1. The Petition herein is dated 19/02/2025 and is filed through Messrs Mwinamo Lugonzo & Co. Advocates . Together with the Petition, the Petitioners had also filed a Notice of Motion of the same date seeking conservatory orders which Application, by my Ruling rendered on 31/10/2025, I subsequently allowed after inter partes hearing, and thus issued the conservatory orders. I thereafter gave directions for hearing of the main Petition.
2. I captured the basis of the Petition in my said Ruling in the following terms:
“……. the Petitioners sought, basically, a declaration that their alleged intended criminal investigations and/or prosecution for alleged offences arising from their execution of their duties and instructions as Advocates, specifically in relation to the drawing, attestation and certification of the Last Will of one David Kiptoo Cheluget dated 1/07/2022, is unconstitutional and in violation of their fundamental rights and freedoms. Consequently, they have sought an order of prohibition barring the intended investigations or prosecution, award of damages, and costs of the Petition.”
3. Reproduced in specific detail, the orders sought in the Petition are as follows:
a) A declaration that the criminal investigations and intended prosecution of the Petitioners for any alleged offence arising from the 1st and 2 nd Petitioners’ execution of their duties and instructions as Advocates of the High Court of Kenya specifically in relation to the drawing and attestation of the Last Will and Testament of David Kiptoo Cheluget dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original would be unconstitutional unlawful, oppressive, an abuse of both the process of the Court and the criminal justice system, and in violation of the Petitioners fundamental rights and freedoms.
b) An Order of Prohibition prohibiting the Respondents, their agents, servants, or any other person acting on their behalf from undertaking any criminal investigations or prosecution of the Petitioners in relation to any alleged offence arising from the 1st and 2 nd Petitioners' execution of their duties and instructions as Advocates of the High Court of Kenya, specifically concerning the drawing and attestation of the Last Will and Testament of David Kiptoo Cheluget dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original.
c) An order directing the Respondents to jointly and severally compensate the Petitioners for the infringement of their constitutional rights, including but not limited to general damages for emotional distress, reputational damage, and an, financial losses incurred as a result of the Respondents' unlawful actions.
d) An order awarding the costs of this Petition to the Petitioners, to be borne by the Respondents.
e) Such further or other relief as this Honourable Court may deem just and appropriate to grant in the circumstances including measures to prevent future violations of a similar nature by the Respondents.
4. The Petition is supported by the lengthy 39-paragraph Affidavit sworn by the 1 st Petitioner, Mr. Wilson Kiplagat Kalya , a well-known Senior Advocate. I however note that the Affidavit, save for the conclusion part, is a word-by-word replica of the earlier Affidavit sworn in support of the Application whereof the Petitioners had sought and obtained the conservatory orders. For that reason, I will recount the contents of the Affidavit by simply narrating it in the manner by which I recited it in my earlier Affidavit as follows:
“3. …………… He deponed that the Petitioners are Advocates practicing in the style and name of Messrs Kalya & Co. Advocates, that on or about 01/07/2022, acting upon the instructions of David Kiptoo Cheluget (Deceased), he prepared the latter’s Last Will and Testament which was then executed by the deceased-testator and attested by 3 witnesses, namely himself, the 2 nd Petitioner, and one Claire Nyambura Karuga Advocate, who was then a member of his firm but has since left and joined the Office of the Director of Public Prosecutions. He urged that he took all necessary steps to ensure that the legal formalities for the preparation, execution, and attestation of the Will were adhered to, particularly, that the deceased, although personally known to him for over 3 decades, and having acted as his Legal Counsel in various matters over those years, nevertheless formally identified himself by presenting his original National Identity Card, ensured that the Will was drafted in accordance with the instructions and wishes of the deceased, he confirmed that the deceased fully understood the nature and contents of the Will before appending his signature, personally witnessed the deceased sign the Will in his presence, the presence of the 2 nd Petitioner, and the said Claire Nyambura Karuga, all of whom were present at the same time and attested to the execution as witnesses.
4. He deponed that he confirmed, based on his professional assessment as a Legal Practitioner of 36 years, that the deceased was of sound mind and acted voluntarily, without any undue influence, coercion, or duress, and that this conclusion is grounded in the conversations he had with the deceased, during which the deceased lucidly articulated his intentions, provided clear instructions, and demonstrated a thorough understanding of the nature and consequences of the Will, specifically, he engaged the deceased in discussions to ascertain his comprehension of the document, his awareness of the beneficiaries named, and his reasons for distributing his estate in the manner set out in the Will. He urged that in his professional judgment, informed by decades of experience in drafting and executing Wills, the deceased was fully competent and acting of his own free will. He deponed further that the deceased died on 15/06/2024, that in the Will, the testator appointed Hellen Chepkoech Cheluget, Geoffrey Kipkemboi Rono and John Kibiy Koskei as executors of his estate, who then filed Eldoret High Court Probate and Administration Cause No. E111 of 2024, in which the Petition was advertised in the Kenya Gazette on 4/10/2024 under Notice No. 12918, the Grant of Probate was issued to the executors and confirmed on 7/02/2025, and that to date, no individual has filed any application challenging the authenticity of the Will, its contents, or the manner in which it was executed, or its validity.
