1. The applicant moved this court by way of a Chamber Summons dated 13 th August 2025 expressed to be brought under Rule 3 of the High Court (Practice and Procedure) Rules made Pursuant to Section n10m of the Judicature Act, Cap 8 of the Laws of Kenya and all other enabling provisions of the Law, Sections 362-369 of the Criminal Procedure Code, Articles 25(c), 31, 35, 40, 47, 50, 159(2), 165(6)-(7) of the Constitution, Section 134 of the Evidence Act, Sections 6 & 60 of the Advocates Act for the following ORDERS: -
a). Spent.
b). THAT pending the hearing and determination of this Application, this Honourable Court be pleased to stay the execution, implementation and/or enforcement of the orders issued on 11th August 2025 in Milimani Chief Magistrate's Court Miscellaneous Criminal Application No. E3007 of 2025, in so far as they authorise the Directorate of Criminal Investigations to investigate, inspect, obtain or carry away the Applicant's bank account records, statements and related documents for Account Nos. i. 4703090028 (NCBA Bank, Upper Hill Branch) and ii. 0140000423 (Access Bank PLC, City Hall Way Branch).
c). THAT this Honourable Court be pleased to call for and examine the record of proceedings and the orders issued on 11th August 2025 in Milimani Chief Magistrate's Court Miscellaneous Criminal Application No. E3007 of 2025, for the purpose of satisfying itself as to the correctness, legality, propriety and regularity of the said orders.
d). THAT upon such examination, the Honourable Court be pleased to revise, vacate or set aside the said orders in so far as they authorise the Directorate of Criminal Investigations to investigate, inspect, obtain and carry away the Applicant's bank account records, statements and related documents for the account numbers listed;
e). THAT the Honourable Court be pleased to make any further or other orders as it may deem just and expedient in the interests of justice.
f). THAT the costs of and incidental to this application be provided for.
2. The application is supported by the grounds set out on the face of the application and the annexed Affidavit of JOHN KIPROTICH KIBET.
APPLICANT’S CASE
3. The applicant asserts that this Honourable Court is vested with supervisory jurisdiction under Article 165(6)-(7) of the Constitution, which empowers it to call for the record of any proceedings before a subordinate court or any person, body or authority exercising a judicial or quasi-judicial function, for the purposes of satisfying itself as to the correctness, legality, propriety and regularity of such proceedings or orders, and to make such directions as it considers appropriate to ensure the fair administration of justice.
4. Sections 362 of the Criminal Procedure Code specifically provide for the High Court's revisionary powers.
5. The section provides;- "The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
6. The applicant further placed reliance on Section 364 which empowers this Court, upon such examination, to reverse, vary or set aside such orders where it finds them irregular or improper.
7. The impugned orders issued by the Chief Magistrate's Court at Milimani in Misc. Criminal Application No. E3007 of 2025 were made in criminal investigative proceedings. They are therefore amenable to revision where they have been made without observance of constitutional protections, in excess of jurisdiction, or without consideration of relevant legal safeguards.
8. The applicant contended that the bank accounts targeted in the impugned orders relate exclusively to a civil conveyancing transaction which was the subject of NAIROBI ELC NO. E022 of 2022.
Chronologically:
i 2017 - A Sale Agreement was executed between Kenya African National Union (KANU) and the purchaser for LR No. Nairobi/Block 79/782.
ii 2022 - A dispute arose regarding the property, leading to the filing of ELC No. E022 of 2022.
iii 8th August 2022 - The parties, with representation by advocates (including the Applicant for KANU), recorded a Consent in the ELC matter, fully settling the dispute.
iv Post-Consent - The court adopted the Consent as its order and issued a Decree, which expressly governed the transfer of the property and the payment of the purchase price.
9. The applicant maintains that the transaction in question was not only the product of voluntary agreement between the parties but was also expressly sanctioned by the Environment and Land Court in ELC No. E022 of 2022.
10. According to him, by recording a Consent on 8th August 2022 which was duly adopted as an order of the court and a Decree issued, the parties effectively clothed the transaction with the authority and finality of a judicial determination.
11. The applicant further posited that every monetary transfer related to this transaction was executed strictly in compliance with the express terms of that Consent and Decree.
12. The manner, timing, and recipients of the payments were all dictated by the court-sanctioned settlement and carried out under professional stakeholder arrangements that are standard in conveyancing practice.
13. The applicant further contends that the criminal investigative process now embarked upon seeks, in substance, to re-open and probe a concluded civil transaction whose terms have been implemented under the supervision and authority of the court. This amounts to a collateral attack on a valid court order through a criminal investigative route; a course of action that is both procedurally irregular and constitutionally suspect.
14. The applicant argued that while the Directorate of Criminal Investigations retains the general mandate to investigate crime, such a mandate cannot be used to second-guess, impugn, or undermine the authority of a subsisting court decree in the absence of credible, concrete, and particularised evidence pointing to criminal conduct.
15. According to the applicants, mere suspicion, conjecture, or dissatisfaction with the outcome of a civil settlement cannot justify the fishing expedition into the Applicant's privileged client accounts.
16. It is contended by the applicants that allowing such unrestrained investigations into transactions concluded under judicial sanction would set a dangerous precedent effectively permitting the reopening of settled civil disputes through criminal process, thereby eroding the sanctity of court orders, undermining commercial certainty, and chilling the lawful practice of conveyancing in Kenya.
17. The applicants maintained that they acted solely in their professional capacity as stakeholder advocates for Kenya African National Union (KANU).
18. Further the applicants contend that in the course of conveyancing practice in Kenya, it is standard for the vendor's advocate to receive the purchase price into their client account and disburse it according to the vendor's instructions and contractual terms.
19. The applicants stated that as advocates their duties in this transaction were:
a). Receiving the purchase price into its client account;
b). Disbursing the funds to pay the vendor's liabilities and to remit the balance to the vendor;
20. In doing so the applicants maintained that they were acting in line with the Consent and Decree in ELC No. E022 of 2022 and the Law Society of Kenya Conditions of Sale.
