Thuo. & another v Attorney General & 5 others (Constitutional Petition E017 of 2025) [2026] KEHC 13175 (KLR) (31 August 2026) (Judgment)

Thuo. & another v Attorney General & 5 others (Constitutional Petition E017 of 2025) [2026] KEHC 13175 (KLR) (31 August 2026) (Judgment) Neutral citation: [2026] KEHC 13175 (KLR) Republic of Kenya In the High Court at Eldoret Constitutional Petition E017 of 2025 RN Nyakundi, J August 31, 2026 IN THE MATTER OF ARTICLES 19, 20, 21, 23, 24, 25, 27, 28, 29, 31,39, 40, 47, 49 AND 50 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS AND IN THE MATTER OF INTENDED ARREST AND/OR CRIMINAL PROSECUTION Between Lois Wambui Thuo. 1st Petitioner Rose Waruguru Gichira 2nd Petitioner and The Hon Attorney General 1st Respondent The Inspector General Of Police 2nd Respondent The Director Of Criminal Investigations 3rd Respondent The Director Of Public Prosecutions 4th Respondent Beth Cynthia Nyawira Mwema 5th Respondent Gerald Ngatia. 6th Respondent Judgment A. Introduction 1.The Petitioners are sisters. They came to this Court complaining that the machinery of the criminal law has been turned against them by a fellow beneficiary of a deceased estate, and that the police and the prosecution have allowed themselves to be used as instruments in what is, at bottom, a family dispute about an inheritance. 2.The Respondents' answer is that this is nothing of the sort. Their case is that a certificate of lease over land forming part of the estate was forged and registered in the names of two strangers at the instance of the Petitioners; that the forgery has been established by the Lands Registry and by forensic comparison of signatures; that the two strangers have been charged; and that a Court of constitutional jurisdiction should not be used to place suspects beyond the reach of a lawful investigation. 3.The Petition, as amended, is dated 24th September, 2025. It is supported by the affidavit of Lois Wambui Thuo and Rose Waruguru Gichira sworn on 13th September, 2024 and by a further affidavit of Lois Wambui Thuo. It is opposed by all six Respondents. All parties have filed written submissions and this judgment determines the Petition. B. Background 4.The following matters appear either to be common ground or to be established by documents whose authenticity is not disputed.a.The late Nicholas Mwema Kibera was the registered proprietor of land known as L.R. No. 12391/2 situate within Eldoret Municipality, measuring approximately twenty acres, which he had purchased from the late Abednego Kapkechui Tenai.b.During his lifetime the deceased sold portions of that land to various persons, including two acres to the late Jonathan Kariara, being Plots Nos. 15335/4 and 15335/5, of one acre each.c.Jonathan Kariara died testate on 29th November, 1993. By his Will he bequeathed Plot No. 15335/4 to the 2nd Petitioner and Plot No. 15335/5 to the late Linda Koenig.d.A grant of letters of administration intestate in respect of the estate of Nicholas Mwema Kibera was made to the 5th Respondent, his daughter, and was confirmed on 17th March, 2021 in Karatina Senior Principal Magistrate's Court Succession Cause No. 96 of 2017.e.The 5th Respondent and her siblings reside abroad. They appointed the 6th Respondent, their uncle, as their Attorney under Power of Attorney I.P/A No. 78328/1 to deal with the property on their behalf.f.In October 2023 the 5th and 6th Respondents reported to the Directorate of Criminal Investigations, Eldoret, and to Eldoret Central Police Station, that a certificate of lease over the suit property had been fraudulently renewed and registered in the names of two persons, Luke Kimutai and Kizito Kigen. The report was recorded under OB Entry No. 68/27/10/2023.g.Investigations were undertaken by Corporal Daniel Polo, No. 241352, and by the County Criminal Investigations Officer, Uasin Gishu. The Petitioners recorded statements in January 2024 and were subsequently summoned to record further statements in September 2024.h.On 5th March, 2025 the Senior Principal Magistrate at Karatina (Hon. Kaimenyi Kanyiri) dismissed the Petitioners' application to revoke the grant, holding that the Court was functus officio. On appeal, the High Court at Nyeri (Kizito Magare, J.) allowed the appeal by a judgment dated 18th November, 2025, holding that the succession Court had jurisdiction and ought to have exercised it, and directing that a report on the status of the distribution be filed within six months. C. The Petitioners' Case 5.The Petitioners' case is that the 2nd Petitioner is a beneficiary of the estate and the 1st Petitioner holds a power of attorney donated by Brigitte Koenig, another beneficiary; that the 5th Respondent, as administrator, has failed to distribute the estate or to file accounts within six months of the grant or of its confirmation, contrary to Section 83(e) and (g) of the Law of Succession Act; that the Petitioners have pursued the completion of the distribution and, in that pursuit, sought the renewal of the lease; and that for doing no more than claiming their inheritance they have been reported to the police, summoned, threatened and marked out for prosecution.They depose that on 6th September, 2024 at about 7.00 p.m. agents of the 3rd Respondent telephoned them from number 0725 095 753 and directed them to report to Hardy and Gatanga Sub-County Police Stations respectively; that on 12th September, 2024 they were again summoned, this time on the footing that they were not beneficiaries at all and had sought to defraud the administrator; that they were told they would suffer serious harm if they did not attend; that they were never told what offence they were said to have committed; and that the County Criminal Investigations Officer, Eldoret, told them that their mobile telephone numbers 0722 710 425 and 0723 632 870 had been tracked for the preceding twelve months. 