1. The application that is coming up for determination is the one Notice of Motion dated 19th June, 2025 wherein the Applicant seeks the following orders:-
1) An Order Of Certiorari to remove into the High Court and quash the 1st, 2nd and 3rd Respondent’s decision to charge the Ex-Parte Applicant on the alleged offence of forgery in regard to Land Parcel No. Ruiru Kiu Block 6/537 situated at Ruiru Sub-county, Kiambu County.
2) An Order Of Prohibition be issued and be directed at the 1st, 2nd and 3rd Respondents, their Investigators, Officers, Police Officers, CID Officers and/or any other Person(s) and/or authorities acting on their behalf and/or on the instructions of the 1st, 2nd and 3rd Respondents be stopped from arresting, arraigning, Charging and/or prosecuting the Exparte Applicant, in any manner whatever and whatsoever on the alleged offence of forgery and/or any Other offence in regard to Land Parcel No. Ruiru Kiu Block 6/537 situated at Ruiru Sub-county, Kiambu County.
3) The Court be at liberty to make any such further and other Orders as it deem fit to meet the end of justice.
4) THAT costs of this application be provided for.
2. It is the applicant’s case that on 14th December 2003 his late father entered into a land sale agreement with one James Muchachi Mbugua for the purchase of Plot NO. 87 situated at Tinganga Ruiru Block 6 (Gatharaini).
3. It is further his case is that his father paid the consideration and took possession of the land in the year 2007 which he then bequeathed to the him and he has since been utilizing the land.
4. In June/July 2021, the Director of Survey announced that they would survey all parcels of land situated in Githurai Kimbo so as to provide the owners of those parcels of land with Title Deeds.
5. After the survey he was assigned, a new number being RUIRU KIU BLOCK 637. Subsequently on 5th March 2022, he was issued with a Lease by the Ministry of Lands for land parcel No. RUIRU/KIU/BLOCK 637.
6. Thereafter, on 10th June 2022, he was issued with Certificate for Lease for RUIRU/KIU/BLOCK 6/537.
7. To his consternation, on 4th July 2023, one Daniel Nduhiu Wagita and James Mboga being accompanied by hired goons under the Police protection from Kiu Police Post descended on his parcel land No. RUIRU/KIU/BLOCK 637 and unlawful, illegally and without colour of right demolished the barbered wire fence and uprooted fencing posts.
8. On 18th July 2023 he filed moved to Ruiru Law Courts and filed Case No.MCELC/E167/2023 against Daniel Nduhiu Wagita and James Mboga culminating in a Judgement in favour of the Exparte Applicant that was issued on 26th February 2024 followed by a decree.
The court found as follows: -
1) A declaration that the plaintiff is the registered and absolute owner and proprietor of all that land LR. No. Ruiru, Kit, Block 6/537.
2) A permanent injunction is issued restraining the 1st and 2nd defendants, their agents, employees, servants, servants, assignees and or any other relatives from interfering, alienating, destroying, digging, cultivating, tilting, using, misusing, depleting, intermeddling, grabbing, possessing, claiming, entering, trespassing, demolishing and or flattening the plaintiff’s fence and or utilizing in any way whenever and whatever all that land LR. No. Ruiru Kiu Block 6,637.
9. The applicant believes that the purported complainant and the Respondents herein are out to revenge dearly due to his success in MCELC Case No. E167 of 2023 Ruiru Law Courts.
10. On 2nd September 2024, he was summoned to Kasarani DCI on a first information report made by one Daniel Nduhiu Wagita that he obtained Land Parcel No. RUIRU/KIU/BLOCK 6/537 illegally and unlawfully.
11. On the said 2nd September 2024, the Investigating Officer having the conduct of the matter refused to hear his version of the story and even refused to grant him time to produce ownership documents. He was instead bonded to appear in Court on 9th September 2024.
12. It is his case that he has visited Kasarani Police station severally but the Respondents have refused to consider his documentation.
13. Driven by the frustration he wrote a letter to the Interested Party complaining of biasness and skewed investigations in view to prosecute him.
14. The Interested Party having received the letter called for the Police file from the complainants of which the Respondents have refused to surrender to date.
15. He argues that the investigation against him is skewed, malicious and a violation of his freedoms.
16. He argues that the purported complainant and the Respondents herein have not even attached any document to demonstrate and/or to support his/her complaint.
17. He argues that the purported complainant shopped for a police station which was far from the land,the dispute site, and where he can manipulate with a view of getting his way and as a result landed at Kasarani Police Station, a place where the purported complainant and the Respondent executed their ulterior motives.
