1. The Applicant has filed the Notice of Motion dated 4th December 2024 under a Certificate of Urgency seeking orders that;
a. Spent.
b. Pending the hearing and determination of this Application inter partes, this Honourable Court be pleased to issue an orders restraining the Respondents whether by themselves, their officers, servants, agents or any other person whatsoever acting on their behalf or on their instructions from arresting, detaining, arraigning in Court, charging or prosecuting the Petitioner in Milimani Chief Magistrate Court Criminal Case No. E1247 of 2024 or any any other case; or in any other way interfering with the liberty of the Petitioner/Applicant herein in connection with the complaint or allegations giving rise to this Petition.
c. Upon hearing and determination of this Application, this Honourable Court be pleased to issue an order restraining the Respondents herein, their officers, servants, agents or any other person whatsoever acting on their behalf or on their instructions from arresting, detaining, arraigning in Court, charging or prosecuting the Petitioner Milimani Chief Magistrate Court Criminal Case No. E1247 of 2024; or in any other way interfering with the liberty of the Petitioner/Applicant in respect of or in connection with the complaint or allegations giving rise to this Petition.
d. Pending the hearing and determination of the Petition filed herewith, this Honourable Court be pleased to issue an order restraining the Respondents whether by themselves, their officers, servants, agents or anyone acting on their behalf from arresting, detaining, arraigning in Court, charging or prosecuting the Petitioner Milimani Chief Magistrate Court Criminal Case No. E1247 of 2024; or in any other way interfering with the liberty of the Petitioner/Applicant in respect of or in connection with the complaint or allegations giving rise to this Petition.
e. This Honourable Court be pleased to issue any other appropriate or further orders it may deem just, fit and expedient to award in the interests of justice.
f. The costs of this Application be borne by the Respondents.
It is the Applicant’s case that the intended charges against him emanate from a civil dispute concerning a succession matter, which is actively pending before the Family Division of the High Court; Milimani Probate and Administration Case Number 2372 of 2015 - In The Matter Of Estate Of Modhihir Mohammed.
They submitted that the existence of the above cited case remains unchallenged by the Respondents and the Interested Party, and it is undisputed that the matter is still pending hearing and determination. As a matter of fact, the matter is slated to be heard before Honourable Justice Chemitei on 23rd July 2025.
It was the applicant’s position that, the misuse of the criminal justice system to resolve private legal disputes is a well-established ground for judicial intervention.
The applicant cited the case in Republic v. Chief Magistrate’s Court at Mombasa, Ex Parte Ganijee & Another [2002] eKLR, where the court held that: “So, it is not the purpose of a criminal investigation or a criminal charge or prosecution, to help individuals in the advancement of frustration of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other and ulterior purpose.” .
The Applicant’s position is that his case falls squarely within this reasoning, as his prosecution is being used as a tool of coercion rather than as a genuine pursuit of justice and his professional role in the transaction at the heart of the dispute must be properly contextualized. It was submitted that he acted as an Advocate within the confines of his duties, and no evidence has been adduced to suggest that he engaged in fraudulent conduct.
The Applicant further urged this Honourable Court to find that legal practitioners should not be subjected to criminal liability for actions taken in the course of their professional duties unless criminal intent (mens rea) is clearly demonstrated.
The 3rd respondent, the DPP filed grounds of opposition to the Application. These are;
THAT all the pending cases duly referenced to in this application that is: Milimani CM Criminal Case-No. E1247 OF 2024, High Court at Nairobi Appeal No 58 OF 2018 and Milimani High Court Family Division p& a 2372 0f 2015 were are all in Nairobi and so this application ought to have been filed in NAIROBI.
THAT the Decision to charge the Applicant herein for the offences of Conspiracy-to defraud, forgery, obtaining registration of land by false pretenses as provided in the penal code and intermeddling-with the deceased property. contrary to section 42 of the Law of Succession Act was made on 23rd August 2024 4 by the 3rd Respondent in exercise of its powers provided for in article 157 of the Constitution of Kenya which offences are criminal in nature and constitute criminal culpability.
THAT the arrest of the Applicant herein on the 3rd December, 2024 and the subsequent issuance of the police cash bail at Makupa police station by the 2nd Respondent was within the Respondent's statutory and constitutional powers and mandate pursuant to Section 52 of the National Police Service Act thus there was no malice and or abuse of Power.
THAT the charge sheet was properly admitted and registered on the December, 2024 at Milimani Law courts as Criminal case no. E1247 of 2024 whereupon the Applicant herein as the Accused person who was out on police cash bail of Kshs 1oo,ooo/- was not present for the plea taking.
