1. The applicant herein moved this court vide a notice of motion dated 23rd May, 2025 with prayers THAT;
1) Spent
2) A mandatory injunction be issued compelling the Officer in-Charge of Station Omosaria police station and DCI Nyamache sub-County to immediately commence investigations into the criminal acts reported by the 3rd applicant/Petitioner, apprehend the offenders and charge them in court of law.
3) An order compelling the respondents to provide adequate protection to the 3rd Petitioner and her children.
4) An order compelling the 2nd Respondent be issued by this Honourable Court to take a photo of the Motorcycle reg. No. KMFK 956G TVS retained by the 2nd respondent the DCI Nyamache Sub-County in there custody and released to the 3rd Petitioner unconditionally.
5) An order be issued by this Honourable Court compelling the 2nd Respondent to take a photo of the two cows and four goats retained by the 2nd respondent the DCI Nyamache Sub-County in the custody of the mother of the 3rd Petitioner and released to the 3rd Petitioner unconditionally.
6) A declaration that the respondents have failed in their Constitutional and statutory duty to protect the widow (3rd Petitioner )and her children.
7) Any other orders this Honourable Court may deem just and expedient in the circumstances.
2. WHICH APPLICATION is based on the following grounds.
A. The 3rd applicant/petition is a widow whose home was unlawfully torched by known individuals.
B. The two daughters of the widow were defiled in the same sequence of criminal events.
C. The perpetrators are known to the Petitioners and have been reported to the police but no action taken.
D. The widow and her children are currently displaced and residing in a private Orphanage.
E. The police have failed and/or refused to investigate, arrest, or charge the suspects.
F. The respondents have a Constitutional and legal obligation to ensure the protection and safety of all persons, which they have failed to discharge.
G. The applicants/Petitioners aver that the Court is not there to micromanage independent constitutional institutions such as the police or the ODPP. However, it is vested with the mandate to intervene where such institutions act unlawfully, fail to act, or violate the Constitution. The Court's role is to ensure that all state organs operate within the law and uphold the rights and freedoms guaranteed under the Constitution. Its duty is not to direct how powers are exercised legally, reasonably and in accordance with the constitution.
3. I have considered the application herein and the prayers and grounds and the issues for determination are:
ISSUES FOR DETERMINATION
1. Whether the court has jurisdiction to entertain this matter
2. Whether application is merited for grant of orders sought
ANALYSIS AND DETERMNATION
Whether the court has jurisdiction to entertain this matter
Pursuant to the provisions of the constitution Article 165.3(b) states that the High Court shall have
“jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened”
4. In the spirit of the same, this court is bound by the sentiments of the court in the case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction
5. The jurisdiction of the Honourable Court in this matter, therefore is not disputed as such jurisdiction is vested upon it by the Constitution and also relevant Act of Parliament.
Whether the application is merited for grant of orders sought
6. The applicants / petitioners alleged that the respondents have refused and/ or neglected to investigate the case of the 3rd third applicant / petitioner and her children whose rights are being violated. It is trite law that all institutions performing public duties are to act independently without influence from other institutions. However, the same power must be exercised with regard to the Doctrine of Separation of Powers so that the courts do not usurp the powers of the executive and the legistlature.
7. Article 239.1(C) of The constitution vests the National Police Service as one of the organs of National Security. This therefore insinuates that they are responsible in maintaining law and order and also the security of the citizens they serve.
8. Further Section 24 of The National Police Service Act further outlines all functions bestowed upon the sevice as follows;
(a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) (j) enforcement of all laws and regulations with which it is charged; and performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time
9. The constitutional mandate of the police includes investigation of crimes, arresting suspects and protection of the citizens which is also a right on the citizens provided under Article 29(c )of the Constitution.
10. Being cognisant to the fact of the establishment of The Directorate of Criminal Investigations, whose mandate under Section 35 of the National Police Service Act are;
(a) collect and provide criminal intelligence; (b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others; (c) maintain law and order; (d) detect and prevent crime; (e) apprehend offenders;
(b) .
11. The Directorate being an integral and rather a more specialised branch of The National Police Service is to perform its duties just as the Service is to perform its public duties.
12. On the other hand, The Office of The Director of Public Prosecution established under Article 157.4 of The Constitution is one expected to work in collaboration with The National Police Service to;
investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction
13. This provision clearly depicts the symbiotic relationship between the two bodies in the carrying out of their duties and that the Director of Public Prosecution may act in person or by subordinate officers acting in accordance with general or special instructions.(Article 157.9)
14. The office in exercising its powers as provided for by The Constitution should therefore have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process(Article 157.11).