5. He then contended that on 6/02/2025, an individual identifying himself as Mr. Kuloba, a police officer attached to the 2 nd Respondent based at the Directorate of Criminal Investigations (DCI) in Nairobi, contacted him via phone and informed him that he was required to record a statement regarding a matter in which the Petitioners and the said Claire Nyambura Karuga are being investigated as potential suspects in connection with the alleged forgery of the same Last Will referred to above, that he later received a formal letter from the 1 st Respondent to the same effect, which informed them that they were required to present themselves to record statements in relation to the matter, and that upon making further inquiries, he was informed that an undisclosed complainant had lodged a complaint with the 2 nd Respondent, alleging that the said Will had been forged. He contended that the allegation of forgery of the Will automatically and logically implicates him and the 2 nd Petitioner as potential suspects and persons under investigation, given their roles as the Advocates who prepared and attested to the execution of the Will, that this is despite the fact that the Will was drawn and executed in strict compliance with the law and in accordance with the instructions of the deceased, as confirmed by the due process followed during its preparation and attestation. He stated that by lodging a complaint with the 1 st and 3 rd Respondents challenging the validity of the Will without first contesting the same before the Probate Court in Eldoret High Court Probate and Administration Cause No. E1l1 of 2024, aforesaid, the complainant is seeking to gain a collateral and unfair advantage in his potential future applications in the Probate matter, that this is being done by instigating harassment of the Petitioners, which conduct is not only an abuse of the legal process but also undermines the integrity of the Probate proceedings, which has already confirmed the validity of the Will.
6. He added that by bypassing the Probate Court and initiating criminal investigations, the complainant and the 2 nd and 3 rd Respondents are attempting to exert undue pressure and prejudice on the Petitioners, thereby subverting the proper administration of justice, the decision by the Respondents to initiate parallel criminal investigations against them with the intention of charging them on the alleged forgery of the signature of the deceased, is unlawful, oppressive, and constitutes an abuse of the Court process and the criminal justice system, as well as a violation of their fundamental rights under the Constitution and this Court ought to restrain such improper, and collateral use of the justice system. He observed that the letter issued by the DCI on 7/02/2025 erroneously included the 3 rd Petitioner, falsely alleging her involvement in attesting to the Will, yet the 3 rd Petitioner neither attested to the said Will nor was she an admitted Advocate of the High Court as of 1/07/2022, and her role was strictly limited to certifying the Will as a true copy of the original.
7. He therefore urged that the decision to prosecute is oppressive, considering that the Petitioners acted solely in their professional capacity in drawing the Will as per instructions received, that they have no proprietary or beneficial interest in the estate of the deceased, their actions were purely undertaken in a professional capacity upon receipt of instructions and payment of legal fees, and that the 2 nd and 3 rd Respondents initiated investigations based on unfounded allegations without prima facie evidence, amounting to a fishing expedition and violating the principles of natural justice, that the intended prosecution is actuated by an ulterior motive, the invocation of the criminal process by the Respondents is intended to intimidate and interfere with the Petitioners’ role as key witnesses in the ongoing Probate suit, it is designed to humiliate and embarrass the Petitioners rather than to further the interests of justice, it is based on extraneous considerations, and is not driven by the pursuit of justice, is a calculated misuse of the criminal justice system to unlawfully interfere with an ongoing probate dispute pending before a Court of competent jurisdiction, and it is vexatious, and contrary to the principles of fair play.
8. He deponed further that the actions of the Respondents in subjecting Advocates who attested to the Will to unwarranted criminal investigations constitute intimidation of legal practitioners, violating the protections afforded under the Advocates Act, and undermining the independence of Advocates in discharging their professional obligations without fear of retribution, which actions have compromised the sanctity of Advocate-client privilege, a cornerstone of the legal profession, thereby eroding public confidence in the legal system. He contended further that the Respondents, being public bodies, are bound by the national values and principles of governance as enshrined in Article 3(1) and 10 of the Constitution, which principles have been disregarded in this instance. He averred that the decision to subject the Petitioners to criminal investigations and possible prosecution is thus outrightly illegal, unlawful, and unconstitutional, as they will be greatly prejudiced and will suffer irreparable harm and damage if the intended prosecution proceeds, as their reputation will be unjustifiably tarnished, and their dignity severely compromised ………..”.
Responses by the Respondents
5. In opposing the Petition, the 1 st Respondent, the Director of Public Prosecutions (DPP ), filed the Grounds of Opposition dated 19/01/2026. It was urged therein that the Petitioners have misapprehended the provisions of Article 157(6) and (11 ) of the Constitution , and that they have failed to demonstrate how the 1 st Respondent has threatened or violated the Constitution. It was urged further that the Petition is unripe and speculative, and that the Petitioners have failed to meet the requirements of Section 107 of the Evidence Act that “ he who alleges must prove ”.
6. On their part, the 2 nd , 3 rd and 4 th Respondents, all represented by the Hon. Attorney General , had earlier filed the Replying Affidavit sworn on 4/04/2025 by one Patrick Kuloba , who described himself as an Officer of the National Police Service (NPS ) of the rank of Corporal working at the Directorate of Criminal Investigations (DCI) . It is that same Affidavit that was relied on in opposing the now spent Application for conservatory orders. There being no other or further Replying Affidavit filed or uploaded by any of the Respondents in the Judiciary Case Tracking System (CTS ) online portal in this matter, I presume that the same Affidavit is the same one again relied upon by the 2 nd , 3 rd and 4 th Respondents in opposing the Petition. Since I had, in my said earlier Ruling, already recounted the contents of the Affidavit, I will also simply reproduce the narration I made thereon in the Ruling as follows:
“9. …... He deponed that they received a letter dated 4/12/2024 from a firm known as Glascote Rose requesting them to conduct investigations in respect to the Last Will and Testament of the late David Kiptoo Cheluget on allegations that the Will is a forgery.
