https://new.kenyalaw.org/akn/ke/judgment/keca/2026/928

Director of Public Prosecution v Coco & 9 others (Civil Appeal E029 of 2025) [2026] KECA 928 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 928 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal E029 of 2025 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Director of Public Prosecution Appellant and Daniele Lo Coco 1st Respondent Massimo Nativi 2nd Respondent Rafiki Limited 3rd Respondent Cosimo Armeno Modugno 4th Respondent Maria Grazia Moscone 5th Respondent Fiorenzo Girola 6th Respondent Rosy Tettamanti 7th Respondent Rita Nappo 8th Respondent Chief Magistrates Court, Kilifi 9th Respondent Hon. Attorney General 10th Respondent (An Appeal against the Ruling of the High Court of Kenya at Malindi (Hon. M. Thande, J.) delivered on 25th April 2025, in Malindi High Court Constitutional Petition No. E006 of 2024) Judgment 1.This appeal is concerned with two rulings of the High Court, the one dated 29th August 2024 (the 1st Ruling) and the other dated 25th April 2025 (the 2nd Ruling), which arose out of a Constitutional Petition dated 31st May 2024 filed in the High Court of Kenya at Malindi as Constitutional Petition No. E006 of 2024. In an amended Petition, Daniele Lo Coco, Massimo Nativi and Rafiki Limited, the 1st , 2nd and 3rd Respondents respectively, instituted in the High Court against the Director of Public Prosecutions , the Appellant on behalf of Inspector General of Police, Director of Criminal Investigations, David K. Siele, and Cosimo Armeno Modugno, Maria Grazia Moscone, Florenzo Girola, Rosy Tettamanti, Rita Nappo, Senior Resident Magistrate Kilifi and the Attorney General, as the 4th to 10 Respondents with Rafiki Resort Management Limited and the Law Society of Kenya as Interested Parties. 2.In the course of the proceedings, the 1st, 2nd and 3rd Respondents filed a Notice of motion dated 31st May 2024 culminating in the 1st Ruling, and a Notice of Motion dated 20th November 2024, which resulted in the 2nd Ruling dated 25th April 2025. 3.The brief facts leading to the subject applications are that the 1st and 2nd Respondents are Italian citizens, shareholders and directors of the 3rd Respondent, a limited liability company incorporated in Kenya; that the 3rd Respondent was the registered proprietor of property known as Title Number Kilifi/Jimba/1544 (the subject property) situate at Watamu, having acquired title thereto on or about 20th June 2014. The 1st, 2nd and 3rd Respondents developed the subject property into ten villas being Villa Nos. 1A, 1B, 2A, 2B, 3A, 3B, 4A, 4B, 5A and 5B together with other amenities in a development known as Rafiki Village. Thereafter, the 3rd Respondent entered into separate agreements to sell and lease villas at Rafiki Village to the 6th, 7th, 8th and 9th Respondents in the Petition. The 1st and 2nd Respondents signed the preliminary agreements in their capacities as directors and representatives of the 3rd Respondent, and thereafter entered into long-term leases with the purchasers as lessees, and with Rafiki Resort Management Limited, the 1st Interested Party, as manager, which leases were duly executed. It was intended that purchasers of the villas would simultaneously obtain membership and allotment of shares in the 1st Interested Party. Ultimately, the reversionary interest in the freehold title was to vest in the 1st Interested Party under the control of the villa owners. 4.However, when the purchasers’ leases were presented for registration, the Land Registrar, Kilifi, declined to register them and, instead, directed the 3rd Respondent to first obtain change of user of the subject property; that the delay in communicating that decision gave rise to disputes between the parties. They further stated that, after compliance with conditions imposed by the County Government of Kilifi and the Ministry of Lands, the 3rd Respondent obtained approval for change of user and was granted a lease dated 24th June 2022 for a term of 99 years, which was registered on 19th October 2022. Several subleases were thereafter registered while some purchasers were requested to execute deeds of rectification to facilitate registration of their interests; that, despite all this, disputes arose concerning possession of the villas, payment of service charge/condominium fees, registration of leases and ownership rights, giving rise to several civil suits and appeals where the purchasers claimed a refund of the purchase price, and other costs for the reason that the contracts were null and void, and that the long-term lease defective and legally ineffective. 5.The claims subsequently gave rise to criminal investigations against the 1st, 2nd and 3rd Respondents relating to Villa No. 5A conducted by DCI Watamu under the directions of Chief Inspector Wafula, who concluded that no offence or fraud had been committed, and that no further police action was necessary. But following persistence by the 5th, 6th, 7th, 8th and 9th Respondents, Police Constable Oduya Phoenix of DCI Kilifi and Corporal Alex Tkomol of Nairobi took over the investigations and, following approval of the Director of Public 6.Prosecutions, charges were preferred against the 1st and 2nd Respondents on 8th September 2023 alleging that they had obtained Kshs.17,000,000 from Rita Nappo and Kshs.15,000,000 from Florenzo Girola by falsely pretending that they were in a position to sublease Villa No. 5A and Villa No. 4B respectively. The matter was registered as Kilifi Senior Principal Magistrate Criminal Case No. E506 of 2023 and warrants of arrest were issued, but later withdrawn on 20th November 2023. 7.Fresh warrants were issued and the 1st and 2nd Respondents were arrested on 18th November 2023 at Malindi International Airport and taken to Kilifi Police Station, and later released on police bond of Kshs.60,000 each to appear in court on 20th November 2023. On 27th April 2024, the 1st and 2nd Respondents were again charged in Kilifi SPMC Criminal Case No. E328 of 2024 with obtaining Kshs.17,000,000 from Rita Nappo, Kshs.50,000,000 from Florenzo Girola and Kshs.15,000,000 from Girola by falsely pretending they were in a position to sublease Villas No. 4B and 4A. On 29th April 2024, they were released on a cash bail of Kshs.2,000,000 each after surrendering their passports and providing Kenyan contact persons. 