https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9503

Bhojwani & another v Director of Public Prosecutions & 2 others (Judicial Review E368 of 2025) [2026] KEHC 9503 (KLR) (Judicial Review) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9503 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E368 of 2025 WM Musyoka, J July 2, 2026 Between Umesh Bhojwani 1st Applicant Kryptonite International Limited 2nd Applicant and Director of Public Prosecutions 1st Respondent Directorate Of Criminal Investigations 2nd Respondent Bella Akinyi 3rd Respondent Judgment 1.These Judicial Review proceedings were initiated under certificate of urgency, by way of an ex parte chamber summons, dated 24th September 2025, in Milimani HCJR Miscellaneous No. E114 of 2025, for leave to commence a Motion for certiorari and prohibition orders, directed at the respondents, to quash the decision to charge the applicants with the offence of cheating, contrary to section 315 of the Penal Code, Cap. 63, Laws of Kenya; and to prohibit the criminal proceedings mounted in Dagoretti MCCRC No. E514 of 2025. 2.The ex parte chamber application was placed before the Judge, and the leave sought was granted, in a ruling delivered on 13th November 2025, where it was directed that the substantive Motion be filed, in a separate cause. 3.The contemplated Motion was filed herein, as directed, dated 24th September 2025. It is supported by the statutory statement filed at the leave stage, and a supporting affidavit, sworn on 24th September 2025, by the 1st applicant herein. 4.According to the statutory statement, dated 24th September 2025, the prayers sought are for a certiorari order, to quash the proceedings in Dagoretti MCCRC No. E514 of 2025, and for a prohibition order, to restrain the prosecution of the applicant in those proceedings. The grounds are that the said prosecution was hinged wholly on a contractual engagement, between the applicants and a company belonging to the complainant, who I supposed is meant to refer to the 3rd respondent. It is averred that a dispute arose over the amounts of moneys claimed by the 3rd respondent, for goods delivered to customers, as the applicants disputed some invoices and delivery records. Instead of the matter being resolved through a civil process, the 3rd respondent escalated the matter to the 2nd respondent, and the 1st respondent drew up charges against the applicants. 5.It is asserted that the invocation of the criminal process amounts to a flagrant abuse of prosecutorial power, as the criminal process is being deployed to compel payment of a debt. It is averred that Article 157(11) of the Constitution and the National Prosecution Policy have been violated. It is argued that the 1st applicant could not be prosecuted in a personal capacity, and there has been a misapprehension on the law of corporate personality, espoused in Salomon vs. Salomon & Company [1897] AC 22. It is further averred that Articles 47 and 50 of the Constitution have been violated. 6.In the verifying affidavit, sworn by the 1st applicant, on 24th September 2025, it is averred that the applicants are charged in Dagoretti MCCRC No. E514 of 2025, with cheating, contrary to section 315 of the Penal Code, and plea was due to be taken on 30th September 2025. It is explained that the dispute arises from a commercial transaction, between them and a company of the complainant, who I suppose is the 3rd respondent herein, described as A-One Plus Auto Limited, over invoices allegedly amounting to Kshs. 841,000.00. The 1st applicant asserts that she never acted in a personal capacity, and did not enter into any agreement with the complainant, and did not make any representations. It is further asserted that the dispute in question, between the applicants and the 3rd respondent, is civil in character, and the invocation of the criminal process is malicious and oppressive, geared at coercing payment of a contested debt. It is also asserted that prosecutorial powers have been abused, for the said prosecution is tainted with malice and ulterior motive. 7.Attached to the statement and verifying affidavit is a copy of the charge sheet, in Dagoretti MCCRC No. E514 of 2025, and a bundle of email correspondence exchanged between the applicants and the 3rd respondent. 8.I see an affidavit of service on record, sworn on 29th September 2025, by Mr. Vincent Nguti Tama, indicating that the respondents were served on 26th September 2025, with the application, dated 24th September 2025, and the orders dated 26th September 2025. A copy of the directions, that Aburili J gave on 26th September 2025, and a copy of a face of a certificate of urgency, are attached. It is on these 2 documents that the acknowledgement of service is indicated. I see 2 stamps embossed on these 2 documents, by the 1st and 2nd respondents. There is no proof that the papers were ever served on the 3rd respondent. 