' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL PETITION NO. ... OF 2025
IN THE MATTER OF: Articles 22, 23, 27, 29, and 39(1) of the Constitution of Kenya
AND
IN THE MATTER OF: Rules 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
AND
IN THE MATTER OF: Sections 193A and 314 of the Criminal Procedure Code, Cap 75 Laws of Kenya
AND
IN THE MATTER OF: The Fair Administrative Action Act and the Inherent Jurisdiction of the Honourable Court
BETWEEN
TWAHA MBARAK ALI...................................................PETITIONER/APPLICANT
VERSUS
DIRECTOR OF CRIMINAL INVESTIGATIONS & 3 OTHERS........RESPONDENTS
RULING
The Notice of Motion dated 24th June 2025 is brought under Articles 27, 29, and 39(1) of the Constitution of Kenya, Rule 10 of the High Court Practice and Procedure Rules, the Criminal Procedure Code (Cap 75) , the Fair Administrative Action Act , and all other enabling provisions of the law. It is supported by the affidavit of Twaha Mbarak Ali sworn on even date.
The Applicant seeks the following orders:
a) Spent
b) That the Honourable Court be pleased to issue Conservatory Orders prohibiting the arrest, arraignment, processing, plea taking, reading of charges, or continued prosecution in a consolidated charge sheet vide Mombasa Criminal Case No. E083 of 2022 – Republic v. Idha Mbarak Ali , or in any other manner whatsoever causing the persecution of the Petitioner/Applicant in a criminal process before the subordinate court pending the hearing and determination of this petition.
c) That the Honourable Court be pleased to issue an interim declaration that the plea taking and continued prosecution of the Petitioner/Applicant, Twaha Mbarak Ali, are unfounded, malicious, oppressive, and unconstitutional. Consequently, the summons to attend court for purposes of plea taking and all consequential orders issued by the 1st to 4th Respondents be declared null and void pending the determination of this petition.
d) That the Honourable Court be pleased to issue such further orders in the interest of justice.
Applicant’s Case
The Applicant contends that he was arrested on 12th June 2025 after being summoned to the Regional Police Headquarters, where he was informed that he was under arrest for the offence of obtaining execution of a surety by false pretences contrary to Section 314 of the Penal Code .
He avers that the charges stem from a commercial agreement between Idha Mbarak Ali and Ramazan Cetin , in which he was not a party. He maintains that his arrest and subsequent arraignment were therefore unlawful and unconstitutional .
He recorded a statement and was released on a cash bail of Kshs. 100,000 , with directions to appear before the Mombasa Chief Magistrate’s Court on 27th June 2025 for plea taking. The Applicant contends that the criminal proceedings constitute a violation of his constitutional rights, are malicious, and amount to an abuse of the criminal justice process.
Respondents’ Case
The Respondents, through the affidavit of IP Stephen Agutu , a police officer and investigator with the Directorate of Criminal Investigations, sworn in opposition, state that the investigation and prosecution of the Applicant were conducted in accordance with the Constitution and enabling statutes.
They aver that the 4th Respondent lodged a formal complaint at Central Police Station vide OB No. 14/27/5/2022 , which led to investigations by the 1st and 2nd Respondents. Upon review of the investigation file, the Director of Public Prosecutions approved the proposed charges and directed the registration of the case in court for plea taking.
It is their position that the Applicant has failed to demonstrate how his rights were violated.
Analysis and Determination
I have carefully considered the Notice of Motion, the supporting affidavit, and the response thereto. The main issue for determination is whether the Applicant has demonstrated sufficient grounds to warrant the intervention of this Court.
It is not disputed that a formal complaint was lodged at Central Police Station and that investigations were duly conducted. The National Police Service and the Office of the Director of Public Prosecutions (ODPP) are constitutionally mandated under Articles 244 and 157 of the Constitution to investigate and prosecute criminal offences, provided they act within the confines of the law.
In the present case, the Applicant was arrested and charged before a competent court seized with jurisdiction to try the alleged offence. His rights under Article 50(2) including the presumption of innocence and the right to a fair trial remain safeguarded throughout the criminal process.
In Paul Ng’ang’a Nyaga v. Attorney General & 3 Others (2013) eKLR , the Court held that:
“This Court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.”
Similarly, in Kipoki Oreu Tasur v. Inspector General of Police & 5 Others [2014] eKLR , the Court emphasized that the criminal justice system, being a critical pillar of the rule of law, must be allowed to function independently unless there is clear evidence of violation of fundamental rights.