21. The applicants asserted that they had no beneficial or proprietary interest in the funds. The firm acted as a trustee and intermediary, which is a protected function under the Advocates Act.
22. According to the applicants, investigating the Applicant's accounts wholesale sweeps up privileged transactions for other clients and is unrelated to the alleged complaint.
23. The applicants relied on the Advocates Act and Section 134 of the Evidence Act to argue that they are protected from disclosure of any communication between them as advocates and their client made in the course and for the purpose of professional employment, unless the client consents. This includes instructions relating to the handling of funds in a transaction.
24. Further, the applicants cited Section 134(1) of the Evidence Act which provides: "No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment."
25. The applicants contended that the impugned orders authorise the DCI to obtain all transaction records in the Applicant's client accounts over a 5-month period. According to them the vast majority of these records will inevitably relate to unrelated clients and matters, thereby exposing privileged communications and transactions without client consent.
26. The applicants cited the case of Njuguna S. Ndungu v EACC [2018] eKLR where the court held that while investigative bodies may access information, they must respect privilege and cannot indiscriminately access material unrelated to the investigation.
27. The applicant went on to argue that the orders granted are not narrowly tailored to the alleged subject of investigation. Instead, they authorise a general trawl through all the Applicant's client account transactions between 8th August 2022 and 31st December 2022.
28. The applicants urged the court to find that in this case, the DCI could have sought limited orders confined to specific dates and amounts relevant to the alleged transaction. Instead, they obtained open-ended access to all transactions, amounting to a fishing expedition.
29. In the applicants view, if the Respondent genuinely require information, they have the option to seek targeted orders identifying the specific payments linked to the sale in ELC No. E022 of 2022, engage the Applicant directly for production of specific records with necessary redactions to preserve privilege and request information from the vendor directly, or from parties to the civil suit, rather than probing all of the Applicant's unrelated transactions. In the applicants submission such narrower measures would achieve the legitimate investigative aim without undermining constitutional protections and professional privilege.
30. The applicant further contended that the subordinate court's orders are irregular, illegal, and improper in several material respects. First, they disregard the express constitutional safeguards enshrined under Articles 31 and 47 of the Constitution, which guarantee the right to privacy and the right to fair administrative action. By authorising indiscriminate access to the Applicant's client accounts without limitation to the specific subject matter under investigation. In the applicant’s view the orders amount to an unjustifiable intrusion into constitutionally protected spheres.
31. Secondly, the applicant contended that the orders are in direct conflict with Section 134 of the Evidence Act as well as Sections 6 and 60 of the Advocates Act, which codify the principle of advocate-client privilege and protect from disclosure all communications and transactions made in the course of professional employment, except with the client's express consent. The sweeping scope of the orders inevitably captures unrelated and privileged transactions involving other clients, thereby breaching professional secrecy.
32. The applicant however acknowledged that Section 134(2) of the Evidence Act creates a narrow exception to advocate-client privilege, permitting disclosure where the communication is made in furtherance of any illegal purpose, or where the advocate observes, in the course of his employment, any fact showing that a crime or fraud has been committed since the commencement of that employment.
33. The applicant posited that the Respondent has sought to invoke this exception implicitly by alleging that the transaction under investigation may involve money laundering. However, this statutory exception is wholly inapplicable to the present circumstances.
34. According to the applicant the funds in question arose entirely from the sale of LR No. Nairobi/Block 79/782, a transaction that was settled through a Consent recorded before the Environment and Land Court in ELC No. E022 of 2022 and implemented pursuant to a Decree of that court.
35. The Applicant acted solely as stakeholder advocate for the vendor (KANU), receiving and disbursing the purchase price in strict conformity with the terms of the Consent, the Decree, and written instructions from the client. All disbursements were made through traceable banking channels to the parties and third parties identified in the settlement schedule.
36. Further, the applicant contended that the mere allegation of "money laundering" unsupported by any specific, credible evidence showing that the Applicant's communications or handling of funds were in furtherance of an unlawful scheme is insufficient to displace the statutory privilege. Likewise, there is no evidence that the Applicant observed, in the course of acting as stakeholder, any fact indicating that a crime or fraud had been committed.
37. To invoke Section 134(2), the Respondent must point to tangible and particularised evidence linking the advocate's conduct to the alleged offence; in its absence, the privilege remains intact.
38. The applicant urged the court to consider that permitting disclosure on the basis of unsubstantiated allegations would erode the constitutional right to confidential legal representation, invite fishing expeditions into advocates' client accounts, and undermine the independence of the legal profession.
39. The applicant went on to argue that the subordinate court failed to apply the proportionality test required under Article 24 of the Constitution, which demands that any limitation on a right must be reasonable, necessary, and proportionate to the legitimate aim sought to be achieved. The applicant maintained that in this instance, there is no demonstrated necessity for such broad and unrestricted access, particularly when narrower, targeted investigative measures were readily available.
40. According to the applicant the orders have the practical effect of permitting wholesale access to confidential information unrelated to the transaction under scrutiny, thereby enabling a circumvention of both statutory and constitutional privilege protections without adequate or compelling justification.
41. The applicants contend that taking into account all the matters raised by them, they have demonstrated a clear departure from constitutional, statutory, and evidential requirements, and cumulatively meet the threshold for this Honourable Court's intervention under Section 362 of the Criminal Procedure Code to review, revise, and set aside orders that are irregular, illegal, or otherwise improper.
RESPONDENNTS CASE
42. The respondents are opposed to the application and vide an affidavit sworn by No.80936 DETECTIVE SERGEANT NICOLAUS OSURI OTIENO stationed at DCI Headquarters they deposed that they are investigating a case of; Conspiracy to defraud contrary to section 317 of the Penal Code and fraudulent disposal of trust property contrary to section 327(1) of the Penal Code, Chapter 63 Laws of Kenya among other offences vide Directorate of Criminal Investigations (DCI) Headquarters inquiry file No.51 of 2024.