18. He relies in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, where it was held that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
19. It is his case that the investigations constitute an abuse of the process since they are not carried out independently, good faith and without malice.The investigations are carried under the instructions from above in a well selected Police Station and investigator.
20. Article 165 (6) of the Constitution of Kenya provides as follows: -
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” he believes the Court has supervisory jurisdiction over them.
21. It is further his case that Article 165 (7) of the Constitution of Kenya provides as follows: -
For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
22. Article 232 (1) of the Constitution of Kenya lays down the values and principles of public service which includes: -
“a) high standards of professional ethics; (b) efficient, effective and economic use of resources; (c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making; (e) accountability for administrative acts and (f) transparency and provision to the public of timely, accurate information,……..”
23. He argued that the Respondents exceeded the bounds of their genuinely free discretion and as such their acts are ultra vires.
24. He maintains strongly that the Respondent's actions are tainted with irregularities in such a manner that it committed an error of law in the process of investigating the complaint which was contrary to the provisions of the law.
25. The decision taken or acts done by the Respondents are of such a nature that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision.
26. He argues that the Respondents did not act fairly in the sense that there was a non-observance of the rules of natural justice.
27. In the end it is his case that the Respondents have improper motive and failed to exercise discretion in their investigations as well as abusing the rules of national justice.
The Applicants Submissions
28. He submits that on 14th December 2003, the Ex-parte Applicant’s biological father namely OSORO OTERO SAMSON (now deceased) bought land from one James Mbugua Plot No. 87 which was exercised from L.R. No. 8867 situated at Githurai Kimbo within Ruiru Sub-County, Kiambu County.
29. The biological father of the Ex-parte Applicant executed a sale agreement with James M. Mbugua in regard to the purchase of the property.
30. On 2nd September 2024, the Ex-Parte Applicant was summoned to Kasarani DCI on a verbal first information report purportedly made by one Daniel Nduhiu Wagita on how Land Parcel No. Ruiru/Kiu/Block 6/537 was obtained. The verbal allegations were that the Ex-Parte Applicant obtain the Title through forgery.
31. On the said 2nd September 2024, the Ex-parte Applicant met the Investigating Officer by the name Benjamin Wangila Makokha at their offices at Kasarani.
32. Despite all efforts being made by the Applicant, the said Investigating Officer blatantly refused to accord the Ex-Parte Applicant audience and/or an opportunity to produce his documents.
33. The Ex-parte Applicant was detained in a solitary confinement police cell from 08:00 O’clock in the morning upto 07:00 O’clock in the evening. The Ex-parte Applicant was not provided lunch, water nor an opportunity to take his lunch time medicines.
34. The Ex-parte Applicant was released on a Cash bail of Kshs.50,000/= and a cash bail receipt was issued. From the cash bail, the offence indicated was forgery and the Ex-parte Applicant was directed to go to Court on 9th September 2024.
35. On 6th September 2024, the Ex-parte Applicant bond was extended to 2nd October 2024 and further extended to 14th October 2024.
36. The reason for extension of the Police bond was that the Police officers at Kasarani Police Station were waiting orders from above, a clear testimony that Kasarani Police Station had no control over the matter.
37. The Respondents have not attached the documents to this Honourable Court. The purported statement by Duncan Wanyoike in regard to the disputed parcel of land was not shown to the Ex-parte Applicant to the Police Station nor was it attached to these proceedings.
38. Lodging a complaint to ODPP is not to malign investigations but the lawful procedure provided by the law to raise a complaint against the Respondents and in extension, the Police Officers.
39. ODPP under the law does not meddle with investigations as alleged but they have powers to ensure that the 1st, 2nd and 3rd Respondents follow the law.
40. He submits that the Respondents have again come up with other charges being giving false information to a public servant and obtaining land registration by false pretense.
41. He submits that the offence of giving false information to a public servant, nowhere any public servant recorded a statement to support the same.
42. On obtaining land registration by false presence, no evidence has been submitted to this Honourable Court to support the purported charge nor is there any investigation file.
43. The Respondents failed to disclose the Complainant, the Complaint and the alleged Forged document(s).
44. He submits that the Ex-parte Applicant averred that upon answering Summons on 2nd September 2024 he requested for disclosure of the complainant.
45. The Respondents failed to disclose who the Complainant was. This offends the right to a fair hearing as enshrined under Article 50 Rule (2)(b) of the Kenyan Constitution, 2010. Failure to disclose the complaint and the Complainant offends the Provisions of Section 47 of the Constitution and the Fair Administrative Actions Act.
