Introduction
1. The Petition dated 15 th November, 2021 is supported by the affidavit of similar date of Sammy Wabomba Wasieba (the Petitioner herein). The Petitioner challenges a decision by the 1 st Respondent to prosecute him criminally, following investigations and subsequent recommendation by the 2 nd Respondent into an incident he alleges occurred on 10.6.2019, during which, his lawfully issued firearm discharged accidentally. The Petitioner alleges bad faith because he had already been subjected to disciplinarily procedure in respect of same incident, in which he faced two counts, pleaded guilty to one pertaining to discharge of the firearm and was punished accordingly while he was acquitted on one involving the striking, use or threatening violence for lack of evidence.
2. He contends that the current criminal prosecution is an attempt to revive the charge he has been disciplinarily acquitted of, in violation of Article 50 (2) (o) of the Constitution which amounts to double jeopardy, given that he has undergone the prescribed disciplinary procedure under the National Police Service Act No. 11 of 2011.
3. The Petitioner thus seeks the following reliefs against the Respondents:
a) A DECLARATION be made by this Honourable Court that the 1 st , 2 nd and 3 rd Respondents acted illegally by summoning the Petitioner with a view to charge him.
b) A DECLARATION be made by this Honourable Court that any charges whatsoever against the Petitioner are illegal and unconstitutional.
c) AN ORDER FOR COMPENSATION of the Petitioner be made by this Honourable Court for general damages for the distress, mental anguish, illegal summons and intended charging of the Petitioner,
d) AN ORDER awarding costs of this Petition to the Petitioner.
e) Any other further orders, writs and directions this court considers appropriate and just to grant for the purpose of enforcement of the Petitioner's fundamental rights.
Petitioner’s Case
4. The Petitioner states that he is a police officer working in the National Police Service. At the time relevant to this case, he was of stationed at Industrial Area Police Station.
5. He depones that on 10 th June, 2019, he had been assigned patrol duties within the Industrial Area section near the KCB Bank. That at the time he went for lunch, he decided to first carry out safety procedure of the firearm, AK 47, but he accidentally touched its trigger and it discharged ammunition into the air. This caused public anxiety and commotion. He immediately proceeded to the Police Station and informed his superior, the Officer Commanding Station, OCS.
6. Subsequently, he was charged with two offences against discipline namely; discharging a weapon without order or reasonable cause contrary to Section 88 (2) as read with Schedule 8 (2) 1 (0) of the National Police Service Act No. 11 of 2011. There was a 2nd Count, using, striking or unlawfully threatening violence against any police officer or any other person contrary to section 88(2) as read with schedule 1 (a) of the National Police Service Act No.11 of 2011.
7. He appeared before Subordinate Disciplinary Committee that was appointed for the disciplinary trial on 17.6.2019. The Subordinate Disciplinary Committee delivered its decision on 7.7.2019 wherein the Petitioner was found guilty on the first count after pleading guilty and was fined Kshs. 2500/-. He was acquitted of the second count on the grounds that the statements did not meet the threshold of prosecution, and also, witnesses were not found. The decision was then forwarded to the Sub-County Commander on 8th July, 2019 and this marked the end of that matter. The Petitioner states that he was satisfied with that disciplinary procedure.
8. The Petitioner alleges that despite the foregoing, on 8.11.2021, the 1 st , 2 nd and 3 rd Respondents, in bad faith, and in a manner prejudicial to his rights, issued him with summons he was to be criminally charged in Court for the offence of threatening to kill that emanated from the same incident that he faced before the Subordinate Disciplinary Committee. He contends that this is a violation of his rights under Article 50 (2) (o) of the Constitution as since it is an attempt by the 2nd Respondent through the 1st Respondent to revive a case that has already been concluded where all the parties had a right of appeal.
Respondents’ Case
9. In addition to the 2 nd Respondent filing a replying affidavit, the 1 st , 2 nd and 3 rd Respondents also filed grounds of opposition as follows:
i. THAT the Prayers sought by the Petitioner are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article 157 of the Constitution. The prayers if granted would result to a greater injustice in the criminal justice system and public interest.
ii. THAT Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed.
iii. THAT the exparte applicant has not adduced reasonable evidence to show that the criminal proceedings has been instituted against him by the 1st respondent.
iv. THAT the exparte applicant has not adduced reasonable evidence to show that the criminal proceedings, if any, has been mounted for an ulterior motive and in bad faith.
v. THAT the exparte applicant must demonstrate that substantial injustice would otherwise result if the criminal proceedings were instituted against him.
vi. THAT there is a complaint against the exparte applicant related to threats to kill contrary to Section 223 of the penal code and it is in the public interest 3 that such complaint made to the police be investigated and the perpetrators of crimes are charged and prosecuted.
vii. THAT the complaint against the exparte applicant which is related to threats to kill contrary to Section 223 of the penal code should be put on the scales of justice and the same proven beyond reasonable doubt.
viii. THAT the complaint which is pending before the Internal Affairs Unit of the National Police Service has a complainant whose is also seeking justice as her claim has to be determined by the trial court.
ix. THAT the application is scandalous, frivolous and vexatious in that it is without substance or groundless or fanciful and it lacks bona fides and is hopeless or offensive and tends to cause the 1st, 2nd & 3rd respondents’ unnecessary anxiety, trouble or expenses.
x. THAT the orders sought are therefore not tenable against the 1st, 2nd & 3rd Respondents as the exparte applicant has not shown how the Respondents will infringe on the petitioner’s constitutional rights if the orders sought are not granted.
xi. THAT the applicant has never been tried before any court of law
2 nd Respondent
10. The 2 nd Respondent filed a replying affidavit through Mr. Daniel Ashikobe (ASP) sworn on 28 th June, 2022. He stated that he was at the time a Police Officer attached to the Internal Affairs Unit (hereafter referred as the Unit) Investigations Section. He depones that he led a team of IAU Investigators tasked with investigating the conduct of PC Sammy Wamboba Wasieba who was formerly under the command of OCS Industrial Area Police Station of Nairobi County but by at the time of these investigations, he was working under the auspices of OCS Bungoma Police Station in Bungoma County.