43. T he Respondent launched investigations following a complaint made to the DCI by Mr. Isaac Irungu on behalf of Buruburu Phase 5 Community to the Applicant that Kenya African National Union (KANU) officials being the Chairman and the Secretary General, Hon. Senator Gideon Kipsielei Towett Moi and Hon. Nicholas Kiptoo Arap Korir Alias Nick Salat respectively, had obtained registration of a parcel of land known as Land Reference No.79/782 (formerly LR. No.209/11046) measuring 0.4013 Hectares situated their Estate and existed thereto Tom Mboya Memorial Hall for public use.
44. The deponent averred that John Kiprotich Kibet was the Advocate who handled the conveyance on the subject property between Kenya African National Union (KANU) a political party and Gami Properties Limited.
45. The respondents asserted that i t is the fraudulent sale of the public land which operated as Tom Mboya Memorial Social that is subject of investigation by the Respondent herein.
46. The investigation officer deposed that the respondents believe that the Applicant dishonesly and intentionally chose not to make a full material disclosure being an Advocate of the High Court of Kenya and an officer of the Court of there being a status quo orders issued by Hon. Justice M. D. Mwangi on 22" July, 2024 in ELC case No. E053 of 2024 ceasing any further construction at the property and the petitioners thereto not to demolish the Tom Mboya Memorial Social Hall therein
47. The respondent sought to rely on the provisions of Section 193A of the Criminal Procedure Code, Cap.75 Laws of Kenya which permits concurrent civil and criminal proceedings solely on the basis of a pending civil case based on similar facts and circumstances and sought to persuade this court that a court cannot stop investigations or prosecution solely on the basis that there is a parallel pending civil suit.
48. According to the investigation officer, Mr. John Kiprotich Kibet, the Applicant herein is again dishonest with this Honourable Court by technically choosing not to provide actual material evidence in his possession as to how the Applicant instructed the purchaser's Advocate that is Kipkenda & Company Advocate to pay out the money to persons of interest in a clandestine manner for concealment of in a manner trying to beat the anti-money laundering measures.
49. The deponent went further to aver that the investigations were aimed at establishing whether or not the said money was received in the Applicants clients account and if at all it was meant to finance terrorism activities or not or equally if this was a calculated way of tax evasion. Hence it is for these reasons that the Respondent herein should be allowed to carry it constitutional and lawful mandate.
50. The respondents averred that it is a fact that clear instructions from the Applicant herein for a sum of Kshs.48,000,000/= and 3Kshs.5,000,000/= to be deposited to their bank account numbers; 4703090028 and 0140000423 in the name of Oruenjo Kibet & Khalid Advocates and held at NCBA Bank Kenya Limited, Upper Hill Branch and Access Bank PLC, City Hall Way Branch respectively.
51. According to the respondents, the Court Orders in E022 of 2022, which the Applicant has mentioned is subject of ELC Case No. E053 of 2024 that has stayed its execution hence status quo.
52. The respondents urged this court to consider that criminal culpability against any person or entity can only be determined upon evaluation of material evidence, facts in issue which herein are land transaction instruments and financial records in the said conveyance and which are not limited to the Applicants account and the person of Anthony Michael Sugden, D. M. Sugden who allegedly received sum amounts of Kshs.5,500,000/= and Kshs.14,500,0001= respectively and Shahib Aly Khan who allegedly received a sum of Kshs.17,000,000/= in cash.
53. The respondents further urged this court to find that the impugned Court Orders were issued by a competent court in Milimani Chief Magistrates' Court Miscellaneous Criminal Application No.E3007 of 2025. The orders are thus regular, lawful, proper and valid.
54. The respondents went on to argue that Honourable Court also considered the interests of justice in that the property in question, having been declared a public land/ utility by all the relevant Departments of the State Department for Lands and Physical Planning, the Department mandated by law to register all interests in land issued.
55. The investigation officer further averred that during investigations the Respondent herein he had interacted with the offices of the Chief Land Registrar, the Director Land Administration, the Director of Surveys and Director Physical Planning in the State Department for Lands and Physical Planning where several documentary evidential materials have been retrieved.
56. The documents include;-
(a) Land register
(b) Lease
(c) Letter dated 24th April, 2018
(d) Certificate of Title in the name of Kenya Africa National Union
(e) Application for registration of Transfer
(f) Valuation Report
(g) Transfer of Lease
(h) Certificate of Registration/Incorporation of Kenya Africa National Union and GAMI Enterprise, and the respective PIN Certificates
(i) ID's and PIN Certificates for the Directors
(j) Letter from the Ethics & Anti-Corruption dated 19th March,2024
(k) Letter from Commissioner of Lands dated 20th August, 1999.
(I) Correspondence file contents.
(m)The Part Development Plan No. 42/28/93/31 Approved Development Plan No. 389.
(n) The Authority to prepare the PDP was granted by the Commissioner of Lands vide letter Ref 93104/11/ (41) dated 28th June,1993.
(o) The Commissioner of Lands, The Director of Surveys and the Director of City Planning vide letter Ref PPD/42/28/DC/176 dated 1 s' September,1993.
(p) The Part Development Plan No. 42/28/86/14 Approved Development Plan No. 309 and
(q) The content of computation file from the Director of Surveys.
57. The respondents further averred that the investigation by the deponent have established that said parcel of land was reserved for the Ministry of Public Works for development of a community hall on 26th June, 1957 through an order of the then Governor.
58. Further, the records held by the Commissioner for lands confirmed on l 6 May, 1966, the Permanent Secretary, Office of the President applied to the Commissioner of lands to have the site handed over to KANU following a Cabinet decision to have the land leased to KANU for a period of three years from 1976.
59. Upon expiry of lease KANU requested for renewal in January, 1985 and a letter of allotment was issued on 12th April, 1985 with special condition that the land and the building shall always be used for social hall for a period of 99 years.
60. According to the investigation officer on 25th April, 2018 a lease document in respect of the said land parcel was received at the Nairobi Registry for registration and the same was recorded as Day Book Number 5605 as a new grant lease from the National Government to Kenya African National Union (KANU) as the Lessee.
