https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11684

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CRIMINAL DIVISION** **MISC.CRIMINAL APPLICATION NO. E007 OF 2026** **IN THE MATTER OF ARTICLE 2,19,20,22,23,25,27,29,47,48,49,50,258,259 & 260 OF THE** **CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF FREEDOM AND SECURITY OF PERSONS** **BETWEEN** **ALI ADEN ISSACK---------------------------------------------------APPLICANT** **-VERSUS-** **DIRECTORATE OF CRIMINAL INVESTIGATIONS--1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS -------------2ND RESPONDENT** **RULING** 1. The applicant by way of a notice of motion expressed to be brought under Articles 10,25,28,29,47,48,49(1)(h), 50,165(6) &259 of the Constitution, Bail and Bond Policy Guidelines, 2015 and all other enabling provisions of the law moved this court for the following orders; - 2. THAT the Application be and is hereby certified as urgent and apt for hearing on a priority basis. **(spent**) 3. THAT exparte and pending the hearing and determination of this application this Honourable Court be pleased to grant the Applicant herein Anticipatory Bail at such terms and conditions that this Honourable Court may deem just and fit in the circumstance. 4. THAT ex-parte and pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to restrain the 1st Respondent, his servants, agents or any officer of the National Police Service or any other law enforcement officer from arresting the Applicant herein in relation to business dealings concerned with Tupesh Energy Limited and one Maimuna Adan Sheikh. 5. THAT ex-parte and pending the hearing and determination of this Application, this Honourable Court be and is hereby pleased to restrain the 2nd Respondent, from preferring any charges against the Applicant herein in relation to business dealings concerned with Tupesh Energy Limited and one Maimuna Adan Sheikh. 6. THAT this Honourable Court be pleased to grant the Applicant herein Anticipatory bail at such terms and conditions that this Honourable Court may deem just and fit in the circumstance. 7. THAT this Honourable Court be and is hereby pleased to restrain the 1st Respondent, his servants, agents or any officer of the National Police Service or any other law enforcement officer from arresting the Applicant herein in relation to business dealings concerned with Tupesh Energy Limited and one Maimuna Adan Sheikh. 8. THAT this Honourable Court be pleased to grant an early hearing date for this Application. 9. THAT the Honourable Court do issue such further or other orders that in its discretion may deem fair and just in the circumstances. 10. THAT costs be in the cause. 11. The application was premised on the following grounds;- * 1. That the Applicant herein is the sole director of Tupesh Energy Limited, which is a limited company duly incorporated on 5th February 2019 under the Companies Act,2015. 2. That vide a Ruling delivered and dated the 27th February 2025, the Honorable Court in Milimani High Court Commercial Case No. HCCOMM E051/2024 - ALI ADEN ISSACK AND TUPESH ENERGY LIMITED -v- STATE LAW AND BUSINESS REGISTRATION SERVICE AND ANOTHER gave interim orders inter alia that pending the hearing and determination of that suit, an order is issued suspending the Registrar of Companies letter dated 5th February 2024 from reinstating one Maimuna Adan Sheikh as a director of Tupesh Energy Limited. 3. That the said Maimuna Adan Sheikh lodged a complaint to the 1st Respondent herein against the Applicant herein alleging that the Applicant unlawfully forged her signature and fraudulently removed her as a shareholder and director of Tupesh Energy Limited. 4. The 1st Respondent made investigations into the matter and vide a letter dated 5th January 2026, advised the Applicant and Ms. Sheikh to explore diversion on or before 22nd January 2026. 5. That the Applicant and Ms. Sheikh have since failed to come up with a mutually acceptable resolution in the matter because the complainant's demands are not viable to the Applicant and they are the same demands made before the High Court Commercial Case which matter is still active and pending a hearing. 6. That as a result of the 1st Respondent's directives and the timelines therein, the Applicant is under imminent threat of arrest by the 1st Respondent and is living fearfully yet he is a law-abiding citizen who is, as he has always been, ready and willing to cooperate with the 1st Respondent. 7. That the Applicant is a respected family man and the imminent unceremonious arrest and arraignment to court is likely to erode his dignity and the respect that the society has given him yet he has not done any wrong and he is willing to cooperate with the Respondents to achieve the ends of justice. 8. That the Respondents will not suffer any prejudice if the orders sought are granted. 9. That if the court does not grant the Applicant anticipatory bail, he will suffer grave injustice and embarrassment of monumental proportion. 12. The applicant further supported the application through his own affidavit sworn on 20th January 2026. 