6.On that basis they allege infringement of Articles 27, 28, 29, 31, 33, 39, 40, 47 and 50 of the Constitution, and they seek a declaration that the investigations are illegal, unprocedural and unconstitutional; a conservatory order restraining the Respondents from investigating, arresting or prosecuting them in respect of matters arising from the succession; damages of Kshs. 3,500,000/= for each Petitioner; and costs. D. The 1St To 4Th Respondents' Case 7.The State Respondents oppose the Petition through the replying affidavit of Daniel Muleli. Their case is that a report was made to the police alleging conspiracy, forgery and obtaining by false pretences in respect of the suit property; that the Petitioners, having already sold their two acres to a third party, procured the processing of a certificate of lease over the entire parcel without the consent of the administrator; that a certificate of lease was issued in the names of Luka Kimutai and Kizito Kigen, who have since been charged; that the Petitioners were summoned, informed of the reason and asked to attend for plea; and that they thereupon instituted these proceedings. 8.The State submits that the 2nd and 3rd Respondents acted within the mandate conferred by Articles 243 and 245 of the Constitution and Sections 28 and 35 of the National Police Service Act; that a report to the police is presumed to be made in good faith unless investigation discloses otherwise; that the alleged harassment and intimidation are unparticularized; that the prayers for bail and bond are misconceived because the Petitioners are not in custody; and that the Petition is premature, the Petitioners having availed to them police bond, bail before the trial Court, and revision in the High Court. E. The 5Th And 6Th Respondents' Case 9.The 5th and 6th Respondents swore replying affidavits in substantially identical terms. Their case is that the Petitioners, as beneficiaries of the late Jonathan Kariara, sold their two acres to one Matilda Bachia Murgor, who took vacant possession on 20th June, 2019, and that they therefore retain no legal or beneficial interest in L.R. No. 12391/2; that the only land remaining to the deceased was seven acres, which is the free property of his estate; and that the Petitioners, knowing this, approached Luke Kimutai and Kizito Kigen and induced them to participate in a scheme to register a certificate of lease in their names. 10.They depose that the Investigating Officer established that the purported lease document and the forwarding letter said to emanate from Ardhi House were forgeries; that an Officer named Aseri Kirungu denied the signatures attributed to him and provided samples which, on forensic comparison, did not match; that a Lands Administration Officer in Uasin Gishu confirmed that the documents did not originate from that office; and that Kimutai and Kigen, when confronted, surrendered the certificate of lease to the Land Registrar by a letter dated 5th March, 2025. F. Submissions 11.The Petitioners submit that they were discriminated against within the meaning of Peter K. Waweru v. Republic [2006] eKLR and Nyarangi & 3 others v. Attorney General [2008] KLR 688; that their right to privacy under Article 31(a), (c) and (d) was violated by the tracking of their communications without a warrant; that the dispute is a succession matter falling within the realm of civil law in which the police have no business, relying on Thomas Mboya Oluoch & Another v. Lucy Muthoni Stephen, Nairobi HCCC No. 1729 of 2001, and on Republic v. Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR; and that each Petitioner should be awarded Kshs. 3,500,000/=. 12.The State Respondents submit that the police acted lawfully; that the Petitioners have pleaded their case with insufficient precision, contrary to Anarita Karimi Njeru and Mumo Matemu; that the Petition is premature; and they rely on Odongo Vs. Director of Public Prosecutions & 2 others (Petition E003 of 2024) [2025] KEHC 16041 (KLR), Rene & Hans Advocates LLP & 2 others Vs. Director of Criminal Investigations (Petition E035 of 2023) [2025] KEHC 15458 (KLR) and Limo v. Directorate of Criminal Investigations & 2 others (Petition E640 of 2024) [2025] KEHC 17811 (KLR). 13.The 5th and 6th Respondents submit that the Petitioners have not established the link required between the aggrieved party, the constitutional provision invoked and the manifestation of infringement; that the Court should not interfere with the exercise of prosecutorial discretion absent proof of abuse of process; and that the Petitioners approached the Court with unclean hands. G. Issues For Determination 14.The issues are:a.Whether the Petition is pleaded with the precision the law requires;b.Whether the criminal investigation is an abuse of process because the underlying dispute is a succession matter;c.Whether the investigations were tainted by malice or otherwise conducted unlawfully;d.Whether the Petitioners' right to privacy under Article 31 was infringed;e.Whether any case is made out against the 5th and 6th Respondents;f.Whether the Petition is premature; andg.What reliefs and costs should follow. H. Analysis And Determination 15.This Court is being asked to interpret the Constitution insofar as the Articles premised in the Constitution are concerned. Therefore the provisions of Article 259 are of significance for they lay down the legal roadmap in construing the Constitution by Courts. In this respect Article 259 provides as follows:(1) This Constitution shall be interpreted in the manner that(a)promotes its purposes, values and principles;(b)advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;(c)permits the development of the law; and(d)contributes to good governance.