Introduction
1. The Petition and Notice of Motion Application before the court are dated 5th January 2026. By the said Petition, the Petitioner challenges the constitutionality of the criminal proceedings against him in Milimani Criminal Case No. E787 of 2024, Republic v Ralph Edward Nzwii Nguma, in which the Petitioner is charged with cheating contrary to Section 315 of the Penal Code.
2. The Petitioner appeared in person. His Petition is based on the following grounds:
(i) that he was not arraigned within the time required by Article 49(1)(f) of the Constitution of Kenya, 2010 and that he was thereafter subjected to extra-judicial restraints without judicial sanction;
(ii) that the charge sheet in Milimani Criminal Case No. E787 of 2024 particularizes the location of the alleged offence as "Mbulia Farm Mtito Andei", a description which he states does not correspond to an identifiable place in Kenya, contrary to Article 50(2)(b) of the Constitution of Kenya, 2010;
(iii) that the prosecution has, over more than twenty-eight months, failed to commence trial and that the disclosure materials produced by the prosecution are defective on their face, contrary to Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya, 2010, as given effect by Section 42A of the Criminal Procedure Code; and
(iv) that the prosecution was instituted three days after an internal finding that the raid on his premises on 7th November 2023 was irregular, and immediately after a complaint he had lodged against the investigating officer, contrary to Article 157(11) of the Constitution of Kenya, 2010.
3. The Petitioner seeks the reliefs of certiorari and prohibition to terminate the prosecution; and, in the alternative, conservatory orders, declarations, mandamus directed to the Inspector-General of Police, constitutional damages, and costs.
4. The Petition is opposed by all the Respondents. The 3rd Respondent filed Grounds of Opposition dated 28th January 2026, stating that the Petition does not meet the precision threshold in constitutional pleadings set out in Anarita Karimi Njeru v Republic [1979] KLR 154, and that the complaints raised are ordinary incidents of a criminal trial properly resolved by the trial court. The 1st, 2nd and 4th Respondents filed a Replying Affidavit dated 4th February, deponed to by PC Joseph Ngatia, No. 82487. The affidavit disputes the account of the underlying transaction and the circumstances of arrest, and contends that the decision to charge followed due process under Article 157 of the Constitution of Kenya, 2010.
5. The Court has had the benefit of the full pleadings, evidence and submissions placed before it by the parties. This Judgment is rendered on the basis of those pleadings. I will set out the respective cases of the parties below.
The Petitioner's Case
6. The Petitioner avers that in or about October 2022 he entered into a professional consultancy engagement with the Order of Franciscan Friars Minor in connection with a land project at Mbulia Group Ranch, Taita Taveta County, and received a professional advance of USD 20,000. He avers that he engaged Kolmans Geomatic Consultants, a licensed survey firm, paid it approximately USD 7,500, issued itemized professional invoices, and maintained regular communication with his client. When the project did not proceed as planned, he refunded Kes. 1,000,000 to the client by RTGS bank transfer, a fact the Petitioner claims the charge sheet does not reference.
7. The Petitioner avers that on 7th November 2023, officers of the 2nd Respondent raided his home; that CCTV footage of the incident was subsequently deleted; and that he was arrested and paid cash bail of Kes. 100,000/= the same day under Receipt Serial No. 1796383. He further avers that he was not charged until 6th August 2024, and that during the intervening period he was required to report weekly to Parklands Police Station for approximately seven months and was subjected to a passport stop order.
8. It is the Petitioner's case that the charge preferred against him on 6th August 2024 alleges that he falsely pretended to conduct public participation at "Mbulia Farm Mtito Andei". He avers that Mbulia Ranch is in Taita Taveta County and Mtito Andei is in Makueni County; the two places are in different counties, and the composite description corresponds to no identifiable place in Kenya. He further states that the identical description is repeated verbatim in the Replying Affidavit of the investigating officer, sworn in these proceedings.
9. The Petitioner avers that he lodged a formal complaint on 16th May 2024 against the conduct of the investigating team during the raid at his premises, registered as Inquiry No. 59 of 2024; that he was informed in early August 2024 that the raid had been found irregular; and that he was charged three days later. He contends that this sequence, together with the investigating officer's alleged obstruction of the very inquiry into his own conduct, discloses an improper, retaliatory purpose contrary to Article 157(11) of the Constitution of Kenya 2010.
10. Following the charge in Milimani Criminal Case No. E787 of 2024, Republic v Ralph Edward Nzwii Nguma, the matter was mentioned severally in Court. However, on none of the occasions the matter was mentioned was it for plea-taking up to and including 27th August 2025. The Petitioner avers that the pre-trial disclosure materials are defective on their face. Several statements are unsigned and bear no recording officer's endorsement; the Petitioner's recorded statement does not reflect what he told the recording officer; and the complainant's statement bears no notary signature or seal and contains unreplaced template text and inconsistent dates.
11. The Petitioner avers that the Kes. 100,000 he paid on 7th November 2023 has not been refunded; that the trial court acknowledged the non-refund as a rights issue but held it lacked jurisdiction to compel a refund; and that a substitute receipt for Kes. 10,000, Serial No. 1836917, was subsequently produced by the police; a discrepancy, he states, remains unexplained.
12. The Petitioner avers that he was compelled to vacate his home with his family following the public labelling of him as a "drug dealer" and "scammer" by state agents, that his spouse has had to seek psychological support, and that his professional practice has been disrupted.
13. The Petitioner filed a Rejoinder dated 28th January 2026 in response to the 3rd Respondent's Grounds of Opposition and a Further Replying affidavit dated 5th February 2026 to the 1st, 2nd and 4th Respondents' Replying affidavit. His position is that the Respondents' answers fail to grapple with specific, document-based points raised in the Petition and that Section 193A of the Criminal Procedure Code does not immunize a prosecution said to be constitutionally defective at its foundation.
14. The Petitioner urges the Court to grant writs of certiorari and prohibition to terminate the prosecution, or, in the alternative, conservatory orders, declarations, orders of mandamus, and constitutional damages, together with costs.
The Responses of the Respondents
15. The 3rd Respondent filed Grounds of Opposition dated 28th January 2026, contending that the Notice of Motion application and Petition are incompetent, misconceived and an abuse of process; that no prima facie case is disclosed, since the complaints raised are matters for the trial court to decide; that adequate remedies exist within the criminal process itself; and that Section 193A of the Criminal Procedure Code confirms that a civil or contractual substratum does not bar a criminal prosecution founded on the same facts.
