https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13087

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E373 OF 2026** **CITIBANK N. A KENYA BRANCH………………………..PETITIONER/RESPONDENT** **-VERSUS-** **DIRECTORATE OF CRIMINAL INVESTIGATIONS**……………………**1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECTUTIONS…………………………...2ND RESPONDENT** **THE HON THE ATTORNEY GENERAL ………………....................3RD RESPONDENT** **-AND-** **MARTIN MUGAMBI……………………………………………...INTERESTED PARTY** **KIRU TEA FACTORY** **COMPANY LIMITED....................PROPOSED 2ND INTERESTED PARTY/APPLICANT** **RULING** **Introduction** 1. The Petitioner/Respondent filed a Petition dated 15th June 2026, by which it seeks, inter alia, to have the criminal investigations being undertaken by the 1st Respondent, which may result in the prosecution of the Petitioner and the Interested Party by the 2nd Respondent, in relation to the alleged offence of “negligently accepting a credit application and the subsequent disbursement of a loan facility amounting to US$2,020,000,” declared to have breached the Petitioner’s and the Interested Party’s fundamental rights under Articles 10(1), 10(2), 22, 25, 27(1) and (2), 35(1) and (2), 40, 47 and 73 of the Constitution of Kenya, 2010, and to restrain the 2nd Respondent from investigating, summoning or arresting the Interested Party or any other employee or the Petitioner in respect of the alleged offence stated hereinabove. 2. The Petitioners/Applicant filed a Notice of Motion application under a certificate of urgency, in which it sought conservatory orders. This Court, upon considering the application *ex parte,* and being satisfied that a proper case had been made for the issuance of interim relief, issued conservatory orders on 15th June 2026. Among the orders issued are the following: ***“6. THAT pending the hearing of the Notice of Motion application dated 15th June 2026 interpartes, a conservatory order is hereby issued restraining the Respondents, jointly and severally, by themselves, their agents, servants, or otherwise howsoever, from summoning, arresting, charging or in any way whatsoever, requiring the Interested Party to record statements or render interviews over the alleged offence of negligently accepting a credit application and disbursing a sum of USD. 2,020,000.00 to Kiru Tea Factory Company Limited; and*** ***7. THAT pending the hearing of the Notice of Motion application dated 15th June 2026 interpartes, an order of Injunction is hereby issued restraining the Respondents jointly and severally, by themselves, their agents, servants, or otherwise however, from investigating any matter in respect of the Credit Facility of USD 2,020,000.00 advanced to Kiru Tea Factory Company Limited.”*** **The Notice of Motion Application Dated 13th July 2026** 1. The Intended Interested Party/Applicant was aggrieved by the said orders. Kiru Tea Factory Company Ltd is the complainant in the investigations being conducted by the 1st Respondent. The Intended Interested Party/Applicant filed the Notice of Motion application dated 13th July 2026, by which it seeks the following orders: 2. ***Spent;*** 3. ***KIRU TEA FACTORY COMPANY LIMITED be joined in these proceedings as an Interested Party and be granted leave to respond to the Application and Petition dated 15th June 2026; and*** 4. ***The costs of this Application are awarded to the Applicant.*** 5. The Applicant averred in the said Motion, as well as in the supporting affidavit sworn by Mr Geoffrey Chege Kirundi on 13th July 2026, that the Petition was intended to scuttle investigations into fraudulent transactions by people who falsely held themselves out as directors of the Intended Interested Party, to the Petitioner/Respondent, by which a facility of US $ 2,200,000 was procured through a plausible grand criminal conspiracy involving identity theft, forgery, and falsified board resolutions. It was averred that the said facility was neither borrowed, received, nor utilized by the Intended Interested Party/Applicant. It further averred that it was deliberately left out of the proceedings, yet its complaint forms the basis of the investigations. 6. The Interested Parties averred that their legitimate complaint against Citibank N A, by which it seeks to hold to account all those responsible for what it sees as a heist and an “egregious corporate crime”, had been curtailed after the court was misled into issuing the conservatory orders, and that the court impermissibly waded into the 1st Respondent’s constitutional realm, thereby hindering its constitutional right to equal protection and equal benefits of the law. **The Response of the Petitioner/Respondent** 1. The application is opposed by the Petitioner/Respondent, who filed a replying affidavit sworn by Mr Martin Mugambi on 24th July 2026. Mr Mugambi is the Interested Party in these proceedings and serves as the Chief Executive Officer of the Petitioner/Respondent. 