https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7755

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E102 OF 2022** **IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 20(1), 22, 23, 24, 25, 27, 28, 29, 48, 50, 73, 157, 159, 165, 232, 258 & 259 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 28, 47 & 50 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF VIOLATION OF THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015** **AND** **IN THE MATTER OF SECTIONS 4, 5(4), 14 & 26 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT, NO. 2 OF 2013** **AND** **IN THE MATTER OF CHAPTER THREE OF THE OFFICE OF THE DIRECTOR OF PROSECUTIONS GUIDELINES ON THE DECISION TO CHARGE, 2019** **BETWEEN** **BAKTASH TAREQ ABDULLAHI..............................................................PETITIONER** **VERSUS** **THE DIRECTOR OF PUBLIC PROSECUTIONS...................................1ST RESPONDENT THE HON. ATTORNEY GENERAL...................................................2ND RESPONDENT** **AND** **THE DIRECTOR OF CRIMINAL INVESTIGATIONS....................1ST INTERESTED PARTY NARGIS SHAUKAT GUMA...................................................2ND INTERESTED PARTY** **JUDGMENT** **INTRODUCTION** 1. The Petitioner herein, Baktash Tareq Abdullahi, approached this Court through a Constitutional Petition dated 14th March 2022, challenging the decision of the 1st Respondent, the Director of Public Prosecutions, to institute criminal proceedings against him in Makadara Chief Magistrate’s Court Criminal Case No. 2173 of 2020. The Petitioner contends that the decision to charge him with the offence of Assault Causing Actual Bodily Harm contrary to Section 251 of the Penal Code was made in disregard of the investigating officer’s findings and recommendations, thereby violating his constitutional rights under Articles 27, 28, 47, and 50 of the Constitution of Kenya, 2010. The Petitioner further contends that the said decision was unlawful, unreasonable, procedurally unfair, and amounted to malicious prosecution and gender-based discrimination. 2. The 1st Respondent opposes the Petition, maintaining that the decision to charge the Petitioner was made independently, in strict adherence to the constitutional and statutory mandate bestowed upon the Office of the Director of Public Prosecutions under Article 157 of the Constitution, and after due consideration of the evidential and public interest tests as set out in the National Prosecution Policy. The 2nd Respondent, the Honourable Attorney General, initially sought to be struck out of the proceedings on the ground that it was not a necessary party. By a Ruling delivered on 23rd June 2023, this Court allowed that application and struck out the 2nd Respondent from the Petition. Consequently, the present Judgment determines the Petition as against the 1st Respondent only, with the 1st and 2nd Interested Parties remaining as parties to the proceedings. 3. The 1st Interested Party, the Director of Criminal Investigations, through the investigating officer, supported the 1st Respondent’s position and averred that the investigations were properly conducted and the evidence collected disclosed a prima facie case against the Petitioner. The 2nd Interested Party, Nargis Shaukat Guma, who is the complainant in the criminal proceedings and the Petitioner’s estranged wife, opposed the Petition, asserting that she was indeed assaulted by the Petitioner on 11th March 2020, that the medical evidence confirmed the injuries, and that the criminal trial should be allowed to proceed to its logical conclusion. **BACKGROUND AND FACTUAL MATRIX** 1. The Petitioner and the 2nd Interested Party were married for approximately eleven years at the material time and were blessed with six children. On 11th March 2020, the 2nd Interested Party reported a case of Assault Causing Actual Bodily Harm at Buruburu Police Station under OB. No. 98 of 11th March 2020. The complaint alleged that on the same day at about 1600 hours, the Petitioner assaulted her by knocking her head against a wall, hitting her on the mouth, attempting to strangle her, and pulling her hair, thereby inflicting injuries upon her. 2. Following the report, the parents of the 2nd Interested Party took her to Nairobi South Hospital, where she received medical treatment. She was subsequently escorted to the police station and issued with a P3 form, which was later filled by the Police Doctor. The investigations were conducted by No. 66658 CPL. Elisha Kunani Mutonyi, an Investigating Officer attached to Buruburu Police Station. During the investigation, statements were recorded from the complainant, the suspect (the Petitioner herein), and several witnesses, including the house girl, the complainant’s sister, and a driver. 3. Upon conclusion of the investigations, a police file was compiled and forwarded to the Office of the Director of Public Prosecutions for perusal and advice. The ODPP perused the file and, by a decision made in accordance with Article 157(6) of the Constitution, recommended that the Petitioner be charged with the offence of Assault Causing Actual Bodily Harm contrary to Section 251 of the Penal Code. Consequently, on 5th November 2020, the Petitioner was presented before the Makadara Chief Magistrate’s Court and charged accordingly. The Petitioner pleaded not guilty and was released on cash bail. 4. On 1st March 2022, the 1st Respondent furnished the Petitioner with additional documents intended to be relied upon in the criminal trial. Among these documents was an undated Covering Report prepared by the Investigating Officer. According to the Petitioner, this Report contained critical findings that fundamentally undermined the basis for the prosecution. The Petitioner averred that the Investigating Officer had found that there were conflicting reports regarding the date of the alleged assault. Whereas the 2nd Interested Party alleged that the assault occurred on 11th March 2020, all other witnesses, including the house girl, the complainant’s sister, and the driver, stated that the incident occurred on 13th March 2020. The Petitioner further averred that some witnesses stated that the 2nd Interested Party was not assaulted at all. Based on these discrepancies, the Investigating Officer reportedly recommended that there be no further police action and that the matter be referred to arbitration for the sake of the children involved. 5. Aggrieved by the 1st Respondent’s decision to prosecute him despite the Investigating Officer’s findings and recommendations, the Petitioner filed the instant Petition on 14th March 2022, contemporaneously with a Notice of Motion seeking conservatory orders to stay the criminal proceedings pending the hearing and determination of the Petition. On 15th March 2022, the Honourable Lady Justice Hedwig I. Ong’udi directed that the Petition and Application be served upon the other parties, with responses to be filed within thirteen days, and subsequent submissions to be exchanged. The conservatory orders sought by the Petitioner were not granted at the interlocutory stage. 