Introduction
1. This is a ruling on the Petitioner/Applicant’s Notice of Motion dated 2nd November 2025. The application seeks conservatory orders staying, halting or suspending the scheduled plea-taking against the Petitioner on the alleged charge of personation contrary to section 382(1) of the Penal Code, orders restraining the 1st and 2nd Respondents from arresting, re-arresting, investigating or instituting criminal proceedings against him arising from the events of 30th October 2025, orders restraining the 3rd Respondent from continuing, taking over or initiating any prosecution on the same facts, and an order directing the refund of Kshs. 10,000 alleged to have been deposited as cash bail.
2. The application is supported by the Petitioner’s affidavit sworn on 2nd November 2025. The Petitioner states that he is an Advocate of the High Court of Kenya, admitted to the Roll of Advocates on 5th September 2025, and that on 30th October 2025 he was at Kisii Magistrate’s Court representing one James Orengo Odhiambo in MCCR/1779/2025 when the question of his practising certificate arose.
3. The Petitioner’s case is that the learned Magistrate only directed that he records a statement and that investigations follow, but that police officers nonetheless arrested and handcuffed him in court, took him to Kisii Central Police Station, booked him under the alleged charge of personation contrary to section 382(1) of the Penal Code, detained him for about three hours and released him on police cash bail.
4. The Petitioner contends that the criminal process is malicious, irregular and unconstitutional because he was already admitted to the Roll of Advocates and could not, in law, be said to have personated himself. He further contends that any issue relating to a practising certificate was an administrative or professional matter under the Advocates Act and not a proper subject of a charge of personation under the Penal Code.
5. The 7th Respondent, Steve Okemwa, opposes the application. He states that on 30th October 2025, the Petitioner appeared before Hon. Bernard Omwansa while acting for James Orengo, an accused person facing a charge of personation; that he checked the Law Society of Kenya online search engine; and that the search indicated that the Petitioner did not have a practising certificate for the year 2025. He relies on section 9 of the Advocates Act, which requires admission, presence on the Roll and a practising certificate in force before one may act as an advocate.
6. The 7th Respondent further states that he raised the issue as an officer of the Court, that the Court sought confirmation from the Petitioner, and that the Petitioner confirmed that he had no practising certificate. He also avers that he was not privy to what happened after the Petitioner was escorted out by police, and that no interim orders are sought against him.
7. The 5th and 6th Respondents also oppose the application. Their broad position is that the Petitioner has not shown any actionable constitutional violation against them; that the issue of practising status was properly raised; that the application is speculative and/or overtaken by events; and that the conservatory orders sought would unjustifiably interfere with lawful statutory and constitutional mandates.
Issues for Determination
8. Having considered the Notice of Motion, , the affidavits, the rival submissions and the authorities filed by the parties, the issues that arise for determination are:
a. Whether the application is moot, premature or overtaken by events;
b. Whether the Petitioner has established the legal threshold for conservatory orders;
c. Whether this Court should restrain investigation, charging or prosecution arising from the events of 30th October 2025;
d. Whether the prayer for refund of cash bail should issue at this interlocutory stage; and
e. What orders should be made on costs.
Applicable Legal Principles
9. Article 23(3) of the Constitution empowers this Court, in proceedings brought under Article 22, to grant appropriate relief, including conservatory orders. The jurisdiction is wide, but it is discretionary and must be exercised judicially.
10. The principles governing conservatory orders are settled. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court held that conservatory orders bear a public law connotation and are intended to facilitate orderly functioning within public agencies while upholding the adjudicatory authority of the Court in the public interest. Such orders are to be granted on the inherent merits of the case, bearing in mind constitutional values, public interest and the proportional magnitude of the competing causes. The same principles were relied upon in the parties’ submissions.
11. In Okoth v Attorney General & 4 Others; Kenya Sugar Millers Association (Interested Party) [2025] KEHC 7279 (KLR), the Court restated that conservatory orders preserve the subject matter of litigation and prevent violations of constitutional rights pending final determination. The Court further stressed that a mere allegation of constitutional violation is insufficient; the applicant must demonstrate real danger that is actual, imminent, evident and true so as to warrant immediate intervention.
12. In Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Another [2016] eKLR, the Court similarly stated that an applicant must establish a prima facie case with a likelihood of success, show that unless conservatory relief is granted there is real danger of prejudice, demonstrate that the petition may be rendered nugatory, and satisfy the Court that public interest favours the order. The 6th Respondent relied on this line of authority in opposing the Motion.
1. A prima facie case was authoritatively defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others[2003] KLR 125; that a prima facie case is one in which, on the material presented, a tribunal properly directing itself will conclude that there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal. It is more than an arguable case.
14. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR emphasised that the requirements of prima facie case, irreparable injury and balance of convenience are separate and sequential hurdles. It warned against “leap-frogging” from an arguable claim to injunctive relief without demonstrating irreparable injury and the balance of convenience. It also stated that speculative injury will not do; the injury must be actual, substantial and demonstrable.
15. Although conservatory orders are not identical to private law injunctions, the classical principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358 remain useful by analogy, especially on prima facie case, irreparable harm and balance of convenience. The parties also relied on this authority.
16. On interference with criminal proceedings, the starting point is that criminal investigations and prosecutions should not be stopped merely because a person disputes the charge, contests the evidence or claims innocence. In Meixner & Another v Attorney General [2005] 2 KLR 189, the Court of Appeal warned that the High Court should not usurp the mandate of the criminal trial court by determining evidential and culpability questions through constitutional litigation. The 7th Respondent cited this authority in that context.
17. Similarly, in Director of Public Prosecutions v Humphrey Murithi & Another [2017] eKLR, the Court of Appeal restated that courts should not interfere with the prosecutorial mandate of the DPP unless there is clear evidence of illegality, malice, bad faith or abuse of power. This authority was also relied on by the 7th Respondent.
18. However, the Court is equally alive to the principle stated in Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] KEHC 1120 (KLR) that criminal proceedings must not be used to achieve ulterior purposes. In that case, the Court stated that no Party is allowed to use the machinery of justice to cause injustice, and that where criminal proceedings are used to advance a collateral purpose, prohibition may issue.
.
19. Finally, in the case of Anarita Karimi Njeru v Republic [1979] eKLR requires a constitutional petitioner to plead with reasonable precision the constitutional provisions alleged to have been violated and the manner of violation. The 7th Respondent relies on that threshold in contending that the Petition is generalised and does not disclose a constitutional cause of action against him.
Analysis
Whether the Application is Moot or Overtaken by Events
21. The Respondents contend that the application has been overtaken by events on the basis that the arrest and alleged handcuffing occurred on 30th October 2025. That argument is partly merited. A court cannot issue a conservatory order to prevent an arrest, handcuffing, or detention that has already taken place. To that extent, the Court cannot act in vain.
22. However, the application also seeks prospective reliefs, including orders barring plea-taking, prohibiting any future arrest or re-arrest, restraining further investigations, restraining the institution or continuation of criminal proceedings, and directing the refund of cash bail. It has since emerged that plea has already been taken, although the prosecution is ongoing. The issue of plea-taking has therefore been overtaken by events. The issue of the continued prosecution, however, remains live. As regards investigations, it is trite that investigations are a continuous process and not a one-off event. They fall within the mandate of the police, who are empowered by law to conduct investigations. Accordingly, the application is not wholly moot.
23. The proper question is whether the Petitioner has brought himself within the threshold for conservatory relief.
Whether the Petitioner has established a prima facie case
24. The Petitioner has demonstrated that he was admitted to the Roll of Advocates on 5th September 2025. That fact is not immaterial. It distinguishes him from a person who has never been admitted as an advocate. It also raises an arguable issue whether the description “personation” is applicable the case of a person who is, in fact, admitted to the Roll.
25. That, however, is not the end of the matter. Section 9 of the Advocates Act does not make admission to the Roll alone sufficient. It requires that a person be admitted as an advocate, that his name be on the Roll, and that he has in force a practising certificate. The Petitioner’s own pleadings acknowledge that he had applied for a practising certificate but did not have the physical certificate at the time of the incident.
26. The 7th Respondent’s evidence is that upon checking the LSK online search engine on 30th October 2025, he found that the Petitioner had no practising certificate for 2025; that he raised the issue in court; and that the Petitioner confirmed that he had none.
27. The Petitioner relies on an invoice or application process to contend that the issue was merely administrative. But at this interlocutory stage, an invoice or application for a practising certificate is not the same thing as proof that a practising certificate had been issued or was in force. The Court cannot conclusively determine, on affidavit evidence alone, whether the Petitioner’s certificate had been paid for, processed, issued, delayed by system lag, or otherwise in force.
28. The Court therefore finds that while the Petitioner has raised an arguable constitutional complaint regarding the manner of arrest and alleged public humiliation, he has not established a clear prima facie case, in the Mrao sense, warranting the broad orders sought to stop investigation, charging or prosecution altogether.
29. The core legal question raised by the Petitioner is whether a person admitted to the Roll but allegedly lacking a practising certificate can properly be charged with personation under section 382(1) of the Penal Code. That question is arguable. But it is also a question that touches the ingredients of the offence, the sufficiency of evidence, the decision to charge, and the proper statutory framework. Those are issues that should not be conclusively determined at this interlocutory stage.