8.In the Petition, the 1st, 2nd and 3rd Respondents sought a total of twenty- seven reliefs comprising declarations on the preliminary agreements for sale and the long-term leases relating to the villas known as Rafiki Village erected on the subject property, and entered into between the 3rd Respondent and the 4th to 8th Respondents. The remaining prayers related to the criminal process that was commenced after possession of the villas had already been granted to the 4th to 8th Respondents. 9.In substance, the 1st to 3rd Respondents sought, among other remedies, damages for alleged malicious prosecution, orders restraining the investigative agencies and their officers from undertaking any further criminal investigations against the 1st to 3rd Respondents or in respect of disputes arising from the sale, possession or occupation of any villa within Rafiki Village, and a declaration that the 9th Respondent lacked jurisdiction to hear and determine Criminal Case No. 328 of 2024 instituted against the 1st to 3rd Respondents, together with other incidental, declaratory and consequential reliefs. 10.Simultaneously with the Petition, the 1st to 3rd Respondents filed the Notice of Motion dated 31st May 2024 seeking a raft of orders that:1.Pending the hearing and determination of the motion and the Petition the Court be pleased to prohibit the 1st Respondent from continued prosecution of the 1st and 2nd Petitioners in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.2.Pending the hearing and determination of this Petition the Court be pleased to prohibit the 1st Respondent from continued prosecution of the 1st and 2nd Petitioners in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.3.Pending the hearing and determination of this application, the Court be pleased to prohibit the 10th Respondent and any other magistrate from hearing any criminal proceedings against the Petitioners arising from any complaint by the 5th ,6th, 7th, 8th and 9th Respondents on the sale of any Villa at Rafiki Village, Watamu.4.Pending the hearing and determination of this Petition, the Court be pleased to prohibit the 10th Respondent and any other magistrate from hearing any criminal proceedings against the Petitioners arising from any complaint by the 5th, 6th, 7th, 8th and 9th Respondents on the sale of any Villa at Rafiki Village, Watamu.5.Pending the hearing and determination of this application, the Court be pleased to prohibit the 2nd, 3rd and 4th Respondents and their officers from any further criminal investigations of the Petitioners on any matter arising from the sale and occupation of any Villa at Rafiki Village, Watamu.6.Pending the hearing and determination of this Petition the Court be pleased to prohibit the 2nd, 3rd, and 4th Respondents and their officers from any further criminal investigations of the Petitioners on any matter arising from the sale and occupation of any Villa at Rafiki Village, Watamu.7.Pending the hearing and determination of this application and of the Petition, the Court be pleased to restrain the 5th Respondent from directing the 1st , 2nd , 3rd and 4th Respondents in the manner in which they should exercise their statutory and constitutional functions and from interfering with the independence of State organs in the Republic of Kenya.8.Pending the hearing and determination of this application the Court be pleased to restrain and prohibit the 1st, 2nd, 3rd, and 4th Respondents from taking or complying with any orders and directions from the 5th Respondent with regard to the discharge of their constitutional and statutory functions.9.Pending the hearing and determination of this Petition, the Court be pleased to restrain and prohibit the 1st, 2nd, 3rd and 4th Respondents from taking or complying with any orders and directions from the 5th Respondent with regard to the discharge of their constitutional and statutory functions.10.Pending the hearing and determination of this application and for purposes of facilitating the fair hearing and determination of this Petition, the Court be pleased to direct the 1st, 2nd, 3rd and 4th Respondents to explain on oath why they cannot arrest, charge and prosecute the 5th Respondent for practising law in Kenya without the necessary qualification under the provisions of the Advocates Act in spite of the request by the Law Society of Kenya to do so.11.The Court be pleased to direct that the Petition be heard and determined on priority basis. 11.The costs of this application be provided for”. 12.The application was premised on the grounds, inter alia, that the Appellant and the investigative agencies had conspired to arrest, charge and prosecute the 1st and 2nd Respondents in Kilifi Senior Principal Magistrate’s Criminal Case No. 506 of 2023 and had procured unlawful warrants of arrest in order to compel settlement of civil disputes with the 6th and 8th Respondents; that the criminal charges were founded on transactions in which villas had already been handed over to the purchasers after execution of leases, and that any delay in registration of the leases arose from the Land Registrar’s requirement for change of user; and that the DCI Watamu had earlier investigated the matter and concluded that no criminal offence had been committed. 13.They further asserted that the purchasers had filed civil suits in Mombasa and Malindi seeking recovery of the purchase price while retaining possession of the villas, and that the renewed investigations and prosecution were commenced to force settlement of those civil disputes. It was also alleged that the 9th Respondent acted under the control of the Appellant and investigative agencies, and would not afford the 1st and 2nd Respondents a fair trial, and that, unless the orders sought were granted, they stood to suffer substantial loss and damage. 14.The application was opposed by the Appellant through a replying affidavit sworn on 28th August 2024 by PC Phenix Oduya Onyango, HSC, who deponed that the 4th Respondent had been wrongly sued in his personal capacity, being an officer serving under the 5th Respondent. He denied all the allegations contained in the application and Petition. In particular, he denied that the Appellant, the 4th and 5th Respondent were acting under the control of the 4th Respondent and stated that the 4th Respondent merely acted as a translator for the 5th and 6th Respondents, who only understood the Italian language. It was also denied that the 9th Respondent was under the control or direction of the Appellant or of the 4th and 5th Respondent. 