11. He stated that the investigations into the conduct of the Petitioner was prompted by a complaint to the Unit by Ms. Seline Awuor Mboya who he had threatened to kill severally.
12. Concerning the averments made in the Petition by the Petitioner as well as in his affidavit in support, he refuted the same. He explained that while it is true that the Petitioner was assigned duties to guard Kenya Commercial Bank (hereafter referred to as KCB) on 10 th June, 2019, on that material day, he left the Police Station aboard a motor bike and behind his colleague with whom they paired, No.105849 PC (W) Fatuma Hassan at the Station.
13. That according to the then Officer in charge Industrial Area Police Station (OCS), No. 232168 CI Henry Kandie, the Petitioner proceeded to Kamongo slum along Likoni road, alone and while armed with AK 47 rifle loaded with 30 rounds of live ammunition. That according to the OCS, he was seen threatening anybody on sight per ( annexture marked'DA1' ).
14. That the Petitioner threatened to kill the Vice Chairman of Kamongo village Mr. George Kimani alias Kimkam. It was during this incident that the Petitioner fired live ammunitions into the air to scare the crowd who had threatened to attack him for terrorising the villagers. That the villagers on their own volition teamed up under the leadership of area Chief Muraguri and Mr. Meltus Wanjala Wekesa Komongo village Chairman and reported the conduct of the petitioner at Industrial Area Police Station vide OB No.26/10/6/2019 (annexture 'DA4').
15. That while the Petitioner claims he went and reported the discharge of his firearm; he does not disclose the O. B entry he made in the Occurrence as is the practice. That the correct position is that the Petitioner appeared at the Station after the report had been made to the station that he was threatening villagers at Kamongo village and was thus disarmed by in charge armoury Sgt Jackson Kuloba ( per annexure ‘DA 3’- the Statement of Sgt Kuloba ).
16. That on unspecified date within the month of June, 2019, the Petitioner called Ms. Seline Awuor into his house located within Kamongo village and threatened to kill her for allegedly refusing to disclose to him the person who touched his girlfriend in a local pub ( annexure ‘DA 2’- the Statement of Ms. Seline Awuor ).
17. According to the 2 nd Respondent, investigations established that the Petitioner aimed a gun and shot at Ms. Seline Awuor missing her narrowly. Ms. Awuor screams attracted the attention of Kamongo villagers within Industrial Area who came to her rescue upon hearing the gun shot.
18. The 2 nd Respondent disputed the assertion made by the Petitioner that he was issued with show cause notice for committing disciplinary offence in that he threatened a person with violence yet the name of the person threatened with violence is neither mentioned in the show cause notice nor did the Petitioner refer to the person he threatened with violence in his response.
19. The 2 nd Respondent maintained that the Petitioner threatened to kill Ms. Seline Awuor on different occasion yet Ms. Seline was not named in the particulars in the show cause notice to the Petitioner.
20. That following a complaint by Ms. Seline Owour to IAU, it requested the Inspector General of Police to allow the said Unit to conduct investigations into the complaint, ( annexture DA5-letter to the Inspector General from the unit dated 29 th April 2020 and a response thereto from the office of the Inspector General of Police dated 13 th May 2020 annexed- marked DA6 ).
21. Regarding the allegation that the Petitioner underwent Subordinate Disciplinary Committee proceedings on 17.6. 2019 and that he was satisfied with the composition of the Committee and its judgement; the 2 nd Respondent explained that the procedure under the National Police Service Commission Regulations is based on Legal Notice No.90 and Chapter 30, Order 14(1) of the National Police Service Standings Orders . That Section 89(2) of the National Police Service Act, requires that a Police Officer authorized to impose a penalty for a disciplinary offence, shall enter a record of such punishment, the date of the punishment and the offence for which it was inflicted on the record sheet of the Police Officer punished, a copy of which shall be forwarded to the National Police Service Commission for review and confirmation.
22. However, the aforesaid proceedings and punishment were incomplete and thus invalid because they were not forwarded to the National Police Service Commission for review and confirmation. Annexure- WWS 7 that the Petitioner heavily relies on was never forwarded in the prescribed manner under the law.
23. That in fact, the 2 nd Respondent wrote to the Deputy Inspector General, Kenya Police Service and sought to be furnished with the profile of the Petitioner and established that the Petitioner’s conviction was never documented as he has a clean record with no previous disciplinary convictions ( annexture- 'DA7' ).
24. That further, despite the Petitioner asserting that he was fined Kshs. 2500 for the disciplinary offence he had pleaded guilty to, none of his salary pay slip for the years 2019, 2020 or even 2021 confirmed any such deduction.
25. That concerning the assertion that he was acquitted on the second count due to insufficient evidence primarily because the witnesses' statements could not meet the threshold of prosecution, and also, due to the fact that witnesses could not be traced, the petitioner merely availed the record of the 1 st count of discharging a weapon without a reasonable lawful order. He did not produce the proceedings for the second charge of threatening violence. Further, there is no record of a charge of threatening to kill Ms. Seline Awuor that has been exhibited.
26. The 2 nd Respondent contended that threatening to kill is a serious criminal offence under Section 223 of the Penal Code, Cap 63 Laws of Kenya which cannot be tried under the disciplinary procedure. That in accordance to Section 88(3) of the National Police Service Act, a Police Officer who commits a criminal offence is liable to criminal proceedings in a court of law. The Disciplinary Committee therefore cannot usurp the powers of the Court of law.
27. The 2 nd Respondent deponed that after receiving complaint from Ms. Seline Awuor that the Petitioner threatened to kill her for refusing to yield to his sexual advances, it investigated the same and revealed that there is sufficient evidence to charge the Petitioner with offence of threatening to kill Ms. Awuor Contrary to Section 223 of the Penal Code and the petitioner's allegations that he was tried of the same offence therefore he is destined to suffer double jeopardy is unfounded.
28. Moreover, the waiver notice annexed to the petition- annexture ‘SWW3,' which the Petitioner relied on indicates that Count II in the disciplinary proceedings pertained to "unlawful strike, use or threatening violence against any Police Officer or any other Person contrary Section 88(2) as read with Eighth Schedule 1(a) of the NPS Act No 11 of 2011" which is a distinct offence from that of threats to kill under Section 223 of the Penal Code which the Petitioner is to be charged with.
