https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12988

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E239 OF 2024** **IN THE MATTER OF THREATENED INFRINGEMENT AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(1), 2(4), 3(1), 10(1), (2), 21(1), 22(1), 23, 36, 49(1)(h) & 165 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF ALLEGED CONRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10(1), (2), 20(2), 24, 36 & 165 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF THREATENED CONTRAVENTION OF ARTICLES 20(2), 24 AND 27(1), (2), (4) OF THE CONSTITUTION OF KENYA 2010** **BETWEEN** **ANNA NJERI GITANYU…………..………………………...PETITIONER** **VERSUS** **THE DIRECTORATE OF** **CRIMINAL INVESTIGATIONS……………………..1ST RESPONDENT** **THE INSPECTOR GENERAL OF POLICE…..….…..2ND RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS….3RD RESPONDENT** **THE ATTORNEY GENERAL………..…………..……4TH RESPONDENT** **JUDGMENT** **Introduction** 1. The Petition dated 13th May 2024 is supported by the Petitioner’s affidavit in support of even date and supplementary affidavit dated 18th November 2024. 2. The core of the Petition are threats, intimidation and harassment allegedly directed at the Petitioner by the officers of the 1st and 2nd Respondents on grounds that she is a recipient of funds that constitute proceeds of crime, specifically, **the sale of a motor vehicle registration number KDG 101 G.** 3. According to the Petitioner, the said funds comprised of **Kshs. 2,200,000/-** deposited into her Bank account and an additional 4. **Kshs. 300,000/-** received in cash. The Petitioner explained that the amount constituted **7-months’ rent** paid by her tenant, one **George Mwangi Wanderi**. The rent, according to the Petitioner, was paid pursuant to a lawful lease agreement entered into between the Petitioner and the tenant for the lease of Petitioner’s land in **Ruiru Town, Title Number RUIRU TOWNSHIP/260,** to operate a car wash, car park and accessories business. 5. The Petitioner thus seeks the following reliefs: 6. **A permanent injunction restraining the respondents by themselves, their officers, servants and assigns or anyone acting on their behalf or instructions from arresting, charging or prosecuting the Petitioner herein on account of the issues raised in this Petition.** 7. **A permanent injunction to issue restraining the Director of Public Prosecution by himself, his officers, servants, agents and/or anyone acting on his behalf from instituting, charging or prosecuting the Petitioner herein in respect of or in connection with the complaint or allegations made arising from or in relation to this matter.** 8. **General damages** 9. **Costs of the Petition.** 10. **Any other relief that th****is Honourable Court considers appropriate and just to grant.** 11. In opposition to the Petition, the **1st, 2nd & 3rd Respondents** filed a Replying affidavit dated **10th June 2024** whereas the **4th Respondent** filed grounds of opposition dated **12th June 2024**. **The Petitioner’s Case** 1. The Petitioner averred that she is a female adult of sound mind who carries out the business of supplies to various government and private institutions mainly, within Nairobi. She further averred that she is the proprietor and Director of **Landmark International Properties Limited**, the registered owner of property Title Number Ruiru Township/260 (business premises). 2. The Petitioner disclosed that she has leased out the said property, RUIRU TOWSHIP/260 to a tenant known as **George Mwangi Wanderi** who conducts a car wash, car park and car accessories business. 3. The Petitioner pleaded that 23rd March 2023, she entered into a lease agreement with the said tenant for a lease period of five years commencing **1st April 2023** to **30th March 2028** at an agreed monthly rent of Kshs. 250,000/-. On 25th March 2023, the tenant paid a sum of Kshs. 2,500,000 to the Petitioner to cover three months deposit and rent of seven months. The tenant took over possession from 25th March 2023 to allow for a fitout period of the premises after handover to the tenant. The said amount was paid vide a bank transfer of Kshs. 2,200,000/- and the balance of Kshs. 300,000/- in cash. 4. The Petitioner asserted that the 1st and 2nd Respondents have been calling and harassing her for over 8 months regarding the Kshs. 2,500,000/- paid to her by the tenant. She averred that she has always explained to them that she received the funds as rent from her tenant. Further, the officers of the 1st and 2nd Respondents have claimed that the money used by the tenant is proceeds of crime related to the sale of motor vehicle registration number **KDD 101G** which she said she is not aware of. 5. The Petitioner contends that she has no duty to investigate the source of funds paid into her accounts by her tenant whom she has known to be a businessman ever since he sought to lease her business premises. 