15. The Office of The Director of Public Prosecution is independent and is enjoined to exercise its powers as per the law , in the interest of justice, to prevent abuse of the court process and in the interest of the public without influence from other persons or bodies, such exercise of powers shall be in tandem with the provisions of other laws and guided by the principles of
(See Section 6b & 4 of The Office of The Director of Public Prosecution Act, Cap 6B.). This was reiterated in the of pronouncements in the case of Justus Mwenda Kathenge v Director Of Public Prosecutions & 2 others [2014] eKLR :
the Court while speaking to the constitutional mandate of the 1st respondent held that the Courts cannot interfere with the exercise of the above mandate unless it can be shown that the provisions of Article 157(11) have not been adhered to
16. Section 23 of The Office of The Director of Public Prosecution Act further gives the office the powers to;
(a) decide to prosecute or not to prosecute in relation to an offence; (b) institute, conduct and control prosecutions for any offence
However this power is to be exercised with the reverence to the law and in the interest of the public.This position was stressed in the case of Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR whereit was held that ;
It is therefore clear that whereas the discretion given to the Respondents to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised
17. This court being the custodian of the Bill of rights has a duty to safe guard the rights of citizens from being threatened , violated or infringed . This court also has powers to ensure that the best interest of children is protected under Article 53 of the Constitution. The application herein is not opposed and at this stage, I find that the rights of the 3rd petitioner and her children are under thereat of violation or infringement. I proceed to issue the following interim directions in the interest of justice :
I. Prayer 1 is spent.
II. The Kisii County Director of Children Services to investigate the issue of the children herein, rescue and move them to a safe shelter forthwith in their best interest if need be . .
III. A protection and care file be opened for the children and they by produced before the Magistrate’s Court .
IV. Summons be issue to the OCS Omosoria police station , DCIO Nyamache , CCIO Kisii County , Kisii County Police Commander and In-charge ODPP Kisii County to appraise the court on the progress of the Investigations of the matters herein .
V. Mention on 22.9.25 for compliance and directions on the main petition.
1) Spent
2) A mandatory injunction be issued compelling the Officer in-Charge of Station Omosaria police station and DCI Nyamache sub-County to immediately commence investigations into the criminal acts reported by the 3rd applicant/Petitioner, apprehend the offenders and charge them in court of law.
3) An order compelling the respondents to provide adequate protection to the 3rd Petitioner and her children.
4) An order compelling the 2nd Respondent be issued by this Honourable Court to take a photo of the Motorcycle reg. No. KMFK 956G TVS retained by the 2nd respondent the DCI Nyamache Sub-County in there custody and released to the 3rd Petitioner unconditionally.
5) An order be issued by this Honourable Court compelling the 2nd Respondent to take a photo of the two cows and four goats retained by the 2nd respondent the DCI Nyamache Sub-County in the custody of the mother of the 3rd Petitioner and released to the 3rd Petitioner unconditionally.
6) A declaration that the respondents have failed in their Constitutional and statutory duty to protect the widow (3rd Petitioner )and her children.
7) Any other orders this Honourable Court may deem just and expedient in the circumstances.
2. WHICH APPLICATION is based on the following grounds.
A. The 3rd applicant/petition is a widow whose home was unlawfully torched by known individuals.
B. The two daughters of the widow were defiled in the same sequence of criminal events.
C. The perpetrators are known to the Petitioners and have been reported to the police but no action taken.
D. The widow and her children are currently displaced and residing in a private Orphanage.
E. The police have failed and/or refused to investigate, arrest, or charge the suspects.
F. The respondents have a Constitutional and legal obligation to ensure the protection and safety of all persons, which they have failed to discharge.
G. The applicants/Petitioners aver that the Court is not there to micromanage independent constitutional institutions such as the police or the ODPP. However, it is vested with the mandate to intervene where such institutions act unlawfully, fail to act, or violate the Constitution. The Court's role is to ensure that all state organs operate within the law and uphold the rights and freedoms guaranteed under the Constitution. Its duty is not to direct how powers are exercised legally, reasonably and in accordance with the constitution.
