1. The Application Dated the 22nd January 2024 forms the subject of this judgment.
2. The Application is seeking for Orders that: -
1) Order of prohibition against the Respondents to restrain them from arresting, charging, detaining, harassing, intimidating or instituting any criminal prosecution or prosecuting the Applicant arising out of ownership of plot no. 149, Buruburu River Resettlement Scheme and the Applicant occupation of the same.
2) The order for prohibition to act as a stay.
3) Such other orders or directions as shall be considered fit by the Honorable court to grant in the circumstances.
The Applicants case:
3. The Applicant is a resident and member of Buruburu settlement scheme, an informal settlement. By virtue of his membership, he was allotted a plot in the scheme under title No. 149 in the year 2001 vide his membership number BBRV08/079.
4. The Applicant argues that he has peacefully occupied this plot and built five residential houses in the property. He stays in one of the houses and has rented out four houses to tenants. That sometime in the year 2017, the Interested Party came to his plot and claimed ownership.
5. The Interested Party proceeded to build an iron sheet structure of 4 rooms next to the Applicants houses.
6. This led the Applicant to report the aggression to the local administration for assistance. The local chief advised the Applicant to erect a fence to protect his property.
7. The Interested Party later came with hooligans and demolished the erected fence. The Interested Party then went to Buruburu police station and reported the incidence.
8. The Applicant was summoned by the police and upon his reporting to the police station, he was detained for 2 days from 21/7/2022 up to 23/7/2022.
9. He was not given any reason or the offence he had committed but was only released upon payment of a cash bail at the police station of Kshs. 10,000.
10. The cash bail receipt indicated an offence of 'forcible detainer' and the Applicant was required to appear at the 'CM's court at Makadara on 22nd August, 2022 nearly 30 days after the arrest.
11. The Applicant was not arraigned in court on that date or any other date to date. Instead the police have continuously harassed and intimidated the Applicant to vacate his property.
12. It is fundamental principle of the law that prior to charging a suspect, the police under the instructions of the ODPP are supposed to conduct investigations and analyze evidence produced or collected and base the charges on the evidence.
13. In this instance, the Applicant is the legal owner of his property acquired in 2001. The Interested Party claims ownership of a property No. 357 acquired in 2002. In any case, this is a civil matter that does not involve the police.
14. The Interested Party has not sued the Applicant in any civil dispute in regard to the property.
15. The above actions of the 1st Respondent are irrational, an abuse of statutory powers, arbitrary and procedurally unfair.
The 2nd Respondent oppose the case on the following grounds:
1) That the Applicant has not demonstrated any procedural impropriety on the part of the Respondents and neither has he demonstrated how the Respondents acted without or in excess of powers conferred upon them by law.
2) That the Decision to Charge and prosecute the Applicant was based on credible evidence which was placed before him by the investigative body after the Applicant had been given an opportunity to be heard through recording of his statement.
3) That under Article 157(10) of the Constitution of Kenya and Section 6 of the Office of the Director of Public Prosecution Act, 2013 the 2nd Respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in exercise of his powers or functions, shall not be under the direction or control of any person or authority.
4) That the Applicant has failed to demonstrate a prima facie case to warrant court to grant the orders sought as the 1 and 2nd Respondents acted within their mandate as provided in law and the orders sought seek to unlawfully curtail the constitutional and statutory mandate of the Respondents.
5) That the Application if granted would occasion inordinate delay in the determination of the criminal case contrary to Article 50(2)(e) of the Constitution of Kenya which demands expeditious hearing and disposal of cases.
6) That the Applicant has failed to demonstrate that substantial injustice would otherwise result if the criminal proceedings are not stayed since he has not demonstrated to this Court why he believes that he would not get a fair hearing at the trial court.
7) That the Application is without merit, an abuse of court process and should be dismissed with costs 10 the Respondents as the Applicant has not met the threshold for the grant of the orders sought.
8) That the prayers being sought by the Applicant are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article 157 of the Constitution and the Office of the Director of public prosecutions Act, 2013.
9) That the prayers if granted would result in a greater injustice in the criminal justice system and public interest.
16. The interested party’s case is that on 26th July 2023, this Honourable Court (Hon. Justice Jairus Ngaah) closed this file because the Applicant had failed to file the substantive motion within the court prescribed timelines in line with the Order of the Court given on 26th July 2023.