61. The property is for a leasehold term of 99 years from 1st May, 1985 attraction an Annual Rent of Peppercorn (If demanded). The lease was executed by Hon. Gideon Moi and Hon, Nick Salat as Chairman and Secretary of Kenya African National Union respectively.
62. Upon receipt of the lease, a certificate of lease in favour of Kenya African National Union (KANU) was issued on 25th April, 2018 being the date of presentation. The said lease document was processed under Correspondence File Ref. No.60668 and a forwarding letter dated 24th April, 2018 referenced as Ref. 60668/82.
63. On 22nd February, 2021, a transfer between Kenya African National Union (Transferor) and GAMI Enterprises Limited (Transferee) at a consideration of Kshs.80,000,000/= was received under Day Book Number 246 for registration transferring the property to Gami Properties Limited. However, from the letter of instructions, the Applicant herein and other persons mentioned in the said letter later received a total sum of Kshs.90,000,000/= in the said sale.
64. The investigation officer further asserted that the transfer was executed by Hon. Gideon Moi and Hon. Nick Salat on behalf of the transferor and Ashivin Ramji Manji & Bharat Ramji Manji on behalf of the Transferee. Accompanying the transfer were for Registration, Valuation Report, stamp duty payment receipt, ID & PIN Certificates of the parties and Certificates of Registration/Incorporation of the entities.
65. Further, vide a letter Ref. NBI/NAIROBUBLOCK/79/782 dated 23" 1 May, 2024 GAMI Enterprises Limited were issued notice to surrender the certificate of lease for cancellation which they declined and moved to court in ELC Petition No. E053 of 2024 wherein they sued the Cabinet Secretary for Lands, Public Works and Urban Development, The Chief Land Registrar, The Attorney General and Kenya Africa National Union which matter is pending before ELC Court.
66. The respondents contended that recalling of the Certificate of Lease was based on the fact that the processing of the Lease and Title were irregularly done as land and building were earmarked for Social Hall which in its nature is for public utility.
67. On 28th July, 2025, the Respondent summoned the Directors of Gami Properties Limited that is, Mr. Ramji Manji Shamji, Mr. Bharat Ramji Manji, Mr. Ashvin Ramji Manji and Mr. Harish Ramji Patel for interviews and statements recording in the matter. However, through their Advocates, Kipkenda and Company Advocates they indicated that only one of the Directors namely Mr. Bharat Ramji Manji is well versed with the facts of the matter and requisite in the making of a statement in the matter as a person who exclusively participated in the purchase of the property from KANU.
68. The respondent further stated that Kipkenda and Company Advocate furnished the Respondent herein with copies of the following copies of documents;-
(a) Offer of purchase of Land Title number NAIROBI BLOCK 79/782 dated 28th April, 2017 letter by Gami Properties Limited to Kenya Africa National Union.
(b) Letter dated 12th May, 2017 by Kenya Africa National Union to Gami Properties Limited accepting the above offer to purchase the property.
(c) Letter dated 18th May, 2017 by Marrirmoi, Chemurgor & Company Advocates acting for the client, Kenya Africa National Union to Gami Properties Limited accepting the above offer to purchase the property.
(d) To Agreement for sale of the property in respect of the property, Land Title number NAIROBI BLOCK 79/782 dated 26th May, 2017 between Kenya Africa National Union and Gami Properties Limited for a sum of Kshs.80,000,000/= drawn by Marrirmoi, Chemurgor & Company Advocates.
(e) Consent to transfer for in respect of the property, Land Title number NAIROBI BLOCK 79/782 dated 27th April, 2018 by Kenya African National Union.
(f) Official search Certificate dated 9th May, 2018 on the property known as Title number NAIROBI BLOCK 79/782 in the name of Kenya Africa National Union.
(g) Certificate of Lease Title number NAIROBI BLOCK 79/782 dated 25th April, 2018 in the name of Kenya Africa National Union.
(h) Transfer of lease for Title number NAIROBI BLOCK 79/782 dated 2" February, 2021 from Kenya Africa National Union to Gami Properties Limited drawn by Kipkenda and Company Advocates. (Annexed herein and marked "N0012"
(i) Certificate of Lease Title number NAIROBI BLOCK 79/782 dated 22" February, 2021 in the name of Gami Properties Limited.
(j) Official search Certificate dated 24th February, 2021 on the property known as Title number NAIROBI BLOCK 79/782 in the name of Gami Properties Limited.
69. Further, by a letter dated 8th August, 2022 by Oruenjo Kibet and IChalid Advocates to Kipkenda & Company Advocates gave instructions in respect remittance of the sale and purchase price of the property as a sum of Kshs.90,000,000/= specific bank accounts and cash as follows;-
(a) Kshs.48,000,000/= to Bank account name; Oruenjo Kibet & Ithalid Advocates, bank account No.4703090028 at NCBA Bank, Upper Hill Branch.
(b) Kshs.5,000,000/= to Bank account name; Oruenjo Kibet & Khalid Advocates, bank account No.0140000423 at Access Bank PLC, City Hall Way Branch.
(c) Kshs.5,500,000/= to Bank account name; Anthony Michael Sugden, bank account No.1250262658632 at Equity Bank Kenya Limited.
(d) Kshs.14,500,000/— to Bank account name; D.M. Sugden, bank account No.00868248 at ABSA Bank Kenya Limited (Sterling pounds account).
(e) Cash of Kshs.17,000,000/= payable to Shahib Aly Khan of identity card No.6459314 (Director of Elections, Kenya Africa National Union).
70. The respondents contended that the above disbursement of the sale and purchase price is suspicious and was executed in a manner that meets the threshold of money laundering after the unlawful sale of the public utility by the two officials of Kenya African National Union to private entity. The same contradicts the Agreement for sale quoted sum of Kshs.80,000,000/= and no explanation or amendment evidence of the Agreement for sale now shown at Kshs.90,000,000/— has been provided by the Applicant herein.
71. The deponent further told this court that the preliminary investigations by the Respondent herein have established that the sale of the public utility was fraudulent and is also subject of the Milimani Environment and Land Court Constitutional Petition No. E053 of 2024 where development of the property by Gami Properties has been stayed in the matter.
