https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12633

Auma v Republic & 3 others (Petition E008 of 2026) [2026] KEHC 12633 (KLR) (5 August 2026) (Judgment) Neutral citation: [2026] KEHC 12633 (KLR) Republic of Kenya In the High Court at Kibera Petition E008 of 2026 DR Kavedza, J August 5, 2026 Between Jacob Okoth Auma Petitioner and Republic 1st Respondent Romuald Jofez 2nd Respondent Robert Sidhe 3rd Respondent Kibera Magistrate’S Court 4th Respondent Judgment Background 1.The Petitioner filed the present constitutional petition together with an application seeking, among other reliefs, an order staying the proceedings in Kibera Chief Magistrate's Criminal Case No. MCCR E1322 of 2020, Milimani Commercial Civil Suit No. E796 of 2024, and Disciplinary Tribunal Cause No. DTC/323/2024 pending the hearing and determination of the petition. 2.The petition arises from criminal proceedings in which the Petitioner and the 3rd Respondent were jointly charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. The Petitioner contends that the conduct of the prosecution, the complainant and the relevant prosecutorial authorities during the pendency of those proceedings have violated his constitutional rights and rendered the criminal trial unfair. 3.The petition is founded upon the alleged unequal treatment of the co-accused persons, the manner in which settlement negotiations were undertaken, and the continuation of criminal, civil and disciplinary proceedings arising from the same transaction. The Petitioner therefore seeks constitutional intervention to halt the impugned proceedings. The Petitioner's Case 4.The Petitioner contends that although he and the 3rd Respondent were jointly charged in the criminal case, they were treated unequally throughout the proceedings. He alleges that while he was required to attend court physically, the 3rd Respondent was permitted to participate virtually from outside the jurisdiction without any lawful or recorded justification. According to the Petitioner, this differential treatment amounted to discrimination and violated his constitutional right to equal protection and equal benefit of the law. 5.The Petitioner further avers that the 2nd Respondent initiated negotiations for an out-of-court settlement and subsequently proposed terms requiring him to pay substantially higher amounts than those demanded from the 3rd Respondent. He states that despite raising concerns regarding the disparity, the 2nd Respondent proceeded to conclude a settlement with the 3rd Respondent on significantly more favourable terms. Although the Petitioner later expressed his willingness to settle the matter amicably and made a counter-proposal, the 2nd Respondent allegedly rejected it and instead demanded substantially higher sums, which the Petitioner characterises as unreasonable, oppressive and intended to achieve unjust enrichment. 6.It is the Petitioner's case that the 4th Respondent failed to intervene or address the alleged unequal treatment and instead accepted the settlement reached between the 2nd and 3rd Respondents. He contends that by permitting one co-accused to settle the dispute while allowing the prosecution against him alone to continue, the prosecutorial process ceased to be exercised independently and became improperly influenced by the complainant, contrary to Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act. 7.The Petitioner also complains that the same dispute has generated criminal, civil and disciplinary proceedings, all founded upon substantially similar facts. He asserts that the multiplicity of proceedings amounts to harassment, persecution and an abuse of the judicial process. He further alleges that the 2nd Respondent has pursued inconsistent monetary claims in the different proceedings and has deliberately sought to exclude the 3rd Respondent from certain civil proceedings notwithstanding judicial findings that the latter was a party in the transaction. 8.The Petitioner consequently maintains that the cumulative conduct of the Respondents has violated his rights under Articles 19, 20, 21, 22, 23, 25(c), 27, 28, 47 and 50 of the Constitution. He therefore prays for, among other reliefs, orders staying the criminal, civil and disciplinary proceedings and such further constitutional remedies as the Court may deem appropriate. The 2nd Respondent's Case 9.The 2nd Respondent opposes both the petition and the accompanying application through Grounds of Opposition dated 2nd June 2026. The 2nd Respondent contends that the petition is misconceived, premature and constitutes an abuse of the court process. It is asserted that the petition is a collateral attack on the pending criminal proceedings after the Petitioner had already been placed on his defence. According to the 2nd Respondent, the petition is intended to delay and frustrate the conclusion of the criminal trial, which has allegedly been repeatedly adjourned at the Petitioner's instance. 10.The 2nd Respondent further maintains that the criminal proceedings should be allowed to proceed to their logical conclusion and that the Petitioner has adequate remedies through the ordinary appellate and review processes should he be dissatisfied with the outcome. It is also contended that the existence of parallel criminal, civil and disciplinary proceedings does not amount to double jeopardy, as each proceeding serves a distinct legal purpose and the Constitution permits concurrent proceedings where appropriate. 11.The 2nd Respondent denies that the Petitioner's constitutional rights have been violated and argues that the alleged infringements have neither been pleaded with precision nor supported by evidence. It is further asserted that the settlement reached with the 3rd Respondent does not extinguish the Petitioner's individual criminal liability and that prosecutorial decisions remain within the constitutional mandate of the Office of the Director of Public Prosecutions. 12.The 2nd Respondent also challenges the Petitioner's reliance on the complainant's foreign conviction, contending that it is irrelevant to the present proceedings and is intended solely to prejudice and scandalise the complainant. It is maintained that the Petitioner remains presumed innocent and that being placed on his defence is merely a procedural step in the criminal process. 