15.The deponent further stated that investigations had established that the 1st and 2nd Respondents, who were Italian nationals and directors of the 3rd Respondent company, had been charged in Kilifi Criminal Case No. E506 of 2023 with the offences of obtaining money by false pretenses contrary to Section 313 of the Penal Code, and conspiracy to defraud contrary to Section 317 of the Penal Code; that, upon review of the file, the charges were withdrawn, but following a complaint lodged by the 4th Respondent, the investigation file was thereafter forwarded to the Regional Coordinator, ODPP Mombasa who, upon reviewing the evidence, rescinded the earlier decision and directed that fresh charges be preferred. Consequently, on 27th April 2024, the 1st and 2nd Respondents were arrested and charged in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024. It was further averred that the 1st and 2nd Respondents had misrepresented to the 5th and 8th Respondents that villas were being sold to them, only for them to be made shareholders in a holding company without their knowledge or consent instead of being issued with titles; that the decision to charge the 1st and 2nd Respondents before the Kilifi Law Courts was not actuated by malice, and that the actions taken did not violate the constitutional rights of the 1st to 3rd Respondents or Article 157(11) of the Constitution; and that no prejudice would be suffered if the criminal case proceeded before the 9th Respondent. It was urged that both the application and the Petition be dismissed, and that the criminal proceedings be allowed to proceed to their logical conclusion. 16.In response to the Petition and application, the 5th to 10th Respondents filed an undated Notice of Preliminary Objection contending that the suit disclosed no reasonable cause of action within the jurisdiction of the High Court; that the Petition and application dated 31st May 2024 were frivolous, vexatious and an abuse of the court process and devoid of merit for failing to meet the threshold of a constitutional petition as set out in Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) and ought to be dismissed with costs. 17.In determining the preliminary objection, the learned Judge, upon examining the Petition and the reliefs sought, found that although some prayers touched on agreements and leases relating to Rafiki Village, the dominant issue in the matter concerned the prosecution of the 1st and 2nd Respondents and their claim of malicious prosecution; that claims arising from criminal proceedings, including allegations of malicious prosecution and violation of constitutional rights fall within the jurisdiction of the High Court. 18.With regard to the Notice of Motion dated 31st May 2024, the learned Judge held that the Petition raised serious and arguable issues requiring interrogation at the substantive hearing, including whether disputes arising from the complaints by the 4th to 8th Respondents concerning the sale of villas at Rafiki Village were the subject of criminal investigations and charges, or ought to be resolved through civil proceedings; whether the decision to charge the 1st and 2nd Respondents at Kilifi instead of Malindi over an alleged offence said to have occurred in Watamu was fair; whether the continued investigations and prosecution would violate their constitutional rights; and whether the Appellant and investigative agencies had exercised their mandate in accordance with the law. The court found that the 1st to 3rd Respondents had established a prima facie case with a probability of success. 19.In so finding in the 1st Ruling, the learned Judge allowed the application dated 31st May 2024 and ordered that:a)pending the hearing and determination of this Petition the Court hereby prohibits the 1st Respondent from continued prosecution of the 1st and 2nd Petitioners in Kilifi Senior Principal Magistrate Criminal Case No. 328 of 2024.b)pending the hearing and determination of this Petition the Court hereby prohibits the 2nd, 3rd and 4th Respondents and their officers from any further criminal investigations of the Petitioners on any matter arising from the sale and occupation of any villa at Rafiki Village, Watamu.That all other prayers are declined”. 20.Subsequently, the 1st to 3rd Respondents filed another Notice of Motion dated 20th November 2024 where they sought a stay of orders of the 9th Respondent on 20th November 2024, a stay of further proceedings in Kilifi Criminal Case No. E328 of 2024 pending determination of the Petition, and a reversal of the orders directed at the Director-General of Immigration Services not to enforce orders requiring surrender of passports. 21.The application was premised on the grounds that the 9th Respondent had wrongfully seized the passports of the 1st and 2nd Respondents, notwithstanding that the 1st Respondent’s contention that he had pressing personal reasons to travel to Italy for reasons that he was not willing to disclose, and that although the trial court had directed the criminal case to proceed on priority basis, no hearing dates had been fixed, with the result that the 1st and 2nd Respondents were being unnecessarily detained in Kenya. They further claimed to have suffered losses exceeding Kshs.1 million in cancelled travel plans and air tickets, and feared continued violation of their rights if the proceedings were not stayed. 22.The Appellant opposed the application through a replying affidavit sworn on 26th November 2024 by Joseph Mwangi, prosecution counsel, where it was contended that the application was in substance a challenge to the trial magistrate’s refusal to recuse himself and to the orders requiring deposit of passports. The Appellant contended that such grievances ought to have been pursued by way of appeal rather than through the pending constitutional Petition. It was further stated that the application was misconceived, an abuse of process and inconsistent with the issues raised in the main Petition, which challenged the decision to prosecute. The Appellant also denied allegations of collusion, and stated that the criminal case was part-heard with two witnesses having testified. 23.The 9th and 10th Respondents similarly opposed the application through grounds of opposition dated 25th November 2024, contending that the application was incompetent, filed in the wrong forum, sought to encourage disobedience of valid court orders, and was intended to delay the criminal proceedings. They further asserted that judicial officers are protected under Article 160(5) of the Constitution for acts done in good faith in the lawful performance of judicial functions. The firm of Ndegwa & Ndegwa Advocates also opposed the application on behalf of other respondents, maintaining that, if the applicants were dissatisfied with the ruling of 20th November 2024, their proper remedy lay in an appeal to the High Court and not through the Petition. 