(2)If there is a conflict between different language versions of this Constitution, the English language version prevails.(3)Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things--(a)a function or power conferred by this Constitution on an office may be performed or exercised as occasion requires, by the person holding the office;(b)any reference in this Constitution to a State or other public office or officer, or a person holding such an office, includes a reference to the person acting in or otherwise performing the functions of the office at any particular time;(c)a reference in this Constitution to an office, State organ or locality named in this Constitution shall be read with any formal alteration necessary to make it applicable in the circumstances; and(d)a reference in this Constitution to an office, body or organisation is, if the office, body or organisation has ceased to exist, a reference to its successor or to the equivalent office, body or organisation. 16.This is what the Court of Appeal addressed in the case of AG vs Law Society of Kenya & 4 Others [2019] KLR, thus:“The starting point, as always, is Article 259 on the construction of the Constitution which directs that it shall be interpreted 'in a manner that: (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance'. Those values must permeate the process of constitutional interpretation. Many local and international decisions were cited before us to illustrate other governing principles of interpretation but we shall not belabour them as they are largely common ground. For emphasis, however, we reiterate what this Court stated in the case of Njoya & 6 Others vs. Attorney General & another [2004] eKLR thus:“Constitutional provisions ought to be interpreted broadly or liberally. Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the constitution, of necessity, has principles and values embodied in it, that a constitution is a living piece of legislation. It is a living document.” 17.In addition the Court in the matter of Kenya National Commission on Human Rights [2014] eKLR explained itself as follows:“But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.” 18.In this petition the interlocking issues emerge between the application of Bill of Rights concerns and the issues by the Petitioner on how those rights apply in the legal dispute arises from the succession cause of the deceased’s intestate estate. I have to appreciate that the reach of the Bill of Rights as to beneficiaries, duties and time demarcates the types of legal disputes to which the Bill of Rights under Chapter 4 of the Constitution applies as directly applicable law. The enquiry has got to be conducted and evaluated within the context of limitation of rights and fundamental freedoms as envisaged in Article 24 of the Constitution which provides as follows:(1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--(a)the nature of the right or fundamental freedom;(b)the importance of the purpose of the limitation;(c)the nature and extent of the limitation;(d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.(2)Despite clause (1), a provision in legislation limiting a right or fundamental freedom --(a)in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;(b)shall not be construed as limiting the right or fundmental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and(c)shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.(3)The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied. 19.It must also be understood that Bill of Rights as enacted in 2010 contains a set of values that must be respected whenever ordinary law is interpreted, developed or applied. That is why when the Bill of Rights is indirectly applied it does not override ordinary law nor does it generate its own remedies. That is why when the Courts are involved in constitutionalism litigation law is interpreted or developed in a way or in a manner that conforms to the Constitution. As one can appreciate shortly, the primary task of this Court would be to determine whether the decision by the Director of the Public Prosecution to indict the Petitioners under Article 157(6) (7) of the Constitution can be invalidated by this Court. There will be other secondary issues premised in the petition but that is at the core of why the Petitioners are before this constitutional forum. 20.In order to invoke Article 24 the Petitioner must allege that the fundamental rights have been infringed or threatened so as to obtain an interdict to prevent a future violation of that fundamental right. The basis on which the allegation is made must however be clearly set out and how the violation threatens the fundamental rights at stake. As far as the Constitution is concerned, it has distributed various governance protocols to constitutional organs like the Director of Public Prosecution whose office is provided for under Article 157(6) (7), the Kenyan people provided as follows:(6)The Director of Public Prosecutions shall exercise State powers of prosecution and may--(a)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;(b)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(c)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).