https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7015

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E506 OF 2025** **IN THE MATTER OF CONSTITUTIONAL INTERPRETATION, PROTECTION AND ENFORCEMENT OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 19, 20, 21, 22, 23, 27, 28 AND 50 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE PENAL CODE CAP 63 LAWS OF KENYA AND IN THE MATTER OF THE CHIEF MAGISTRATES’ COURT ACT, 2015 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013** **BETWEEN** **ELIZABETH NJERI CHEGE.....................................................................PETITIONER** **VERSUS** **THE DIRECTOR OF PUBLIC PROSECUTIONS...................................1ST RESPONDENT THE CHIEF MAGISTRATE AT MAKADARA......................................2ND RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petitioner, Elizabeth Njeri Chege, moved this Honourable Court by way of a Petition dated 11th August 2025. She seeks constitutional redress arising from criminal proceedings instituted against her before the 2nd Respondent in Makadara Chief Magistrate’s Court Criminal Case No. E3963 of 2024, where she is charged with the offences of assault causing actual bodily harm and causing grievous harm to one Elizabeth Wangari Maina, her sister-in-law. The Petitioner contends that the said criminal proceedings constitute a gross violation of her fundamental rights and freedoms under Articles 27, 28, and 50 of the Constitution of Kenya, 2010, essentially arguing that she is the actual victim of an assault who has been unlawfully transformed into an accused person. 2. The 1st Respondent, the Director of Public Prosecutions (DPP), opposes the Petition through a Replying Affidavit sworn on 3rd September 2025 by No. 95613 CPL. Moses Okello, the investigating officer, asserting that the prosecution was instituted following proper investigations that revealed sufficient evidence to sustain the charges against the Petitioner. The 2nd Respondent, the Chief Magistrate at Makadara, filed Grounds of Opposition dated 21st August 2025 and Written Submissions dated 28th October 2025, contending that the trial court is acting within its lawful mandate under Article 160 of the Constitution and that the Petitioner has failed to demonstrate any violation of her constitutional rights by the judicial officer. 3. This matter has a procedural history that must be appreciated. The Petitioner filed a Notice of Motion dated 11th August 2025 seeking, inter alia, orders of stay of the proceedings in the criminal case pending the hearing and determination of the Petition. A Certificate of Urgency was filed contemporaneously. The Petitioner subsequently filed a Chamber Summons dated 12th August 2025 seeking to have the application heard during the court’s vacation. The Court granted interim orders and subsequently heard the parties on the interlocutory applications. Having considered the parties’ respective positions, the Court delivered a ruling on the interlocutory applications. All preliminary issues having been determined, the Court now proceeds to hear and determine the main Petition. **BACKGROUND** 1. The Petitioner is a businesswoman engaged in selling second-hand clothes (mitumba) at Korogocho market. She is married to Kenneth Njoroge, and the couple resides within Nairobi County. The complainant in the impugned criminal case, Elizabeth Wangari Maina, is the Petitioner’s sister-in-law, being the sister of the Petitioner’s husband. 2. The genesis of the dispute between the parties traces back to the year 2010. It is the Petitioner’s case that Elizabeth Wangari Maina, who resides in Germany, requested her mother (and the Petitioner’s mother-in-law), Margaret Njeri Gikonyo, to open a bank account on her behalf to facilitate remittances from Germany. Margaret Njeri Gikonyo acceded to this request and opened the said account. The Petitioner avers that Elizabeth Wangari Maina permitted her mother to utilise some of the deposited funds to finance her second-hand clothes business at Gikomba market, on the understanding that the money would be repaid once profits were realised. 3. In 2017, Margaret Njeri Gikonyo withdrew KShs. 200,000/= from the account to stock her business. Tragically, a fire razed down parts of Gikomba market, and all her stock was lost in the inferno. Upon being informed of this loss, Elizabeth Wangari Maina allegedly reassured her mother not to worry, indicating that she would repay the money when her business recovered. 4. The Petitioner, with her husband’s assistance, started her own second-hand clothes business at Korogocho market in 2017. In July 2018, when Elizabeth Wangari Maina returned to Kenya for a vacation, she discovered the Petitioner’s business and allegedly accused the Petitioner of having received the KShs.200,000/= from their mother to start her business. The complainant further accused her mother of lying about the fire loss and instead giving the money to the Petitioner. This accusation was made without any evidentiary basis, according to the Petitioner. 5. The dispute escalated, leading to a report being made at Mowlem Police Post. On 10th August 2018, the police summoned all relevant parties. After listening to all sides, the police directed Elizabeth Wangari Maina to leave the Petitioner and her husband out of the money dispute and to confine her claim against her mother, Margaret Njeri Gikonyo. It was mutually agreed that Margaret Njeri Gikonyo would repay the KShs.200,000/= in installments. 