' 1. By a Notice of Motion dated 6/02/2025, the Petitioners/Applicants seek orders that:
1) Spent.
2) Spent.
3) Spent.
4) The Respondents be restrained from arresting and prosecuting the Petitioners/Applicants herein or in any way interfering with their liberty pending the hearing if the Petition.
5) There be stay of the proceedings in Eldoret CMCRC No.E216 of 2015 pending the hearing of the instant Petition.
6) Costs of the Application be awarded to the Petitioner/Applicants.
2. The application is premised on the grounds set out on the face of the motion and the facts deponed in the Supporting Affidavit sworn by Margaret Jemutai Kangogo, the 1st Petitioner/Applicant herein.
3. The 1st Applicant deposed that the 5th Respondent was the registered proprietor on land parcel number Eldoret Municipality Block 13/31 but abandoned its possession and that subsequently, they acquired an interest over the abovementioned parcel of land under the doctrine of adverse possession after the lapse of the 12 year period envisaged under the Limitations of Act. That they moved to the Honourable Court on 25th January 2023 vide Eldoret CMCC E&L Case No.12 of 2023 (OS) Zendera Kiplagat Biwott & Another Vs. Kanika Nitin Amin, seeking a declaration in their favour as having acquired a legal interest on the subject parcel of land and that the Honourable Court heard the above-mentioned matter and issued a Decree in their favour against the 5th Respondent herein on 9th May 2023.
4. That thereafter they registered the Decree with the County Land Registrar to facilitate endorsement of the court''s declaration on the Parcel Register. That the 5th Respondent was aggrieved by the court''s decision and she lodged an Application dated 14th March 2024 seeking to set aside the Decree and the said application is pending hearing and determination by the Court. Additionally, the 1st Applicant deposed that the 5th Respondent, sensing a dismissal of her Application proceeded to lodge a complaint with the Directorate of Criminal Investigations against the applicants in a bid to harass, blackmail and intimidate them.
5. That as a consequence, they were summoned to the Kapsaret Sub-County Criminal Investigation Office at Langas Police Station to record Statements and that while at the Police Station, the 5th Respondent gave a condition to the investigating officers that she will only withdraw the complaint if the Applicants accede to her Application for setting aside of the Decree and forfeit their rights over the subject parcel of land.
6. The 1st Applicant deposed that the Respondents then moved behind their backs and sought for Warrants of Arrest vide Eldoret CMCRC No. E216 of 2025, creating an impression that they had declined to attend Court and that this points to an ulterior motive on the part of the Respondents herein and further that the Respondents'' decision to seek Warrants of Arrest against them is aimed at poisoning the trial court''s mind against them in order to deprive them of our right to bail/bond.
7. The 1st Applicant further deposed that it is evident that the Respondents are hell-bent to further their malice in the matter and trample on their rights by manipulating the criminal trial process and that their actions are informed by the misconception that their arrest and prosecution could easily put pressure on them to give up on their rights to the subject parcel of land and further that the Respondents have on several occasions expressly indicated to them that they don''t care if the criminal proceeding lead to a conviction but are only keen on using the same to teach them a lesson which points to the malice on the part of the Respondents and that this therefore calls for the intervention of this Honourable Court.
8. The 1st Respondent maintained that there is an imminent risk that they will be arrested and subsequently prosecuted on tramped up charges thereby depriving them of a level playing field in the prosecution of the land case before the Magistrate''s court.
9. The 1st Applicant further deposed that the Prosecution and Police powers are public resources which should not be abused to settle personal scores, least of all land disputes and that the intention to found criminal prosecution on civil proceedings will have a negative impact on the sanctity of the judicial processes. Further, the fact that the Petitioners will have a right to defend themselves in the criminal trial cannot sufficiently ameliorate the harm that would have been caused to them by their arrest and prosecution.
10. That their arrest and prosecution will severely taint their reputation noting that some of their friends, family members, acquaintances and associates may never quite understand what transpired even after an acquittal by the criminal court. Additionally, the 1st Applicant deposed that there is an effective opportunity for the 5th Respondent to contest their claim to the suit land through the civil law processes and there is no compelling reason to invoke the criminal law processes and if the criminal process is allowed to continue, the Respondents will effectively steal the match from them.
11. In the end, the 1st Applicant deposed that the Respondents have acted in a manner that will infringe on their fundamental rights and freedoms hence the need to put the criminal proceedings in abeyance pending determination of the Constitutional Petition to safeguard the integrity of the criminal justice system.
Response
12. The Application is opposed by the 5th Respondent vide her Replying Affidavit sworn on 25th March 2025. She deposed that she is the registered owner of Eldoret Municipality Block 12/31. That she learnt of the adverse possession proceedings taken out by the Petitioners/Applicants over the suit property in Eldoret Chief Magistrates Court vide Environment and Land Matter No. E012 of 2023, with shock and she made a report/complaint to the 3rd Respondent to investigate the same. She stated that she is aware that the investigations were undertaken by the police and they recommended charges against the Petitioners/Applicants.
13. The 5th Respondent maintained that she has no capacity to investigate, arrest and charge the Petitioners/Applicants herein hence the orders sought against her cannot legally issue. The 5th Respondent deposed that there is no law that has been cited that bars the police from undertaking investigations following complaints from Kenyan citizens, arresting and preferring charges against any suspect.
14. She maintained that the depositions made by the Petitioners/Applicants in the matter pending before the Chief Magistrate''s court are all false and/or full of lies as the decree was set aside and therefore the Petitioners/Applicants ought to account for their actions.