16. The 1st, 2nd and 4th Respondents filed a Replying Affidavit, deposed to by PC Joseph Ngatia, No. 82487, the lead investigating officer, on 4th February 2026. The Affidavit places before the Court a specific factual account that materially conflicts with the Petitioner's narrative.
17. PC Ngatia deposes that the complaint originated from Rev. Kisoo Kim under OB No. 51/12/10/2023, alleging that the Petitioner had been given USD 20,000 for a project at "Mbulia Ranch in Mtito Andei" involving public participation for a hospital, school, youth training centre and grape farming project that never materialized, and that the Petitioner thereafter made unfulfilled promises before becoming unreachable. He deposes that statements confirming the project never took place were recorded from named individuals, as particularized in his replying affidavit.
18. On the circumstances of arrest, PC Ngatia deposed that the Petitioner was sighted in Westlands and was arrested only after the intervention of a named public figure, because the Petitioner had locked himself in his house to avoid arrest; that he was thereafter escorted to the station, his statement was recorded, and he was released on cash bail. The charge sheet is exhibited as "JN-1" and records the cash bail amount as Kes. 10,000.
19. The 1st, 2nd and 4th Respondents contended that the 1st Respondent acted in accordance with Article 157 of the Constitution of Kenya, 2010, the Office of the Director of Public Prosecutions Act, and the National Prosecution Policy. They averred that Section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings, and that the Petitioner has, at most, disclosed matters of defence properly tested at trial, not a constitutional violation warranting this Court's intervention.
20. It is noteworthy that the Replying Affidavit fails to explain why the charge particularizes the location as "Mbulia Farm, Mtito Andei", despite PC Ngatia's own narrative identifying it simply as "Mbulia ranch". Nor does it explain the temporal proximity between the finding of irregularity in the November 2023 raid, the Petitioner's complaint against PC Ngatia, and the decision to charge three days later. It also fails to address the alleged destruction of CCTV footage, the discrepancy between Receipt Serial Nos. 1796383 and 1836917, or the specific authentication defects later raised in the Supplementary Affidavit of 2nd March 2026 concerning the disclosure bundle.
21. Directions were issued on 17th February 2026, the criminal matter was placed before the trial court on 24th February 2026, and the Notice of Motion was subsumed into the Petition for determination. On 24th February 2026, the prosecution undertook before the trial court to serve outstanding pre-trial disclosure materials on or before 18th March 2026, which date was also fixed for confirmation of Section 42A(2) compliance. Against that backdrop, the Petitioner swore and filed the Supplementary Affidavit of 2nd March 2026, updating the record and raising issues specific to disclosure.
The Submissions of the Parties
The Submissions of the Petitioner
22. The Petitioner filed his Written Submissions dated 11th March 2026. He submitted that this Court's jurisdiction under Articles 22, 23 and 165(3)(b) and (d) of the Constitution of Kenya, 2010, is not ousted by Section 193A of the Criminal Procedure Code. He relied on Sharma v Attorney General & 3 others [2025] KECA 1470 (KLR) and Eric Kyalo Mutua v Inspector General of Police & others [2021] KEHC 8 (KLR) to support the proposition that a Constitutional Petition testing the legality of the process is distinct from the criminal trial testing guilt, and that the two may proceed concurrently.
23. Regarding Article 49(1)(f) of the Constitution of Kenya, 2010, he relied on Abbey & another v Attorney General & 7 others [2024] KEHC 7502 (KLR) to support the proposition that a restraint short of continuous physical custody, imposed beyond the constitutionally permitted period without judicial sanction, is nonetheless a violation.
24. On Article 50(2)(b) of the Constitution of Kenya, 2010 he relied on Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR for the precision standard, and submitted that a charge whose locus corresponds to no identifiable place is facially incoherent, and that its prolonged maintenance over two years is not shown to be a mere curable clerical variance, citing Richard Kibet Busienei v Republic [2020] KEHC 7799 (KLR) on the fair-trial weight to be given to amendment under Section 214 of the Criminal Procedure Code.
25. He relied on Republic v NKG [2020] KEHC 3661 (KLR) and Joseph Nduvi Mbuvi v Republic [2019] eKLR, submitting that twenty-eight months without a single witness testifying, together with unsigned and unauthenticated disclosure materials, demonstrate a sustained violation of the right to a timely trial and advance disclosure under Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya, 2010.
26. He relied on Julius Kiplagat Korir v DPP & another [2021] KEHC 2541 (KLR), Saisi & 7 others v DPP & 2 others [2023] KESC 6 (KLR), and Mutisya v DPP & 2 others [2025] KEHC 4733 (KLR), submitting that under Article 157(11) of the Constitution of Kenya, 2010, the burden shifted to the State to explain what fair-minded, independent observers might regard as retaliatory timing and the alleged obstruction of the internal inquiry, and that this burden had not been discharged.
27. On Article 40 of the Constitution of Kenya,2010, he relied on Gaolei v Parklands Police Station & 3 others [2023] KEHC 22322 (KLR) and Titus Mwangi Kabuthu v Republic [2019] KEHC 10255 (KLR) for the proposition that police cash bail is presumed to remain with the State absent proof of refund, and that this Court may correct the position where the trial court has declined jurisdiction to do so.
29. On the test for termination, he relied on the R.P. Kapur Guidelines, the landmark principles laid down by the Supreme Court of India in R.P. Kapur v. State of Punjab (1960), as adopted in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR and confirmed in Dande & 3 others v Inspector General, National Police Service & 4 others [2023] KESC (KLR), and submitted that multiple limbs of that test are satisfied cumulatively.
The Submissions of the Respondents
30. The 3rd Respondent filed submisisons dated 13th April 2026. It is its position that the Petition falls short of the precision threshold in Anarita Karimi Njeru (supra) and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, and amounts to dressing up ordinary trial-management complaints as constitutional violations.
31. Relying on Meixner & Another v Attorney General [2005] 2 KLR 189, it submitted that the sufficiency of a charge and the adequacy of the evidence gathered are matters for the trial court, and that this Court ought not, under the guise of constitutional jurisdiction, embark on issues reserved for the trial court.
