https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13067

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **PETITION NO. E005 OF 2026** **MUHYIDIN MOHAMED DHUHULOW.……………….……..1ST PETITIONER** **HUSSEIN MUHYIDIN MOHAMED……………….........…….2ND PETITIONER** **FATUMA MAALIM ALIO.…………………………..………….3RD PETITIONER** **SOMSKY CONSTRUCTION LIMITED...……………..…...…..4TH PETITIONER** **VERSUS** **DIRECTORATE OF CRIMINAL INVESTIGATIONS...............1ST RESPONDENT** **INSPECTOR GENERAL NATIONAL POLICE SERVICE….....2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS...….....……...….3RD RESPONDENT** **JUDGEMENT** 1. The Petitioners moved this Court by a Petition dated 11th March 2026, seeking a declaration that the summoning, investigations, and any attempted arrest and subsequent prosecution of the Petitioners over questions arising from the commercial transactions between the Petitioners and Mohammed Abokor in relation to the agreements dated 8th November 2024 constitute an abuse of the legal process and are therefore null and void. They further seek an order of prohibition restraining the Respondents from investigating, interrogating or questioning, arresting, arraigning in court or charging the Petitioners before any court of law over questions arising from the said commercial transactions. The Petitioners also seek costs of the Petition and interest thereon at court rates. 2. The Petition is supported by the grounds set out on its face, the affidavit of the Petitioner sworn on even date and the Further Affidavit sworn on 11th June 2026. The 1st, 2nd and 3rd Respondents opposed the Petition through an undated Replying Affidavit and Grounds of Opposition dated 14th April 2026. **The Petitioner’s Case** 1. The Petitioners’ case is that, in September 2024, Mohamed Maalim Hassan approached the 1st Petitioner, Muhyidin Mohamed Dhuhulow, and informed him that he owed Mohammed Abokor Said USD 200,000. As the 4th Petitioner was undertaking a development project, Mohamed Maalim Hassan requested the 1st Petitioner to act as his guarantor by offering two four-bedroom duplex apartments as security for the debt. Consequently, the 4th Petitioner and Mohammed Abokor entered into two sale agreements dated 8th November 2024. 2. The Petitioners contend that the agreements were not intended to transfer any proprietary interest in the apartments to Mohammed Abokor, but were executed as security or a guarantee for Mohamed Maalim Hassan’s debt. They maintain that Mohammed Abokor paid no consideration to the 4th Petitioner. Instead, Mohamed Maalim Hassan undertook to pay the purchase price to the 4th Petitioner in lieu of settling his debt to Mohammed Abokor. In default, the 4th Petitioner could rescind the agreements, while Mohammed Abokor’s remedy was to recover the debt from Mohamed Maalim Hassan. 3. The Petitioners further contend that Mohammed Abokor nevertheless reported the matter to the DCI in an attempt to compel them to surrender possession of the apartments. On 9th March 2026, the 1st and 2nd Petitioners were summoned and recorded statements. They allege that police officers thereafter continued contacting them and demanding to know when they would surrender possession of the apartments. They consequently contend that the investigations are not objective, but are motivated by malice and intended to intimidate and pressure them into complying with the complainant’s demands. 4. Their central grievance is that the Respondents are improperly invoking the criminal justice process to resolve what is, in substance, a civil and commercial dispute. They contend that the investigations, interrogation and threatened arrest constitute an abuse of process and unjustifiably threaten their liberty. They therefore seek the intervention of this Court to restrain the Respondents from taking any further action arising from the agreements dated 8th November 2024. **The Respondent’s Case.** 1. The Respondents’ case is that, on 7th March 2026, Mohamed Hussein Diriye lodged a complaint at Ruaraka Police Station alleging that he had entered into a real estate transaction with the Petitioners for the purchase of two duplex units pursuant to agreements dated 8th November 2024. He alleged that he had paid USD 200,000 towards the purchase price, but that the Petitioners failed to hand over possession. The complaint was subsequently referred to the DCI, Starehe, for investigation. 2. The Respondents contend that the complaint was supported by documentary evidence, including the sale agreements, receipts acknowledging payment and a Power of Attorney. The Petitioners were accordingly summoned to record statements and assist with the investigations. The Respondents maintain that the investigations disclosed reasonable suspicion of criminal conduct, including obtaining money by false pretences, money laundering and fraudulent disposition of property. 