10. He deponed that the reasons given for the allegation of forgery was that the signature thereon is different from the signatures the deceased was previously using, that the deceased suffered glaucoma leading to vision loss as a result any documents he signed post-2020 were by way of thumbprint, that the deceased made funeral and last expense wish in his Will that were not disclosed before his funeral, that the Petitioners’ law firm had sought an out of Court settlement in respect to a suit property, as such had there been a Will there would be no reason for settlement, and that the deceased, in an Affidavit, swore that he is a joint owner of the parcel of land No. LR Uasin Gishu/Koimet Scheme 57, and would not have indicated in his Will that he is the sole owner. He deponed further that the complainant's Advocates attached to the said letter a statement from one Abraham Kipruto Cheluget and Mike Cheluget, copies of the Will dated 1/07/2022, letters dated 3/07/2024 and 14/07/2024, and email dated 15/07/2024 in support of their averments, that on a cursory look at the attached samples of signatures of the deceased on the documents provided, more specifically the pleadings in respect to Eldoret ELC No. 115 of 2020; David Kiptoo Cheluget V Abraham Kipruto Cheluget, they noted a discrepancy in the signatures, and have also noted that indeed the deceased may have used a thump-print in the year 2020, and the documents are yet to be subjected to further examinations and forensic analysis, and that before then, they needed to hear from the Petitioners to enable them obtain more information in respect to the issue, and make an informed decision on the way forward.
11. He added that on 9/01/2025, one of the complainants, Mike Kipkorir Cheluget, attended their chambers and recorded a statement to wit that the Will drafted by the Petitioners’ law firm is a forgery, and reiterated the grounds advanced through the letter dated 4/12/2024, and that as a consequence, they decided that they needed to hear from the Petitioners whom they summoned to attend their offices for the purpose of hearing their side of the story and conducting further investigations into the matter. He maintained that there is no law barring the commencement of criminal investigations at any point, that the Succession Court did not look into the issue of forgery, and even if it did so, the ends meant to be achieved in civil proceedings is not similar to the remedies in criminal proceedings, and that criminal and civil proceedings in respect to the same subject matter can proceed simultaneously. He denied that they have harassed the Petitioners, and pointed out that all they have done is to call the Petitioners and inform them to attend their offices for the purposes of “shedding more light” on the allegations put forth by the complainants, and that as they were waiting for them to come at their convenient time they were served with these constitutional proceedings.
12. According to him, these proceedings were only initiated after a complaint was made with the police, whose mandate under the Constitution and under the National Police Service Act is to receive such complaints, conduct investigations and, where necessary, recommend prosecution to the Director of Public Prosecutions (DPP). He contended further that the manner in which the investigations have been carried out so far including informing the Petitioners of the complaint and requesting them to attend their offices to respond thereto does not violate any provisions of the Constitution, and that the investigations have been conducted in good faith and in pursuit of justice with no intention whatsoever to intimidate, humiliate, harass, embarrass and or interfere with ongoing probate proceedings.”
Petitioner’s Further Affidavits
7. The Petitioners then filed two separate Further Affidavits sworn by the 1 st Petitioner on 10/07/2025 and 8/02/2026, respectively, one in response to the Replying Affidavit and the other, in response to the Grounds of Opposition. I do not however deem it necessary to recount the contents of the two as they basically reiterate, in summary, the matters and contentions already advanced in the Supporting Affidavit.
Hearing of the Petition
8. The Petition was then canvassed by way of written Submissions. The Petitioners’ Submissions is dated 14/01/2026, while the 2 nd , 3 rd and 4 th Respondents’ joint Submissions is dated 9/03/2026.
9. As regards the 1 st Respondent ( DPP ), Prosecution Coinsel Ms. C. Muriithi handed over a copy of her Submissions in Court, dated 19/01/2026. I however notice that the Submissions has not been filed in the online Judiciary Case Tracking System (CTS) portal as required. I will nevertheless, in the interest of justice, consider the Submissions, but with strict directions that the same be now filed and uploaded in the CTS .
Petitioners’ Submissions
10. Mr. Mwinamo , Counsel for the Petitioners, in summary, submitted that although Section 193A of the Criminal Procedure Code allows civil and criminal proceedings to run concurrently, it does not permit abuse or oppression. According to him, the investigations against the Petitioners are speculative, unsupported by forensic evidence, and intended to intimidate, rather than to serve, the administration of justice. He also contended that, in compliance with procedural requirements, and the standards of pleading set out in the well-known case of Annarita Karimi Njeru v Attorney General [1979] eKLR , the Petitioners have sufficiently disclosed the parties to the infringement or violations, the nature of rights and freedoms infringed, and the particulars of injury. He also urged that the Petitioners have met the burden of proof as stipulated under Section 107 of the Evidence Act , that the Petitioners acted strictly in professional capacity, that criminalizing attestation without evidence undermines Advocate-Client privilege and independence of the Bar, and that allowing investigations to re-open the probate matters erodes confidence in the justice system. He argued further that although this matter is one where criminal proceedings have not been commenced, it is one where the risk of criminal proceedings hangs over the heads of the Petitioners, and he then prayed that the Petition be allowed with costs. Counsel also cited several authorities in support of her various limbs of Submissions.
