The Ex parte Applicant SAMWEL BRYAN YONGO OTUMBA was granted leave to file his substantive motion on 23 rd August 2024. Subsequently, he filed the motion before this court dated 28 th August 2024 seeking an order of prohibition directed to all the Respondents jointly and severally prohibiting any of them from carrying out and/or proceeding with Nairobi Chief Magistrate’s Court Criminal Case No. E746 of 2024 Republic v Samwel Bryan Yongo Otumba and Joseph Bodo Otumba and or any other criminal proceeding in connection with the same subject matter or loan agreement.
He also seeks an order of certiorari quashing the entire criminal case and proceedings in Chief Magistrate’s Court Criminal Case No. E746 of 2024 Republic v Samwel Bryan Yongo Otumba and Joseph Bodo Otumba.
The application is verified by his affidavit sworn on 28 th August 2024.
The applicant deposes that he entered into a romantic and business relationship with the 1 st Interested Party in early 2021. That their dealings culminated in a loan agreement dated 2 nd March 2021 , under which, she allegedly advanced him Kshs. 2 million. The loan was secured by two motor vehicles, cheques and a civil decree in his favour from HCCC No. 223 of 2011.
He argues that the loan transaction was purely civil in nature as a partial repayment of Kshs. 1 million had already been made in cash. According to the applicant, the prosecution was based on fabricated charges intended to coerce repayment and constituted an abuse of the criminal justice process.
That on 21 st September 2021, his brother the co-accused Joseph Otumba informed him that he had been summoned to the DCI headquarters and that when the applicant contacted the investigating officer, Mr. Gitonga, the latter allegedly threatened and intimidated the applicant . The same officer later allegedly called Mr. Appel Kwengu , a practicing advocate and pressured him to disown a demand letter that had been issued to a third party Abdikahinya Noor Maalim on behalf of 1 st Interested Party.
The applicant asserts that he did not draft or sign the demand letter , which had been prepared by Mr. Kwengu of Kwengu & Co. Advocates, whom he had referred to the 1 st Interested Party in his professional capacity.
The Applicant denies that he ever pretended to be an advocate and that the allegations to that effect were fabricated by Ms. Rono to bolster criminal charges and coerce him into repayment. It is his case that there is no evidence that Rono ever paid him or Mr. Kwengu any legal fees, further negating the impersonation claim. The Applicant states that the demand letter was part of a separate debt collection matter involving a third party and that he had no professional role in its issuance.
The Applicant further states that on 23 rd September 2021 , he wrote a letter to the DPP, explaining the nature of the loan and asserting that the dispute was civil and the DPP responded on 7 th October 2021 , directing the Inspector General to investigate the matter and report back . However, the applicant states that he received no update until nearly three years later , on 17 th June 2024 , when a DCI officer named Shethi summoned him. That he voluntarily reported to DCI Headquarters on 22 nd June 2024, only to be arrested and informed that the DPP had recommended prosecution.
He argues that the prosecution is an abuse of process meant to intimidate him into settling a civil debt. That the charges including obtaining credit by false pretense under Section 316(a) of the Penal Code are defective , particularly as the loan was backed by post-dated cheques , which under Section 316A(2) do not form the basis of an offence.
He relies on Abdalla v Republic [1971] EA 657 KLR , where the court held that issuance of a post-dated cheque did not amount to a misrepresentation of present ability to pay but is a representation that when the cheque is presented on the future date shown on the cheque, there will be funds to meet it.
The applicant also invokes Article 23(3)(f) of the Constitution, which empowers courts to grant judicial review remedies in the protection of rights. He further relies on the case of Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 Others (Petition 39 & 40 of 2019) (consolidated) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgement) where the court held that judicial review under the Constitution allows a court to assess substantive violations , not merely procedural defects.
The applicant asserts that in SC Petition No. 6 (E007) of 2022 , the court expanded the scope of judicial review beyond traditional common law limits. The applicant also relies on the case of RP Kapur v State of Punjab AIR 1960 SC 866 where the court laid down guidelines to be considered by courts when reviewing prosecutorial powers.
The applicant maintains that the DPP and DCI acted with malice , and that the criminal proceedings are tainted with ulterior motives . He asserts that the issues raised do not require evidentiary probing , as the charges lack key elements of criminal offences
The applicant prays for orders of prohibition and certiorari, asserting that he has demonstrated illegality, irrationality and procedural impropriety and that the invocation of criminal process was a deliberate misuse of power to enforce a civil debt simpliciter.
The applicant also filed a supplementary affidavit dated 30 th April 2025 annexing an affidavit sworn by one Ben Mulwa recanting the statement he recorded with the police and a further affidavit sworn on 12 th May 2025.
The applicant states that the forensic document examiner confirmed that he examined a photocopy of the letter not the original. He relies on the case of Samson Tela Akute v Republic [2006] KEHC 3513 (KLR) to support his position that the same renders the report inadmissible.
The applicant argues that the prosecution is irrational, made in bad faith and amounts to abuse of the criminal justice system and that it is an attempt to weaponize criminal law to settle a personal vendetta. He relies on the case Kuria & 3 Others v AG [2002] 2 KLR 69 where the court is said to have held that criminal law should not be used for personal grudges.
He also relies on the case of Republic v Chief Magistrate Mombasa Ex parte Garnjee [2012] KLR 703 where the court held that criminal process must not be used to further civil claims and on the case of R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42 where it was stated that courts must guard the integrity of the criminal justice system from abuse.
On forgery and false pretence, he relies on the case of Caroline Wanjiku Ngugi v Republic [2015] eKLR where the court observed that the elements of forgery are false making, material alteration and ability to defraud. He also relies on the Nigerian case of Alake vs The State for the ingredients of the offence of forger.
