1. These Judicial Review proceedings were initiated by way of an ex parte chamber summons, dated 18th March 2026, in Milimani HCJR Miscellaneous No. E044 of 2026, for leave to commence a Motion for certiorari and prohibition orders, directed at the respondent, with respect to a decision to charge the ex parte applicant with forcible detainer, contrary to section 91 of the Penal Code, Cap. 63, Laws of Kenya, in Milimani MCCRC No. E121 of 2026.
2. The ex parte chamber application was placed before the Judge, on 19th March 2026, and the leave sought was granted, and it was directed that the substantive Motion be filed, in a separate cause. It was also ordered that the grant of leave do operate as stay of the proceedings in Milimani MCCRC No. E121 of 2026.
3. The contemplated Motion was filed herein, as directed, dated 26th March 2026. It is supported by the filings made at the leave stage.
4. According to the verifying affidavit, sworn on 18th March 2026, by the ex parte applicant, the ex parte applicant is a director of Little Sheep Investments Limited, while the interested party is a director of Mavic Investments Company Limited. In 2016, Little Sheep Investments Limited leased LR No. 209/407/2 from Mavic Investments Company Limited, for 8 years. Little Sheep Investments Limited took possession, and improved the property. Thereafter, Mavic Investments Company Limited sought to terminate the lease and evict Little Sheep Investments Limited, by filing ELCC No. 105 of 2019, at the Environment and Land Court, Nairobi. The court, in ELCC No. 105 of 2019, ruled that Little Sheep Investments Limited was in lawful occupation and possession of the property, and dismissed the suit. Thereafter, Little Sheep Investments Limited filed BPRTC No. E1062 of 2024, at the Business Premises Rent Tribunal, Nairobi, seeking protection from unlawful interference with the lease or tenancy.
5. Sometime in October 2025, the ex parte applicant was summoned by police officers, and was required to present documentation relating to the occupancy of LR No. 209/407/2 by Little Sheep Investments Limited, which summons he honoured, and presented the documents required. Despite that, on 9th March 2026, the ex parte applicant received information that he was to be charged, in Milimani MCCRC No. E121 of 2026, with the offence of forcible detainer, with respect to LR No. 209/407/2. He argues that he is not the tenant or lessee, explaining that the lease or tenancy was by Little Sheep Investments Limited.
6. Several documents are attached to that affidavit. There is a copy of a lease, over LR No. 209/407/2, executed between Little Sheep Investments Limited and Mavic Investments Company Limited, on 1st August 2016; a copy of a judgement, delivered in ELCC No. 105 of 2019, on 18th January 2024, reported as Mavic Investments Company Limited vs. Little Sheep Investments Limited [2024] KEELC 101 (KLR); a copy of formal orders, of 6th February 2026, extracted from BPRTC No. E1062 of 2024, on 18th February 2026; a copy of a letter, dated 16th October 2025 from the Directorate of Criminal Investigations, summoning the ex parte applicant to an interview and for statement recording, with respect to investigations on LR No. 209/407/2, following a complaint by Mavic Investments Company Limited; a copy of a charge sheet, in Milimani MCCRC No. E121 of 2026, charging the ex parte applicant with forcible detainer, contrary to section 91 of the Penal Code; and copy of a letter, dated 10th March 2026, from the ex parte applicant, addressed to the respondent, requesting for review of the decision to proffer charges against him.
7. The statutory statement avers that the judicial review orders sought are for a certiorari and a prohibition, to quash the decision to prosecute the ex parte applicant, and to prohibit the prosecution. The grounds are that there is abuse of the criminal justice process, existence of prior civil determinations, improper use of the criminal process to enforce civil rights, misapplication of criminal liability, illegality and irrationality, failure to exercise prosecutorial discretion properly, violation of the right to fair administrative action, oppressive and prejudicial prosecution, ultra vires and improper purpose, and interests of justice.
8. The respondent was served with the Motion, and filed a replying affidavit, sworn on 17th April 2026, by No. 239409, Chief Inspector of Police Cynthia Kibowen, the officer investigating the matter. She avers to have had received a complaint, on 3rd October 2024, from the interested party, in relation to the lease over LR No. 209/407/2, by Little Sheep Investments Limited, on the basis that the same had expired on 1st August 2024, but the ex parte applicant, a person unknown to the landowner, operating as Soko Safi Limited, had refused to vacate the said property, now described as Nairobi/Block 43/63.
9. The history given, by Chief Inspector Kibowen, is that the said property had been leased out, by Mavic Investments Company Limited, to Little Sheep Investments Limited in 2016. It is averred that Mavic Investments Company Limited dealt with directors of Little Sheep Investments Limited, who did not include the ex parte applicant. It is explained that the ex parte applicant was a director of one of the companies, which had shares in Little Sheep Investments Limited. It is averred that after the execution of the lease, the residential property on the land was converted into a hotel business, and later the ex parte applicant constructed 72 commercial units on the property. It is averred that Little Sheep Investments Limited defaulted in paying rent, accumulating to Kshs. 3,000,000.00 by 1st March 2018, which prompted efforts to end the lease or tenancy. It is alleged that it was at that stage that the ex parte applicant emerged as a representative of Little Sheep Investments Limited, undertaking to settle the outstanding rent.
10. It is averred that Mavic Investments Company Limited sought to terminate the lease, by issuing a notice to vacate, and filed ELCC No. 105 of 2019, to advance that effort. However, ELCC No. 105 of 2019 was dismissed, and Little Sheep Investments Limited was allowed to remain in possession, until expiry of the lease. Orders were made in BPRTC No. E1062 of 2024, consolidated with BPRTC No. E829 of 2024, on 6th February 2025, restraining Mavic Investments Company Limited from interfering with the quiet possession of Little Sheep Investments Limited, and the parties were directed to negotiate terms for a new lease. Mavic Investments Company Limited was aggrieved, and filed an appeal, in ELCA No. E163 of 2024, which is still pending.