24.In a 2nd Ruling dated 25th April 2025, the court stayed all further proceeding in Kilifi Chief Magistrate Criminal Case No. E0328 of 2024 and the orders made by the 9th Respondent on 20th November 2024, pending the hearing and determination of the Petition, and further ordered that the Director-General, Directorate of Immigration Services should not comply with the orders of Hon. James N. Mwaniki, Chief Magistrate, in Kilifi Criminal Case No. E328 of 2024 of 6th September 2024 and 20th November 2024. 25.Aggrieved by the 1st and 2nd Rulings, the Appellant filed an appeal to this Court raising the following grounds of appeal: that the learned Judge was in error in staying the proceedings in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024 despite the fact that the matter was at an advanced stage, and pending a ruling on whether the accused persons had a case to answer; in staying two rulings of the court in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024 without calling for the lower court file in exercise of the High Court’s supervisory jurisdiction; in barring the State from conducting investigations against the 1st and 2nd Respondents, thereby granting them immunity from criminal investigation and prosecution; in staying the proceedings in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024, thereby undermining the constitutional powers of the Inspector General of Police to detect and investigate offences and the powers of the Director of Public Prosecutions to prosecute criminal cases, and undermining the rule of law and fair administration of justice. 26.The parties filed written submissions and, when the appeal came up for hearing, learned prosecution counsel Mr. Kamanu appeared for the Appellant, and also held brief for Mr. Ojwang for the 9th and 10th Respondents. Learned counsel Mr. Kinyua appeared for the 1st, 2nd and 3rd Respondents, and learned counsel Mr. Ndegwa appeared for the 4th to 8th Respondents. 27.Relying on oral and written submissions, counsel for the Appellant submitted that the learned Judge was in error in issuing blanket conservatory orders that barred further criminal investigations, and in staying the proceedings in Kilifi Criminal Case No. E328 of 2024. It was argued that the orders interfered with the constitutional mandate of the Director of Public Prosecutions under Article 157 of the Constitution, and the investigative mandate of the National Police Service under Articles 243 and 244 of the Constitution, as read with Section 24 of the National Police Service Act. Counsel contended that those powers ought not to be interfered with unless clear abuse of process had been demonstrated. 28.It was further submitted that the criminal charges against the 1st and 2nd Respondents related to obtaining money by false pretenses concerning the subject property and did not refer to “Rafiki Village,” and hence the learned Judge issued orders based on a non-existent entity; that the High Court improperly restrained investigations touching on all properties allegedly falling within Rafiki Village, thereby issuing vague and far reaching orders that were capable of frustrating lawful complaints and future investigations. 29.Regarding the Notice of Motion dated 20th November 2024, counsel submitted that the learned Judge wrongly issued a stay of the trial court proceedings and reversed the trial court’s orders requiring deposit of passports without calling for the subordinate court file or considering the reasons for those orders; that the unconditional release of passports jeopardised the pending criminal trial, the Petition before the High Court, and the ongoing investigations, as the 1st and 2nd Respondents were foreign nationals who might fail to return. Counsel urged the Court to allow the appeal. In support of those submissions, reliance was placed on the cases of Republic v Chief Magistrate Milimani & another Ex parte Tusker Mattresses Ltd & 3 others [2013] KEHC 6807 (KLR); Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR; and Kenneth Kanyarati & 2 others v Inspector General of Police, Director of Criminal Investigations Department & 2 others [2015] eKLR. 30.Counsel for the 4th to 8th Respondents supported the appeal and submitted that the impugned orders unlawfully interfered with the constitutional functions of the investigative and prosecutorial agencies; and that, by prohibiting the police from carrying out investigations, and by halting the criminal proceedings, the High Court usurped powers reserved to other constitutional organs contrary to the doctrine of separation of powers. 31.Counsel further argued that the order staying proceedings before the Kilifi Chief Magistrate’s Court interfered with the role of the trial court, which ought to have been allowed to hear and determine the criminal case on its merits; and that the High Court ought not to have invoked its supervisory jurisdiction to micro-manage lower courts or prevent them from concluding matters properly before them. 32.It was also submitted that the order restraining investigations was general and unsupported by the pleadings since the criminal court was seized of a specific matter and fresh complaints were still emerging; and that the High Court had effectively stepped into the shoes of the investigative agencies and the trial court. In support of those submissions, reliance was placed on the case of the Speaker of the Senate & another v Attorney General & 4 others [2013] KESC 7 (KLR), Commission for the Implementation of the Constitution v Parliament of Kenya & another [2013] KECA 445 (KLR); Kenya Youth Parliament & 2 others v Attorney General & others [2012] KEHC 5589 (KLR); Joseph Nduvi Mbuvi v Republic [2019] eKLR and Kenya Deposit Insurance Corporation v Richardson & David Ltd & another, Civil Appeal Nos. 66 and 67 of 2016 (consolidated). 