The applicant further avers that there is need to prove that the person charged was indeed the one who put ink to paper and created the document deemed a forgery and to further reaffirm this position he relies on the case of R v Gambling [1974] 3 All ER 479.He further refers to Section 345 and 347 of the Penal Code on the forgery definition and elements of the offence of forgery respectively.
On the issue of impersonation of an advocate , he argues that the charge sheet with regard to pretending to be an Advocate is defective granted that Sections 33 and 85 of the Advocates Act prescribe penalties but do not create a distinct criminal offence , contravening Article 50(2)(n) .
The applicant also points out a previous acquittal in Criminal Case No. 2035 of 2018 , in which he states similar charges were found to be spurious.
The Ex parte Applicant also filed written submissions dated 21 st January 2025, supplementary written submissions dated 30 th April 2025 and further submissions dated 8 th May 2025. This court observes that the de[positions were in the form of submissions on points of law which ought not to be the case.
It is the Applicant’s submission that both Order 53 of the Civil Procedure Rules and Articles 22, 23, and 47 of the Constitution allow this court to examine both process and merits. To support this position, he relies on Supreme Court Pet. No. 6 (E007) of 2022 where the court observed that judicial review has evolved into a constitutional tool capable of merit review.
The Applicant reiterates that the loan, supported by post-dated cheques, vehicle security (KBW 299K) and a decree, were legitimate and voluntarily entered into. Further, that the Charges of False Pretence and Forgery are defective because the loan was for future repayment and therefore not a false representation of existing fact under Sections 312–313 Penal Code.
He further submits that while Article 157(6) to (10) grants the DPP discretion, Article 157(11) binds the DPP to act in the public interest and avoid abuse.
It is submitted that the High Court has power under Article 165(3)(d)(ii) to intervene where there is evidence of abuse. He relies on the Supreme Court case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9others [2021] eKLR where the court is said to have rendered itself regarding termination of criminal proceedings on the basis of the dispute being civil in nature and also on account of inordinate delay in instituting an intended prosecution.
The Applicant’s submission is that the loan was secured by tangible assets and valid documentation and the forensic report and WhatsApp messages indicate a genuine business relationship, not fraud. He further submits that the complainant retained the original logbook , which undercuts the fraud claim.
On discrimination and selective prosecution, t he applicant argues that he has been unfairly targeted , contrary to Article 27 of the Constitution . That the selective prosecution and application of the law against the Applicant contravenes his fundamental right under Article 27 of the Constitution. He submits that, he had a legitimate expectation that the Respondents would not abuse their office, power or authority in any unlawful manner, bad faith or to achieve an extraneous purpose by selectively victimising or punishing him.
He relies on the case of Peter Ngunjiri Maina v DPP & 2 Others [2017] eKLR where the court is said to have identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions. He also relies on several other cases including Republic vs Commissioner of Police and Another ex parte Michael Monari & Another,[2012] eKLR and Joram Mwenda Guantai vs The Chief Magistrate,[2007] 2 EA 170 to support this position.
The Applicant further submits that all grounds or principles cited by the Court in Jared Benson Kangwana vs. Attorney General Nairobi High Court Misc. Application No. 446 of 1995 (unreported) are relevant to these proceedings as each of the principles has been violated in one aspect or another by the prosecution mounted against him and which is sought to be quashed and prohibited.
The Applicant submits that it was unreasonable and absurd for the investigating officer to become an accuser in his own case hence demonstrating bias, lack of objectivity or partiality. In this regard, the applicant relies on Prof Sir William Wade in his book Administrative Law as cited in R vs. Somerset County Council, ex parte Fewings and Others [1995] 1All ER 513 at 524 on the nature of the duty of a public body which is applicable mutatis mutandis to a public officer for the proposition that any action to be taken by a public body must be justified by positive law.
He further relies on the case of George Okungu & Another vs. Chief Magistrate’s Court Anti-Corruption Court a Nairobi & Another [2014] eKLR where the court observed that the court will not hesitate to put a halt to ongoing criminal proceedings where the same constitute an abuse of process and are being carried out in breach of or threaten breach of constitutional rights.
The Applicant also submits that the 3 rd Respondent’s Investigations officers acted in excess and in abuse of their powers since before a criminal prosecution can be mounted, it is the responsibility of the 2 nd Respondent to direct and review the work of the 3 rd Respondent. Reliance is placed in the case of Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi High Court Misc. Civil Application No. 743 of 2006 [2007] eKLR where the court observed that a power which is abused should be treated as a power which has not been lawfully exercised.
It is the Applicant’s submission that courts are the temples of justice and the last frontier of the rule of law. To support this position, reliance is placed in the case of Republic vs. Judicial Commission of Inquiry into The Goldenberg Affair, Honourable Mr. Justice of Appeal Bosire and Another Ex Parte Honourable Professor Saitoti [2007] 2 EA 392; [2006] 2 KLR 40 0.
Further, the Applicant submits that this Court has the powers and the constitutional duty to supervise the exercise of the Respondent’s mandate whether constitutional or statutory as long as the challenge properly falls within the parameters of judicial review.
The Applicant submits that it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under the Constitution and the Office of the Director of Public Prosecutions Act, that would, constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. The Applicant relies on the case of Koinange vs. Attorney General and Others [2007] 2 EA 256 to support this position.
He also urges that to permit the prosecutor to arbitrarily exercise his constitutional mandate based on ulterior motives as is alleged in these proceedings would amount to the court abetting abuse of discretion and power and criminality. He places reliance on the case of Regina vs.Ittoshat [1970] 10 CRNS 385 at 389 where the court held that it is not only a right but the duty of the court to protect citizens against harsh and unfair treatment.