11. It is asserted that the lease agreement of 1st August 2016 was for 8 years, and it expired on 1st August 2024, hence there was no subsisting lease as at the date the criminal investigations were initiated. It is averred that the police forwarded its investigations file to the respondent, with recommendations, whereupon the respondent, by a letter dated 17th February 2026, directed that there was enough evidence to arrest and charge the ex parte applicant, of the offence of forcible detainer, criminal charges were instituted in Milimani MCCRC No. E121 of 2026, and summons were issued to have the ex parte applicant appear to take plea. It is averred that the ex parte applicant did not appear before the criminal court, in answer to the said summons, and a warrant of arrest was issued.
12. It is further asserted that there was no demonstration that the investigations, arrest and arraignment of the ex parte applicant was done in excess of power, nor that there was infringement, violation or contravention of the Constitution. It is asserted that the evidence collected by the police could only be properly tested at the criminal trial. Section 24 of the National Police Service Act, Cap. 84, Laws of Kenya, and Article 157(10)(11) of the Constitution are cited, to argue that the respondent and the police acted within their mandate.
13. A number of documents are attached to that affidavit, which include a certificate of title for Nairobi/Block 43/63, registered in the name of Mavic Investments Company Limited, dated 4th October 2024; a letter, from the Business Registration Service, dated 8th September 2025, on the shareholding and directorships of Mavic Investments Company Limited, Little Sheep Investments Limited and Soko Safi Limited; a copy of a letter, from the Business Registration Service, dated 14th November 2025, on the shareholding and directorship of Eldovine Investments Limited; a copy of the formal order, in BPRTC No. E1062 of 2024, made on 6th February 2025, and issued on 18th February 2025; and the warrant of arrest, issued in Milimani MCCRC No. E121 of 2026, dated 23rd March 2026, in respect of the ex parte applicant, for failure to attend court.
14. The interested party did not file any papers.
15. The application is canvassed by way of written submissions, filed by the ex parte applicant and the respondent.
16. The written submissions, by the ex parte applicant, dated 21st May 2026, identify 1 issue for determination, which turns around whether the ex parte applicant is entitled to the orders sought in his application. Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300, Republic vs. Attorney General Ex parte Kipng’eno Arap Ng’eny [2001] eKLR, Peter Ngunjiri Maina vs. Director of Public Prosecutions & 2 others [2017] eKLR, Republic vs. Director of Public Prosecutions & 2 others Ex Parte Nomoni Saisi [2016] eKLR, Kuria & 3 others vs. Attorney General [2002] 2 KLR 69 and Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] 2 KLR 703 are cited.
17. The written submissions by the respondent are also dated 21st May 2026. They turn around 2 issues, on whether the respondent acted in excess or without authority, and whether the application meets the requisite conditions for grant of the orders sought. Article 157(6a) (10) of the Constitution, section 24 of the National Police Service Act, Pauline Raget Adhiambo Agot vs. Director of Public Prosecutions & 5 others Petition No. 446 of 2012, Republic vs. Commissioner of Police & another Ex Parte Monari & another [2012] KEHC 4595 (KLR), Cascade Company Limited vs. Kenya Association of Music Producers (KAMP) & others Murang’a HC Petition No. 7 of 2024 and Kuria & 3 others vs. Attorney General [2002] 2 KLR 69 are cited.
18. There is only 1 issue for me to determine, whether a case has been made out for grant of the orders sought.
19. These are judicial review proceedings. The function of the court, in the context of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but, on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is inexorably intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural fairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300.
20. The decision, under challenge herein, is that relating to the charging of the ex parte applicant with the criminal offence of forcible detainer. The charge was recommended to the respondent, by the police, whereupon the respondent approved that charge, resulting in the applicant being required to attend court to answer to it.
21. The respondent is mandated by the Constitution, under Article 157, and the relevant statutes, the Office of the Director of Public Prosecutions Act, Cap. 6B, Laws of Kenya, and the Criminal Procedure Code, Cap. 75, Laws of Kenya, to conduct public prosecutions, and in that regard, to work closely with the police authorities. That is what appears to be what was done in this case. The affidavit filed herein, for the respondent, is sworn by the police officer who investigated the complaint. The police received the complaint, made inquiries, conducted investigations, collected evidence, and forwarded its findings to the respondent, as the prosecuting authority, with what the police considered to be the appropriate recommendations. The respondent, upon receipt of the investigations record and the recommendations, approved the prosecution.
22. The ex parte applicant has not established that there was illegality in the manner the respondent discharged its responsibility, of receiving the investigations file, and making a decision on whether a prosecution should be conducted or not. Neither has it been demonstrated that the procedure employed, in receiving the recommendations and approving them, was unfair or prejudicial to him. The respondent is authorised by the Constitution to do what it did.
23. Rationality and reasonableness go together. They call for venturing into the merits, to assess whether, based on the facts that were before the decision-maker, the decision arrived at was rational or reasonable.
24. The case, by the ex parte applicant, is that he was summoned by the police authorities, he responded to the said summons, by availing himself to the police, where he presented documentation to explain himself. He asserts that the materials that he presented to the police did not point to culpability on his part. He argues that that material exonerated him, which then makes him wonder at how a decision could be made to charge him with forcible detainer.
25. To support his case, he has attached some documents to his affidavit. These documents principally seek to demonstrate that there was a contractual relationship of some sort, between him, the ex parte applicant, or entities that he was a core part of, and the interested party or entities that she was a core part of. The documents also seek to demonstrate that there has been active litigation between the parties, over that relationship, and decisions have been made by the courts, whose effect would be to bar criminalisation of that relationship.
26. The ex parte applicant has not presented a complete record of what the respondent had been presented with, by way of the investigations report, to inform its decision to charge and prosecute him. The court does not have, therefore, the complete record that the respondent had when it approved prosecution, and drew up the charges.
27. The standard of proof, in criminal cases, is beyond reasonable doubt, hence quite a heft of evidence must be marshalled, to prove all the aspects of the case. The prosecution would have to rely on evidence from persons familiar with the matter, and I suppose that witness statements have been recorded from individuals who are privy to the matter one way or the other. The ex parte applicant ought to have placed such witness statements before me, as proof of what the respondent used to make its decision, with an intention of bringing out where the respondent went wrong, if at all, in making the decision that it made.