6. For about four years, the matter lay dormant. However, in July 2022, when Elizabeth Wangari Maina returned to Kenya, she allegedly resumed her verbal attacks and threats against the Petitioner, demanding repayment of the money or threatening harm. 7. The situation came to a head on 28th July 2022. The Petitioner contends that Elizabeth Wangari Maina, accompanied by a friend named Margaret Wamaitha Kamau, physically assaulted her at her place of business in Korogocho market while she was breastfeeding her then one-year-old son. During the assault, the complainant allegedly insulted the Petitioner, calling her vile names including “Malaya” (prostitute), “Gold digger”, and “Mwizi” (thief). She further threatened to kill the Petitioner, claiming she knew where to obtain a gun for KShs.3,000/= to finish her if she did not repay the money. 8. The Petitioner was rescued by neighbouring traders who intervened. The Petitioner pleaded with them not to harm her attackers, explaining that they were family members involved in a domestic dispute. The Petitioner sustained injuries to her head, face, and body. She proceeded to Kariobangi Police Post to report the assault, where she surprisingly found Elizabeth Wangari Maina and her friend also reporting that they had been attacked by the Petitioner. 9. The police booked both reports. The Petitioner exhibited a copy of the unsigned P3 form, which she claims the police have refused to complete and sign, despite her repeated visits to the station. The photograph showing the Petitioner’s head injuries and medical reports were attached as exhibits to her supporting affidavit. 10. On 30th July 2022, the Petitioner’s husband, Kenneth Njoroge, confronted his sister at their home in Kariobangi regarding the attack on his wife. The confrontation turned physical, and Elizabeth Wangari Maina sustained injuries and was taken to hospital. 11. The family patriarch, Stephen Maina Gikonyo, called a family meeting to resolve the dispute. After deliberations, it was agreed that Elizabeth Wangari Maina would cease her harassment of the Petitioner and her husband, and that Margaret Njeri Gikonyo would repay the KShs. 200,000/= through monthly installments of KShs. 5,000/=. The parties mutually agreed to forgive each other and forget the incidents of 28th July 2022 and 30th July 2022. 12. In a turn of events described by the Petitioner as strange and unexpected, on 2nd August 2024, over four police officers from Kariobangi Police Station, accompanied by Elizabeth Wangari Maina, arrested the Petitioner at her home early in the morning while she was preparing her children for school. She was roughed up in front of her children, dragged to the police station, and detained for the entire day without being informed of the reason for her arrest until she arrived at the station. She was allegedly informed that she was being arrested for assaulting Elizabeth Wangari Maina on 28th and 30th July 2022. She protested, maintaining that she was the victim and that her report of the assault was on record. 13. The Petitioner was detained the whole day and was only released late at night after her advocate intervened and she paid a police cash bail of KShs.100,000/=. She was subsequently charged before the 2nd Respondent in Criminal Case No. E3963 of 2024. On 9th August 2024, she took plea and was released on a cash bail of KShs.70,000/=. On 12th August 2024, the subordinate court proceeded to take the complainant’s evidence despite the Petitioner’s protests. 14. The Petitioner has made several visits to Kariobangi Police Station seeking to have her complaint investigated and Elizabeth Wangari Maina charged, but she has been rebuffed and chased away. Her counsel lodged a complaint with the Independent Policing Oversight Authority (IPOA) on 14th August 2024, but no action has been taken. 15. In support of her case, the Petitioner filed supporting affidavits from Stephen Maina Gikonyo (her father-in-law) and Margaret Njeri Gikonyo (her mother-in-law), both of whom are also parents to the complainant. They substantially corroborated the Petitioner’s version of events, deponing that the Petitioner was the victim of the assault on 28th July 2022, that the complainant was the aggressor, and that the charges against the Petitioner are fabricated and trumped up. They also alleged that the complainant bribed corrupt police officers to arrest the Petitioner. **THE PETITIONER’S CASE** 1. The Petitioner’s case is anchored on the contention that the criminal proceedings against her before the 2nd Respondent are an abuse of the court process, instituted on the basis of fabricated evidence, and constitute a violation of her constitutional rights. She seeks the following reliefs: 2. An order of certiorari to remove to the High Court and quash the proceedings in MCCR No. E3963 of 2024, Republic vs Elizabeth Njeri Chege, at the Chief Magistrates’ Court, Makadara; 3. An order of prohibition against the 1st Respondent prohibiting it from instituting any criminal proceedings against the Petitioner for the same set of facts; 4. An order for compensation for violation of the Petitioner’s rights; 5. Costs of the petition. 6. The Petitioner contended that the 1st Respondent’s Replying Affidavit sworn by CPL. Moses Okello is replete with lies and should be struck out for perjury. It was argued that the deponent was not stationed at Kariobangi Police Post in July 2022 when the alleged assault occurred and reported. The Petitioner pointed to the charge sheet, which lists different police officers as witnesses, and to the P3 form issued to the complainant, which is stamped and dated 29th July 2024, not 30th July 2022 as alleged by the investigating officer. This, the Petitioner submitted, demonstrates that the complainant’s P3 form was not issued in 2022 but was procured in 2024 to fabricate the case against the Petitioner. 7. The Petitioner further argued that the 1st Respondent has not disclosed the identities of the witnesses allegedly interviewed, nor attached their statements, which leads to the inference that no such witnesses exist. The Petitioner, on the other hand, has adduced sworn affidavits from the parents of both the Petitioner and the complainant, who unequivocally attest to the Petitioner’s innocence and the complainant’s aggression. 