13. The applicant deposed that he is a director of Tupesh Energy Limited, a company incorporated under the Companies Act. 14. The applicant explained that the High Court in Milimani Commercial Case No. HCCOMM E051 of 2024 issued interim orders suspending the implementation of a Registrar of Companies letter that sought to reinstate Maimuna Adan Sheikh as a director of the company pending the hearing and determination of the suit. 15. He went on to aver that Maimuna Adan Sheikh, who is his former wife following their divorce in July 2024, lodged a complaint with the 1st Respondent alleging that he forged her signature and unlawfully removed her as a shareholder and director of Tupesh Energy Limited. 16. The Applicant further stated that after investigations, the 1st Respondent advised both parties through a letter dated 5th January 2026 to explore diversion before 22nd January 2026. 17. According to the applicant through his advocates he expressed willingness to engage in the diversion process and invited the complainant to share her proposals. 18. The complainant’s advocates later forwarded proposals which, according to him, mirror the demands raised in her defence in the pending High Court commercial dispute. 19. The applicant averred that he is uncomfortable with those demands as the same issues are already scheduled for hearing before the High Court on 10th March 2026. 20. The Applicant stated that the parties failed to reach a mutually acceptable resolution and as a result he now faces an imminent threat of arrest by the 1st Respondent due to the timelines given. 21. The applicant maintained that he is a law-abiding citizen who has always been ready and willing to cooperate with investigations. 22. He further stated that he is a respected family man and that his intended arrest and arraignment would cause him embarrassment, erode his dignity and damage the respect he enjoys in society despite his innocence. 23. He further averred that the Respondents will not suffer prejudice if the orders sought are granted and that failure to grant anticipatory bail will occasion him grave injustice and embarrassment. 24. The respondents did not file a response in this matter and at the time of writing this ruling there was nothing on the CTS from both respondents even though Mr Mogere Counsel stated that they had done so. 25. The victim too did not file any affidavit but was also heard together with the other parties on 7th may 2026. **APPLICANT’S SUBMISSIONS** 1. The applicant through Ms Masaki submitted that their application for anticipatory bail was anchored on the provisions Article 49(1) (h) on the right to bail and the right to a fair hearing under Article 50. 2. The court was told that the applicant and the complainant were Ex-husband and Ex -wife. 3. According to the applicant the Complainant wants him arrested alleging that she was fraudulently removed a s a director of the company. 4. The applicant contended that there is a HC COM E051/2024 Alid Aden Isack & Tupesh Energy Ltd Vs. State Law and Business Registration Service and Another that is pending before the Commercial Division of the High Court and the complainant is the first defendant in the suit. 5. According to the applicant Interim orders were issued on 5/2/2025 directing the Registrar of Companies to regularize their records by removing the complainant from the list of Directors. 6. It was submitted by Ms Masaki that the two had previously resolved to have her removed as a director and the wrote to have her removed. 7. The applicant further informed the court that the commercial matter is scheduled for hearing on 26th June 2026 before the Commercial Court Division of this court. 8. The applicant maintained that the issues the complainant wants to have him charged over are at the centre of the High court Commercial proceedings. 9. The applicant pleaded with this court to halt the intended criminal prosecution to await the decision of the commercial court as to who is to be retained as a director and the ownership of the company. 10. The applicant informed this court that he is the one who takes care of their 3 children thus his arrest would curtail provisions to the children. 11. The children were said to be of tender years. 12. The applicant urged this court to order the parties to submit to the authority of the commercial court before they can exercise the option of prosecution. **RESPONDENT’S SUBMISSIONS** 1. Mr. Mogere Prosecution Counsel opposed the application and stated that he was relying on an affidavit sworn on 8/4/2026 by CPL Alice Waithera the investigating officer. The affidavit as stated earlier in this ruling was not placed in this file in the form of a hard copy and neither was it uploaded onto the CTS as of 29th May 2026 when this court was writing the Ruling. 2. The court was therefore left to consider the oral submissions made by counsel at the hearing of the application which in any event touched on all the critical issues raised by the applicant thus the respondents did not stand to suffer any prejudice. 3. Counsel submitted on the Independence of the DPP in making prosecutorial decisions as well as that of the police to investigate crimes under Articles 157 & 243 of the Constitution of Kenya respectively. 