28. The investigating officer, in her affidavit, has not placed before the court the material that made up the investigations record that she placed before the respondent, and which the respondent presumably used to proffer charges against the ex parte applicant. The respondent, as prosecutor, has not filed any material, of what it had before it, when it made the decision, and it appears to rely exclusively on the word of the fact-finder, the investigating officer. I am alive to the fact that the said material was or is in the hands of the respondent. However, it is the ex parte applicant who has come to court, with his allegations, and the duty is on him, to place on record the relevant material, to establish that which he alleges.
29. Should that failure, to place before me all the material that was before the respondent, when the decision to charge was made, be fatal to the case by the ex parte applicant? I do not think it should. The case before this court is not about the material that the investigator had gathered, and whether it reached the threshold. The case is not about sufficiency of evidence, to support a decision to charge. Rather, it is about the background against which the charges have been proffered, that is the commercial or contractual relationship between the parties, and the active litigation which they have had over that relationship, some of which is still pending. The issue is whether a criminal prosecution can be mounted, on the same facts that have been before the civil courts, in litigation which remains active to date. Secondly, I have before me an affidavit by the investigator, which gives a background to the matter, and a glimpse of what the respondent had before him, when he decided to charge.
30. Section 193A of the Criminal Procedure Code, Cap. 75, Laws of Kenya, does envisage the possibility of criminal and civil proceedings running parallel to each other, for one set of proceedings turns around criminal liability and responsibility, while the other is about civil liability and pursuit of civil reliefs. The outcomes of the 2 processes, civil and criminal, could be different. One leads to criminal sanctions, fines or imprisonment, or both; while the other leads to civil reliefs, compensation, restitution or other.
31. However, much as the Criminal Procedure Code permits parallel criminal and civil proceedings, in certain circumstances pursuit of both could produce absurd results, leading to shocks and embarrassment to the system of justice. There is always the spectre of the courts, handling the separate civil and criminal proceedings, coming to different conclusions, based on the same facts. The standards of proof in civil and criminal proceedings are different, which means that the thresholds of evidential proof are different. The evidence marshalled, although founded on the same facts, targets different outcomes, for one seeks to establish civil liability, while the other seeks to establish criminal responsibility. Some aspects of the allegations may be easier to prove in one case than in the other. It is on account of that that some deference may be allowed, so that parties are let to pursue only one of the pathways to justice, instead of both; or to sequence the proceedings, by first pursuing the civil remedies, followed by the criminal proceedings, upon conclusion of the civil proceedings, subject to the outcome of the civil process.
32. It is with that in mind that the principles of res judicata, sub judice, double jeopardy, autrefois acquit and autrefois convict, among others, have developed. Of course, res judicata and sub judice are limited to civil proceedings, while double jeopardy and autrefois acquit and autrefois convict are in criminal procedure. However, the spirit in them all is one, to guard against the spectre of conducting multiple proceedings contemporaneously, involving the same parties, based on the same facts, for in conducting such multiple proceedings simultaneously lies the danger of doing injustice, should the different courts, seized of such proceedings, arrive at outcomes that are mutually inconsistent, albeit based on the same facts.
33. Therefore, much as the respondent has section 193A of the Criminal Procedure Code, allowing the mounting of a criminal prosecution parallel to ongoing civil proceedings, turning on the same issues and facts; and Article 157 of the Constitution, granting exclusive power and control over public prosecutions, rationality and reasonableness ought not be thrown out of the window, where the circumstances create an environment of absurdity, with respect to the possible outcomes of parallel proceedings. The issue should always be that, even if there is seeming exclusive power, on the part of the respondent, to make decisions on when to prosecute and with respect to who to prosecute, regardless of pending or ongoing civil proceedings, between the same parties, founded on the same facts, common-sense should prevail, to guide on whether it would be rational or reasonable to mount a certain prosecution, given the prevailing circumstances.
34. It is common ground that there was and still is a tenancy relationship between the 2 companies, in which the ex parte applicant and the interested party were or are principals, Mavic Investments Company Limited and Little Sheep Investments Limited. Mavic Investments Company Limited was, at all material times, the registered proprietor of LR No. 209/407/2, also known as Nairobi/Block 43/63. It is also common ground that Mavic Investments Company Limited leased out that property, that is LR No. 209/407/2, to Little Sheep Investments Limited. From the material placed on record, by the investigator, the interested party herein was and is one of the shareholders and directors of Mavic Investments Company Limited, while the ex parte applicant was or is a shareholder and director of a company, known as Eldovine Investments Limited, which had or has a shareholding interest in Little Sheep Investments Limited.
35. The interested party did not file any papers in these proceedings, and she appears to have left it to the respondent to argue her case. The respondent has not filed any response, directly, to the application, but has chosen to rely on an affidavit sworn by the police investigator who is handling the matter. That investigator has presented a rather mixed picture of the state of affairs. Whereas she concedes the relationship between Mavic Investments Company Limited and Little Sheep Investments Limited, she seeks to distance the ex parte applicant from it, by claiming that the interested party did not deal with the ex parte applicant, but with a certain Mingzhou Zhang instead. She, however, identifies the ex parte applicant as a director of Eldovine Investments Limited, which owned or owns 90% of the shares in Little Sheep Investments Limited, as at the time the lease agreement was entered into. She identifies the ex parte applicant, in her affidavit, as “the lessee,” who injected an investment of Kshs. 80,000,000.00, to developing commercial units on LR No. 209/407/2, after the lease agreement was executed. Therefore, contrary to the picture that the investigator seeks to paint, in sections of her affidavit, that the ex parte applicant was a stranger, who sprung out of nowhere, to take possession of LR No. 209/407/2, he was, according to other sections of the said affidavit, an integral part of Little Sheep Investments Limited, and of the relationship between it and Mavic Investments Company Limited.
