REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E265 OF 2024
IN THE MATTER OF: ARTICLES 2, 3, 18, 19, 21, 22, 23, 24, 25(8), 27, 28, 29 (d) & (f),40, 46 AND 47 OF THE CONSTITUTION OF KENYA 2010.
IN THE MATTER OF: ALLEGED VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 28 (d & f) OF THE CONSTITUTION OF KENYA, 2010.
IN THE MATTER OF: AN APPLICATION FOR BAIL PENDING ARREST (ANTICIPATORY) UNDER THE COURT’S INHERENT ORIGINAL JURISIDICTION.
IN THE MATTER OF: SECTION 123 OF THE CRIMINAL PROCEDURE CODE, CHAPTER 75, LAWS OF KENYA.
IN THE MATTER OF: COMMON LAW AND ALL OTHER ENABLING PROVISIONS OF LAW.
IN THE MATTER OF: THE POLICE AND ODPP ACT.
IN THE MATTER OF: CONSTITUTION OF KENYA [PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS] PRACTICE AND PROCEDURE RULES, 2013
-BETWEEN-
TERESIAH NJERI ................................................................ PETITIONER
-VERSUS-
THE OFFICE OF DIRECTOR OF
PUBLIC PROSECUTIONS ………………………….. ...1 ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE ................. 2 ND RESPONDENT
THE DCI KASARANI ................................................. ….3 RD RESPONDENT
JUDGMENT
1. The Petition dated 25 th May 2024 is grounded on Articles 19, 20 (3) & 4; 21 (1), 22 (3) & 4, 23 (1), 24(1), 25 (a)(b) & (c), 28, 29, 31, 47, 49 (1) (h) and (2) & 50 (2) (a) of the Constitution; Section 123 of Criminal Procedure Code Cap75 and Section 5(2) of the Judicature Act. The Petitioner seeks the following reliefs:
(1) A DECLARATION THAT by having her car and phones seized arbitrarily, by forcing her to forcefully give her personal identification numbers to her personal mobile phones, the Respondents violated and infringed on her right to privacy contrary to Article 31 and protection of right to property under Article 40 and Article 50 (2) of the constitution and are therefore unconstitutional.
(2) A DECLARATION THAT by detaining the Petitioner in the police cells for more than 24 hours and the failure to release her on bond or bail in the absence of compelling reasons was a complete violation and infringement of Article 49 (1) (f), (g) and (h) and are therefore unconstitutional.
(3) A DECLARATION THAT by circulating the notice of the most wanted person poster through Joseph Njoroge Thuo a private person without following the law on fair administrative action as provided for in Article 47 of the Constitution, the ODPP Act and the Fair Administrative Action Act, the 2 nd Respondent violated the Petitioner’s right to equal protection and equal benefit of the law contrary to Article 27 of the Constitution are therefore unconstitutional.
(4) A DECLARATION THAT by allowing a private person to serve the petitioner herein with a poster of the most wanted person by the Kasarani DCI without giving her written reasons and having not given her prior and adequate notice of the decision to name her as a wanted person, and later charge her, the Respondent violated the Petitioner's right to fair administrative action contrary to Article 47 of the Constitution and are therefore unconstitutional.
(5) A DECLARATION THAT by and without offering the Petitioner an opportunity to be heard or to be released on bail and detaining her for far too long a period, which caused the Petitioner agony, disappointment and embarrassment, and by failing to apologize or acknowledge the pain inflicted upon the Petitioner, showing indifference on the Petitioner’s plight, the Respondent violated the Petitioner's right to human dignity and right not to be subjected to psychological torture and cruel, inhuman or degrading treatment contrary to Articles 28 and 29 of the Constitution and are therefore unconstitutional.
(6) A DECLARATION THAT by failing to admit liability and compensate the Petitioner and otherwise remedy the damage caused, the Respondent violated the Petitioner's right, who was a consumer of its services, to services of reasonable quality, to information necessary for her to gain full benefit from the services and to compensation for loss or injury arising from defects in services contrary to Article 46 of the Constitution and are therefore, unconstitutional.
(7) A DECLARATION be and hereby issues that all the acts and/or threatened acts by the Respondents and/or their agents, privies and any other person acting on their instructions of harassment, intimidation, questioning, investigating, charging, prosecuting against the Petitioner by the Respondents amounts to infringement of the Petitioners rights and fundamental freedoms as enshrined in Articles 27(1), 28, 31, 40, 47(1) and 50(1) as well as the contravention of Article 157(11) of the Constitution and are, therefore, unconstitutional.
(8) The Respondents issues an unqualified apology to the Petitioner for the pain and loss she has suffered as a consequence of the Respondent's actions or omissions.
(9) The Respondent pays general damages to the Petitioner for violating her rights and for causing her agony, psychological distress and embarrassment.
2. The Petition is predicated on the grounds on the face of the petition and is further supported by the Petitioner’s sworn affidavit dated evenly. The Petitioner’s case is that she is a businesswoman in Nairobi who entered into a business transaction in March 2024 arising from a close personal relationship with Joseph Njoroge Thuo, the Complainant. She states that on 12 th March 2024, the Complainant provided capital to boost her business stock but that on 16 th May 2024, the Complainant served her with a demand letter designating the funds as a loan and demanding immediate refund.
3. The Petitioner avers that on 20 th May 2024, the Complainant sent her a WhatsApp message through his WhatsApp number +254733208072 containing a “most wanted list” poster allegedly from the Directorate of Criminal Investigations (DCI) which had not been published on official DCI platforms and threatened her with arrest to force a refund.