1 st Respondent’s Submissions
11. Prosecution Counsel Ms. Muriithi , for the 1 st Respondent ( DPP ) on her part, set out the roles and mandate of the 1 st Respondent (prosecutorial and the National Police Service (investigatory and factfinding) in the criminal justice system, as set out in the Constitution and relevant statutes. She pointed out that, in accordance the law, once the 2 nd and 3 rd Respondents, upon conclusion of their investigations, shall forward their investigations file to the 1 st Respondent who is vested with the mandate to make the decision whether to charge or not, based on an independent review thereof. She restated that the 1 st Respondent is an independent constitutional office, and as set out in Article 157(10) , is not subject to the control of any person or authority, and its actions can only be challenged on the grounds of illegality, irrationality and procedural impropriety. According to Counsel, the Petition does not disclose a case against the 1 st Respondent since investigations have not been concluded and no recommendations have been made to the 1 st Respondent to charge, and that therefore the Petition is speculative, the apprehension unfounded, and the outcome of the investigations cannot be pre-empted by the Petitioners or by this Court. She also appreciated that Section 134(1) of the Evidence Act recognizes the principle Advocate-Client privilege but averred that as also recognized in the same provision, such privilege is not absolute where such communication was made in furtherance of an illegal purpose or where the Advocate discovers, in the course of his employment, facts showing that a crime or fraud has been committed.
12. She submitted further that should the investigations culminate in the arrest and arraignment of the Petitioners, their right to liberty will not be curtailed as the Constitution provides for release on reasonable bail or bond, and that the Petitioners have not demonstrated that they will not get a fair hearing as enshrined under Article 50 of the Constitution . Regarding the Petitioners’ questioning of the “undisclosed” evidence gathered, Counsel responded that the Petition is not a trial whereby the 1 st Respondent would be required to furnish the Court with all the evidence they intend to rely on, and that therefore, the Petition is framed with the ill-intention of inviting the Court to usurp the constitutional and statutory powers of the 1 st Respondent, which powers the Court should not interfere with. She submitted further that the allegation that the Succession proceedings went on smoothly with no objection being raised does not negate the possibility of the existence of criminal element as to how the Will was drafted. In the end, Counsel contended that the Petitioners have not demonstrated how their constitutional rights have been violated as required under the Annarita Karimi case ( supra ) standards. She, too, cited several authorities in support of her various limbs of Submissions.
2 nd , 3 rd and 4 th Respondent’s joint Submissions
13. State Counsel Ms. W. Cheruiyot , for the 2 nd , 3 rd and 4 th Respondent ( DPP ) on her part, submitted that the Petitioners have made mere allegations, and she, too, asserted that the Respondents are independent constitutional bodies vested with the mandate of investigating and recommending charges to the 1 st Respondent as stipulated under the Constitution and the National Police Service Act . She contended further that the investigations were properly initiated as a complaint was received and prima facie evidence was found, and that it is worth noting that the only contact that the 2 nd and 3 rd Respondents have had with the Petitioners is a phone-call inviting the Petitioners to attend their offices for the purpose of shedding light on the complaint. Counsel urged that the Petitioners have not demonstrated that any party was given preferential treatment to their disadvantage, and wondered how a mere phone call can be alleged to have stripped or violated the dignity of the Petitioners or their privacy, and termed the allegations of violation as premature. She refuted the allusion that the Petitioners were being prosecuted because of being Advocates, and contended that in any event, the mere fact that they are Advocates does not exonerate them from criminal culpability and that the law applies indiscriminately. Counsel urged further that there is no reason why the Petitioners should not appear before the 2 nd and 3 rd Respondents and respond to the allegations made against them, and contended that although investigations may cause an inconvenience and at times even embarrassing, it is not the business of the Court to shield one from the shame that comes with investigations. She reiterated that the Court does not have prosecutorial powers and cannot unnecessarily usurp the powers of the 1 st Respondent or direct it in any manner unless where the 1 st Respondent has violated the law, and stressed that in this case, the investigations are still ongoing. She, too, also cited several authorities in support of her various limbs of Submissions, and prayed that the Petition be dismissed.
Determination
14. The issue that calls for determination in this matter is “whether this Court should stop the ongoing criminal investigations and/or any consequent proceedings arising therefrom against the Petitioners, practicing Advocates, touching on the authenticity of the testamentary Will drafted by, or whose drafting involved the Petitioners, on the ground that such investigations infringe, or violate the Petitioners’ constitutional rights.”
15. On whether the Petition meets the threshold of a Constitutional Petition, the case of Anarita Karimi Njeru v Republic [1979 ] eKLR and re-affirmed in Kiambu County Tenants Welfare V Attorney General & Another [2017] eKLR , and also Mumo Matemo -vs- Trusted Society of Human Rights Alliance & 5 others (2013) eKLR , a Petitioner should set out with a reasonable degree of precision the provisions alleged to be infringed and the manner, nature and extent in and to which they are alleged to be infringed. Having carefully perused the Petition herein, I am satisfied that it does sufficiently set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.
16. In answering the said issue, I will start by restating that the 3 rd Respondent, the National Police Service (NPS) is established under Article 243 of the Constitution , while the office of the Inspector-General of the National Police Service which is the office that holds the command, superintendence, and direction over the NPS , is established under Article 245(1) . The Inspector-General of the National Police Service is an independent office with the power to investigate any offence in Kenya and in respect thereto, Article 245(4) provides as follows:
“(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) …………………………………………….”.
17. On the part of the National Police Service Act, Cap. 84, Section 24 then outlines its functions to include; (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and, (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
18. On the other hand, the Directorate of Criminal Investigations (DCI) is the specialized branch of the NPS tasked with gathering criminal intelligence and investigating complex or serious crimes.
19. On its part, the office of the Director of Public Prosecutions ( DPP ) is established under Article 157 of the Constitution and its mandate is provided in sub-articles (4), (6), (10) and (11) as follows:
“(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
(5) …………………………………………………………………………………..
(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;
……………………………………………………..
(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.”