36. The dispute is around a lease or a tenancy. Both sides concede the existence of a lease or tenancy agreement. The exhibited copy of the lease or tenancy agreement reveals that the lease was entered into and executed by the 2 companies, Mavic Investments Company Limited and Little Sheep Investments Limited. The lease was made on 1st August 2016, and was for 8 years, intended to run up to 1st August 2024.
37. It would appear that somewhere along the way, the tenancy relationship broke down or soured prior to the lapse of the lease, on account of effluxion of time, on 1st August 2024. The investigator frames the cause of the breakdown as a dispute over rent, while the ex parte applicant frames it as an effort to evict the tenant. There is common ground, though, that there has been litigation, between the 2 companies, the landlord and the tenant, Mavic Investments Company Limited and Little Sheep Investments Limited, at the Environment and Land Court and at the Business Premises Rent Tribunal. The ex parte applicant has attached a copy of the judgement delivered in ELCC No. 105 of 2019, and a copy of an order extracted in BPRTC No. E1062 of 2024. The investigator has attached the order in BPRTC No. E1062 of 2024.
38. A close reading of the judgement, in ELCC No. 105 of 2019, would reveal that Mavic Investments Company Limited sought only one prayer against Little Sheep Investments Limited, vacant possession of LR No. 209/407/2. The suit was dismissed, on grounds that the lease agreement between the parties had not been lawfully terminated, and was still subsisting, as at 18th January 2024, when the judgement was delivered. The order, in BPRTC No. E1062 of 2024, reveals that the matter had been brought by Little Sheep Investments Limited against Mavic Investments Company Limited. The order, made in BPRTC No. E1062 of 2024, is that Mavic Investments Company Limited was at liberty to issue a fresh termination notice, in prescribed form, giving reasons for the termination, with the alternative that the 2 parties negotiate terms of a new lease. The investigator indicates that Mavic Investments Company Limited filed an appeal, in ELCA No. E163 of 2024, against the order in BPRTC No. E1062 of 2024, which appeal she avers is still pending.
39. What should emerge from the above is that there has been litigation, over the tenancy relationship between Mavic Investments Company Limited and Little Sheep Investments Limited. The judgment and orders emanating from those processes, in ELCC No. 105 of 2019 and BPRTC No. E1062 of 2024, affirm that tenancy or lease relationship to be still subsisting, in the sense that Little Sheep Investments Limited is still lawfully in possession of LR No. 209/407/2, as a tenant of Mavic Investments Company Limited. That dispute is still alive, given that Mavic Investments Company Limited has lodged an appeal, in ELCA No. E163 of 2024, which is still subsisting, at least as at 17th April 2026, when the replying affidavit was sworn.
40. So, there is a judgment and a ruling, from the Environment and Land Court and the Business Premises Rent Tribunal, both upholding the tenancy relationship between Mavic Investments Company Limited and Little Sheep Investments Limited, and urging that any termination ought to be in accordance with the relevant law. The respondent has not exhibited any proof that those determinations, of the Environment and Land Court and the Business Premises Rent Tribunal, have been vacated, either on appeal or review. Instead, the respondent has filed an affidavit confirming that there is a pending appeal, against one of those determinations. That would mean that there is active civil litigation before the courts over the issue of the tenancy. One would then wonder at how the respondent can initiate criminal proceedings against one of the principals in Little Sheep Investments Limited, over the status of that tenancy, when the tenancy has been upheld by the civil courts, and an appeal pends in another civil court over the same issue.
41. The offence charged is that of forcible detainer, which is committed by an individual, who enters or gets into the land of another, takes possession or occupation, and remains there by force. It is about a person remaining in occupation of the land of another without any colour of right. A person would be guilty of this misdemeanour if they are in possession of land without any legal right, and hold it in a manner likely to cause a breach of the peace against the person legally entitled to the land. 3 key elements are to be proved, being actual possession of the land, possession without colour of right and possession in a manner likely to cause breach of the peace. See Richard Mwangiri Ndoro vs. Republic [2005] eKLR, Republic vs. Opondo [2023] KEHC 23345 (KLR) and Kirubai vs. Republic [2025] KEHC 8974 (KLR).
42. Actual possession is about physical occupation or control of the property, and not mere trespass. Without colour of right is about having no legal claim, title or an honest belief that the occupier of the land has a right to be in possession. Lawful ownership of the property in question would be critical, according to Abraham Lonyangat & another vs. Republic [2012] eKLR. Production of an agreement of purchase, in Francis Kenda Kadzomba vs. Republic [2004] eKLR, was said to be sufficient proof of a bona fide claim of right. See also Julius Leparan Kiptingos vs. Republic [2021] eKLR.
43. In Caroline Cherono Kurgat vs. Republic [2010] eKLR, where the accused had been in prior occupation of the land under government allocation, before the complainant acquired title, the court ruled that, where the accused had prior claim or occupation, the proper steps may be a civil suit, and a prosecution of forcible detainer could be an abuse of the criminal justice process.
44. Likely to cause breach of the peace is about the possession being likely to create a reasonable apprehension of violence or a disturbance of the peace, directed at the person legally entitled to possession. In Francis Kenda Kadzomba vs. Republic [2004] eKLR, the fact that the complainant was pursuing the matter through civil channels, and that no threatening behaviour was proven, established that the possession was not in a manner likely to cause a breach of the peace.
45. The orders, in ELCC No. 105 of 2019 and BPRTC No. E1062 of 2024, clearly indicate that Little Sheep Investments Limited, whose principal, possibly among others, is the ex parte applicant herein, was and is lawfully in occupation or possession of LR No. 209/407/2, hence the direction, by the courts, that Mavic Investments Company Limited do properly terminate the tenancy or lease, by notice in proper form, giving reasons for the termination. These orders affirm the lawfulness of the occupation or possession, how then will the respondent prove forcible detainer, in the circumstances. Secondly, there has been civil litigation between the parties, and, going by Francis Kenda Kadzomba vs. Republic [2004] eKLR and Caroline Cherono Kurgat vs. Republic [2010] eKLR, there is no proof of a threat of breach of the peace, directed at the interested party, as the matter has been and is being addressed through peacef
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2. The ex parte chamber application was placed before the Judge, on 19th March 2026, and the leave sought was granted, and it was directed that the substantive Motion be filed, in a separate cause. It was also ordered that the grant of leave do operate as stay of the proceedings in Milimani MCCRC No. E121 of 2026.
