https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11284

Coast Legal Aids and Resource Foundation & another v Mtwapa Sub-County Criminal Investigations Officer & 2 others (Petition E034 of 2023) [2026] KEHC 11284 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11284 (KLR) Republic of Kenya In the High Court at Mombasa Petition E034 of 2023 J Ngaah, J July 24, 2026 Between Coast Legal Aids and Resource Foundation 1st Petitioner Zahid Iqubal Dean 2nd Petitioner and Mtwapa Sub-County Criminal Investigations Officer 1st Respondent Director of Criminal Investigations 2nd Respondent The Hon Attorney General 3rd Respondent Judgment 1.In their petition dated 16 October 2023, the petitioners pray for the following orders against the respondents:(a)an order compelling the 1st and 2nd respondents to produce in High Court Civil Case No. 45 of 2012, Mawando Limited & Zahid Iqubal Dean versus Thousand Palms Beach Hotel Limited & 2 Others, the investigations report and all documents relevant to the investigations touching on the alleged fraudulent change of records and change of the directorship and shareholding of Thousand Palms Beach Hotel Limited;(b)an order staying High Court Civil Case No. 45 of 2012 pending the hearing and determination of the petition;(c)any other or further order that the court may deem fit, just and expedient to grant in the circumstances of the case; and(d)costs of the petition. 2.The petition is expressed to be brought under Articles 21, 22, 23, 26, 27, 28, 47, 48, 159, 165, 226 and 227 of the Constitution. The 1st petitioner describes itself as a human rights organisation whose mandate is that of a watchdog in upholding and protecting the human rights and fundamental freedoms of individuals. The 2nd petitioner is a director and shareholder of a limited liability company known as Thousand Palms Beach Hotel Limited, to which I shall refer simply as "the company". The 1st respondent is the officer in charge of criminal investigations within Mtwapa sub-county; the 2nd respondent is the Director of Criminal Investigations; and the 3rd respondent, the Honourable Attorney General, is sued in his capacity as the principal legal adviser to, and the legal representative of, the national government. 3.The petition is supported by two affidavits, both sworn on 16 October 2023: one by Joseph Juma Mukewa, a director of the 1st petitioner, and the other by the 2nd petitioner himself. The two affidavits are, in all material respects, identical, save that the 2nd petitioner’s affidavit exhibits the documents upon which the petitioners’ case is founded. 4.The 2nd petitioner’s case is that he is one of the directors and shareholders of the company and that he is in possession of the original certificate of title in respect of the parcel of land known as subdivision No. 736 of Section III Mainland North, C.R. 16392/1, situated at Kikambala in Kilifi County. This is the land on which the company’s hotel stands. 5.According to the 2nd petitioner, despite his co-directors being aware that the original title was in his possession, one of them, Firoz Jessa, swore an affidavit on 12 November 2008 deposing that the title had been misplaced and that his efforts to trace it since June 2006 had proved futile; the affidavit was sworn to enable the Registrar of Titles, Coast Province, to issue a provisional certificate of title. A copy of that affidavit is exhibited and marked "ZID1". The 2nd petitioner’s co-directors, to his exclusion, thereafter executed a deed of indemnity in December 2008 by which they undertook to indemnify the Government of Kenya against any claims that might arise from the issuance of a provisional title; a copy of the deed is exhibited and marked "ZID2". The loss of the title was subsequently advertised in the Kenya Gazette by Gazette Notice No. 13 of 2 January 2009, a copy of which is exhibited and marked "ZID3". 6.On learning of the gazette notice, the 2nd petitioner wrote to the Registrar of Titles, Mombasa, on 16 January 2009 objecting to the issuance of the provisional certificate of title on the ground that he was holding the original certificate, and asking that the gazette notice be cancelled; a copy of the letter is exhibited and marked "ZID4". His objection notwithstanding, his complaint is that the provisional title was issued. He further accuses his co-director of forging his signature and altering the records of the company at the companies registry with the object of owning the company exclusively, at his expense and to his prejudice. 7.These events were the subject of a complaint lodged at Mtwapa police station. The petitioners aver that the 1st and 2nd respondents conducted investigations which, in their words, "confirmed that indeed a forgery had occurred", but that the respondents have since failed, neglected or refused to charge the culprits. They also aver that there is a suit pending before this court, being High Court Civil Case No. 45 of 2012, Mawando Limited & Zahid Iqubal Dean versus Thousand Palms Beach Hotel Limited & 2 Others, in which the alleged fraudulent change of the records and of the directorship and shareholding of the company is the subject matter. It is their case that it is imperative, and in the interests of justice, that the investigations report and all documents relevant to the investigations be produced in that suit, failing which the petitioners, and in particular the 2nd petitioner, will be gravely prejudiced. 