17. The Applicant filed an Application for reinstatement dated 9th August 2023. He argues that he is aware that the Honourable Court on 9th August 2023 delivered a ruling on the Applicant's Application for reinstatement where it dismissed it noting that the Applicant had the option of filing a fresh Application for leave instead of seeking to revive an Application that had otherwise been spent.
18. The Application herein therefore has no legs to stand on having been filed within a suit which had already been closed and without an Order of reinstatement according to him.
19. According to him these facts were not brought to the attention of the Court while bringing the present Application including the Chamber summons seeking leave. While this Honourable Court without the benefit of the facts granted leave to the Applicant to file a substantive motion within 7 days of 14th November 2023 when the leave was granted.
20. The Applicant did not file a substantive motion until 22nd January 2024 as a result of which the present Application is incurably defective and should be struck out with costs to the Interested Party.
21. He argues that he is the registered proprietor of all that property known as Plot No. 357 within Buruburu Riverbank Settlement Scheme (City Carton) having been issued by the Nairobi City Council the Allotment Letter Referenced CPD/ 5456 and dated 14th October 2002 and having paid the requisite fees and subsequent annual rates per the Allotment Letter and the confirmation of payment of Allotment Fees.
22. He litigated in Milimani ELC Case No. 636 0 2016 Robert Kang'ethe Ndegwa vs County Government of Nairobi & Another over the said Plot whereby Judgment was entered in his favour in the following terms: -
1) That it is hereby declared that the Plaintiff is the bonafide owner of all that land known as Plot No. 357 situated within Buruburu River Bank Settlement Scheme and within Nairobi.
2) That it is hereby declared that the re-allotment of the said Plot was done illegally, unprocedurally, is rooted in fraud and/or misrepresentation of facts and therefore no other party save for the Plaintiff has got legitimate proprietary right over the scone.
3) That a permanent injunction is issued restraining the 1 st and 2nd Defendants whether by themselves or their servants or agents from dealing, re-allocating, allotting and/or interfering whatsoever with Plot No. 357.
4) That an order is issued directing the 1st and 2nd Defendants to cancel any allotment, certificate of lease issued to any other party and instead the Plain tiff be registered as the owner.
5) That the Plaintiff is awarded costs of the suit and interest from the date of filing the suit herein.
23. The criminal proceedings herein relate to forcible detainer of his Plot No. 357 as aforesaid and not Plot No. 149 as alleged by the Applicant as seen in the Summons dated 18th February 2022 addressed to the Applicant by the OCS Buruburu in which reference is made to ELC Case No. 636 of 2016.
24. I t is his case that the Applicant, has deliberately failed to disclose past engagements between himself and him as well as the local administration in a bid to have him vacate from his plot.
25. He relies on the Agreement dated 22 November 2021,wherein the Applicant acknowledged Plot No. 357 to be his and he sought the Interested Parties indulgence to have him vacate in three months' time.
26. The Applicant also requested that he compensate him KShs. 20,000.00 being the costs of his iron sheets.
27. The Agreement read as follows in part: -
“Meeting held on 22nd Nov 2020 at 15.36 pm at Buruburu River Bank concerning Plot Nor 357 situated at Buruburu River Bank. The Plot is owned by Robert Ndegwa ID No. 0562827.
I Peter Olare have (sic) agreed to remove the iron sheet plus two rooms built on or before 31st March 2021. Mr. Ndegwa have Agreed to wait for MP. Olare to retnove’’
28. Upon the lapse of 3 months requested, the Applicant declined to vacate and has been forcibly on his property despite knowledge of the Judgement of the Court declaring me the bona fide owner of the plot and further obtaining from me the KShs. 20,000.00 knowing very well that he is not going to vacate as promised.
29. The illegal structures have also extended and blocked the access road from behind. The Applicant is therefore illegally in possession of his land.
30. The Respondents are well within their constitutional and statutory mandate to institute criminal proceedings against any person for the offence of forcible detainer as provided for under Section 91 of the Penal Code where a complaint has satisfied the elements thereof being:
a) A person has actual possession of land;
b) The person has no right over the land;
c) The act of possession is against the interests of the legal owner or the person legally entitled to the land; and,
d) The act of possession of the land is, therefore, likely to cause a breach of the peace or a reasonable apprehension of the breach of the peace.