4. The Petitioner deposes that she honoured a DCI summons on 21 st May 2024 and went to Kasarani Police Station, where she was immediately arrested. She states that the police seized two of her mobile phones (OPPO Reno 10 5G devices) and forced her to provide her passwords and PIN numbers.
5. Additionally, that when the Petitioner’s sister arrived to bring her food and clothes, the police arbitrarily seized and detained her sister’s vehicle, a maroon Mazda Demio, Reg. No. KDN 984J.
6. The Petitioner pleads that she was denied bail or bond despite her counsel’s undertakings and was unlawfully held in the cells at Kasarani Police Station for over 48 hours from 22 nd May to 24 th May 2024 without access to hygiene facilities, which violates the 24-hour constitutional limit.
7. She states that she was eventually arraigned at the Makadara Law Courts and that the investigating officer, No. 92395 PC Winnie Lelei, swore an affidavit labelling her a serial offender and alleging multiple fraud offenses across different police posts, despite being only arraigned to take a plea for a single offense of cheating under Section 315 of the Penal Code.
8. The Petitioner alleges that the Police officers have allegedly threatened her and her family with untold consequences, including re-arrest even if she executes the bail/bond terms granted by the trial court. She contends that the criminal process is being weaponized as a debt-collection tool to advance a personal vendetta rather than for genuine law enforcement, resulting in extensive constitutional violations.
9. She asserts that the intended prosecution is oppressive, vexatious, and initiated in bad faith for ulterior motives rather than the bona fide enforcement of law and order. She states that she has suffered persecution, intimidation, harassment, embarrassment, harm, loss and psychological torture and feared that the threats were being used to harass, intimidate and oppress her and her family, hence the need for constitutional redress.
Response to the petition
10. In response to the Petition, the Respondents filed a Replying Affidavit sworn on 12 th November 2025 by No. 113544 PC Justin Mutwiri, attached to the DCI at Kasarani Police Station and the Investigating Officer in the matter. He deposes that the Petition emanates from the underlying Makadara Criminal Case No. E2974 of 2024, in which the Petitioner Teresiah Njeri is charged.
11. It is averred that on 17 th May 2024, a businessman named Joseph Njoroge Thuo reported a case of obtaining money by false pretence which was recorded under OB No. 72/17/05/2024 at Kasarani Police Station. That the complainant stated that the Petitioner approached him to invest Kshs. 2,500,000 to purchase cereals comprising yellow beans and soya beans from Uganda or Zambia to sell for profit in Kenya, claiming extensive business experience.
12. It is averred that on 12 th March 2024, the complainant transferred Kshs. 2,500,000 into the Petitioner’s ABSA Bank account No. 2047400115 when the Petitioner subsequently indicated that she had travelled to Uganda to procure the stock. That after weeks of non-delivery and failing to reach the Petitioner, the complainant discovered from his business colleagues that the Petitioner did not deal in the cereal business and so, he concluded he had been defrauded. That after the complainant tried to reach the Petitioner in vain, he opted to report the matter to the police.
13. The deponent avers that he immediately commenced investigations to establish the criminality of the Petitioner’s alleged offences and recorded statements from the complainant and witnesses, he obtained money transfer documents and contacted the Petitioner. He avers that the Petitioner went to the DCI office, recorded a statement and admitted to knowing the complainant and receiving the Kshs. 2,500,000, but she maintained that the dispute was strictly of a civil nature.
14. It is deposed that the DCI concluded that the funds were obtained through deceit and fraudulent tricks and the file was forwarded to the Director of Public Prosecutions, the 1 st Respondent herein who was satisfied that the evidence supported a charge of Cheating contrary to section 315 of the Penal Code.
15. It is stated that the Petitioner was also booked under OB No. 105/22/05/2024 in preparation for arraignment after she failed to raise cash bail.
16. The Respondent asserts that the Petition should be dismissed based on the several grounds. Firstly, that the DCI and ODPP acted strictly within their constitutional mandates to investigate crimes and initiate prosecution based on sufficient evidence and their actions were carried out in good faith, without malice and through lawful procedures.
17. Secondly, the deponent denies that the Petitioner’s rights under Articles 28, 29, 31, 47, 49, and 50 of the Constitution were violated because she was fully informed of the complaint, allowed to record a statement and her presumption of innocence remains intact before the trial court.
18. Thirdly, it is deposed that the Constitutional Court is not the proper forum to evaluate the quality or accuracy of the evidence since these facts must be tested and assessed by the trial court during the criminal proceedings. It is their averment that the Petitioner failed to demonstrate with specificity how the Respondents acted ultra vires , capriciously, or in bad faith. The Respondent argues the Petition is an attempt to circumvent a lawful trial process.
19. Parties took directions to canvass the Petition by way of written submissions.
The Petitioner’s Submissions
20. The Petitioner’s submissions are dated 30 th April 2026. Counsel for the Petitioner isolated the following issues for determination:
i. Whether there is a competent Petition against the Respondents;
ii. Whether the Respondents violated the Petitioners constitutional rights;
iii. Whether the Petitioner is entitled to the reliefs sought in the Petition; and
iv. Who should bear the costs of this Petition.
21. On the first issue, Counsel for the petitioner relies on the case of Karimi v Republic [1979] KEHC 30 (KLR) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) and submits that the Petition is highly competent because it specifies the exact facts of the Petitioner’s grievances at paragraphs 5–14, the specific constitutional provisions infringed at paragraphs 15–31 and the precise manner of the violations at paragraphs 32–37. That accordingly, it satisfies the Anarita Karimi threshold.