30. In the case of Nguruman, the Court of Appeal cautioned that at the interlocutory stage, the Court does not conduct a mini- trial or make definitive findings on contested facts and law. That caution is particularly apt here. To determine now whether the elements of personation are incapable of proof would risk finally determining one of the central issues in the Petition and, potentially, in any criminal process.
Whether the issue is exclusively disciplinary
31. The Petitioner contends that the question of a practising certificate falls exclusively within the disciplinary framework of the Advocates Act and the Advocates Disciplinary Tribunal. That submission is attractive only to a limited extent.
32. The Advocates Act undoubtedly establishes a professional regulatory framework. But section 9 is framed in mandatory terms. Further,the Respondents rely on section 31 of the Advocates Act, which prohibits unqualified persons from acting as advocates, and section 85, which provides penalties for offences under the Act. The 6th Respondent’s submissions specifically argue that acting without a valid practising certificate may attract statutory sanctions, including criminal consequences under the Advocates Act.
33. It follows that the Court cannot at this stage, the broad proposition that the matter was purely administrative and incapable of any criminal consequence. Whether the proper charge, if any, lies under the Penal Code, the Advocates Act, contempt jurisdiction, disciplinary jurisdiction, or another legal route is not a question to be determined summarily on an interlocutory application.
34. The principle in Speaker of the National Assembly v Karume [1992] KLR 21, cited by the 7th Respondent, is also relevant. Where the Constitution or a statute provides a procedure for redress, that procedure should generally be followed. The existence of disciplinary or statutory processes under the Advocates Act does not, however, automatically bar constitutional jurisdiction where a party alleges violation of rights. It only reinforces the need for judicial restraint where adequate statutory or trial mechanisms exist.
Whether the criminal process is shown to be abusive
35. The Petitioner relies heavily on Ex Parte Ganijee (supra )to argue that the criminal process is being used for ulterior purposes. The Court agrees with the argument that criminal law should never be used as a weapon for professional rivalry, intimidation or private vendetta. Where the predominant purpose of a criminal process is collateral, oppressive or vexatious, the High Court will intervene.
36. However, the facts before this Court do not yet rise to that level. There was a live issue before the trial court as to whether the Petitioner had audience. The 7th Respondent’s deposition is that he checked the LSK portal and found no practising certificate. The Petitioner admits that he had applied for the certificate and did not have it at the material time. There was therefore an objective statutory concern capable of inquiry under section 9 of the Advocates Act.
37. The Court also notes that the 5th, 6th and 7th Respondents are private advocates. They do not exercise the constitutional powers of investigation or prosecution. Even if their conduct is ultimately found to have been improper, malicious, defamatory or professionally irregular, that finding requires evidence and cannot be made conclusively on the present interlocutory record.
38. The threshold for stopping criminal proceedings is high. The decisions in Meixner, Director of Public Prosecutions v Humphrey Murithi & Another, and Republic v Director of Public Prosecutions & 2 Others ex parte Patrick Ogola Onyango & Another [2016] eKLR all counsel restraint where the complaint is, in substance, about the sufficiency of evidence, the propriety of a charge, or the merits of prosecution. Those are matters for the trial court and the DPP unless there is clear abuse, bad faith, oppression or violation of rights that cannot be cured through the ordinary criminal process.
39. Based on the material placed before this court , the Petitioner has not demonstrated that the criminal process, , is so plainly abusive that this Court must stop it before the DPP, the police, or the trial court can undertake their constitutional and statutory roles.
Whether Article 47 is implicated
40. The Petitioner also invokes Article 47 and the Fair Administrative Action Act. His grievance is that the police failed to record his statement first, failed to investigate properly, and proceeded directly to arrest and book him under a charge.
41. Article 47 protects every person’s right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The Court does not rule out the possibility that certain police decisions may, in an appropriate case, attract scrutiny under Article 47 .
42. However, the 7th Respondent relies on Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR for the proposition that Article 47 is primarily concerned with administrative or quasi-judicial decisions, not every preliminary fact-finding step or reporting of a suspected offence.
43. At this stage, the Court is not persuaded that Article 47, standing alone, justifies the sweeping orders sought. Whether the arrest, detention, booking, cash bail and alleged failure to investigate violated Articles 28, 29, 47 and 49 is a serious matter, but it is best determined at the hearing of the Petition on a fuller evidential record.
