https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9769

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA HIGH COURT CASE NUMBER: HCCRMISCAPPL/E019/2026 JOGINDER SINGH DHANJAL VS THE REPUBLIC AND DIRECTOR OF CRIMINAL INVESTIGATION RULING 1. INTRODUCTION Before this Court are three applications filed by the Applicant at different stages but all arising from Mombasa Chief Magistrate's Court Criminal Case No. MCCR/E/1174/2025 in which the Applicant faces charges of Conspiracy to Defraud, Obtaining Registration by False Pretence, Forgery and Intermeddling with the Estate of a Deceased Person without Authority. The charges arise from the alleged irregular subdivision and disposition of properties belonging to Jaypee & Sons Ltd, whose directors were deceased at the material time. By consent of the parties and directions of the Court, all three applications were heard together on 3rd June 2026. The first application dated 25th February 2026 sought anticipatory bail pending plea taking. The application was grounded on the Applicant's age, medical condition and his contention that the criminal proceedings arose from a succession dispute already pending before other courts. The second application dated 13th May 2026 invoked the supervisory jurisdiction of this Court under Sections 362 and 364 of the Criminal Procedure Code and Articles The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 1/ 9 165(6) and (7) of the Constitution seeking revision of proceedings conducted before the subordinate court on 12th May 2026. The third application dated 25th May 2026 sought suspension of a warrant of arrest issued by the subordinate court and renewed the prayer seeking deferment of plea pending directions from the Office of the Director of Public Prosecutions. 2. THE PARTIES AND BACKGROUND The Applicant, Joginder Singh Dhanjal, is the accused person in MCCR/E/1174/2025 and a co-administrator of the estate of the late Jaswant Singh Boor Singh Dhanjal in Succession Cause No. 20 of 2006. The 1st Respondent is the Director of Criminal Investigations while the 2nd Respondent is the Director of Public Prosecutions. The criminal investigation concerns parcels MSA/BLOCK XVI/291–299 previously registered in the name of Jaypee & Sons Ltd. According to the investigating officer, subdivision titles MSA/BLOCK XVI/406–424 were created without surrender of the original titles and were irregularly issued. The investigation culminated in the preparation of a charge sheet and institution of criminal proceedings before the subordinate court. Upon calling for and examining the lower court file, this Court has ascertained the following material facts: First, a charge sheet had been filed and criminal proceedings instituted before the subordinate court, although the record does not demonstrate that plea had been taken. Second, upon examining the proceedings complained of, this Court finds no material irregularity, illegality or impropriety sufficient to warrant intervention under its supervisory jurisdiction. Third, the subordinate court subsequently issued directions and orders on 28th May 2026 addressing matters relating to plea and procedural management which formed part of the relief sought before this Court. The Court further notes the existence of parallel proceedings arising from the same subject matter, namely HCJR/E024/2025, Constitutional Petition No. E005 of 2026, proceedings in Succession Cause No. 20 of 2006 and proceedings before the Court of Appeal. 3. SERVICE AND RESPONSES The Applicant contends that service of the first application and interim orders was effected on 27th February 2026 through electronic mail. The 1st Respondent disputes the effectiveness of such service but did not file any The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 2/ 9 formal application seeking to set aside the service or vary the interim orders on that basis. Subsequent directions issued by this Court on 14th May 2026 required the Respondents to file responses and upload relevant proceedings. Although compliance was delayed, the Court eventually received and considered the Replying Affidavit sworn by IP Joseph Muthui. 4. SUMMARY OF THE PARTIES' POSITIONS 4.1 Applicant's Position The Applicant argues that his constitutional rights were violated when he was allegedly presented before the subordinate court without notice to his advocates and that the warrant issued on 25th May 2026 was inconsistent with prior High Court orders and his medical circumstances. The Applicant further contends that the prosecution is intertwined with an ongoing succession dispute and that directions from the Director of Public Prosecutions had not been finalized. 4.2 Respondents' Position The Respondents oppose all three applications. They contend that the prosecution is supported by substantial evidence including forensic document examination reports, land registry records and witness statements. The Respondents further argue that the Applicant has failed to make full disclosure regarding related proceedings and has engaged in multiplicity of litigation amounting to abuse of court process. 5. ISSUES FOR DETERMINATION The issues for determination are: (i) Whether the application dated 25th February 2026 seeking anticipatory bail is merited. (ii) Whether the application dated 13th May 2026 discloses sufficient grounds for exercise of the Court's supervisory jurisdiction. (iii) Whether the application dated 25th May 2026 is merited. (iv) Whether the applications constitute an abuse of court process. (v) Whether directions should issue to the Office of the Director of Public Prosecutions. (vi) What orders should issue. 