REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E051 OF 2025
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 24, 25 AND 258(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED VIOLATION OF RIGHTS AND FREEDOMS UNDER ARTICLES 25, 28, 29, 39, 40, 47 and 57 OF THE CONSTITUTION OF KENYA, 2010
ONESMUS GACHUHI GITHINJI .......................................... PETITIONER
-VERSUS-
INSPECTOR GENERAL OF POLICE ...........................1 ST RESPONDENT
OFFICE OF THE DIRECTOR OF
PUBLIC PROSECUTIONS ..............................................2 ND RESPONDENT
ATTORNEY GENERAL .................................................. 3 RD RESPONDENT
AND
NAOMI WANGUI KURIA .................................. 1 ST INTERESTED PARTY
GITHUNGURI CONSTITUENCY
RANCHING CO. LTD …………………………..2 ND INTERESTED PARTY
ANGELICA WANGUI KURIA ...........................3 RD INTERESTED PARTY
JUDGMENT
Introduction
1. The Petition dated 5 th February 2025 and amended on 23 rd April 2025 stems from a dispute over ownership of land parcel known as Ruiru East Block 1/ Githunguri 1350, valued at approximately Kshs. 1,000,000,000/=.
2. The Petitioner, Onesmus Gachuhi Githinji, an Advocate of the High Court of Kenya with over 40 years of legal practice, asserts that he legally purchased the land in 2010 from Harrison Karanja Njihia . He details a history of unsuccessful legal challenges to his ownership, beginning with a 2011 lawsuit filed by the 1 st Interested Party, Naomi Wangui Kuria, which suit was allegedly, ultimately dismissed for want of prosecution in March 2021. That a subsequent suit filed by the same Naomi Wangui Kuria in December 2021 was struck out in March 2023 for being res judicata , statute-barred and an abuse of court process, which decision was appealed against and is pending determination by the Court of Appeal.
3. The petitioner claims that throughout these proceedings, government land registrars through the Office of Attorney General repeatedly confirmed that the transfer of the suit land to the Petitioner was lawful and unmarred by fraud.
The Petition and reliefs sought
4. The Petition as amended on 23rd April 2025 therefore seeks the following reliefs:
(1 A declaration that the summons by DCI Ruiru is arbitrary and unlawful and a breach of all constitutional provisions forming the subject of this Petition.
(2 An order prohibiting the Inspector General of Police and all his subordinates from summoning and investigating the Petitioner over the LR No. Ruiru East Block 1/ Githunguri 1350.
(3 An order prohibiting the Director of Public Prosecutions from preferring any charges against the Petitioner over the LR No. Ruiru East Block 1/ Githunguri 1350.
(4 General damages for the violation of the Petitioner's fundamental human rights.
(5 Costs of this Petition.
(6 Any other order(s) that this Honourable Court may deem fit.
5. Concurrent with the Petition, the Petitioner filed a Notice of Motion Application seeking conservatory orders staying the summons issued by the 3 rd Respondent against the Petitioner on 4 th February 2025 pending hearing and determination of the Application and the Petition.
6. The Petition is based on the facts as pleaded and further supported by the affidavit sworn by the Petitioner on 17 th June 2025. In the supporting affidavit, the Petitioner deposes that a land search conducted on 14 th February 2020, revealed that while ELC Case No. 341 of 2013 was still pending at Milimani Law Courts, the Land Registrar, Ruiru, opened a Green Card registering the disputed property under Githunguri Constituency Ranching Company Ltd before transferring it to Naomi Wangui Kuria .
7. THE Petitioner highlights what he considers to be a contradiction in this action, noting that the Land Registrar, who was the 5 th Defendant in that ELC suit, had filed a statement of defence through the Attorney General confirming that the Petitioner’s title was acquired lawfully and with the company's consent, without disclosing the ongoing transfer to Naomi Wangui Kuria.
8. Further, that when a status quo order was issued against the Petitioner in a subsequent suit ( ELC No. E145 of 2021) at Thika Law Courts, it was curiously registered against Naomi Wangui Kuria’s title instead.
9. The Petitioner further states that he has received information that Naomi Wangui Kuria and her only child are deceased. He asserts that the Land Registrar and the Chairman of Githunguri Constituency Ranching Company Limited have been fraudulently using the deceased woman’s name to attempt to dispossess him of his land. He alleges that these parties have enlisted the police to harass, intimidate and unlawfully evict him from the suit land.
10. The Petitioner asserts that given the land’s escalated valuation of one billion Kenya shillings, the ongoing police summons despite existing court decisions and the death of the purported claimant, the -Petitioner fears for his life and seeks urgent judicial intervention to prevent severe harm or mistreatment.
11. He explains that on 4 th February 2025, the DCI served him with summons demanding his appearance on 6 th February 2025 to answer to a new complaint lodged by an unknown individual, the 3 rd Interested Party herein, alleging the offence of obtaining land registration by false pretences under Section 320 of the Penal Code.
12. The Petitioner avers that the summons and the demand to produce his original title deed represent an arbitrary abuse of power, weaponization of the criminal justice process and is an illegal attempt to re-litigate a settled land dispute. He further cites intimidation, including being trailed by unknown vehicles, as threats to his personal safety and fundamental freedoms.
13. The Petitioner asserts that the acts of the Inspector General of Police and subordinate officers violate his constitutional rights, including protection from cruel, inhuman, or degrading treatment under Articles 28 and 57, freedom of movement under Article 39, freedom and security of the person under Article 29, right to property under Article 40 and fair administrative action under Article 47.