(7)If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted. 21.Generally speaking, context in this case is crucial for the interpretation of any text. This enables the Court to make the value judgment required by the purposive approach to constitutional interpretation. In this regard it is now settled law that both the National Police Service and the Director of Public Prosecution are insulated by the Constitution itself for the proper functioning of their respective constitutional mandate. In the first instance, it must be appreciated that the Director of Public Prosecution has a role to play in oversighting the duties and functions of the National Police Service as they relate to the cognizance and investigation of criminal offences. It is the Police duty to investigate any complaint once it has been made through the normal recognized channels by any citizen or aggrieved party within our borders. This is what the Court had in mind in the case of Republic vs Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR held as follows:“The police have a duty to investigate on any complaint once a complaint is 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. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene. 22.It is from the investigatory agencies that a recommendation can be made to the Director of Public Prosecution to prefer a charge or information concerning the offence against the suspect. The National Police therefore exercise some level of discretionary powers so as to sustain the rule of law and promotion of human rights. That is the very reason why the Constitution takes cognizance of the distributive powers between the National Police Service and the Director of Public Prosecution. The powers vested with the Director of Public Prosecution can only be a subject of review by the Court if there is evidence that his decision to charge was motivated by malice, bad faith, influence or in any event coercion by the Executive arm of the Government. The Court in R vs Grace Wangari Bunyi (Sued as the Administrator of the estate of the Late Obadiah Kuira Bunyi) & 7 Others Exparte Moses Kirruti & 28 Others [2018] eKLR faced with the same set of facts like in this petition held that:“It is important to note that the discretion given to the Director of Public Prosecutions to undertake investigation and prosecute criminal offences is not to be taken for granted or lightly interfered with and must be properly exercised. In the same respect, the court ought not to usurp the constitutional and statutory mandate of the Director of Public Prosecutions. The mere fact that their high chance of success as regards the intended or ongoing criminal proceedings does not count, it not a ground for halting those proceedings by way of judicial review since judicial review proceedings are not concerned with merits of the case but to address defects in decision making process by a decision making body. However, the court may only intervene were the said discretion is exercised unlawfully and in bad faith, for instance where it is being abused or being used for achievement of some collateral purpose which are not geared towards the vindication of the commission of a criminal offence and the justice system such as with a view to forcing a party to submit to a concession of a civil dispute, the court will not hesitate to bring such proceedings to a Court.” 23.In the same familiar scope of the law the Court in George Joshua Okungu & Another v The Chief Magistrate’s Court, Nairobi & Another [2014] eKLR held that:“The law is that the Court ought not to usurp the Constitutional mandate of the Director of Public Prosecutions or the authority charged with the prosecution of criminal offences to investigate and undertake prosecution in the exercise of the discretion conferred upon that office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood bound to fail, it has been held time and again, is not a ground for halting those proceedings. That a petitioner has a good defence in the criminal process is a ground that ought not to be relied upon by a Court in order to halt criminal process undertaken bona fides since that defence is always open to the Petitioner in those proceedings. However, if the Petitioner demonstrates that the intended or ongoing criminal proceedings constitute an abuse of process and are being carried out in breach of or threatened breach of the Petitioner’s Constitutional rights, the Court will not hesitate in putting a halt to such proceedings. The fact however that the facts constituting the basis of a criminal proceeding may similarly be a basis for a civil suit, is no ground for staying the criminal process if the same can similarly be a basis for a criminal offence. Therefore the concurrent existence of the criminal proceedings and civil proceedings would not, ipso facto, constitute an abuse of the process of the court unless the commencement of the criminal proceedings is meant to force the Petitioner to submit to the civil claim in which case the institution of the criminal process would have been for the achievement of a collateral purpose other than its legally recognized aim. In the exercise of the discretion on whether or not to grant an order of prohibition, the court takes into account the needs of good administration. See R vs. Monopolies and Mergers Commission Ex Parte Argyll Group PLC [1986]1 WLR 763 and Re Bivac International SA (Bureau Veritas) [2005]2EA 43 (HCK). 24.As I see it, any petition or application to review the constitutional mandate of the Kenya National Police Service or the Director of Prosecution in a nutshell it is an evidential factor. Therefore, the standard and burden of proof as provided for under Section 107(1), 108, 109 and 112 is vested with the Petitioner or Applicant to challenge the legitimacy of the investigation and prosecution of an alleged offence. Basically, this means that the application of Article 27 on equality and non-discrimination clause sets in for one to show that he or she has been treated differently from other persons in similar circumstances. 