72. According to the respondents there is urgent need for the Respondent herein to continue with investigations within its functions under Section 35 of the National Police Service Act No.11A of 2011 and establish whether or not monies were remitted to the bank accounts mentioned thereto and the individual person named thereto.
[...truncated]
a). Spent.
b). THAT pending the hearing and determination of this Application, this Honourable Court be pleased to stay the execution, implementation and/or enforcement of the orders issued on 11th August 2025 in Milimani Chief Magistrate's Court Miscellaneous Criminal Application No. E3007 of 2025, in so far as they authorise the Directorate of Criminal Investigations to investigate, inspect, obtain or carry away the Applicant's bank account records, statements and related documents for Account Nos. i. 4703090028 (NCBA Bank, Upper Hill Branch) and ii. 0140000423 (Access Bank PLC, City Hall Way Branch).
c). THAT this Honourable Court be pleased to call for and examine the record of proceedings and the orders issued on 11th August 2025 in Milimani Chief Magistrate's Court Miscellaneous Criminal Application No. E3007 of 2025, for the purpose of satisfying itself as to the correctness, legality, propriety and regularity of the said orders.
d). THAT upon such examination, the Honourable Court be pleased to revise, vacate or set aside the said orders in so far as they authorise the Directorate of Criminal Investigations to investigate, inspect, obtain and carry away the Applicant's bank account records, statements and related documents for the account numbers listed;
e). THAT the Honourable Court be pleased to make any further or other orders as it may deem just and expedient in the interests of justice.
f). THAT the costs of and incidental to this application be provided for.
2. The application is supported by the grounds set out on the face of the application and the annexed Affidavit of JOHN KIPROTICH KIBET.
APPLICANT’S CASE
3. The applicant asserts that this Honourable Court is vested with supervisory jurisdiction under Article 165(6)-(7) of the Constitution, which empowers it to call for the record of any proceedings before a subordinate court or any person, body or authority exercising a judicial or quasi-judicial function, for the purposes of satisfying itself as to the correctness, legality, propriety and regularity of such proceedings or orders, and to make such directions as it considers appropriate to ensure the fair administration of justice.
4. Sections 362 of the Criminal Procedure Code specifically provide for the High Court's revisionary powers.
5. The section provides;- "The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
6. The applicant further placed reliance on Section 364 which empowers this Court, upon such examination, to reverse, vary or set aside such orders where it finds them irregular or improper.
7. The impugned orders issued by the Chief Magistrate's Court at Milimani in Misc. Criminal Application No. E3007 of 2025 were made in criminal investigative proceedings. They are therefore amenable to revision where they have been made without observance of constitutional protections, in excess of jurisdiction, or without consideration of relevant legal safeguards.
8. The applicant contended that the bank accounts targeted in the impugned orders relate exclusively to a civil conveyancing transaction which was the subject of NAIROBI ELC NO. E022 of 2022.
Chronologically:
i 2017 - A Sale Agreement was executed between Kenya African National Union (KANU) and the purchaser for LR No. Nairobi/Block 79/782.
ii 2022 - A dispute arose regarding the property, leading to the filing of ELC No. E022 of 2022.
iii 8th August 2022 - The parties, with representation by advocates (including the Applicant for KANU), recorded a Consent in the ELC matter, fully settling the dispute.
iv Post-Consent - The court adopted the Consent as its order and issued a Decree, which expressly governed the transfer of the property and the payment of the purchase price.
9. The applicant maintains that the transaction in question was not only the product of voluntary agreement between the parties but was also expressly sanctioned by the Environment and Land Court in ELC No. E022 of 2022.
10. According to him, by recording a Consent on 8th August 2022 which was duly adopted as an order of the court and a Decree issued, the parties effectively clothed the transaction with the authority and finality of a judicial determination.
11. The applicant further posited that every monetary transfer related to this transaction was executed strictly in compliance with the express terms of that Consent and Decree.
12. The manner, timing, and recipients of the payments were all dictated by the court-sanctioned settlement and carried out under professional stakeholder arrangements that are standard in conveyancing practice.
13. The applicant further contends that the criminal investigative process now embarked upon seeks, in substance, to re-open and probe a concluded civil transaction whose terms have been implemented under the supervision and authority of the court. This amounts to a collateral attack on a valid court order through a criminal investigative route; a course of action that is both procedurally irregular and constitutionally suspect.
14. The applicant argued that while the Directorate of Criminal Investigations retains the general mandate to investigate crime, such a mandate cannot be used to second-guess, impugn, or undermine the authority of a subsisting court decree in the absence of credible, concrete, and particularised evidence pointing to criminal conduct.
15. According to the applicants, mere suspicion, conjecture, or dissatisfaction with the outcome of a civil settlement cannot justify the fishing expedition into the Applicant's privileged client accounts.
16. It is contended by the applicants that allowing such unrestrained investigations into transactions concluded under judicial sanction would set a dangerous precedent effectively permitting the reopening of settled civil disputes through criminal process, thereby eroding the sanctity of court orders, undermining commercial certainty, and chilling the lawful practice of conveyancing in Kenya.
17. The applicants maintained that they acted solely in their professional capacity as stakeholder advocates for Kenya African National Union (KANU).
18. Further the applicants contend that in the course of conveyancing practice in Kenya, it is standard for the vendor's advocate to receive the purchase price into their client account and disburse it according to the vendor's instructions and contractual terms.
19. The applicants stated that as advocates their duties in this transaction were:
a). Receiving the purchase price into its client account;
b). Disbursing the funds to pay the vendor's liabilities and to remit the balance to the vendor;
20. In doing so the applicants maintained that they were acting in line with the Consent and Decree in ELC No. E022 of 2022 and the Law Society of Kenya Conditions of Sale.
21. The applicants asserted that they had no beneficial or proprietary interest in the funds. The firm acted as a trustee and intermediary, which is a protected function under the Advocates Act.
22. According to the applicants, investigating the Applicant's accounts wholesale sweeps up privileged transactions for other clients and is unrelated to the alleged complaint.