Irreparable harm and whether the Petition will be rendered nugatory
44. The Petitioner contends that the continuation of the criminal process will cause irreparable professional and reputational harm. He has exhibited media reports and relies on electronic media links to show that the incident attracted publicity.
45. The Court does not trivialise that complaint raised by the petitioner applicant. The public arrest or handcuffing of an advocate in court, if proved to have been unlawful or excessive, may amount to a serious violation of dignity, liberty and professional standing.
46. Nevertheless, the question at this stage is not whether the Petitioner has suffered embarrassment or reputational injury. The question is whether, unless the conservatory orders are granted, the Petition will be rendered nugatory or the Petitioner will suffer prejudice incapable of being remedied later.
47. The Petition itself seeks declarations,the writs certiorari and prohibition, refund of cash bail, internal investigations, apology, general damages, exemplary damages and reputational damages. These are remedies capable of addressing the alleged violations if the Petitioner ultimately succeeds.
48. In Nguruman, the Court of Appeal stated that speculative injury will not suffice and that where damages or other legal remedies can adequately address the harm, interlocutory relief should not automatically issue. Similarly, in Giella, the Court emphasised that irreparable injury thatwhich / cannot be compensated by way of damages.
49. Applying those principles, the Court is not satisfied that the Petition will be rendered nugatory merely because investigations or the prosecution may proceed. The Petitioner will retain the right to challenge any charge before the trial court, to raise constitutional objections, to seek review by the DPP, and to pursue the present Petition to final determination.
Public interest and balance of convenience
50. Public interest in this matter lies on both sides. On one side, advocates are officers of the Court and should not be subjected to arbitrary arrest, humiliation, intimidation or harassment while discharging professional duties. The justice system depends on advocates being able to represent clients without any fear.
51. On the other side, the public has an equally weighty interest in the integrity of the legal profession, the protection of litigants from unqualified persons, and the enforcement of statutory requirements governing legal practice. A practising certificate is not a mere formality. It is a statutory requirement tied to professional regulation, accountability and public protection.
52. In Gatirau Peter Munya, the Supreme Court directed courts to consider public interest, constitutional values and proportionality. In the instant case, proportionality does not favour issuing a blanket order barring investigation, arrest, charging or prosecution on all matters arising from 30th October 2025. Such an order would be too broad and would risk immunising the Petitioner from lawful inquiry into an issue that arose in open court and concerned statutory qualification to practise.
53. The balance of convenience therefore favours allowing lawful constitutional and statutory processes to continue, while making it clear that any such process must strictly comply with the Petitioner’s rights under the Constitution.
The 5th, 6th and 7th Respondents
56. The 5th, 6th and 7th Respondents are private parties. They do not control the police, the DCI or the DPP. The complaints against them relate to alleged instigation, malice, conflict of interest, public accusations and alleged misuse of the LSK name. Those are serious allegations but they require proof.
57. The 7th Respondent has expressly deposed that no interim orders are sought against him and that he was not privy to what happened after the Petitioner was escorted from court.
58. At this stage, the Court is not satisfied that a conservatory order can properly issue against the 5th, 6th or 7th Respondents. Whether they are properly joined, and whether any relief can ultimately issue against them, shall be determined at the hearing of the Petition or on a properly mounted application.
Disposition
59. The Petitioner has raised arguable questions concerning the manner of his arrest, the alleged handcuffing in court, the alleged failure by police to record his statement before booking him, the legal propriety of the charge of personation, and the alleged reputational harm suffered. Those questions deserve ventilation at the hearing of the Petition.
60. However, the Petitioner has not satisfied the Court that this is a proper case for the sweeping conservatory orders sought. He has not demonstrated a prima facie case with a likelihood of success sufficient to stop investigation, charging or prosecution; he has not shown that the Petition will be rendered nugatory absent the orders; and the public interest does not favour a blanket restraint of the constitutional and statutory mandates of the police and the DPP.
61. Accordingly, the Notice of Motion dated 2nd November 2025 lacks merit and is hereby dismissed.
62. The Petition shall be mentioned for directions before Hon Justice (Prof) for directions on 20.7.26 .
63. Costs of the Motion shall be in the cause.
Orders accordingly.
T.A ODERA
JUDGE
10.6.26
SIGNED AND DELIVERED VIRTUALLY OMBATI FOR PETIONER/ APPLICANT , NO APPEARANCE FOR 1ST TO 4TH; MR OCHOKI FOR 6TH RESPONDENT WHO IS PRESENT & HOLDING BRIEF; FOR MR WESONGA FOR 5TH RESPONDENT . MR NYAMBATI FOR 7TH RESPONDENT & CA- KIPCHIRCHIR .