15. The 5th Respondent further deposed that the instant petition and application before the court are an abuse of the court process and should not be entertained. That the grant of the orders sought in the application and the petition will not only defeat the course of justice but will also enable and promote illegal acts by individuals such as the Petitioners/Applicants herein and that if at all the Petitioners/Applicants are innocent and/or are not liable as they claim, then they should allow the criminal proceedings to proceed and they will have an opportunity during the hearing to give evidence that will exonerate them from blame and/or demonstrate their innocence.
16. That consequently, the criminal proceedings commenced should proceed to its logical conclusion so as to allow the trial court to make a decision with regard to the charges preferred against the Petitioners/Applicants following the intensive investigations undertaken by the 3rd Respondent. The 5th Respondent maintained that as much as the Petitioners/Applicants claim that their right to freedom is likely to be violated, her right to property which the Petitioners/Applicants have violated is equally important hence the need to have the criminal proceedings progress to conclusion.
17. According to the 5th Respondent, the move by the Petitioners/Applicants in the instant petition and application is intended to misuse the powers of this court and which move she asks the court to strongly frown at by denying the orders sought. Additionally, the 5th Respondent deposed that there is no evidence of any violation of the Petitioners/Applicants rights to warrant this court''s intervention for reasons that in any event, prosecution of a suspect cannot by any stretch of imagination be said to be a violation unless evidence in that regard is demonstrated.
18. The 1st to 4th Respondents did not file responses to the application.
Submissions
19. The Application was canvassed vide written submissions. The Petitioners/Applicants filed submissions dated 2nd May 2025 while the 5th Respondent filed submissions dated 14th February 2025.
The Petitioners’/Applicants’ Submissions
20. Counsel for the Petitioner submitted that this Court has the power to grant conservatory orders at any stage of the proceedings by virtue of Article 23(3) of the Constitution. Counsel added that the circumstances under which the Court will grant conservatory orders were discussed by Odunga J. in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR.
21. Counsel urged that it is evident that the intended prosecution finds its basis in a land dispute between the Petitioners and the 5th Respondent. Counsel also relied on case of Bundid & Another v Ministry of East African Community (EAC), the Asals and Regional Development & 3 Others (Petition E002 of 2024) [2024] eKLR, with regard to the principles that guide the grant of conservatory orders.
22. Regarding a prima facie case, Counsel submitted that the Respondents'' are seeking to arrest and prosecute the Petitioners with respect to a dispute over a parcel of land that is pending before the Court in Eldoret CMCELC Case NO. E012 OF 2023 (OS).
23. Counsel urged that this action by the Respondents is a clear disregard of the doctrine of sub judice in view of the facts the charges proffered against the accused are still contested facts before the Land Court. Counsel maintained that the decision to arrest and prosecute the Petitioners is malicious noting that the criminal justice system is being abused to address what is purely a civil dispute. According to Counsel it is unfair that the state agencies are allowing the 5th Respondent to abuse state machinery for her selfish interests. Counsel relied on the Court of Appeal decision in Soy Developers Limited & 5 Others v Cyrus Shakhalaga Khwa Jirongo & 7 Others; Soy Developers Limited & 4 others (Interested Parties) [2019] eKLR wherein the court reiterated the grounds upon which criminal prosecutions may be prohibited.
24. Counsel further submitted that the that the malice with which is the basis of the prosecution of the Applicants by the 5th Respondent can be gleaned from the attitude portrayed by the 5th Respondent at paragraph 12 of her response. Counsel submitted that in the case of Maina & 4 others v Director of Public Prosecutions & 4 Others (Constitutional Petition No. E106 & 160 of 2021 (Consolidated)) [2022] the Court gave the circumstances in which a court could block concurrent civil and criminal proceedings.
25. Counsel urged the Court to look at the conduct of the Respondents who moved behind the back of the Petitioners and sought warrants of Arrest vide the Eldoret CMCR NO. E216 OF 2025 by creating an impression that they had declined to attend court and submits that this points to an ulterior motive on their part. Counsel further submitted that this was aimed at poisoning the trial court''s mind against the Petitioner in order to deprive them of their right to bail and bond.
26. Counsel observed that it is in a situation like this that the Court had in mind when it held in the case of Kuria & 3 others v Attorney General [2002]2 KLR 69 that:
"The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform....here the prosecution is an abuse of the process of court as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and or prohibiting prosecutions brought to bear for ulterior and extraneous considerations."
27. Counsel pointed out that the 5th Respondent has argued that if the Petitioners are innocent as they claim, they should allow the criminal proceedings to proceed and they will have an opportunity during hearing to give evidence that will exonerate them from blame. Counsel however submitted that this is a violation of the Petitioners fundamental rights enshrined under the Constitution and several internal human rights instruments. Counsel added that the fact that one will have a chance to defend oneself does not obviate the need to protect innocent person from being dragged through unnecessary criminal trial. Counsel urged the Court to consider the decision in R. vs. The Judicial Commission into the Goldenberg Affair and 2 Others Exparte Saitoti HC Misc Appl.102 of 2006 where it was stated that the Court has a constitutional duty to ensure that a flawed threatened trial is stopped in its tracks if it is likely to violate any of the applicants'' fundamental rights.
28. Counsel cited the holding in Republic v Attorney General Ex parte Kipngeno Arap Ngeny (2001) to further submit that the 5th Respondent act of giving a condition before the investigation officer while at the Langas Police Station, that she will only withdraw the complaint should the Applicant’s accede to her Application for setting aside and forfeit their rights over the subject parcel of land is a clear contravention to their rights as protected under Article 40 of the Constitution. The court stated therein as follows;
"It is an affront to our sense of justice as a society to allow the prosecution of individuals on flimsy grounds. Although in this application we cannot ask the Attorney General to prove the charge against the accused, there must be shown some reasonable grounds for mounting a criminal prosecution against an individual. There must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will achieve nothing more than embarrass the individual and put him to unnecessary expense and agony. The Court may, in a proper case, scrutinize the material before it and if it is determined that no offence has been disclosed, issue a prohibition halting the prosecution."