In Republic v. Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR , the Court further stated that:
“The police have a duty to investigate any complaint once made… The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution acts reasonably, the High Court will be reluctant to intervene.”
These authorities reinforce the principle that the investigative and prosecutorial agencies must be allowed to perform their constitutional duties, except where clear abuse of process or violation of rights is shown.
On the Alleged Civil Proceedings
The Applicant contends that there is an active civil appeal involving the same subject matter, and thus the criminal charges amount to double jeopardy.
However, Section 193A of the Criminal Procedure Code expressly provides that the existence of civil proceedings is not a bar to the institution or continuation of criminal proceedings based on the same facts.
This position was affirmed in James Mutisya & 5 Others v. Alphayo Chimwanga Munala & 2 Others [2021] eKLR , where the Court held that civil and criminal proceedings may run concurrently , provided neither is used to perpetuate an abuse of court process.
The same reasoning was upheld in Alfred Lumiti Lusiba v. Pethad Pank Shantilal & 2 Others [2010] eKLR , where the Court noted that:
“Both civil and criminal jurisdictions can run parallel to each other, and neither can stand in the way of the other unless either is being employed to perpetuate ulterior motives or generally to abuse the process of the court.”
Applying the above authorities to the present case, I find no evidence that the criminal process is being used for ulterior motives or to achieve collateral advantage.
Conclusion
Having considered the application, affidavits, and the applicable law, I am satisfied that the Respondents acted within their constitutional and statutory mandate . The Applicant has not demonstrated any violation of his rights or abuse of legal process to warrant the intervention of this Court.
Accordingly, I find no merit in the Notice of Motion dated 24th June 2025 . The same is hereby dismissed .
The interim conservatory orders previously granted are discharged .
There shall be no orders as to costs .
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …13 th … DAY OF …November …… 2025.
…WENDY KAGEND0
JUDGE
IN THE PRESENCE OF
FOR THE APPLICANT : MR. EQUENZA
FOR THE STATE SIRIMA : MR NGIRI
BEBORA COURT ASSISTANT
'
IN THE HIGH COURT OF KENYA AT MOMBASA
CONSTITUTIONAL PETITION NO. ... OF 2025
IN THE MATTER OF: Articles 22, 23, 27, 29, and 39(1) of the Constitution of Kenya
AND
IN THE MATTER OF: Rules 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
AND
IN THE MATTER OF: Sections 193A and 314 of the Criminal Procedure Code, Cap 75 Laws of Kenya
AND
IN THE MATTER OF: The Fair Administrative Action Act and the Inherent Jurisdiction of the Honourable Court
BETWEEN
TWAHA MBARAK ALI...................................................PETITIONER/APPLICANT
VERSUS
DIRECTOR OF CRIMINAL INVESTIGATIONS & 3 OTHERS........RESPONDENTS
RULING
The Notice of Motion dated 24th June 2025 is brought under Articles 27, 29, and 39(1) of the Constitution of Kenya, Rule 10 of the High Court Practice and Procedure Rules, the Criminal Procedure Code (Cap 75) , the Fair Administrative Action Act , and all other enabling provisions of the law. It is supported by the affidavit of Twaha Mbarak Ali sworn on even date.
The Applicant seeks the following orders:
a) Spent
b) That the Honourable Court be pleased to issue Conservatory Orders prohibiting the arrest, arraignment, processing, plea taking, reading of charges, or continued prosecution in a consolidated charge sheet vide Mombasa Criminal Case No. E083 of 2022 – Republic v. Idha Mbarak Ali , or in any other manner whatsoever causing the persecution of the Petitioner/Applicant in a criminal process before the subordinate court pending the hearing and determination of this petition.
c) That the Honourable Court be pleased to issue an interim declaration that the plea taking and continued prosecution of the Petitioner/Applicant, Twaha Mbarak Ali, are unfounded, malicious, oppressive, and unconstitutional. Consequently, the summons to attend court for purposes of plea taking and all consequential orders issued by the 1st to 4th Respondents be declared null and void pending the determination of this petition.
d) That the Honourable Court be pleased to issue such further orders in the interest of justice.
Applicant’s Case
The Applicant contends that he was arrested on 12th June 2025 after being summoned to the Regional Police Headquarters, where he was informed that he was under arrest for the offence of obtaining execution of a surety by false pretences contrary to Section 314 of the Penal Code .