4. Mr Mogere submitted that there was a complaint made by way of letter dated 24th March 2025 to the police which triggered the investigations into this matter. 5. According to counsel after the investigations were done the file was forwarded to the DPP who made a decision dated 18th December 2025 recommending two charges against the applicant. 6. The ODPP also advised parties to try and amicably resolve the matter or else the matter would proceed to court. The DCI wrote a letter dated 5/11/2026 reforwarding the file thus seeking further directions after the parties had failed to reach a compromise. 7. Upon receipt of the letter by the DCI the DPP by a letter dated 3/3/2026 recommended that the applicant be formally charged. 8. The issue of the existence of the civil proceedings before the DPP could make his decision to prosecute, counsel stated that he could not tell from his file whether that matter was brought to the attention of the DPP. 9. According to counsel if the issue is the same in the civil suit, the decision to prosecute may then have to await the decision of the High Court in the matter. **VICTIM’S SUBMISSIONS** 1. Mr. Otieno appeared for the victim and sought to be heard even though he had not filed any affidavit in response to the application and his client was not a party to the application. 2. The court decided to hear him in the spirit of Articles 48 and 50 (7) of the Constitution as read together with the provisions of Sections 9 of the Victims Protection Act. This court considered it unfair to deny the victim an opportunity to address the court even though she had not filed any documents since the ruling of this court would definitely affect her interests in the matter. 3. According to the victim the criminal complaint was instituted in August 2023 by the complainant whereas the civil suit was filed after the criminal complaint in February 2024 by the applicant. 4. The criminal complaint and what the Civil suit seeks are different issues. The criminal complaint is on forgery under section 345 is read with section 349. Penal Code and the Making and uttering a false document which matters according to the victim are purely criminal. 5. According to the victim the civil suit deals with rectification made by the Business Registration Services to the Company records. 6. The victim submitted that she made a complaint to the Business Registration Services who summoned the applicant and together with her. 7. The Business Registration office also summoned and the advocate they did a rectification notice reinstating her is a director. That is what triggered the civil suit. 8. Counsel insisted that by dint of Section 193A of the Criminal Procedure Code both matters should be allowed to proceed. 9. The victim went on to state that there are no exceptional reasons why the applicant should not be arrested. 10. According to the victim the applicant has not argued any unconstitutionality in the decision of the DPP and that he had not cited any authority in support of his case. 11. The victim relied on Article 157 (10) of Constitution independence of the DPP. See **JR 332/2014 R Vs. ODPP & Others ex parte Bedan Mwangi Nduati** where there is none constitutionality or abuse of mandate there is no reason for the court to interfere with the charging decision of the **DPP. Rep vs A.G & 4 Others ex parte Diamond Hachim Lalji -2014-Korir J.** 12. The victim further submitted that the civil suit and the criminal proceedings are distinct. According to her the order by the High Court in the Civil case has no correlation at all with a criminalproceedings intended to be commenced. 13. The victim posited that the DPP complied with their decision to charge guidelines 2019. Parties were given an opportunity to explore settlement and that the complainant did a letter through her advocate and that was not responded to. 14. Ms Masaki in a brief rejoinder to MR. OTIENO argued that the order granted in the Civil Court is still in force and has not been challenged by the victim and that they have indicated that they intend to challenge the order at the hearing. 15. Counsel further submitted that they had written to the victim’s counsel on their intention to pursue diversion and that the applicant moved to court upon realizing there was danger of arrest. 16. The applicant maintained that they had demonstrated a risk of arrest and that the orders sought should be granted. **ANALYSIS AND DETERMINATION** 1. In an application for anticipatory bail the applicant is under duty to demonstrate that there is a real likelihood that he may be arrested at any time if the order is not granted. 2. An anticipatory bail order should however not be used as a shield against any intended prosecution but as a tool to preserve the dignity of the individual under Article 28 as read together with Article 329 of the Constitution which guarantees freedom and security of the person. 3. The order is intended to ensure that those that are to face prosecution do not have their right to liberty curtailed arbitrarily and detained for long hours some through long weekends before they are brought to court for plea. 4. The order does not necessarily affect investigations and does not in any way impede the prosecution in making the decision to prosecute. It serves to promote the respect for the freedom of the person and his inherent dignity. 