The Applicant argues that as was held by the court in the case of R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No.406 of 2001, the mere fact that the applicant will be subject to a criminal process where he will get an opportunity to defend himself is not reason for allowing a clearly flawed, unlawful and unfair trial to run its course.
The Applicant submits that as held by the Court in Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR the High Court has the power to review the foundational basis of the DPP’s decision to charge.
It is the Applicant’s further submission that as was held in the case of Gerald Ndoho Munjuga V R HC Criminal Appeal No. 213 of 2011 (Nyeri), the offence of obtaining by false pretences does not relate to future events. He submits that the offences of obtaining credit by false pretences are anchored on the loan agreement so that there was no way the offences could have been committed before the execution of the loan agreement.
The Applicant also argues that a fundamental principle in Judicial Review cases is that except in claims of violations of fundamental human rights and freedoms, the concern of the courts has nothing to do with the merits of the decision but the process in arriving at that decision and that in the instant case, the loan agreement dispels any commissions of any Criminal Offence as the terms of the loan are very clear and the Interested party is holding securities which have not been proved to be fake.
The applicant argues that while he does not challenge the respondents’ jurisdiction to investigate and prosecute, he maintains that they committed an error of law in the manner they exercised their powers. He cites JGH Marine A/S Western Marine Services Ltd & 2 others v Public Procurement Administrative Review Board & 2 others [2015] eKLR , where the court held that an error of law, such as failing to consider relevant criteria and considering irrelevant material, amounted to acting without jurisdiction. This, he submits, demonstrates that even where jurisdiction exists, the manner of its exercise can render the resulting decision unlawful.
The applicant contends that the respondents were bound by the doctrine of legality, which requires public authorities to act within the law and in accordance with the purpose and limits of the powers conferred upon them. He argues that their actions in his case failed to meet this threshold, rendering them flawed and illegal.
That a decision is illegal, he submits, where it exceeds the terms of the power authorizing it, pursues objectives not intended by the law, is unsupported by any legal basis, or fails to implement a legal duty. Evaluating illegality, therefore, involves construing the statutory or regulatory framework under which a public authority operates and ensuring that it has acted within its limits; and that the Courts, in enforcing this principle, serve both as upholders of the rule of law and as guardians of Parliament’s intent.
The applicant acknowledges that judicial review is an extraordinary remedy, exercised sparingly and only in exceptional cases where illegality, irrationality, or procedural impropriety has been demonstrated. He submits that his case meets this threshold due to the manifest bad faith and impropriety characterizing the criminal investigations instituted against him.
He argues in reiteration to his depositions that the transaction giving rise to the criminal charges was a simple loan, supported by securities still in the possession of the 1 st Interested Party. Further, that the transaction did not involve any misrepresentation as to an existing fact and did not constitute false pretence within the meaning of the Penal Code. He contends that courts should not lightly extend criminal law to matters that properly belong in civil jurisdiction, particularly where adequate civil remedies exist.
The applicant further asserts that public decision-making must be free of improper motives such as fraud, dishonesty, malice, or personal self-interest. That decisions tainted by such motives are made for an improper purpose and fall outside the scope of lawful authority.
He submits that irrationality and unreasonableness are valid grounds for judicial review, as recognized under section 7(2)(i) and (k) of the Fair Administrative Action Act. That a decision is irrational if it lacks a rational connection to the purpose for which the power was conferred, the empowering legal provision, the evidence before the administrator, or the reasons provided for the decision.
He relies on the test of Wednesbury unreasonableness , where a decision is so implausible and lacking in justification that no reasonable authority could have reached it. He maintains that, in his case, no reasonable person, properly directing themselves to the facts and the law, could have made the decision to prosecute. He argues that even where a statute is silent on reasonableness, it must be implied that public power be exercised reasonably.
The applicant sets out that legal unreasonableness may be inferred from specific errors in relevance or purpose, illogical or irrational reasoning, absence of justification, or a disproportionate weighting of irrelevant over relevant factors. In his case, he contends, these criteria are satisfied.
He asserts that judicial intervention is justified where decisions are arbitrary, capricious, or motivated by improper purpose, or where the decision-maker fails to apply their mind or considers irrelevant matters while ignoring relevant ones. He further argues that a decision is procedurally improper where it fails to follow statutory procedures or violates the rules of natural justice.
Procedural impropriety, he explains, encompasses both procedural ultra vires (failure to follow statutory procedures) and breaches of common law principles of fairness. According to the applicant, the two pillars of natural justice- impartiality and the right to be heard were not observed in his case. He emphasizes that Article 47 of the Constitution codifies the right to fair administrative action and to receive reasons for adverse decisions, which were denied to him.
He concludes that administrative fairness is now constitutionally protected and that judicial review no longer relies solely on common law but on the Constitution itself. That this constitutionalizing of administrative justice means that legislation cannot oust or restrict the right to review administrative action for legality, fairness, or reasonableness.
The applicant argues that a challenge to the lawfulness, procedural fairness, or reasonableness of an administrative decision involves the direct application of the Constitution, particularly Article 47, as well as the Fair Administrative Action Act. He maintains that the impugned decision was procedurally unfair, having been made without affording him an opportunity to be heard. He reiterates that procedural fairness entails a minimum requirement that a person be given a chance to present their case before a decision affecting their rights is made, which did not occur in his situation.
He submits that judicial review remedies, such as certiorari and prohibition are discretionary and grounded in the policy that inferior bodies must operate within their legal bounds. That certiorari is meant to bring decisions of inferior tribunals into the High Court for scrutiny and, if found lacking in legality or fairness, to have them declared invalid. In his view, the court, therefore, has jurisdiction to grant the reliefs sought.