46. Article 47 of the Constitution state as follows: -
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
47. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
48. Parliament shall enact legislation to give effect to the rights in Clause (1) and that legislation shall: -
a. Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
b. Promote efficient administration.
49. Section 4 Fair Administrative Actions Act. No. 4 of 2015 thereof provided that:-
i. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
ii. Every person has the right to be given written reasons for any administrative action that is taken against him.
50. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision.
a. Prior and adequate notice of the nature and reasons for the proposed administrative action.
b. An opportunity to be heard and to make representations in that regard.
c. An opportunity to be heard and to make representations in that regard.
d. Notice of a right to a review or internal appeal against an administrative decision, where applicable.
e. A Statement of reasons pursuant to Section 6;
f. Notice to the right to legal representation, where applicable
g. Information, materials and evidence and evidence to be relied upon in making the decision or taking the administrative action.
51. The administer shall accord the person against whom administrative action is taken an opportunity to: -
a. Attend proceedings, in person or in the company for an expert of his choice.
b. Be heard.
c. Cross-examine persons who give adverse evidence against him.
d. Request for an adjournment of the proceedings where necessary to ensure a fair hearing.
52. Nothing in this Section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.
53. Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.
54. Reliance is placed in the case of James Opiyo Wandayi v Kenya National Assembly &2 others [2016] eKLR this Court, Odunga J, opined as follows: -
“In my view, Article 47 of the Constitution is now emphatic on the fairness of administrative action. The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems, the focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualized discretion; from social controversy to commercial self- policy to interest; and anything in between, As a result, judicial review has significantly improved the quality of decision making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.”
55. He also relies on the Court of Appeal in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR held as follows: -
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
56. The Respondents declined to disclose the particulars of offence including the purported forged documents or the intended Exhibits.
57. He further submit that investigation cannot be complete without the statement of the Ex-parte Applicant.The Respondents cannot evaluate the complaint unless they hear the story of the Ex-parte Applicant.
58. Investigations cannot be complete unless both parties the Complainant and the accused are heard so as the Respondents to make a decision to charge.
59. The Respondents are and were irrational and unreasonableness in taking their decision to charge the Ex-parte Applicant.
60. The Respondents did not address the facts and the law before them. Had it they addressed the facts and the law; they could have arrived at a different decision.
61. The Respondents failed to act fairly in taking the decision to charge the Ex-parte Applicant. The unfairness was that of non-observance of the rules of natural justice. The Respondents acted with procedural fairness and leaned towards the purported complainant. Procedural rules of investigation as laid down by the stature were not followed.
62. In the case of Ugandan case of Pastoli v Kabale District Local Government Council & Others, (2008) 2 EA 300 at pages 303 to 304 thus: -
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph 'E'.
Procedural impropriety is when there is failure to act fairly on the part of the decision- making authority in the process of taking a decision. The unfairness may be in non- observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to decide. (AlMehdawi v Secretary of State for the Home Department [1990] AC 876).'
63. In the case of Patrick NgunjiriMuiruri v DPP [2017] eKLR, regarding the standard deployed by the Court to scrutinize the DPP’s use of his charging authority: -
“The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the Court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.”
64. He submits that The Court declared him as the registered and absolute owner and proprietor of all that land No. L.R. No. Ruiru Kiu Block 6/537.
65. In R v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, the Court further expounded on principle in the following words: -
It is for this reason that while the DPP has complete discretion and full autonomy to determine whether and against whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has a prosecutable case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp Kipngeno Arap Ngeny (High Court Civil App No 406 of 2001), the Court stated thus:
A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.
66. Article 157(10) of the Constitution guarantees the independence of the DPP but mandates that the power to prosecute must be exercised in the interest of justice and to prevent abuse of the legal process (Article 157(11)).
67. He filed a complaint with the ODPP on 5th September 2025.To date, the ODPP have not acted on the complaint and/or addressed or prevent the abuse of the legal process as enshrined under Article 157 sub rule (10) and (11).
68. The intended prosecution of the Ex-parte Applicant is based on fabricated or unclear evidence. This is an abuse of legal process and this is the reason the Respondents did not attach the purported complainant statement,exhibits, ownership documents of the disputed parcel of land or any other document at all including the purported forged documents.
69. In the case of Bernard Mwikya Mulinge v Director of Public Prosecutions & Others [2019] KLR, the Court held that where there is a prima facie case of prosecutorial abuse, the burden shifts to the DPP to justify the decision to prosecute. In this case, the Respondents have failed to convincingly justify the charges against the Petitioners.