THAT the Application herein lacks legal basis, is biased and has been made with the sole intention of to stay and or delay the trial in Milimani criminal case No. 1247 of 2024 which is criminal in nature and has already been instituted, commenced and is only pending awaiting the presence of the Applicant herein for plea taking.
One ZULEKHA SALIM BANTUSHI was allowed to participate as an interested party.
She filled a lengthy replying affidavit outlining the history of the matter.
Her position is that The applicant moved this court to shield himself from the prosecution before the Magistrate Court for his participation in fraudulent acts relating to the estate of Modhihiri Mohamed and the issue for decision is whether the applicant is protected from the prosecution or not?
THAT the applicant has not denied involving in the transactions related to the said property in fact his has admitted those facts. And
Furthermore, the applicant has not claimed Advocate immunity covering the acts he did knowingly in relation to the said property; all what the applicant has raised is to invoke the principles governing the issuance of interlocutory injunctions in civil litigation and attempted to apply them to criminal litigation which is misplaced.
She further submitted that the applicant herein is not a party to the dispute in Milimani Probate and Administration Case No 2372 in the Matter of Estate of Modhihir Mohammad, and therefore the existence of that matter has no bearing to the civil case.
In dealing with an application of this nature, it is the constitutional duty of this court to go to the lengths and breadths of the constitution to protect the rights and fundamental freedoms of Kenyans where need be, but it should be alive to its obligation not to curtail the other organs of state from carrying out their constitutional mandate.
It is a very delicate balance which this court is expected to carry out. In the case of Republic – Versus - Chief Magistrate Milimani & Another Exparte Tusker Mattresses Limited cited above the court stated as follows;
“However, before going to the merits of the instant application it is important to note that what is sought to be prohibited is the continuation of investigation other than a criminal trial. The court must in such circumstances take care not to trespass into the jurisdiction of the investigators or the court which may eventually be called upon to determine the issues hence the court ought not to make determinations which may affect the investigations or the yet to be conducted trial…., the High Court ought not to interfere with the investigative process conferred upon the police or the Director of Public Prosecutions unless cogent reasons are given for doing so.”
The application has been brought as an application for redress for breach or threat of breach of Rights and fundamental freedom of the applicant.
Article 29 of the Constitution of Kenya provides as follows:-“Every person has the right to freedom and security of the person, which includes the right not to be-
A. deprived of freedom arbitrarily or without just cause;
b. detained without trial except under a state of emergency in which case the detention is subject to Article 58;
c. subjected to any form of violence from either public or private sources;
d. subjected to torture in any manner, whether physical or psychological
e. subjected to corporal punishment in a cruel, inhuman or degrading manner.”
18. The applicant has claimed violation and threatened violation of his rights and fundamental freedom by the Respondents. The violation is said to be in the fact that the matter which is the subject of investigations is also the subject of a civil nature and he acted in his capacity as an advocate.
19.He seek orders to stop arrest and charging in a court of law on the basis of matter being civil in nature.
20. Impeding criminal investigation or charging of an individual in a court law must be on cogent and constitutionally-sound reasons. For instance, as was stated in the case of W’Njuguna vs Republic (2004) eKLR such orders are granted only: when there are circumstances of serious breaches of a citizen’s rights by an organ of the state which is supposed to protect the same.”
In the case of Mandiki Luyeye vs Republic [2015] eKLR, Ngenye J held as follows:- “Similar sentiments were observed in the case of Eric Mailu vs Republic and 2 others Nairobi Misc. Cr. Application No. 24 of 2013 in which it was emphasized that anticipatory bail would only issue when there was serious breach of a citizen’s rights by organs of state. Accordingly, it is salient that anticipatory bail is aimed at giving remedy for breach of infringement of fundamental Constitutional rights in conformity with what the Constitution envisages constitutes protection of fundamental rights and freedoms of a citizen.
It cannot issue where an Applicant labors under apprehension founded on unsubstantiated claims. The fear of breach to fundamental right must be real and demonstrable. An Applicant must demonstrate the breach by acts and facts constituting the alleged breach.”
22. In the case of Richard Mahkanu vs Republic [2014] eKLR, the court held the firm view that orders for anticipatory bail or bond must not be sought with the intention of pre-empting the outcome of investigations- a position that was also held in the case of Kevin Okore Otieno vs Republic (2013) eKLR.
24.Any relief by whatever name called say, anticipatory bail, requires courts to ensure that interference with the functions of other bodies and institutions established by law; statute, or the Constitution of Kenya, is only on cogent and robust reasons. Merely feeling inconvenienced by investigations is not sufficient reason for relief. Proof of violation, infringement, threat, or contravention of a person’s right under the Constitution of Kenya is required.