In support of his argument on illegality, the applicant relies on Halsbury’s Laws of England , which provides that the court's concern in judicial review is to determine whether a decision-maker exceeded their powers, committed an error of law, breached rules of natural justice or arrived at a decision which no reasonable authority could have reached. He cites Republic v National Hospital Insurance Fund Board of Management & Another Ex parte Law Society of Kenya, where the court held that acting beyond conferred powers is the most obvious form of illegality.
He emphasizes that public bodies must act only within the powers granted by law, and that the principle of legality is central to the rule of law in Kenya’s constitutional framework. He cites the case of AAA Investments (Pty) Ltd v Micro Finance Regulatory Council , which affirmed that public power can only be validly exercised if it has a lawful source. The safeguarding of legality, he argues, is the foundational objective of judicial review. He argues that therefore, to lawfully exercise power, public decision-makers must adhere to legally conferred powers and observe prescribed procedures, which he accuses the respondents of having failed to do in this instance.
Illegality, the applicant submits, includes not only acting outside conferred powers but also taking decisions for improper purposes, misdirecting oneself in law, or considering irrelevant factors. He further argues that even if a power is legally conferred, a public authority may act unlawfully if it exceeds the scope or misapplies that power or adopts a rigid policy in disregard of the duty to exercise discretion properly. He asserts that the respondents misinterpreted and misapplied the relevant law.
The applicant maintains that the impugned decision was infected by improper motives, including fraud, dishonesty, malice, and personal animosity, thereby taking it outside the lawful bounds of administrative discretion. He argues that power is exercised fraudulently when the decision-maker uses it to achieve a hidden objective, and maliciously when motivated by personal ill-will, both of which apply to his case.
On the question of reasonableness, the applicant repeatedly adopts the view that rationality and proportionality are key elements of reasonable administrative action. He refers to Pillay and Hoexter , who explain that rationality requires a decision to be supported by evidence and logic, while proportionality entails balancing competing interests fairly. He cites section 7(2)(i) of the Fair Administrative Action Act, which allows for review where a decision is not rationally connected to its purpose, the law, the information before the administrator or the reasons given.
The applicant also refers to the test of rationality laid down in Pharmaceutical Manufacturers Association of South Africa v President of the Republic of South Africa , where the court held that the question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. He submits that the decision to charge him lacks such connection, is legally unfounded, and was therefore aberrant.
He also relies on section 7(2)(k) of the Fair Administrative Action Act, which provides that a decision can be reviewed if it is so unreasonable that no reasonable person could have made it. The applicant invokes Lord Diplock’s famous articulation of Wednesbury unreasonableness as conduct which no sensible authority acting responsibly would adopt. He argues that, viewed objectively, the decision to charge him lacks any plausible justification.
According to the applicant, judicial review of reasonableness concerns both the process and outcome of the decision-making. That the reviewing court must assess whether the decision is transparent, justified, and falls within a range of acceptable outcomes under the law and facts. He outlines a series of propositions about unreasonableness, including that, it arises where a decision falls outside the range of options reasonably open to the decision-maker, lacks intelligible justification, is based on irrelevant considerations, or gives disproportionate weight to certain factors while ignoring others.
The applicant endlessly submits that procedural impropriety, as one of the three principal grounds of judicial review alongside illegality and irrationality, arises where a public authority commits a serious procedural error. He cites Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 401D , where Lord Diplock recognized that a failure to observe statutory procedures or natural justice even without express denial of hearing may constitute procedural impropriety.
He observes that the evolution of the common law has broadened the obligation on public authorities to observe fairness, now framed in terms of “natural justice” and “procedural decency.” He argues that the decision in his case was procedurally unfair because he was not given a proper opportunity to present his case. He emphasizes that Article 47 of the Constitution codifies the right to administrative action that is expeditious, lawful, reasonable and procedurally fair, including the right to be given reasons for decisions that adversely affect a person.
The applicant cites Local Government Board v Arlidge , where Viscount Haldane held that those making administrative decisions must act judicially and ensure impartiality and adequate opportunity for affected persons to present their case. He reiterates that, under the 2010 Constitution, judicial review is no longer grounded solely in common law but has been constitutionalized under the Bill of Rights. As such, that legislation cannot limit or oust this review power, since a challenge to administrative action now directly invokes constitutional principles.
He reinforces the argument with a quotation from De Smith’s Judicial Review, noting that fairness is not just procedural but also a substantive principle. The applicant asserts that the 2010 Constitution revolutionized the administrative law landscape, including the scope of judicial review and remedies available under it. That under judicial review, one can now also seek declaratory and compensatory remedies, as confirmed in Meshack Agengo Omondi v Eldoret Municipal Council (2012) eKLR and Professor Elijah Biama v University of Eldoret (2014) eKLR .
It is further submitted that in n Cortec Mining Kenya Ltd v Ministry of Mining (2017) eKLR , the Court of Appeal held that for a judicial review application to succeed, the applicant must show the decision is tainted by illegality, irrationality, or procedural impropriety. That the Court explained that illegality involves acting outside the law or jurisdiction, irrationality involves decisions that no reasonable authority would reach and procedural impropriety refers to a failure to adhere to fair procedures or natural justice.
He further cites Republic v Public Procurement Administrative Review Board & Another Ex parte Rongo University , where the court reaffirmed that judicial review is concerned with the legality of decision-making processes not their merits. It is his case that the role of the judicial review court is supervisory and not appellate, with a focus on ensuring that public bodies act within the four corners of their legal mandates.
The Applicant also submits that once a court determines there is no illegality, irrationality, or procedural impropriety, it must decline to intervene, as held in Republic v National Water Conservation and Pipeline Corporation ex parte Roshina Timber Mart (2009) eKLR . The applicant emphasizes that judicial review protects constitutional order by ensuring that agencies remain within the bounds set for them by Parliament. The applicant relies on Jasper Maluki Kitavi v Minister for Lands (2017) eKLR , which cited with approval JSC v Mbalu Mutava , and Rudge v Baldwin 1964 AC , reaffirming that natural just
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He also seeks an order of certiorari quashing the entire criminal case and proceedings in Chief Magistrate’s Court Criminal Case No. E746 of 2024 Republic v Samwel Bryan Yongo Otumba and Joseph Bodo Otumba.