22. On the second issue, Counsel for the Petitioner isolates several distinct alleged violations committed before, during and after the Petitioner’s arrest. Firstly, Counsel cites the right to privacy under Article 31 and submits that upon honouring police summons at Kasarani Police Station, officers demanded the Petitioner’s private mobile phone, PINs and passwords. It is argued that accessing a phone’s confidential contents without a valid court order or search warrant is a gross, unlawful intrusion.
23. Counsel also submits that the right to property under Article 40 was violated when the police arbitrarily seized and detained a motor vehicle Mazda Demio, Reg. No. KDN 984J which was driven by the Petitioner’s sister to the station. Counsel notes that the vehicle had no connection to the Cereals business under investigation, making its confiscation unnecessary and unreasonable.
24. Thirdly, counsel submits that the right to police bail under Article 49 (1) (h) was also violated because the Respondents completely denied the Petitioner police bail pending arraignment. Citing R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 , the Petitioner’s counsel submits that bail can only be denied for compelling reasons which entail forceful and cogent grounds. It is submitted that the Petitioner was not a flight risk, nor was she likely to interfere with investigations.
25. Fourthly, Counsel submits that there was unlawful detention beyond 24 hours as provided for under Article 49 (1) (f) of the Constitution because the Petitioner was held in police cells from 22 nd May to 24 th May 2024, without being presented to a court. That this directly violates the mandatory 24-hour constitutional limit, and the Respondents offered no lawful explanation for the delay. The case of Kausi v Inspector General of Police & 2 others (Criminal Miscellaneous Application E041 of 2025) [2025] KEHC 13412 is cited in support of the right to liberty.
26. Lastly, Counsel submits that there was a prejudicial publication which the complainant circulated, entailing a ‘most wanted’ poster allegedly linked to the DCI. The Petitioner claims this prematurely and publicly branded her a criminal, stripping her of her human dignity and violating her right to a presumption of innocence under Articles 28 & 50 (2) (a) of the Constitution .
27. Citing the South African case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 as was cited in the case of Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557, the Petitioner argues that the primary purpose of a constitutional remedy is to vindicate guaranteed rights and deter future state overreach, rather than just provide compensation. It is submitted that in light of the clear demonstration of how the Respondents herein violated the Petitioner’s rights as guaranteed by the Constitution, Counsel urges the High Court to intervene, grant all declaratory orders and damages sought in the Petition and order that the Respondents bear the full costs of the suit.
The Respondent’s Submissions
28. The Respondents’ Submissions are dated 17 th November 2025. Learned Counsel Mr. Kerongo Maatwa isolates one issue for determination being: whether the Petition meets the strict legal threshold for constitutional claims established in Anarita Karimi Njeru v. Republic (1979) and Mumo Matemu v. Trusted Society of Human Rights Alliance (2013). Counsel submits that a constitutional petition must state with a reasonable degree of precision the exact nature of the petitioner’s grievance, the specific constitutional provisions allegedly infringed and a clear demonstration of how the respondents violated those provisions.
29. Counsel sets out a chronological synopsis of the events leading to the Petitioner’s arrest and argues that under the National Police Service Act and Article 157 of the Constitution, the Respondents have a legal duty to investigate and prosecute crime. That executing these duties does not constitute a rights violation.
30. Counsel for the Respondents rejects the argument that the dispute is strictly a civil matter and notes that under Section 193A of the Criminal Procedure Code , civil and criminal proceedings can run concurrently. It is submitted that the arguments regarding the insufficiency of evidence or the civil nature of the dispute should be canvassed before the trial at the Makadara Magistrates Criminal court, which is best equipped to handle evidential issues.
31. Counsel denies that there was a violation of the Petitioner’s property rights under Article 40, stating that the two phones were seized lawfully as part of the investigation and a proper inventory was taken. It is also denied that the Respondents violated the right to fair administrative action under Article 47 because the Petitioner was fully informed of the allegations, recorded a statement and her account was considered before charging her. Counsel further submits that there is no evidence of discrimination, degradation of human dignity, or unlawful deprivation of freedom and security under Articles 27, 28, 29 of the Constitution.
32. Counsel for the Respondents reiterates that the Petition lacks merit and fails to satisfy the necessary constitutional thresholds. They pray that the Court dismisses the Petition with costs.
Analysis and Determination
33. I have considered the foregoing and find the main issue for determination to be whether the Petition is merited and whether the prayers sought can be granted . I will also determine the following sub-issues:-
(i) Whether the dispute between the Petitioner and the Interested Party is purely civil or if it discloses a criminal offense.
(ii) Whether the Petitioner’s constitutional rights were violated during her arrest and subsequent detention.
i. Whether the dispute between the Petitioner and the Interested Party is purely civil or if it discloses a criminal offense.
34. The Petitioner argues that the Respondents exceeded their statutory mandates and weaponized the criminal justice system to handle what is fundamentally a civil, commercial transaction. The Respondents’ counter argument is that the arrest and prosecution of the petitioner for the offence of cheating contrary to Section 315 of the Penal Code are a lawful exercise of the respondents’ constitutional and statutory mandates, rather than a violation of her fundamental rights. The Respondents argue that the Petitioner, Teresiah Njeri, has failed to establish a competent constitutional claim that meets the threshold required by law in Anarita Karimi v Republic and Mumo Matemu. They assert that a civil suit can run concurrently with a criminal suit if it is established from the facts that a criminal offence was committed.
35. Article 157 of the Constitution establishes the office of the 1 st Respondent and its functions as follows:
157. Director of Public Prosecutions
(1) There is established the office of Director of Public Prosecutions.
(2) .....
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
(7) .....
(8) ......