1. This is a ruling on the Petitioner/Applicant’s Notice of Motion dated 2nd November 2025. The application seeks conservatory orders staying, halting or suspending the scheduled plea-taking against the Petitioner on the alleged charge of personation contrary to section 382(1) of the Penal Code, orders restraining the 1st and 2nd Respondents from arresting, re-arresting, investigating or instituting criminal proceedings against him arising from the events of 30th October 2025, orders restraining the 3rd Respondent from continuing, taking over or initiating any prosecution on the same facts, and an order directing the refund of Kshs. 10,000 alleged to have been deposited as cash bail.
2. The application is supported by the Petitioner’s affidavit sworn on 2nd November 2025. The Petitioner states that he is an Advocate of the High Court of Kenya, admitted to the Roll of Advocates on 5th September 2025, and that on 30th October 2025 he was at Kisii Magistrate’s Court representing one James Orengo Odhiambo in MCCR/1779/2025 when the question of his practising certificate arose.
3. The Petitioner’s case is that the learned Magistrate only directed that he records a statement and that investigations follow, but that police officers nonetheless arrested and handcuffed him in court, took him to Kisii Central Police Station, booked him under the alleged charge of personation contrary to section 382(1) of the Penal Code, detained him for about three hours and released him on police cash bail.
4. The Petitioner contends that the criminal process is malicious, irregular and unconstitutional because he was already admitted to the Roll of Advocates and could not, in law, be said to have personated himself. He further contends that any issue relating to a practising certificate was an administrative or professional matter under the Advocates Act and not a proper subject of a charge of personation under the Penal Code.
5. The 7th Respondent, Steve Okemwa, opposes the application. He states that on 30th October 2025, the Petitioner appeared before Hon. Bernard Omwansa while acting for James Orengo, an accused person facing a charge of personation; that he checked the Law Society of Kenya online search engine; and that the search indicated that the Petitioner did not have a practising certificate for the year 2025. He relies on section 9 of the Advocates Act, which requires admission, presence on the Roll and a practising certificate in force before one may act as an advocate.
6. The 7th Respondent further states that he raised the issue as an officer of the Court, that the Court sought confirmation from the Petitioner, and that the Petitioner confirmed that he had no practising certificate. He also avers that he was not privy to what happened after the Petitioner was escorted out by police, and that no interim orders are sought against him.
7. The 5th and 6th Respondents also oppose the application. Their broad position is that the Petitioner has not shown any actionable constitutional violation against them; that the issue of practising status was properly raised; that the application is speculative and/or overtaken by events; and that the conservatory orders sought would unjustifiably interfere with lawful statutory and constitutional mandates.
Issues for Determination
8. Having considered the Notice of Motion, , the affidavits, the rival submissions and the authorities filed by the parties, the issues that arise for determination are:
a. Whether the application is moot, premature or overtaken by events;
b. Whether the Petitioner has established the legal threshold for conservatory orders;
c. Whether this Court should restrain investigation, charging or prosecution arising from the events of 30th October 2025;
d. Whether the prayer for refund of cash bail should issue at this interlocutory stage; and
e. What orders should be made on costs.
Applicable Legal Principles
9. Article 23(3) of the Constitution empowers this Court, in proceedings brought under Article 22, to grant appropriate relief, including conservatory orders. The jurisdiction is wide, but it is discretionary and must be exercised judicially.
10. The principles governing conservatory orders are settled. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court held that conservatory orders bear a public law connotation and are intended to facilitate orderly functioning within public agencies while upholding the adjudicatory authority of the Court in the public interest. Such orders are to be granted on the inherent merits of the case, bearing in mind constitutional values, public interest and the proportional magnitude of the competing causes. The same principles were relied upon in the parties’ submissions.
11. In Okoth v Attorney General & 4 Others; Kenya Sugar Millers Association (Interested Party) [2025] KEHC 7279 (KLR), the Court restated that conservatory orders preserve the subject matter of litigation and prevent violations of constitutional rights pending final determination. The Court further stressed that a mere allegation of constitutional violation is insufficient; the applicant must demonstrate real danger that is actual, imminent, evident and true so as to warrant immediate intervention.
12. In Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Another [2016] eKLR, the Court similarly stated that an applicant must establish a prima facie case with a likelihood of success, show that unless conservatory relief is granted there is real danger of prejudice, demonstrate that the petition may be rendered nugatory, and satisfy the Court that public interest favours the order. The 6th Respondent relied on this line of authority in opposing the Motion.
1. A prima facie case was authoritatively defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others[2003] KLR 125; that a prima facie case is one in which, on the material presented, a tribunal properly directing itself will conclude that there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal. It is more than an arguable case.