14. He states that the police are encroaching upon judicial independence by attempting to act as a Court of Appeal over High Court decisions. Consequently, he seeks constitutional remedies to restrain the police and the Director of Public Prosecutions from investigating or prosecuting him over the property.
Responses to the Petition
15. Opposing the Petition, the Respondents filed several responses. The 1 st Respondent, the Inspector General of Police and the 3 rd Respondent, the Attorney General filed their Grounds of Opposition dated 24 th February 2025. They assert that the Petitioner has failed to demonstrate how his constitutional rights were violated or threatened. Relying on the case of Anarita Karimi Njeru v. Republic , the 1 st and 3 rd Respondent contend that a party alleging constitutional violations must state the specific rights infringed and precise manner of infringement, which the Petitioner has not done.
16. The 1 st and 3 rd respondents state that the police acted strictly within their constitutional and statutory mandate under the National Police Service Act, which mandate includes investigating crime and maintaining law and order by summoning the Petitioner after receiving a formal complaint from the 3 rd Interested Party. They plead that failing to investigate such a complaint would amount to a breach of their public duty.
17. The 1 st and 3 rd Respondents further contend that the Petition is speculative, premature and an abuse of court process because it arises from mere apprehension that the ongoing investigations might be predetermined. They assert the matter involves disputed facts properly within the purview of the investigating authority and that judicial intervention before investigations are concluded is unwarranted unless an act is manifestly unlawful or improper.
18. Additionally, they highlight that the constitutional power to decide whether to prosecute rests independently with the Director of Public Prosecutions under Article 157 . Finally, they urge that the Petitioner failed to adduce evidence under the Evidence Act regarding alleged surveillance by unknown cars or strangers, rendering the petition frivolous, incompetent and fit for dismissal with costs.
19. The 2 nd Respondent the Director of Public Prosecutions(DPP) filed Grounds of Opposition dated 20 th February 2025 opposing the Application and Petition on the grounds that no evidence has been availed to show any intention to institute criminal charges against the Petitioner. The DPP contends that the claim violates the doctrine of ripeness, as it rests entirely upon contingent future events, making the Application premature and unfit for judicial adjudication at this stage.
20. Further, that the DPP has neither directed an investigation against the Petitioner under Article 157(4) nor instituted criminal proceedings under Article 157(6) of the Constitution and that a mere police summons to record a statement does not constitute a threat to fundamental rights, rendering the Petitioner’s fears speculative and unsupported by fact.
21. The DPP also states that the Petitioner failed to exhaust administrative remedies of writing a formal complaint letter to the DPP before filing the matter in court. Consequently, the 2 nd Respondent states that the petition lacks merit and should be dismissed with costs.
22. The 2 nd Interested Party Githunguri Constituency Ranching Co. Ltd filed a Replying Affidavit sworn on 1 st October 2025 by John Maina Mburu, the Chairman and Director of the 2 nd Interested Party refuting the Petitioner’s allegations and defending the company’s position regarding the suit property, Ruiru East Block 1/ Githunguri 1350.
23. The deponent denies any personal vendetta, malice, or involvement in police harassment, taking issue with the Petitioner’s derogatory language including calling him "Mganga" which he describes as unfounded and beneath the dignity of a former judge and senior advocate. He asserts that neither he nor the company initiated criminal complaints, issued police summons, or influenced the Directorate of Criminal Investigations, arguing that the company was improperly joined to the constitutional petition.
24. Regarding the merits of the land ownership, Mr. Mburu deposes that internal company records confirm Naomi Wangui Kuria the 1 st Interested Party as the bona fide allocated owner of the parcel. He explains that she followed all proper corporate procedures by purchasing shares, receiving official receipts, obtaining a share certificate and participating in the balloting process, where she drew ballot number 731 corresponding to parcel 1350.
25. While acknowledging that her previous civil suits were dismissed for want of prosecution or struck out on account of alleged indolence, the deponent maintains that the 1 st Interested Party’s procedural failures do not negate her legitimate allocation.
26. Consequently, he deposes that the seller who transferred the land to the Petitioner, Harrison Karanja Njihia, was never originally allocated the parcel of the Land by the company, evidencing that the initial acquisition by Mr. Njihia was fraudulent. The deponent concludes by urging the Court to dismiss the Petitioner’s application with costs.
27. The Petition was canvassed by way of written submissions.
Submissions
28. The Petitioner’s submissions are dated 8 th October 2025 . The Petitioner, submits that he is the legal owner of Ruiru East Block 1/ Githunguri 1350, having purchased the property in 2010 from Harrison Karanja Njihia, with the land and its developments currently valued at approximately KES 1,000,000,000. He details a history of litigated ownership claims by the 1 st Interested Party Naomi Wangui Kuria , beginning with Land Case No. 24 of 2012 transferred to Milimani as ELC Case No. 341 of 2013), where the Land Registrar through the Attorney General is said to have confirmed that the transfer to the Petitioner was lawful, unmarred by fraud and sanctioned by Githunguri Constituency Ranching Company Limited.
29. He avers that Lady Justice Komingoi dismissed this initial suit for want of prosecution on 10 th March 2021 and rejected a reinstatement application on 21 st October 2021. That despite this, the 1 st Interested Party filed a fresh suit in ELC No. 145 of 2021 at Thika, which Justice B.M. Eboso struck out on 20 th March 2023, for being res judicata , statute-barred and an abuse of court process, a decision currently under Civil Appeal No. E338 of 2023.
30. The Petitioner submits that following these civil court defeats, a racketeering enterprise colluded with DCI Ruiru to instigate criminal proceedings against him. That on 4 th February 2025, DCI Ruiru served him with summons based on a complaint lodged by the 3 rd Interested Party Angelica Wangui Kuria, holding herself out as the daughter-in-law to the now-deceased 1 st Interested Party, alleging the offence of obtaining land registration by false pretences under Section 320 of the Penal Code.