(9) ......
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process....
36. The role of the 2 nd and by extension the 3 rd Respondents are well laid out in Article 245 of the Constitution as follows:
245. Command of the National Police Service
(1 There is established the office of the Inspector-General of the National Police Service.
(2 The Inspector-General—
(a) is appointed by the President with the approval of Parliament; and
(b) shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
(3 The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.
(4 The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
37. The basis of the Petition before the Court is that the Petitioner claims she received a commercial loan from a businessman, Joseph Njoroge Thuo, who is the complainant in the criminal court, to secure additional business stock, but he later reported the matter to the police, claiming she obtained the funds falsely.
38. According to the Respondent, as deposed by the Investigating Officer PC Justin Mutwiri, the complainant allegedly gave the Petitioner Kshs 2,500,000 as an investment to source yellow and soya beans from Uganda and East Africa for resale but the that the Petitioner allegedly failed to deliver the cereals. That their investigations led the police to conclude that the transaction was not a personal loan. The ODPP subsequently determined that there was sufficient evidence to charge the petitioner with cheating contrary to Section 315 of the Penal Code.
39. It is not in dispute that the Petitioner and the complainant engaged in a commercial transaction. As to whether the same was a personal loan or an investment; or whether it was tainted with criminality on the part of the Petitioner, are issues that can only be substantiated by the 2 nd and 3 rd Respondents who are vested with the authority to conduct criminal investigations and eventually determine through evidence before the trial court.
40. The Petitioner asserts that the dispute is purely commercial in nature and not criminal. While this Court appreciates that the Respondents should not be conduits for seeking enforcement of civil debts, it is an equally sound legal principle that a commercial transaction can simultaneously form the basis of a criminal offense if elements of fraud, misrepresentation or cheating are detected at the inception of the contract. This can only be established through proper investigations carried out by the 2 nd and 3 rd Respondents and eventually prosecuted by the 1 st Respondent.
41. This is drawn from the provisions of Section 193A which stipulates:
193A.Concurrent criminal and civil proceedings
Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
42. Having established this, I have further considered the provisions of Section 315 of the Penal Code which is the offence for which the Petitioner has been charged with in the criminal court: the section provides:
315. Cheating
Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years.
43. The above provisions stipulate that the offence is established where a person, by means of any fraudulent trick or device, obtains money or goods from another. In line with this, I have considered the provisions of Section 26 of the ODPP Act which stipulates that once the investigations are carried out by the 2 nd and 3 rd Respondents or their officers, they are to submit their findings to the 1 st Respondent. The said Section is couched in the following terms:
(1) The Inspector-General or any other investigative agency shall disclose to the Director all material facts and information collected in the course of an investigation that may be reasonably expected to assist the case of prosecution or defence.
(2) The Inspector-General or any other investigative agency shall—
a) conduct thorough investigations;
b) compile all evidence; and
c) submit all relevant information in relation to any investigation undertaken.
(3) The duty of disclosure under this section shall—
a) include privileged information; and
b) continue until the determination of the case.
44. From the facts of this case, it is clear that there was exchange of money in the sum of Kshs 2,500,000 between the Petitioner and the complainant which was specific to an alleged Cereals business venture involving cross-border trade as established from the investigations. It is the Petitioner’s alleged non-delivery and the fact that the complainant could not reach her that raised a reasonable suspicion of fraudulent intent and led to the complaint being lodged before the 2 nd and 3 rd Respondents by the complainant. This necessitated the police investigative power as outlined by the Constitution and statute above. The findings of these investigations then led to the 1 st Respondent’s decision to prosecute the Petitioner on the charge of cheating.
45. It is not the business of this Court, sitting as a Constitutional Court, to test the ultimate guilt or innocence of the Petitioner; that is the preserve of the trial court. At the same time, the Inspector General of Police, through his offices, is mandated to investigate and establish criminality of a party’s actions under Article 245 of the Constitution and the National Police Service Act.
46. Equally, the ODPP possesses the constitutional mandate under Article 157 to institute criminal proceedings where a prima facie case exists.
47. I find that the dispute between the Petitioner and the complainant arose from the Petitioner’s complete failure to deliver the goods or account for the funds and that could simply be construed as a civil dispute.
48. However, where the obtaining of funds may have been propagated by deceit, that element of criminality must be determined by thorough investigations, a prosecution decision and ultimately a trial before the criminal court to determine whether the offence has been proven. This Court cannot therefore interfere in that process on account of the dispute stemming from a commercial transaction unless there are compelling reasons to do so. I am fortified on this point b the decision in the case of Justus Mwenda Kathenge v Director of Public Prosecutions & 2 others [2014] eKLR where the Court observed that:
“8. It is now trite that Courts cannot interfere with the exercise of the above mandate unless it can be shown that under Article 157(11);
(i) he has acted without due regard to public interest,
(ii) he has acted against the interests of the administration of justice,
(iii) he has not taken account of the need to prevent and avoid abuse of Court process.”
49. The Court of Appeal in the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR also held as follows:
“[41] Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases...”
1. I ma equally fortified by the Supreme Court decision in Hussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR that
“105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, th
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E265 OF 2024
IN THE MATTER OF: ARTICLES 2, 3, 18, 19, 21, 22, 23, 24, 25(8), 27, 28, 29 (d) & (f),40, 46 AND 47 OF THE CONSTITUTION OF KENYA 2010.
IN THE MATTER OF: ALLEGED VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27, 28 (d & f) OF THE CONSTITUTION OF KENYA, 2010.