3. The contemplated Motion was filed herein, as directed, dated 26th March 2026. It is supported by the filings made at the leave stage.
4. According to the verifying affidavit, sworn on 18th March 2026, by the ex parte applicant, the ex parte applicant is a director of Little Sheep Investments Limited, while the interested party is a director of Mavic Investments Company Limited. In 2016, Little Sheep Investments Limited leased LR No. 209/407/2 from Mavic Investments Company Limited, for 8 years. Little Sheep Investments Limited took possession, and improved the property. Thereafter, Mavic Investments Company Limited sought to terminate the lease and evict Little Sheep Investments Limited, by filing ELCC No. 105 of 2019, at the Environment and Land Court, Nairobi. The court, in ELCC No. 105 of 2019, ruled that Little Sheep Investments Limited was in lawful occupation and possession of the property, and dismissed the suit. Thereafter, Little Sheep Investments Limited filed BPRTC No. E1062 of 2024, at the Business Premises Rent Tribunal, Nairobi, seeking protection from unlawful interference with the lease or tenancy.
5. Sometime in October 2025, the ex parte applicant was summoned by police officers, and was required to present documentation relating to the occupancy of LR No. 209/407/2 by Little Sheep Investments Limited, which summons he honoured, and presented the documents required. Despite that, on 9th March 2026, the ex parte applicant received information that he was to be charged, in Milimani MCCRC No. E121 of 2026, with the offence of forcible detainer, with respect to LR No. 209/407/2. He argues that he is not the tenant or lessee, explaining that the lease or tenancy was by Little Sheep Investments Limited.
6. Several documents are attached to that affidavit. There is a copy of a lease, over LR No. 209/407/2, executed between Little Sheep Investments Limited and Mavic Investments Company Limited, on 1st August 2016; a copy of a judgement, delivered in ELCC No. 105 of 2019, on 18th January 2024, reported as Mavic Investments Company Limited vs. Little Sheep Investments Limited [2024] KEELC 101 (KLR); a copy of formal orders, of 6th February 2026, extracted from BPRTC No. E1062 of 2024, on 18th February 2026; a copy of a letter, dated 16th October 2025 from the Directorate of Criminal Investigations, summoning the ex parte applicant to an interview and for statement recording, with respect to investigations on LR No. 209/407/2, following a complaint by Mavic Investments Company Limited; a copy of a charge sheet, in Milimani MCCRC No. E121 of 2026, charging the ex parte applicant with forcible detainer, contrary to section 91 of the Penal Code; and copy of a letter, dated 10th March 2026, from the ex parte applicant, addressed to the respondent, requesting for review of the decision to proffer charges against him.
7. The statutory statement avers that the judicial review orders sought are for a certiorari and a prohibition, to quash the decision to prosecute the ex parte applicant, and to prohibit the prosecution. The grounds are that there is abuse of the criminal justice process, existence of prior civil determinations, improper use of the criminal process to enforce civil rights, misapplication of criminal liability, illegality and irrationality, failure to exercise prosecutorial discretion properly, violation of the right to fair administrative action, oppressive and prejudicial prosecution, ultra vires and improper purpose, and interests of justice.
8. The respondent was served with the Motion, and filed a replying affidavit, sworn on 17th April 2026, by No. 239409, Chief Inspector of Police Cynthia Kibowen, the officer investigating the matter. She avers to have had received a complaint, on 3rd October 2024, from the interested party, in relation to the lease over LR No. 209/407/2, by Little Sheep Investments Limited, on the basis that the same had expired on 1st August 2024, but the ex parte applicant, a person unknown to the landowner, operating as Soko Safi Limited, had refused to vacate the said property, now described as Nairobi/Block 43/63.
9. The history given, by Chief Inspector Kibowen, is that the said property had been leased out, by Mavic Investments Company Limited, to Little Sheep Investments Limited in 2016. It is averred that Mavic Investments Company Limited dealt with directors of Little Sheep Investments Limited, who did not include the ex parte applicant. It is explained that the ex parte applicant was a director of one of the companies, which had shares in Little Sheep Investments Limited. It is averred that after the execution of the lease, the residential property on the land was converted into a hotel business, and later the ex parte applicant constructed 72 commercial units on the property. It is averred that Little Sheep Investments Limited defaulted in paying rent, accumulating to Kshs. 3,000,000.00 by 1st March 2018, which prompted efforts to end the lease or tenancy. It is alleged that it was at that stage that the ex parte applicant emerged as a representative of Little Sheep Investments Limited, undertaking to settle the outstanding rent.
10. It is averred that Mavic Investments Company Limited sought to terminate the lease, by issuing a notice to vacate, and filed ELCC No. 105 of 2019, to advance that effort. However, ELCC No. 105 of 2019 was dismissed, and Little Sheep Investments Limited was allowed to remain in possession, until expiry of the lease. Orders were made in BPRTC No. E1062 of 2024, consolidated with BPRTC No. E829 of 2024, on 6th February 2025, restraining Mavic Investments Company Limited from interfering with the quiet possession of Little Sheep Investments Limited, and the parties were directed to negotiate terms for a new lease. Mavic Investments Company Limited was aggrieved, and filed an appeal, in ELCA No. E163 of 2024, which is still pending.