14. The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR emphasised that the requirements of prima facie case, irreparable injury and balance of convenience are separate and sequential hurdles. It warned against “leap-frogging” from an arguable claim to injunctive relief without demonstrating irreparable injury and the balance of convenience. It also stated that speculative injury will not do; the injury must be actual, substantial and demonstrable.
15. Although conservatory orders are not identical to private law injunctions, the classical principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358 remain useful by analogy, especially on prima facie case, irreparable harm and balance of convenience. The parties also relied on this authority.
16. On interference with criminal proceedings, the starting point is that criminal investigations and prosecutions should not be stopped merely because a person disputes the charge, contests the evidence or claims innocence. In Meixner & Another v Attorney General [2005] 2 KLR 189, the Court of Appeal warned that the High Court should not usurp the mandate of the criminal trial court by determining evidential and culpability questions through constitutional litigation. The 7th Respondent cited this authority in that context.
17. Similarly, in Director of Public Prosecutions v Humphrey Murithi & Another [2017] eKLR, the Court of Appeal restated that courts should not interfere with the prosecutorial mandate of the DPP unless there is clear evidence of illegality, malice, bad faith or abuse of power. This authority was also relied on by the 7th Respondent.
18. However, the Court is equally alive to the principle stated in Republic v Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] KEHC 1120 (KLR) that criminal proceedings must not be used to achieve ulterior purposes. In that case, the Court stated that no Party is allowed to use the machinery of justice to cause injustice, and that where criminal proceedings are used to advance a collateral purpose, prohibition may issue.
.
19. Finally, in the case of Anarita Karimi Njeru v Republic [1979] eKLR requires a constitutional petitioner to plead with reasonable precision the constitutional provisions alleged to have been violated and the manner of violation. The 7th Respondent relies on that threshold in contending that the Petition is generalised and does not disclose a constitutional cause of action against him.
Analysis
Whether the Application is Moot or Overtaken by Events
21. The Respondents contend that the application has been overtaken by events on the basis that the arrest and alleged handcuffing occurred on 30th October 2025. That argument is partly merited. A court cannot issue a conservatory order to prevent an arrest, handcuffing, or detention that has already taken place. To that extent, the Court cannot act in vain.
22. However, the application also seeks prospective reliefs, including orders barring plea-taking, prohibiting any future arrest or re-arrest, restraining further investigations, restraining the institution or continuation of criminal proceedings, and directing the refund of cash bail. It has since emerged that plea has already been taken, although the prosecution is ongoing. The issue of plea-taking has therefore been overtaken by events. The issue of the continued prosecution, however, remains live. As regards investigations, it is trite that investigations are a continuous process and not a one-off event. They fall within the mandate of the police, who are empowered by law to conduct investigations. Accordingly, the application is not wholly moot.
23. The proper question is whether the Petitioner has brought himself within the threshold for conservatory relief.
Whether the Petitioner has established a prima facie case
24. The Petitioner has demonstrated that he was admitted to the Roll of Advocates on 5th September 2025. That fact is not immaterial. It distinguishes him from a person who has never been admitted as an advocate. It also raises an arguable issue whether the description “personation” is applicable the case of a person who is, in fact, admitted to the Roll.
25. That, however, is not the end of the matter. Section 9 of the Advocates Act does not make admission to the Roll alone sufficient. It requires that a person be admitted as an advocate, that his name be on the Roll, and that he has in force a practising certificate. The Petitioner’s own pleadings acknowledge that he had applied for a practising certificate but did not have the physical certificate at the time of the incident.
26. The 7th Respondent’s evidence is that upon checking the LSK online search engine on 30th October 2025, he found that the Petitioner had no practising certificate for 2025; that he raised the issue in court; and that the Petitioner confirmed that he had none.
27. The Petitioner relies on an invoice or application process to contend that the issue was merely administrative. But at this interlocutory stage, an invoice or application for a practising certificate is not the same thing as proof that a practising certificate had been issued or was in force. The Court cannot conclusively determine, on affidavit evidence alone, whether the Petitioner’s certificate had been paid for, processed, issued, delayed by system lag, or otherwise in force.
28. The Court therefore finds that while the Petitioner has raised an arguable constitutional complaint regarding the manner of arrest and alleged public humiliation, he has not established a clear prima facie case, in the Mrao sense, warranting the broad orders sought to stop investigation, charging or prosecution altogether.
29. The core legal question raised by the Petitioner is whether a person admitted to the Roll but allegedly lacking a practising certificate can properly be charged with personation under section 382(1) of the Penal Code. That question is arguable. But it is also a question that touches the ingredients of the offence, the sufficiency of evidence, the decision to charge, and the proper statutory framework. Those are issues that should not be conclusively determined at this interlocutory stage.