IN THE MATTER OF: AN APPLICATION FOR BAIL PENDING ARREST (ANTICIPATORY) UNDER THE COURT’S INHERENT ORIGINAL JURISIDICTION.
IN THE MATTER OF: SECTION 123 OF THE CRIMINAL PROCEDURE CODE, CHAPTER 75, LAWS OF KENYA.
IN THE MATTER OF: COMMON LAW AND ALL OTHER ENABLING PROVISIONS OF LAW.
IN THE MATTER OF: THE POLICE AND ODPP ACT.
IN THE MATTER OF: CONSTITUTION OF KENYA [PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS] PRACTICE AND PROCEDURE RULES, 2013
-BETWEEN-
TERESIAH NJERI ................................................................ PETITIONER
-VERSUS-
THE OFFICE OF DIRECTOR OF
PUBLIC PROSECUTIONS ………………………….. ...1 ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE ................. 2 ND RESPONDENT
THE DCI KASARANI ................................................. ….3 RD RESPONDENT
JUDGMENT
1. The Petition dated 25 th May 2024 is grounded on Articles 19, 20 (3) & 4; 21 (1), 22 (3) & 4, 23 (1), 24(1), 25 (a)(b) & (c), 28, 29, 31, 47, 49 (1) (h) and (2) & 50 (2) (a) of the Constitution; Section 123 of Criminal Procedure Code Cap75 and Section 5(2) of the Judicature Act. The Petitioner seeks the following reliefs:
(1) A DECLARATION THAT by having her car and phones seized arbitrarily, by forcing her to forcefully give her personal identification numbers to her personal mobile phones, the Respondents violated and infringed on her right to privacy contrary to Article 31 and protection of right to property under Article 40 and Article 50 (2) of the constitution and are therefore unconstitutional.
(2) A DECLARATION THAT by detaining the Petitioner in the police cells for more than 24 hours and the failure to release her on bond or bail in the absence of compelling reasons was a complete violation and infringement of Article 49 (1) (f), (g) and (h) and are therefore unconstitutional.
(3) A DECLARATION THAT by circulating the notice of the most wanted person poster through Joseph Njoroge Thuo a private person without following the law on fair administrative action as provided for in Article 47 of the Constitution, the ODPP Act and the Fair Administrative Action Act, the 2 nd Respondent violated the Petitioner’s right to equal protection and equal benefit of the law contrary to Article 27 of the Constitution are therefore unconstitutional.
(4) A DECLARATION THAT by allowing a private person to serve the petitioner herein with a poster of the most wanted person by the Kasarani DCI without giving her written reasons and having not given her prior and adequate notice of the decision to name her as a wanted person, and later charge her, the Respondent violated the Petitioner's right to fair administrative action contrary to Article 47 of the Constitution and are therefore unconstitutional.
(5) A DECLARATION THAT by and without offering the Petitioner an opportunity to be heard or to be released on bail and detaining her for far too long a period, which caused the Petitioner agony, disappointment and embarrassment, and by failing to apologize or acknowledge the pain inflicted upon the Petitioner, showing indifference on the Petitioner’s plight, the Respondent violated the Petitioner's right to human dignity and right not to be subjected to psychological torture and cruel, inhuman or degrading treatment contrary to Articles 28 and 29 of the Constitution and are therefore unconstitutional.
(6) A DECLARATION THAT by failing to admit liability and compensate the Petitioner and otherwise remedy the damage caused, the Respondent violated the Petitioner's right, who was a consumer of its services, to services of reasonable quality, to information necessary for her to gain full benefit from the services and to compensation for loss or injury arising from defects in services contrary to Article 46 of the Constitution and are therefore, unconstitutional.
(7) A DECLARATION be and hereby issues that all the acts and/or threatened acts by the Respondents and/or their agents, privies and any other person acting on their instructions of harassment, intimidation, questioning, investigating, charging, prosecuting against the Petitioner by the Respondents amounts to infringement of the Petitioners rights and fundamental freedoms as enshrined in Articles 27(1), 28, 31, 40, 47(1) and 50(1) as well as the contravention of Article 157(11) of the Constitution and are, therefore, unconstitutional.
(8) The Respondents issues an unqualified apology to the Petitioner for the pain and loss she has suffered as a consequence of the Respondent's actions or omissions.
(9) The Respondent pays general damages to the Petitioner for violating her rights and for causing her agony, psychological distress and embarrassment.
2. The Petition is predicated on the grounds on the face of the petition and is further supported by the Petitioner’s sworn affidavit dated evenly. The Petitioner’s case is that she is a businesswoman in Nairobi who entered into a business transaction in March 2024 arising from a close personal relationship with Joseph Njoroge Thuo, the Complainant. She states that on 12 th March 2024, the Complainant provided capital to boost her business stock but that on 16 th May 2024, the Complainant served her with a demand letter designating the funds as a loan and demanding immediate refund.
3. The Petitioner avers that on 20 th May 2024, the Complainant sent her a WhatsApp message through his WhatsApp number +254733208072 containing a “most wanted list” poster allegedly from the Directorate of Criminal Investigations (DCI) which had not been published on official DCI platforms and threatened her with arrest to force a refund.
4. The Petitioner deposes that she honoured a DCI summons on 21 st May 2024 and went to Kasarani Police Station, where she was immediately arrested. She states that the police seized two of her mobile phones (OPPO Reno 10 5G devices) and forced her to provide her passwords and PIN numbers.
5. Additionally, that when the Petitioner’s sister arrived to bring her food and clothes, the police arbitrarily seized and detained her sister’s vehicle, a maroon Mazda Demio, Reg. No. KDN 984J.