29. Counsel urged that the Respondents will steal the match from the Petitioners should they be allowed to prosecute them before the conclusion of the Land Case in view of the fact that the intended arrest and arraignment is unconstitutional and lacks proper factual and legal basis. Counsel submitted that in fact the Court Order annexed by the 5th Respondent shows that the Honourable Court directed for the matter to start denovo in order for the Court effectually and completely adjudicate upon and settle all matters involved in the suit as there was a third party who was also seeking rights over the same property. Counsel relied on the decision in Republic v Director of Public Prosecutions & another ex parte Patrick Ogola Onyango & 8 others [2016] eKLR, where the Court stated that a prosecution which lacks a foundational basis must not be allowed to stand.
30. Counsel maintained that the Petitioners have not in any way misled this court since the Court Order annexed by the 5th Respondent was pursuant to an Application lodged by an Intended Interested Party who wanted to be joined as a party to the suit and not pursuant to an Application lodged by the 5th Respondent and that in any case a Court setting aside a Judgment/Decree is not a criminal indictment against the parties to the suit. Counsel added that the parameters for determination of disputes in civil courts are different from the parameters to be considered in a criminal court and that a claim in a civil court does not in away amount to a criminal offence however frivolous a suit can be deemed to be.
31. On the submission that prosecution and police powers are public resources which should not be abused to settle personal scores, least of all land disputes, Counsel cited Article 157(11) of the Constitution of Kenya in support thereof and urged the Court to return a finding that the Petitioners have established a prima-facie case with an intervention through a grant of the prayers sought in the instant Application. Counsel maintained that without a rebuttal to the facts alluded by them, then they have certainly disclosed a prima facie case as envisaged in the case of David Ndii & others v Attorney General & others [2021] eKLR.
32. On the issue that the Petitioners will suffer prejudice, Counsel submitted that the entire Petition will be rendered nugatory should the arrest and prosecution occur before its hearing and determination noting that the Petitioners cannot be adequately compensated for the harm that would have been caused to them by the arrest and prosecution. Counsel urged the Court be persuaded by the decision in Ongaga v County Assembly of Nyamira & Another (Petition E001 of 2023) [2023] eKLR where the Court opined as follows;
“On whether failure to grant the orders sought would render the Petition nugatory, I find that as correctly argued by Counsel for the Applicant, it would be absurd for this Court to litigate on issues concerning the impeachment process while the same process is at the same time proceeding. The obvious outcome of such a scenario is that the hearing of the Petition will be an exercise in futility because the nature of the subject matter will have been redefined by the ongoing impeachment process. On the other hand, should the Court arrive at a finding that the process was flawed, it would result in a state of confusion where the County Government may already be having another person occupying in the Applicant''s position. My take is that in order to avoid such a convoluted outcome, the proper direction is for this Court to preserve the substratum of the main Petition so that the subsequent proceedings are not rendered otiose."
33. Counsel urged that the Respondents have acted in a manner that will infringe the fundamental rights and freedoms of the Applicant’s hence the need to put the criminal proceedings in abeyance pending the hearing and determination of the Constitutional Petition to safeguard the integrity of the Criminal Justice system. Counsel relied on the holding by the Court of Appeal in David Munie Riunge v Dr. Ernest Muinde Kioko and another (2023) eKLR.
34. Counsel further submitted that the intended arrest and prosecution will adversely affect the reputation of the Petitioners in the eyes of their friends, neighbours and business associates hence the need or an urgent intervention of this Honourable Court. Counsel added that the arrest and prosecution will taint the reputation of the Petitioners in the eyes of their friends and family members, acquaintances and associates who may never understand what transpired even after an acquittal by the criminal court.
35. Counsel maintained that on the contrary, the 5th Respondent will have an effective opportunity to contest her claim to the suit land through civil process and there is no compelling reason to invoke the criminal law process. Counsel relied on the case of Shah Munge & Partners Ltd v National Social Security Fund Board of Trustees & 3 others, Civil Application No.211 of 2016.
36. In conclusion, Counsel submitted that it is important for this Honourable Court to take cognizance of the fact that based on the conduct of the Respondents, there is a high likelihood that they are hell bent to further their malice in the criminal proceedings and trample on the rights of the Petitioners by manipulating the criminal trial process. Counsel maintained that there is a high likelihood that the Petitioners will be arrested and prosecuted on tramped up charges thereby depriving them of a level playing field on the resolution of the land dispute.
The 5th Respondent’s Submissions
37. Counsel for the 5th Respondent on his part submitted that the Petitioners/Applicants have not met the conditions for the grant of the said orders. He cited the case of Law Society of Kenya vs. Office of the Attorney General & Another, Judicial Service Commission (Interested Party) [2020] eKLR and the case of Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another [2016] eKLR. Counsel submitted that the Petitioners/Applicants have not met and/or satisfied and/or attempted to demonstrate any of the above conditions to warrant the grant of the orders sought.
38. On whether the Petitioners/Applicants have established a prima facie case with a likelihood of success, Counsel submitted that the Petitioners/Applicants have failed to demonstrate that they have a prima facie case with a likelihood of success. He submitted that in the case of Mrao Limited Vs- First American Bank of Kenya and 2 others, the Court of Appeal while defining what a prima facie case is to be construed to be held that ;
"...a prima facie case in a civil application includes but not limited to a genuine and arguable case. It is a case which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later..."