29. The frustration of Ms. Awuor with dithering at Industrial Area Police Station prompted her to lodge a complaint with the IAU, where she received a fair hearing.
30. The 2 nd Respondent thus maintains that it has not violated the Petitioner's constitutional rights nor treated him in inhumane way by summoning him to appear at the Unit Headquarters to update him of the decision of the Director of Public Prosecutions to prefer criminal charges against him ( annexure ‘DA 8’ -DPP’s directive ).
31. That in addition to Ms. Seline Awuor complaint, the Unit investigated another complaint against the Petitioner from one Ms. Euphrasia Mugula Luvembe , an employee of Nairobi West Hospital over the similar allegations of threats to kill where it was alleged that on 28th August, 2020, the Petitioner in the company of two heavily armed uniformed Officers, namely; No.110665 PC Kevin Nyongesa, No.107550 PC Martin Kimathi and an unknown civilian, stormed the hospital at around mid-day, forced entry into a room where Ms. Mugula was working and threatened her, causing panic within the hospital.
32. This matter has since been taken over by the Independent Policing Oversight Authority ( annexture 'DA9' and 'DA10').
33. The 2 nd Respondent contends that this Court cannot interfere with the administrative process or constitutional mandate of other independent institution absent of a clear violation of the law which has not been demonstrated in the petition hence the petition is malicious, frivolous and an abuse of the Court process.
34. The 2 nd Respondent through Inspector Mr. Aggrey Busoga , swore another affidavit that basically reiterated the contents of the affidavit of Mr. Daniel Ashikobe (ASP).
Petitioner Submissions
35. The Petitioner, through Walubengo & Waningilo & Co. Advocates , filed submissions dated 27.1. 2025 wherein he identified two issues for determination, namely:
i. Whether further prosecution violates the Petitioner’s rights under Article 50 and Article 50 (2) of the Constitution of Kenya 2010, considering he has already been penalised and acquitted of the intended second charge.
ii. Whether there has been an abuse of process due to procedural irregularities in handling the administrative and criminal matters.
36. On the first issue, that is whether further prosecution violates the petitioner's rights under Article 50 and Article 50(2)(o) of the Kenyan Constitution 2010 considering he has already been penalized and acquitted of the intended second charge; Counsel submitted that Article 50 of the Constitution is fundamentally designed to ensure that justice is administered fairly, respects the rule of law, and protects the rights of individuals accused of criminal offences or involved in civil disputes. He argued it is a violation of Article 50(2)(o) of the Kenyan Constitution (2010), to subject the Petitioner to a charge he has already faced penalties for and has been acquitted of by the Subordinate Disciplinary Committee sitting in its quasi-judicial capacity.
37. Counsel submitted that Article 50 not only protects the petitioner from further double prosecution but also upholds the integrity of the judicial system, fostering trust and confidence in legal proceedings, as it serves as a guardian of human rights and legal fairness. Petitioner relied on the case of David Ngugi Nganga v Republic[2018] eKLR where the Court found upheld the provisions of Section 176 Criminal Procedure Code in matter involving injuries of personal nature to promoting alternative modes of dispute resolution under Article 159(2)(c)) and faulted the trial magistrate in her ruling that did not take into account this principle when making the decision that accused had absconded as he had already reconciled with the complainant in count II and compensated him.
38. Counsel argued that the respondents' insistence on recharging the Petitioner is a misuse the court's process.
39. Regarding the 2nd issue; Whether there has been an abuse of process due to procedural irregularities in handling the administrative and criminal matters; it was contended on behalf of the Petitioner that fairness demands that multiple punishments for the same act be avoided especially where administrative actions are sufficiently punitive. That the authority of administrative agencies is firmly rooted in the Constitution, Acts of Parliament, delegated legislation, and executive directives and thus essential that public administrators adhere to the law when making decisions, ensuring that their actions are lawful, reasonable, efficient, expedient, and procedurally fair. Counsel relied on Githunguri v. Republic (1986 ) where Court of Appeal highlighted that the pendency of charges and the threat of continuous harassment by the state amounted to abuse of process.
40. It was contended on behalf of the Petitioner that the continuation of the proceedings by the Prosecution after the administrative action against the Petitioner constitutes abuse in that it is oppressive, prejudicial and unfair to the Petitioner. Citing Dry Associates Limited v. Capital Markets Authority and Another [2012] eKLR Counsel submitted that administrative actions must respect fairness and reasonableness. Counsel argued that preferring subsequent criminal charges on the same facts after that disciplinary process undermined these principles.
41. In the Petitioners view, the Fair Administrative Action Act, 2015 was enacted to illuminate and expand the values espoused under Article 47 of the Constitution. Counsel contended that the Petitioner has never been confronted with the alleged statements in respect of the alleged other complaints or sworn affidavits or the OB entries hence the right to fair administrative action has been violated.
2 nd and 3 rd Respondent’s Submissions
42. The written submissions dated 20/2/2025 were filed on behalf of 2 nd and 3rd Respondent by the Senior Litigation Counsel, Ms. Opio Immaculate. In her submissions, counsel isolated and highlighted the following issues:
a) Whether the summoning of the Petitioner violates his rights under article 50 (2)(0) the Constitution.
b) Does the doctrine of double jeopardy apply in employment disciplinary cases where a criminal element exists?
c) Whether the Petitioner is entitled to the reliefs sought and the costs of the Petition.
43. Tacking the first issue; Whether the summoning of the Petitioner by the 2nd Respondent violates his rights under article 50(2)(o) of the Constitution Counsel argued that it does not.
44. This is because the 2nd Respondent is a creature of Article 243 of the Constitution. The Internal Affairs Unit, under the 2 nd Respondent exercises the functions delineated under Section 87 (2)(4) of the National Police Act no 11 of 2011 which among others authorizes it to receive, and investigate complaints against the police, promote uniform standards of discipline and good order in service and keep record of facts of any complaint and to recommend appropriate action in respect of any that are found to be engaging in unlawful conduct. That aligns with Article 244 of the Constitution which stipulates that the National Police Service shall strive for the highest standard of professionalism and discipline among its members, prevent corruption, promote and practice transparency as well as complying with constitutional standards of human rights and fundamental freedoms.