70. The Respondents and the Interested Party are prosecuting the Exparte Applicant on the basis of the success in Civil Suit No. MCELC No. E167 of 2023 -Ruiru.
71. The Respondents are not sure of the charges they intend to prefer against the Ex-parte Applicant. At one point, they state forgery in the Cash bail receipt whereas on the other hand, under Paragraph 23 of the Replying Affidavit they state giving false information to a public servant and obtaining false information by false pretence. It is not even disclosed who is the public servant.
72. The Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & Hon. Attorney-General vKenya Commercial Bank Limited & Others [2013] KECA 182 held that:-
“Courts must intervene where prosecution is used as a tool for harassment or political persecution.” The Ex-parte Applicant has provided evidence suggesting that the charges against him were fabricated, as there are contradictions in the nature of the alleged offence committed.
73. In Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & Others (Petition 38 of 2019) [2021] KESC 32 (KLR), the Supreme Court emphasized that:-
“Prosecutorial discretion should not be exercised to achieve ulterior motives or to suppress political dissent.”
74. In Diamond Hasham Lalji (supra), the Court of Appeal held that:-
“While prosecutorial discretion is broad, it is subject to judicial review if exercised in bad faith.”
75. Section 24 of the National Police Service Act No 11 A of 2011 sets out functions of the Kenya Police Service as being the-
(a) Provision of assistance to the public when in need;
(b) Maintenance of law and order;
(c) Preservation of peace;
(d) Protection of life and property;
(e) Investigation of crimes;
(f) Collection of criminal intelligence; (g) Prevention and detection of crime;
(g) Apprehension of offenders;
(h) Enforcement of all laws and regulations with which it is charged; and
(i) Performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
76. On the issue whether the Court has Powers to hear this Judicial Review Application. He places reliance in the case of R v Kenya Revenue Authority Exparte Yaya Towers Ltd [2008] eKLR, the Court enlisted grounds for Judicial Review as abuse of discretion irrationally, excess of jurisdiction, improper motives, failure to exercise discretion, abuse of the rules of natural justice, fettering of discretion or error of the law.
77. For the Court to issue a writ remedy it must be satisfied that the act or omission complained of was arrived at illegally, unreasonably, improperly, irrationally, biased, in bad faith, or otherwise ultra vires hence a breach of the principles of natural justice.
78. In the case of Captain Geoffrey Kuguya Murungi vs AG Misc Civil Application No 293 of 1993, the Court stated that:-
“Certiorari deals with the decision already made such an order (certiorari) can only be issued where the court considers that the decision under attack was reached without or in excess of jurisdiction or in breach of the rules of natural justice or contrary to law.
79. In the case of Kenya Examination Council v R Exparte Geoffrey Gathenji Njoroge and 9 Others [1997] eKLR the Court held that: -“Where a decision has been made, whether in excess or lack of Jurisdiction or whether in violation of the rules of natural justice, an order of prohibition will not be efficacious against the decision so made. Prohibition cannot quash a decision that has already been made; it can only prevent the making of a contemplated decision”.
The Respondents’ case
80. In opposing the application, The ODPP on his part relies on the affidavit of an officer who depones that he sought the advice of the State Counsel of the office of the Attorney General who is in conduct of this matter and whose advise he verily believes to be true.
81. The Respondents submit that this is a Land Fraud matter in regards to Land Parcel Number Githurai/Ting’ang’a Co. Limited initially registered as LR No. 8867 Plot No. E86 and now registered as Ruiru/Kiu Block 6/537.
82. Section 35 of the National Police Service Act provides that; “The Directorate shall—
a. Collect and provide criminal intelligence;
b. Undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;
c. Detect and prevent crime;
d. Apprehend offenders;
e. Maintain criminal records;
f. Conduct forensic analysis;
g. Execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;”
83. The ex parte Applicant has failed to demonstrate that the Respondents acted unlawfully, irrationally, or in breach of any constitutional or statutory provisions in undertaking the impugned criminal investigations and/or contemplated prosecution.
84. Reliance is placed on the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR where it was held that:-
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”
85. It further places reliance in the case of Republic v Attorney General & 4 others ex- parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR when he stated that:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did
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1) An Order Of Certiorari to remove into the High Court and quash the 1st, 2nd and 3rd Respondent’s decision to charge the Ex-Parte Applicant on the alleged offence of forgery in regard to Land Parcel No. Ruiru Kiu Block 6/537 situated at Ruiru Sub-county, Kiambu County.