39. Counsel pointed out that the Petitioners/Applicants have in the application and the Petition alleged that the Respondents have disregarded the doctrine of sub judice by commencing criminal proceedings during the pendency of the civil case before the Environment and Land Court. Counsel urged that this position is misplaced and unfounded in law for reasons that Section 193 A of the Criminal Procedure Code CAP 75 Laws of Kenya allows for criminal proceedings to be commenced even where there are civil proceedings pending before the court.
40. Counsel further submitted that while discussing the import of section 193A of the Criminal Procedure Code, the Court of Appeal in the case of Lalchand Fulchand Shah -Vs-Investments & Mortgages Bank Limited & 5 Others [2018] eKLR stated thus;
“In terms of Section193A of the Criminal Procedure Code, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings does not bar the commencement of criminal proceedings. However, where the criminal proceedings are vexatious and an abuse of the court process, the High Court has the powers to intervene. But this power has to be exercised very sparingly as it is in the public interest that crime is detected and suspects brought to justice..."
41. Counsel urged that going by the above cited provisions of the law, it is clear that the law allows for civil and criminal proceedings to be commenced and/or proceed concurrently before the court and therefore the Petitioners/Applicants'' assertion that the Respondents have disregarded the doctrine of sub judice does not hold water and is a total misapprehension of the law and should simply be ignored.
42. Counsel further observed that it is the Petitioners/Applicants contention that the 5th Respondent''s application to set aside the interlocutory judgment obtained by the Petitioners/Applicants in the civil case has not been determined. He submitted that the said application was considered by the trial court which proceeded to unconditionally set aside the ex-parte proceedings and the judgment pursuant to which the Petitioners/Applicants had acquired title to the 5th Respondent''s land vide a Ruling delivered 8th October 2024. Counsel maintained that Petitioners/Applicants are dishonest and have come to court with unclean hands and consequently they have failed to establish a prima facie case to warrant the grant of the orders sought.
43. Counsel relied on the case of Amir Lodges Ltd & another-vs-Mohammed Omar Shariff & another [2022] eKLR where the Court held that;
“…this Court, therefore, finds and hold that a Court cannot terminate a criminal case or criminal investigations solely on the basis of a pending civil case based on similar facts and circumstances. For a Court to so halt a criminal case or investigations, there must be more to the pendency of a civil claim. In this case, the Petitioners attempted to demonstrate how the investigations will prejudice the civil case and infringe their right to fair trial. However, from the foregoing analysis, this Court is unable to agree with the Petitioners. I say so because the Petitioner''s claim is largely based on the fact that they filed a civil claim. The allegations of impropriety on the part of the Respondents remain too remote if any. In the end, this Court is persuaded that the Petitioners have not demonstrated any prima facie case at the moment."
44. Counsel also cited the case of Kuria & 3 Others Vs-Attorney General (2002)2 KLR, in that regard.
45. On whether the Petitioners will suffer prejudice if the orders sought are not granted, Counsel submitted that apart from stating that there is an ongoing civil case, no evidence of prejudice or danger or threat of violation of the Petitioners/Applicants'' constitutional rights has been tendered. Counsel urged that it is not enough just to allege a fact. Proof of the facts is fundamental. Counsel maintained that Criminal prosecutions are legal and provided for by statute and cannot be said to infringe on any rights without evidence of such infringement. Counsel added that in any event, the Petitioners/Applicants have a chance to vindicate themselves against the charges preferred against them by adducing evidence before the trial court.
46. Counsel submitted that indeed, it is the 5th Respondent, the owner of the property in issue who is the one to be greatly prejudiced should the orders sought issue as the Petitioners/Applicants will walk scot-free despite the heinous acts of fraud they have committed and continue to commit. Counsel thus urged that the Petitioners’ rights have not been violated and/or threatened since the Petitioners will still have a chance to defend themselves in the Criminal case.
47. On whether if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory, Counsel submitted that a cursory look at the grounds advanced in the Petition are simply that the Petitioners/Applicants will be deprived of a level playing field on the prosecution of the civil suit if the criminal case is allowed to proceed. Counsel maintained that the Petition, therefore, hinges on the provisions of Section 193A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya which as submitted herein above allows for concurrent criminal and civil proceedings to be commenced and/or proceed before the court.
48. Counsel added that in any event no single event and/or action has been cited that precludes the Petitioners/Applicants from being accorded a fair hearing. Counsel contended that if anything, the civil case was already filed and all parties put in their documents that they are relying on and therefore the institution of the criminal proceedings does not change anything in the civil case. Counsel urged that the Petitioners/Applicants have yet again failed to satisfy this condition as the Petition will not be rendered nugatory if the orders sought are not granted and the application should therefore fail.
49. On whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order, Counsel submitted that it will not be in the interest of the public to grant the orders sought as it will amount to enabling the heinous acts of fraud committed by the Petitioners/Applicants to the detriment of the members of the public and the 5th Respondent herein. Counsel maintained that denying the Petitioners/Applicants'' the orders sought favours the larger public interest as opposed to the grant of the orders. Counsel therefore submitted that the Petitioners/Applicants have not demonstrated how the grant of the orders sought will serve public interest and Counsel urged that the application be dismissed with costs to the 5th Respondent.
50. Counsel further submitted that the Petitioners/Applicants have not come to court with clean but tainted hands on account of non-disclosure of material facts which they knew will not favour their case if disclosed to the Court. Counsel contended that the Petitioners/Applicants have failed to disclose that the decree upon which they got registered as the owners of the suit land that they obtained ex-parte after misleading the court was set aside unconditionally vide the ruling delivered on 8th October 2024 with the sole intention of misleading the court to issue the orders sought.
51. Counsel submitted that on account of the fact that the Petitioners/Applicants are dishonest and are therefore undeserving of this Court''s discretion to grant the orders sought and Counsel urged this Honourable Court to dismiss the application with costs. He relied on the case of Halima Haji Sarah v Multiple Hauliers (E.A) Limited & Ajman Company
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1) Spent.