6. In response to the Petition, the 1st Respondent and the 1st Interested Party filed Grounds of Opposition dated 27th February 2022, a Replying Affidavit sworn by CPL. Elisha Kunani Mutonyi on 31st January 2024, and Written Submissions dated 11th September 2024. The 2nd Interested Party filed an Answer to Petition dated 29th November 2022. The 2nd Respondent filed Grounds of Opposition dated 6th April 2022 and subsequently filed an Application dated 13th December 2022 seeking to be struck out of the proceedings. That application was allowed by this Court (Mugambi J.) in a ruling delivered on 23rd June 2023, and the 2nd Respondent was removed from the suit without any order as to costs. **THE PETITIONER’S CASE** 1. The Petitioner’s case, as distilled from the Petition dated 14th March 2022, the Supporting Affidavit sworn on 14th March 2022, and the Written Submissions filed on 22nd September 2025, is that the decision by the 1st Respondent to charge him with the offence of Assault Causing Actual Bodily Harm was unlawful, unreasonable, and procedurally unfair. The Petitioner contends that the 1st Respondent failed to take into account the findings and recommendations of the Investigating Officer as contained in the undated Covering Report, which revealed irreconcilable contradictions in the evidence gathered. The Petitioner asserts that the 2nd Interested Party alleged the assault occurred on 11th March 2020, while all other witnesses indicated that any altercation between the parties occurred on 13th March 2020, with some witnesses stating that the 2nd Interested Party was not assaulted at all. The Petitioner argues that these discrepancies are fundamental and that no reasonable prosecutor could have concluded that there was a realistic prospect of conviction based on such conflicting evidence. 2. The Petitioner further contends that the 1st Respondent’s decision to single him out for prosecution, based on what he describes as mere family disagreements that did not result in any violence, amounts to direct discrimination on account of his gender. The Petitioner submits that he has been profiled and isolated for prosecution while the 2nd Interested Party, despite making what he alleges are false accusations, has faced no consequences. This, according to the Petitioner, constitutes a violation of his right to equality and freedom from discrimination under Article 27 of the Constitution. 3. Citing the Office of the Director of Public Prosecutions Guidelines on the Decision to Charge, 2019, particularly paragraph 3.1.1, the Petitioner submits that prosecutors are obligated to be fair and objective and must not let personal views based on gender influence their charging decisions. The Petitioner argues that the 1st Respondent failed to meet the evidentiary and minimum file requirements set by the Guidelines, as there was no proper consideration of the exculpatory evidence contained in the Investigating Officer’s Report and the witness statements that contradicted the complainant’s version of events. 4. The Petitioner further contends that the prosecution has caused him psychological and mental torture, thereby violating his right to freedom and security of the person under Article 29 of the Constitution. He argues that the 1st Respondent’s unilateral decision to charge him without due regard to the exculpatory evidence violates his right to fair hearing under Article 50 of the Constitution, as he is being subjected to a criminal trial that is fundamentally flawed from its inception. The Petitioner relies on the case of ***Republic v Ministry of Planning & Another Ex parte Mwangi S. Kimenyi [2008] KEHC 2765 (KLR)*** for the proposition that this Court can intervene where a body uses its power in a manifestly unreasonable manner, acts in bad faith, or refuses to take relevant factors into account in reaching its decision. 5. In addition to the constitutional violations, the Petitioner argues that the 1st Respondent’s actions constitute malicious prosecution. The Petitioner relies on the case of ***Mbowa v East Mengo District Administration [1972] E.A.C.A***, where the court set out the elements of malicious prosecution, including that the proceedings were initiated by the defendant, that they terminated in the plaintiff’s favour, that they were instituted without reasonable or probable cause, and that they were actuated by malice. The Petitioner contends that all these elements are satisfied in the present case because the criminal proceedings were initiated by the 1st Respondent, the trial court in Makadara Chief Magistrate Criminal Case No. 2173 of 2020 acquitted him (as stated in the Petitioner’s submissions), there was no reasonable or probable cause for the prosecution given the conflicting witness statements, and the prosecution was actuated by malice as the 1st Respondent proceeded despite knowing of the discrepancies. 6. The Petitioner therefore seeks several declaratory orders, an order of certiorari to quash the charges against him, an order of prohibition directed to the 1st Respondent to prohibit the prosecution, an order of prohibition directed to the Makadara Chief Magistrate’s Court from proceeding with the trial, general damages for violation of his fundamental rights, and costs of the Petition. **THE 1ST RESPONDENT’S & 1ST INTERESTED PARTY’S CASE** 1. The 1st Respondent and the 1st Interested Party opposes the Petition through the Grounds of Opposition dated 27th February 2022, the Replying Affidavit of CPL. Elisha Kunani Mutonyi sworn on 31st January 2024, and Written Submissions dated 11th September 2024. Their primary argument is that the decision to charge the Petitioner was made in strict adherence to its constitutional and statutory mandate under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act No. 2 of 2013. The 1st Respondent asserts that it received a police file containing evidence that the complainant, who is the Petitioner’s wife, had been assaulted by the Petitioner. The witness accounts and medical documents indicated that an offence had been committed, and based on that evidence, a decision was made to charge the Petitioner. 2. It is asserted that the decision to institute criminal proceedings is discretionary and that under Article 157(10) of the Constitution, the Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and shall not be under the direction or control of any person or authority in the exercise of his powers or functions. It is argued that this Court ought not to usurp its constitutional mandate to initiate criminal proceedings, provided that the mandate is exercised in a manner that can be justified. Reliance is placed on the case of ***Michael Monari & another v Commissioner of Police & 3 others, Misc. Application No. 68 of 2011***, where the court held that it is not the duty of the court to go into the merits and demerits of any intended charge to be preferred against any party, as that is the function of the trial court before which the charge shall be placed. 3. Further reliance was placed on the decision in ***Meixner & another v The Attorney General [2005] 1 KLR 189***, where the court held that the accuracy and correctness of the evidence or facts gathered in an investigation can only be assessed and tested by the trial court, which is best equipped to deal with the quality and sufficiency of evidence gathered and properly adduced in support of the charges. It was submitted that the Petitioner’s contentions regarding conflicting witness statements and discrepancies on the date of the alleged offence are matters of defence that ought to be canvassed before the trial court, not in a constitutional petition. The 1st Respondent and the 1st Interested Party argued that the Petitioner is improperly inviting this Court to delve into the merits of the criminal case, which is not before this Court, and to determine issues of fact that are within the exclusive province of the trial court. 