6. The Petitioner pleads that she was denied bail or bond despite her counsel’s undertakings and was unlawfully held in the cells at Kasarani Police Station for over 48 hours from 22 nd May to 24 th May 2024 without access to hygiene facilities, which violates the 24-hour constitutional limit.
7. She states that she was eventually arraigned at the Makadara Law Courts and that the investigating officer, No. 92395 PC Winnie Lelei, swore an affidavit labelling her a serial offender and alleging multiple fraud offenses across different police posts, despite being only arraigned to take a plea for a single offense of cheating under Section 315 of the Penal Code.
8. The Petitioner alleges that the Police officers have allegedly threatened her and her family with untold consequences, including re-arrest even if she executes the bail/bond terms granted by the trial court. She contends that the criminal process is being weaponized as a debt-collection tool to advance a personal vendetta rather than for genuine law enforcement, resulting in extensive constitutional violations.
9. She asserts that the intended prosecution is oppressive, vexatious, and initiated in bad faith for ulterior motives rather than the bona fide enforcement of law and order. She states that she has suffered persecution, intimidation, harassment, embarrassment, harm, loss and psychological torture and feared that the threats were being used to harass, intimidate and oppress her and her family, hence the need for constitutional redress.
Response to the petition
10. In response to the Petition, the Respondents filed a Replying Affidavit sworn on 12 th November 2025 by No. 113544 PC Justin Mutwiri, attached to the DCI at Kasarani Police Station and the Investigating Officer in the matter. He deposes that the Petition emanates from the underlying Makadara Criminal Case No. E2974 of 2024, in which the Petitioner Teresiah Njeri is charged.
11. It is averred that on 17 th May 2024, a businessman named Joseph Njoroge Thuo reported a case of obtaining money by false pretence which was recorded under OB No. 72/17/05/2024 at Kasarani Police Station. That the complainant stated that the Petitioner approached him to invest Kshs. 2,500,000 to purchase cereals comprising yellow beans and soya beans from Uganda or Zambia to sell for profit in Kenya, claiming extensive business experience.
12. It is averred that on 12 th March 2024, the complainant transferred Kshs. 2,500,000 into the Petitioner’s ABSA Bank account No. 2047400115 when the Petitioner subsequently indicated that she had travelled to Uganda to procure the stock. That after weeks of non-delivery and failing to reach the Petitioner, the complainant discovered from his business colleagues that the Petitioner did not deal in the cereal business and so, he concluded he had been defrauded. That after the complainant tried to reach the Petitioner in vain, he opted to report the matter to the police.
13. The deponent avers that he immediately commenced investigations to establish the criminality of the Petitioner’s alleged offences and recorded statements from the complainant and witnesses, he obtained money transfer documents and contacted the Petitioner. He avers that the Petitioner went to the DCI office, recorded a statement and admitted to knowing the complainant and receiving the Kshs. 2,500,000, but she maintained that the dispute was strictly of a civil nature.
14. It is deposed that the DCI concluded that the funds were obtained through deceit and fraudulent tricks and the file was forwarded to the Director of Public Prosecutions, the 1 st Respondent herein who was satisfied that the evidence supported a charge of Cheating contrary to section 315 of the Penal Code.
15. It is stated that the Petitioner was also booked under OB No. 105/22/05/2024 in preparation for arraignment after she failed to raise cash bail.
16. The Respondent asserts that the Petition should be dismissed based on the several grounds. Firstly, that the DCI and ODPP acted strictly within their constitutional mandates to investigate crimes and initiate prosecution based on sufficient evidence and their actions were carried out in good faith, without malice and through lawful procedures.
17. Secondly, the deponent denies that the Petitioner’s rights under Articles 28, 29, 31, 47, 49, and 50 of the Constitution were violated because she was fully informed of the complaint, allowed to record a statement and her presumption of innocence remains intact before the trial court.
18. Thirdly, it is deposed that the Constitutional Court is not the proper forum to evaluate the quality or accuracy of the evidence since these facts must be tested and assessed by the trial court during the criminal proceedings. It is their averment that the Petitioner failed to demonstrate with specificity how the Respondents acted ultra vires , capriciously, or in bad faith. The Respondent argues the Petition is an attempt to circumvent a lawful trial process.
19. Parties took directions to canvass the Petition by way of written submissions.
The Petitioner’s Submissions
20. The Petitioner’s submissions are dated 30 th April 2026. Counsel for the Petitioner isolated the following issues for determination:
i. Whether there is a competent Petition against the Respondents;
ii. Whether the Respondents violated the Petitioners constitutional rights;
iii. Whether the Petitioner is entitled to the reliefs sought in the Petition; and
iv. Who should bear the costs of this Petition.
21. On the first issue, Counsel for the petitioner relies on the case of Karimi v Republic [1979] KEHC 30 (KLR) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014] KESC 6 (KLR) and submits that the Petition is highly competent because it specifies the exact facts of the Petitioner’s grievances at paragraphs 5–14, the specific constitutional provisions infringed at paragraphs 15–31 and the precise manner of the violations at paragraphs 32–37. That accordingly, it satisfies the Anarita Karimi threshold.
22. On the second issue, Counsel for the Petitioner isolates several distinct alleged violations committed before, during and after the Petitioner’s arrest. Firstly, Counsel cites the right to privacy under Article 31 and submits that upon honouring police summons at Kasarani Police Station, officers demanded the Petitioner’s private mobile phone, PINs and passwords. It is argued that accessing a phone’s confidential contents without a valid court order or search warrant is a gross, unlawful intrusion.