32. On the fair-trial complaint, it relied on Karanja v Director of Public Prosecution & another [2025] KEHC 8973 (KLR) for the proposition that Article 50 of the Constitution of Kenya, 2010 applies within an actual trial and not at the pre-trial stage.
33. On delay, it relied on Republic v Director of Public Prosecutions & 4 others Ex-parte Arthur Agoro Saola [2018] KEHC 922 (KLR) to support the proposition that it is the effect of delay, not its mere length, that determines whether proceedings ought to be halted, and submitted that the Petitioner has not shown any impairment of his ability to mount a defence.
34. On the malice and retaliation allegation, it relied on Kuria & 3 Others v Attorney General [2002] 2 KLR 69 to support the proposition that the power to halt a prosecution is exercised sparingly and only in the clearest of cases, and submitted that PC Ngatia's Replying Affidavit discloses a factual basis for the prosecution sufficient to negate any suggestion of arbitrariness.
35. It relied on Republic v DPP & 4 Others ex parte Simion Nyamanya Ondiba [2018] eKLR and Daniel Ndungu v Director of Public Prosecutions & Another [2013] eKLR to support the proposition that an accused person must ordinarily face his accusers and that the Petition is premature and ought to be dismissed with costs.
36. The 1st, 2nd and 4th Respondents filed submissions dated 22nd April 2026. They relied on Article 157(6) of the Constitution of Kenya, 2010, and on Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015, to argue that the 1st Respondent's charging discretion is constitutionally insulated from interference and that the decision to charge followed the Decision to Charge Guidelines, 2019, based on an investigative file disclosing reasonable suspicion. In support of the said proposition they cited the case of Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another, Misc. Application No. 68 of 2011.
37. They relied on Sigilani v Republic [2004] eKLR and Yongo v Republic [1983] KLR 79, in support of the contention that a charge sheet is defective only where the defect occasions a failure of justice or prejudices the accused's defence, and that any misdescription of the location is a curable irregularity under Section 382 of the Criminal Procedure Code, citing Cascade Company Limited v Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014, for the proposition that the Respondents ought not to be unnecessarily inhibited from exercising their constitutional mandate.
38. On concurrency, they relied on Section 193A of the Criminal Procedure Code to support the proposition that the existence of matters that might also found a civil claim is no ground to stay a criminal prosecution.
39. On the standard for establishing a constitutional violation, they relied on Leonard Otieno v Airtel Kenya Limited [2018] eKLR for the proposition that decisions on violation of constitutional rights cannot be made in a factual vacuum, and on Anarita Karimi Njeru (supra) and Mumo Matemu (supra) for the precision principle, submitting that the Petitioner has merely enumerated Articles without the requisite precision. They submitted that the Petition be dismissed with costs on the grounds that it is frivolous, vexatious, and an abuse of process.
Analysis and Determination
40. I have considered the Petition, the responses thereto, as well as the written submissions filed herein. In my view, the following issues arise for determination:
(i) Whether this Court has jurisdiction to entertain the Petition during the pendency of Milimani Criminal Case No. E787 of 2024;
(ii) Whether the Petitioner's right to be arraigned in court without unreasonable delay, and to be free from restraint on his liberty and movement without judicial sanction under Article 49(1)(f) of the Constitution of Kenya,2010 was violated;
(iii) Whether the charge preferred against the Petitioner in Milimani Criminal Case No. E787 of 2024 meets the constitutional threshold of sufficient detail required under Article 50(2)(b) of the Constitution;
(iv) Whether the delay in prosecuting the Petitioner, and the adequacy of the disclosure made to him, violated his rights to a fair trial without unreasonable delay and to advance disclosure of the evidence against him, guaranteed under Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya,2010 as read with Section 42A of the Criminal Procedure Code;
(v) Whether the prosecution of the Petitioner was instituted and/or is being maintained contrary to Article 157(11) of the Constitution of Kenya,2010;
(vi) Whether the Petitioner's right to property under Article 40 of the Constitution of Kenya,2010 has been violated by the continued retention of, and failure to account for, his cash bail; and
(vii) What reliefs, if any, this Court should grant.
Whether this Court has jurisdiction to entertain the Petition during the pendency of Milimani Criminal Case No. E787 of 2024
41. This Court's jurisdiction under Articles 22, 23 and 165(3)(b) and (d) of the Constitution of Kenya, 2010 to inquire into the constitutionality of a criminal process as distinct from the guilt or innocence of the accused, which remains for the trial court, is well settled in a long line of decisions of the Courts of record. See Sharma v Attorney General & 3 others [2025] KECA 1470 (KLR) and Eric Kyalo Mutua v Inspector General of Police & others [2021] KEHC 8 (KLR). Section 193A of the Criminal Procedure Code, which provides for the concurrency of civil and criminal proceedings, does not oust it. The real question, correctly framed by the 3rd Respondent, is not whether this Court may inquire, but whether the Petitioner has made out a case falling within that inquiry on the record before the Court.
Whether the Petitioner's right to be arraigned in court without unreasonable delay, and to be free from restraint on his liberty and movement without judicial sanction under Article 49(1)(f) of the Constitution of Kenya, 2010 was violated
42. Article 49(1)(f) of the Constitution of Kenya,2010 speaks to the timelines within which an arrested person should be brought before a court, i.e. within twenty-four hours of their arrest, or on the next available court day. In Kariuki v Director of Public Prosecutions & 3 others; Wangila & 2 others (Interested Parties) [2024] KEHC 834 (KLR), the High Court confirmed that a violation of this Article is established where the delay in presentation before court is not accounted for by the Respondents on the record before it.
43. The Replying Affidavit of PC Ngatia offers a materially different account of events leading to the arrest of the Petitioner. He averred that the Petitioner evaded arrest by locking himself in his house, was sighted in Westlands, and was arrested only after the intervention of a named public figure. The parties were not cross-examined as to the evidence in their affidavits. Without that, the court cannot resolve the issues relating to the arrest and arraignment. But that account explains only the interval before the Petitioner's arrest and release on cash bail on 7th November 2023. It does not explain, and does not purport to explain, the further nine-month interval between the arrest and his arraignment on 6th August 2024.