33.Regarding the High Court’s order restraining the Director of Criminal Investigations and, by extension, the Director of Public Prosecutions from conducting further investigations, it was submitted that the court interfered with constitutional mandates conferred upon those institutions and prohibited any future complaints or investigations touching on the 1st and 2nd Respondents or any matters arising from the sale and occupation of villas at Rafiki Village, Watamu, and that the High Court exceeded its constitutional role and interfered with the functions of other offices established under the Constitution. Counsel accordingly urged the Court to set aside the rulings and orders of the High Court. 34.In an oral reply, counsel for the 1st and 2nd Respondents begun by outlining the genesis of the dispute. It was submitted that the 3rd Respondent was the registered owner of the subject property upon which it had constructed several villas, some of which were sold to the 6th to 8th Respondents; and that this information was verified by the DCI Watamu. It was argued that, although the issue concerned a civil dispute, criminal proceedings were unlawfully lodged against the 1st and 2nd Respondents. 35.Regarding whether or not the learned Judge ought to have called for the trial court’s file, counsel submitted that, in this case, since the court was not exercising its supervisory jurisdiction, as the proceedings in the High Court involved constitutional reference, it was unnecessary for the trial court file to be placed before the High Court. 36.Counsel concluded by asserting that the criminal proceedings against the 1st and 2nd Respondents were unwarranted and unlawful, and that the learned Judge rightfully granted the orders sought. 37.This is a first appeal where the Court’s mandate is to re-evaluate, re-assess and re-analyze the evidence on record, and determine whether the conclusions reached by the learned judge should stand, and give reasons either way. See Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR, Kiruga v Kiruga & Another [1988] KLR 348 and Peters v Sunday Post Ltd [1958] EA 424. 38.Having considered the grounds and the rival submissions on record, the issues arising for determination in respect of the 1st Ruling are:i.Whether the learned Judge was wrong in granting the orders staying further proceedings in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024 pending the hearing and determination of the Petition.iii.Whether the learned Judge wrongly prohibited the Appellant and investigative agencies from conducting further criminal investigations against the 1st to 3rd Respondents, and whether such orders unlawfully interfered with the constitutional and statutory mandates of the Director of Public Prosecutions and the National Police Service. 39.And, in respect of the 2nd Ruling, the issues arising were whether the learned Judge was wrong in staying the trial court’s orders of 20th November 2024, and in directing the Director-General of Immigration Services not to comply with the orders relating to surrender of passports without first calling for the lower court file or properly invoking the High Court’s supervisory jurisdiction 40.Beginning with the first issue, as to whether the learned Judge was in error in granting orders staying further proceedings in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024 pending the hearing and determination of the Petition, 41.The jurisdiction of the High Court to grant conservatory relief in constitutional proceedings must be exercised judiciously, cautiously and only upon satisfaction of the settled principles governing the grant of conservatory orders, namely that an applicant must demonstrate a prima facie case with a likelihood of success; that, unless the orders sought are granted, the substratum of the petition would be rendered nugatory; and that the public interest tilts in favour of granting the relief sought. See Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others SCK [2013] eKLR. 42.A consideration of the record shows that the order of the High Court stayed the criminal proceedings in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024 that had already commenced before the Kilifi Chief Magistrate’s Court, which was lawfully vested with jurisdiction to hear and determine the matter. 43.In the case of Dande & 3 others v Director of Public Prosecutions & 2 others Petition 4 of 2022 [2022] KESC 23 (KLR), the Supreme Court observed:“…that an order for stay of criminal proceedings is not granted as a matter of course but upon the sparing exercise of judicial discretion and only in exceptional circumstances.” 44.Halsbury’s Law of England 4th Edition Vol. 37 pages 330 and 332 states that;“he stay of proceedings is a serious, grave, and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” 45.The 1st to 3rd Respondents sought stay of the criminal case for the reasons that the prosecution was allegedly malicious, actuated by collateral motives, arising from disputes that were civil in nature which concerned the sale and occupation of villas at Rafiki Village; and that, were the investigations and prosecution to proceed, there was the possibility that the 1st, 2nd and 3rd Respondents’ rights could be violated. The High Court found that the allegations were serious and deserving of consideration. However, the mere existence of parallel civil disputes does not, of itself, bar criminal proceedings where the facts disclosed may also found criminal liability. Civil and criminal liability are not mutually exclusive, and the existence of one process does not automatically invalidate the other. 46.In the case of Kuria & 3 Others v AG [2002] 2 KLR, the court discussed the viability of existence of concurrent civil and criminal proceedings and concluded thus:“…A prerogative order should only be granted where there is an abuse of the process of the law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution... It is not enough to state that because there is an existence of a civil dispute or suit, the entire criminal proceedings commenced based on the same set of facts are an abuse of the court process. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the Applicant are under serious threat of being undermined by the criminal prosecution. In the absence of concrete grounds. it is not mechanical enough that the existence of a civil suit precluded the institution of criminal proceedings based on the same set of facts. The effect of criminal prosecution on an accused person is adverse but so also are their purpose in the society, which are immense. an order of prohibition cannot also be given without any evidence that there is manipulation, abuse or misuse of court process or that there is a danger to the right of the accused person to have a fair trial…” 47.Section 193A of the Criminal Procedure Code provides that:“‘Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.’ 