31. The Petitioner characterizes these summonses and demands for the original title deed of the suit parcel of land as an arbitrary abuse of police power and weaponization of the criminal justice system. He reiterates that third-party registry searches revealed that the Land Registrar opened a green card in 2020 under the names of the 1 st and 2 nd Interested Parties without disclosing it during the 2021 Thika litigation and points to the previous prosecution of initial owner Ernest Maina Mburu in Criminal Case No. 5413 of 2017 as further evidence of calculated harassment.
32. The Petitioner argues that these actions violate his fundamental rights under Articles 28 on dignity and protection from degrading treatment, 29 on freedom and security of person, 39 on freedom of movement, 40 on protection of property rights, 47 on fair administrative action and 57 on protection of older members of society.
33. He submits that the police and Land Registrar are attempting to usurp judicial authority by acting as an appellate Court over High Court decisions, directly violating judicial independence under Article 160(1) of the Constitution as guaranteed.
34. On the fear for his safety due to alleged unknown vehicles trailing him and strangers visiting his land, the Petitioner submits that the ongoing summons and threatened prosecution inflict severe mental anguish and arbitrary restraint, warranting urgent constitutional intervention and the grant of the prayed prohibition orders and damages.
35. The 1 st and 3 rd Respondents, in their submissions dated 28 th October 2025 isolate the following issues for determination:
whether the 1 st and 3 rd Respondents’ conduct constitutes a violation and contravention of the Constitution of Kenya 2010;
Whether the petitioner has proved his case to the required standard and therefore the Honourable Court should issue the orders sought in the petition and
Whether the petitioner is entitled to the orders sought in the petition.
36. Counsel submits that the Petitioner’s Application and Petition lack merit and should be dismissed with costs. They argue that the Petitioner has failed to satisfy the pleading standard established in Anarita Karimi Njeru v. Republic (1979) and Mumo Matemu v. Trusted Society of Human Rights Alliance (2013) eKLR, which require constitutional violations to be set out with sufficient particularity and clear factual detail rather than mere listings of constitutional provisions.
37. The 1 st and 3 rd Respondents argue that the police acted strictly within their statutory mandate under the National Police Service Act to investigate crime, detect offences and enforce laws after receiving a formal complaint from the 3 rd Interested Party regarding alleged land fraud under Section 320 of the Penal Code . They cite Republic v. Commissioner of Police & Another ex parte Michael Monari & Another (2012) eKLR and Rose Esther Muthoni Wamuiya v. Governor, County Government of Nyandarua & Others (2020) eKLR , maintaining that police have an inescapable duty to investigate complaints upon reasonable suspicion and that courts must remain reluctant to interfere with ongoing investigations.
38. The 1 st and 3 rd Respondents submit that the petition is premature and speculative, as it invites the court to intervene in disputed factual matters before investigative authorities have completed their work or forwarded the file to the Director of Public Prosecutions (DPP). Relying on Paul Ng'ang'a Nyaga v. Attorney General & Others (2013) eKLR and Hon. James Ondicho Gesami v. Attorney General & Others , they argue that the High Court can only interfere with constitutional bodies like the DPP or the Police where there is clear evidence of unconstitutional action, noting that subjecting an individual to standard criminal process with built-in constitutional safeguards does not violate human dignity.
39. On the burden of proof, the 1 st and 3 rd Respondent cite Sections 107 and 109 of the Evidence Act alongside Lt. Col. Peter Ngari Kagume & Others v. Attorney General (2006) eKLR , emphasizing that he who alleges must prove. They point out that the Petitioner adduced no tangible evidence such as witness testimony or police records to substantiate claims of false complaints, nor to link the 1st and 3rd Respondents to allegations of unknown vehicles trailing him.
40. The 1 st and 3 rd Respondents maintain that granting the requested prohibition orders would improperly curtail the DPP’s prosecutorial discretion under Article 157 and usurp the trial court's role. Citing Mureithi & Another v. Divisional Criminal Investigation Officer Kajiado & Others (2023) eKLR, Erick Kibiwott Tarus & Others v. Director of Public Prosecutions & Others (2014) eKLR, and Kenya Human Rights Commission & Another v. Attorney General & Others (2019) eKLR, they argue that trial courts are best equipped to evaluate evidence, determine innocence, or grant acquittals, while appellate mechanisms and civil claims for malicious prosecution exist to cure any procedural errors.
41. They emphasize that the mere likelihood of a prosecution failing does not justify judicial interference with a decision-making process, concluding that the petition should be dismissed to protect the institutional independence of law enforcement and prosecutorial bodies.
42. The 2 nd Respondent’s submissions are dated 6 th May 2026 . Counsel submits that the petition is premature, anticipatory and without merit, as no decision to charge the Petitioner under Article 157(6) of the Constitution has been made. Relying on Environment Land Petition 4 of 2023 , the DPP contends that judicial intervention is uncalled for where no adverse action has been taken against a petitioner. Citing Section 24 of the National Police Service Act and Rhodah Mutete Mutuku v. Inspector General, National Police Service & 2 Others [2019] eKLR, the 2 nd Respondent emphasizes that police investigations are a mandatory pre-trial mechanism designed to establish facts and to determine whether to exonerate or incriminate a suspect, and summoning the Petitioner to record a statement accords with the rules of natural justice without infringing any constitutional rights, especially given that the DPP has not issued any investigation directives under Article 157(4) of the Constitution.