4. Reliance was also placed on the Court of Appeal decision in ***Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR***, where the court stated that the exercise of prosecutorial discretion enjoys some measure of judicial deference and that the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. The 1st Respondent and the 1st Interested Party argued that the Petitioner has failed to demonstrate that this is one of those exceptional cases where judicial intervention is warranted. It is contended that the decision to charge the Petitioner was based on the sufficiency of the evidence with a realistic prospect of conviction, and that it was not actuated by any malice. The 1st Respondent and the 1st Interested Party maintains that it subjected the police file to the evidential and public interest tests as set out in the National Prosecution Policy, 2007, and arrived at the conclusion that the evidence available was sufficient to support the proposed charges with a realistic prospect of conviction. 5. Regarding the Investigating Officer’s Covering Report, the 1st Respondent and the 1st Interested Party do not deny its existence but argues that the decision to charge is ultimately a prosecutorial decision that rests with the Director of Public Prosecutions, not with the investigating officer. It was submitted that the investigating officer does not have the power to make a decision to charge the Petitioner, as these powers have been bestowed on the 1st Respondent by the Constitution under Article 157. The 1st Respondent argues that while the investigating officer’s findings are a guiding factor, the 1st Respondent reserves the right and authority to order re-investigation or to disagree with the investigating officer’s recommendations. The 1st Respondent and the 1st Interested Party further asserted that the accuracy and correctness of the evidence gathered can only be assessed and tested by the trial court, which is best equipped to deal with the quality and sufficiency of the evidence adduced in support of the charges. 6. The 1st Respondent and the 1st Interested Party also raised an objection to the effect that the Petitioner has not demonstrated the prejudice he will suffer if the criminal proceedings are not stayed. It is argued that the trial court is an impartial arbiter and should be given an opportunity to determine the impugned lower court matter on its merits. It was further argued that it is in the public interest that complaints made to investigative agencies are investigated and that perpetrators of crimes are charged and prosecuted. The 1st Respondent and the 1st Interested Party therefore urged the court to dismiss the Petition with costs. **THE 2ND INTERESTED PARTY’S CASE** 1. The 2nd Interested Party, Nargis Shaukat Guma, filed an Answer to Petition dated 29th November 2022, in which she denies the allegations contained in the Petition and sets out her own version of events. The 2nd Interested Party asserts that the assault occurred on 11th March 2020, not on 13th March 2020. She confirms that she made a report against the Petitioner at Buruburu Police Station on the same day at 1700 hours, as evidenced in the Charge Sheet and P3 form. The 2nd Interested Party explains that the incident of 13th March 2020, which some witnesses referred to, alludes to heated verbal abuse by the Petitioner directed towards her, but that the act of assault causing bodily harm occurred on 11th March 2020 and is admitted by the Investigating Officer in the undated covering report. 2. The 2nd Interested Party avers that medical records confirm that she was indeed assaulted by the Petitioner on 11th March 2020. She states that the Petitioner was arrested on 5th June 2020, three months after the criminal act, based on the medical records, and was subsequently arraigned in court on 5th November 2020. The 2nd Interested Party maintains that she never withdrew the criminal charges against the Petitioner and that the Petitioner has active custody proceedings vide Children Cause No. E511/2020 Milimani, which are separate from the criminal proceedings. She argues that the existence of children’s proceedings does not eliminate the criminal act done by the Petitioner. 3. The 2nd Interested Party contends that attempts to dismiss the prosecution contravene her rights under Article 47 of the Constitution, which provides for fair administration of justice. She argues that she finds protection under Article 50(2)(k) of the Constitution, which allows her an opportune moment to tender evidence as to the events of 11th March 2020. The 2nd Interested Party relies on Article 159(2)(d) of the Constitution to implore this Court to find the Petition unmerited and to allow the criminal case to proceed uninterrupted. She prays that the Petition be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the Petition, the responses thereto, the rival submissions of the parties, the affidavits on record, the Grounds of Opposition, and the applicable legal framework, this Court is of the considered view that the following issues fall for determination in this Judgment: 2. *Whether the 1st Respondent’s decision to charge the Petitioner with the offence of Assault Causing Actual Bodily Harm was unlawful, unreasonable, or procedurally unfair, thereby violating the Petitioner’s rights under Article 47 of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, No. 4 of 2015.* 3. *Whether the 1st Respondent’s decision to charge the Petitioner amounted to discrimination on the basis of gender, in violation of Article 27 of the Constitution.* 4. *Whether the 1st Respondent’s decision to charge the Petitioner and the subsequent prosecution violated the Petitioner’s right to freedom and security of the person under Article 29 of the Constitution, his right to a fair trial under Article 50 of the Constitution, and whether the prosecution amounts to malicious prosecution.* 5. *Whether the orders sought by the Petitioner, including certiorari to quash the charges and prohibition to prohibit the prosecution, are warranted in the circumstances of this case.* ***Whether the 1st Respondent’s decision to charge the Petitioner was unlawful, unreasonable, or procedurally unfair, thereby violating Article 47 of the Constitution*** 1. The Petitioner’s primary contention is that the 1st Respondent’s decision to charge him was made in disregard of the Investigating Officer’s undated Covering Report, which purportedly revealed irreconcilable contradictions in the evidence of witnesses regarding the date of the alleged assault and whether any assault actually occurred. The Petitioner argues that the 1st Respondent failed to take relevant factors into account, namely the exculpatory evidence and the recommendation that no further police action be taken. The 1st Respondent counters that the decision to charge is ultimately a prosecutorial decision that rests exclusively with the DPP, not with the investigating officer, and that the DPP is not bound by the recommendations of the police. The 1st Respondent further argues that the contradictions highlighted by the Petitioner are matters of evidence to be tested at trial, not reasons to halt the prosecution at the threshold. 