8. On the law, counsel placed reliance on ***Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others [2013] KEHC 1689 (KLR)*** for the proposition that although the DPP exercises unfettered discretion to prosecute under Article 157 of the Constitution, this discretion is not absolute and the court may intervene where it is shown that the impugned criminal proceedings were instituted for collateral purposes other than the honest enforcement of criminal law, or are otherwise an abuse of the court process. The Petitioner cited the holding in ***Vincent Kibiego Saina v Attorney General, High Court Misc Civil Appl. No. 839 of 1999 (Unreported)***where Kuloba J. stated that if a criminal prosecution is seen as amounting to an abuse of the process of the court, the court will interfere and stop it, as this power is of great constitutional importance and is jealously preserved. 9. The Petitioner also relied on ***Githunguri v Republic [1985] KLR 91*** where the Court held that the Attorney-General’s discretion to prosecute, though unfettered, should be exercised in a quasi-judicial way, and should not be exercised arbitrarily or oppressively. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent opposes the Petition through a Replying Affidavit sworn on 3rd September 2025 by CPL. Moses Okello, who describes himself as the investigating officer in the matter. He deposes that on 28th July 2022, together with his colleague PC Ann, he was allocated an assault complaint lodged by Elizabeth Wangari Maina vide OB No. 32/28/7/2022. He contacted the complainant, who availed her witnesses and treatment notes. He issued her with a P3 form, which was duly filled. 2. The investigating officer further deposes that he also contacted the Petitioner, who came to the station and alleged that she had been assaulted by Elizabeth Wangari Maina. The Petitioner’s complaint was booked vide OB No. 35/28/7/2022, and she was issued with a P3 form, which she never brought back with treatment notes and her witnesses. 3. Before the investigation file on the first complaint was compiled, the complainant returned to the station, complaining that the Petitioner had assaulted her for the second time on 30th July 2022, causing injuries to her head, neck, thorax, abdomen, and upper limbs. The complainant availed treatment notes for the second attack, and a photograph of her face showing some of the injuries was attached. She was issued with a second P3 form, which was duly filled, and the injuries sustained were categorized as grievous harm. 4. The investigating officer deponed that after listening to both the Petitioner and the complainant, and upon taking witness statements and investigating the matter, he found the Petitioner’s version of events incredible and full of inconsistencies. He forwarded the file to the Office of the DPP at Makadara, and the prosecution was satisfied that there was sufficient evidence to sustain charges of assault and grievous harm. 5. It is the 1st Respondent’s case that the Petitioner has failed to demonstrate how the 1st Respondent has violated her constitutional rights with the specificity required by ***Anarita Karimi Njeru v Republic [1979] 1 KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No. 290 of 2012 (2013).*** It was contended that the discretion to prosecute is vested in the DPP under Article 157 of the Constitution and is not subject to direction or control by any person or authority. The court can only interfere with the DPP’s decision if it is shown that the decision was made in bad faith, is irrational, or amounts to an abuse of the court process. The 1st Respondent argued that no such evidence has been adduced. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent filed Grounds of Opposition dated 21st August 2025 and Written Submissions dated 28th October 2025. The gravamen of the 2nd Respondent’s opposition is that the Petitioner has not demonstrated how the Chief Magistrate has violated her constitutional rights. It was submitted that under Article 160 of the Constitution, the 2nd Respondent has the power to hear and determine disputes, primarily of a criminal and civil nature, and that in the exercise of judicial authority, the Judiciary is subject only to the Constitution and the law. 2. The 2nd Respondent further invoked Article 160(5) of the Constitution, which grants judicial officers immunity from liability for actions taken in good faith in the performance of their judicial functions. It was submitted that the trial court is acting in accordance with the powers conferred upon it by law, and that the petition presents matters of disputed facts which are within the exclusive jurisdiction of the trial court to assess and determine. Any intervention by the High Court before the conclusion of the criminal case, it was argued, would be premature. 3. The 2nd Respondent relied on the case of ***Mureithi & another v Divisional Criminal Investigation Officer Kajiado & 2 others****;* ***Ng’ang’a (Interested Party) (Constitutional Petition E005 of 2022) [2023] KEHC 27285 (KLR)*** for the proposition that judicial intervention by the High Court should be limited to acts that are manifestly in breach of the law or where the decision-maker was influenced by considerations other than the law and evidence. 4. The 2nd Respondent also relied on the authority of ***Maina Gitonga v Catherine Nyawira Maina & another [2015] eKLR***on the doctrine of judicial immunity, submitting that a judicial officer is absolutely immune from civil or criminal suit arising from acts taken within or even in excess of his or her jurisdiction, as judicial immunity is necessary to protect judicial officers from frivolous and vexatious actions and to ensure they make decisions without fear of personal lawsuits. 5. The court was thus urged to dismiss the Petition with costs as it lacks merit. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the pleadings, the affidavits filed, the annextures thereto, the written submissions of the parties, and the applicable law, the Court is of the view that the following issues fall for determination in this Petition: 2. *Whether the Petition meets the constitutional threshold for the determination of alleged violations of fundamental rights and freedoms* 3. *Whether the criminal proceedings against the Petitioner before the 2nd Respondent in Makadara Chief Magistrate’s Court Criminal Case No. E3963 of 2024 constitute a violation of her fundamental rights and freedoms under Articles 27, 28, and 50 of the Constitution.* 4. *Whether the High Court should interfere with the discretion of the Director of Public Prosecutions to institute and undertake criminal proceedings against the Petitioner.* 5. *What reliefs, if any, the Petitioner is entitled to.* ***Whether the Petition meets the constitutional threshold for*** ***the determination of alleged violations of fundamental rights and freedoms*** 1. Before the Court can delve into the merits of the Petition, it must first satisfy itself that the Petition meets the established legal threshold for constitutional petitions. The Respondents have raised a preliminary objection in the nature of a challenge to the competence of the Petition on the ground that the Petitioner has failed to set out her case with the required degree of precision. It is therefore incumbent upon this Court to address this threshold issue. 2. The locus classicus on the standard of pleading in constitutional petitions is the case of ***Anarita Karimi Njeru v Republic (supra)*** where the Court held that: *“We would, however again stress that if a person is seeking redress from the High Court on a matter which involves a reference to*[*the constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that which he complains of, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”* 1. This principle was subsequently affirmed and elaborated upon in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra)****,* where the Court deprecated the tendency to file constitutional petitions that are vague and generalized, stating that such petitions defeat the purpose of constitutional litigation, which is to precisely identify the violations complained of to enable the respondent and the court to respond appropriately. 2. The Court further observed that although technicalities should not be allowed to defeat the administration of justice, the *Anarita Karimi* principle is not a mere technicality but a substantive requirement that ensures constitutional petitions are properly framed to enable a fair hearing. The Court held that a petition that is rambling, vague, and fails to disclose with reasonable precision the constitutional provisions alleged to have been violated and the manner of such violation may be struck out for failing to meet the constitutional threshold. 3. Applying this standard to the present Petition, the Court has carefully perused the Petition dated 11th August 2025. At paragraph C (paragraphs 45 to 54) of the Petition, the Petitioner has set out the constitutional and statutory provisions under which the Petition is brought, including Articles 19, 20, 21, 22, 23, 27, 28, 50, 159, and 258 of the Constitution. At paragraph D (paragraphs 1 to 4) of the Petition, the Petitioner has set out the particulars of the threatened or actual violation of her fundamental rights and freedoms. 4. The Petitioner specifically pleads that her right to equal protection and equal benefit of the law under Article 27 has been violated because she is being prosecuted for a crime she did not commit while she is actually the victim of an assault by the complainant. She pleads that her right to dignity under Article 28 has been violated because she was arrested from her home in the presence of her children, roughed up, detained for a whole day without cause, and is being prosecuted for trumped-up charges. She further pleads that her right to a fair hearing under Article 50(1) has been violated because the 1st Respondent instituted criminal charges against her without giving her a chance to explain her side of the story, and the trial court hurriedly took the complainant’s evidence despite her protests. 5. In ***Otieno v Airtel Kenya Limited [2018] KEHC 9063 (KLR)*,** the Court adopted a two-stage approach to constitutional analysis under the Bill of Rights. First, the applicant is required to demonstrate that his or her ability to exercise a fundamental right has been infringed. Second, if the court finds that the right has been infringed, the analysis moves to the justification stage, where the respondent must demonstrate that the infringement is justifiable under the limitations clause in Article 24 of the Constitution. At Paragraph 52, the Court had the following to say: - *“Constitutional analysis under the Bill of Rights takes place in two stages. First, the applicant is required to demonstrate that his or her ability to exercise a fundamental right has been infringed. If the court finds that the law, measure, conduct or omission in question infringes the exercise of the fundamental right or a right guaranteed in the Bill of Rights, the analysis may move to its second stage. In this second stage, the party looking to uphold the restriction or conduct will be required to demonstrate that the infringement or conduct is justifiable in a modern democratic State and satisfies the Article 24 analysis test”* 1. In the present case, the Court is satisfied that the Petitioner has met the first stage of this analysis. She has identified with sufficient precision the constitutional provisions she alleges have been violated, and she has provided specific facts demonstrating the manner in which these violations have occurred. The Respondents, through their respective pleadings and submissions, were able to comprehend the Petitioner’s case and respond to it substantively, which is the very purpose of the *Anarita Karimi* principle. The Court therefore finds and holds that the Petition meets the constitutional threshold and is properly before this Court for determination on its merits. ***Whether the criminal proceedings against the Petitioner before the 2nd Respondent constitute a violation of her fundamental rights and freedoms under Articles 27, 28, and 50 of the Constitution*** 1. This is the core issue for determination in this Petition. The Court must carefully examine the competing narratives presented by the parties and determine, on the basis of the evidence and the law, whether the Petitioner’s prosecution amounts to a violation of her constitutional rights. 