45. Among the recommendations the Unit may make under Section 87 (5), include: the interdiction of an officer; suspension of an officer; administration of a severe reprimand or a reprimand to control or influence the pay, allowances or conditions of service of an officer; or any other lawful action.
46. According to counsel, the 2 nd Respondent in this matter received several complaints against the petitioner from different parties and at different times. Some of the complaints were made after the supposed hearing by the Subordinate Disciplinary Committee, for example, the complaint by Ms. Euphrasia Mugula Luvembe. This means that clearly, the complaints could not have formed part of the issues canvassed at the said disciplinary hearing.
47. Further, that the complaints by Ms. Seline Awour, did not form part of the disciplinary hearing. This is evidenced by the ‘ notice to show cause ’ which captures a different offence from the offence that the Petitioner is being summoned.
48. Lastly, after the supposed disciplinary hearing, the petitioner’s proceedings and punishment where not forwarded to the National Police Service Commission as required under Section 89(2) of the National Police Act for review and confirmation, this rendered the proceedings incomplete, null and void.
49. Counsel further submitted that the fine imposed by the disciplinary committee was never paid and to date the Petitioner’s records neither reflect the said proceedings nor the outcome as the disciplinary process was never completed to begin with.
50. On whether the doctrine of double jeopardy applies in disciplinary cases where there is a criminal element; counsel referred to the principle of double jeopardy as anchored in Article 50(2)(o) of the Constitution and Section 138 of the Criminal Procedure Code, CAP 75. She argued that the doctrine specifically applies in criminal proceedings because acquittal or conviction only applies in criminal matters not administrative proceedings. She cited the Khan & 2 others v Capital Markets Authority (Appeal 2 of 2022) [2024] KECMT 376 (KLR) (2 February 2024) in support of that position in which quoted the following paragraph:
“Moreover, the court in Republic v Public Service Commission of Kenya Ex parte James Nene Gachoka, Nairobi Misc. Application 516 of 2005 [2013] eKLR found that the principle of double jeopardy does not apply to administrative proceedings such as those carried out by the Tribunal. The prohibition contemplated by the provision is that of a person undergoing trial for the same offence for which he was tried, convicted or acquitted….[14] The phrase „tried for that offence or for any other criminal offence‟ found in section 77(5) of the repealed Constitution necessarily mean that the proceedings must be before a court or a judicial tribunal and not mere administrative or civil proceedings. Disciplinary proceedings cannot be equated to a „trial for an offence‟ so as to attract the defence of double jeopardy doctrine. As such, disciplinary action, professional or otherwise, being of a civil nature, is not a punishment given by a court. The Supreme Court of the United Kingdom in case of R (on the application of Coke- Wallis) v Institute of Chartered Accountants of England & Wales [2011] UKSC1 noted that principles of autrefois acquit did not apply to disciplinary matters, which were civil not criminal proceedings. Lord Collins noted that, “[60] …. The primary purpose of professional disciplinary proceedings is not to punish, but to protect the public, to maintain public confidence in the integrity of the profession and to uphold proper standards of behaviour.” (See also Daniel Ndung‟u v Director of Public Prosecutions and another Nairobi Petition No. 69 of 2012 [2013] eKLR).”
51. As to whether the Petitioner is entitled to the reliefs sought and the costs of the Petition, Counsel argued that that costs follow the event and thus prayed that the Petition be dismissed for lack of merit with costs to the Respondents.
Submissions By The 1st, 2nd and 3rd Respondents
52. The submissions, dated 12.6.25, were filed by Mr. Achochi Henry Nyabuto, an Assistant Director of Public Prosecutions.
53. Counsel stressed that the decision to charge is made by the 1 st respondent under Article 157(6) of the Constitution of Kenya and takes into account the interests of the victim, the rights under article 50 and 157(11) of the Constitution of Kenya.
54. That under Section 24 of the National Police Service Act, the Police are mandated to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed.
55. Counsel argued that summoning of the petitioner to record a statement was in accordance with the law and the principles of natural justice and does not in any way infringe on his rights. He relied on Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR , where it was held that
“Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the petitioner’s right unless the investigations have been conducted unprocedurally and/or for ulterior motive….”
56. Counsel urged this Honourable Court to exercise restraint and allow state institutions to execute their mandates and cited the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012) EKLR , where the court held that :
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime………... The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.”
57. It was vehemently submitted that the jurisdiction of this court to interfere with the exercise of the 1st respondent’s discretion in making prosecutorial decisions should be exercised sparingly and in the clearest of cases as was held in Douglas Maina Mwangi vs Kenya Revenue Authority and Another HC Constitutional Petition No. 528 of 2013 , where the Court stated:
“When dealing with the decision as to whether or not to prosecute, the office of DPP exercises independent judgment and the court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process…. I do not find any reason or ground to intervene in that decision nor is it the obligation of the court to supervise the minutae of investigation and prosecution .”
58. Counsel submitted that the Petitioner has not demonstrated the illegality of the DPP in making decision to charge him. He maintained that the 1st respondent acted in public interest in making decision to charge the petitioner and in particular, properly applied Article 157(6), (11).
59. On the claim of a likelihood of double jeopardy if the Petitioner is charged before a court of law having previously been subjected to orderly room proceedings, Counsel referred to the Black’s Law Dictionary, Tenth Edition, on definition of double jeopardy as ‘The fact of being prosecuted or sentenced twice for substantially the same offence’ and the case of Itebete v Republic (Miscellaneous Criminal Application E081 of 2022) [2022] KEHC 16439 (KLR) (24 November 2022) (Ruling), where it was held that :
“The doctrine applies to matters that are strictly criminal in nature and there is no evidence on record to that effect. Filing of a civil case does not amount to double jeopardy”.
Further, the case of Geofrey Gekone v Capital Markets Authority appeal no. 5 of 201
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1. The Petition dated 15 th November, 2021 is supported by the affidavit of similar date of Sammy Wabomba Wasieba (the Petitioner herein). The Petitioner challenges a decision by the 1 st Respondent to prosecute him criminally, following investigations and subsequent recommendation by the 2 nd Respondent into an incident he alleges occurred on 10.6.2019, during which, his lawfully issued firearm discharged accidentally. The Petitioner alleges bad faith because he had already been subjected to disciplinarily procedure in respect of same incident, in which he faced two counts, pleaded guilty to one pertaining to discharge of the firearm and was punished accordingly while he was acquitted on one involving the striking, use or threatening violence for lack of evidence.