43. The 2 nd Respondent further argues that the petition directly violates the doctrine of ripeness as it asks this Court to adjudicate a hypothetical dispute based on mere apprehension of arrest and prosecution. Citing Black's Law Dictionary, Kiriro wa Ngugi & 19 Others v. Attorney General & 2 Others [2020] eKLR, and National Assembly of Kenya & Another v. The Institute for Social Accountability & 6 Others, the DPP submits that courts must decline to entertain academic or premature questions that have not matured into live, justiciable controversies grounded in actual facts.
44. Additionally, the DPP submits that the Petitioner breached the doctrine of exhaustion by rushing to court without first seeking administrative resolution or formally raising his grievances with the DPP, ignoring the principle affirmed in Geoffrey Muthiga Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others [2015] eKLR that courts must serve as a forum of last resort rather than the first port of call.
45. The 2 nd Respondent stresses that judicial discretion to interfere with prosecutorial independence must be exercised sparingly and only in the clearest of cases. Referencing Muema Mativo v. Director of Criminal Investigations & 2 Others eKLR, the DPP cautions that constitutional court jurisdiction must not be trivialized or invoked on mere unsubstantiated fears of potential rights violations. Because the DPP has not evaluated the completed police file or elected to prefer charges, any judicial intervention at this stage would improperly pre-empt prosecutorial mandate and the assessment of the trial court, making it necessary for the Court to dismiss the petition with costs.
46. The 2 nd Interested Party, Githunguri Constituency Ranching Co. Ltd, submits that it has been improperly joined to the constitutional petition and prays for the petition against it to be dismissed with costs. The company outlines its historical allocation procedures as a public land-buying company established in 1968, explaining that shareholders purchased shares, received official receipts, obtained share certificates, and participated in balloting to select specific land parcels. That internal records confirm that Naomi Wangui Kuria the 1 st Interested Party fully complied with all corporate procedures, drew ballot number 731, and was formally allocated Ruiru East Block 1 (Githunguri) 1350.
47. The company notes that due to the prevalence of elderly or illiterate shareholders who delay formal titling, corrupt land officials and fraudsters have frequently exploited these gaps to process illegal titles.
48. Regarding the root of the dispute, the 2 nd Interested Party contends that the Petitioner purchased the property from a person who was never allocated the land by the company and who had illegally processed a title before selling to the Petitioner. The company points out that the person who sold the land to the Petitioner, a Mr. Mburu was previously charged with the offence of land fraud in Thika Chief Magistrate's Court Case No. 5413 of 2017, but that the charges were withdrawn following his death.
49. The 2 nd interested party company acknowledges that while previous civil suits filed by the 1 st Interested Party including High Court ELC No. 341 of 2013 and Thika ELC No. 145 of 2021 were dismissed or struck out, those determinations were based on legal technicalities such as want of prosecution and statutory limitation of time, rather than a substantive judicial evaluation underlying land ownership.
50. Finally, the 2 nd Interested Party submits that it plays no role in police investigations other than providing factual company records when requested by law enforcement. It maintains that the 1 st and 3 rd Interested Parties exercised a constitutional right in reporting the matter to the police and that the company cannot close its doors to police investigations into widespread local land fraud.
51. Finally, the 2 nd Interested party company submits that the Petitioner’s personal attacks and defamatory allegations, including calling its Chairman a "Mganga" are unjustified, and reiterates that it should be excused from the proceedings with costs.
Analysis and Determination
52. Having considered the pleadings, affidavits and written submissions filed by the participating parties, the following key issues emerge for determination:
(i) Whether the 2 nd Interested Party was properly joined to these proceedings.
(ii) Whether the 1 st Respondent, and the 2 nd Respondents violated or threatened to violate the Petitioner’s fundamental rights under Articles 28, 29, 39, 40, 47, 57, and 160(1) of the Constitution and whether, in the circumstances, the Court should exercise its jurisdiction to issue prohibition orders restraining police investigations and potential criminal prosecution.
(iii) Whether the Petition is premature, anticipatory, and offends the doctrines of ripeness.
(iv) What orders should the court make?
i. Whether the 2 nd Interested Party was properly joined to these proceedings.
53. The issue of joinder and misjoinder in constitutional petitions is governed by Rule 5 of the Constitution of Kenya, (Protection of Rights and Fundamental Rights) Practice and Procedure Rules, 2013 as follows: -
Rule 5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
(c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.
(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and(
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
54. The 2 nd Interested Party, Githunguri Constituency Ranching Co. Ltd, contends that it was mis joined to this petition. It asserts that they neither filed a police complaint nor issued police summons against the Petitioner and that their involvement in the matter was limited to supplying historical company allocation records to the investigating officers upon request.
55. A party should only be joined to a constitutional petition if specific allegations of rights violations are made against it or if its presence is necessary to determine the constitutional questions at hand as was held in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 which was quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows: -
“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter...For a person to be joined on the ground that his presence in the suit is necessary
for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”
56. In Meme vs. Republic (2004) KLR637, the Court of Appeal held that joinder will be permissible:
a) Where the presence of the party will result in the complete settlement of all the question involved in the proceedings;
b) Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law; and
c) Where the joinder will prevent a likely course of proliferated litigation.