6. That notwithstanding, the tenant moved out of the premises in January 2024 after claiming that he wanted to renovate the premises. The said tenant has accumulated rent arrears since January 2024 and she has no way of tracing him. 7. Further, the Petitioner averred that the officers of the 1st and 2nd Respondents have informed her that they will arrest and charge her if she fails to produce the tenant. She contended that she is not an investigator and thus has no legal responsibility to investigate alleged criminal activities of her former tenant. 8. The Petitioner states that she is in a constant state of fear of being arrested, intimidated and prosecuted for allegations which she has nothing to do with. She is further apprehensive that the Respondents will eventually be successful in utilizing the criminal justice system to illegally detain her, embarrass her, disrepute her and harm her business relationships and social standing as a law-abiding citizen. The Petitioner contended that under Article 27, both her and her employees are entitled to equal protection and benefit of the law. **The 1st, 2nd & 3rd Respondents’ Case** 1. The Replying affidavit was sworn by **IP George Karanja No. 241240**, the investigating officer of the case. He depones that on 29th September 2023, the complainant in the criminal case, one **Alafia Mohammed Sameer** of **Baobab Credit Limited** made a criminal complaint of obtaining credit contrary to **Section 313** of the Penal Code at Central Police Station. Preliminary investigations established that one **Patrick Jairo Atola** sought to secure a loan facility from Baobab Credit Limited to enable him purchase motor vehicle registration number **KDD 101G Toyota Landcruiser** Black in colour from **Julius Kimani Mwangi**. The said Patrick Atola requested for a loan facility of **Kshs. 9,400,000/-** and provided a copy of an **Agency agreement** between hm and **Landmark** **Property Agency** as proof of his financial strength of up to Kshs. 1,500,000/-. He further provided instruction in relation to Branch Manager Equity Four Ways Branch permitting the Manager to debit his account number 00100262847580 and credit Kshs. 403,000/- to Baobab Credit Limited Account **Number 00303204001250** held at I & M Bank for a period of 35 months effective from 30th April 2023. Additionally, he provided Equity Bank Statements for the period between 1/1/2022 to 11/1/2023 in support of his financial worth and statements showed that he was receiving substantial sums of money from Landmark Property Agency. 1. The deponent reveals that Baobab Credit undertook due diligence by conducting a search to ascertain the registered owner of motor vehicle registration number KDD 101G Toyota Landcruiser which confirmed that the said vehicle was registered under Julius Kimani Mwangi. Before the funds were released a joint transfer was done and a new log book serial number N6096528Z issued in the name of both Baobab CREDIT Limited and Patrick Jairo Atola. Baobab Credit Limited caused a tracking device to be installed in the motor vehicle and proceeded to transfer the sum of Kshs. 8,500,000/- to **Julius Kimani Mwangi’s** account domiciled at equity Bank account Number 0890196079597. Prior to disbursing the loan facility to Julius Kimani Mwangi’s account, the said Patrick Jairo Atola issued 35 cheques from Sidian Bank Account Number 01001150028431 with firm instructions that the cheques be deposited on 30th of every month for 35 months commencing 30th April 2023. 1. The deponent further reveals that the cheques were dishonoured due to insufficient funds upon being presented in both May and June 2023 as instructed. Consequently, Baobab Credit Limited demanded for repayment of the loan facility but was instead served with a court order emanating from Milimani CMCC No. E881 of 2023 dated 14th June 2023 restraining them from repossessing motor vehicle registration number KDD 101G. The matter was finally decided in favour of Baobab Credit Limited and the restraining orders lifted on 27th September 2023. The company tracked down the motor vehicle and found it in Nairobi under a different registration number being KDH 898X Landcruiser V8 black in colour and they lodged a report at Central Police Station. 2. Upon investigating the matter, it was established that motor vehicle registration number KDH 898X Toyota Landcruiser had allegedly been hired by **Julius Kimani Mwangi from Xuperd Rental Limited** **Lavington** on 15th March 2023 for a period of three days and later extended to seven days. Further investigations into the matter established that the incident was part of a complex web of financial crime involving illegal access to the National Transport and Safety Authority motor registration database system. The deponent avers that the money allegedly transferred to Julius Kimani Mwangi’s account was further transferred to several other accounts akin to laundering proceeds of crime. 3. The said **Julius Kimani Mwangi transferred a total of Kshs. 8 million** to one **Caroline Njeri Karanja account number 12801833282408** domiciled at Equity Bank and the remaining Kshs. 500,000 transferred to several MPESA accounts. 