31. The Applicant according to him has not produced any document to show ownership over Plot No. 357 which is the subject of the impending criminal charges facing him.
Analysis and determination;
The issues for determination by this court are;
a. Whether a Judicial Review Application has merit.
b. Who shall bear the costs?
Whether a Judicial Review Application has merit;
32. The Applicant seeks orders of order of prohibition against the Respondents to restrain them from arresting, charging, detaining, harassing, intimidating or instituting any criminal prosecution or prosecuting the Applicant arising out of ownership of plot no. 149, Buruburu River Resettlement Scheme and the Applicant occupation of the same.
33. In order to succeed the Applicant has to demonstrate that the Respondents acted in an illegal, irregular or an unreasonable manner.
34. In the case of 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).”
35. Section 35 of the National Police Service Act sets the duties of the Directorate of Criminal Investigations as below;
“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.”
36. In the case of Republic vs Commissioner of Police and Another Exparte Michael Monari & Another (2012) eKLR 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.”
37. This court does not see any malice in the way the Respondents are conducting the impugned processes. The manner in which the investigations were conducted in this court’s view are fair and reasonable. The Applicant’s unfounded allegations that are devoid of proof cannot by any standards under any criminal justice system form the basis for the grant of the orders sought.
38. There is no set template, methodology or scientific approach that investigations should follow. Investigations and prosecution are processes are unique to each case.
39. They cannot be the same. The court cannot limit nor regulate the investigators conduct their business so long as it is within the Constitution and the guiding statutory framework.
40. The Applicant has failed to prove that what the Respondents are doing is contrary to the constitutional values and principles that underlie the administration of the criminal justice system.
41. The Applicant cannot dictate how an investigating officer should work while discharging his statutory mandate unless there is a clear violation of the Applicant's rights. The Applicant didn't prove that.
42. The Applicant has not proven how the Respondents have acted ultra vires, illegally or in any unprocedural form.
43. The power to investigate crime is an important component of the criminal justice system. The police are under a duty under the National Police Act, to investigate crimes whenever they reported. To stop the police from investigating crimes would usher in anarchy.
44. This court notes that under the criminal justice system, once investigations are completed the, police file is usually forwarded to the director of public prosecutions who in exercise of his statutory mandate reviews the file and decides whether or not to charge the suspect. This process accords with Article 49 and Article 47 of our constitution.
45. The court finds that the Applicant has not demonstrated that there was an illegally in the manner the Respondents are discharging their duties.
46. The trial court will no doubt give the Applicant an opportunity to tender his evidence under Article 50 of the Constitution.
47. The Court ought not to usurp the Constitutional mandate of the Respondents unless the Applicant demonstrates that the Respondents acted illegally, irregularly and or with procedural Respondents which the Applicant has failed to demonstrate.
48. Had the Applicant demonstrated that the investigations and the prosecution constitute an illegality or abuse of process, this Court would not have hesitated in putting a halt to that.
49. In Republic vs Commissioner of Police and Another Exparte Michael Monari & Another [2012] eKLR 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. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. 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”.
50. It is this court’s finding and I so hold that the Applicant has failed to prove that the Respondents have abused discretion or exercised their discretion for an improper purpose; or acted in a manner that amounted to a breach of the duty to act fairly or that the Respondents have failed to exercise statutory discretion reasonably; or that the Respondents acted in a manner to frustrate the purpose of the Act donating the power, have fettered the discretion given or failed to exercise discretion; or that the Respondents have acted irrational and unreasonable.
51. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
“The Order of "Prohibition” issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
52. The fact that a civil Suit exist does not operate as a bar to criminal Prosecution. The issuance if the order of Prohibition as sought will take away the Interested Parties rights as a Complainant. It is my finding and I hold that the Applicant has not made out a case that the Respondents used abusive and coercive measures during criminal investigation processes to warrant the grant of the orders sought.
Costs;
53. In the case of Republic vs Rosemary Wairimu Munene, Exparte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review Application no 6 of 2014 the court held as follows:
“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”
54. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
55. Costs shall follow the event. The Applicant shall shoulder the costs.
Disposition:
56. The Application lacks merit.
Order:
The Application is dismissed with costs.
Dated, signed and delivered at Nairobi this 19th day of March, 2026.