57. The 2 nd Interested Party’s role in providing factual company registers to law enforcement officers does not render it a primary wrongdoer in the alleged constitutional breaches. However, its joinder to these proceedings was necessary because, from the depositions on record, the suit land which is subject of the Police investigations originally belonged to the 2 nd interested party which it claims to have allocated to the 1 st Interested party who is now deceased. In my view, the presence of he 2 nd interested party is necessary to enable the court effectually and completely determine the issues ra
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E051 OF 2025
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 24, 25 AND 258(1) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED VIOLATION OF RIGHTS AND FREEDOMS UNDER ARTICLES 25, 28, 29, 39, 40, 47 and 57 OF THE CONSTITUTION OF KENYA, 2010
ONESMUS GACHUHI GITHINJI .......................................... PETITIONER
-VERSUS-
INSPECTOR GENERAL OF POLICE ...........................1 ST RESPONDENT
OFFICE OF THE DIRECTOR OF
PUBLIC PROSECUTIONS ..............................................2 ND RESPONDENT
ATTORNEY GENERAL .................................................. 3 RD RESPONDENT
AND
NAOMI WANGUI KURIA .................................. 1 ST INTERESTED PARTY
GITHUNGURI CONSTITUENCY
RANCHING CO. LTD …………………………..2 ND INTERESTED PARTY
ANGELICA WANGUI KURIA ...........................3 RD INTERESTED PARTY
JUDGMENT
Introduction
1. The Petition dated 5 th February 2025 and amended on 23 rd April 2025 stems from a dispute over ownership of land parcel known as Ruiru East Block 1/ Githunguri 1350, valued at approximately Kshs. 1,000,000,000/=.
2. The Petitioner, Onesmus Gachuhi Githinji, an Advocate of the High Court of Kenya with over 40 years of legal practice, asserts that he legally purchased the land in 2010 from Harrison Karanja Njihia . He details a history of unsuccessful legal challenges to his ownership, beginning with a 2011 lawsuit filed by the 1 st Interested Party, Naomi Wangui Kuria, which suit was allegedly, ultimately dismissed for want of prosecution in March 2021. That a subsequent suit filed by the same Naomi Wangui Kuria in December 2021 was struck out in March 2023 for being res judicata , statute-barred and an abuse of court process, which decision was appealed against and is pending determination by the Court of Appeal.
3. The petitioner claims that throughout these proceedings, government land registrars through the Office of Attorney General repeatedly confirmed that the transfer of the suit land to the Petitioner was lawful and unmarred by fraud.
The Petition and reliefs sought
4. The Petition as amended on 23rd April 2025 therefore seeks the following reliefs:
(1 A declaration that the summons by DCI Ruiru is arbitrary and unlawful and a breach of all constitutional provisions forming the subject of this Petition.
(2 An order prohibiting the Inspector General of Police and all his subordinates from summoning and investigating the Petitioner over the LR No. Ruiru East Block 1/ Githunguri 1350.
(3 An order prohibiting the Director of Public Prosecutions from preferring any charges against the Petitioner over the LR No. Ruiru East Block 1/ Githunguri 1350.
(4 General damages for the violation of the Petitioner's fundamental human rights.
(5 Costs of this Petition.
(6 Any other order(s) that this Honourable Court may deem fit.
5. Concurrent with the Petition, the Petitioner filed a Notice of Motion Application seeking conservatory orders staying the summons issued by the 3 rd Respondent against the Petitioner on 4 th February 2025 pending hearing and determination of the Application and the Petition.
6. The Petition is based on the facts as pleaded and further supported by the affidavit sworn by the Petitioner on 17 th June 2025. In the supporting affidavit, the Petitioner deposes that a land search conducted on 14 th February 2020, revealed that while ELC Case No. 341 of 2013 was still pending at Milimani Law Courts, the Land Registrar, Ruiru, opened a Green Card registering the disputed property under Githunguri Constituency Ranching Company Ltd before transferring it to Naomi Wangui Kuria .
7. THE Petitioner highlights what he considers to be a contradiction in this action, noting that the Land Registrar, who was the 5 th Defendant in that ELC suit, had filed a statement of defence through the Attorney General confirming that the Petitioner’s title was acquired lawfully and with the company's consent, without disclosing the ongoing transfer to Naomi Wangui Kuria.
8. Further, that when a status quo order was issued against the Petitioner in a subsequent suit ( ELC No. E145 of 2021) at Thika Law Courts, it was curiously registered against Naomi Wangui Kuria’s title instead.
9. The Petitioner further states that he has received information that Naomi Wangui Kuria and her only child are deceased. He asserts that the Land Registrar and the Chairman of Githunguri Constituency Ranching Company Limited have been fraudulently using the deceased woman’s name to attempt to dispossess him of his land. He alleges that these parties have enlisted the police to harass, intimidate and unlawfully evict him from the suit land.
10. The Petitioner asserts that given the land’s escalated valuation of one billion Kenya shillings, the ongoing police summons despite existing court decisions and the death of the purported claimant, the -Petitioner fears for his life and seeks urgent judicial intervention to prevent severe harm or mistreatment.
11. He explains that on 4 th February 2025, the DCI served him with summons demanding his appearance on 6 th February 2025 to answer to a new complaint lodged by an unknown individual, the 3 rd Interested Party herein, alleging the offence of obtaining land registration by false pretences under Section 320 of the Penal Code.
12. The Petitioner avers that the summons and the demand to produce his original title deed represent an arbitrary abuse of power, weaponization of the criminal justice process and is an illegal attempt to re-litigate a settled land dispute. He further cites intimidation, including being trailed by unknown vehicles, as threats to his personal safety and fundamental freedoms.
13. The Petitioner asserts that the acts of the Inspector General of Police and subordinate officers violate his constitutional rights, including protection from cruel, inhuman, or degrading treatment under Articles 28 and 57, freedom of movement under Article 39, freedom and security of the person under Article 29, right to property under Article 40 and fair administrative action under Article 47.
14. He states that the police are encroaching upon judicial independence by attempting to act as a Court of Appeal over High Court decisions. Consequently, he seeks constitutional remedies to restrain the police and the Director of Public Prosecutions from investigating or prosecuting him over the property.