20. From the foregoing, it is clear that the Respondents are not subject
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2. I captured the basis of the Petition in my said Ruling in the following terms:
“……. the Petitioners sought, basically, a declaration that their alleged intended criminal investigations and/or prosecution for alleged offences arising from their execution of their duties and instructions as Advocates, specifically in relation to the drawing, attestation and certification of the Last Will of one David Kiptoo Cheluget dated 1/07/2022, is unconstitutional and in violation of their fundamental rights and freedoms. Consequently, they have sought an order of prohibition barring the intended investigations or prosecution, award of damages, and costs of the Petition.”
3. Reproduced in specific detail, the orders sought in the Petition are as follows:
a) A declaration that the criminal investigations and intended prosecution of the Petitioners for any alleged offence arising from the 1st and 2 nd Petitioners’ execution of their duties and instructions as Advocates of the High Court of Kenya specifically in relation to the drawing and attestation of the Last Will and Testament of David Kiptoo Cheluget dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original would be unconstitutional unlawful, oppressive, an abuse of both the process of the Court and the criminal justice system, and in violation of the Petitioners fundamental rights and freedoms.
b) An Order of Prohibition prohibiting the Respondents, their agents, servants, or any other person acting on their behalf from undertaking any criminal investigations or prosecution of the Petitioners in relation to any alleged offence arising from the 1st and 2 nd Petitioners' execution of their duties and instructions as Advocates of the High Court of Kenya, specifically concerning the drawing and attestation of the Last Will and Testament of David Kiptoo Cheluget dated 1st July 2022, as well as the 3rd Petitioner's certification of a copy of the said Will as a true copy of the original.
c) An order directing the Respondents to jointly and severally compensate the Petitioners for the infringement of their constitutional rights, including but not limited to general damages for emotional distress, reputational damage, and an, financial losses incurred as a result of the Respondents' unlawful actions.
d) An order awarding the costs of this Petition to the Petitioners, to be borne by the Respondents.
e) Such further or other relief as this Honourable Court may deem just and appropriate to grant in the circumstances including measures to prevent future violations of a similar nature by the Respondents.
4. The Petition is supported by the lengthy 39-paragraph Affidavit sworn by the 1 st Petitioner, Mr. Wilson Kiplagat Kalya , a well-known Senior Advocate. I however note that the Affidavit, save for the conclusion part, is a word-by-word replica of the earlier Affidavit sworn in support of the Application whereof the Petitioners had sought and obtained the conservatory orders. For that reason, I will recount the contents of the Affidavit by simply narrating it in the manner by which I recited it in my earlier Affidavit as follows:
“3. …………… He deponed that the Petitioners are Advocates practicing in the style and name of Messrs Kalya & Co. Advocates, that on or about 01/07/2022, acting upon the instructions of David Kiptoo Cheluget (Deceased), he prepared the latter’s Last Will and Testament which was then executed by the deceased-testator and attested by 3 witnesses, namely himself, the 2 nd Petitioner, and one Claire Nyambura Karuga Advocate, who was then a member of his firm but has since left and joined the Office of the Director of Public Prosecutions. He urged that he took all necessary steps to ensure that the legal formalities for the preparation, execution, and attestation of the Will were adhered to, particularly, that the deceased, although personally known to him for over 3 decades, and having acted as his Legal Counsel in various matters over those years, nevertheless formally identified himself by presenting his original National Identity Card, ensured that the Will was drafted in accordance with the instructions and wishes of the deceased, he confirmed that the deceased fully understood the nature and contents of the Will before appending his signature, personally witnessed the deceased sign the Will in his presence, the presence of the 2 nd Petitioner, and the said Claire Nyambura Karuga, all of whom were present at the same time and attested to the execution as witnesses.
4. He deponed that he confirmed, based on his professional assessment as a Legal Practitioner of 36 years, that the deceased was of sound mind and acted voluntarily, without any undue influence, coercion, or duress, and that this conclusion is grounded in the conversations he had with the deceased, during which the deceased lucidly articulated his intentions, provided clear instructions, and demonstrated a thorough understanding of the nature and consequences of the Will, specifically, he engaged the deceased in discussions to ascertain his comprehension of the document, his awareness of the beneficiaries named, and his reasons for distributing his estate in the manner set out in the Will. He urged that in his professional judgment, informed by decades of experience in drafting and executing Wills, the deceased was fully competent and acting of his own free will. He deponed further that the deceased died on 15/06/2024, that in the Will, the testator appointed Hellen Chepkoech Cheluget, Geoffrey Kipkemboi Rono and John Kibiy Koskei as executors of his estate, who then filed Eldoret High Court Probate and Administration Cause No. E111 of 2024, in which the Petition was advertised in the Kenya Gazette on 4/10/2024 under Notice No. 12918, the Grant of Probate was issued to the executors and confirmed on 7/02/2025, and that to date, no individual has filed any application challenging the authenticity of the Will, its contents, or the manner in which it was executed, or its validity.