The applicant has been told the investigations relate to a specific offence is in our statutes and investigations towards it may be carried out. EXCEPT; the investigations are based on reasonable suspicion and grounds to believe that a crime has been committed, and is conducted in accordance with the law and regulations governing investigations, and employing only tools, methods and techniques which are provided and permitted in law; and which do not violate the Constitution and the Bill of Rights. Adherence thereto, avoids objections on constitutional front such as right to human dignity (art. 28), freedom and security of person (art. 29) right to privacy (art. 31), to mention but a few.
The exercise of the function of investigation should not be oppressive or in abuse of the process and purpose of criminal investigation to bring suspects to book.
Oppression may take many and different forms depending on the circumstances of each case. But, may include, use of much or excessively intrusive tools, methods and techniques not permitted or authorized in law or which by their nature completely routs the protection of fundamental freedoms and rights in the Bill of Rights such as torture or threat to torture methods. Abuse include; to procure or force a settlement of a civil claim or debt or personal scores; and in some cases, to cover police failures or merely to please or sooth a curious public or political audience.
Notably also, according to section 193 concurrent criminal and civil proceedings is permitted. Specifically, the section provides that: -Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
The police may investigate such matter which may also be substantially or directly in issue in a pending civil proceedings. Save, it bears repeating that, care should be taken that they are satisfied that an offence has been committed, and that the investigation is not to settle a score or civil debt between the parties. Short of the threshold, the investigation is liable to impeachment by the court on the basis of abuse of power or function, and the police may be liable for violation of right or malicious prosecution.
A successful case for redress of violation of rights or fundamental freedoms should spell out and prove the violation or threat of violation of right or fundamental freedoms. Other than making mere allegations, and state their apprehension , the applicants did not provide proof that the police or the prosecution side are using their investigation and prosecutorial powers to coerce settlement, induce a transfer or obtain evidence for the civil suit or they are acting in any other malicious way.
In fact in this case both the police and the DCI and the ODPP must be commended for acting above board and in a very professional manner. They conducted their investigations in a very civil manner and when they required the applicant they summoned him. That is a great show of professionality and mature courtesy on the part of the investigators..
This is a 3rd ruling of a similar nature and I again commend The Mombasa Regional DCI and the prosecution for the great improvement and leading the way as County 001.
33.In the other ruling I stated ‘ We have often heard of extreme hard handedness and brutality of the police or the uniquely Kenyan approach of effecting arrests close to the weekend to ensure that the suspect spends some time behind bars. Before the constitutional amendments introducing bond for all offences and the now famously known 24 hour rule, suspects would be detained endlessly. It is these strict constitutional checks that often a malicious or else how motivated investigator will arrest someone on a Thursday or Friday in what had come to be known colloquially as the ‘kamata kamata’ Friday. This case is a breath of fresh air and a sigh of light , far from those dark dark days. The Applicant can not complain of any of any ill treatment.
The Applicant also raised the ground that he acted as an advocate. He has however not raised the ground of privilege or immunity and our statutes do not prohibit the prosecution of advocates if there is sufficient reason.
The investigator and other actors in the justice sector just need to treat the suspect or accused humanly and uphold their dignity and all the other rights guaranteed in our robust bill of rights. All players must play by the rules. This must be done wisely and prudently and a balance struck between the interests of both the victims and the suspects .
Accordingly, having carefully considered the grounds, the affidavit evidence and the case law that was relied upon by the parties herein, this court does not find any iota of evidence that the Applicant’s fundamental rights have been breached or denied or that there is a threat of them being infringed, contravened or violated.
Investigations and prosecutions are legal processes aimed at fact-finding of the commission of a crime in our justice system and do not, per se amount to an infringement on the rights or fundamental freedoms of the person under investigation. As long as investigations are carried out in accordance with the law and rules, the processes thereto must be allowed to run their course for proper administration of justice.
It does not matter that the Applicant believes in their innocence or thinks that the decision to charge was not what they would have arrived at. The court will only intervene where there is a clear breach or threat to the rights of an individual or where there are obvious elements of malice or ill will. None of that has been demonstrated in this case.
I repeat that indeed the Respondents are to be commended and encouraged to handle all their matters in this professional and civil manner.
In the upshot, The Notice of Motion application dated 25th November 2024 fails and is rejected in so far as it seeks to stop investigations, arrest and charging in court.
The applicant should present himself before the court and the trial should proceed.
No orders as to costs given the nature of these proceedings.
IT IS SO ORDERED .
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 15th…………DAY OF …………APRIL……………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
MS BEBORA : COURT ASSISTANT
MR NGIRI : PROSECUTOR
MR K FOR THE AG
PROFESSOR NANDWA FOR THE INTERRESTED PARTY
No appearance FOR THE Applicants