Responses to the Petition
15. Opposing the Petition, the Respondents filed several responses. The 1 st Respondent, the Inspector General of Police and the 3 rd Respondent, the Attorney General filed their Grounds of Opposition dated 24 th February 2025. They assert that the Petitioner has failed to demonstrate how his constitutional rights were violated or threatened. Relying on the case of Anarita Karimi Njeru v. Republic , the 1 st and 3 rd Respondent contend that a party alleging constitutional violations must state the specific rights infringed and precise manner of infringement, which the Petitioner has not done.
16. The 1 st and 3 rd respondents state that the police acted strictly within their constitutional and statutory mandate under the National Police Service Act, which mandate includes investigating crime and maintaining law and order by summoning the Petitioner after receiving a formal complaint from the 3 rd Interested Party. They plead that failing to investigate such a complaint would amount to a breach of their public duty.
17. The 1 st and 3 rd Respondents further contend that the Petition is speculative, premature and an abuse of court process because it arises from mere apprehension that the ongoing investigations might be predetermined. They assert the matter involves disputed facts properly within the purview of the investigating authority and that judicial intervention before investigations are concluded is unwarranted unless an act is manifestly unlawful or improper.
18. Additionally, they highlight that the constitutional power to decide whether to prosecute rests independently with the Director of Public Prosecutions under Article 157 . Finally, they urge that the Petitioner failed to adduce evidence under the Evidence Act regarding alleged surveillance by unknown cars or strangers, rendering the petition frivolous, incompetent and fit for dismissal with costs.
19. The 2 nd Respondent the Director of Public Prosecutions(DPP) filed Grounds of Opposition dated 20 th February 2025 opposing the Application and Petition on the grounds that no evidence has been availed to show any intention to institute criminal charges against the Petitioner. The DPP contends that the claim violates the doctrine of ripeness, as it rests entirely upon contingent future events, making the Application premature and unfit for judicial adjudication at this stage.
20. Further, that the DPP has neither directed an investigation against the Petitioner under Article 157(4) nor instituted criminal proceedings under Article 157(6) of the Constitution and that a mere police summons to record a statement does not constitute a threat to fundamental rights, rendering the Petitioner’s fears speculative and unsupported by fact.
21. The DPP also states that the Petitioner failed to exhaust administrative remedies of writing a formal complaint letter to the DPP before filing the matter in court. Consequently, the 2 nd Respondent states that the petition lacks merit and should be dismissed with costs.
22. The 2 nd Interested Party Githunguri Constituency Ranching Co. Ltd filed a Replying Affidavit sworn on 1 st October 2025 by John Maina Mburu, the Chairman and Director of the 2 nd Interested Party refuting the Petitioner’s allegations and defending the company’s position regarding the suit property, Ruiru East Block 1/ Githunguri 1350.
23. The deponent denies any personal vendetta, malice, or involvement in police harassment, taking issue with the Petitioner’s derogatory language including calling him "Mganga" which he describes as unfounded and beneath the dignity of a former judge and senior advocate. He asserts that neither he nor the company initiated criminal complaints, issued police summons, or influenced the Directorate of Criminal Investigations, arguing that the company was improperly joined to the constitutional petition.
24. Regarding the merits of the land ownership, Mr. Mburu deposes that internal company records confirm Naomi Wangui Kuria the 1 st Interested Party as the bona fide allocated owner of the parcel. He explains that she followed all proper corporate procedures by purchasing shares, receiving official receipts, obtaining a share certificate and participating in the balloting process, where she drew ballot number 731 corresponding to parcel 1350.
25. While acknowledging that her previous civil suits were dismissed for want of prosecution or struck out on account of alleged indolence, the deponent maintains that the 1 st Interested Party’s procedural failures do not negate her legitimate allocation.
26. Consequently, he deposes that the seller who transferred the land to the Petitioner, Harrison Karanja Njihia, was never originally allocated the parcel of the Land by the company, evidencing that the initial acquisition by Mr. Njihia was fraudulent. The deponent concludes by urging the Court to dismiss the Petitioner’s application with costs.
27. The Petition was canvassed by way of written submissions.
Submissions
28. The Petitioner’s submissions are dated 8 th October 2025 . The Petitioner, submits that he is the legal owner of Ruiru East Block 1/ Githunguri 1350, having purchased the property in 2010 from Harrison Karanja Njihia, with the land and its developments currently valued at approximately KES 1,000,000,000. He details a history of litigated ownership claims by the 1 st Interested Party Naomi Wangui Kuria , beginning with Land Case No. 24 of 2012 transferred to Milimani as ELC Case No. 341 of 2013), where the Land Registrar through the Attorney General is said to have confirmed that the transfer to the Petitioner was lawful, unmarred by fraud and sanctioned by Githunguri Constituency Ranching Company Limited.
29. He avers that Lady Justice Komingoi dismissed this initial suit for want of prosecution on 10 th March 2021 and rejected a reinstatement application on 21 st October 2021. That despite this, the 1 st Interested Party filed a fresh suit in ELC No. 145 of 2021 at Thika, which Justice B.M. Eboso struck out on 20 th March 2023, for being res judicata , statute-barred and an abuse of court process, a decision currently under Civil Appeal No. E338 of 2023.
30. The Petitioner submits that following these civil court defeats, a racketeering enterprise colluded with DCI Ruiru to instigate criminal proceedings against him. That on 4 th February 2025, DCI Ruiru served him with summons based on a complaint lodged by the 3 rd Interested Party Angelica Wangui Kuria, holding herself out as the daughter-in-law to the now-deceased 1 st Interested Party, alleging the offence of obtaining land registration by false pretences under Section 320 of the Penal Code.