2) Spent.
3) Spent.
4) The Respondents be restrained from arresting and prosecuting the Petitioners/Applicants herein or in any way interfering with their liberty pending the hearing if the Petition.
5) There be stay of the proceedings in Eldoret CMCRC No.E216 of 2015 pending the hearing of the instant Petition.
6) Costs of the Application be awarded to the Petitioner/Applicants.
2. The application is premised on the grounds set out on the face of the motion and the facts deponed in the Supporting Affidavit sworn by Margaret Jemutai Kangogo, the 1st Petitioner/Applicant herein.
3. The 1st Applicant deposed that the 5th Respondent was the registered proprietor on land parcel number Eldoret Municipality Block 13/31 but abandoned its possession and that subsequently, they acquired an interest over the abovementioned parcel of land under the doctrine of adverse possession after the lapse of the 12 year period envisaged under the Limitations of Act. That they moved to the Honourable Court on 25th January 2023 vide Eldoret CMCC E&L Case No.12 of 2023 (OS) Zendera Kiplagat Biwott & Another Vs. Kanika Nitin Amin, seeking a declaration in their favour as having acquired a legal interest on the subject parcel of land and that the Honourable Court heard the above-mentioned matter and issued a Decree in their favour against the 5th Respondent herein on 9th May 2023.
4. That thereafter they registered the Decree with the County Land Registrar to facilitate endorsement of the court''s declaration on the Parcel Register. That the 5th Respondent was aggrieved by the court''s decision and she lodged an Application dated 14th March 2024 seeking to set aside the Decree and the said application is pending hearing and determination by the Court. Additionally, the 1st Applicant deposed that the 5th Respondent, sensing a dismissal of her Application proceeded to lodge a complaint with the Directorate of Criminal Investigations against the applicants in a bid to harass, blackmail and intimidate them.
5. That as a consequence, they were summoned to the Kapsaret Sub-County Criminal Investigation Office at Langas Police Station to record Statements and that while at the Police Station, the 5th Respondent gave a condition to the investigating officers that she will only withdraw the complaint if the Applicants accede to her Application for setting aside of the Decree and forfeit their rights over the subject parcel of land.
6. The 1st Applicant deposed that the Respondents then moved behind their backs and sought for Warrants of Arrest vide Eldoret CMCRC No. E216 of 2025, creating an impression that they had declined to attend Court and that this points to an ulterior motive on the part of the Respondents herein and further that the Respondents'' decision to seek Warrants of Arrest against them is aimed at poisoning the trial court''s mind against them in order to deprive them of our right to bail/bond.
7. The 1st Applicant further deposed that it is evident that the Respondents are hell-bent to further their malice in the matter and trample on their rights by manipulating the criminal trial process and that their actions are informed by the misconception that their arrest and prosecution could easily put pressure on them to give up on their rights to the subject parcel of land and further that the Respondents have on several occasions expressly indicated to them that they don''t care if the criminal proceeding lead to a conviction but are only keen on using the same to teach them a lesson which points to the malice on the part of the Respondents and that this therefore calls for the intervention of this Honourable Court.
8. The 1st Respondent maintained that there is an imminent risk that they will be arrested and subsequently prosecuted on tramped up charges thereby depriving them of a level playing field in the prosecution of the land case before the Magistrate''s court.
9. The 1st Applicant further deposed that the Prosecution and Police powers are public resources which should not be abused to settle personal scores, least of all land disputes and that the intention to found criminal prosecution on civil proceedings will have a negative impact on the sanctity of the judicial processes. Further, the fact that the Petitioners will have a right to defend themselves in the criminal trial cannot sufficiently ameliorate the harm that would have been caused to them by their arrest and prosecution.
10. That their arrest and prosecution will severely taint their reputation noting that some of their friends, family members, acquaintances and associates may never quite understand what transpired even after an acquittal by the criminal court. Additionally, the 1st Applicant deposed that there is an effective opportunity for the 5th Respondent to contest their claim to the suit land through the civil law processes and there is no compelling reason to invoke the criminal law processes and if the criminal process is allowed to continue, the Respondents will effectively steal the match from them.
11. In the end, the 1st Applicant deposed that the Respondents have acted in a manner that will infringe on their fundamental rights and freedoms hence the need to put the criminal proceedings in abeyance pending determination of the Constitutional Petition to safeguard the integrity of the criminal justice system.
Response
12. The Application is opposed by the 5th Respondent vide her Replying Affidavit sworn on 25th March 2025. She deposed that she is the registered owner of Eldoret Municipality Block 12/31. That she learnt of the adverse possession proceedings taken out by the Petitioners/Applicants over the suit property in Eldoret Chief Magistrates Court vide Environment and Land Matter No. E012 of 2023, with shock and she made a report/complaint to the 3rd Respondent to investigate the same. She stated that she is aware that the investigations were undertaken by the police and they recommended charges against the Petitioners/Applicants.
13. The 5th Respondent maintained that she has no capacity to investigate, arrest and charge the Petitioners/Applicants herein hence the orders sought against her cannot legally issue. The 5th Respondent deposed that there is no law that has been cited that bars the police from undertaking investigations following complaints from Kenyan citizens, arresting and preferring charges against any suspect.
14. She maintained that the depositions made by the Petitioners/Applicants in the matter pending before the Chief Magistrate''s court are all false and/or full of lies as the decree was set aside and therefore the Petitioners/Applicants ought to account for their actions.
15. The 5th Respondent further deposed that the instant petition and application before the court are an abuse of the court process and should not be entertained. That the grant of the orders sought in the application and the petition will not only defeat the course of justice but will also enable and promote illegal acts by individuals such as the Petitioners/Applicants herein and that if at all the Petitioners/Applicants are innocent and/or are not liable as they claim, then they should allow the criminal proceedings to proceed and they will have an opportunity during the hearing to give evidence that will exonerate them from blame and/or demonstrate their innocence.
