https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7180

Alzaley v Directorate of Criminal Investigations & 3 others (Criminal Petition E008 of 2026) [2026] KEHC 7180 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7180 (KLR) Republic of Kenya In the High Court at Kibera Criminal Petition E008 of 2026 DR Kavedza, J May 26, 2026 Between Abdirahman Muhumed Sheikh Alzaley Applicant and Directorate of Criminal Investigations 1st Respondent Inspector General of Police 2nd Respondent Directorate of Criminal Investigations 3rd Respondent Hon. Attorney General 4th Respondent Ruling 1.The Applicant moved this Court by way of Notice of Motion dated 25 May 2026 pursuant to Articles 10, 22, 23, 48, 50 and 157 of the Constitution seeking conservatory orders restraining the Respondents from summoning, arresting, detaining, processing, charging, or otherwise interfering with his liberty in connection with LR No. 209/20292, pending the hearing and determination of the Petition. The Applicant also seeks release in the event of arrest and costs of the application. 2.The application is premised on the contention that the dispute concerning LR No. 209/20292 is purely civil in nature and is presently the subject of ongoing proceedings before the Environment and Land Court in ELC No. E194 of 2023. The Applicant contends that despite the pendency of the civil proceedings, the Respondents have sought to invoke the criminal justice process in a manner calculated to intimidate, harass, and exert pressure upon him. 3.The Applicant avers that on 31st March 2026 he was unlawfully detained at Embakasi Police Station for over twenty-four hours without being arraigned or charged. He further states that he subsequently wrote to the Respondents clarifying the ownership status of the disputed property and protesting the alleged abuse of investigative powers. 4.It is further contended that the Directorate of Criminal Investigations was directed by the Office of the Director of Public Prosecutions to investigate the matter and submit an inquiry file for review. The Applicant apprehends that the intended arrest and prosecution are substantially intertwined with the pending civil dispute and are intended to prejudice his position in the Environment and Land Court proceedings. 5.The Applicant therefore argues that unless this Court intervenes, his constitutional rights under Articles 29, 47 and 49 of the Constitution, including the rights to liberty, fair administrative action, and security of the person, stand to be violated through an improper use of the criminal process. 6.The Applicant maintains that this Court has jurisdiction under Article 23(3)(c) of the Constitution to grant conservatory relief in order to preserve constitutional rights pending determination of the Petition. 7.I have considered the application, the supporting affidavit, and the annexures on record. At this interlocutory stage, the Court is not called upon to determine the merits of the intended investigations or the competing claims relating to ownership of LR No. 209/20292. The Court’s task is limited to determining whether the Applicant has established a prima facie basis warranting preservation of his constitutional rights pending the hearing and determination of the application and the Petition. 8.The Applicant contends that the dispute surrounding LR No. 209/20292 is already the subject of active proceedings before the Environment and Land Court in ELC No. E194 of 2023 and that the Respondents are improperly invoking the criminal justice process in a matter substantially intertwined with the pending civil dispute. The Applicant further alleges that he was previously detained without charge and now apprehends arrest and prosecution arising from the same dispute. 9.On the material presently before the Court, there exists a legitimate apprehension that coercive criminal processes may be invoked in circumstances connected to an unresolved civil dispute pending before a court of competent jurisdiction. The Court is satisfied that unless interim relief is granted, the Applicant’s rights under Articles 29, 47, 49 and 50 of the Constitution may be prejudiced before the constitutional questions raised in the Petition are heard and determined. 10.I am not persuaded that the Respondents will suffer prejudice by the grant of interim conservatory relief. The orders sought do not bar lawful investigations conducted within the confines of the Constitution and the law. They merely preserve the status quo and protect the Applicant from coercive action pending determination of the Petition. 11.Accordingly, I make the following orders:i.Pending the hearing and determination of the application and the Petition, conservatory orders are hereby issued restraining the Respondents, whether by themselves, their officers, agents, or persons acting under their authority, from summoning, arresting, detaining, charging, or prosecuting the Applicant in connection with LR No. 209/20292.ii.For avoidance of doubt, the Respondents remain at liberty to undertake lawful investigations in accordance with the Constitution and the law.iii.The Applicant shall serve the application, Petition, and this ruling within three (3) days.iv.The Respondents shall file and serve their responses within fourteen (14) days of service.v.The applicant shall file a rejoinder if need be.vi.The matter shall be mentioned for directions on 23rd June 2026Orders accordingly. RULING DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MAY 2026........................D. KAVEDZAJUDGE