23. Counsel also submits that the right to property under Article 40 was violated when the police arbitrarily seized and detained a motor vehicle Mazda Demio, Reg. No. KDN 984J which was driven by the Petitioner’s sister to the station. Counsel notes that the vehicle had no connection to the Cereals business under investigation, making its confiscation unnecessary and unreasonable.
24. Thirdly, counsel submits that the right to police bail under Article 49 (1) (h) was also violated because the Respondents completely denied the Petitioner police bail pending arraignment. Citing R v Joktan Malende and 3 Others Criminal Case No. 55 of 2009 , the Petitioner’s counsel submits that bail can only be denied for compelling reasons which entail forceful and cogent grounds. It is submitted that the Petitioner was not a flight risk, nor was she likely to interfere with investigations.
25. Fourthly, Counsel submits that there was unlawful detention beyond 24 hours as provided for under Article 49 (1) (f) of the Constitution because the Petitioner was held in police cells from 22 nd May to 24 th May 2024, without being presented to a court. That this directly violates the mandatory 24-hour constitutional limit, and the Respondents offered no lawful explanation for the delay. The case of Kausi v Inspector General of Police & 2 others (Criminal Miscellaneous Application E041 of 2025) [2025] KEHC 13412 is cited in support of the right to liberty.
26. Lastly, Counsel submits that there was a prejudicial publication which the complainant circulated, entailing a ‘most wanted’ poster allegedly linked to the DCI. The Petitioner claims this prematurely and publicly branded her a criminal, stripping her of her human dignity and violating her right to a presumption of innocence under Articles 28 & 50 (2) (a) of the Constitution .
27. Citing the South African case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 as was cited in the case of Imanyara & 2 others v Attorney General (Civil Appeal 98 of 2014) [2016] KECA 557, the Petitioner argues that the primary purpose of a constitutional remedy is to vindicate guaranteed rights and deter future state overreach, rather than just provide compensation. It is submitted that in light of the clear demonstration of how the Respondents herein violated the Petitioner’s rights as guaranteed by the Constitution, Counsel urges the High Court to intervene, grant all declaratory orders and damages sought in the Petition and order that the Respondents bear the full costs of the suit.
The Respondent’s Submissions
28. The Respondents’ Submissions are dated 17 th November 2025. Learned Counsel Mr. Kerongo Maatwa isolates one issue for determination being: whether the Petition meets the strict legal threshold for constitutional claims established in Anarita Karimi Njeru v. Republic (1979) and Mumo Matemu v. Trusted Society of Human Rights Alliance (2013). Counsel submits that a constitutional petition must state with a reasonable degree of precision the exact nature of the petitioner’s grievance, the specific constitutional provisions allegedly infringed and a clear demonstration of how the respondents violated those provisions.
29. Counsel sets out a chronological synopsis of the events leading to the Petitioner’s arrest and argues that under the National Police Service Act and Article 157 of the Constitution, the Respondents have a legal duty to investigate and prosecute crime. That executing these duties does not constitute a rights violation.
30. Counsel for the Respondents rejects the argument that the dispute is strictly a civil matter and notes that under Section 193A of the Criminal Procedure Code , civil and criminal proceedings can run concurrently. It is submitted that the arguments regarding the insufficiency of evidence or the civil nature of the dispute should be canvassed before the trial at the Makadara Magistrates Criminal court, which is best equipped to handle evidential issues.
31. Counsel denies that there was a violation of the Petitioner’s property rights under Article 40, stating that the two phones were seized lawfully as part of the investigation and a proper inventory was taken. It is also denied that the Respondents violated the right to fair administrative action under Article 47 because the Petitioner was fully informed of the allegations, recorded a statement and her account was considered before charging her. Counsel further submits that there is no evidence of discrimination, degradation of human dignity, or unlawful deprivation of freedom and security under Articles 27, 28, 29 of the Constitution.
32. Counsel for the Respondents reiterates that the Petition lacks merit and fails to satisfy the necessary constitutional thresholds. They pray that the Court dismisses the Petition with costs.
Analysis and Determination
33. I have considered the foregoing and find the main issue for determination to be whether the Petition is merited and whether the prayers sought can be granted . I will also determine the following sub-issues:-
(i) Whether the dispute between the Petitioner and the Interested Party is purely civil or if it discloses a criminal offense.
(ii) Whether the Petitioner’s constitutional rights were violated during her arrest and subsequent detention.
i. Whether the dispute between the Petitioner and the Interested Party is purely civil or if it discloses a criminal offense.
34. The Petitioner argues that the Respondents exceeded their statutory mandates and weaponized the criminal justice system to handle what is fundamentally a civil, commercial transaction. The Respondents’ counter argument is that the arrest and prosecution of the petitioner for the offence of cheating contrary to Section 315 of the Penal Code are a lawful exercise of the respondents’ constitutional and statutory mandates, rather than a violation of her fundamental rights. The Respondents argue that the Petitioner, Teresiah Njeri, has failed to establish a competent constitutional claim that meets the threshold required by law in Anarita Karimi v Republic and Mumo Matemu. They assert that a civil suit can run concurrently with a criminal suit if it is established from the facts that a criminal offence was committed.
35. Article 157 of the Constitution establishes the office of the 1 st Respondent and its functions as follows:
157. Director of Public Prosecutions
(1) There is established the office of Director of Public Prosecutions.
(2) .....
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
(7) .....
(8) ......
(9) ......
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process....
36. The role of the 2 nd and by extension the 3 rd Respondents are well laid out in Article 245 of the Constitution as follows:
245. Command of the National Police Service
(1 There is established the office of the Inspector-General of the National Police Service.