2. To resolve this issue, this Court must first examine the constitutional and statutory framework governing the decision to charge. Article 157(6) of the Constitution vests in the Director of Public Prosecutions the State powers of prosecution and authorizes the DPP to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. Article 157(10) guarantees the independence of the DPP by providing that the DPP shall not require the consent of any person or authority for the commencement of criminal proceedings and shall not be under the direction or control of any person or authority in the exercise of his powers or functions. This constitutional independence is not merely a privilege conferred upon the DPP; it is a fundamental safeguard designed to ensure that prosecutorial decisions are made in the public interest, free from political interference, executive control, or private influence. The DPP’s independence, however, is not absolute and must be exercised in a manner consistent with the Constitution and the rule of law. 3. The Office of the Director of Public Prosecutions Act No. 2 of 2013 elaborates on the functions and powers of the DPP and provides statutory guidance on how prosecutorial discretion should be exercised. Section 5(4) of the Act requires the DPP to implement an effective prosecution mechanism to maintain the rule of law, review decisions to prosecute or not to prosecute, and advise the State on all matters relating to the administration of criminal justice. Section 14(5) of the Act requires prosecutors to carry out their functions impartially, to avoid discrimination, to protect the public interest, to act with objectivity, to take account of the position of the suspect and the victim, and to pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect. These statutory provisions impose a duty of fairness and reasonableness on the prosecuting authority, which is enforceable through judicial review. 4. The National Prosecution Policy, 2007, which the DPP is required to follow, establishes a two-stage test for making the decision to prosecute: the evidential test and the public interest test. The evidential test requires the prosecutor to objectively assess the totality of the evidence both for and against the suspect and to satisfy themselves that the evidence establishes a realistic prospect of conviction. The prosecutor must ask themselves whether an impartial tribunal would convict on the basis of the evidence available. The public interest test requires the prosecutor to consider whether the public interest requires a prosecution to be conducted. The Office of the Director of Public Prosecutions Guidelines on the Decision to Charge, 2019 further require prosecutors to be fair and objective, to avoid letting personal views influence their decisions, and to act in the interest of justice, not solely for the purpose of obtaining a conviction. 5. The critical question in this case is whether the 1st Respondent properly applied the evidential test before making the decision to charge the Petitioner. The Petitioner argues that the existence of conflicting witness statements regarding the date of the alleged assault (11th March 2020 as alleged by the complainant versus 13th March 2020 as alleged by other witnesses) and the fact that some witnesses stated that the complainant was not assaulted at all, rendered any realistic prospect of conviction impossible. The Petitioner further relies on the Investigating Officer’s recommendation that there be no further police action and that the matter be referred to arbitration. 6. This Court has carefully examined the Replying Affidavit of CPL. Elisha Kunani Mutonyi, the investigating officer, sworn on 31st January 2024. In that affidavit, the investigating officer depones at paragraph 4 that the complainant alleged she was assaulted on 11th March 2020. At paragraph 6, the investigating officer states that investigations established that the complainant was assaulted by the Petitioner on 11th March 2020 and she sustained injuries. At paragraph 7, the investigating officer states that the parents of the complainant took her to Nairobi South Hospital, where she was treated, and that a P3 form was later filled by the Police Doctor. The investigating officer does not deny the existence of the undated Covering Report but maintains that after the conclusion of investigations, the police file was forwarded to the ODPP for perusal and advice, and the ODPP recommended that the Petitioner be charged. 7. The 2nd Interested Party, in her Answer to Petition dated 29th November 2022, clarifies the factual position. She states that the incident of assault causing grievous bodily harm occurred on 11th March 2020, and that she made a report at Buruburu Police Station the same day at 1700 hours, as evidenced in the Charge Sheet and P3 form. She acknowledges that there exists another incident of 13th March 2020, whose facts are not well disclosed by the investigating officer, but states that the incident of 13th March 2020 alludes to heated verbal abuse by the Petitioner. The 2nd Interested Party further states that the investigating officer fails to record the offence of 13th March 2020 but instead opts to bring confusion as to the actual happenings of 11th March 2020. She confirms that medical records confirm that she was indeed assaulted by the Petitioner on 11th March 2020. 8. This Court must also take judicial notice of the fact that the undated Covering Report relied upon by the Petitioner is a police document prepared by the investigating officer, but it is not a document that binds the DPP. The constitutional architecture places the ultimate charging decision in the hands of the DPP, not the police. The police investigate and gather evidence; the DPP evaluates that evidence and decides whether to charge. The DPP is entitled to disagree with the recommendations of the police, provided that the disagreement is based on a rational evaluation of the evidence and not on extraneous considerations. In this case, the investigating officer himself confirms that the complainant was assaulted on 11th March 2020 and sustained injuries, and that the complainant was treated at Nairobi South Hospital and issued with a P3 form. The medical evidence, which is the most objective evidence in a case of assault, supports the complainant’s version of events. The existence of some witnesses who stated that the incident occurred on 13th March 2020 rather than 11th March 2020 does not necessarily negate the occurrence of the assault on 11th March 2020, especially when the complainant herself, the medical records, and the investigating officer (to some extent) confirm the 11th March 2020 date. 9. The Court of Appeal in the case of ***Meixner & another v Attorney General (supra)*** provided clear guidance on matters of this nature. The court held that the accuracy and correctness of the evidence or facts gathered in an investigation can only be assessed and tested by the trial court, which is best equipped to deal with the quality and sufficiency of evidence gathered and properly adduced in support of the charges. The court further held that it is not the function of the High Court, in the exercise of its judicial review or constitutional jurisdiction, to usurp the role of the trial court by determining the veracity of witness statements or the weight to be attached to conflicting evidence. Those are matters that fall within the exclusive province of the trial court, which has the benefit of hearing witnesses viva voce, observing their demeanour, and subjecting their evidence to cross-examination. 