4. **Caroline Njeri Karanja transferred Kshs. 4 million to George Mwangi Wanderi’s bank account number 0090190825730** domiciled at Equity Bank and she also transferred back Kshs. **795,000/- to Julius Kimani Mwangi**; **George Mwangi Wanderi upon receiving the Kshs. 4 million transferred Kshs. 2,200,000/-** to the Petitioner herein through her account number 0150190233244 domiciled at Equity bank; the Petitioner herein upon receiving the said amount **transferred Kshs. 250,000/- back to Caroline Njeri Karanja** and the remainder to **several other MPESA accounts**. 1. The deponent reveals that the outcome of the investigations suggests that Patrick Jairo Atola, Julius Kimani Mwangi, Caroline Njeri Karanja, George Mwangi Wanderi and Anne Njeri Gitanyu were part of a choreographed scheme to defraud Baobab Credit Limited by obtaining credit and distributing the money to conceal their traces. 2. The deponent contends that at all material times, the investigations were undertaken in compliance with the Constitution and all relevant laws and statutes and therefore the allegations of harassment by police officers are baseless, unfounded and calculated to deter the Respondents from undertaking their lawful mandate. 1. Further, the Petitioner has refused to cooperate with the Respondents in the investigations despite being summoned. The deponent further states that at the end of the investigations, the 1st & 2nd Respondents forwarded the investigation file to the 3rd Respondent upon establishing that there was reasonable suspicion that a criminal offence had been committed. The 3rd Respondent upon reviewing the investigation file directed that the Petitioner be arrested and charged with various offences. 2. The deponent contends that the Petitioner’s right to fair trial as enshrined under Article 50 of the Constitution of Kenya will not in any way be violated since the criminal justice process is guided by the Constitution, the Evidence Act and the Criminal Procedure Code. The deponent avers that the Petitioner is using the Petition herein to subvert the criminal justice process and is using the current court to determine issues of fact which are within the province and competence of the trial court to hear and determine; the contested matters are issues for determination before the criminal trial court and do not constitute grounds to prevent prosecution of the Petitioner as she will be afforded an opportunity to defend herself during the trial; the decision by the 2nd respondent to charge should not be reviewed by the current court and the Petitioner has not demonstrated that the Respondents acted illegally, unprocedurally, unreasonably or in excess of their mandate to warrant grant of the orders sought. **The 4th Respondent’s Case** 1. The 4th Respondent argues that the Petition lacks clarity and precision in setting out the alleged violations; the Petition discloses no cause of action against it and the orders sought against it are not tenable. Further the Petitioner does not show how the 4th Respondent has failed or abdicated his duties under Article 156 of the Constitution. The 4th respondent contends that its mandate is set out clearly under Article 156 of the Constitution and therefore plays no part in any criminal matters. 2. The Petitioner filed a Supplementary Affidavit dated 18th November 2024 and states that the complaint as alleged by the Respondents is pertaining one Patrick Jairo Atola and not herself. She further avers that she does not know the said Patrick Atola and has never been privy to any loan agreement or car sale agreement. Additionally, the Petitioner states that she is a director of Landmerk International Properties which has no relations to the said Landmark Property Agency as alleged by the Respondents. 3. The Petitioner reveals that the said Landmark Property Agency is neither a registered business or a company and thus the complainant in the instant case did not even conduct due diligence before disbursing the alleged loan to Mr. Patrick Jairo. She further argues that the whole story revolves around Mr. Patrick Jairo and the Respondents are focused on her as she is unable to produce her then tenant Mr. George Mwangi Wanderi. Additionally, the petitioner avers that she duly complied with the investigation save for the fat that she does not know where George Mwangi Wanderi is. The Petitioner affirms that she transferred Kshs. 250,000/- to one Ms. Caroline Njeri for timber being bought from JK Timbers in Ruiru. 1. The Petitioner avers that the said charges and allegations are baseless and a malicious way to punish her for not knowing the whereabouts of George Mwangi. Further the continuous harassment and intimidations are a direct violation to Articles 28 and 47 of the Constitution of Kenya. 2. The petition was disposed of by way of written submissions. **Petitioner’s Submissions** 1. The Petitioner submitted that she leased her property to a tenant who paid the deposit and rent which was later allegedly linked to proceeds of crime. Despite her cooperation and explanation, she has been subjected to harassment and threats of arrest yet she is not responsible for investigating the source of funds and she cannot be criminally held liable for the tenant’s alleged criminal activities. Reliance was placed in the case of **Florence Amunga Omukanda** **& Another vs Attorney General & 2 Others [2016] eKLR** where the court held:- **Where the court emphasize that arrest and detention should not be used as a tool of harassment and should only occur when there is sufficient evidence of wrongdoing.