48.The case of Lalchand Fulchand Shah v Investments & Mortgages Bank Limited & 5 Others [2018] eKLR discerned the import of Section 193A thus:“In terms of Section 193A of the Criminal Procedure Code, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings does not bar the commencement of criminal proceedings. However, where the criminal proceedings are oppressive, vexatious and an abuse of the court process or amounts to a breach of fundamental rights and freedoms, the High Court has the powers to intervene. But this power has to be exercised very sparingly as it is in the public interest that crime is detected and suspects brought to justice.” 49.Additionally, the Supreme Court held in Dande & 3 others v Director of Public Prosecutions & 2 others (supra) that:“The appellants also claimed that the civil suits aforesaid were settled to their exclusion meaning that they were not parties to the suits. If so, what is the prejudice to them? And if the settlement is relevant to their innocence, what better forum is there than the trial court to raise that issue? Furthermore, Section 193A of the Criminal Procedure Code provides as follows:193A.Concurrent criminal and civil proceedingsNotwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition, or delay of the criminal proceedings.[104]The conclusion we draw from the above provision is that both civil and criminal jurisdictions can run parallel to each other and that neither can stand in the way of the other unless either of them is being employed to perpetuate ulterior motives or generally to abuse of the process of the court in whatever manner.” 50.An examination of the record discloses that, notwithstanding the allegations, there was no material placed before the learned Judge to demonstrate that the prosecution was so patently unlawful, oppressive, or an abuse of process as to warrant the drastic remedy of staying the entire criminal proceedings pending determination of the Petition. The impugned order had the effect of prematurely arresting an ongoing criminal process without cause, and preventing the trial court from discharging its mandate. Given that there was nothing that demonstrated that the criminal proceedings were unlawful or borne out of malice, we find that the learned Judge misdirected herself in exercising her discretion to grant the conservatory orders staying further proceedings in Kilifi Chief Magistrate’s Court Criminal Case No. E328 of 2024 pending hearing and determination of the Petition. 51.This Court in the case of Diamond Hasham Lalji & another v Attorney General & 4 others [2018] KECA 856 (KLR) opined that:“(41)Thus, the exercise of prosecutorial discretion enjoys some measure of judicial deference and as numerous authorities establish, the courts will interfere with the exercise of discretion sparingly and in the exceptional and clearest of cases. However, as the Privy Council said in Mohit v Director of Public Prosecutions of Mauritius [2006] 5LRC 234:these factors necessarily mean that the threshold of a successful challenge is a high one. It is however one thing to conclude that the courts must be sparing in their grant of relief to seek to challenge the DPP’s decision to prosecute or to discontinue a prosecution, and quite another to hold that such decisions are immune from any such review at all…In Regina v Director of Public Prosecutions ex-parte Manning and Another [2001] QB 330, the English High Court said partly at para 23 page 344:At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the tests were too exacting, an effective remedy could be denied.Although the standard of review is exceptionally high, the court’s discretion should not be used to stultify the constitutional right of citizens to question the lawfulness of the decisions of DPP.(42)The burden of proof rests with the person alleging unconstitutional exercise of prosecutorial power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision.” 52.The next issue is the question of whether the learned Judge rightly stayed the criminal investigations “… on any matter arising from the sale and occupation of any villa at Rafiki Village, Watamu”. In this regard, criminal investigations are carried out by The Directorate of Criminal Investigations (DCI), a department of the National Police Service. Article 239(1)(c) of the Constitution recognizes the department as a national security organ, which is established pursuant to Article 243. The National Police Service Act No. 11A of 2011, enacted to give effect to Article 243(4) of the Constitution, sets out the mandate of the National Police Service. In particular, Section 24(e) of the Act provides for one of its core functions being that of investigation of crimes. 53.Section 35 of the National Police Service Act No. 11A of 2011 sets out the functions of the DCI, which include collecting and providing criminal intelligence; undertaking investigations into serious crimes, such as homicide, narcotic offences, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime; maintaining law and order; detecting and preventing crime; apprehending offenders; maintaining criminal records; conducting forensic analysis; executing directions issued by the Director of Public Prosecutions pursuant to Article 157(4) of the Constitution; coordinating Interpol affairs; investigating matters referred to it by the Independent Police Oversight Authority; and performing any other function conferred by law. 54.In the case of the Republic v Commissioner of Police & Another Ex Parte Michael Monari & Another [2012] eKLR, the Court underscored the centrality of this mandate, holding that:“The police have a duty to investigate any complaint once made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. As long as the prosecution and those charged with the responsibility of making the decision to charge act reasonably, the High Court would be reluctant to intervene.” 55.In the case of Daniel Ogwoka Manduku v Director of Public Prosecutions & 2 others, [2019] KEHC, it was held that:“It is therefore not possible to stop any criminal investigations unless the foundation of such investigations is malicious or is an abuse of power.” 