23. The applicants relied on the Advocates Act and Section 134 of the Evidence Act to argue that they are protected from disclosure of any communication between them as advocates and their client made in the course and for the purpose of professional employment, unless the client consents. This includes instructions relating to the handling of funds in a transaction.
24. Further, the applicants cited Section 134(1) of the Evidence Act which provides: "No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment."
25. The applicants contended that the impugned orders authorise the DCI to obtain all transaction records in the Applicant's client accounts over a 5-month period. According to them the vast majority of these records will inevitably relate to unrelated clients and matters, thereby exposing privileged communications and transactions without client consent.
26. The applicants cited the case of Njuguna S. Ndungu v EACC [2018] eKLR where the court held that while investigative bodies may access information, they must respect privilege and cannot indiscriminately access material unrelated to the investigation.
27. The applicant went on to argue that the orders granted are not narrowly tailored to the alleged subject of investigation. Instead, they authorise a general trawl through all the Applicant's client account transactions between 8th August 2022 and 31st December 2022.
28. The applicants urged the court to find that in this case, the DCI could have sought limited orders confined to specific dates and amounts relevant to the alleged transaction. Instead, they obtained open-ended access to all transactions, amounting to a fishing expedition.
29. In the applicants view, if the Respondent genuinely require information, they have the option to seek targeted orders identifying the specific payments linked to the sale in ELC No. E022 of 2022, engage the Applicant directly for production of specific records with necessary redactions to preserve privilege and request information from the vendor directly, or from parties to the civil suit, rather than probing all of the Applicant's unrelated transactions. In the applicants submission such narrower measures would achieve the legitimate investigative aim without undermining constitutional protections and professional privilege.
30. The applicant further contended that the subordinate court's orders are irregular, illegal, and improper in several material respects. First, they disregard the express constitutional safeguards enshrined under Articles 31 and 47 of the Constitution, which guarantee the right to privacy and the right to fair administrative action. By authorising indiscriminate access to the Applicant's client accounts without limitation to the specific subject matter under investigation. In the applicant’s view the orders amount to an unjustifiable intrusion into constitutionally protected spheres.
31. Secondly, the applicant contended that the orders are in direct conflict with Section 134 of the Evidence Act as well as Sections 6 and 60 of the Advocates Act, which codify the principle of advocate-client privilege and protect from disclosure all communications and transactions made in the course of professional employment, except with the client's express consent. The sweeping scope of the orders inevitably captures unrelated and privileged transactions involving other clients, thereby breaching professional secrecy.
32. The applicant however acknowledged that Section 134(2) of the Evidence Act creates a narrow exception to advocate-client privilege, permitting disclosure where the communication is made in furtherance of any illegal purpose, or where the advocate observes, in the course of his employment, any fact showing that a crime or fraud has been committed since the commencement of that employment.
33. The applicant posited that the Respondent has sought to invoke this exception implicitly by alleging that the transaction under investigation may involve money laundering. However, this statutory exception is wholly inapplicable to the present circumstances.
34. According to the applicant the funds in question arose entirely from the sale of LR No. Nairobi/Block 79/782, a transaction that was settled through a Consent recorded before the Environment and Land Court in ELC No. E022 of 2022 and implemented pursuant to a Decree of that court.
35. The Applicant acted solely as stakeholder advocate for the vendor (KANU), receiving and disbursing the purchase price in strict conformity with the terms of the Consent, the Decree, and written instructions from the client. All disbursements were made through traceable banking channels to the parties and third parties identified in the settlement schedule.
36. Further, the applicant contended that the mere allegation of "money laundering" unsupported by any specific, credible evidence showing that the Applicant's communications or handling of funds were in furtherance of an unlawful scheme is insufficient to displace the statutory privilege. Likewise, there is no evidence that the Applicant observed, in the course of acting as stakeholder, any fact indicating that a crime or fraud had been committed.
37. To invoke Section 134(2), the Respondent must point to tangible and particularised evidence linking the advocate's conduct to the alleged offence; in its absence, the privilege remains intact.
38. The applicant urged the court to consider that permitting disclosure on the basis of unsubstantiated allegations would erode the constitutional right to confidential legal representation, invite fishing expeditions into advocates' client accounts, and undermine the independence of the legal profession.
39. The applicant went on to argue that the subordinate court failed to apply the proportionality test required under Article 24 of the Constitution, which demands that any limitation on a right must be reasonable, necessary, and proportionate to the legitimate aim sought to be achieved. The applicant maintained that in this instance, there is no demonstrated necessity for such broad and unrestricted access, particularly when narrower, targeted investigative measures were readily available.
40. According to the applicant the orders have the practical effect of permitting wholesale access to confidential information unrelated to the transaction under scrutiny, thereby enabling a circumvention of both statutory and constitutional privilege protections without adequate or compelling justification.
41. The applicants contend that taking into account all the matters raised by them, they have demonstrated a clear departure from constitutional, statutory, and evidential requirements, and cumulatively meet the threshold for this Honourable Court's intervention under Section 362 of the Criminal Procedure Code to review, revise, and set aside orders that are irregular, illegal, or otherwise improper.
RESPONDENNTS CASE
42. The respondents are opposed to the application and vide an affidavit sworn by No.80936 DETECTIVE SERGEANT NICOLAUS OSURI OTIENO stationed at DCI Headquarters they deposed that they are investigating a case of; Conspiracy to defraud contrary to section 317 of the Penal Code and fraudulent disposal of trust property contrary to section 327(1) of the Penal Code, Chapter 63 Laws of Kenya among other offences vide Directorate of Criminal Investigations (DCI) Headquarters inquiry file No.51 of 2024.
43. T he Respondent launched investigations following a complaint made to the DCI by Mr. Isaac Irungu on behalf of Buruburu Phase 5 Community to the Applicant that Kenya African National Union (KANU) officials being the Chairman and the Secretary General, Hon. Senator Gideon Kipsielei Towett Moi and Hon. Nicholas Kiptoo Arap Korir Alias Nick Salat respectively, had obtained registration of a parcel of land known as Land Reference No.79/782 (formerly LR. No.209/11046) measuring 0.4013 Hectares situated their Estate and existed thereto Tom Mboya Memorial Hall for public use.