** 1. Further reliance was placed in the case of **Trusted Society of Human Rights Alliance vs Attorney General & 2 Others [2012] eKLR**:- **Where the court underscored that any exercise of power by state organs, including law enforcement agencies, must adhere strictly to constitutional mandates and respect the rule of law.** 1. The Petitioner argued that the police are not allowed to abuse their powers through harassment and intimidation which infringes upon her right to dignity and security. She further argued that the respondents should only arrest her if there is substantive evidence against her of criminal intent and involvement and not mere association or transactional link with someone suspected to have committed a criminal act. 2. The Petitioner further submitted that the threat of arrest without any concrete evidence or reasonable cause contravenes the due legal process as required by law and thus it is incumbent upon the Respondents to justify actions against her. Reliance was placed in the case of **Republic vs Chief Magistrate’s Court at Nairobi *ex parte* Gachoka & Another [1999] eKLR**:- **The court emphasized that abuse of police or prosecutorial power infringes upon the rights to liberty and due process. In this case, the importance of judicial oversight to prevent arbitrary actions was underscored.** 1. Further reliance was placed in the case of **Geoffrey Andare vs Attorney General & 2 Others [2016] eKLR**:- **The High Court held that any state action limiting an individual’s constitutional rights must be justified, reasonable and proportionate. Harassment and arrest without due cause amount to an abuse of power.** 1. Further reliance was placed on the case of **Matiba vs Attorney General [1990] KLR 666** where the court held:- **The court ruled that the government cannot infringe on the constitutional rights of individuals through arbitrary detention or harassment. Such actions are deemed unconstitutional and warrant judicial intervention.** 1. The Petitioner reiterated that her case illustrates abuse of police power with the law enforcement officers overstepping their legal authority by harassing and intimidating her without reasonable cause. The Petitioner cited the case of **Cecil Miller vs Kenya Anti-Corruption Commission & 2 Others [2009] eKLR** where the court held:- **The court found that the exercise of police power must not be abused or used as an instrument of oppression. Investigative and prosecutorial agencies must provide reasonable justification for their actions.** **The 1st, 2nd & 3rd Respondents’ Submissions** 1. The Respondents outlined the function of the National Police Service as enumerated in **Section 24 of the National Police Service Act** which include the investigation of crimes; the prevention and detection of crime; the apprehension of offenders; the enforcement of all laws and regulations with which it is charged and the performance of any duties that may be prescribed by the Inspector General under the Act. **Section 35 of the National Police Service Act** provides the functions of the 1st Respondent which include- undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehend offenders and performing any other function conferred on it by any other written law. The Respondents argued that the police are legally obligated, once they witness or are informed of a crime, to investigate the offence. The investigating officer records statements of persons acquainted with the facts of the case promptly to reserve the best evidence and to check any manipulation on the part of witnesses. They are required to record statements of persons acquainted with the facts promptly and failure to do so is a serious matter. Reliance was placed in the case of **Republic vs Service & 2 Others; Resilient Investments Limited & 3 others (Interested Party) ; Limited (*exparte*) (Judicial Review Application E037 of 2021) [2022] KEHC 43** **(KLR)** where the court addressed itself to the duties of an investigation officer thus:- **It is the duty of the investigating officer to take into possession any document which has a bearing on the case. The reason for such a necessity is that such document may have effect on the culpability or innocence of the accused…..to ensure that the law is observed not only in letters but in spirit during the investigations and arrest and to ensure that they observe the provisions of the law scrupulously and do not exceed their powers….to investigate the case with utmost impartiality and fairness, both to the suspect as well as to the aggrieved person.** 1. The Respondents further submitted that the power to stop or quash police investigations on a suspected offender must be exercised sparingly and with circumspection and in the rarest of are cases and the court cannot be justified in embarking upon an inquiry as to the reliability or otherwise of allegations made in the complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. 