10. This Court finds the reasoning in ***Meixner & another v Attorney General (supra)*** compelling and directly applicable to the present case. The Petitioner’s complaint about contradictory witness statements regarding the date of the alleged assault and whether the complainant was actually assaulted is, in essence, an invitation for this Court to engage in a mini-trial of the criminal case and to make findings of fact on matters that are hotly contested. That is not the proper function of a constitutional court. The constitutional court’s role is to ensure that the decision-making process of the DPP was lawful, rational, and procedurally fair, not to substitute its own view of the evidence for that of the DPP or the trial court. As long as the DPP applied the correct legal test, considered the relevant evidence, and arrived at a rational conclusion that was open to it on the basis of that evidence, this Court should not interfere. The existence of conflicting evidence does not, by itself, render the DPP’s decision to charge irrational or unreasonable. Prosecutors routinely make charging decisions in cases where there is conflicting evidence, and it is precisely the role of the trial court to resolve those conflicts. 11. The High Court in the case of ***Monari & another v Commissioner of Police & another; Abubakar & another (Interested Parties) [2012] KEHC 4595 (KLR),*** emphasized that it is not the duty of the court to go into the merits and demerits of any intended charge to be preferred against any party. The court stated that it is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and merit of any evidence to be tendered against an accused person. *“It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party. It is the function of the court before which the charge shall be placed and which shall conduct the intended trial to determine the veracity and the merit of any evidence to be tendered against an accused person. It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it. There is no evidence to show that the respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving punishment.”* 1. This Court fully subscribes to the above view. The Petitioner’s arguments about the strength or weakness of the prosecution case, the credibility of the complainant versus other witnesses, and the proper interpretation of the medical evidence are all matters that the trial court in Makadara Chief Magistrate Criminal Case No. 2173 of 2020 is best placed to determine after a full hearing. 2. Regarding the Petitioner’s claim that the 1st Respondent failed to consider the Investigating Officer’s recommendations, this Court notes that while the DPP is required to consider all relevant material, including police recommendations, the DPP is not bound by those recommendations. The DPP is an independent constitutional office holder with its own statutory mandate to evaluate evidence and make charging decisions. The fact that the DPP disagreed with the investigating officer’s recommendation does not, without more, demonstrate irrationality or unreasonableness. The DPP may have had cogent reasons for concluding that, despite the discrepancies highlighted by the investigating officer, there was still a realistic prospect of conviction based on the medical evidence and the complainant’s statement. The Petitioner has not provided any evidence that the DPP acted in bad faith, considered irrelevant factors, or failed to consider relevant factors. The mere assertion that the DPP disregarded the investigating officer’s report is insufficient to meet the high threshold for judicial interference with prosecutorial discretion. 3. This Court is also mindful of the public interest dimension inherent in criminal prosecutions. As the Court observed in the case of ***Hussein Khalid and 16 others v Attorney General & 2 others [2019] eKLR***, there is a public interest underlying every criminal prosecution, which must be zealously guarded, while at the same time there is a private interest on the rights of the accused person to be protected. The court must balance these bipolar considerations. In this case, the public interest in ensuring that allegations of domestic violence are properly investigated and prosecuted must be given due weight. Domestic violence is a serious offence that often occurs in private settings, and the evidence in such cases frequently consists of the complainant’s testimony and medical evidence. If courts were to halt prosecutions at the threshold simply because there are some discrepancies in witness statements, many meritorious cases of domestic violence would never proceed to trial. The trial court is the appropriate forum to evaluate the evidence, test the credibility of witnesses, and determine whether the prosecution has proved its case beyond a reasonable doubt. 4. For all these reasons, this Court finds that the 1st Respondent’s decision to charge the Petitioner was neither unlawful, unreasonable, nor procedurally unfair. The 1st Respondent properly exercised its constitutional mandate under Article 157 of the Constitution, applied the evidential test as set out in the National Prosecution Policy, and made a rational decision based on the evidence before it, including the medical evidence and the complainant’s statement. The existence of conflicting witness statements does not render the decision irrational, as those conflicts are matters for the trial court to resolve. Consequently, this Court holds that there has been no violation of the Petitioner’s rights under Article 47 of the Constitution or the Fair Administrative Action Act, No. 4 of 2015. The Petitioner’s complaint on this ground is therefore dismissed. ***Whether the 1st Respondent’s decision to charge the Petitioner amounted to discrimination on the basis of gender, in violation of Article 27 of the Constitution*** 1. The Petitioner contends that the 1st Respondent isolated and singled him out for prosecution on account of family disagreements which did not result in violence, thereby discriminating against him on the basis of his gender. The Petitioner argues that he has been profiled as the perpetrator solely because he is male, while the 2nd Interested Party, despite making what he alleges are false accusations, has faced no consequences. The 1st Respondent has not specifically addressed this argument in its submissions beyond asserting that the decision to charge was based on the evidence, not on the Petitioner’s gender. 2. Article 27 of the Constitution of Kenya, 2010 provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 27(4) specifically provides that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language, or birth. Discrimination is defined under Article 27(5) as including the exclusion of any person from participating in any public office or any position of trust under the Constitution. The right to equality and freedom from discrimination is a fundamental right that lies at the heart of the constitutional order. 