2. Before proceeding to analyse the specific allegations of constitutional violations, the Court finds it necessary to make some general observations about the nature of constitutional litigation challenging criminal proceedings. The High Court’s jurisdiction to interfere with criminal proceedings is well established but is exercised with caution. The Court is not an appellate forum over the decisions of the DPP or the trial court in ordinary criminal matters. The jurisdiction is supervisory and remedial, designed to protect fundamental rights and prevent abuse of the court process. 3. In ***Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR***, the Court held that the High Court will intervene in criminal proceedings only where it is demonstrated that the prosecution amounts to an abuse of the court process, is being conducted in bad faith, or is otherwise in violation of the Constitution. The Court stated: *“14. As has been held time and time again the Court ought not to usurp the constitutional mandate of the Director of Public Prosecutions (DPP) to investigate and undertake prosecution in the exercise of the discretion conferred upon that office under Article 157 of the Constitution. The mere fact therefore that the intended or ongoing criminal proceedings are in all likelihood bound to fail, is not ipso facto a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with the merits but with the decision making process. An applicant who alleges that he or she has a good defence in the criminal process ought to ventilate that defence before the trial court and ought not to invoke the same to seek the halting of criminal proceedings undertaken bona fides since judicial review court is not the correct forum where the defences available in a criminal case ought to be minutely examined and a determination made thereon.….”* 1. Similarly, in ***Republic vs. Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR***, the Court held that the police have a duty to investigate any complaint once it is made, and the High Court would be reluctant to intervene as long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner. The Court added that the police only need to establish reasonable suspicion before preferring charges, leaving the rest to the trial court. 2. The question that arises from these authorities is whether the Petitioner has demonstrated that the prosecution against her is unreasonable, is conducted in bad faith, or constitutes an abuse of the court process. The Court must answer this question by undertaking a careful analysis of the evidence adduced by both parties. 3. The Petitioner has presented a detailed and coherent narrative of events. She has explained the history of the dispute between herself and the complainant, tracing it back to 2010 and the management of funds sent from Germany. She has provided a plausible explanation for how the family dispute was managed, including the intervention of the police at Mowlem Police Post in 2018, the agreement that she and her husband would not be involved in the repayment of the KShs.200,000/=, and the subsequent repayment plan by her mother-in-law. 4. The Petitioner has provided a graphic account of the assault on 28th July 2022, including the specific insults hurled at her and the threat to kill her with a gun. She has exhibited a photograph showing the head injuries she sustained, as well as medical reports. She has exhibited a copy of the unsigned P3 form, which the police have refused to complete despite her repeated efforts. 5. Most compellingly, the Petitioner has adduced sworn affidavits from Stephen Maina Gikonyo (her father-in-law and the complainant’s father) and Margaret Njeri Gikonyo (her mother-in-law and the complainant’s mother). These two deponents are independent witnesses in the sense that they are not merely friends or associates of the Petitioner; they are the parents of both the Petitioner’s husband and the complainant. They have no apparent motive to lie on behalf of the Petitioner against their own daughter. Both deponents have sworn under oath that the Petitioner is the victim of the assault, that the complainant was the aggressor, that the complainant attacked the Petitioner while she was breastfeeding her baby, that the complainant was rescued by other traders, and that the complainant has been harassing the Petitioner for years. They further deponed that the complainant bribed corrupt police officers to arrest the Petitioner in 2024. 6. The Respondents have not filed any affidavits challenging the contents of the affidavits of Stephen Maina Gikonyo and Margaret Njeri Gikonyo. These affidavits stand on the record uncontroverted. The Respondents have not suggested that these deponents have any reason to be biased against the complainant, their own daughter. The Court therefore accepts the evidence of these two deponents as credible and truthful. 7. In contrast, the 1st Respondent’s case rests solely on the Replying Affidavit of CPL. Moses Okello. The Court has carefully examined this affidavit and the annexures thereto, and it finds several troubling inconsistencies. 