8.The violations of the Constitution attributed to the respondents are pleaded in two clusters. First, it is contended that by failing to prosecute the perpetrators of the forgery, the 1st and 2nd respondents have denied the petitioners the equal protection and equal benefit of the law contrary to Article 27, and violated their inherent dignity contrary to Article 28. Secondly, it is contended that the failure to arrest and prosecute the culprits in good time, and the failure to give any reasons or explanation for not doing so, is contrary to the petitioners’ right under Article 47 to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and to their right of access to justice under Article 48. 9.Directions were taken for the petition to be canvassed by way of written submissions. The petitioners filed their submissions dated 18 September 2024. The respondents, although duly served, neither filed a response to the petition nor submissions. 10.In the submissions, the petitioners’ case assumed a narrower, and to some extent different, complexion from the petition itself. The gravamen of the submissions is that the petitioners’ right of access to information guaranteed under Article 35 of the Constitution, as read with section 4 of the Access to Information Act, 2016, has been infringed by the 1st respondent, who is said to have deliberately refused, ignored or neglected to furnish the petitioners with the investigations report and the documents in his possession despite several requests made to that effect. Counsel submitted that, on the authority of John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR, the petitioners have been denied equal treatment before the law contrary to Article 27; and that the right to privacy under Article 31 of the Constitution, which counsel identified as the only legitimate basis upon which information may be withheld, has no application to the facts of this case. Notably, the only substantive order urged in the submissions is the order for the production of the investigations report; nothing is said of the prayer for the stay of High Court Civil Case No. 45 of 2012, which I take to have been abandoned. As will become apparent shortly in this judgment, the abandonment was well advised. 11.The fact that the petition is not opposed does not, of itself, entitle the petitioners to the orders sought. The legal burden of establishing, on a balance of probabilities, the constitutional violations pleaded rests on the petitioners; that much is clear from sections 107 and 108 of the Evidence Act. It is also long settled that a party seeking redress for violation of the Constitution must plead his case with precision and prove it. In Anarita Karimi Njeru v Republic (No. 2) [1979] KLR 154 the court held that:“…if a person is seeking redress from the High Court on a matter which involves a reference to the 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 of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed." Analysis and determination 12.Bearing these principles in mind, and having considered the petition, the supporting affidavits and the submissions, it is my considered view that three questions are dispositive of this petition. These are, first, whether the petition raises a genuine constitutional controversy at all or whether it is, in substance, an ordinary civil dispute between directors of a company for which adequate remedies exist under the ordinary law; secondly, whether, to the extent that the petition is founded on the right of access to information, the petitioners ought to have exhausted the remedies available under the Access to Information Act, 2016 before invoking the jurisdiction of this court; and, thirdly, whether the orders sought in the petition are available, and more appropriately so, in High Court Civil Case No. 45 of 2012 which is pending before this court. I will consider these questions in turn. Whether the petition raises a constitutional controversy 13.Stripped of its constitutional attire, the dispute disclosed by the petition and the affidavits in support is not difficult to discern. The 2nd petitioner’s grievances are that one of his co-directors swore a false affidavit of loss of title; that his co-directors procured a provisional certificate of title over the company’s land while the original title was in his custody; that his signature was forged; and that the records of the company at the companies registry were fraudulently altered to divest him of his directorship and shareholding. Every one of these grievances is directed at the 2nd petitioner’s co-directors. None of them is directed at the respondents. 