5. He then contended that on 6/02/2025, an individual identifying himself as Mr. Kuloba, a police officer attached to the 2 nd Respondent based at the Directorate of Criminal Investigations (DCI) in Nairobi, contacted him via phone and informed him that he was required to record a statement regarding a matter in which the Petitioners and the said Claire Nyambura Karuga are being investigated as potential suspects in connection with the alleged forgery of the same Last Will referred to above, that he later received a formal letter from the 1 st Respondent to the same effect, which informed them that they were required to present themselves to record statements in relation to the matter, and that upon making further inquiries, he was informed that an undisclosed complainant had lodged a complaint with the 2 nd Respondent, alleging that the said Will had been forged. He contended that the allegation of forgery of the Will automatically and logically implicates him and the 2 nd Petitioner as potential suspects and persons under investigation, given their roles as the Advocates who prepared and attested to the execution of the Will, that this is despite the fact that the Will was drawn and executed in strict compliance with the law and in accordance with the instructions of the deceased, as confirmed by the due process followed during its preparation and attestation. He stated that by lodging a complaint with the 1 st and 3 rd Respondents challenging the validity of the Will without first contesting the same before the Probate Court in Eldoret High Court Probate and Administration Cause No. E1l1 of 2024, aforesaid, the complainant is seeking to gain a collateral and unfair advantage in his potential future applications in the Probate matter, that this is being done by instigating harassment of the Petitioners, which conduct is not only an abuse of the legal process but also undermines the integrity of the Probate proceedings, which has already confirmed the validity of the Will.
6. He added that by bypassing the Probate Court and initiating criminal investigations, the complainant and the 2 nd and 3 rd Respondents are attempting to exert undue pressure and prejudice on the Petitioners, thereby subverting the proper administration of justice, the decision by the Respondents to initiate parallel criminal investigations against them with the intention of charging them on the alleged forgery of the signature of the deceased, is unlawful, oppressive, and constitutes an abuse of the Court process and the criminal justice system, as well as a violation of their fundamental rights under the Constitution and this Court ought to restrain such improper, and collateral use of the justice system. He observed that the letter issued by the DCI on 7/02/2025 erroneously included the 3 rd Petitioner, falsely alleging her involvement in attesting to the Will, yet the 3 rd Petitioner neither attested to the said Will nor was she an admitted Advocate of the High Court as of 1/07/2022, and her role was strictly limited to certifying the Will as a true copy of the original.
7. He therefore urged that the decision to prosecute is oppressive, considering that the Petitioners acted solely in their professional capacity in drawing the Will as per instructions received, that they have no proprietary or beneficial interest in the estate of the deceased, their actions were purely undertaken in a professional capacity upon receipt of instructions and payment of legal fees, and that the 2 nd and 3 rd Respondents initiated investigations based on unfounded allegations without prima facie evidence, amounting to a fishing expedition and violating the principles of natural justice, that the intended prosecution is actuated by an ulterior motive, the invocation of the criminal process by the Respondents is intended to intimidate and interfere with the Petitioners’ role as key witnesses in the ongoing Probate suit, it is designed to humiliate and embarrass the Petitioners rather than to further the interests of justice, it is based on extraneous considerations, and is not driven by the pursuit of justice, is a calculated misuse of the criminal justice system to unlawfully interfere with an ongoing probate dispute pending before a Court of competent jurisdiction, and it is vexatious, and contrary to the principles of fair play.
8. He deponed further that the actions of the Respondents in subjecting Advocates who attested to the Will to unwarranted criminal investigations constitute intimidation of legal practitioners, violating the protections afforded under the Advocates Act, and undermining the independence of Advocates in discharging their professional obligations without fear of retribution, which actions have compromised the sanctity of Advocate-client privilege, a cornerstone of the legal profession, thereby eroding public confidence in the legal system. He contended further that the Respondents, being public bodies, are bound by the national values and principles of governance as enshrined in Article 3(1) and 10 of the Constitution, which principles have been disregarded in this instance. He averred that the decision to subject the Petitioners to criminal investigations and possible prosecution is thus outrightly illegal, unlawful, and unconstitutional, as they will be greatly prejudiced and will suffer irreparable harm and damage if the intended prosecution proceeds, as their reputation will be unjustifiably tarnished, and their dignity severely compromised ………..”.
Responses by the Respondents
5. In opposing the Petition, the 1 st Respondent, the Director of Public Prosecutions (DPP ), filed the Grounds of Opposition dated 19/01/2026. It was urged therein that the Petitioners have misapprehended the provisions of Article 157(6) and (11 ) of the Constitution , and that they have failed to demonstrate how the 1 st Respondent has threatened or violated the Constitution. It was urged further that the Petition is unripe and speculative, and that the Petitioners have failed to meet the requirements of Section 107 of the Evidence Act that “ he who alleges must prove ”.
6. On their part, the 2 nd , 3 rd and 4 th Respondents, all represented by the Hon. Attorney General , had earlier filed the Replying Affidavit sworn on 4/04/2025 by one Patrick Kuloba , who described himself as an Officer of the National Police Service (NPS ) of the rank of Corporal working at the Directorate of Criminal Investigations (DCI) . It is that same Affidavit that was relied on in opposing the now spent Application for conservatory orders. There being no other or further Replying Affidavit filed or uploaded by any of the Respondents in the Judiciary Case Tracking System (CTS ) online portal in this matter, I presume that the same Affidavit is the same one again relied upon by the 2 nd , 3 rd and 4 th Respondents in opposing the Petition. Since I had, in my said earlier Ruling, already recounted the contents of the Affidavit, I will also simply reproduce the narration I made thereon in the Ruling as follows:
“9. …... He deponed that they received a letter dated 4/12/2024 from a firm known as Glascote Rose requesting them to conduct investigations in respect to the Last Will and Testament of the late David Kiptoo Cheluget on allegations that the Will is a forgery.