9.I see responses on behalf of the 1st respondent, dated 9th March 2025 and 21st October 2025. They take the form of grounds of opposition. The grounds revolve around concurrent civil and criminal proceedings not being a bar to the intended criminal charges; grant of leave and the prayers sought amounting to judicial overreach; the application being founded on contested facts, which would be best tested at the contemplated trial in Dagoretti MCCRC No. E514 of 2025; the institution of the criminal proceedings being informed solely by sufficiency of evidence and public interest; the application being informed by the dismissal by the trial criminal court of an application, by the applicants, for a rejection of the charges; and the application being a strategy to delay the hearing and disposal of the criminal matter in Dagoretti MCCRC No. E514 of 2025. 10.As indicated hereabove, there is no proof of service on the 3rd respondent. However, I see, from the record herein of 11th February 2026, that the 3rd respondent attended court, and indicated that she was going to rely on the filings by the 1st and 2nd respondents. 11.The only written submissions that I see on the record are by the applicants. They are dated 19th March 2025, and identify only 1 issue for determination, and that is whether the decision to investigate and prefer charges is ultra vires, unreasonable and an abuse of the criminal justice process. The decisions in Commissioner of Police & Director of Criminal Investigations Department & another vs. Kenya Commercial Bank Limited & 4 others [2013] KECA 182 (KLR), Republic vs. Director of Public Prosecutions & 2 others Ex-parte Praxidis Namoni Saisi [2016] KEHC 5698 (KLR), Republic vs. Attorney General & another ex parte Kipng’eno Arap Ng’eny [2001] KEHC 746 (KLR), Ulrich Krueger vs. Director of Public Prosecutions & 3 others [2018] KEHC 3221 (KLR), Kuria & 3 others vs. Attorney General [2022] KEHC 1215 (KLR), Stanley Munga Githunguri vs. Republic [1986] KEHC 44 (KLR) and Irungu vs. Director of Public Prosecutions & 4 others Githinji & 3 others (Interested Parties) [2025] KEHC 11882 (KLR) are cited. 12.There are only 2 issues for this court to determine, whether the High Court can intervene, through judicial review, with respect to the investigative and prosecutorial functions of the 1st and 2nd respondents; and whether there is any merit in the instant application. 13.On the first issue, the starting point should be with stating that the 1st and 2nd respondents are entities within the Executive branch of the State, with clear constitutional and statutory foundations for their mandates. The court belongs to the Judicial branch of government, with its own clear constitutional and statutory lanes. The doctrine of separation of powers, set out in Articles 1(3) and 174(i) of the Constitution, expects each branch of government to stick to its own lane. The provisions of the Constitution, in Article 157, Chapter Ten and Chapter Fourteen Part 4, which set up the investigative, prosecutorial and judicial authorities, all assert the decisional independence of each of these authorities, in the discharge of their respective mandates. 14.However, the independence stated in those provisions is not altogether without limits. The Constitution, at Article 10, sets out the national values and principles of governance that ought to guide public bodies in the discharge of their duties. They bind all State organs, State Officers and public officers, who have to apply and interpret the Constitution and the law, and implement public policy. The values and principles include rule of law, human dignity, equity, social justice, good governance, integrity, transparency and accountability. The independence of the State organs, entities and offices has to be exercised within the framework of these values. 15.These national values and principles find expression in the Bill of Rights, that is Chapter Four of the Constitution. The courts, particularly the High Court, are at the very core of the implementation and enforcement of the Bill of Rights, as the guardians of constitutional rights and freedoms, and they are where the people run to whenever their rights and freedoms are violated, infringed or threatened with violation. It is in that context that matters such as the instant one find their way in court. 16.Quite often, in litigation in the realm of public law, in such cases as this one, one gets the sense that some State organs, agencies and offices are uncomfortable with courts intervening into the discharge of their respective mandates. They view such intervention by the courts as interference, and the 1st and 2nd respondents have said as much, in some of their filings in this matter, suggesting that the court would be overreaching, if it were to grant the orders sought herein. The courts do not interfere with discharge of such mandates, for interfering has the negative connotation of meddling with what the courts have no business in, for, in the litigation in the public law arena, the courts merely discharge their duty, conferred upon them by the Constitution and statute, of intervening within the confines of the law. The courts do not seek out or solicit for the filing of cases of this nature, for the cases are filed by members of the public, on their own volition, and, once filed, the courts cannot ignore them or wish them away. 17.The courts are vested with constitutional mandate, under