44. Article 49(1)(f) of the Constitution of Kenya, 2010, is triggered by arrest. It was not suspended when the Petitioner was placed under reporting conditions and a passport restriction. On the record, the Petitioner was required to report weekly to Parklands Police Station for seven months and was subjected to a passport stop order. Neither Respondent has deposed that either measure was judicially sanctioned.
45. The Court accordingly finds that Article 49(1)(f) of the Constitution of Kenya, 2010, was violated in respect of the nine-month interval between arrest and arraignment, and that the Petitioner's liberty and freedom of movement were further constrained without judicial sanction during that period, contrary to Articles 29 and 39 of the Constitution of Kenya, 2010. This finding, without more, does not warrant termination of a subsequently and separately instituted charge.
Whether the charge preferred against the Petitioner in Milimani Criminal Case No. E787 of 2024 meets the constitutional threshold of sufficiency of detail under Article 50(2)(b) of the Constitution
46. Article 50(2)(b) of the Constitution of Kenya,2010 guarantees an accused person the right to be informed of the charge with sufficient detail to answer it. The decision in Sigilani v Republic [2004] eKLR and Yongo v Republic [1983] KLR 79, relied on by the Respondents, states that the operative standard is sufficiency of detail rather than technical perfection, and that a defect is fatal only where it occasions a failure of justice or prejudices the defence. The Court of Appeal in Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 held that contradictions going to a material particular of a charge, left uncured by amendment, can taint the resulting proceedings.
47. Applying that framework does not assist the Respondents here. The Charge Sheet states "Mbulia Farm Mtito Andei". The Petitioner states that Mbulia Ranch is in Taita Taveta County and Mtito Andei is in Makueni County; the composite description corresponds to no identifiable place. Far from resolving this, PC Ngatia's own narrative in the Replying Affidavit refers to "Mbulia Ranch" as the site of the project, confirming that the investigating team knew, or could readily have ascertained, the correct location, and that the erroneous composite description has nonetheless persisted through the Charge Sheet and into a sworn affidavit filed in these very proceedings. This is not a case of an immaterial variance of the kind considered in Sigilani v Republic [2004] eKLR and Yongo v Republic [1983] KLR 79, since the location of an alleged occurrence said to have been made on false pretences is an element the accused must be able to meet in a charge under Section 315 of the Penal Code. A charge that cannot be geographically anchored, when a correct location is demonstrably known to the prosecution, is not a matter of form.
48. That said, the Court is not persuaded that this defect, standing alone, warrants quashing the prosecution of the charges preferred against the Petitioner. Section 214 of the Criminal Procedure Code permits amendment where a variance between the charge and the evidence emerges, and the Petitioner does not dispute that this power exists. What he has shown, and what the Respondents have not answered, is that the defect has persisted for approximately two years without correction. The constitutional injury lies in that persistence and the absence of any explanation for it, not in the mere existence of a correctable defect.
49. The Court therefore finds that the charge sheet, as it presently stands, does not meet the standard set out in Article 50(2)(b) of the Constitution of Kenya, 2010, but this can be cured by amending the charge sheet pursuant to Section 214 of the Criminal Procedure Code.
Whether the delay in prosecuting the Petitioner, and the adequacy of the disclosure made to him, violated his rights to a fair trial without unreasonable delay and to advance disclosure of the evidence against him, guaranteed under Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya,2010 as read with Section 42A of the Criminal Procedure Code
50. On delay, I agree with the 3rd Respondent’s position that there is no statutory limitation period for prosecuting serious offences, and that the reasoning in Republic v Director of Public Prosecutions & 4 others Ex-parte Arthur Agoro Saola [2018] KEHC 922 (KLR) is that it is delay, rather than its length, that determines whether proceedings ought to be halted. The Petitioner has not, on this record, identified any specific prejudice in the prosecution of the matter, nor has the Petitioner proved that termination is merited under Article 50(2)(e) of the Constitution of Kenya, 2010.
51. The quality of disclosure is a separate matter, and must be assessed together with delay since Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya,2010 operate in tandem. See BA v Attorney General & 2 others (Petition E503 of 2023) [2025] KEHC 19223 (KLR). The Respondents' evidence, through PC Ngatia, establishes that the prosecution has an evidentiary foundation. A named complainant and five named witnesses whose statements are said to confirm the underlying transaction are identified. That materially answers any suggestion that the charge rests on nothing at all.
52. It does not, however, address the specific and later-arising concerns raised in the Supplementary Affidavit about the physical integrity of the disclosure bundle actually furnished. These include statements said to be unsigned and unendorsed; a recorded statement of the Petitioner's own account said to be materially inaccurate; and a complainant's statement presented as notarized yet said to bear no notary signature or seal and to contain unreplaced template text. The existence of witnesses is not the same thing as the existence of a properly authenticated disclosure of documents.
53. Article 50(2)(j) of the Constitution of Kenya, 2010, entitles an accused person to be informed in advance of the evidence to be relied upon, in a form fit to be relied upon. See Joseph Nduvi Mbuvi v Republic [2019] eKLR. Since these specific defects were raised after PC Ngatia's affidavit was sworn and were not controverted by any further affidavit, despite the opportunity to do so before the written submissions were filed in April 2026, they stand unanswered.
54. The trial court fixed 18th March 2026 as the date for confirming compliance pursuant to Section 42A(2) of the Criminal Procedure Code. This function properly reposed in the trial court, and one this Court approaches with due deference to the said Court. It would, however, be an abdication of this Court's own supervisory role under Article 165(3)(b) and (d) of the Constitution of Kenya,2010 to permit that confirmation to proceed, or a trial to commence, on a disclosure record carrying the specific, unrebutted defects identified above without those defects being squarely addressed. A conservatory order suspending the commencement of trial, and any confirmation of Section 42A(2) compliance already made or yet to be made on the strength of the present disclosure bundle, is warranted to allow the prosecution to produce a properly executed and authenticated statement from the complainant, or to explain on oath its inability to do so, and to remedy the other defects identified.
Whether the prosecution of the Petitioner was instituted and/or is being maintained contrary to Article 157(11) of the Constitution of Kenya,2010.
55. Article 157(11) of the Constitution of Kenya,2010 requires the 1st Respondent to have regard to the public interest in exercising prosecutorial power. This includes the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The modern authorities converge
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1. The Petition and Notice of Motion Application before the court are dated 5th January 2026. By the said Petition, the Petitioner challenges the constitutionality of the criminal proceedings against him in Milimani Criminal Case No. E787 of 2024, Republic v Ralph Edward Nzwii Nguma, in which the Petitioner is charged with cheating contrary to Section 315 of the Penal Code.