2) An Order Of Prohibition be issued and be directed at the 1st, 2nd and 3rd Respondents, their Investigators, Officers, Police Officers, CID Officers and/or any other Person(s) and/or authorities acting on their behalf and/or on the instructions of the 1st, 2nd and 3rd Respondents be stopped from arresting, arraigning, Charging and/or prosecuting the Exparte Applicant, in any manner whatever and whatsoever on the alleged offence of forgery and/or any Other offence in regard to Land Parcel No. Ruiru Kiu Block 6/537 situated at Ruiru Sub-county, Kiambu County.
3) The Court be at liberty to make any such further and other Orders as it deem fit to meet the end of justice.
4) THAT costs of this application be provided for.
2. It is the applicant’s case that on 14th December 2003 his late father entered into a land sale agreement with one James Muchachi Mbugua for the purchase of Plot NO. 87 situated at Tinganga Ruiru Block 6 (Gatharaini).
3. It is further his case is that his father paid the consideration and took possession of the land in the year 2007 which he then bequeathed to the him and he has since been utilizing the land.
4. In June/July 2021, the Director of Survey announced that they would survey all parcels of land situated in Githurai Kimbo so as to provide the owners of those parcels of land with Title Deeds.
5. After the survey he was assigned, a new number being RUIRU KIU BLOCK 637. Subsequently on 5th March 2022, he was issued with a Lease by the Ministry of Lands for land parcel No. RUIRU/KIU/BLOCK 637.
6. Thereafter, on 10th June 2022, he was issued with Certificate for Lease for RUIRU/KIU/BLOCK 6/537.
7. To his consternation, on 4th July 2023, one Daniel Nduhiu Wagita and James Mboga being accompanied by hired goons under the Police protection from Kiu Police Post descended on his parcel land No. RUIRU/KIU/BLOCK 637 and unlawful, illegally and without colour of right demolished the barbered wire fence and uprooted fencing posts.
8. On 18th July 2023 he filed moved to Ruiru Law Courts and filed Case No.MCELC/E167/2023 against Daniel Nduhiu Wagita and James Mboga culminating in a Judgement in favour of the Exparte Applicant that was issued on 26th February 2024 followed by a decree.
The court found as follows: -
1) A declaration that the plaintiff is the registered and absolute owner and proprietor of all that land LR. No. Ruiru, Kit, Block 6/537.
2) A permanent injunction is issued restraining the 1st and 2nd defendants, their agents, employees, servants, servants, assignees and or any other relatives from interfering, alienating, destroying, digging, cultivating, tilting, using, misusing, depleting, intermeddling, grabbing, possessing, claiming, entering, trespassing, demolishing and or flattening the plaintiff’s fence and or utilizing in any way whenever and whatever all that land LR. No. Ruiru Kiu Block 6,637.
9. The applicant believes that the purported complainant and the Respondents herein are out to revenge dearly due to his success in MCELC Case No. E167 of 2023 Ruiru Law Courts.
10. On 2nd September 2024, he was summoned to Kasarani DCI on a first information report made by one Daniel Nduhiu Wagita that he obtained Land Parcel No. RUIRU/KIU/BLOCK 6/537 illegally and unlawfully.
11. On the said 2nd September 2024, the Investigating Officer having the conduct of the matter refused to hear his version of the story and even refused to grant him time to produce ownership documents. He was instead bonded to appear in Court on 9th September 2024.
12. It is his case that he has visited Kasarani Police station severally but the Respondents have refused to consider his documentation.
13. Driven by the frustration he wrote a letter to the Interested Party complaining of biasness and skewed investigations in view to prosecute him.
14. The Interested Party having received the letter called for the Police file from the complainants of which the Respondents have refused to surrender to date.
15. He argues that the investigation against him is skewed, malicious and a violation of his freedoms.
16. He argues that the purported complainant and the Respondents herein have not even attached any document to demonstrate and/or to support his/her complaint.
17. He argues that the purported complainant shopped for a police station which was far from the land,the dispute site, and where he can manipulate with a view of getting his way and as a result landed at Kasarani Police Station, a place where the purported complainant and the Respondent executed their ulterior motives.
18. He relies in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, where it was held that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
19. It is his case that the investigations constitute an abuse of the process since they are not carried out independently, good faith and without malice.The investigations are carried under the instructions from above in a well selected Police Station and investigator.
20. Article 165 (6) of the Constitution of Kenya provides as follows: -
“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.” he believes the Court has supervisory jurisdiction over them.