25.In this petition in my view, the threshold issue being agitated for by the Petitioners is for this Court to review the decisions of the National Police Service and the Director of Public Prosecution by issuing an order or certiorari under the judicial review jurisdiction but this power is exercised by the Court sparingly and only in exceptional circumstances where the National Police Service and the DPP have been shown to have acted in excess of jurisdiction or have violated the Constitution. The notable cases on judicial review jurisdiction as exercised by the Superior Courts is demonstrated by the following case law: Republic v Director of Public Prosecution & 2 others (2025): The High Court granted an order of certiorari to bring into the court and quash the decision of the DPP and the Director of Criminal Investigations (DCI) to charge the applicant. The court held that continuing the criminal proceedings under the established facts undermined the fair administration of justice and violated the principles of non-discrimination and equality before the law. High Court Quashing of DPP's Decision to Withdraw Graft Charges (2025): The High Court issued an order quashing the DPP’s decision to withdraw multi-million shilling corruption charges against a Cabinet Secretary. The High Court ruled that the DPP acted without transparency, accountability, or proper consultation with the Ethics and Anti-Corruption Commission (EACC), thereby acting unconstitutionally. Mwilu v Judicial Service Commission & 2 others; DPP (2021): The High Court issued an order of certiorari quashing a petition lodged jointly by the DPP and the DCI that sought the removal of the Petitioner from office, finding procedural and constitutional flaws in how the state agencies acted. Wanjohi v Director of Public Prosecutions (2025): In this matter, the High Court declined to grant certiorari, reiterating that the court's jurisdiction to issue prerogative writs against the DPP under Article 157(6) & (7) of the Constitution is strictly ring-fenced. The court ruled that judicial intervention is prohibited unless the applicant proves the prosecutorial discretion was fundamentally flawed or completely fell outside established guidelines. Kimani v Director of Public Prosecutions & 3 others (2024): The applicant sought a certiorari order to quash the DPP's decision to prefer multiple fraud and forgery charges arising from a civil land ownership dispute. The court evaluated the precise boundary lines between civil disputes and the threshold required for criminal prosecution by the DPP. The key aspects of the doctrine of the judicial review is a prerogative writ in judicial review in which a superior Court commands an inferior Court, Tribunal or public body to submit the record of proceedings to that higher Court to have them reviewed and if found untenable be subjected to an order of certiorari to quash the decision. The core grounds in which such decisions can be reviewed include but not limited to illegality; when the decision –maker misinterprets the law or acts outside their jurisdiction, ultra vires, irrationality (Wednesbury Unreasonableness); when a decision is so outrageous or illogical that no sensible authority could have ever reached it or Impropriety: Failure by an administrative authority to follow statutory procedures or observe the fundamental principles of Natural Justice (Nemo judex in causa sua—no one should be a judge in their own cause; and Audi alteram partem—the right to a fair hearing 26.The legal issues that must be dealt with to determine liability would revolve around the proper test of judicial review and whether the impugned decisions undertaken by the National Police Service and thereafter the DPP can be quashed as prayed for by the Petitioners. That is what the Court stated in T.C. Basappa v. T. Nagappa, that:­“… ‘Certiorari’ will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) ‘Certiorari’ will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in certiorari. These propositions are well settled and are not in dispute.” 27.The question of who bears the onus when considering the appropriate relief for unconstitutional conduct is more complicated as can be seen shortly particularly when the Bill of Rights is indirectly applied and an ordinary legal remedy is granted that flows from a finding of inconsistency of the evidence presented and the Bill of Rights. Therefore a declaration of invalidity of a provision of a legislation or conduct of the public body or organ like it is with the National Police Service and the Director of Public Prosecution is a matter squarely on the burden of proof must be discharged by the Claimant or the Petitioner. That is indeed a threshold issue as to the terms of the administrative action, organ of State and the Executive branch of government as it relates to the violation of Bill of Rights as alleged by the Petitioners. A preliminary observation on pleading 28.The Petition invokes Articles 19, 20, 21, 23, 24, 25, 27, 28, 29, 31, 39, 40, 47, 49 and 50 of the Constitution. That is a very wide net. Article 25, for instance, concerns rights that may not be limited, among them freedom from torture and from slavery; Article 49 concerns the rights of arrested persons; Article 50 concerns fair hearing. The Petitioners have never been arrested, are not in custody, and have not been charged. No attempt is made in the Petition to explain how each of these provisions is said to have been infringed. 