10. He deponed that the reasons given for the allegation of forgery was that the signature thereon is different from the signatures the deceased was previously using, that the deceased suffered glaucoma leading to vision loss as a result any documents he signed post-2020 were by way of thumbprint, that the deceased made funeral and last expense wish in his Will that were not disclosed before his funeral, that the Petitioners’ law firm had sought an out of Court settlement in respect to a suit property, as such had there been a Will there would be no reason for settlement, and that the deceased, in an Affidavit, swore that he is a joint owner of the parcel of land No. LR Uasin Gishu/Koimet Scheme 57, and would not have indicated in his Will that he is the sole owner. He deponed further that the complainant's Advocates attached to the said letter a statement from one Abraham Kipruto Cheluget and Mike Cheluget, copies of the Will dated 1/07/2022, letters dated 3/07/2024 and 14/07/2024, and email dated 15/07/2024 in support of their averments, that on a cursory look at the attached samples of signatures of the deceased on the documents provided, more specifically the pleadings in respect to Eldoret ELC No. 115 of 2020; David Kiptoo Cheluget V Abraham Kipruto Cheluget, they noted a discrepancy in the signatures, and have also noted that indeed the deceased may have used a thump-print in the year 2020, and the documents are yet to be subjected to further examinations and forensic analysis, and that before then, they needed to hear from the Petitioners to enable them obtain more information in respect to the issue, and make an informed decision on the way forward.
11. He added that on 9/01/2025, one of the complainants, Mike Kipkorir Cheluget, attended their chambers and recorded a statement to wit that the Will drafted by the Petitioners’ law firm is a forgery, and reiterated the grounds advanced through the letter dated 4/12/2024, and that as a consequence, they decided that they needed to hear from the Petitioners whom they summoned to attend their offices for the purpose of hearing their side of the story and conducting further investigations into the matter. He maintained that there is no law barring the commencement of criminal investigations at any point, that the Succession Court did not look into the issue of forgery, and even if it did so, the ends meant to be achieved in civil proceedings is not similar to the remedies in criminal proceedings, and that criminal and civil proceedings in respect to the same subject matter can proceed simultaneously. He denied that they have harassed the Petitioners, and pointed out that all they have done is to call the Petitioners and inform them to attend their offices for the purposes of “shedding more light” on the allegations put forth by the complainants, and that as they were waiting for them to come at their convenient time they were served with these constitutional proceedings.
12. According to him, these proceedings were only initiated after a complaint was made with the police, whose mandate under the Constitution and under the National Police Service Act is to receive such complaints, conduct investigations and, where necessary, recommend prosecution to the Director of Public Prosecutions (DPP). He contended further that the manner in which the investigations have been carried out so far including informing the Petitioners of the complaint and requesting them to attend their offices to respond thereto does not violate any provisions of the Constitution, and that the investigations have been conducted in good faith and in pursuit of justice with no intention whatsoever to intimidate, humiliate, harass, embarrass and or interfere with ongoing probate proceedings.”
Petitioner’s Further Affidavits
7. The Petitioners then filed two separate Further Affidavits sworn by the 1 st Petitioner on 10/07/2025 and 8/02/2026, respectively, one in response to the Replying Affidavit and the other, in response to the Grounds of Opposition. I do not however deem it necessary to recount the contents of the two as they basically reiterate, in summary, the matters and contentions already advanced in the Supporting Affidavit.
Hearing of the Petition
8. The Petition was then canvassed by way of written Submissions. The Petitioners’ Submissions is dated 14/01/2026, while the 2 nd , 3 rd and 4 th Respondents’ joint Submissions is dated 9/03/2026.
9. As regards the 1 st Respondent ( DPP ), Prosecution Coinsel Ms. C. Muriithi handed over a copy of her Submissions in Court, dated 19/01/2026. I however notice that the Submissions has not been filed in the online Judiciary Case Tracking System (CTS) portal as required. I will nevertheless, in the interest of justice, consider the Submissions, but with strict directions that the same be now filed and uploaded in the CTS .
Petitioners’ Submissions
10. Mr. Mwinamo , Counsel for the Petitioners, in summary, submitted that although Section 193A of the Criminal Procedure Code allows civil and criminal proceedings to run concurrently, it does not permit abuse or oppression. According to him, the investigations against the Petitioners are speculative, unsupported by forensic evidence, and intended to intimidate, rather than to serve, the administration of justice. He also contended that, in compliance with procedural requirements, and the standards of pleading set out in the well-known case of Annarita Karimi Njeru v Attorney General [1979] eKLR , the Petitioners have sufficiently disclosed the parties to the infringement or violations, the nature of rights and freedoms infringed, and the particulars of injury. He also urged that the Petitioners have met the burden of proof as stipulated under Section 107 of the Evidence Act , that the Petitioners acted strictly in professional capacity, that criminalizing attestation without evidence undermines Advocate-Client privilege and independence of the Bar, and that allowing investigations to re-open the probate matters erodes confidence in the justice system. He argued further that although this matter is one where criminal proceedings have not been commenced, it is one where the risk of criminal proceedings hangs over the heads of the Petitioners, and he then prayed that the Petition be allowed with costs. Counsel also cited several authorities in support of her various limbs of Submissions.
1 st Respondent’s Submissions
11. Prosecution Counsel Ms. Muriithi , for the 1 st Respondent ( DPP ) on her part, set out the roles and mandate of the 1 st Respondent (prosecutorial and the National Police Service (investigatory and factfinding) in the criminal justice system, as set out in the Constitution and relevant statutes. She pointed out that, in accordance the law, once the 2 nd and 3 rd Respondents, upon conclusion of their investigations, shall forward their investigations file to the 1 st Respondent who is vested with the mandate to make the decision whether to charge or not, based on an independent review thereof. She restated that the 1 st Respondent is an independent constitutional office, and as set out in Article 157(10) , is not subject to the control of any person or authority, and its actions can only be challenged on the grounds of illegality, irrationality and procedural impropriety. According to Counsel, the Petition does not disclose a case against the 1 st Respondent since investigations have not been concluded and no recommendations have been made to the 1 st Respondent to charge, and that therefore the Petition is speculative, the apprehension unfounded, and the outcome of the investigations cannot be pre-empted by the Petitioners or by this Court. She also appreciated that Section 134(1) of the Evidence Act recognizes the principle Advocate-Client privilege but averred that as also recognized in the same provision, such privilege is not absolute where such communication was made in furtherance of an illegal purpose or where the Advocate discovers, in the course of his employment, facts showing that a crime or fraud has been committed.