3. They deny that the investigations were actuated by malice, external influence or an intention to intimidate the Petitioners, maintaining that they acted independently and within their constitutional and statutory mandates. They further contend that no unlawful arrest, detention or prosecution has been undertaken and that the Petitioners’ constitutional rights have neither been violated nor threatened. 4. Finally, the Respondents contend that the Petition is premature and speculative, as investigations remain ongoing and the Director of Public Prosecutions has not made a charging decision. They argue that the Court ought not interfere with an ongoing investigative process absent clear evidence of illegality, and that granting the orders sought would improperly impede the constitutional mandates of the investigative and prosecutorial authorities. They consequently urge the Court to dismiss the Petition. 5. At the close of the parties’ respective cases, the Court directed them to file written submissions. The Petitioners’ submissions are dated 11th June 2026, while those of the Respondents are dated 13th July 2026. **Analysis and Determination.** 1. Having considered the petition, the responses and the arguments for and against the petition, the only issue for determination is: 2. **Whether the investigations commenced by the Respondents into the complaint lodged by Mohammed Abokor Said and any consequent prosecution amount to an abuse of the criminal justice process warranting the intervention of this Court.** 3. At the outset, **Article 157(6) of the Constitution of Kenya, 2010 (hereafter “the Constitution”)** vests in the Director of Public Prosecutions (DPP) the State power to institute and undertake criminal proceedings against any person before any court, other than a court martial, in respect of any offence alleged to have been committed. This constitutional mandate is to be exercised independently, impartially, and free from the direction, control, or influence of any person or authority. 4. On the other hand, one of the functions of the National Police Service is to investigate crimes, which function is expressly provided under **Section 24(e) of the National Police Service Act**. More specifically, **Section 28** of the said Act establishes the Directorate of Criminal Investigations (DCI) while **Section 35** empowers the Directorate to, among other functions, investigate crimes and collect criminal intelligence. 5. Additionally, **Section 52 of the National Police Service Act** also empowers police to summon persons believed to have information relevant to investigations. In other words, the National Police Service has powers to commence investigations over a suspected crime. 6. It is in the exercise of these investigative powers that the 1st Respondent summoned the Petitioners on 6th March 2026 to appear and record statements in relation to the complaint lodged concerning the two duplex apartments. The complaint, which triggered the investigations and subsequent summons, alleged, inter alia, that the complainant had entered into agreements for the purchase of the said apartments, made payments towards the purchase price, but had not been given possession of the properties. 7. The petitioners have argued that the summoning, criminal investigations and interrogation by the 1st Respondent from the commercial transaction between the Petitioners on the one hand, and the Complainant (Mohammed Abokor Said) on the other hand constitutes an abuse of the criminal justice system and is an affront to the administration of justice. According to the petitioners, the involvement of the police in a purely civil and commercial dispute is only meant to intimidate and exert undue pressure on the Petitioners to settle a civil dispute. 8. Conversely, the Respondents have argued that the Petition is founded on the mistaken premise that the existence of a contractual relationship automatically excludes the operation of the criminal law. According to the Respondents, that is not the law. Where a complaint discloses facts capable of constituting a criminal offence, the investigative agencies are under a constitutional duty to investigate the matter notwithstanding that the same facts may also found a civil claim. 9. The question that begs therefore is whether the Respondents’ decision to commence investigations and to summon the Petitioners was an abuse of investigative and/or prosecutorial powers. 10. While I acknowledge that the DCI and DPP indeed have the independent mandate to investigate crimes and to institute criminal proceeding against an individual respectively, this power ought to be exercised in a manner that serves to meet the ends of justice. 11. The dispute between the Petitioners and one Mohammed Abokor Said arose from two sale agreements dated 8th November 2024 entered into between the 4th Petitioner, Somsky Construction Limited, and the said Mohammed Abokor Said in respect of two (2) four-bedroom duplex apartments being developed on the parcel of land known as NAIROBI/BLOCK 104/918. 