21. It is further his case that Article 165 (7) of the Constitution of Kenya provides as follows: -
For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.”
22. Article 232 (1) of the Constitution of Kenya lays down the values and principles of public service which includes: -
“a) high standards of professional ethics; (b) efficient, effective and economic use of resources; (c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making; (e) accountability for administrative acts and (f) transparency and provision to the public of timely, accurate information,……..”
23. He argued that the Respondents exceeded the bounds of their genuinely free discretion and as such their acts are ultra vires.
24. He maintains strongly that the Respondent's actions are tainted with irregularities in such a manner that it committed an error of law in the process of investigating the complaint which was contrary to the provisions of the law.
25. The decision taken or acts done by the Respondents are of such a nature that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision.
26. He argues that the Respondents did not act fairly in the sense that there was a non-observance of the rules of natural justice.
27. In the end it is his case that the Respondents have improper motive and failed to exercise discretion in their investigations as well as abusing the rules of national justice.
The Applicants Submissions
28. He submits that on 14th December 2003, the Ex-parte Applicant’s biological father namely OSORO OTERO SAMSON (now deceased) bought land from one James Mbugua Plot No. 87 which was exercised from L.R. No. 8867 situated at Githurai Kimbo within Ruiru Sub-County, Kiambu County.
29. The biological father of the Ex-parte Applicant executed a sale agreement with James M. Mbugua in regard to the purchase of the property.
30. On 2nd September 2024, the Ex-Parte Applicant was summoned to Kasarani DCI on a verbal first information report purportedly made by one Daniel Nduhiu Wagita on how Land Parcel No. Ruiru/Kiu/Block 6/537 was obtained. The verbal allegations were that the Ex-Parte Applicant obtain the Title through forgery.
31. On the said 2nd September 2024, the Ex-parte Applicant met the Investigating Officer by the name Benjamin Wangila Makokha at their offices at Kasarani.
32. Despite all efforts being made by the Applicant, the said Investigating Officer blatantly refused to accord the Ex-Parte Applicant audience and/or an opportunity to produce his documents.
33. The Ex-parte Applicant was detained in a solitary confinement police cell from 08:00 O’clock in the morning upto 07:00 O’clock in the evening. The Ex-parte Applicant was not provided lunch, water nor an opportunity to take his lunch time medicines.
34. The Ex-parte Applicant was released on a Cash bail of Kshs.50,000/= and a cash bail receipt was issued. From the cash bail, the offence indicated was forgery and the Ex-parte Applicant was directed to go to Court on 9th September 2024.
35. On 6th September 2024, the Ex-parte Applicant bond was extended to 2nd October 2024 and further extended to 14th October 2024.
36. The reason for extension of the Police bond was that the Police officers at Kasarani Police Station were waiting orders from above, a clear testimony that Kasarani Police Station had no control over the matter.
37. The Respondents have not attached the documents to this Honourable Court. The purported statement by Duncan Wanyoike in regard to the disputed parcel of land was not shown to the Ex-parte Applicant to the Police Station nor was it attached to these proceedings.
38. Lodging a complaint to ODPP is not to malign investigations but the lawful procedure provided by the law to raise a complaint against the Respondents and in extension, the Police Officers.
39. ODPP under the law does not meddle with investigations as alleged but they have powers to ensure that the 1st, 2nd and 3rd Respondents follow the law.
40. He submits that the Respondents have again come up with other charges being giving false information to a public servant and obtaining land registration by false pretense.
41. He submits that the offence of giving false information to a public servant, nowhere any public servant recorded a statement to support the same.
42. On obtaining land registration by false presence, no evidence has been submitted to this Honourable Court to support the purported charge nor is there any investigation file.
43. The Respondents failed to disclose the Complainant, the Complaint and the alleged Forged document(s).
44. He submits that the Ex-parte Applicant averred that upon answering Summons on 2nd September 2024 he requested for disclosure of the complainant.
45. The Respondents failed to disclose who the Complainant was. This offends the right to a fair hearing as enshrined under Article 50 Rule (2)(b) of the Kenyan Constitution, 2010. Failure to disclose the complaint and the Complainant offends the Provisions of Section 47 of the Constitution and the Fair Administrative Actions Act.
46. Article 47 of the Constitution state as follows: -
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
47. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
48. Parliament shall enact legislation to give effect to the rights in Clause (1) and that legislation shall: -
a. Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
b. Promote efficient administration.