31. The Petitioner characterizes these summonses and demands for the original title deed of the suit parcel of land as an arbitrary abuse of police power and weaponization of the criminal justice system. He reiterates that third-party registry searches revealed that the Land Registrar opened a green card in 2020 under the names of the 1 st and 2 nd Interested Parties without disclosing it during the 2021 Thika litigation and points to the previous prosecution of initial owner Ernest Maina Mburu in Criminal Case No. 5413 of 2017 as further evidence of calculated harassment.
32. The Petitioner argues that these actions violate his fundamental rights under Articles 28 on dignity and protection from degrading treatment, 29 on freedom and security of person, 39 on freedom of movement, 40 on protection of property rights, 47 on fair administrative action and 57 on protection of older members of society.
33. He submits that the police and Land Registrar are attempting to usurp judicial authority by acting as an appellate Court over High Court decisions, directly violating judicial independence under Article 160(1) of the Constitution as guaranteed.
34. On the fear for his safety due to alleged unknown vehicles trailing him and strangers visiting his land, the Petitioner submits that the ongoing summons and threatened prosecution inflict severe mental anguish and arbitrary restraint, warranting urgent constitutional intervention and the grant of the prayed prohibition orders and damages.
35. The 1 st and 3 rd Respondents, in their submissions dated 28 th October 2025 isolate the following issues for determination:
whether the 1 st and 3 rd Respondents’ conduct constitutes a violation and contravention of the Constitution of Kenya 2010;
Whether the petitioner has proved his case to the required standard and therefore the Honourable Court should issue the orders sought in the petition and
Whether the petitioner is entitled to the orders sought in the petition.
36. Counsel submits that the Petitioner’s Application and Petition lack merit and should be dismissed with costs. They argue that the Petitioner has failed to satisfy the pleading standard established in Anarita Karimi Njeru v. Republic (1979) and Mumo Matemu v. Trusted Society of Human Rights Alliance (2013) eKLR, which require constitutional violations to be set out with sufficient particularity and clear factual detail rather than mere listings of constitutional provisions.
37. The 1 st and 3 rd Respondents argue that the police acted strictly within their statutory mandate under the National Police Service Act to investigate crime, detect offences and enforce laws after receiving a formal complaint from the 3 rd Interested Party regarding alleged land fraud under Section 320 of the Penal Code . They cite Republic v. Commissioner of Police & Another ex parte Michael Monari & Another (2012) eKLR and Rose Esther Muthoni Wamuiya v. Governor, County Government of Nyandarua & Others (2020) eKLR , maintaining that police have an inescapable duty to investigate complaints upon reasonable suspicion and that courts must remain reluctant to interfere with ongoing investigations.
38. The 1 st and 3 rd Respondents submit that the petition is premature and speculative, as it invites the court to intervene in disputed factual matters before investigative authorities have completed their work or forwarded the file to the Director of Public Prosecutions (DPP). Relying on Paul Ng'ang'a Nyaga v. Attorney General & Others (2013) eKLR and Hon. James Ondicho Gesami v. Attorney General & Others , they argue that the High Court can only interfere with constitutional bodies like the DPP or the Police where there is clear evidence of unconstitutional action, noting that subjecting an individual to standard criminal process with built-in constitutional safeguards does not violate human dignity.
39. On the burden of proof, the 1 st and 3 rd Respondent cite Sections 107 and 109 of the Evidence Act alongside Lt. Col. Peter Ngari Kagume & Others v. Attorney General (2006) eKLR , emphasizing that he who alleges must prove. They point out that the Petitioner adduced no tangible evidence such as witness testimony or police records to substantiate claims of false complaints, nor to link the 1st and 3rd Respondents to allegations of unknown vehicles trailing him.
40. The 1 st and 3 rd Respondents maintain that granting the requested prohibition orders would improperly curtail the DPP’s prosecutorial discretion under Article 157 and usurp the trial court's role. Citing Mureithi & Another v. Divisional Criminal Investigation Officer Kajiado & Others (2023) eKLR, Erick Kibiwott Tarus & Others v. Director of Public Prosecutions & Others (2014) eKLR, and Kenya Human Rights Commission & Another v. Attorney General & Others (2019) eKLR, they argue that trial courts are best equipped to evaluate evidence, determine innocence, or grant acquittals, while appellate mechanisms and civil claims for malicious prosecution exist to cure any procedural errors.
41. They emphasize that the mere likelihood of a prosecution failing does not justify judicial interference with a decision-making process, concluding that the petition should be dismissed to protect the institutional independence of law enforcement and prosecutorial bodies.
42. The 2 nd Respondent’s submissions are dated 6 th May 2026 . Counsel submits that the petition is premature, anticipatory and without merit, as no decision to charge the Petitioner under Article 157(6) of the Constitution has been made. Relying on Environment Land Petition 4 of 2023 , the DPP contends that judicial intervention is uncalled for where no adverse action has been taken against a petitioner. Citing Section 24 of the National Police Service Act and Rhodah Mutete Mutuku v. Inspector General, National Police Service & 2 Others [2019] eKLR, the 2 nd Respondent emphasizes that police investigations are a mandatory pre-trial mechanism designed to establish facts and to determine whether to exonerate or incriminate a suspect, and summoning the Petitioner to record a statement accords with the rules of natural justice without infringing any constitutional rights, especially given that the DPP has not issued any investigation directives under Article 157(4) of the Constitution.