2. In his sworn deposition, Mr Mugambi averred that at all material times there was a bank/client relationship between the Petitioner and the Intended Interested Party/Applicant, and that the impugned credit facilities were advanced by the Petitioner to the Applicant company within the ordinary course of the commercial relationship and were governed by the applicable contractual terms. 3. Mr Mugambi deposed that the application for joinder was misconceived, incompetent and devoid of legal merit, insofar as the Petition does not seek any order against the Intended Interested Party/Applicant; the issues raised in the Petition relate to whether the Respondents acted within the law and complied with the Constitutional and legal requirements; the Intended Interested Party/Applicant has not demonstrated that it has an identifiable stake in the proceedings; the Petition does not diminish the interest or stake of the Applicant; and joinder would serve no useful purpose. Further, it was urged that the Applicant had not demonstrated the submissions it would make if it were joined to these proceedings. 4. It was stated that the application before the Court was intended to derail, delay and frustrate the hearing of the Petition by introducing “*collateral disputes and allegations that can only distract this Honourable Court from the real constitutional issues requiring determination*.” This Court was thus urged to dismiss the application. **The Submissions of the Parties** 1. The application was canvassed through both oral and written submissions. The submissions of the Intended Interested Party/Applicant are dated 24th July 2026, as are those of the Petitioner/Respondent. 2. In its submissions, the Intended Interested Party/Applicant averred that it should be added as an Interested Party in these proceedings, as it had met all the elements identified by the Supreme Court in the Muruatetu Case (supra), insofar as it had a personally identifiable stake in the proceedings. It was submitted that the interest was sufficiently proximate, inasmuch as the Court order referred specifically to the Applicant, and that its interest was not peripheral, as the crux of the Petition was US$2,200,000 allegedly borrowed in its name. 1. On the second point, it was contended that the Applicant would be severely prejudiced if the complaint were heard and determined without the Applicant being heard, and that if the hearing proceeded in its absence, the Applicant and its thousands of smallholder shareholders would have nowhere else to turn. 2. Counsel for the Intended Interested Party Applicant urged that the Company has a unique perspective on the Petition which is manifestly different from that of any other party. In particular, it was urged that the Applicant could rebut the Petitioner’s attempt to trivialize its complaint. 3. Counsel therefore prayed that the application be allowed as prayed. 4. On its part, the Petitioner/Respondent submitted that the application before the Court ought to be dismissed with costs on the grounds that the threshold for grant of the relief sought had not been met. It was submitted that the offence alleged to have been committed by the Petitioner/Respondent and the Interested Party was unknown at law. 5. The counsel for the Petitioners/Respondent submitted that the Petition questioned the legality of the actions of the Respondents in the exercise of their investigative powers, to wit, whether their actions were within the confines of the Constitution, the National Police Service Act and other applicable laws. 6. It was submitted that the mere fact that the Applicant was a complainant did not confer on it the right to be joined as a party in the proceedings. Counsel contended that the Applicant had not demonstrated any legitimate interests in the proceedings that cannot be adequately represented and/or protected by the Respondents, whose constitutional and statutory mandate is to investigate criminal offences, and where appropriate, to institute prosecutions **Analysis and Determination.** 1. I have considered the application, the responses thereto, the parties' submissions, and the applicable law. The question for the court to determine is whether the Intended Interested Party may be added to these proceedings. 2. In the case of **Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR)**, the Supreme Court held that:- ***“From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.*** 1. My understanding of the elements enunciated by the Supreme Court in the ***Muruatetu case*** is that they are conjunctive, in the sense that they must all be present for the Court to allow the addition of the intended interested party. 2. In the case of **Skov Estate & 5 Others v Agricultural Development Corporation & another [2015] eKLR,** the court held that:- ***“The applicant in an application of this nature must demonstrate that it is necessary that he/she be enjoined in the suit. That becomes important if he has to show that the issues before the court cannot be effectively adjudicated upon in his absence. Being affected by the order of the court is not enough. The applicant must show that in addition to being affected the reliefs which will be granted will not be fully decided upon because an important element of fact, which he has, shall miss if he is not added to the proceedings.”