6. ANALYSIS AND DETERMINATION The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 3/ 9 6.1 Application dated 25th February 2026 – Anticipatory Bail The first application seeks anticipatory bail pending plea taking in MCCR/E/1174/2025. The law regarding anticipatory bail is now settled. Anticipatory bail is an exceptional constitutional remedy designed to protect a person against unlawful arrest, detention, harassment, abuse of power or violation of constitutional rights. It is not intended to shield an accused person from the ordinary criminal process or to prevent a competent court from exercising jurisdiction lawfully vested in it. Upon perusal of the subordinate court record, this Court notes that by the time the application came up for determination, a charge sheet had already been presented before the subordinate court and criminal proceedings had been instituted against the Applicant. However, the record placed before this Court does not demonstrate that the charge had been read over and explained to the Applicant and that a plea had been taken. Strictly speaking, therefore, the Applicant cannot be said to have been formally charged through the plea-taking process. That finding, however, does not assist the Applicant. The institution of criminal proceedings before a competent court fundamentally alters the context within which anticipatory bail is considered. Once criminal proceedings have commenced, the ordinary course is for the accused person to appear before the trial court and seek bail or bond within those proceedings. The High Court will not ordinarily exercise its discretion to grant anticipatory bail where the criminal process is already underway unless exceptional circumstances demonstrating illegality, oppression, abuse of process or violation of constitutional rights are established. The Applicant has not demonstrated any such exceptional circumstances. The grievances raised by the Applicant relate principally to attendance before the subordinate court, plea-taking, bond, and procedural directions. Those are matters that properly fall within the jurisdiction of the trial court in the first instance. This Court is therefore not persuaded that the extraordinary remedy of anticipatory bail is available in the circumstances of this case. Accordingly, the application dated 25th February 2026 is dismissed. 6.2 Application dated 13th May 2026 – Supervisory Jurisdiction The Applicant invokes the supervisory and revisionary jurisdiction of this Court under Sections 362 and 364 of the Criminal Procedure Code and Articles 165(6) and (7) of the Constitution. Section 362 of the Criminal Procedure Code empowers this Court to call for and examine the record of criminal proceedings before a subordinate court for purposes of The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 4/ 9 satisfying itself as to the correctness, legality or propriety of any finding, sentence, order or proceedings. The jurisdiction is supervisory rather than appellate. It is not intended to substitute the trial process nor to provide a parallel avenue through which every interlocutory grievance arising during criminal proceedings may be escalated to the High Court. Pursuant to that jurisdiction, proceedings in MCCR/E/1174/2025. this Court called for and examined the record of Having carefully reviewed the proceedings complained of, the Court finds no material illegality, impropriety, irregularity or jurisdictional error warranting intervention through revision. The Applicant's complaints regarding notice, attendance, plea management, travel restrictions and related procedural matters are issues that can properly be raised and addressed before the trial court. Revisionary jurisdiction is reserved for clear instances of illegality, manifest impropriety or substantial procedural injustice. None has been demonstrated before this Court. The Court is therefore satisfied that the threshold for intervention under Sections 362 and 364 of the Criminal Procedure Code has not been met. The application dated 13th May 2026 is accordingly dismissed. 6.3 Application dated 25th May 2026 and Prayer No. 6 The third application principally seeks suspension of a warrant of arrest issued by the subordinate court on 25th May 2026. The Applicant also renews Prayer No. 6 previously sought in the earlier application, namely deferment of plea pending consideration of the police file and issuance of directions by the Director of Public Prosecutions. The record before this Court demonstrates that the subordinate court subsequently addressed matters relating to plea-taking and procedural directions through orders issued on 28th May 2026. The relief sought regarding deferment of plea therefore falls within matters already addressed by the trial court. Similarly, questions relating to attendance, non-attendance, issuance of warrants and appearance before court are matters primarily falling within the jurisdiction of the subordinate court. Such matters ought ordinarily to be addressed before that court unless exceptional circumstances are demonstrated. This Court finds no basis for interfering with those proceedings through the present application. The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 5/ 9 The application dated 25th May 2026 is therefore dismissed. 6.4 Abuse of Court Process This Court has considered the totality of the proceedings placed before it and is constrained to address the manner in which the Applicant has engaged the judicial process. The record demonstrates that the Applicant has instituted or maintained multiple proceedings arising from the same criminal prosecution, including these proceedings, HCJR/E024/2025, Constitutional Petition No. E005 of 2026. The court notes with great concern that he relies on the proceedings within Succession Cause No. 20 of 2006 , which is now two decades old. This kind of judicial meandering and craft must stop. The court also notes there are proceedings before the Court of Appeal. Within the present matter itself, three separate applications have been filed seeking substantially similar reliefs touching on the same criminal proceedings. The Court further notes that when the Applicant approached this Court ex parte, there was no full and candid disclosure regarding the existence and status of the related proceedings before other courts. The duty of full disclosure in ex parte proceedings is well established. In Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others [1998] eKLR, the Court of Appeal emphasized that an applicant seeking ex parte relief must make the fullest possible disclosure of all material facts and that failure to do so disentitles such a party from obtaining an advantage from the proceedings. Equally instructive is the recent decision of the Court of Appeal in Varsani & 2 Others v Republic [2026] KECA 1004 (KLR). In that matter, the High Court found that the applicants had repeatedly filed applications and