3. I have considered the application herein and the prayers and grounds and the issues for determination are:
ISSUES FOR DETERMINATION
1. Whether the court has jurisdiction to entertain this matter
2. Whether application is merited for grant of orders sought
ANALYSIS AND DETERMNATION
Whether the court has jurisdiction to entertain this matter
Pursuant to the provisions of the constitution Article 165.3(b) states that the High Court shall have
“jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened”
4. In the spirit of the same, this court is bound by the sentiments of the court in the case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction
5. The jurisdiction of the Honourable Court in this matter, therefore is not disputed as such jurisdiction is vested upon it by the Constitution and also relevant Act of Parliament.
Whether the application is merited for grant of orders sought
6. The applicants / petitioners alleged that the respondents have refused and/ or neglected to investigate the case of the 3rd third applicant / petitioner and her children whose rights are being violated. It is trite law that all institutions performing public duties are to act independently without influence from other institutions. However, the same power must be exercised with regard to the Doctrine of Separation of Powers so that the courts do not usurp the powers of the executive and the legistlature.
7. Article 239.1(C) of The constitution vests the National Police Service as one of the organs of National Security. This therefore insinuates that they are responsible in maintaining law and order and also the security of the citizens they serve.
8. Further Section 24 of The National Police Service Act further outlines all functions bestowed upon the sevice as follows;
(a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) (j) enforcement of all laws and regulations with which it is charged; and performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time
9. The constitutional mandate of the police includes investigation of crimes, arresting suspects and protection of the citizens which is also a right on the citizens provided under Article 29(c )of the Constitution.
10. Being cognisant to the fact of the establishment of The Directorate of Criminal Investigations, whose mandate under Section 35 of the National Police Service Act are;
(a) collect and provide criminal intelligence; (b) undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber crime among others; (c) maintain law and order; (d) detect and prevent crime; (e) apprehend offenders;
(b) .
11. The Directorate being an integral and rather a more specialised branch of The National Police Service is to perform its duties just as the Service is to perform its public duties.
12. On the other hand, The Office of The Director of Public Prosecution established under Article 157.4 of The Constitution is one expected to work in collaboration with The National Police Service to;
investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction
13. This provision clearly depicts the symbiotic relationship between the two bodies in the carrying out of their duties and that the Director of Public Prosecution may act in person or by subordinate officers acting in accordance with general or special instructions.(Article 157.9)
14. The office in exercising its powers as provided for by The Constitution should therefore have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process(Article 157.11).
15. The Office of The Director of Public Prosecution is independent and is enjoined to exercise its powers as per the law , in the interest of justice, to prevent abuse of the court process and in the interest of the public without influence from other persons or bodies, such exercise of powers shall be in tandem with the provisions of other laws and guided by the principles of
(See Section 6b & 4 of The Office of The Director of Public Prosecution Act, Cap 6B.). This was reiterated in the of pronouncements in the case of Justus Mwenda Kathenge v Director Of Public Prosecutions & 2 others [2014] eKLR :
the Court while speaking to the constitutional mandate of the 1st respondent held that the Courts cannot interfere with the exercise of the above mandate unless it can be shown that the provisions of Article 157(11) have not been adhered to
16. Section 23 of The Office of The Director of Public Prosecution Act further gives the office the powers to;
(a) decide to prosecute or not to prosecute in relation to an offence; (b) institute, conduct and control prosecutions for any offence
However this power is to be exercised with the reverence to the law and in the interest of the public.This position was stressed in the case of Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR whereit was held that ;
It is therefore clear that whereas the discretion given to the Respondents to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised
17. This court being the custodian of the Bill of rights has a duty to safe guard the rights of citizens from being threatened , violated or infringed . This court also has powers to ensure that the best interest of children is protected under Article 53 of the Constitution. The application herein is not opposed and at this stage, I find that the rights of the 3rd petitioner and her children are under thereat of violation or infringement. I proceed to issue the following interim directions in the interest of justice :
I. Prayer 1 is spent.
II. The Kisii County Director of Children Services to investigate the issue of the children herein, rescue and move them to a safe shelter forthwith in their best interest if need be . .
III. A protection and care file be opened for the children and they by produced before the Magistrate’s Court .
IV. Summons be issue to the OCS Omosoria police station , DCIO Nyamache , CCIO Kisii County , Kisii County Police Commander and In-charge ODPP Kisii County to appraise the court on the progress of the Investigations of the matters herein .
V. Mention on 22.9.25 for compliance and directions on the main petition.