rd respondent summoned the 1 st petitioner, and recorded his statement, albeit with resistance. That, thereafter he requested the 1 st petitioner to present the deponent in the material suit, the 2 nd petitioner, but he became hostile and threatened legal action. Therefore, based on his conduct he became a person of interest in the investigations, but was not placed in custody. Instead, he was issued with a notice to compel attendance under section 52 of the Police Act, which he duly signed to report back, only to fail to honour the notice.
It was the 3 rd respondent’s contention that the petition is simply an attempt by the petitioners who are suspects in the ongoing investigations to curtail the process and fail to account for their actions.
The 2 nd respondent confirmed that the root of his complaint which commenced investigations by the Director of Criminal Investigations (DCI), was based on the Petitioners false and misleading allegations made against himself regarding the suit property in their Replying Affidavit filed in Mombasa ELC Case No. E008 of 2024, Zahra Salim Darvesh v Nazlin Aminmohamed Nathoo & 3 Others , in which he is named as the 4th Defendant.
He similarly argued that the Petitioners' actions herein are a calculated attempt to evade accountability and shield themselves from criminal investigation under the guise of enforcing constitutional rights.
Further, that the existence of a civil suit does not bar the Directorate of Criminal Investigations (DCI) from conducting investigations, which under Article 157(4) of the Constitution of Kenya 2010 and the National Police Service Act grant them the independence and discretion to investigate alleged crimes without unwarranted interference.
Written submissions
The petitioners submitted that the 2 nd respondent’s complaint cannot found the basis of a criminal complaint as untrue statements in an Affidavit ought to be tested on cross-examination before the Court in which the Affidavit is filed. Further, a party is at liberty to invite the Court to make a finding of perjury against any deponent of an Affidavit.
It would follow that the Respondents’ actions aforesaid are illegal, unconstitutional and amount to intimidation and misuse of the criminal justice system. They relied on the authorities in Republic v Wellington Kihato Wamburu & 3 others Exparte Kenyatta University & 3 others [2017] eKLR, Andrian Kithinji Mungania v Japhet R Nkonge Auctioneers & another [2013] eKLR.
As to damages for the unlawful arrest and/or detention being the violation of the 1 st petitioner’s constitutional rights, kshs.5,000,000/= should suffice as was awarded in Nelson Andayi Havi v Director of Public Prosecutions & 2 Others [2023] eKLR.
The 2 nd Respondent maintained that the Petitioners made false and misleading allegations material suit herein, thus in response to the allegations the Director of Criminal Investigations commenced lawful investigations and summoned the Petitioners for questioning.
Further, that being summoned by the DCI to assist in investigations does not amount to harassment, intimidation, or violation of Constitutional rights. It is a lawful exercise of investigative powers under Article 245 of the Constitution of Kenya 2010 and the National Police Service Act. They thus relied on the authorities in Shadrack Mwirigi Baariu V Marania Limited [2018] KEELRC 1064 (KLR), Muchanga Investments Ltd V Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR), Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR).
Analysis and Determination
First, before I consider the merits, or lack thereof of the petition, I am inclined to address the elephant in the room, whether these proceedings are properly before this court.
From the onset, it is noteworthy that neither of the parties, who actively participated in the matter, I must add, raised the issue. This notwithstanding, this court cannot simply turn a blind eye on the peculiarity on the manner which the matter was instituted. Thus, suo moto it is only befitting that this court addresses itself on the same.
These proceedings were “filed” under a Miscellaneous Application. I quote the word “filed” intentionally, being that upon perusal of the pleadings, they are particularised as a criminal petition, containing a Notice of Motion application preferred under Certificate of Urgency, and a substantive petition thereto.
A face-value glance of the pleadings further unearth that the criminal petition is couched to mimic a constitutional petition seeking declaratory pronouncements against the respondents on purported contravention of constitutional principles, rights and fundamental freedoms under Articles 10, 2, 47, 50 and 243 of the C.O.K, 2010, and damages thereto.