engaged in conduct that delayed and frustrated the expeditious conduct of an ongoing criminal trial. The Court of Appeal upheld the dismissal of the application and reaffirmed the importance of allowing criminal proceedings to proceed to conclusion without unnecessary interlocutory disruption. The Court further observed that repeated procedural applications may create the impression that litigants are intent on derailing the criminal process rather than facilitating its fair and expeditious determination. This Court finds that the present proceedings exhibit similar features. The Applicant has repeatedly sought substantially similar reliefs before different forums while the criminal proceedings remain pending before the subordinate court. The cumulative effect of this conduct is to invite multiple courts to pronounce themselves on overlapping issues arising from the same prosecution. The Supreme Court in Kenya National Commission on Human Rights v Attorney The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 6/ 9 General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR) emphasized that the sub judice doctrine exists to prevent multiplicity of proceedings, avoid conflicting decisions and protect the integrity of the judicial process. The Court is satisfied that the present applications form part of a broader pattern of litigation intended to delay, frustrate or circumvent the ordinary criminal process and even the succession cause. Such conduct constitutes a gross abuse of court process. The Applicant is hereby warned that any further proceedings arising from the same subject matter and seeking substantially similar reliefs may attract adverse costs orders and such additional sanctions as the Court may deem appropriate. 6.5 Directions to the Office of the Director of Public Prosecutions The Court notes from the material placed before it that by correspondence referenced ODPP/HQ/CAM/13/1349 dated 26th March 2026, the Office of the Director of Public Prosecutions directed that the duplicate police file relating to MCCR/E/1174/2025 be forwarded for consideration and further directions. The administration of criminal justice requires certainty, expedition and procedural clarity. Where a prosecutorial review has been initiated, it is in the interests of justice that such review be concluded within a reasonable period so that the criminal process is not subjected to unnecessary uncertainty. This Court is therefore of the view that appropriate directions ought to issue requiring the Office of the Director of Public Prosecutions to conclude any pending review and communicate its final position to the subordinate court. 7. DISPOSITION Having carefully considered the three applications, the affidavits on record, the submissions of counsel, the proceedings of the subordinate court, and the applicable law, this Court reaches the following conclusions: First, although the record does not demonstrate that plea had been taken, a charge sheet had already been filed before the subordinate court and criminal proceedings had been instituted against the Applicant. In those circumstances, and in the absence of exceptional constitutional the prayer for anticipatory bail is not available. grounds warranting intervention, Second, upon calling for and examining the record of proceedings in MCCR/E/1174/2025, this Court finds no illegality, impropriety, irregularity or The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 7/ 9 jurisdictional error sufficient to justify intervention under Sections 362 and 364 of the Criminal Procedure Code. Third, the matters forming the basis of the application dated 25th May 2026, including issues relating to plea-taking, attendance before court and procedural directions, have either been addressed by the subordinate court or fall within the jurisdiction of that court. Fourth, the multiplicity of proceedings commenced or maintained by the Applicant in various forums concerning the same criminal prosecution amounts to an abuse of court process and undermines the orderly administration of justice. Accordingly, the Court finds no merit in any of the three applications. 8. ORDERS In the premises, the Court hereby makes the following orders: (i) The Notice of Motion dated 25th February 2026 seeking anticipatory bail is hereby DISMISSED. (ii) The Notice of Motion dated 13th May 2026 seeking revision and supervisory intervention under Sections 362 and 364 of the Criminal Procedure Code is hereby DISMISSED. (iii) The Notice of Motion dated 25th May 2026 is hereby DISMISSED. (iv) For avoidance of doubt, this Court finds that while criminal proceedings had been instituted before the subordinate court through the filing of a charge sheet, the record placed before this Court does not demonstrate that plea had been taken. That finding does not, however, affect the determination of the applications before this Court. (v) The Applicant and his advocates are hereby WARNED against instituting further proceedings before multiple courts or divisions of the High Court arising from the same subject matter and seeking substantially similar reliefs. Any further proceedings of that nature may attract adverse costs orders and such other sanctions as the Court may deem appropriate. (vi) The Office of the Director of Public Prosecutions is hereby DIRECTED to conclude any pend ing revi ew ari si ng from the co r re s p o n d en c e r e f e r e n c ed ODPP/HQ/CAM/13/1349 dated 26th March 2026 and communicate its final prosecutorial directions to the trial court within fourteen (14) days of the date hereof. (vii) There after, the subordinate court shall thereafter proceed with Mombasa Chief Magistrate's Court Criminal Case No. MCCR/E/1174/2025 in accordance with the law without unnecessary delay. (viii) Costs of all three applications shall be borne by the Applicant. The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 8/ 9 (Ix) The file is marked as closed. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 10th DAY OF June 2026 HON. LADY JUSTICE W. K. MICHENI JUDGE SIGNED BY/FOR: □ TH E J U D I C I A R Y O F K E N Y A ★ HON. LADY JUSTICE WENDY MICHENI Mombasa High Court High Court Criminal Date: 2026-06-10 11:43:48 The Judiciary of Kenya Doc IDENTITY: 43125572735714818776324874295 Tracking Number:OOYSZC2026 9/ 9