2. The Petitioner appeared in person. His Petition is based on the following grounds:
(i) that he was not arraigned within the time required by Article 49(1)(f) of the Constitution of Kenya, 2010 and that he was thereafter subjected to extra-judicial restraints without judicial sanction;
(ii) that the charge sheet in Milimani Criminal Case No. E787 of 2024 particularizes the location of the alleged offence as "Mbulia Farm Mtito Andei", a description which he states does not correspond to an identifiable place in Kenya, contrary to Article 50(2)(b) of the Constitution of Kenya, 2010;
(iii) that the prosecution has, over more than twenty-eight months, failed to commence trial and that the disclosure materials produced by the prosecution are defective on their face, contrary to Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya, 2010, as given effect by Section 42A of the Criminal Procedure Code; and
(iv) that the prosecution was instituted three days after an internal finding that the raid on his premises on 7th November 2023 was irregular, and immediately after a complaint he had lodged against the investigating officer, contrary to Article 157(11) of the Constitution of Kenya, 2010.
3. The Petitioner seeks the reliefs of certiorari and prohibition to terminate the prosecution; and, in the alternative, conservatory orders, declarations, mandamus directed to the Inspector-General of Police, constitutional damages, and costs.
4. The Petition is opposed by all the Respondents. The 3rd Respondent filed Grounds of Opposition dated 28th January 2026, stating that the Petition does not meet the precision threshold in constitutional pleadings set out in Anarita Karimi Njeru v Republic [1979] KLR 154, and that the complaints raised are ordinary incidents of a criminal trial properly resolved by the trial court. The 1st, 2nd and 4th Respondents filed a Replying Affidavit dated 4th February, deponed to by PC Joseph Ngatia, No. 82487. The affidavit disputes the account of the underlying transaction and the circumstances of arrest, and contends that the decision to charge followed due process under Article 157 of the Constitution of Kenya, 2010.
5. The Court has had the benefit of the full pleadings, evidence and submissions placed before it by the parties. This Judgment is rendered on the basis of those pleadings. I will set out the respective cases of the parties below.
The Petitioner's Case
6. The Petitioner avers that in or about October 2022 he entered into a professional consultancy engagement with the Order of Franciscan Friars Minor in connection with a land project at Mbulia Group Ranch, Taita Taveta County, and received a professional advance of USD 20,000. He avers that he engaged Kolmans Geomatic Consultants, a licensed survey firm, paid it approximately USD 7,500, issued itemized professional invoices, and maintained regular communication with his client. When the project did not proceed as planned, he refunded Kes. 1,000,000 to the client by RTGS bank transfer, a fact the Petitioner claims the charge sheet does not reference.
7. The Petitioner avers that on 7th November 2023, officers of the 2nd Respondent raided his home; that CCTV footage of the incident was subsequently deleted; and that he was arrested and paid cash bail of Kes. 100,000/= the same day under Receipt Serial No. 1796383. He further avers that he was not charged until 6th August 2024, and that during the intervening period he was required to report weekly to Parklands Police Station for approximately seven months and was subjected to a passport stop order.
8. It is the Petitioner's case that the charge preferred against him on 6th August 2024 alleges that he falsely pretended to conduct public participation at "Mbulia Farm Mtito Andei". He avers that Mbulia Ranch is in Taita Taveta County and Mtito Andei is in Makueni County; the two places are in different counties, and the composite description corresponds to no identifiable place in Kenya. He further states that the identical description is repeated verbatim in the Replying Affidavit of the investigating officer, sworn in these proceedings.
9. The Petitioner avers that he lodged a formal complaint on 16th May 2024 against the conduct of the investigating team during the raid at his premises, registered as Inquiry No. 59 of 2024; that he was informed in early August 2024 that the raid had been found irregular; and that he was charged three days later. He contends that this sequence, together with the investigating officer's alleged obstruction of the very inquiry into his own conduct, discloses an improper, retaliatory purpose contrary to Article 157(11) of the Constitution of Kenya 2010.
10. Following the charge in Milimani Criminal Case No. E787 of 2024, Republic v Ralph Edward Nzwii Nguma, the matter was mentioned severally in Court. However, on none of the occasions the matter was mentioned was it for plea-taking up to and including 27th August 2025. The Petitioner avers that the pre-trial disclosure materials are defective on their face. Several statements are unsigned and bear no recording officer's endorsement; the Petitioner's recorded statement does not reflect what he told the recording officer; and the complainant's statement bears no notary signature or seal and contains unreplaced template text and inconsistent dates.
11. The Petitioner avers that the Kes. 100,000 he paid on 7th November 2023 has not been refunded; that the trial court acknowledged the non-refund as a rights issue but held it lacked jurisdiction to compel a refund; and that a substitute receipt for Kes. 10,000, Serial No. 1836917, was subsequently produced by the police; a discrepancy, he states, remains unexplained.
12. The Petitioner avers that he was compelled to vacate his home with his family following the public labelling of him as a "drug dealer" and "scammer" by state agents, that his spouse has had to seek psychological support, and that his professional practice has been disrupted.
13. The Petitioner filed a Rejoinder dated 28th January 2026 in response to the 3rd Respondent's Grounds of Opposition and a Further Replying affidavit dated 5th February 2026 to the 1st, 2nd and 4th Respondents' Replying affidavit. His position is that the Respondents' answers fail to grapple with specific, document-based points raised in the Petition and that Section 193A of the Criminal Procedure Code does not immunize a prosecution said to be constitutionally defective at its foundation.
14. The Petitioner urges the Court to grant writs of certiorari and prohibition to terminate the prosecution, or, in the alternative, conservatory orders, declarations, orders of mandamus, and constitutional damages, together with costs.
The Responses of the Respondents
15. The 3rd Respondent filed Grounds of Opposition dated 28th January 2026, contending that the Notice of Motion application and Petition are incompetent, misconceived and an abuse of process; that no prima facie case is disclosed, since the complaints raised are matters for the trial court to decide; that adequate remedies exist within the criminal process itself; and that Section 193A of the Criminal Procedure Code confirms that a civil or contractual substratum does not bar a criminal prosecution founded on the same facts.