5. In the instant application the respondents have confirmed that investigations were completed and a decision to charge was made. However, in the intervening period a suit was filed by the applicant in the Commercial Division of this Court being **HCCOM E051 of 2024 Ali Aden Issack and Tupesh Energy ltd vs State Law and Business Registration Service and Another** in which the High Court issued anorder suspending the Registrar of Companies letter dated 5th February 2024 from reinstating one Maimuna Adan Sheikh as a director of Tupesh Energy Ltd. 6. The criminal charges intended to be preferred are in direct connection with the matter of change of Company details at the Registration of Business Service thus one cannot sustain the argument made by the victims that the two matters are unrelated. 7. The Commercial Division of this court is already seized of the matter of the change of records at the Business Registration Services and the victim in his complaint to the police says that there was forgery that happened there thus the basis of her complaint. 8. The court cannot therefore ignore the order issued by a court of concurrent jurisdiction which has frozen Registrar’s action on the matter of records until the parties are heard in that matter. 9. The intended prosecution if it were to commence right away would have to be commenced in the magistrate’s Court. In effect the Magistrate’s court would be inquiring into the issues of registration and any forgery related thereto which matter is before the High Court though in the Commercial Division of the High Court. 10. The decisions of the High Court bind all the Courts below. The initiation of a criminal matter in the Magistrates Court to try a matter directly in issue before the High would be a dangerous move because the order issued by the High Court in the Civil case was geared towards preserving the subject matter to allow a full and conclusive investigation of the facts and a decision is made as to who are the legally recognized directors and whether any change of records happened within the confines of the law. 11. It may as well turn out that the issue of directorship will be fully resolved in the Commercial court thus rendering any intended prosecution otiose. 12. The victims and the respondents anchor their opposition to the application on the provisions of Section 193A of the Criminal Procedure Code. However, in **Haria & 3 Others vs Director, Directorate of Criminal Investigations & 3 Others (Petition E049 of 2021) KEHC 2549 (KLR**), the court stated:- “Although section 193A of the Criminal Procedure Code allows concurrent civil and criminal proceedings, criminal proceedings should not be undertaken where the issue in controversy can be properly and effectively determined through civil proceedings.” 13. Further, in **Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703,** it was held: “It is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. That is an abuse of the process of the court. No matter how serious the criminal charges may be, they should not be allowed to stand if their predominant purpose is to further some other ulterior purpose. The sole purpose of criminal proceedings is not for the advancement and championing of a civil cause of one or both parties in a civil dispute, but it is to be impartially exercised in the interest of the general public interest. When a prosecution is not impartial or when it is being used to further a civil case, the court must put a halt to the criminal process. No one is allowed to use the machinery of justice to cause injustice and no one is allowed to use criminal proceedings to interfere with a fair civil trial. If a criminal prosecution is an abuse of the process of the court, oppressive or vexatious, prohibition and/or certiorari will issue and go forth.....When a remedy is elsewhere provided and available to person to enforce an order of a civil court in his favour, there is no valid reason why he should be permitted to invoke the assistance of the criminal law for the purpose of enforcement. For in a criminal case a person is put in jeopardy and his personal liberty is involved. If the object of the appellant is to over-awe the respondent by brandishing at him the sword of punishment thereunder, such an object is unworthy to say the least and cannot be countenanced by the court... In this matter the interested party is more actuated by a desire to punish the applicant or to oppress him into acceding to his demands by brandishing the sword of punishment under the criminal law, than in any genuine desire to punish on behalf of the public a crime committed. The predominant purpose is to further that ulterior motive and that is when the High Court steps in...”. 14. The applicant has in this matter put the issue of directorship squarely before the judge in the Commercial division and the judge is to hear the parties on the same. 15. The determination of the matter will involve scrutiny of the Business Registration records thus even the issues of alleged forgeries are matter that can properly be canvassed within those proceedings by either party and the decision by the court will definitely affect the decision to prosecute. 