2. The court in the **Resilient Case** (supra) further stated:- **The extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The power to quash investigations is immense since it amounts to exonerating a suspect before trial. Such power must be exercised with extreme care and caution. It is a power, which the court exercises only in exceptional cases where there is clear evidence of abuse of powers, abuse of discretion or absence of factual basis to mount the prosecution.** 1. The Respondents submitted that there is no violation of the Petitioner’s fundamental rights and freedoms as alleged. They maintain that the prosecution is well founded as they have properly exercised their discretion under the Constitution and the law. It is trite law that the court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they acted in contravention of the Constitution. Reliance was placed in the case of **Francis Anyango Juma vs The Director of Public Prosecutions & Another [2012] eKLR**, where the court stated:- **The intention under the Constitution was to enable the Director of Public Prosecutions to carry out his constitutional mandate without interference from any party. This court cannot direct or interfere with the exercise by the DPP of his power under the Constitution or direct him on the way he should conduct his constitutional mandate, unless there was clear evidence of violation of a party’s right under the Constitution or violation of the Constitution itself.** 1. Similar reliance was placed in the case of **Mwangi vs Director of public Prosecutions & Another; JNM (Interested Party) (Petition E118 of 2023) [2024] KEHC 7282 (KLR)** where Mwita J. held:- **As pointed out in the decisions above, the law is settled, that courts should be slow in interfering with the DPP’s constitutional discretion to prosecute. Article 157(10) shields that discretion so that the DPP shall not require the consent of any person or authority for the commencement of criminal proceedings exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. The only caveat is in article 157(11) that in exercising the powers, the DPP shall have regard to public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.** 1. The Respondents argued that although the Petitioner contends that the 1st and 2nd Respondents have been calling and harassing her in regards to an amount of money that was paid to her as rental income over a property that she had leased to a tenant, who has since moved out and she has no means of tracing him, she did not disclose the nature of harassment or the particulars as to when and where the harassment occurred. On the allegation made by the Petitioner that she transferred money to Caroline Njeru for purposes of purchasing timber, the Respondents submitted that the petitioner only disclosed the purpose of the transfer as an afterthought. She failed to honour summons or cooperate with the 1st and 2nd respondents during the investigations of the subject matter of the instant petition. 1. The Respondents contended that the Petitioner has not demonstrated that the decision to prosecute her is against public interest; does not further interest of the administration of justice, or that it is an abuse of the legal process. Further, the sufficiency, accuracy or correctness of the evidence gathered in the investigation is a matter for the trial court. Reliance was placed in the case of **Director of Public Prosecutions vs Martin Mina & 4 Others** (supra) where the Court of Appeal stated:- **The duty of the High court…..to evaluate the sufficiency of the evidence in the envisaged criminal proceedings, that is the function of the trial court, or the High Court in a criminal appeal. A judicial review court should not usurp the functions of a trial court, except in the clearest of the cases. Whether or not the evidence would be sufficient for making the decision to prosecute the petitioner will be answered by the trial court and not this court.** 1. Thus, the Petitioner has not pointed out how the DPP has abused his discretion in making the decision to prosecute her, in violation of Article 157(11) to call on this court’s review jurisdiction to halt the prosecution. 2. The Respondents reiterated that the decision to commence investigations against the Petitioner was consistent with the provisions of **Article 157 of the Constitution** and **Section 6 of the Office of Director of Public Prosecutions Act**. This court should only interfere where there is clear evidence that the power is not being exercised as contemplated by the Constitution and the law and it is upon the Petitioner to demonstrate that the criminal prosecution was being used for ulterior or improper purpose. Reliance was placed in the Court of Appeal decision in **Commissioner of Police & Another vs Kenya Commercial Bank Ltd & 4 Others [2013] eKLR** where the court held:- **Whereas there can be no doubt that the filed of investigation of criminal offences is exclusively within the domain of the police, it is too fairly well settled and needs no restatement at our hands that the aforesaid powers are designed to achieve a solitary public purpose, of inquiring into alleged crimes and, where necessary, calling upon the suspects to account before the law. That is why courts in this country have consistently held that it would be an unfortunate result for courts to interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The courts must wait for the investigations to be complete and the suspect charged.