16. The 1st, 2nd and 4th Respondents filed a Replying Affidavit, deposed to by PC Joseph Ngatia, No. 82487, the lead investigating officer, on 4th February 2026. The Affidavit places before the Court a specific factual account that materially conflicts with the Petitioner's narrative.
17. PC Ngatia deposes that the complaint originated from Rev. Kisoo Kim under OB No. 51/12/10/2023, alleging that the Petitioner had been given USD 20,000 for a project at "Mbulia Ranch in Mtito Andei" involving public participation for a hospital, school, youth training centre and grape farming project that never materialized, and that the Petitioner thereafter made unfulfilled promises before becoming unreachable. He deposes that statements confirming the project never took place were recorded from named individuals, as particularized in his replying affidavit.
18. On the circumstances of arrest, PC Ngatia deposed that the Petitioner was sighted in Westlands and was arrested only after the intervention of a named public figure, because the Petitioner had locked himself in his house to avoid arrest; that he was thereafter escorted to the station, his statement was recorded, and he was released on cash bail. The charge sheet is exhibited as "JN-1" and records the cash bail amount as Kes. 10,000.
19. The 1st, 2nd and 4th Respondents contended that the 1st Respondent acted in accordance with Article 157 of the Constitution of Kenya, 2010, the Office of the Director of Public Prosecutions Act, and the National Prosecution Policy. They averred that Section 193A of the Criminal Procedure Code permits concurrent civil and criminal proceedings, and that the Petitioner has, at most, disclosed matters of defence properly tested at trial, not a constitutional violation warranting this Court's intervention.
20. It is noteworthy that the Replying Affidavit fails to explain why the charge particularizes the location as "Mbulia Farm, Mtito Andei", despite PC Ngatia's own narrative identifying it simply as "Mbulia ranch". Nor does it explain the temporal proximity between the finding of irregularity in the November 2023 raid, the Petitioner's complaint against PC Ngatia, and the decision to charge three days later. It also fails to address the alleged destruction of CCTV footage, the discrepancy between Receipt Serial Nos. 1796383 and 1836917, or the specific authentication defects later raised in the Supplementary Affidavit of 2nd March 2026 concerning the disclosure bundle.
21. Directions were issued on 17th February 2026, the criminal matter was placed before the trial court on 24th February 2026, and the Notice of Motion was subsumed into the Petition for determination. On 24th February 2026, the prosecution undertook before the trial court to serve outstanding pre-trial disclosure materials on or before 18th March 2026, which date was also fixed for confirmation of Section 42A(2) compliance. Against that backdrop, the Petitioner swore and filed the Supplementary Affidavit of 2nd March 2026, updating the record and raising issues specific to disclosure.
The Submissions of the Parties
The Submissions of the Petitioner
22. The Petitioner filed his Written Submissions dated 11th March 2026. He submitted that this Court's jurisdiction under Articles 22, 23 and 165(3)(b) and (d) of the Constitution of Kenya, 2010, is not ousted by Section 193A of the Criminal Procedure Code. He relied on Sharma v Attorney General & 3 others [2025] KECA 1470 (KLR) and Eric Kyalo Mutua v Inspector General of Police & others [2021] KEHC 8 (KLR) to support the proposition that a Constitutional Petition testing the legality of the process is distinct from the criminal trial testing guilt, and that the two may proceed concurrently.
23. Regarding Article 49(1)(f) of the Constitution of Kenya, 2010, he relied on Abbey & another v Attorney General & 7 others [2024] KEHC 7502 (KLR) to support the proposition that a restraint short of continuous physical custody, imposed beyond the constitutionally permitted period without judicial sanction, is nonetheless a violation.
24. On Article 50(2)(b) of the Constitution of Kenya, 2010 he relied on Anarita Karimi Njeru v Republic [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR for the precision standard, and submitted that a charge whose locus corresponds to no identifiable place is facially incoherent, and that its prolonged maintenance over two years is not shown to be a mere curable clerical variance, citing Richard Kibet Busienei v Republic [2020] KEHC 7799 (KLR) on the fair-trial weight to be given to amendment under Section 214 of the Criminal Procedure Code.
25. He relied on Republic v NKG [2020] KEHC 3661 (KLR) and Joseph Nduvi Mbuvi v Republic [2019] eKLR, submitting that twenty-eight months without a single witness testifying, together with unsigned and unauthenticated disclosure materials, demonstrate a sustained violation of the right to a timely trial and advance disclosure under Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya, 2010.
26. He relied on Julius Kiplagat Korir v DPP & another [2021] KEHC 2541 (KLR), Saisi & 7 others v DPP & 2 others [2023] KESC 6 (KLR), and Mutisya v DPP & 2 others [2025] KEHC 4733 (KLR), submitting that under Article 157(11) of the Constitution of Kenya, 2010, the burden shifted to the State to explain what fair-minded, independent observers might regard as retaliatory timing and the alleged obstruction of the internal inquiry, and that this burden had not been discharged.
27. On Article 40 of the Constitution of Kenya,2010, he relied on Gaolei v Parklands Police Station & 3 others [2023] KEHC 22322 (KLR) and Titus Mwangi Kabuthu v Republic [2019] KEHC 10255 (KLR) for the proposition that police cash bail is presumed to remain with the State absent proof of refund, and that this Court may correct the position where the trial court has declined jurisdiction to do so.
29. On the test for termination, he relied on the R.P. Kapur Guidelines, the landmark principles laid down by the Supreme Court of India in R.P. Kapur v. State of Punjab (1960), as adopted in Cyrus Shakhalaga Khwa Jirongo v Soy Developers Ltd & 9 others [2021] eKLR and confirmed in Dande & 3 others v Inspector General, National Police Service & 4 others [2023] KESC (KLR), and submitted that multiple limbs of that test are satisfied cumulatively.
The Submissions of the Respondents
30. The 3rd Respondent filed submisisons dated 13th April 2026. It is its position that the Petition falls short of the precision threshold in Anarita Karimi Njeru (supra) and Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, and amounts to dressing up ordinary trial-management complaints as constitutional violations.
31. Relying on Meixner & Another v Attorney General [2005] 2 KLR 189, it submitted that the sufficiency of a charge and the adequacy of the evidence gathered are matters for the trial court, and that this Court ought not, under the guise of constitutional jurisdiction, embark on issues reserved for the trial court.