The application is verified by his affidavit sworn on 28 th August 2024.
The applicant deposes that he entered into a romantic and business relationship with the 1 st Interested Party in early 2021. That their dealings culminated in a loan agreement dated 2 nd March 2021 , under which, she allegedly advanced him Kshs. 2 million. The loan was secured by two motor vehicles, cheques and a civil decree in his favour from HCCC No. 223 of 2011.
He argues that the loan transaction was purely civil in nature as a partial repayment of Kshs. 1 million had already been made in cash. According to the applicant, the prosecution was based on fabricated charges intended to coerce repayment and constituted an abuse of the criminal justice process.
That on 21 st September 2021, his brother the co-accused Joseph Otumba informed him that he had been summoned to the DCI headquarters and that when the applicant contacted the investigating officer, Mr. Gitonga, the latter allegedly threatened and intimidated the applicant . The same officer later allegedly called Mr. Appel Kwengu , a practicing advocate and pressured him to disown a demand letter that had been issued to a third party Abdikahinya Noor Maalim on behalf of 1 st Interested Party.
The applicant asserts that he did not draft or sign the demand letter , which had been prepared by Mr. Kwengu of Kwengu & Co. Advocates, whom he had referred to the 1 st Interested Party in his professional capacity.
The Applicant denies that he ever pretended to be an advocate and that the allegations to that effect were fabricated by Ms. Rono to bolster criminal charges and coerce him into repayment. It is his case that there is no evidence that Rono ever paid him or Mr. Kwengu any legal fees, further negating the impersonation claim. The Applicant states that the demand letter was part of a separate debt collection matter involving a third party and that he had no professional role in its issuance.
The Applicant further states that on 23 rd September 2021 , he wrote a letter to the DPP, explaining the nature of the loan and asserting that the dispute was civil and the DPP responded on 7 th October 2021 , directing the Inspector General to investigate the matter and report back . However, the applicant states that he received no update until nearly three years later , on 17 th June 2024 , when a DCI officer named Shethi summoned him. That he voluntarily reported to DCI Headquarters on 22 nd June 2024, only to be arrested and informed that the DPP had recommended prosecution.
He argues that the prosecution is an abuse of process meant to intimidate him into settling a civil debt. That the charges including obtaining credit by false pretense under Section 316(a) of the Penal Code are defective , particularly as the loan was backed by post-dated cheques , which under Section 316A(2) do not form the basis of an offence.
He relies on Abdalla v Republic [1971] EA 657 KLR , where the court held that issuance of a post-dated cheque did not amount to a misrepresentation of present ability to pay but is a representation that when the cheque is presented on the future date shown on the cheque, there will be funds to meet it.
The applicant also invokes Article 23(3)(f) of the Constitution, which empowers courts to grant judicial review remedies in the protection of rights. He further relies on the case of Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 Others (Petition 39 & 40 of 2019) (consolidated) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgement) where the court held that judicial review under the Constitution allows a court to assess substantive violations , not merely procedural defects.
The applicant asserts that in SC Petition No. 6 (E007) of 2022 , the court expanded the scope of judicial review beyond traditional common law limits. The applicant also relies on the case of RP Kapur v State of Punjab AIR 1960 SC 866 where the court laid down guidelines to be considered by courts when reviewing prosecutorial powers.
The applicant maintains that the DPP and DCI acted with malice , and that the criminal proceedings are tainted with ulterior motives . He asserts that the issues raised do not require evidentiary probing , as the charges lack key elements of criminal offences
The applicant prays for orders of prohibition and certiorari, asserting that he has demonstrated illegality, irrationality and procedural impropriety and that the invocation of criminal process was a deliberate misuse of power to enforce a civil debt simpliciter.
The applicant also filed a supplementary affidavit dated 30 th April 2025 annexing an affidavit sworn by one Ben Mulwa recanting the statement he recorded with the police and a further affidavit sworn on 12 th May 2025.
The applicant states that the forensic document examiner confirmed that he examined a photocopy of the letter not the original. He relies on the case of Samson Tela Akute v Republic [2006] KEHC 3513 (KLR) to support his position that the same renders the report inadmissible.
The applicant argues that the prosecution is irrational, made in bad faith and amounts to abuse of the criminal justice system and that it is an attempt to weaponize criminal law to settle a personal vendetta. He relies on the case Kuria & 3 Others v AG [2002] 2 KLR 69 where the court is said to have held that criminal law should not be used for personal grudges.
He also relies on the case of Republic v Chief Magistrate Mombasa Ex parte Garnjee [2012] KLR 703 where the court held that criminal process must not be used to further civil claims and on the case of R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42 where it was stated that courts must guard the integrity of the criminal justice system from abuse.
On forgery and false pretence, he relies on the case of Caroline Wanjiku Ngugi v Republic [2015] eKLR where the court observed that the elements of forgery are false making, material alteration and ability to defraud. He also relies on the Nigerian case of Alake vs The State for the ingredients of the offence of forger.
The applicant further avers that there is need to prove that the person charged was indeed the one who put ink to paper and created the document deemed a forgery and to further reaffirm this position he relies on the case of R v Gambling [1974] 3 All ER 479.He further refers to Section 345 and 347 of the Penal Code on the forgery definition and elements of the offence of forgery respectively.
On the issue of impersonation of an advocate , he argues that the charge sheet with regard to pretending to be an Advocate is defective granted that Sections 33 and 85 of the Advocates Act prescribe penalties but do not create a distinct criminal offence , contravening Article 50(2)(n) .