44. The deponent averred that John Kiprotich Kibet was the Advocate who handled the conveyance on the subject property between Kenya African National Union (KANU) a political party and Gami Properties Limited.
45. The respondents asserted that i t is the fraudulent sale of the public land which operated as Tom Mboya Memorial Social that is subject of investigation by the Respondent herein.
46. The investigation officer deposed that the respondents believe that the Applicant dishonesly and intentionally chose not to make a full material disclosure being an Advocate of the High Court of Kenya and an officer of the Court of there being a status quo orders issued by Hon. Justice M. D. Mwangi on 22" July, 2024 in ELC case No. E053 of 2024 ceasing any further construction at the property and the petitioners thereto not to demolish the Tom Mboya Memorial Social Hall therein
47. The respondent sought to rely on the provisions of Section 193A of the Criminal Procedure Code, Cap.75 Laws of Kenya which permits concurrent civil and criminal proceedings solely on the basis of a pending civil case based on similar facts and circumstances and sought to persuade this court that a court cannot stop investigations or prosecution solely on the basis that there is a parallel pending civil suit.
48. According to the investigation officer, Mr. John Kiprotich Kibet, the Applicant herein is again dishonest with this Honourable Court by technically choosing not to provide actual material evidence in his possession as to how the Applicant instructed the purchaser's Advocate that is Kipkenda & Company Advocate to pay out the money to persons of interest in a clandestine manner for concealment of in a manner trying to beat the anti-money laundering measures.
49. The deponent went further to aver that the investigations were aimed at establishing whether or not the said money was received in the Applicants clients account and if at all it was meant to finance terrorism activities or not or equally if this was a calculated way of tax evasion. Hence it is for these reasons that the Respondent herein should be allowed to carry it constitutional and lawful mandate.
50. The respondents averred that it is a fact that clear instructions from the Applicant herein for a sum of Kshs.48,000,000/= and 3Kshs.5,000,000/= to be deposited to their bank account numbers; 4703090028 and 0140000423 in the name of Oruenjo Kibet & Khalid Advocates and held at NCBA Bank Kenya Limited, Upper Hill Branch and Access Bank PLC, City Hall Way Branch respectively.
51. According to the respondents, the Court Orders in E022 of 2022, which the Applicant has mentioned is subject of ELC Case No. E053 of 2024 that has stayed its execution hence status quo.
52. The respondents urged this court to consider that criminal culpability against any person or entity can only be determined upon evaluation of material evidence, facts in issue which herein are land transaction instruments and financial records in the said conveyance and which are not limited to the Applicants account and the person of Anthony Michael Sugden, D. M. Sugden who allegedly received sum amounts of Kshs.5,500,000/= and Kshs.14,500,0001= respectively and Shahib Aly Khan who allegedly received a sum of Kshs.17,000,000/= in cash.
53. The respondents further urged this court to find that the impugned Court Orders were issued by a competent court in Milimani Chief Magistrates' Court Miscellaneous Criminal Application No.E3007 of 2025. The orders are thus regular, lawful, proper and valid.
54. The respondents went on to argue that Honourable Court also considered the interests of justice in that the property in question, having been declared a public land/ utility by all the relevant Departments of the State Department for Lands and Physical Planning, the Department mandated by law to register all interests in land issued.
55. The investigation officer further averred that during investigations the Respondent herein he had interacted with the offices of the Chief Land Registrar, the Director Land Administration, the Director of Surveys and Director Physical Planning in the State Department for Lands and Physical Planning where several documentary evidential materials have been retrieved.
56. The documents include;-
(a) Land register
(b) Lease
(c) Letter dated 24th April, 2018
(d) Certificate of Title in the name of Kenya Africa National Union
(e) Application for registration of Transfer
(f) Valuation Report
(g) Transfer of Lease
(h) Certificate of Registration/Incorporation of Kenya Africa National Union and GAMI Enterprise, and the respective PIN Certificates
(i) ID's and PIN Certificates for the Directors
(j) Letter from the Ethics & Anti-Corruption dated 19th March,2024
(k) Letter from Commissioner of Lands dated 20th August, 1999.
(I) Correspondence file contents.
(m)The Part Development Plan No. 42/28/93/31 Approved Development Plan No. 389.
(n) The Authority to prepare the PDP was granted by the Commissioner of Lands vide letter Ref 93104/11/ (41) dated 28th June,1993.
(o) The Commissioner of Lands, The Director of Surveys and the Director of City Planning vide letter Ref PPD/42/28/DC/176 dated 1 s' September,1993.
(p) The Part Development Plan No. 42/28/86/14 Approved Development Plan No. 309 and
(q) The content of computation file from the Director of Surveys.
57. The respondents further averred that the investigation by the deponent have established that said parcel of land was reserved for the Ministry of Public Works for development of a community hall on 26th June, 1957 through an order of the then Governor.
58. Further, the records held by the Commissioner for lands confirmed on l 6 May, 1966, the Permanent Secretary, Office of the President applied to the Commissioner of lands to have the site handed over to KANU following a Cabinet decision to have the land leased to KANU for a period of three years from 1976.
59. Upon expiry of lease KANU requested for renewal in January, 1985 and a letter of allotment was issued on 12th April, 1985 with special condition that the land and the building shall always be used for social hall for a period of 99 years.
60. According to the investigation officer on 25th April, 2018 a lease document in respect of the said land parcel was received at the Nairobi Registry for registration and the same was recorded as Day Book Number 5605 as a new grant lease from the National Government to Kenya African National Union (KANU) as the Lessee.
61. The property is for a leasehold term of 99 years from 1st May, 1985 attraction an Annual Rent of Peppercorn (If demanded). The lease was executed by Hon. Gideon Moi and Hon, Nick Salat as Chairman and Secretary of Kenya African National Union respectively.