He avers that the charges stem from a commercial agreement between Idha Mbarak Ali and Ramazan Cetin , in which he was not a party. He maintains that his arrest and subsequent arraignment were therefore unlawful and unconstitutional .
He recorded a statement and was released on a cash bail of Kshs. 100,000 , with directions to appear before the Mombasa Chief Magistrate’s Court on 27th June 2025 for plea taking. The Applicant contends that the criminal proceedings constitute a violation of his constitutional rights, are malicious, and amount to an abuse of the criminal justice process.
Respondents’ Case
The Respondents, through the affidavit of IP Stephen Agutu , a police officer and investigator with the Directorate of Criminal Investigations, sworn in opposition, state that the investigation and prosecution of the Applicant were conducted in accordance with the Constitution and enabling statutes.
They aver that the 4th Respondent lodged a formal complaint at Central Police Station vide OB No. 14/27/5/2022 , which led to investigations by the 1st and 2nd Respondents. Upon review of the investigation file, the Director of Public Prosecutions approved the proposed charges and directed the registration of the case in court for plea taking.
It is their position that the Applicant has failed to demonstrate how his rights were violated.
Analysis and Determination
I have carefully considered the Notice of Motion, the supporting affidavit, and the response thereto. The main issue for determination is whether the Applicant has demonstrated sufficient grounds to warrant the intervention of this Court.
It is not disputed that a formal complaint was lodged at Central Police Station and that investigations were duly conducted. The National Police Service and the Office of the Director of Public Prosecutions (ODPP) are constitutionally mandated under Articles 244 and 157 of the Constitution to investigate and prosecute criminal offences, provided they act within the confines of the law.
In the present case, the Applicant was arrested and charged before a competent court seized with jurisdiction to try the alleged offence. His rights under Article 50(2) including the presumption of innocence and the right to a fair trial remain safeguarded throughout the criminal process.
In Paul Ng’ang’a Nyaga v. Attorney General & 3 Others (2013) eKLR , the Court held that:
“This Court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they have acted in contravention of the Constitution.”
Similarly, in Kipoki Oreu Tasur v. Inspector General of Police & 5 Others [2014] eKLR , the Court emphasized that the criminal justice system, being a critical pillar of the rule of law, must be allowed to function independently unless there is clear evidence of violation of fundamental rights.
In Republic v. Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR , the Court further stated that:
“The police have a duty to investigate any complaint once made… The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution acts reasonably, the High Court will be reluctant to intervene.”
These authorities reinforce the principle that the investigative and prosecutorial agencies must be allowed to perform their constitutional duties, except where clear abuse of process or violation of rights is shown.
On the Alleged Civil Proceedings
The Applicant contends that there is an active civil appeal involving the same subject matter, and thus the criminal charges amount to double jeopardy.
However, Section 193A of the Criminal Procedure Code expressly provides that the existence of civil proceedings is not a bar to the institution or continuation of criminal proceedings based on the same facts.
This position was affirmed in James Mutisya & 5 Others v. Alphayo Chimwanga Munala & 2 Others [2021] eKLR , where the Court held that civil and criminal proceedings may run concurrently , provided neither is used to perpetuate an abuse of court process.
The same reasoning was upheld in Alfred Lumiti Lusiba v. Pethad Pank Shantilal & 2 Others [2010] eKLR , where the Court noted that:
“Both civil and criminal jurisdictions can run parallel to each other, and neither can stand in the way of the other unless either is being employed to perpetuate ulterior motives or generally to abuse the process of the court.”
Applying the above authorities to the present case, I find no evidence that the criminal process is being used for ulterior motives or to achieve collateral advantage.
Conclusion
Having considered the application, affidavits, and the applicable law, I am satisfied that the Respondents acted within their constitutional and statutory mandate . The Applicant has not demonstrated any violation of his rights or abuse of legal process to warrant the intervention of this Court.
Accordingly, I find no merit in the Notice of Motion dated 24th June 2025 . The same is hereby dismissed .
The interim conservatory orders previously granted are discharged .
There shall be no orders as to costs .
DATED, SIGNED AND DELIVERED AT MOMBASA THIS …13 th … DAY OF …November …… 2025.
…WENDY KAGEND0
JUDGE
IN THE PRESENCE OF
FOR THE APPLICANT : MR. EQUENZA
FOR THE STATE SIRIMA : MR NGIRI
BEBORA COURT ASSISTANT
'