*** 1. Does the application meet the above tests? There is no doubt that the trigger for the Respondents’ actions, which the Petitioner impugns, is the complaint of the Intended Interested Party. The Intended Interested Party has stated that its interest in the matter is clearly identifiable and that its participation in the present proceedings will benefit the court “if only to explain the gist and the basis of the complaint.” 2. On its part, the Petitioner submits that its Petition does not challenge, impugn, or interfere with the Respondents’ constitutional and/or statutory mandate to investigate criminal offences; rather, it questions the manner in which the said mandate was exercised. 3. Whereas it is true that the Intended Interested Party is the complainant in the investigations being undertaken by the Respondents, does that, in and of itself, require that it be made an interested party? Does it bring any unique perspective to the matter that cannot be brought by any other party? 4. In the case of **Maulid v ODPP & 2 others [2026] KEHC 7014 (KLR)**, Tamar, J stated as follows:- ***“It is trite law that the proper complainant in criminal proceedings is the Republic. This principle was enunciated in Roy Richard Elirema & Another vs Republic [2003] KECA 165(KLR) where the Court of Appeal stated that the complainant in this context has been interpreted to mean the Republic in whose name all criminal prosecutions are brought, and not the victim of the crime who is merely a chief witness on behalf of the Republic.”*** 1. In the said matter the Court went on to hold that: ***“The participation of the applicant in the present constitutional petition seeking to a stop a possible arrest, further investigation and prosecution of the petitioner is not necessary, particularly where as in this case the complainant had supplied investigative materials that convinced the respondents to undertake the intended action against the petitioner. The applicant has not demonstrated in my view that her interest in this petition will not be addressed adequately by respondents in whose mandate the investigation and prosecution repose. The material before the court in this petition is sufficient to make a determination one way or the other without appearing to be conducting a mini trial.”*** 1. A similar holding was made in the case of **Christopher Oganda Nyaruri v Director Public Prosecution & another; Esquire Investments Limited (Proposed Interested Party) [2018] KEHC 9749 (KLR).** In the said case, the Court held that: ***“… Secondly, it is apparent to me that the instant petition is an offshoot of the matter before the Environment and Land Court as the petitioner seeks to stop the respondents from instituting criminal charges against him over the same land dispute. My take is that the instant petition is purely a matter between the respondent and the petitioner in which case, should the criminal proceedings be initiated against the petitioner, the applicants interests, as a complainant in the said case, would be well taken care of by the Director of Public Prosecution who is in charge of the prosecution and the Director of Criminal Investigation who is the investigative body in the said criminal proceedings.”*** 1. The foregoing cases are in all fours with the present case. I am not persuaded that there is anything that the Applicant will present that cannot already be provided by the Respondents nor that it will be prejudiced if the Petition is heard in its absence. It must be noted, in any case, that the Petition challenges the manner in which the Respondents exercised their constitutional and statutory powers, and questions if they acted within the law in doing so. I am not persuaded that the Applicant would present a perspective on the said issues that is distinct from that likely to be proffered by the Respondents. 2. It hasn’t been shown that the Respondents are incapable or unwilling to discharge their constitutional mandate, nor that, absent the participation of the Applicant, the Court will not fairly adjudicate the Petition. 3. In light of the foregoing, I find and hold that the Notice of Motion application dated 13th July 2026 has no merit. The Court declines to add the Applicant as an Interested Party. The said application is dismissed. 4. Costs are at the discretion of the Court. However, given the nature of the matter, each party shall bear their own costs. 5. It is so ordered. **Dated** and **signed at Nairobi, this 18th day of August 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Mr **Thuo** and **Ms Mutinda,** for the **Petitioner/Respondent;** **No appearance** for the **Respondents;** Mr **Marete** for the **Intended Interested Party/Applicant**; and Ms **Neema Lwambia - Court Assistant**.