32. On the fair-trial complaint, it relied on Karanja v Director of Public Prosecution & another [2025] KEHC 8973 (KLR) for the proposition that Article 50 of the Constitution of Kenya, 2010 applies within an actual trial and not at the pre-trial stage.
33. On delay, it relied on Republic v Director of Public Prosecutions & 4 others Ex-parte Arthur Agoro Saola [2018] KEHC 922 (KLR) to support the proposition that it is the effect of delay, not its mere length, that determines whether proceedings ought to be halted, and submitted that the Petitioner has not shown any impairment of his ability to mount a defence.
34. On the malice and retaliation allegation, it relied on Kuria & 3 Others v Attorney General [2002] 2 KLR 69 to support the proposition that the power to halt a prosecution is exercised sparingly and only in the clearest of cases, and submitted that PC Ngatia's Replying Affidavit discloses a factual basis for the prosecution sufficient to negate any suggestion of arbitrariness.
35. It relied on Republic v DPP & 4 Others ex parte Simion Nyamanya Ondiba [2018] eKLR and Daniel Ndungu v Director of Public Prosecutions & Another [2013] eKLR to support the proposition that an accused person must ordinarily face his accusers and that the Petition is premature and ought to be dismissed with costs.
36. The 1st, 2nd and 4th Respondents filed submissions dated 22nd April 2026. They relied on Article 157(6) of the Constitution of Kenya, 2010, and on Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015, to argue that the 1st Respondent's charging discretion is constitutionally insulated from interference and that the decision to charge followed the Decision to Charge Guidelines, 2019, based on an investigative file disclosing reasonable suspicion. In support of the said proposition they cited the case of Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another, Misc. Application No. 68 of 2011.
37. They relied on Sigilani v Republic [2004] eKLR and Yongo v Republic [1983] KLR 79, in support of the contention that a charge sheet is defective only where the defect occasions a failure of justice or prejudices the accused's defence, and that any misdescription of the location is a curable irregularity under Section 382 of the Criminal Procedure Code, citing Cascade Company Limited v Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014, for the proposition that the Respondents ought not to be unnecessarily inhibited from exercising their constitutional mandate.
38. On concurrency, they relied on Section 193A of the Criminal Procedure Code to support the proposition that the existence of matters that might also found a civil claim is no ground to stay a criminal prosecution.
39. On the standard for establishing a constitutional violation, they relied on Leonard Otieno v Airtel Kenya Limited [2018] eKLR for the proposition that decisions on violation of constitutional rights cannot be made in a factual vacuum, and on Anarita Karimi Njeru (supra) and Mumo Matemu (supra) for the precision principle, submitting that the Petitioner has merely enumerated Articles without the requisite precision. They submitted that the Petition be dismissed with costs on the grounds that it is frivolous, vexatious, and an abuse of process.
Analysis and Determination
40. I have considered the Petition, the responses thereto, as well as the written submissions filed herein. In my view, the following issues arise for determination:
(i) Whether this Court has jurisdiction to entertain the Petition during the pendency of Milimani Criminal Case No. E787 of 2024;
(ii) Whether the Petitioner's right to be arraigned in court without unreasonable delay, and to be free from restraint on his liberty and movement without judicial sanction under Article 49(1)(f) of the Constitution of Kenya,2010 was violated;
(iii) Whether the charge preferred against the Petitioner in Milimani Criminal Case No. E787 of 2024 meets the constitutional threshold of sufficient detail required under Article 50(2)(b) of the Constitution;
(iv) Whether the delay in prosecuting the Petitioner, and the adequacy of the disclosure made to him, violated his rights to a fair trial without unreasonable delay and to advance disclosure of the evidence against him, guaranteed under Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya,2010 as read with Section 42A of the Criminal Procedure Code;
(v) Whether the prosecution of the Petitioner was instituted and/or is being maintained contrary to Article 157(11) of the Constitution of Kenya,2010;
(vi) Whether the Petitioner's right to property under Article 40 of the Constitution of Kenya,2010 has been violated by the continued retention of, and failure to account for, his cash bail; and
(vii) What reliefs, if any, this Court should grant.
Whether this Court has jurisdiction to entertain the Petition during the pendency of Milimani Criminal Case No. E787 of 2024
41. This Court's jurisdiction under Articles 22, 23 and 165(3)(b) and (d) of the Constitution of Kenya, 2010 to inquire into the constitutionality of a criminal process as distinct from the guilt or innocence of the accused, which remains for the trial court, is well settled in a long line of decisions of the Courts of record. See Sharma v Attorney General & 3 others [2025] KECA 1470 (KLR) and Eric Kyalo Mutua v Inspector General of Police & others [2021] KEHC 8 (KLR). Section 193A of the Criminal Procedure Code, which provides for the concurrency of civil and criminal proceedings, does not oust it. The real question, correctly framed by the 3rd Respondent, is not whether this Court may inquire, but whether the Petitioner has made out a case falling within that inquiry on the record before the Court.
Whether the Petitioner's right to be arraigned in court without unreasonable delay, and to be free from restraint on his liberty and movement without judicial sanction under Article 49(1)(f) of the Constitution of Kenya, 2010 was violated
42. Article 49(1)(f) of the Constitution of Kenya,2010 speaks to the timelines within which an arrested person should be brought before a court, i.e. within twenty-four hours of their arrest, or on the next available court day. In Kariuki v Director of Public Prosecutions & 3 others; Wangila & 2 others (Interested Parties) [2024] KEHC 834 (KLR), the High Court confirmed that a violation of this Article is established where the delay in presentation before court is not accounted for by the Respondents on the record before it.
43. The Replying Affidavit of PC Ngatia offers a materially different account of events leading to the arrest of the Petitioner. He averred that the Petitioner evaded arrest by locking himself in his house, was sighted in Westlands, and was arrested only after the intervention of a named public figure. The parties were not cross-examined as to the evidence in their affidavits. Without that, the court cannot resolve the issues relating to the arrest and arraignment. But that account explains only the interval before the Petitioner's arrest and release on cash bail on 7th November 2023. It does not explain, and does not purport to explain, the further nine-month interval between the arrest and his arraignment on 6th August 2024.