14.Disputes of this nature are the ordinary fare of the civil courts. The law provides the 2nd petitioner with a full complement of remedies: rectification of the register of members under the Companies Act; impeachment or cancellation of the provisional title under the applicable land statutes; and damages or other appropriate relief founded on fraud. Indeed, on the petitioners’ own pleading, the 2nd petitioner, together with Mawando Limited, is already pursuing these very questions in High Court Civil Case No. 45 of 2012 in which, in the petitioners’ own words, the fraudulent change of records and change of the directorship and shareholding of the company "is the subject matter". The respondents are strangers to that dispute. They have been drawn into this petition for no reason other than that they investigated the 2nd petitioner’s criminal complaint; and the only substantive order sought against them, on the petitioners’ own showing, is in aid of the civil suit. 15.The principle of constitutional avoidance was restated by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR in the following terms:“…the principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis." 16.The Supreme Court cited with approval the decision of the South African Constitutional Court in S v Mhlungu 1995 (3) SA 867 (CC) in which Kentridge AJ stated:“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed." 17.In the same vein, the courts have consistently deprecated the practice of converting ordinary disputes into constitutional causes. In Bernard Murage v Fineserve Africa Limited & 3 Others [2015] eKLR it was held that:“Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first." 18.Applying these principles to the material before me, a contest over the control of a company and the ownership of the land on which its hotel stands is a civil dispute par excellence. It does not become a constitutional controversy merely because the police investigated a complaint arising from it, or because the petition is garnished with references to the Constitution. The constitutional jurisdiction of this court is not an auxiliary chamber of the civil courts to which litigants may resort to collect evidence, or to gain a tactical advantage, in pending civil litigation. The proper cause for the petitioners, if they are aggrieved in the manner they claim, was an ordinary civil suit against the persons said to have perpetrated the fraud; and, as it turns out, precisely such a suit has been pending since 2012. 19.There remains the complaint that the 1st and 2nd respondents failed to charge the alleged culprits of the forgery notwithstanding that their investigations are said to have confirmed the offence. That complaint is directed at the wrong door. Under Article 157(6) of the Constitution the power to institute and undertake criminal proceedings vests in the Director of Public Prosecutions who, under Article 157(10) of the Constitution:“…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." 20.The 1st and 2nd respondents investigate crime; they do not prosecute, and the decision whether or not to charge any person is not theirs to make. The Director of Public Prosecutions has not been made a party to this petition. In any event, it is not for the court, at the instance of a complainant, to direct that any person be charged with a criminal offence; judicial intervention in the exercise of prosecutorial discretion is reserved for exceptional cases of demonstrable abuse of that discretion, none of which has been pleaded, let alone proved, in this petition. The claims founded on Articles 27, 28, 47 and 48 of the Constitution, all of which are premised on the failure to charge, cannot therefore succeed against these respondents. Exhaustion of the remedies under the Access to Information Act 21.As the petitioners’ submissions make plain, the true complaint pressed before the court is the alleged denial of access to the investigations report. That complaint invokes Article 35(1) of the Constitution which provides:“(1)Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom." 22.Parliament has, however, enacted the Access to Information Act, 2016 to give effect to this right, and the Act establishes a complete and self-contained mechanism for its enforcement. Under section 8 of the Act, an application for access to information held by a public entity is made in writing to the information access officer of the entity concerned; under section 9, the officer is obliged to make a decision on the application as soon as practicable and, in any event, within twenty-one days of its receipt. Where access is refused, or the entity fails to respond within the statutory timelines, section 14 of the Act affords the applicant a right of review by the Commission on Administrative Justice; and the Commission’s determinations are, in turn, subject to appeal to this court under section 23 of the Act. Section 14(1) of the Act provides, in the material part, that:“Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information— (a) a decision refusing to grant access to the information applied for…" 23.Nowhere in the petition or in the affidavits in support is it averred that the petitioners ever made a written application under section 8 of the Act to the information access officer of the National Police Service or of the Directorate of Criminal Investigations for the investigations report; nor is it averred that any such application was refused or ignored; nor is it suggested that the petitioners ever sought a review by the Commission on Administrative Justice. The assertion in the submissions that "several requests" were made is neither pleaded in the petition nor supported by a single document. The only demand exhibited is the 2nd petitioner’s letter of 16 January 2009 marked "ZID4" which, quite apart from predating both the Constitution and the Act, was addressed to the Registrar of Titles, objected to the issuance of a provisional certificate of title, and made no request whatsoever for an investigations report. 