56.Similarly, in the case of Isaac Tumunu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR, Odunga, J (as he then was) outlined the scope of the police investigative mandate and the limited circumstances under which courts may intervene when the court stated that:“The police are clearly mandated to investigate the commission of criminal offences and, in so doing, have powers inter alia to take statements and conduct forensic investigations.In order for the applicant to succeed, he must show not only that the investigations are being carried out with ulterior motives, but that the predominant purpose of conducting the investigations is to achieve some collateral result not connected with the vindication of an alleged criminal offence.It must always be remembered that the motive for instituting criminal proceedings is only relevant where the predominant purpose is to further some ulterior purpose, and as long as the prosecution and those charged with the responsibility of making the decision to charge act reasonably, the High Court would be reluctant to intervene.” 57.In the same vein, this Court in the case of Kariuki v Director of Public Prosecutions & 3 others (Civil Appeal E331 of 2024) [2026] KECA 203 (KLR) also* held:“Article 243 establishes the National Police Service, and section 28 of the National Police Service Act further establishes the Directorate of Criminal Investigations (DCI) which shall be under the direction, command, and control of the Inspector-General. The Inspector General of the National Police is established under Article 245 which also vests the power to investigate crimes in the office, and by dint of Article 245 (4), no person may give a direction to the Inspector-General with respect to the investigation of offences or the enforcement of the law against any particular person or persons. It was in this regard held by the Supreme Court in Dande & 3 others v Inspector General, National Police Service and Others (supra) that the Inspector General and the DCI have the mandate to perform multi-faceted functions as provided under articles 244 and 245 of the Constitution, and that Article 244(c) in particular requires the National Police Service to comply with constitutional standards of human rights and fundamental freedoms in the discharge of its mandate. Therefore, that courts should only interfere with the powers granted to the Inspector General and the DCI if the constitutional and statutory provisions are not adhered to or if the actions are illegal and unlawful.” 58.Applying the foregoing principles to the present case, the record shows that the investigations giving rise to the impugned criminal proceedings stemmed from complaints that the 1st and 2nd Respondents, as directors of the 3rd Respondent company, obtained substantial sums of money from purchasers on the representation that they were in a position to transfer the villas erected on the subject property to them. The investigations were conducted by officers attached to the DCI and, upon review by the Director of Public Prosecutions, culminated in the institution of Kilifi Senior Principal Magistrate’s Criminal Case No. E328 of 2024. The 1st and 2nd Respondents contended that the dispute was purely civil in nature, arising from agreements for sale and lease of villas at Rafiki Village, and that the criminal process had been invoked to coerce settlement of those disputes. They further alleged that the investigative agencies acted under the influence of private parties, and that earlier investigations by DCI Watamu had concluded that no offence had been disclosed. On the other hand, the Appellant maintained that investigations disclosed offences of obtaining money by false pretence and conspiracy to defraud, and that the matters raised by the Respondents constituted defences to be canvassed before the trial court. 59.At an interlocutory stage, and without going into the merits of the Petition, the material placed before the trial court does not demonstrate that the investigations were undertaken outside the mandate of the DCI so as to warrant a stay of the ongoing investigations. The effect of the impugned orders was to impose a blanket prohibition on investigations into matters arising from the sale and occupation of villas at Rafiki Village, Watamu. We find that such orders were not only broad, far reaching and indeterminate, but also had the consequence of precluding the investigative agencies from discharging their constitutional and statutory functions, including possible future complaints that might arise. In that regard, the orders went beyond preserving the substratum of the Petition and instead effectively conferred immunity from investigations upon the 1st, 2nd and 3rd Respondents. 60.In the circumstances, we find that the learned Judge was in error in granting orders that effectively barred the Appellant and the investigative agencies from carrying out their mandate. The orders amounted to an unwarranted interference with the constitutional functions of the National Police Service and the Director of Public Prosecutions, contrary to the settled principle that courts should not intervene in criminal processes absent clear evidence of illegality, malice, or abuse of process. Accordingly, we find merit in, and allow, the appeal against the 1st Ruling dated 29th August 2024. 61.Turning to the 2nd Ruling dated 25th April 2025 in respect of the Notice of Motion dated 20th November 2024, the learned Judge issued the following order:“After allowing the Application dated 31.5.24 staying the prosecution of the Petitioners Kilifi Chief Magistrate Criminal Case No. E0328 of 2024 (Republic v Daniele Lo Coco and Massimo Nativi) pending the hearing and determination of the Petition, it follows that the orders sought herein are also allowed.” 62.Whereupon, the court ordered:“1.That pending the hearing and determination of this petition, all further proceeding in Kilifi Chief Magistrate criminal case no. E0328 of 2024 (Republic v Daniele Lo Coco and Massimo Nativi) be and is hereby stayed.2.That pending the hearing and determination of this petition the orders made by the 10th respondent on 20th November 2024 be and is hereby stayed.3.That an order is hereby issued that the Director-General, Directorate of immigration services should not comply with the orders given by Hon. James N. Mwaniki, C M in Kilifi Chief Magistrate criminal case no E328 of 2024 (Republic v Daniele Lo Coco and Massimo Nativi) on 6th September 2024 and 20th November 2024.” 