44. Article 49(1)(f) of the Constitution of Kenya, 2010, is triggered by arrest. It was not suspended when the Petitioner was placed under reporting conditions and a passport restriction. On the record, the Petitioner was required to report weekly to Parklands Police Station for seven months and was subjected to a passport stop order. Neither Respondent has deposed that either measure was judicially sanctioned.
45. The Court accordingly finds that Article 49(1)(f) of the Constitution of Kenya, 2010, was violated in respect of the nine-month interval between arrest and arraignment, and that the Petitioner's liberty and freedom of movement were further constrained without judicial sanction during that period, contrary to Articles 29 and 39 of the Constitution of Kenya, 2010. This finding, without more, does not warrant termination of a subsequently and separately instituted charge.
Whether the charge preferred against the Petitioner in Milimani Criminal Case No. E787 of 2024 meets the constitutional threshold of sufficiency of detail under Article 50(2)(b) of the Constitution
46. Article 50(2)(b) of the Constitution of Kenya,2010 guarantees an accused person the right to be informed of the charge with sufficient detail to answer it. The decision in Sigilani v Republic [2004] eKLR and Yongo v Republic [1983] KLR 79, relied on by the Respondents, states that the operative standard is sufficiency of detail rather than technical perfection, and that a defect is fatal only where it occasions a failure of justice or prejudices the defence. The Court of Appeal in Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 held that contradictions going to a material particular of a charge, left uncured by amendment, can taint the resulting proceedings.
47. Applying that framework does not assist the Respondents here. The Charge Sheet states "Mbulia Farm Mtito Andei". The Petitioner states that Mbulia Ranch is in Taita Taveta County and Mtito Andei is in Makueni County; the composite description corresponds to no identifiable place. Far from resolving this, PC Ngatia's own narrative in the Replying Affidavit refers to "Mbulia Ranch" as the site of the project, confirming that the investigating team knew, or could readily have ascertained, the correct location, and that the erroneous composite description has nonetheless persisted through the Charge Sheet and into a sworn affidavit filed in these very proceedings. This is not a case of an immaterial variance of the kind considered in Sigilani v Republic [2004] eKLR and Yongo v Republic [1983] KLR 79, since the location of an alleged occurrence said to have been made on false pretences is an element the accused must be able to meet in a charge under Section 315 of the Penal Code. A charge that cannot be geographically anchored, when a correct location is demonstrably known to the prosecution, is not a matter of form.
48. That said, the Court is not persuaded that this defect, standing alone, warrants quashing the prosecution of the charges preferred against the Petitioner. Section 214 of the Criminal Procedure Code permits amendment where a variance between the charge and the evidence emerges, and the Petitioner does not dispute that this power exists. What he has shown, and what the Respondents have not answered, is that the defect has persisted for approximately two years without correction. The constitutional injury lies in that persistence and the absence of any explanation for it, not in the mere existence of a correctable defect.
49. The Court therefore finds that the charge sheet, as it presently stands, does not meet the standard set out in Article 50(2)(b) of the Constitution of Kenya, 2010, but this can be cured by amending the charge sheet pursuant to Section 214 of the Criminal Procedure Code.
Whether the delay in prosecuting the Petitioner, and the adequacy of the disclosure made to him, violated his rights to a fair trial without unreasonable delay and to advance disclosure of the evidence against him, guaranteed under Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya,2010 as read with Section 42A of the Criminal Procedure Code
50. On delay, I agree with the 3rd Respondent’s position that there is no statutory limitation period for prosecuting serious offences, and that the reasoning in Republic v Director of Public Prosecutions & 4 others Ex-parte Arthur Agoro Saola [2018] KEHC 922 (KLR) is that it is delay, rather than its length, that determines whether proceedings ought to be halted. The Petitioner has not, on this record, identified any specific prejudice in the prosecution of the matter, nor has the Petitioner proved that termination is merited under Article 50(2)(e) of the Constitution of Kenya, 2010.
51. The quality of disclosure is a separate matter, and must be assessed together with delay since Articles 50(2)(e) and 50(2)(j) of the Constitution of Kenya,2010 operate in tandem. See BA v Attorney General & 2 others (Petition E503 of 2023) [2025] KEHC 19223 (KLR). The Respondents' evidence, through PC Ngatia, establishes that the prosecution has an evidentiary foundation. A named complainant and five named witnesses whose statements are said to confirm the underlying transaction are identified. That materially answers any suggestion that the charge rests on nothing at all.
52. It does not, however, address the specific and later-arising concerns raised in the Supplementary Affidavit about the physical integrity of the disclosure bundle actually furnished. These include statements said to be unsigned and unendorsed; a recorded statement of the Petitioner's own account said to be materially inaccurate; and a complainant's statement presented as notarized yet said to bear no notary signature or seal and to contain unreplaced template text. The existence of witnesses is not the same thing as the existence of a properly authenticated disclosure of documents.
53. Article 50(2)(j) of the Constitution of Kenya, 2010, entitles an accused person to be informed in advance of the evidence to be relied upon, in a form fit to be relied upon. See Joseph Nduvi Mbuvi v Republic [2019] eKLR. Since these specific defects were raised after PC Ngatia's affidavit was sworn and were not controverted by any further affidavit, despite the opportunity to do so before the written submissions were filed in April 2026, they stand unanswered.
54. The trial court fixed 18th March 2026 as the date for confirming compliance pursuant to Section 42A(2) of the Criminal Procedure Code. This function properly reposed in the trial court, and one this Court approaches with due deference to the said Court. It would, however, be an abdication of this Court's own supervisory role under Article 165(3)(b) and (d) of the Constitution of Kenya,2010 to permit that confirmation to proceed, or a trial to commence, on a disclosure record carrying the specific, unrebutted defects identified above without those defects being squarely addressed. A conservatory order suspending the commencement of trial, and any confirmation of Section 42A(2) compliance already made or yet to be made on the strength of the present disclosure bundle, is warranted to allow the prosecution to produce a properly executed and authenticated statement from the complainant, or to explain on oath its inability to do so, and to remedy the other defects identified.
Whether the prosecution of the Petitioner was instituted and/or is being maintained contrary to Article 157(11) of the Constitution of Kenya,2010.
55. Article 157(11) of the Constitution of Kenya,2010 requires the 1st Respondent to have regard to the public interest in exercising prosecutorial power. This includes the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. The modern authorities converge
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