49. Section 4 Fair Administrative Actions Act. No. 4 of 2015 thereof provided that:-
i. Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
ii. Every person has the right to be given written reasons for any administrative action that is taken against him.
50. Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision.
a. Prior and adequate notice of the nature and reasons for the proposed administrative action.
b. An opportunity to be heard and to make representations in that regard.
c. An opportunity to be heard and to make representations in that regard.
d. Notice of a right to a review or internal appeal against an administrative decision, where applicable.
e. A Statement of reasons pursuant to Section 6;
f. Notice to the right to legal representation, where applicable
g. Information, materials and evidence and evidence to be relied upon in making the decision or taking the administrative action.
51. The administer shall accord the person against whom administrative action is taken an opportunity to: -
a. Attend proceedings, in person or in the company for an expert of his choice.
b. Be heard.
c. Cross-examine persons who give adverse evidence against him.
d. Request for an adjournment of the proceedings where necessary to ensure a fair hearing.
52. Nothing in this Section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.
53. Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.
54. Reliance is placed in the case of James Opiyo Wandayi v Kenya National Assembly &2 others [2016] eKLR this Court, Odunga J, opined as follows: -
“In my view, Article 47 of the Constitution is now emphatic on the fairness of administrative action. The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems, the focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualized discretion; from social controversy to commercial self- policy to interest; and anything in between, As a result, judicial review has significantly improved the quality of decision making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.”
55. He also relies on the Court of Appeal in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR held as follows: -
“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
56. The Respondents declined to disclose the particulars of offence including the purported forged documents or the intended Exhibits.
57. He further submit that investigation cannot be complete without the statement of the Ex-parte Applicant.The Respondents cannot evaluate the complaint unless they hear the story of the Ex-parte Applicant.
58. Investigations cannot be complete unless both parties the Complainant and the accused are heard so as the Respondents to make a decision to charge.
59. The Respondents are and were irrational and unreasonableness in taking their decision to charge the Ex-parte Applicant.
60. The Respondents did not address the facts and the law before them. Had it they addressed the facts and the law; they could have arrived at a different decision.
61. The Respondents failed to act fairly in taking the decision to charge the Ex-parte Applicant. The unfairness was that of non-observance of the rules of natural justice. The Respondents acted with procedural fairness and leaned towards the purported complainant. Procedural rules of investigation as laid down by the stature were not followed.
62. In the case of Ugandan case of Pastoli v Kabale District Local Government Council & Others, (2008) 2 EA 300 at pages 303 to 304 thus: -
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph 'E'.
Procedural impropriety is when there is failure to act fairly on the part of the decision- making authority in the process of taking a decision. The unfairness may be in non- observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to decide. (AlMehdawi v Secretary of State for the Home Department [1990] AC 876).'
63. In the case of Patrick NgunjiriMuiruri v DPP [2017] eKLR, regarding the standard deployed by the Court to scrutinize the DPP’s use of his charging authority: -
“The law and practice, then, are quite clear: while the discretion of the DPP is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the DPP, it is not absolute. On the other hand, while the power of the Court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the Court can review the DPP’s decisions for rationality and procedural infirmities, it cannot review them on merit.”
64. He submits that The Court declared him as the registered and absolute owner and proprietor of all that land No. L.R. No. Ruiru Kiu Block 6/537.
65. In R v Inspector General of Police & 3 Others Ex Parte Lillian Wangari & 5 Others [2017] eKLR, the Court further expounded on principle in the following words: -
It is for this reason that while the DPP has complete discretion and full autonomy to determine whether and against whom to bring criminal charges, the Courts have held that he must at least demonstrate that he has a prosecutable case and that his aim in bringing those charges are in the public interest. Hence, in R v Attorney General Exp Kipngeno Arap Ngeny (High Court Civil App No 406 of 2001), the Court stated thus:
A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.
66. Article 157(10) of the Constitution guarantees the independence of the DPP but mandates that the power to prosecute must be exercised in the interest of justice and to prevent abuse of the legal process (Article 157(11)).
67. He filed a complaint with the ODPP on 5th September 2025.To date, the ODPP have not acted on the complaint and/or addressed or prevent the abuse of the legal process as enshrined under Article 157 sub rule (10) and (11).
68. The intended prosecution of the Ex-parte Applicant is based on fabricated or unclear evidence. This is an abuse of legal process and this is the reason the Respondents did not attach the purported complainant statement,exhibits, ownership documents of the disputed parcel of land or any other document at all including the purported forged documents.