In my view, in as much as the matter was erroneously filed as a miscellaneous application, and further noting that neither warring party was prejudiced by the same, as all fully canvassed their arguments/cases on record, it would only be just that the proceedings can be considered as filed in their rightful manner.
I say so, not on whims, but by guidance under article 22(3)(b) and (d) of the Constitution , whereby the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities.
In my view to dismiss an otherwise merited cause merely because of the procedure adopted would defeat the spirit of article 22(3)(b) under which proceedings may even be commenced by informal documentation, especially over matters purported under violation of constitutional rights and fundamental freedoms.
This court borrows the words of G.V. Odunga J. in Ochillah v Director of Public Prosecutions & another (Miscellaneous Application 90 of 2021) [2022] KEHC 15455 (KLR) where in somewhat similar circumstances he held that;
“…in matters of alleged violation of fundamental freedoms and rights, this court ought not to be too rigid on the manner in which the litigant finds himself in court whether the entry was through the door or the window. Once the litigant has entered the court, he ought not to be treated as a gate crasher.
…
It must similarly be remembered that a High Court is by virtue of the provisions of article 165 of the Constitution a constitutional court and therefore where a constitutional issue arises in any proceedings before the court, it is enjoined to determine the same notwithstanding the procedure by which the proceedings were instituted.
…
…In my view where it is apparent to the court that the bill of rights has been or is threatened with contravention, to avoid to enforce the bill of rights on the ground that the supplicant for the orders has not set out with reasonable degree of precision that of which he complains has been infringed, and the manner in which they are alleged to be infringed where the court can glean from the pleadings the substance of what is complained of would amount to this court shirking its constitutional duty of granting relief to deserving persons and to sacrifice the constitutional principles and the dictates of the rule of law at the altar of procedural issues.”
This is not to say that the court ought to encourage and condone sloppy and carelessly drafted pleadings. What it means is that:
“the initial approach of the courts must now not be to automatically strike out a pleading but to first examine whether the striking out will be in conformity with the overriding objectives set out in the legislation. If a way or ways alternative to striking out are available, the courts must consider those alternatives and see if they are more consonant with the overriding objective than a striking out. But the new approach is not to say that the new thinking totally uproots all well established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice .”
See Deepak Chamanlal Kamani & another v Kenya Anti-Corruption Commission & 2 others civil appeal (Application) No 152 of 2009 .
Simply put, here is a conflict between procedural dictates and constitutional principles especially with respect to the provisions relating to the bill of rights it is my view and I so hold that the later ought to prevail over the former.
Needlessly to add, save for the filing mishaps, the way the petitioners have set out their complaints, and the manner in which they are alleged to have been infringed, cannot be gainsaid.
I must however underscore the need for pleadings to be as precise as possible, especially considering that the 1 st petitioner is an Advocate of the High Court, and this requirement applies to all proceedings. The system of pleadings, it is important to note, operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases.
However, where the proceedings can be salvaged by way of further and better particulars or amendment, that option ought to be resorted to first. In this case, none of the respondents purported to have been prejudiced or disabled from adequately answering the allegations made by the petitioners. Accordingly, I am not inclined to disallow the petition on the ground of mischaracterization in filing.
I shall thus proceed to the merits, or lack thereof, of the petition.
First, there is no doubt that the Constitution and the law vests the criminal investigative role and the power to arrest those culpable on the National Police Service of which the 1 st and 3 rd respondents are part of.
Article 243 of the Constitution establishes the National Police Service. Under Article 244 , the Constitution provides the objects and functions of the National Police Service as follows: -
strive for the highest standards of professionalism and discipline among its members;
prevent corruption and promote and practice transparency and accountability;
comply with constitutional standards of human rights and fundamental freedoms;
train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and
foster and promote relationships with the broader society.
Sections 35 of the National Police Service Act provide for the functions of the Directorate of Criminal Investigations, which inter alia include collect and provide criminal intelligence, undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others, maintain law and order, detect and prevent crime, and apprehend offenders.