11. It is asserted that the lease agreement of 1st August 2016 was for 8 years, and it expired on 1st August 2024, hence there was no subsisting lease as at the date the criminal investigations were initiated. It is averred that the police forwarded its investigations file to the respondent, with recommendations, whereupon the respondent, by a letter dated 17th February 2026, directed that there was enough evidence to arrest and charge the ex parte applicant, of the offence of forcible detainer, criminal charges were instituted in Milimani MCCRC No. E121 of 2026, and summons were issued to have the ex parte applicant appear to take plea. It is averred that the ex parte applicant did not appear before the criminal court, in answer to the said summons, and a warrant of arrest was issued.
12. It is further asserted that there was no demonstration that the investigations, arrest and arraignment of the ex parte applicant was done in excess of power, nor that there was infringement, violation or contravention of the Constitution. It is asserted that the evidence collected by the police could only be properly tested at the criminal trial. Section 24 of the National Police Service Act, Cap. 84, Laws of Kenya, and Article 157(10)(11) of the Constitution are cited, to argue that the respondent and the police acted within their mandate.
13. A number of documents are attached to that affidavit, which include a certificate of title for Nairobi/Block 43/63, registered in the name of Mavic Investments Company Limited, dated 4th October 2024; a letter, from the Business Registration Service, dated 8th September 2025, on the shareholding and directorships of Mavic Investments Company Limited, Little Sheep Investments Limited and Soko Safi Limited; a copy of a letter, from the Business Registration Service, dated 14th November 2025, on the shareholding and directorship of Eldovine Investments Limited; a copy of the formal order, in BPRTC No. E1062 of 2024, made on 6th February 2025, and issued on 18th February 2025; and the warrant of arrest, issued in Milimani MCCRC No. E121 of 2026, dated 23rd March 2026, in respect of the ex parte applicant, for failure to attend court.
14. The interested party did not file any papers.
15. The application is canvassed by way of written submissions, filed by the ex parte applicant and the respondent.
16. The written submissions, by the ex parte applicant, dated 21st May 2026, identify 1 issue for determination, which turns around whether the ex parte applicant is entitled to the orders sought in his application. Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300, Republic vs. Attorney General Ex parte Kipng’eno Arap Ng’eny [2001] eKLR, Peter Ngunjiri Maina vs. Director of Public Prosecutions & 2 others [2017] eKLR, Republic vs. Director of Public Prosecutions & 2 others Ex Parte Nomoni Saisi [2016] eKLR, Kuria & 3 others vs. Attorney General [2002] 2 KLR 69 and Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & another [2002] 2 KLR 703 are cited.
17. The written submissions by the respondent are also dated 21st May 2026. They turn around 2 issues, on whether the respondent acted in excess or without authority, and whether the application meets the requisite conditions for grant of the orders sought. Article 157(6a) (10) of the Constitution, section 24 of the National Police Service Act, Pauline Raget Adhiambo Agot vs. Director of Public Prosecutions & 5 others Petition No. 446 of 2012, Republic vs. Commissioner of Police & another Ex Parte Monari & another [2012] KEHC 4595 (KLR), Cascade Company Limited vs. Kenya Association of Music Producers (KAMP) & others Murang’a HC Petition No. 7 of 2024 and Kuria & 3 others vs. Attorney General [2002] 2 KLR 69 are cited.
18. There is only 1 issue for me to determine, whether a case has been made out for grant of the orders sought.
19. These are judicial review proceedings. The function of the court, in the context of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but, on the basis of the process leading up to the making of the decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is inexorably intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural fairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300.
20. The decision, under challenge herein, is that relating to the charging of the ex parte applicant with the criminal offence of forcible detainer. The charge was recommended to the respondent, by the police, whereupon the respondent approved that charge, resulting in the applicant being required to attend court to answer to it.
21. The respondent is mandated by the Constitution, under Article 157, and the relevant statutes, the Office of the Director of Public Prosecutions Act, Cap. 6B, Laws of Kenya, and the Criminal Procedure Code, Cap. 75, Laws of Kenya, to conduct public prosecutions, and in that regard, to work closely with the police authorities. That is what appears to be what was done in this case. The affidavit filed herein, for the respondent, is sworn by the police officer who investigated the complaint. The police received the complaint, made inquiries, conducted investigations, collected evidence, and forwarded its findings to the respondent, as the prosecuting authority, with what the police considered to be the appropriate recommendations. The respondent, upon receipt of the investigations record and the recommendations, approved the prosecution.
22. The ex parte applicant has not established that there was illegality in the manner the respondent discharged its responsibility, of receiving the investigations file, and making a decision on whether a prosecution should be conducted or not. Neither has it been demonstrated that the procedure employed, in receiving the recommendations and approving them, was unfair or prejudicial to him. The respondent is authorised by the Constitution to do what it did.
23. Rationality and reasonableness go together. They call for venturing into the merits, to assess whether, based on the facts that were before the decision-maker, the decision arrived at was rational or reasonable.
24. The case, by the ex parte applicant, is that he was summoned by the police authorities, he responded to the said summons, by availing himself to the police, where he presented documentation to explain himself. He asserts that the materials that he presented to the police did not point to culpability on his part. He argues that that material exonerated him, which then makes him wonder at how a decision could be made to charge him with forcible detainer.
25. To support his case, he has attached some documents to his affidavit. These documents principally seek to demonstrate that there was a contractual relationship of some sort, between him, the ex parte applicant, or entities that he was a core part of, and the interested party or entities that she was a core part of. The documents also seek to demonstrate that there has been active litigation between the parties, over that relationship, and decisions have been made by the courts, whose effect would be to bar criminalisation of that relationship.
26. The ex parte applicant has not presented a complete record of what the respondent had been presented with, by way of the investigations report, to inform its decision to charge and prosecute him. The court does not have, therefore, the complete record that the respondent had when it approved prosecution, and drew up the charges.
27. The standard of proof, in criminal cases, is beyond reasonable doubt, hence quite a heft of evidence must be marshalled, to prove all the aspects of the case. The prosecution would have to rely on evidence from persons familiar with the matter, and I suppose that witness statements have been recorded from individuals who are privy to the matter one way or the other. The ex parte applicant ought to have placed such witness statements before me, as proof of what the respondent used to make its decision, with an intention of bringing out where the respondent went wrong, if at all, in making the decision that it made.