16. That consequently, the criminal proceedings commenced should proceed to its logical conclusion so as to allow the trial court to make a decision with regard to the charges preferred against the Petitioners/Applicants following the intensive investigations undertaken by the 3rd Respondent. The 5th Respondent maintained that as much as the Petitioners/Applicants claim that their right to freedom is likely to be violated, her right to property which the Petitioners/Applicants have violated is equally important hence the need to have the criminal proceedings progress to conclusion.
17. According to the 5th Respondent, the move by the Petitioners/Applicants in the instant petition and application is intended to misuse the powers of this court and which move she asks the court to strongly frown at by denying the orders sought. Additionally, the 5th Respondent deposed that there is no evidence of any violation of the Petitioners/Applicants rights to warrant this court''s intervention for reasons that in any event, prosecution of a suspect cannot by any stretch of imagination be said to be a violation unless evidence in that regard is demonstrated.
18. The 1st to 4th Respondents did not file responses to the application.
Submissions
19. The Application was canvassed vide written submissions. The Petitioners/Applicants filed submissions dated 2nd May 2025 while the 5th Respondent filed submissions dated 14th February 2025.
The Petitioners’/Applicants’ Submissions
20. Counsel for the Petitioner submitted that this Court has the power to grant conservatory orders at any stage of the proceedings by virtue of Article 23(3) of the Constitution. Counsel added that the circumstances under which the Court will grant conservatory orders were discussed by Odunga J. in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR.
21. Counsel urged that it is evident that the intended prosecution finds its basis in a land dispute between the Petitioners and the 5th Respondent. Counsel also relied on case of Bundid & Another v Ministry of East African Community (EAC), the Asals and Regional Development & 3 Others (Petition E002 of 2024) [2024] eKLR, with regard to the principles that guide the grant of conservatory orders.
22. Regarding a prima facie case, Counsel submitted that the Respondents'' are seeking to arrest and prosecute the Petitioners with respect to a dispute over a parcel of land that is pending before the Court in Eldoret CMCELC Case NO. E012 OF 2023 (OS).
23. Counsel urged that this action by the Respondents is a clear disregard of the doctrine of sub judice in view of the facts the charges proffered against the accused are still contested facts before the Land Court. Counsel maintained that the decision to arrest and prosecute the Petitioners is malicious noting that the criminal justice system is being abused to address what is purely a civil dispute. According to Counsel it is unfair that the state agencies are allowing the 5th Respondent to abuse state machinery for her selfish interests. Counsel relied on the Court of Appeal decision in Soy Developers Limited & 5 Others v Cyrus Shakhalaga Khwa Jirongo & 7 Others; Soy Developers Limited & 4 others (Interested Parties) [2019] eKLR wherein the court reiterated the grounds upon which criminal prosecutions may be prohibited.
24. Counsel further submitted that the that the malice with which is the basis of the prosecution of the Applicants by the 5th Respondent can be gleaned from the attitude portrayed by the 5th Respondent at paragraph 12 of her response. Counsel submitted that in the case of Maina & 4 others v Director of Public Prosecutions & 4 Others (Constitutional Petition No. E106 & 160 of 2021 (Consolidated)) [2022] the Court gave the circumstances in which a court could block concurrent civil and criminal proceedings.
25. Counsel urged the Court to look at the conduct of the Respondents who moved behind the back of the Petitioners and sought warrants of Arrest vide the Eldoret CMCR NO. E216 OF 2025 by creating an impression that they had declined to attend court and submits that this points to an ulterior motive on their part. Counsel further submitted that this was aimed at poisoning the trial court''s mind against the Petitioner in order to deprive them of their right to bail and bond.
26. Counsel observed that it is in a situation like this that the Court had in mind when it held in the case of Kuria & 3 others v Attorney General [2002]2 KLR 69 that:
"The court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform....here the prosecution is an abuse of the process of court as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and or prohibiting prosecutions brought to bear for ulterior and extraneous considerations."
27. Counsel pointed out that the 5th Respondent has argued that if the Petitioners are innocent as they claim, they should allow the criminal proceedings to proceed and they will have an opportunity during hearing to give evidence that will exonerate them from blame. Counsel however submitted that this is a violation of the Petitioners fundamental rights enshrined under the Constitution and several internal human rights instruments. Counsel added that the fact that one will have a chance to defend oneself does not obviate the need to protect innocent person from being dragged through unnecessary criminal trial. Counsel urged the Court to consider the decision in R. vs. The Judicial Commission into the Goldenberg Affair and 2 Others Exparte Saitoti HC Misc Appl.102 of 2006 where it was stated that the Court has a constitutional duty to ensure that a flawed threatened trial is stopped in its tracks if it is likely to violate any of the applicants'' fundamental rights.
28. Counsel cited the holding in Republic v Attorney General Ex parte Kipngeno Arap Ngeny (2001) to further submit that the 5th Respondent act of giving a condition before the investigation officer while at the Langas Police Station, that she will only withdraw the complaint should the Applicant’s accede to her Application for setting aside and forfeit their rights over the subject parcel of land is a clear contravention to their rights as protected under Article 40 of the Constitution. The court stated therein as follows;
"It is an affront to our sense of justice as a society to allow the prosecution of individuals on flimsy grounds. Although in this application we cannot ask the Attorney General to prove the charge against the accused, there must be shown some reasonable grounds for mounting a criminal prosecution against an individual. There must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will achieve nothing more than embarrass the individual and put him to unnecessary expense and agony. The Court may, in a proper case, scrutinize the material before it and if it is determined that no offence has been disclosed, issue a prohibition halting the prosecution."