The above is the constitutional and statutory regime within which the National Police Service, and by extension, the 1 st and 3 rd respondents must exercise its various powers. Suffice to say that the way they ought to exercise such powers has been, over time, subject of many court decisions.
The Court of Appeal in Commissioner of Police & The Director of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] eKLR dealt with the role of the police in undertaking investigations and instances where such investigations could be stopped by the Court. The learned bench held thus;
…Whereas there can be no doubt that the field of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law.
…It has further been held that an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime (or prosecute in the case of the DPP) must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The Court has inherent power to interfere with such investigation or prosecution process. See Ndarua v R [2002] 1EA 205. See also Kuria & 3 others v Attorney General [2002] 2 KLR 69.
It is therefore imperative to understand the basis of the criminal investigations and its background in entirety. It is conceded by the warring parties that the the basis of the complaint was that paragraph 6 of a Replying Affidavit sworn by the 2 nd Petitioner in a pending suit, namely Mombasa ELC Suit No E008 of 2024 on 30 th April, 2024 contained incorrect facts, allegedly against the 2 nd respondent.
Specifically, the alleged offence as against the 1 st and 2 nd petitioner as particularized by the 3 rd respondent, is of Publication of False Information contrary to Section 23 of the Computer Misuse and Cybercrimes Act.
First, regarding the giving of false testimony touching any matter which is material to any question then pending in judicial proceedings or intended to be raised in those proceedings, the offence is termed as perjury, as defined and provided for under Section 108(1) (a) of the Penal Code Cap 63 Laws of Kenya.
In so far as this court has been appraised, at no point has the trial court in Mombasa ELC Suit No E008 of 2024 pronounced itself as to the veracity or lack thereof of the deposition as recorded in the impugned replying affidavit. In fact, the matter is still pending. This court is thus perplexed as to what was the gold-standard in establishing that the contents of the said affidavit were falsehoods, enough to manifest the offence of Publication of False Information contrary to Section 23 of the Computer Misuse and Cybercrimes Act.
Secondly, as to the offence of Publication of False information, my view is that the same cannot be sustained herein. The conception of Section 23 carries the element of public interest, meant to realize the provisions of Article 24(1) (d) and Article 33(3) of the constitution which provides the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the right and fundamental freedoms of others, and in exercise of the right to freedom of expression every person shall respect the right and reputation of others, respectively. Nothing in the impugned Replying Affidavit meets the above criteria.
What is shocking and baffling is that the 1 st petitioner was summoned to answer to the complaint, as the 2 nd petitioner’s advocate on record, with instructions to draw the impugned affidavit as sworn by the 2 nd petitioner.
Discussing the status of an Advocate as an officer of the Court, the Supreme Court in Petition No 39 of 2018 Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR , stated as follows: -
(7)The status of an Advocate as an Officer of the Court, is expressly provided for in section 55 of the Advocates Act .
…The overriding duty of the Advocate before the Court is to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice.
It goes without saying that an advocate is a vital player in the cause of justice. The 1 st petitioner as an officer of the court was performing his professional duties in drawing the Replying Affidavit as sworn by his client. He could not be prevented from doing so yet the 2 nd petitioner expects him to discharge his professional duties without fear or favour and assist the court render justice in that case. Allowing the respondent’s to probe the 1 st petitioner for performing his professional duties, is to countenance interference with the process of fair trial and independence of the Bar, a direct violation the rule of law. It must be appreciated that the role of an advocate in a trial is both constitutional and statutory.
The National Police Service is expected to demonstrate a high level of competence and integrity in their investigative role. That competence must be demonstrated in their decision-making processes and conduct of investigations.
A competent investigation would first start with understanding the nature of the offence which is being investigated into, as without such an understanding the investigator would be on a wild goose chase, wasting valuable time and scarce public resources going only to result in proceedings as the instant.