The applicant also points out a previous acquittal in Criminal Case No. 2035 of 2018 , in which he states similar charges were found to be spurious.
The Ex parte Applicant also filed written submissions dated 21 st January 2025, supplementary written submissions dated 30 th April 2025 and further submissions dated 8 th May 2025. This court observes that the de[positions were in the form of submissions on points of law which ought not to be the case.
It is the Applicant’s submission that both Order 53 of the Civil Procedure Rules and Articles 22, 23, and 47 of the Constitution allow this court to examine both process and merits. To support this position, he relies on Supreme Court Pet. No. 6 (E007) of 2022 where the court observed that judicial review has evolved into a constitutional tool capable of merit review.
The Applicant reiterates that the loan, supported by post-dated cheques, vehicle security (KBW 299K) and a decree, were legitimate and voluntarily entered into. Further, that the Charges of False Pretence and Forgery are defective because the loan was for future repayment and therefore not a false representation of existing fact under Sections 312–313 Penal Code.
He further submits that while Article 157(6) to (10) grants the DPP discretion, Article 157(11) binds the DPP to act in the public interest and avoid abuse.
It is submitted that the High Court has power under Article 165(3)(d)(ii) to intervene where there is evidence of abuse. He relies on the Supreme Court case of Cyrus Shakhalanga Khwa Jirongo v Soy Developers Ltd & 9others [2021] eKLR where the court is said to have rendered itself regarding termination of criminal proceedings on the basis of the dispute being civil in nature and also on account of inordinate delay in instituting an intended prosecution.
The Applicant’s submission is that the loan was secured by tangible assets and valid documentation and the forensic report and WhatsApp messages indicate a genuine business relationship, not fraud. He further submits that the complainant retained the original logbook , which undercuts the fraud claim.
On discrimination and selective prosecution, t he applicant argues that he has been unfairly targeted , contrary to Article 27 of the Constitution . That the selective prosecution and application of the law against the Applicant contravenes his fundamental right under Article 27 of the Constitution. He submits that, he had a legitimate expectation that the Respondents would not abuse their office, power or authority in any unlawful manner, bad faith or to achieve an extraneous purpose by selectively victimising or punishing him.
He relies on the case of Peter Ngunjiri Maina v DPP & 2 Others [2017] eKLR where the court is said to have identified various scenarios that would require interrogation to warrant a review of the unfettered discretion of the Director of Public Prosecutions. He also relies on several other cases including Republic vs Commissioner of Police and Another ex parte Michael Monari & Another,[2012] eKLR and Joram Mwenda Guantai vs The Chief Magistrate,[2007] 2 EA 170 to support this position.
The Applicant further submits that all grounds or principles cited by the Court in Jared Benson Kangwana vs. Attorney General Nairobi High Court Misc. Application No. 446 of 1995 (unreported) are relevant to these proceedings as each of the principles has been violated in one aspect or another by the prosecution mounted against him and which is sought to be quashed and prohibited.
The Applicant submits that it was unreasonable and absurd for the investigating officer to become an accuser in his own case hence demonstrating bias, lack of objectivity or partiality. In this regard, the applicant relies on Prof Sir William Wade in his book Administrative Law as cited in R vs. Somerset County Council, ex parte Fewings and Others [1995] 1All ER 513 at 524 on the nature of the duty of a public body which is applicable mutatis mutandis to a public officer for the proposition that any action to be taken by a public body must be justified by positive law.
He further relies on the case of George Okungu & Another vs. Chief Magistrate’s Court Anti-Corruption Court a Nairobi & Another [2014] eKLR where the court observed that the court will not hesitate to put a halt to ongoing criminal proceedings where the same constitute an abuse of process and are being carried out in breach of or threaten breach of constitutional rights.
The Applicant also submits that the 3 rd Respondent’s Investigations officers acted in excess and in abuse of their powers since before a criminal prosecution can be mounted, it is the responsibility of the 2 nd Respondent to direct and review the work of the 3 rd Respondent. Reliance is placed in the case of Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi High Court Misc. Civil Application No. 743 of 2006 [2007] eKLR where the court observed that a power which is abused should be treated as a power which has not been lawfully exercised.
It is the Applicant’s submission that courts are the temples of justice and the last frontier of the rule of law. To support this position, reliance is placed in the case of Republic vs. Judicial Commission of Inquiry into The Goldenberg Affair, Honourable Mr. Justice of Appeal Bosire and Another Ex Parte Honourable Professor Saitoti [2007] 2 EA 392; [2006] 2 KLR 40 0.
Further, the Applicant submits that this Court has the powers and the constitutional duty to supervise the exercise of the Respondent’s mandate whether constitutional or statutory as long as the challenge properly falls within the parameters of judicial review.
The Applicant submits that it is clear that the discretion is being exercised with a view to achieving certain extraneous goals other than those legally recognised under the Constitution and the Office of the Director of Public Prosecutions Act, that would, constitute an abuse of the legal process and would entitle the Court to intervene and bring to an end such wrongful exercise of discretion. The Applicant relies on the case of Koinange vs. Attorney General and Others [2007] 2 EA 256 to support this position.
He also urges that to permit the prosecutor to arbitrarily exercise his constitutional mandate based on ulterior motives as is alleged in these proceedings would amount to the court abetting abuse of discretion and power and criminality. He places reliance on the case of Regina vs.Ittoshat [1970] 10 CRNS 385 at 389 where the court held that it is not only a right but the duty of the court to protect citizens against harsh and unfair treatment.
The Applicant argues that as was held by the court in the case of R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No.406 of 2001, the mere fact that the applicant will be subject to a criminal process where he will get an opportunity to defend himself is not reason for allowing a clearly flawed, unlawful and unfair trial to run its course.