3. To establish a claim of discrimination under Article 27, a petitioner must demonstrate that a State organ has treated persons in similar circumstances differently, and that this differential treatment is based on a prohibited ground of discrimination. The burden is on the Petitioner to adduce evidence that the impugned decision was influenced, either directly or indirectly, by the prohibited ground. Mere suspicion or assertion is insufficient. In the present case, the Petitioner has provided no evidence beyond his own assertion that the 1st Respondent’s decision to charge him was motivated by his gender. The Petitioner has not identified any female person who was in a comparable factual situation but was not prosecuted, nor has he provided any evidence of statements, policies, or patterns that would suggest that the DPP discriminates against males in domestic violence cases. 4. The factual matrix of this case reveals that the 2nd Interested Party reported an assault, provided medical evidence, and the police investigations, whether consistent or not, revealed a prima facie case. The DPP evaluated that evidence and decided to charge. There is absolutely no indication on the record that the DPP considered the Petitioner’s gender as a factor in reaching that decision. The Guidelines on the Decision to Charge, 2019, which the DPP is required to follow, explicitly prohibit prosecutors from letting personal views based on gender influence their charging decisions. There is no evidence that these guidelines were violated in this case. 5. Furthermore, the Petitioner’s argument that he was prosecuted for mere family disagreements that did not result in violence is a factual assertion that is disputed by the 2nd Interested Party and the medical evidence. The medical records, as confirmed by the 2nd Interested Party in her Answer to Petition, indicate that she was examined and found to have injuries consistent with assault. The P3 form, which is an official medical-legal document, would not have been issued and filled by the Police Doctor if there were no observable injuries. The Petitioner cannot therefore argue with any credibility that there was no violence at all. The medical evidence suggests otherwise, and it is on that basis that the DPP made the charging decision. 6. This Court also notes that the Petitioner has not sued the 2nd Interested Party for malicious prosecution or false accusation. The 2nd Interested Party is entitled under Article 50(2)(k) of the Constitution to tender evidence as to the events of 11th March 2020 in the criminal trial. The fact that the 2nd Interested Party made a report to the police and is the complainant in the criminal case does not, without more, constitute discrimination against the Petitioner. The criminal justice system is designed to investigate complaints and, where there is sufficient evidence, to prosecute alleged offenders. The fact that the alleged offender is male and the complainant is female does not, in and of itself, establish discrimination. To hold otherwise would be to immunize all male defendants in domestic violence cases from prosecution, a result that would be absurd and contrary to the clear constitutional objective of protecting all persons from violence regardless of gender. 7. The Court in the case of ***Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others [2013] KEHC 1689 (KLR),*** while adopting the position of the court in ***Kuria & 3 others v Attorney General* [2002] 2 KLR 69**, addressed the issue of discrimination in the context of criminal prosecution and held that a person alleging discrimination must prove that the prosecuting authority treated him differently from other persons who were in a similar situation. The court stated that differential treatment alone is not sufficient; there must be evidence that the differentiation was based on a prohibited ground and that it was not justified by a legitimate state objective. In this case, the Petitioner has failed to adduce any evidence of differential treatment, let alone differential treatment based on gender. There is no evidence of any other person, male or female, who was in a similar factual situation but was not prosecuted. There is no evidence of any policy or practice by the DPP to disproportionately prosecute males in domestic violence cases. In the absence of such evidence, the claim of discrimination cannot succeed. 8. This Court therefore finds that the Petitioner has failed to establish a prima facie case of discrimination on the basis of gender. The 1st Respondent’s decision to charge the Petitioner was based on the available evidence, not on the Petitioner’s gender. The fact that the Petitioner is male and the complainant is female is a coincidence of the facts of the case, not a ground of discrimination. Consequently, this Court holds that there has been no violation of the Petitioner’s rights under Article 27 of the Constitution. The Petitioner’s complaint on this ground is therefore dismissed. ***Whether the 1st Respondent’s decision to charge the Petitioner violated his right to freedom and security of the person under Article 29, his right to a fair trial under Article 50, and whether the prosecution amounts to malicious prosecution*** 1. The Petitioner contends that the 1st Respondent’s baseless and unreasonable prosecution has occasioned him psychological and mental torture, thereby violating his right to freedom and security of the person under Article 29 of the Constitution. The Petitioner also argues that the 1st Respondent’s unilateral decision to prefer charges against him without any regard to the Investigating Officer’s findings violates his right to a fair hearing under Article 50 of the Constitution. Additionally, the Petitioner argues that the prosecution constitutes malicious prosecution. 2. The Court will first address the claim under Article 29. Article 29 of the Constitution provides that every person has the right to freedom and security of the person, which includes the right not to be subjected to any form of violence from either public or private sources, and not to be subjected to torture in any manner, whether physical or psychological. Torture is defined in international law, to which Kenya is a party under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as the intentional infliction of severe pain or suffering, whether physical or mental, for a specific purpose such as obtaining information, punishment, intimidation, or discrimination. The threshold for establishing psychological torture is high and requires evidence of severe mental suffering intentionally inflicted by a state actor. 3. In this case, the Petitioner has not provided any evidence of psychological torture beyond the mere assertion that the prosecution has caused him mental anguish. While this Court does not doubt that facing a criminal charge can be a stressful experience, not every stress or anxiety associated with criminal prosecution rises to the level of torture. Prosecution is a legitimate function of the state, and the fact that an accused person experiences stress as a result of being prosecuted does not, without more, constitute a violation of Article 29. The Petitioner has not provided any medical evidence or expert testimony to demonstrate that he has suffered severe psychological harm as a result of the prosecution. He has not demonstrated that the 1st Respondent intended to cause him psychological suffering. On the contrary, the 1st Respondent’s stated purpose was to enforce the criminal law in the public interest, not to cause the Petitioner harm. The claim under Article 29 is therefore without merit and is dismissed. 4. Turning to the claim under Article 50, the Petitioner argues that his right to a fair hearing has been violated because the charges against him are without basis and the prosecution is flawed from its inception. Article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. In the context of criminal proceedings, Article 50(2) enumerates specific rights that an accused person enjoys, including the right to be presumed innocent until the contrary is proved, the right to be informed of the charge with sufficient detail, the right to adduce and challenge evidence, and the right to a fair trial. 5. The fallacy in the Petitioner’s argument is that he has already been afforded, and continues to be afforded, the right to a fair trial in the Makadara Chief Magistrate’s Court. The fact that the Petitioner disagrees with the DPP’s decision to charge him does not mean that his right to a fair trial has been violated. The trial court is constitutionally and legally competent to determine whether the prosecution has proved its case beyond a reasonable doubt. The Petitioner has the opportunity to cross-examine the prosecution witnesses, to adduce his own evidence, to make submissions, and to challenge the credibility of the complainant and the medical evidence. All the procedural safeguards that Article 50 guarantees are available to him in the trial court. This Court has already found that the decision to charge was lawful and rational. Consequently, there can be no violation of Article 50 simply because the Petitioner believes the charges are weak or unfounded. As the Court of Appeal stated in the case of ***Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others (supra),*** an accused person’s right to a fair trial is not infringed by the mere fact of being prosecuted, provided that the prosecution is conducted in accordance with the law and the accused is afforded all the procedural protections that the Constitution guarantees. 6. The final aspect of this issue is the Petitioner’s claim of malicious prosecution. The tort of malicious prosecution is well established in Kenyan law. In the case of ***Mbowa v East Mengo District Administration (supra)***, the court set out the essential elements that a plaintiff must prove to establish malicious prosecution. These elements are: (a) that the proceedings were initiated by the defendant; (b) that the proceedings terminated in the plaintiff’s favour; (c) that the proceedings were instituted without reasonable or probable cause; and (d) that the proceedings were actuated by malice. All four elements must be proved for the claim to succeed. The burden of proof is on the plaintiff, and the standard of proof is the ordinary civil standard of proof on a balance of probabilities, although the seriousness of the allegation may require cogent evidence. 7. The Petitioner, in his submissions dated 22nd September 2025, states that he was acquitted by the court in Makadara Chief Magistrate Case No. 2173 of 2020. The Petitioner’s written submissions at paragraph 32(d) state: “The Petitioner was acquitted by the court in Makadara Chief Magistrate Case No 2173 of 2020: Republic versus Tareq Baktash. The court held that there was no legal course of action in the same matter.” This Court notes that no certified copy of the judgment or order of acquittal has been annexed to the Petitioner’s pleadings or submissions. The Court is therefore unable to verify the terms or basis of the alleged acquittal. It is not clear from the record whether the acquittal was on the merits after a full trial, or whether it was based on procedural or technical grounds. For the purposes of the tort of malicious prosecution, it is generally required that the proceedings terminated in the plaintiff’s favour in a manner that indicates the plaintiff’s innocence. An acquittal based on technical grounds or on the prosecution’s failure to adduce sufficient evidence may not necessarily satisfy this element. 8. More fundamentally, this Court has already found that the 1st Respondent had reasonable and probable cause to institute the prosecution. Reasonable and probable cause is defined as an honest belief in the guilt of the accused based on a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to conclude that the person charged was probably guilty of the crime imputed. The test is an objective one, assessed on the basis of the information available to the prosecutor at the time the proceedings were instituted. In this case, the prosecutor had before them a police file containing the complainant’s statement alleging assault, medical records and a P3 form confirming injuries, and the investigating officer’s report (even if it contained some discrepancies). This was sufficient information to satisfy the test of reasonable and probable cause. The fact that the prosecutor may have disagreed with the investigating officer’s recommendation does not negate the existence of reasonable and probable cause. 9. Regarding malice, the Petitioner has provided no evidence that the 1st Respondent was actuated by malice in instituting the prosecution. Malice means any improper purpose, such as personal spite, vengeance, or a desire to injure the accused beyond the legitimate objective of bringing an offender to justice. The fact that the prosecution may have been unsuccessful or that the evidence was weak does not, by itself, establish malice. There must be evidence that the prosecutor knew that there was no reasonable or probable cause but proceeded anyway, or that the prosecutor was motivated by some improper collateral purpose. The Petitioner has not provided any such evidence. The mere fact that the DPP disagreed with the investigating officer’s recommendation is not evidence of malice. 10. Consequently, this Court finds that the Petitioner has failed to establish the elements of malicious prosecution. The 1st Respondent had reasonable and probable cause to institute the proceedings, and there is no evidence that the proceedings were actuated by malice. Additionally, the claim for malicious prosecution being a tortious claim ought to be filled in a proper forum where all the Petitioner’s claim can be addressed and not here. Therefore, it is my finding that this Court finds that this Petition under the claim of malicious prosecution offends the doctrine of Constitutional avoidance. ***Whether the orders sought by the Petitioner, including certiorari to quash the charges and prohibition to prohibit the prosecution, are warranted in the circumstances*** 1. The Petitioner seeks an order of certiorari to quash the charges against him contained in the charge sheet dated 5th November 2020 in Makadara Chief Magistrate Criminal Case No. 2173 of 2020, and orders of prohibition directed to the 1st Respondent and to the Makadara Chief Magistrate’s Court prohibiting the prosecution and the trial respectively. Certiorari and prohibition are prerogative orders that fall within the supervisory jurisdiction of the High Court under Article 165(6) of the Constitution. These orders are discretionary in nature and are only granted in appropriate cases where there has been a clear excess of jurisdiction, a violation of natural justice, or an error of law on the face of the record. In the context of criminal proceedings, prohibition is a powerful remedy that halts a prosecution before it is concluded, and it is granted only in the clearest of cases where the prosecution is manifestly an abuse of the process of the court or where the proceedings are instituted in violation of fundamental constitutional rights. 2. Having found that the 1st Respondent’s decision to charge the Petitioner was lawful, rational, and procedurally fair, and that there was no violation of the Petitioner’s constitutional rights under Articles 27, 28, 29, 47, or 50 of the Constitution, this Court is of the firm view that the orders sought are not warranted. The criminal proceedings in Makadara Chief Magistrate Criminal Case No. 2173 of 2020 are properly before that court, which has jurisdiction to hear and determine the matter. The Petitioner has not demonstrated that the trial court is biased or that it will not afford him a fair hearing. The mere fact that the Petitioner disagrees with the DPP’s decision to charge him does not justify the extraordinary remedy of prohibition or certiorari. 3. The Court of Appeal in the case of ***Kuria & 3 Others v Attorney General [2002] eKLR*** held that although a criminal prosecution is adverse to an accused person, the purpose of criminal proceedings in society is immense. There is a public interest underlying every criminal prosecution which must be zealously guarded, while at the same time the private interest of the accused person must be protected. The court must balance these bipolar considerations. In detail, the Court above had the following to say; *“There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence. However, just as a conviction cannot be secured without any basis of evidence, an order of prohibition cannot also be given without any evidence that there is a manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial... In the circumstances of this case it would be in the interest of the applicants, the respondents, the complainants, the litigants and the public at large that the criminal prosecution be heard and determined quickly in order to know where the truth lies and set the issues to rest, giving the applicants the chance to clear their names.”* 1. In this case, the public interest in allowing the criminal case to proceed to trial outweighs the private interest of the Petitioner in stopping the prosecution, especially given that this Court has found no constitutional violations in the manner the prosecution was instituted. The appropriate forum for the Petitioner to challenge the strength of the prosecution evidence is the trial court, not the constitutional court. 2. The Petitioner’s additional prayer for general damages for violation of his fundamental rights is similarly without foundation. Since this Court has found no violation of the Petitioner’s constitutional rights, there is no basis for an award of damages. Even if there had been a violation, the Petitioner would have been required to provide evidence of the nature and extent of the harm suffered. No such evidence has been provided. The prayer for general damages is therefore dismissed. 3. The Petitioner also seeks costs of the Petition. Costs are discretionary under Section 27 of the Civil Procedure Act, and the general rule is that costs follow the event. The successful party is ordinarily entitled to costs unless there are compelling reasons to order otherwise. In this case, the 1st Respondent has been successful in opposing the Petition, as has the 2nd Interested Party. The Petitioner, having failed to establish any violation of his constitutional rights, is not entitled to costs. However, this Court is mindful of the fact that the Petitioner was acting in the belief that his rights were being violated, and the Petition raised substantive issues regarding the exercise of prosecutorial discretion. In such circumstances, it would not be unjust to order that each party bear their own costs. This Court therefore makes no order as to costs. **CONCLUSION** 1. Upon a thorough review of the Petition, the responses thereto, the affidavits, the Grounds of Opposition, the written submissions of the parties, and the applicable legal principles as established by the superior courts in Kenya, this Court has arrived at the inescapable conclusion that the Petitioner has failed to discharge the burden of proving that the 1st Respondent’s decision to charge him was unlawful, unreasonable, procedurally unfair, discriminatory, or violative of his constitutional rights. The decision to charge the Petitioner was made by the Director of Public Prosecutions in the lawful exercise of his constitutional mandate under Article 157 of the Constitution. The Director applied the evidential test as set out in the National Prosecution Policy and the Guidelines on the Decision to Charge, 2019, and concluded that there was sufficient evidence to support the charge with a realistic prospect of conviction. The existence of conflicting witness statements regarding the date of the alleged assault does not render the decision irrational, as those conflicts are matters to be resolved by the trial court. The Petitioner’s claim of discrimination on the basis of gender is unsubstantiated, as there is no evidence that the decision to charge was influenced by the Petitioner’s gender. The claim of psychological torture, violation of the right to a fair trial, and malicious prosecution are all without merit. The orders of certiorari and prohibition sought by the Petitioner are not warranted, as the criminal proceedings are properly before the trial court, which is competent to hear and determine the matter. 2. This Court must emphasize, as a final observation, that the constitutional court is not an appellate court over the decisions of the Director of Public Prosecutions, nor is it a substitute for the trial court. The Petitioner has his day in court in Makadara Chief Magistrate Criminal Case No. 2173 of 2020, where he will have the opportunity to challenge the prosecution evidence, cross-examine witnesses, and adduce his own evidence if placed on his defence. The constitutional court’s role is limited to ensuring that the prosecutorial process was conducted in accordance with the Constitution and the law. That role has been fulfilled in this Judgment. The Petition is found to be without merit and is accordingly dismissed. 3. The final orders of this Court are as follows: 4. The Petition dated 14th March 2022 is hereby dismissed. 5. Each party shall bear its own costs. 6. The criminal proceedings in ***Makadara Chief Magistrate Criminal Case No. 2173 of 2020*** shall proceed to hearing and determination on their merits before the trial court. It is so ordered. File Closed Accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the Petitioner – Mr. Kipkorir Counsel for the 1st Respondent & 1st Interested Party – Mr. Mulati Counsel for the 2nd Interested Party – Absent Court Assistant - Mr. Martin Mwenda and Mr. Austin