2. He contends that the current criminal prosecution is an attempt to revive the charge he has been disciplinarily acquitted of, in violation of Article 50 (2) (o) of the Constitution which amounts to double jeopardy, given that he has undergone the prescribed disciplinary procedure under the National Police Service Act No. 11 of 2011.
3. The Petitioner thus seeks the following reliefs against the Respondents:
a) A DECLARATION be made by this Honourable Court that the 1 st , 2 nd and 3 rd Respondents acted illegally by summoning the Petitioner with a view to charge him.
b) A DECLARATION be made by this Honourable Court that any charges whatsoever against the Petitioner are illegal and unconstitutional.
c) AN ORDER FOR COMPENSATION of the Petitioner be made by this Honourable Court for general damages for the distress, mental anguish, illegal summons and intended charging of the Petitioner,
d) AN ORDER awarding costs of this Petition to the Petitioner.
e) Any other further orders, writs and directions this court considers appropriate and just to grant for the purpose of enforcement of the Petitioner's fundamental rights.
Petitioner’s Case
4. The Petitioner states that he is a police officer working in the National Police Service. At the time relevant to this case, he was of stationed at Industrial Area Police Station.
5. He depones that on 10 th June, 2019, he had been assigned patrol duties within the Industrial Area section near the KCB Bank. That at the time he went for lunch, he decided to first carry out safety procedure of the firearm, AK 47, but he accidentally touched its trigger and it discharged ammunition into the air. This caused public anxiety and commotion. He immediately proceeded to the Police Station and informed his superior, the Officer Commanding Station, OCS.
6. Subsequently, he was charged with two offences against discipline namely; discharging a weapon without order or reasonable cause contrary to Section 88 (2) as read with Schedule 8 (2) 1 (0) of the National Police Service Act No. 11 of 2011. There was a 2nd Count, using, striking or unlawfully threatening violence against any police officer or any other person contrary to section 88(2) as read with schedule 1 (a) of the National Police Service Act No.11 of 2011.
7. He appeared before Subordinate Disciplinary Committee that was appointed for the disciplinary trial on 17.6.2019. The Subordinate Disciplinary Committee delivered its decision on 7.7.2019 wherein the Petitioner was found guilty on the first count after pleading guilty and was fined Kshs. 2500/-. He was acquitted of the second count on the grounds that the statements did not meet the threshold of prosecution, and also, witnesses were not found. The decision was then forwarded to the Sub-County Commander on 8th July, 2019 and this marked the end of that matter. The Petitioner states that he was satisfied with that disciplinary procedure.
8. The Petitioner alleges that despite the foregoing, on 8.11.2021, the 1 st , 2 nd and 3 rd Respondents, in bad faith, and in a manner prejudicial to his rights, issued him with summons he was to be criminally charged in Court for the offence of threatening to kill that emanated from the same incident that he faced before the Subordinate Disciplinary Committee. He contends that this is a violation of his rights under Article 50 (2) (o) of the Constitution as since it is an attempt by the 2nd Respondent through the 1st Respondent to revive a case that has already been concluded where all the parties had a right of appeal.
Respondents’ Case
9. In addition to the 2 nd Respondent filing a replying affidavit, the 1 st , 2 nd and 3 rd Respondents also filed grounds of opposition as follows:
i. THAT the Prayers sought by the Petitioner are unconstitutional as they seek to prevent the Director of Public Prosecutions from exercising his mandate as provided under Article 157 of the Constitution. The prayers if granted would result to a greater injustice in the criminal justice system and public interest.
ii. THAT Section 24 of the National Police Service Act mandates the police to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed.
iii. THAT the exparte applicant has not adduced reasonable evidence to show that the criminal proceedings has been instituted against him by the 1st respondent.
iv. THAT the exparte applicant has not adduced reasonable evidence to show that the criminal proceedings, if any, has been mounted for an ulterior motive and in bad faith.
v. THAT the exparte applicant must demonstrate that substantial injustice would otherwise result if the criminal proceedings were instituted against him.
vi. THAT there is a complaint against the exparte applicant related to threats to kill contrary to Section 223 of the penal code and it is in the public interest 3 that such complaint made to the police be investigated and the perpetrators of crimes are charged and prosecuted.
vii. THAT the complaint against the exparte applicant which is related to threats to kill contrary to Section 223 of the penal code should be put on the scales of justice and the same proven beyond reasonable doubt.
viii. THAT the complaint which is pending before the Internal Affairs Unit of the National Police Service has a complainant whose is also seeking justice as her claim has to be determined by the trial court.
ix. THAT the application is scandalous, frivolous and vexatious in that it is without substance or groundless or fanciful and it lacks bona fides and is hopeless or offensive and tends to cause the 1st, 2nd & 3rd respondents’ unnecessary anxiety, trouble or expenses.
x. THAT the orders sought are therefore not tenable against the 1st, 2nd & 3rd Respondents as the exparte applicant has not shown how the Respondents will infringe on the petitioner’s constitutional rights if the orders sought are not granted.
xi. THAT the applicant has never been tried before any court of law
2 nd Respondent
10. The 2 nd Respondent filed a replying affidavit through Mr. Daniel Ashikobe (ASP) sworn on 28 th June, 2022. He stated that he was at the time a Police Officer attached to the Internal Affairs Unit (hereafter referred as the Unit) Investigations Section. He depones that he led a team of IAU Investigators tasked with investigating the conduct of PC Sammy Wamboba Wasieba who was formerly under the command of OCS Industrial Area Police Station of Nairobi County but by at the time of these investigations, he was working under the auspices of OCS Bungoma Police Station in Bungoma County.
11. He stated that the investigations into the conduct of the Petitioner was prompted by a complaint to the Unit by Ms. Seline Awuor Mboya who he had threatened to kill severally.