29.The rule is long settled. In Anarita Karimi Njeru v. Republic [1979] KLR 154 the Court held that a person seeking redress from the High Court on a matter involving a fundamental right must set out with reasonable precision the provision said to be infringed and the manner of the infringement. The Court of Appeal reaffirmed the principle in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, holding that the principle of precision is not a mere technicality but goes to the fair administration of justice, since a Respondent must know the case it has to meet. 30.Much of this Petition falls short of that standard. Allegations that the Petitioners were "harassed, intimidated and embarrassed" are made without a single particular: no date beyond September 2024, no name of any officer save "the CCIO Eldoret", no place, no words spoken, no OB entry, no medical or other corroboration. Averments framed in terms of the Respondents' "acquisitiveness, cupidity, rapacity and/or avariciousness" are rhetoric, not pleading. 31.I do not, however, dismiss the Petition on that ground alone. Two complaints — that the criminal process has been misused to resolve a civil dispute, and that the Petitioners' communications were unlawfully tracked — are intelligible, were understood by the Respondents, and were answered. I shall determine them on their merits. The remainder of the constitutional articles invoked are, for the reasons given, not established and I say no more about them.“This is a civil matter": the central argument 32.The Petitioners' principal submission is that a demand for the completion of the distribution of an estate is a succession matter, that it falls within the realm of civil law, and that the police have no business interfering. The argument has a superficial attraction. It does not survive scrutiny. 33.The complete answer is Section 193A of the Criminal Procedure Code, which provides:“a. 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." 34.It is a curiosity of this case that the provision was placed before me by the Petitioners themselves, at paragraph 48 of their own submissions. It is fatal to their argument. The existence of a live succession cause at Karatina, and of an appeal at Nyeri, is not a reason to halt a criminal investigation into whether documents were forged. 35.The point may be put another way. The subject matter of the police complaint is not who is entitled to inherit. It is whether a certificate of lease and a forwarding letter purporting to emanate from the Ministry of Lands were forged, and whether persons procured the registration of an interest in land on the strength of those documents. If that occurred, it is a crime, and it does not cease to be a crime because the land happens to form part of a deceased person's estate. Forgery is not decriminalized by its proximity to a probate cause. 36.The Petitioners' reliance on Republic v. Commissioner of Police & Another ex parte Michael Monari & Another [2012] eKLR is misplaced, for that decision is against them. The Court there held that the police have a duty to investigate any complaint once made, that they would be failing in their constitutional mandate to detect and prevent crime if they did not, and that they need only establish reasonable suspicion before preferring charges, the rest being left to the trial Court. Their reliance on Thomas Mboya Oluoch & Another v. Lucy Muthoni Stephen fares no better: Ojwang, J. (as he then was) was there addressing police and prosecutors who act in bad faith or out of pettiness, chicanery or malice, and on evidence "so questionable, and so obviously crafted to be self-serving". Whether that description fits the present case is the question I turn to next; it cannot be assumed. Was the investigation tainted by malice? 37.The threshold for restraining a criminal investigation or prosecution is a high one, and deliberately so. Article 157(11) requires the Director of Public Prosecutions to 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, and Article 157(10) makes him independent of the direction or control of any person or authority. Article 245(4) forbids any person to give a direction to the Inspector-General with respect to the investigation of any particular offence. A Court will intervene where the criminal process is shown to be a mask for something else - but the burden lies squarely on the party asserting it. 38.Here, the material pointing the other way is substantial and, importantly, it is largely independent of the complainants. The Investigating Officer is said to have established that the purported lease document and the forwarding letter attributed to Ardhi House did not originate from that office; that the Officer whose signature appears on them denied it; that signature samples were taken and subjected to forensic comparison, which did not match; and that a Lands Administration Officer in Uasin Gishu confirmed that the documents were not theirs. Two persons in whose names the certificate of lease was registered have been charged, and they surrendered the certificate to the Land Registrar. None of that turns on whether the 5th Respondent is an agreeable relative. 39.It is against that, the Petitioners offer assertion. They say the complaint is a ploy to deny them their inheritance. They do not deny that a certificate of lease was registered in the names of Kimutai and Kigen. They do not explain how two strangers to the estate came to be registered as lessees of an entire twenty-acre parcel. They do not answer the allegation that they sold their two acres to Matilda Bachia Murgor in June 2019 — an allegation supported, on the Respondents' account, by an acknowledgment and by correspondence between the parties, and one which, if true, is difficult to reconcile with a continuing proprietary claim to the parcel. 