In my humble view, it smacks of incompetence on the part of the investigator/3 rd respondent to allege that they are investigating the petitioners based on a replying affidavit used in an ongoing court case without first moving the trial court in conduct of those proceedings to pronounce itself on the contents of the impugned replying affidavit.
Further, nothing precluded the 2 nd respondent, who was ably represented by counsel, from responding to the averments in the impugned replying affidavit through a supplementary affidavit, or at least seek to cross examine the deponent of the said affidavit, in accordance with the provisions of Order 19 of the Civil Procedure Rules and allow the trial court to establish the truthfulness of otherwise of the depositions therein.
My humble view is that the tactics employed by the respondents were in abuse of the criminal process and therefore no good faith can emanate from such an investigation. It is a travesty of justice for the Directorate of Criminal Investigations to ulteriorly be involved in the settlement of the serious dispute between the warring parties herein.
As to the reliefs sought by the petitioners, it is noteworthy that the declaratory orders prayed as against the 1 st and 3 rd respondents are specifically that their “…arrest and detention of the 1 st Petitioner on 21 st February, 2025 was illegal, unlawful and unconstitutional and amounts to wanton abuse of the Respondents’ police power under Articles 243 of the Constitution of Kenya, 2010”.
I have considered the evidence of the 1 st petitioner in his Supporting Affidavit as weighed against the 3 rd respondent’s evidence in his Replying Affidavit. In my view, it is neither clear nor ascertainable that the 1 st petitioner was arrested and/or detained.
First, it is not in doubt that the 1 st petitioner voluntarily presented himself to the 1 st respondent’s Operation Support Unit, in honoring summons communicated to him by the 3 rd respondent to identify the impugned replying affidavit.
However, the allegations of arbitral arrest and detainment of the 1 st petitioner is denied by the 3 rd respondent. This is corroborated by the annexures in his replying affidavit, specifically a Notice to Appear/Attend dated 21 st February, 2025, which its receipt was acknowledged by the 1 st petitioner at 1830hrs, to further present himself before the 1 st respondent.
In as much this court is disheartened by the wording of the said Notice to Appear issued against the 1 st petitioner, whereby his further attendance was particularized to be as a matter of compulsion ‘by reason of being connected with offence or may be having information in assistance of investigations’, it goes without saying that, without further controverting evidence, it is not ascertainable that indeed the 1 st petitioner was arrested or detained against his own will.
The integrity and sanctity of this court is that it can only render itself purposefully based on the evidence before it, through the lenses of the law, and not based on whims, benevolence or sympathy. It would follow that damages for the alleged violation of the 1 st petitioner’s constitutional rights under Article 27 and 49 of the C.O.K cannot ensue.
This notwithstanding, this court having in length consider the root cause and basis of the unjust and misdirected investigations, prohibitory orders are justified and needful to curtail the respondents.
Accordingly, the petition is meritorious to the extent held hereinabove and I hold as follows: An Order of prohibition be and is hereby issued prohibiting the Respondent herein from summoning, arresting, charging in Court or in any manner whatsoever intimidating the Petitioners herein, on account of legal work as an Advocate of the High Court of Kenya (by the 1 st Petitioner) and the filing of suits in Court (by the 2 nd to 5 th Petitioners), respectively in relation to the matter that is still pending in court and in particular Mombasa ELC Suit No E008 of 2024, Zahra Salim Darvesh v Nazlin Aminmohamed Nathoo & 2 others, until the matter is concluded and a finding made as to the contents of the allegations in issue.
For clarity purposes and to avoid any doubt this is not a permanent prohibition from any and/ or all investigations and the parties may be summoned to answer any other issues relating to other matters independent of the matter pending in before the aforementioned ELC Suit and even that matter ,if it is determined , it is concluded, that an offence or offences were committed.
Costs of this Petition be borne by the Respondents.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this……24 th .day of…..JULY………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE PETITIONER(S).
FOR THE RESPONDENT (S)...
COURT ASSISTANT. Bebora