12. Concerning the averments made in the Petition by the Petitioner as well as in his affidavit in support, he refuted the same. He explained that while it is true that the Petitioner was assigned duties to guard Kenya Commercial Bank (hereafter referred to as KCB) on 10 th June, 2019, on that material day, he left the Police Station aboard a motor bike and behind his colleague with whom they paired, No.105849 PC (W) Fatuma Hassan at the Station.
13. That according to the then Officer in charge Industrial Area Police Station (OCS), No. 232168 CI Henry Kandie, the Petitioner proceeded to Kamongo slum along Likoni road, alone and while armed with AK 47 rifle loaded with 30 rounds of live ammunition. That according to the OCS, he was seen threatening anybody on sight per ( annexture marked'DA1' ).
14. That the Petitioner threatened to kill the Vice Chairman of Kamongo village Mr. George Kimani alias Kimkam. It was during this incident that the Petitioner fired live ammunitions into the air to scare the crowd who had threatened to attack him for terrorising the villagers. That the villagers on their own volition teamed up under the leadership of area Chief Muraguri and Mr. Meltus Wanjala Wekesa Komongo village Chairman and reported the conduct of the petitioner at Industrial Area Police Station vide OB No.26/10/6/2019 (annexture 'DA4').
15. That while the Petitioner claims he went and reported the discharge of his firearm; he does not disclose the O. B entry he made in the Occurrence as is the practice. That the correct position is that the Petitioner appeared at the Station after the report had been made to the station that he was threatening villagers at Kamongo village and was thus disarmed by in charge armoury Sgt Jackson Kuloba ( per annexure ‘DA 3’- the Statement of Sgt Kuloba ).
16. That on unspecified date within the month of June, 2019, the Petitioner called Ms. Seline Awuor into his house located within Kamongo village and threatened to kill her for allegedly refusing to disclose to him the person who touched his girlfriend in a local pub ( annexure ‘DA 2’- the Statement of Ms. Seline Awuor ).
17. According to the 2 nd Respondent, investigations established that the Petitioner aimed a gun and shot at Ms. Seline Awuor missing her narrowly. Ms. Awuor screams attracted the attention of Kamongo villagers within Industrial Area who came to her rescue upon hearing the gun shot.
18. The 2 nd Respondent disputed the assertion made by the Petitioner that he was issued with show cause notice for committing disciplinary offence in that he threatened a person with violence yet the name of the person threatened with violence is neither mentioned in the show cause notice nor did the Petitioner refer to the person he threatened with violence in his response.
19. The 2 nd Respondent maintained that the Petitioner threatened to kill Ms. Seline Awuor on different occasion yet Ms. Seline was not named in the particulars in the show cause notice to the Petitioner.
20. That following a complaint by Ms. Seline Owour to IAU, it requested the Inspector General of Police to allow the said Unit to conduct investigations into the complaint, ( annexture DA5-letter to the Inspector General from the unit dated 29 th April 2020 and a response thereto from the office of the Inspector General of Police dated 13 th May 2020 annexed- marked DA6 ).
21. Regarding the allegation that the Petitioner underwent Subordinate Disciplinary Committee proceedings on 17.6. 2019 and that he was satisfied with the composition of the Committee and its judgement; the 2 nd Respondent explained that the procedure under the National Police Service Commission Regulations is based on Legal Notice No.90 and Chapter 30, Order 14(1) of the National Police Service Standings Orders . That Section 89(2) of the National Police Service Act, requires that a Police Officer authorized to impose a penalty for a disciplinary offence, shall enter a record of such punishment, the date of the punishment and the offence for which it was inflicted on the record sheet of the Police Officer punished, a copy of which shall be forwarded to the National Police Service Commission for review and confirmation.
22. However, the aforesaid proceedings and punishment were incomplete and thus invalid because they were not forwarded to the National Police Service Commission for review and confirmation. Annexure- WWS 7 that the Petitioner heavily relies on was never forwarded in the prescribed manner under the law.
23. That in fact, the 2 nd Respondent wrote to the Deputy Inspector General, Kenya Police Service and sought to be furnished with the profile of the Petitioner and established that the Petitioner’s conviction was never documented as he has a clean record with no previous disciplinary convictions ( annexture- 'DA7' ).
24. That further, despite the Petitioner asserting that he was fined Kshs. 2500 for the disciplinary offence he had pleaded guilty to, none of his salary pay slip for the years 2019, 2020 or even 2021 confirmed any such deduction.
25. That concerning the assertion that he was acquitted on the second count due to insufficient evidence primarily because the witnesses' statements could not meet the threshold of prosecution, and also, due to the fact that witnesses could not be traced, the petitioner merely availed the record of the 1 st count of discharging a weapon without a reasonable lawful order. He did not produce the proceedings for the second charge of threatening violence. Further, there is no record of a charge of threatening to kill Ms. Seline Awuor that has been exhibited.
26. The 2 nd Respondent contended that threatening to kill is a serious criminal offence under Section 223 of the Penal Code, Cap 63 Laws of Kenya which cannot be tried under the disciplinary procedure. That in accordance to Section 88(3) of the National Police Service Act, a Police Officer who commits a criminal offence is liable to criminal proceedings in a court of law. The Disciplinary Committee therefore cannot usurp the powers of the Court of law.
27. The 2 nd Respondent deponed that after receiving complaint from Ms. Seline Awuor that the Petitioner threatened to kill her for refusing to yield to his sexual advances, it investigated the same and revealed that there is sufficient evidence to charge the Petitioner with offence of threatening to kill Ms. Awuor Contrary to Section 223 of the Penal Code and the petitioner's allegations that he was tried of the same offence therefore he is destined to suffer double jeopardy is unfounded.
28. Moreover, the waiver notice annexed to the petition- annexture ‘SWW3,' which the Petitioner relied on indicates that Count II in the disciplinary proceedings pertained to "unlawful strike, use or threatening violence against any Police Officer or any other Person contrary Section 88(2) as read with Eighth Schedule 1(a) of the NPS Act No 11 of 2011" which is a distinct offence from that of threats to kill under Section 223 of the Penal Code which the Petitioner is to be charged with.
29. The frustration of Ms. Awuor with dithering at Industrial Area Police Station prompted her to lodge a complaint with the IAU, where she received a fair hearing.