2. The Application is seeking for Orders that: -
1) Order of prohibition against the Respondents to restrain them from arresting, charging, detaining, harassing, intimidating or instituting any criminal prosecution or prosecuting the Applicant arising out of ownership of plot no. 149, Buruburu River Resettlement Scheme and the Applicant occupation of the same.
2) The order for prohibition to act as a stay.
3) Such other orders or directions as shall be considered fit by the Honorable court to grant in the circumstances.
The Applicants case:
3. The Applicant is a resident and member of Buruburu settlement scheme, an informal settlement. By virtue of his membership, he was allotted a plot in the scheme under title No. 149 in the year 2001 vide his membership number BBRV08/079.
4. The Applicant argues that he has peacefully occupied this plot and built five residential houses in the property. He stays in one of the houses and has rented out four houses to tenants. That sometime in the year 2017, the Interested Party came to his plot and claimed ownership.
5. The Interested Party proceeded to build an iron sheet structure of 4 rooms next to the Applicants houses.
6. This led the Applicant to report the aggression to the local administration for assistance. The local chief advised the Applicant to erect a fence to protect his property.
7. The Interested Party later came with hooligans and demolished the erected fence. The Interested Party then went to Buruburu police station and reported the incidence.
8. The Applicant was summoned by the police and upon his reporting to the police station, he was detained for 2 days from 21/7/2022 up to 23/7/2022.
9. He was not given any reason or the offence he had committed but was only released upon payment of a cash bail at the police station of Kshs. 10,000.
10. The cash bail receipt indicated an offence of 'forcible detainer' and the Applicant was required to appear at the 'CM's court at Makadara on 22nd August, 2022 nearly 30 days after the arrest.
11. The Applicant was not arraigned in court on that date or any other date to date. Instead the police have continuously harassed and intimidated the Applicant to vacate his property.
12. It is fundamental principle of the law that prior to charging a suspect, the police under the instructions of the ODPP are supposed to conduct investigations and analyze evidence produced or collected and base the charges on the evidence.
13. In this instance, the Applicant is the legal owner of his property acquired in 2001. The Interested Party claims ownership of a property No. 357 acquired in 2002. In any case, this is a civil matter that does not involve the police.
14. The Interested Party has not sued the Applicant in any civil dispute in regard to the property.
15. The above actions of the 1st Respondent are irrational, an abuse of statutory powers, arbitrary and procedurally unfair.
The 2nd Respondent oppose the case on the following grounds:
1) That the Applicant has not demonstrated any procedural impropriety on the part of the Respondents and neither has he demonstrated how the Respondents acted without or in excess of powers conferred upon them by law.
2) That the Decision to Charge and prosecute the Applicant was based on credible evidence which was placed before him by the investigative body after the Applicant had been given an opportunity to be heard through recording of his statement.
3) That under Article 157(10) of the Constitution of Kenya and Section 6 of the Office of the Director of Public Prosecution Act, 2013 the 2nd Respondent does not require the consent of any person or authority for the commencement of criminal proceedings and in exercise of his powers or functions, shall not be under the direction or control of any person or authority.
4) That the Applicant has failed to demonstrate a prima facie case to warrant court to grant the orders sought as the 1 and 2nd Respondents acted within their mandate as provided in law and the orders sought seek to unlawfully curtail the constitutional and statutory mandate of the Respondents.
5) That the Application if granted would occasion inordinate delay in the determination of the criminal case contrary to Article 50(2)(e) of the Constitution of Kenya which demands expeditious hearing and disposal of cases.
6) That the Applicant has failed to demonstrate that substantial injustice would otherwise result if the criminal proceedings are not stayed since he has not demonstrated to this Court why he believes that he would not get a fair hearing at the trial court.
7) That the Application is without merit, an abuse of court process and should be dismissed with costs 10 the Respondents as the Applicant has not met the threshold for the grant of the orders sought.
8) That the prayers being sought by the Applicant are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article 157 of the Constitution and the Office of the Director of public prosecutions Act, 2013.
9) That the prayers if granted would result in a greater injustice in the criminal justice system and public interest.
16. The interested party’s case is that on 26th July 2023, this Honourable Court (Hon. Justice Jairus Ngaah) closed this file because the Applicant had failed to file the substantive motion within the court prescribed timelines in line with the Order of the Court given on 26th July 2023.