29. Counsel urged that the Respondents will steal the match from the Petitioners should they be allowed to prosecute them before the conclusion of the Land Case in view of the fact that the intended arrest and arraignment is unconstitutional and lacks proper factual and legal basis. Counsel submitted that in fact the Court Order annexed by the 5th Respondent shows that the Honourable Court directed for the matter to start denovo in order for the Court effectually and completely adjudicate upon and settle all matters involved in the suit as there was a third party who was also seeking rights over the same property. Counsel relied on the decision in Republic v Director of Public Prosecutions & another ex parte Patrick Ogola Onyango & 8 others [2016] eKLR, where the Court stated that a prosecution which lacks a foundational basis must not be allowed to stand.
30. Counsel maintained that the Petitioners have not in any way misled this court since the Court Order annexed by the 5th Respondent was pursuant to an Application lodged by an Intended Interested Party who wanted to be joined as a party to the suit and not pursuant to an Application lodged by the 5th Respondent and that in any case a Court setting aside a Judgment/Decree is not a criminal indictment against the parties to the suit. Counsel added that the parameters for determination of disputes in civil courts are different from the parameters to be considered in a criminal court and that a claim in a civil court does not in away amount to a criminal offence however frivolous a suit can be deemed to be.
31. On the submission that prosecution and police powers are public resources which should not be abused to settle personal scores, least of all land disputes, Counsel cited Article 157(11) of the Constitution of Kenya in support thereof and urged the Court to return a finding that the Petitioners have established a prima-facie case with an intervention through a grant of the prayers sought in the instant Application. Counsel maintained that without a rebuttal to the facts alluded by them, then they have certainly disclosed a prima facie case as envisaged in the case of David Ndii & others v Attorney General & others [2021] eKLR.
32. On the issue that the Petitioners will suffer prejudice, Counsel submitted that the entire Petition will be rendered nugatory should the arrest and prosecution occur before its hearing and determination noting that the Petitioners cannot be adequately compensated for the harm that would have been caused to them by the arrest and prosecution. Counsel urged the Court be persuaded by the decision in Ongaga v County Assembly of Nyamira & Another (Petition E001 of 2023) [2023] eKLR where the Court opined as follows;
“On whether failure to grant the orders sought would render the Petition nugatory, I find that as correctly argued by Counsel for the Applicant, it would be absurd for this Court to litigate on issues concerning the impeachment process while the same process is at the same time proceeding. The obvious outcome of such a scenario is that the hearing of the Petition will be an exercise in futility because the nature of the subject matter will have been redefined by the ongoing impeachment process. On the other hand, should the Court arrive at a finding that the process was flawed, it would result in a state of confusion where the County Government may already be having another person occupying in the Applicant''s position. My take is that in order to avoid such a convoluted outcome, the proper direction is for this Court to preserve the substratum of the main Petition so that the subsequent proceedings are not rendered otiose."
33. Counsel urged that the Respondents have acted in a manner that will infringe the fundamental rights and freedoms of the Applicant’s hence the need to put the criminal proceedings in abeyance pending the hearing and determination of the Constitutional Petition to safeguard the integrity of the Criminal Justice system. Counsel relied on the holding by the Court of Appeal in David Munie Riunge v Dr. Ernest Muinde Kioko and another (2023) eKLR.
34. Counsel further submitted that the intended arrest and prosecution will adversely affect the reputation of the Petitioners in the eyes of their friends, neighbours and business associates hence the need or an urgent intervention of this Honourable Court. Counsel added that the arrest and prosecution will taint the reputation of the Petitioners in the eyes of their friends and family members, acquaintances and associates who may never understand what transpired even after an acquittal by the criminal court.
35. Counsel maintained that on the contrary, the 5th Respondent will have an effective opportunity to contest her claim to the suit land through civil process and there is no compelling reason to invoke the criminal law process. Counsel relied on the case of Shah Munge & Partners Ltd v National Social Security Fund Board of Trustees & 3 others, Civil Application No.211 of 2016.
36. In conclusion, Counsel submitted that it is important for this Honourable Court to take cognizance of the fact that based on the conduct of the Respondents, there is a high likelihood that they are hell bent to further their malice in the criminal proceedings and trample on the rights of the Petitioners by manipulating the criminal trial process. Counsel maintained that there is a high likelihood that the Petitioners will be arrested and prosecuted on tramped up charges thereby depriving them of a level playing field on the resolution of the land dispute.
The 5th Respondent’s Submissions
37. Counsel for the 5th Respondent on his part submitted that the Petitioners/Applicants have not met the conditions for the grant of the said orders. He cited the case of Law Society of Kenya vs. Office of the Attorney General & Another, Judicial Service Commission (Interested Party) [2020] eKLR and the case of Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another [2016] eKLR. Counsel submitted that the Petitioners/Applicants have not met and/or satisfied and/or attempted to demonstrate any of the above conditions to warrant the grant of the orders sought.
38. On whether the Petitioners/Applicants have established a prima facie case with a likelihood of success, Counsel submitted that the Petitioners/Applicants have failed to demonstrate that they have a prima facie case with a likelihood of success. He submitted that in the case of Mrao Limited Vs- First American Bank of Kenya and 2 others, the Court of Appeal while defining what a prima facie case is to be construed to be held that ;
"...a prima facie case in a civil application includes but not limited to a genuine and arguable case. It is a case which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later..."
39. Counsel pointed out that the Petitioners/Applicants have in the application and the Petition alleged that the Respondents have disregarded the doctrine of sub judice by commencing criminal proceedings during the pendency of the civil case before the Environment and Land Court. Counsel urged that this position is misplaced and unfounded in law for reasons that Section 193 A of the Criminal Procedure Code CAP 75 Laws of Kenya allows for criminal proceedings to be commenced even where there are civil proceedings pending before the court.