the Bill of Rights, in Articles 22 and 23, and Article 165(3)(b)(d), to entertain any claim, where rights and freedoms are alleged to have been violated or to be in danger of violation. The people equally have a right to rush to court, to challenge decisions of State organs, entities and offices, which have violated their rights or freedoms, or threaten such rights and freedoms. The State should not be irritated, when members of the public file such claims, and when the courts entertain them. The Constitution has provided the framework for it, and the State has no option but to learn to live with that reality, and to abide by what the Constitution requires. Whenever cases of this kind are filed, duty calls, and the courts have no option but to discharge it. Whether the orders sought are ultimately granted would depend on the material placed on record and the merits of the case, and not the level of irritation by the State organs whose decisions are sought to be reviewed. 18.Some of these State organs, bodies, entities and offices view the court as an oddity, being an organ within the State, which should be expected to prop up the State, yet it would appear, sometimes, to operate in a manner which is at odds with the essence of the State. That is a misapprehension of the role and place of the court in the governance structure of Kenya. The court is an institution in law enforcement, and it has a role in maintenance of law and order in society, and it discharges that function effectively, particularly as a criminal court. At the same time, it is vested with the function of standing in between the State, although it is part of the State itself, and the people, to protect the people from the excesses of the State, by its role as a guardian of the Bill of Rights. 19.Executive powers and functions are limited, by the Constitution itself and any governing legislation. They are to be discharged within the narrow confines of what the Constitution and the governing legislation provide. Since they are limited, they would be open to challenge, by any person affected. The Constitution has provided pathways for such challenges. The key remedies available, which are identified in the Constitution, and elaborated in legislation, include certiorari, mandamus, prohibition and declarations. The applicants herein are seeking some of these reliefs. 20.The long and short of it is that the applicants would be within their constitutional and statutory rights, to challenge the discharge of the investigative and prosecutorial functions by the 1st and 2nd respondents, and the court is within its constitutional and statutory function, to entertain such a challenge. The court cannot stand accused of judicial overreach, or interference with the functions of other State bodies, when it entertains causes over which it has constitutional and statutory mandates. 21.On the second issue, with respect to the merits of this case, I will start by stating that these are judicial review proceedings. The function of the court, seized of such proceedings, is to review and evaluate the decision being challenged, not on its merits, for that lies within the mandate of the decision-maker, but on the basis of the process leading up to the making of the impugned decision. Of course, the review or evaluation cannot possibly avoid considering some of the matters from a point of view of merit, for process is intertwined with merit. However, the core remains the process, not the merits. The parameters for review are legality, rationality and procedural fairness. See Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300. 22.Although the written submissions, by the applicants, appear to suggest that the decisions challenged are those by the 1st and 2nd respondents, relating to investigations and prosecution, my reading of the prayers would reveal that it is only 1 decision being challenged, and that is that relating to prosecution, by the 1st respondent. Investigations were completed, and the matter moved to the stage of prosecution. What is before me are not issues around investigations, but the prosecution. Prayer 1 seeks the order of certiorari, to quash the proceedings in Dagoretti MCCRC No. E514 of 2025. What is happening before the court, in Dagoretti MCCRC No. E514 of 2025, are not investigations, but the prosecution of the applicants. Prayer 2 is about prosecution and continuation of criminal proceedings. The investigations were completed, hence the prosecution in Dagoretti MCCRC No. E514 of 2025. 23.For that reason, I shall confine my judgement to the matter of the prosecution, and not the investigations. I reiterate, the investigations were completed, after which the 1st respondent took over, and initiated the prosecution. There is nothing to quash and prohibit, therefore, so far as the investigations are concerned. That is now water under the bridge. The investigations cannot be undone, for investigations mean nothing more than the police going out there to make enquiries, conduct interviews, call for and examine documents, record statements, gather material evidence of one kind or other, and related matters. Once that is done, it cannot be undone, by quashing or prohibition. There is simply nothing to quash or prohibit there. 