12. She submitted further that should the investigations culminate in the arrest and arraignment of the Petitioners, their right to liberty will not be curtailed as the Constitution provides for release on reasonable bail or bond, and that the Petitioners have not demonstrated that they will not get a fair hearing as enshrined under Article 50 of the Constitution . Regarding the Petitioners’ questioning of the “undisclosed” evidence gathered, Counsel responded that the Petition is not a trial whereby the 1 st Respondent would be required to furnish the Court with all the evidence they intend to rely on, and that therefore, the Petition is framed with the ill-intention of inviting the Court to usurp the constitutional and statutory powers of the 1 st Respondent, which powers the Court should not interfere with. She submitted further that the allegation that the Succession proceedings went on smoothly with no objection being raised does not negate the possibility of the existence of criminal element as to how the Will was drafted. In the end, Counsel contended that the Petitioners have not demonstrated how their constitutional rights have been violated as required under the Annarita Karimi case ( supra ) standards. She, too, cited several authorities in support of her various limbs of Submissions.
2 nd , 3 rd and 4 th Respondent’s joint Submissions
13. State Counsel Ms. W. Cheruiyot , for the 2 nd , 3 rd and 4 th Respondent ( DPP ) on her part, submitted that the Petitioners have made mere allegations, and she, too, asserted that the Respondents are independent constitutional bodies vested with the mandate of investigating and recommending charges to the 1 st Respondent as stipulated under the Constitution and the National Police Service Act . She contended further that the investigations were properly initiated as a complaint was received and prima facie evidence was found, and that it is worth noting that the only contact that the 2 nd and 3 rd Respondents have had with the Petitioners is a phone-call inviting the Petitioners to attend their offices for the purpose of shedding light on the complaint. Counsel urged that the Petitioners have not demonstrated that any party was given preferential treatment to their disadvantage, and wondered how a mere phone call can be alleged to have stripped or violated the dignity of the Petitioners or their privacy, and termed the allegations of violation as premature. She refuted the allusion that the Petitioners were being prosecuted because of being Advocates, and contended that in any event, the mere fact that they are Advocates does not exonerate them from criminal culpability and that the law applies indiscriminately. Counsel urged further that there is no reason why the Petitioners should not appear before the 2 nd and 3 rd Respondents and respond to the allegations made against them, and contended that although investigations may cause an inconvenience and at times even embarrassing, it is not the business of the Court to shield one from the shame that comes with investigations. She reiterated that the Court does not have prosecutorial powers and cannot unnecessarily usurp the powers of the 1 st Respondent or direct it in any manner unless where the 1 st Respondent has violated the law, and stressed that in this case, the investigations are still ongoing. She, too, also cited several authorities in support of her various limbs of Submissions, and prayed that the Petition be dismissed.
Determination
14. The issue that calls for determination in this matter is “whether this Court should stop the ongoing criminal investigations and/or any consequent proceedings arising therefrom against the Petitioners, practicing Advocates, touching on the authenticity of the testamentary Will drafted by, or whose drafting involved the Petitioners, on the ground that such investigations infringe, or violate the Petitioners’ constitutional rights.”
15. On whether the Petition meets the threshold of a Constitutional Petition, the case of Anarita Karimi Njeru v Republic [1979 ] eKLR and re-affirmed in Kiambu County Tenants Welfare V Attorney General & Another [2017] eKLR , and also Mumo Matemo -vs- Trusted Society of Human Rights Alliance & 5 others (2013) eKLR , a Petitioner should set out with a reasonable degree of precision the provisions alleged to be infringed and the manner, nature and extent in and to which they are alleged to be infringed. Having carefully perused the Petition herein, I am satisfied that it does sufficiently set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.
16. In answering the said issue, I will start by restating that the 3 rd Respondent, the National Police Service (NPS) is established under Article 243 of the Constitution , while the office of the Inspector-General of the National Police Service which is the office that holds the command, superintendence, and direction over the NPS , is established under Article 245(1) . The Inspector-General of the National Police Service is an independent office with the power to investigate any offence in Kenya and in respect thereto, Article 245(4) provides as follows:
“(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) …………………………………………….”.
17. On the part of the National Police Service Act, Cap. 84, Section 24 then outlines its functions to include; (a) provision of assistance to the public when in need; (b) maintenance of law and order; (c) preservation of peace; (d) protection of life and property; (e) investigation of crimes; (f) collection of criminal intelligence; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and, (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.
18. On the other hand, the Directorate of Criminal Investigations (DCI) is the specialized branch of the NPS tasked with gathering criminal intelligence and investigating complex or serious crimes.
19. On its part, the office of the Director of Public Prosecutions ( DPP ) is established under Article 157 of the Constitution and its mandate is provided in sub-articles (4), (6), (10) and (11) as follows:
“(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
(5) …………………………………………………………………………………..
(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;
……………………………………………………..
(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.”
20. From the foregoing, it is clear that the Respondents are not subject
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