8. First, the investigating officer states in paragraph 3 of his affidavit that on 28th July 2022, together with his colleague PC Ann, he was allocated an assault complaint lodged by Elizabeth Wangari Maina vide OB No. 32/28/7/2022. However, the charge sheet attached as exhibit “MO 6” does not list CPL. Moses Okello as a witness. The witnesses listed are the complainant, a doctor, PC RATEMO, and PC ANN I/O. It is significant that the investigating officer himself is not listed as a witness, which casts doubt on his claim that he was personally involved in the initial investigation on 28th July 2022. 9. Second, the investigating officer deposes that he issued the complainant with a P3 form on 28th July 2022. However, the copy of the P3 form attached as exhibit “MO 5” is clearly stamped and dated 29th July 2024, not 2022. The document bears the date “29th July 2024” in a prominent stamp. The investigating officer has not provided any explanation for this discrepancy. The Court can only conclude that the P3 form was not issued in 2022 as alleged but was procured in 2024, around the time of the Petitioner’s arrest, to support the case against her. 10. Third, the investigating officer deposes that he interviewed witnesses and found the Petitioner’s version of events incredible. However, he has not attached any witness statements to his affidavit, nor has he disclosed the identities of the witnesses he allegedly interviewed. In constitutional litigation, where allegations of bad faith and abuse of power are made, a respondent who has custody of relevant documents and information is expected to disclose them to enable the court to make a fair determination. The failure to do so invites an adverse inference. 11. Fourth, the investigating officer did not respond to the specific allegations made in the Petitioner’s Further Affidavit in Rejoinder, in which the Petitioner pointed out that CPL. Okello was not stationed at Kariobangi in July 2022, that none of the police officers involved in her arrest were stationed there at the material time, and that the investigation diary is written and signed by a different police officer. The investigating officer did not file a further affidavit to address these serious allegations, and they therefore stand uncontroverted. 12. Fifth, the investigating officer has not explained why the Petitioner, who was clearly the victim of an assault on 28th July 2022 (the photograph and medical reports prove this), has not had her complaint acted upon. Instead of investigating the complaint against the complainant, the police arrested the Petitioner, detained her for a whole day, and charged her. This is a grave dereliction of duty, if not outright malfeasance. 13. The Court also notes the 2nd Respondent’s reliance on the doctrine of judicial immunity under Article 160(5) of the Constitution. While this Court fully respects the independence of the Judiciary and the immunity granted to judicial officers acting in good faith, this principle does not immunize the criminal proceedings themselves from constitutional scrutiny. The Petitioner is not suing the Chief Magistrate personally for damages; she is challenging the legality of the proceedings before the court and the decision of the DPP to prosecute her. The fact that a judicial officer presides over the trial does not insulate the proceedings from constitutional review if they were instituted in violation of the Petitioner’s fundamental rights. 14. In ***Stanley Munga Githunguri v Republic [1986] KLR 1*** the High Court held that notwithstanding the powers conferred upon the Attorney-General under the Constitution, the High Court has an inherent power and duty to secure fair treatment for all persons who are brought before it or a subordinate court and to prevent an abuse of the process of the court. The Court stated that the discretion to prosecute should be exercised in a judicious way and should not be exercised arbitrarily, oppressively, or contrary to public policy. 15. In the *Githunguri* case, the Attorney-General had decided not to prosecute the applicant, but five years later changed that decision and instituted criminal proceedings. The High Court held that to institute proceedings at that time was vexatious and an abuse of the process of the court, especially where the applicant had been publicly informed that he would not be prosecuted. The Court stated that: - *“The preferment of a charge against any person nine years after the alleged commission of the offence charged six years after a full inquiry in respect of it and five years after the decision of the Attorney-General not to prosecute and to close the file is vexatious, harassing, an abuse of the process of the court and contrary to public policy unless a good and valid reason exists for doing so, such as the discovery of important and credible evidence or the return from abroad of the person concerned.”* 1. In the present case, the alleged offences occurred on 28th and 30th July 2022. The family had resolved the dispute in 2022, and the parties had mutually agreed to forgive each other. The complainant returned to Germany. The Petitioner was not charged until August 2024, approximately two years after the alleged offences. The investigating officer has not provided any explanation for the delay, nor has he pointed to any new evidence that emerged in 2024 that justified the belated decision to charge the Petitioner. The only plausible inference is that the complainant, upon returning to Kenya in August 2024, revived the complaint and used her influence to have the Petitioner arrested. 2. The Court is also persuaded by the reasoning in ***Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others (supra),*** where the Court cited with approval the observation of Kuloba J. in ***Vincent Kibiego Saina v Attorney General*,** ***High Court Misc Civil Appl. No. 839 of 1999 (Unreported)***that if a criminal prosecution is seen as amounting to an abuse of the process of the court, the court will interfere and stop it, as this power is of great constitutional importance and is jealously preserved. 