** 1. Similar reliance was placed in the Supreme Court Case of **Jirongo vs Soy Developers Ltd & 9 Others (Petition 38 of 2019) [2021] KESC 32 (KLR)** cited with approval the decision from the Supreme Court of India by stating that: **Furthermore, the Supreme Court of India RP Kapur vs state of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the court on when the High Court may review prosecutorial powers. They are as follows:-** 1. **Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or** 2. **Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g want of sanction; or** 3. **Where the allegations in the First Information Report of the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; or** 4. **Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.** 5. The respondents reiterated that from the material placed before the court, the Petitioner has not satisfied the threshold that would persuade the court to exercise its judicial review jurisdiction and halt the intended prosecution against the Petitioner as she will find an opportunity to respond to the charges and cross examine the witnesses. **Analysis and Determination** 1. Having regard to the pleadings, depositions and the submissions of the Parties, the Court distils the following as the issues for determination in this Petition: 2. **Whether the Petition meets the threshold for a constitutional petition.** 3. **Whether the Respondent’s are in breach of the Constitutional mandate, and whether, such breach has resulted in violation of the Petitioner’s constitutional rights.** 4. **Whether the Petitioner is entitled to the orders sought.** **The Law** **Whether the petition meets the threshold for a constitutional petition.** 1. The threshold of a constitutional petition is now well settled. It must be pleaded with reasonable degree of precision identifying the constitutional provisions that are alleged to have been violated, or threatened to beviolated and indicate the manner of the alleged violation and/or threatened violation. This principle was enunciated in **Anarita Karimi Njeru vs Republic (1979) KLR** where the court stated as follows: - **If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should** **set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.** 1. The principle in **Anarita Karimi** was restated in **Mumo Matemu vs** **Trusted Society of Human Rights Alliance (2014) eKLR** where the court held as follows: **We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.** **The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they** **give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.** 1. It is thus clear from the above case law that it is not sufficient to merely cite constitutional provisions. One must provide the particulars of the allegedinfringement to enable the respondent to be able to respond and/or answer the allegations or complaints. Furthermore, one must provide the manner in which the alleged violations were committed and to what extent must be shown by way of evidence. 2. In the instant case, the Petitioner has premised her Petition on Articles 10, 21(1), 22(1), 23, 36, 49(1)(h) and 165 of the Constitution. However, the Petition fails to demonstrate, with particularity, the precise manner in which these constitutional provisions have been violated. The Petitioner advances only broad, generalized assertions that the 1st and 2nd Respondent have subjected her to harassment and intimidation without furnishing any factual particulars of alleged acts. As pleaded, the Petition is lacks specificity required of a constitutional Petition. The Petitioner does not disclose for instance how the Respondents have infringed on her freedom of association under Article 36, right to equality before 3. the law under Articles 27 and right to be released on reasonable bond and bail pending a charge or trial. She merely throws the provisions of the Constitution without any effort to show the nature of the infringement. **Whether the Respondents are in breach of the Constitutional mandate, and whether, such breach has resulted in violation of the Petitioner’s constitutional rights.** 1. Turning to the issue of the respective mandates of the Respondents and whether not they breached their mandates in relation to the Petitioner, the 4th Respondent’s mandate as provided for under **Article 156(4) of the Constitution** is as follows: **The Attorney General –** 1. **Is the principal legal adviser to the Government.** 2. **Shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and** 3. **Shall perform any other functions conferred on office by an Act of parliament or by the President.** 4. The Petitioner has not outlined or provided evidence to demonstrate how the 4th respondent infringed on her rights. 5. In respect to the DPP, the Constitution mandates the DPP to institute and undertake criminal proceedings against any person before any court in respect of any offence. ***Whether the Respondents are in breach of the Constitutional mandate, and whether, such breach has resulted in violation of the Petitioner’s constitutional rights.*** 1. The Director office of the Public Prosecutions is established under Article 157 (1) with its mandate set out in the following sub-sections: (4) **The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.** **(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—** 1. **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;** 2. **take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and** 3. **subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b**). (10) **The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.** **(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.** 1. Apart from the above Constitutional provisions, Parliament enacted the Office of the Director of Public Prosecutions Act, 2013 to give effect to Article 157 and 158 of the Constitution as declared in its preamble. 2. In addition, the DPP developed the **Decision to Charge Guidelines, 2019** to govern prosecution policy. 3. In regard to the process of making the decision to charge, the guidelines state as follows in paragraph: **“3.1.1 -Making the decision.** **The decision to charge or not to charge requires an objective and independent analysis of the case. Whilst the roles of the investigator and prosecutor are complementary, ultimately the decision to charge rests with the prosecutor, who must assess whether it is appropriate and what charges to prefer for a court to consider. It is the duty of a prosecutor to ensure that the right person is prosecuted for the right offence, properly applying the law and ensuring that relevant evidence is submitted before the court and that disclosure obligations are complied with. When making charging decisions, prosecutors must be fair and objective …”** 1. There is unanimity in judicial precedents that the constitutional independence of the Director of Public Prosecution as enshrined in the Constitution (Article 157 (10) must be upheld by the Courts unless there is very clear abuse of prosecutorial discretion as in where the decisions are made arbitrarily or oppressively. 2. In **Denis Joseph Shijenje & another v Kenya Revenue Authority & 2 others [2021] KEHC 12572 (KLR)** the Court articulated this position as follows: **“37. I find that the office of the Director of Public Prosecution being an independent institution established under the Constitution, the court can only interfere with or interrogate its actions where there is contravention of the Constitution. In the case of Paul Ng’ang’a Nyaga v Attorney General & 3 others (2013) eKLR, it was held that “this court can only interfere with and interrogate the acts of other constitutional bodies if there is sufficient evidence that they acted in contravention of the Constitution.”** 1. Additionally, the Court in **Francis Anyango Juma vs The Director of Public Prosecutions and another [2012] KEHC 2618 (KLR)** the Court expressed itself as follows: **“Clearly, the intention under the Constitution was to enable the Director of Public Prosecutions to carry out his constitutional mandate without interference from any party. This court cannot direct or interfere with the exercise by the DPP of his power under the Constitution or direct him on the way he should conduct his constitutional mandate, unless there was clear evidence** **of violation of a party’s rights under the Constitution, or violation of the Constitution itself.”** 1. The National Police Service is one of the National Security Organs established under Article 239 (1) (c) of the Constitution. The National Police Service is specifically provided for in Article 243 of the Constitution and the Office of the Inspector General of the National Police Service is established under Article 245 (1) of the Constitution. The National Police Service Act, 2011 operationalizes the Constitutional provisions relating to the National Police Service. Section 24 (e) identifies investigation of crimes to comprise part of the functions of the National Police Service. 2. The investigative power of the Police has been repeatedly affirmed various judicial precedents as significant constitutional and statutory function that can only be interfered with upon evidence of cleat abuse. In **Pauline Adhiambo Raget v Director of Public Prosecutions & 5 others [2016] KEHC 7138 (KLR)** the Court held as follows: **“46. …The Respondents are enjoined to investigate any allegations of criminal activity or conduct both by statute as well as by the Constitution. The investigations may take them to anyone including the Petitioner. They could investigate on their own prompting or upon being prompted by any member of the public as did the Interested Party in this case. In so doing, it is a legal mandate they would be undertaking.”