24.It is common ground, that the 1st respondent is mandated by the Constitution and the relevant statutes to conduct public prosecutions, and in that regard, to work closely with the police authorities. That is what appears to be what was done in this case. After the 2nd respondent received the complaint, supposedly from the 3rd respondent, inquiries were made and investigations were conducted, and findings forwarded to the 1st respondent, as the prosecuting authority, with what was considered to be appropriate recommendations. The 1st respondent, upon receipt of the investigation record and the recommendations, approved the prosecution, framed the charges, and had the applicants answer to them. The applicants have not established, from the material that they have placed before me, that there was illegality in the manner the 1st respondent discharged its responsibility, of receiving the investigation file, and in making a decision on whether a prosecution should be conducted or not. The 1st respondent did what the Constitution has authorised him to do. There is no proof that the 1st respondent acted outside what the law allows and enables him to, or purported to exercise a power, mandate or function that he did not have legal authority to exercise. 25.Rationality and reasonableness go together, and they call for venturing into the merits, to assess whether, based on the facts that were before the decision-maker, the 1st respondent in this case, the decision arrived at was rational or reasonable. 26.The case, by the applicants, is that the dispute herein turned on a commercial transaction that they had with the 3rd respondent. According to them, the same centres around accounts, for they have questioned some invoices and delivery records relied upon by the 3rd respondent. It is suggested that the 3rd respondent has not been patient enough to have the issue resolved amicably, instead he has rushed to the police. They suggest that the dispute is not a matter for the police, for it is commercial or contractual in nature, hence it has the character of a civil dispute, which ought to be placed before the civil courts. 27.To support their case, they have attached some documents to their application, to demonstrate that the matter is commercial or contractual in nature, hence it ought to be resolved at the civil court. The attachments comprise of 8 emails exchanged between the parties, that is to say the applicants, on one hand, and the 3rd respondent, on the other. 28.I doubt that the material exhibited is of any value to the case by the applicants. The case herein is about the decision that the 1st respondent made, to prosecute the applicants. The 1st respondent usually makes such decisions based on investigation material placed before him by the 2nd respondent. That material would, in the context of the instant case, include the complaint received from the 3rd respondent, any statements recorded by the 3rd respondent and her witnesses, any documents supplied by the 3rd respondent, and any other collected independently by the 2nd respondent. The recommendation to prosecute, and the decision itself to prosecute, are founded on that investigation material. Whether the decision to prosecute is properly founded, in terms of the process of making it, and its merits, would depend on that investigation material. That is material that a court, seized of a judicial review application, ought to have before it, to enable it evaluate whether the decision of the 1st respondent was rational and reasonable. Without that material, the court would have no basis, whatsoever, to evaluate the decision to prosecute, within the parameters of rationality and reasonableness. 29.I reiterate, that the applicants have only filed 2 categories of documents, the charge sheet and the bundle of email correspondence referred to above. The charge sheet does not form part of the investigation material that formed the basis for the decision by the 1st respondent. The investigation file, prepared by the 2nd respondent, carries the evidential material, that the 1st respondent would place before the trial criminal court. It contains the case to be presented, the material upon which the prosecution is to be founded. The charge sheet is not evidence, but the pleading in the criminal matter. I have no idea whether the bundle of email correspondence forms part of the evidence that the 2nd respondent collected, and presented to the 1st respondent, and whether it forms part of the evidence that the 1st respondent intends to use in the prosecution. 30.Without copies of the statements recorded from the witnesses that the 1st respondent intends to call, and all the other evidence that he intends to place before the trial criminal court, it would be impossible for me to assess the rationality or reasonableness, or lack of it, of the decision to prosecute. I am invited to evaluate the decision of the 1st respondent, which I can only meaningfully do when I have before me the same material that was before him, when he made the impugned decision. 