12. Following the said arrangement, a dispute arose between the parties regarding the respective rights and obligations under the said agreements, particularly whether the 4th Petitioner was obligated to surrender possession of the contested properties to the said Mohammed Abokor Said. It is this dispute that subsequently triggered the complaint lodged by Mohammed Abokor Said with the 1st and 2nd Respondents, resulting in the commencement of the impugned criminal investigations against the Petitioners. 13. The Petitioners have annexed an Affidavit sworn by Mohamed Maalim Hassan on 10th March 2026, who has confirmed that the said agreements were executed as a guarantee for the due performance of his loan obligations to the said Mohammed Abokor Said and were never intended to confer any proprietary interest upon him. This Affidavit has not been controverted nor challenged by the Respondents. 14. Presently, the dispute between the parties is also the subject of active civil proceedings in **Milimani** **ELCLC/E118/2026, Mohammed Abokor Said Vs Somsky Construction Co. Ltd.** I have had the occasion to look at the pleadings filed in the said suit and note that the said Mohammed Abokor Said, who is the Plaintiff therein, seeks, among other orders, an order of specific performance against the 4th Petitioner in respect of the sale and purchase of the contested properties. The Plaintiff therein also seeks an order of injunction against the Petitioners herein over the very suit properties. 15. By the very nature of this transaction, the parties’ relationship was governed by contractual obligations freely undertaken, with rights and remedies arising from performance or breach thereof. In fact, the said Mohammed Abokor Said has indeed sought to exercise his rights under the agreement in the Environment and Land Court as I have highlighted above. 16. In my view, questions relating to default in specific performance of an agreement for sale of a property are matters that ordinarily fall for determination within the civil jurisdiction, unless clear evidence is demonstrated that the conduct complained of transcends a mere breach of contract and discloses a criminal offence. 17. The question that I wish to pose at this juncture is this; was it proper, in the circumstances, for the Respondents to commence criminal investigations and potential prosecution against the Petitioners in a bid to enforce the rights of the complainant under the Sale Agreements? 18. The Respondents have attempted to justify the impugned investigations through their Replying Affidavit. In the said Affidavit sworn by the Investigating Officer from DCI, he depones that upon receipt of the Complaint by one Mohamed Hussein Diriye (who is acting for and on behalf of Mohamed Abokor under a Specific Power of Attorney), he commenced investigations in accordance with Article 244 of the Constitution, the National Police Service Act, and the Criminal Procedure Code. That upon a careful review of the complaint and the accompanying documentation, there arose reasonable suspicion of the commission of criminal offences, including obtaining money by false pretences, money laundering, and fraudulent disposition of property. 19. I however note that while the Investigating Officer has listed various offences allegedly under investigation (obtaining money by false pretences, money laundering and fraudulent disposition of property), he has not disclosed any factual basis linking the Petitioners to any of the said offences. The offences are merely listed without any material whatsoever, however slight, to demonstrate how they arise from the facts under investigation. 20. Additionally, the Respondents have alleged that there is an ongoing financial investigation through Miscellaneous Application No. E9l2 of 2026, trying to establish the alleged payment made by the Complainant, amounting to USD 200,000, yet they have not produced any proof of the same. 21. This Court is therefore left to wonder as to the nature and extent of the investigations against the Petitioners, if any. It is instructive that the Petitioners have stated that, since the commencement of the investigations, the 1st and 2nd Respondents’ officers have been incessantly calling the Petitioners, asking them when they will hand over possession of the apartments to the complainant. This fact has not been challenged by the Respondents. 22. This begs the question, are the investigations really genuine? In the absence of any justifiable basis for the commencement and continuation of investigations arising from the sale and purchase of the contested properties, this Court is left with only one conclusion: that the investigations, and any intended prosecution founded thereon, were initiated for an ulterior purpose; to intimidate the Petitioners and exert undue pressure upon them in the context of an otherwise civil dispute. 23. The Respondents have therefore failed to establish any sufficient basis to justify the impugned investigations and any consequential prosecution. 