17. The Applicant filed an Application for reinstatement dated 9th August 2023. He argues that he is aware that the Honourable Court on 9th August 2023 delivered a ruling on the Applicant's Application for reinstatement where it dismissed it noting that the Applicant had the option of filing a fresh Application for leave instead of seeking to revive an Application that had otherwise been spent.
18. The Application herein therefore has no legs to stand on having been filed within a suit which had already been closed and without an Order of reinstatement according to him.
19. According to him these facts were not brought to the attention of the Court while bringing the present Application including the Chamber summons seeking leave. While this Honourable Court without the benefit of the facts granted leave to the Applicant to file a substantive motion within 7 days of 14th November 2023 when the leave was granted.
20. The Applicant did not file a substantive motion until 22nd January 2024 as a result of which the present Application is incurably defective and should be struck out with costs to the Interested Party.
21. He argues that he is the registered proprietor of all that property known as Plot No. 357 within Buruburu Riverbank Settlement Scheme (City Carton) having been issued by the Nairobi City Council the Allotment Letter Referenced CPD/ 5456 and dated 14th October 2002 and having paid the requisite fees and subsequent annual rates per the Allotment Letter and the confirmation of payment of Allotment Fees.
22. He litigated in Milimani ELC Case No. 636 0 2016 Robert Kang'ethe Ndegwa vs County Government of Nairobi & Another over the said Plot whereby Judgment was entered in his favour in the following terms: -
1) That it is hereby declared that the Plaintiff is the bonafide owner of all that land known as Plot No. 357 situated within Buruburu River Bank Settlement Scheme and within Nairobi.
2) That it is hereby declared that the re-allotment of the said Plot was done illegally, unprocedurally, is rooted in fraud and/or misrepresentation of facts and therefore no other party save for the Plaintiff has got legitimate proprietary right over the scone.
3) That a permanent injunction is issued restraining the 1 st and 2nd Defendants whether by themselves or their servants or agents from dealing, re-allocating, allotting and/or interfering whatsoever with Plot No. 357.
4) That an order is issued directing the 1st and 2nd Defendants to cancel any allotment, certificate of lease issued to any other party and instead the Plain tiff be registered as the owner.
5) That the Plaintiff is awarded costs of the suit and interest from the date of filing the suit herein.
23. The criminal proceedings herein relate to forcible detainer of his Plot No. 357 as aforesaid and not Plot No. 149 as alleged by the Applicant as seen in the Summons dated 18th February 2022 addressed to the Applicant by the OCS Buruburu in which reference is made to ELC Case No. 636 of 2016.
24. I t is his case that the Applicant, has deliberately failed to disclose past engagements between himself and him as well as the local administration in a bid to have him vacate from his plot.
25. He relies on the Agreement dated 22 November 2021,wherein the Applicant acknowledged Plot No. 357 to be his and he sought the Interested Parties indulgence to have him vacate in three months' time.
26. The Applicant also requested that he compensate him KShs. 20,000.00 being the costs of his iron sheets.
27. The Agreement read as follows in part: -
“Meeting held on 22nd Nov 2020 at 15.36 pm at Buruburu River Bank concerning Plot Nor 357 situated at Buruburu River Bank. The Plot is owned by Robert Ndegwa ID No. 0562827.
I Peter Olare have (sic) agreed to remove the iron sheet plus two rooms built on or before 31st March 2021. Mr. Ndegwa have Agreed to wait for MP. Olare to retnove’’
28. Upon the lapse of 3 months requested, the Applicant declined to vacate and has been forcibly on his property despite knowledge of the Judgement of the Court declaring me the bona fide owner of the plot and further obtaining from me the KShs. 20,000.00 knowing very well that he is not going to vacate as promised.
29. The illegal structures have also extended and blocked the access road from behind. The Applicant is therefore illegally in possession of his land.
30. The Respondents are well within their constitutional and statutory mandate to institute criminal proceedings against any person for the offence of forcible detainer as provided for under Section 91 of the Penal Code where a complaint has satisfied the elements thereof being:
a) A person has actual possession of land;
b) The person has no right over the land;
c) The act of possession is against the interests of the legal owner or the person legally entitled to the land; and,
d) The act of possession of the land is, therefore, likely to cause a breach of the peace or a reasonable apprehension of the breach of the peace.