16. In **Republic vs AE and 4 Others: Ex-parte Kenneth Kariuki Githii [2014]** **eKLR** the court held that : “It is therefore clear that whereas the discretion given to the Respondent to prosecute criminal offences is not to be lightly interfered with, that discretion must be properly exercised and where the Court finds that the discretion is being abused or is being used to achieve some collateral purposes which are not geared towards the vindication of the commission of a criminal offence such as with a view to forcing a party to submit to a concession of a civil dispute, the Court will not hesitate to bring such proceedings to a halt." 17. The position was confirmed by the Court of Appeal in **Commissioner of Police and Director of Criminal Investigations Department vs. Kenya Commercial Bank and Others Nairobi Civil Appeal No. 56 of 2012** **[2013] eKLR** when it held: “While the law (section 193A of the Criminal Procedure Code) allows the concurrent litigation of civil and criminal proceedings arising from the same issues, and while it is the prerogative of the police to investigate crime, we reiterate that the power must be exercised responsibly, in accordance with the laws of the land and in good faith. What is it that the company was not able to do to prove its claim against the bank in the previous and present civil cases that must be done through the institution of criminal proceedings? It is not in the public interest or in the interest of administration of justice to use criminal justice process as a pawn in civil disputes. It is unconscionable and travesty of justice for the police to be involved in the settlement of what is purely dispute litigated in court. This is case more suitable for determination in the civil court where it has been since 1992, than in a criminal court. Indeed, the civil process has its own mechanisms of obtaining the information now being sought through the challenged criminal investigations.” 18. The DPP is not accused of furthering the interests of either party in this matter and in fact it came out from both counsel for the Complainant and the applicant that they were directed to attempt an amicable settlement which they have been unable to achieve. The issue between them has now found its way into the Commercial Division of this court. Although the victim’s counsel attempted to dissociate the two matters it is clear to this court that the issue of directorship is a central theme. 19. The prosecution counsel informed the court that he was not sure that the DPP in making the decision to prosecute was privy to the civil matter and the orders issued by the High Court. That is an important matter as the DPP is a senior officer of the law whose duty includes the protection of the interests of the administration of justice. It is therefore safe to assume that had the DPP been made aware of the existence of the Civil Suit and the Order by the judge perhaps his decision would have been different. 20. It is in the interests of the administration of justice to ensure that court orders are not undermined through whatever means that parties elect to pursue. 21. In any event the charges of forgery, making and uttering a false document their institution is not subject to any statutory limitation meaning therefore that the intended prosecution of the applicant can be safely held in abeyance to await the decision of the Commercial court on the issue of directorship which is definitely at the center of the intended criminal proceedings. 22. The move would serve the interests of the administration of justice by allowing the High Court to dispense with the Commercial matter before the Magistrate’s court can assume jurisdiction over the criminal matter if at all based on the findings of the High Court in the Commercial matter there will be anything left for inquiry. This will definitely promote judicial harmony in decision making avoiding a situation where a trial court in a criminal matter ends up making a decision on an issue of fact that is the direct subject of inquiry by the High court. 23. The result of the analysis above is as follows;- **a).** the anticipatory bail granted to the applicant in the sum of Ksh 50,000 is hereby confirmed since there is no doubt that there is imminent danger of arrest. **b).** The decision of the DPP to initiate prosecution is stayed pending the conclusion of the Milimani High Court Commercial Division **HCCOM E051 of 2024 Ali Aden Issack and Tupesh Energy ltd vs State Law and Business Registration Service and Another.** **c).** the DPP shall be a liberty to review his decision to prosecute the applicant once the High Court pronounces itself on the issue of Directorship of Tupesh Energy ltd and decide whether or not to carry on with the intended prosecution once the matter in the commercial division is finalized. 1. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 30TH day of JUNE 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Applicant present Ms Masaki for the Applicant Mogere for the Respondent Otieno Watching brief for complainant