31.I am alive to the fact that the said material is in the hands of the 1st and 2nd respondents, for the 2nd respondent collected it, and the 1st respondent intends to use it at the criminal trial. However, it is the applicants who have come to court, with their allegations, that there was something the matter with the decision to prosecute. The duty or burden is on them, to place on record the relevant material, to establish that which they allege, for he who alleges must prove. They have not discharged that burden. That burden does not shift to the 1st respondent, merely by the filing of the judicial review application. There is always the possibility that the 1st respondent may choose not to respond, and, indeed, not to participate in the judicial review proceedings. The court, in the event of such an eventuality, would still be bound to make a decision, on the judicial review application, on its merits. The court would not allow the application as prayed, for lack of a response, for it would still require the applicants to make out a case for grant of the orders sought, by marshalling evidence to support that which they allege. 32.I doubt that the applicants have a good reason for not placing that material before me. Kenya is in a constitutional dispensation where, under Article 50 of the Constitution, there is a right to access prosecution material ahead of the criminal trial commencing in earnest. I have seen, from the grounds of opposition, an averment that the applicants did appear before the trial criminal court, although it is not clear whether plea was taken, but there is a suggestion that the applicants sought to have the charges rejected, but their plea was dismissed. It should be clear, therefore, from that averment, that the criminal matter has commenced, and the applicants ought to have had access to the advance prosecution evidence, which they should have filed herein. 33.Even if the 1st respondent has not furnished them with that evidence at the trial criminal court, in advance, the Constitution, at Article 35, guarantees them the right of access to that information, which they could enforce by making representations at the trial criminal court, or through the Commission on Administrative Justice. It is material that the Constitution guarantees, and which the applicants could access, if they wanted to. 34.The matter would, perhaps, have been salvaged, if the respondents had chosen to place evidential material on record, in their responses. As fate would have it, the 3rd respondent was never served, while the other 2 respondents were served, but chose not to file evidence, but grounds instead. They were under no obligation to file evidence. The burden of proof was on the applicants, as the parties moving the court, to present evidential material to the requisite threshold, to support their allegations, in their quest to obtain the orders sought. The respondents could only file material to respond to the material placed on record by the accusers. The applicants chose to file bare evidence, just a bundle of email correspondence. That material was not adequate, to entice the respondents to file counter-evidence. The respondents were not obliged to improve the case by the applicants, by filling the evidential gaps in it. 35.Without evidence from both sides, of what the 1st respondent had before him, when he decided to charge, which would also be the evidence that he has in his hands, which he proposes to place before the criminal court, I have nothing upon which I can make the determinations that the applicants are inviting me to make. The bare bundle of email correspondence is not adequate material, for I have no idea whether that was what the 1st respondent had before him, when he was making the decision to charge the applicants. I cannot tell whether that is the evidence or the only evidence that he would be relying on to prosecute, or whether there is other evidence which has not been filed herein. 36.The applicants argue that their dispute with the 3rd respondent is civil in nature, and ought to have been taken to the civil court. The collection of a debt could be a civil matter. However, there could also be elements, of the transaction, that are tainted with criminality, in respect of which criminal proceedings can be initiated. Civil and criminal matters are not mutually exclusive, so that once a transaction is identified as commercial, or contractual, or civil, or a debt, that alone would take it away from the realm of criminal law. Civil and criminal remedies can be pursued simultaneously, for section 193A of the Criminal Procedure Code, Cap. 75, Laws of Kenya, does allow simultaneous or parallel proceedings. 37.So, on the face of it, there would be nothing wrong with being prosecuted for an offence, even if the issues around that could also be litigated at the civil court. Money or goods obtained through cheating, can be recovered through the civil process, but that would not obviate prosecution, based on the same facts. The reliefs, from the 2 processes, would be different. The objective, in the civil process, would be to recover compensation for the loss suffered or occasioned by the act of cheating or dishonesty, while that in the criminal process would be to punish, for the offence of cheating or dishonesty. 