30. The 2 nd Respondent thus maintains that it has not violated the Petitioner's constitutional rights nor treated him in inhumane way by summoning him to appear at the Unit Headquarters to update him of the decision of the Director of Public Prosecutions to prefer criminal charges against him ( annexure ‘DA 8’ -DPP’s directive ).
31. That in addition to Ms. Seline Awuor complaint, the Unit investigated another complaint against the Petitioner from one Ms. Euphrasia Mugula Luvembe , an employee of Nairobi West Hospital over the similar allegations of threats to kill where it was alleged that on 28th August, 2020, the Petitioner in the company of two heavily armed uniformed Officers, namely; No.110665 PC Kevin Nyongesa, No.107550 PC Martin Kimathi and an unknown civilian, stormed the hospital at around mid-day, forced entry into a room where Ms. Mugula was working and threatened her, causing panic within the hospital.
32. This matter has since been taken over by the Independent Policing Oversight Authority ( annexture 'DA9' and 'DA10').
33. The 2 nd Respondent contends that this Court cannot interfere with the administrative process or constitutional mandate of other independent institution absent of a clear violation of the law which has not been demonstrated in the petition hence the petition is malicious, frivolous and an abuse of the Court process.
34. The 2 nd Respondent through Inspector Mr. Aggrey Busoga , swore another affidavit that basically reiterated the contents of the affidavit of Mr. Daniel Ashikobe (ASP).
Petitioner Submissions
35. The Petitioner, through Walubengo & Waningilo & Co. Advocates , filed submissions dated 27.1. 2025 wherein he identified two issues for determination, namely:
i. Whether further prosecution violates the Petitioner’s rights under Article 50 and Article 50 (2) of the Constitution of Kenya 2010, considering he has already been penalised and acquitted of the intended second charge.
ii. Whether there has been an abuse of process due to procedural irregularities in handling the administrative and criminal matters.
36. On the first issue, that is whether further prosecution violates the petitioner's rights under Article 50 and Article 50(2)(o) of the Kenyan Constitution 2010 considering he has already been penalized and acquitted of the intended second charge; Counsel submitted that Article 50 of the Constitution is fundamentally designed to ensure that justice is administered fairly, respects the rule of law, and protects the rights of individuals accused of criminal offences or involved in civil disputes. He argued it is a violation of Article 50(2)(o) of the Kenyan Constitution (2010), to subject the Petitioner to a charge he has already faced penalties for and has been acquitted of by the Subordinate Disciplinary Committee sitting in its quasi-judicial capacity.
37. Counsel submitted that Article 50 not only protects the petitioner from further double prosecution but also upholds the integrity of the judicial system, fostering trust and confidence in legal proceedings, as it serves as a guardian of human rights and legal fairness. Petitioner relied on the case of David Ngugi Nganga v Republic[2018] eKLR where the Court found upheld the provisions of Section 176 Criminal Procedure Code in matter involving injuries of personal nature to promoting alternative modes of dispute resolution under Article 159(2)(c)) and faulted the trial magistrate in her ruling that did not take into account this principle when making the decision that accused had absconded as he had already reconciled with the complainant in count II and compensated him.
38. Counsel argued that the respondents' insistence on recharging the Petitioner is a misuse the court's process.
39. Regarding the 2nd issue; Whether there has been an abuse of process due to procedural irregularities in handling the administrative and criminal matters; it was contended on behalf of the Petitioner that fairness demands that multiple punishments for the same act be avoided especially where administrative actions are sufficiently punitive. That the authority of administrative agencies is firmly rooted in the Constitution, Acts of Parliament, delegated legislation, and executive directives and thus essential that public administrators adhere to the law when making decisions, ensuring that their actions are lawful, reasonable, efficient, expedient, and procedurally fair. Counsel relied on Githunguri v. Republic (1986 ) where Court of Appeal highlighted that the pendency of charges and the threat of continuous harassment by the state amounted to abuse of process.
40. It was contended on behalf of the Petitioner that the continuation of the proceedings by the Prosecution after the administrative action against the Petitioner constitutes abuse in that it is oppressive, prejudicial and unfair to the Petitioner. Citing Dry Associates Limited v. Capital Markets Authority and Another [2012] eKLR Counsel submitted that administrative actions must respect fairness and reasonableness. Counsel argued that preferring subsequent criminal charges on the same facts after that disciplinary process undermined these principles.
41. In the Petitioners view, the Fair Administrative Action Act, 2015 was enacted to illuminate and expand the values espoused under Article 47 of the Constitution. Counsel contended that the Petitioner has never been confronted with the alleged statements in respect of the alleged other complaints or sworn affidavits or the OB entries hence the right to fair administrative action has been violated.
2 nd and 3 rd Respondent’s Submissions
42. The written submissions dated 20/2/2025 were filed on behalf of 2 nd and 3rd Respondent by the Senior Litigation Counsel, Ms. Opio Immaculate. In her submissions, counsel isolated and highlighted the following issues:
a) Whether the summoning of the Petitioner violates his rights under article 50 (2)(0) the Constitution.
b) Does the doctrine of double jeopardy apply in employment disciplinary cases where a criminal element exists?
c) Whether the Petitioner is entitled to the reliefs sought and the costs of the Petition.
43. Tacking the first issue; Whether the summoning of the Petitioner by the 2nd Respondent violates his rights under article 50(2)(o) of the Constitution Counsel argued that it does not.
44. This is because the 2nd Respondent is a creature of Article 243 of the Constitution. The Internal Affairs Unit, under the 2 nd Respondent exercises the functions delineated under Section 87 (2)(4) of the National Police Act no 11 of 2011 which among others authorizes it to receive, and investigate complaints against the police, promote uniform standards of discipline and good order in service and keep record of facts of any complaint and to recommend appropriate action in respect of any that are found to be engaging in unlawful conduct. That aligns with Article 244 of the Constitution which stipulates that the National Police Service shall strive for the highest standard of professionalism and discipline among its members, prevent corruption, promote and practice transparency as well as complying with constitutional standards of human rights and fundamental freedoms.
45. Among the recommendations the Unit may make under Section 87 (5), include: the interdiction of an officer; suspension of an officer; administration of a severe reprimand or a reprimand to control or influence the pay, allowances or conditions of service of an officer; or any other lawful action.