40. Counsel further submitted that while discussing the import of section 193A of the Criminal Procedure Code, the Court of Appeal in the case of Lalchand Fulchand Shah -Vs-Investments & Mortgages Bank Limited & 5 Others [2018] eKLR stated thus;
“In terms of Section193A of the Criminal Procedure Code, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings does not bar the commencement of criminal proceedings. However, where the criminal proceedings are vexatious and an abuse of the court process, the High Court has the powers to intervene. But this power has to be exercised very sparingly as it is in the public interest that crime is detected and suspects brought to justice..."
41. Counsel urged that going by the above cited provisions of the law, it is clear that the law allows for civil and criminal proceedings to be commenced and/or proceed concurrently before the court and therefore the Petitioners/Applicants'' assertion that the Respondents have disregarded the doctrine of sub judice does not hold water and is a total misapprehension of the law and should simply be ignored.
42. Counsel further observed that it is the Petitioners/Applicants contention that the 5th Respondent''s application to set aside the interlocutory judgment obtained by the Petitioners/Applicants in the civil case has not been determined. He submitted that the said application was considered by the trial court which proceeded to unconditionally set aside the ex-parte proceedings and the judgment pursuant to which the Petitioners/Applicants had acquired title to the 5th Respondent''s land vide a Ruling delivered 8th October 2024. Counsel maintained that Petitioners/Applicants are dishonest and have come to court with unclean hands and consequently they have failed to establish a prima facie case to warrant the grant of the orders sought.
43. Counsel relied on the case of Amir Lodges Ltd & another-vs-Mohammed Omar Shariff & another [2022] eKLR where the Court held that;
“…this Court, therefore, finds and hold that a Court cannot terminate a criminal case or criminal investigations solely on the basis of a pending civil case based on similar facts and circumstances. For a Court to so halt a criminal case or investigations, there must be more to the pendency of a civil claim. In this case, the Petitioners attempted to demonstrate how the investigations will prejudice the civil case and infringe their right to fair trial. However, from the foregoing analysis, this Court is unable to agree with the Petitioners. I say so because the Petitioner''s claim is largely based on the fact that they filed a civil claim. The allegations of impropriety on the part of the Respondents remain too remote if any. In the end, this Court is persuaded that the Petitioners have not demonstrated any prima facie case at the moment."
44. Counsel also cited the case of Kuria & 3 Others Vs-Attorney General (2002)2 KLR, in that regard.
45. On whether the Petitioners will suffer prejudice if the orders sought are not granted, Counsel submitted that apart from stating that there is an ongoing civil case, no evidence of prejudice or danger or threat of violation of the Petitioners/Applicants'' constitutional rights has been tendered. Counsel urged that it is not enough just to allege a fact. Proof of the facts is fundamental. Counsel maintained that Criminal prosecutions are legal and provided for by statute and cannot be said to infringe on any rights without evidence of such infringement. Counsel added that in any event, the Petitioners/Applicants have a chance to vindicate themselves against the charges preferred against them by adducing evidence before the trial court.
46. Counsel submitted that indeed, it is the 5th Respondent, the owner of the property in issue who is the one to be greatly prejudiced should the orders sought issue as the Petitioners/Applicants will walk scot-free despite the heinous acts of fraud they have committed and continue to commit. Counsel thus urged that the Petitioners’ rights have not been violated and/or threatened since the Petitioners will still have a chance to defend themselves in the Criminal case.
47. On whether if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory, Counsel submitted that a cursory look at the grounds advanced in the Petition are simply that the Petitioners/Applicants will be deprived of a level playing field on the prosecution of the civil suit if the criminal case is allowed to proceed. Counsel maintained that the Petition, therefore, hinges on the provisions of Section 193A of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya which as submitted herein above allows for concurrent criminal and civil proceedings to be commenced and/or proceed before the court.
48. Counsel added that in any event no single event and/or action has been cited that precludes the Petitioners/Applicants from being accorded a fair hearing. Counsel contended that if anything, the civil case was already filed and all parties put in their documents that they are relying on and therefore the institution of the criminal proceedings does not change anything in the civil case. Counsel urged that the Petitioners/Applicants have yet again failed to satisfy this condition as the Petition will not be rendered nugatory if the orders sought are not granted and the application should therefore fail.
49. On whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order, Counsel submitted that it will not be in the interest of the public to grant the orders sought as it will amount to enabling the heinous acts of fraud committed by the Petitioners/Applicants to the detriment of the members of the public and the 5th Respondent herein. Counsel maintained that denying the Petitioners/Applicants'' the orders sought favours the larger public interest as opposed to the grant of the orders. Counsel therefore submitted that the Petitioners/Applicants have not demonstrated how the grant of the orders sought will serve public interest and Counsel urged that the application be dismissed with costs to the 5th Respondent.
50. Counsel further submitted that the Petitioners/Applicants have not come to court with clean but tainted hands on account of non-disclosure of material facts which they knew will not favour their case if disclosed to the Court. Counsel contended that the Petitioners/Applicants have failed to disclose that the decree upon which they got registered as the owners of the suit land that they obtained ex-parte after misleading the court was set aside unconditionally vide the ruling delivered on 8th October 2024 with the sole intention of misleading the court to issue the orders sought.
51. Counsel submitted that on account of the fact that the Petitioners/Applicants are dishonest and are therefore undeserving of this Court''s discretion to grant the orders sought and Counsel urged this Honourable Court to dismiss the application with costs. He relied on the case of Halima Haji Sarah v Multiple Hauliers (E.A) Limited & Ajman Company
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