28. The investigating officer, in her affidavit, has not placed before the court the material that made up the investigations record that she placed before the respondent, and which the respondent presumably used to proffer charges against the ex parte applicant. The respondent, as prosecutor, has not filed any material, of what it had before it, when it made the decision, and it appears to rely exclusively on the word of the fact-finder, the investigating officer. I am alive to the fact that the said material was or is in the hands of the respondent. However, it is the ex parte applicant who has come to court, with his allegations, and the duty is on him, to place on record the relevant material, to establish that which he alleges.
29. Should that failure, to place before me all the material that was before the respondent, when the decision to charge was made, be fatal to the case by the ex parte applicant? I do not think it should. The case before this court is not about the material that the investigator had gathered, and whether it reached the threshold. The case is not about sufficiency of evidence, to support a decision to charge. Rather, it is about the background against which the charges have been proffered, that is the commercial or contractual relationship between the parties, and the active litigation which they have had over that relationship, some of which is still pending. The issue is whether a criminal prosecution can be mounted, on the same facts that have been before the civil courts, in litigation which remains active to date. Secondly, I have before me an affidavit by the investigator, which gives a background to the matter, and a glimpse of what the respondent had before him, when he decided to charge.
30. Section 193A of the Criminal Procedure Code, Cap. 75, Laws of Kenya, does envisage the possibility of criminal and civil proceedings running parallel to each other, for one set of proceedings turns around criminal liability and responsibility, while the other is about civil liability and pursuit of civil reliefs. The outcomes of the 2 processes, civil and criminal, could be different. One leads to criminal sanctions, fines or imprisonment, or both; while the other leads to civil reliefs, compensation, restitution or other.
31. However, much as the Criminal Procedure Code permits parallel criminal and civil proceedings, in certain circumstances pursuit of both could produce absurd results, leading to shocks and embarrassment to the system of justice. There is always the spectre of the courts, handling the separate civil and criminal proceedings, coming to different conclusions, based on the same facts. The standards of proof in civil and criminal proceedings are different, which means that the thresholds of evidential proof are different. The evidence marshalled, although founded on the same facts, targets different outcomes, for one seeks to establish civil liability, while the other seeks to establish criminal responsibility. Some aspects of the allegations may be easier to prove in one case than in the other. It is on account of that that some deference may be allowed, so that parties are let to pursue only one of the pathways to justice, instead of both; or to sequence the proceedings, by first pursuing the civil remedies, followed by the criminal proceedings, upon conclusion of the civil proceedings, subject to the outcome of the civil process.
32. It is with that in mind that the principles of res judicata, sub judice, double jeopardy, autrefois acquit and autrefois convict, among others, have developed. Of course, res judicata and sub judice are limited to civil proceedings, while double jeopardy and autrefois acquit and autrefois convict are in criminal procedure. However, the spirit in them all is one, to guard against the spectre of conducting multiple proceedings contemporaneously, involving the same parties, based on the same facts, for in conducting such multiple proceedings simultaneously lies the danger of doing injustice, should the different courts, seized of such proceedings, arrive at outcomes that are mutually inconsistent, albeit based on the same facts.
33. Therefore, much as the respondent has section 193A of the Criminal Procedure Code, allowing the mounting of a criminal prosecution parallel to ongoing civil proceedings, turning on the same issues and facts; and Article 157 of the Constitution, granting exclusive power and control over public prosecutions, rationality and reasonableness ought not be thrown out of the window, where the circumstances create an environment of absurdity, with respect to the possible outcomes of parallel proceedings. The issue should always be that, even if there is seeming exclusive power, on the part of the respondent, to make decisions on when to prosecute and with respect to who to prosecute, regardless of pending or ongoing civil proceedings, between the same parties, founded on the same facts, common-sense should prevail, to guide on whether it would be rational or reasonable to mount a certain prosecution, given the prevailing circumstances.
34. It is common ground that there was and still is a tenancy relationship between the 2 companies, in which the ex parte applicant and the interested party were or are principals, Mavic Investments Company Limited and Little Sheep Investments Limited. Mavic Investments Company Limited was, at all material times, the registered proprietor of LR No. 209/407/2, also known as Nairobi/Block 43/63. It is also common ground that Mavic Investments Company Limited leased out that property, that is LR No. 209/407/2, to Little Sheep Investments Limited. From the material placed on record, by the investigator, the interested party herein was and is one of the shareholders and directors of Mavic Investments Company Limited, while the ex parte applicant was or is a shareholder and director of a company, known as Eldovine Investments Limited, which had or has a shareholding interest in Little Sheep Investments Limited.
35. The interested party did not file any papers in these proceedings, and she appears to have left it to the respondent to argue her case. The respondent has not filed any response, directly, to the application, but has chosen to rely on an affidavit sworn by the police investigator who is handling the matter. That investigator has presented a rather mixed picture of the state of affairs. Whereas she concedes the relationship between Mavic Investments Company Limited and Little Sheep Investments Limited, she seeks to distance the ex parte applicant from it, by claiming that the interested party did not deal with the ex parte applicant, but with a certain Mingzhou Zhang instead. She, however, identifies the ex parte applicant as a director of Eldovine Investments Limited, which owned or owns 90% of the shares in Little Sheep Investments Limited, as at the time the lease agreement was entered into. She identifies the ex parte applicant, in her affidavit, as “the lessee,” who injected an investment of Kshs. 80,000,000.00, to developing commercial units on LR No. 209/407/2, after the lease agreement was executed. Therefore, contrary to the picture that the investigator seeks to paint, in sections of her affidavit, that the ex parte applicant was a stranger, who sprung out of nowhere, to take possession of LR No. 209/407/2, he was, according to other sections of the said affidavit, an integral part of Little Sheep Investments Limited, and of the relationship between it and Mavic Investments Company Limited.