30. In the case of Nguruman, the Court of Appeal cautioned that at the interlocutory stage, the Court does not conduct a mini- trial or make definitive findings on contested facts and law. That caution is particularly apt here. To determine now whether the elements of personation are incapable of proof would risk finally determining one of the central issues in the Petition and, potentially, in any criminal process.
Whether the issue is exclusively disciplinary
31. The Petitioner contends that the question of a practising certificate falls exclusively within the disciplinary framework of the Advocates Act and the Advocates Disciplinary Tribunal. That submission is attractive only to a limited extent.
32. The Advocates Act undoubtedly establishes a professional regulatory framework. But section 9 is framed in mandatory terms. Further,the Respondents rely on section 31 of the Advocates Act, which prohibits unqualified persons from acting as advocates, and section 85, which provides penalties for offences under the Act. The 6th Respondent’s submissions specifically argue that acting without a valid practising certificate may attract statutory sanctions, including criminal consequences under the Advocates Act.
33. It follows that the Court cannot at this stage, the broad proposition that the matter was purely administrative and incapable of any criminal consequence. Whether the proper charge, if any, lies under the Penal Code, the Advocates Act, contempt jurisdiction, disciplinary jurisdiction, or another legal route is not a question to be determined summarily on an interlocutory application.
34. The principle in Speaker of the National Assembly v Karume [1992] KLR 21, cited by the 7th Respondent, is also relevant. Where the Constitution or a statute provides a procedure for redress, that procedure should generally be followed. The existence of disciplinary or statutory processes under the Advocates Act does not, however, automatically bar constitutional jurisdiction where a party alleges violation of rights. It only reinforces the need for judicial restraint where adequate statutory or trial mechanisms exist.
Whether the criminal process is shown to be abusive
35. The Petitioner relies heavily on Ex Parte Ganijee (supra )to argue that the criminal process is being used for ulterior purposes. The Court agrees with the argument that criminal law should never be used as a weapon for professional rivalry, intimidation or private vendetta. Where the predominant purpose of a criminal process is collateral, oppressive or vexatious, the High Court will intervene.
36. However, the facts before this Court do not yet rise to that level. There was a live issue before the trial court as to whether the Petitioner had audience. The 7th Respondent’s deposition is that he checked the LSK portal and found no practising certificate. The Petitioner admits that he had applied for the certificate and did not have it at the material time. There was therefore an objective statutory concern capable of inquiry under section 9 of the Advocates Act.
37. The Court also notes that the 5th, 6th and 7th Respondents are private advocates. They do not exercise the constitutional powers of investigation or prosecution. Even if their conduct is ultimately found to have been improper, malicious, defamatory or professionally irregular, that finding requires evidence and cannot be made conclusively on the present interlocutory record.
38. The threshold for stopping criminal proceedings is high. The decisions in Meixner, Director of Public Prosecutions v Humphrey Murithi & Another, and Republic v Director of Public Prosecutions & 2 Others ex parte Patrick Ogola Onyango & Another [2016] eKLR all counsel restraint where the complaint is, in substance, about the sufficiency of evidence, the propriety of a charge, or the merits of prosecution. Those are matters for the trial court and the DPP unless there is clear abuse, bad faith, oppression or violation of rights that cannot be cured through the ordinary criminal process.
39. Based on the material placed before this court , the Petitioner has not demonstrated that the criminal process, , is so plainly abusive that this Court must stop it before the DPP, the police, or the trial court can undertake their constitutional and statutory roles.
Whether Article 47 is implicated
40. The Petitioner also invokes Article 47 and the Fair Administrative Action Act. His grievance is that the police failed to record his statement first, failed to investigate properly, and proceeded directly to arrest and book him under a charge.
41. Article 47 protects every person’s right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The Court does not rule out the possibility that certain police decisions may, in an appropriate case, attract scrutiny under Article 47 .
42. However, the 7th Respondent relies on Dry Associates Limited v Capital Markets Authority & Another [2012] eKLR for the proposition that Article 47 is primarily concerned with administrative or quasi-judicial decisions, not every preliminary fact-finding step or reporting of a suspected offence.
43. At this stage, the Court is not persuaded that Article 47, standing alone, justifies the sweeping orders sought. Whether the arrest, detention, booking, cash bail and alleged failure to investigate violated Articles 28, 29, 47 and 49 is a serious matter, but it is best determined at the hearing of the Petition on a fuller evidential record.