40.I must be careful here, and I am. It is not the function of this Court to decide whether the Petitioners forged anything. That question, if charges are laid, belongs to the trial Court, and nothing in this judgment should be read as a finding of guilt or as an expression of any view upon it. The Petitioners are presumed innocent. My function is narrower: to decide whether the material before the police disclosed a reasonable suspicion sufficient to justify investigation. It plainly did. That being so, the investigation cannot be characterized as malicious, and there is no basis on which I could properly restrain it. 41.I would add that the Petitioners' complaint is not assisted by their own emphasis on the Certificate of Confirmation of Grant. That document establishes who the beneficiaries of the estate of Nicholas Mwema Kibera are. It does not establish that the Petitioners were entitled to renew a lease over the entire parcel, and still less that they were entitled to have it registered in the names of third parties. Article 31 and the alleged tracking of communications 42.This is the Petitioners' most serious complaint and it deserves to be treated as such. Article 31(c) and (d) protect every person against having information relating to their family or private affairs unnecessarily required or revealed, and against having the privacy of their communications infringed. The covert interception or monitoring of a person's communications by the State, without lawful authority, is a grave matter. Where such a power exists it is hedged about with safeguards, ordinarily including prior judicial authorization, and a Court should be slow to shrug at an allegation that those safeguards were bypassed. 43.It is also true that a Petitioner alleging covert surveillance labours under a real evidential difficulty. The whole point of covert conduct is that it leaves the subject without proof. A Court that demanded direct evidence of interception would render the right practically unenforceable, and I do not adopt so exacting a standard. 44.Even on a realistic view, however, this allegation is not made out. The evidence amounts to this: that the CCIO Eldoret told the Petitioners their numbers had been tracked; and that they were directed to report to Hardy and Gatanga Police Stations, which they say are the Stations nearest to them and which they infer the police could only have identified through tracking. The first is a reported statement, denied, and unsupported by any note, recording or contemporaneous complaint. The second is an inference, and a weak one: the Petitioners had already recorded statements with these very Officers in January 2024, and the police may readily have known their whereabouts from those statements. No request was made for records from the communications service providers. No order was sought under the Evidence Act to compel production. The Communications Authority was not joined. The screenshots produced, and certified under Sections 65(8) and 106B of the Evidence Act, speak to the summonses themselves rather than to any interception. 45.The duration alleged has also shifted, from six months in the supporting affidavit to twelve months in the amended Petition and in submissions, without explanation. That inconsistency, in a case resting on assertion, matters. 46.I find the allegation of unlawful tracking not proved. I reach that conclusion on the evidence in this case and not because such a claim can never succeed. The 5th and 6th respondents 47.The Petitioners seek a declaration that the 5th and 6th Respondents violated their constitutional rights. The claim cannot succeed. What these Respondents did was to report to the police conduct which they believed to be criminal. A citizen who makes a report to the police in good faith does not thereby infringe the constitutional rights of the person reported, and the law would be in a sorry state if he did. Nothing before me suggests that the report was made otherwise than in good faith; on the contrary, the investigation appears substantially to have borne it out. 48.If the Petitioners are ultimately acquitted and consider that the complaint was made maliciously and without reasonable cause, their remedy lies in the tort of malicious prosecution, which requires among other things that the proceedings have terminated in their favour. That day has not come, and may never come. A constitutional petition is not a substitute for that cause of action. Prematurity 49.There is force in the State's submission that the Petition is premature. The Petitioners have not been arrested. They have not been charged. The prayers for bail and bond, which appear in the original Chamber Summons and were sensibly abandoned on amendment, illustrate the difficulty: a Court cannot admit to bail a person who is neither in custody nor before it. 50.Should charges be preferred, the Petitioners will be entitled to apply for bail before the trial Court under Article 49(1) (h), to challenge the charge sheet, to seek revision in the High Court, and to raise at trial every matter they raise here, including their standing as beneficiaries and the true character of the dispute. The existence of those remedies is not a technical answer; it reflects the constitutional allocation of function between the trial Court and the Court of constitutional jurisdiction. The Nyeri Judgment 51.I should say a word about the judgment of the High Court at Nyeri delivered on 18th November, 2025 in Succession Appeal No. E006 of 2025, which the Petitioners produced. That decision vindicates them on a point of real substance: the Succession Court was wrong to hold itself functus officio, it retained jurisdiction under the Law of Succession Act, and a report on the status of the distribution was ordered to be filed within six months. To that extent the Petitioners' underlying grievance - that the estate has not been distributed and that accounts have not been rendered is not fanciful, and it has now been recognized by a Court. 