3. In the recent decision of ***Lenanginda v Attorney General & 2 others [2025] KEHC 9729 (KLR)*,** the Court addressed the High Court’s jurisdiction to intervene in matters involving the criminal justice system. While that case was primarily concerned with the High Court’s supervisory jurisdiction over the Court of Appeal, the Court reaffirmed the principle that the High Court has the power to enforce fundamental rights and freedoms under Article 165(3)(b) of the Constitution. The Court stated that the High Court’s jurisdiction to determine questions of violation of the Bill of Rights is not ousted by the mere fact that the violation occurs in the context of proceedings before a subordinate court. 4. In the present case, the Court is not sitting in appeal over the decision of the trial magistrate. Rather, the Court is exercising its constitutional mandate to enforce the Bill of Rights. The Petitioner has demonstrated, on the basis of the evidence she has adduced, that the criminal proceedings against her were instituted on the basis of a false complaint, that the complainant’s P3 form was procured in 2024 to support a case that was otherwise dead, and that the police have acted in bad faith by refusing to investigate her complaint and instead charging her with an offence she did not commit. 5. The Court finds that the evidence of the Petitioner, corroborated by the affidavits of her parents-in-law, is more credible and consistent than the evidence of the 1st Respondent’s investigating officer, which is contradicted by the very documents he annexed. The unsigned P3 form that the Petitioner has been trying to have completed since 2022 stands as stark evidence that she was the victim of an assault. The fact that the police have refused to complete the P3 form and instead charged the Petitioner is a manifest abuse of power. 6. Accordingly, the Court finds and holds that the criminal proceedings against the Petitioner before the 2nd Respondent in Makadara Chief Magistrate’s Court Criminal Case No. E3963 of 2024 constitute a gross violation of her fundamental rights and freedoms under Article 27 (the right to equal protection and equal benefit of the law), Article 28 (the right to human dignity), and Article 50(1) (the right to a fair hearing). The Petitioner has been treated unequally because she, the victim, has been turned into an accused person while the actual assailant has been allowed to walk free. Her dignity has been violated by her arrest in front of her children, her detention for a whole day without cause, and the humiliation of being prosecuted for an offence she did not commit. Her right to a fair hearing has been compromised because the process leading to her prosecution was tainted by fabrication of evidence and bad faith. ***Whether the High Court should interfere with the discretion of the Director of Public Prosecutions to institute and undertake criminal proceedings against the Petitioner*** 1. The 1st Respondent has emphasised the constitutional independence of the Office of the Director of Public Prosecutions under Article 157 of the Constitution. Article 157(10) provides that the DPP 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. This constitutional protection is intended to insulate prosecutorial decisions from political interference and to ensure that criminal justice is administered impartially. 2. However, the independence of the DPP is not absolute. The Constitution itself places limitations on the exercise of prosecutorial power. Article 157(11) provides that in exercising his or her powers, the DPP 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. This provision explicitly recognises that the DPP’s discretion can be abused, and the power of judicial review exists to check such abuse. 3. The High Court has consistently held that it will interfere with the DPP’s decision to prosecute only in exceptional circumstances. In ***Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69****,* the Court held that the court will intervene to stop a prosecution if it is shown that the prosecution is an abuse of the court process, is being conducted in bad faith, or is otherwise in violation of the Constitution. In ***Republic v Director of Public Prosecutions & another ex parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR***, the Court held that the DPP’s discretion is not unfettered and that the court has the power to review the DPP’s decision to ensure that it was made in accordance with the law and the Constitution. 4. In exercising their discretion to charge a person both the police and the DPP’s office must take into account and must exercise the discretion on the evidence of sound legal principles. As was held by Ojwang, J (as he then was) in ***Nairobi HCCC No. 1729 of 2001 – Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another****:* *“...policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense...I do not expect that any reasonable police officer or prosecution officer would lay charges against anyone, on the basis of evidence so questionable, and so obviously crafted to be self-serving. To deploy the State’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes”.* 1. In the present case, the Court has already found that the prosecution of the Petitioner was predicated on fabricated evidence and was instituted in bad faith. The P3 form that forms the basis of the charge of grievous harm is dated 29th July 2024, not 2022. The investigating officer’s claim that he was involved in the investigation in July 2022 is not borne out by the charge sheet. The failure to investigate the Petitioner’s complaint, which was duly recorded, and instead to charge her, is a clear indication that the prosecution is an abuse of the court process. 