The Applicant submits that as held by the Court in Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR the High Court has the power to review the foundational basis of the DPP’s decision to charge.
It is the Applicant’s further submission that as was held in the case of Gerald Ndoho Munjuga V R HC Criminal Appeal No. 213 of 2011 (Nyeri), the offence of obtaining by false pretences does not relate to future events. He submits that the offences of obtaining credit by false pretences are anchored on the loan agreement so that there was no way the offences could have been committed before the execution of the loan agreement.
The Applicant also argues that a fundamental principle in Judicial Review cases is that except in claims of violations of fundamental human rights and freedoms, the concern of the courts has nothing to do with the merits of the decision but the process in arriving at that decision and that in the instant case, the loan agreement dispels any commissions of any Criminal Offence as the terms of the loan are very clear and the Interested party is holding securities which have not been proved to be fake.
The applicant argues that while he does not challenge the respondents’ jurisdiction to investigate and prosecute, he maintains that they committed an error of law in the manner they exercised their powers. He cites JGH Marine A/S Western Marine Services Ltd & 2 others v Public Procurement Administrative Review Board & 2 others [2015] eKLR , where the court held that an error of law, such as failing to consider relevant criteria and considering irrelevant material, amounted to acting without jurisdiction. This, he submits, demonstrates that even where jurisdiction exists, the manner of its exercise can render the resulting decision unlawful.
The applicant contends that the respondents were bound by the doctrine of legality, which requires public authorities to act within the law and in accordance with the purpose and limits of the powers conferred upon them. He argues that their actions in his case failed to meet this threshold, rendering them flawed and illegal.
That a decision is illegal, he submits, where it exceeds the terms of the power authorizing it, pursues objectives not intended by the law, is unsupported by any legal basis, or fails to implement a legal duty. Evaluating illegality, therefore, involves construing the statutory or regulatory framework under which a public authority operates and ensuring that it has acted within its limits; and that the Courts, in enforcing this principle, serve both as upholders of the rule of law and as guardians of Parliament’s intent.
The applicant acknowledges that judicial review is an extraordinary remedy, exercised sparingly and only in exceptional cases where illegality, irrationality, or procedural impropriety has been demonstrated. He submits that his case meets this threshold due to the manifest bad faith and impropriety characterizing the criminal investigations instituted against him.
He argues in reiteration to his depositions that the transaction giving rise to the criminal charges was a simple loan, supported by securities still in the possession of the 1 st Interested Party. Further, that the transaction did not involve any misrepresentation as to an existing fact and did not constitute false pretence within the meaning of the Penal Code. He contends that courts should not lightly extend criminal law to matters that properly belong in civil jurisdiction, particularly where adequate civil remedies exist.
The applicant further asserts that public decision-making must be free of improper motives such as fraud, dishonesty, malice, or personal self-interest. That decisions tainted by such motives are made for an improper purpose and fall outside the scope of lawful authority.
He submits that irrationality and unreasonableness are valid grounds for judicial review, as recognized under section 7(2)(i) and (k) of the Fair Administrative Action Act. That a decision is irrational if it lacks a rational connection to the purpose for which the power was conferred, the empowering legal provision, the evidence before the administrator, or the reasons provided for the decision.
He relies on the test of Wednesbury unreasonableness , where a decision is so implausible and lacking in justification that no reasonable authority could have reached it. He maintains that, in his case, no reasonable person, properly directing themselves to the facts and the law, could have made the decision to prosecute. He argues that even where a statute is silent on reasonableness, it must be implied that public power be exercised reasonably.
The applicant sets out that legal unreasonableness may be inferred from specific errors in relevance or purpose, illogical or irrational reasoning, absence of justification, or a disproportionate weighting of irrelevant over relevant factors. In his case, he contends, these criteria are satisfied.
He asserts that judicial intervention is justified where decisions are arbitrary, capricious, or motivated by improper purpose, or where the decision-maker fails to apply their mind or considers irrelevant matters while ignoring relevant ones. He further argues that a decision is procedurally improper where it fails to follow statutory procedures or violates the rules of natural justice.
Procedural impropriety, he explains, encompasses both procedural ultra vires (failure to follow statutory procedures) and breaches of common law principles of fairness. According to the applicant, the two pillars of natural justice- impartiality and the right to be heard were not observed in his case. He emphasizes that Article 47 of the Constitution codifies the right to fair administrative action and to receive reasons for adverse decisions, which were denied to him.
He concludes that administrative fairness is now constitutionally protected and that judicial review no longer relies solely on common law but on the Constitution itself. That this constitutionalizing of administrative justice means that legislation cannot oust or restrict the right to review administrative action for legality, fairness, or reasonableness.
The applicant argues that a challenge to the lawfulness, procedural fairness, or reasonableness of an administrative decision involves the direct application of the Constitution, particularly Article 47, as well as the Fair Administrative Action Act. He maintains that the impugned decision was procedurally unfair, having been made without affording him an opportunity to be heard. He reiterates that procedural fairness entails a minimum requirement that a person be given a chance to present their case before a decision affecting their rights is made, which did not occur in his situation.
He submits that judicial review remedies, such as certiorari and prohibition are discretionary and grounded in the policy that inferior bodies must operate within their legal bounds. That certiorari is meant to bring decisions of inferior tribunals into the High Court for scrutiny and, if found lacking in legality or fairness, to have them declared invalid. In his view, the court, therefore, has jurisdiction to grant the reliefs sought.
In support of his argument on illegality, the applicant relies on Halsbury’s Laws of England , which provides that the court's concern in judicial review is to determine whether a decision-maker exceeded their powers, committed an error of law, breached rules of natural justice or arrived at a decision which no reasonable authority could have reached. He cites Republic v National Hospital Insurance Fund Board of Management & Another Ex parte Law Society of Kenya, where the court held that acting beyond conferred powers is the most obvious form of illegality.