31. The Applicant according to him has not produced any document to show ownership over Plot No. 357 which is the subject of the impending criminal charges facing him.
Analysis and determination;
The issues for determination by this court are;
a. Whether a Judicial Review Application has merit.
b. Who shall bear the costs?
Whether a Judicial Review Application has merit;
32. The Applicant seeks orders of order of prohibition against the Respondents to restrain them from arresting, charging, detaining, harassing, intimidating or instituting any criminal prosecution or prosecuting the Applicant arising out of ownership of plot no. 149, Buruburu River Resettlement Scheme and the Applicant occupation of the same.
33. In order to succeed the Applicant has to demonstrate that the Respondents acted in an illegal, irregular or an unreasonable manner.
34. In the case of 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).”
35. Section 35 of the National Police Service Act sets the duties of the Directorate of Criminal Investigations as below;
“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.”
36. In the case of Republic vs Commissioner of Police and Another Exparte Michael Monari & Another (2012) eKLR 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.”
37. This court does not see any malice in the way the Respondents are conducting the impugned processes. The manner in which the investigations were conducted in this court’s view are fair and reasonable. The Applicant’s unfounded allegations that are devoid of proof cannot by any standards under any criminal justice system form the basis for the grant of the orders sought.
38. There is no set template, methodology or scientific approach that investigations should follow. Investigations and prosecution are processes are unique to each case.
39. They cannot be the same. The court cannot limit nor regulate the investigators conduct their business so long as it is within the Constitution and the guiding statutory framework.
40. The Applicant has failed to prove that what the Respondents are doing is contrary to the constitutional values and principles that underlie the administration of the criminal justice system.
41. The Applicant cannot dictate how an investigating officer should work while discharging his statutory mandate unless there is a clear violation of the Applicant's rights. The Applicant didn't prove that.
42. The Applicant has not proven how the Respondents have acted ultra vires, illegally or in any unprocedural form.
43. The power to investigate crime is an important component of the criminal justice system. The police are under a duty under the National Police Act, to investigate crimes whenever they reported. To stop the police from investigating crimes would usher in anarchy.
44. This court notes that under the criminal justice system, once investigations are completed the, police file is usually forwarded to the director of public prosecutions who in exercise of his statutory mandate reviews the file and decides whether or not to charge the suspect. This process accords with Article 49 and Article 47 of our constitution.
45. The court finds that the Applicant has not demonstrated that there was an illegally in the manner the Respondents are discharging their duties.
46. The trial court will no doubt give the Applicant an opportunity to tender his evidence under Article 50 of the Constitution.
47. The Court ought not to usurp the Constitutional mandate of the Respondents unless the Applicant demonstrates that the Respondents acted illegally, irregularly and or with procedural Respondents which the Applicant has failed to demonstrate.
48. Had the Applicant demonstrated that the investigations and the prosecution constitute an illegality or abuse of process, this Court would not have hesitated in putting a halt to that.
49. In Republic vs Commissioner of Police and Another Exparte Michael Monari & Another [2012] eKLR 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. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. 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”.
50. It is this court’s finding and I so hold that the Applicant has failed to prove that the Respondents have abused discretion or exercised their discretion for an improper purpose; or acted in a manner that amounted to a breach of the duty to act fairly or that the Respondents have failed to exercise statutory discretion reasonably; or that the Respondents acted in a manner to frustrate the purpose of the Act donating the power, have fettered the discretion given or failed to exercise discretion; or that the Respondents have acted irrational and unreasonable.
51. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
“The Order of "Prohibition” issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
52. The fact that a civil Suit exist does not operate as a bar to criminal Prosecution. The issuance if the order of Prohibition as sought will take away the Interested Parties rights as a Complainant. It is my finding and I hold that the Applicant has not made out a case that the Respondents used abusive and coercive measures during criminal investigation processes to warrant the grant of the orders sought.
Costs;
53. In the case of Republic vs Rosemary Wairimu Munene, Exparte Applicant vs Ihururu Dairy Farmers Cooperative Society Ltd Judicial Review Application no 6 of 2014 the court held as follows:
“The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event....... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”
54. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR Odunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
55. Costs shall follow the event. The Applicant shall shoulder the costs.
Disposition:
56. The Application lacks merit.
Order:
The Application is dismissed with costs.
Dated, signed and delivered at Nairobi this 19th day of March, 2026.