13.Finally, the 2nd Respondent contends that the Petitioner has failed to demonstrate exceptional circumstances warranting constitutional intervention or any irreparable prejudice incapable of being remedied through the normal criminal process. He therefore urges the Court to dismiss the petition and permit the criminal, civil and disciplinary proceedings to continue to their respective conclusions. Issues for Determination 14.Having considered the pleadings, the written submissions on record and the applicable law, the issues arising for determination are:i.Whether the Petitioner's constitutional rights and fundamental freedoms were violated or threatened by the conduct of the Respondents in the institution, management and continuation of the criminal, civil and disciplinary proceedings, including the impugned settlement process.ii.Whether, in the circumstances of this case, the Petitioner is entitled to the constitutional reliefs sought, including the stay of the proceedings in Kibera Chief Magistrate's Criminal Case No. MCCR E1322 of 2020, Milimani Commercial Civil Suit No. E796 of 2024, and Disciplinary Tribunal Cause No. DTC/323/2024. Whether the Petitioner's constitutional rights and fundamental freedoms were violated by the conduct of the Respondents in the institution, management and continuation of the criminal, civil and disciplinary proceedings 15.The Petitioner contends that his constitutional rights under Articles 27, 47 and 50 of the Constitution were violated through unequal treatment during the criminal proceedings, the settlement process undertaken by the parties, and the simultaneous institution of criminal, civil and disciplinary proceedings arising from the same transaction. 16.Article 157(6) of the Constitution vests the Director of Public Prosecutions with the power to institute and undertake criminal proceedings, while Article 157(11) requires the Director, in exercising that mandate, to 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. 17.The Petitioner principally complains that whereas the 3rd Respondent was permitted to settle the dispute with the 2nd Respondent on terms acceptable to both parties, his own settlement proposal was rejected, thereby amounting to unequal treatment. The record demonstrates that the learned trial court actively encouraged the parties to explore an amicable settlement pursuant to Section 176 of the Criminal Procedure Code, which provides:“In all cases the court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court." 18.Although the offence facing the parties was not one that could itself be compromised under Section 176, there was nothing improper in the trial court encouraging the parties to explore alternative dispute resolution mechanisms regarding the financial dispute that underlay the criminal complaint. Whether such negotiations culminated in a settlement depended entirely upon the willingness of the affected parties. The fact that one accused person successfully negotiated a settlement while another did not cannot, without more, amount to discrimination or unequal treatment. Settlement is, by its very nature, consensual and cannot be imposed upon an unwilling party. 19.Once the negotiations between the Petitioner and the 2nd Respondent failed to bear fruit, the trial court was entitled to proceed with the criminal case to its logical conclusion. The Petitioner has not demonstrated that the rejection of his settlement proposal was occasioned by the prosecution or the trial court, or that it resulted from any unconstitutional conduct attributable to the said Respondents. Mere dissatisfaction with the outcome of negotiations does not translate into a violation of constitutional rights. 20.The Petitioner has equally alleged that the existence of criminal, civil and disciplinary proceedings founded upon the same transaction amounts to harassment, persecution and double jeopardy. Section 193A of the Criminal Procedure Code, which expressly provides:“Notwithstanding 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." 21.The legal position is therefore settled that the mere existence of parallel proceedings does not constitute an abuse of the court process. In Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013] KECA 182 (KLR), the Court of Appeal stated:“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 that power must be exercised responsibly, in accordance with the laws of the land and in good faith..." 22.Likewise, the Court in Peter Macharia Ruchachu v Director of Public Prosecution & another [2014] eKLR emphasised that the Court will only intervene where criminal proceedings are being used for collateral purposes or to exert pressure in a civil dispute. The burden therefore rests upon the petitioner to demonstrate, that the prosecution is actuated by malice, bad faith or ulterior motive. 23.In the present case,the fact that one co-accused reached a private settlement with the complainant does not extinguish the criminal liability, if any, of the Petitioner, nor does it render the continuation of the prosecution unconstitutional. Beyond the allegations made in the petition, no material has been placed before the Court to demonstrate that the criminal proceedings were instituted for an improper purpose or that the prosecutorial discretion under Article 157 of the Constitution was exercised unlawfully. I therefore find that the Petitioner has failed to establish any infringement of his constitutional rights under Articles 27, 47 or 50 of the Constitution. 24.The allegations of unequal treatment remain unsubstantiated, while the existence of concurrent criminal, civil and disciplinary proceedings is expressly sanctioned by Section 193A of the Criminal Procedure Code. Whether the Petitioner is entitled to the constitutional reliefs sought 25.Having found that the alleged constitutional violations have not been established, it follows that the foundation upon which the reliefs sought rests is unsustainable. The jurisdiction of this Court to interfere with pending criminal proceedings is exercised sparingly and only in clear cases where the prosecution is shown to be oppressive, malicious, instituted for an ulterior purpose, or otherwise amounts to an abuse of the court process. 26.In Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the Court stated:“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation... The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta..." 27.The present petition does not disclose such exceptional circumstances. The record instead shows that the criminal proceedings have progressed through the ordinary judicial process, that attempts were made before the trial court to encourage an amicable resolution of the dispute, and that upon the failure of those negotiations, the trial court correctly proceeded with the case. The Petitioner has not demonstrated that compelling him to proceed with the criminal trial would occasion any constitutional prejudice incapable of being remedied within the criminal justice system or, if necessary, through the appellate process. 28.Consequently, this Court finds no basis for staying or otherwise interfering with the proceedings in Kibera Chief Magistrate's Criminal Case No. MCCR E1322 of 2020, Milimani Commercial Civil Suit No. E796 of 2024, or Disciplinary Tribunal Cause No. DTC/323/2024. The Petitioner has failed to establish any constitutional violation warranting the intervention of this Court. 29.The petition is consequently dismissed in its entirety with no orders as to costs.Orders accordingly. JUDGMENT DATED AND DELIVERED VIRTUALLY THIS 5TH DAY OF AUGUST 2026D. KAVEDZAJUDGEIn the presence of:Ms. Kimanga for the PetitionerMs. Otiya h/b for Mr. Mutuma for the 1st RespondentNo appearance for the 2nd and 3rd RespondentMs. Karimi Court Assistant.