36. The dispute is around a lease or a tenancy. Both sides concede the existence of a lease or tenancy agreement. The exhibited copy of the lease or tenancy agreement reveals that the lease was entered into and executed by the 2 companies, Mavic Investments Company Limited and Little Sheep Investments Limited. The lease was made on 1st August 2016, and was for 8 years, intended to run up to 1st August 2024.
37. It would appear that somewhere along the way, the tenancy relationship broke down or soured prior to the lapse of the lease, on account of effluxion of time, on 1st August 2024. The investigator frames the cause of the breakdown as a dispute over rent, while the ex parte applicant frames it as an effort to evict the tenant. There is common ground, though, that there has been litigation, between the 2 companies, the landlord and the tenant, Mavic Investments Company Limited and Little Sheep Investments Limited, at the Environment and Land Court and at the Business Premises Rent Tribunal. The ex parte applicant has attached a copy of the judgement delivered in ELCC No. 105 of 2019, and a copy of an order extracted in BPRTC No. E1062 of 2024. The investigator has attached the order in BPRTC No. E1062 of 2024.
38. A close reading of the judgement, in ELCC No. 105 of 2019, would reveal that Mavic Investments Company Limited sought only one prayer against Little Sheep Investments Limited, vacant possession of LR No. 209/407/2. The suit was dismissed, on grounds that the lease agreement between the parties had not been lawfully terminated, and was still subsisting, as at 18th January 2024, when the judgement was delivered. The order, in BPRTC No. E1062 of 2024, reveals that the matter had been brought by Little Sheep Investments Limited against Mavic Investments Company Limited. The order, made in BPRTC No. E1062 of 2024, is that Mavic Investments Company Limited was at liberty to issue a fresh termination notice, in prescribed form, giving reasons for the termination, with the alternative that the 2 parties negotiate terms of a new lease. The investigator indicates that Mavic Investments Company Limited filed an appeal, in ELCA No. E163 of 2024, against the order in BPRTC No. E1062 of 2024, which appeal she avers is still pending.
39. What should emerge from the above is that there has been litigation, over the tenancy relationship between Mavic Investments Company Limited and Little Sheep Investments Limited. The judgment and orders emanating from those processes, in ELCC No. 105 of 2019 and BPRTC No. E1062 of 2024, affirm that tenancy or lease relationship to be still subsisting, in the sense that Little Sheep Investments Limited is still lawfully in possession of LR No. 209/407/2, as a tenant of Mavic Investments Company Limited. That dispute is still alive, given that Mavic Investments Company Limited has lodged an appeal, in ELCA No. E163 of 2024, which is still subsisting, at least as at 17th April 2026, when the replying affidavit was sworn.
40. So, there is a judgment and a ruling, from the Environment and Land Court and the Business Premises Rent Tribunal, both upholding the tenancy relationship between Mavic Investments Company Limited and Little Sheep Investments Limited, and urging that any termination ought to be in accordance with the relevant law. The respondent has not exhibited any proof that those determinations, of the Environment and Land Court and the Business Premises Rent Tribunal, have been vacated, either on appeal or review. Instead, the respondent has filed an affidavit confirming that there is a pending appeal, against one of those determinations. That would mean that there is active civil litigation before the courts over the issue of the tenancy. One would then wonder at how the respondent can initiate criminal proceedings against one of the principals in Little Sheep Investments Limited, over the status of that tenancy, when the tenancy has been upheld by the civil courts, and an appeal pends in another civil court over the same issue.
41. The offence charged is that of forcible detainer, which is committed by an individual, who enters or gets into the land of another, takes possession or occupation, and remains there by force. It is about a person remaining in occupation of the land of another without any colour of right. A person would be guilty of this misdemeanour if they are in possession of land without any legal right, and hold it in a manner likely to cause a breach of the peace against the person legally entitled to the land. 3 key elements are to be proved, being actual possession of the land, possession without colour of right and possession in a manner likely to cause breach of the peace. See Richard Mwangiri Ndoro vs. Republic [2005] eKLR, Republic vs. Opondo [2023] KEHC 23345 (KLR) and Kirubai vs. Republic [2025] KEHC 8974 (KLR).
42. Actual possession is about physical occupation or control of the property, and not mere trespass. Without colour of right is about having no legal claim, title or an honest belief that the occupier of the land has a right to be in possession. Lawful ownership of the property in question would be critical, according to Abraham Lonyangat & another vs. Republic [2012] eKLR. Production of an agreement of purchase, in Francis Kenda Kadzomba vs. Republic [2004] eKLR, was said to be sufficient proof of a bona fide claim of right. See also Julius Leparan Kiptingos vs. Republic [2021] eKLR.
43. In Caroline Cherono Kurgat vs. Republic [2010] eKLR, where the accused had been in prior occupation of the land under government allocation, before the complainant acquired title, the court ruled that, where the accused had prior claim or occupation, the proper steps may be a civil suit, and a prosecution of forcible detainer could be an abuse of the criminal justice process.
44. Likely to cause breach of the peace is about the possession being likely to create a reasonable apprehension of violence or a disturbance of the peace, directed at the person legally entitled to possession. In Francis Kenda Kadzomba vs. Republic [2004] eKLR, the fact that the complainant was pursuing the matter through civil channels, and that no threatening behaviour was proven, established that the possession was not in a manner likely to cause a breach of the peace.
45. The orders, in ELCC No. 105 of 2019 and BPRTC No. E1062 of 2024, clearly indicate that Little Sheep Investments Limited, whose principal, possibly among others, is the ex parte applicant herein, was and is lawfully in occupation or possession of LR No. 209/407/2, hence the direction, by the courts, that Mavic Investments Company Limited do properly terminate the tenancy or lease, by notice in proper form, giving reasons for the termination. These orders affirm the lawfulness of the occupation or possession, how then will the respondent prove forcible detainer, in the circumstances. Secondly, there has been civil litigation between the parties, and, going by Francis Kenda Kadzomba vs. Republic [2004] eKLR and Caroline Cherono Kurgat vs. Republic [2010] eKLR, there is no proof of a threat of breach of the peace, directed at the interested party, as the matter has been and is being addressed through peacef
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