He emphasizes that public bodies must act only within the powers granted by law, and that the principle of legality is central to the rule of law in Kenya’s constitutional framework. He cites the case of AAA Investments (Pty) Ltd v Micro Finance Regulatory Council , which affirmed that public power can only be validly exercised if it has a lawful source. The safeguarding of legality, he argues, is the foundational objective of judicial review. He argues that therefore, to lawfully exercise power, public decision-makers must adhere to legally conferred powers and observe prescribed procedures, which he accuses the respondents of having failed to do in this instance.
Illegality, the applicant submits, includes not only acting outside conferred powers but also taking decisions for improper purposes, misdirecting oneself in law, or considering irrelevant factors. He further argues that even if a power is legally conferred, a public authority may act unlawfully if it exceeds the scope or misapplies that power or adopts a rigid policy in disregard of the duty to exercise discretion properly. He asserts that the respondents misinterpreted and misapplied the relevant law.
The applicant maintains that the impugned decision was infected by improper motives, including fraud, dishonesty, malice, and personal animosity, thereby taking it outside the lawful bounds of administrative discretion. He argues that power is exercised fraudulently when the decision-maker uses it to achieve a hidden objective, and maliciously when motivated by personal ill-will, both of which apply to his case.
On the question of reasonableness, the applicant repeatedly adopts the view that rationality and proportionality are key elements of reasonable administrative action. He refers to Pillay and Hoexter , who explain that rationality requires a decision to be supported by evidence and logic, while proportionality entails balancing competing interests fairly. He cites section 7(2)(i) of the Fair Administrative Action Act, which allows for review where a decision is not rationally connected to its purpose, the law, the information before the administrator or the reasons given.
The applicant also refers to the test of rationality laid down in Pharmaceutical Manufacturers Association of South Africa v President of the Republic of South Africa , where the court held that the question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. He submits that the decision to charge him lacks such connection, is legally unfounded, and was therefore aberrant.
He also relies on section 7(2)(k) of the Fair Administrative Action Act, which provides that a decision can be reviewed if it is so unreasonable that no reasonable person could have made it. The applicant invokes Lord Diplock’s famous articulation of Wednesbury unreasonableness as conduct which no sensible authority acting responsibly would adopt. He argues that, viewed objectively, the decision to charge him lacks any plausible justification.
According to the applicant, judicial review of reasonableness concerns both the process and outcome of the decision-making. That the reviewing court must assess whether the decision is transparent, justified, and falls within a range of acceptable outcomes under the law and facts. He outlines a series of propositions about unreasonableness, including that, it arises where a decision falls outside the range of options reasonably open to the decision-maker, lacks intelligible justification, is based on irrelevant considerations, or gives disproportionate weight to certain factors while ignoring others.
The applicant endlessly submits that procedural impropriety, as one of the three principal grounds of judicial review alongside illegality and irrationality, arises where a public authority commits a serious procedural error. He cites Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 401D , where Lord Diplock recognized that a failure to observe statutory procedures or natural justice even without express denial of hearing may constitute procedural impropriety.
He observes that the evolution of the common law has broadened the obligation on public authorities to observe fairness, now framed in terms of “natural justice” and “procedural decency.” He argues that the decision in his case was procedurally unfair because he was not given a proper opportunity to present his case. He emphasizes that Article 47 of the Constitution codifies the right to administrative action that is expeditious, lawful, reasonable and procedurally fair, including the right to be given reasons for decisions that adversely affect a person.
The applicant cites Local Government Board v Arlidge , where Viscount Haldane held that those making administrative decisions must act judicially and ensure impartiality and adequate opportunity for affected persons to present their case. He reiterates that, under the 2010 Constitution, judicial review is no longer grounded solely in common law but has been constitutionalized under the Bill of Rights. As such, that legislation cannot limit or oust this review power, since a challenge to administrative action now directly invokes constitutional principles.
He reinforces the argument with a quotation from De Smith’s Judicial Review, noting that fairness is not just procedural but also a substantive principle. The applicant asserts that the 2010 Constitution revolutionized the administrative law landscape, including the scope of judicial review and remedies available under it. That under judicial review, one can now also seek declaratory and compensatory remedies, as confirmed in Meshack Agengo Omondi v Eldoret Municipal Council (2012) eKLR and Professor Elijah Biama v University of Eldoret (2014) eKLR .
It is further submitted that in n Cortec Mining Kenya Ltd v Ministry of Mining (2017) eKLR , the Court of Appeal held that for a judicial review application to succeed, the applicant must show the decision is tainted by illegality, irrationality, or procedural impropriety. That the Court explained that illegality involves acting outside the law or jurisdiction, irrationality involves decisions that no reasonable authority would reach and procedural impropriety refers to a failure to adhere to fair procedures or natural justice.
He further cites Republic v Public Procurement Administrative Review Board & Another Ex parte Rongo University , where the court reaffirmed that judicial review is concerned with the legality of decision-making processes not their merits. It is his case that the role of the judicial review court is supervisory and not appellate, with a focus on ensuring that public bodies act within the four corners of their legal mandates.
The Applicant also submits that once a court determines there is no illegality, irrationality, or procedural impropriety, it must decline to intervene, as held in Republic v National Water Conservation and Pipeline Corporation ex parte Roshina Timber Mart (2009) eKLR . The applicant emphasizes that judicial review protects constitutional order by ensuring that agencies remain within the bounds set for them by Parliament. The applicant relies on Jasper Maluki Kitavi v Minister for Lands (2017) eKLR , which cited with approval JSC v Mbalu Mutava , and Rudge v Baldwin 1964 AC , reaffirming that natural just
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