** 1. However, Courts have insisted that investigations must be carried within the bounds of the law as abuse of criminal justice process is subject to supervisory jurisdiction of Court. The Court of Appeal in **Commissioner Of Police & The Director Of Criminal Investigation Department & another v Kenya Commercial Bank Limited & 4 others [2013] KECA 182 (KLR)** observed: **“...an oppressive or vexatious investigation is contrary to public policy and that the police in conducting criminal investigations are bound by the law and the decision to investigate a crime ... must not be unreasonable or made in bad faith, or intended to achieve ulterior motive or used as a tool for personal score-settling or vilification. The court has inherent power to interfere with such investigation or prosecution process.”** 1. Accordingly, for the Petitioner to successfully challenge both the investigation and prosecution mandates of the Respondents, she must prove that the Respondents acted in bad faith by departing from lawful course prescribed by law and, in abuse of their authority, exercised their powers for malicious purpose other than enforcement of the law. 2. In ***Dande & Others v Inspector General National Police Service & 2 others (Civil Appeal 246/2016) (2022) KECA 170*** the Court of Appeal citing with approval the Supreme Court decision held: **“25.The Supreme Court of Kenya… further identified the guidelines for review of prosecutorial powers in**[**Cyrus Shakhalanga Khwa Jirongo vs Soy Developers Ltd & 9 others**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2021/32)**[2021] eKLR as follows:** **“Furthermore, the Supreme Court of India in R.P. Kapur v State of Punjab AIR 1960 SC 866 laid down guidelines to be considered by the Court on when the High Court may review prosecutorial powers. They are as follows:** 1. ***Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; or*** 2. ***Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; or*** 3. ***Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; or*** 4. ***Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.”*** 5. The supervisory power of this Court can thus be invoked against an investigation or prosecution where; it is: 6. **is vexatious such as in it is possible to demonstrate that it is unwarranted and without basis, and would tend to or is being instigated with an intention to cause worry, upset, annoyance or embarrassment.** **b.** **is oppressive where it can be demonstrated that it is being made because the complainant or the police have a personal issue or prejudice with the individual they are complaining about,** **and that they are using the criminal process to settle scores with the individual.** **c. Likewise, it is made with ulterior motives and in bad faith where it can be demonstrated that the police are being misused or manipulated to influence another process or outcome.** **d. Lastly, it is unreasonable, if a complaint is so outrageous that no reasonable person would have given credence to it or acted on it.** The likelihood of an arrest or investigation not being upheld is however not a reason to consider it unreasonable. 1. In have carefully the factual account in the Replying affidavit relied upon by the Respondent. The Investigator provides a blow and blow account, commencing from the point the police received the complaint and tracing various leads that ultimately identified the Petitioner as a person of interest in the investigation. In my view, the investigative account establishes a rational basis for the investigation conducted by the Respondents. Accordingly, the Petitioner’s assertion that there was no factual basis for commencing investigations, and that it was motivated solely by threats and intimidation is untenable. 2. In my humble view, an investigation is a legal process to establish the commission of an offence which does not amount to infringement of the rights or fundamental freedoms of the Petitioner. An inconvenience only may not constitute a sufficient ground to declare a lawfully carried out investigation process unconstitutional. For the Court to intervene a clear violation of a right must be established 1. Furthermore, having carefully examined the entirety of the evidence placed before this Court by the Petitioner, I find no evidence, express or implied, of bad faith against the Director of Public Prosecution. The Petitioner’s only grievance is that the alleged to be the subject of money laundering investigation were paid to her as rent for her plot. This assertion is a pure question of fact on the part of the Petitioner. It would have to be tested against the evidence compiled in the course of investigation and, if necessary, at the trial. It is thus not a matter which this Court may properly delve into in the exercise of its constitutional supervisory powers of review. 2. It is therefore my considered view that the Petition does not only fail to meet the threshold of a constitutional petition but also the allegations upon which it is premised are not substantiated by evidence. It is therefore devoid of any merit. 1. The Petition is dismissed with costs to the Respondents. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST, 2026.*** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L N MUGAMBI** **JUDGE**