69. In the case of Bernard Mwikya Mulinge v Director of Public Prosecutions & Others [2019] KLR, the Court held that where there is a prima facie case of prosecutorial abuse, the burden shifts to the DPP to justify the decision to prosecute. In this case, the Respondents have failed to convincingly justify the charges against the Petitioners.
70. The Respondents and the Interested Party are prosecuting the Exparte Applicant on the basis of the success in Civil Suit No. MCELC No. E167 of 2023 -Ruiru.
71. The Respondents are not sure of the charges they intend to prefer against the Ex-parte Applicant. At one point, they state forgery in the Cash bail receipt whereas on the other hand, under Paragraph 23 of the Replying Affidavit they state giving false information to a public servant and obtaining false information by false pretence. It is not even disclosed who is the public servant.
72. The Court of Appeal in Commissioner of Police & Director of Criminal Investigation Department & Hon. Attorney-General vKenya Commercial Bank Limited & Others [2013] KECA 182 held that:-
“Courts must intervene where prosecution is used as a tool for harassment or political persecution.” The Ex-parte Applicant has provided evidence suggesting that the charges against him were fabricated, as there are contradictions in the nature of the alleged offence committed.
73. In Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & Others (Petition 38 of 2019) [2021] KESC 32 (KLR), the Supreme Court emphasized that:-
“Prosecutorial discretion should not be exercised to achieve ulterior motives or to suppress political dissent.”
74. In Diamond Hasham Lalji (supra), the Court of Appeal held that:-
“While prosecutorial discretion is broad, it is subject to judicial review if exercised in bad faith.”
75. Section 24 of the National Police Service Act No 11 A of 2011 sets out functions of the Kenya Police Service as being the-
(a) Provision of assistance to the public when in need;
(b) Maintenance of law and order;
(c) Preservation of peace;
(d) Protection of life and property;
(e) Investigation of crimes;
(f) Collection of criminal intelligence; (g) Prevention and detection of crime;
(g) Apprehension of offenders;
(h) Enforcement of all laws and regulations with which it is charged; and
(i) Performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
76. On the issue whether the Court has Powers to hear this Judicial Review Application. He places reliance in the case of R v Kenya Revenue Authority Exparte Yaya Towers Ltd [2008] eKLR, the Court enlisted grounds for Judicial Review as abuse of discretion irrationally, excess of jurisdiction, improper motives, failure to exercise discretion, abuse of the rules of natural justice, fettering of discretion or error of the law.
77. For the Court to issue a writ remedy it must be satisfied that the act or omission complained of was arrived at illegally, unreasonably, improperly, irrationally, biased, in bad faith, or otherwise ultra vires hence a breach of the principles of natural justice.
78. In the case of Captain Geoffrey Kuguya Murungi vs AG Misc Civil Application No 293 of 1993, the Court stated that:-
“Certiorari deals with the decision already made such an order (certiorari) can only be issued where the court considers that the decision under attack was reached without or in excess of jurisdiction or in breach of the rules of natural justice or contrary to law.
79. In the case of Kenya Examination Council v R Exparte Geoffrey Gathenji Njoroge and 9 Others [1997] eKLR the Court held that: -“Where a decision has been made, whether in excess or lack of Jurisdiction or whether in violation of the rules of natural justice, an order of prohibition will not be efficacious against the decision so made. Prohibition cannot quash a decision that has already been made; it can only prevent the making of a contemplated decision”.
The Respondents’ case
80. In opposing the application, The ODPP on his part relies on the affidavit of an officer who depones that he sought the advice of the State Counsel of the office of the Attorney General who is in conduct of this matter and whose advise he verily believes to be true.
81. The Respondents submit that this is a Land Fraud matter in regards to Land Parcel Number Githurai/Ting’ang’a Co. Limited initially registered as LR No. 8867 Plot No. E86 and now registered as Ruiru/Kiu Block 6/537.
82. Section 35 of the National Police Service Act provides that; “The Directorate shall—
a. Collect and provide criminal intelligence;
b. Undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others;
c. Detect and prevent crime;
d. Apprehend offenders;
e. Maintain criminal records;
f. Conduct forensic analysis;
g. Execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;”
83. The ex parte Applicant has failed to demonstrate that the Respondents acted unlawfully, irrationally, or in breach of any constitutional or statutory provisions in undertaking the impugned criminal investigations and/or contemplated prosecution.
84. Reliance is placed on the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another (2012) eKLR where it was held that:-
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”
85. It further places reliance in the case of Republic v Attorney General & 4 others ex- parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR when he stated that:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did
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