52.However that judgment does not carry the Petitioners where they need to go. It says nothing about the certificate of lease, nothing about the alleged forgeries, and nothing about the entitlement of the Petitioners to deal with the parcel as they did. A litigant may have a genuine grievance about the administration of an estate and nevertheless be answerable for the means adopted to press it. The root of the entire proceedings are underpinned under the Law of Succession Act. The pleadings as premised mirror some acts of intermeddling of the intestate estate on diverse dates some which found their way to the legal system for adjudication and redress. The issue before this Constitutional Petition is traceable to such acts and conducts which became a subject of enquiry and investigation by the National Police Service as provided under Articles 244 and 245 of the Constitution. It appears that the Probate Court is yet to render itself conclusively on matters of distribution of the estate to the beneficiaries under Section 29 or any such creditor who may be claiming an interest on the rights to land of the deceased. This Court is being told that these proceedings are being conducted under the Power of Attorney and my question is, what were the barriers on access to justice in which the nuclear descendants of the deceased could not get personally involved as administrators of the estate to participate in the litigation landscape working in corroboration with the appointed advocates of the High Court than working through proxy or an intermediary invoking the tool of the Power of Attorney. I am minded and persuaded by the facts of this case that this litigation fits within the principle expounded in Nyanza Garage v Attorney General Kampala HCCS No. 450 of 1993, thus:“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and crating and or adding to the backlog of cases Courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.” 53.What is this Court asked to do in the pending petition?The end game is that on the merits and the petition finds favour with the law the following declaration shall abide:a.A declaration that the 1st to 3rd Respondent, 5th and 6th Respondents have breached, infringed and/or violated the rights and freedoms of the Petitioners enshrined in the Constitution of Kenya, 2010 that the criminal investigations of the 1st and 2nd Respondent’s agents are illegal, procedural and unconstitutional thus null and void.b.A conservatory order for injunction restraining the Respondents from raiding, intimidating, harassing and/or threatening, investigating, arresting and or prosecuting the Petitioner’s directors or agents in as far as the obligations , rights and/or conducts arising from succession of estate of the late Nicholas Mwema Kibera in Karatina Succession Cause No. 96 of 2016.c.An order for damages and/or compensation for violation of the Petitioner’s Constitutional rights and freedoms of the Petitioners by the 1st, 3rd 5th and 6th Respondents. Damages And Costs 54.No violation having been established, the claim for Kshs. 3,500,000/= for each Petitioner does not arise and is refused. 55.On costs, I bear in mind that although the Petition fails, it was not frivolous, and that the Petitioners' complaint about the administration of the estate has been substantially upheld elsewhere. I bear in mind too that constitutional litigation should not be discouraged by the routine imposition of costs, while recognizing that the 5th and 6th Respondents are private citizens who were put to the expense of defending a claim that ought not to have been brought against them. Balancing those considerations, the appropriate order is that each party bears its own costs. Disposition 56.For the reasons given, I make the following orders:i.That the Petition dated 24th September, 2025 is dismissed.ii.That the prayer for a declaration that the investigations conducted by the 2nd and 3rd Respondents are illegal, unprocedural and unconstitutional is declined.iii.That the prayer for a conservatory order restraining the Respondents from investigating, arresting or prosecuting the Petitioners in respect of the matters reported under OB Entry No. 68/27/10/2023 lacks merit.iv.That any interim or conservatory orders subsisting herein are discharged, varied and set aside.v.That the prayer for damages and compensation is not proven and the same is dismissed for want of merit.vi.That for the avoidance of doubt, nothing in this judgment constitutes a finding that the Petitioners, or either of them, committed any offence. Should charges be preferred, the Petitioners retain the presumption of innocence and every right available to an accused person, and the trial Court will determine the charges on the evidence before it, unaffected by anything said here.vii.That nothing in this judgment affects Karatina Senior Principal Magistrate's Court Succession Cause No. 96 of 2017, or the directions given by the High Court at Nyeri in Succession Appeal No. E006 of 2025.viii.That each party shall bear its own costs of this Petition.It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF AUGUST 2026.…………………………………………..R. NYAKUNDIJUDGE