62. Upon receipt of the lease, a certificate of lease in favour of Kenya African National Union (KANU) was issued on 25th April, 2018 being the date of presentation. The said lease document was processed under Correspondence File Ref. No.60668 and a forwarding letter dated 24th April, 2018 referenced as Ref. 60668/82.
63. On 22nd February, 2021, a transfer between Kenya African National Union (Transferor) and GAMI Enterprises Limited (Transferee) at a consideration of Kshs.80,000,000/= was received under Day Book Number 246 for registration transferring the property to Gami Properties Limited. However, from the letter of instructions, the Applicant herein and other persons mentioned in the said letter later received a total sum of Kshs.90,000,000/= in the said sale.
64. The investigation officer further asserted that the transfer was executed by Hon. Gideon Moi and Hon. Nick Salat on behalf of the transferor and Ashivin Ramji Manji & Bharat Ramji Manji on behalf of the Transferee. Accompanying the transfer were for Registration, Valuation Report, stamp duty payment receipt, ID & PIN Certificates of the parties and Certificates of Registration/Incorporation of the entities.
65. Further, vide a letter Ref. NBI/NAIROBUBLOCK/79/782 dated 23" 1 May, 2024 GAMI Enterprises Limited were issued notice to surrender the certificate of lease for cancellation which they declined and moved to court in ELC Petition No. E053 of 2024 wherein they sued the Cabinet Secretary for Lands, Public Works and Urban Development, The Chief Land Registrar, The Attorney General and Kenya Africa National Union which matter is pending before ELC Court.
66. The respondents contended that recalling of the Certificate of Lease was based on the fact that the processing of the Lease and Title were irregularly done as land and building were earmarked for Social Hall which in its nature is for public utility.
67. On 28th July, 2025, the Respondent summoned the Directors of Gami Properties Limited that is, Mr. Ramji Manji Shamji, Mr. Bharat Ramji Manji, Mr. Ashvin Ramji Manji and Mr. Harish Ramji Patel for interviews and statements recording in the matter. However, through their Advocates, Kipkenda and Company Advocates they indicated that only one of the Directors namely Mr. Bharat Ramji Manji is well versed with the facts of the matter and requisite in the making of a statement in the matter as a person who exclusively participated in the purchase of the property from KANU.
68. The respondent further stated that Kipkenda and Company Advocate furnished the Respondent herein with copies of the following copies of documents;-
(a) Offer of purchase of Land Title number NAIROBI BLOCK 79/782 dated 28th April, 2017 letter by Gami Properties Limited to Kenya Africa National Union.
(b) Letter dated 12th May, 2017 by Kenya Africa National Union to Gami Properties Limited accepting the above offer to purchase the property.
(c) Letter dated 18th May, 2017 by Marrirmoi, Chemurgor & Company Advocates acting for the client, Kenya Africa National Union to Gami Properties Limited accepting the above offer to purchase the property.
(d) To Agreement for sale of the property in respect of the property, Land Title number NAIROBI BLOCK 79/782 dated 26th May, 2017 between Kenya Africa National Union and Gami Properties Limited for a sum of Kshs.80,000,000/= drawn by Marrirmoi, Chemurgor & Company Advocates.
(e) Consent to transfer for in respect of the property, Land Title number NAIROBI BLOCK 79/782 dated 27th April, 2018 by Kenya African National Union.
(f) Official search Certificate dated 9th May, 2018 on the property known as Title number NAIROBI BLOCK 79/782 in the name of Kenya Africa National Union.
(g) Certificate of Lease Title number NAIROBI BLOCK 79/782 dated 25th April, 2018 in the name of Kenya Africa National Union.
(h) Transfer of lease for Title number NAIROBI BLOCK 79/782 dated 2" February, 2021 from Kenya Africa National Union to Gami Properties Limited drawn by Kipkenda and Company Advocates. (Annexed herein and marked "N0012"
(i) Certificate of Lease Title number NAIROBI BLOCK 79/782 dated 22" February, 2021 in the name of Gami Properties Limited.
(j) Official search Certificate dated 24th February, 2021 on the property known as Title number NAIROBI BLOCK 79/782 in the name of Gami Properties Limited.
69. Further, by a letter dated 8th August, 2022 by Oruenjo Kibet and IChalid Advocates to Kipkenda & Company Advocates gave instructions in respect remittance of the sale and purchase price of the property as a sum of Kshs.90,000,000/= specific bank accounts and cash as follows;-
(a) Kshs.48,000,000/= to Bank account name; Oruenjo Kibet & Ithalid Advocates, bank account No.4703090028 at NCBA Bank, Upper Hill Branch.
(b) Kshs.5,000,000/= to Bank account name; Oruenjo Kibet & Khalid Advocates, bank account No.0140000423 at Access Bank PLC, City Hall Way Branch.
(c) Kshs.5,500,000/= to Bank account name; Anthony Michael Sugden, bank account No.1250262658632 at Equity Bank Kenya Limited.
(d) Kshs.14,500,000/— to Bank account name; D.M. Sugden, bank account No.00868248 at ABSA Bank Kenya Limited (Sterling pounds account).
(e) Cash of Kshs.17,000,000/= payable to Shahib Aly Khan of identity card No.6459314 (Director of Elections, Kenya Africa National Union).
70. The respondents contended that the above disbursement of the sale and purchase price is suspicious and was executed in a manner that meets the threshold of money laundering after the unlawful sale of the public utility by the two officials of Kenya African National Union to private entity. The same contradicts the Agreement for sale quoted sum of Kshs.80,000,000/= and no explanation or amendment evidence of the Agreement for sale now shown at Kshs.90,000,000/— has been provided by the Applicant herein.
71. The deponent further told this court that the preliminary investigations by the Respondent herein have established that the sale of the public utility was fraudulent and is also subject of the Milimani Environment and Land Court Constitutional Petition No. E053 of 2024 where development of the property by Gami Properties has been stayed in the matter.
72. According to the respondents there is urgent need for the Respondent herein to continue with investigations within its functions under Section 35 of the National Police Service Act No.11A of 2011 and establish whether or not monies were remitted to the bank accounts mentioned thereto and the individual person named thereto.
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