46. According to counsel, the 2 nd Respondent in this matter received several complaints against the petitioner from different parties and at different times. Some of the complaints were made after the supposed hearing by the Subordinate Disciplinary Committee, for example, the complaint by Ms. Euphrasia Mugula Luvembe. This means that clearly, the complaints could not have formed part of the issues canvassed at the said disciplinary hearing.
47. Further, that the complaints by Ms. Seline Awour, did not form part of the disciplinary hearing. This is evidenced by the ‘ notice to show cause ’ which captures a different offence from the offence that the Petitioner is being summoned.
48. Lastly, after the supposed disciplinary hearing, the petitioner’s proceedings and punishment where not forwarded to the National Police Service Commission as required under Section 89(2) of the National Police Act for review and confirmation, this rendered the proceedings incomplete, null and void.
49. Counsel further submitted that the fine imposed by the disciplinary committee was never paid and to date the Petitioner’s records neither reflect the said proceedings nor the outcome as the disciplinary process was never completed to begin with.
50. On whether the doctrine of double jeopardy applies in disciplinary cases where there is a criminal element; counsel referred to the principle of double jeopardy as anchored in Article 50(2)(o) of the Constitution and Section 138 of the Criminal Procedure Code, CAP 75. She argued that the doctrine specifically applies in criminal proceedings because acquittal or conviction only applies in criminal matters not administrative proceedings. She cited the Khan & 2 others v Capital Markets Authority (Appeal 2 of 2022) [2024] KECMT 376 (KLR) (2 February 2024) in support of that position in which quoted the following paragraph:
“Moreover, the court in Republic v Public Service Commission of Kenya Ex parte James Nene Gachoka, Nairobi Misc. Application 516 of 2005 [2013] eKLR found that the principle of double jeopardy does not apply to administrative proceedings such as those carried out by the Tribunal. The prohibition contemplated by the provision is that of a person undergoing trial for the same offence for which he was tried, convicted or acquitted….[14] The phrase „tried for that offence or for any other criminal offence‟ found in section 77(5) of the repealed Constitution necessarily mean that the proceedings must be before a court or a judicial tribunal and not mere administrative or civil proceedings. Disciplinary proceedings cannot be equated to a „trial for an offence‟ so as to attract the defence of double jeopardy doctrine. As such, disciplinary action, professional or otherwise, being of a civil nature, is not a punishment given by a court. The Supreme Court of the United Kingdom in case of R (on the application of Coke- Wallis) v Institute of Chartered Accountants of England & Wales [2011] UKSC1 noted that principles of autrefois acquit did not apply to disciplinary matters, which were civil not criminal proceedings. Lord Collins noted that, “[60] …. The primary purpose of professional disciplinary proceedings is not to punish, but to protect the public, to maintain public confidence in the integrity of the profession and to uphold proper standards of behaviour.” (See also Daniel Ndung‟u v Director of Public Prosecutions and another Nairobi Petition No. 69 of 2012 [2013] eKLR).”
51. As to whether the Petitioner is entitled to the reliefs sought and the costs of the Petition, Counsel argued that that costs follow the event and thus prayed that the Petition be dismissed for lack of merit with costs to the Respondents.
Submissions By The 1st, 2nd and 3rd Respondents
52. The submissions, dated 12.6.25, were filed by Mr. Achochi Henry Nyabuto, an Assistant Director of Public Prosecutions.
53. Counsel stressed that the decision to charge is made by the 1 st respondent under Article 157(6) of the Constitution of Kenya and takes into account the interests of the victim, the rights under article 50 and 157(11) of the Constitution of Kenya.
54. That under Section 24 of the National Police Service Act, the Police are mandated to investigate any complaint brought to their attention in order to determine whether a criminal offence has been committed.
55. Counsel argued that summoning of the petitioner to record a statement was in accordance with the law and the principles of natural justice and does not in any way infringe on his rights. He relied on Rhodah Mutete Mutuku v Inspector General, National Police Service & 2 others [2019] eKLR , where it was held that
“Investigations are a fundamental step in the justice chain to ensure that people are not charged unnecessarily and therefore cannot be said to be a threat to the petitioner’s right unless the investigations have been conducted unprocedurally and/or for ulterior motive….”
56. Counsel urged this Honourable Court to exercise restraint and allow state institutions to execute their mandates and cited the case of Republic vs. Commissioner of Police and Another ex-parte Michael Monari & Another (2012) EKLR , where the court held that :
“The police have a duty to investigate on any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime………... The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court.”
57. It was vehemently submitted that the jurisdiction of this court to interfere with the exercise of the 1st respondent’s discretion in making prosecutorial decisions should be exercised sparingly and in the clearest of cases as was held in Douglas Maina Mwangi vs Kenya Revenue Authority and Another HC Constitutional Petition No. 528 of 2013 , where the Court stated:
“When dealing with the decision as to whether or not to prosecute, the office of DPP exercises independent judgment and the court cannot interfere unless it is shown that the exercise is contrary to the Constitution, in bad faith or amounts to an abuse of process…. I do not find any reason or ground to intervene in that decision nor is it the obligation of the court to supervise the minutae of investigation and prosecution .”
58. Counsel submitted that the Petitioner has not demonstrated the illegality of the DPP in making decision to charge him. He maintained that the 1st respondent acted in public interest in making decision to charge the petitioner and in particular, properly applied Article 157(6), (11).
59. On the claim of a likelihood of double jeopardy if the Petitioner is charged before a court of law having previously been subjected to orderly room proceedings, Counsel referred to the Black’s Law Dictionary, Tenth Edition, on definition of double jeopardy as ‘The fact of being prosecuted or sentenced twice for substantially the same offence’ and the case of Itebete v Republic (Miscellaneous Criminal Application E081 of 2022) [2022] KEHC 16439 (KLR) (24 November 2022) (Ruling), where it was held that :
“The doctrine applies to matters that are strictly criminal in nature and there is no evidence on record to that effect. Filing of a civil case does not amount to double jeopardy”.
Further, the case of Geofrey Gekone v Capital Markets Authority appeal no. 5 of 201
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