2. The Court also notes that the family dispute had been resolved in 2022, with the parties mutually forgiving each other. The complainant went back to Germany and did not pursue the matter further until she returned in 2024. The revival of the complaint after a two-year hiatus, without any explanation for the delay, is suspect. In *Githunguri v Republic (supra)*, the Court held that the preferment of a charge long after the alleged commission of the offence, after a full inquiry had been concluded and the file closed, is vexatious and an abuse of the process of the court. 3. The 1st Respondent has not provided any valid reason for the decision to charge the Petitioner in 2024. There is no suggestion that new evidence emerged in 2024 that was not available in 2022. The only reasonable inference is that the complainant, upon her return to Kenya, persuaded the police to act on her complaint, and the police, for reasons that are not explained, chose to believe her rather than the Petitioner, despite the Petitioner’s evidence (including photographic evidence) that she was the one who was injured. 4. In ***George Joshua Okungu & Another V The Chief Magistrates Court, Nairobi & Another [2014] eKLR*** it was held: *“50. The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the petitioner in those proceedings. However, if the Petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the petitioner’s Constitutional rights, the Court will not hesitate in putting a halt to such proceedings.* 1. This instant case is a classic case where the court must exercise its supervisory jurisdiction to prevent an abuse of the court process. To allow the prosecution to continue would be to countenance the use of criminal process for a collateral purpose, namely, to punish the Petitioner for a family dispute over money that does not even involve her. The Court is not saying that every family dispute must be resolved outside the criminal justice system; but where, as here, the evidence clearly shows that the complainant was the aggressor and the police have acted in blatant disregard of the truth, the court has a duty to intervene. 2. The Court therefore finds and holds that the discretion of the DPP to prosecute the Petitioner has been exercised arbitrarily and oppressively, contrary to the public interest and the interests of the administration of justice. The Court must intervene to stop the prosecution and to quash the proceedings pending before the 2nd Respondent. **What reliefs, if any, the Petitioner is entitled to** 1. Having found that the Petitioner’s constitutional rights have been violated and that the prosecution against her is an abuse of the court process, the Court must now determine the appropriate remedies. 2. The Petitioner has prayed for an order of certiorari to remove to the High Court and quash the proceedings in MCCR No. E3963 of 2024 at the Chief Magistrates’ Court, Makadara. Certiorari is a prerogative order that lies to quash decisions or proceedings of subordinate courts or tribunals that are made without jurisdiction, in excess of jurisdiction, or in violation of the rules of natural justice. In this case, while the trial court has jurisdiction to hear criminal cases, the proceedings themselves are founded on an abuse of the court process. The Court is therefore entitled to quash them to prevent the continuation of that abuse. 3. The Petitioner has also prayed for an order of prohibition against the 1st Respondent prohibiting it from instituting any criminal proceedings against the Petitioner for the same set of facts. Prohibition is an order that issues to prevent a court or tribunal from acting in excess of its jurisdiction or in violation of the law. In the present case, the Court has found that the facts do not disclose any criminal offence against the Petitioner. The evidence shows that the Petitioner was the victim of an assault, not the perpetrator. It would therefore be oppressive and an abuse of power for the DPP to attempt to recharge the Petitioner with the same or similar offences based on the same set of facts. An order of prohibition is necessary to protect the Petitioner from future harassment. **CONCLUSION** 1. For the reasons set out above, the Court finds that the Petition dated 11th August 2025 is meritorious. The criminal proceedings instituted against the Petitioner before the 2nd Respondent are an abuse of the court process and constitute a violation of her fundamental rights and freedoms under Articles 27, 28, and 50 of the Constitution. The investigations leading to the prosecution were conducted in bad faith, and the decision to charge the Petitioner was arbitrary and oppressive. The Court must exercise its supervisory jurisdiction to protect the Petitioner from ongoing and/or further violations of her constitutional rights. 2. Accordingly, the Court makes the following final orders: 3. An order of certiorari be and is hereby issued removing to the High Court and quashing the proceedings in ***Makadara Chief Magistrate’s Court Criminal Case No. E3963 of 2024, Republic vs Elizabeth Njeri Chege;*** 4. An order of prohibition be and is hereby issued prohibiting the 1st Respondent, the Director of Public Prosecutions, from instituting any criminal proceedings against the Petitioner, Elizabeth Njeri Chege, based on the same set of facts forming the subject matter of ***Makadara Chief Magistrate’s Court Criminal Case No. E3963 of 2024;*** 5. A declaration be and is hereby issued that the Petitioner’s fundamental rights and freedoms under Articles 27, 28, and 50 of the Constitution have been violated by the 1st Respondent; AND 6. Each party shall bear their own costs. Orders accordingly. File Closed Accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the Petitioner – Mr. Ruiru Counsel for the 1st Respondent – Mr. Achochi h/b Mr. Maatwa Counsel for the 2nd Respondent- Ms. Rukiya Court Assistant – Mr. Martin