38.Much as section 193A of the Criminal Procedure Code allows simultaneous or parallel civil and criminal proceedings, in some circumstances it may not be prudent to pursue both civil and criminal remedies. Whether section 193A should be invoked must be informed by concrete evidence of what transpired, so that the court can gauge whether to let the 2 processes go on simultaneously, or to stay one to allow the other run its course, if it would be just to do so, where having both processes run parallel would be prejudicial to some of the parties, or likely to expose the system to disrepute. The evidence presented herein is miniscule. It cannot provide any basis for me to evaluate whether or not the civil and criminal proceedings can proceed simultaneously in this case. 39.The 1st applicant cites company law, to argue that it would be improper to prosecute her for the sins of the 2nd applicant. Limited liability companies can commit offences. Under Kenyan law, a limited liability company is a legal person distinct from its owners, and it can be held criminally liable. See Salomon vs. Salomon & Company [1897] AC 22. The limited liability status, however, only protects shareholders’ personal assets; it does not provide a shield from prosecution for criminal conduct. See Republic vs. Director of Public Prosecutions & 2 others (Ex parte Applicant); Atta Kenya Limited & another (Interested Parties) [2024] KEHC 13596 (KLR). There are specific legal principles and procedures with respect to prosecution of such companies. 40.A company is considered to be a legal person, capable of committing crimes, and it can be prosecuted for various offences. This is supported by the general definition of a person, in Kenyan law, which includes companies, associations or bodies of persons, whether corporate or unincorporated. A company can commit offences of strict liability and offences requiring mens rea. For offences requiring mens rea, it would be the actions and mental state of its directing mind and will, being that of the directors and senior management, that would be up for consideration. However, by its nature, a company cannot commit crimes that require physical personal participation. 41.Where a company faces criminal proceedings, much like an individual, there are specific procedures to be followed. Being a legal fiction, a company cannot appear in court physically, and, therefore, its prosecution must involve representation by a human agent. When a company is charged, it must be represented in court, for the purpose of taking plea, by a duly authorised officer, ordinarily a director or a senior manager. A company can be directly charged with the offence, as a principal offender, where it has to be established that the offence was committed by the company, either through its policies, culture or its directing mind. It can also be charged jointly with its directors or managers, where the culpability of both the company and the individuals responsible for its actions has to be established. 42.In Republic vs. Director of Public Prosecutions & 2 others (Ex parte Applicant); Atta Kenya Limited & another (Interested Parties) [2024] KEHC 13596 (KLR), a director cited Salomon vs. Salomon & Company [1897] AC 22, to have himself shielded from prosecution, arguing that he could not be personally liable for a business-to-business transaction. That argument was rejected by the court, on the basis that the principle of the separate legal personality of a company is not a shield to the criminal prosecution of a director, on the finding that the mere fact that an impugned transaction was done by a director, for and on behalf of the company, is not adequate reason to conclude that the director was wrongly charged. 43.The position, whether the company and the director should appear in a joint charge, remains a significant point of law open to argument. My inclination would be to hold that the company ought to be charged jointly with the director or manager, given that the offence is committed by the company, or the offending omission or commission was done in the name of the company. Being an artificial person, a company cannot be charged alone. It must be charged alongside its directors or managers, who would be the persons to account on its behalf. It would be illogical, therefore, for the 1st applicant to argue that the 2nd applicant should stand charged alone. 44.On procedural unfairness, the applicants have not alluded to any incidence of the same, and none of the material placed on record point to it. 45.In view of everything said here above, I find and hold that there is no merit in the Motion, dated 24th September 2025. The same is hereby dismissed. The stay order, granted on 13th November 2025, is hereby discharged. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 2ND DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Tama, instructed by Alex & Amersi LLP, Advocates for the applicants.Ms. Kihara, instructed by the Director of Public Prosecutions, for the 1st and 2nd respondents.Ms. Eunice Bella Akinyi Oile, the 3rd respondent in person.