Irreparable harm and whether the Petition will be rendered nugatory
44. The Petitioner contends that the continuation of the criminal process will cause irreparable professional and reputational harm. He has exhibited media reports and relies on electronic media links to show that the incident attracted publicity.
45. The Court does not trivialise that complaint raised by the petitioner applicant. The public arrest or handcuffing of an advocate in court, if proved to have been unlawful or excessive, may amount to a serious violation of dignity, liberty and professional standing.
46. Nevertheless, the question at this stage is not whether the Petitioner has suffered embarrassment or reputational injury. The question is whether, unless the conservatory orders are granted, the Petition will be rendered nugatory or the Petitioner will suffer prejudice incapable of being remedied later.
47. The Petition itself seeks declarations,the writs certiorari and prohibition, refund of cash bail, internal investigations, apology, general damages, exemplary damages and reputational damages. These are remedies capable of addressing the alleged violations if the Petitioner ultimately succeeds.
48. In Nguruman, the Court of Appeal stated that speculative injury will not suffice and that where damages or other legal remedies can adequately address the harm, interlocutory relief should not automatically issue. Similarly, in Giella, the Court emphasised that irreparable injury thatwhich / cannot be compensated by way of damages.
49. Applying those principles, the Court is not satisfied that the Petition will be rendered nugatory merely because investigations or the prosecution may proceed. The Petitioner will retain the right to challenge any charge before the trial court, to raise constitutional objections, to seek review by the DPP, and to pursue the present Petition to final determination.
Public interest and balance of convenience
50. Public interest in this matter lies on both sides. On one side, advocates are officers of the Court and should not be subjected to arbitrary arrest, humiliation, intimidation or harassment while discharging professional duties. The justice system depends on advocates being able to represent clients without any fear.
51. On the other side, the public has an equally weighty interest in the integrity of the legal profession, the protection of litigants from unqualified persons, and the enforcement of statutory requirements governing legal practice. A practising certificate is not a mere formality. It is a statutory requirement tied to professional regulation, accountability and public protection.
52. In Gatirau Peter Munya, the Supreme Court directed courts to consider public interest, constitutional values and proportionality. In the instant case, proportionality does not favour issuing a blanket order barring investigation, arrest, charging or prosecution on all matters arising from 30th October 2025. Such an order would be too broad and would risk immunising the Petitioner from lawful inquiry into an issue that arose in open court and concerned statutory qualification to practise.
53. The balance of convenience therefore favours allowing lawful constitutional and statutory processes to continue, while making it clear that any such process must strictly comply with the Petitioner’s rights under the Constitution.
The 5th, 6th and 7th Respondents
56. The 5th, 6th and 7th Respondents are private parties. They do not control the police, the DCI or the DPP. The complaints against them relate to alleged instigation, malice, conflict of interest, public accusations and alleged misuse of the LSK name. Those are serious allegations but they require proof.
57. The 7th Respondent has expressly deposed that no interim orders are sought against him and that he was not privy to what happened after the Petitioner was escorted from court.
58. At this stage, the Court is not satisfied that a conservatory order can properly issue against the 5th, 6th or 7th Respondents. Whether they are properly joined, and whether any relief can ultimately issue against them, shall be determined at the hearing of the Petition or on a properly mounted application.
Disposition
59. The Petitioner has raised arguable questions concerning the manner of his arrest, the alleged handcuffing in court, the alleged failure by police to record his statement before booking him, the legal propriety of the charge of personation, and the alleged reputational harm suffered. Those questions deserve ventilation at the hearing of the Petition.
60. However, the Petitioner has not satisfied the Court that this is a proper case for the sweeping conservatory orders sought. He has not demonstrated a prima facie case with a likelihood of success sufficient to stop investigation, charging or prosecution; he has not shown that the Petition will be rendered nugatory absent the orders; and the public interest does not favour a blanket restraint of the constitutional and statutory mandates of the police and the DPP.
61. Accordingly, the Notice of Motion dated 2nd November 2025 lacks merit and is hereby dismissed.
62. The Petition shall be mentioned for directions before Hon Justice (Prof) for directions on 20.7.26 .
63. Costs of the Motion shall be in the cause.
Orders accordingly.
T.A ODERA
JUDGE
10.6.26
SIGNED AND DELIVERED VIRTUALLY OMBATI FOR PETIONER/ APPLICANT , NO APPEARANCE FOR 1ST TO 4TH; MR OCHOKI FOR 6TH RESPONDENT WHO IS PRESENT & HOLDING BRIEF; FOR MR WESONGA FOR 5TH RESPONDENT . MR NYAMBATI FOR 7TH RESPONDENT & CA- KIPCHIRCHIR .