63.The effect of the orders in the 2nd Ruling was to not only stay the already stayed proceedings under the 1st Ruling, but also to reverse the orders of the trial court in so far as they concerned the depositing of the 1st and 2nd Respondents’ passports. The Appellants’ complaint was that the learned Judge reversed the orders of the trial court requiring deposit of passports without calling for the trial court file or considering the reasons for those orders. It was argued that the unconditional release of passports jeopardised the pending criminal trial, the Petition before the High Court, and the ongoing investigations, as the 1st and 2nd Respondents were foreign nationals who might fail to return if allowed to leave the country. 64.In relation to the replicated orders staying the proceedings, the learned Judge relied on the reasons and decision set out in the 1st Ruling of 29th August 2024. Having found as we have that the orders were arrived at without a proper basis, we also find that the stay of proceedings order in respect of the 2nd Ruling was also arrived at without the establishment of a proper basis. 65.With respect to the order reversing the trial court’s orders requiring deposit of passports, a background to the granting of those orders is necessary. 66.An interrogation of the record before us discloses that following the taking of plea by the 1st and 2nd Respondents, the case was set down for hearing. During the bail proceedings, a question arose concerning the travel by the 1st and 2nd Respondents out of the jurisdiction of the court. On 29th May 2024, the trial court issued orders reviewing earlier bond terms and directed that the 1st and 2nd Respondent’s passports, which had been deposited in court, be released to them subject to strict conditions regulating their travel. Those conditions required disclosure of their residence and contacts in Italy, submission of detailed travel itineraries to the DCI-Kilifi North, and prior authorization of any travel out of the country by the DCI, with such travel not exceeding ninety (90) consecutive days. The DCI was further directed to coordinate with the Directorate of Immigration to ensure compliance. 67.Subsequently, on 6th September 2024, the matter came up before the court on a Notice of Motion dated 5th September 2024. The court certified the application as urgent and directed the Department of Immigration to ensure compliance with the earlier travel conditions imposed on 29th May 2024. 68.Aggrieved by the orders, the 1st and 2nd Respondent sought a review and, in a ruling delivered on 20th November 2024. The trial court found that the orders issued on 29th May 2024 had effectively diminished the court’s control over the proceedings and discretion, particularly by delegating the authority to approve the accused persons’ travel to the DCI. The court observed that, under those orders, the accused persons could travel out of the jurisdiction without sufficient judicial oversight, merely notifying the court of travel arrangements approved by the DCI, and thereby placing control of the court’s diary and proceedings in the hands of the accused persons. Consequently, the court found it necessary to vacate and vary the earlier orders of 29th May 2024 and, instead, order that, in the event the 1st and 2nd Respondents required to travel out of the country, they should file a formal application in court, which application would be served upon the ODPP and/or the counsel watching brief for the victims/complainants, and that their travel out of the country would therefore be by court order and for the Directorate of Immigration to ensure that any such order be obeyed. 69.With this background in mind, we have examined the 2nd Ruling, and it becomes apparent that it is silent on the rational or applicable principles that would warrant reversing the order for deposit of the passports. What the learned Judge did not appreciate was that the 1st Ruling did not in any way address the question of reversal of the trial court’s orders on the deposit of the passports, so that, no basis at all was laid that was supportive of the exercise of judicial discretion for the reversal orders. 70.The principles on exercise of judicial discretion were laid down in the case of Price and Another v Hilder [1996] KLR 95 thus:“In considering the exercise of judicial discretion, as to whether or not to set aside a judgment the court considers whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the Judgment. The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.” 71.The law on the matter was earlier addressed in the case of Mbogo & Another v Shah [1969] EA 93 where it was held, inter alia, that:“An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.” 72.Furthermore, the Supreme Court of Kenya in the case of Apungu Arthur Kibira v Independent Electoral and Commission Boundaries & 3 Others [2019] eKLR stated:“We reiterate that in an appeal from a decision based on an exercise of discretionary power, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011]2 NLRI (Kacem) where it was held para 32]: “In this context a general appeal is to be distinguished from an appeal against the decision made in exercise of discretion. In that kind of case, the criteria for a successful appeal are stricter: (i) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.” 73.Given the succinct principles governing the exercise of discretion outlined above, we find that, in failing to evaluate the specific complaints relating to deposit of the passport prior to granting the reversal orders, the learned Judge misdirected herself in failing to consider the matters that ought to have been taken into consideration and, in so doing, arrived at the wrong decision. Accordingly, we find merit in the appeal against the 2nd Ruling dated 25th April 2025. 74.As a consequence, we are not satisfied that the learned Judge properly and judiciously exercised her discretion in determining the Notice of Motion dated 30th May 2024 and 20th November 2024, with the result that we find it necessary to interfere with decisions reached in the 1st and 2nd Rulings. 75.In sum, the appeal succeeds and is allowed, with the result that the Ruling dated 29th August 2024 and the Ruling dated 25th April 2025 are hereby set aside. Costs to the 1st and 4th to 10th Respondents.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR...................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb....................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...................................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR