https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8049

Adhiambo v Director of Public Prosecutions & 2 others (Constitutional Petition E627 of 2025) [2026] KEHC 8049 (KLR) (Constitutional and Human Rights) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8049 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E627 of 2025 RE Aburili, J June 9, 2026 Between Christianus Adhiambo Petitioner and Director Of Public Prosecutions 1st Respondent Director Of Criminal Investigations 2nd Respondent and Jude Brian Anyiko Oluoch Interested Party Judgment 1.In his Petition dated 18th September 2025, the Petitioner Christianus Adhiambo seeks the following reliefs:a.A Declaration that the threatened arrest of the Petitioner in relation to the loan agreement of 25th February 2020 constitutes an abuse of the criminal justice system and is unconstitutional.b.a declaration that the use of criminal investigations to settle a civil dispute violates the Petitioner’s fundamental rights and freedoms under Articles 27, 29, 31, 43, 47 and 50 of the Constitution.c.A Permanent Injunction restraining the 1st and 2nd Respondents by themselves, their officers, servants, agents or anyone acting on their behalf from arresting, detaining, restricting or otherwise confining or in any other way interfering with the liberty of the Petitioner herein in respect of or in connection with the complaint or allegations made arising from or in relation to this matter.d.A Permanent Injunction restraining the Director of Public Prosecutions by himself, officers, servants, agents or anyone acting on his behalf from instituting, charging or prosecuting the Petitioner herein in respect of or in connection with the complaint or allegations made arising from or in relation to this matter.e.A Declaration that the pending dispute between the Petitioner and the Interested Party is civil in nature and should be resolved exclusively before the Magistrate’s Court in MCCC/E5168/2025.f.Costs of this Petition.g.Such other or further orders and directions as this Honourable Court may deem just and expedient to grant in the circumstances of this cause. 2.The Petition is premised on the grounds on the face thereof and supported by the Petitioner’s Supporting Affidavit sworn on even date. The Petitioner pleads that he had a long-standing civil dispute with the Interested Party Jude Brian Anyiko Oluoch arising from a loan agreement dated 25th February 2020, which was the subject of Milimani MCCC/E7071/2020 as shown by the annexed copies of Plaint and loan agreement marked as "CAEO-la&ib". 3.The petitioner avers that the said suit was dismissed for want of prosecution as well as the Interested Party's subsequent application for reinstatement vide a ruling on 3rd April 2025 by Hon. H.M. Ng’ang’a as shown by copy of the ruling marked as “CAEO-2”. 4.The petitioner asserts that despite all these, the interested Party again filed a fresh civil suit vide Milimani MCCC/E5168/2025 against the petitioner over the same dispute, which is still pending for determination before a court of competent jurisdiction as per the annexed Plaint dated 11th July 2025 marked as “CAEO-3”. The petitioner deposes that he had credible information that the interested Party, with the assistance of officers from the 2nd Respondent, intended to cause his arbitrary arrest during a scheduled company board meeting in order to embarrass him before his directors and shareholders. 5.The petitioner states that the Interested Party together with the officers of the 2nd Respondent have incessantly called his Human Resource Manager making enquiries of his whereabouts with several visits to his office to harass and intimidate him over the loan dispute. That through this, the Interested Party learned of the board meeting and he swore to have the Petitioner arrested during conduct of the said meeting. 6.The petitioner contends that the dispute is civil in nature and cannot lawfully be transformed into a criminal complaint. That the use of criminal investigations to settle a civil debt is unconstitutional and an abuse of process owing to the fact that he had already been served with summons to enter appearance in the freshly filed suit before the lower court at Milimani. 7.He avers that unless the Respondents are restrained by this Honourable Court, his liberty, reputation and business interests are at grave risk of violation and his arrest on the premises is imminent. 8.The Petitioner contends that in as much as the police are empowered to conduct investigations and do policing, the same must be done within the confines of the Constitution and that no officer and/or entity should be seen to bestow upon themselves powers to delve into civil disputes between private citizens. That in this case, the involvement of the 2nd Respondent in matters concerning loan disputes which is purely civil amounts to abuse of process and the powers bestowed upon the police under the Constitution. 9.The Petitioner avers that without this Court’s urgent intervention, the Interested Party will eventually succeed in utilizing the criminal justice system to occasion enormous economic harm in the business in which THE petitioner has heavily invested in, both financially and time and infringe on his socio-economic rights guaranteed under Article 43 of the Constitution. Responses to the Petition 10.In response to the Petition, the 1st and 2nd Respondents filed joint Grounds of Opposition dated 22nd September 2025 opposing the Petition on several grounds, inter alia that the Petitioner is attempting to use the court to stop a lawful police investigation without meeting the high legal threshold required to do so. 11.It is contended that the Petition does not meet the "Specificity Test" citing the Anarita Karimi and Mumo Matemu cases which dictate that if a person claims that their constitutional rights have been violated, they must state the specific right alleged to be infringed, explain the manner of the infringement and provide precise facts supporting the claim. 12.The Respondents contend that the Petitioner’s case is too vague as it lacks precision and should be dismissed on that technicality. Further, that their statutory mandate to investigate under Section 24 of the National Police Service Act empowers the police to investigate crimes. The Respondents emphasize that it is in the public interest for crimes to be investigated and that this Court should not interfere with the constitutional mandate of the police and the DPP unless there is clear evidence of abuse of power. 13.It is further contended that the petitioner’s claim is an abuse of the court process because the Petitioner is using the legal system improperly and seeks to shield himself from criminal liability. The Respondents argue the Petitioner hasn’t shown ulterior motives or that the police are acting in excess of their powers. 14.The Respondents make a factual denial and state that there is neither an inquiry file currently opened against the Petitioner nor have they received a formal complaint from the Interested Party to enable them to direct the DCI in exercise of their powers under Article 157 (4) of the Constitution to investigate. 15.The Respondents urge that the petitioner has not demonstrated any proof of breach, infringement or threat of violation of his right to liberty by the actions of the 2nd Respondent to justify the grant of the orders sought. They assert that the Petition is premature since investigations are still ongoing and the same hasn’t resulted in a threat or infringement yet. Further, they urge its dismissal because the Petitioner has not proven that their freedom is actually at risk in a way that violates the law. 16.The parties took directions before this Court to file written submissions and to made oral submissions before the Court on 24th April, 2026. Only the Petitioner filed written submissions dated 20th April 2026. Submissions 17.The Petitioner’s submissions are dated 20th April 2026. He submitted through Counsel that the "acid test" for the court is to look at the foundation or the substratum of the dispute. Counsel submitted that the case arises from a written loan agreement dated 25th February 2020 and that since there is no evidence of fraudulent intent at the inception of the contract, the failure to pay is a simple breach of contract, not a crime like Obtaining Money by False Pretenses or theft under the Penal Code. 18.Counsel for the Petitioner cites the High Court case of Abednego Atiti Samoka v DPP & 2 Others (2019) KEHC 4140 (KLR) and argues that the High Court in Mombasa when faced with a similar dispute held that the continuation of the criminal process was an abuse of the court process, emphasizing that the court had a duty to prevent the use of its processes as an instrument of oppression. 19.The Petitioner justifies the High Court’s jurisdiction to intervene and cited Article 165(3) of the Constitution on the High Court’s supervisory jurisdiction and power to determine if fundamental rights have been violated and Article 23 of the Constitution on the court’s authority to grant redress, including permanent injunctions, to halt a threat to a right. The cases of Anarita Karimi Njeru v Republic [1979] eKLR and Stanley Githunguri v Republic [1985] eKLR are cited in support of the High Court’s inherent jurisdiction over such matters. 20.Counsel for the petitioner submits, acknowledging that the power to institute criminal proceedings is vested in the Director of Public Prosecutions by Article 157 of the Constitution which entails a sacred public trust, to be exercised independently and in the public interest, not as a hired gun for private creditors. That accordingly, the 1st Respondent is constitutionally mandated to exercise his powers in a manner compatible with the principle of service to the people of Kenya and for their well-being and benefit as per Article 129 (2) of the Constitution. 21.Counsel submits that the Interested Party, the creditor has already filed two civil suits in Milimani MCCC/E7071/2020 and Milimani MCCC/E5168/2025 where the first was dismissed for want of prosecution. It is argued that by filing a civil suit and serving summons, the creditor has formally admitted that the dispute is civil. That therefore, pursuing a criminal arrest simultaneously is a malicious deployment of the state apparatus to coerce a settlement that the creditor couldn’t achieve in the civil court. 22.Counsel for the petitioner further details the specific threat of an imminent arrest during a sensitive company board meeting to cause the Petitioner maximum humiliation and economic sabotage. He argues that the Petitioner’s right to freedom and security is threatened by an arbitrary arrest which is not based on a reasonable suspicion of a specific criminal offence but is instead designed to humiliate and coerce settlement of a civil debt. The case of Mwangi & another v Inspector General of Police & 2 others (Petition 2 of 2018) [2025] KEHC 3106 (KLR) is relied upon, where the Court is said to have held that the arrest of individuals without just cause or on the basis of false charges is a violation of Article 29(a) of the Constitution. 23.It is submitted that the role of the DPP and the Police under Article 157 of the Constitution is a sacred public trust where they should act as gatekeepers of justice, not as foot soldiers or hired guns for private creditors. Citing Stanley Munga Githunguri v Republic (supra) the Petitioner argues that while the DPP’s discretion is wide, it is not unfettered and must not be exercised oppressively or against public policy. 24.The Petitioner urges this Court to declare that the dispute is purely civil in nature and to issue a permanent injunction restraining the Respondents from arresting, harassing or prosecuting the Petitioner regarding this specific loan. He argues that there must be a distinction between a civil wrong/debt and a criminal offense to prevent a path to tyranny. 25.When the parties appeared before this Court on 21st April 2026, Mr. Ikua learned counsel for the Petitioner orally submitted highlighting the written submissions and reiterating his written submissions. 26.Counsel added that the conduct of the interested party demonstrates abuse of court process in that, having been defeated in the civil court, he is criminalizing a civil dispute which led to constant harassment of the Petitioner by DCI through repeated summons to appear. That despite the Petitioner availing himself to the DCI, no formal changes were preferred against him and no formal inquiry file was opened and sent to DPP for recommendation to charge or not. 27.It was counsel’s oral submission that this conduct is prejudicial to the Petitioner and violates his right to fair administrative action and his right under Article 27 of the constitution on equality and freedom from discrimination. He argues that where parties have a remedy in civil law, recourse to criminal proceedings is an abuse of process. He contended that they had annexed sufficient evidence to show violations of the constitutional rights of the Petitioner and stated that they agreed that pending civil proceedings do not preclude criminal charges but stated that the same should be in line with the Constitution. 28.On their part, learned Principal Prosecution Counsel Ms. Ntabo relied on their Grounds of Opposition dated 22nd September 2025 and submitted that the Petitioner is seeking a permanent injunction after he was already granted anticipatory bail. She stated that there is no inquiry file pending before DPP and no decision has been made by DPP to charge the Petitioner. 29.She submitted that under Article 157(4) 6, 10 of the Constitution the 1st Respondent was mandated to review evidence and make a decision to charge and that presently, no file is before it to review. She urged that the matter is in investigative stages and they could not review or exercise any prosecutorial discretion before a file is received. 30.It was their submission that there were no violations under Article 47 and 50 of the Constitution since the Petitioner was only summoned to write a statement for investigations, to state his side of the story. That further, Section 193A of Criminal Procedure Code allows concurrent criminal and civil proceedings and, that in this case, the criminal matter was still under investigations. She argued that the reliefs sought would limit and inhibit criminal investigations and the Court should not curtail the powers of other bodies or limit the discharge of the Respondents’ constitutional mandates of. 31.Counsel for the prosecution submitted that the doctrine of constitutional avoidance was applicable in that, the issues being raised in the Petition could have been raised before a criminal court. She cited the case of Wachira & another Vs Director, Super Metro Sacco & 10 others, HC PET E538/2023 and argued that the Petition has not met the threshold for issuance of the orders sought. 32.The respondent’s counsel also decried the fact that the conservatory orders were made ex-parte and that they were not given an opportunity to respond thereto, citing the case of Gatirau Peter Munya vs. Dickson Mwenda [2014] eKLR. It is their submission that the Petition is premature, speculative, lacks merit and is intended to obstruct and delay lawful proceedings and should be dismissed accordingly with costs. 33.In a rejoinder, Mr. Ikua, counsel for the Petitioner submitted that there was no inquiry file presented to DPP and that the Petitioner had only been granted anticipatory bail. Counsel informed the Court that they filed the Petition in September, 2025 and that the Petitioner has a right to an expeditious process and protection under the Constitution. Citing Keroche Breweries Ltd vs. AG, Counsel argued that the court emphasized that prosecutorial powers vested in DPP are a sacred public trust to be exercised independently and in the public trust considering circumstances of each case. The Court was also referred to the case of Deepak Chamanlal Kamau and another vs. AG and 4 others and a submission made that this Court has powers under Article 22 of the Constitution to intervene where the conduct of the Respondent contravenes the Constitution. 34.Counsel reiterated that the Petition is not speculative, is based on evidence availed to this Court and asserted that the Constitution allows a party who is apprehensive of breach of his rights under the Constitution to approach this Court. Analysis and Determination 35.I have considered the petition and the opposition thereto. The main issue for my determination is whether the Petition is merited and therefore whether the orders sought ought to be granted. 36.The office of the Director of Public Prosecutions (ODPP) is established under Article 157 of the Constitution and the powers are outlined therein. The office of the 2nd Respondent is established under Section 28 of the National Police Service Act. The Constitution establishes the said office of the DPP as an independent under Chapter Fifteen. In particular, Articles 157 (10) – (11) provides:(10).The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.(11)In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 37.The Petitioner urges this Court to intervene and stop officers of the Directorate of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) from pursuing what he characterizes as a debt collection exercise under the guise of investigating a crime. It is trite that courts are generally hesitant to stop police investigations unless it is crystal clear that the police are being used to settle a private score, intended to achieve collateral ends. This is because the office of the DPP and DCI are independent offices and free from the direction of anybody or authority. 38.The Court of Appeal aptly in Director of Public Prosecutions v Martin Maina & 4 Others [2017] KECA 93 (KLR) stated thus:“ 38.There is no dispute that under Article 157(10) of the Constitution the Director of Public Prosecutions (DPP), the appellant herein, does not require the consent of any person or authority to commence criminal proceedings and is not under the direction or control of any person or authority in the exercise of his constitutional powers or functions. The DPP is only subject to the Constitution and the law.” 39.The essence of the above holding was also stated in Francis Anyango Juma v The Director of Public Prosecutions and another [2012] eKLR, where it was held thus:“The intention under the Constitution, was to enable the Director of Public Prosecutions to carry out his constitutional mandate without interference from any party. This court cannot direct or interfere with the exercise by the DPP of his power under the Constitution or direct him on the way he should conduct his constitutional mandate, unless there was clear evidence of violation of a party’s rights under the Constitution, or violation of the Constitution itself.” 40.Courts must therefore be slow in interfering with the statutory and constitutional mandate of the 1st and 2nd Respondents unless it can be demonstrated that they are abusing the discretionary role or acting in contravention of the Constitution and statute. (See also the cases of Republic v Director of Public Prosecution & 2 others Ex-parte Francis Njakwe Maina & another [2015] eKLR and Paul Ng’ang’a Nyaga v Attorney General & 3 others (2013) eKLR.) 41.Further, Courts will only intervene where the interests of justice would be served and the DPP’s discretion to charge will only be interfered with if the Court is satisfied that there is abuse of the said powers or that the DCI and DPP are involved in or consider extraneous matters that are separate from the ultimate goals of justice and public interest. (see Kuria & 3 others v Attorney General [2002] 2 KLR 69) 42.Article 157(6) of the Constitution provides that:(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may-a.institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;(4)The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction. 43.This Court appreciates that there is an ongoing civil suit in Milimani MCCC/E5168/2025 evidenced by the attached plaint dated 11th July 2025 marked as “CAEO-3”. It is however not lost on the court that civil proceedings can run concurrently with criminal proceedings if the facts so allow. This position is anchored on Section 193A of the Criminal Procedure Code which stipulates thus:193A.Concurrent criminal and civil proceedingsNotwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings. 44.It is the Respondents’ position that they were only in the process of investigating the complaint lodged by the Interested Party and that they had even summoned the Petitioner to record a statement. They deny that there is any inquiry file pending before the DPP and that no decision has been made by DPP to charge the Petitioner. This evidence has not been controverted by the Petitioner herein. 45.I note that the only tangible evidence adduced by the petitioner is the existing civil suits. He did not adduce any evidence to demonstrate the allegations that officers of the 2nd Respondent were harassing him or incessantly calling him with threats of arrest. He also alleged that there was a plot to arrest him during an important board meeting in a strategic ploy to humiliate him. He did not adduce any evidence of this save for his word. 46.As this is a court of law whose findings must be supported by evidence and not mere allegations, and absent any evidence to demonstrate that the Respondents have acted extraneously or that their investigations were instigated by matters divorced from their constitutional and statutory mandate or the ultimate public interest, I find the petition herein not to be supported. 47.Additionally, this Court cannot usurp or interfere with the Respondents’ role to investigate, charge and prosecute if they are satisfied that a crime has been committed. As to whether or not the evidence gathered from their investigations will be sufficient to lead to the prosecution of the Petitioner, that is an issue that cannot be considered by this Court as it is not within its powers to do so. Equally, I am persuaded that since the petitioner did obtain anticipatory bail on 19/9/2025, granted by Justice Muteti and which orders were capable of shielding him from any alleged arbitrary arrests as he claimed that it was likely to occur, consequently, he did not necessarily require this Court’s intervention to stop the Respondents from exercising their constitutional and statutory mandates. 48.In the premises, it is my finding that the Petitioner has not satisfied this Court that he is entitled to the orders sought, to issue in his favour and to halt the criminal investigations being conducted by the Respondents. Furthermore, this court cannot declare that the dispute between the petitioner and the interested party is purely civil in nature, in view of section 193 A of the Criminal Procedure Code which provides that the existence of a civil suit does not preclude criminal proceedings. 49.In the end, I find the petition Consequently, the Petition dated 18th September, 2025 is found to be devoid of merit and is dismissed. Any conservatory orders issued now lapse and are discharged. 50.I make no order as to costs. 51.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JUNE, 2026R.E. ABURILIJUDGE