(2 The Inspector-General—
(a) is appointed by the President with the approval of Parliament; and
(b) shall exercise independent command over the National Police Service, and perform any other functions prescribed by national legislation.
(3 The Kenya Police Service and the Administration Police Service shall each be headed by a Deputy Inspector-General appointed by the President in accordance with the recommendation of the National Police Service Commission.
(4 The Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector-General with respect to—
(a) the investigation of any particular offence or offences;
(b) the enforcement of the law against any particular person or persons; or
(c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
37. The basis of the Petition before the Court is that the Petitioner claims she received a commercial loan from a businessman, Joseph Njoroge Thuo, who is the complainant in the criminal court, to secure additional business stock, but he later reported the matter to the police, claiming she obtained the funds falsely.
38. According to the Respondent, as deposed by the Investigating Officer PC Justin Mutwiri, the complainant allegedly gave the Petitioner Kshs 2,500,000 as an investment to source yellow and soya beans from Uganda and East Africa for resale but the that the Petitioner allegedly failed to deliver the cereals. That their investigations led the police to conclude that the transaction was not a personal loan. The ODPP subsequently determined that there was sufficient evidence to charge the petitioner with cheating contrary to Section 315 of the Penal Code.
39. It is not in dispute that the Petitioner and the complainant engaged in a commercial transaction. As to whether the same was a personal loan or an investment; or whether it was tainted with criminality on the part of the Petitioner, are issues that can only be substantiated by the 2 nd and 3 rd Respondents who are vested with the authority to conduct criminal investigations and eventually determine through evidence before the trial court.
40. The Petitioner asserts that the dispute is purely commercial in nature and not criminal. While this Court appreciates that the Respondents should not be conduits for seeking enforcement of civil debts, it is an equally sound legal principle that a commercial transaction can simultaneously form the basis of a criminal offense if elements of fraud, misrepresentation or cheating are detected at the inception of the contract. This can only be established through proper investigations carried out by the 2 nd and 3 rd Respondents and eventually prosecuted by the 1 st Respondent.
41. This is drawn from the provisions of Section 193A which stipulates:
193A.Concurrent criminal and civil proceedings
Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
42. Having established this, I have further considered the provisions of Section 315 of the Penal Code which is the offence for which the Petitioner has been charged with in the criminal court: the section provides:
315. Cheating
Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of a misdemeanour and is liable to imprisonment for three years.
43. The above provisions stipulate that the offence is established where a person, by means of any fraudulent trick or device, obtains money or goods from another. In line with this, I have considered the provisions of Section 26 of the ODPP Act which stipulates that once the investigations are carried out by the 2 nd and 3 rd Respondents or their officers, they are to submit their findings to the 1 st Respondent. The said Section is couched in the following terms:
(1) The Inspector-General or any other investigative agency shall disclose to the Director all material facts and information collected in the course of an investigation that may be reasonably expected to assist the case of prosecution or defence.
(2) The Inspector-General or any other investigative agency shall—
a) conduct thorough investigations;
b) compile all evidence; and
c) submit all relevant information in relation to any investigation undertaken.
(3) The duty of disclosure under this section shall—
a) include privileged information; and
b) continue until the determination of the case.
44. From the facts of this case, it is clear that there was exchange of money in the sum of Kshs 2,500,000 between the Petitioner and the complainant which was specific to an alleged Cereals business venture involving cross-border trade as established from the investigations. It is the Petitioner’s alleged non-delivery and the fact that the complainant could not reach her that raised a reasonable suspicion of fraudulent intent and led to the complaint being lodged before the 2 nd and 3 rd Respondents by the complainant. This necessitated the police investigative power as outlined by the Constitution and statute above. The findings of these investigations then led to the 1 st Respondent’s decision to prosecute the Petitioner on the charge of cheating.
45. It is not the business of this Court, sitting as a Constitutional Court, to test the ultimate guilt or innocence of the Petitioner; that is the preserve of the trial court. At the same time, the Inspector General of Police, through his offices, is mandated to investigate and establish criminality of a party’s actions under Article 245 of the Constitution and the National Police Service Act.
46. Equally, the ODPP possesses the constitutional mandate under Article 157 to institute criminal proceedings where a prima facie case exists.
47. I find that the dispute between the Petitioner and the complainant arose from the Petitioner’s complete failure to deliver the goods or account for the funds and that could simply be construed as a civil dispute.
48. However, where the obtaining of funds may have been propagated by deceit, that element of criminality must be determined by thorough investigations, a prosecution decision and ultimately a trial before the criminal court to determine whether the offence has been proven. This Court cannot therefore interfere in that process on account of the dispute stemming from a commercial transaction unless there are compelling reasons to do so. I am fortified on this point b the decision in the case of Justus Mwenda Kathenge v Director of Public Prosecutions & 2 others [2014] eKLR where the Court observed that:
“8. It is now trite that Courts cannot interfere with the exercise of the above mandate unless it can be shown that under Article 157(11);
(i) he has acted without due regard to public interest,
(ii) he has acted against the interests of the administration of justice,
(iii) he has not taken account of the need to prevent and avoid abuse of Court process.”
49. The Court of Appeal in the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR also held as follows:
“[41] Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases...”
1. I ma equally fortified by the Supreme Court decision in Hussein Khalid and 16 others v Attorney General & 2 others, SC Petition No 21 of 2017; [2019] eKLR that
“105] It is not in dispute that every statutory definition of an offence comprises ingredients or elements of the offence proof of which against the accused leads to conviction for the offence. Inevitably, proof or otherwise of elements of an offence is a question of fact and that largely depends on the evidence first adduced by the prosecution and where the accused is placed on his defence, th
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