24. In the case of **Peter Macharia Ruchachu v Director of Public Prosecution & another [2014] eKLR**, the criminal case against the applicant stemmed from a dispute between him and the complainant in the criminal trial over performance of a contract. One of the issues for determination was whether a dispute over performance of a contract could form a basis to prosecute one of the parties to the dispute. Ngaah J held as follows: *“Upholding criminal justice through a criminal prosecution as opposed to misusing the prosecution as an instrument to bring pressure to bear upon a party to settle a civil dispute is a question that has engaged the minds of learned judges in our courts on numerous occasions. Apparently, whenever such a question has arisen in cases before them, the learned judges have been consistent and are in agreement in their decisions that the institution of a criminal case for a purpose other than upholding the criminal justice is an abuse of the criminal process and it is upon the courts, whenever such scenario emerges, to rise to the occasion and halt such criminal proceedings.....................When I consider totality of the circumstances comprising the background of the dispute between the complainant and the applicant, the manner of the applicant’s arrest and finally the charge which was preferred against him, I am persuaded that the prosecution of the applicant was influenced by ulterior motives; in other words, the criminal case against him was for a purpose other than upholding the criminal law. It is meant to bring pressure to bear upon the applicant to settle a civil dispute. Such a trial cannot be allowed to proceed.”* 1. In light of the foregoing, I am persuaded that the nature of the present dispute falls squarely within the category of matters contemplated by the above decision. The dispute arises from a contractual relationship and is amenable to resolution through the civil process. It was neither necessary nor proper to invoke the criminal justice machinery where the matters in contention could well be settled through civil proceedings. 2. I dare say that it is not the purpose of a criminal investigation or a criminal charge or prosecution to help individuals in the advancement of frustrations of their civil cases. This is an abuse of the process of the court and an abuse of the powers conferred upon the Respondents on investigations and prosecutions. However serious the criminal charges may appear, they cannot be permitted to stand where it is evident that their predominant objective is to advance an ulterior purpose. Criminal proceedings are not intended to be used as a tool for the enforcement or advancement of a civil claim by either party to a dispute, but must be undertaken impartially and solely in the wider interest of the administration of justice and the public at large. 3. Taking into account the totality of the foregoing analysis, this Court is satisfied that the decision to commence investigations against the Petitioners amounted to an abuse of the Respondent’s prosecutorial powers. 4. What orders, then, are appropriate for issuance by this Court in the circumstances of this case? 5. In the case of **Kuria & 3 Others v Attorney General [2002] 2 KLR 69**, the court, while addressing similar issues as in the instant case, held thus in terms of the orders to issue: *“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious…The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta.........The invocation of the law, by whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far from that which the courts indeed the entire system is constitutionally mandated to administer...In the instant case, criminal prosecution is alleged to be tainted with ulterior motives, namely to bear pressure on the applicants in order to settle the civil dispute”.* 1. Accordingly, and guided by the foregoing analysis as well as the holding in **Kuria & 3 Others v Attorney General (supra)**, I am persuaded that the continued investigations and potential prosecution of the Petitioners would amount to an abuse of the criminal justice process. 2. As such, I am inclined to issue an order of prohibition restraining the Respondent from continuing with further investigations. **Final Orders** 1. Therefore, and for the reasons set out hereinabove, this Court makes the following orders: 2. A declaration is hereby issued that the summoning, investigations, attempted arrest and subsequent prosecution of the Petitioners in respect of the sale and purchase of the two contested apartments pursuant to the sale agreements dated 8th November 2024 between the Petitioners and Mohammed Abokor Said constitute an abuse of the legal process and are therefore null and void. 3. An order of prohibition is hereby issued restraining the Respondents from investigating, interrogating or questioning, arresting, arraigning or charging the Petitioners before any court of law in respect of the sale and purchase of the two contested apartments pursuant to the sale agreements dated 8th November 2024 between the Petitioners and Mohammed Abokor Said. 4. Each party shall bear its own costs. Orders accordingly. **Judgement dated and delivered virtually this 18th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**