24.The consequence of bypassing a dispute-resolution mechanism prescribed by statute is well settled. In Speaker of the National Assembly v James Njenga Karume [1992] KLR 21 the Court of Appeal held that:“…where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed." 25.More recently, in Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, the same court stated:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts." 26.There are, no doubt, recognised exceptions to the doctrine of exhaustion: a party will be excused from exhausting a statutory remedy where the remedy is demonstrably inadequate or ineffectual, or where other exceptional circumstances so require; but such circumstances must be pleaded and established by the party seeking to be excused. See Republic v Independent Electoral and Boundaries Commission ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. The petitioners have pleaded none. On this ground alone, the claim founded on Article 35 of the Constitution is premature and cannot be sustained. Whether the orders sought are available in High Court Civil Case No. 45 of 2012 27.Even if the petitioners had surmounted the first two hurdles, the relief they seek points unerringly to its own, and proper, forum. The investigations report is not sought for its own sake; it is sought, in the words of prayer (a) of the petition, to be produced "in" High Court Civil Case No. 45 of 2012. The court seized of that suit is fully competent to secure the attendance of the investigating officers and the production of the investigations report, and of any other documents in their custody, if it considers them relevant to the questions before it. Order 16 rule 7 of the Civil Procedure Rules provides that:“Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same." 28.Whether the investigations report is relevant and admissible in that suit, and what weight, if any, it should carry, are questions for the trial court and for no other court. What the petitioners invite this court to do, in effect, is to superintend the gathering of evidence for a suit pending before another court of coordinate jurisdiction. That is an invitation to parallel litigation which must be declined. If the 2nd petitioner requires the respondents’ investigation file for the prosecution of his case in High Court Civil Case No. 45 of 2012, his remedy is a straightforward application in that suit for the issuance of witness summonses or summonses for the production of documents; it is not an independent constitutional petition. 29.The prayer for an order staying High Court Civil Case No. 45 of 2012, abandoned, as I have noted, in the submissions, only serves to illustrate the incongruity of the petition. The petitioners sought, in the same breath, an order that documents be produced in a suit and an order that the same suit be stayed. Had the prayer been pressed, it would have invited this court to interfere, without any legal justification, with the conduct of proceedings pending before a court of coordinate jurisdiction. Counsel was well advised to abandon it. 30.I would only add that the omnibus manner in which the petition was drawn does the petitioners’ cause no favours. The petition invokes, among other provisions, Article 26 of the Constitution, which guarantees the right to life, and Articles 226 and 227, which concern public finance and public procurement; yet nothing on the facts of this case remotely engages any of those provisions. Such scattergun invocation of the Constitution falls short of the standard of precision demanded by Anarita Karimi Njeru v Republic (supra) and only reinforces the conclusion that the constitutional foundation of this petition is an afterthought. Disposition 31.In sum, the petition is, in substance, an ordinary civil dispute between the 2nd petitioner and his co-directors over the control of the company and the ownership of its land; that dispute ought to have been prosecuted, and is in fact already pending, as an ordinary civil suit in High Court Civil Case No. 45 of 2012. To the extent that the petition is founded on the right of access to information, it was filed without exhausting the remedies prescribed by the Access to Information Act, 2016. And the only substantive order pressed before this court is one that is readily available, on a simple application, in the pending suit. Each of the three questions framed for determination must accordingly be answered against the petitioners. 32.The upshot is that the petition dated 16 October 2023 is devoid of merit and it is hereby dismissed. The respondents having taken no part in these proceedings, there will be no order as to costs. Orders accordingly. SIGNED, DATED AND DELIVERED ON 24 JULY 2026NGAAH JAIRUSJUDGE