43. The 2 nd Respondent further argues that the petition directly violates the doctrine of ripeness as it asks this Court to adjudicate a hypothetical dispute based on mere apprehension of arrest and prosecution. Citing Black's Law Dictionary, Kiriro wa Ngugi & 19 Others v. Attorney General & 2 Others [2020] eKLR, and National Assembly of Kenya & Another v. The Institute for Social Accountability & 6 Others, the DPP submits that courts must decline to entertain academic or premature questions that have not matured into live, justiciable controversies grounded in actual facts.
44. Additionally, the DPP submits that the Petitioner breached the doctrine of exhaustion by rushing to court without first seeking administrative resolution or formally raising his grievances with the DPP, ignoring the principle affirmed in Geoffrey Muthiga Kabiru & 2 Others v. Samuel Munga Henry & 1756 Others [2015] eKLR that courts must serve as a forum of last resort rather than the first port of call.
45. The 2 nd Respondent stresses that judicial discretion to interfere with prosecutorial independence must be exercised sparingly and only in the clearest of cases. Referencing Muema Mativo v. Director of Criminal Investigations & 2 Others eKLR, the DPP cautions that constitutional court jurisdiction must not be trivialized or invoked on mere unsubstantiated fears of potential rights violations. Because the DPP has not evaluated the completed police file or elected to prefer charges, any judicial intervention at this stage would improperly pre-empt prosecutorial mandate and the assessment of the trial court, making it necessary for the Court to dismiss the petition with costs.
46. The 2 nd Interested Party, Githunguri Constituency Ranching Co. Ltd, submits that it has been improperly joined to the constitutional petition and prays for the petition against it to be dismissed with costs. The company outlines its historical allocation procedures as a public land-buying company established in 1968, explaining that shareholders purchased shares, received official receipts, obtained share certificates, and participated in balloting to select specific land parcels. That internal records confirm that Naomi Wangui Kuria the 1 st Interested Party fully complied with all corporate procedures, drew ballot number 731, and was formally allocated Ruiru East Block 1 (Githunguri) 1350.
47. The company notes that due to the prevalence of elderly or illiterate shareholders who delay formal titling, corrupt land officials and fraudsters have frequently exploited these gaps to process illegal titles.
48. Regarding the root of the dispute, the 2 nd Interested Party contends that the Petitioner purchased the property from a person who was never allocated the land by the company and who had illegally processed a title before selling to the Petitioner. The company points out that the person who sold the land to the Petitioner, a Mr. Mburu was previously charged with the offence of land fraud in Thika Chief Magistrate's Court Case No. 5413 of 2017, but that the charges were withdrawn following his death.
49. The 2 nd interested party company acknowledges that while previous civil suits filed by the 1 st Interested Party including High Court ELC No. 341 of 2013 and Thika ELC No. 145 of 2021 were dismissed or struck out, those determinations were based on legal technicalities such as want of prosecution and statutory limitation of time, rather than a substantive judicial evaluation underlying land ownership.
50. Finally, the 2 nd Interested Party submits that it plays no role in police investigations other than providing factual company records when requested by law enforcement. It maintains that the 1 st and 3 rd Interested Parties exercised a constitutional right in reporting the matter to the police and that the company cannot close its doors to police investigations into widespread local land fraud.
51. Finally, the 2 nd Interested party company submits that the Petitioner’s personal attacks and defamatory allegations, including calling its Chairman a "Mganga" are unjustified, and reiterates that it should be excused from the proceedings with costs.
Analysis and Determination
52. Having considered the pleadings, affidavits and written submissions filed by the participating parties, the following key issues emerge for determination:
(i) Whether the 2 nd Interested Party was properly joined to these proceedings.
(ii) Whether the 1 st Respondent, and the 2 nd Respondents violated or threatened to violate the Petitioner’s fundamental rights under Articles 28, 29, 39, 40, 47, 57, and 160(1) of the Constitution and whether, in the circumstances, the Court should exercise its jurisdiction to issue prohibition orders restraining police investigations and potential criminal prosecution.
(iii) Whether the Petition is premature, anticipatory, and offends the doctrines of ripeness.
(iv) What orders should the court make?
i. Whether the 2 nd Interested Party was properly joined to these proceedings.
53. The issue of joinder and misjoinder in constitutional petitions is governed by Rule 5 of the Constitution of Kenya, (Protection of Rights and Fundamental Rights) Practice and Procedure Rules, 2013 as follows: -
Rule 5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
(c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.
(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
(i) order that the name of any party improperly joined, be struck out; and(
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
54. The 2 nd Interested Party, Githunguri Constituency Ranching Co. Ltd, contends that it was mis joined to this petition. It asserts that they neither filed a police complaint nor issued police summons against the Petitioner and that their involvement in the matter was limited to supplying historical company allocation records to the investigating officers upon request.
55. A party should only be joined to a constitutional petition if specific allegations of rights violations are made against it or if its presence is necessary to determine the constitutional questions at hand as was held in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 which was quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows: -
“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter...For a person to be joined on the ground that his presence in the suit is necessary
for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”
56. In Meme vs. Republic (2004) KLR637, the Court of Appeal held that joinder will be permissible:
a) Where the presence of the party will result in the complete settlement of all the question involved in the proceedings;
b) Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law; and
c) Where the joinder will prevent a likely course of proliferated litigation.
57. The 2 nd Interested Party’s role in providing factual company registers to law enforcement officers does not render it a primary wrongdoer in the alleged constitutional breaches. However, its joinder to these proceedings was necessary because, from the depositions on record, the suit land which is subject of the Police investigations originally belonged to the 2 nd interested party which it claims to have allocated to the 1 st Interested party who is now deceased. In my view, the presence of he 2 nd interested party is necessary to enable the court effectually and completely determine the issues ra
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